City of Overland Park v. Brooks

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NOT DESIGNATED FOR PUBLICATION

No. 114,577

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF OVERLAND PARK,
Appellee,

v.

JAMES L. BROOKS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed July 1,
2016. Affirmed.

James L. Brooks, appellant pro se.

John J. Knoll, senior assistant city attorney, of Overland Park, for appellee.

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

Per Curiam: James L. Brooks, pro se, appeals from his jury convictions for
violating five different provisions of the Overland Park Municipal Code (O.P.M.C.)
regarding his failure to maintain the exterior of a residence he owned in the City of
Overland Park (City). On appeal, Brooks argues that his convictions should be reversed
because: (1) city housing code violations may not be prosecuted in municipal court, (2)
the district court erred when it refused to admit his exhibits, (3) the City failed to legally
establish that he owned the property at issue, and (4) the City's housing code ordinances
improperly impose absolute liability upon proof of a violation. From the record on appeal
we have been provided we find no error. We affirm Brooks' convictions.
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FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2014, the City issued Brooks citations for violating, on that same date,
five separate provisions of the O.P.M.C. with respect to property located on 64th Street in
Overland Park. Specifically, Brooks was cited for violating O.P.M.C. 7.26.070 (2008
Supp.) (failure to maintain exterior wall surfaces in good repair); 7.26.075 (2008 Supp.)
(failure to maintain exterior trim in good repair); 7.26.090 (2008 Supp.) (failure to
maintain roof, eave, soffit, and guttering in good repair); 7.26.160 (2013 Supp.) (failure
to maintain hard surfaces, walkways, and driveways to the extent they cause a safety
hazard); and 16.190.304.2 (2001) (exterior structure-protective treatment). The charges
were all misdemeanors.

On October 14, 2014, the municipal court conducted a trial on the charges. Brooks
represented himself. The judge convicted Brooks on all five charges and fined him $500
on each charge. Brooks timely appealed his convictions to the Johnson County District
Court.

District court documents in our record on appeal indicate that Brooks continued to
represent himself. The record contains no indication Brooks ever sought appointment of
counsel. Brooks demanded a jury trial. Each party timely filed a witness and exhibit list
on April 6, 2015. At the pretrial conference April 16, 2015, the City waived its option to
seek jail time on any conviction that might result from the trial.

On April 20, 2015, Brooks' municipal court appeal was tried to a six-person jury in
the district court. The jury found Brooks guilty on all five charges. The district court
waived the requirement that Brooks file a motion to arrest judgment but ordered Brooks
to brief any reason to arrest judgment he desired to assert. Brooks timely filed his brief
raising numerous claims of error. The district court's specific ruling on the arrest of
judgment is not included in the record on appeal. The district court's sentencing journal
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entry reflects that on July 23, 2015, the court ruled on posttrial motions, but it does not
detail those rulings. The court must have denied Brooks any posttrial relief because it
imposed a $500 fine on each of the five convictions and assessed Brooks the filing fee
costs. Brooks filed a timely appeal to this court.

ANALYSIS

Brooks, again pro se, challenges his convictions on numerous grounds he asserts
under four headings. We address Brooks' claims of error in the order he briefed them.

Brooks Questions Whether City Code Violations Can Be Prosecuted In Municipal Court

Brooks states his first point on appeal as a question: "Do administrative law
courts lack essential Article III powers?" He argues, it appears, that his convictions
should be overturned because the City's use of the municipal court to prosecute code
violations is contrary to certain constitutional restrictions on administrative tribunals. He
contends that the City's municipal court illegally and unconstitutionally functions as an
administrative law court when it adjudicates housing code violation charges.

Brooks did raise a similar claim in his brief supporting arrest of judgment in the
district court. But the district court's ruling on Brooks' motion, whether it was oral or
written, is not included in the record on appeal. We can infer that the court denied relief
because it said in its journal entry from the July 23, 2015, hearing that it ruled on posttrial
motions, then proceeded to sentencing. We do not know the reasons for the denial. The
party claiming an error has the burden of designating a record that affirmatively shows
prejudicial error. Without such a record, an appellate court presumes the action of the
district court was proper. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013).
Thus, we may presume that the district court properly denied Brooks any arrest of
judgment on this point.
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Even if we determined that Brooks preserved his right to appeal this point of law,
he would still not be entitled to relief. Article 3, § 1, of the Kansas Constitution provides,
in relevant part: "The judicial power of this state shall be vested exclusively in one court
of justice, which shall be divided into one supreme court, district courts, and such other
courts as are provided by law." Municipal courts are provided by law. See K.S.A. 12-
4101 et seq. Municipal courts have jurisdiction "to hear and determine cases involving
violations of the ordinances of the city." K.S.A. 2015 Supp. 12-4104(a). Moreover, a
municipal judge has the power to hear and determine all cases properly brought before
the court and to sentence those found guilty to a fine and/or confinement in jail. K.S.A.
2015 Supp. 12-4106(b). Brooks' contention that the City's municipal court is actually an
unconstitutional administrative law court is without merit.

Brooks has failed to show that the district court erroneously denied him the opportunity
to present his evidence

Next, Brooks contends the district court erroneously deprived him of the
opportunity to present "any evidence" to the jury showing that he was not the owner of
the property at issue. Brooks appears to refer to exhibits the district court refused to admit
rather than any denial of Brooks' right to testify or call witnesses. As his brief makes
clear, Brooks' denial of ownership is based on the fact that prior to the charged violations
a judgment had been entered against him foreclosing a mortgage on the subject property.
However, Brooks acknowledges that the judgment was not final at the time he was cited
because he had appealed that judgment. He essentially concedes in his brief his
ownership was only terminated when, as he puts it: "The Kansas Supreme Court on
Wednesday, July 29th, 2015 delivered a terse notification that Brooks had lost the rental
duplex at issue (District Court case 05CV1377 and Appellate Case 13-110423-A)."

At any rate, our review of this evidentiary issue is precluded by Brooks' failure to
include transcripts of the district court proceedings in the record on appeal. Although
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Brooks filed motions requesting that the transcripts be provided at public expense, the
district court denied the motions. The court concluded that Brooks was not indigent and
had no liberty interest at stake because he was not facing a jail sentence. Brooks later
attempted to file a "Transcript from Memory" purporting to be pursuant to Supreme
Court Rule 3.04(a) (2015 Kan. Ct. R. Annot. 25). The district court refused to allow that
substitute as the rule only applies when the transcript of a hearing or trial is unavailable.
Brooks did not maintain that transcripts were unavailable, he just disputed whether he
should pay for them. Brooks did not appeal from the district court's rulings regarding the
transcripts.

Without a transcript it is impossible for us to evaluate the propriety of the
evidentiary ruling Brooks challenges. We cannot reverse for the erroneous exclusion of
evidence without reviewing a record of that exclusion, which record Brooks was required
to make pursuant to K.S.A. 60-405. Also, and again, the burden is on the party claiming
prejudicial error to provide a record demonstrating that error. Without such a record, we
presume the action of the district court was proper. See Bridges, 297 Kan. at 1001.

Brooks states his third issue as follows: "Are malicious prosecutions, double jeopardy,
defective complaints, defective jury instructions, lieing [sic] by all lawyers and judges,
and jumping jurisdiction all avenues to extortion and racketeering?

As is apparent, Brooks next raises several arguments relating to the jurisdiction of
the municipal and district courts, defective complaints, double jeopardy, and defective
jury instructions. The underlying basis for these claims is Brooks' assertion that he did
not own the property at issue at the time of the alleged violations because it had been
foreclosed upon before the violations occurred. As a result, Brooks alleges that these
prosecutions were "malicious, violations of due process, and initiated only for the
purpose of extortion and racketeering" and otherwise makes disparaging remarks about
the attorneys and judges involved in his several cases.

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Brooks appears to have raised these or similar arguments before the district court
in his brief supporting the arrest of judgment. Because the district court's ruling on
Brooks' motion is not included in the record on appeal, however, we may presume that
the district court properly denied relief with respect to these claims. See Bridges, 297
Kan. at 1001. Moreover, our review of these claims is further hindered by the fact that no
transcripts of the proceedings below are included in the record on appeal. We have no
way of knowing what, if any, evidence was presented to establish Brooks' ownership of
the property. We may presume that Brooks' ownership of the property was established at
trial. See 297 Kan. at 1001.

The instructions Brooks claims are defective, though, are part of the record on
appeal. He asserts that the instructions misled the jury because they did not include a
definition of "ownership." Brooks acknowledged in his brief supporting an arrest of
judgment that he did not request any jury instructions at all. He does not maintain
otherwise on appeal. A party who did not object to an instruction given at trial can only
obtain relief on appeal if the instruction given was clearly erroneous. K.S.A. 2015 Supp.
22-3414(3); State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). When determining
whether an instruction is clearly erroneous, we engage in a two-step analysis. First, we
consider whether any error occurred, exercising an unlimited review of the entire record
to determine whether the instruction was legally and factually appropriate. Second, if we
find error, we must determine whether we are firmly convinced that the jury would have
reached a different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d
484, cert. denied 135 S. Ct. 728 (2014).

The elements instructions on each of the five separate ordinance violations
charged told the jury the City was required to prove that Brooks "owned" the subject
property, he failed to maintain it contrary to relevant spelled-out ordinances, and he did
so in Overland Park on or about June 18, 2014. Brooks was free to argue that he did not
own the property. The verdict forms confirm that the jury found Brooks guilty of all five
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charges. In spite of Brooks' efforts to complicate its meaning, "owned" is not a technical
term. It is an ordinary word in common use and required no special definition. The
instructions the court gave were legally and factually appropriate. The district court did
not err when it did not give, sua sponte, a definition of "owned" or "ownership." Brooks'
claim of instructional error fails.

The citations Brooks claims are defective are also in the record on appeal. He
maintains that they are defective because they do not specify that he was the owner of the
property where the code violations were occurring. But we are hamstrung in our ability to
analyze his claims of defect because, again, we do not have a transcript indicating the
district court's reasons for rejecting Brooks' argument. Moreover, we do not know if the
defect Brooks asserts is based on a City ordinance defining "citation" or on K.S.A. 12-
4113(g): Brooks does not cite for us, or provide us with, the law on which he bases his
defect claim. We do see from the municipal court's docket sheet entries that on July 8,
2014, the appearance date shown in the citations, Brooks appeared in court. The docket
sheets indicate that "[c]omplaint read to [Brooks]. [Brooks] understands complaint—per
[Brooks]. [Brooks] pleads [not guilty]."

Because the district court waived the requirement for a motion for arrest of
judgment and Brooks briefed his entitlement to such relief, we can review this defective
citation issue. In this situation we employ what is referred to as the pre-Hall standard.
Our Supreme Court has explained:

"Under the pre-Hall standard, an information is sufficient if it substantially
follows the language of the statute or charges the offense in equivalent words or others of
the same import, so long as the defendant is fully informed of the particular offense
charged and the court is able to determine under what statute the charge is founded."
State v. Reyna, 290 Kan. 666, Syl. ¶ 6, 234 P.3d 761, cert. denied 562 U.S. 1014 (2010).

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Brooks does not deny that the citations substantially follow the language of the
ordinances he is accused of violating. Nor does he deny that he was fully informed of his
charges. He does not claim that the court could not determine under what ordinance each
charge was founded, as each ordinance number was on the citation along with language
of the ordinance violation charged. He simply insists that somewhere in the citation it had
to specifically refer to him as the owner of the property.

We disagree. We review a charging document's language as a whole, and we
liberally construe it in favor of validity. Thus, we will decline to find a charging
document invalid "unless it is so defective that it does not, by any reasonable
construction, charge an offense for which the defendant [was] convicted." State v.
McElroy, 281 Kan. 256, Syl. ¶ 3, 130 P.3d 100 (2006). Whether a charging document
confers subject matter jurisdiction on the court is a question of law over which we
exercise unlimited review. State v. Huerta-Alvarez, 291 Kan. 247, 254, 243 P.3d 326
(2010). The citations here identified Brooks as the accused, identified the address of the
offending property, and specified by ordinance number and ordinance language the
violations he had allegedly committed. It is true that to obtain a conviction the City was
required to prove beyond a reasonable doubt that Brooks owned the property. But we
decline to find that the citations here were fatally defective because they did not
specifically say that the accused violator of the ordinances was the owner of the violating
property.

Finally, under this heading, Brooks refers to recognized legal concepts like double
jeopardy and malicious prosecution as well as other concepts less recognizable. However,
he does not actually brief these remaining points, he just makes conclusory claims
without citation to authority. Brooks has failed to brief these points, and we deem them
waived and abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

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Brooks states his fourth issue: "Do the City's ordinances impose absolute liability either
through an Article III or an Article II court?"

As a threshold matter we disregard Brooks' references to Article III and Article II
courts. As we noted above, municipal courts are authorized by statute.

Brooks contends that proof of an ordinance violation requires a showing of
criminal intent unless the ordinance contains the phrase "there is an absolute liability"
and does not permit any sentence of jail. In response, the City contends that the
ordinances impose absolute liability that do not require proof of intent.

To the extent that Brooks raised this issue in his motion to arrest judgment, we
may presume that the district court properly denied the motion on this basis because the
district court's ruling is not included in the record on appeal. See Bridges, 297 Kan. at
1001.

Additionally, Brooks is not entitled to relief on the merits. Resolution of this issue
involves the interpretation of statutes and ordinances, which are questions of law over
which an appellate court exercises unlimited review. City of Wichita v. Hackett, 275 Kan.
848, 850, 69 P.3d 621 (2003).

"An absolute liability offense, unlike most other crimes, does not require any
criminal intent. The only proof required to convict an individual of an absolute liability
offense is that the individual engaged in the prohibited conduct." State v. Hopper, 260
Kan. 66, 70, 917 P.2d 872 (1996). In Kansas, absolute liability is limited to circumstances
defined in K.S.A. 2015 Supp. 21-5203, which states in relevant part:

"A person may be guilty of a crime without having a culpable mental state if the
crime is:
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"(a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the
statute defining the crime clearly indicates a legislative purpose to impose absolute
liability for the conduct described."

See also K.S.A. 2015 Supp. 21-5202(d) ("If the definition of a crime does not prescribe a
culpable mental state, a culpable mental state is nevertheless required unless the
definition plainly dispenses with any mental element.").

The ordinances under which Brooks was convicted are misdemeanors. See K.S.A.
2015 Supp. 21-5102(d). These ordinances make it unlawful for the owner of a residence
to fail to maintain the exterior of the residence in certain respects. By definition, the
ordinances plainly dispense with any mental element. See O.P.M.C. 7.26.070; 7.26.075;
7.26.090; 7.26.160; 16.190.304.2; see also O.P.M.C. 7.26.035 ("The owner of the land
shall maintain such land and structures thereon in compliance with the requirements set
forth in this chapter. A person shall not occupy as owner-occupant or allow another to
occupy or use land or structures which do not comply with the requirements of this
chapter."). The ordinances under which Brooks was convicted impose absolute liability,
and no proof of his intent to violate them was required.

Affirmed.