State v. Ryce

Stegall, J.,

dissenting: At root, this appeal asks the question: What conduct is actually prohibited by K.S.A. 2014 Supp. 8-1025? If that conduct is, in all circumstances and at all times, constitutionally protected, it cannot be criminally sanctioned by the State and the statute is facially unconstitutional. But if, in some circumstances, the prohibited conduct is not constitutionally protected, then the constitutionality of the statute can only be determined on a case-by-case, as applied, basis. Because Ryce asserts a facial challenge to K.S.A. 2014 Supp. 8-1025, he must demonstrate that the prohibited conduct is always constitutionally protected in order to prevail. Stated another way, if the State can demonstrate that the statute could be applied to prohibit conduct that is not constitutionally protected, then we cannot declare the statute to be facially unconstitutional.

Given this, the outcome of Ryce’s appeal hinges entirely on our interpretation of K.S.A. 2014 Supp. 8-1025. And our interpretation of K.S.A. 2014 Supp. 8-1025 turns on which interpretive rules we follow while assessing the statute’s meaning. The majority properly *965 recites those interpretive rules only to promptly skirt them. Slip op. at 10. First, we are guided by our ordinary method of statutory interpretation, beginning with the plain language of the statute, giving common words their ordinary meaning. State v. Urban, 291 Kan. 214, 216 , 239 P.3d 837 (2010). But, when the constitutionality of a statute turns on the interpretive meaning we choose to give to that statute, we must apply a second interpretive lens which instructs us, if possible, to choose a “ plausible interpretation[] of a statutory text’ ” that avoids unconstitutionality over other interpretations that render the statute constitutionally infirm. Hoesli v. Triplett, Inc., 303 Kan. 358, 368 , 361 P.3d 504 (2015) (quoting Clark v. Martinez, 543 U.S. 371, 381 , 125 S. Ct. 716 , 160 L. Ed. 2d 734 [2005]).

We recently described this rule of constitutional avoidance as the court’s “duty to construe a statute as constitutionally valid when it is faced with more than one reasonable interpretation.” Hoesli, 303 Kan. at 367 . This duty does not arise, however, when there is “only one reasonable meaning [that] can be gleaned from the statutory text.” 303 Kan. at 367 . “[I-]t is ‘our mandate to construe statutes in a fashion to avoid a constitutional infirmity where possible.’ [Citation omitted.] But, we cannot use the doctrine of constitutional avoidance to change the meaning of unambiguous statutory language.” State v. Thompson, 836 N.W.2d 470, 484 (Iowa 2013) (quoted in Hoesli, 303 Kan. at 368 ).

This is consistent with our earlier formulation of the avoidance doctrine. In State v. Durrant, 244 Kan. 522, 534 , 769 P.2d 1174 (1989), we stated:

“This court not only has die authority, but also the duly, to construe a statute in such a manner that it is constitutional if die same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read die necessary judicial requirements into the statute.”

In State v. Marsh, 278 Kan. 520, 539 , 102 P.3d 445 (2004), overruled on other grounds 548 U.S. 163 , 126 S. Ct. 2516 , 165 L. Ed. 2d 429 (2006), we reaffirmed the rule that the avoidance doctrine is appropriate where statutory language is ambiguous or vague, but inappropriate “if its application would result in rewriting an unambiguous statute.” Statutory ambiguity has been described in a *966 myriad of ways, but fundamentally a “statute is ambiguous when two or more interpretations can fairly be made.” Petty v. City of El Dorado, 270 Kan. 847, 851 , 19 P.3d 167 (2001). That is to say, “'the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a “fair” one/” Marsh, 278 Kan. at 538 (quoting Almendarez-Torres v. United States, 523 U.S. 224, 238 , 118 S. Ct. 1219 , 140 L. Ed. 2d 350 [1998]).

In sum, the rule of constitutional avoidance states that if a court can genuinely, reasonably, plausibly, or fairly interpret and construe statutory language consistent with legislative intent in a manner that also preserves it from impermissibly encroaching on constitutional limits, the court must do so. At the same time, the rule does not extend so far as to permit a court to impose an unreasonable, implausible, or unfair interpretation on statutory language that either changes the meaning of unambiguous language or runs directly counter to clear legislative intent.

