Commonwealth of Kentucky v. Kevin Charles Curry ( 2020 )

RENDERED:
2019-SC-0696-CL
IN RE:
COMMONWEALTH OF KENTUCKY APPELLANT
V. JEFFERSON COUNTY DISTRICT COURT
CASE NO. 18-T-040568
KEVIN CHARLES CURRY APPELLEES
OPINION OF THE COURT BY JUSTICE LAMBERT
CERTIFYING THE LAW
The Commonwealth of Kentucky seeks certification of law pursuant to CR1
76.37(10). The question before us is whether KRS2 189.390 subsections (3)-(5)
violate the due process provisions of the United States and Kentucky
Constitutions on the grounds that the speed limit statutes are
unconstitutionally vague. The Commonwealth claims (1) litigants asserting
that a statue is void-for-vagueness must challenge the statute as-applied to
1 Kentucky Rule of Civil Procedure.
2 Kentucky Revised Statute.
their conduct when the statute does not implicate the First Amendment and (2)
the statutes in this case are constitutional regardless of the form of a review.
For the reasons set forth below, we conclude KRS 189.390(3)-(5) are not
unconstitutionally vague.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 5th, 2018, an officer of the Louisville Metro Police Department
stopped Mr. Curry as he was driving southbound on 1-71 near mile marker 4 in
Louisville, Kentucky. By official order of the Secretary of Transportation, the
speed limit along this segment of highway is fifty-five miles per hour.3 Prior to
the stop, the officer observed Mr. Curry driving ninety-three miles per hour. A
citation was issued to Curry, charging him with speeding and assigning a court
date.
Subsequently, Curry moved the Jefferson District Court to find that KRS
189.390 was unconstitutional: Curry claimed the statute was void for
vagueness because a reasonable person could not read the statute and
understand which speed limit applied on a given road in Kentucky. On
September 19th, 2019, the District Court issued an order finding 189.390(3)-(5)
facially unconstitutional, holding that KRS 189.390 failed to provide citizens
with sufficiently definite notice of the applicable speed limits on Kentucky
roads and permitted arbitrary enforcement of the law.
3 KRS 189.390(4) authorizes the Secretary of Transportation to set a speed limit
along specific segments of highway if an engineering study supports that an alteration
is reasonable. See Section II of this Opinion, infra, for further discussion of the
statutory scheme.
2
Ultimately, the District Court dismissed the prosecution against Curry in
its Daily Disposition Report for October 31st, 2019. The Commonwealth
requested certification of the law regarding the constitutionality of KRS
189.390(3)-(5), claiming the issue poses a question of significant importance to
the Commonwealth and the general public. We agreed and granted the request
for certification.
II. KRS 189.390 and Related Statutes
KRS 189.390 sets out the law governing driving speed on Kentucky
roads. The general rule in Kentucky is that an “operator of a vehicle upon a
highway shall not drive at a greater speed than is reasonable and prudent,
having regard for the traffic and for the condition and use of the highway.”4 As
such, the applicable speed limit at any given time in Kentucky is a reasonable
speed under the circumstances.
Subsections (3)-(5) define the maximum reasonable speed on specific
sections of road and outline the procedure under which those limits might be
altered. Subsection (3) sets the baseline for maximum speed limits applicable
to “state highways.”5 Relevant to this case, the statute sets the baseline
maximum speed limit for interstate highways and parkways as sixty-five miles
per hour.6 The speed limits defined in subsection (3) act as baselines because
the statute expressly provides two situations in which those speed limits do not
4 KRS 189.390(2).
5 KRS 189.390 (3). The statute defines “state highways” as “a highway or street
maintained by the Kentucky Department of Highways.” KRS 189.390(1).
6 KRS 189.390(3).
3
apply. First, if conditions exist that would require a driver to lower her speed
in order to drive in a “reasonable and prudent manner,” then the driver must
conform to that lower speed. Second, the statute authorizes the Secretary of
Transportation to establish a different speed limit under subsection (4).
Subsection (4), in turn, grants the Secretary of Transportation the
authority to establish a new speed limit on any part of a state highway if an
engineering and traffic investigation supports that an increase or decrease is
reasonable or safe under the circumstances.7 The statute generally prevents
the Secretary from increasing the speed limit beyond sixty-five miles per hour,
except on certain enumerated segments of highway.8 Subsection (5) permits a
city or county to establish speed limits within the city or county subject to
certain limitations.9 Any alteration to a statutory speed limit by a city or
county is not effective until the Secretary approves the alteration.10 In sum,
the statute provides that the basic speed limit in Kentucky is a reasonable
speed, enumerates certain speeds limits as a statutory baseline, and outlines
procedures by which the Transportation Cabinet or local governments may
deviate from those statutory baselines.
