State v. Spencer Gifts , 304 Kan. 755 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,398
STATE OF KANSAS,
Appellant,
v.
SPENCER GIFTS, LLC,
Appellee.
SYLLABUS BY THE COURT
1.
If any person charged with a crime and held to answer on an appearance bond
shall not be brought to trial within 180 days after arraignment on the charge, such person
shall be entitled to be discharged from further liability to be tried for the crime charged.
2.
The most fundamental rule of statutory construction is that the intent of the
legislature governs. Reliance on the plain and unambiguous language of a statute is the
best and only safe rule for determining the intent of the creators of a written law. The
plain language selected by the legislature, when it does not conflict with constitutional
mandates, trumps both judicial decisions and the policies advocated by the parties.
3.
An appellate court merely interprets statutory language as it appears; it is not free
to speculate and cannot read into the statute language not readily found there.
1
4.
Questions of public policy are for legislative and not judicial determination, and
where the legislature declares a policy, and there is no constitutional impediment, the
question of the wisdom, justice, or expediency of the legislation is for that body and not
for the courts.
5.
Legislative acquiescence can be, but is not always, indicative of legislative intent.
But more important than legislative acquiescence is the application of the doctrine of
statutory interpretation that directs courts to consider the plain language of the statutes.
6.
The doctrine of stare decisis provides that once a point of law has been established
by a court, that point of law will generally be followed by the same court and all courts of
lower rank in subsequent cases where the same legal issue is raised. Such adherence to
precedent promotes the systemic stability of our legal system. That said, stare decisis is
not an inexorable command, and an appellate court should avoid continuing an incorrect
interpretation of the law. An appellate court should adhere to stare decisis unless clearly
convinced the rule was originally erroneous or is no longer sound because of changing
conditions and that more good than harm will come by departing from precedent.
7.
City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), is overruled.
8.
Statutory speedy trial is a procedural rule, and procedural rules typically apply
retroactively. But even procedural or clearly retroactive rules cannot apply retroactively
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to affect a vested or substantive right. A vested right is one so fixed that it is not
dependent on any future act, contingency, or decision to make it more secure.
9.
Once a defendant has lawfully secured dismissal for a statutory speedy trial
violation, the right has vested and charges cannot be resurrected by a subsequent change
to the law surrounding statutory speedy trial.
10.
The failure to support a point with pertinent authority is akin to abandonment and
constitutes a waiver of an argument.
11.
K.S.A. 2015 Supp. 22-3402(g) does not apply unless a delay in a criminal case has
been initially attributed to the defendant and subsequently charged to the State.
Review of the judgment of the Court of Appeals in 51 Kan. App. 2d 437, 348 P.3d 611 (2015).
Appeal from Johnson District Court; JANICE D. RUSSELL, judge. Opinion filed July 8, 2016. Judgment of
the Court of Appeals affirming the district court is affirmed; judgment of the district court is affirmed.
Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general were with him on the briefs for appellant.
Tricia A. Bath, of Bath & Edmonds, PA, of Overland Park, argued the cause, and Thomas J. Bath,
Jr., and Mitch E. Biebighauser, of the same firm, were with her on the brief for appellee.
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The opinion of the court was delivered by
LUCKERT, J.: Kansas' speedy trial statute, K.S.A. 2015 Supp. 22-3402(b),
provides in relevant part: "If any person charged with a crime and held to answer on an
appearance bond shall not be brought to trial within 180 days after arraignment on the
charge, such person shall be entitled to be discharged from further liability to be tried for
the crime charged." (Emphasis added.) Despite the express limitation of this provision to
cases in which a defendant has been "held to answer on an appearance bond," the
defendant in this case, who was not on bond, relied on this statute in seeking dismissal of
all charges when a trial did not occur within 180 days after arraignment. The district court
granted the dismissal, and the State appealed. The Court of Appeals, in a split decision,
affirmed the dismissal based on this court's decision in City of Elkhart v. Bollacker,
243 Kan. 543, 546, 757 P.2d 311 (1988), which held the legislature intended for
22-3402(2)—now 22-3402(b)— to apply even when a defendant had not been held on an
appearance bond. State v. Spencer Gifts, 51 Kan. App. 2d 437, 348 P.3d 611 (2015). The
concurrence argued that Bollacker had been decided incorrectly and should be overruled.
