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State v. Kenny

Supreme Court of North Dakota

August 22, 2019

State of North Dakota, Plaintiff and Appellee
v.
Donna Jeanne Kenny, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Justin J. Schwarz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶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.

         I

         [¶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.

         II

         [¶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:

"1. 'Disorderly conduct' means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. . . . Disorderly conduct does not include constitutionally protected activity. . . . .
4. If the petition for relief alleges reasonable grounds to believe that an individual has engaged in disorderly conduct, the court, pending a full hearing, may grant a temporary disorderly conduct restraining order ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order. A temporary restraining order may be entered only against the individual named in the petition. The court may issue the temporary restraining order without giving notice to the respondent. Unless ...

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