Wednesday, September 29, 2010

Statute means what it says

Janine Cox won in State v. Urban, No. 98,956 (Kan. Sept. 24, 2010), affirming Judge Bornholdt's dismissal of a Johnson County aggravated escape from custody prosecution. Ms. Urban was on bond and as a condition of bond, had to reside at the Johnson County Residential Center. According to the state, she left the Center without permission.

The state charged Ms. Urban with aggravated escape from custody. Judge Bornholdt relied on K.S.A. 21-3809(b)(1), which states that "'Custody' does not include . . . constraint incidental to release on bail." The COA had held that the statute should not be construed to exclude the circumstances in the case from the definition of "custody." The KSC disagreed:

We depart from the panel on its first ground because it requires us to exceed our role when faced with a statute whose language is clear and unambiguous. As we have often stated, it is not the place of a court to look beyond such language for evidence of legislative intent. When a statute is plain, the court should not speculate as to the legislative intent behind it and should not read into the statute something not readily found in it. In this case, there was no need here to go beyond statutory interpretation to statutory construction, employing canons, or searching for clues in legislative history or other background considerations. The legislature's intent in choosing the words it used in the second exception in the second sentence of the statute is manifest. "Constraint" is a broad term; it may be more intrusive than detention or less. Bail has a specific meaning, but it includes a PR bond such as that posted by Urban. The "release" in the phrase "release on bail" is release from jail; required residence in a community corrections facility may not be total freedom, but it is still not jail.

We also disagree with the panel's second ground, the gloss it gives the phrase "incidental to." Although it is true that "incidental to" has developed a modern usage subtly differentiated from "incident to," both phrases imply that the preceding concept is subordinate in some way to the succeeding concept. The legislature's employment of "incidental" rather than "incident" does not necessarily trivialize "constraint" in a cosmic sense. It does not make "constraint" irrelevant, as "spectacle" does to "shopping" in Garner's exemplary sentence: "Inside a Niketown or REI store in Seattle, shopping seems incidental to the spectacle . . . ." Rather, it precisely conveys, just as "incident to" conveys, the relationship between constraint" and "release on bail." The relationship is dependence; the constraint arises out of the bail context.

Third, we are unpersuaded that there is anything unreasonable about an interpretation of the statutory language that makes every constraint incidental to release on bail ineligible for the label of "custody" under K.S.A. 21-3809(b)(1). This was the legislature's policy choice to make, and it made it. It is not so farfetched that we must recoil or darn its socks. The exception to custody for "constraint incidental to release on bail," in fact, is consistent with the overall legislative design that makes walking away from a community corrections facility while on bond a separate offense. If the legislature believes it has been misunderstood, we are confident that an appropriate amendment of the statutory language will follow publication of this

This decision is consistent with the KSC's recent trend to pretty strictly construe statutes according to their terms.

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