relying on Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 [1991], and discussing existence of two vagueness analyses, criminal and “business”; statutes regulating business afforded greater leeway
How later courts described this case
- relying on Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 [1991], and discussing existence of two vagueness analyses, criminal and “business”; statutes regulating business afforded greater leeway
- relying on Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 [1991]; discussing existence of two vagueness analyses, criminal and "business"; statutes regulating business afforded greater leeway
- noting that “ ‘[i]t is presumed the legislature understood the meaning of the words it used and intended to use them’ ”
- “‘[T]he legislature intended a different meaning when it used different language in the same connection in different parts of a statute.’” (emphasis added
Written by the judges who cited it.
The opinion
Abbott, J.,
dissenting: The Boatrights are being deprived of their livelihood by a vague, ambiguous term, “racing greyhounds,” as used in K.S.A. 1991 Supp. 74-8810(g), that the majority makes no real effort to define. No evidence was presented that the Boatrights had trained greyhounds, which had actually raced at a racing facility, with animal lures.
Everyone agrees “racing greyhounds” means something different than “greyhounds.” The majority relies on legislative history and an attorney general’s opinion to conclude that the legislature intended to distinguish “racing greyhounds” from “hunting greyhounds.” This is not the only distinction that can be made. Greyhounds, even those from the same litter, can become household pets, hunting greyhounds, greyhounds that ultimately run in competition at race tracks, and greyhounds used for breeding purposes.
Even while applying the stricter criminal standard, the majority, by necessity, makes all registered greyhounds “racing greyhounds” until a determination is made by someone that the greyhound is a pet, a hunter, or to be used for breeding purposes. A reader of the statute is left to guess who makes the decision and when it can or must be made.
The issue before this court is how an ordinary person, who wants to train greyhounds, would construe “racing greyhounds,” as used in K.S.A. 1991 Supp. 74-8810(g). What the legislature intends does not. matter in a criminal statute. Nor should a person have to check legislative history in order to determine whether *249 conduct is criminal. If prohibited conduct, is not clearly delineated in a statute, the accused receives the benefit of the doubt.
Unlike the majority, I do not know what “racing greyhounds” means, and, if it was relevant, I am not sure what the legislature intended by using the term “racing greyhounds.” I suspect different legislators had different views about what the term means.. For example, at least one legislator testified he thought the statute in question applied only to greyhounds racing at an authorized track. The 1987 House Journal states that one legislator explained his vote in favor of the parimutuel bill by saying, “Mr. Speaker, until I determined that the ban on live lures language in H.B. 2044 applied only to those dogs racing on tracks for purses, I could not vote for the parimutuel bill.” House J. 1987, p. 1142.
What does the industry understand “racing greyhounds” to mean? The president of the National Greyhound Association, a greyhound business owner for over 30 years, testified that a “racing greyhound is a registered greyhound that his papers; have been turned in and he has been schooled and — officially arid has qualified at a licensed parimutuel race track. ” He further testified that prior to the above time, the dog “would just be a registered greyhound,” not a “racing greyhound.”
The president of the Kansas Greyhound Association also, testified. He has been an owner/operator of greyhound kennels for 28 years. He stated: “The definition of a racing greyhound is a greyhound that is either itself present on the track or the papers are at least turned into the track. Then it comes under the control of the jurisdiction of the race commission.”
The Racing Commission investigator testified:
“Q. Okay, where at and, again, I want to know, since you’re an investigator, at what moment in time does that greyhound that’s registered, the first part of your equation’s been met, when does it become a racing greyhound in Kansas?
“A. Again, it would depend on the individual training of the dog and át what track that maybe he wants to send it to.
“Q. So your testimony is that it varies; is that correct?
“A. That would be correct.
“Q. And it varies from dog to dog and instance to instance, doesn’t it?
“A. Yes, sir.
“Q. And that’s the present state of Kansas law, at least under your understanding? '
*250 “A. Yes, sir.
“Q. Okay. It’s not a very stable definition, is it?
“A. That’s — I can’t answer that.
“Q. Okay. If a dog is 3 years old — and we can come up with all kinds of hypothetical, but I just want an idea — if a dog is 3 years old and it’s never been to the track but it’s been trained to go to the track, is it a racing greyhound?
“A. Yes. You know, again, it depends on who, what, and where.
“Q. And it depends on — on your definition, doesn’t it? In other words, it’s very subjective as to what the intent is, according to you?
“A. Yes, sir.
“Q. It’s not a fixed standard, is it?
“A. No, sir.”
It appears to me the “experts” in the field believed the legislature did not intend to make what the Boatrights did a crime. Certainly, the investigator for the Racing Commission did not think the statute gave clear guidelines. The legislature could have reached the result the majority does by stating “in the racing or training of greyhounds to race.” The language used does not give an adequate warning to those in the greyhound industry of what conduct is prohibited.
The attorney general’s opinion cited by the majority is not persuasive. It is devoted to defining training and never mentions the issue I find dispositive. The opinion concludes that, because training has its obvious meaning, the use of live lures is prohibited in teaching greyhounds to be racing greyhounds, regardless of racing experience. The opinion is not sound, is not persuasive, and is no authority for the majority’s conclusion.
In conclusion, there is no commonly accepted definition of “racing greyhounds” in the industry or from other states. (Some states define “racing greyhounds” by statute or agency regulations.) Additionally, the Racing Commission’s jurisdiction is over racing. The Commission has no jurisdiction over dogs until they arrive at the track or papers are submitted to the track. Article 88 of chapter 74 specifically states that the Kansas Parimutuel Racing Act, including the statute in question, K.S.A. 1991 Supp. 74-8810, “shall apply ... to all greyhound race meetings at which parimutuel wagering is used or intended to be used.” K.S.A. 1991 Supp. 74-8801.
*251 Here, two separate trial judges independently heard this issue in different judicial districts and arrived at the same legal conclusion I do. I would affirm them.
Lockett and AllEgrucci, JJ., join the foregoing dissenting opinion.