1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,007

CITY OF WICHITA,

Appellant,

v.

ARLANDO TROTTER,

Appellee.

SYLLABUS BY THE COURT

1.

A party challenging a law as overbroad under the First Amendment need not 

establish a personal injury arising from that law.

2.

Fourth Amendment rights are personal, and defendants may not vicariously assert 

them.

3.

The First Amendment overbreadth doctrine may be implicated when a criminal 

statute makes conduct punishable, which under some circumstances is constitutionally 

protected from criminal sanctions. 

4.

Where a potentially overbroad statute regulates conduct, and not merely speech, 

the overbreadth must not only be real, but substantial as well, judged in relation to the 
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statute's plainly legitimate sweep. The party challenging the law bears the burden of 

showing (1) the protected activity is a significant part of the law's target, and (2) there 

exists no satisfactory method of severing the law's constitutional from its unconstitutional 

applications.

5.

Whether a court may sever an unconstitutional provision from a statute or 

ordinance and leave the remainder in force and effect depends on the intent of the 

governing body that drafted it. A court may only sever an unconstitutional portion of an 

ordinance if, from examination of the ordinance, the court finds that (1) the act would 

have been passed without the objectionable portion, and (2) the ordinance would operate 

effectively to carry out the intention of the governing body that passed it with such 

portion stricken.

6.

When an appellate court raises a new issue sua sponte, counsel for all parties 

should be afforded a fair opportunity to brief the new issue and present their positions to 

the appellate court before the issue is finally determined.

7.

When a party challenges a court's error of law, an appellate court's review of that 

error is unlimited.

Review of the judgment of the Court of Appeals in 60 Kan. App. 2d 339, 494 P.3d 178 (2021),

from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed August 12, 2022. Judgment of the

Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the 

district court is affirmed.
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Jan M. Jarman, assistant city attorney, argued the cause and was on the briefs for appellant. 

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause and was on the briefs

for appellee.

The opinion of the court was delivered by

WILSON, J.: Arlando Trotter appeals the decision of the Court of Appeals panel

reversing the district court's dismissal of his two charges, which arose under Wichita 

Municipal Ordinances 3.06.030.A. and 3.30.030.A. Because we agree with the district 

court that W.M.O. 3.06.030.A. is overbroad and conclude that the panel erred by sua 

sponte reversing the district court's dismissal of Trotter's other charge, we affirm the 

district court and affirm in part and reverse in part the panel.

FACTS AND PROCEDURAL BACKGROUND

The procedural history of this case presents us with a limited factual record. In two 

separate municipal court cases, the City of Wichita charged Trotter with one violation 

each of W.M.O. 3.06.030.A. ("fail to file license application for after-hours") and 

W.M.O. 3.30.030.A. ("teen club/entertainment"). We know nearly nothing about the 

charges or proceedings that occurred before the Wichita Municipal Court. At any rate,

after the municipal court found Trotter guilty in both cases, Trotter appealed to the 

district court, characterizing his convictions as arising under city ordinances "0306030A"

and "0330030A." As a practical matter, Trotter's appeal had the effect of conditionally 

vacating his municipal convictions. City of Salina v. Amador, 279 Kan. 266, 274, 106 

P.3d 1139 (2005).
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On appeal before the district court, Trotter moved to consolidate both cases into 

one. He also moved to dismiss his charges, challenging the constitutionality of W.M.O. 

3.06.030.A. The district court agreed, finding W.M.O. 3.06.030.A. unconstitutionally 

overbroad because it intrudes upon several "examples of Constitutionally protected 

behaviors." The district court then dismissed both charges, thus fully vacating Trotter's 

municipal convictions. Amador, 279 Kan. at 274.

The City appealed. After rejecting Trotter's other constitutional claims, a panel of 

the Court of Appeals reversed the district court's conclusion that W.M.O. 3.06.030.A.

was unconstitutionally overbroad. The panel also sua sponte reversed the district court's 

dismissal of the charge arising under W.M.O. 3.30.030.A., commenting that its 

"consideration of this issue is necessary to serve the ends of justice." City of Wichita v. 

Trotter, 60 Kan. App. 2d 339, 357, 494 P.3d 178 (2021). 

Trotter moved for rehearing or modification, which the Court of Appeals denied. 

He then petitioned this court for review, which we granted.

ANALYSIS

Trotter challenges several aspects of the panel's decision. We find merit in his 

constitutional overbreadth argument and in his claim that the panel erred in reversing the 

district court's dismissal of his charge under W.M.O. 3.30.030.A., albeit not for the 

reasons he suggests. We deny Trotter's remaining claims as moot.
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W.M.O. 3.06.030.A. is unconstitutionally overbroad.

Trotter disputes the panel's conclusions that W.M.O. 3.06.030.A. is not 

unconstitutionally overbroad and that it lacked jurisdiction to consider his arguments 

about the ordinance's alleged Fourth Amendment implications for overbreadth purposes.

He has abandoned all other constitutional arguments.

The existence of appellate jurisdiction presents a question of law subject to

unlimited review. State v. Clark, 313 Kan. 556, 560, 486 P.3d 591 (2021). The same is 

true of a challenge to the constitutionality of a statute or ordinance. State v. Boettger, 310 

Kan. 800, 803, 450 P.3d 805 (2019); City of Wichita v. Edwards, 23 Kan. App. 2d 962, 

964, 939 P.2d 942 (1997). 

Standing

When First Amendment rights are affected, a party challenging a law as overbroad

need not establish a personal injury arising from that law. Williams, 299 Kan. at 919 

("The general rule [requiring standing] does not apply . . . when a litigant brings an 

overbreadth challenge that seeks to protect First Amendment rights, even those of third 

parties."). Cf. Wenzel v. Bankhead, 351 F. Supp. 2d 1316, 1323 (N.D. Fla. 2004) 

(distinguishing overbreadth claims from Fourth Amendment claims). Thus, the panel 

correctly determined that Trotter has standing to raise an overbreadth claim under the 

First Amendment.

The panel also correctly concluded that Trotter lacks standing to levy a Fourth 

Amendment challenge against W.M.O. 3.06.030.A. True, the panel approached this 

consideration from the perspective of a direct Fourth Amendment challenge rather than 
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Trotter's true argument, which contends that W.M.O. 3.06.030.A. "is unconstitutionally 

overbroad because it infringes on the First Amendment when it requires one to waive her 

Fourth Amendment Rights in order to receive a license (permission) to exercise her First 

Amendment Rights." But we consider this a distinction without a difference as to 

standing. Trotter cites no authority extending the third-party standing approach beyond

the domain of the First Amendment, and we have consistently held that Fourth 

Amendment rights "'are personal, and defendants may not vicariously assert them.'" State 

v. Scheuerman, 314 Kan. 583, 593, 502 P.3d 502 (2022). Thus we affirm the panel's 

rejection of Trotter's claim as to the Fourth Amendment implications of the ordinance.

Constitutional principles

We turn now to the merits of Trotter's First Amendment overbreadth claim. Under 

the First Amendment to the United States Constitution, "Congress shall make no law 

respecting an establishment of religion, or prohibiting the free exercise thereof; or 

abridging the freedom of speech, or of the press; or the right of the people peaceably to 

assemble, and to petition the Government for a redress of grievances." U.S. Const. 

amend. I. Trotter's claim of overbreadth focuses on W.M.O. 3.06.030.A.'s impact on the 

First Amendment right of assembly. See De Jonge v. State of Oregon, 299 U.S. 353, 364, 

57 S. Ct. 255, 81 L. Ed. 278 (1937) (incorporating the First Amendment right to assemble 

to the states under the Fourteenth Amendment to the United States Constitution).

