State v. Holbach

20080002 State of North Dakota, Plaintiff and Appellee
v.
Mitchell Holbach, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge David W. Nelson
Nature of Action: Misc. Statutory Offense (Felony)
Counsel:
Appellant: Jay Ryan Greenwood
Appellee: Rozanna Christine Larson , Asst. State's Attorney
Term: 11/2008   Argument: 11/17/2008  10:45am
ND cite: 2009 ND 37
NW cite: 763 N.W.2d 761

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Under N.D.C.C. 12.1-17-07.1, is the Defendant engaged in "constitutionally protected activities" which should be withheld from jury consideration when:
a. The contacts in question occurred where the public has legal rights of way;
b. Many of the contacts took place in the Southwest part of Minot, where the Defendant lives;
c. Many of the contacts took place in predominantly commercial areas of town;
d. Many of the contacts took place at intersections;
e. All of the contacts occurred while the Defendant was engaged in legitimate personal business; and
f. The District Court below ruled that the actions were indeed constitutionally-protected?
II.Under the Constitution of North Dakota, is N.D.C.C. 12.1-17-07.1 illegally overbroad and void for vagueness when it:
a. Does not sufficiently define the criminal offense so that an ordinary person would understand what conduct was being prohibited; and
b. Does not discourage arbitrary and discriminatory enforcement.
First, the Defendant appeals the District Court's Order denying his Motion to find that his actions constituted "constitutionally-protected activity" as defined by the statute. At all times during the period in question, Mr. Holbach was engaged in activities for which he has a constitutional right to do. The lower Court agreed and therefore, it erred in not withholding this evidence from the jury.
Second, Defendant appeals from the District Court's Order denying his Motion to find the statute at issue, N.D.C.C. 12.1-17-07.1, unconstitutionally void for vagueness. The District Court erred because the statute infringes on Mr. Holbach's due process rights. It does not provide a reasonable person with the requisite notice as to what is considered prohibited conduct. In addition, it allows for arbitrary and discriminatory enforcement.


