Opinion
111,077.
01-23-2015
CITY OF MARYSVILLE, Appellant, v. Matthew Dale SAIN, Appellee.
John McNish, of Bolton & McNish, LLC, of Marysville, for appellant. Judd L. Herbster, of Herbster Law Firm, L.L.C., of Topeka, for appellee.
John McNish, of Bolton & McNish, LLC, of Marysville, for appellant.
Judd L. Herbster, of Herbster Law Firm, L.L.C., of Topeka, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of the Marshall County District Court's dismissal of the City of Marysville's (City) appeal after the Marysville Municipal Court dismissed charges of domestic battery and disorderly conduct against Matthew Sain during a municipal court trial. Having carefully reviewed the record on appeal, the parties' briefs, and considered the oral arguments, we hold the City has failed to declare its basis for jurisdiction to appeal to the Court of Appeals. As a result of this failure, the City has not shown that our court has jurisdiction or that the City has complied with our rules of appellate practice. Accordingly, under the unique facts of this case, we decline to review the City's appeal to our court and affirm the district court's dismissal of the City's appeal to that court.
Factual and Procedural Background
The Marysville Police Department responded to a domestic disturbance call at Matthew's home on May 12, 2012. According to Officer Timothy Anderson, Matthew's wife, Rachel, reported that after grabbing jewelry out of her hands and throwing it in a toilet, Matthew hit her in the head with the butt of a shotgun. The incident was witnessed by some children in the home.
After the disturbance, the City charged Matthew in the municipal court with domestic battery (class A misdemeanor), and disorderly conduct (class C misdemeanor). The City also charged Rachel with domestic battery due to the incident.
On August 21, 2012, Matthew's case proceeded to a bench trial. Because municipal courts are not courts of record, no record was made of the proceeding. See State v. Hughes, 290 Kan. 159, 172, 224 P.3d 1149 (2010). The district court, however, made findings of fact regarding the municipal court trial.
The district court found that Rachel was called to the stand and sworn as a witness at trial. While Rachel answered a preliminary question, she invoked her Fifth Amendment privilege under the United States Constitution and § 10 of the Kansas Constitution Bill of Rights against self-incrimination and refused to answer questions regarding the incident. The municipal court judge declined the City's request to compel Rachel to testify and allowed her to assert her Fifth Amendment privilege over the City's objection.
At this point in the trial proceedings the record is uncertain. At the hearing on Mathew's motion to dismiss the City's appeal in the district court, the City asserted that after the municipal court declined to compel Rachel to testify, the City informed the judge “that in light of its ruling, the City was taking an interlocutory appeal.” The City, however, denied that it “sought voluntary dismissal” of the municipal case. Mathew disagreed with the City's version of the facts, and the district court in its memorandum decision found:
“The record is unclear as to whether at this point the City dismissed the case or the Court. A journal entry signed by Judge Scott [municipal court judge] says, ‘with that, the Prosecutor dismissed the matter, saying he would appeal the matter.’ ... In an amended journal entry ... again signed by Judge Scott, the Court said, ‘The City requests the Court to dismiss the matter. The Court dismisses the charge ...’ “
Returning to the procedural background of the case, the City filed a notice of appeal in the Marshall County District Court from “the [m]uncipal [c]ourt's [o]rder of refusing to compel the testimony of Rachel Sain and dismissing the charges of [d]omestic [b]attery.” (As an aside, on appeal the parties appear to agree that the municipal court actually dismissed both of the City's charges against Matthew.) The City claimed that because the municipal court had accepted Rachel's plea and imposed a sentence on her, she could not assert the privilege against self-incrimination, because “there was no possibility of being convicted a second time for the same offense.” The City asked the district court to “sustain the appeal filed herein and direct the testimony of Rachel Sain be compelled and that the matter be reinstated for trial.”
Subsequently, Matthew filed a motion to dismiss the City's appeal with the district court. In particular, Matthew alleged there was no statutory basis for the City's appeal, and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution shielded him from a second prosecution. According to Matthew, because the City had voluntarily elected to dismiss its case during trial, the dismissal equated to a judgment of acquittal, which prohibited both an appeal and a subsequent prosecution.
In response, the City contended that it had the authority to appeal the municipal court's ruling pertaining to Rachel's invocation of the Fifth Amendment because K.S.A. 12–4601 authorizes municipalities to appeal “ ‘upon questions of law.’ “ The City further argued that its appeal did not violate the prohibition against double jeopardy because the prosecutor did not voluntarily dismiss the case.
On December 4, 2012, the district court held a hearing on Matthew's motion to dismiss the City's appeal. After entertaining the parties' arguments, the district judge took the matter under advisement. While the judge's ruling was pending, the district court received a “motion,” which stated: “I Rachel Sain ‘Gately’ would like to testify on the states [sic ] behalf regarding this matter, I am the victume [sic ] and Im [sic ] not affraid [sic ] anymore. please [sic ] allow me to help.”
