IN RE AR

• Decision Date: 11 May 2010
• Docket Number: No. 20090197.,20090197.
• Parties: In the Interest of A.R., a Child. Bradley Cruff, Barnes Co. State's Attorney, Petitioner and Appellee v. A.R., minor child, C.R., mother, and S.R., father, Respondents and Appellants.
• Court: North Dakota Supreme Court

781 N.W.2d 644

2010 ND 84

In the Interest of A.R., a Child.

Bradley Cruff, Barnes Co. State's Attorney, Petitioner and Appellee v. A.R., minor child, C.R., mother, and S.R., father, Respondents and Appellants.

No. 20090197.

Supreme Court of North Dakota.

May 11, 2010.

Lee M. Grossman, Assistant State's Attorney, Valley City, N.D., for petitioner and appellee.

Russell J. Myhre, Valley City, N.D., for respondents and appellants.

MARING, Justice.

¶ 1 A.R. appeals a juvenile court's order adjudicating him a delinquent child for committing disorderly conduct. A.R. argues the juvenile court erred in denying his motion to dismiss and finding sufficient evidence exists to sustain a conviction because his speech is protected by the First Amendment. Because A.R.'s speech is not protected by the First Amendment and the petition sufficiently alleged facts to place A.R. on notice, we hold the juvenile court did not err in denying the motion to dismiss and finding sufficient evidence exists to adjudicate him a delinquent child. We affirm the juvenile court's order.

I

¶ 2 A.R. is a juvenile male. T.L., an African-American juvenile female, reported to police that A.R. called her a "stupid nigger." In a statement, T.L. wrote:

I went back to the dance to get my friend because I was her ride home and the same girl I don't sic know came back up to me saying I was starting stuff w/her and her brother and a lot of his friends circled around me and my friend ... they were yelling and screaming at me. As I tried to walk out her brother and his friend A.R. yelled stupid Nigger.

The police officer's report similarly provides, "At some point T.L. was circled by a bunch of people. As T.L. walked out T.H. and A.R. yelled stupid `Nigger.'" On April 2, 2009, the State filed a petition to have A.R. adjudicated a delinquent child, alleging A.R. had committed disorderly conduct when he called T.L. a "stupid nigger" at the teen center.

¶ 3 A.R. moved to dismiss the action under N.D.R.Crim.P. 12(b)(3)(B). A.R. argued the State failed to allege a cause of action in the petition by claiming that A.R. used the words "stupid nigger" to commit the offense and failed to allege the requisite elements of disorderly conduct under N.D.C.C. § 12.1-31-01. A.R. also argued his language was protected by the First Amendment. The juvenile court held a hearing to consider his motion. Neither party called any witnesses to testify about the incident. The court considered and denied the motion. After the court denied the motion, counsel noted that the State and defense had stipulated the facts for purposes of disposition. The juvenile court found A.R. to be a delinquent child.

¶ 4 A.R. appeals the juvenile court's order, arguing the court erred by denying his motion to dismiss because his speech is protected by the First Amendment; the petition did not allege the elements of disorderly conduct; and sufficient evidence did not exist to support a disorderly conduct conviction. In his appellate brief, A.R. stated, "at the hearing, the Petitioner and Respondent stipulated to the facts of the case, as submitted upon briefs." In his trial court brief, A.R. states "for purposes of this Motion and Brief, the facts will be presented according to the language in the Petition, Police Report, and Statement of the alleged victim." The juvenile court and parties left this Court in a difficult position by "stipulating to the facts," but failing to read any facts into the record. Therefore, we are left to analyze, as indicated in A.R.'s brief on his motion to dismiss, "the facts ... presented according to the language in the Petition, Police Report, and Statement of the alleged victim."

II

¶ 5 This Court has provided the standard of review of a juvenile court's decision:

Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court's factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo.

