Court
District Court of Elk County, Kansas (originally District Court of Chatauqua County, Kansas)
Filed
Decided
Judge
Me. Justice Gray
Posture
Criminal libel prosecution against E. Keifer, with jury verdict acquitting Keifer and finding prosecuting witness Lowe liable for costs under Kansas statute
Prosecuting witness (1)
Sandy Lowe (S. Lowe)
Mr. George Chandler
v.
Defendant in error (1)
State of Kansas
No appearance
Decedent / victim: Not applicable
Other parties: E. Keifer — Defendant in the underlying criminal libel prosecution, J. Y. Beekman — County attorney of Chatauqua County, Kansas
Overview
Judgment affirmed. The Kansas statute as applied does not violate the Fourteenth Amendment.
Case summary
Lowe v. Kansas involves a constitutional challenge to a Kansas statute (General Statutes of 1889, c. 82, § 326) that allows a jury, in a criminal case, to find that a prosecution was instituted without probable cause and from malicious motives, and to hold the prosecuting witness liable for costs and possible jail commitment. Sandy Lowe, the prosecuting witness in a criminal libel case against E. Keifer, was found liable under this statute after Keifer's acquittal. Lowe appealed, arguing the statute violated the Fourteenth Amendment's Due Process and Equal Protection Clauses. The U.S. Supreme Court affirmed, holding the statute was consistent with historical practices and did not deny Lowe a hearing, and it applied equally to all, thus satisfying constitutional requirements.
Abstract
A prosecuting witness in a criminal libel case was held liable for costs and possible jail after the defendant's acquittal under a state statute allowing juries to find prosecutions instituted without probable cause and from malicious motives. The witness challenged the statute as violating the Fourteenth Amendment's Due Process and Equal Protection Clauses. The U.S. Supreme Court affirmed, holding the statute consistent with historical practices, providing a hearing, and applying equally to all.
Opinion of the court
Majority
opinionMe. Justice Grayjoined by Majority of the court
opinionMe. Justice Grayjoined by Majority of the court
- Statute aligns with historical English and American law on costs
- Lowe had right to be heard at trial; record shows no denial
- Statute is less burdensome than absolute cost liability
- Equal protection satisfied as statute is non-arbitrary and general
Dissenting opinions
1Dissenting Me. Justice Brown
Jurisdiction
not challengedStatutory basis
Fourteenth Amendment of the Constitution of the United States
Subject matter
Federal question jurisdiction under the Fourteenth Amendment (due process and equal protection)
Jurisdictional holding
Not applicable
Jurisdictional facts
- Writ of error to the Supreme Court of the State of Kansas
- Case involves constitutional challenge to Kansas statute
Procedural posture
Posture at trial
Criminal libel prosecution against E. Keifer, with jury verdict acquitting Keifer and finding prosecuting witness Lowe liable for costs under Kansas statute
Posture on appeal
Direct appeal from Kansas Supreme Court affirming judgment against Lowe
Preserved issues
- Constitutional challenge under Fourteenth Amendment (due process and equal protection)
Subsequent history
Petition for rehearing
not filed
Rehearing en banc
not filed
Petition for certiorari
not filed
Remand proceedings
Not applicable
Mandate issued
Not specified
Legal categories
Criminal
Case record
Full case name
LOWE v. KANSAS
Docket number
No. 174
Court
Supreme Court of the United States
Trial court
District Court of Elk County, Kansas (originally District Court of Chatauqua County, Kansas)
Trial court judge
Not specified
Filed
Decided
Opinion author
Me. Justice Gray
Opinion type
published
Precedential status
precedential
Judges on panel
Me. Justice GrayMe. Justice Brown
Issues & holdings
2
Issues raised
2
affirmed
2
Holdings
1
Whether Kansas General Statutes of 1889, c. 82, § 326, as applied to Lowe, contravenes the Fourteenth Amendment by depriving him of liberty or property without due process of law
affirmed
Standard of review
de novo
Disposition rationale
Statute is due process as it accords with historical law and usage; Lowe had right to be heard at trial
Preservation
Issue preserved for review
2
Whether the statute denies Lowe the equal protection of the laws under the Fourteenth Amendment
affirmed
Standard of review
de novo
Disposition rationale
Statute applies to all persons under like circumstances and is not arbitrary
Preservation
Issue preserved for review
Holdings of the court
Due process challenge to Kansas statute
The statute does not violate due process as it is in substantial accord with historical law and usage, and Lowe had the right to be heard at trial
