IN SUPREME COURT
Court of Appeals
Anderson, G. Barry, J.
Concurring, Page, Meyer, Hanson JJ.
Filed: July 12, 2007
Office of Appellate Courts
Luke A. Otterstad,
Robert A. Rudnick,
S Y L L A B U S
1. In a prosecution under Minn. Stat. § 609.74(1) (2006), the state did not meet its burden of proving that appellants maintained a condition that endangered the safety of a considerable number of members of the public.
2. Where appellants were charged, tried, and convicted under the unamended text of an amended ordinance, and the variations between the unamended and amended text were material, to uphold the convictions would deprive appellants of their right to present a defense to the ordinance they allegedly violated.
Reversed and vacated.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, G. Barry, Justice.
Appellants Luke A. Otterstad and
Robert A. Rudnick appeal their convictions under Minn. Stat. § 609.74(1)
(2006) (the state public nuisance statute) and
On September 21, 2004, at about 4
p.m., Luke Otterstad and Robert Rudnick (“appellants”) displayed two signs on
the public sidewalk of the
At some point an anonymous phone-caller
complained to the Anoka Police Department that there was a graphic picture of
an aborted fetus above the highway. Officer Anthony Newton was dispatched to the
scene and told appellants to remove the signs as they were “extremely graphic
in nature and a call was received from a concerned citizen and they were creating
a public nuisance.” Appellants responded
that the First Amendment gave them the right to display their signs.
When Goodwin arrived, he told appellants to remove the signs as they were creating a public nuisance; they refused to do so and Goodwin arrested them.
Two days later, at the same location and the same time of day, appellants displayed signs essentially identical to the first two. Sergeant Goodwin arrived and again asked appellants to leave. They again refused. Goodwin again arrested them.
Appellants were each charged with ten
misdemeanor counts. The state eventually
dropped all but two: (1) violation on September 21 of the
The district court found appellants
guilty on both counts. On the sign
ordinance charge, the parties stipulated that appellants’ signs were “temporary
political signs” for purposes of the ordinance, that they were placed in a
public right-of-way or easement, and that appellants did not obtain a permit
Appellants appealed and the court of
appeals affirmed. State v. Otterstad, Nos. A05-178 & A05-179, 2005 WL 3527236, at
Appellants raise four issues for our consideration. First, they argue that the district court and
court of appeals erred in construing the public nuisance statute, Minn. Stat.
§ 609.74(1) (2006), and in finding that the evidence was sufficient to
support their convictions. Second, they
argue that application of the public nuisance statute to appellants violates their
First Amendment rights. Third, they
The public nuisance statute, Minnesota Statutes § 609.74(1), provides:
Whoever by an act or failure to perform a legal duty intentionally does any of the following is guilty of maintaining a public nuisance, which is a misdemeanor:
(1) 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[.]
Appellants argue that this section does not reach their conduct because they did not maintain or permit a condition as required by the statute and their display did not have the degree of permanence required to be a “condition.” Appellants also argue that the evidence is insufficient to support their convictions because there is no evidence that they created a danger to the public and that they did not have the required statutory intent. The state disagrees.
The Due Process Clause of the
Fourteenth Amendment to the United States Constitution requires the state, in a
criminal case, to prove beyond a reasonable doubt every fact necessary to
constitute the crime with which the defendant is charged. See In
re Winship, 397
From the outset of this case, the state’s prosecution of appellants under section 609.74(1) has been for endangering the safety of a considerable number of members of the public, not for “annoying” or “injuring” the “health, morals, comfort, or repose” of the public. Appellants’ conviction under section 609.74(1) therefore required the state to prove beyond a reasonable doubt that appellants maintained a condition that endangered the safety of a considerable number of members of the public. As evidence of a danger to the public, the state presented: the fact that an anonymous phone call was made about the signs; the fact that an accident occurred on the Ferry Street bridge and that a second accident occurred earlier; the fact that a driver on the Ferry Street bridge yelled at appellants that they had created a traffic hazard; and the nature of appellants’ display.
None of those pieces of evidence,
alone or in the aggregate, establishes that appellants’ signs endangered a considerable
number of members of the public. The
record makes clear (and the state conceded at oral argument) that the anonymous
phone call was prompted by the content of the signs, not their effect on
traffic. It is also undisputed that the
This brings us to the nature of appellants’ display. The court of appeals relied on appellants’ intentions in finding a danger to the public: “[d]eliberately 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.” Otterstad, 2005 WL 3527236, at *3. In other words, the court of appeals concluded that the public was endangered because appellants intended drivers to look at the signs. But the state’s highways are awash in signs—some political, some commercial, some informational, all vying for the attention of motorists. The use of road signs by transportation authorities to present drivers with safety, directional, and other information bears witness to the common understanding that not every sign that attracts a driver’s attention creates a danger to the public. Appellants undoubtedly intended for drivers to read their message. In this they were no different from anyone else who posts signs near highways.