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Docket entries:
101/02/2008 NOTICE OF APPEAL: 12/27/2007
201/02/2008 This case is consolidated w/20080003. Make all docket entries, except DIS & MAN in this case.
301/22/2008 Second Notice of Appeal from Order Denying Change of Venue filed January 16, 2008
401/22/2008 Third Notice of Appeal from Order re: Motion to Determine Constitutionality filed January 16, 2008
501/22/2008 Fourth Notice of Appeal from Order re: Rule 3.2 Motion
601/22/2008 Fifth Notice of Appeal from Verdict of Guilty filed January 16, 2008
701/22/2008 Order for Transcript
802/07/2008 Sixth Notice of Appeal from Judgment file 1-31-08
902/07/2008 ORDER FOR TRANSCRIPT: 02/05/2008
1002/12/2008 Notice of Court Appointed Attorney - Jay R. Greenwood for Mitchell Holbach, Appellant
1103/06/2008 RECORD ON APPEAL 3 Volumes and separates including exhibits and PSI
1203/06/2008 MOT. EXT/TIME TRANSCRIPT
1303/06/2008 ACTION BY TRIAL COURT (MTR). Granted: 04/13/2008
1403/10/2008 Supplemental Clerk's Certificate dated 3-6-08 (Entry Nos. 346 & 347)
1504/14/2008 TRANSCRIPTS DATED December 18, 2007 & February 1, 2008 (2 volumes)
1604/14/2008 DISK - tra (12/18/07 & 2/1/08) (e-mailed)
1704/15/2008 Certificate of Service of TRA
1804/18/2008 Request for extension of time to file trial transcript by Appellant's attorney (letter dtd 4-17-08)
1904/18/2008 ACTION BY CHIEF JUSTICE (expeditiously, which is contemplated to be less than 30 days). Granted: 05/19/2008
2004/18/2008 MOT. EXT/TIME APPELLANT BRIEF (letter dated April 17, 2008)
2104/18/2008 ACTION BY CHIEF JUSTICE (40 days after trial transcript is filed). Granted
2205/19/2008 MOT. EXT/TIME TRANSCRIPT
2305/19/2008 ACTION BY CHIEF JUSTICE. Granted: 05/23/2008
2405/27/2008 DISK - TRAs dated 12-19-07, 12-20-07 & 12-21-07 (e-mailed)
2505/28/2008 MOT. EXT/TIME TRANSCRIPT (Referred to the Chief Justice as Transcripts weren't timely)
2605/28/2008 ACTION BY CHIEF JUSTICE - MTR. Granted: 05/28/2008
2705/28/2008 TRANSCRIPTS (3 Vol.) DATED December 19, 2007, December 20, 2007 & December 21, 2007
2805/30/2008 Certificate of Service of Copies of the transcript of the Jury Trial
2906/11/2008 MOTION & Brief to Withdraw as Attorney of Record with Affidavit of Jay Greenwood
3006/11/2008 Affidavit of Service by Certified Mail of Motion to Withdraw on Holbach
3106/11/2008 Affidavit of Service by Mail on State of North Dakota
3206/13/2008 Response in opposition to Defendant's Motion to Withdraw
3306/13/2008 Affidavit of Service by Mail
3406/26/2008 Letter dated June 25, 2008, from Greenwood supplementing motion to withdraw
3506/26/2008 MOT. EXT/TIME APPELLANT BRIEF (included in Greenwood letter of June 25, 2008)
3606/26/2008 ACTION BY CLERK. Granted: 08/06/2008
3707/03/2008 Letter dated July 2, 2008, from Larson, opposing the motion to withdraw
3807/09/2008 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
3907/09/2008 ACTION BY SUPREME COURT (sua sponte). Granted: 09/05/2008
4007/17/2008 Response from Mitch Holbach entitled Motion for Assignment Appointment of Counsel
4107/18/2008 ACTION BY CHIEF JUSTICE (Motion to Withdraw as Counsel - Jay Greenwood). Denied
4208/15/2008 MOTION FOR Release Pending Appeal
4308/15/2008 E-FILED MOTION (Release)
4408/20/2008 ACTION BY SUPREME COURT (Mot/Release Pending Appeal). Denied
4508/27/2008 Request for New Attorney by Mitchell D. Holbach letter dated 8-24-08
4608/27/2008 NO ACTION TAKEN
4709/05/2008 APPELLANT BRIEF (e-filed)
4809/05/2008 E-FILED BRIEF (ATB)
4909/05/2008 APPELLANT APPENDIX (e-filed)
5009/05/2008 E-FILED APPENDIX (ATA)
5109/05/2008 Certificate of Service of ATB & ATA
5209/08/2008 Certificate of Service of corrected ATB & ATA
5309/09/2008 Clerk's Supplemental Certificate of Record on Appeal (entries 348-386; not recd-376)
5409/10/2008 Clerk's Supplemental Certificate of Record on Appeal (Entries 387-390)
5509/10/2008 Certificate of Service of Second corrected ATB & ATA
5609/12/2008 Received copies of ATB from Central Duplicating
5709/12/2008 Received copies of ATA from Central Duplicating
5809/15/2008 Supplemental Clerk's Certificate dated 9-11-08 (Entry Nos. 376, 391, & 392)
5909/17/2008 EX-PARTE DEMAND FOR RECUSAL OF SUPREME COURT JUSTICES DATED 9-11-08 from Appellant Holbach
6009/17/2008 ACTION BY SUPREME COURT (Ex-Parte Demand for Recusal). Denied
6109/18/2008 Received surcharge for electronically filed ATB (See Journal No. 0000688781)
6210/02/2008 APPELLEE BRIEF
6310/03/2008 DISK - AEB
6411/17/2008 APPEARANCES: Jay R. Greenwood; Rozanna C. Larson, Asst. State's Attorney
6511/17/2008 ARGUED: Greenwood; Larson
6611/17/2008 ORAL ARGUMENT WEBCAST
6704/02/2009 DISPOSITION: AFFIRMED
6804/02/2009 UNANIMOUS OPINION: Crothers, Daniel John
6904/06/2009 Judgment E-Mailed to Parties
7004/08/2009 PETITION FOR REHEARING
7104/08/2009 DISK NONCOMPLIANCE - PER - handwritten
7204/30/2009 ACTION BY SUPREME COURT (PER). Denied
7305/08/2009 Request for Stay of Mandate (Part of Pet/Writ of Certiorari)
7405/08/2009 ACTION BY CHIEF DEPUTY CLERK (Req/Stay/Mandate). Granted
7505/11/2009 STAY PENDING MANDATE UNTIL US SUPREME COURT'S DISPOSITION OF PET/WRIT/CERTIORARI)
7607/16/2009 Ltr from Clerk, U.S.Supreme Ct dtd 7-13-09 re Writ/Certiorari placed on the docket on that date
7710/13/2009 Petition for Writ of Cert to US Supreme Court denied
7810/14/2009 MANDATE
7910/20/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 10/31/2014