This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Luke A. Otterstad,
Robert A. Rudnick,
Anoka County District Court
File Nos. T2-04-30481, T3-04-30215; T0-04-30480, T1-04-30214
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
J. Scott, 300
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In these consolidated appeals from their convictions for creating a public nuisance and violating a city sign ordinance, appellants argue that they did not act intentionally or “maintain a condition” that would violate the nuisance statute; as applied to them and facially, the nuisance statute is an unconstitutional content-based restriction of their right to freedom of speech; and the city sign ordinance barring signs from the public right-of-way was misconstrued and is unconstitutional. Because the findings support the convictions, the district court did not err, and the statute and ordinance pass constitutional muster, we affirm.
These matters were tried to the court on stipulated facts after appellants waived their right to a jury and separate trials. The prosecutor read the stipulated facts into the record and offered evidence of witnesses’ testimony, and the court admitted as exhibits two police reports and four signs.
On September 21, 2004, at about 3:54
p.m., appellants placed two “temporary political signs” against the chain-link
fence on the
The signs were placed “above the
barrier portion of the overpass, positioned up against a chain link fence such
that the entirety of each of the exhibits would be visible to traffic” traveling
westbound on Highway 10. The parties
stipulated that the signs were placed in a public right-of-way or easement and
that appellants did not first obtain a permit or permission. The police reports indicated that traffic was
busy on both Highway 10 and
The police report for the September
21 incident indicates that Officer Newton went to the location after an
anonymous caller reported that she had observed an “anti-Wetterling” poster
that “showed a graphic picture of an aborted fetus” on the Ferry Street bridge.
Officer Newton parked a distance away
due to heavy traffic on
While waiting for backup, Officer
Newton observed and reported a rear-end accident on northbound
On September 23, about 4:19 p.m., appellants again placed against the chain link fence two signs that were essentially the same as the signs confiscated by the officers two days earlier. The signs were visible to westbound Highway 10 traffic. In his September 23 police report, Officer Goodwin indicated that, while he approached appellants through heavy traffic, he “saw a vehicle stopped on top of the overpass and the occupant say something to one of the protestors.” Again, one of appellants filmed the incident when appellants refused the officer’s request that they remove the posters and leave. The officers took down the signs that had been “secured to the chain link portion of the overpass by pushing the Styrofoam into the chain link fence.”
Appellants were each issued a citation for creating a public nuisance and for not complying with an officer’s order. Officer Goodwin reviewed the videotape of the incident in which a male driver is heard “yelling at Rudnick about the traffic hazard he had created on the 21st.”
Each appellant was charged with five
offenses committed on each of two days, September 21 and September 23, 2004,
including public nuisance under Minn. Stat. § 609.74(1)(2); not complying
with an officer regulating traffic under Minn. Stat. § 169.02, subd. 2;
violation of the
D E C I S I O N
Public Nuisance Statute,
A. Sufficiency of Evidence
In considering a claim of
insufficient evidence, a court’s review “is limited to a painstaking analysis
of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction,” sufficiently supports the fact-finder’s
verdict. State v. Webb, 440 N.W.2d 426, 430 (
Appellants were convicted of violating
the pubic nuisance statute on September 23, 2004. Under the statute, “[w]hoever by an act . . . intentionally . . . maintains or permits a condition which
unreasonably annoys, injures or endangers the safety, health, morals, comfort,
or repose of any considerable number of members of the public” is guilty of the
misdemeanor maintaining a public nuisance.
“Intentionally” is defined in the criminal code as
the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, . . . the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word ‘intentionally.’
Minn. Stat. § 609.02, subd. 9(3)
(2004). The fact-finder may infer that a
person intends the natural and probable consequences of his actions, and a
defendant’s statements as to his intentions are not binding on the fact-finder
if defendant’s acts demonstrated a contrary intent. State
v. Fields, 679 N.W.2d 341, 348-49 (
Appellants state that they placed the
signs above the rush hour traffic “in order to draw attention to their message.” Intent to get the message to “any
considerable number of members of the public” may be inferred from their choice
of rush hour in a place where traffic was bumper-to-bumper. Deliberately distracting drivers from the
task of driving and redirecting their attention to the signs would have as a
natural and probable consequence endangerment of drivers’ safety. See,
e.g., City of Edina v. Dreher,
454 N.W.2d 621, 623 (
Appellants contend that on September 23 they, in good faith, thought they had a right to continue placing their signs above Highway 10. But the record contains evidence that, at the time of the September 23 incident, they were aware that they had distracted the public and car accidents had occurred. The officers had informed them of a phone call from a concerned citizen and two accidents, and a driver had yelled to them that they had created a traffic hazard. Also, two days earlier appellants had been cited for creating a public nuisance. Based on these facts, appellants’ conduct on September 23 does not fall within a good faith exception to the public nuisance statute.
Appellants also argue that the words “maintained” a “condition” require some “permanence.” They do not argue that the statute is ambiguous, but cite an advisory committee note stating that “some degree of permanence” is characteristic of a nuisance.