On our review of the Court of Appeals decision, the State argues we should
overrule Bollacker, apply the unambiguous appearance bond limitation of 22-3402(b),
and reverse the district court and Court of Appeals. We agree with the State that
K.S.A. 2015 Supp. 22-3402(b) unambiguously limits its application to cases in which a
defendant has posted an appearance bond, and we further agree that Bollacker should be
overruled. We do so because the Bollacker court, in extending 22-3402(b) to defendants
who are not held on an appearance bond, had to add words to the unambiguous language
of 22-3402(b)—and thereby violated our rules of statutory interpretation, which do not
allow courts to rewrite unambiguous statutes. We, therefore, cannot agree with the
reasoning in Bollacker and, after weighing the various considerations relevant to a
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determination of whether we should overrule precedent, conclude Bollacker should be
overruled. Nevertheless, we affirm the application of Bollacker in this case because it
formed the law that controlled the defendant's motion to dismiss, and we do not apply
today's change in the law to eradicate a vested right to a speedy trial defense.
FACTS AND PROCEDURAL HISTORY
The parties do not dispute the facts of this case. Beginning in May 2009, two
investigators with the Johnson County District Attorney's Office began a year-long
investigation into Spencer Gifts, LLC, which is a retail business in Oak Park Mall
generally open to the public. Over the course of about 30 different visits, the investigators
noted that Spencer Gifts displayed various items of a potentially obscene nature: for
example, sex toys, lewd clothing, posters of nude women, and wind-up toys simulating
sexual acts. Often these adult-oriented displays were in the vicinity of other items geared
more toward youth, such as Teenage Mutant Ninja Turtle merchandise, Sesame Street
clothing, and Twilight movie posters. During their visits, the investigator observed
numerous minor customers enter the store.
On May 16, 2010, the investigators executed a search warrant and seized various
retail items as evidence. And on October 6, 2010, the State charged Spencer Gifts with 10
counts of promoting obscenity harmful to minors. That same day, the district court issued
a summons ordering Spencer Gifts to appear. Important to the case now before us,
throughout the proceedings Spencer Gifts was never subject to an appearance bond.
Years later, Spencer Gifts filed a motion to dismiss alleging a statutory speedy
trial violation. The district court held a hearing and ultimately denied the motion by
concluding that statutory speedy trial did not apply both because Spencer Gifts was a
business entity and because it was never on bond. The speedy trial issue arose again,
5
however, during a subsequent pretrial conference before a different judge. After
arguments, the then-presiding district judge concluded Spencer Gifts was statutorily
entitled to a speedy trial under Bollacker and its progeny and the State had failed to honor
that right. As a result, the district judge dismissed the State's case.
The State appealed the dismissal to the Court of Appeals. The Court of Appeals
affirmed the dismissal in a split decision, with the majority relying on precedent from this
court. Spencer Gifts, 51 Kan. App. 2d at 444. The concurring judge agreed binding
precedent from this court dictated the outcome of the case. But the concurring opinion
noted contradictions in this court's treatment of statutory speedy trial and read the plain
language of the speedy trial statute to contradict the precedent upon which the majority
relied. 51 Kan. App. 2d at 444-50 (Malone, C.J., concurring). We granted the State's
petition for review. K.S.A. 2015 Supp. 22-3602(e).
ANALYSIS
The State presents four alternative contentions in arguing the district court erred in
dismissing the case for a statutory speedy trial violation under K.S.A. 2015 Supp.
22-3402(b): (1) The statute did not apply to Spencer Gifts because it had not been held
on an appearance bond; (2) any contrary holding in Bollacker should be overturned;
(3) Spencer Gifts did not have speedy trial rights because it is a corporation; and
(4) dismissal is not required under the provisions of K.S.A. 2015 Supp. 22-3402(g) ("If a
delay is initially attributed to the defendant, but is subsequently charged to the state for
any reason, such delay . . . shall not be used as a ground for dismissing a case."). We
address each argument in turn.
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1. The plain language of K.S.A. 2015 Supp. 22-3402(b) does not apply to a defendant
not held to answer on an appearance bond.
As evident from our previous discussion, tension exists between K.S.A. 2015
Supp. 22-3402(b) and Bollacker. The statute, by its plain terms, limits its application to
situations where a defendant has been "charged with a crime and held to answer on an
appearance bond." Yet the statute's reach was extended in Bollacker, 243 Kan. 543.
In that case, Lanning Bollacker became a criminal defendant when the City of
Elkhart charged him with unlawful discharge of a firearm and served him with a
complaint and a notice to appear. Bollacker appeared, and he was tried and convicted in
municipal court. Bollacker appealed his conviction to the district court and, while on
appeal, was never subject to an appearance bond. Despite the fact that Bollacker did not
meet the bond requirement, the district court dismissed the charges because the trial did
not occur within the time required by K.S.A. 22-3402(2) (Ensley 1981).
