Overbo, et al. v. Overbo

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                   

Crystal Overbo,                                                         Plaintiff
       v.
Aaron Overbo,                                                         Defendant
       and
State of North Dakota, Statutory             Real Party in Interest and Appellant



                                   No. 20240164

Appeal from the District Court of Golden Valley County, Southwest Judicial
District, the Honorable William A. Herauf, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Philip Axt, Solicitor General, Office of the Attorney General, Bismarck, ND, for
appellant; submitted on brief.
                            Overbo, et al. v. Overbo
                                No. 20240164

Crothers, Justice.

[¶1] The State appeals from a district court order deciding N.D.C.C. § 14-09-
25(8) is unconstitutional. The statute permits the State to suspend or waive
judgment interest on past-due child support payments. The court decided on its
own initiative that the law authorizes unconstitutional takings of private
property. The State argues the court erred because the parties did not present the
issue. The party presentation principle requires that courts refrain from deciding
constitutional questions not submitted by the litigants. We reverse the order and
remand the case.

                                        I

[¶2] The Department of Health and Human Services sent Crystal Overbo notice
it suspended judgment interest on past-due child support payments owed by her
ex-husband, Aaron Overbo. The letter informed her the Department may “waive
any remaining interest on past-due support owed” if Aaron Overbo was a “good
payer” for at least one year. The notice cited N.D.C.C. § 14-09-25(8) as authority
for its decision. That law states:

      “The child support agency may suspend or waive judgment interest
      on an arrearage as part of an amnesty program, as an incentive for
      satisfying a child support obligation or complying with a payment
      plan, or if the child support agency determines that the judgment
      interest is not collectible through commercially reasonable efforts.
      This subsection applies to judgment interest accruing before July 1,
      2005, only if the arrearage is assigned to the child support agency
      under section 50-09-06.1 or 50-24.1-02.1 or if the obligee provides
      written consent. Any judgment interest that is suspended or waived
      under this subsection may be reinstated by the child support agency
      if the obligor has failed to comply with a payment plan.”

The Department’s notice advised Crystal Overbo she could challenge the
decision by “request in writing” to the district court. She filed a letter with the
district court objecting to the Department’s action. She claimed there was an


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“egregious difference” in the financial responsibilities between the parties, she
alleged various expenses Aaron Overbo failed to pay, and she asserted he owed
her spousal support that she could not collect. No party filed additional briefing.

[¶3] The district court held a hearing. Crystal Overbo appeared without
counsel, Aaron Overbo was represented by his attorney, and a special assistant
attorney general appeared on behalf of the State, which is a statutory real party
in interest in child support proceedings. See N.D.C.C. § 14-09-09.26. A colloquy
occurred between the court and the assistant attorney general:

      “THE COURT: Is there a constitutional problem with that, taking
      away her property without her consent?

      MS. GOULET: No, Your Honor, that is authorized also under state
      law.

      THE COURT: So state law can authorize Child Support to go ahead
      and require a person to forfeit some property that they’re entitled
      to?

      MS. GOULET: Yes, Your Honor. After July 1st of 2005, anything that
      accrued after that date, the State is authorized to take. Prior to that
      date, she has to give her consent to any of the interest that accrued
      prior to that date. After that date, the State is allowed to take that.

      THE COURT And that—

      MS. GOULET: That is also in the notice that’s been filed.

      THE COURT: —and that isn’t taking property without just
      compensation?

      MS. GOULET: She’s been noticed, Your Honor.”

The hearing concluded with the Court advising the parties and the State:

      “THE COURT: Okay. Well, tell you what. Ms. Overbo, they may be
      correct that there isn’t a constitutional problem. I just don’t know.
      I’m going to take a look at their statute.


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            Ms. Goulet, I am a little concerned. I am a little concerned by
      what the State does on these things because that interest, if it’s not
      being paid, it should go to those people. I mean—it should—it
      should be her property. And I’m not—I’m not comfortable with
      what the State’s doing. So at this point, I just don’t know. I’m going
      to take a look at the statute, and then I’ll make a very, very short
      decision. This is all on the record. If you want to get addressed by
      the Supreme Court, you sure can.”

[¶4] The district court entered an order deciding N.D.C.C. § 14-09-25 violates
the Fifth Amendment to the United States Constitution because it authorizes the
State to take private property without just compensation. The court ordered the
Department’s decision “vacated and is void.” The State appeals. Crystal Overbo
and Aaron Overbo have not submitted appellate briefing. We have jurisdiction
under N.D.C.C. §§ 28-27-02(5) and 14-05-25. Thornton v. Klose, 

,

.

                                        II

[¶5] The State argues the district court’s order should be reversed because
neither party presented the issue of whether N.D.C.C. § 14-09-25(8) is
constitutional. The State alternatively argues the law is constitutional because it
does not authorize a taking of private property protected by the Fifth
Amendment.

