State v. Knoefler

• Decision Date: 20 October 1982
• Docket Number: 845,Nos. 844,s. 844
• Citation: 325 N.W.2d 192
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Harold KNOEFLER, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Harold KNOEFLER, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 192

325 N.W.2d 192

STATE of North Dakota, Plaintiff and Appellee, v. Harold KNOEFLER, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Appellee, v. Harold KNOEFLER, Defendant and Appellant.

Crim. Nos. 844, 845.

Supreme Court of North Dakota.

Oct. 20, 1982.

John Greenwood, Asst. State's Atty., and Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee; argued by John Greenwood, Asst. State's Atty., Jamestown.

Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, and Roger S. Hanson, Santa Ana, Cal., for defendant and appellant; argued by Charles M. Carvell, Jamestown.

SAND, Justice.

Defendant Harold Knoefler was convicted of violating North Dakota Century Code Secs. 4-12-03, maintaining bees without a license, and 4-12-03.1, establishing a bee location within two miles of another bee location. Judgments of conviction were entered and he appealed.

The criminal complaints and warrants of arrest of defendant were issued 3 August 1981. Defendant appeared before the County Court with Increased Jurisdiction, pleaded not guilty, and was released on his own recognizance. Judge Herseth, by letter dated 14 December 1981, addressed to Roger Hanson, counsel for defendant, and John Greenwood, Assistant State's Attorney, with carbon copy to Charles M. Carvell, co-counsel for defendant, advised that the case was scheduled for trial to a six-person jury on 8 February 1982. We assume that the judge, in setting the trial date, considered the defendant's right to a speedy trial.

Knoefler, through his attorney Carvell, on 27 January 1982, filed motions to be heard on 5 February 1982 to dismiss the complaints on the grounds that NDCC Sec. 4-12-03.1 under which defendant was charged was unconstitutional and that NDCC Sec. 4-12-03 was enforced on a discriminatory basis. The brief in support of the motion stated, among other things, that an expert would have testified ¹ that the two-mile restriction does not control disease or prevent raiding of honey, and, therefore, no rational basis exists for the two-mile restriction regarding the location of commercial beehives. The State, in response to the alleged discrimination, represented to the Court that numerous individuals violated the statutes, but Jack Miller, deputy sheriff for the Stutsman County Sheriff's department, gave all of them, including Knoefler, an opportunity to correct the situation. (This might be considered a warning.) There was no evidence that the other individuals who were warned did not heed the warnings; however, Knoefler told Miller he would move the beehives which were in violation of the statutes "after the honey run was over."

Defendant, through his attorney, Charles Carvell, on 3 February 1982, filed a motion for a continuance of the trial based on a misunderstanding between the defendant's attorneys. Knoefler had retained two attorneys, Roger Hanson from California, and Charles Carvell, of Jamestown, North Dakota. Carvell stated that he relied upon Hanson to obtain the experts but on 1 February 1982 he (Carvell) learned from Knoefler that Hanson had not yet obtained an expert. Later, on 2 February 1982, Hanson, in a telephone conversation, informed him (Carvell) of his inability to obtain an expert witness because of conflicts of date. Carvell, on 2 February 1982, contacted an expert witness at the University of Minnesota but was informed that witness would not be available for two or three weeks. Also, each attorney assumed that the other attorney was doing whatever was necessary to secure the expert witnesses, and as a result neither one secured the witness. This, in itself, in our opinion, does not constitute "good cause shown" as required by Rule 6.1, North Dakota Rules of Court, for a continuance. ²

Appellant's brief states: "Mr. Hanson had from August 1981 until February 1982, approximately six months, to retain an expert. He waited until mid-January before beginning his search for one able to come to North Dakota on the hearing date.... His delay was not a tactical decision, but a negligent one."

From these facts we must determine if the trial court committed error by denying the motion for continuance by either abuse of discretion or by any other standard. An abuse of discretion has been defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Moser v. Wilhelm, 300 N.W.2d 840 (N.D.1980); Wall v. Pennsylvania Life Insurance Co., 274 N.W.2d 208, (N.D.1979).

