Lehnerz v. Christopher

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 8, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 122Amber Lehnerz, individually
and on behalf of O.E.P., Petitioners and Appellees
and
Megan Christopher, Respondent and Appellant
No. 20210353
Appeal from the District Court of Golden Valley County, Southwest Judicial
District, the Honorable James D. Gion, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Jared W. Gietzen, Dickinson, ND, for petitioners and appellees; submitted on
brief.
Jennifer M. Gooss, Beulah, ND, for respondent and appellant; submitted on
brief.
Lehnerz, et al. v. Christopher
No. 20210353
Crothers, Justice.
[¶1] Megan Christopher appeals from a disorderly conduct restraining order
entered against her. Christopher argues the district court abused its discretion
in issuing the order because reasonable grounds did not exist to believe she
engaged in disorderly conduct, and her conduct was constitutionally protected.
We affirm.
I
[¶2] In October 2021, Amber Lehnerz, individually and on behalf of her child,
O.E.P., petitioned for a disorderly conduct restraining order against
Christopher. Lehnerz alleged Christopher intimidated and harassed her and
her child by taking unwanted photos and videos of them. At the time of this
action, Christopher was employed as a trooper with the state highway patrol.
Christopher has two children with Lehnerz’s fiancé.
[¶3] After two hearings, the district court found reasonable grounds to believe
Christopher engaged in disorderly conduct that adversely affected the safety,
security, or privacy of Lehnerz and her child. The court concluded Christopher’s
conduct was not constitutionally protected. The court entered a one-year
disorderly conduct restraining order against Christopher.
II
[¶4] Christopher argues the district court erred in granting the disorderly
conduct restraining order. The standard of review for a court’s decision on a
disorderly conduct restraining order is well established:
“This Court will not reverse a district court’s decision to grant a
restraining order or to conduct a hearing absent an abuse of
discretion. The district court abuses its discretion when it acts in
an arbitrary, unreasonable, or unconscionable manner, when it
misinterprets or misapplies the law, or when its decision is not the
product of a rational mental process leading to a reasoned
determination.”
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Keller v. Keller, 2017 ND 119, ¶ 5, 894 N.W.2d 883 (quoting Combs v. Lund,
2015 ND 10, ¶ 4, 858 N.W.2d 311).
A
[¶5] Christopher claims the district court abused its discretion in finding
reasonable grounds to believe she engaged in disorderly conduct.
[¶6] “‘Disorderly conduct’ means intrusive or unwanted acts, words, or
gestures that are intended to adversely affect the safety, security, or privacy of
another person.” N.D.C.C. § 12.1-31.2-01(1). “Disorderly conduct does not
include constitutionally protected activity.” Id. The court may grant a
restraining order if, after a hearing, it finds reasonable grounds to believe the
respondent has engaged in disorderly conduct. N.D.C.C. § 12.1-31.2-01(5)(d);
Keller, 2017 ND 119, ¶ 7. Reasonable grounds exist for issuing a restraining
order “when the facts and circumstances presented to the judge are sufficient
to warrant a person of reasonable caution to believe that acts constituting
disorderly conduct have been committed.” Gonzalez v. Witzke, 2012 ND 60,
¶ 10, 813 N.W.2d 592.
[¶7] “A petition for relief must allege facts sufficient to show the name of the
alleged victim, the name of the individual engaging in the disorderly conduct,
and that the individual engaged in disorderly conduct.” N.D.C.C. § 12.1-31.2-
01(3). In addition, a petitioner must provide an affidavit with “the specific facts
and circumstances supporting the relief sought.” Id.
[¶8] In her sworn petition, Lehnerz alleged numerous incidents involving
Christopher over the course of approximately one year. Lehnerz alleged
Christopher confronted her and blocked her from entering the children’s
daycare. After Lehnerz returned to her vehicle, Christopher yelled at Lehnerz
about Lehnerz’s fiancé. Lehnerz described another incident when Christopher
parked near the daycare and took photos or videos while Lehnerz dropped the
children off.
[¶9] Lehnerz alleged three instances at sporting events where Christopher
chose to sit next to Lehnerz. At one event, Christopher was on duty with the
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highway patrol and “made a nasty comment to her son . . . about how [Lehnerz
is] mean.” Lehnerz alleged Christopher took photos and videos of her and her
daughter after Lehnerz told her to stop. Lehnerz described another incident at
a fundraising event where Christopher took photos and videos of her and her
daughter. Christopher testified she did not video Lehnerz at the event but did
photo Lehnerz’s “baby bump” and sent the photo to her sister.
