Opinion
No. 111,952.
2015-02-13
STATE of Kansas, Appellee, v. Steven W. MILDFELT, Sr., Appellant.
Appeal from Clay District Court; John F. Bosch, Judge.Steven W. Mildfelt, Sr., appellant pro se.Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Clay District Court; John F. Bosch, Judge.
Steven W. Mildfelt, Sr., appellant pro se. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Steven W. Mildfelt, Sr., appeals from the district court's finding that he violated a Clay County resolution by initiating a controlled burn without prior notification to the sheriff's department. Mildfelt contends the resolution is in violation of a controlling Kansas administrative regulation. He also charges that the district court erred in ordering restitution. Finally, Mildfelt complains that the county resolution authorizing assessment of certain costs violated pertinent Kansas statutes.
Facts
At mid-afternoon on March 26, 2012, Brad Fowles was working on his property in rural Clay County when he saw smoke and flames. He notified the Clay County Sheriff's Department. Von Kramer, Chief of the Longford Rural Fire District, responded to the fire. When Kramer arrived on the scene the fire was moving fast, so he called in additional fire support. At approximately 3 p.m. Clay County Undersheriff Jim Bogart was also called to the fire and began investigating where and how the fire had started.
As part of his investigation, Bogart went to the residence of Mildfelt. Kramer later testified that Mildfelt owned the only residence in the area where the fire appeared to have started. In response to Bogart's questions, Mildfelt admitted starting a fire earlier that morning, at approximately 9:30 a.m., to burn some brush. Bogart then asked if Mildfelt had called in his fire and Mildfelt said he did not because he did not think or know that he had to do so. Mildfelt also told Bogart that the fire had been burning well and he had gone inside to eat, but when he came back out the fire was out of control.
Later evidence would show that approximately 1,600 acres of land had burned before the fire was brought under control. As a result, the State charged Mildfelt with one count of failure to notify the sheriff prior to a controlled burn, in violation of Clay County Resolution No.2006–13 (“the resolution”), a class B nonperson misdemeanor. The district magistrate judge appointed counsel for Mildfelt, but after counsel withdrew due to a conflict of interest, Mildfelt represented himself in further court proceedings. The trial before the magistrate resulted in a guilty verdict. The magistrate later filed an order of restitution, ordering Mildfelt to pay a total of $7,550 to several named victims. Mildfelt was later sentenced to 90 days in jail, but was granted 12 months' probation from the jail sentence. In addition to the victim restitution award, Mildfelt was ordered to pay $158 in court costs and $9,989.10 in costs incurred by the Longford Rural Fire Department in responding to the fire. Mildfelt appealed these decisions to the district court.
On appeal, Mildfelt pled not guilty. As he had before the magistrate judge, Mildfelt filed a motion to dismiss with an accompanying memorandum, arguing that the resolution violated various Kansas statutes and at least one Kansas Administrative regulation. After the State responded, the district court held a hearing on the motion. The court ultimately overruled the motion, holding that the resolution was constitutional and within the home rule authority given to counties.
At the subsequent bench trial, the State called Allen Nelms, the Clay County Sheriff's dispatcher on duty on the day of the fire. Nelms testified that when someone calls to notify that they are planning a controlled burn, dispatchers will note it in a log book. The State introduced evidence that the burn log from the day of the fire showed no contact from Mildfelt about a controlled burn.
The State also called Fowles, Kramer, and Bogart, and Mildfelt testified in his own defense. Mildfelt explained the safety precautions he took when setting his fire, but also testified he did not know how it had gotten out of control. Mildfelt admitted he did not know he needed to notify the sheriffs department of a planned controlled burn. At the trial's conclusion, the district court found Mildfelt guilty of failure to notify the Sheriff prior to a controlled burn.
During the sentencing hearing, the trial court heard testimony from two property owners who had property damaged in the fire as to the nature and amount of their damages. By agreement, the court also considered damages testimony from two other owners who had testified before the magistrate judge. The court heard Mildfelt's objections to the requested restitution amounts and his plea that he was financially unable to pay such damages.
