City of Fargo v. Roehrich , 2021 ND 145 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 145City of Fargo, Plaintiff and Appellee
v.
Dennis Lee Roehrich, Defendant and Appellant
No. 20210023
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
William B. Wischer, Assistant City Attorney, Fargo, ND, for plaintiff and
appellee; submitted on brief.
Stormy R. Vickers, Fargo, ND, for defendant and appellant; submitted on
brief.
City of Fargo v. Roehrich
No. 20210023
VandeWalle, Justice.
[¶1] Dennis Roehrich appealed from a jury verdict finding him guilty of
harassment and an order deferring imposition of sentence. He argues his
conviction should be reversed because Fargo’s harassment ordinance, Fargo
Municipal Code § 10-0322, is unconstitutionally vague and his speech is
protected by the First Amendment. We affirm, concluding the harassment
ordinance is not unconstitutionally vague and Roehrich’s conduct is not
protected.
I
[¶2] In May 2019, the City of Fargo charged Roehrich with harassment in
violation of Fargo Municipal Code § 10-0322. The City alleged Roehrich made
numerous vulgar and harassing telephone calls and left similarly offensive
voicemail messages for several members of the Fargo Police Department over
a two-year period and continued contacting members of the police department
after receiving a cease and desist letter.
[¶3] The case was transferred to district court for a jury trial. At the close of
the City’s case, Roehrich orally moved that the harassment ordinance is
unconstitutionally vague and that his speech is protected by the First
Amendment. The district court denied Roehrich’s motions. The jury found
Roehrich guilty of harassment.
II
[¶4] Roehrich argues the harassment ordinance is unconstitutionally vague.
[¶5] Whether a law is unconstitutional is a question of law, which is fully
reviewable on appeal. State v. Vetter, 2019 ND 262, ¶ 7, 934 N.W.2d 543. A
party challenging the constitutionality of a statute or municipal ordinance has
the burden to prove its constitutional infirmity. City of Fargo v. Salsman, 2009
ND 15, ¶ 23, 760 N.W.2d 123. We construe statutes and municipal ordinances
to avoid constitutional infirmities, and we resolve any doubt in favor of the
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constitutionality of the statute or ordinance. Id. at ¶ 21. See also City of Belfield
v. Kilkenny, 2007 ND 44, ¶ 8, 729 N.W.2d 120. In construing statutes, we give
the words used in the statute their plain, ordinary, and commonly understood
meaning, unless they are specifically defined or contrary intention plainly
appears. State v. Ness, 2009 ND 182, ¶ 8, 774 N.W.2d 254.
[¶6] “The due process clauses of the State and Federal Constitutions require
definiteness of criminal statutes so that the language, when measured by
common understanding and practice, gives adequate warning of the conduct
proscribed and marks boundaries sufficiently distinct for judges and juries to
fairly administer the law.” State v. Tweed, 491 N.W.2d 412, 419 (N.D. 1992)
(quoting State v. Johnson, 417 N.W.2d 365, 368 (N.D. 1987)) (citations
omitted). A statute is unconstitutionally vague if it lacks “ascertainable
standards of guilt, such that it either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.” State v. Tibor, 373 N.W.2d 877, 880
(N.D. 1985) (quotations and citations omitted). We have explained vague laws
offend due process because they do not give fair warning and they allow for
discriminatory enforcement:
First, because we assume that man is free to steer between lawful
and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Secondly, if arbitrary
and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with
attendant dangers of arbitrary and discriminatory application.
Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
[¶7] However, as we noted in State v. Schwalk, 430 N.W.2d 317, 320 (N.D.
1988) (quoting Rose v. Locke, 423 U.S. 48, 49-50 (1975)):
“It is settled that the fair-warning requirement embodied in the
Due Process Clause prohibits the States from holding an
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individual ‘criminally responsible for conduct which he could not
reasonably understand to be proscribed.’ United States v.
Harriss, 347 U.S. 612, 617 (1954); see Wainwright v. Stone, 414
U.S. 21, 22 (1973). But this prohibition against excessive
vagueness does not invalidate every statute which a reviewing
court believes could have been drafted with greater precision.
Many statutes will have some inherent vagueness, for ‘[i]n most
English words and phrases there lurk uncertainties.’ Robinson v.