The City of Elkhart then appealed the dismissal to this court, arguing the speedy
trial statute did not apply because Bollacker was never held to answer on an appearance
bond. Although acknowledging the statutory language about an appearance bond, this
court found the lack of an appearance bond insignificant, mostly for general policy
reasons: "[T]he legislature intended that persons charged with crime should be granted a
prompt and speedy trial" in order to "prevent the oppression of a citizen by holding
criminal prosecutions suspended over him for an indefinite time and to prevent delays in
the administration of justice." 243 Kan. at 545; State v. Pendergrass, 215 Kan. 806, 807,
528 P.2d 1190 (1974) ("The purpose of [statutory speedy trial] is to implement and define
the constitutional guaranty of speedy trial."). In addition, the Bollacker court noted a
defendant served with a notice to appear is under the threat of arrest for failing to appear,
just like a defendant held on an appearance bond. Ultimately, the court held 22-3402
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applicable "whether bond is required or whether the accused is simply served with a
notice to appear and is thus required to appear without posting bond." 243 Kan. at 546.
Bollacker thus supports Spencer Gifts' position in this case. In dismissing the case
against Spencer Gifts, the district court noted a more recent appellate decision that relied
on Bollacker: State v. Palmquist, No. 103,914, 2011 WL 767861 (Kan. App.)
(unpublished opinion), rev. denied 292 Kan. 968 (2011). In Palmquist, a notice to appear
secured the defendant's appearance in one case and a summons was issued in another—
the defendant was never subject to an appearance bond. Nevertheless, the district court
dismissed the case. On appeal, the majority relied on Bollacker and concluded that
statutory speedy trial under K.S.A. 22-3402 applied and the district court had correctly
dismissed the case. 2011 WL 767861, at *7.
The dissent in Palmquist, however, would have held that "[a]bsent [the defendant]
being held to answer on an appearance bond, the plain language of K.S.A. 22-3402(2)
simply does not apply." 2011 WL 767861, at *9 (Buser, J., dissenting). Although the
dissent recognized Bollacker as precedent, it noted this court had recently emphasized
"the duty of courts to follow plain and unambiguous statutory language." 2011 WL
767861, at *7 (Buser, J., dissenting). And that emphasis, in the dissent's view, was an
indication this court would interpret 22-3402(b) differently than it had in Bollacker. See
State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan.
946 (2012) (Court of Appeals must follow Kansas Supreme Court precedent unless there
is indication the Supreme Court is departing from a prior position).
In this appeal from the dismissal of the charges against Spencer Gifts, the Court of
Appeals majority held that Bollacker rendered K.S.A. 2015 Supp. 22-3402(b) applicable
despite the fact that Spencer Gifts was never held to answer on an appearance bond.
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Spencer Gifts, 51 Kan. App. 2d at 444. The concurring opinion recognized Bollacker as
controlling precedent, but it agreed with the dissent in Palmquist that the plain language
of K.S.A. 2015 Supp. 22-3402(b) simply does not confer any statutory speedy trial right
to a person who was never held to answer on an appearance bond. 51 Kan. App. 2d at
446-47 (Malone, C.J., concurring). We must now decide whether the analysis in
Bollacker remains sound.
2. Bollacker is at odds with our rules of statutory interpretation and is overruled but
applies to this case because rights under it had vested.
As the concurring opinion in this case and the dissent in Palmquist recognized, if
we momentarily set aside Bollacker and apply the plain language of K.S.A. 2015 Supp.
22-3402(b), the State has a strong argument that the statute only applies when a person is
"held to answer on an appearance bond." Typically, when we conduct our de novo review
of statutes, we begin with the most fundamental rule of statutory construction: The intent
of the legislature governs. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014).
Reliance on the plain and unambiguous language of a statute is "the best and only safe
rule for determining the intent of the creators of a written law. . . . The plain language
selected by the legislature, when it does not conflict with constitutional mandates, trumps
both judicial decisions and the policies advocated by parties." (Emphasis added.)
Merryfield v. Sullivan, 301 Kan. 397, 399, 343 P.3d 515 (2015); see Taylor v. Kobach,
300 Kan. 731, 735, 334 P.3d 306 (2014) ("We have often expressed that the best and only
safe rule for ascertaining the intention of the makers of any written law is to abide by the
language they have used."); Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014);
Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (citing Wright v. Noell, 16
Kan. 601, 607, 1876 WL 1081 [1876]).
