State v. Niska, Cr. N

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtLEVINE; ERICKSTAD
Citation380 N.W.2d 646
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Charles A. NISKA, Defendant and Appellant. o. 1123.
Decision Date22 January 1986
Docket NumberCr. N

Page 646

380 N.W.2d 646
STATE of North Dakota, Plaintiff and Appellee,
v.
Charles A. NISKA, Defendant and Appellant.
Cr. No. 1123.
Supreme Court of North Dakota.
Jan. 22, 1986.

Page 647

Wayne D. Goter, Asst. State's Atty., Mandan (argued), for plaintiff and appellee; appearance by Richard L. Schnell, State's Atty.

Charles A. Niska, Solen, pro se.

Page 648

LEVINE, Justice.

Charles A. Niska appeals from a judgment of conviction for practicing law without a license in violation of North Dakota Century Code Sec. 27-11-01. We affirm.

The facts are not disputed. Niska drafted pleadings for Richard Schmidt and advised him in three civil cases and one criminal action in which Schmidt was involved. Upon these facts the jury found Niska guilty of four counts of violating Sec. 27-11-01 by practicing law without a license.

Although what constitutes the practice of law does not lend itself to an inclusive definition, it clearly includes Niska's drafting of legal instruments and pleadings and providing legal advice. Cain v. Merchants Nat. Bank & Trust Co. of Fargo, 66 N.D. 746, 268 N.W. 719 (1936); see also Bluestein v. State Bar of California, 13 Cal.3d 162, 118 Cal.Rptr. 175, 529 P.2d 599 (1974); Washington State Bar Ass'n v. Great W. Union Fed. Sav. & Loan Ass'n, 91 Wash.2d 48, 586 P.2d 870 (1978).

Niska however asserts three grounds for overturning his conviction: first, the trial court had no jurisdiction; second, he was not informed of the charges against him in violation of the sixth amendment; and third, NDCC Sec. 27-11-01 1 is unconstitutional as applied to him.

1.

Niska argues that the Morton County court did not have jurisdiction in this case. NDCC Sec. 27-11-01 and Chapter 27-03 confer jurisdiction on the Morton County court over criminal misdemeanors occurring in that county. Practicing law without a license is a criminal misdemeanor. The conduct which led to Niska's conviction took place in Morton County. The Morton County court therefore had jurisdiction in this case.

2.

Niska next asserts that his sixth amendment rights were violated because he was not informed of the charges against him. A criminal complaint need only be specific enough to advise a defendant of the charge against him and to enable him to prepare for trial. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); State v. Motsko, 261 N.W.2d 860 (N.D.1977). The complaint clearly set out the elements of the crime with which Niska was charged. In addition, at Niska's initial appearance the trial judge further explained the nature of the charges against him. If Niska did not understand the crime he was charged with he could have sought the advice of either retained or appointed counsel. We hold that Niska was adequately informed of the charges against him in accordance with the sixth amendment.

3.

Niska argues that in drafting legal documents for Schmidt and in giving him legal advice he was exercising his constitutionally protected rights of speech and assembly. Niska therefore claims that Sec. 27-11-01, although facially valid, when applied to him violates the first amendment to the United States Constitution and Article I, Secs. 4 and 5 of the North Dakota Constitution.

SPEECH

Apparently Niska asserts that in practicing law he was exercising his freedom of speech. Therefore the State, in enforcing the criminal sanction of Sec. 27-11-01 to preclude

Page 649

him from practicing law, unconstitutionally prohibited him from exercising his freedom of expression.

However, Niska does not claim that Sec. 27-11-01 was enacted to suppress speech which the State finds distasteful; nor is there evidence that the statute was applied to him because of his expressed views. Thus it is evident that Sec. 27-11-01 was not enforced against Niska in order to quash the political views he was expressing by means of his legal advice and pleadings. Instead, Sec. 27-11-01 was enforced to prohibit Niska from the unauthorized practice of law. Any resulting limitation of his speech was merely indirect and incidental. Government regulation which only incidentally restricts speech, is valid if four criteria are met:

1. The regulation is within the constitutional power of the state;

2. It furthers an important or substantial governmental interest;

3. The governmental interest is unrelated to the suppression of free expression;

4. The incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. Albertini, --- U.S. ---, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). We conclude that in this case Sec. 27-11-01 satisfies all of these requirements.

