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City of Napoleon v. Kuhn

Supreme Court of North Dakota

March 24, 2015

City of Napoleon, Plaintiff and Appellee
v.
Leona J. Kuhn, Defendant and Appellant

Page 461

Appeal from the District Court of Logan County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

Isaac J. Zimmerman, City Attorney, Napoleon, N.D., for plaintiff and appellee.

Donavin L. Grenz, Linton, N.D., for defendant and appellant.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court bye Sandstrom, Justice.

OPINION

Page 462

Sandstrom, Justice.

[¶1] Leona Kuhn appeals from a district court judgment entered after an appeal from a municipal court conviction finding her guilty of violating a City of Napoleon ordinance for improperly disposing of refuse, and from a subsequent court order denying her request for a written restitution order. We affirm in part, concluding sufficient evidence supports Kuhn's conviction, but we reverse Kuhn's sentence and remand to the district court to clarify its sentence.

I

[¶2] This case stems from Kuhn's improper disposal of debris from her house in the Napoleon city dump in late June 2013, after her house had been severely damaged by fire. The City of Napoleon maintains an " inert waste landfill" for its residents, located about two miles southeast of the city. The landfill is subject to the North Dakota Department of Health's rules and regulations, which permit only certain types of garbage in the landfill sorted into separate piles, some of which is burned or buried under the regulations.

[¶3] Kuhn owned a house in Napoleon that had burned about a year before the disposal incident. In June 2013, Kuhn hired a local contractor, Marvin Schnable, to remove the house from the premises and haul the debris to the landfill for her. Kuhn used a key for the landfill that she had previously obtained to unlock the landfill gate and allow Schnable to enter and dump the debris from the home demolition. Rod Kleppe, a city councilman, testified Kuhn had obtained a key to the landfill from him a couple of weeks earlier to dispose of some trees. Kleppe testified he had asked her to return the key but she refused.

[¶4] On June 25, Roger Kristiansen, a city employee who supervised the landfill, went out to the landfill and discovered three or four loads of debris from a home demolition had been dumped at the landfill, which did not meet the criteria for disposal at the site. Kristiansen testified that shortly after he arrived at the landfill, Kuhn and Marvin Schnable arrived with a load of debris from what appeared to be a house demolition. Kristiansen testified he believed the other loads had also come from Kuhn's house. He testified he advised both Kuhn and Schnable the loads did not meet the criteria for disposal at the site but they dumped the load anyway.

Page 463

He also testified Schnable brought and dumped another load later in the week. Kristiansen testified that when he had approached Kuhn about the illegal dumping, she said that " if it ever comes to cleaning this up she will take care of it."

[¶5] In July 2013, Kuhn was charged in Napoleon Municipal Court with improper disposal of refuse in violation of Napoleon city ordinance § 10.0310, an infraction, and with criminal trespass in violation of another Napoleon ordinance, a class B misdemeanor. The municipal court dismissed the criminal trespass charge, but found Kuhn guilty of improper disposal. Kuhn appealed to the district court. At a March 2014 trial, the district court heard testimony from Kristiansen, Kleppe, Schnabel, the Department of Health's environmental scientist, the city police chief, and another city employee. Kuhn did not testify at trial. Kuhn moved for a directed verdict of acquittal, which the court denied, and the court found her guilty of an infraction for improper disposal.

[¶6] The district court entered a criminal judgment, ordering Kuhn to pay a fine of $500 and to remove or relocate rubbish in the dump " to the City's satisfaction." The judgment allowed for a restitution hearing within sixty days " if requested by the City." The judgment then stated, " Deferred Imposition of Sentence of 360 days." In April 2014, Kuhn also moved the court for a restitution hearing, which the court held in May 2014. The district court declined to modify the criminal judgment and subsequently issued an order denying her request for a written restitution order and stating no restitution had been ordered. Kuhn appealed from the criminal judgment and the subsequent order.

[¶7] The municipal court had jurisdiction under N.D.C.C. § 40-18-01. The district court had jurisdiction under N.D. Const. art. VI, § 8, N.D.C.C. § 27-05-06(4), and N.D.C.C. § 40-18-19. Kuhn's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction ...


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