All parties agree the ordinance is content neutral. But content neutrality does not 

immunize an ordinance from overbreadth scrutiny. Cf. Harmon v. City of Norman, 

Oklahoma, 981 F.3d 1141, 1148-54 (10th Cir. 2020) (addressing content neutrality of an 

ordinance as a component of an as-applied challenge and overbreadth separately as a 

component of a facial challenge). 
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A criminal statute may be unconstitutionally overbroad when it "makes conduct 

punishable which under some circumstances is constitutionally protected from criminal 

sanctions." Dissmeyer v. State, 292 Kan. 37, 43, 249 P.3d 444 (2011). "Where conduct 

and not merely speech is involved, the United States Supreme Court requires that 'the 

overbreadth of a statute must not only be real, but substantial as well, judged in relation 

to the statute's plainly legitimate sweep.'" Williams, 299 Kan. at 920. Thus, because 

"'[a]lmost every law is potentially applicable to constitutionally protected acts,'" a court 

will not find a law unconstitutionally overbroad unless the party challenging the law can 

show "'(1) the protected activity is a significant part of the law's target, and (2) there 

exists no satisfactory method of severing that law's constitutional from its 

unconstitutional applications.'" Martens, 279 Kan. at 253 (quoting State v. Whitesell, 270 

Kan. 259, Syl. ¶ 6, 13 P.3d 887 [2000]); see also Boettger, 310 Kan. at 803 (party 

challenging the statute bears the burden of establishing constitutional infirmity). 

Moreover, "[c]riminal statutes must be scrutinized with particular care . . . those that 

make unlawful a substantial amount of constitutionally protected conduct may be held 

facially invalid even if they also have legitimate application." City of Houston, Tex. v. 

Hill, 482 U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). Still, "[t]he 

overbreadth doctrine should be employed sparingly and only as a last resort." Martens, 

279 Kan. at 253. 

The Wichita after-hours establishment licensing scheme

The challenged ordinance, W.M.O. 3.06.030., provides:

"A. Except as provided in 3.06.030 subsection B, it is unlawful for any 

person to either as the owner, principal, officer, agent, servant, responsible person or 
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employee, to own, lease, manage, maintain or operate an after-hours establishment 

without first obtaining a license and paying all fees as required by this chapter, and 

complying with all other applicable provisions of this code.

"B. No separate license shall be required under this chapter for a business 

licensed by the State of Kansas or City of Wichita, including but not limited to:

entertainment establishment, drinking establishment, drinking establishment restaurant, 

licensed community event, licensed temporary entertainment district, or sexually oriented 

businesses.

"C. A license under this section is not transferable to another person or 

location. A change in ownership shall require the new owner to pay a new application fee 

and secure a new license."

Several definitions in W.M.O. 3.06.020. establish the ordinance's scope:

"'After-hours establishment' means any venue for a series of events or ongoing 

activity or business, occurring alone or as part of another business, to which the public is 

invited or allowed which is open anytime between midnight and 6:00 a.m., where 

individuals gather and is not otherwise licensed for the sale of alcoholic beverages or 

cereal malt beverages or otherwise licensed by the City of Wichita or state of Kansas for 

a business at that location. This term shall not include hospitals, hotels, motels or other 

boarding houses nor is it intended to apply to private homes where specifically invited 

guests gather. A combination of two or more of the following factors is prima facie 

evidence that an establishment is an 'after-hours establishment':

"(1) Playing of music either recorded or live;

"(2) Entertainment such as trivia or games;

"(3) Sporting events in person or broadcasted on screens;
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"(4) Crowds in excess of 20 people;

"(5) Alcoholic beverages present;

"(6) Food by an unlicensed vendor offered for purchase or as a benefit of paid entry;

"(7) Entry allowed only upon payment of a fee or membership;

"(8) Establishment monitored by security guards;

"(9) Advertisements or notifications on social media or by other means that invite the 

public to attend or participate in functions or activities located on the premises of such 

establishment.

. . . .

"'Games' mean an activity engaged in for diversion or amusement.

. . . .

"'Music' as used in this Chapter shall apply to live musicians, disc jockeys, and 

all music amplified through speakers or loud enough to be heard outside of the 

establishment.

. . . .

"'Premises' means any place where an after-hours establishment is operated or 

maintained and includes all hallways, bathrooms, parking areas, and other adjacent 

portions of the premises, which are under the control of the licensee or which are utilized 

by the licensee and are accessible to the public during operating hours.
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"'Private home' means a building or structure used solely as a private residence 

where no other commercial or entertainment activities occur or may occur. The term is 

meant to encompass private citizens gathering with invited guests in their own 

residentially zoned home.

"'Public' means non-employees and includes invited guests and members of an 

organization even if that organization is selective in its membership.

"'Trivia' means a quizzing game.

"'Venue' means any interior or exterior area, building, room, lot, or space used as 

a location for people to gather."

Finally, W.M.O. 3.06.010. sets forth the ordinance's overall purpose:

"The City of Wichita finds that some after-hours establishments within the city 

contribute to public intoxication, noise, disorderly conduct, assaults, violent crime and 

other similar problems connected primarily with the routine congregation of persons 

around such after-hours establishments, especially those which are managed without 

adequate security and attention to preventing these problems.

"The City of Wichita finds that a significant amount of police resources are being 

expended to address safety issues at after-hours establishments and safety risks are 

abundant when City personnel are not allowed to enter the facility for safety checks on 

locked doors and fire suppression devices. The purpose of this Chapter is to regulate the 

operation of all after-hours establishments so as to minimize the negative effects and to 

preserve the public safety, health and welfare."

As the City argues, many of the ordinance's aspects suggest that it was intended to 

regulate mainly late-night commercial activity. Had the ordinance's plain language 
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limited its applicability to commerce alone, this matter might be settled easily because, "it 

is irrelevant whether the ordinance has an overbroad scope encompassing protected 

commercial speech of other persons, because the overbreadth doctrine does not apply to 

commercial speech." Village of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 

489, 497, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982).

The problem is that nothing in the ordinance's plain language does limit it to 

commercial activity. As it is defined, W.M.O. 3.06.030. requires a license for every 

"venue" (essentially everywhere but a few places specifically excluded by the ordinance) 

where the "public" (essentially everyone except employees and "specifically invited 

guests" gathering in "private homes") "is invited or allowed" for a "series of events or 

ongoing activity or business" that extends to any point between midnight and 6 a.m. The 

ordinance excludes only (1) other places already licensed by the state or the city, (2) 

hospitals, (3) hotels, (4) motels, (5) boarding houses, and (6) "private homes where 

specifically invited guests gather."

The broad reach of the "public" is further shown by the failure to limit the term 

"organization." While an individual's specifically invited guests fall outside the 

ordinance's ambit (but only if they gather solely inside the individual's home and that 

home is not otherwise disqualified), the same is not true for an invited "organization." 

With no definition of "organization," the attendees of a monthly book club meeting or a 

weekly gathering of the Future Farmers of America, for example, would qualify as "the 

public" under the ordinance's plain language. But we need not resort to such hypothetical 

applications to divine the ordinance's scope—any regular gatherings involving an 

"organization" would require licensing under the ordinance if they extend after midnight 

or begin before 6 a.m. In the context of other city and state licensing laws, W.M.O. 
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3.06.030. acts as a catchall "everything but the kitchen sink" regulatory scheme that 

purports to control most activity between midnight and 6 a.m.

While much of the ordinance's scope may be sound, its reach into private homes 

exceeds its constitutionally tolerable grasp. As defined by W.M.O. 3.06.020., a "private 

home" is "a building or structure used solely as a private residence where no other 

commercial or entertainment activities occur or may occur" and applies to "private 

citizens gathering with invited guests in their own residentially zoned home." Stated 

another way, the ordinance only excludes gatherings in the interior of buildings used 

solely as residences ("where no other commercial or entertainment activities occur or 

may occur") that sit in solely residentially zoned areas. Back yard gatherings, gatherings 

inside residences used partially for commercial purposes—such as those with home 

offices—and gatherings inside residences that are not solely in residential zones fall 

within the ordinance's scope. 

Indeed, the City's initial response to Trotter's district court motion to dismiss even 

admitted that "[i]f a person has a home and a nice metal building out back and they host 

parties every weekend with music and food, they must have a license." We agree: under 

the ordinance's plain language, such a gathering would require a license if it lasted past 

midnight. But we cannot agree that the Constitution permits such an intrusion.

It was here that the panel stumbled. The panel focused on the ordinance's 

purported limitation to gatherings "to which the public was invited," claiming that "the 

district court's hypothetical applications of W.M.O. 3.06.030.A. fall short of the mark 

because the district court's hypotheticals would apply only if such persons started hosting 

recurrent early-morning gatherings that the public could attend." Trotter, 60 Kan. App. 

2d at 372-73. But the panel ignored the ordinance's wide definition of "public," as well as 
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other problems with the ordinance's definitions previously referenced. These problems 

convince us that any limitation on the ordinance's scope created by its "public" 

requirement is illusory, at best. The few exceptions the ordinance carves out illustrate its 

default rule: that nearly all gatherings fall within its reach unless specifically exempted.

Of course, we "'must construe statutes to avoid unreasonable or absurd results.'"

State ex rel. Schmidt v. Kelly, 309 Kan. 887, 904, 441 P.3d 67 (2019) (quoting N. Natural 

Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 [2013]). But 

that principle—like other rules of construction—only applies in the presence of 

ambiguous language. E.g., Schmidt v. Trademark, Inc., 315 Kan. 196, Syl. ¶ 1, 506 P.3d 

267 (2022). While the meaning of "organization" may be ambiguous, the City's definition

of "private homes" is not. We cannot construe around an ordinance's plain language, 

much as the City invites us to by, for example, reading a "curtilage" limitation into the 

ordinance's definitions. As written, W.M.O. 3.06.030. unambiguously regulates a wide 

range of otherwise lawful activity both inside certain private homes (i.e., those either 

used partially for "commercial or entertainment activities" or those not situated within 

residentially zoned areas) and around all private homes (i.e., anywhere outside the 

building or structure that comprises the home). The only exception to this broad 

regulatory swath goes to "specifically invited guests" inside a residentially zoned private 

home (used solely as a private home) between the hours of midnight and 6 a.m.

The panel expressed some concern with the zoning aspect of the ordinance, 

declaring that "[t]he very name 'nonresidential' implies persons would not ordinarily have 

private homes in such districts" and "[i]t thus follows that neither the district court nor 

Trotter have shown that there is a realistic danger that W.M.O. 3.06.030.A. would 

significantly compromise persons living in a nonresidentially zoned area from gathering 

in accordance with their First Amendment right to assemble." Trotter, 60 Kan. App. 2d at 
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373. But we take judicial notice under K.S.A. 60-409(b) of the Wichita-Sedgwick County 

Unified Zoning Code, which is incorporated by reference in W.M.O. 28.04.010. Article 

III.B.14, III.B.16, and III.B.19 of that Code, provide for "Limited Commercial District,"

"General Commercial District," and "Central Business District" zoning. Those sections of 

the Code permit several residential uses in such zones. While we cannot say how many 

residences fall under such zones, their very existence dispels the panel's assumption that 

there is no realistic danger of their regulation here.

While clearly the City has a legitimate governmental interest in the regulation of 

late-night commercial activity, that interest does not justify regulatory intrusion into noncommercial activity vis-à-vis the right of assembly in or around private homes. Cf. Konen 

v. Spice, 318 F. Supp. 630, 632 (E.D. Wis. 1970) (ordinance prohibiting "all assemblies 

in any place (except the public ball park) without an advance permit granted by the chief 

of police" found unconstitutionally overbroad). This is also true of the City's stated 

purpose in regulating "the operation of all after-hours establishments so as to minimize 

the negative effects and to preserve the public safety, health and welfare." W.M.O. 

3.06.010. Cf. Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110, 1119 

(E.D. Cal. 2012) (ordinance restricting gatherings in public parks without a permit 

between 11 p.m. and 5 a.m. not unconstitutionally overbroad); Gordon v. Schiro, 310 F. 

Supp. 884, 887 (E.D. La. 1970) ("It is beyond the reach of a penal ordinance to prohibit 

people from merely being on the streets 'habitually' or even at late 'or unusual' hours."). 

See also Territory of Hawaii v. Anduha, 48 F.2d 171, 171-73 (9th Cir. 1931) (statute 

prohibiting loafing or loitering "upon any public street or highway or in any public place" 

found unconstitutional: "[T]he right of the territory, or one of its municipalities, to 

legislate against the obstruction of public streets and highways, whether caused by idlers 

or others, is not open to question. But a regulation as broad as this is wholly unnecessary 

for that purpose."). As one case put it:
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"Although [the Town of] Dedham likely would have created overbreadth concerns had it 

attempted to ban all First Amendment activity between 1:00 a.m. and 6:00 a.m., it did not 

take so bold a step. Rather, Dedham chose a safer path by focusing on those activities—

commercial entertainment—most likely to result in late-night disruptions. [Citation 

omitted.]" (Emphasis added.) Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 

748 (1st Cir. 1995).

As we have noted, nothing in the plain language of the ordinance limits its 

application solely to commercial endeavors. And while the City here has not attempted to 

ban all gatherings between midnight and 6 a.m., the broad sweep of its regulation 

captures the lion's share of such activity—including much activity within private homes, 

residentially zoned or not.

"An ordinance or statute is overbroad when it regulates or prohibits 

constitutionally protected conduct which should be left to the private domain, that is, 

conduct which the national, state or local government simply does not have the right to 

control." Schiro, 310 F. Supp. at 886. We have little trouble concluding that this 

ordinance creates a real and substantial intrusion into the private lives of Wichitans that 

goes far beyond the scope necessary to further the City's legitimate interests. We do not 

find W.M.O. 3.06.030.A. overbroad based on unlikely or extreme hypotheticals, but 

instead based on the ordinance's plain language.

Nor can we sever the ordinance's unconstitutional applications from its 

constitutional ones. First, we observe that the parties have largely left this prong of the 

analysis alone. Even the district court "never considered if there was a satisfactory means 

to sever the unconstitutional application of W.M.O. 3.06.030.A. from its constitutional 

form as required under the second part of the unconstitutionally overbroad test." Trotter, 
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60 Kan. App. 2d at 362. The City now urges us to sever the ordinance in any number of 

ways, but our authority to do so is limited. We have considered "severing a provision 

from [an ordinance] if to do so would make the [ordinance] constitutional and the 

remaining provisions could fulfill the purpose of the [ordinance]." State ex rel. Morrison 

v. Sebelius, 285 Kan. 875, 913, 179 P.3d 366 (2008). As we have held:

"'Whether the court may sever an unconstitutional provision from a statute and 

leave the remainder in force and effect depends on the intent of the legislature. If from 

examination of a statute it can be said that (1) the act would have been passed without the 

objectionable portion and (2) if the statute would operate effectively to carry out the 

intention of the legislature with such portion stricken, the remainder of the valid law will 

stand. Whether the legislature had provided for a severability clause is of no importance. 

This court will assume severability if the unconstitutional part can be severed without 

doing violence to legislative intent.'" Gannon v. State, 304 Kan. 490, 519, 372 P.3d 1181 

(2016) (quoting Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300, 327 

P.2d 836 [1958]). 

Granted, the focus of the ordinance is clearly commercial. But the ordinance also 

casts a wide net over practically all late-night activity by design, as emphasized by the 

multiple definitional layers that clarify its meaning. As the City's Supplemental Brief 

claims, "A group gathering overnight on a regular basis may call themselves a church, a 

political organization, or a private club, but the law applies equally to any group."

Consequently, we cannot predict whether the Wichita City Council would have passed 

the ordinance without the troubling definitions of "private homes" or "public." Instead, 

we conclude that they cannot be severed without doing violence to the intent of the 

ordinance. 
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The district court expressed its opinion in terms of hypotheticals. It need not have 

done so: under W.M.O. 3.06.030., the regulation of late-night gatherings in Wichita is 

the rule proven by its few exceptions. We thus affirm the district court's decision to 

dismiss Trotter's charge under W.M.O. 3.06.030.A. and strike down the ordinance as 

unconstitutionally overbroad.

The panel abused its discretion by sua sponte reversing the district court's dismissal of 

Trotter's remaining charge.

Before the appeal, the district court perhaps inadvertently dismissed Trotter's 

second charge (and vacated his municipal conviction on that charge) for violating 

W.M.O. 3.30.030.A., even though "Trotter never argued that his charge [and consequent 

municipal conviction] for violating W.M.O. 3.30.030.A. should be dismissed because it 

was unconstitutional." Trotter, 60 Kan. App. 2d at 356. On appeal, the panel sua sponte 

reversed the district court's dismissal based on its consideration of the district court's

authority to dismiss this second municipal conviction. The panel held that such 

consideration was "necessary to serve the ends of justice." 60 Kan. App. 2d at 357. In our 

view, this was error.

"As we have previously cautioned, when 'an appellate court raises a new issue 

sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new 

issue and present their positions to the appellate court before the issue is finally 

determined.'" Lumry v. State, 305 Kan. 545, 566, 385 P.3d 479 (2016) (quoting State v. 

Puckett, 230 Kan. 596, 640 P.2d 1198 [1982]). 

The panel "provided the parties with a fair opportunity to address this apparent 

problem" at oral arguments. Trotter, 60 Kan. App. 2d at 357. Indeed, the panel even 
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permitted the parties to file supplemental briefing—but only as to "the issue of standing 

addressing overbreadth, right of assembly, the Fourth Amendment, and procedural due 

process." The panel's order for additional briefing did not permit the parties to present 

their views on the district court's dismissal of the second charge. By raising this dismissal 

and then denying the parties the opportunity to brief the issue—or, indeed, to respond in 

any way other than through spur of the moment answers in oral arguments—the panel 

overstepped its role. 

We acknowledge the initial apparent inconsistency in our disapproval of the 

panel's dismissal of the second charge without briefing while we, as well, do not invite 

the parties to brief it. But this inconsistency evaporates upon closer inspection because 

we are not raising this issue sua sponte. Trotter's petition for review to this court 

challenged the panel's failure to address his claim that the City never briefed the district 

court's dismissal of his charges; as Trotter's brief before the panel argued, "The City did 

not brief or argue that the trial court improperly dismissed the cases with prejudice." We 

find merit in this general contention, although not on the precise grounds Trotter 

suggests. Once a party raises an issue of a court's error of law, our review of the error

itself is unlimited. E.g., State v. Morley, 312 Kan. 702, 711, 479 P.3d 928 (2021).

Ultimately, it was the City's burden as appellant to establish that the district court 

erred, not Trotter's. E.g., Hartman v. Stumbo, 195 Kan. 634, 637, 408 P.2d 693 (1965)

("The burden remains always upon an appellant to show error in the ruling he seeks to 

overturn."). And while the City's Notice of Appeal conferred appellate jurisdiction over 

the district court's dismissal of both charges, the City's briefing included no argument as 

to the dismissal of the charge arising under W.M.O. 3.30.030.A. The City thus waived 

this argument. E.g., State v. Tracy, 311 Kan. 605, 610, 466 P.3d 434 (2020).
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It is not the role of the appellate court to second-guess the matters which the 

prosecutor chooses to appeal—or to waive through absence of briefing—based on the 

appellate court's own instincts about the ends of justice. By doing so here, the panel 

erred. We thus reverse the panel's reversal of the district court's dismissal of the 

municipal violation of W.M.O. 3.30.030.A.

In light of our decision, we deny as moot Trotter's remaining claims.

CONCLUSION

We affirm the panel's rejection of Trotter's Fourth Amendment claim as to the 

Fourth Amendment implications of W.M.O. 3.06.030.A. We hold W.M.O. 3.06.030.A. to 

be unconstitutionally overbroad. We also hold that the panel erred by sua sponte 

reversing the district court's dismissal of a second municipal charge (and the district 

court's vacating of the underlying municipal conviction) when the City failed to brief that 

dismissal. We therefore affirm in part and reverse in part the panel's judgment and affirm 

the district court's dismissal of Trotter's charges.