Opinion
111,354.
11-26-2014
CITY OF OLATHE, Appellee, v. Eric S.CLARK, Appellant.
Eric S. Clark, appellant pro se. Curt D. Hoover, assistant municipal prosecutor, for appellee.
Eric S. Clark, appellant pro se.
Curt D. Hoover, assistant municipal prosecutor, for appellee.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal from a traffic infraction. Eric S. Clark was cited by the City of Olathe (City) for driving without a seatbelt in violation of an Olathe municipal ordinance. Clark contends the ordinance is unconstitutional in general and because it shifts the burden of proof at trial. We affirm the finding of guilt.
FACTUAL AND PROCEDURAL BACKGROUND
On November 24, 2012, Thomas Foxworthy, a City police officer, observed Clark driving a 1994 Ford Escort without wearing a seatbelt. Olathe Traffic Ordinance (Ordinance) 10.01.182.1(a) requires that “each occupant of a passenger car manufactured with safety belts in compliance with federal motor vehicle safety standard no. 208, who is 18 years of age or older, shall have a safety belt properly fastened about such person's body at all times when the vehicle is in motion.” There is no dispute that this ordinance applied to Clark's vehicle.
Officer Foxworthy stopped Clark for the apparent violation of the ordinance. The ordinance provides several exceptions to the seatbelt requirement, including for “[a]n occupant ... who possesses a written statement from a licensed physician that such person is unable for medical reasons to wear a safety belt system.” Ordinance 10.01.182.1(c)(1). Officer Foxworthy had no knowledge of any exception that applied, so he issued the traffic citation to Clark.
Clark unsuccessfully challenged the citation in municipal court, where he was found guilty and fined $10. He appealed to the district court. Clark produced a written brief in the district court which apparently attacked the constitutionality of the ordinance. Although the district court considered the brief, the document is omitted from the record on appeal. Clark presented no evidence and argued in closing that “the City did not present evidence that would prove beyond a reasonable doubt that [he] was not in possession of a written statement from a licensed physician indicating that [he] was unable to wear a seatbelt safety system for medical reasons.” In finding Clark guilty of violating the ordinance, the district judge rejected Clark's argument:
“The statute requires that all drivers over the age of 18 shall wear a seatbelt, a safety belt ... at all times when the vehicle is in motion. [Officer Foxworthy] did testify that he could see that you were not wearing a seatbelt ... and that your vehicle was in motion at the time.
“I think that that's what the ordinance requires. I think when the officer makes the stop, if you have a written statement from your doctor saying that you shouldn't be wearing a safety belt, that you would need to produce that to the officer. It's your responsibility to bring forth that information to the officer, and then if the officer sees that information, he would not have written a ticket.
“It's interesting to note that even though you were given the opportunity to testify, you didn't testify that you did in fact have a written statement from a licensed physician stating that you were unable to wear a seatbelt on that date.”
Clark appeals.
Constitutionality of the Ordinance
Clark contends “[t]he Olathe Municipal Ordinance 10.01.182.1(a) SEAT BELTS is unconstitutional.” Clark also asserts in passing that his conviction under an unconstitutional ordinance deprived the district court of “subject matter jurisdiction over the alleged violation.” The City addresses Clark's jurisdictional assertion rather than his constitutional claim.
We examine pro se briefs for substance, not form. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). We do not address Clark's passing assertion regarding jurisdiction. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (a point raised incidentally but not argued is deemed waived or abandoned on appeal). The gist of Clark's argument is that the ordinance is unconstitutional, so that is the issue we will consider.
Unfortunately, we do not know precisely what constitutional grounds Clark raised below. His brief to the district court was omitted from the record on appeal. The record does show the district court identified the central point of Clark's brief, however, and Clark agreed with the district court's reading:
“THE COURT:” Well, as I understand the main argument that you set forth in this [brief] is that an officer cannot make the stop without having a suspicion, an articulate suspicion that you do not have a medical exemption to the statute [sic]; is that your argument?
“THE DEFENDANT: Yes.”
We mention this because, as a general proposition, constitutional grounds for reversal are not properly raised for the first time on appeal. See State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). If Clark wanted us to review the other constitutional grounds he raises on appeal, such as involuntary servitude or conscience rights, he bore a burden to designate a record affirmatively showing the district court had considered and erroneously rejected these grounds. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). As a result, we will consider only the issue shown to have been raised in the district court.
The question presented on appeal, therefore, is whether Ordinance 10.01.182.1(a) is unconstitutional because it allows a traffic stop without any reasonable suspicion that the listed exceptions do not apply.
Our standard of review is well known:
“An appellate court's standard of review of a constitutional challenge to an ordinance is de novo. The party asserting unconstitutionality, however, has a weighty burden. This is because an appellate court has a duty to preserve the validity of an ordinance and to search for ways to uphold its constitutionality. The court must presume that the ordinance is constitutional, resolve all doubts in favor of validity, and uphold the ordinance if there is any reasonable way to construe it as constitutional; before striking the ordinance, the court must conclude that it clearly appears to be unconstitutional.” City of Lincoln Center v. Farmway Co–Op, Inc., 298 Kan. 540, Syl. ¶ 1, 316 P.3d 707 (2013).
