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Hoggarth v. Kropp

October 19, 2010

MONTE DEAN HOGGARTH, TONIA HOGGARTH, AND ON BEHALF OF A.H. AND B.H., PETITIONERS AND APPELLEES
v.
MARY ELIZABETH KROPP, RESPONDENT AND APPELLANT



Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] Mary Kropp appeals from a disorderly conduct restraining order prohibiting her from having contact with any member of the Hoggarth family. We affirm in part, reverse in part, and remand to the district court to establish appropriate distance boundaries and schedules in the order.

I.

[¶2] Tonia and Monte Hoggarth petitioned for a disorderly conduct restraining order against Mary Kropp on behalf of themselves and their two minor children in May 2009. Tonia Hoggarth alleged that Kropp had harassed her and her minor son outside Hoggarth's workplace and that Kropp had sent disruptive e-mail messages to the family's e-mail account. The district court entered a temporary disorderly conduct restraining order against Kropp the following day.

[¶3] A hearing was held in July 2009 on whether to make the restraining order permanent. Tonia Hoggarth, Monte Hoggarth, and Kropp all testified. The district court found Monte Hoggarth and Kropp had engaged in an extramarital affair that temporarily ceased, but was later resumed. The district court then made its findings regarding two key events.

[¶4] First, the court found Kropp confronted Tonia Hoggarth and her minor son in a menacing and threatening manner outside Hoggarth's workplace in April 2009. This confrontation occurred immediately after a heated telephone conversation between Monte Hoggarth and Kropp. As Tonia Hoggarth and her son were walking to her vehicle from the clinic where she works, Kropp unexpectedly emerged from an unfamiliar car and accosted them. In direct proximity to the Hoggarths, Kropp unleashed a tirade. She was screaming vulgarities about Monte Hoggarth and the affair while Tonia Hoggarth attempted to get her son away from the scene. Tonia Hoggarth pleaded with Kropp to leave them alone, since her son was being subjected to the unwelcome outburst. Kropp returned to her vehicle, where she remained parked behind the Hoggarths, not allowing them to move, before eventually leaving the parking lot.

[¶5] The second key event involved a series of e-mail messages sent by Kropp to the Hoggarth family e-mail account approximately one month after the parking lot encounter. The district court found at least one of these messages was knowingly sent by Kropp on the birthday of one of the Hoggarth children. Some of the e-mail messages contained pictures of Monte Hoggarth and Kropp together after the affair was supposed to have ended. He appeared voluntarily in at least one of the pictures, while Kropp took other pictures of him without his knowledge. Kropp testified she took these pictures because she thought she "might need [them] someday." The district court found Kropp knew the entire family used the e-mail account and knew it was not password-protected. The court found the purpose of the e-mail messages was to cause the same destruction to the Hoggarth family as Kropp perceived had happened to her family.

[¶6] On the basis of these two incidents, the court entered a permanent order restraining Kropp from contact with the Hoggarth family for 24 months. The order bars Kropp from all contact with the Hoggarth family and requires her to leave a public place immediately upon recognition that any of the Hoggarths are present.

[¶7] Kropp appealed, but then moved to stay briefing and remand the matter to the district court to reconsider both the imposition of the restraining order and its scope. We granted Kropp's motion for remand. Following a hearing, the district court rejected Kropp's motions to reconsider and modify the restraining order. The court concluded no new evidence had been introduced that would justify terminating or modifying the order.

[¶8] Kropp appeals, arguing her statements during the parking lot confrontation and in the e-mail messages sent to the Hoggarths are constitutionally protected free speech and, alternatively, the scope of the restraining order is too broad.

[¶9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Kropp'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, 28-27-02.

II.

[¶10] Kropp first argues her statements and e-mail messages are constitutionally protected forms of free speech, thus invalidating the grounds for the restraining order. Section 12.1-31.2-01(1), N.D.C.C., provides that disorderly conduct does not include constitutionally protected activity. A court imposing a disorderly conduct restraining order must address a respondent's constitutional claims, because constitutionally protected conduct cannot be a basis for the order. See, e.g., Hutchinson v. Boyle, 2008 ND 150, ¶ 9, 753 N.W.2d 881 (restraining order reversed because the district court did not adequately address the free speech claim made by the appellant); ...


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