Thompson v. Bear Runner

#28152-r-DG
2018 S.D. 57

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

SARAH THOMPSON, Petitioner and Appellee,

v.

WAMBLI BEAR RUNNER, Respondent and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE JEFFREY R. CONNOLLY
Judge
****

SHILOH M. MACNALLY
Rapid City, South Dakota Attorney for petitioner and
appellee.

KELLY M. PETERSON of
Fitzgerald Law Firm
Rapid City, South Dakota Attorneys for respondent and
appellant.

****

CONSIDERED ON BRIEFS
ON MARCH 19, 2018
OPINION FILED 07/18/18
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GILBERTSON, Chief Justice

[¶1.] Sarah Thompson filed a petition for a protection order against Wambli

Bear Runner for stalking under SDCL 22-19A-1. After a hearing, the circuit court

granted Sarah’s petition for a protection order on the grounds that some of

Wambli’s actions and Facebook posts concerning Sarah amounted to stalking.

Wambli appeals the circuit court’s order. Wambli argues: (1) the circuit court’s

protection order was not supported by proper findings; (2) the circuit court erred in

finding that Wambli’s conduct constituted stalking under SDCL 22-19A-1; and (3)

the protection order is unconstitutionally vague, violating Wambli’s due-process

rights. We reverse and remand.

Facts and Procedural History

[¶2.] Sarah and Wambli live across the street from each other in Rapid City,

South Dakota, in the tight-knit community of Lakota Homes. They also attended

school together at Oglala Lakota College. Sarah and Wambli first started

communicating in 2014 when Sarah began dating Wambli’s ex-boyfriend, Clay

Ramsey. Sarah and Clay dated for only three months.

[¶3.] On December 19, 2014, Wambli initiated a heated text conversation

informing Sarah that she had recently been physically involved with Clay. Both

Sarah and Wambli exchanged insults in the private text conversation. Sarah called

Wambli a bad mother, and Wambli stated that Sarah was a sore loser. The

conversation was short-lived and the two did not communicate further until 2016.

[¶4.] On March 28, 2016, Wambli posted the following on Facebook:

Its funny how some “women” are obviously fake and they really
can’t see their actions. Mother of the year over there is so

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desperate for a man she Hardly ever has her kids yet when she
was living the “single” life secretly prowling, bitter and angry,
she had a protection order against her ex and was using the kids
against him and he couldn’t even see his kids . . . now because of
the her [sic] new man he has them all the time . . . i for one
forever have my kids, my children are always home, I never
sleep a night without them, and I’m completely involved in their
lives/recreational sports yet I was called a “bad mother” by this
same person . . . its none of my business what ppl do but when a
person starts an argument with me . . . just know I’m hanging
on to that and I’ll forever be watching #yourenemy unless I get
an apology!

(Ellipses in original.)

[¶5.] In response to this message and Wambli’s past conduct, Sarah notified

Wambli’s employer asking it to address Wambli’s alleged cyberbullying. Wambli’s

employer, however, stated that it does not get involved in personal matters.

Wambli responded to Sarah’s inquiry on April 8, 2016, by naming Sarah in another

Facebook post claiming that Sarah should focus on her own life and that Sarah was

jealous. Three days later, Wambli posted another Facebook post commenting on a

gift Sarah received from her boyfriend.

[¶6.] In August 2016, Wambli wrote another Facebook post concerning

Sarah, which stated in part:

I’m probably lowering myself to this certain “girls” level but I’m
going to state some facts by putting tjis [sic] out there. I’ve been
dealing with my neighbors jealously, bitterness, speculation,
gossip, assumptions, dramatic lies and trouble making for the
past year and a half . . . she plays victim all to well and wants
attention/pity way to much . . . has the audacity to say I’m
jealous because she’s beautiful (which she is not). . . .

[¶7.] Sarah testified that Wambli would repeatedly use fake names in an

attempt to “friend” her on Facebook. Using one of these names, Wambli messaged

Sarah on October 24, 2016, in a private conversation using Facebook Messenger.

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Wambli insisted during the conversation that Sarah should leave Clay and Wambli

alone and that Sarah should “disappear.” On the same day this conversation took

place, Wambli again posted a message on Facebook commenting on how “my

neighbor” could not handle a discussion and how she was threatened that law

enforcement would be called.

[¶8.] On October 25, 2016, Wambli then sent a complaint to Sarah’s place of

employment claiming Sarah had participated in unethical conduct and

misrepresentation. Wambli also accused Sarah of violating the privacy and

confidentiality of her employer’s patients. After finding out about Wambli’s

complaint, Sarah filed a police report. Wambli posted a message on Facebook

reciting that the police had called her and that Sarah was a “cry baby.” Sarah then

filed a petition for a protection order against Wambli for stalking on October 26,

2016, as a result of Wambli’s harassing behavior and Facebook posts.

[¶9.] The circuit court denied the temporary protection order and set the

matter for a hearing. In the interim, Wambli sent a second complaint to Sarah’s

employer on November 7, 2016, informing them of the protection order. Wambli

also posted a Facebook message on December 15, 2016, about Sarah’s son and an

incident that occurred at his school. Sarah testified that Wambli’s Facebook post

caused the community members to raise concerns with the housing manager about

Sarah’s son living in the area.

[¶10.] The circuit court held a two-day hearing on Sarah’s petition for a

permanent protection order from January 31 to February 1, 2017. The circuit court

listened to testimony from seven witnesses and reviewed 25 exhibits. Ultimately,

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the circuit court found by a preponderance of the evidence that Wambli “pursued a

knowing and willful course of conduct which seriously alarmed or harassed with no

legitimate purpose, and also that she willfully, maliciously and repeatedly harassed

[Sarah] through electronic means.” The circuit court concluded that under SDCL

22-19A-1, Wambli’s conduct constituted stalking, and it granted Sarah’s petition for

a protection order.

