State v. Hanson

• Citation: 256 N.W.2d 364
• Decision Date: 27 July 1977
• Docket Number: No. 584,584
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. L. S. HANSON, a/k/a Leonard S. Hanson, Defendant and Appellee. Crim.
• Court: North Dakota Supreme Court

Page 364

256 N.W.2d 364

STATE of North Dakota, Plaintiff and Appellant, v. L. S. HANSON, a/k/a Leonard S. Hanson, Defendant and Appellee.

Crim. No. 584.

Supreme Court of North Dakota.

July 27, 1977.

David L. Peterson, Sp. Asst. Atty. Gen., Bismarck, for plaintiff and appellant State of North Dakota.

Kermit Edward Bye, of Vogel, Vogel, Brantner & Kelly, Fargo, for defendant and appellee.

VOGEL, Justice.

This is an appeal by the State of North Dakota from an order of the district court granting a writ of prohibition. The writ ordered that the State was forever barred from taking any further proceedings against Leonard S. Hanson, the defendant. The court dismissed the complaint. We reverse and remand for further proceedings.

The case arose when Hanson, the Sheriff of Sheridan County, was charged by complaint with committing the crime of reckless endangerment. Because of the public office held by Hanson, the proceedings were transferred to an alternate County Justice and the responsibility for the prosecution was transferred to a Special Assistant Attorney General. After an amendment to the complaint, the matter was set for trial. Prior to trial, Hanson filed a motion to dismiss the complaint on the ground that North Dakota's reckless-endangerment statute (§ 12.1-17-03, N.D.C.C.) is unconstitutional. At that time, Hanson also asked for a bill of particulars.

The presiding county justice denied both the motion to dismiss and the motion for a bill of particulars. Hanson appealed to district court, and the State moved to dismiss the appeal on the ground that the orders were not appealable. At that time, Hanson did not file a brief in response to the State's motion to dismiss the appeal. A hearing was scheduled. At that hearing the district court advised Hanson that the orders in question were not appealable orders, but indicated to Hanson that he had one week to file a brief in response to the State's motion to dismiss. Hanson then filed a return to the State's motion and also asked for a writ of prohibition.

The State filed a return to the application for the writ, arguing that a writ of prohibition could not be used to test the constitutionality of a statute, and that, in any event, the statute in question was not unconstitutional. The district court issued the writ, holding that it was a proper vehicle to test the constitutionality of the statute, and holding that the reckless-endangerment statute failed to set an ascertainable standard of guilt, in that it was vague, indefinite, and overbroad. The writ also stated that the statute allowed different degrees of punishment for the same acts committed under the same circumstances by persons in similar situations and therefore it violated the Equal Protection Clauses of the United States and North Dakota Constitutions.

The State appealed to this court, and Hanson moved to dismiss the appeal on the ground that an order granting a writ of prohibition and dismissing a complaint is not an order which may be appealed by the State. We held to the contrary in State v. Hanson, 252 N.W.2d 872 (N.D.1977), stating that such an order was appealable by the State and, furthermore, that a writ of prohibition is a proper method of attacking the constitutionality of a statute. We denied Hanson's motion to dismiss, and the merits of the appeal are before us now.

The question to be decided on this appeal is whether the reckless-endangerment statute is constitutional. The statute provides:

"A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person's safety is actually jeopardized." Sec. 12.1-17-03, N.D.C.C.

Although the State is the appellant here, and urges the upholding of the statute, we will approach the issue by analyzing Hanson's contentions.

I

The first theory urged by Hanson is that the phrase "creates a substantial risk of serious bodily injury or death" is vague and general and fails to set forth an ascertainable standard of guilt. He contends that it merely prohibits the doing of an act which might in some way injure another.

Before embarking on an analysis of Hanson's contention, we repeat the well-recognized rules of construction summarized in State v. Hagge, 211 N.W.2d 395 (N.D.1973). Acts of the Legislature enjoy a presumption of constitutionality, and to rebut that presumption it must be shown that they clearly violate some provision of the State or Federal Constitutions. In addition, statutes are to be construed practically, construing words in their ordinary sense and determining legislative intent from the statute as a whole. If there are two possible constructions to a statute, we choose the one which, without doing violence to the statute, will render it valid. State v. Hagge, supra, 211 N.W.2d at 397, and cases cited therein.