To conduct our analysis, we must first decide whether Clark raises a facial or as-applied challenge to the ordinance. Clark does not specify the nature of his constitutional complaint. Facial challenges are generally disfavored, and our Supreme Court has construed a similarly unspecified challenge to be an as-applied challenge. See 298 Kan. at 548. Typically, a party who has suffered no constitutional harm lacks standing to attack a statute on the grounds that it impairs someone else's rights. See Cross v.. Kansas Dept. of Revenue, 279 Kan. 501, 507–08, 110 P.3d 438 (2005).
We will, therefore, examine whether Clark establishes an as-applied challenge to the ordinance. The issue as framed by Clark is whether an officer must know an occupant does not qualify for an exception in order to lawfully make the traffic stop. Officer Foxworthy testified he did not know whether Clark qualified for an exception when he stopped Clark's vehicle. This testimony was sufficient to establish an as-applied challenge.
Officer Foxworthy's decision to make the stop was governed by the following constitutional standards:
“Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. [Citation omitted.] Consequently, in order to perform a traffic stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and K.S .A. 22–2402(1) require law enforcement officers to possess reasonable suspicion that the driver of the vehicle is committing, has committed, or is about to commit a crime. A traffic infraction provides an objectively valid reason to effectuate a traffic stop. [Citation omitted.]” City of Norton v. Wonderly, 38 Kan.App.2d 797, 802–03, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008).
Since reasonable suspicion in the present case means suspicion of a traffic infraction, we will next identify the elements under Ordinance 10.01.182.1(a). We agree with the district court's summary that “all that is required is .... a motor vehicle being driven when the driver doesn't have a seatbelt on.” We also agree with the district court's further statement: “It becomes incumbent then upon the driver to establish that he's entitled to one of these exemptions.”
Thus, the ordinance did two things. It set out the elements of the violation and it provided certain exceptions. Our appellate courts in Kansas have characterized such exceptions as standing apart from the elements of the violation. See, e.g., State v. Carter, 214 Kan. 533, 536, 521 P.2d 294 (1974) ; State v. Gunn, 29 Kan.App.2d 337, 341–42, 26 P.3d 710, rev. denied 272 Kan. 1421 (2001). Hence, the elements establish a “prima facie case” for violation, and the exceptions are affirmative defenses to that violation which a defendant may or may not pursue. See Carter, 214 Kan. at 536 ; Gunn, 29 Kan.App.2d at 341–42.
Since the exceptions in this ordinance are affirmative defenses, Officer Foxworthy could form a reasonable suspicion of a violation without knowing whether one of the exceptions applied. In Mackey v. State, 83 So.3d 942, 947 (Fla.Dist.App.2012), aff'd 124 So.3d 176 (2013), for example, the Florida court held that to “require that a police officer not only have reasonable suspicion of criminal activity, but reasonable suspicion of the nonexistence of an affirmative defense to the crime,” was “contrary to both precedent and common sense.” We conclude the ordinance is constitutional on the grounds raised by Clark.
Shifting the Burden of Proof
Clark also contends “[t]he conviction ... was in violation of the constitutionally protected right to Due Process by placing the burden of proof upon the defendant to disprove an element of the criminal defense.” While this issue also challenges the constitutionality of the ordinance, it is distinguished from the former issue by its focus on the burden of proof. See Carter, 214 Kan. at 536 (making this distinction in similar circumstances). Whether a statute unconstitutionally shifts the burden of proof at trial is a question of law subject to unlimited review. See State v. Brown, 280 Kan. 898, 900, 127 P.3d 257 (2006).
The prosecution bears the burden of proof, meaning the burden of persuasion, with respect to the elements of a statute or ordinance. See Carter, 214 Kan. at 536. However, the “duty of going forward with the evidence or the burden of evidence” is “a procedural obligation” which “can shift from party to party during the course of a trial.” 214 Kan. at 536. Exceptions to a violation, such as those at issue here, fall into the second category and thereby place an “obligation ... upon a defendant to meet with evidence a prima facie case against him.” 214 Kan. at 536.
To conclude, “[a]n accused has the burden of introducing evidence as a matter of defense that he or she is within an exception or exemption in the statute creating the offense, where such exception or exemption in the statute is not part of the description of the offense.” Gunn, 29 Kan.App.2d 337, Syl. ¶ 1. Clark bore the burden of producing some evidence to show he came within the exception. But, Ordinance 10.01.182.1(a) did not unconstitutionally shift the ultimate burden of proof to him at trial. The district court properly considered Clark's failure to provide any evidence that might entitle him to the medical exception when finding him guilty of violating the ordinance.
Affirmed.