State of Minnesota, Respondent, vs. Luke A. Otterstad, Appellant (A05-178), Robert A. Rudnick, Appellant (A05-179).

State of Minnesota, Respondent, vs. Luke A. Otterstad, Appellant (A05-178), Robert A. Rudnick, Appellant (A05-179). A05-178, A05-179, Court of Appeals Unpublished, December 27, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-178

A05-179

 

State of Minnesota,

Respondent,

 

vs.

 

Luke A. Otterstad,

Appellant (A05-178),

 

Robert A. Rudnick,

Appellant (A05-179).

 

Filed December 27, 2005

Affirmed

Toussaint, Chief Judge

 

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

 

Michael J. Scott, 300 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for respondent)

 

Charles R. Shreffler, Jr., Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN 55402-3601 (for appellants)

 

            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.

FACTS

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 Ferry Street overpass of U.S. Highway 10 in Anoka.  One sign was about four feet high by five to six feet wide and appeared "to depict a photograph of an aborted fetus with various body parts."  It was on pink styrofoam backing with the word "abortion" printed on the photo in six-inch letters at the top.  The second sign was the same height but about eight feet wide and contained the words, in 18-inch black letters on pink styrofoam, "Patty Wetterling Is Proabortion."   

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 Ferry Street and that the speed limit on Highway 10 was 55 mph, and the district court took judicial notice that it was daylight.

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 Ferry Street.  When Officer Newton asked appellants to remove the signs, one explained that he would not and asserted his First Amendment rights while the other filmed the incident.

While waiting for backup, Officer Newton observed and reported a rear-end accident on northbound Ferry Street, which he stated was "due to onlookers."  Officer Goodwin arrived and approached appellants.  In his supplemental report, he stated that he asked appellants to remove the signs, explained they were creating a public nuisance, and told them "an accident had occurred in front of them and another accident approximately ten minutes earlier."  They refused to remove the signs and were arrested for creating a public nuisance.  Officer Newton "removed the sign that they attached to the chain link portion of the overpass" and retained it as evidence. 

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 Anoka public nuisance ordinance 21-2(m); and violation of the Anoka sign regulation ordinance 36-83(a).  The state agreed to dismiss as to each appellant all but one count of violating the Anoka sign ordinance on September 21 and one count of violating the public nuisance statute on September 23.  The district court found that each element of the two offenses was proven, and appellants appealed their convictions.

D E C I S I O N

 

I.

 

Public Nuisance Statute, Minn. Stat. § 609.74(1)

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 (Minn. 1989).

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.  Minn. Stat. § 609.74(1) (2004).  Appellants argue that the state did not meet its burden to show that they "intentionally" "maintained a condition" as required under the statute.

"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 (Minn. 2004).

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 (Minn. App. 1990) (stating that "[b]locking traffic" "may be understood by ordinary people of common intelligence as disturbing the peace"), review denied (Minn. Apr. 24, 1990).  Therefore, the state met its burden of proving the requisite intent under the public nuisance statute.

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 legislative intent.  Minn. Stat. § 645.16 (2004).  The statute does not exclude single acts; it begins with the words "whoever by an act" permits or maintains a condition.  "Condition" is used in the statute in its ordinary sense of a "state of being," which alone has no temporal quality.  The American Heritage College Dictionary 290 (3d ed. 1993).  Similarly, neither the verb "permitting" nor "maintaining" requires a permanent condition.  Although some temporal quality is suggested by the verb to "maintain," i.e., to "keep in an existing state," id. at 817, the state need only show that appellants "permitted" a condition, which, again, requires no permanence.  Even if the statute required some permanence of the condition, the record contains the parties' stipulation that appellants repeated their actions of September 21 on the 23, the date of the offense.

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 Ferry Street.  Therefore, appellants' acts on September 23 constituted a violation of the public nuisance statute. 

