Hoggarth v. Kropp

• Decision Date: 19 October 2010
• Docket Number: No. 20090326.,20090326.
• Citation: 2010 ND 197,790 N.W.2d 22
• Parties: Monte Dean HOGGARTH, Tonia Hoggarth, and on behalf of A.H. and B.H., Petitioners and Appellees v. Mary Elizabeth KROPP, Respondent and Appellant.
• Court: North Dakota Supreme Court

790 N.W.2d 22

2010 ND 197

Monte Dean HOGGARTH, Tonia Hoggarth, and on behalf of A.H. and B.H., Petitioners and Appellees

v.Mary Elizabeth KROPP, Respondent and Appellant.

No. 20090326.

Supreme Court of North Dakota.

Oct. 19, 2010.

Patti J. Jensen, East Grand Forks, MN, for petitioners and appellees.

Robert J. Schultz, Fargo, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] Mary Kropp appeals from a disorderly conduct restraining order prohibiting her from having contact with any member of the Hoggarth family. We affirm in part, reverse in part, and remand to the district court to establish appropriate distance boundaries and schedules in the order.

I

[¶ 2] Tonia and Monte Hoggarth petitioned for a disorderly conduct restraining order against Mary Kropp on behalf of themselves and their two minor children in May 2009. Tonia Hoggarth alleged that Kropp had harassed her and her minor son outside Hoggarth's workplace and that Kropp had sent disruptive e-mail messages to the family's e-mail account. The district court entered a temporary disorderly conduct restraining order against Kropp the following day.

[¶ 3] A hearing was held in July 2009 on whether to make the restraining order permanent. Tonia Hoggarth, Monte Hoggarth, and Kropp all testified. The district court found Monte Hoggarth and Kropp had engaged in an extramarital affair that temporarily ceased, but was later resumed. The district court then made its findings regarding two key events.

[¶ 4] First, the court found Kropp confronted Tonia Hoggarth and her minor son in a menacing and threatening manner outside Hoggarth's workplace in April 2009. This confrontation occurred immediately after a heated telephone conversation between Monte Hoggarth and Kropp. As Tonia Hoggarth and her son were walking to her vehicle from the clinic where she works, Kropp unexpectedly emerged from an unfamiliar car and accosted them. In direct proximity to the Hoggarths, Kropp unleashed a tirade. She was screaming vulgarities about Monte Hoggarth and the affair while Tonia Hoggarth attempted to get her son away from the scene. Tonia Hoggarth pleaded with Kropp to leave them alone, since her son was being subjected to the unwelcome outburst. Kropp returned to her vehicle, where she remained parked behind the Hoggarths, not allowing them to move, before eventually leaving the parking lot.

[¶ 5] The second key event involved a series of e-mail messages sent by Kropp to the Hoggarth family e-mail account approximately one month after the parking lot encounter. The district court found at least one of these messages was knowingly sent by Kropp on the birthday of one of the Hoggarth children. Some of the e-mail messages contained pictures of Monte Hoggarth and Kropp together after the affair was supposed to have ended. He appeared voluntarily in at least one of the pictures, while Kropp took other pictures of him without his knowledge. Kropp testified she took these pictures because she thought she “might need [them] someday.” The district court found Kropp knew the entire family used the e-mail account and knew it was not password-protected. The court found the purpose of the e-mail messages was to cause the same destruction to the Hoggarth family as Kropp perceived had happened to her family.

[¶ 6] On the basis of these two incidents, the court entered a permanent order restraining Kropp from contact with the Hoggarth family for 24 months. The order bars Kropp from all contact with the Hoggarth family and requires her to leave a public place immediately upon recognition that any of the Hoggarths are present.

[¶ 7] Kropp appealed, but then moved to stay briefing and remand the matter to the district court to reconsider both the imposition of the restraining order and its scope. We granted Kropp's motion for remand. Following a hearing, the district court rejected Kropp's motions to reconsider and modify the restraining order. The court concluded no new evidence had been introduced that would justify terminating or modifying the order.

[¶ 8] Kropp appeals, arguing her statements during the parking lot confrontation and in the e-mail messages sent to the Hoggarths are constitutionally protected free speech and, alternatively, the scope of the restraining order is too broad.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Kropp's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01, 28-27-02.