Nor does the content of appellants’ signs persuade us that the public was endangered. The state suggested, and the district court agreed, that the graphic picture of the aborted fetus would be particularly distracting, thus endangering the public and violating section 609.74(1). The state cites no evidence to support this conclusion. Conviction requires proof beyond a reasonable doubt that the public was actually endangered—in this case, proof that motorists were unable to safely operate their vehicles due to appellants’ signs. Such evidence might have included an accident involving motorists who could actually see appellants’ signs; testimony from drivers whose ability to control their vehicle was impaired by appellants’ signs; or a police officer’s observation of traffic disturbances involving drivers distracted by appellants’ signs. The state offered no such evidence. Rather, the state cited one accident that could not have been caused by the graphic picture of the fetus on appellants’ signs and then argued that the picture was so obviously distracting as to require no further proof. We do not agree.
Our decision does not foreclose the possibility that some sign might distract motorists in such a way as to endanger the public and constitute a public nuisance. Nor does our decision require a police officer on the scene to wait until an accident occurs or is threatened before intervening. An officer can and should use his or her experience and expertise to determine whether a sign constitutes a danger to a considerable number of members of the public before that danger manifests itself in injuries. But to maintain a conviction under section 609.74(1) for endangering the safety of the public, the state must prove through testimony and evidence that the public was in fact endangered. Here, the state has not done so. We hold that the district court erred when it found appellants guilty under Minn. Stat. § 609.74(1) of intentionally endangering the safety of a considerable number of members of the public.
Because we conclude that section 609.74(1)
does not reach appellants’ conduct, we need not consider their other arguments
under the U.S. Constitution.
Appellants were charged with and
convicted of violating
Signs shall not be permitted within the public right-of-way or easements, except that the City Manager or designee of the City Manager, for a period not exceeding two weeks, may allow temporary signs and decorations to be erected upon or strung across the right-of-way. A banner permit is required for erection of such a sign.
After trial in the district court, an appeal to the court of appeals, and argument before this court, it came to light that section 36-83(a) had been amended on July 30, 2004—prior to appellants’ alleged violations—to read:
Signs shall not be permitted within the public right-of-way or on easements, except that the City Manager or a designee of the City Manager may allow temporary signs for local community events to be erected upon a site designated by the City. A banner permit is required for such signs, which will be permitted for a period not exceeding two (2) weeks. Banners that promote religious, political, business or personal causes will not be permitted.
After supplemental briefing, both parties now agree that the amended section 36-83(a) was in effect on the date of appellants’ alleged violations, but that appellants were charged and convicted under the unamended ordinance.
a section or part of a law is amended, the amendment shall be construed as
merging into the original law, becoming a part thereof, and replacing the part
amended, and the remainder of the original enactment and the amendment shall be
read together and viewed as one act passed at one time[.]”
According to the state, the fact that
appellants were charged and convicted under a superseded ordinance is of no consequence
because appellants “were charged and convicted only under the language of the
first phrase of both versions which remained essentially unaltered.” In other words, the state asserts that we
need only concern ourselves with the phrase “[s]igns shall not be permitted
within the public right-of-way.” This
assertion ignores the fact that the unchanged text and the amended text are
part of the same sentence and must be read together as one enactment.
The two ordinances present different
interpretive and constitutional questions.
Appellants have argued throughout this case, relying on the unamended
Appellants have defended themselves
against charges brought under a superseded ordinance. The state, nevertheless, requests that we
affirm the convictions under the amended version of the ordinance. To do so would deny appellants their right to
present a defense to the correct ordinance.
Nor can we rule on the constitutionality of the amended ordinance, which
the parties have not thoroughly briefed.
We therefore vacate appellants’ convictions under
Reversed and vacated.
C O N C U R R E N C E
PAGE, Justice (concurring).
I write separately for two reasons. First, while I agree with the court’s analysis leading to the conclusion that appellants’ convictions under the Anoka, Minn., Code, must be vacated, and with the reversal of appellants’ convictions under the state public nuisance statute, Minn. Stat. § 609.74(1) (2006), I would reverse the convictions under the public nuisance statute simply because it is clear on this record that the state’s prosecution of appellants under the statute was content-based and therefore barred by the First Amendment. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”).
I also write separately to express my disagreement with the court’s portrayal of appellants’ signs. According to the court, because appellants “undoubtedly intended for drivers to read their message,” appellants are “no different from anyone else who posts signs near highways.” I disagree. First, not just anyone can post signs near highways, much less within the right-of-way, as appellants stipulate they did. Minnesota Statutes § 160.2715 (2006) makes it a misdemeanor for anyone but “the road authorities, their agents, employees, contractors, and utilities” to “place” or “affix” any object within the limits of any highway. I would not equate appellants with “road authorities, their agents, employees, contractors, and utilities.”
