Gullickson v. Kline

Decision Date13 April 2004
Docket NumberNo. 20030223.,20030223.
Citation678 N.W.2d 138,2004 ND 76
PartiesJody GULLICKSON, Petitioner and Appellee v. John KLINE, Respondent and Appellant.
CourtNorth Dakota Supreme Court

Jody Gullickson (no appearance).

Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for respondent and appellant.

NEUMANN, Justice.

[¶ 1] John Kline appeals from a disorderly conduct restraining order directing him to have no contact with Jody Gullickson. We reverse and remand, concluding that the trial court committed errors during the hearing on the restraining order which, when considered in their totality, denied Kline a full and fair hearing and violated his right to due process.

I

[¶ 2] Jody Gullickson is the mayor of the city of Max, and John Kline is a resident of Max. In June 2003, Gullickson sought a disorderly conduct restraining order against Kline based upon his actions at a city council meeting and upon several incidents involving Kline and Gullickson's husband, Gary.

[¶ 3] In her affidavit in support of the restraining order, Gullickson alleged Kline disrupted the June 2, 2003, city council meeting by asking questions, requesting copies of ordinances, telling council members they should resign so more qualified people could serve, making a racially insensitive remark, and staring at Gullickson with "little beady eyes." Gullickson's remaining allegations involved three incidents between her husband and Kline regarding Gary Gullickson driving his semi-truck through town past Kline's house. Gullickson alleged Kline twice came into the Gullicksons' yard and shouted obscenities at her husband, and on one of these occasions made a sexually disparaging remark about her to her husband. She also alleged Kline on one occasion ran from his yard, jumped on the running board of Gary Gullickson's semi as it passed by, pounded on the window, and hollered "like a crazed man."

[¶ 4] The trial court issued a temporary disorderly conduct restraining order, and a hearing was held on July 2, 2003. At the hearing, Kline disputed most of Gullickson's allegations. He denied disrupting the city council meeting, testifying that he did not glare at Gullickson at the meeting, asked only for copies of the materials being handed to the council members, and asked questions when certain topics were discussed. Regarding the incident in front of his house, Kline testified he was walking across the street when Gary Gullickson failed to stop at a stop sign and hit Kline, and when Gary Gullickson finally stopped his truck Kline stepped up on the running board. He denied hitting the window with his fist or yelling at Gary Gullickson. Regarding the two incidents in the Gullicksons' yard, Kline testified that he went to the Gullicksons' house after Gary Gullickson had again driven his truck through the stop sign near Kline's house and that he went to ask Gary Gullickson if he would take the truck route through town or park his truck elsewhere. Kline claimed that Gary Gullickson repeatedly yelled profanities at him. Kline also stated that he made a sexual remark about Jody Gullickson only after Gary Gullickson had dropped his pants and exposed himself to Kline.

[¶ 5] The district court issued a disorderly conduct restraining order dated July 2, 2003, to be in effect for two years. Kline was ordered to have no contact with Gullickson and to not come within 100 yards of Gullickson or her home. Kline has appealed.

II

[¶ 6] Kline asserts the trial court committed numerous procedural errors which denied him a full and fair hearing and violated due process.

[¶ 7] Under N.D.C.C. § 12.1-31.2-01, a person who has been the victim of disorderly conduct may petition for a disorderly conduct restraining order. The petition must allege facts showing that the respondent has engaged in disorderly conduct, and must be accompanied by an affidavit under oath stating the specific facts and circumstances supporting the relief sought. N.D.C.C. § 12.1-31.2-01(3). The court may issue a temporary restraining order, and must then schedule a full hearing on the petition to be held within fourteen days of issuance of the temporary order. N.D.C.C. § 12.1-31.2-01(4), (5). If, after the hearing, the court finds there are reasonable grounds to believe the respondent has engaged in disorderly conduct, it may grant a disorderly conduct restraining order effective for up to two years. N.D.C.C. § 12.1-31.2-01(5), (6).

[¶ 8] This Court has characterized the procedure under the statute as a "special summary proceeding," intended to "quickly and effectively combat volatile situations before any tragic escalation." Skadberg v. Skadberg, 2002 ND 97, ¶ 13, 644 N.W.2d 873. However, we have also noted the significant restraint placed upon the respondent's liberty and the stigma resulting from a disorderly conduct restraining order. See Tibor v. Lund, 1999 ND 176, ¶ 17, 599 N.W.2d 301. The order typically restricts the respondent's right to be in certain places and subjects the respondent to criminal penalties and arrest without a warrant. See N.D.C.C. § 12.1-32.1-01(7), (8). In addition, copies of the order are sent to local law enforcement agencies, which are authorized to disseminate the information to all of their officers. See N.D.C.C. § 12.1-31.2-01(9); Tibor, at ¶ 17. Clearly these interests create a due process right to a full and fair hearing before issuance of a disorderly conduct restraining order beyond the fourteen-day temporary order.