The State's constitutional power to regulate the practice of law is well established. Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 1289 (1964); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). Section 27-11-01 is well within the constitutional power of the state.

North Dakota has not only an...

To continue reading

Request your trial
11 practice notes
  • McCrothers Corp. v. City of Mandan, No. 20060127.
    • United States
    • United States State Supreme Court of North Dakota
    • February 28, 2007
    ...Bar, Inc. v. Village of Somerset, 316 F.3d 702, 722 (7th Cir.2003) (internal citations and footnote omitted); compare State v. Niska, 380 N.W.2d 646, 649 (N.D. 1986) (under O'Brien, government regulation which only incidentally restricts speech is valid if "[t]he regulation is within t......
  • Dressel v. Ameribank, Docket No. 119959, Calendar No. 1.
    • United States
    • Supreme Court of Michigan
    • June 24, 2003
    ...23 N.W.2d 720 (1946); Appeal of Campaign for Ratepayers' Rights, 137 N.H. at 720, 634 A.2d 1345 (1993); State of North Dakota v. Niska, 380 N.W.2d 646 (N.D., 10. The majority does not explain what has changed that allows it to define today what it was incapable of defining in the past. ----......
  • Wetzel v. Schlenvogt, No. 20050121.
    • United States
    • United States State Supreme Court of North Dakota
    • November 9, 2005
    ...action and conducting oneself in court on behalf of another qualify as the practice of law. N.D.C.C. § 27-11-01; see also State v. Niska, 380 N.W.2d 646, 648 (N.D.1986) ("Niska's drafting of legal instruments and pleadings and providing legal advice" for Schmidt constituted the pr......
  • City of Grand Forks v. Mata, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • May 19, 1994
    ...for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); State v. Niska, 380 N.W.2d 646, 648 (N.D.1986); State v. Lind, 322 N.W.2d 826, 844 (N.D.1982). The provisions of N.D.R.Crim.P. 7(c) are intended to implement the sixth amendment......
  • Request a trial to view additional results
11 cases
  • McCrothers Corp. v. City of Mandan, No. 20060127.
    • United States
    • United States State Supreme Court of North Dakota
    • February 28, 2007
    ...Bar, Inc. v. Village of Somerset, 316 F.3d 702, 722 (7th Cir.2003) (internal citations and footnote omitted); compare State v. Niska, 380 N.W.2d 646, 649 (N.D. 1986) (under O'Brien, government regulation which only incidentally restricts speech is valid if "[t]he regulation is within the co......
  • Dressel v. Ameribank, Docket No. 119959, Calendar No. 1.
    • United States
    • Supreme Court of Michigan
    • June 24, 2003
    ...23 N.W.2d 720 (1946); Appeal of Campaign for Ratepayers' Rights, 137 N.H. at 720, 634 A.2d 1345 (1993); State of North Dakota v. Niska, 380 N.W.2d 646 (N.D., 10. The majority does not explain what has changed that allows it to define today what it was incapable of defining in the past. ----......
  • Wetzel v. Schlenvogt, No. 20050121.
    • United States
    • United States State Supreme Court of North Dakota
    • November 9, 2005
    ...action and conducting oneself in court on behalf of another qualify as the practice of law. N.D.C.C. § 27-11-01; see also State v. Niska, 380 N.W.2d 646, 648 (N.D.1986) ("Niska's drafting of legal instruments and pleadings and providing legal advice" for Schmidt constituted the practice of ......
  • City of Grand Forks v. Mata, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • May 19, 1994
    ...for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); State v. Niska, 380 N.W.2d 646, 648 (N.D.1986); State v. Lind, 322 N.W.2d 826, 844 (N.D.1982). The provisions of N.D.R.Crim.P. 7(c) are intended to implement the sixth amendment......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT