Preview:

Unified Judicial System

Formatting Courtesy of State Bar of South Dakota and South Dakota Continuing Legal Education, Inc. 222 East Capitol Avenue Pierre, SD 57501 1-800-952-2333 STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. KENNETH CRAIG (K.C.) HAUGE, Defendant and Appellant. South Dakota Supreme Court Appeal from the Fourth Judicial Circuit, Davison County, SD Hon. Tim D. Tucker, Judge #19263 - Affirmed Mark Barnett, Attorney General Grant Gormley, Assistant Attorney General, Pierre, SD Attorneys for plaintiff and appellee. Timothy J. Langley, Sioux Falls, SD Attorney for defendant and appellant. Argued on Mar 13, 1996; Opinion Filed Apr 24, 1996 KONENKAMP, Justice. [¶1] The questions presented are whether a domestic abuse protection order may prohibit sending letters and whether the term "verbal contact" includes letter writing. Asserting his First Amendment right to free speech and protesting "overly broad" language in the order, Defendant appeals his conviction for violating a protection order by sending a letter. We affirm. Facts [¶2] On December 28, 1994, Brenda Hansen appeared for a hearing on her petition for a protection order against her ex-husband, Kenneth Hauge. Her petition alleged: Last November, 93, KC [Hauge] physically beat me - threaten me, kicked me from head down, cornered me and would not let me go. (please see past police reports!) as well as verbal abuse. My children were home at the time of above incident. KC has continued to write letters to me, even while in jail. He is obsessed with lies about my personal life. As of today 12-6-94 I received a letter from him asking me to visit him to watch a tv program concerning similar to our situation. Hauge, acting pro se, never specifically objected to the relief she sought, but challenged the domestic protection statutes, saying "This Protection Order is the most abused law in the state of South Dakota... . It's unconstitutional, overly broad, and it's dangerous." Circuit Judge Lee D. Anderson told Hauge [T]here comes a point in time when you just need to understand that she has the right to not have you come to her house, to not have you write letters... . And so, if you will, you know, look over the terms of the order of protection and abide by those with respect to your contact

file:///C|/Users/Peter/Desktop/Opinions/103100.htm[5/8/2013 8:01:42 PM]

Unified Judicial System

with her... . The court found domestic abuse had occurred and was likely to continue. Accordingly, the protection order directed Hauge to "not verbally contact Plaintiff in any manner, which includes phone contact or contact through third parties, and ... not verbally abuse or threaten Plaintiff." [¶3] On March 18, 1995, Hansen received [96 SDO 302] a letter at her home from Hauge. She opened it, read it, and turned it over to the Davison County State's Attorney. Peppered with expletives, the letter contained no overt threats, yet expressed Hauge's "anger and rage" at government officials who had "set it all up." It urged her to "take responsibility" for her complicity with these officials. For this letter Hauge was charged with violating the protection order. Representing himself at trial, Hauge admitted sending the letter, telling the jury in his opening statement, "I'm here today under willful intent. I sent that letter on purpose. For the very purpose of getting in front of you." Hauge contended the domestic abuse laws (SDCL Ch 2510) were overbroad and unconstitutional. He was convicted pursuant to SDCL 25-10-13 and sentenced to one year in the county jail. Hauge appeals. We consider the following issues: I. Whether the protection order was unconstitutionally overbroad. II. Whether the protection order unconstitutionally violated Hauge's due process rights because of its vagueness. Analysis [¶4] Challenges to the constitutionality of a statute meet formidable restrictions: There is a strong presumption that the laws enacted by the legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. Sedlacek v. Teener Baseball Program, 437 NW2d 866, 868 (SD 1989)(citations omitted). See also State v. Heinrich, 449 NW2d 25, 27 (SD 1989)(this Court will uphold the statute unless its unconstitutionality is shown beyond a reasonable doubt); In re Certification of Question of Law (Elbe), 372 NW2d 113, 116 (SD 1985) (statutes are presumed to be constitutional). [¶5] Though interrelated, the concepts of vagueness and overbreadth are conceptually distinct doctrines.{fn1} State v. Morrison, 341 NW2d 635, 637 (SD 1983). Vagueness is usually associated with the right to due process found in the Fifth and Fourteenth Amendments, whereas overbreadth is concerned with the First Amendment guarantees of free speech. Id. We have previously analyzed the type of speech not protected by the guarantees of the First Amendment. State v. Diede, 319 NW2d 818, 821-22 (SD 1982); State v. Crelly, 313 NW2d 455, 456 (SD 1981). In Crelly, the terms "obscene" and "lewd," as used in SDCL 49-31-31(1), were not deemed overbroad and vague. Certainly the State has a legitimate interest in providing its citizenry with protection from perverse telephone calls. With the passage of SDCL 49-31-31(1), our Legislature intended to ban the type of unreasonable conduct which, by its very nature, erodes the peace of mind and solitude of an unsuspecting individual. Conduct of this nature is obviously not protected by the guarantees of free speech provided for in the First Amendment. Id. at 457 (emphasis added). With these precepts in hand we now address the nature of the restraint contained in the protection order. [¶6] I. Whether the protection order was unconstitutionally overbroad. [96 SDO 304]

file:///C|/Users/Peter/Desktop/Opinions/103100.htm[5/8/2013 8:01:42 PM]

Unified Judicial System

[¶7] Hauge maintains that both the statute and the order are unconstitutional, but because criminal sanctions allowed under our domestic abuse laws may only be imposed upon a violation of a protection order, we focus our analysis on the specific terms of the order itself.{fn2} SDCL 25-10-13 has no general application to the public, except as it enables a court to restrain a person subject to the order. Hauge believes the protection order imposed overbroad restrictions on his right of free speech, embodied in the First Amendment of the United States Constitution and the South Dakota Constitution. See SD Const Art VI 5. Constitutionally guaranteed freedom of expression is "delicate and vulnerable." N.A.A.C.P. v. Button, 371 US 415, 433, 83 SCt 328, 338, 9 LEd2d 405 (1963). Overbroad restrictions touching speech are particularly repugnant when they carry criminal sanctions, unless they are drawn with "narrow specificity." Id. The test is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen v. Women's Health Center, Inc., ___ US ___, ___, 114 SCt 2516, 2525, 129 LEd2d 593, 608 (1994). [¶8] Without a doubt, domestic abuse protection orders preserve compelling governmental interests.{fn3} See SDCL Ch 25-10. Judges must exercise broad authority to fashion necessary safeguards for the unpredictable insecurities victims of domestic abuse often face. SDCL 25-10-5 provides in part: Upon notice and a hearing, if the court finds by a preponderance of the evidence that domestic abuse has taken place, the court may provide relief as follows: ... (6) Order other relief as the court deems necessary for the protection of a family or household member, including orders or directives to a sheriff or constable. This statute only applies when the court determines domestic abuse has taken place and relief is necessary to protect family or household members. The circuit court found it necessary to compel Hauge to stop contacting his ex-wife, as part of her need for protection. To shield victims of domestic violence from threats and intimidation, courts must sometimes prohibit all contact between the abused and the abuser. Those who feel assailed in their own homes are often the most vulnerable. [¶9] There are few ideals more fundamental than "[t]he State's interest in protecting the well-being, tranquillity, and privacy of the home ... in a free and civilized society." Frisby v. Schultz, 487 US 474, 484, 108 SCt 2495, 2502, 101 LEd 420 (1988)(citations omitted). The home is "the last citadel of the tired, the weary, and the sick[,]" (Id. at 484) and a refuge for those who seek peace. Allowing a person who has physically abused a family member to continue offensive interaction, would surely make protection orders a feeble device for maintaining peace. By using the mail to contact his ex-wife, Hauge's claimed right to free speech goes beyond freedom of expression in a public forum, and intrudes upon Hansen's personal sanctuary

Download 103100.pdf

South Dakota Law