State v. Brown

20080257 State of North Dakota, Plaintiff and Appellee
v.
Lori Lee Brown, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Douglas R. Herman
Nature of Action: Violation of City Ordinance
Counsel:
Appellant: Jonathan T. Garaas
Appellee: Charles Justin Sheeley , Asst. State's Attorney
Amicus curiae: Paul Raymond Emerson , Att. General Office
Term: 03/2009   Argument: 03/18/2009  9:00am
ND cite: 2009 ND 150
NW cite: 771 N.W.2d 267

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Is Cass County's Animal Control Ordinance #1998-3 void for any of the following reasons:
A. The North Dakota Legislative Assembly has unconstitutionally delegated its law-making powers to county commissioners;
B. The North Dakota Legislative Assembly has statutorily prohibited the county from attempting to regulate dogs as a public nuisance?
2. Is Cass County's Animal Control Ordinance #1998-3 unconstitutionally vague or overbroad?
3. Does N.D.C.C. Chap. 42-03, entitled "Dogs as Public Nuisance", preempt the county from a prosecution based on an ordinance relating to dogs for conduct not included in the offense defined by state law?
4. Was the County's complaint or information fatally defective rendering the prosecution of the appellant void?
5. Can a Home Rule County create a crime for conduct that is not criminal under state law?
6. Did the Trial Court err, and prejudicially affect the Appellant's right to a fair trial, by proceeding on the basis of an unsworn complaint or information?
7. Was the Appellant improperly denied her right to a trial by jury?
8. Did the County disprove the existence of a defense as required by N.D.C.C.  12.1-01-03?

Appellee's Statement of the Issues:
I.Whether Cass County was properly granted legislative authority to adopt Cass County Animal Control Ordinance #1998-3.
II.Whether the North Dakota Legislature has the sole authority to regulate dogs as nuisances.
III.Whether Cass County Animal Control #1998-3 is unconstitutionally vague or overbroad.
IV.Whether Cass County acted properly when it charged Brown by citation followed by an information in lieu of citation.
V.Whether Lori Brown was entitled to a jury trial for an infraction-level offense when Brown faced a maximum fine of $50.
VI.Whether Lori Brown's barking dogs constitute an agricultural operation under North Dakota Century Code chapter 42-04.

Appellee's Statement of the Issues:
Appellant's Reply Brief Issues: Without expressing dissatisfaction with the issues presented by Lori Lee Brown ["BROWN"], Cass County, purporting to represent the State of North Dakota ["CASS COUNTY"], sets forth different issue(s) as if also aggrieved and appealing from the decision of the lower court. N.D.R.App.P. 28(c).
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Docket entries:
110/13/2008 NOTICE OF APPEAL: 10/10/2008
210/13/2008 ORDER FOR TRANSCRIPT: 10/10/2008
311/10/2008 RETENTION OF RECORD ON APPEAL: 11/29/2008
411/25/2008 TRANSCRIPTS DATED 1/3/08, 3/25/08, 6/17/08, 9/9/08, 9/22/08.
511/25/2008 DISK - tra dated 1/3/08; 3/25/08; 6/17/08; 9/9/08; 9/22/08 (by email)
611/26/2008 RECORD ON APPEAL (not rec'd-entries 2, 25, 35 (tapes))
712/09/2008 Clerk's Supplemental Certificate of Record dated December 8, 2008 (entry nos. 51 & 52).
812/31/2008 Clerk's Supplemental Certificate of Record dated December 8, 2008 (Entry Nos. 54 - 56)
912/31/2008 Amended Notice of Appeal
1001/05/2009 APPELLANT BRIEF
1101/05/2009 attached Addendum to Appellant's Brief
1201/05/2009 APPELLANT APPENDIX
1301/06/2009 Affidavit of Service by Mail of Appellant's Brief
1401/06/2009 DISK - ATB
1501/28/2009 MOTION FOR Filing of Amicus Curiae Brief
1601/28/2009 ACTION BY ACTING CHIEF JUSTICE
1701/28/2009 AMICUS CURIAE BRIEF - on behalf of Attorney General of State of N.D.
1801/28/2009 DISK of ACB - e-mailed
1901/30/2009 MOT. EXT/TIME APPELLEE BRIEF
2001/30/2009 E-FILED MOTION - MAE
2101/30/2009 ACTION BY CLERK. Granted: 02/18/2009
2202/12/2009 APPELLEE BRIEF (e-filed)
2302/12/2009 E-FILED BRIEF (AEB)
2402/13/2009 Letter from Charles J. Sheeley dated 2-12-09 RE: Consent to appearance of 3rd Yr. Law Student
2502/13/2009 Kara Helgeson
2602/19/2009 Affidavit of Service by Mail for AEB
2702/19/2009 Received $25 surcharge for AEB (Receipt #18733).
2802/20/2009 Received 7 copies of AEB from Central Duplicating.
2903/02/2009 REPLY BRIEF
3003/02/2009 ADDENDUM TO REPLY BRIEF
3103/03/3009 DISK - RYB
3203/18/2009 APPEARANCES: Jonathan T. Garaas; Charles J. Sheeley, Asst. Attorney General
3303/18/2009 ARGUED: Garaas; Sheeley
3403/18/2009 ORAL ARGUMENT WEBCAST
3503/18/2009 DISPOSITION: AFFIRMED
3608/18/2009 UNANIMOUS OPINION: Kapsner, Carol Ronning
3708/19/2009 Judgment e-mailed to Parties
3808/31/2009 PETITION FOR REHEARING
3908/31/2009 DISK - per (C-D Rom)
4009/16/2009 ACTION BY SUPREME COURT (Pet/Rehearing). Denied
4109/28/2009 MANDATE
4210/07/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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