[¶11.] Wambli appeals the protection order, raising three issues for our

review:

1. Whether the protection order was supported by proper
findings.

2. Whether the circuit court erred in finding Wambli’s
conduct constituted stalking under SDCL 22-19A-1.

3. Whether the protection order is vague and violates
Wambli’s due-process rights.

Standard of Review

[¶12.] We review a circuit court’s grant or denial of a protection order under a

two-step process: first, by reviewing the circuit court’s findings of fact for clear

error; and second, by reviewing the circuit court’s “ultimate decision for an abuse of

discretion.” Donat v. Johnson, 2015 S.D. 16, ¶ 13, 862 N.W.2d 122, 127. “The

circuit court’s findings of fact will not be set aside unless ‘we are left with a “definite

and firm conviction that a mistake has been made.”’” Erickson v. Earley, 2016 S.D.

37, ¶ 8, 878 N.W.2d 631, 633-34 (quoting Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780

N.W.2d 467, 469). “An abuse of discretion is a fundamental error of judgment, a

choice outside the range of permissible choices, a decision, which, on full

consideration, is arbitrary and unreasonable.” Id. (quoting Blair-Arch v. Arch, 2014

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S.D. 94, ¶ 10, 857 N.W.2d 874, 877). We review constitutional challenges under the

de novo standard of review. State v. Martin, 2003 S.D. 153, ¶ 13, 647 N.W.2d 291,

296.

Analysis and Decision

[¶13.] 1. Whether the protection order was supported by
proper findings.

[¶14.] Wambli argues that the circuit court did not enter sufficient findings of

fact to support the protection order. She contends that the circuit court failed to

state what activities or speech it found to be harassing. We agree with Wambli’s

contention that inadequate findings were made.

[¶15.] “It is well-settled law that it is the [circuit] court’s duty to make

required findings of fact, and the failure to do so constitutes reversible error.”

Doremus v. Morrow, 2017 S.D. 26, ¶ 10, 897 N.W.2d 341, 345 (quoting Repp v. Van

Someren, 2015 S.D. 53, ¶ 10, 866 N.W.2d 122, 126). Meaningful review of the

circuit court’s decision cannot take place “without the [circuit] court’s reasons for

ruling the way it did.” Shroyer, 2010 S.D. 22, ¶ 7, 780 N.W.2d at 470 (quoting

Goeden v. Daum, 2003 S.D. 91, ¶ 7, 688 N.W.2d 108, 110). “Ultimately, the

question is whether the circuit court’s findings sufficiently address the facts of the

case under the specific elements of stalking at issue such that we may determine

whether ‘the evidence met the statutory elements of stalking.’” Doremus, 2017 S.D.

26, ¶ 10, 897 N.W.2d at 345 (quoting Repp, 2015 S.D. 53, ¶ 11, 866 N.W.2d at 126).

[¶16.] SDCL 22-19A-1 provides in part that “[n]o person may . . . [w]illfully,

maliciously, and repeatedly harass another person by means of any verbal,

electronic, digital media, mechanical, telegraphic, or written communication.” The

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circuit court delineated these elements, finding that “willful and malicious and

repeated harassment by terms of electronic, verbal and written communication took

place[.]” Furthermore, the court mentioned that Wambli’s conduct met the

applicable sub-elements of SDCL 22-19A-1. See SDCL 22-19A-4 (“[H]arasses means

a knowing and willful course of conduct directed at a specific person which seriously

alarms, annoys, or harasses the person, and which serves no legitimate purpose.”);

SDCL 22-19A-5 (“[C]ourse of conduct means a pattern of conduct . . . over a period of

time, however short, evidencing a continuity of purpose.”).

[¶17.] Nonetheless, the circuit court’s findings merely parrot statutory text

and do not clearly identify “how the evidence met the statutory elements of stalking

under SDCL 22-19A-1.” Repp, 2015 S.D. 53, ¶ 11, 866 N.W.2d at 126. The court

stated: “I’m finding that there has been a preponderance of the evidence that

harassment has taken place in the past, and that the course of conduct was not

entirely constituted—or protected Constitutionally.” The circuit court mirrored this

statement by checking the box on the order-of-protection form finding that stalking

had taken place under SDCL 22-19A-1. Also, without elaborating further in its

response to questions regarding what conduct it considered to constitute stalking,

the court stated:

I don’t think that everything that I am finding was harassment
or was conduct—was a course of conduct, not all of it—and I’m
not sure of any of it, but certainly not all of it was protected
activity as I sit here now. I can’t figure out—I mean, I’m not
going to predict and say this is where the line is.

What is missing from the circuit court’s findings is conduct that it considered to be

harassment. General statements like those made by the circuit court do not provide

us with a “basis for [the court’s] conclusions with sufficient specificity to permit a
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meaningful review.” Goeden, 2003 S.D. 91, ¶ 9, 688 N.W.2d at 111. Therefore, we

reverse the decision of the circuit court and remand the case to permit the court to

identify which of Wambli’s acts or conduct constituted stalking.

[¶18.] Based on our decision to remand for proper findings, we need not

address Wambli’s remaining issues as “much guess-work would be involved in any

attempt to review” them. See Repp, 2015 S.D. 53, ¶ 13, 866 N.W.2d at 127 (quoting

Judstra v. Donelan, 2006 S.D. 32, ¶ 8, 712 N.W.2d 866, 868).

[¶19.] ZINTER, KERN, and JENSEN, Justices, and SEVERSON, Retired

Justice, concur.

[¶20.] SALTER, Justice, not having been a member of the Court at the time

this action was assigned to the Court, did not participate.

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