In re H.K., No. 20090149.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtKapsner
Citation778 N.W.2d 764,2010 ND 27
Docket NumberNo. 20090149.
Decision Date17 February 2010
PartiesIn the Interest of H.K., a Child. Bradley Cruff, Barnes County States Attorney, Petitioner and Appellee v. H.K., child, D.K., mother, and W.K., father, Respondents and Appellants.
778 N.W.2d 764
2010 ND 27
In the Interest of H.K., a Child.
Bradley Cruff, Barnes County States Attorney, Petitioner and Appellee
v.
H.K., child, D.K., mother, and W.K., father, Respondents and Appellants.
No. 20090149.
Supreme Court of North Dakota.
February 17, 2010.

[778 N.W.2d 766]

Lee M. Grossman (argued), Assistant State's Attorney, Valley City, ND, for petitioner and appellee.

Russell J. Myhre (argued), Valley City, ND, for respondents and appellants.

KAPSNER, Justice.


[¶ 1] H.K. appeals from a juvenile court order finding she is a delinquent child for committing disorderly conduct. H.K. argues the juvenile court erred by denying her motion to dismiss, admitting evidence beyond the scope of the facts alleged in the petition, and finding she committed disorderly conduct. We hold the juvenile court did not err by denying H.K.'s motion to dismiss because the petition sufficiently alleged facts to defend the charge of disorderly conduct and the First Amendment did not prohibit the juvenile court from considering her statements as evidence. Further, we determine the juvenile court's admission of evidence beyond the scope of the petition did not affect H.K.'s substantial rights and the juvenile court was not clearly erroneous to find H.K. committed disorderly conduct. We affirm the juvenile court's order.

I.

[¶ 2] On March 26, 2009, the Barnes County state's attorney filed a petition alleging H.K. committed the delinquent act of disorderly conduct in violation of N.D.C.C. § 12.1-31-01. H.K. moved to dismiss the petition, arguing the First Amendment prohibited the juvenile court from considering her statements as evidence of criminal conduct, and the petition therefore failed to allege she committed acts sufficient to meet the statutory definition of "disorderly conduct." The juvenile court declined to rule on the motion prior to the hearing on the petition.

[¶ 3] At the hearing on April 27, 2009, T.L., a teenage girl of African-American ancestry, testified H.K. and two other girls followed her into a bathroom during a dance at a teen center in Valley City. T.L.

778 N.W.2d 767

stated H.K. and the girls "started yelling at me and calling me a nigger and telling me I don't own this town, that they own this town, and they don't want niggers in their town and that I need to watch out and they just kind of ran off giggling." After this incident, T.L. left the dance and went to a local restaurant to talk to a friend who was working there at the time. Shortly after T.L. arrived, H.K. and the two other girls also entered the restaurant and joined a group of teenagers who were there before T.L. T.L. testified she overheard the group saying "nigger" and making other disparaging comments about her while she was talking to her friend. When H.K. and her companions left the restaurant, T.L. testified H.K. said "[b]ye nigger" to T.L. as she walked by. T.L.'s friend also testified regarding the conduct of H.K. and the group of teenagers at the restaurant. She said the group "were calling [T.L.] names like she's worthless, she dropped out, she's a nigger, she doesn't belong in this town, she should just move out, why is she in this town, and stuff like that." Lastly, T.L. testified H.K. made an obscene gesture while driving by her several weeks after the February incidents. H.K.'s counsel objected to the testimony regarding the obscene gesture, arguing it was beyond the scope of the petition.

[¶ 4] At the close of the hearing, H.K.'s counsel argued the State was attempting to criminalize the use of the word "nigger" in violation of H.K.'s rights under the First Amendment. The juvenile court found H.K. was a delinquent child for committing disorderly conduct. H.K. now appeals, arguing the juvenile court should have granted her motion to dismiss because the State's petition failed to allege she committed acts sufficient to meet the definition of "disorderly conduct" in N.D.C.C. § 12.1-31-01 and the First Amendment prohibited the use of her statements as evidence of criminal conduct. H.K. also argues this Court should overturn the juvenile court's decision because the juvenile court admitted evidence beyond the scope of the petition and because the juvenile court was clearly erroneous to find she committed disorderly conduct.

II.

[¶ 5] H.K. argues the juvenile court should have granted her motion to dismiss because the petition failed to allege she committed acts meeting the statutory definition of "disorderly conduct" and the First Amendment prohibited the use of her statements as evidence of criminal conduct. On appeal from a juvenile court decision, we hear 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.

A.

[¶ 6] H.K. argues the juvenile court erred by refusing to grant her motion to dismiss because the petition failed to allege she committed acts meeting the statutory definition of "disorderly conduct." Section 12.1-31-01(1), N.D.C.C., provides the statutory basis for the crime of disorderly conduct. It states:

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;

. . . .

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

. . . .

778 N.W.2d 768

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.

N.D.C.C. § 12.1-31-01(1).

[¶ 7] The State's petition alleged H.K. committed disorderly conduct but failed to specify the particular subsection of N.D.C.C. § 12.1-31-01(1) she was alleged to have violated. The petition provided:

O]n or about the 27th day of February, 2009 [H.K.] with the 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, 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[s], or gestures intended to adversely affect the safety, security, or privacy of another person, more specifically when she called T.L. a 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, as amended[.

