State v. Niska

380 N.W.2d 646, 1986 N.D. LEXIS 250
North Dakota Supreme Court·Decided January 22, 1986·No. Cr. No. 1123·Published·Cited by 1 cases

Opinion

LEVINE, Justice.

Charles A. Niska appeals from a judgment of conviction for practicing law without a license in violation of North Dakota Century Code § 27-11-01. We affirm.

The facts are not disputed. Niska drafted pleadings for Richard Schmidt and advised him in three civil cases and one criminal action in which Schmidt was involved. Upon these facts the jury found Niska guilty of four counts of violating § 27-11-01 by practicing law without a license.

Although what constitutes the practice of law does not lend itself to an inclusive definition, it clearly includes Niska’s drafting of legal instruments and pleadings and providing legal advice. Cain v. Merchants Nat. Bank & Trust Co. of Fargo, 66 N.D. 746, 268 N.W. 719 (1936); see also Bluestein v. State Bar of California, 13 Cal.3d 162, 118 Cal.Rptr. 175, 529 P.2d 599 (1974); Washington State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wash.2d 48, 586 P.2d 870 (1978).

Niska however asserts three grounds for overturning his conviction: first, the trial court had no jurisdiction; second, he was not informed of the charges against him in violation of the sixth amendment; and third, NDCC § 27-11-011 is unconstitutional as applied to him.

1.

Niska argues that the Morton County court did not have jurisdiction in this case. NDCC § 27-11-01 and Chapter 27-03 confer jurisdiction on the Morton County court over criminal misdemeanors occurring in that county. Practicing law without a license is a criminal misdemeanor. The conduct which led to Niska’s conviction took place in Morton County. The Morton County court therefore had jurisdiction in this case.

2.

Niska next asserts that his sixth amendment rights were violated because he was not informed of the charges against him. A criminal complaint need only be specific enough to advise a defendant of the charge against him and to enable him to prepare for trial. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); State v. Motsko, 261 N.W.2d 860 (N.D.1977). The complaint clearly set out the elements of the crime with which Niska was charged. In addition, at Niska’s initial appearance the trial judge further explained the nature of the charges against him. If Niska did not understand the crime he was charged with he could have sought the advice of either retained or appointed counsel. We hold that Niska was adequately informed of the charges against him in accordance with the sixth amendment.

3.

Niska argues that in drafting legal documents for Schmidt and in giving him legal advice he was exercising his constitutionally protected rights of speech and assembly. Niska therefore claims that § 27-11-01, although facially valid, when applied to him violates the first amendment to the United States Constitution and Article I, §§ 4 and 5 of the North Dakota Constitution.

SPEECH

Apparently Niska asserts that in practicing law he was exercising his freedom of speech. Therefore the State, in enforcing the criminal sanction of § 27-11-01 to pre-[649] elude him from practicing law, unconstitutionally prohibited him from exercising his freedom of expression.

However, Niska does not claim that § 27-11-01 was enacted to suppress speech which the State finds distasteful; nor is there evidence that the statute was applied to him because of his expressed views. Thus it is evident that § 27-11-01 was not enforced against Niska in order to quash the political views he was expressing by means of his legal advice and pleadings. Instead, § 27-11-01 was enforced to prohibit Niska from the unauthorized practice of law. Any resulting limitation of his speech was merely indirect and incidental. Government regulation which only incidentally restricts speech, is valid if four criteria are met:

1. The regulation is within the constitutional power of the state;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression;
4. The incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. Albertini, — U.S. —, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). We conclude that in this case § 27-11-01 satisfies all of these requirements.

The State’s constitutional power to regulate the practice of law is well established. Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 1289 (1964); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). Section 27-11-01 is well within the constitutional power of the state.

North Dakota has not only an “important and substantial” interest, but a compelling one (see Goldfarb v. Virginia State Bar, infra), in regulating the practice of law within its borders: protecting the public. State v. Cramer, 399 Mich. 116, 249 N.W.2d 1 (1976). The State has an interest in licensing attorneys and making them the exclusive practitioners in their field in order to protect the unwary and uninformed from injury at the hands of unqualified persons performing legal services. Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788 (1951); New Jersey State Bar Ass’n v. Northern N.J. Mortg. Assoc., 22 N.J. 184, 123 A.2d 498 (1956). This state interest is advanced by the licensing requirements and criminal sanctions in § 27-11-01.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Niska, 380 N.W.2d 646, 1986 N.D. LEXIS 250 (N.D. 1986).

380 N.W.2d 646 (State v. Niska) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Niska
380 N.W.2d 646 (North Dakota Supreme Court, 1986)