Both sides of this calculus—which are fully encompassed in the judicial decision to either apply the rule or not'to apply the rule— are rooted in the practice of judicial restraint when exercising the power of judicial review. And judicial restraint is itself rooted in the principles of separation of powers—it is both a doctrinal and a pragmatic judicial acknowledgement of the constitutional bedrock that the legislative branch, not the judicial branch, makes tire law. The “ ‘basic democratic function’ ” of the avoidance doctrine is to maintain “ ‘a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made.’” Marsh, 278 Kan. at 538 (quoting Almendarez-Torres, 523 U.S. at 238 ). However, “ ‘if a court reads an ambiguity into an unambiguous statute simply for the purpose of avoiding an adverse decision as to the constitutionality of that statute, the court would be exercising legislative powers and thereby usurping those powers.’” Marsh, 278 Kan. at 542 (quoting Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 597 [S.D.N.Y. 2002]); see also Solomon v. State, 303 Kan. 512, 534-47 , 364 P.3d 536 (2015) (Stegall, J., concurring) (delineating proper from improper exercise of judicial restraint).

*967 Todays majority loses its way early in its analysis of the statutory language by asking the wrong question—i.e., “is implied consent irrevocable?” 303 Kan. at 902, 931. This is not surprising given that at first blush, consent appears to be the lodestar of the statutory scheme. But by making this case about a person’s right to consent or not to consent to a search, the analysis quickly and necessarily bogs down in a lengthy consideration of the principles of consent— implied and otherwise. But these .principles are not fundamentally constitutional in nature—which is to say, the existence of consent only enters the analysis if the state does not have an otherwise constitutional Fourth Amendment right to perform a search.

By making this case about consent, the majority effectively looks at this appeal through the wrong end of the telescope and ends up with a myopic interpretation of K.S.A. 2014 Supp. 8-1025. If it were merely a question of whether the majority’s interpretation of the statute (criminalizing the revocation of implied consent) is reasonable, I would have no quarrel. But this is a due process challenge arising out of rights protected by the Fourth Amendment. Our analysis must therefore contend principally with the rights protected by the Fourfli Amendment—viz., the right to be free from unreasonable searches and seizures. The proper question to ask in this appeal is whether K.S.A. 2014 Supp. 8-1025 always results in an interference with this Fourth Amendment right. This framing would allow the court to vindicate the principle of constitutional avoidance by considering whether there is a reasonable, plausible, or fair competing interpretation of K.S.A. 2014 Supp. 8-1025 that does not, or may not in all circumstances, violate a person’s due process right to insist that he or she not be searched in violation of the Fourth Amendment. And, in fact, there is genuinely such an alternative interpretation.

