vagueness doctrine in North Dakota

2007“The mere use of general language does not support a vagueness challenge: ‘The test of defmitiveness of a statute is met if the meaning of the statute is fairly ascertainable by reference to similar statutes or to the dictionary, or if the questioned words have a common and generally accepted meaning.’ ” Olson v. City of West Fargo, 305 N.W.2d 821, 828 (N.D.1981) (quoting State v. Woodworth, 234 N.W.2d 243, 246 (N.D.1975)). 1 [¶ 20] “Excessive” means “being too much or too great; immoderate; inordinate.” Webster’s New World Dictionary 488 (2d ed.1980).

1981The mere use of general language does not support a vagueness challenge: “The test of definitiveness of a statute is met if the meaning of the statute is fairly ascertainable by reference to similar statutes or to the dictionary, or if the questioned words have a common and generally accepted meaning.” Woodworth, supra, 234 N.W.2d at 246 .

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025State v. Tibor, 373 N.W.2d 877, 880 (N.D. 1985) (“To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his 23 own conduct, without regard to its potentially vague application in other circumstances.”).

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025In City of Belfield v. Kilkenny, we noted: “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kolender [v. Lawson], 461 U.S. [352,] 358, 103 S.Ct. 1855 [(1983)] (quoting Smith v. Goguen, 415 U.S. 566, 574 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974)).

2025“If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Id.

2025If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply. 455 U.S. 489, 498-99 (1982) (footnotes omitted). [¶15] As a licensee, the Windbreak is subject to F.M.C. § 25-1509.2 which places restrictions on obviously intoxicated or impaired persons.

1992Kolender v. Lawson, supra; State v. Woodworth, supra; State v. Hagge, 211 N.W.2d 395, 397 (N.D.1973); see also 21 Am.Jur.2d Criminal Law [Section] 17.” Id.

1975The mere use of general language does not support a vagueness challenge. *246 In State v. Hagge, supra, this court had under consideration the constitutionality of Section 39-09-01, N.D.C.C., which read as follows at the time: “Any person driving a vehicle upon a highway shall drive the same in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances.

2025Stay Op., 2025 ND 26, ¶ 20; Olson, 305 N.W.2d at 828. [¶143] As to “serious health risk,” this Court rejected a vagueness challenge to the similar terms “serious bodily injury” and “substantial bodily injury” in the context of a criminal prosecution for a Class C Felony (the same offense classification at issue here).

2025Stay Op., 2025 ND 26, ¶ 20; Olson, 305 N.W.2d at 828. [¶143] As to “serious health risk,” this Court rejected a vagueness challenge to the similar terms “serious bodily injury” and “substantial bodily injury” in the context of a criminal prosecution for a Class C Felony (the same offense classification at issue here).

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025We did not apply a more stringent vagueness test when we considered a vagueness challenge implicating the “fundamental natural right of a parent . . . [which] has been recognized to be of constitutional dimension.” In re J.Z., 190 N.W.2d at 29, 35–36 (rejecting vagueness challenge to “without proper parental care or control”) (superseded by rule on other grounds).

2025We did not apply a more stringent vagueness test when we considered a vagueness challenge implicating the “fundamental natural right of a parent . . . [which] has been recognized to be of constitutional dimension.” In re J.Z., 190 N.W.2d at 29, 35–36 (rejecting vagueness challenge to “without proper parental care or control”) (superseded by rule on other grounds).

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“Vague laws may trap the innocent because they fail to provide adequate warning of what conduct is prohibited, and they may result in arbitrary and discriminatory application because a vague law delegates basic policy matters to those who apply the law, allowing the law to be applied on an ad hoc and subjective basis.” State v. Holbach, 2009 ND 37, ¶ 24, 763 N.W.2d 761. [¶15] To survive a vagueness challenge, laws require a degree of specificity: A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enfor

2025“Vague laws may trap the innocent because they fail to provide adequate warning of what conduct is prohibited, and they may result in arbitrary and discriminatory application because a vague law delegates basic policy matters to those who apply the law, allowing the law to be applied on an ad hoc and subjective basis.” State v. Holbach, 2009 ND 37, ¶ 24, 763 N.W.2d 761. [¶15] To survive a vagueness challenge, laws require a degree of specificity: A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enfor

2025This Court has recognized the chilling or deterrent effect a vague law may have in the context of a vagueness claim advanced by anti-abortion protestors, explaining: “The prohibition against overly vague laws protects people from having to voluntarily curtail First Amendment activities because of a fear those activities could be characterized as illegal activities due to an unconstitutionally vague statute.” Fargo Women’s Health Org., Inc. v. Lambs of Christ, 488 N.W.2d 401, 409 (N.D. 1992). [¶31] The State has not advanced a rationale for why a vagueness claim related to speech or religion sh

2025This Court has recognized the chilling or deterrent effect a vague law may have in the context of a vagueness claim advanced by anti-abortion protestors, explaining: “The prohibition against overly vague laws protects people from having to voluntarily curtail First Amendment activities because of a fear those activities could be characterized as illegal activities due to an unconstitutionally vague statute.” Fargo Women’s Health Org., Inc. v. Lambs of Christ, 488 N.W.2d 401, 409 (N.D. 1992). [¶31] The State has not advanced a rationale for why a vagueness claim related to speech or religion sh

2018State v. Ness , 2009 ND 182 , ¶ 6, 774 N.W.2d 254 . [¶ 13] In North Dakota, "[t]o have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances." State v. Tibor , 373 N.W.2d 877 , 880 (N.D. 1985) ; City of Fargo v. Windmill, Inc. , 350 N.W.2d 32 , 36 (N.D. 1984) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.").

1985To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances. 3 Parker v. Levy, 417 U.S. 733 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974); City of Fargo v. Windmill, Inc., 350 N.W.2d 32 (N.D.1984).

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025We also rejected a vagueness challenge to the statutory term “substantial.” State v. Motsko, 261 N.W.2d 860, 865 (N.D. 1977) (“As used in Section 12.1-18-04, it means ‘significant,’ ‘important,’ or ‘real,’ as distinguished from ‘insignificant,’ ‘trivial,’ ‘nominal,’ or ‘imaginary.’“).

2025We also rejected a vagueness challenge to the statutory term “substantial.” State v. Motsko, 261 N.W.2d 860, 865 (N.D. 1977) (“As used in Section 12.1-18-04, it means ‘significant,’ ‘important,’ or ‘real,’ as distinguished from ‘insignificant,’ ‘trivial,’ ‘nominal,’ or ‘imaginary.’“).

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025The Seventh Circuit Court of Appeals agreed with this logic in Karlin, 188 F.3d 446, when it addressed a vagueness challenge to a law using an objective reasonableness standard for determining if a medical emergency justified waiving informed consent requirements.

2025The court rejected the vagueness challenge because the law imposed “no risk of incarceration nor is a violator labeled with the stigma of having been convicted of a misdemeanor or felony offense.” Id. at 477. [¶44] Unlike the law in Karlin, or civil malpractice litigation generally, N.D.C.C. ch. 12.1-19.1 applies an objective reasonableness standard while imposing severe criminal penalties.

2025When such constitutionally protected behavior may be inhibited, a greater degree of specificity is required than when a law does not implicate constitutionally protected liberties.” 8 Robertson v. City & Cnty. of Denver, 874 P.2d 325, 334 (Colo. 1994) (en banc) (citations omitted).

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025In my view, Colautti’s application of chilling effect doctrine and other heightened scrutiny borrowed from the First Amendment is an example of a “major distortion in the Court’s constitutional jurisprudence,” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting), that Dobbs overruled.

2025In my view, Colautti’s application of chilling effect doctrine and other heightened scrutiny borrowed from the First Amendment is an example of a “major distortion in the Court’s constitutional jurisprudence,” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting), that Dobbs overruled.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025Stay Op., 2025 ND 26, ¶ 20; Olson, 305 N.W.2d at 828. [¶143] As to “serious health risk,” this Court rejected a vagueness challenge to the similar terms “serious bodily injury” and “substantial bodily injury” in the context of a criminal prosecution for a Class C Felony (the same offense classification at issue here).

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged and a more stringent vagueness test will be applied where a statute imposes a criminal penalty”). 10 IV [¶17] The State argues that allowing the Plaintiffs to bring their facial vagueness claim “wou

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.

2025“A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.” State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v. Lawson, 461 U.