7KRS 189.390(4).
8 Id.
9 KRS 189.390(5)(a).
10 KRS 189.390(5)(b). The Secretary cannot approve an alteration raising the
speed limit above fifty-five miles per hour on state highways or within a business or
residential district. Id.
4
 To fully understand Kentucky’s speeding law, two other statutes must be
considered. First, KRS 189.231 grants the Secretary of Transportation
authority to regulate traffic on state highways “in such a manner as is
reasonably necessary to promote the safety of the traveling public.”11 To this
end, KRS 189.231 permits the Secretary to install “traffic control devices” along
state highways.12 It is a statutory offense for a driver to disregard the
instructions of an official traffic control device.13
KRS 189.337 defines “official traffic control devices” as “all signs, signals,
markings, and devices placed or erected by authority of a public body or official
having jurisdiction for the purpose of regulating, warning or dividing traffic.”14
Under the statute, traffic control devices must conform to the standards of a
manual promulgated by the Department of Highways.15 In lieu of promulgating
a state-specific manual, the Department of Highways adopts the Federal
Highway Administration’s Manual on Uniform Traffic Control Devices for
Streets and Highways (MUTCD).16 The MUTCD requires that speed limit signs
display the speed limit as “established by law, ordinance, regulation, or as
adopted by the authorizing agency based on the engineering study.”17 Further,
11 KRS 189.231(3).
12 KRS 189.231(1).
13 See KRS 189.231; KRS 189.990(15).
14 KRS 189.337(1).
15 Id. at (2)-(3).
16 603 Ky. Admin. Reg. 5:050(2)-(3) (2020).
17 MUTCD, Section 2B.13.
5
the MUTCD provides that signage “shall be installed at or near where the
regulations apply” and “shall clearly indicate requirements imposed by the
regulations.”18 In short, Kentucky law requires speed limit signs reflecting the
applicable speed limit—whether determined by statute, ordinance, or official
order—to be posted at or near the point at which that speed limit applies.
III. KRS 189.390(3)-(5) are neither unconstitutionally vague as-applied or
on their face.
The Fourteenth Amendment provides “[no] state shall... deprive any
person of life, liberty, or property, without due process of law.”19 When a state
enacts a criminal law “so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites arbitrary
enforcement,” the state violates due process.20 The fact that a statute could
have been drafted more precisely does not mean the statute as written is
invalid; a statute may be upheld so long as the law provides sufficient warning
to persons about what conduct is prohibited.21
Before applying these principles to the statute in question, we pause to
address an issue raised by the Commonwealth. The Jefferson District Court
18 Id. at Section 2B.01.
19 U.S. Const, amend. XIV, §1.
20 N.M. (J.) v. United States, 576 U.S. 591, 595 (2015) (citing Kolender v..
Lawson, 461 U.S. 352, 357-358 (1983)); Stinson v. Commonwealth, 396 S.W.3d 900,
906-08.
21 See Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 87 (Ky. 1991) (citing
Rose v. Locke, 423 U.S. 48, 50 (1975)). See also Commonwealth v. Kash, 967 S.W.2d
37, 43 (Ky. App. 1997).
6
held that relevant provisions of KRS 189.390 were unconstitutional on their
face. The Commonwealth contends the District Court misapplied the law by
ignoring controlling precedent, specifically Kotila v. Commonwealth. Kotila
stated that “where a statute does not implicate First Amendment values, ‘[a]
vagueness challenge ... cannot be aimed at the statute on its face but must be
limited to the application of the statute to the particular conduct charged.”22
To be sure, this proposition finds consistent support in both federal and
Kentucky case law.23 We acknowledge, however, that neither the United States
Supreme Court nor the Kentucky Supreme Court consistently views this
principle as controlling. For instance, in a recent void for vagueness case,
Sessions v. Dimaiya, the United States Supreme Court facially reviewed a
statute that did not implicate the First Amendment.24 Moreover, Sessions
follows multiple instances throughout the years in which the United States
Supreme Court facially reviewed statutes unrelated to the First Amendment.25
22114 S.W.3d 226, 248-49 (Ky. 2003) (abrogated on other grounds by Mills v.
Dep’tof Corr. Offender Info. Services, 438 S.W.3d 328 (Ky. 2014)).