Interest of R.W.S., 2007 ND 37, ¶ 8, 728 N.W.2d 326 (citations omitted). This Court considers the case "upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56. Additionally, "whether an activity is constitutionally protected is a question of law, which is fully reviewable on appeal." State v. Bornhoeft, 2009 ND 138, ¶ 7, 770 N.W.2d 270. Section 12.1-31-01, N.D.C.C., provides the definition of disorderly conduct:

1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual's behavior, the individual:

a. Engages in fighting, or in violent, tumultuous, or threatening behavior;

b. Makes unreasonable noise;

c. In a public place, uses abusive or obscene language, knowingly exposes that individual's penis, vulva, or anus, or makes an obscene gesture;

d. Obstructs vehicular or pedestrian traffic or the use of a public facility;

e. Persistently follows a person in or about a public place or places;

f. While loitering in a public place for the purpose of soliciting sexual contact, the individual solicits the contact;

g. Creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or

h. Engages 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.

2. This section does not apply to constitutionally protected activity. If an individual 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.

A.R. argues the State's petition did not allege a criminal activity under the disorderly conduct elements of N.D.C.C. § 12.1-31-01 because his speech is protected by the First Amendment. Therefore, he argues the court erred in denying his motion to dismiss and by finding sufficient evidence exists to sustain a conviction.

A

¶ 6 A.R. argues the juvenile court erred by denying his motion to dismiss because the petition failed to allege he committed disorderly conduct under N.D.C.C. § 12.1-31-01. In a delinquency proceeding, the juvenile court has original jurisdiction. N.D.C.C. § 27-20-03(a). Under N.D.C.C. § 27-20-21, the petition must plainly set forth:

1. The facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of treatment or rehabilitation;

2. The name, age, and residence address, if any, of the child on whose behalf the petition is brought;

3. The names and residence addresses, if known to petitioner, of the parents, guardian, or custodian of the child and of the child's spouse, if any. If none of the child's parents, guardian, or custodian resides or can be found within the state, or if their respective places of residence address are unknown, the name of any known adult relative residing within the county, or, if there be none, the known adult relative residing nearest to the location of the court; and

4. Whether the child is in custody and, if so, the place of the child's detention and the time the child was taken into custody.

"In a juvenile court proceeding, due process of law requires notice which would be deemed constitutionally adequate in a civil or criminal proceeding." Interest of H.K., 2010 ND 27, ¶ 9, 778 N.W.2d 764 (citation omitted). "A fundamental element of adequate notice is that allegations must be stated with particularity, giving notice of specific grounds and factual claims." Id. A petition cannot recite a statute and conclusively allege a juvenile has committed a crime. Id.

The State's petition alleged:

On or about the 27th day of February, 2009 said child with the intent to harass, annoy or alarm another person or in reckless disregard of that fact that another person is harassed, annoyed or alarmed by the individual's behavior, engaged in fighting, or in violent, tumultuous, or threatening behavior, made unreasonable noise, in a public place, used abusive or obscene language, knowingly exposed that individual's penis, vulva, or anus or made an obscene gesture, obstructed vehicular or pedestrian traffic or the use of a public facility, persistently followed a person in a public place, or engaged in harassing conduct by means of intrusive or unwanted acts, word, or gestures intended to adversely affect the safety, security, or privacy of another person, more specifically when he called T.L. a stupid nigger at the teen center in Valley City, Barnes County, North Dakota, this being DISORDERLY CONDUCT, a delinquent act according to § 27-20-02(6) and a Class B misdemeanor pursuant to the provisions of § 12.1-31-01 of the North Dakota Century Code.

The petition sufficiently set forth the facts that brought A.R. within the juvenile court's jurisdiction. See Interest of H.K., 2010 ND 27, ¶ 10, 778 N.W.2d 764 (concluding the State sufficiently alleged facts to put the juvenile on notice under N.D.C.C. § 12.1-31-01). In the petition, the State charged A.R. with disorderly conduct when he called T.L. a "stupid nigger" in the context of an incident at the teen center in Valley City. The petition provided sufficient notice of the general grounds and factual claims upon which the State based its charge, and...