Dissmeyer, et al. v. State.

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,786

DAVID A. DISSMEYER, LESTER L. LAWSON, and TERRY MITCHELL,
Appellants,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
While a vague statute leaves persons of common intelligence to guess at its
meaning, an overbroad statute makes conduct punishable which under some
circumstances is constitutionally protected.

2.
A successful overbreadth challenge can be made only when the protected activity
is a significant part of the law's target and there exists no satisfactory method of severing
that law's constitutional from its unconstitutional applications.

3.
The overbreadth doctrine should be employed sparingly and only as a last resort.

4.
K.S.A. 2010 Supp. 74-8702(g), defining gray machines, in combination with its
enforcement provisions, K.S.A. 2010 Supp. 74-8750(d) and K.S.A. 2010 Supp. 74-8761,
make it unlawful to own or operate a broad spectrum of property that does not relate to a
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legitimate government interest in controlling gambling. Those statutory provisions, as
they relate to gray machines, are overbroad and unconstitutional.

Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge. Opinion filed April 8,
2011. Reversed.

Rebecca S. Rice, of Rice Law Office, of Lindsborg, argued the cause and was on the brief for
appellant.

Patrick J. Hurley, deputy attorney general, argued the cause, and Tim J. Riemann, assistant
attorney general, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Plaintiffs David A. Dissmeyer, Lester L. Lawson, and Terry L.
Mitchell appeal from a district court order in a declaratory judgment action seeking to
restrain enforcement and to clarify Kansas statutes regulating certain gaming machines.

During the 2007 legislative session, the Kansas Legislature passed and the
Governor signed S.B. 66, the Kansas Expanded Lottery Act. The law authorized
operation of certain gaming facilities, electronic gaming machines, and other lottery
games at certain designated locations. The Act became effective April 19, 2007. L. 2007,
ch. 110. It is codified at K.S.A. 2010 Supp. 74-8733 et seq.

This court upheld the constitutionality of the Act as it related to ownership and
operation of the lottery in State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 186 P.3d 183
(2008). The present appeal challenges the portions of the Act defining "gray machines"
and outlawing ownership of and public access to such machines.

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On March 21, 2008, the executive director of the Kansas Lottery sent a letter to all
lottery retailers warning them that the Kansas Expanded Lottery Act prohibited
participating retailers from owning or operating gray machines. The letter stated that the
Kansas Racing and Gaming Commission had received many calls from across the state
regarding gray machines. The letter reminded recipients that the Commission could not
give them legal advice and informed them that the Commission was "working with law
enforcement officials to determine which machines are illegal."

The plaintiffs own or lease amusement game machines in Wyandotte County,
Kansas. The pleadings do not reveal the precise nature of their machines. On October 16,
2008, they filed a declaratory judgment action seeking a determination that K.S.A. 2010
Supp. 74-8702 and K.S.A. 2010 Supp. 74-8761 are unconstitutional. They also sought
injunctive relief barring enforcement of those statutes. The district court granted the
State's motion for summary judgment and found that the statutes were not
unconstitutionally vague and that injunctive relief was therefore not appropriate. This
court assumed jurisdiction over the plaintiffs' appeal from that judgment under K.S.A.
2010 Supp. 60-2102(b)(2).

K.S.A. 2010 Supp. 74-8702(g) sets out the definition of gray machines. K.S.A.
2010 Supp. 74-8750(d) authorizes the executive director of the Kansas Lottery or the
executive director of the Kansas Racing and Gaming Commission to confiscate any gray
machine that does not comply with the requirements of the Expanded Lottery Act. K.S.A.
2010 Supp. 74-8761 makes it a severity level 9, nonperson felony to place in operation or
to continue to have in place any gray machine for use by members of the public in any
location in this state.

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The plaintiffs challenge the constitutionality of this statutory scheme. The
constitutionality of a statute is a question of law to which this court applies a de novo
standard of review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008).

The district court elected to incorporate the definition of "gambling device" from
K.S.A. 21-4302(d). K.S.A. 21-4307 makes possession of a gambling device illegal. The
district court concluded that incorporating the criminal code renders the Chapter 74
statutes sufficiently clear to pass constitutional muster.

K.S.A. 21-4302(d) defines gambling devices for purposes of the criminal code. It
does not address gray machines, and the language that it employs in its definitions does
not include linking devices to a lottery central computer system or simulating games
played on authorized gaming machines. It also does not address the latent potential for
turning a nongambling device into a gambling device. As a consequence, it does not
clarify or limit the definition of gray machines contained in the Kansas Expanded Lottery
Act.

The plaintiffs argue that there are only two ways of looking at the statutory
provisions in question: Either the statute is plain and unambiguous on its face, and it
therefore applies to such a broad array of devices that it can have no rational basis, or the
statute is vague and ambiguous and, therefore, violates due process by failing to give
parties notice that particular conduct is unlawful.