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).  Minnesota statutes are generally presumed to be constitutional, but a law restricting first amendment rights "does not bear the usual presumption of constitutionality normally accorded to legislative enactments."  Johnson v. State Civil Serv. Dep't, 280 Minn. 61, 66, 157 N.W.2d 747, 751 (1968).

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 U.S. 781, 791, 109 S. Ct. 2746, 2754 (1989) (citation omitted).  Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech."  Id. (citation omitted).  "‘[A] sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.'"  State v. Miner, 556 N.W.2d 578, 585 (Minn. App. 1996) (quoting United States v. O'Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 1678-79 (1968)).

The public nuisance statute falls under the state's criminal code which is aimed at protecting the public safety and welfare.  Minn. Stat. § 609.01 (2004).  Public safety is a fundamental interest of state government, see In re Welfare of C.P.K., 615 N.W.2d 832, 835 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000), and protection of citizens' health and safety is a well established substantial government interest.  Frye v. Kansas City Mo. Police Dep't, 375 F.3d 785, 791 (8th Cir. 2004); Brayton v. City of New Brighton, 519 N.W.2d 243, 247 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).  This justification for the public nuisance statute is unrelated to the content of speech.  Moreover, the statute contains no language prohibiting speech or communication and, here, only incidentally prohibits expression that adversely affects the public safety of a "considerable number of members of the public."  Minn. Stat. § 609.74.  Appellants' actions thus are not constitutionally protected.  See C.P.K., 615 N.W.2d at 835 (concluding that nonverbal expressive activity of cross-burning constitutionally fell within statute prohibiting possession of explosive and incendiary devices). 

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 U.S. at 383, 88 S. Ct. at 1682.  As evidence of the officers' improper motive, appellants cite to the descriptions of the signs as "graphic."  The record contains no allegations or comments that the officers found the signs "offensive" or that their offensive nature was the nuisance.  Cf. Frye, 375 F.3d at 785 (determining that officers' restrictions on demonstrators were content-neutral and proper time, place, and manner restrictions when record contained reports by passersby of "offensive signs" and drivers statements that they were "shocked" and their children "upset" at viewing signs).  The police reports actually tied the offense to the traffic issues: a passerby reported the incident, a driver stopped and yelled at appellants, two accidents had occurred in the near vicinity, and it was rush hour.  In short, the record supports that the officers acted in a content-neutral manner, not for the purpose of suppressing unpopular views. 

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 Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)).  The nature of an offense may require, as a practical necessity, general statutory language to cover variations of conduct that can endanger the public.  See State v. Hipp, 213 N.W.2d 610, 615 (Minn. 1973) (holding that unlawful assembly statute was not unconstitutionally vague).  Use of general language alone does not support a vagueness challenge.  Id.  "[V]agueness must be judged in light of the conduct that is charged to be violative of the statute."  Fetchenhier, 363 N.W.2d at 78.

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.

II.

Anoka City Sign Ordinance, 36-83(a)

 

A.  Ordinance Interpretation

Appellants argue that the district court misinterpreted the Anoka sign ordinance, arguing that their temporary political signs[1] were exempted from the prohibition of signs in the public right-of-way.

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, 608 (Minn. 1980). 

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."  Anoka, Minn., City Code § 36-81.1(jj) (1997).  The ordinance expressly exempts four categories of signs from the requirements of the article governing signs: (1) informational signs displayed strictly for the convenience of the public (e.g., restrooms, building entrances); (2) memorial or historical plaques; (3) wall, window, and awning signs giving a name or profession; and (4) public safety signs.  Id. at § 36-82.1(a).  Another five categories of signs, including temporary political signs, do not require a permit or fee, but "the other requirements of [the article governing signs] shall apply [to them]."  Id. at § 36-82.1(b).  One such requirement of the article governing signs is that "[s]igns shall not be permitted within the public right-of-way or easement."  Id. at § 36-83(a).  The general prohibition against signs in the right-of-way or easement is subject to one exception: the city manager or designee may grant a banner permit for not longer than two weeks to allow temporary signs and decorations to be erected upon or strung across the right-of-way. 

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 (Minn. App. 1994).  Ordinarily, ordinances are "afforded a presumption of constitutionality, [but] ordinances restricting First Amendment rights are not so presumed."  State v. Castellano, 506 N.W.2d 641, 644 (Minn. App. 1993) (citation omitted).  "The burden of proving the need of such a law rests with the government."  Id. (citation omitted).

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, 512 U.S. 43, 48, 114 S. Ct. 2038, 2042 (1994) (stating "because regulation of a medium inevitably affects communication itself, it is not surprising that we have had occasion to review the constitutionality of municipal ordinances prohibiting the display of certain outdoor signs").  If a provision seeks to limit when, where, or how means of expression may be used, it is analyzed to determine if it is a valid "time, place, and manner" regulation.  Hill v. Colorado, 530 U.S. 703, 725-26, 120 S. Ct. 2480, 2494 (2000).  The regulation is valid only if 1) it is justified without reference to the content of the regulated speech; 2) it is narrowly tailored to serve a significant governmental interest; and 3) it leaves open ample alternative channels for communication of the information.  Goward v. City of Minneapolis, 456 N.W.2d 460, 464 (Minn. App. 1990) (citing Ward, 491 U.S. at 791, 109 S. Ct. at 2753).

            "A 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 not others."  Id.  The City's general findings supporting the ordinance indicate that the city "intends to promote the "health, safety and welfare, aesthetics, and image of the community by regulating signs"; that the "manner of installation, location, and maintenance of signs affects the public health, safety, welfare and aesthetics"; that "the safety of motorists, cyclists, pedestrians and other users of public streets and property is affected by the number, size, allocation and appearance of signs that unduly divert the attention of drivers"; and that "temporary signs which are located within or adjacent to public right-of-way . . . result in roadside clutter and obstruction of views of oncoming traffic."  Anoka, Minn., City Code § 36-81.  The City's findings reflect non-content based reasons for regulating signs to protect the public.

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.  See City of Ladue, 512 U.S. at 53, 114 S. Ct. at 2044.  The exempted signs reflect no preference or favoritism for certain types of opinion or political speech over others.  See Brayton, 519 N.W.2d  at 247 (considering ordinance that did not prohibit any particular content); cf. Goward, 456 N.W.2d at 464 (analyzing sign ordinance that permitted campaign-related signs and prohibited political issue signs).  The content of the exempted signs is exclusively neutral information as opposed to political opinion. 

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."  Id. (citation omitted).  Courts defer to a legislature's "reasonable determination" that its interest is best served by its regulation.  Ward, 491 U.S. at 800, 109 S. Ct. at 2759.

The government's interest in regulating traffic, particularly during peak use times, is significant, see Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-8, 101 S. Ct. 2882, 2892-93 (1981) (stating it "is far too late to contend" traffic safety is not substantial government interest); see also Dahl, 676 N.W.2d, 305, 309 (Minn. App. 2004) (noting Fridley's goal in prohibiting motion signs to promote traffic safety by limiting driver distractions was unquestionably substantial government interest), review denied (Minn. June 15, 2004).  Here, Anoka made express findings that right-of-way signs can obstruct views and unduly divert the attention of drivers.  It also expressed a general concern with aesthetics.

Nothing in the record indicates that the Anoka ordinance is substantially broader than necessary to achieve the state's legitimate ends. The ordinance is limited to "signs" which are "affixed" to a structure, and excepts banners obtained by permit.  Within the right-of-way, the ordinance does not affect expression through picketing, leafleting, or speaking.  See Dahl, 676 N.W.2d 305 at 309 (noting alternative means of communicating information).  Billboards, too, are presumably an option to reach the highway drivers.  Because the Anoka sign ordinance furthers a substantial public interest and is not substantially broader than necessary, it does not violate appellants' First Amendment rights.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10. 

[1] Before the district court, the parties agreed that the four signs at issue were "temporary political signs" under the sign ordinance.