Beginning at the wrong place, today’s majority ends up concluding that K.S.A. 2014 Supp. 8-1025 makes it “a crime to withdraw the implied consent that arises under K.S.A. 2014 Supp. 8-1001 by expressly refusing the test.” 303 Kan. 899 , Syl. ¶ 5. In so doing, the majority dramatically narrows and limits the applicability of the actual elements of the crime set forth in the statute and rejects out of hand any broader consideration of whether the statutory language *968 actually makes it a crime to “refusfe] to submit to a test authorized under a warrant exception other than consent.” 303 Kan. 899 , Syl. ¶ 5. The majority likewise rejects the third possibility that the statute makes it a crime to refuse to submit to certain tests “conducted pursuant to a warrant.” 303 Kan. at 918. Under either of these latter two interpretive possibilities, there is no constitutional right to refuse the test. There is, in fact, no legally operative “consent” that might be “revoked.” This is because of the well-settled principle that a person has no right to refuse consent to a search that is authorized by the Fourth Amendment—either because it is a search pursuant to a warrant or it is a search pursuant to a warrant exception other than consent. See, e.g., South Dakota v. Neville, 459 U.S. 553 , 560 n.10, 103 S. Ct. 916 , 74 L. Ed. 2d 748 (1983) (no right to refuse a constitutionally valid blood-alcohol test under Schmerber exigency standard); Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986) (“Consent in the constitutional sense is only required where the defendant has a legal right to refuse.”); United States v. Habig, 474 F.2d 57, 61 (7th Cir.) (Corporate officer has no constitutional right to refuse production of corporate records in response to a lawful request.), cert. denied 411 U.S. 972 (1973); State v. Bernard, 859 N.W.2d 762, 773 (Minn.), cert. granted 136 S. Ct. 615 (2015) (A defendant “does not have a fundamental right to refuse a constitutional search.”); State v. Turner, 263 Neb. 896, 899 , 644 N.W.2d 147 (2002) (When a search is constitutionally valid “a suspects right to refuse a chemical test is a matter governed purely by statute.”); see also, e.g., Bumper v. North Carolina, 391 U.S. 543, 550 , 88 S. Ct. 1788 , 20 L. Ed. 2d 797 (1968) (“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.”); State v. Bennett, 288 Kan. 86, 92 , 200 P.3d 455 (2009) (“the Fourth Amendment does not protect against all searches and seizures, but only those that are unreasonable”); State v. Seabury, 267 Kan. 431, 438 , 985 P.2d 1162 (1999) (obstructing the execution of a search warrant supported a misdemeanor obstruction charge).

Therefore, if the statute is interpreted broadly enough to encompass either of the two latter factual scenarios, it can be saved from encroaching on any constitutionally protected right—at least *969 in the circumstances described by those scenarios. The only remaining question is whether such an interpretation of K.S.A. 2014 Supp. 8-1025 is genuinely reasonable, plausible, or fair. In my view, it is.

K.S.A. 2014 Supp. 8-1025, by its own terms, makes it a crime for certain persons to “refus[e] to submit to or complete a test or tests deemed consented to under subsection (a) of K.S.A. 8-1001.” Notably, the plain language of the statute criminalizes-the physical act of refusing to submit to a test, not, as the majority would have it, the claiming of a specific legal status-—i.e., “withdrawing consent to search.” The other element of the crime, in addition to refusal, is simply a definition of the kind of test which it is a crime to refuse. “Tests deemed consented to” is a broad term and applies to “all quantitative and qualitative tests for alcohol and drugs” of a person “who operates or attempts to operate a vehicle within this state.” K.S.A. 2014 Supp. 8-1001(a). That is the extent of the statute s own terms. A literal rendition of the statute that reads the referenced provisions of K.S.A. 2014 Supp. 8-1001(a) directly into the elements of the crime looks like this: K.S.A. 2014 Supp. 8-1025 makes it a crime for a person with certain clearly defined prior convictions, who has operated or attempted to operate a vehicle in the state of Kansas, to refuse to submit to or complete any quantitative or qualitative test for alcohol or drugs. Nowhere in the statute’s plain language is there any reference to withdrawing or revoking consent, or otherwise asserting any legal right. The majority simply adds this gloss onto the language because it has analytically painted itself into the comer of “consent.”

K.S.A. 2014 Supp. 8-1001(a) indicates that the tests at issue in K.S.A. 2014 Supp. 8-1025 are “subject to the provisions” of Chapter 8, Article 10 of the Kansas Statutes. As the majority points out, Article 10 “limit[s] the circumstances under which ‘[a] law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a).’ K.S.A. 2014 Supp. 8-1001(b).” 303 Kan. at 907. Importantly, while Article 10 restricts the circumstances in which a law enforcement officer may administer a test, it is far from clear that Article 10 does anything to limit the class of tests “deemed consented to under subsection (a).” K.S.A. 2014 Supp. 8-1001(b).