Thus, the petition basically repeated the entire disorderly conduct statute before specifically alleging H.K. committed disorderly conduct by calling T.L. a nigger at the teen center on February 27, 2009.

[¶ 8] A petition "is similar to an information or a complaint in a criminal proceeding because it sets forth the charges against [the juvenile]." In re Z.C.B., 2003 ND 151, ¶ 23, 669 N.W.2d 478. A petition must "set forth plainly ... [t]he facts which bring the child within the jurisdiction of the court...." N.D.C.C. § 27-20-21. A juvenile court has original jurisdiction over "[p]roceedings in which a child is alleged to be delinquent, unruly, or deprived." N.D.C.C. § 27-20-03(1)(a). A delinquent child is one who has committed "an act designated a crime under the law" and is in need of treatment or rehabilitation. N.D.C.C. § 27-20-02(6)-(7).

[¶ 9] The petition must provide the facts which bring the child within the jurisdiction of the juvenile court because "such facts are necessary ... to provide notice to respondents so they may prepare for the hearing and participate meaningfully in it." Interest of J.K.S., 274 N.W.2d 244, 248 n. 1 (N.D.1979) (citing Interest of T.M.M., 267 N.W.2d 807, 813 (N.D.1978)). In a juvenile court proceeding, due process of law requires "notice which would be deemed constitutionally adequate...

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14 practice notes
  • State v. Liebenguth, SC 20145
    • United States
    • Supreme Court of Connecticut
    • August 27, 2020
    ...abusive racial epithet ‘nigger’ " was conduct that "squarely falls within the category of unprotected [fighting words]"); In re H.K. , 778 N.W.2d 764, 766–67, 770 (N.D. 2010) (following African-American girl into bathroom during dance, calling her "nigger" and threatening her constituted fi......
  • State v. Liebenguth, AC 39506
    • United States
    • Appellate Court of Connecticut
    • April 17, 2018
    ...and In re John M. are by no means the only cases that have categorized the word "nigger" as a fighting word. See, e.g., In re H.K. , 778 N.W.2d 764, 767, 770 (N.D. 2010) (following a teenage girl of African–American ancestry into a bathroom during a dance, yelling at her and calling her a "......
  • Taking the Fight Out of Fighting Words on the Doctrine's Eightieth Anniversary: What 'N' Word Litigation Today Reveals About Assumptions, Flaws and Goals of a First Amendment Principle in Disarray.
    • United States
    • Missouri Law Review Vol. 87 Nbr. 2, March 2022
    • March 22, 2022
    ...of circumstances may not be likely to trigger such a response when spoken in the context of a different factual scenario"); In re H.K., 778 N.W.2d 764, 770 (N.D. 2010) ("The First Amendment protects an individual's mere use of the term (111) Supra note 15 and accompanying text. (112) See 99......
  • In the Interest of T.S. v. T.S., No. 20100322.
    • United States
    • North Dakota Supreme Court
    • June 21, 2011
    ...a juvenile court proceeding unless the issue concerns an obvious error that affects a substantial right of the juvenile. Interest of H.K., 2010 ND 27, ¶ 16, 778 N.W.2d 764. It is obvious error affecting the juvenile's substantial rights for the juvenile court to fail to hold a competency he......
  • Request a trial to view additional results
13 cases
  • State v. Liebenguth, SC 20145
    • United States
    • Supreme Court of Connecticut
    • August 27, 2020
    ...abusive racial epithet ‘nigger’ " was conduct that "squarely falls within the category of unprotected [fighting words]"); In re H.K. , 778 N.W.2d 764, 766–67, 770 (N.D. 2010) (following African-American girl into bathroom during dance, calling her "nigger" and threatening her constituted fi......
  • State v. Liebenguth, AC 39506
    • United States
    • Appellate Court of Connecticut
    • April 17, 2018
    ...and In re John M. are by no means the only cases that have categorized the word "nigger" as a fighting word. See, e.g., In re H.K. , 778 N.W.2d 764, 767, 770 (N.D. 2010) (following a teenage girl of African–American ancestry into a bathroom during a dance, yelling at her and calling her a "......
  • In the Interest of T.S. v. T.S., No. 20100322.
    • United States
    • North Dakota Supreme Court
    • June 21, 2011
    ...a juvenile court proceeding unless the issue concerns an obvious error that affects a substantial right of the juvenile. Interest of H.K., 2010 ND 27, ¶ 16, 778 N.W.2d 764. It is obvious error affecting the juvenile's substantial rights for the juvenile court to fail to hold a competency he......
  • City of Fargo v. Roehrich, 20210023
    • United States
    • United States State Supreme Court of North Dakota
    • August 5, 2021
    ...1. [¶21] "The First Amendment generally prohibits the government from proscribing speech based on disapproval of its content." In re H.K. , 2010 ND 27, ¶ 13, 778 N.W.2d 764 (quoting Svedberg v. Stamness , 525 N.W.2d 678, 682 (N.D. 1994) ). "However, there are limits on free speech and not a......
  • Request a trial to view additional results
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