City of Fargo v. Roehrich

Decision Date05 August 2021
Docket NumberNo. 20210023,20210023
Parties CITY OF FARGO, Plaintiff and Appellee v. Dennis Lee ROEHRICH, Defendant and Appellant
CourtNorth Dakota Supreme Court

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.

[¶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.
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 communication" is not defined. He claims his calls were for the purpose of legitimate communication because he contacted the officers about their handling of his son's car accident and traffic ticket and to inform the department about an officer's perjury, and none of the officers ever addressed or investigated his claim that an officer committed perjury. He contends it is not clear at what point communication that was legitimate changes to harassment under the ordinance.

[¶11] The phrase "legitimate communication" is not specifically defined in the ordinance, but the word "legitimate" is generally understood to mean "[g]enuine; valid." Black's Law Dictionary 1084 (11th ed. 2019). Although the phrase "no purpose of legitimate communication" may be subjective, the ordinance requires the person to act with a specific intent to be guilty of the offense. In Screws v. United States , 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (plurality), the Supreme Court recognized "the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid." The Court further explained, "[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of the law." Id. at 102, 65 S.Ct. 1031. The specific intent element removes the possibility that a person could be unaware of his criminal conduct and provides a reasonable person with adequate and fair warning of the prohibited conduct. See People v. Shack , 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706, 712 (1995).

[¶12] The harassment ordinance requires the defendant to have the intent to frighten or harass to be found guilty. Making a phone call that arguably does not have a legitimate purpose alone is not sufficient to violate the statute. The caller must make the phone call with the intent to frighten or harass another person. The combination of the specific intent element with the required conduct of repeated phone calls or other electronic communication with no legitimate purpose creates minimum guidelines for the reasonable police officer, judge, or jury and limits the dangers of arbitrary and discriminatory application. It also provides a reasonable person with adequate and fair warning of the prohibited conduct. We conclude the ordinance is not unconstitutionally vague on its face.

[¶13] Our decision is consistent with the decisions of other courts that have considered the constitutionality of similar laws. See, e.g. , United States v. Lampley , 573 F.2d 783, 787 (3rd Cir. 1978) (holding federal telephone harassment statute was not unconstitutionally vague and actor cannot claim confusion on prohibited conduct when statute requires the actor to intend to perform acts of harassment); von Lusch v. State , 39 Md.App. 517, 387 A.2d 306, 310 (Ct. Spec....

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  • Lehnerz v. Christopher
    • United States
    • North Dakota Supreme Court
    • August 16, 2022
    ...[¶15] There are limits on free speech and not all speech is constitutionally protected. City of Fargo v. Roehrich , 2021 ND 145, ¶ 21, 963 N.W.2d 248. "The First Amendment may protect the content of the speech, but the conduct used in delivering the speech may not be protected." Id. at ¶ 22......

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