23 See e.g. Chapman v. United States, 500 U.S. 453, 467 (1991)( “First
Amendment freedoms are not infringed by [the statute], so the vagueness claim must
be evaluated as the statute is applied to the facts of this case.”); United States v.
Mazurie, 419 U.S. 544, 550 (1975)(“It is well established that vagueness challenged to
statute which do not involve First Amendment freedoms must be examined in the light
of the fats of the case at hand.” (citations omitted); Stinson, 396 S.W.3d at 907; Tobar
v. Commonwealth, 284 S.W.3d 133, 134-35 (Ky. 2009).
24 See 138 S. Ct. 1204 (2018/ The Sessions decision followed the Court’s
opinion in Johnson v. United States, which facially invalidated a similar provision in
the Armed Career Criminal Act. 576 U.S. at 595.
25 Skilling v. United States, 561 U.S. 358 (2010) (performing facial review of the
constitutionality of the federal honest-services statute); City of Chicago v. Morales, 527
U.S. 41 (1999) (plurality opinion) (facially reviewing city loitering ordinance); Kolender
v. Lawson, 461 U.S. at 353 (facially reviewing an anti-loitering provision).
7
Similarly, Kentucky case law takes a variety of approaches to this
question. In Kotila itself, which states that facial vagueness review is limited to
statutes concerning the First Amendment, this Court determined that facial
review was appropriate due to “the volume of convictions and appeals”
resulting from the application of the statute in question.26 At least one other
decision of this Court requires as-applied review.27 Other decisions, however,
simply engage in facial review even when the challenged statute does not
implicate the First Amendment.28
Therefore, although statements in our previous opinions can be read to
suggest otherwise, our holdings do not preclude facial review of a criminal
statute challenged as vague, even if the statute at hand does not implicate First
Amendment concerns. In the present case, the process of certifying the law
requires us to look beyond the facts of the underlying case and consider the
validity of the statute as a whole. Moreover, we note that KRS 189.390(3)-(5)
pass constitutional muster regardless of whether the Court engages in as-
applied or facial review.29 As a result, it is not necessary at this time to outline
26 114 S.W.3d at 248. This Court took a similar approach in Stinson v.
Commonwealth, 396 S.W.3d 900, 906-08 (Ky. 2013). There, this Court stated that as-
applied review was required in cases that do not involve First Amendment freedoms
but proceeded to hold that the statute was facially valid. Id.
27 See Tobar, 248 S.W.3d at 134-35.
28 Wood v. Commonwealth, 178 S.W.3d 500, 507-510 (Ky. 2005) (performing
facial review of statute permitting aggravated sentence for a person with substantial
history of serious assaultive convictions); Brown v. Commonwealth, 975 S.W.2d 922
(Ky. 1998) (holding that the statute defining wanton murder was facially
constitutional).
29 We observe that Curry’s case clearly fails under an as-applied review
standard. Curry was driving twenty-three miles per hour faster than the highest
8
a specific procedure concerning the propriety of facial or as-applied vagueness
challenges to criminal statutes. It suffices to say that in the case below, the
Jefferson District Court did not clearly err or misapply controlling precedent in
reviewing KRS 189.390 on its face.
We begin our own vagueness analysis of KRS 189.390(3)-(5) by
examining the statute in light of basic principles of statutory construction.
In construing statutes, our goal, of course, is to give
effect to the intent of the General Assembly. We derive
that intent, if at all possible, from the language the
General Assembly chose, either as defined by the
General Assembly or as generally understood in the
context of the matter under consideration. We presume
that the General Assembly intended for the statute to
be construed as a whole, for all of its parts to have
meaning, and for it to harmonize with related statutes.
We also presume that the General Assembly did not
intend an absurd statute or an unconstitutional one.
Only if the statute is ambiguous or otherwise frustrates
a plain reading, do we resort to extrinsic aids such as
the statutes legislative history; the canons of
construction; or, especially in the case of model or
uniform statutes, interpretations by other courts.30
Under these principles, we hold that that KRS 189.390 (3)-(5) provides
ample notice of what conduct is prohibited under the statute. The district court
held that the statute failed to provide sufficiently definite notice of what conduct
is proscribed, relying in large part upon the complexity of the statute’s language,
possible speed limit in Kentucky. As such, Curry could not have believed his conduct
to conform to any possible interpretation of KRS 189.390.
30 Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)
(internal citations omitted).
9
the reference to official orders extraneous to the statute, and the failure of the
statue to reference posted speed limits.