*970 Regardless, rather than confirming the majority’s characterization of K.S.A. 2014 Supp. 8-1025 as criminalizing the revocation of consent, a quick perusal of the many different conditions imposed on law enforcement by the remainder of Chapter 8, Article 10 actually demonstrates that such tests were contemplated by the legislature in circumstances in which consent is irrelevant. For example, K.S.A. 2014 Supp. 8-1001(p) contemplates that in some circumstances, the tests deemed consented to will actually be administered pursuant to either a search warrant or a search incident to arrest. Thus, if a law enforcement officer obtained the warrant expressly contemplated by K.S.A. 2014 Supp. 8-1001(p), and requested “such test or tests” pursuant to that warrant, a person would have no legal right to refuse to submit to that test. Assuming the validity of the warrant, such a hypothetical person could be convicted of refusing to submit to that test—a test expressly “deemed consented to”—without any due process violation of that persons Fourth Amendment rights. That persons consent, implied or actual, revoked or not, would be entirely beside the point.

Likewise, exigency continues to be a possible source of legal authority, on a case-by-case basis, for a search via a “test deemed consented to.” See Missouri v. McNeely, 569 U.S. _ , 133 S. Ct. 1552, 1558 , 185 L. Ed. 2d 696 (2013). In part, this is because, as a matter of law, tests that are statutorily “deemed consented to” may in actual fact not be consented to—or the deemed consent may be constitutionally infirm. See, e.g., State v. Declerck, 49 Kan. App. 2d 908, 909-10, 922 , 317 P.3d 794 , rev. denied 299 Kan. 1271 (2014); State v. Dawes, No. 111,310, 2015 WL 5036690 , at *4 (Kan. App. 2015) (unpublished opinion). But this does not mean that the tests are somehow no longer in the statutory category of tests “deemed consented to.” They plainly are. The majority dismisses this common sense, plain reading approach as “oxymoronic,” reasoning that when a “person has expressly refused consent... it would be incongruous ... to say the person was deemed to have consented to the test.” 303 Kan. at 918. Here the majority mistakenly concludes that a determination of whether a certain test belongs in the statutory class of tests “deemed consented to” is contingent upon, not the test, but tire person s response to a lawful request to submit to *971 the test. According to the majority, simply by refusing to submit to a test, a person can render the test requested one that no longer belongs in the statutoiy category of a test deemed consented to. The internal inconsistencies are clear. This is no way to conduct statutory analysis.

In my view, the determination of whether any requested test fits the statutoiy class of tests “deemed consented to” should be made by looking at the statutoiy scheme, not by looking to the legal or practical effectiveness of that statutorily “deemed” consent. And there is nothing to prevent the State from lawfully seeking to administer a “test deemed consented to”—even in circumstances where that statutoiy declaration is legally or factually ineffective— other than the Fourth Amendment. If the Fourth Amendment has otherwise been complied with, the test may proceed, and a refusal to submit is, in fact, a refusal to submit to a test deemed consented to.

This is not only a possible reasonable, plausible, and fair interpretation of the statutory language, it is the most reasonable, plausible, and fair interpretation—especially in light of the plain language of the statute. To illustrate the point one final time: The question must be asked, is it possible for a “test deemed consented to” to be lawful without consent? The answer is, of course, yes. The physical act of refusing to submit to such a test can be criminalized by the State without running afoul of the defendant s due process rights. Because there are numerous scenarios in which a reasonable application of the actual language and elements contained in K.S.A. 2014 Supp. 8-1025 would not be unconstitutional, the statute should survive any facial challenge. By rejecting that reasonable application of the actual language and elements of the statute in order to strike it down as facially unconstitutional, the majority has neglected our interpretive duty to avoid a finding of unconstitutionality when a reasonable, plausible, and fair alternative is genuinely available.

Because it is reasonable to conclude that the statute prohibits conduct, in some circumstances, that is not constitutionally protected, the constitutionality of the statute can only be determined on a case-by-case, as applied, basis and we should not declare the *972 statute to be facially unconstitutional. In so-doing, todays decision has undermined tire “basic democratic function” of our avoidance doctrine which functions to maintain, insofar as is possible, “the policy choices that elected representatives have made.” Almendarez-Torres, 523 U.S. at 238 .