Rebel v. Rebel
2013 ND 164
| N.D. | 2013Background
- Wendy Rebel (petitioner) sought disorderly conduct restraining orders against her ex-husband Jesse Rebel and his wife Brandi after confrontations at their child’s school in April 2012.
- Allegations: on April 17 Brandi allegedly yelled vulgarities from a vehicle; on April 25 Jesse and Brandi approached Wendy in her parked car, shouted, called her names, and attempted to get her out of the car over disputed DNA results.
- Temporary restraining orders issued April 27, 2012; a judicial referee entered two-year restraining orders in July 2012.
- District court reviewed the referee’s decision, conducted a full evidentiary hearing in December 2012, and ultimately issued its own findings and two-year restraining orders in January 2013 (amended in June 2013 to state violation conditions).
- District court found Jesse participated in and aided the confrontation and found Brandi’s conduct (and language) constituted disorderly conduct; Wendy was observed shaken and calling police.
Issues
| Issue | Plaintiff's Argument (Wendy) | Defendant's Argument (Rebels) | Held |
|---|---|---|---|
| Whether district court properly reviewed and replaced referee findings | District court may reject referee and issue own findings under Rule 13 | Procedural error: district court first adopted referee, then rejected findings; failed to vacate initial order | Court held January 2013 orders superseded earlier orders; no reversible procedural error |
| Whether evidence supported finding of disorderly conduct under N.D.C.C. § 12.1-31.2-01 | Single incident (Apr 25) plus Apr 17 context showed intrusive, threatening conduct affecting safety/security/privacy | Conduct was brief, non-violent, not intended to affect safety/privacy; Jesse was passive/by-stander | Court held evidence supported reasonable-person finding of disorderly conduct; no abuse of discretion |
| Whether Jesse’s conduct amounted to disorderly conduct | Jesse invited confrontation, aided in enticing Wendy from car, and failed to restrain Brandi | Jesse did nothing substantive; no testimony he yelled or gestured; at most a bystander | Court held Jesse’s role (planning, participating, failing to prevent) supported finding he engaged in disorderly conduct |
| Whether speech was constitutionally protected (First Amendment) | Fighting-words exception applies; language and context intended to incite breach of peace and threatened Wendy’s safety | Words were descriptive/insulting but not "fighting words"; Wendy was protected in her car and not physically threatened | Court held speech was not protected fighting words in context and upheld restraining orders |
Key Cases Cited
- Benson v. Benson, 495 N.W.2d 72 (N.D. 1993) (prior standard for referee review discussed)
- In re B.F., 764 N.W.2d 170 (N.D. 2009) (explains de novo district-court review under N.D. Sup. Ct. Admin. R. 13 §11)
- Hanisch v. Kroshus, 827 N.W.2d 528 (N.D. 2013) (discusses discretionary standard and burden for disorderly conduct restraining orders)
- Gonzalez v. Witzke, 813 N.W.2d 592 (N.D. 2012) (single occurrence can suffice for restraining order)
- Wetzel v. Schlenvogt, 705 N.W.2d 836 (N.D. 2005) (objective reasonable-person standard for disorderly conduct)
- Cusey v. Nagel, 695 N.W.2d 697 (N.D. 2005) (must show specific unwanted acts intended to affect safety/security/privacy)
- Hoggarth v. Kropp, 790 N.W.2d 22 (N.D. 2010) (free-speech review is legal question subject to independent appellate scrutiny)
- City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (fighting-words doctrine and contextual analysis)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (U.S. 1942) (establishes fighting-words exception to First Amendment)
- Cohen v. California, 403 U.S. 15 (U.S. 1971) (contextual limits on profanity protections)
- Interest of H.K., 778 N.W.2d 764 (N.D. 2010) (contextual nature of fighting-words determination)
- Hughes v. Powers, 453 N.W.2d 608 (N.D. 1990) (amended order may supersede prior order)