Balvitsch v. Dakota Burger N Fries Corp. , 2014 N.D. LEXIS 39 ( 2014 )

SANDSTROM, Justice,

concurring specially.

[¶ 16] I would reverse because the specified order Tollefson allegedly violated did not exist.

[¶ 17] The majority says, at ¶ 11, “[I]t is not clear from the notice which order Tollefson was alleged to have disobeyed.” But, in fact, it is clear from the notice that Tollefson was alleged to have violated the February 8, 2013, order:

IT IS HEREBY ORDERED, that you appear in person and show cause before this court at a hearing to be held at the Cass County Courthouse, 211 9th Street South, Fargo, ND on April 29, 2013 at 3:15 p.m. on said day, or as soon thereafter as counsel can be heard, why an Order should not be had and why you should not be held and charged to be in Contempt of Court, for your failing to obey a court Order issued February 8, 2013, instructing you to make no further attacks on parties and non-party individuals.

(Emphasis added.)

[¶ 18] To be held in contempt of a specified court order, the order specified must exist. N.D.C.C. § 27 — 10—01.1 (l)(c) (“ ‘Contempt of court’ means ... [intentional disobedience ... of the ... order of a court.”). Here the record reflects that the specified February 8, 2013, order does not exist. No amount of due process notice of the alleged violation of a non-existent order would have permitted holding Tollefson in contempt for having violated it. A person cannot be held in contempt for violating a non-existent court order. It is not a matter of notice and opportunity for a hearing; it is a matter of the elements of the offense not being present.

[¶ 19] DALE V. SANDSTROM.