Summary of a Recent
Judicial Development in
Agritourism

Statute Banning Importation of Deer and Elk Held
Unconstitutionally Void for Vagueness

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Kentucky v. Looper, 294 S.W.3d 39 (Ky. Ct. App. 2009), the Kentucky Court of Appeals affirmed a trial court's decision holding that a Kentucky statute criminalizing "importation" of deer and elk was unconstitutionally void for vagueness because it did not provide defendants with fair notice of the possible criminal consequences of their conduct.

Background

Kentucky Revised Statute (KRS) 150.740, enacted in 2006 in response to the discovery of Chronic Wasting Disease among the Cervidae animal family (which includes elk, white-tailed deer, and mule deer) in West Virginia and Illinois, banned importation of cervids into the state of Kentucky. Id. at *1. In September 2007, the Kentucky Department of Fish and Wildlife arrested a man who had purchased five elk, one deer, two antelope, and twelve exotic sheep in Missouri and was travelling through Kentucky on his way to deliver the animals to a lodge in Tennessee. Id. Although the animals had been inspected and certified with duly issued health inspection papers and the Tennessee lodge had a lawful permit, the elk and deer were destroyed and a grand jury charged the man with six counts of "Importation of Animal Class Cervidae." Id. The circuit court dismissed the charges and ruled that KRS 150.740 was unconstitutional as being void for vagueness because it did "not give reasonable notice of the conduct it [sought] to prohibit" and did not define the word "importation," and the state appealed. Id.

Arguments

The state argued that the common, everyday meaning of "importation" was "to bring in." Id. at *2.

The defendant/appellee argued that an alternate common meaning of "importation" was to bring in "to remain . . . for sale or personal use." Id.

Analysis and Holdings

Examining the definition of the root word "import," the court detected a commercial aspect underlying the activity of bringing in goods, and acknowledged other court decisions holding that "merely transporting an item through an area is not the same as importing it." Id. The court concluded that it would be "reasonable for a defendant to have believed that as long as he did not unload cervids in Kentucky, he would not be importing them," and therefore affirmed the trial court's determination that KRS 150.740 was unconstitutionally void for vagueness. Id. at *3.

The case was decided on May 8, 2009.