State v. Kenny

932 N.W.2d 516

STATE of North Dakota, Plaintiff and Appellee

v.Donna Jeanne KENNY, Defendant and Appellant

No. 20190030

Supreme Court of North Dakota.

Filed August 22, 2019

Rehearing Denied October 29, 2019

Justin J. Schwarz, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

Crothers, Justice.

[¶1] Donna Kenny appeals from a criminal judgment entered after a jury found her guilty of violating two disorderly conduct restraining orders. We conclude that N.D.C.C. § 12.1-31.2-01(5) does not violate her constitutional right to due process, N.D.C.C. § 12.1-31.2-01 is not unconstitutionally overbroad, and sufficient evidence exists to convict her of violating the disorderly conduct restraining orders. We affirm.

I

[¶2] On September 27, 2018, a district court referee entered two temporary disorderly conduct restraining orders against Kenny, which were sought by two of her neighbors. The neighbors live in the same five-unit condominium complex. A deputy sheriff served Kenny with the orders on the same day. The orders prohibited Kenny from having any physical contact with or coming within 100 feet of the two neighbors. A hearing on the temporary orders was scheduled for October 8, 2018.

[¶3] On September 28, 2018, Kenny approached the two neighbors at a backyard fire to ask who had parked in her spot in the common parking lot of the condominium complex. According to the neighbors, they advised Kenny she was not allowed to speak to them. Both neighbors testified that Kenny replied with either "shove it up your ass" or "stick it up your ass." The neighbors called the police, and Kenny was arrested for violating the restraining orders.

[¶4] On October 1, 2018, the State charged Kenny with two counts of violation of a disorderly conduct restraining order, both class A misdemeanors. In January 2019, a jury found her guilty of both counts.

II

[¶5] Kenny argues that N.D.C.C. § 12.1-31.2-01(5), which provides for a disorderly conduct restraining order, violates the constitutional right to due process.

[¶6] "The constitutionality of a statute is a question of law, and we uphold the statute unless its challenger can demonstrate the statute’s unconstitutionality." State v. Norman , 2003 ND 66, ¶ 21, 660 N.W.2d 549. Under N.D.C.C. § 12.1-31.2-01, the district court "has discretion to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order." Gonzalez v. Witzke , 2012 ND 60, ¶ 8, 813 N.W.2d 592. This statute "creates a special summary proceeding and directs a hearing upon order of the district court." Skadberg v. Skadberg , 2002 ND 97, ¶ 13, 644 N.W.2d 873.

[¶7] At the time of the orders in this case, N.D.C.C. § 12.1-31.2-01 provided, in relevant part:

"1. ‘Disorderly conduct’ means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.... Disorderly conduct does not include constitutionally protected activity.

....

4. If the petition for relief alleges reasonable grounds to believe that an individual has engaged in disorderly conduct, the court, pending a full hearing, may grant a temporary disorderly conduct restraining order ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order. A temporary restraining order may be entered only against the individual named in the petition. The court may issue the temporary restraining order without giving notice to the respondent. Unless otherwise terminated by the court, the temporary restraining order is in effect until a restraining order issued under subsection 5 is served.

5. The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:

a. A person files a petition under subsection 3;

b. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the hearing;

c. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order unless the time period is extended upon written consent of the parties, or upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence; and

d. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

....

8. If the respondent knows of an order issued under subsection 4 or 5, violation of the order is a class A misdemeanor. If the existence of an order issued under subsection 3 or 4 can be verified by a peace officer, the officer, without a warrant, may arrest and take into custody an individual whom the peace officer has probable cause to believe has violated the order.

...."

(Emphasis added.)

[¶8] Kenny argues that "both" N.D.C.C. § 12.1-31.2-01(4) and (5) allow for a disorderly conduct restraining order to be issued without first holding any type of hearing, in violation of her constitutional right to due process, and that the statute is unconstitutional on its face and as applied to her.

