State v. Hofland
| Decision Date | 27 August 2004 |
| Docket Number | No. 2003–265.,2003–265. |
| Citation | 151 N.H. 322,857 A.2d 1271 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Randall B. HOFLAND. |
Peter W. Heed, attorney general (Michael A. Delaney, senior assistant attorney general, on the brief), for the State.
Randall B. Hofland, by brief, pro se.
Paul F. Cavanaugh, city solicitor, by brief, for City of Concord, as amicus curiae.
The defendant, Randall B. Hofland, appeals a ruling of the Concord District Court (Sullivan , J.) that he violated a City of Concord parking ordinance. We affirm.
The record supports the following facts. The City of Concord (city) has an ordinance that prohibits parking on city streets for longer than thirty minutes between the hours of 2:00 a.m. and 6:00 a.m. At approximately 4:30 a.m. on October 20, 2002, the defendant received a parking ticket for parking for more than thirty minutes on a downtown city street. Following a bench trial, the defendant was found guilty. This appeal followed. The defendant contends that: (1) the city failed to provide appropriate and adequate notice of its parking ordinance; (2) the parking ordinance was not uniformly enforced; (3) the city prosecutor engaged in misconduct during the trial; and (4) the trial judge erred in denying his motion to recuse.
After briefs were filed and the case was submitted, we issued an order permitting the parties to address, by memoranda, whether the appeal should be dismissed for lack of subject matter jurisdiction. See Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575, 825 A.2d 493 (2003) (). Accordingly, we first address whether the appeal is properly before us.
The defendant was charged with violating a parking ordinance. See RSA 625:9 (Supp.2003) (); RSA 47:17, XVIII (2003) (authorizing city councils to adopt parking ordinances). "All fines and forfeitures for the violation of any [city] bylaw or ordinance [are to] be recovered by complaint before the [local] municipal court of said city, and shall enure to such uses as the city councils may direct." RSA 47:19 (2003). Any party so prosecuted "shall have the right to appeal to the superior court in the same manner and on the same terms and conditions as are provided by law for appeals from the judgments of municipal or district courts in other criminal prosecutions." RSA 47:21 (2003) (first enacted in 1846).
While a reading of RSA chapter 47 indicates that appeals in cases involving violations of municipal ordinances are to the superior court, RSA 599:1–c, II (2001) provides: "A person sentenced by a district or municipal court for a violation or class B misdemeanor may, at the time the sentence is declared or within 30 days thereafter, appeal therefrom to the supreme court." See also RSA 651:2, III-a (Supp.2003) (including fine as a sentencing option for violation). RSA 625:9, V-a (Supp.2003) became effective in 2002 and provides: "The violation of any requirement created by statute or by municipal regulation enacted pursuant to an enabling statute, where the statute neither specifies the penalty or offense classification, shall be deemed a violation...." The question before us then is whether RSA 599:1–c, which was enacted in 1983, authorizes appeals to the supreme court in cases of this nature.
When interpreting statutes, we ascribe to statutory words and phrases their usual and common meaning, unless the statute suggests otherwise. See State v. McCarthy, 150 N.H. 389, 390, 839 A.2d 22 (2003). When the language of a statute is clear on its face, its meaning is not subject to modification. See Remington Invs. v. Howard, 150 N.H. 653, 654, 843 A.2d 334 (2004). We will neither consider what the legislature might have said nor add words that it did not see fit to include. See id. Because the defendant was sentenced for a violation of a municipal ordinance, we conclude that he is entitled to appeal to the supreme court pursuant to RSA 599:1–c. We need not determine the continuing validity of RSA 47:21 in light of the more recent enactment of RSA 599:1–c. Cf. State v. McKenney, 126 N.H. 184, 489 A.2d 644 (1985). The legislature may wish to clarify whether RSA 47:21 continues to permit appeals to superior court.
Having determined that we have jurisdiction in this case, we turn to the merits of the defendant's appeal. He alleges violations of numerous State and federal constitutional provisions but we will confine our review to those for which he presents developed argument. See State v. Blackmer, 149 N.H. 47, 49, 816 A.2d 1014 (2003) ().