The district judge ultimately followed the path taken by the magistrate and reimposed the 90–day jail sentence with 12 months' probation. The district court also assessed court costs and a reduced figure of $7,389.87 to the injured landowners, but rejected the claim of the Longford Rural Fire Department based upon Mildfelt's financial circumstances. Mildfelt has timely appealed from the district court's findings.
Analysis
In his first issue on appeal, Mildfelt argues that the Clay County Board of Commissioners did not have the statutory authority to pass a resolution requiring notification of the sheriff's department prior to starting a controlled burn. Specifically, Mildfelt contends that the resolution conflicts with and violates K.A.R. 28–19–648, when that regulation is considered in light of several other Kansas statutes. The State responds that the defendant did not properly preserve this issue for appeal. In the alternative, the State argues that the resolution was not contrary to Kansas statutes or administrative regulations because it merely established more restrictive policies, as the law allows.
In its preservation argument, the State correctly notes that Mildfelt raised this issue by motion to dismiss in the district court, and the court rejected his argument. The State contends that because Mildfelt did not raise the issue again during trial or object to the previous denial of his motion to dismiss at trial, he has not properly preserved the issue for appeal. The State cites no legal authority for its contention that the defendant was required to reassert his position at trial; it cites only to a case in which our Supreme Court found an issue not properly preserved when the defendant failed to raise it at all before the district court See State v. Levy, 292 Kan. 379, 383–85, 253 P.3d 341 (2011). Mildfelt, by contrast, did raise these arguments in his pretrial motion to dismiss, which the district court denied. We hold that Mildfelt preserved the issue for appeal. See State v. Teter, 47 Kan.App.2d 608, 612, 278 P.3d 968 (2012) (finding an issue is preserved when raised in a pretrial motion to dismiss).
In order to consider the merits of the defendant's complaint that the resolution conflicts with Kansas law and administrative regulations, we must first note that these several levels of law interact with one another and must be interpreted in light of each other.
First, Clay County Resolution No.2006–13 states, in pertinent part:
“1. Before any controlled burn may take place, the person planning to initiate such a burn must notify the Clay County Sheriff's Department.
....
“3. Failure to notify the Clay County Sheriff's Department prior to initiating a controlled burn will result [in] the costs of any response [being] assessed to the person initiating such a burn.”
K.S.A. 65–3010 authorizes the secretary of health and environment to establish requirements for open burning. Pursuant to that statute and to the authority granted by K.S.A.2013 Supp. 65–3005(a)(1), the secretary adopted K.A.R. 28–19–648, an administrative regulation that regulates agricultural open burning. K.A.R. 28–19–648 provides, in pertinent part:
“(a) Open burning of vegetation ... shall be exempt from the prohibition on the open burning of any materials ... provided that the following conditions are met:
(1) the person conducting the burn shall notify the local fire control authority with jurisdiction over the area before the burning begins, unless the appropriate local governing body has established a policy that notification is not required.
...
“(b) Nothing in this regulation shall restrict the authority of local jurisdictions to adopt more restrictive ordinances or resolutions governing agricultural open burning operations.”
Mildfelt argues that the resolution's requirement that a person notify the sheriff's department runs contrary to the regulation's requirement that a person notify the local fire authority. On the other hand, the State takes the position that, by passing the resolution, Clay County simply adopted a more restrictive policy, as authorized under K.A.R. 28–19–648(b). Statutory interpretation is a question of law over which this court has unlimited review, as is the interpretation of administrative regulations. See State v. Laurel, 299 Kan. 668, 673, 325 P.3d 1154 (2014) (statutes); State v. Ernesti, 291 Kan. 54, 64, 239 P.3d 40 (2010) (administrative regulations).
