Pierce v. Commonwealth

777 S.W.2d 926, 1989 Ky. LEXIS 90, 1989 WL 122563

• Court: Kentucky Supreme Court
• Decided: October 19, 1989
• Docket: No. 88-SC-848-DG
• Status: Published

Opinions

LAMBERT, Justice.

The question in this case is whether a city, by local ordinance proscribing solicitation to commit sodomy, may redefine the elements of the offense and impose criminal penalties four times greater than allowed by state statute for the same violation. We have determined that it may not.

Appellant Pierce was convicted in the Boone District Court of criminal solicitation to commit sodomy under City of Florence Ordinance No. 0-33-85. Appellant was fined $500.00 and sentenced to six months in the county jail. He was also convicted, fined and sentenced for escape, but this conviction is not before us. Upon appeal to the Boone Circuit court, both convictions were affirmed. The Court of Appeals denied Pierce’s motion for discretionary review. Appellant sought review before this Court. We granted discretionary review to consider the conviction for violation of the sodomy ordinance.

Appellant contends, as he did in each of the courts below, that Florence Ordinance No. 0-33-85 conflicts with KRS 506.030, and thus is invalid. The statute states:

“(1) A person is guilty of criminal soli-ciation when, with the intent of promoting or facilitating the commission of a crime, he commands or encourages another person to engage in specific conduct which would constitute that crime or an attempt to commit that crime or which would establish the other’s complicity in its commission or attempted commission.

(2) A criminal solicitation is a:

(a) Class B felony when the crime solicited is a class A felony or capital offense;

(b) Class C felony when the crime solicited is a Class B felony;

(c) Class A misdemeanor when the crime solicited is a Class C or D felony;

(d) Class B misdemeanor when the crime solicited is a misdemeanor.” Id. (Emphasis added.)

Unlike the state statute quoted above, the ordinance under attack addresses itself specifically to solicitation to violate KRS 510.100, the offense of Sodomy in the Fourth Degree, which is a Class A misdemeanor. Under KRS 506.030(d), solicitation to commit a misdemeanor is punishable as a Class B misdemeanor for which the maximum penalty is ninety days imprisonment and a $250.00 fine. KRS 532.090(2) and KRS 534.040. Upon his conviction for violation of the ordinance, appellant was sentenced to six months in jail and a fine of $500.00, twice the period of imprisonment and twice the amount of fine which could have been imposed under the statute.

In addition to enlarged penalties, Florence Ordinance No. 0-33-85 also attempts to prohibit local sodomy solicitation by defining the offense more broadly than the state penal code provisions. The ordinance is as follows:

“Section I

It shall be a criminal offense for a person to solicit, invite, influence or encourage another person by speech, gesture, or any other form of communication, to engage in or attempt to engage in conduct which would constitute a violation of the provisions of K.R.S. 510.100, in the City of Florence, Kentucky, with the intent to promote or facilitate such conduct.

Section II

Any person convicted of the offense hereinabove established shall be fined not less than $100.00 nor more than $500.00, and/or imprisoned for not more than one (1) year." Id. (Emphasis added.)

As can be seen, the ordinance prohibits sodomy solicitation more explicitly than does KRS 506.030 in combination with KRS 510.100, but in either instance, solicitation of the same illegal act is condemned and made unlawful. Thus the ordinance enacted by the City of Florence directly addresses criminal conduct which is comprehensively addressed by state statutes. Moreover, the ordinance is subject to a more expansive interpretation allowing for the possibility of abusive arrest and prosecution not likely under state law. As the General Assembly chose the language used in the statute, we must conclude it did so intentionally and we cannot approve an ordinance which amounts to an enlargement of the conduct proscribed by the act of the General Assembly. We are also concerned that under the expansive language of the ordinance there is a possibility that an inadvertent act would appear to be a violation when in fact it is but an innocent behavioral idiosyncrasy.

Under KRS 82.082, the so-called “Home Rule” statute, municipalities may act in furtherance of a public purpose, so long as the exercise of power is “not in conflict with a constitutional provision or statute.” KRS 82.082(1).

“A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes,” KRS 82.082(2) (emphasis added).

Appellee argues that the ordinance neither permits or licenses acts or conduct the statute prohibits, nor forbids or prohibits things the statute permits. Further, it contends, KRS 506.030 is merely a general prohibition against criminal solicitation and not a comprehensive scheme which preempts local authority to enact an ordinance dealing with the same subject matter. Appellee concludes that the ordinance does not conflict with KRS 506.030. We disagree.

In enacting KRS 506.030, the General Assembly designed a comprehensive approach to prohibiting the solicitation of criminal acts, which includes a coherent classification scheme for determining the range of penalties from which an appropriate punishment may be imposed. The Florence Ordinance conflicts with the statute by its description of the proscribed conduct and by the excessive penalty it authorizes. For this reason, it is an invalid exercise of the power granted to cities under KRS 82.082.

Because Florence Ordinance No. 0-33-85, under which appellant was convicted, is invalid, we reverse appellant’s conviction and remand this cause to the Boone District Court for further proceedings consistent with this opinion.

STEPHENS, C.J., and COMBS and LEIBSON, JJ., concur. VANCE, J., dissents by separate opinion in which GANT, J., joins. WINTERSHEIMER, J., dissents by separate opinion.