The defendant first argues that the city failed to adequately post its prohibition against overnight parking on city streets. He cites the Due Process Clauses of the State and Federal Constitutions in support of his argument that the city failed to provide appropriate and adequate notice of the ordinance. See N.H. CONST. pt. I, art.15; U.S. CONST. amends. V, XIV. He also relies on Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), and State v. Porelle, 149 N.H. 420, 822 A.2d 562 (2003). Because his arguments address issues of law, we review them de novo . See State v. McLellan, 149 N.H. 237, 240, 817 A.2d 309 (2003).
We address the defendant's State constitutional claim first, citing federal law only to aid in our analysis. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). We have previously held that a statute may be impermissibly vague and therefore violate the Due Process Clause if it either "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits [or] if it authorizes or even encourages arbitrary and discriminatory enforcement." State v. Porelle, 149 N.H. at 423, 822 A.2d 562. The appellant does not argue that the language of the applicable ordinance is "so vague and standardless that it leaves the public uncertain as to the conduct it prohibits," Chicago v. Morales, 527 U.S. at 56, 119 S.Ct. 1849, but rather that because the ordinance was not posted, it did not give the public an opportunity to understand the conduct it prohibited. See State v. Porelle, 149 N.H. at 423, 822 A.2d 562.
The legislature has established certain notice and publication requirements for municipal ordinances. RSA 47:18 (2003) provides that all adopted city ordinances "shall be kept on file at the office of the city clerk and at such other public place as the city council may designate." Notice of the adoption of the ordinance must be given by publishing its title and a brief description in such newspaper or newspapers as the city council shall direct. See RSA 47:18. "The sufficiency of the published notice shall not affect the validity of the ordinance." Id.
In this case, the defendant does not argue that the parking ordinance was not kept on file or published as required by RSA 47:18. Rather, he contends that the city failed to provide adequate notice of its existence because it was not posted where he parked. Under the defendant's argument, due process would require that the city post every parking ordinance throughout the city. He has cited no case that construes due process so broadly and we decline to do so now.
Given the record in this case and in the absence of an express provision in any statute or ordinance that requires posting, we find no violation of the defendant's due process rights. See RSA 626:2 (1996) (); RSA 626:3, II (1996); State v. Stratton, 132 N.H. 451, 457, 567 A.2d 986 (1989) (). Absent a violation of due process, we leave to the legislature and local governments the determination of posting requirements. See State v. Perry , 269 Minn. 204, 130 N.W.2d 343, 346 (1964).
Turning to the defendant's federal constitutional claim, we have reviewed the federal cases cited by the defendant. Because the State Constitution provides at least as much protection as the Federal Constitution, see Stewart v. Cunningham, Warden, 131 N.H. 68, 70, 550 A.2d 96 (1988), we find no federal constitutional violation.
Citing the Fourteenth Amendment of the United States Constitution and Part I, Articles 1, 2, 14 and 15 and Part II, Article 5 of the New Hampshire Constitution, the defendant also contends that the parking ordinance was not uniformly enforced, thereby violating his right to equal protection of the law. In support of his argument, he asserts that it was possible to avoid a citation for overnight parking by obtaining permission of the local police and that "generally only local residents are aware of these exemptions." The defendant does not argue, nor does the record contain evidence, that the purported "selective enforcement of the ordinance against him was a conscious intentional discrimination," Alexander v. Town of Hampstead, 129 N.H. 278, 283, 525 A.2d 276 (1987) (quotations omitted); nor does he assert that the city "impermissibly established classifications and, therefore, treated similarly situated individuals in a different manner," Bacon v. Town of Enfield, 150 N.H. 468, 474, 840 A.2d 788 (2004). Accordingly, the defendant has failed to meet his burden of establishing that the city's parking citation violated his right to equal protection of the law.
The defendant further asserts that the prosecutor engaged in misconduct during the trial. A prosecutor's actions may constitute misconduct when, "either intentionally or through gross negligence, the prosecutor produced a situation in which continuation of the tainted proceeding would result in an improper conviction." State v. Wood, 150 N.H. 233, 235, 836 A.2d 771 (2...
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