On November 26, 2013, the district court issued a memorandum decision granting Matthew's motion to dismiss the City's appeal. In particular, the district court found the Double Jeopardy Clause barred the City from seeking to have the matter against Matthew reinstated for trial. The district court began its analysis by explaining that jeopardy attaches when the first witness is sworn and K.S.A.2013 Supp. 21–5110(a)(3) provides that a subsequent prosecution for the same crime is prohibited if the former prosecution was terminated without the consent of the defendant after he or she had been placed in jeopardy. According to the district court, the record showed that a trial commenced against Matthew, and after Rachel was sworn, Matthew was placed in jeopardy.
Despite the City's assertion to the contrary, the district court found that because the prosecutor did not agree with the municipal court's “legal ruling” on Rachel's assertion of the Fifth Amendment, the City either voluntarily elected to dismiss its case or requested that the municipal court enter a dismissal. As a result, the district court concluded the Double Jeopardy Clause mandated that it dismiss the City's appeal because the municipal court's dismissal was entered without Matthew's consent or affirmative acts.
The City filed a timely appeal with our court by filing a notice in the district court. The City's notice of appeal reads: “COMES NOW the Plaintiff and appeals from certain judgments entered herein on November 22, 2013 and all previous rulings and orders on all issues relating decided therein to the Court of Appeals of the State of Kansas.” The notice did not include any statutory citation authorizing the City to appeal to our court or request any particular relief.
Subsequently, in its docketing statement filed with our court, the City cited K.S.A.2013 Supp. 22–3601 and K.S.A. 60–2101, as the statutory authority for its appeal. The statutes cited are general statutes that define the jurisdiction of Kansas appellate courts, but they do not provide statutory authorization for a City to appeal a district court's ruling dismissing a municipal court appeal to the Court of Appeals.
In its docketing statement, the City identified three issues on appeal:
“(i) whether or not a Municipal Judge can dismiss a case during trial after a City Prosecutor has stated that an interlocutory appeal will be taken to the district court upon a question of law; (ii) whether a municipal court judge has the authority to refuse to continue a matter to prevent an interlocutory appeal and (iii) whether a witness can refuse to testify when there is no risk of conviction, prosecution or jail sentence.”
The City did not request any particular relief in the docketing statement.
Discussion
Given the unique and rather confusing factual and procedural background of this case, it is necessary to consider whether the City's appeal is properly before our court.
The right to an appeal is purely statutory; therefore, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). When the record discloses a lack of jurisdiction, it is the appellate court's duty to dismiss the appeal. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). Whether jurisdiction exists is a question of law subject to de novo review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
“The prosecution's ability to appeal a district court's ruling is substantially limited when compared to the defendant's right of appeal.” City of Liberal v. Witherspoon, 28 Kan.App.2d 649, 650, 20 P.3d 727 (2001). K.S.A.2013 Supp. 22–3602(b) provides the prosecution may only appeal, as a matter of right, from actions before a district judge in the following circumstances, and no others:
“(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.”
Under the circumstances of this case, the City could not have brought its appeal under K.S.A.2013 Supp. 22–3602(b)(1), (2), or (4) because the district court's order was not an “order dismissing a complaint, information or indictment,” an “order arresting judgment,” or an “order granting a new trial in any case involving a class A or B felony or ... an off-grid crime.”
What is the basis upon which the City claims a right to appeal to the Court of Appeals from the district court's dismissal of its municipal court appeal?
Importantly, the City's notice of appeal did not assert any basis for our court to acquire jurisdiction. Similarly, the docketing statement is also silent regarding the jurisdictional basis for our court to review this matter. In its appellate briefing, the City quotes K.S.A. 12–4601 : “An appeal may be taken to the district court in the county in which said municipal court is located: ... (b) By the city upon questions of law” as the jurisdictional basis for its appeal from municipal court to the district court. But the City's brief is silent with regard to K.S.A.2013 Supp. 22–3602(b), and the specific statutory basis for the Court of Appeals to review the district court's dismissal of the municipal court appeal.
While the City has failed to explicitly provide the statutory basis for this appeal, we have reviewed the City's appellate briefing to discern circumstantially the possible basis for our court to review this matter. The City's brief refers to its appeal as an “interlocutory appeal” to the district court. This characterization is repeated throughout the City's briefing, and it is apparently based on the City's interpretation of K.S.A. 12–4601 which provides that a city's appeal to the district court “shall stay all further proceedings upon the judgment appealed from.” We question the City's understanding and characterization of this statutory provision as providing for a so-called “interlocutory appeal.” Yet, assuming for purposes of argument only, that K.S.A. 12–4601 authorized the City to file such an appeal in the district court, this fact does not establish the City's ability to appeal the district court's adverse ruling to the Court of Appeals.
On the other hand, our court has jurisdiction to review interlocutory appeals by the State as provided by K.S.A.2013 Supp. 22–3603. This statute, however, limits State interlocutory appeals to the following circumstances:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.” (Emphasis added.)
The City does not mention this statute as a potential source of appellate court jurisdiction. However, the plain language of K.S.A.2013 Supp. 22–3603 only authorizes our court to entertain interlocutory appeals by the State when a district court judge enters an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission prior to the commencement of trial. This statute is clearly inapplicable to the factual and procedural circumstances in the present case. As a result, it does not provide jurisdiction for the City's appeal to our court.
A well known source of jurisdiction for our court to review the City's appeal is found in K.S.A.2013 Supp. 22–3602(b)(3) which permits appeals by the prosecution “upon a question reserved.” Once again, in its briefing, the City did not claim this jurisdictional basis, and we are persuaded the City did not intend to invoke it.
Kansas courts will only accept appeals on questions reserved under K.S.A.2013 Supp. 22–3602(b)(3) if the issue raised involves a question of statewide interest and resolution of the issue is vital to a correct and uniform administration of the criminal law. See Berreth, 294 Kan. at 110. As Matthew correctly asserts, the City's brief “falls far short of establishing a question of statewide interest important to the correct and uniform administration of [justice].” Several panels of our court have concluded that the prosecution waived and abandoned its appeal under K.S.A.2013 Supp. 22–3602(b)(3) by failing to brief a factual or legal basis for jurisdiction based on a question reserved. See, e .g., State v. Delvalle, No. 110,588, 2014 WL 2871396, at *2–4 (Kan.App.2014) (unpublished opinion); City of Junction City v. Tarver, No. 106,337, 2012 WL 3135907, at *2 (Kan.App.2012) (unpublished opinion); State v. Lanning–Herren, No. 105,890, 2012 WL 1970088, at *l–2 (Kan.App.2012) (unpublished opinion).
Most importantly, in this appeal and throughout these proceedings, the City has sought relief that is inconsistent with an appeal brought under K.S.A.2013 Supp. 22–3602(b)(3). Notably, in the City's conclusion to its appellate brief, it asks our court to reverse the municipal court's “application of the [Fifth] Amendment and ... reinstate the criminal prosecution of [Matthew ].” (Emphasis added.) But an appellate court's answer to a question reserved operates prospectively and has no effect upon the defendant in the underlying case. Berreth, 294 Kan. 98, Syl. ¶ 1 3. Therefore, even if the City had properly briefed why this court should address the issue raised as a question reserved, our court is without authority to order the relief sought by the City.
Given that the City has failed, either directly or circumstantially, to show a basis for our court to have jurisdiction to review the City's appeal, our reading of the Supreme Court's decision in Berreth provides important precedent to a resolution of this matter.
In Berreth, our Supreme Court noted that while Supreme Court Rule 2.01 (2014 Kan. Ct. R. Annot. 12) requires the prosecution to assert a specific statutory ground in the notice of appeal when filing a direct appeal with our Supreme Court, Supreme Court Rule 2.02 (2014 Kan. Ct. R. Annot. 12) does not contain a similar requirement for appeals filed with our court. See Berreth, 294 Kan. 98, Syl. ¶ 7 ; Supreme Court Rules 2.01 and 2.02 ; Judicial Council forms at http://kans asjudicialcouncil.org/supremecourtrules.shtml.
Nevertheless, as stated by our Supreme Court in Berreth,
“[T]here must be some point in the appellate process with the Court of Appeals by which the appellant is required to expressly declare its elected basis for jurisdiction. This is particularly true when the appellant is the State because its mere election can determine whether the defendant will be affected by the court's decision. [Citation omitted.]” 294 Kan. at 114.
Similar to Berreth, the City's election of the jurisdictional basis for its appeal would have put Matthew on notice regarding whether he was at risk for further criminal liability or the appeal was simply a vehicle to clarify the law for future cases.
Moreover, our Supreme Court has questioned the appropriateness of an appellate court attempting to ascertain from the prosecution's notice of appeal, docketing statement, or appellant's brief what could be the jurisdictional bases for the appeal. Assisting the prosecution “with its jurisdictional designation in criminal appeals is inconsistent with our [Supreme Court's] acknowledgment that the legislature tightly restricts the State's statutory rights to appeal.” 294 Kan. at 120. Our court has followed Berreth's guidance in determining that the prosecution may not expand its elected statutory basis without notification or a formal amendment, and an appellate court may not sua sponte select the jurisdictional basis for the appeal. State v. Allen, 49 Kan.App.2d 162, 169, 305 P.3d 702 (2013) (citing Berreth, 294 Kan. at 113, 116–17 ). Given the circumscribed nature of appeals by the State and City, it seems appropriate to require the prosecution to state its jurisdictional basis for appeal to our court.
Accordingly, under the unique facts of this case—where the jurisdictional basis for the City's appeal to our court is not stated directly or is incapable of being discerned circumstantially—we dismiss the City's appeal. See Berreth, 294 Kan. at 115 (dismissals for failure to cite the statutory authority under which the appeal should be permitted may potentially be classified as either jurisdictional or procedural).
Appeal dismissed.