[¶ 9] We have reviewed the record in this case and we conclude the procedures employed by the trial court, when considered as a whole, deprived Kline of a full and fair hearing and violated his right to due process. We will briefly highlight some of the procedural problems which occurred.

A

[¶ 10] At the beginning of the hearing the court swore in Gullickson, who was not represented by counsel, but had her remain at counsel table rather than take the witness stand. The court then asked Gullickson if everything in her affidavit was true. Gullickson responded yes. The court then asked if Gullickson wished to add anything. Kline's counsel objected on due process grounds, arguing they hadn't received notice of other allegations and requesting a continuance if new matters were raised. The court overruled Kline's objection, and Gullickson testified her husband had told her about two additional incidents between himself and Kline. She also testified about an incident where Kline allegedly took photographs of Gullickson's mother while she was stopped at a stop sign after leaving Gullickson's house. Kline raised hearsay objections to this testimony and portions of Gullickson's affidavit, and requested that Gullickson and the other hearsay "witnesses" be called to the stand to testify about these incidents. The court overruled the objections. [¶ 11] There were numerous problems with this procedure. The statute gives the respondent the right to a "full hearing," not merely one based upon the affidavits alone. We recognize that in Skadberg we allowed a procedure which was short of a full-blown trial. In Skadberg, both parties had presented affidavits, and the respondent was given a full opportunity to cross-examine the petitioner. When asked if he had anything further to present, the respondent indicated he did not. Nor did the respondent at any time during the hearing object to the procedure employed at the hearing. We concluded that the respondent had received a "full hearing" under the statute. Skadberg, 2002 ND 97, ¶ 14,644 N.W.2d 873.

[¶ 12] Skadberg is clearly distinguishable from this case. Kline was not provided a meaningful opportunity to cross-examine Gullickson. Furthermore, much of the material in her affidavit and her "testimony" at trial was inadmissible hearsay, not based upon her personal knowledge. By failing to require other witnesses with personal knowledge of the incidents to testify, Kline had no opportunity to challenge their versions of these incidents. Finally, by allowing Gullickson to raise new allegations without notice to Kline, Kline was not allowed any meaningful opportunity to challenge or rebut that evidence. The right to a fair hearing comporting with due process includes reasonable notice or opportunity to know of the claims of opposing parties and the opportunity to rebut them. Flink v. North Dakota Workers Compensation Bureau, 1998 ND 11, ¶ 16, 574 N.W.2d 784; Municipal Servs. Corp. v. State, 483 N.W.2d 560, 564 (N.D.1992).

[¶ 13] The hearsay nature of the evidence about many of these incidents raises a further, more fundamental problem under the statute. The statute provides that the applicant for a disorderly conduct restraining order must be the "victim" of the prior disorderly conduct, or the parent or guardian of a minor who has been a victim. N.D.C.C. § 12.1-31.2-01(2). "Disorderly conduct" is defined as "intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person." N.D.C.C. § 12.1-31.2-01(1). Thus, the conduct must be intended to adversely affect a person, and the statute does not authorize one person to seek a restraining order based upon disorderly conduct directed at some other person. In this case, the incidents involving Gullickson's husband and mother could not provide the basis for a disorderly conduct restraining order by Gullickson, because the conduct was not directed toward her and she therefore was not the "victim" of the alleged disorderly conduct. In fact, in all of these incidents except one there is no evidence Gullickson was present when the conduct occurred. She stated that she was in her home when one of the incidents between her husband and Kline occurred in her yard, and that she went to the door in time to hear Kline make a sexually disparaging remark about her to her husband. However, the remark was not directed toward her, and could not have been "intended to adversely affect" her "safety, security, or privacy." If...

To continue reading

Request your trial
28 cases
  • Hartleib v. Simes
    • United States
    • North Dakota Supreme Court
    • December 15, 2009
    ...(quoting St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175); see also In re G.R.H., 2006 ND 56, ¶ 24, 711 N.W.2d 587; Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138; Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829; In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995)......
  • Rath v. Rath
    • United States
    • North Dakota Supreme Court
    • May 26, 2022
    ...v. Klein , 2021 ND 75, ¶ 12, 958 N.W.2d 144 ; see also Jalbert v. Eagle Rigid Spans, Inc. , 2017 ND 50, ¶ 9, 891 N.W.2d 135 ; Gullickson v. Kline , 2004 ND 76, ¶ 15, 678 N.W.2d 138. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner; when it m......
  • Wetzel v. Schlenvogt
    • United States
    • North Dakota Supreme Court
    • November 9, 2005
    ...court's procedures denied him a full hearing. The district court is given discretion in how it conducts a trial or hearing. Gullickson v. Kline, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Therefore, the decision of the district court will not be reversed unless the district court abused its discreti......
  • Burns v. Burns
    • United States
    • North Dakota Supreme Court
    • August 22, 2007
    ...district "court has broad discretion over the conduct of a trial or hearing, including limitations on the number of witnesses." Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138. "A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT