City of Billings v. Albert

• Decision Date: 03 March 2009
• Docket Number: No. DA 08-0140.,DA 08-0140.
• Parties: CITY OF BILLINGS, Plaintiff and Appellee, v. Charles Eugene ALBERT, Defendant and Appellant.
• Court: Montana Supreme Court

203 P.3d 828

2009 MT 63

CITY OF BILLINGS, Plaintiff and Appellee, v. Charles Eugene ALBERT, Defendant and Appellant.

No. DA 08-0140.

Supreme Court of Montana.

Submitted on Briefs January 28, 2009.

Decided March 3, 2009.

For Appellant: Elizabeth J. Honaker; Honaker Law Firm, Billings, Montana.

For Appellee: Brent Brooks, Billings City Attorney; Curtis L. Bevolden, Deputy City Attorney, Billings, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Charles Eugene Albert (Albert) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, affirming his conviction and sentence on two charges of storage of salvage by the Municipal Court of the City of Billings. We affirm.

¶ 2 Albert presents the following issues for review:

¶ 3 Whether Billings Municipal City Code (BMCC) 27-601(g) is unconstitutionally vague as applied to Albert.

¶ 4 Whether Albert was denied effective assistance of counsel.

¶ 5 Whether the Municipal Court erred in denying Albert's motion to dismiss for insufficient evidence.

¶ 6 Whether the District Court erred in determining Albert's sentence was legal.

BACKGROUND

¶ 7 Albert owns a residence on South 26th Street in Billings, Montana. On September 1, 2005 and September 22, 2006, Billings Code Enforcement Officer Don Vegge (Vegge) charged Albert with storage of salvage, in violation of BMCC 27-601(g). A jury trial on both counts was held in Municipal Court on March 28, 2007.

¶ 8 Counsel for the City of Billings (City) presented testimony from Vegge and two other City Code Enforcement Officers in its case in chief. The witnesses testified regarding complaints received from Albert's neighbors, their repeated attempts to work with Albert to clean up his property, and the facts surrounding issuance of the two citations. Numerous photographs depicting Albert's property were also admitted as evidence.

¶ 9 Albert was represented by counsel. Albert did not testify and his counsel presented no case in chief. Albert's counsel moved for a directed verdict of acquittal at the close of the City's case.¹ Judge Colette B. Davies denied the motion.

¶ 10 The jury found Albert guilty on both charges. Judge Davies sentenced Albert to six months in jail and a $500 fine, all suspended, on each count. The conditions for suspension were that Albert clean up his property to the satisfaction of the Code Enforcement Division by April 30, 2007, and that he receive regular treatment from Dr. Van Dyke and take his medication as prescribed. Albert appealed to the District Court, which affirmed his convictions and sentence. Albert appeals the District Court decision.

STANDARD OF REVIEW

¶ 11 Statutes enjoy a presumption of constitutionality. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469. The person challenging a statute's constitutionality bears the burden of proving it unconstitutional. Knudson, ¶ 12. The constitutionality of a statute is a question of law. Knudson, ¶ 12. We review the district court's application of the Constitution to determine if it is correct. Knudson, ¶ 12. Our review of constitutional questions is plenary. Knudson, ¶ 12.

¶ 12 Ineffective assistance of counsel claims are mixed questions of fact and law that we review de novo. State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, 70 P.3d 738.

¶ 13 A motion to dismiss for insufficient evidence (formerly a motion for a directed verdict of acquittal) is appropriate in a criminal trial if, viewing the evidence in a light most favorable to the prosecution, "no evidence exists upon which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt." State v. Bomar, 2008 MT 91, ¶ 13, 342 Mont. 281, 182 P.3d 47; State v. Swann, 2007 MT 126, ¶ 16, 337 Mont. 326, 160 P.3d 511; see § 46-16-403, MCA. We review a district court's denial of such a motion de novo, because evidence is either sufficient or it is not. Bomar, ¶ 13; Swann, ¶¶ 16-19.

¶ 14 We review a criminal sentence for legality only. State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648.

DISCUSSION

¶ 15 Whether Billings Municipal City Code (BMCC) 27-601(g) is unconstitutionally vague as applied to Albert.

¶ 16 A criminal statute is unconstitutionally vague if "a person is required to speculate as to whether his contemplated course of action may be subject to criminal penalties." State v. Mainwaring, 2007 MT 14, ¶ 18, 335 Mont. 322, 151 P.3d 53. Both the United States Constitution and the Montana Constitution protect against vague statutes that infringe a citizen's right to due process. U.S. Const. amend. XIV, § 1; Mont. Const. art. II, § 17. The void for vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Knudson, ¶ 18 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)).