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By our reading of the plain language, K.S.A. 2015 Supp. 22-3402(b) only applies
when a person is "charged with a crime and held to answer on an appearance bond" and
not when the court had merely issued a notice to appear. Statutorily, an appearance bond
is a distinct thing—it is not identical to a summons. Indeed, K.S.A. 2015 Supp.
22-2202(b) defines an appearance bond as "an agreement, with or without security,
entered into by a person in custody by which the person is bound to comply with the
conditions specified in the agreement." A summons, on the other hand, is "a written order
issued by a magistrate directing that a person appear before a designated court at a stated
time and place and answer to a charge pending against the person." K.S.A. 2015 Supp.
22-2202(s); see also K.S.A. 2015 Supp. 22-2202(o) (defining notice to appear as "a
written request, issued by a law enforcement officer, that a person appear before a
designated court at a stated time and place").
Spencer Gifts is correct that an appearance bond and a summons have similar
functions—both order a person to appear. But a shared purpose does not make those two
distinct things interchangeable. Even assuming some linguistic ambiguity, which would
permit us to move past K.S.A. 2015 Supp. 22-3402's plain language, we would construe
the legislature's specific mention of an appearance bond to mean that the legislature
intended to exclude a summons from the statute. See State v. Phillips, 299 Kan. 479, 495,
325 P.3d 1095 (2014) (courts resort to statutory construction only when the statute is
ambiguous); Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003) (the inclusion of
one thing implies the exclusion of another). We simply cannot apply K.S.A. 2015 Supp.
22-3402(b) to a case like this one, which involves a summons, without reading language
into the statute that is not there. As an appellate court, we "'"merely interpret[] the
language as it appears; [we are] not free to speculate and cannot read into the statute
language not readily found there."'" State v. Holt, 298 Kan. 469, 474, 313 P.3d 826
10
(2013); State v. Paul, 285 Kan. 658, 661, 175 P.3d 840 (2008) (court should not read
statute to "add language that is not found in it").
In Bollacker, this court took solace in a policy-driven conclusion with reliance on
an entirely separate criminal statute defining the crime of failure to appear. See 243 Kan.
at 545. At the time, the legislature essentially defined failure to appear as "willfully
incurring a forfeiture of an appearance bond." K.S.A. 21-3813(1) (Ensley 1981); see also
K.S.A. 2015 Supp. 21-5915(a). But subsection (2) of the failure-to-appear statute
explicitly included a summons into subsection (1)'s definition of an appearance bond:
"Any person who is released upon his or her own recognizance, without surety, or who
fails to appear in response to a summons or traffic citation, shall be deemed a person
released on bond for appearance within the meaning of subjection (1) of this section."
(Emphasis added.) K.S.A. 21-3813(2) (Ensley 1981); see also K.S.A. 2015 Supp.
21-5915(e). The Bollacker court found this to be evidence that the legislature implicitly
intended similar interchangeability of appearance bonds and summonses in the context of
statutory speedy trial. 243 Kan. at 545.
To the contrary, the failure-to-appear statute was—and remains—evidence that the
legislature knows how to draft a statute that makes appearance bonds and summonses
interchangeable. It did not do that in K.S.A. 22-3402. Thus, the crime of failure to appear
(now K.S.A. 2015 Supp. 21-5915) exists as evidence the legislature, in adopting K.S.A.
2015 Supp. 22-3402(b), did not intend to grant rights to defendants who had not posted
an appearance bond. See State v. Boyer, 289 Kan. 108, 116, 209 P.3d 705 (2009) (finding
it significant that the legislature had distinguished juvenile adjudications from adult
convictions in other statutes, so a general reference to "convictions" in another statute did
not encompass juvenile adjudications).
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Moreover, in the context of statutory speedy trial, the Bollacker court's deviation
from plain language seems to be an outlier; Kansas appellate courts have regularly
interpreted K.S.A. 22-3402 by its plain language. Most notably, almost 10 years after
Bollacker this court issued an opinion somewhat at odds with Bollacker: State v.
Mathenia, 262 Kan. 890, 942 P.2d 624 (1997). There, the principal issue related to
whether the speedy trial provision at issue in this case—22-3402(b)—even applied under
the facts of the case.