United States, 324 U.S. 282, 286 (1945). Even trained lawyers may
find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what
some statutes may compel or forbid. Cf. Nash v. United States, 229
U.S. 373 (1913); United States v. National Dairy [Products]
Corp., 372 U.S. 29 (1963). All the Due Process Clause requires is
that the law give sufficient warning that men may conduct
themselves so as to avoid that which is forbidden.”
[¶8] We have explained a law is not unconstitutionally vague if it meets the
following two requirements:
(1) [T]he law creates minimum guidelines for the reasonable police
officer, judge, or jury charged with enforcing the law, and (2) the
law provides a reasonable person with adequate and fair warning
of the prohibited conduct. A law is not unconstitutionally vague if
the challenged language, when measured by common
understanding and practice, gives adequate warning of the
conduct proscribed and marks boundaries sufficiently distinct for
fair administration of the law.
Ness, 2009 ND 182, ¶ 6 (quotations and citations omitted).
[¶9] Roehrich was convicted of harassment in violation of Fargo Municipal
Code § 10-0322. The relevant portion of the ordinance states:
A person is guilty of an offense if, with intent to frighten or harass
another, he:
1. Makes a telephone call anonymously or in offensively
coarse language;
2. Makes repeated telephone calls or other electronic
communication, whether or not a conversation ensues, with
no purpose of legitimate communication; or
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3. Communicates a falsehood in writing or by electronic
communication and causes mental anguish.
Fargo Municipal Code § 10-0322.
A
[¶10] Roehrich argues the ordinance is unconstitutionally vague because it
criminalizes telephone calls with “no purpose of legitimate communication”
and “legitimate communication” is not defined. He claims his calls were for the
purpose of legitimate communication because he contacted the officers about
their handling of his son’s car accident and traffic ticket and to inform the
department about an officer’s perjury, and none of the officers ever addressed
or investigated his claim that an officer committed perjury. He contends it is
not clear at what point communication that was legitimate changes to
harassment under the ordinance.
[¶11] The phrase “legitimate communication” is not specifically defined in the
ordinance, but the word “legitimate” is generally understood to mean
“[g]enuine; valid.” Black’s Law Dictionary 1084 (11th ed. 2019). Although the
phrase “no purpose of legitimate communication” may be subjective, the
ordinance requires the person to act with a specific intent to be guilty of the
offense. In Screws v. United States, 325 U.S. 91, 101 (1945) (plurality), the
Supreme Court recognized “the requirement of a specific intent to do a
prohibited act may avoid those consequences to the accused which may
otherwise render a vague or indefinite statute invalid.” The Court further
explained, “[W]here the punishment imposed is only for an act knowingly done
with the purpose of doing that which the statute prohibits, the accused cannot
be said to suffer from lack of warning or knowledge that the act which he does
is a violation of the law.” Id. at 102. The specific intent element removes the
possibility that a person could be unaware of his criminal conduct and provides
a reasonable person with adequate and fair warning of the prohibited conduct.
See People v. Shack, 658 N.E.2d 706, 712 (N.Y. 1995).
[¶12] The harassment ordinance requires the defendant to have the intent to
frighten or harass to be found guilty. Making a phone call that arguably does
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not have a legitimate purpose alone is not sufficient to violate the statute. The
caller must make the phone call with the intent to frighten or harass another
person. The combination of the specific intent element with the required
conduct of repeated phone calls or other electronic communication with no
legitimate purpose creates minimum guidelines for the reasonable police
officer, judge, or jury and limits the dangers of arbitrary and discriminatory
application. It also provides a reasonable person with adequate and fair
warning of the prohibited conduct. We conclude the ordinance is not
unconstitutionally vague on its face.
[¶13] Our decision is consistent with the decisions of other courts that have
considered the constitutionality of similar laws. See, e.g., United States v.
Lampley, 573 F.2d 783, 787 (3d Cir. 1978) (holding federal telephone
harassment statute was not unconstitutionally vague and actor cannot claim
confusion on prohibited conduct when statute requires the actor to intend to
perform acts of harassment); von Lusch v. State, 387 A.2d 306, 310 (Md. Ct.
Spec. App. 1978) (holding intent element saves telephone harassment statute
from any danger of being unconstitutionally vague); Shack, 658 N.E.2d at 712-
13 (holding harassment statute criminalizing making a telephone call with the
intent to harass, annoy, threaten, or alarm and with no purpose of legitimate
communication was not unconstitutionally vague); State v. Lakatos, 900
S.W.2d 699, 701 (Tenn. Ct. App. 1994) (holding statute criminalizing telephone
calls made without a legitimate purpose of communication was not
unconstitutionally vague, statute included an intent requirement which
limited the phrase “without a legitimate purpose”).
B
[¶14] We also conclude the law is not unconstitutionally vague as applied to
Roehrich. Roehrich may have initially called officers with the purpose of
legitimate communication, but evidence in the record established he made
hundreds of telephone calls to three officers over a period of two years and
many of the calls had no purpose of legitimate communication.
[¶15] Fargo Police Officer Charles Sullivan testified he received more than 50
voicemail messages from Roehrich over the course of a year, the messages were
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insulting and harassing, and many of the messages did not request Sullivan
call him back or mention the traffic ticket Sullivan issued to Roehrich’s son.
Officer Jared Crane testified he was working in the police department’s Office
of Professional Standards when he had contact with Roehrich, he received a
complaint from Roehrich in July 2017 related to his son’s car accident, Crane
investigated the complaint, he informed Roehrich there was no wrongdoing
and no policy violations, and Roehrich demanded Crane change the accident
report. Crane testified there was no legitimate reason for Roehrich to contact
him after Crane investigated Roehrich’s complaint and made a determination,
but Roehrich continued to call and Crane told him multiple times to stop
contacting him about the matter. He testified Roehrich continued to contact
him almost daily, he believes he received more than 150 telephone calls from
Roehrich, and a majority of the calls did not mention the accident report.
Approximately 80 voicemails Roehrich left for Crane were admitted into
evidence at trial, and Crane testified he received all but one of them after he
told Roehrich to stop calling him. Officer Shane Aberle testified he worked in
the Office of Professional Standards starting in September or October 2018, he
received calls from Roehrich initially but the calls stopped for about six months
and then started again in April 2019. He testified Roehrich called him
approximately 30 times in April and May 2019. Evidence established an
assistant city attorney sent Roehrich a cease and desist letter in October 2018,
which advised Roehrich his telephone calls and voicemail messages consisting
of offensive, coarse language and derogatory statements were harassing and
had no legitimate purpose and a failure to immediately stop the harassing
activities would result in criminal prosecution.
[¶16] Recordings of more than 120 voicemail messages Roehrich left for the
three officers were admitted into evidence during the trial. The calls were
repetitive and included name calling and profanity, allegations the officers
were liars or corrupt and did not know how to do their jobs, and other similar
statements. Roehrich acknowledged in voicemail messages he left for Crane
and Aberle that he may be charged with harassment but that he was going to
continue to call regularly, and he left a voicemail message for Crane stating, “I
want to be charged with harassment. . . . Charge me. Go ahead. I’m waiting.”
Roehrich’s voicemail messages often did not include any information about
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Roehrich’s complaints related to his son’s car accident or contain requests for
an officer to return his call. The evidence was sufficient to support a
determination by the jury that Roehrich made repeated telephone calls with
no purpose of legitimate communication and that Roehrich had an intent to
frighten or harass another when he engaged in this conduct.
[¶17] In cases with comparable facts and circumstances, other courts have held
harassment laws were not unconstitutional as applied to the defendant. See,
e.g., People v. Smith, 392 N.Y.S.2d 968, 970 (N.Y. Sup. Ct. 1977) (holding
harassment statute was not unconstitutionally vague as applied to defendant
when defendant called police 27 times in three hours after he was informed
that a certain matter was civil and not criminal and that he should not call the
police again, even though the defendant initially called with a purpose of
legitimate communication, it was clear that his intent as to the later calls was
not to communicate but solely to harass).
[¶18] Using the plain and commonly understood meaning of “legitimate
communication,” under the facts and circumstances of this case a reasonable
person would know Roehrich’s conduct was prohibited by the harassment
ordinance. We conclude the ordinance is not unconstitutionally vague as
applied to Roehrich’s conduct.
III
[¶19] Roehrich argues his speech was protected under the First Amendment
and is excluded from criminal penalty.