Court traced history of cost awards against prosecutors in England and U.S., noted statute imposes less liability than absolute cost awards, and found no denial of hearing opportunity based on record
Majority (with dissent)binding precedent
Equal protection challenge to Kansas statute
The statute does not deny equal protection as it applies equally to all under similar circumstances
Cited Duncan v. Missouri for principle that non-arbitrary, generally applicable laws satisfy equal protection
Majority (with dissent)binding precedent
Error analysis
- Kansas statute deprives Lowe of due process by not allowing him to be heard on probable cause and malicious motives — constitutional · no error foundNot applicable · not applicable
- Kansas statute denies equal protection — constitutional · no error foundNot applicable · not applicable
Statutory interpretation
1Statute
Kansas General Statutes of 1889, c. 82, § 326
Question
Whether statute complies with due process and equal protection under Fourteenth Amendment
Court's reading
Statute is constitutional as it aligns with historical law, provides hearing opportunity, and applies generally
Canons applied
Historical practice analysisSubstantial accord test
no legislative history
Burden of proof
Prosecution burden
Beyond a reasonable doubt for criminal libel charge against Keifer
Defence burden
On defendant (Keifer) to prove want of probable cause and malicious motives by Lowe for cost liability under statute
Burden met
true
Burden-shifting issues
- Statute places burden on defendant to prove prosecutor's lack of probable cause and malicious motives for cost award
Standards of review
- Constitutionality of Kansas statute under Fourteenth Amendment — de novo The court reviews constitutional questions de novo, as indicated by its analysis of due process and equal protection without deference to lower courts
Timeline
Procedural path
Criminal libel filedVenue transferredJury trial heldJury acquitsMotion for new trialMotions deniedCosts imposedState appeal affirmedFederal review submittedFederal judgment affirmed
8
Events
— Not specified (trial date)
Span
filingcited in opinion
Criminal libel information filed against E. Keifer, with affidavit by Sandy Lowe
Outcome: Information filed
Initiates the prosecution that leads to the constitutional challenge
Due processEqual protection
filingcited in opinion
Case submitted to U.S. Supreme Court
Outcome: Submitted
Federal constitutional review initiated
Due processEqual protection
rulingcited in opinion
U.S. Supreme Court affirmed judgment, upholding Kansas statute
Outcome: Affirmed
Final disposition on constitutional grounds
Due processEqual protection
Not specifiedrulingcited in opinion
Court adjudged Lowe to pay costs and be committed to jail until paid
Outcome: Judgment against Lowe
Imposition of penalty under Kansas statute
Due processEqual protection
Not specifiedappeal eventcited in opinion
Lowe appealed to Kansas Supreme Court, which affirmed judgment
Outcome: Affirmed
State court upheld the statute and verdict
Due processEqual protection
Not specified (after September 28, 1889)procedural eventcited in opinion
Case transferred to Elk County district court upon defendant's motion for change of venue
Outcome: Transfer granted
Venue change for trial
Not specified (post-trial)motioncited in opinion
Lowe moved to set aside verdict and for new trial, arguing he was not heard in his defense
Outcome: Motions denied
Lowe's attempt to challenge the verdict procedurally
Due process
Not specified (trial date)trial eventcited in opinion
Jury trial held; jury acquitted Keifer and found Lowe instituted prosecution without probable cause and from malicious motives
Outcome: Verdict for Keifer and against Lowe
Core event leading to Lowe's liability for costs under Kansas statute
Due processEqual protection
Facts & evidence
Incident
Date
Not specified
Location
Chatauqua County, Kansas
Key facts
6 facts- Lowe swore to an affidavit supporting a criminal libel information against E. Keifer
- The case was transferred to Elk County for trial
- Jury acquitted Keifer and found Lowe instituted prosecution without probable cause and from malicious motives
- Court ordered Lowe to pay costs ($1053.40) and be committed to jail until paid
- Lowe appealed to Kansas Supreme Court, which affirmed
- Lowe then appealed to U.S. Supreme Court on Fourteenth Amendment grounds
Disputed questions
- Whether Lowe had opportunity to be heard on the issue of probable cause and malicious motives at trial
Procedural history
5 steps- Information filed September 28, 1889
- Trial in district court with jury verdict
- Lowe's motions to set aside verdict and for new trial denied