Willard Parnell Mathenia had committed a crime while incarcerated and, thus,
when charges related to that crime were brought, he was not held in custody solely
because of those charges. The State, therefore, argued K.S.A. 22-3402(1) (Furse 1995),
which provided for a 90-day speedy trial for those in custody solely on the current
charge, was inapplicable. Mathenia acknowledged he was not being held in custody
solely because of the current charges against him but argued the provision then found at
22-3402(2)—now 22-3402(b)—should automatically apply and require the State to bring
him to trial within 180 days. And at the time, language in prior cases from this court had
suggested as much. See State v. Noriega, 261 Kan. 440, 459, 932 P.2d 940 (1997)
("Because Noriega was not solely being held in jail for the crime charged, he was not
entitled to be brought to trial within 90 days after his arraignment. He was entitled to be
brought to trial within 180 days after his arraignment."), disapproved of by Mathenia, 262
Kan. at 900; State v. Abel, 261 Kan. 331, 335, 932 P.2d 952 (1997) ("A person being held
in jail not solely for the crime charged is not entitled to be brought to trial within 90 days
after the person's arraignment but is entitled to be brought to trial within 180 days after
the person's arraignment."), disapproved of by Mathenia, 262 Kan. at 900.
This court in Mathenia, however, explicitly rejected any suggestion that the
180-day period applied anytime the 90-day period did not, saying: "K.S.A. 22-3402(2)
12
refers only to defendants 'charged with a crime and held to answer on an appearance
bond.' [Citations omitted.] Mathenia was not held on an appearance bond; therefore,
K.S.A. 22-3402(2) does not apply." 262 Kan. at 900. Thus, in Mathenia, this court relied
on the plain language of K.S.A. 22-3402(2) (Furse 1995) to disapprove of precedent and
conclude that Mathenia was not entitled to a trial within 180 days.
In fact, plain language has been the guidepost in a number of other speedy trial
cases. See, e.g., State v. Hill, 257 Kan. 774, 777-78, 895 P.2d 1238 (1995) (holding
speedy trial statute did not apply because the defendant did not meet a plain condition of
the statute—the requirement that the defendant be held solely by reason of the charged
crime); State v. Blizzard, 43 Kan. App. 2d 418, 422-23, 225 P.3d 773 (2010) (refusing to
apply speedy trial statute because the defendant was not held on an appearance bond);
State v. Strong, 8 Kan. App. 2d 589, 593, 663 P.2d 668 (1983) (refusing to apply speedy
trial statute because defendant was "neither in custody 'solely by reason' of the instant
charges, nor at liberty subject to an appearance bond").
We recognize, as did this court in City of Elkhart v. Bollacker, 243 Kan. 543, 757
P.2d 311 (1988), that it would be a reasonable policy for the legislature to intend that
statutory speedy trial applies broadly to any circumstances where a defendant is ordered
to appear. And Spencer Gifts argues that not applying the speedy trial statute to a
defendant summoned to court would be an absurd result. But simply because the
legislature could reasonably have granted summoned defendants statutory speedy trial
rights does not mean excluding them is absurd. The legislature may have had a variety of
policy reasons for choosing the language it enacted and for creating distinct statutory
protections for those who incurred the additional burden of executing—and often paying
for—an appearance bond. Such "questions of public policy are for legislative and not
judicial determination, and where the legislature does so declare, and there is no
13
constitutional impediment, the question of the wisdom, justice, or expediency of the
legislation is for that body and not for the courts." State, ex rel., v. Kansas Turnpike
Authority, 176 Kan. 683, 695, 273 P.2d 198 (1954); see In re Property Valuation Appeals
of Various Applicants, 298 Kan. 439, 447, 313 P.3d 789 (2013) cert. denied sub nom.
Missouri Gas Energy v. Kansas Div. of Prop. Valuation, 135 S. Ct. 51 (2014); Samsel v.
Wheeler Transport Services, Inc., 246 Kan. 336, 348-49, 789 P.2d 541 (1990); Harris v.
Shanahan, 192 Kan. 183, 206, 387 P.2d 771 (1963).
Relying on yet another canon of statutory construction, Spencer Gifts argues the
legislature's choice not to amend or modify K.S.A. 22-3402 after Bollacker's judicial
construction amounts to tacit approval of the interpretation. See State v. Quested, 302
Kan. 262, 279, 352 P.3d 553 (2015) (legislative acquiescence can be, but is not always,
indicative of legislative intent); Cady v. Schroll, 298 Kan. 731, 737, 317 P.3d 90 (2014).
But "[m]ore important [than legislative acquiescence] is the application of the doctrine of
statutory interpretation that directs us to consider the plain language of the statutes."
Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). And Spencer
Gifts' legislative-acquiescence argument is far from compelling here because the
legislature has not modified or amended the relevant portions of statutory speedy trial
even though Kansas appellate courts have construed it differently in different cases.
