Opinion
DA 24-0096
10-22-2024
STATE OF MONTANA, Plaintiff and Appellee, v. JOHN RUNKLE, Defendant and Appellant.
For Appellant: John Runkle, Self-Represented, Boerne, Texas For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
Submitted on Briefs: July 24, 2024
APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 22-113 Honorable Matthew J. Cuffe, Presiding Judge
COUNSEL OF RECORD:
For Appellant: John Runkle, Self-Represented, Boerne, Texas For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana
Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
OPINION
Mike McGrath, Chief Justice.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 John D. Runkle appeals (pro se) from the December 19, 2023 conviction by a jury of a violation of Lincoln County Parks Ordinance 2018-04-03(13), prohibiting commercial activity in county parks, for operating his food truck without permission in a county park. We affirm.
Available at https://perma.cc/H6CM-T4EF.
¶3 Runkle was convicted by a jury in Justice Court. He appealed to the District Court and received a new trial. Before trial, Runkle filed a motion to dismiss arguing, among other things, (1) he had permission from the County to conduct commercial activity in the park because his food truck was licensed by the County, and (2) the ordinance was vague because it did not refer to licensed mobile food vendors. The District Court denied Runkle's motion, finding that his motion lacked legal authority and refusing to consider it. Runkle was convicted in another jury trial. Runkle appeals.
¶4 Runkle first argues that the ordinance is unconstitutionally vague. The State argues we should not consider Runkle's argument because we generally do not allow appellants to raise a new issue for the first time on appeal. See, e.g., State v. Heffner, 1998 MT 181, ¶ 35, 290 Mont. 114, 964 P.2d 736. However, Runkle did raise this issue below in his motion to dismiss, he just failed to cite legal authority in support of his argument. "It is well-established that, on appeal, a party may bolster his preserved issues with additional legal authority . . . but may not raise an entirely new legal theory." State v. Norman, 2010 MT 253, ¶24, 358 Mont. 252, 244 P.3d 737. Runkle sufficiently preserved his vagueness challenge below and may now bolster his argument with additional legal authority; excluding consideration of the argument would be an unduly harsh application of the rule.
¶5 "A criminal statute is unconstitutionally vague if a person is required to speculate as to whether his contemplated course of action may be subject to criminal penalties." City of Billings v. Albert, 2009 MT 63, ¶ 16, 349 Mont. 400, 203 P.3d 828 (internal quotation omitted). A statute must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Albert, ¶ 16. It need not provide perfect clarity or precise guidance but must give a person fair notice that his conduct is forbidden. State v. Samples, 2008 MT 416, ¶ 17, 347 Mont. 292, 198 P.3d 803. It may be challenged as so vague to be void on its face or vague as applied to a particular situation. Samples, ¶ 16. To show that a statute is void on its face, the challenger must show it is impermissibly vague in all of its applications. Samples, ¶ 17.
¶6 Here, Runkle brings an as applied vagueness challenge as he only challenges the statute as it applies to people who have been licensed by the County to sell food out of a food truck. A statute is unconstitutionally vague as applied to a defendant if it fails to provide actual notice to the defendant or fails to provide minimal guidelines to law enforcement regarding the defendant's conduct. State v. Hamilton, 2018 MT 253, ¶ 20, 393 Mont. 102, 428 P.3d 849.
¶7 Runkle acknowledges that he was warned multiple times before being cited that he was in violation of the ordinance-he thus had actual notice. See Albert, ¶ 21 (actual notice provided by multiple warnings prior to citation). Further, there are sufficient minimal guidelines to govern law enforcement. The ordinance prohibits persons from "us[ing park] lands for any commercial purpose without prior permission from the Board ...." Lincoln County Parks Ordinance 2018-4-3(13). It defines Board as the Board of County Commissioners. Lincoln County Parks Ordinance 2018-4-2(3). And it states that the permission required may be obtained "by contacting the County Commissioner of the District in which the specific park or recreational area is located." Lincoln County Parks Ordinance 2018-4-4. The officer who cited Runkle received a complaint that he was operating without Board permission and further investigated to verify that Runkle did not have permission before citing him. There were sufficient minimal guidelines to instruct the officer on its enforcement.
¶8 Nor do we agree with Runkle's argument that the license the County granted him to operate a food truck necessarily extended permission to operate in all areas in the County. Runkle cites to dictionary definitions that show that "permission" is usually used in definitions of "license." While that may be true, that does not mean that the license the County granted him also granted him the permission necessary to operate a commercial business in the park. For example, the first definition of license in Black's Law Dictionary says: "A privilege granted by a state or city upon the payment of a fee, the recipient of the privilege then being authorized to do some act or series of acts that would otherwise be impermissible. A license in this sense is a method of governmental regulation exercised under the police power, as with a license to drive a car, operate a taxi service, keep a dog in the city, or sell crafts as a street vendor." Black's Law Dictionary 1104 (Bryan A. Garner ed., 11th ed. 2019). Just because Runkle has been licensed to do some act-i.e., sell food out of a food truck-does not mean that he has been given permission to do that act in any location he pleases. In the example given in Black's Law Dictionary, a person licensed to keep a dog in a city would not be allowed to bring that dog into a park that prohibited pets. Nor does someone given a license to drive a car have permission to drive on walking paths in the park. A general parking pass would be overridden by a sign that says "no parking between midnight and 2 a.m." Although not inconsistent here, we are mindful that a specific intent generally overrides a general intent. E.g., § 1-2-102, MCA. The County may have had the general intent to allow Runkle to sell food out of his food truck, but it had the specific intent to keep commercial uses out of public parks. Runkle's license did not allow him to sell food out of his food truck in any location he pleases.
¶9 Finally, Runkle argues that enforcement of the ordinance violated his right to equal protection under the law. Runkle did not make this argument in the District Court below. While Runkle may bolster his preserved issues with additional legal authority on appeal, he "may not raise an entirely new legal theory." Norman, ¶24. Accordingly, we will not consider Runkle's equal protection arguments on appeal.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶11 Affirmed.
We Concur: LAURIE McKINNON, JAMES JEREMIAH SHEA, INGRID GUSTAFSON, JIM RICE