hypothetical scenarios. The three justices disagreed. These justices emphasized that vagueness analysis matters most when criminal penalties risk chilling constitutionally protected conduct.
This concern was particularly acute, these justices reasoned, because the statute regulates time-sensitive medical decision-making. The exceptions to criminal liability involve life and health, which arise in real medical emergencies rather than academic hypotheticals. The justices concluded uncertainty about when the statute’ s exceptions apply could pressure physicians to delay medically appropriate treatment until a patient’ s condition reaches some poorly defined threshold, shifting decisions away from medicine and toward fear of criminal prosecution.
The three justices also concluded the statute’ s lack of clear guidelines creates a substantial risk of ad hoc enforcement. In their view, the statute invites subjective decision-making by law enforcement and prosecutors and leaves too much discretion in the hands of those charged with enforcing the law. The justices concluded the vagueness present in the law invites risk of arbitrary or discriminatory enforcement.
After concluding the statute was unconstitutionally vague, the three justices addressed severability. They concluded severance would not solve the constitutional problem. The challenged language is not a minor side provision; it is embedded in the statutory framework defining when criminal liability attaches and when it does not.
Stripping that language, they reasoned, would leave a law that is either unworkable or would function as an effective blanket ban without constitutionally required protections for medically necessary life and health preserving care. For that reason, they would have invalidated the chapter in full without reaching every other constitutional argument raised by plaintiffs.
Justice Tufte, joined by then-Chief Justice Jensen, disagreed. They rejected applying a heightened vagueness standard – often associated with First Amendment cases – to plaintiffs’ claimed rights under Article I, § 1. Justice Tufte concluded the statute prohibits abortions only in circumstances falling outside the Article I, § 1 rights of defending life and obtaining safety. Because the statute does not implicate those rights in the manner plaintiffs asserted, he concluded a more stringent vagueness standard was not warranted.
Justice Tufte also concluded the statute survives under the ordinary vagueness test. He emphasized the statute contains definitions and uses recognizable legal and professional standards, including the concept of reasonable medical judgment. Medical decision-making necessarily involves evaluation and discretion, and that does not make a statute constitutionally defective. Disagreement about close cases does not equal unconstitutional vagueness.
Justice Tufte and Justice Jensen therefore concluded the district court erred in holding the statute unconstitutionally vague and also erred in concluding Article I, § 1 protects a right to abortion broad enough to conflict with the challenged law. Ultimately, however, the outcome turned not on which side had three votes, but on whether there were four votes to invalidate the statute. There were not. The district court’ s judgment was reversed and the statute was not struck down.
State v. Wallette, 2025 ND 190. Filed on 11 / 5 / 25.
SCOTT D. JENSEN sjensen @ camrudlaw. com
MARK A. GRAINGER mgrainger @ camrudlaw. com
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Triston Wallette appealed from an order denying in part his motion to correct or reduce his sentence and an amended criminal judgment. The Supreme Court affirmed the order and amended judgment, holding the district court did not infringe Wallette’ s constitutional right to be free from cruel and unusual punishment.
Wallette was charged with nine felonies and one misdemeanor for breaking into an airport hangar and causing more than $ 1 million in damage to the hangar, an airplane, and vehicles, and for stealing an ATV. He entered an open guilty plea to the charges. His presentence investigation report revealed a comprehensive criminal history including prior convictions for theft, burglary, criminal mischief / vandalism, resisting arrest, hindering law enforcement, threats of violence, and probation revocations. The district court sentenced Wallette to consecutive sentences on each count amounting to 51 years imprisonment. Wallette filed a motion under N. D. R. Crim. P. 35 arguing his sentence was illegal and also seeking leniency. The district court granted his motion in part, finding his sentence was not illegal, but granting partial leniency, reducing his sentences to
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