State v. Kenny
Decision Date | 22 August 2019 |
Docket Number | No. 20190030,20190030 |
Citation | 932 N.W.2d 516 |
Parties | STATE of North Dakota, Plaintiff and Appellee v. Donna Jeanne KENNY, Defendant and Appellant |
Court | North Dakota Supreme Court |
Justin J. Schwarz, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
[¶1] Donna Kenny appeals from a criminal judgment entered after a jury found her guilty of violating two disorderly conduct restraining orders. We conclude that N.D.C.C. § 12.1-31.2-01(5) does not violate her constitutional right to due process, N.D.C.C. § 12.1-31.2-01 is not unconstitutionally overbroad, and sufficient evidence exists to convict her of violating the disorderly conduct restraining orders. We affirm.
[¶2] On September 27, 2018, a district court referee entered two temporary disorderly conduct restraining orders against Kenny, which were sought by two of her neighbors. The neighbors live in the same five-unit condominium complex. A deputy sheriff served Kenny with the orders on the same day. The orders prohibited Kenny from having any physical contact with or coming within 100 feet of the two neighbors. A hearing on the temporary orders was scheduled for October 8, 2018.
[¶3] On September 28, 2018, Kenny approached the two neighbors at a backyard fire to ask who had parked in her spot in the common parking lot of the condominium complex. According to the neighbors, they advised Kenny she was not allowed to speak to them. Both neighbors testified that Kenny replied with either "shove it up your ass" or "stick it up your ass." The neighbors called the police, and Kenny was arrested for violating the restraining orders.
[¶4] On October 1, 2018, the State charged Kenny with two counts of violation of a disorderly conduct restraining order, both class A misdemeanors. In January 2019, a jury found her guilty of both counts.
[¶5] Kenny argues that N.D.C.C. § 12.1-31.2-01(5), which provides for a disorderly conduct restraining order, violates the constitutional right to due process.
[¶6] "The constitutionality of a statute is a question of law, and we uphold the statute unless its challenger can demonstrate the statute’s unconstitutionality." State v. Norman , 2003 ND 66, ¶ 21, 660 N.W.2d 549. Under N.D.C.C. § 12.1-31.2-01, the district court "has discretion to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order." Gonzalez v. Witzke , 2012 ND 60, ¶ 8, 813 N.W.2d 592. This statute "creates a special summary proceeding and directs a hearing upon order of the district court." Skadberg v. Skadberg , 2002 ND 97, ¶ 13, 644 N.W.2d 873.
[¶7] At the time of the orders in this case, N.D.C.C. § 12.1-31.2-01 provided, in relevant part:
(Emphasis added.)
[¶8] Kenny argues that "both" N.D.C.C. § 12.1-31.2-01(4) and (5) allow for a disorderly conduct restraining order to be issued without first holding any type of hearing, in violation of her constitutional right to due process, and that the statute is unconstitutional on its face and as applied to her.
[¶9] This Court has said "restraining orders are a species of injunction, distinguished basically by their temporary nature." Svedberg v. Stamness , 525 N.W.2d 678, 681 (N.D. 1994) (citing Gunsch v. Gunsch , 69 N.W.2d 739, 749 (N.D. 1954) ). We further explained:
Svedberg , 525 N.W.2d at 681. "[A] temporary restraining order, which may be issued ex parte without a hearing , is a species of injunction, typically brief in duration, that has as its purpose maintaining the status quo until a determination can be made on the temporary injunction issue." State v. Holecek , 545 N.W.2d 800, 804 (N.D. 1996) (emphasis added) (citing Amerada Hess Corp. v. Furlong Oil & Minerals , 336 N.W.2d 129, 132 (N.D. 1983) ; 42 Am. Jur.2d Injunctions 10 (1969) ). "[O]rdinarily, a temporary restraining order precedes a temporary or preliminary injunction, which in turn precedes a permanent injunction if, after a hearing on the merits, a permanent order is found to be necessary." Holecek , at 804.
[¶10] Under N.D.C.C. § 12.1-31.2-01(4), the district court may issue a temporary disorderly conduct restraining order based on the allegations in the petition, if the petition alleges reasonable grounds to believe an individual has engaged in disorderly conduct, "ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order." The court must then hold a full hearing "not later than fourteen days" after issuing the temporary order, unless otherwise agreed to by the parties, before granting a long-term disorderly conduct restraining order, not to exceed a period of two years. N.D.C.C. § 12.1-31.2-01(5), (6). See Meier v. Said , 2007 ND 18, ¶ 14, 726 N.W.2d 852. Under the statute’s plain language, while the temporary order may be entered without a hearing, the court must hold a hearing before entering a long-term order. Section 12.1-31.2-01(5)(b), N.D.C.C., requiring the respondent to be served with the temporary order, is one of the elements the State must establish before a long-term order is issued. Moreover, under N.D.C.C. § 12.1-31.2-01(8), the respondent must know of a temporary order issued under N.D.C.C. § 12.1-31.2-01(4) or (5) before the respondent can be found to have violated the order.
[¶11] In this case, Kenny was charged with violating the temporary orders issued under N.D.C.C. § 12.1-31.2-01(4), before the hearing on the temporary orders could be held under N.D.C.C. § 12.1-31.2-01(5). She was ultimately convicted of violating the temporary orders. On this record, Kenny’s constitutional argument that N.D.C.C. § 12.1-31.2-01(5) violates her constitutional right to due process is without merit.
[¶12] Kenny argues N.D.C.C. § 12.1-31.2-01 was "constitutionally overbroad as applied to her."
[¶13] In State v. Francis , 2016 ND 154, ¶ 16, 882 N.W.2d 270, we discussed the overbreadth doctrine:
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