We disagree. The statutory and regulatory scheme is admittedly complex,
yet this complexity is not fatal to KRS 189.390(3)-(5). It is clear from the
statutory text of KRS 189.390 alone that the baseline speed limit on a state
highway must either be speed limit set in subsection (3) or an altered speed limit
set pursuant to subsection (4) or (5). While KRS 189.390 does not explicitly
mention regulatory signage or expressly incorporate the speed limits set by
official order, the law does not require that all specific acts violative of a statute
be specifically enumerated.31 Moreover, a given statute must be analyzed by
reference to statutes to which it is closely related.
KRS 189.390 is closely linked to KRS 189.231, which authorizes the
Secretary to regulate traffic and install signage reflecting those regulations, and
KRS 189.337, which points one towards the legal standard governing regulatory
signage. Under the later statute, KRS 189.337, all regulatory signs must
conform to the standards set out in the manual adopted by the Department of
Highways. Under that manual, all regulatory signs installed by the Secretaiy
must accurately reflect the governing law they represent.32 Put simply, all speed
31 See O’Leary v. Commonwealth, 441 S.W.2d 150, 155 (1969) (“There are many
crimes that are and must be broadly defined, but which are not rendered invalid by
the fact that the definitions do not specify every conceivable exculpatory
circumstance.”).
32 See MUTCD, Section 2B.13 (requiring that speed limit signs display the limit
established by law, ordinance, regulation, or as adopted by the authorized agency
based on the engineering study) (emphasis added).
10
limit signs in Kentucky must accurately reflect the speed limit as defined by the
law, regardless of whether that limit is defined according to the statute, local
ordinance, or official order. Essentially, a driver is notified of the applicable legal
standard every time they pass a speed limit sign.
The General Assembly could have passed a statute that expressly stated
that any alteration to the statutorily defined speed limit would be reflected in
posted signs. And that statute would be somewhat clearer. But the fact that a
more precise statute could have been drafted is irrelevant if the statute in
question provides sufficient notice of proscribed conduct.33 In this case, KRS
189.390(3)-(5), considered in context of related statutes and regulations,
adequately advise drivers in Kentucky of the governing speed limit at a particular
location.
Further, we consider whether KRS 189.390(3)-(5) encourage arbitrary and
discriminatory enforcement. The district court noted that often the statute and
signs contradict one another and that it was not clear whether law enforcement
officers charged defendants with a violation of the statute or a violation of the
sign.
The prohibition against arbitrary enforcement requires a statute to provide
“minimal guidelines” to prevent a “standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal predilections.”34 To the extent
that any conflict derives from the fact that the sign references a speed limit
33 See Caretenders, 821 S.W.2d at 87.
34 Kolender, 461 U.S. at 358.
11
properly set by either a local ordinance or an official order, there is no legal issue.
The statute clearly specifies that a speed limit may be determined either by
statute, ordinance, or official order. Additionally, the statute and regulations
require signs to accurately represent the law. Thus, in the abstract, the fact that
the statute and sign state different speed limits does not render KRS 189.390(3)-
(5) standardless. A defendant may, of course, raise the issue that a particular
sign misrepresents the law or that a particular officer enforced an incorrect speed
limit. Here, Curry did not so allege.35 Absent evidence of such a claim, we leave
that issue to be determined on a case-by-case basis.
Considered as a whole, KRS 189.390(3)-(5) provides specific guidelines for
law enforcement and courts to follow. The statute requires the official citation
issued following a violation of any speed limit to specify the speed at which the
defendant is alleged to have driven and the lawful speed applicable to the exact
location at which the violation allegedly occurred.36 Moreover, KRS 189.394
provides a schedule of fines demonstrating the exact penalty for violation of KRS
189.390. Based on the foregoing, we determine that KRS 189.390(3)-(5) provides
ample guidance for the law to be consistently enforced.
CONCLUSION
In response to the certified question, we conclude that KRS 189.390(3)-
(5) provides citizens with fair notice of the conduct it proscribes and does not
35 Here the speed limit sign accurately matched the Official Order of the
Secretary of Transportation.
36 KRS 189.390(8).
12
encourage arbitrary enforcement. As such, the provisions of the statute are
not void-for-vagueness and do not violate the United States or Kentucky
Constitutions. The law is so certified.
All sitting. All concur.
COUNSEL FOR COMMONWEALTH OF KENTUCKY:
Michael J. O’Connell
Jefferson County Attorney
David A. Sexton
Assistant Jefferson County Attorney
COUNSEL FOR KEVIN CHARLES CURRY:
Gregory Dean Simms
Murphy & Associates, PLLC
13