¶ 17 Relying on the United States Supreme Court's reasoning in Kolender, this Court developed a two-part test to determine whether a statute is unconstitutional as applied to a particular situation. State v. Dixon, 2000 MT 82, ¶ 27, 299 Mont. 165, 998 P.2d 544. First, we consider whether actual notice was given to citizens. Dixon, ¶ 27. Second, we ask whether the statute contains minimal guidelines sufficient to govern law enforcement. Dixon, ¶ 27.

¶ 18 Albert argues that BMCC 27-601(g) is unconstitutionally vague as applied to him, infringing on his right to due process. Albert contends that the substantive terms in the municipal ordinance are not defined, thus the ordinance failed to provide actual notice of what conduct was proscribed and failed to provide minimal guidelines sufficient to govern City Code Enforcement Officers. In essence, Albert claims that there is no reasonable way to ascertain from the ordinance what property cannot legally remain in his yard for over five days.

¶ 19 The pertinent part of BMCC 27-601(g) reads, "[p]ermanent open storage of salvage, inoperable vehicles, rubbish or other chattel shall not be permitted in any zoning district." The ordinance defines "permanent storage" as "storage of chattel, salvage, rubbish or junk for a period exceeding five (5) days without moving." BMCC 27-601(a). "Open storage" is defined as "the storage for a period of five (5) days or more of an unlicensed or inoperable vehicle, appliance, implement or machinery, or any part thereof, outside of an enclosed structure." BMCC 27-601(a). Albert argues that inconsistencies between these two definitions make understanding what constitutes "permanent open storage" unconstitutionally vague.

¶ 20 Additional definitions in the Billings Municipal City Code diminish these claimed inconsistencies. In particular, "junk" is defined as:

any worn out, cast off or discarded article or material which is ready for destruction or has been collected or stored as salvage, for conversion to some other use or for reduction into components. Junk includes but is not limited to old or scrap brass, rope, rags, batteries, paper, tires, rubber debris or waste, iron, steel and other old or scrap ferrous or non-ferrous material.

BMCC 27-601(a). This definition was provided to the jury. When viewed as a whole, BMCC 27-601(g) is thus increasingly specific on its face.

¶ 21 There was nothing vague about how the ordinance was applied to Albert. Albert received multiple warnings by City Code Enforcement Officers before he was cited for violating the ordinance. Officer Vegge described at trial how he visited Albert on several occasions in response to complaints received from neighbors. Vegge explained what items needed to be removed and even offered to assist in removal efforts. Vegge testified as to the following items, which he considered trash, debris, junk or garbage in Albert's yard: all kinds of bicycle parts and tire rims hanging on the house or in trees; piles of junk wood that could not be used; plastic and metal containers, some rusted or covered in dust and debris; metal barrels; lots of cardboard boxes strewn around, both empty and full of garbage or food; a trailer; car batteries; ladders against the house; an old umbrella; lots of things in piles or covered by a tarp; and other items hanging off the house. Clearly these items are within the meaning of BMCC 27-601(g). Vegge's warnings constituted actual notice to Albert of what was required for him to comply with the ordinance.

¶ 22 Having concluded that Albert was given actual notice of what he was required to remove from his yard, the remaining question under the Dixon test is whether the ordinance contains minimal guidelines sufficient to govern law enforcement "in a manner that does not encourage arbitrary and discriminatory enforcement." Dixon, ¶ 27 (quoting Kolender, 461 U.S. at 357, 103 S.Ct. at 1858). Officer Vegge described how the City Code Enforcement Division enforces BMCC 27-601(g) at trial. Enforcement is complaint generated. This avoids "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Dixon, ¶ 27 (quoting Kolender, 461 U.S. at 358, 103 S.Ct. at 1858). The City's enforcement process does not encourage arbitrary and discriminatory enforcement because officers only respond to citizen complaints. Furthermore, a certain degree of subjective judgment is inherent in many criminal statutes. For example, subjective judgment is required to determine what constitutes "careful and prudent" driving when enforcing § 61-8-302, MCA, prohibiting careless driving. Similarly, § 45-8-101, MCA, prohibiting disorderly conduct requires subjective judgment to determine what conduct "disturbs the peace." Likewise, the minimal guidelines provided by BMCC 27-601(g) are sufficient to govern law enforcement.

¶ 23 Since Albert has not proven BMCC 27-601(g) unconstitutional, we...