When words are clear and free from
ambiguity, courts need not look beyond the explicit words to determine the
The evidence sufficiently supports
that the appellants placed the signs above rush hour traffic with the intent to
distract the drivers from the act of driving and to redirect their attention to
the signs, which endangered the safety of a large number of the public on
Highway 10 and
B. Freedom of Speech
The constitutionality of a statute
presents a question of law, which this court reviews de novo. State v.
Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
Appellants argue that they were arrested for creating a public nuisance because the content of their signs was too “graphic.” That they endangered public safety, they argue, is “theoretical but unproven.”
“The principal inquiry in determining
content neutrality, in speech cases generally and in time, place, or manner
cases in particular, is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys.” Ward v.
Rock Against Racism, 491
The public nuisance statute falls
under the state’s criminal code which is aimed at protecting the public safety
Appellants repeatedly state that the
officers were motivated to remove the posters because they were “offended” by
them. An implied or alleged illicit
motive behind an ordinance will not invalidate an otherwise proper
ordinance. O’Brien, 391
The language of the public nuisance statute is content-neutral as a broad prohibition against conduct that “unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public.” Its application to appellants’ conduct was content-neutral; the message on the signs was not relevant to the determination that the statute was violated.
Appellants also argue that the public nuisance statute is unduly vague: that the statute invites arbitrary enforcement and fails to provide fair notice of what is prohibited.
“[T]he void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discriminatory enforcement.” City of
If ordinary people would understand that appellants’ conduct would endanger the public safety of a considerable number of the public, the statute is not unduly vague. Just as blocking traffic, disrupting a worship service, or interfering with the operation of a business constitute clear observable conduct that “disturbs peace and quiet,” distracting drivers during rush hour traffic is clear observable conduct that endangers the public safety. See Hipp, 213 N.W.2d at 614-15 (determining that statute prohibiting disorderly conduct “as to disturb or threaten the public peace” is not unconstitutionally vague); State v. Olson, 178 N.W.2d 230, 232-33 (1970) (concluding that ordinance prohibiting conduct “which disturbs the peace and quiet of another” is not unconstitutionally vague). Because appellants could have no reasonable doubt that their actions in distracting drivers from their task of driving endangered the drivers’ and others’ safety, appellants’ argument that the statute is unconstitutionally vague fails.
A statute may be vague if compliance hinges on a single officer’s determination that a sign was annoying or endangered the public. See Dreher, 454 N.W.2d at 622-23. The public nuisance statute, however, does not hinge on the officer’s personal sense of annoyance or endangerment; the officer must determine if a “considerable number of members of the public” would be adversely affected by appellants’ act. Here, the record indicates that members of the public were adversely affected by appellants’ conduct. Furthermore, the record contains no evidence of the officers’ personal opinions of the signs or their messages. Therefore, we cannot conclude that the statute encouraged arbitrary or discriminatory enforcement.
A. Ordinance Interpretation
argue that the district court misinterpreted the
interpretation of an existing ordinance is a question of law for the
court. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604,
The Anoka sign ordinance regulates
“signs,” which include a “description, display, illustration, or device which
is affixed to or represented directly or indirectly upon a building, structure
or land in view of the general public and which directs attention to a product,
place, activity, person, institution, or business.”
The district court determined that the ordinance prohibited appellants’ placement of temporary political signs in the right-of-way. We agree that a plain reading of the ordinance supports this interpretation. The parties stipulated that the signs fell within the ordinance’s definition of temporary political signs, appellants concede that they did not obtain a banner or any other type of permit to display the signs, and they stipulated that they placed their signs against the chain-link fence in a public right-of-way. Because appellants’ signs did not fall within the exempted types of signs or the banner exception, they were signs prohibited from the public right-of-way. Therefore, the district court correctly concluded that appellants violated the sign ordinance.
B. Constitutionality of Ordinance
The constitutionality of
an ordinance is a question of law, which this court reviews de novo. State
v. Stallman, 519 N.W.2d 903, 906 (
Provisions of laws that regulate a
medium of communication, such as the posting of signs, often affect speech and
are subject to First Amendment scrutiny.
See, e.g., City of Ladue v. Gilleo,
regulation that serves purposes unrelated to the content of expression is
neutral, even if it has an incidental effect on some speakers or messages but
Although, the ordinance creates four
categories of exempt signs based on their content, there is nothing in the record
or the specific exemptions indicating “impermissible content or viewpoint
discrimination” in selecting the content of the exempted signs.
To survive First Amendment scrutiny,
the regulation must serve a substantial state interest and be narrowly tailored
to achieve that end. Brayton, 519 N.W.2d at 247. A regulation is narrowly tailored if the
regulation “promotes a substantial government interest that would be achieved
less effectively absent the regulation.”
The government’s interest in regulating
traffic, particularly during peak use times, is significant, see Metromedia, Inc. v. City of San Diego,
Nothing in the record indicates that