[¶9] This Court has said "restraining orders are a species of injunction, distinguished basically by their temporary nature." Svedberg v. Stamness , 525 N.W.2d 678, 681 (N.D. 1994) (citing Gunsch v. Gunsch , 69 N.W.2d 739, 749 (N.D. 1954) ). We further explained:

"Generally injunctions have ‘no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes.’ 43A C.J.S. Injunctions § 158. This is because, ordinarily, criminal sanctions provide the remedy for such violations. In this situation, however, the legislature has empowered the court to restrain criminal conduct upon a showing that reasonable grounds exist that tend to show disorderly conduct was committed. NDCC § 12.1-31.2-01.

"An ‘injunction against acts in violation of law is proper where there is express statutory authority therefor.’ 43A C.J.S Injunctions § 158. When such authority exists, ‘[i]njunctive relief under such statutes is not conditioned upon common law requirements but solely upon the terms of the statute.’ Id. The statutory authority to enjoin these criminal acts provides the sole basis for the trial court’s actions in this case."

Svedberg , 525 N.W.2d at 681. "[A] temporary restraining order, which may be issued ex parte without a hearing , is a species of injunction, typically brief in duration, that has as its purpose maintaining the status quo until a determination can be made on the temporary injunction issue." State v. Holecek , 545 N.W.2d 800, 804 (N.D. 1996) (emphasis added) (citing Amerada Hess Corp. v. Furlong Oil & Minerals , 336 N.W.2d 129, 132 (N.D. 1983) ; 42 Am. Jur.2d Injunctions 10 (1969) ). "[O]rdinarily, a temporary restraining order precedes a temporary or preliminary injunction, which in turn precedes a permanent injunction if, after a hearing on the merits, a permanent order is found to be necessary." Holecek , at 804.

[¶10] Under N.D.C.C. § 12.1-31.2-01(4), the district court may issue a temporary disorderly conduct restraining order based on the allegations in the petition, if the petition alleges reasonable grounds to believe an individual has engaged in disorderly conduct, "ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order." The court must then hold a full hearing "not later than fourteen days" after issuing the temporary order, unless otherwise agreed to by the parties, before granting a long-term disorderly conduct restraining order, not to exceed a period of two years. N.D.C.C. § 12.1-31.2-01(5), (6). See Meier v. Said , 2007 ND 18, ¶ 14, 726 N.W.2d 852. Under the statute’s plain language, while the temporary order may be entered without a hearing, the court must hold a hearing before entering a long-term order. Section 12.1-31.2-01(5)(b), N.D.C.C., requiring the respondent to be served with the temporary order, is one of the elements the State must establish before a long-term order is issued. Moreover, under N.D.C.C. § 12.1-31.2-01(8), the respondent must know of a temporary order issued under N.D.C.C. § 12.1-31.2-01(4) or (5) before the respondent can be found to have violated the order.

[¶11] In this case, Kenny was charged with violating the temporary orders issued under N.D.C.C. § 12.1-31.2-01(4), before the hearing on the temporary orders could be held under N.D.C.C. § 12.1-31.2-01(5). She was ultimately convicted of violating the temporary orders. On this record, Kenny’s constitutional argument that N.D.C.C. § 12.1-31.2-01(5) violates her constitutional right to due process is without merit.

III

[¶12] Kenny argues N.D.C.C. § 12.1-31.2-01 was "constitutionally overbroad as applied to her."

[¶13] In State v. Francis , 2016 ND 154, ¶ 16, 882 N.W.2d 270, we discussed the overbreadth doctrine:

" ‘The doctrine of overbreadth prohibits the law from criminalizing constitutionally protected activity. A governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broad and thereby invade the area of protected freedoms.’ City of Fargo v. Salsman , 2009 ND 15, ¶ 25, 760 N.W.2d 123 (citations omitted). ‘The overbreadth doctrine permits an individual whose own speech or conduct may be prohibited ... to challenge a statute on its face because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so.’

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