IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ||||
| Plaintiff-Appellant, | ||||
| -vs- | ||||
| Kimberlie Nicole Lamon, | ||||
| District Court Case No. 53-2012-CR-01597 | ||||
| Defendant-Appellee. | Supreme Court Case No. 20120386 | |||
| and, | ||||
| Chelsea Hettich, | ||||
| District Court Case No. 53-2012-CR-00763 | ||||
| Defendant-Appellee, | Supreme Court No. 20120365 | |||
| and, | ||||
| Alexis Stegall, | ||||
| District Court Case No. 53-2011-CR-2379 | ||||
| Defendant-Appellee, | Supreme Court No. 20120362 | |||
BRIEF OF APPELLEES
| Mark Douglas | ND Bar ID #04099 | Adrianne Fernstrom | |||||
| Attorney for Appellee Chelsea Hettich | Attorney for Appellee Alexis Stegall | ||||||
| Williston Public Defenders' Office | Williston Public Defenders' Office | ||||||
| 16 East Broadway | 16 East Broadway | ||||||
| Williston, ND 58802 | Williston, ND 58802 | ||||||
| (701)774-0510 | (701)-774-0510< /td> | ||||||
| Robert W. Martin, Esq., ND Bar ID #04636 | |||||||
| Attorney for Appellee Kimberlie Nicole Lamon | |||||||
| North Dakota Public Defenders' Office--Minot | |||||||
| 11 First Avenue SW | |||||||
| Minot, ND 58701 | |||||||
| (701) 857-7750 | |||||||
| TABLE OF CONTENTS | |||||||||
| Table of Authorities | Page ii | ||||||||
| Statement of the Issue | Paragraph 1 | ||||||||
| Statement of the Case | Paragraph 2 | ||||||||
| Argument and Authorities | Paragraph 3 | ||||||||
| Conclusion | Paragraph 12 | ||||||||
| TABLE OF AUTHORITIES | ||||||||||
| Cases: | Paragraph: | |||||||||
| State v. Geiser, 2009 ND 36, 763 N.W.2d 469 | 1, 2, 6, 7, 8, 9, 10, 11, 12, 15 | |||||||||
| State v. Plentychief, 464 N.W.2d 373 (N.D. 1990) | 6 | |||||||||
| Hanson v. Williams County. 389 N.W.2d 319 (ND 1986) | 14 | |||||||||
| Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984) | 9 | |||||||||
| Kim-Go, H.K. Minerals, Inc. v.J.P. Furlong Enters., Inc., 460 N.W.2d | ||||||||||
| 694 (N.D. 1990) | 5 | |||||||||
| Larson v. Baer, 418 N.W.2d 282 (N.D. 1988) | 4 | |||||||||
| Northern X-Ray Col. v. State ex rel. Hanson, 542 N.W.2d 733 (ND. 1996) | 5 | |||||||||
| Reed v. Hillsboro Pub. Sch. Dist. No.9, 477 N.W.2d 237 (N.D. 1991) | 5 | |||||||||
| Singha v. N.D. State Bd. of Medical Examiners, 1998 ND 42, 574 N.W.2d 838 | 7 | |||||||||
| Statutes: | ||||||||||
| NDCC 1-02-02 | 5 | |||||||||
| NDCC 12.1-17.1 | 9 | |||||||||
| NDCC 12.1-17.1-01(3) | 9 | |||||||||
| NDCC 14-10-01 | 3, 8 | |||||||||
| NDCC 19-03.1-22.2 | 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 15 | |||||||||
| NDCC 19-03.1-22.2(1) (b) | 3, 9 | |||||||||
STATEMENT OF THE ISSUE
[¶1] Whether the lower courts correctly applied this Court's holding and rationale in the case of State v. Geiser, 2009 ND 36, 763 N.W.2d 469 to dismiss the three (3) charges of endangerment of a child on appeal before the Court?
STATEMENT OF THE CASE
[¶2] All three (3) Appellees were charged with endangerment of a child in violation of NDCC 19-03.1-22.2, upon giving birth to children who tested positive for the presence of methamphetamines. Specifically, the State had alleged that the Appellees had "knowingly or intentionally caused or permitted a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia . . ." (Emphasis added). Defense counsel in all three (3) cases made a motion to dismiss said charges based upon this Court's rationale and holding in the case of State v. Geiser, 2009 ND 36, 763 N.W.2d 469, which motions were granted by Judges Rustad and Nelson in the respective cases below.
ARGUMENT AND AUTHORITIES
[¶3] A child is not defined as being a fetus in the North Dakota Century Code. Minors
are, however, defined as persons less than eighteen years of age. Pursuant to the North Dakota Century Code, unless otherwise specified, the term "child" means "minor". Age must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority. See NDCC 14-10-01. In the North Dakota Century Code, unless otherwise specified, a child does not include an unborn fetus. A child means an individual who is under the age of eighteen years. See NDCC 19-03.1-22.2(1) (b). This definition makes no mention of fetuses or unborn children, nor does it refer to any statutory or other provisions pertaining to the same. Therefore, taken in conjunction with NDCC 14-10-01, it is clear that a "child" for purposes of NDCC 19-03-1-22.2, the statute at issue in this matter before the Court, does not include a fetus.
