Hobart v. Ferebee, No. 23075.

CourtSouth Dakota Supreme Court
Writing for the CourtKONENKAMP, Justice.
Citation692 N.W.2d 509,2004 SD 138
PartiesSteven HOBART, Petitioner and Appellee, v. George FEREBEE, Respondent and Appellant.
Docket NumberNo. 23075.
Decision Date29 December 2004

692 N.W.2d 509
2004 SD 138

Steven HOBART, Petitioner and Appellee,
v.
George FEREBEE, Respondent and Appellant

No. 23075.

Supreme Court of South Dakota.

Argued on November 17, 2004.

Decided December 29, 2004.


692 N.W.2d 510
Linda Lea M. Viken, Lisa L. Kiser, Rapid City, South Dakota, Attorneys for petitioner and appellee

Dedrich R. Koch of Winter and Koch, Rapid City, South Dakota, Attorneys for respondent and appellant.

KONENKAMP, Justice.

In this appeal, we review a protection order that prohibited defendant from harassing plaintiff, but also forbade defendant from filing any complaint against plaintiff with local, state, and federal

692 N.W.2d 511
government agencies, without first paying a fee to and obtaining permission from the circuit court. This order was entered after defendant made numerous complaints, many of them frivolous, against plaintiff to government authorities. Because the protection order unconstitutionally constrains defendant's right of free speech, we vacate that part of the order prohibiting defendant from petitioning government agencies

I.

[¶ 2.] Steve Hobart and George Ferebee have been neighbors in rural Pennington County for almost two decades. For much of that time, their relationship was acrimonious. In 1999, the tension between these two ranchers worsened. A string of complaints ensued. Hobart alleged that Ferebee assaulted his son and had made earlier death threats against his family. Ferebee reported to the sheriff's office that Hobart's son tried to hit him with an automobile. These complaints culminated in the two men obtaining court orders restraining each from harassing or stalking the other. By mutual agreement, the restraining orders were later extended.

[¶ 3.] Before the termination of his restraining order in December 2002, Hobart requested from the United States Forest Service (USFS) information regarding any inquiries by third parties about him, his property, or his business interests. The data he received revealed that beginning in January 2001, Ferebee had been contacting the USFS about activity on Hobart's property and USFS property on which Hobart maintained grazing permits. Ferebee's complaints ranged from cows on roads to early entry of livestock onto federal grazing lands. Many of the complaints concerned cattle grazing in inappropriate areas at inappropriate times. In most instances, Hobart either had taken care of the problem or was in the process of rectifying the problem when Ferebee lodged his complaint. Ferebee also complained about livestock damage to a local stream. In addition, Hobart discovered that Ferebee had made several information requests through the Freedom of Information Act concerning Hobart or his property. As a result of the numerous and frequent complaints generated by Ferebee, the USFS notified Ferebee that any further complaints should be in writing and directed to certain personnel.

[¶ 4.] During this time, Ferebee also complained to the South Dakota Department of Game Fish and Parks (GF & P) about a snowmobile trail that crossed through Hobart's land. Because of Ferebee's perception that the GF & P was doing little to address his concerns, he contacted Senator Tom Daschle's office for assistance. Ferebee's complaint was that an environmental impact study had not been completed before the GF & P approved the trail. Because of Ferebee's complaints, at least a portion of the trail was abandoned.

[¶ 5.] In addition to the other complaints, Ferebee brought his disputes with Hobart to the Pennington County Planning and Zoning Board. He inquired of the Board about a dam being constructed on Hobart's property and various zoning issues. The dam apparently was on a dry creek that when flowing also crossed Ferebee's property. The zoning complaints generally concerned structures that did not adhere to setback requirements. While the dam was confirmed to be for agricultural purposes and therefore exempt from permitting requirements, at least one of Ferebee's complaints regarding a zoning violation resulted in the Board concluding that a structure was not in compliance.

692 N.W.2d 512
[¶ 6.] Ferebee also reported to authorities that one of his bulls had been stolen. In fact, the bull had wandered onto Hobart's land. Hobart put the bull in his trailer and moved it back to Ferebee's property. Ferebee reported Hobart to the South Dakota Brand Board in an attempt to get him arrested for hauling the bull without a permit under SDCL 40-21-3.1. That statute provides that "[n]o person may transport cattle... on any public highway in this state or over any land of which he is not the owner or tenant, without the written permission of the owner of the cattle[.]" The Brand Board declined to pursue criminal prosecution

[¶ 7.] Most of Ferebee's complaints were transparent attempts to make life as difficult as possible for Hobart. On July 8, 2003, Hobart moved to continue his previous protection order or for a new order against Ferebee. Hobart did not allege that Ferebee had continued to threaten him or his family, but he asserted that Ferebee's harassment had taken a new form: harassment through third parties. Ferebee's incessant complaints had required Hobart "to answer to various local, state, and federal agencies, departments, and boards for unsubstantiated complaints[.]" Hobart wanted it stopped. A hearing was held on August 4, 2003, and the circuit court ruled from the bench. Thereafter, the court, on October 16, 2003, entered its findings of fact and conclusions of law and an order for protection.