- Appeal to Kansas Supreme Court affirmed
- Writ of error to U.S. Supreme Court
Evidence in the record
Direct
- Lowe's affidavit supporting the information
Testimonial
- Oral testimony at trial (omitted from record)
Documentary
- Information filed by county attorney
- Verdict document
- Bill of exceptions
Circumstantial
- Jury's finding of malicious motives and lack of probable cause based on trial testimony
Jury
Jury selection issues
Not specified
Voir dire process
Not specified
Jury composition
Not specified
Verdict
Not guilty for Keifer; finding that Lowe instituted prosecution without probable cause and from malicious motives
Verdict date
Not specified
Deliberation time
Not specified
Jury instructions given
- Court read Kansas statutes §§ 309 and 326
- Jury instructed they could enforce § 326 if they found it applicable
- Jury told they are judges of both law and fact in libel cases under § 309
Sentencing
Sentence imposed
Lowe ordered to pay costs of $1053.40 and be committed to county jail until paid or bond posted
Sentence type
discretionary
Sentencing date
Not specified
Sentencing guidelines range
Not applicable
Departures or variances
Not applicable
Restitution ordered
Not applicable
Fines ordered
Costs of $1053.40
Supervised release
Not applicable
Sentence challenged on appeal
true
Special conditions
- Bond option to pay costs within six months
Sentencing issues
- Constitutionality of cost imposition and commitment under Kansas statute
Objects of relevance
County jail (place of commitment for Lowe)
Policy considerations
- Need to check unjust litigation by holding prosecutors accountable for costs
- Balance between protecting defendants from malicious prosecutions and ensuring prosecutors have fair hearing
Authorities
Cited authorities (4)
Murray v. Hoboken Co., 18 How. 272
appliedprecedentCited for due process analysis requiring substantial accord with historical law
Dent v. West Virginia, 129 U. S. 114
appliedprecedentCited for due process analysis
Duncan v. Missouri, 152 U. S. 377
appliedprecedentCited for equal protection analysis that statute must not be arbitrary
State v. Ensign, 11 Neb. 529
citedpersuasiveCited in dissent as persuasive authority finding similar statute unconstitutional
Related cases (6)
Murray v. Hoboken Co., 18 How. 272
precedentCited for due process analysis
Dent v. West Virginia, 129 U. S. 114
precedentCited for due process analysis
Duncan v. Missouri, 152 U. S. 377
precedentCited for equal protection analysis
In re Ebenhack, 17 Kansas, 618
lower court decisionKansas Supreme Court upheld similar statute
State v. Zimmerman, 31 Kansas, 85
lower court decisionCited on jury power and verdict review
State v. Ensign, 11 Neb. 529
persuasiveNebraska court found similar statute unconstitutional, cited in dissent
Statutes
- Kansas General Statutes of 1889, c. 82, § 326
- Kansas General Statutes of 1889, c. 31, § 309
- U.S. Revised Statutes § 975
- U.S. Revised Statutes § 970
Standards & doctrines
- Due process analysis based on historical accord
- Equal protection analysis under Duncan v. Missouri
Legal principles applied
- Substantial accord with historical law satisfies due process
- Non-arbitrary, general statutes satisfy equal protection
Notable quotes
“Whether the mode of proceeding, prescribed by this statute, and followed in this case, was due process of law, depends upon the question whether it was in substantial accord with the law and usage in England before the Declaration of Independence, and in this country since it became a nation, in similar cases.”Me. Justice Gray — Majority opinion analyzing due process under Fourteenth AmendmentEstablishes historical test for due process in this context
“It is a fatal objection to the statute that it undertakes to settle in one trial the rights of two parties to a criminal cause whose interests are adverse, and to try two distinct and disconnected issues... without being able to lay before the jury the testimony which would tend to his acquittal.”Me. Justice Brown — Dissent arguing statute violates due processHighlights procedural unfairness in trying prosecutor's liability alongside defendant's guilt
Index terms90
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Entities and documentation
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Action type
affirmed
Target
Judgment of Kansas Supreme Court upholding cost award against Lowe
Appealed from
Supreme Court of the State of Kansas
Context
U.S. Supreme Court affirmed the judgment, holding Kansas statute constitutional under Fourteenth Amendment
Scope
full
Further instructions
None
Disposition vote
Majority with dissent
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