A statute that either requires or forbids the doing of an act in language that is so
vague that persons of common intelligence must guess at its meaning and will differ as to
its application violates the Fourteenth Amendment to the United States Constitution and
is thus void for vagueness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009).
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The statute at issue is not unconstitutionally vague, and it does not require incorporation
of the definition of gambling devices contained in K.S.A. 21-4302(d).

K.S.A. 2010 Supp. 74-8702(g) defines gray machines as follows:

"'Gray machine' means any mechanical, electro-mechanical or electronic device,
capable of being used for gambling, that is: (1) Not authorized by the Kansas lottery, (2)
not linked to a lottery central computer system, (3) available to the public for play or (4)
capable of simulating a game played on an electronic gaming machine or any similar
gambling game authorized pursuant to the Kansas expanded lottery act."

The syntax of K.S.A. 2010 Supp. 74-8702(g) implies the word "or" between each
of the four subcategories. See, e.g., State v. Bonner, 290 Kan. 290, Syl. ¶ 4, 227 P.3d 1
(2010); State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009); State v. Wiegand, 275
Kan. 841, 845-46, 69 P.3d 627 (2003) (disjunctive "or" means that any listed alternative
suffices to meet statutory conditions).

In order to constitute a gray machine, the device must therefore be mechanical,
electro-mechanical, or electronic and capable of being used for gambling. It must also (1)
not be authorized by the Kansas Lottery or (2) not be linked to a lottery central computer
or (3) be available to the public for play or (4) be capable of simulating an authorized
gambling game.

Although they are broad in scope, the statutory guidelines are susceptible to
precise application to various devices. It is possible to examine any device, a home
computer for example, and determine whether it fits the statutory definition. A home
computer is a gray machine because it is electronic, it is capable of being used for
gambling, and it is capable of simulating an authorized gambling game. In addition, it is
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not authorized by the Kansas Lottery, it is not linked to a lottery central computer, and it
may be available to the public for play. The statute is not unconstitutionally vague.

We note as an aside that it is puzzling why the Kansas Racing and Gaming
Commission would feel compelled to work with law enforcement officials "to determine
which machines are illegal." Unless the statute is vague, it should be clear to businesses
and individuals of common intelligence which devices violate the law. Perhaps the
Commission seeks to determine which machines are illegal because, under the statutory
definition, few or no devices, tools, or machines are legal, a topic that we now subject to
overbreadth analysis.

"'While a vague statute leaves persons of common intelligence to guess at its
meaning, an overbroad statute makes conduct punishable which under some
circumstances is constitutionally protected. Almost every law is potentially applicable to
constitutionally protected acts. A successful overbreadth challenge can thus be made only
when (1) the protected activity is a significant part of the law's target, and (2) there exists
no satisfactory method of severing that law's constitutional from its unconstitutional
applications.' [State v.] Whitesell, 270 Kan. 259, Syl. ¶ 6[, 13 P.3d 887 (2000)]." Smith v.
Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005).

Prior to enactment of the Expanded Lottery Act statutory scheme, it was the actual
use to which a device was put that determined whether it was illegal.

"Our prior decisions have included within the scope of this definition [of gambling
devices] a variety of machines and equipment. We have, however, consistently
recognized a distinction between property which is illegal per se and therefore
contraband, and property which is capable of innocent use but which may become
contraband in a particular case because of the illegal use made of the property." State v.
Durst, 235 Kan. 62, 64, 678 P.2d 1126 (1984).

Pinball machines provide an example of the kind of equipment that the law
formerly differentiated based on use. When success in playing pinball is rewarded with
additional free games, the machines are not considered gambling devices under K.S.A.
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21-4302(d), because the additional games are not considered something of "material
value." State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 760,
258 P.2d 225 (1953). If, on the other hand, cash payoffs are made for the free games won
by playing on the machines, the machines are considered illegal gambling devices. State
v. Thirty-six Pinball Machines, 222 Kan. 416, 417-22, 565 P.2d 236 (1977); see also
Grigsby v. Mitchum, 191 Kan. 293, 301, 380 P.2d 363 (1963), cert. denied 375 U.S. 966
(1964) (whether pinball machines are gambling devices depends on use and not on how
labeled or designed).

Under the Kansas Extended Lottery Act, however, it is not the actual use to which
a device is put; any device "capable of being used for gambling" is illegal. K.S.A. 2010
Supp. 74-8702(g) (Emphasis added.). Devices that were legal under the definition at
K.S.A. 21-4302(d) may now be illegal because they are capable of being used for
gambling.

A pinball machine in a bowling alley meets the statutory definition of a gray
machine: it is an electro-mechanical device; it is capable of being used for gambling, and
it is not authorized by the Kansas Lottery, it is not linked to a lottery central computer
system, and it is available to the public for play. Any one of the latter three factors brings
it within the purview of K.S.A. 2010 Supp. 74-8702(g).