[¶ 8.] The judge's order restrained Ferebee from making any "credible threat to [Hobart] with the intent to place [him] in reasonable fear of death or great bodily injury...." Ferebee was ordered to "have no contact with [Hobart] or his family at any place and ... not verbally contact [Hobart], including phone contact and ... not verbally abuse or threaten [Hobart.]" The order prohibited Ferebee "from coming within 500 feet of [Hobart] personally and of [Hobart's] property, except for that portion of property where the parties share a common border[.]" With respect to Ferebee's complaints to government agencies, the order provided that "should [Ferebee] wish to file a complaint regarding [Hobart] to a county, federal, or state agency ... he shall submit his complaint in writing, in affidavit form to the Court ... with a $25 fee for each complaint contained in the affidavit." The order was to last for three years.

[¶ 9.] In his appeal, Ferebee raises the following issues: (1) "It was an abuse of discretion for the trial court to find that Hobart met his burden pursuant to SDCL 22-19A and to deny Ferebee's motion for directed verdict." (2) "Ferebee's complaints to authorities were constitutionally protected activities." (3) "Whether the trial court committed error when it admitted and otherwise considered hearsay evidence." (4) "It was error for the trial court to adopt a finding that appellant had made threats which placed appellee in reasonable fear of death or great bodily injury." (5) "It was an abuse of discretion for the trial court to deny Ferebee's proposed findings of fact and conclusions of law." We address Issues 2 and 4.

II.

[¶ 10.] Like other injunctions, we review protection and restraining orders for abuse of discretion. Shore v. Cruz, 2003 SD 81, ¶ 8, 667 N.W.2d 312, 314. Issues of statutory construction are examined de novo. State v. Krahwinkel, 2002 SD 160, ¶ 13, 656 N.W.2d 451, 458 (citing State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). In reviewing questions of statutory construction, we strive "to ascertain the intent of the law." Id. A statute's plain language normally expresses its intent. Id. (citing Faircloth v. Raven

692 N.W.2d 513
Indus., Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201). When an asserted error implicates an intrusion of a constitutional right, our review is de novo. Id. (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43).

[¶ 11.] The order issued by the trial court is based on South Dakota's stalking statutes, found in SDCL chapter 22-19A. SDCL 22-19A-1 provides:

Any person:

(1) Who willfully, maliciously, and repeatedly follows or harasses another person;
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication[,] is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.

If, however, a person "violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, in effect prohibiting the behavior described in § 22-19A-1 against the same...

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4 practice notes
  • In re Marriage of Meredith, No. 37098-1-II.
    • United States
    • Court of Appeals of Washington
    • February 18, 2009
    ...one before us, the South Dakota Supreme Court struck a protection order because it violated the petitions' clause. In Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d 509, the defendant, George Ferebee, had filed numerous complaints to government authorities against his neighboring rancher, Steve......
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d [¶ 4.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for ......
  • Joynt v. Enders, 1 CA-CV 08-0047
    • United States
    • Court of Appeals of Arizona
    • March 30, 2011
    ...numerous complaints with various government agencies about the other's violations of certain statutes and ordinances. Hobart v. Ferebee, 692 N.W.2d 509, 511-12 (S.D. 2004). In vacating anPage 25order requiring Ferebee to make written complaints to government agencies in affidavit form and p......
  • Hobart v. Ferebee, No. 24885.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d [¶ 3.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for ......
4 cases
  • In re Marriage of Meredith, No. 37098-1-II.
    • United States
    • Court of Appeals of Washington
    • February 18, 2009
    ...one before us, the South Dakota Supreme Court struck a protection order because it violated the petitions' clause. In Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d 509, the defendant, George Ferebee, had filed numerous complaints to government authorities against his neighboring rancher, Steve......
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d [¶ 4.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for ......
  • Joynt v. Enders, 1 CA-CV 08-0047
    • United States
    • Court of Appeals of Arizona
    • March 30, 2011
    ...numerous complaints with various government agencies about the other's violations of certain statutes and ordinances. Hobart v. Ferebee, 692 N.W.2d 509, 511-12 (S.D. 2004). In vacating anPage 25order requiring Ferebee to make written complaints to government agencies in affidavit form and p......
  • Hobart v. Ferebee, No. 24885.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...appealed to this Court. Ferebee obtained a reversal of some of the provisions of that order in this Court's decision in Hobart v. Ferebee, 2004 SD 138, 692 N.W.2d [¶ 3.] Following the 2004 Hobart decision, Ferebee began a campaign of litigation against Hobart by filing numerous motions for ......

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