[¶4] It is a matter of statutory construction that whenever words or phrases are defined by statute that definition may be relied upon in construing the meaning of those words or phrases in a similar statute. Larson v. Baer, 418 N.W.2d 282 (N.D. 1988). The language of NDCC 19-03.1-22.2 provides, in pertinent part:
(A) person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia is guilty of a class C felony. (Emphasis added).
[¶5] Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in the Century Code are to be understood as thus explained. NDCC 1-02-02. Unless words in a statute are defined in the North Dakota Century Code, they are to be given their plain, ordinary, and commonly understood meaning. Kim-Go, H.K. Minerals, Inc. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990); Reed v. Hillsboro Pub. Sch. Dist. No.9, 477 N.W.2d 237 (N.D. 1991). When the plain language of a statute is not "transparent", our codified rules of statutory interpretation direct us to look to the North Dakota Century Code itself in determining the meaning of statutory terms. Northern X-Ray Col. v. State ex rel. Hanson, 542 N.W.2d 733 (ND. 1996). As previously noted, the term "child" is defined with particularity for purposes of the North Dakota Century Code in Section 14-10-01, and with regard to Section 19-03.1-22.2 NDCC. Neither of these statutory provisions provides, suggests, nor implies that a fetus is a child.
[¶6] It is a well-settled rule of statutory construction that criminal statutes are strictly construed in favor of the defendant and against the government. State v. Plentychief, 464
N.W.2d 373 (N.D. 1990). Hence, to the extent that there may; be any ambiguity in this case as to the meaning of the term "child", same should be strictly construed in favor of the Appellees and against the Appellant. This Court has specifically held that a district court erred by concluding the charge of endangerment of a child applies to an unborn child. In State v. Geiser, 2009 ND 36, 763 NW 2d 469, as in the case at bar, the issue was whether the charge of endangerment of a child or vulnerable adult applies to an unborn child. Geiser at 6. As in the case at bar, the defendant in Geiser was charged under NDCC 19-03.1-22.2, which provides:
Unless a greater penalty is otherwise provided by law, a person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia ... is guilty of a class C felony. Geiser at7, citing and quoting NDCC 19- 03.1-22.2(2).
[¶7] Section 19-03.1-22.2(1 )(b) NDCC states for the purposes of this section: "{c}hild means an individual who is under the age of eighteen years." When interpreting statutes, the North Dakota Supreme Court has a duty to ascertain the Legislature's intent. Geiser at 8, citing Singha v. N.D. State Bd. of Medical Examiners, 1998 ND 42, 574 N.W.2d 838 (citing County of Stutsman v State Hist. Soc'y., 371 N.W.2d 321,325 (N.D. 1985). The Legislature's intent initially must be sought from the language of the statute as a whole. Id., citing County of Stutsman, 371 N.W.2d at 325.
[¶8] Beyond a plain reading thereof, extrinsic evidence is reviewed to interpret and construe a statute. One type of extrinsic evidence used to interpret statutes in legislative history. The legislative history of North Dakota Century Code Section 19-03.1-22.2 does not indicate that the Legislature intended the statute to apply to unborn children. Geiser at10, citing Hearing on H.B. 1351 before the House Judiciary Committee, N.D. Legis. Sess. (Jan. 22, 2003). Therefore, whether the Legislature used the word "child" or "minor" is irrelevant, because the terms are equivalent. Geiser at 13. NDCC 14-10-01 expressly applies to the entire code unless otherwise specified. Geiser at 16. The Legislature has provided that the age of a child is calculated from the day on which the child is born. NDCC 14-10-01. An unborn child is not a child or minor according to NDCC 14-10-01, and an unborn child is not a child under NDCC 19-03.1-22.2(1)(b). Geiser at 13.
[¶9] For the purposes of NDCC 12.1-17.1, the Legislature defined "unborn child" as: "the conceived but not yet born offspring of a human being, which, but for the action of the actor would beyond a reasonable doubt have subsequently been born alive." NDCC 12.1-17.1-01(3). This makes it clear that if the Legislature wanted to cover unborn children, it could have provided a similar definition of unborn children, as in the previously existing NDCC Chapter 12.1-17.1. Geiser at17. The Court further stated that if it were to hold that NDCC 19-03.1-22.2(1)(b) includes an unborn child, Geiser would be guilty of endangerment of a child, with the victim being her unborn child. The Court went on to state that charging a pregnant woman for a crime allegedly committed against her unborn child violates the express legislative policy of NDCC chapter 12.1-17.1. Geiser at19. The Court further stated that its holding that a pregnant woman cannot be charged for a crime allegedly committed against her unborn child under NDCC 19-03.1-22.2(1) (b) coincides with Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984) and NDCC Chapter 12.1-17.1. Geiser at19.