[¶10] Lehnerz also testified Christopher has shown up numerous times at
daycare when it is not her parenting time. Lehnerz testified Christopher is
“seeking me out in public,” and “it’s really hard to go about your day-to-day
when you’re constantly being followed, constantly being photographed.”
Lehnerz testified Christopher continued her behavior after Lehnerz asked her
to stop.
[¶11] Lehnerz’s evidence satisfied the statutory requirements under N.D.C.C.
§ 12.1-31.2-01(3). A person of reasonable caution could believe that Christopher
intended her conduct toward Lehnerz and Lehnerz’s daughter to affect their
safety, security or privacy. The district court did not err in finding reasonable
grounds to believe Christopher’s conduct affected the safety, security or privacy
of Lehnerz and her daughter.
B
[¶12] Christopher asserts the district court failed to consider whether her
conduct was constitutionally protected. Whether an activity is constitutionally
protected is a question of law, fully reviewable on appeal. Keller, 2017 ND 119,
¶ 11.
[¶13] “If a person claims to have been engaged in a constitutionally protected
activity, the court shall determine the validity of the claim as a matter of law
and, if found valid, shall exclude evidence of the activity.” N.D.C.C. § 12.1-31.2-
01(5)(d). A district court must address a respondent’s constitutional claims
because constitutionally protected conduct cannot be a basis for a restraining
order. Keller, 2017 ND 119, ¶ 8.
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[¶14] The district court addressed Christopher’s constitutional argument at
both hearings:
“[T]he definition of disorderly conduct . . . does not include
constitutionally protected activity. There is a caveat on that, and
this Court has signed disorderly conduct restraining orders where
we have neighbors that are constantly on each other, and they’re
using what would normally be constitutionally protected activity,
but if I walk out of my house every day and my neighbor starts
yelling obscenities at me to the point where it’s intrusive—do they
have the constitutional right to free speech? They do, but just like
you can’t yell ‘fire’ in a crowded theatre, there are limits. There
comes a point where that constitutionally protected activity is no
longer—it goes beyond the purpose of that.
....
“As I may have stated before, these get to be difficult calls because
you have that fine line between constitutionally-protected activity,
but, as I stated before too, there are limitations on constitutionally
protected activity; otherwise, we wouldn’t have any success in
enforcing any of our laws. And there’s always an explanation,
whether it comes from Ms. Lehnerz or Ms. Christopher, as to how
did—what happened here? How did this happen? What was the
intent of the other person? And we can only go by the testimony
that we heard or what other evidence is provided.
“I’m not changing the finding that I made last time. I do
believe that Ms. Christopher engaged in activity that went beyond
her constitutionally-protected rights, especially—and I point out—
I believe Ms. Christopher testified she took a photograph of Ms.
Lehnerz because she thought maybe she was pregnant. And I
cannot fathom why you would do that, why it would matter.”
[¶15] There are limits on free speech and not all speech is constitutionally
protected. City of Fargo v. Roehrich, 2021 ND 145, ¶ 21, 963 N.W.2d 248. “The
First Amendment may protect the content of the speech, but the conduct used
in delivering the speech may not be protected.” Id. at ¶ 22. Activities that harm
another person are not constitutionally protected. State v. Holbach, 2009 ND
37, ¶ 16, 763 N.W.2d 761. See also Dunham v. Roer, 708 N.W.2d 552, 565 (Minn.
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Ct. App. 2006) (stating the government may “regulate conduct that is invasive
of the privacy of another”); Goosen v. Walker, 714 So. 2d 1149, 1150 (Fla. Dist.
Ct. App. 1998) (concluding the appellant’s conduct of videotaping his neighbor
constituted stalking that served no legitimate purpose and was not
constitutionally protected conduct); State v. Goldberg, 2019 WL 1304109, *17
(Tenn. Crim. App. 2019) (concluding defendant’s acts of parking in front of
victim’s home, staring at victim and taking photos served no legitimate
purpose but were calculated to harass and intimidate and were not
constitutionally protected).
[¶16] The district court did not err in concluding Christopher’s conduct was
not constitutionally protected. Some of her conduct occurred in public; however,
Christopher intended her conduct to be intrusive rather than expressive.
Christopher continued taking photos and videos after Lehnerz asked her to
stop. Christopher’s conduct, including taking photos and videos, invaded the
privacy of Lehnerz and her daughter.
[¶17] The record supports the district court’s decision. The court did not abuse
its discretion in granting Lehnerz and her daughter a disorderly conduct
restraining order against Christopher.
III
[¶18] The order is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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