The statutes that the plaintiffs challenge make it unlawful for retailers to have on
their premises or for individuals to own or operate mechanical, electro-mechanical, or
electronic machines that can be used for gambling purposes. Computers with Internet
connections are electronic devices that can be used for on-line gambling. Computers
without Internet connections are electronic devices that can be used to play games on
which bets can be placed. The computer on which this opinion was drafted is a gray
machine because it is electronic, it is capable of being used for gambling, and it is not
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linked to a lottery central computer system. Telephones can be used for making or
placing bets. Radios and televisions are electronic devices that can be used to listen to
and watch sporting events with consequent gambling applications. Automobiles can be
raced and used in other ways that may be subject to gambling. Both Chutes and Ladders
and Twister children's games use spinners, which are mechanical devices and which can,
of course, be used for gambling. The statutes make it a criminal act to have any of those
devices in a place for public use, and they authorize the executive director to confiscate
any of those devices even if they are hidden away in the basement closet of a citizen's
home.

In its brief to this court, the State explains that a device that is capable of being
used for gambling is "a device that is capable of being used to make a bet." It is not only
computers, televisions, radios, and telephones that can be used for making bets. By its
definition, the word "mechanical" applies to the operation of machines or tools or relates
to manual operations. Webster's Ninth New Collegiate Dictionary 737 (1991). So-called
"bar bets" can use virtually any tool or device, including doors, bottle openers, and
cigarette lighters. The definition that the State proposes is remarkably expansive,
including virtually all objects used in day-to-day living. The effect of the statute is to ban
practically every tool and mechanical device.

The State argues that the plaintiffs assert no constitutional right that is threatened
and that making it illegal to provide the public with access to virtually any tool or device
is within the State's constitutional authority. This is counterintuitive.

An overbroad criminal statute makes conduct punishable which under some
circumstances is constitutionally protected from criminal sanctions. State v. Bailey, 251
Kan. 156, Syl. ¶ 10, 834 P.2d 342 (1992). The United States Constitution is designed to
maximize individual freedoms within a framework of ordered liberty, and statutory
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limitations on those freedoms are examined for substantive authority and content.
Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). The
Fifth Amendment to the United States Constitution protects individuals from government
action that appropriates their property without due process and without compensation.
See, e.g., State ex rel. Stephan v. Smith, 242 Kan. 336, 361-70, 747 P.2d 816 (1987)
(compelling attorneys to provide uncompensated legal representation is unconstitutional
taking of property). In State v. McAffry, 263 Kan. 521, 949 P.2d 1137 (1997), this court
found a statute unconstitutionally overbroad that prohibited shining an artificial light on
animals while in possession of any implement that could kill animals, because it could be
read as a prohibition on protecting one's cattle from coyotes. See also City of Junction
City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979) (city ordinance making it a crime for
anyone within city limits to carry any firearm overbroad because it made no exception for
transportation of firearm from place of purchase or repair or between a place of business
and home).

K.S.A. 2010 Supp. 74-8750(d) allows the executive director of the Kansas Lottery
to confiscate any device that 74-8702(g) defines as a gray machine. This statute, as it is
currently drafted, essentially deprives citizens and businesses in Kansas of their
fundamental right to own property.

Other Kansas statutes prohibit the possession or facilitation of using actual
gambling devices. K.S.A. 21-4303 makes gambling a class B nonperson misdemeanor.
K.S.A. 21-4304 makes commercial gambling a level 8, nonperson felony. K.S.A. 21-
4305 makes permitting premises to be used for gambling purposes a class B nonperson
misdemeanor. K.S.A. 21-4307 makes possession of a gambling device a class B
nonperson misdemeanor, and K.S.A. 21-4308 makes installing communication facilities
for gamblers a level 8, nonperson felony.

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It is a peculiarity of the Kansas statutory scheme that maintaining a pinball
machine or a computer, devices that might be used for gambling, is now a level 9,
nonperson felony, while possessing a slot machine that is actually used for gambling is a
class B nonperson misdemeanor. This suggests that no rational basis exists for the
sweeping definition of gray machines that the legislature has adopted.

We recognize that the overbreadth doctrine "should be employed sparingly and
only as a last resort." Martens, 279 Kan. at 253. We nevertheless find that a law that
makes it unlawful to possess almost any kind of tool or machine and that allows the State
to confiscate almost any personal property, regardless of its actual use, is overbroad and
unconstitutional. We therefore reverse the district court and hold that K.S.A. 2010 Supp.
74-8702(g), defining gray machines, in combination with its enforcement provisions,
K.S.A. 2010 Supp. 74-8750(d) and K.S.A. 2010 Supp. 74-8761, are unconstitutional as
they relate to gray machines.

BILES, J., not participating.

R. WAYNE LAMPSON and RICHARD M. SMITH, District Judges, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3,
§ 6(f) of the Kansas Constitution, District Judge Lampson was appointed to hear case No.
102,786 vice Justice Biles and Judge Smith was appointed to hear the same case to fill
the vacancy on the court created by the retirement of Chief Justice Robert E. Davis.