The heart of Mildfelt's argument arises from the fact that K.A.R. 28–19–648 requires a person to notify the local fire authority before a controlled burn, whereas the resolution does not. The resolution only requires a person to notify the sheriff's department prior to the burn. Mildfelt argues that replacing the regulation requirement with a different notification requirement is impermissible. In response, the State correctly points out that K.A .R. 28–19–648(a)(1) plainly allows local governing bodies to establish a policy that notification of the local fire control authority is not required.
As our court has long held, “when a regulation's meaning is clear from its plain language used in it, a court should give the regulation its plain-language meaning. See Ussery v. Kansas Dept. of SRS, 258 Kan. 187, 194, 899 P.2d 461 (1995).” Shehan v. Kansas Dept. of Corrections, No. 108,020, 2013 WL 781139, at *4 (Kan.App.2013) (unpublished opinion). Mildfelt himself emphasizes in his brief that the policy in Clay County prior to the resolution did not require notification of the local fire authority prior to a controlled burn. Kramer testified before the district magistrate judge that prior to the resolution, “basically people could burn if they had the equipment and stuff to do it”; they were not required to notify anyone prior to burning. Additionally, passing the resolution—which requires notification of the sheriff's department but not the local fire control authority—is strong evidence of a policy that a person need not notify the local fire control authority. Under the plain language of K.A.R. 28–19–648(a)(1), Clay County established a policy that a person need not notify the local fire control authority prior to initiating a controlled burn, and the lack of that requirement does not undermine the validity of the resolution.
The State also argues that K.A.R. 28–19–648(b) expressly allows adoption of more restrictive resolutions like Clay County's. Mildfelt replies that the resolution is not “more restrictive” because it replaces the regulation's requirement, instead of adding to it. We find the State's argument on this more persuasive, in light of K.A.R. 28–19–648's plain language. As noted above, in accordance with K.A.R. 28–19–648(a)(1), Clay County established a policy that notification of the local fire control authority was not required. The resolution subsequently established an additional notification requirement not found in K.A.R. 28–19–648: notification of the sheriff's department. By definition, the resolution was more restrictive than the state regulation. It is therefore expressly allowed under K.A.R. 28–19–648(b). Mildfelt's argument that the resolution is contrary to the regulation is without merit and fails.
In his second issue, Mildfelt argues there was no causal link between his crime and the fire response costs and restitution he was ordered to pay, thus rendering these court orders improper. But his arguments regarding the fire response costs are moot, since on appeal the district court deviated from the magistrate's orders and did not assess fire response costs against him. Mildfelt properly raised his objections to the causal link between his crime and the other damages ordered as restitution by the district court, thereby preserving them for review by this court.
K.S.A.2013 Supp. 21–6607(c)(2) requires a district court placing a defendant on probation to order the defendant to “make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” Mildfelt contends that the district court erred in holding that the damages for which he was ordered to pay restitution were caused by his crime. “A district judge's factual findings underlying the causal link between the crime and the victim's loss are subject to a substantial competent evidence standard of review. [Citation omitted.]” State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014).
At the sentencing hearing, the district court heard testimony from Brian Blackwood and Linda Henry, who owned property the fire had damaged; they testified as to the total amount and type of damages they suffered. The parties agreed that the district court could also consider the testimony before the magistrate judge of two other property owners claiming damage from the fire. Because Mildfelt is not challenging the amount of restitution ordered, we will omit those details from this decision. Essentially, each person testified that their property was damaged or destroyed by the fire in question. In ruling on restitution, the district judge stated the amounts he was ordering and cited the controlling statute on restitution. After explaining why he was not assessing the costs of the fire response, the district judge stated:
“It's going to be a hardship enough for you to make the restitution I've ordered at 7389.87, but I feel that is a just order of the Court.
“... I've heard you, sir. I just disagree with you that you are not responsible for the restitution issue. I do find that these damages are directly related to the offense, and that's the extent that I'm gonna go into detail on that.”