[¶10] Finally, the Supreme Court stated: "We conclude NDCC § 19-03.1-22.2 does not apply to an unborn child". Geiser at 21. The Appellant argued below that Geiser is distinguishable from the cases at bar in that the fetus was stillborn, and in the cases at bar, the fetuses were born alive. The Appellees would note that no distinction was made or discussed by the Court when reaching its holding in Geiser that NDCC 19-03.1-22.2 does not apply to an unborn child. Hence, any such argument by the Appellant has no bearing to the holding in Geiser as it applies to the case at bar.
[¶11] Further, to interpret Geiser to only apply to a stillborn child would invite an absurd result. Specifically, a pregnant woman who ingests a controlled substance in such quantities as to result in the death of her fetus would suffer no criminal consequence. In contradistinction, a pregnant woman who ingests a lesser quantity of a controlled substance such as to not result in the death of her fetus, but in the birth of a live child with the substance in its system, may be criminally charged with a felony. The Appellees maintain that such a result would not logically be anticipated by the Court in Geiser.
CONCLUSION
[¶12] Again, this matter arises on a somewhat unusual procedural posture, as the State has appealed not one, nor two, but three separate rulings from the two judges chambered in Williams County--the Honorable David Nelson and Joshua Rustad--both of whom applied the Court's holding in the case of State v. Geiser, 2009 ND 36, 763 N.W.2d 469 to a common fact pattern in all three of the cases before the Court. In the barest shorthand--Judges Nelson and Rustad followed this Court's ruling that endangerment of a child pursuant to NDCC 19-03.1-22.2 does not apply to an unborn child. Essentially, the State contends that the holding this Court issued a scant three years ago is factually distinguishable from the instant cases in that the children at issue were live-born children and that this, standing alone, somehow serves to render the lower courts' judgments invalid as a matter of law.
[¶13] The Court's holding in Geiser was clear and forthright--the Court declined to adopt a legal definition of "child" that encompassed an in utero fetus based upon the express intention of the North Dakota State Legislature. The State is not happy with this result--well and good. The State has the alternative of either contacting Its local legislator and asking that a bill be introduced modifying the North Dakota Century Code to incorporate such a definition or to take matters more directly into Its hands and start circulating a petition for an initiated measure that would encompass such a definition. What It is not free to do is to attempt to have this Court act as a legislative body and change the law to suit Its sense of morality and justice.
[¶14] This Court is not a legislative body, nor to act as a "super-legislature" as was noted--ironically enough--in another matter arising out of Williams County. In the case of Hanson v. Williams County. 389 N.W.2d 319 (ND 1986), the Court stated that:
FN5. Recently in Andrews v. O'Hearn, M.D., 387 N.W.2d 716 (N.D.1986) we discussed Article I, § 9. The Andrewses relied upon this provision and construed it to be a guarantee of a remedy through our state judicial system. We noted that the open courts provision has never been interpreted by this court to be an absolute right, Andrews, supra :
"The non-absolute character of Section 9 is readily apparent by a review of this court's decisions interpreting that section as not requiring a remedy for every alleged wrong. And, although this court has, on occasion, used this provision of the North Dakota Constitution to correct a substantive error, we do not believe that Section 9 was intended to promote this court to the position of a super- legislature in charge of ensuring perfect justice and complete remedies, thereby supplanting the traditional function of the jury, the standards employed to evaluate a jury decision, and the rules of evidence, such as Rule 606(b), that protect jury independence by preventing judicial overseeing of the internal workings of the jury. Although there may be occasions where this State constitutional provision is properly employed to protect a litigant against a deprivation of due process, to avert a harsh result that is otherwise inevitable, or to prevent the destruction of the only opportunity for an appropriate remedy, we do not believe that such a situation exists here." Andrews, supra 387 N.W.2d at 723. (Emphasis added).
[¶15] Likewise the State's quest in this matter for a ruling that is contrary to the language and legislative history of NDCC 19-03.1-22.2 as applied by the Court in Geiser, supra, must be deemed fruitless in the manner which the State has approached Its goal. The Legislature has spoken, this Court has interpreted the enactment in question of the sole issue that the State is limited to by virtue of only raising the "live-born" distinction below, and the end result is that the State is seeking relief in the wrong forum at best and in complete disregard for the proper constitutional role of separate branches of government at worst.
| [¶16] | Respectfully submitted this 26th day of December, 2012. | ||||||
| [¶17] | /S/ | ||||||
| Robert W. Martin, ND Bar ID #04636 | |||||||
| Attorney for Appellee | |||||||
| ND Public Defenders' Office--Minot | |||||||
| 11 First Avenue SW | |||||||
| Minot, ND 58701 | |||||||
| (701) 857-7750 | |||||||
| rwmartin | |||||||
| [¶18] | /S/ | ||||||
| Adria nne Fernstrom | |||||||
| Willist on Public Defenders' Office | |||||||
| 16 East Broadway | |||||||
| Willist on, ND 58802 | |||||||
| (701) 774-0510 | |||||||
| af ernstrom | |||||||
| [¶19] | /S/ | ||||||
| Mark Douglas | |||||||
| Willist on Public Defenders' Office | |||||||
| 16 East Broadway | |||||||
| Willist on, ND 58802 | |||||||
| (701) 774-0510 | |||||||
| mado uglas | |||||||