Svedberg v. Stamness

• Decision Date: 20 December 1994
• Docket Number: No. 940192,940192
• Citation: 525 N.W.2d 678
• Parties: Christian SVEDBERG, (Arlo and Darlene Svedberg), Petitioner and Appellee, v. Anthony STAMNESS, (Andrew and Charlene Stamness), Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 678

525 N.W.2d 678

Christian SVEDBERG, (Arlo and Darlene Svedberg), Petitioner and Appellee, v. Anthony STAMNESS, (Andrew and Charlene Stamness), Respondent and Appellant.

Civ. No. 940192.

Supreme Court of North Dakota.

Dec. 20, 1994.

Michael E. Keller (argued), The Bergquist Law Firm, Larimore, for respondent and appellant.

Lyle H. Moe, Grand Forks, for petitioner and appellee; submitted on brief.

NEUMANN, Justice.

Anthony Stamness appeals from a two-year disorderly conduct restraining order, issued under NDCC section 12.1-31.2-01 (Supp.1993), which enjoins specific threatening, abusive, and assaultive behaviors directed at Christian Svedberg. We affirm the district court's order.

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors. The district court heard evidence and concluded that Stamness had made threats against Svedberg's physical safety including a direct threat against his life, as well as pursuing a course of action including "incessant teasing" and "harassment," all of which left Svedberg afraid to attend school. Testimony indicated that Stamness and others referred to Svedberg as "Dumbo," a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, "You had better watch it Dumbo or I will kill you." In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that "Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including "Dumbo"), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg."

Stamness' appeal is based on two different issues. Stamness first asserts that the district court committed error when it found that "reasonable grounds" existed to support the issuance of a disorderly conduct restraining order. Stamness also argues that the restraining order improperly restrains his First Amendment right to exercise free speech as protected by the United States Constitution.

I. North Dakota's Disorderly Conduct Restraining Statute

The statute used to issue the disorderly conduct restraining order in this action is NDCC section 12.1-31.2-01. ¹ This statute allows a court to restrain conduct when it finds "that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct." NDCC Sec. 12.1-31.2-01(5)(d). This statute was enacted as part of the same bill that amended North Dakota's disorderly conduct statute, codified at NDCC section 12.1-31-01 (Supp.1993). 1993 N.D.Laws 125. Should a court find "reasonable grounds" to believe the respondent has engaged in disorderly conduct, the court is granted the power to restrain any further acts, which essentially would be criminal actions. See NDCC Sec. 12.1-31-01 (providing both a definition and a penalty for disorderly conduct).

A restraining order in North Dakota is a judicial remedy that is classified under NDCC chapter 32-06, entitled Injunctions. NDCC Sec. 32-06-07 (1976). We have previously found that restraining orders are a species of injunction, distinguished basically by their temporary nature. Gunsch v. Gunsch, 69 N.W.2d 739, 749 (N.D.1954). Generally injunctions have "no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes." 43A C.J.S. Injunctions Sec. 158. This is because, ordinarily, criminal sanctions provide the remedy for such violations. In this situation, however, the legislature has empowered the court to restrain criminal conduct upon a showing that reasonable grounds exist that tend to show disorderly conduct was committed. NDCC Sec. 12.1-31.2-01.

An "injunction against acts in violation of law is proper where there is express statutory authority therefor." 43A C.J.S. Injunctions Sec. 158. When such authority exists, "[i]njunctive relief under such statutes is not conditioned upon common law requirements but solely upon the terms of the statute." Id. The statutory authority to enjoin these criminal acts provides the sole basis for the trial court's actions in this case.

To issue a disorderly conduct restraining order, the trial court must find "reasonable grounds to believe that ... disorderly conduct" has been committed. ² NDCC Sec. 12.1-31.2-01(4) (providing guidelines for the granting of a "temporary disorderly conduct restraining order"); Sec. 12.1-31.2-01(5)(d) (providing that subsequent to a hearing a disorderly conduct restraining order may be issued). Nowhere does the statute define what is meant by the phrase, "reasonable grounds." North Dakota does, however, have a long line of cases which have construed the phrase "reasonable grounds" as it has been used in other contexts. See, e.g., State v. Beaton, 516 N.W.2d 645, 647 (N.D.1994); Salvaggio v. North Dakota Dept. of Transp., 477 N.W.2d 195, 197 (N.D.1991); Wolf v. ND Highway Comm'r, 458 N.W.2d 327, 329 (N.D.1990); Zietz v. Hjelle, 395 N.W.2d 572, 574 (N.D.1986); Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 652 (N.D.1985) (all discussing the meaning of the term "reasonable grounds" in relation to DUI arrests under NDCC Sec. 39-08-01). In those decisions we have consistently held that " 'reasonable grounds' is synonymous with the term 'probable cause.' " Moser, 369 N.W.2d at 652.

Probable cause exists when the "facts and circumstances within the officer's knowledge ' "are sufficient to warrant a [person] of reasonable caution in believing that an offense has been or is being committed." ' " Beaton, 516 N.W.2d at 647 (quoting Moser, 369 N.W.2d at 652-53 (quoting Witte v. Hjelle, 234 N.W.2d 16, 18 Syllabus p 3 (N.D.1975))). In light of this long-standing line of cases we will construe "reasonable grounds" as used in NDCC section 12.1-31.2-01 with an eye to our precedent.

Reasonable grounds exist for purposes of this section when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed. Stamness, in the instant case, complains that the facts and circumstances presented to the judge did not create "reasonable grounds" and, therefore, the restraining order was erroneously issued. We have reviewed the transcript and the affidavits submitted in the instant case and are convinced that reasonable grounds exist to support the issuance of the order.

Our review of the transcript reveals that there was conflicting testimony presented both orally and by affidavits as to the types and the significance of threats that were issued by Stamness. In the instant case it appears the judge believed Svedberg and his witnesses. "[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). This is a province firmly entrusted to the trial court, and we will generally defer to its expertise. Stamness has failed to show us how or where the trial court breached its duty in the instant case. Therefore, his argument that reasonable grounds did not exist to support the issuance of the restraining order must fail.

II. Was Stamness' Conduct Constitutionally Protected Speech?

Stamness argues that the trial court improperly ruled that his actions did not constitute an exercise of First Amendment free speech. ³ He argues that his actions were constitutionally protected, and that the trial court therefore was required to "exclude evidence of the activity." NDCC Sec. 12.1-31.2-01(5)(d). If evidence of this protected activity were excluded, Stamness argues, there would not be enough evidence to support the "reasonable grounds" necessary to issue the restraining order. Id. We are unconvinced, however, that Stamness was engaged in constitutionally protected activity.

Freedom of speech and freedom of the press are protected by the First Amendment from infringement by Congress. Chaplinsky v. New Hampshire, 315 U.S. 568, 570, 62 S.Ct. 766, 768, 86 L.Ed. 1031, 1034 (1942). They likewise are afforded protection from invasion by state action through the Fourteenth Amendment because they are "fundamental personal rights and liberties." Id. at 570-71, 62 S.Ct. at 768, 86 L.Ed. at 1034. The First Amendment generally prohibits the government from proscribing speech based on disapproval of its content. R.A.V. v. City of St. Paul, Minn., --- U.S. ----, ----, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305, 317 (1992); Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, 294 (1971). However, not all speech is constitutionally protected speech. See R.A.V. --- U.S. at ----, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (recognizing the United States Supreme Court's approach to categories of speech which are not imbued with constitutional protection). We have always "permitted restrictions upon the content of speech" within certain limited parameters because certain areas of speech are " 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " Id. at ----, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (quoting Chaplinsky 15 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035). These categories of...