As the State notes, the district court's explanation of its holding that Mildfelt's crime caused the damage is sparse. Our Supreme Court has held that “the duty to ensure adequate factual findings for appellate review is borne chiefly by the district court. [Citations omitted.] But the party who seeks to raise on appeal an issue that turns on the factual determinations also bears some responsibility. [Citation omitted].” State v. Gibson, 299 Kan. 207, 216, 322 P.3d 389 (2014). If a party feels the court's findings are insufficient for appellate review, that party has an obligation to seek more complete findings. See State v. Carr, 300 Kan.1, 65, 331 P.3d 544, 600 (2014). When a party fails to object to the adequacy of district court findings, this court may presume that the district judge found all facts necessary to support his or her conclusion. 300 Kan. at 65. Here, Mildfelt did not object to the district court about its limited reasoning on the record, nor does he so complain to this court.
Instead, Mildfelt argues that restitution was improper because the crime for which he was convicted—failure to notify the sheriff's department of his burn—did not cause the fire to burn out of control, thereby causing the damages. As Mildfelt puts it, “notification neither causes nor prevents out of control fires which can cause damage to adjoining properties.” Because his failure to notify the sheriff's department was not the cause of this fire burning out of control, Mildfelt argues that restitution to property owners damaged by the fire was improper.
In response, the State insists that there was substantial competent evidence to support the district court's finding that Mildfelt's failure to notify the sheriff's department prior to starting his fire caused the damage. At trial, Nelms testified that the sheriff's department routinely receives notification of controlled burns and logs them “so that local fire departments would be—would know that there is a fire in the area in case it started to get out, and it would help us get aid out to it if it started to get out of control.” In addition, Kramer testified that he had initially been called to respond to a fire at one location but on the way realized that the fire was actually at another location. As a result he was able to divert resources to where the fire actually was located. As the State contends, this implies that firefighters could have arrived on the correct scene of the fire more quickly had they known where the fire was located, a task that would have been made much easier by prior notification.
Citing testimony given to the magistrate judge, Mildfelt points out that there were many fires during 2012 and that his was the only prosecution for failure to notify the sheriff's department, arguing that notification neither causes nor prevents out-of-control fires. What Mildfelt ignores is that although failure to notify does not render a controlled burn to be uncontrolled, it may increase or cause damages incurred during an out-of-control fire. If the sheriff's department does not know where to dispatch firefighting resources, the response time of firefighters is delayed and more property may be damaged. Such was the case here. Substantial competent evidence exists to support the district court's findings that the parties' damages were caused by Mildfelt's failure to notify the sheriff's department prior to starting his fire. We affirm the district court on this issue.
In his final complaint, which is related to his overall contention that the resolution violates state law, Mildfelt challenges the language of section 3 of the resolution, noted above, which provides that failure to notify the sheriff's department prior to initiating a controlled burn “will result [in] the costs of any response [being] assessed to the person initiating such burn.” Mildfelt argues that this language of the resolution is in conflict with the language of K.S.A.2013 Supp. 21–6604(a)(8). That statute, which is a part of the sentencing provisions of the Kansas Criminal Code, authorizes a sentencing judge to order the defendant to repay a fire district for the expenses of responding to a fire under certain circumstances. Mildfelt contends that none of the specific statutory grounds (which principally apply to persons convicted in arson-related cases) allow restitution to the fire district in this case for the costs of responding to his fire.
In response, the State notes that although the magistrate judge ordered Mildfelt to pay the costs of the fire response, the district judge did not—he held that Mildfelt's financial circumstances made the assessment inappropriate. In sum, the State argues that Mildfelt's arguments on this issue are moot. We agree.
Our Supreme Court recently reiterated:
“Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. [Citation omitted.] ... The mootness test has been described as a determination whether “ ‘it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights. [Citation omitted.]’ “ [Citation omitted.]” State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014).
Here, Mildfelt is no longer responsible for the fire response costs which arguably might be assessed under the resolution. Though ordered by the magistrate, they were excused on appeal by the district court. Therefore, any judgment of this court on the propriety of the resolution would not affect the purposes of the parties and would constitute an advisory opinion. We decline to address the issue.
Affirmed.