In resolving this question we need to take into consideration what testimony the expert witness would have given, what effect, if any, it would have had, and the propriety of presenting such testimony to a court to determine the constitutionality of a statute, as discussed later herein. This, out of necessity, includes at least a brief examination of the Legislature's authority under our Constitution to validly enact a statute such as the one in question.

Under the North Dakota Constitution, the Legislature has plenary authority except as limited by the North Dakota Constitution and the Constitution of the United States and appropriate Congressional acts. The North Dakota Constitution is an instrument of limitations rather than an instrument of grants, such as the United States Constitution. State ex rel. Agnew v. Schneider, 253 N.W.2d 184 (N.D.1977).

In the previous case of State v. Knoefler, 279 N.W.2d 658, 665 (N.D.1979), we concluded that the spacing requirements of NDCC Sec. 4-12-03.1 were rationally related to the statutory goals of preventing honey raiding and the spreading of bee diseases. We also said:

"It is now settled that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs as long as their laws do not run afoul of some specific federal constitutional prohibition or some valid federal law. In determining the constitutionality of statutes regulating commercial affairs under the Equal Protection Clause, courts have required only a rational relationship between the classification and the purpose of the statute. Our court has followed this approach in reviewing equal protection challenges to such statutes....

"In reviewing the relationship between the commercial classification and the purpose of the statute, it is not necessary that the purpose of the statute be readily ascertainable upon its face. In United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the United States Supreme Court in April of 1938 had under consideration the constitutionality of the Filled Milk Act of Congress. The court, through Justice Stone, said:

'Even in the absence of such aids [legislative findings], the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.' [Footnote omitted.] 304 U.S. at 152, 58 S.Ct. at 783."

State v. Knoefler, 279 N.W.2d at 662-663.

This concept was reaffirmed in State v. Kainz, 321 N.W.2d 478 (N.D.1982).

Knoefler, in effect, argued that the purposes of the spacing requirements were not promoted by having the two mile radius and that some other radius would be more effective to protect against the robbing of honey and the spreading of disease. The affidavits submitted by Knoefler reflect that expert testimony would have been introduced into evidence in an effort to establish that the spacing requirements inadequately served the purposes of the legislation and that, therefore, the statute was unconstitutional.

This brings us to the proposition if, and under what circumstances, evidence may be introduced before a court to challenge the constitutionality of a statute in the manner suggested by Knoefler.

On this subject, 16 C.J.S., Constitutional Law, Sec. 97, pp. 354-357, states:

"Generally, evidence aliunde is not admissible on the question as to whether the legislature has complied with the constitutional limitations, and although the court will not necessarily confine itself to facts stated in the complaint and admitted by demurrer, but will act in the light of all matters of which it may take judicial notice, including all of the ultimate facts shown in reports of investigations of the legislature on which the enactment is presumably based, it must confine itself to consideration of matters so noticed and those matters which appear on the face of the law. It has been held, however, that the invalidity of legislative action may be shown by facts established by evidence, and that where the determination whether a statute is unreasonable, arbitrary, or not related to the ends proposed turns on factual considerations, the court may consider such facts and hear evidence with respect thereto. So where the validity of the statute is based on the existence of a certain set of facts, and the statute is challenged as applied to new circumstances, the court must admit evidence to sustain the challenge."

The United States Supreme Court in Communist Party of the United States of America v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 1409, 94-95, 6 L.Ed.2d 625 (1961), said:

"It is not for the court to re-examine the validity of these legislative findings and reject them. See Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586. They are the product of extensive investigation by Committees of Congress over more than a decade and a half. Cf., Nebbia v. People of State of New York, 291 U.S. 502, 516, 530, 54 S.Ct. 505, 507, 513, 78 L.Ed. 940. We certainly cannot dismiss them as unfounded or irrational imaginings."

See also, School Committee of Boston v. Board of Education, et al., 352 Mass. 693, 227 N.E.2d...