Nor would I equate appellants’ signs with those placed along highways by “road authorities, their agents, employees, contractors and utilities.” To equate appellants’ signs with traffic control signs placed along highways by road authorities for public transportation safety and information purposes, such as speed limit signs, highway identification and directional signs, and variable message signs used to warn motorists of traffic conditions ahead or Amber Alerts, is simply unwarranted. These signs, while “undoubtedly intended for drivers to read their message,” are qualitatively different from the signs displayed by appellants, which have no public transportation safety or information purpose. To equate appellants’ signs with those placed along or near highways by road authorities is to devalue transportation safety.
The court muses that “[t]he use of road signs by transportation authorities to present drivers with safety, directional, and other information bears witness to the common understanding that not every sign that attracts a driver’s attention creates a danger to the public.” As discussed above, these musings are misguided. They are also misguided because traffic control signs placed along the highway by transportation authorities are neither intended nor designed to attract a driver’s attention away from the act of driving. Traffic control signs placed in the right-of-way by transportation authorities, which are required to be of a prescribed size, shape, coloring, and lettering, are designed and intended to facilitate and make safer the activity of driving. Whatever the purpose of appellants’ signs, they were designed and intended to attract a driver’s attention away from the act of driving and in no way make that activity safer.
Second, appellants’ signs were not the type of signs that can be placed on or near highways. Highway 10 (within which right-of-way appellants placed their signs) is designated as a trunk highway under Minn. Stat. § 161.114, subd. 2 (2006), and is part of the National Highway System. Minnesota Statutes § 161.434 (2006) allows the commissioner of transportation to make agreements for “the limited use” of the right‑of‑way along trunk highways, but only for “highway purposes.” Appellants had no agreement with the commissioner and their signs were not placed over Highway 10 during rush hour for “highway purposes.” In addition, under 23 U.S.C. § 131(c) (2000), signs within 660 feet of the right-of-way of a highway that is part of the National Highway System are limited to:
(1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section,
(2) signs, displays, and devices advertising the sale or lease of property upon which they are located,
(3) signs, displays, and devices, including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located,
(4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, or historic or artistic significance the preservation of which would be consistent with the purposes of this section, and
(5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system.
Appellants’ signs satisfied none of these criteria, and to equate appellants’ signs with those that do is improper.
MEYER, Justice (concurring).
I join in the concurrence of Justice Page.
HANSON, Justice (concurring).
I join in the concurrence of Justice Page.
 The concurrence notes, and we agree, that appellant’s signs were qualitatively different than traffic safety and informational signs. But that qualitative difference is, in this case, immaterial. The state has primarily argued that because appellants intended motorists to look at their signs, the public was endangered. The state has not focused on the graphic content of the signs, perhaps in order to avoid the very First Amendment problems that the concurrence raises. Thus, it is appropriate to note that signs, of whatever type, and wherever placed, are an omnipresent feature in the life of a motorist.
 At the time in question, Section 36-82.1 read in pertinent part:
* * *
(b) The following signs do not require a permit or permit fee; however, the other requirements of this Article shall apply:
(1) Temporary political signs.
Statutes § 173.08, subd. 1 (2006), similarly bars the placement of “advertising
devices” adjacent to the right-of-way of an interstate or trunk highway. Minnesota Statutes § 173.02, subd. 16 (2006),
defines “advertising device” broadly:
“any billboard, sign, notice, poster, display, or other device visible
to and primarily intended to advertise and inform or to attract or which does
attract the attention of operators and occupants of motor vehicles * * *.” Minnesota Rule 8810.0500 (2005) makes “[a]ll
signs erected or encroaching on any right-of-way” illegal, with exceptions not
applicable to appellants or their signs.
See Minn. Stat. § 14.38, subd.
1 (2006); U.S. W. Material Res., Inc. v.
Comm’r of Revenue, 511 N.W.2d 17, 20 n.2 (
 The Minnesota Manual on Uniform Traffic Control Devices is available at http://www.dot.state.mn.us/trafficeng/otepubl/mutcd/index.html (last visited June 19, 2007). It prescribes, for example, that guide signs (that is, signs showing such things as route designations, destinations, directions, and distances, as defined in chapter 2A.5.C) on freeways and expressways must have white legends and borders on a green background (chapter 2E.4), that letters on guide signs must be at least 200 mm (8 inches) high (chapter 2E.13), and that exit numbers are placed on the left edge of the sign for a left exit and the right edge of the sign for a right exit (chapter 2E.33).
 A map
of the trunk highways in