Compare Bollacker, 243 Kan. at 546 (180-day limit applied even if not held to answer on
appearance bond), with Mathenia, 262 Kan. at 900 ("K.S.A. 22-3402[2] refers only to
defendants 'charged with a crime and held to answer on an appearance bond.' [Citations
omitted.] Mathenia was not held on an appearance bond; therefore, K.S.A. 22-3402[2]
does not apply.").
Moreover, K.S.A. 2015 Supp. 22-3402(b) is clear; it expressly mentions an
appearance bond but does not mention a summons. Because Spencer Gifts was not held
14
on an appearance bond, the statutory 180-day limit of K.S.A. 2015 Supp. 22-3402(b) did
not apply. See Mathenia, 262 Kan. at 900.
Finding that the plain language of K.S.A. 2015 Supp. 22-3402(b) does not apply to
Spencer gifts' circumstances, we turn to our next question: Should we overrule
Bollacker?
Certainly, we do not lightly disapprove of precedent. The doctrine of stare decisis
"instructs that points of law established by a court are generally followed by the same
court and courts of lower rank in later cases in which the same legal issue is raised."
Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504 (2015). Such adherence to
precedent promotes the systemic stability of our legal system. Crist v. Hunan Palace,
Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). That said, stare decisis is not an inexorable
command, and we avoid continuing an incorrect interpretation of the law. Hoesli,
303 Kan. at 363; O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 343,
277 P.3d 1062 (2012). An appellate court should adhere to stare decisis "'unless clearly
convinced that the rule was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by departing from
precedent.'" Crist, 277 Kan. at 715 (quoting Samsel v. Wheeler Transport Services, Inc.,
246 Kan. 336, 356, 789 P.2d 541 [1990]).
From a policy perspective, we are not so much convinced that the rule in
Bollacker was unsound or erroneous; nevertheless, we are convinced that the policy issue
was not an appropriate basis for an appellate court's decision. A court's obligation is to
follow the intent that the legislature expresses through statutory language. And our only
safe analytical path to achieve that end is to follow the plain language the legislature has
chosen. Merryfield, 301 Kan. at 399.
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So, then, does more good than harm come from overruling Bollacker? We believe
that it does. We are cognizant of the fact that Spencer Gifts, and those in Spencer Gifts'
position, could have placed some reliance on statutory speedy trial under Bollacker. But
what this case turns on is bigger than both the facts presented here and the legal issue the
case contains. Certainly, adherence to the Bollacker precedent would ensure stability on
this particular issue, i.e., whether statutory speedy trial applies to a defendant not held to
answer on an appearance bond. But the stability gained on that one issue is at the expense
of the stability of our legal system: litigants, courts, and the legislature must be able to
rely on the fact that statutory language drives the law in Kansas. And here, K.S.A. 2015
Supp. 22-3402(b) by its language does not apply to a defendant never held on an
appearance bond.
Moreover, interpreting K.S.A. 2015 Supp. 22-3402(b) by its plain language does
not eradicate speedy trial. Defendants not held to answer on an appearance bond may still
have a constitutional right to speedy trial. See State v. Dupree, 304 Kan. 43, 54, __ P.3d
__ (2016) (explaining that "the speedy trial statute is merely a procedure that works to
protect an existing substantive [constitutional] right").
Accordingly, we overrule City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d
311 (1988), and conclude that K.S.A. 2015 Supp. 22-3402(b) only applies to a "person
charged with a crime and held to answer on an appearance bond." Spencer Gifts did not
fit that category. Still, Bollacker was good law when the district court dismissed the case
against Spencer Gifts and the Court of Appeals affirmed—there was no error in the lower
courts. Hierarchically lower courts are required to follow our precedent absent indication
that we are departing from our precedent. See Snider v. American Family Mut. Ins. Co.,
297 Kan. 157, 168, 298 P.3d 1120 (2013). And because we have changed the law on this
16
point in detriment to Spencer Gifts, we find that the rule we express in this decision does
not apply so as to reinstate the State's case against Spencer Gifts.
As a general rule, "when an appellate court decision changes the law, that change
acts prospectively and applies only to all cases, state or federal, that are pending on direct
review or not yet final on the date of the appellate court decision." State v. Mitchell, 297
Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). And Spencer Gifts' case is not only currently
pending, but statutory speedy trial is a procedural rule, and procedural rules typically
apply retroactively. These general rules, typically applied when a defendant appeals and
seeks the benefit of a change in the law, would suggest that the change in the law we
espouse today would apply to Spencer Gifts.