[¶6] The standard for declaring a law unconstitutional is high. Under N.D.
Const. art. VI, § 4, this Court “shall not declare a legislative enactment
unconstitutional unless at least four of the members of the court so decide.” A
party challenging the constitutionality of a law must “make a strong case
supported by both fact and law or ‘forgo the claim.’” Denault v. State, 

, 

 (quoting Weeks v. N.D. Workforce Safety & Ins. Fund,

, 

); see also Bolinske v. Jaeger, 

,

 (“A party raising a constitutional challenge must bring up the
‘heavy artillery’ or forego the attack entirely.”) (quoting Effertz v. N.D. Workers’
Comp. Bureau, 

 (N.D. 1992)). Special procedural rules apply
when a party brings a constitutional challenge. See, e.g., N.D.R.Civ.P. 24(c)(2)
(stating a party must give the attorney general notice when presenting a

                                         3
constitutional question and the court must permit the attorney general to
intervene on behalf of the State); see also N.D.R.App.P. 44 (stating a party
questioning the constitutionality of a statute on appeal must give written notice
to the attorney general “immediately upon the filing of the record or as soon as
the question is raised”).

[¶7] The separation of powers created by our state and federal constitutions
requires courts to exercise judicial restraint and constitutional avoidance. See
Barrios-Flores v. Levi, 

, 

 (Sandstrom, S.J.,
concurring specially) (“[T]he doctrine of abstention absent necessity of deciding
unresolved constitutional issues goes to the very heart of the constitutional
system of separation of powers.”); see also N.D. Legislative Assembly v. Burgum,

, 

 (Crothers, J., concurring and dissenting)
(stating that when constitutional analysis is necessary, “deference to the work of
our co-equal branches of government requires that we proceed with great
caution and circumspection”); Three Affiliated Tribes of Fort Berthold Reservation v.
Wold Eng’g, P.C., 

 (1984) (“It is a fundamental rule of judicial
restraint, however, that this Court will not reach constitutional questions in
advance of the necessity of deciding them.”); Espeland v. Police Magistrate’s Court
of City of Grand Forks, 

 (N.D. 1951) (explaining constitutional
questions will not be addressed “unless such determination is absolutely
necessary”).

[¶8] A corollary to the separation of powers is the party presentation principle.
The judicial branch is a passive instrument of government. United States v.
Sineneng-Smith, 

 (2020). "[W]e rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters the
parties present.” 

 (quoting Greenlaw v. United States, 

 (2008)).
The principle is “supple, not iron clad,” and in some circumstances, including
instances where a criminal defendant is unrepresented, “a modest initiating role
for a court is appropriate.” 

 However, courts should not “pass upon
constitutional questions unless properly before them” and then only to the extent
“necessary to the determination of the cause” and not “at the instance of a
stranger, but only on the complaint of those with the requisite interest.” McCoy
v. Davis, 

 (N.D. 1917). “The court should not of its own volition

                                         4
go outside of the record and search for reasons for annulling a statute, nor should
they conjure up theories to overturn and overthrow.” Hazelton-Moffit Special Sch.
Dist. No. 6 v. Ward, 

 (N.D. 1961); see also State v. Blue, 

, ¶ 19, 

 (“Rather than ruling on an issue not raised or
briefed by the parties, the district court should have presumed the
constitutionality of a statute until it is clearly shown otherwise.”).

[¶9] The order in this case is similar to a ruling we reversed in State v. Hansen,

, 

. On its own initiative a district court raised
constitutional questions about a law authorizing drug testing as a bail condition.
Id. at ¶ 3. The defendant’s attorney subsequently challenged the constitutionality
of the law on the same grounds, and the court declared it unconstitutional. Id. at
¶ 4. On appeal, we explained the necessity of an “orderly process for the
development of constitutional claims” that facilitates “deliberate and reasoned
review of statutes, which requires that constitutional claims be properly raised.”
Id. at ¶¶ 10-11. We vacated the district court’s order because it did not follow
“established procedures” for resolving constitutional issues. Id. at ¶ 12.

[¶10] Similar to Hansen, the requisite process for constitutional review was not
followed in this case. Crystal Overbo did not ask the district court to consider
the constitutionality of N.D.C.C. § 14-09-25(8). She argued suspension and
waiver of interest on past-due child support was inappropriate because of the
parties’ circumstances and history. The court did not address her assertions
before invalidating the law. The State now raises a number of issues the district
court did not analyze, including whether child support is a protected property
interest. Jurisdictions have addressed that issue differently. See, e.g., Williams v.
Humphreys, 

 (S.D. Ind. 2000) (comparing North Carolina
law with Indiana law). We do not have the benefit of adversarial briefing because
the parties did not present the issue. While we currently take no position on the
merits of the court’s decision, its process of addressing an unraised constitutional
issue disrupts the separation of powers between the branches of government and
contravenes the party presentation principle.




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                                      III

[¶11] The district court’s order is reversed and the case is remanded.

[¶12] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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