City of Fargo v. Roehrich, 20210023

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVandeWalle, Justice.
Citation963 N.W.2d 248
Parties CITY OF FARGO, Plaintiff and Appellee v. Dennis Lee ROEHRICH, Defendant and Appellant
Docket NumberNo. 20210023,20210023
Decision Date05 August 2021

963 N.W.2d 248

CITY OF FARGO, Plaintiff and Appellee
v.
Dennis Lee ROEHRICH, Defendant and Appellant

No. 20210023

Supreme Court of North Dakota.

FILED AUGUST 5, 2021


William B. Wischer, Assistant City Attorney, Fargo, ND, for plaintiff and appellee; submitted on brief.

Stormy R. Vickers, Fargo, ND, for defendant and appellant; submitted on brief.

VandeWalle, Justice.

963 N.W.2d 250

[¶1] Dennis Roehrich appealed from a jury verdict finding him guilty of harassment and an order deferring imposition of sentence. He argues his conviction should be reversed because Fargo's harassment ordinance, Fargo Municipal Code § 10-0322, is unconstitutionally vague and his speech is protected by the First Amendment. We affirm, concluding the harassment ordinance is not unconstitutionally vague and Roehrich's conduct is not protected.

I

¶2] In May 2019, the City of Fargo charged Roehrich with harassment in violation of Fargo Municipal Code § 10-0322. The City alleged Roehrich made numerous vulgar and harassing telephone calls and left similarly offensive voicemail messages for several members of the Fargo Police Department over a two-year period and continued contacting members of the police department after receiving a cease and desist letter.

[¶3] The case was transferred to district court for a jury trial. At the close of the City's case, Roehrich orally moved that the harassment ordinance is unconstitutionally vague and that his speech is protected by the First Amendment. The district court denied Roehrich's motions. The jury found Roehrich guilty of harassment.

II

[¶4] Roehrich argues the harassment ordinance is unconstitutionally vague.

[¶5] Whether a law is unconstitutional is a question of law, which is fully reviewable on appeal. State v. Vetter , 2019 ND 262, ¶ 7, 934 N.W.2d 543. A party challenging the constitutionality of a statute or municipal ordinance has the burden to prove its constitutional infirmity. City of Fargo v. Salsman , 2009 ND 15, ¶ 23, 760 N.W.2d 123. We construe statutes and municipal ordinances to avoid constitutional infirmities, and we resolve any doubt in favor of the constitutionality of the statute or ordinance. Id. at ¶ 21. See also City of Belfield v. Kilkenny , 2007 ND 44, ¶ 8, 729 N.W.2d 120. In construing statutes, we give the words used in the statute their plain, ordinary, and commonly understood meaning, unless they are specifically defined or contrary intention plainly appears. State v. Ness , 2009 ND 182, ¶ 8, 774 N.W.2d 254.

[¶6] "The due process clauses of the State and Federal Constitutions require definiteness of criminal statutes so that the language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law." State v. Tweed , 491 N.W.2d 412, 419 (N.D. 1992) (quoting State v. Johnson , 417 N.W.2d 365, 368 (N.D. 1987) ) (citations omitted). A statute is unconstitutionally vague if it lacks "ascertainable standards of guilt, such that it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." State v. Tibor , 373 N.W.2d 877, 880 (N.D. 1985) (quotations and citations omitted). We have explained vague laws offend due process because they do not give fair warning and they allow for discriminatory enforcement:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.

[963 N.W.2d 251

Vague laws may trap the innocent by not providing fair warning. Secondly, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application.

Id. (quoting Grayned v. City of Rockford , 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ).

¶7] However, as we noted in State v. Schwalk , 430 N.W.2d 317, 320 (N.D. 1988) (quoting Rose v. Locke , 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) ):
"It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’ United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954) ; see Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ‘[i]n most English words and phrases there lurk uncertainties.’ Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913) ; United States v. National Dairy [Products] Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden."

[¶8] We have explained a law is not unconstitutionally vague if it meets the following two requirements:

(1) [T]he law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct. A law is not unconstitutionally vague if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.

Ness , 2009 ND 182, ¶ 6, 774 N.W.2d 254 (quotations and citations omitted).

[¶9] Roehrich was convicted of harassment in violation of Fargo Municipal Code § 10-0322. The relevant portion of the ordinance states:

A person is guilty of an offense if, with intent to frighten or harass another, he:

1. Makes a telephone call anonymously or in offensively coarse language;

2. Makes repeated telephone calls or other electronic communication, whether or not a conversation ensues, with no purpose of legitimate communication; or

3. Communicates a falsehood in writing or by electronic communication and causes mental anguish.

Fargo Municipal Code § 10-0322.

A

[¶10] Roehrich argues the ordinance is unconstitutionally vague because it criminalizes telephone calls with "no purpose of legitimate communication" and "legitimate

[963 N.W.2d 252

communication" is not defined. He claims his...

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