from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
J. Schwarz, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
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.
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,
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.
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.
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.
"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.
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.