[¶20] Whether an activity is constitutionally protected is a question of law,
which is fully reviewable on appeal. State v. Boyle, 2009 ND 156, ¶ 8, 771
N.W.2d 604. When free speech arguments are made, we review the whole
record to “ensure the judgment does not constitute a forbidden intrusion on
free expression.” State v. Barth, 2005 ND 134, ¶ 8, 702 N.W.2d 1.
[¶21] “The First Amendment generally prohibits the government from
proscribing speech based on disapproval of its content.” In re H.K., 2010 ND
27, ¶ 13, 778 N.W.2d 764 (quoting Svedberg v. Stamness, 525 N.W.2d 678, 682
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(N.D. 1994)). “However, there are limits on free speech and not all speech is
protected.” State v. Brossart, 2015 ND 1, ¶ 11, 858 N.W.2d 275.
[¶22] This Court has recognized “the First Amendment free speech clause
gives the public a right to criticize the police, and even yell profanities at the
police and make obscene gestures, without getting arrested solely for such
speech.” State v. Bornhoeft, 2009 ND 138, ¶ 11, 770 N.W.2d 270; see also City
of Bismarck v. Schoppert, 469 N.W.2d 808, 811 (N.D. 1991) (stating the fact
that words aimed at police officers were vulgar and offensive was not sufficient
to remove them from protection of the First Amendment). But we have also
recognized “[t]hat protection must, however, be distinguished from potentially
disturbing or threatening conduct, even if the yelling contains vulgar language
intended for a police officer.” Bornhoeft, at ¶ 11. When the speech is combined
with other conduct it may be the basis for a criminal charge. See id. at ¶¶ 11-
13. The First Amendment may protect the content of the speech, but the
conduct used in delivering the speech may not be protected. See State v. Simon,
2018 ND 197, ¶ 18, 916 N.W.2d 626 (stating our cases have recognized the
content of a defendant’s speech may be protected but the conduct may not); In
re A.R., 2010 ND 84, ¶ 12, 781 N.W.2d 644 (stating conduct accompanying the
speech takes the speech outside of the First Amendment protections).
[¶23] Furthermore, speech that is an integral part of conduct in violation of a
criminal statute and that has a sole immediate purpose of continuing a
violation of law is not protected. Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 498-501 (1949). See also Packingham v. North Carolina, 137 S.Ct. 1730,
1737 (2017) (stating “[s]pecific criminal acts are not protected speech even if
speech is the means for their commission.”); United States v. Stevens, 559 U.S.
460, 468 (2010) (stating restrictions on the content of speech are permitted in
a few limited areas, including speech that is integral to criminal conduct, and
the prevention and punishment of these limited categories of speech do not
raise any constitutional problems); United States v. Gonzalez, 905 F.3d 165,
192-93 (3d Cir. 2018) (holding defendant’s internet postings and letters were
not protected speech because they were integral to criminal conduct, the speech
violated the cyberstalking statute because it served no legitimate purpose
other than to harass and intimidate, and therefore it had the sole immediate
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purpose of continuing a violation of law); United States v. Sayer, 748 F.3d 425,
434 (1st Cir. 2014) (holding cyberstalking statute was constitutionally applied
to defendant and, to the extent the defendant’s communications involved
speech, the speech was not protected because it was integral to the criminal
conduct, the speech only served to implement the defendant’s criminal
purpose, and the defendant did not show there was any lawful purpose of the
communications that would take them outside the Giboney exception); United
States v. Petrovic, 701 F.3d 849, 855 (8th Cir. 2012) (holding defendant’s
harassing and distressing communications were integral to his criminal
conduct of extortion and therefore were not protected by the First
Amendment); State v. Gunn, 2018 ND 95, ¶¶ 17-19, 909 N.W.2d 701 (holding
statements were not protected by the First Amendment because they were
integral to the commission of a crime).
[¶24] Evidence established Roehrich made hundreds of telephone calls to three
officers, he was told to stop calling numerous times, he was sent a cease and
desist letter, and he continued to call the officers after being told to stop. He
stated in multiple voicemail messages that he would continue to call the
officers until he was charged with harassment. The jury found Roehrich had
an intent to frighten or harass when he called the officers, and Roehrich does
not challenge the jury’s findings. Under the facts of this case and when the
totality of Roehrich’s actions are considered, we conclude Roehrich’s conduct
was not protected by the First Amendment.
IV
[¶25] We affirm the order.
[¶26] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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