But here the State has appealed and seeks a change in the law that would
potentially obliterate Spencer Gifts' statutory speedy trial defense. In such a
circumstance, the general rules just cited are tempered by the proposition that changes in
the law cannot apply so as to affect a vested or substantive right. "A vested right is one
'so fixed that it is not dependent on any future act, contingency or decision to make it
more secure.'" Dupree, 304 Kan. at 52, 2016 WL 1391917, at *7 (quoting Board of
Greenwood County Comm'rs. v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 [1980]).
In Dupree, we held that the mere running of the statutory time period for speedy
trial did not establish a vested right because time alone was not determinative. To secure
dismissal under statutory speedy trial the parties would have to argue before a court
whether various periods of time would count against the State or the defendant or
whether various waivers would apply. Dupree, 304 Kan. at 52-56, 2016 WL 1391917, at
*7-10. Counting days, in and of itself, still left dismissal too contingent.
17
We face a different situation here, however: Spencer Gifts has argued statutory
speedy trial, and Spencer Gifts obtained dismissal of the case in the district court under
the then controlling law of Bollacker. While Mathenia contained language seemingly at
odds with Bollacker, it did not expressly change or overrule Bollacker's holding. We only
now change that prior precedent. But such a change cannot resurrect the charges against
Spencer Gifts, which lawfully utilized a complete defense against those charges. Unlike
in Dupree, Spencer Gifts' right to dismissal for a statutory speedy trial violation was no
longer contingent—it had vested with the district court's dismissal of the case.
The statutory speedy trial issue, as illustrated by this case, is not unlike a statute of
limitations. A statute of limitations is a procedural rule, which means changes typically
apply retroactively. And the procedural nature of the rule means that when the legislature
extends a statute of limitations period, the new time period applies to all cases that have
yet to be time barred by the prior statutory period. However, cases that were time barred
by the original period remain time barred—an extension to a statute of limitations cannot
resurrect expired charges by eradicating the vested and complete defense the prior law
afforded. See State v. Noah, 246 Kan. 291, 292-95, 788 P.2d 257 (1990); see also Lujan
v. Regents of University of California, 69 F.3d 1511, 1516-17 (10th Cir. 1995) (statutes
of limitations have mixed procedural and substantive aspects); Tonge v. Werholtz, 279
Kan. 481, 488-89, 109 P.3d 1140 (2005) (holding, as to Department of Corrections
regulations, that "once an inmate accrues a vested defense to the enforcement of
disciplinary restitution, that defense cannot be taken away").
This case calls for a similar conclusion. Spencer Gifts' right to dismissal for a
statutory speedy trial violation vested when, under the weight of valid precedent from this
court, it obtained dismissal in the district court. There was nothing left for Spencer Gifts
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to do to secure its right. See Dupree, 304 Kan. at 52, 2016 WL 1391917, at *7 (a vested
right is one that depends on no future act, contingency, or decision).
Applying Bollacker, neither party disputes that Spencer Gifts did not meet a plain
condition of the speedy trial statute. Spencer Gifts was not held to answer on an
appearance bond. So by its plain language K.S.A. 2015 Supp. 22-3402(b) did not apply.
Our decision today to overrule Bollacker by relying on the plain language of K.S.A. 2015
Supp. 22-3402(b) cannot resurrect the appropriately dismissed charges against Spencer
Gifts because doing so would eradicate a complete defense. See Dupree, 304 Kan. at 55,
2016 WL 1391917, at *9 (qualifying for a complete and total defense signifies the
vesting of a right); Noah, 246 Kan. at 292-95 (extending statute of limitations period
cannot resurrect expired charges).
3. The State's alternative argument that a corporation is not entitled to speedy trial
protection is waived.
The State offers, as an alternative to the argument we have discussed above, an
argument that K.S.A. 2015 Supp. 22-3402(b) and Bollacker should not apply to Spencer
Gifts because it does not make sense for a corporation, who could not be jailed, to have a
speedy trial right. To support this claim, the State notes that business entities are not
entitled to all the same constitutional rights afforded to natural persons. Further, the State
points out that the United States Supreme Court has not definitively decided the
constitutional speedy trial rights of corporate entities.
Still, the State has cited no on-point authority to support its argument that a
business entity is not entitled to rights under a speedy trial statute. The failure to support
a point with pertinent authority is akin to abandonment and constitutes waiver of an
argument. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Moreover, the
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weight of authority, even as to constitutional rights, actually stands against the State's
position. See, e.g., United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 737-41
(9th Cir. 1989) (applying statutory and constitutional speedy trial to corporate defendant);
United States v. Rivera Const. Co., 863 F.2d 293, 295-97 (3d Cir. 1988) (applying
statutory speedy trial to corporate defendant); United States v. Litton Systems, Inc., 722
F.2d 264, 265-66 (5th Cir. 1984) (applying constitutional speedy trial to corporation);
United States v. New Buffalo Amusement Corp., 600 F.2d 368, 372-77 (2d Cir. 1979)
(applying statutory speedy trial to corporate defendant); United States v. Stein, 456 F.2d
844, 847-50 (2d Cir. 1972) (applying constitutional speedy trial to corporate defendant);
People v. Slender Wrap, 36 Colo. App. 11, 15-19, 536 P.2d 850 (1975) (applying
statutory and constitutional speedy trial to corporate defendant even though corporation
could not be arrested); People v. Crawford Distributing Co., 78 Ill. 2d 70, 78-81, 397
N.E.2d 1362 (1979) (considering statutory speedy trial for corporate defendant); State v.
Empak, Inc., 889 S.W.2d 618, 623 (Tex. App. 1994) ("Corporations have a speedy trial
right under federal and Texas constitutions.").
Even acknowledging the State's point that a corporation's constitutional speedy
trial rights remain unsettled, we struggle to see how uncertainty about constitutional
rights have relevance to the statutory issue before us. A limited liability company, like
Spencer Gifts, is statutorily defined as a "Person" under K.S.A. 2015 Supp. 17-7663(l).
And "any person charged with a crime and held to answer on an appearance bond" has a
right to a trial 180 days after arraignment. (Emphasis added.) K.S.A. 2015 Supp.
22-3402(b). Regardless of whether an LLC could assert a constitutional speedy trial right,
which was never Spencer Gifts' claim here, the State has not presented us with any reason
why an LLC—statutorily defined as a person—would not have a statutory speedy trial
right if indeed it was held to answer on an appearance bond. As before, we deem this
point abandoned. Tague, 296 Kan. at 1001 (failure to show a point is sound in the face of
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contrary authority is akin to abandonment). This means, at least under the arguments as
presented to us, Spencer Gifts could rely on Bollacker for relief under K.S.A. 2015
22-3402(b).
4. K.S.A. 2015 Supp. 22-3402(g) does not prevent Spencer Gifts from obtaining
relief.
There is little merit to the State's next alternative argument, which is that K.S.A.
2015 Supp. 22-3402(g), as interpreted in State v. Brownlee, 302 Kan. 491, 354 P.3d 525
(2015), removes Spencer Gifts' remedy of dismissal. In Brownlee, a majority of this court
held that the legislature removed the remedy of dismissal for a statutory speedy trial
violation when a delay is initially charged—incorrectly—to a defendant but subsequently
corrected and charged to the State. 302 Kan. at 510-11; see also K.S.A. 2015 Supp.
22-3402(g) ("If a delay is initially attributed to the defendant, but is subsequently charged
to the state for any reason, such delay . . . shall not be used as a ground for dismissing a
case."). But see Brownlee, 302 Kan. at 524-28 (Luckert, J., dissenting).
In this case, the first district judge held that Spencer Gifts did not have a speedy
trial right under K.S.A. 2015 Supp. 22-3402(b). Subsequently, another district judge
disagreed and dismissed the case because the State failed to bring Spencer Gifts to trial
within 180 days. There may have been judicial disagreement, but there was never a
dispute about the attribution of delays or whether certain days were chargeable against
the State. Unlike Brownlee, the issue here was whether statutory speedy trial applied at
all—the latter district judge did not subsequently charge the State with delays initially
attributed to Spencer Gifts. Likewise, the plain language of K.S.A. 2015 Supp.
22-3402(g), which foreclosed relief in Brownlee, did not apply here to foreclose dismissal
of the case against Spencer Gifts.
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CONCLUSION
We overrule City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), and
hold that a defendant not held to answer on an appearance bond has no statutory speedy
trial right under K.S.A. 2015 Supp. 22-3402(b). However, we affirm the dismissal of the
charges against Spencer Gifts because its right to dismissal for a statutory speedy trial
violation had vested under the prior binding law.
The decision of the Court of Appeals affirming the district court is affirmed. The
decision of the district court to dismiss the charges against Spencer Gifts for a violation
of K.S.A. 2015 Supp. 22-3402(b) is affirmed.
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