Hutchinson v. Boyle, 20080009.
| Decision Date | 28 July 2008 |
| Docket Number | No. 20080010.,No. 20080009.,20080009.,20080010. |
| Citation | 753 N.W.2d 881,2008 ND 150 |
| Parties | Jayne HUTCHINSON and Jennifer S. Carter, Petitioners and Appellees v. Scott T. BOYLE, Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Leslie Johnson Aldrich, Johnson Law Office P.C., Fargo, N.D., for petitioners and appellees.
Gregory W. Liebl, Nilles, Ilvedson, Plambeck & Selbo, Ltd., Fargo, N.D., for respondent and appellant.
[¶ 1] Scott Boyle appeals from a disorderly conduct restraining order prohibiting him from having contact with Jayne Hutchinson and Jennifer Carter. We reverse and remand, concluding the district court erred by failing to address and determine the validity of Boyle's constitutional claims.
[¶ 2] On October 2, 2007, Hutchinson and Carter each moved for a disorderly conduct restraining order against Boyle. Carter's affidavit stated she feared for her own and her four-year-old daughter's safety. Boyle is the daughter's father. Carter stated Boyle made harassing phone calls to her and her family, saying he was going to take his daughter away. She stated she has recorded phone messages in which Boyle is making disparaging remarks toward her. Hutchinson's affidavit stated Boyle made an obscene gesture toward her in the courthouse on September 28, 2007, while Hutchinson was filing an affidavit in favor of Carter in the visitation dispute between Boyle and Carter. She also stated that on the evening of September 29, 2007, she observed Boyle climbing up from a second-floor balcony to the balcony of her third-floor apartment. A temporary disorderly conduct restraining order was issued by the district court on October 3, 2007.
[¶ 3] Boyle filed an affidavit responding to the claims made by Hutchinson and Carter. He stated he made the phone calls to Carter in an attempt to speak with his daughter. He is allowed to contact his daughter by telephone once per day. He stated the phone messages were constitutionally protected speech and did not threaten Carter's safety. Regarding Hutchinson, he stated he did not try to climb up to her third-floor apartment; he had cellulitis at the time and had a very swollen leg. He stated that even if he did make an obscene gesture toward Hutchinson, it was a constitutionally protected activity. Boyle also submitted a brief prior to the disorderly conduct restraining order hearing, arguing his alleged actions were constitutionally protected.
[¶ 4] A disorderly conduct restraining order hearing was held on November 8, 2007, allowing for cross-examination of the parties on their affidavits. Following the testimony of each party, the district court found that Boyle's actions toward Hutchinson and Carter constituted disorderly conduct. A one-year restraining order was issued in favor of Hutchinson, and a two-year restraining order was issued in favor of Carter. Under the order, Boyle was prohibited from: 1) having any physical contact with or coming within 100 feet of Hutchinson or Carter; 2) calling, writing, or leaving messages for Hutchinson or Carter, except through an attorney; and 3) coming within 100 feet of Hutchinson's or Carter's place of employment.
[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Boyle'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.
[¶ 6] On appeal, Boyle argues the district court erred in issuing the restraining order, because it failed to address his claims that his alleged actions are constitutionally permissible — specifically, the obscene gesture toward Hutchinson and the phone messages to Carter. He does not argue that climbing the balcony to Hutchinson's apartment is constitutionally protected activity. Under N.D.C.C. § 12.1-31.2-01(1), "[d]isorderly conduct does not include constitutionally protected activity." Section 12.1-31.2-01(5)(d), N.D.C.C., requires a court to address a constitutional claim before issuing a disorderly conduct restraining order:
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.
[¶ 7] We addressed a district court's failure to address a respondent's constitutional claims in Gullickson v. Kline, 2004 ND 76, ¶ 20, 678 N.W.2d 138. In Gullickson, we concluded the district court erred when it issued a restraining order without first addressing the respondent's constitutional claims. Id.
[¶ 8] In this case, Boyle stated in his affidavit and also argued in a brief prior to the disorderly conduct restraining order hearing that the obscene gesture toward Hutchinson and the phone messages to Carter were constitutionally protected. In its disorderly conduct restraining order, the district court made the following findings regarding Boyle's actions toward Hutchinson:
The Court further found that on or about September 28, 2007, Jayne Hutchinson filed an Affidavit in favor of Jennifer Carter in the visitation dispute between Jennifer Carter and Scott Boyle. At that time, the Court finds that Mr. Boyle, upon seeing Jayne Hutchinson in the hallway at the Courthouse, made an obscene gesture, essentially...
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