                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-1501

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                               Jeffrey Andrew Matiatos,
                                       Appellant.

                                Filed August 22, 2016
                               Affirmed; motion denied
                                    Peterson, Judge

                             Ramsey County District Court
                               File No. 62-VB-15-515

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Samuel J. Clark, St. Paul City Attorney, Ivars P. Krievans, Assistant City Attorney, St.
Paul, Minnesota (for respondent)

Jeffrey Andrew Matiatos, St. Paul, Minnesota (pro se appellant)

      Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

PETERSON, Judge

      Appellant challenges the City of St. Paul’s parking ordinance as unconstitutionally

vague and argues that the district court erred by refusing to consider his request for a

declaratory judgment. We affirm, and we deny appellant’s motion to strike.
                                          FACTS

       On December 24, 2014, at about 1:20 a.m., David Sawacke, a parking-enforcement

officer for the City of St. Paul, was patrolling near 1029 Hazelwood Street when he saw “a

vehicle that was noticeably further away from the curb than the rest that were on the street.”

The car belonged to appellant Jeffrey Andrew Matiatos. Sawacke measured the distance

from the car’s tire to the curb with a tape measure, discovered that the car was parked

almost 23 inches from the curb, and took pictures of the measurement showing the distance

from the curb. Sawacke issued a citation to Matiatos for violating St. Paul, Minn.,

Legislative Code (SPLC) § 157.06(a) (2011), which prohibits parking a vehicle more than

12 inches from “the edge of the roadway.”

       At the court trial, Sawacke testified, “There’s a city ordinance saying that you have

to be parked within a foot of a curb. And this vehicle I could tell before measuring it that

it was over a foot.” On cross-examination, when asked whether the ordinance required a

vehicle to be parked within 12 inches of the roadway’s edge, Sawacke testified, “It’s to my

knowledge that it’s within 12 inches of the curb, not the roadway.” In his summation,

Matiatos argued that the ordinance referred to “the edge of the roadway,” which he

interpreted as meaning from the edge of the asphalt but not including the 23-inch cement

gutter. The district court found Matiatos guilty of violating the ordinance.

       Matiatos appeals from the verdict and moves this court to strike the city’s brief for

mischaracterizing testimony and the language of the city ordinance.




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                                        DECISION

                                                I.

          Before trial, the district court denied Matiatos’s motion for a judgment declaring the

parking ordinance unconstitutional. A person “whose rights, status, or other legal relations

are affected by a . . . municipal ordinance . . . may have determined any question of

construction or validity arising under the . . . ordinance” through a declaratory judgment.

Minn. Stat. § 555.02 (2014). The statute does not specifically forbid or approve the use of

declaratory judgments in criminal actions, but “[t]he court may refuse to render or enter a

declaratory judgment or decree where such judgment or decree, if rendered or entered,

would not terminate the uncertainty or controversy giving rise to the proceeding.” Minn.

Stat. § 555.06 (2014). The district court properly exercised its discretion in refusing to

issue a declaratory judgment; based on its ultimate decision, the district court did not

consider the ordinance to be unconstitutional, and a declaratory judgment that the

ordinance was not unconstitutional would not have terminated the proceeding.

                                                II.

          Matiatos argues that SPLC § 157.06(a) is unconstitutionally vague. The ordinance

states:

                        Parallel to curb, except where marked. No person shall
                 stand or park a vehicle in a roadway other than parallel with
                 the edge of the roadway, headed in the direction of traffic, with
                 the curbside wheels of the vehicle within twelve (12) inches of
                 the edge of the roadway, and in a manner that does not block
                 another vehicle from entering or exiting a legal parking spot,
                 except where marks or signs on the streets indicate that cars
                 shall be parked at an angle.



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SPLC § 157.06(a). Matiatos argues that the phrase “the edge of the roadway” is ambiguous

because it fails to inform whether the “edge of the roadway” relates to the entire width of

the road or to the asphalt-surfaced area, excluding the cement curb and gutter.

       “A city ordinance is presumed constitutional, and the burden of proving that it is

unconstitutional is on the appellant[].” McCaughtry v. City of Red Wing, 831 N.W.2d 518,

522 (Minn. 2013) (quotation omitted). A criminal law is unconstitutionally vague if it fails

“to provide the kind of notice that will enable ordinary people to understand what conduct

it prohibits” or if it “authorize[s] and even encourage[s] arbitrary and discriminatory

enforcement.” State v. Rourke, 773 N.W.2d 913, 917 (Minn. 2009).1 But “[t]he use of

somewhat general language in a statute also does not render it vague.” State v. Christie,

506 N.W.2d 293, 301 (Minn. 1993). The United States Supreme Court explained:

              The root of the vagueness doctrine is a rough idea of fairness.
              It is not a principle designed to convert into a constitutional
              dilemma the practical difficulties in drawing criminal statutes
              both general enough to take into account a variety of human
              conduct and sufficiently specific to provide fair warning that
              certain kinds of conduct are prohibited.

Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957 (1972).

       The ordinance here is entitled “Parallel to curb, except where marked.” SPLC

§ 157.06(a). The body of the ordinance says that a person must park “parallel with the

edge of the roadway,” and “the curbside wheels of the vehicle [must be] within twelve (12)

inches of the edge of the roadway.” Id. The ordinance uses the phrase “[p]arallel to curb”


1
  A petty misdemeanor, such as this parking offense, is not a crime. See Minn. Stat.
§ 609.02, subd. 4a (2014). But petty misdemeanors are governed by the same procedural
rules as those in misdemeanor cases. Minn. R. Crim. P. 23.05, subd. 3.

                                             4
in the title and “parallel with the edge of the roadway,” in the text of the ordinance more

or less interchangeably. Id.

       As the Supreme Court acknowledged in Colten, a criminal statute must “take into

account a variety of human conduct.” 407 U.S. at 110, 92 S. Ct. at 1957. The St. Paul

parking ordinance must deal with a variety of roads and must be broad enough to cover

both roads with curbs and roads without curbs, while giving a fair warning of the prohibited

conduct. The ordinance does not include a definition of roadway, but the generally

understood definition is “[a] road, especially the part over which vehicles travel.” The

American Heritage Dictionary of the English Language 1559 (3d ed. 1992). On a road

with curbs, vehicles are permitted to travel over the entire surface between the curbs

regardless of whether the surface changes from asphalt to cement at the gutter.

       The standard for void-for-vagueness challenges is lower when constitutionally

protected rights are not involved. State, City of Minneapolis v. Reha, 483 N.W.2d 688,

691-92 (Minn. 1992).      “[S]crutiny is more demanding when a defendant challenges a

statute implicating fundamental constitutionally protected activity, such as speech and

assembly, versus a statute prohibiting conduct that is constitutionally within the power of

the state to punish, such as blocking sidewalks or damaging property.” State v. Campbell,

756 N.W.2d 263, 269 (Minn. App. 2008), review denied (Minn. Dec. 23, 2008). When

“most reasonable people” can agree on the meaning of a statute, a degree of certainty exists.

Reha, 483 N.W.2d at 692. Most reasonable people would agree that the parking ordinance

directs drivers to park in a manner that does not impede travel; Matiatos’s argument that

he is permitted to park three feet from the curb is unreasonable.


                                             5
       SPLC § 157.06(a) provides a reasonable person with a fair warning of the conduct

that is prohibited and, thus, is not unconstitutionally vague.

                                             III.

       Matiatos’s motion to strike portions of the city’s brief was referred to this panel.

Matiatos argues that the city improperly summarized Sawacke’s testimony by saying he

“noticed a vehicle . . . more than (12) inches away from the edge of the roadway,” rather

than quoting his testimony that it was more than 12 inches from the curb. He also objects

to the use of the word “or,” when the city argues that the “edge of the roadway” or “the

curb” are synonymous.       Matiatos claims that the city is misleading the court by

mischaracterizing testimony and adding a conjunction to the ordinance.

       Generally, a motion to strike is granted when a party seeks to add materials that are

outside of the appellate record. See Minn. R. Crim. P. 28.02, subd. 8 (defining the appellate

record to include “documents filed in the district court, the offered exhibits, and the

transcript of the proceedings”); State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001)

(stating that appellate court may not base its decision on matters not contained in appellate

record). Matiatos seeks to strike arguments that he says are improper and not based on the

appellate record.

       Sawacke’s testimony is part of the appellate record, and this court relies on the

transcript of testimony and on the language of the ordinance, not the manner in which a

party characterizes testimony or the ordinance. In general, we will not grant a motion to

strike unless there is a flagrant violation of an appellate rule. See Brett v. Watts, 601

N.W.2d 199, 202 (Minn. App. 1999) (refusing to strike statements in brief that did not


                                              6
include citations to record), review denied (Minn. Nov. 17, 1999). We observe no such

flagrant violation.

       Affirmed; motion denied.




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