State v. Kenny, 932 N.W.2d 516

Background

On Sept. 27, 2018, a district court referee issued two temporary disorderly conduct restraining orders (DCROs) against Donna Kenny, sought by two neighbors in the same five-unit condominium complex; orders prohibited contact and required Kenny to stay 100 feet away.
Kenny was served with the orders the same day. A hearing on the temporary orders was set within 14 days.
On Sept. 28, 2018, Kenny approached the neighbors at a backyard fire to ask about parking; neighbors testified she said “shove it up your ass” (or similar) after they told her not to speak to them.
The neighbors called police; Kenny was arrested and charged with two counts of violating disorderly conduct restraining orders (class A misdemeanors).
A jury convicted Kenny of both counts in January 2019; she appealed asserting due process, overbreadth/as-applied, and insufficient-evidence challenges.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.D.C.C. § 12.1-31.2-01(5) violates due process by allowing orders without a hearing	State: statute authorizes temporary ex parte orders followed by a prompt hearing; procedural protections exist before long-term order or criminal liability	Kenny: statute permits issuance of restraining orders without any hearing, depriving her of due process	Court: statute permits ex parte temporary orders but requires a hearing before long-term order; charging and convicting for violating a valid temporary order did not violate due process — claim denied
Whether the statute is unconstitutionally overbroad or unconstitutional as applied	State: constitutional challenges should be raised in civil proceedings and were not preserved; orders not void on their face	Kenny: orders (100-ft ban that included residences) effectively displaced her from her home; statute can criminalize constitutionally protected activity and is overbroad as applied	Court: orders were not void on their face, Kenny’s challenge was an improper collateral attack in the criminal case, and statute is not overbroad or unconstitutional as applied here — claim denied
Whether evidence was sufficient to support convictions for violating the DCROs	State: witnesses and officers testified Kenny was served and then violated the orders by approaching and speaking to the neighbors within 100 feet	Kenny: jury instructions used “contact” while orders barred only “physical contact”; also contends 100-ft restriction was unenforceable	Court: testimony established service and prohibited conduct; unobjected-to jury instructions became law of the case; sufficient evidence supported convictions
Whether jury instruction language conflicted with the restraining order terms and preserved error	State: no timely/specific objection to instructions	Kenny: instruction requiring “contact” broadened the order beyond “physical contact”	Court: defendant failed to timely object; unchallenged instructions control; no reversible error

Key Cases Cited

Svedberg v. Stamness, 525 N.W.2d 678 (N.D. 1994) (restraining orders treated as a species of injunction and statutory authority controls issuance)
State v. Holecek, 545 N.W.2d 800 (N.D. 1996) (temporary restraining orders may be issued ex parte to preserve status quo pending hearing)
Meier v. Said, 726 N.W.2d 852 (N.D. 2007) (procedural requirements for temporary orders and subsequent hearings under DCRO statute)
State v. Francis, 882 N.W.2d 270 (N.D. 2016) (discussion of overbreadth doctrine)
State v. Rourke, 893 N.W.2d 176 (N.D. 2017) (standard for reviewing sufficiency of the evidence)
State v. Norman, 660 N.W.2d 549 (N.D. 2003) (presumption of constitutionality for statutes)
Gonzalez v. Witzke, 813 N.W.2d 592 (N.D. 2012) (statute creates special summary proceeding for disorderly conduct restraining orders)
Skadberg v. Skadberg, 644 N.W.2d 873 (N.D. 2002) (statutory creation of special summary proceeding and hearing)
State v. Knowels, 671 N.W.2d 816 (N.D. 2003) (principles on reviewing sufficiency of evidence)
State v. Noorlun, 705 N.W.2d 819 (N.D. 2005) (circumstantial evidence may support conviction)