II

[¶ 10] Kropp first argues her statements and e-mail messages are constitutionally protected forms of free speech, thus invalidating the grounds for the restraining order. Section 12.1-31.2-01(1), N.D.C.C., provides that disorderly conduct does not include constitutionally protected activity. A court imposing a disorderly conduct restraining order must address a respondent's constitutional claims, because constitutionally protected conduct cannot be a basis for the order. See, e.g., Hutchinson v. Boyle, 2008 ND 150, ¶ 9, 753 N.W.2d 881 (restraining order reversed because the district court did not adequately address the free speech claim made by the appellant); Gullickson v. Kline, 2004 ND 76, ¶ 20, 678 N.W.2d 138 (restraining order reversed in part because it was unclear whether the court considered appellant's constitutional claim).

[¶ 11] The district court reflected its consideration of the constitutional issues in its written conclusions when it stated, “Based upon the court's findings in regard to the issue of intent, there is no constitutional protection defense that is viable.” Whether an activity is constitutionally protected is a question of law, subject to full review on appeal. State v. Holbach, 2009 ND 37, ¶ 11, 763 N.W.2d 761. “When Free Speech arguments are made, the reviewing court must independently scrutinize the record to see if the charged conduct is protected.” City of Fargo v. Brennan, 543 N.W.2d 240, 243 (N.D.1996). “[A] reviewing court has a constitutional duty to independently examine the record as a whole to assure that the ‘judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Id.

[¶ 12] There was conflicting testimony about the parking lot confrontation and the circumstances surrounding the e-mail messages sent by Kropp to the Hoggarth family. Noting Kropp was “considerably lacking in credibility” and her version of events was “not reasonable,” the district court adopted the version of events presented by the Hoggarths. The district court assesses the credibility of witnesses and resolves conflicts in the evidence, and reviewing courts do not reweigh the evidence, make independent findings of fact, or substitute their judgment for that of the district court. “[T]he trial court is in a better position to judge the demeanor and credibility of witnesses and weigh the evidence than we who have only the cold record to review.” Ludwig v. Burchill, 481 N.W.2d 464, 469 (N.D.1992).

[¶ 13] In finding the Hoggarths to be more credible, the district court found Tonia Hoggarth's testimony was “frank” as well as “reasonable and consistent with the testimony of Monte Hoggarth.” Using the court's findings of fact, we note the importance of distinguishing between content of speech and disturbing or threatening conduct proscribed by the disorderly conduct statute. State v. Bornhoeft, 2009 ND 138, ¶ 11, 770 N.W.2d 270. Kropp's argument focuses on the bare words she spoke in the parking lot and in the e-mail messages she sent to the Hoggarths. This is an incomplete analysis of the constitutionality of her speech. “[D]isorderly conduct ... does not necessarily depend on the particular content of the speech involved, but on the behavior.” Id.

[¶ 14] Kropp's behavior is similar to that of the defendant in Brennan. While Brennan dealt with a criminal conviction, the analysis in that case applies here. Disorderly conduct is analyzed in the same manner for both civil and criminal cases because the reasonable grounds for a restraining order are synonymous with probable cause for an arrest. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 17, 705 N.W.2d 836. Brennan contended his actions and statements were constitutionally protected, even if they were, admittedly, “hostile and unpleasant” and “disagreeable” to the other party. Brennan, 543 N.W.2d at 243. We disagreed, holding Brennan's accompanying actions stripped his speech of constitutional protection. Id. at 245. We specifically noted that Brennan's “ ‘screaming’ delivery, his angrily waving arms and hands, and his alarming behavior in close physical proximity to [the other party], invading her ‘personal zone’ within two to five feet, were reasonably found to be threatening and physically offensive.” Id. The district court found Kropp exhibited all of these actions. She screamed while flailing her arms. Her behavior was erratic. She was within close proximity to Tonia Hoggarth. She unleashed her tirade directly in front of a minor child. This behavior was compounded by Kropp's e-mail, which the district court found was sent to the entire family and timed to cause disruption.

[¶ 15] Section 12.1-31-01(1)(h), N.D.C.C., provides that a person engages in disorderly conduct when she “[e]ngages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” Kropp's actions fit this definition. In both the parking lot confrontation and her e-mail communications, she acted in a harassing manner and violated the privacy of the Hoggarth family. These actions form the reasonable basis for a disorderly conduct restraining order.

[¶ 16] The totality of Kropp's actions removes the constitutional protection her messages may otherwise have had. We affirm the permanent imposition of the disorderly conduct restraining order.

III

[¶ 17] Kropp next argues the...