Hanson compares the reckless-endangerment statute to the last sentence of the reckless-driving statute in effect at the time of State v. Hagge, ¹ a statute saved from unconstitutionality by language preceding the last sentence, which better defined the proscribed conduct. Since the reckless-endangerment statute has no such saving language, Hanson asserts that it is unconstitutionally vague.

In order that a criminal statute may stand when so attacked, the statute must set forth an ascertainable standard of guilt. The requirements were stated in State v. Julson, 202 N.W.2d 145, 152 (N.D.1972), and quoted in State v. Hagge, supra, 211 N.W.2d at 397. What is necessary is that

". . . the language, when measured by common understanding and practices, give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law."

As Hanson points out, citing Hagge, supra, if the reckless-driving statute had merely made unlawful the driving of a vehicle in a manner endangering life, limb, or property, it would have been declared to have failed the test set forth above. However, the statute included a description of the type of conduct, or standard of conduct, required to avoid culpability for reckless driving. The requirement of driving in a careful and prudent manner, with due regard to road and traffic conditions, gave adequate warning of the conduct proscribed and allowed fair administration by judges and juries.

In the instant statute, we have no similar designation of acceptable conduct in the quoted section. However, the standard is supplied by applicable statutory language found elsewhere in the Criminal Code and in the title to the section.

The reckless-endangerment statute states a culpability only in its title, "Reckless endangerment." No culpability requirement is mentioned anywhere in the body of the statute itself. However, Section 12.1-02-02, subsection 2, N.D.C.C., provides that if a statute does not specify any culpability and does not provide that a person may be guilty without culpability, the culpability that is required is willfully. "Willfully" is defined in Section 12.1-02-02, subsection 1-e, as "intentionally, knowingly, or recklessly."

In addition, there is ample authority in North Dakota to support our consideration of the statute's title in determining the required culpability. Northwestern Bell Telephone Co. v. Hagen, 234 N.W.2d 841 (N.D.1975); First State Bank of Cooperstown v. Ihringer, 217 N.W.2d 857 (N.D.1974); In re Estate of Jensen, 162 N.W.2d 861 (N.D.1968); In re Berg's Estate, 72 N.D. 52, 4 N.W.2d 575 (1942); Olson v. Erickson, 56 N.D. 468, 217 N.W. 841 (1928).

When we combine the implied culpability provided by Section 12.1-02-02, subsection 2, with our responsibility to consider the title of a statute in clarifying the body and determining legislative intent, we are persuaded that the culpability required for the instant statute is recklessly.

If "recklessly" describes the proscribed conduct sufficiently to meet the requirements of Hagge, then the reckless-endangerment statute is not unconstitutionally vague. We hold that it meets the constitutional requirements of Hagge and that there is no denial of due process.

"Recklessly" is defined in Section 12.1-02-02, subsection 1-c. A person engages in conduct

"c. 'Recklessly' if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, except that, as provided in section 12.1-04-02, awareness of the risk is not required where its absence is due to self-induced intoxication."

This language, as commonly understood, does give adequate warning of the conduct proscribed. If a person engages in conduct whereby he consciously and unjustifiably disregards a substantial risk that his conduct will result in death or serious bodily injury, then he has engaged in conduct proscribed by the reckless-endangerment statute. The language is sufficiently explicit to enable a person to determine what conduct renders him liable under the statute.

We believe that the boundaries of the proscribed conduct are sufficiently distinct for judges and juries to fairly administer the law. The process by which a judge or a jury determines whether there has been a gross deviation from acceptable standards of conduct (the "recklessly" test) is analogous to the process by which one determines whether there has been a deviation from the standard of reasonable care, a much-used legal test. The degree of deviation is different, in that "reckless" requires a gross deviation. The circumstances involved are different, in that "recklessness" requires an act done in conscious and unjustifiable disregard of the risks. However,...