State v. Brown

Decision Date18 August 2009
Docket NumberNo. 20080257.,20080257.
Citation771 N.W.2d 267,2009 ND 150
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Lori Lee BROWN, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Charles Justin Sheeley (argued), Assistant State's Attorney, and Kara Helgeson (on brief), third-year law student, Fargo, N.D., for plaintiff and appellee.

Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.

Paul Raymond Emerson (on brief), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., amicus curiae.

KAPSNER, Justice.

[¶ 1] Lori Brown appeals from a criminal judgment finding she violated the Cass County Animal Control Ordinance ("the Ordinance"). We affirm, concluding the Ordinance does not constitute an unconstitutional delegation of legislative authority; the Ordinance does not exceed the county's statutory authority; the Ordinance is not unconstitutionally overbroad or vague; the information satisfied the applicable procedural requirements; and Brown was not entitled to a jury trial.


[¶ 2] Brown and Frances Mayer are neighbors in a rural area of Cass County, and their homes are approximately 100 feet apart. Mayer testified that Brown keeps three large dogs on her property, and that the dogs bark excessively. Mayer also testified that, on October 20, 2007, all three of the dogs barked non-stop for longer than an hour. On that occasion, Mayer videotaped the barking dogs and the tape was admitted into evidence at trial.

[¶ 3] On the morning of October 24, 2007, the dogs were again barking, and Mayer called Deputy Sheriff Greg Dawkins of the Cass County Sheriff's Office to report the dogs. Deputy Dawkins traveled to Mayer's home and, while parked on the township road next to Mayer's home, heard the dogs bark continually for five minutes. Deputy Dawkins and Mayer then stood outside Mayer's home for approximately thirty minutes, and the dogs barked the entire time.

[¶ 4] On December 18, 2007, Brown was issued a citation for violating the Ordinance. Brown filed numerous motions to dismiss, challenging the validity of the Ordinance and the procedures employed, and demanded a jury trial. The district court rejected Brown's assertions that the charging instruments were defective; that the Ordinance was invalid, superseded by state law, or unconstitutional; that Cass County's Home Rule Charter was defective; that her dogs were part of an agricultural operation which could not be declared a nuisance; and that she was entitled to a jury trial.

[¶ 5] The case was tried to the district court, which found Brown's dogs had barked continuously and excessively on October 20 and 24, 2007, thereby constituting a public nuisance under the Ordinance. The court found Brown had committed an infraction under the Ordinance and ordered her to pay a fifty dollar fine. Brown appealed.


[¶ 6] Brown contends that the Ordinance is unconstitutional, arguing "North Dakota's legislative power cannot be delegated to other political subdivisions" and only the state legislature can create a crime. Brown's arguments demonstrate a basic misunderstanding of the law of political subdivisions in this state.

[¶ 7] In support of her sweeping assertions, which would essentially wipe out most, if not all, county and municipal ordinances in this state, Brown cites to cases expressing the well-settled general principle that there are constitutional limitations upon delegation of legislative authority. Every case cited by Brown, however, addressed the legislature's power to delegate legislative authority to executive branch agencies or officials, or private persons, organizations, or cooperatives. See Kelsh v. Jaeger, 2002 ND 53, 641 N.W.2d 100; MCI Telecomm. Corp. v. Heitkamp, 523 N.W.2d 548 (N.D.1994); Stutsman County v. State Historical Soc'y, 371 N.W.2d 321 (N.D.1985); Montana-Dakota Utils. Co. v. Johanneson, 153 N.W.2d 414 (N.D.1967); Anderson v. Peterson, 78 N.D. 949, 54 N.W.2d 542 (1952); State ex rel. City of Fargo v. Wetz, 40 N.D. 299, 168 N.W. 835 (1918); State ex rel. Miller v. Taylor, 27 N.D. 77, 145 N.W. 425 (1913); State ex rel. Rusk v. Budge, 14 N.D. 532, 105 N.W. 724 (1905); People v. Grant, 242 A.D. 310, 275 N.Y.S. 74 (1934). Brown cites no authority suggesting the legislature may not delegate legislative power to the governing bodies of political subdivisions, which are themselves legislative bodies with the power to enact ordinances within their local jurisdiction.

[¶ 8] In fact, some of the cases cited by Brown expressly recognize that limitations on delegation of legislative authority are not all-encompassing, stating that legislative powers may not be delegated "[e]xcept as otherwise provided in" or "[u]nless expressly authorized by" the state constitution. Kelsh, 2002 ND 53, ¶ 21, 641 N.W.2d 100; MCI, 523 N.W.2d at 554; Stutsman County, 371 N.W.2d at 327. This Court has acknowledged that the legislature may delegate "[e]ven purely legislative powers" to political subdivisions if authorized to do so by the constitution. Southern Valley Grain Dealers Ass'n v. Board of County Comm'rs, 257 N.W.2d 425, 434 (N.D.1977); Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405, 410 (N.D. 1971). The constitution empowers the legislature to provide for the establishment and government of political subdivisions, with such powers as provided by law, and provides for home rule if adopted by a county or city. N.D. Const. art. VII, §§ 2 and 6. Cass County has adopted a home rule charter in accordance with N.D. Const. art. VII, § 6. Under N.D. Const. art. VII, §§ 2 and 6, the legislature may delegate legislative powers, including the authority to create criminal penalties for violations of ordinances, to a home rule county. See N.D.C.C. §§ 11-09.1-05(5) and 11-09.1-13.

[¶ 9] We conclude the Ordinance does not constitute an unconstitutional delegation of legislative authority.


[¶ 10] Brown next contends that the legislature "has statutorily prohibited the county from attempting to regulate dogs as public nuisances."

[¶ 11] The Cass County Animal Control Ordinance provides, in part, that "[a]ny animal which barks, whines, howls or makes other sounds common to its species in an excessive or continuous manner" is a public nuisance. The Ordinance further provides that "[n]o person shall own or harbor within the boundaries of Cass County a public nuisance as defined in this ordinance." A first offense under the Ordinance is an infraction carrying a fine of fifty dollars.

[¶ 12] Brown contends the Ordinance exceeds the authority conferred upon home rule counties by N.D.C.C. § 11-09.1-05(5), which provides that the county may:

Provide for the adoption, amendment, repeal, initiative, referral, enforcement, and civil and criminal penalties for violation of ordinances, resolutions, and regulations to carry out its governmental and proprietary powers and to provide for public health, safety, morals, and welfare. However, this subsection does not confer any authority to regulate any industry or activity which is regulated by state law or by rules adopted by a state agency.

Brown urges a broad interpretation of the second sentence of the subsection, contending the state has "usurped the subject area, having previously created state law or regulations regarding dog activities." In support of her argument, Brown relies upon N.D.C.C. § 42-03-01, which provides that "[a]ny dog that habitually molests a person traveling peaceably on the public road or street is a public nuisance." Brown contends that, because the state has defined "dog activities" which constitute a public nuisance, the county is precluded by N.D.C.C. § 11-09.1-05(5) from declaring any other dog-related activity a public nuisance.

[¶ 13] The broad interpretation of the second sentence of N.D.C.C. § 11-09.1-05(5) urged by Brown, which would preclude action by the county if the state has exercised any authority within a broad subject area by state law or rule, would virtually eliminate the county's authority granted in the first sentence of N.D.C.C. § 11-09.1-05(5) to enact ordinances to carry out its governmental and proprietary powers and to provide for the public health, safety, morals, and welfare within its jurisdiction. It is hard to imagine many subject areas which are not touched in some way by the myriad state laws and rules currently in effect. If, as Brown suggests, the county is powerless if any state law or rule affects the subject area in question, there would appear to be very little subject matter left upon which the county may act. In effect, Brown's interpretation of the statute would with one hand purportedly give the county authority to enact ordinances to carry out its governmental and proprietary powers and to provide for public health, safety, morals, and welfare, but would with the other hand wipe out virtually all vestiges of that authority.

[¶ 14] Furthermore, Brown's analysis wholly ignores other provisions in N.D.C.C. ch. 11-09.1 which clearly indicate the legislature envisioned there would be instances when an ordinance adopted by a home rule county would apply to the same subject matter as, and conflict with, state law. The legislature expressly provided that, in such cases, the county ordinance would ordinarily supersede state law:

The charter and the ordinances made pursuant to the charter in county matters must be liberally construed to supersede within the territorial limits and jurisdiction of the county any conflicting state law except for any state law as it applies to cities or any power of a city to govern its own affairs, without the consent of the governing body of the city.

N.D.C.C. § 11-09.1-04. In addition, the concluding paragraph of N.D.C.C. § 11-09.1-05, the code provision containing the disputed language in subsection (5) relied upon by Brown, provides:

The people of all counties coming within this chapter have the full right of self-government in all matters...

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