This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A11-1930, A11-1931
State of Minnesota,
Respondent,
vs.
Steven Robert Latham,
Appellant.
Filed November 24, 2014
Affirmed
Hudson, Judge
Dakota County District Court
File Nos. 19-AV-CR-11-10412, 19-AV-CR-11-6798
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael E. Molenda, Christine J. Cassellius, Ryan J. Bies, Dougherty, Molenda, Solfest,
Hills & Bauer, P.A., Apple Valley, Minnesota (for respondent)
Michelle L. MacDonald, MacDonald Law Firm, LLC, West St. Paul, Minnesota (for
appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
This matter is on remand from the Minnesota Supreme Court, for reconsideration
of the First Amendment issue in light of Rew v. Bergstrom, 845 N.W.2d 764 (Minn.
2014). See State v. Latham, Nos. A11-1930, A11-1931, 2012 WL 3792209 (Minn. App.
Sept. 4, 2012), rev’d and remanded (Minn. June 17, 2014). The parties have filed
supplemental briefs. On reconsideration in light of Rew, we conclude that the harassment
restraining order (HRO) prohibiting appellant from contacting his ex-wife does not
violate the First Amendment because the no-contact provision is content-neutral, the no-
contact provision does not burden any more speech than necessary, and the government
has a significant interest in protecting individuals from unwanted contacts where there is
a demonstrated history of harassing conduct. We therefore affirm appellant’s
convictions.
FACTS
This appeal was taken from appellant’s misdemeanor convictions of violating an
HRO and disorderly conduct. The cases were consolidated on appeal. Appellant raised
numerous issues in his principal brief, including constitutional challenges to Minn. Stat.
§ 609.748, subds. 4, 5 (2010), which permits a district court to issue a temporary
restraining order (TRO) and an HRO directing a respondent to have no contact with a
particular person. Specifically, appellant challenged these subdivisions on the grounds
that they were: (1) facially overbroad; (2) vague; and (3) in violation of his due process
rights. Appellant also raised issues involving evidentiary error, judicial misconduct, and
prosecutorial misconduct. This court considered all of these issues in our unpublished
opinion, Latham, 2012 WL 3792209.1 Because appellant was not convicted of violating
1
A more detailed statement of the facts is included in this opinion. Latham, 2012 WL
3792209 at * 1-2.
2
section 609.748 when he pleaded guilty to disorderly conduct, and a guilty plea by a
counseled defendant waives all non-jurisdictional defects, this court did not consider
these issues with respect to appellant’s disorderly conduct conviction. See id. at *7; see
also State v. Miller, 849 N.W.2d 94, 99 (Minn. App. 2014). The supreme court granted
further review and stayed all proceedings pending final disposition in Rew, 845 N.W.2d
764. After the supreme court issued its opinion in Rew, the supreme court vacated the
stay, denied review on all issues except the First Amendment issue, and remanded to this
court for reconsideration in light of Rew.
DECISION
This court’s “duty on remand is to execute the mandate of the remanding court
strictly according to its terms.” Bauerly v. Bauerly, 765 N.W.2d 108, 110 (Minn. App.
2009) (quotation omitted). The scope of the supreme court’s remand order is limited to
addressing the application of Rew to this court’s opinion in Latham.
In Rew, the supreme court considered “the legality of a district court’s extension
for up to 50 years of an order for protection (OFP) in favor of a victim of domestic abuse
and her minor children.” 845 N.W.2d 764, 771 (Minn. 2014). After Rew and Bergstrom
divorced, Rew obtained a series of OFPs against Bergstrom, which Bergstrom violated.
Id. at 771-72. Eventually, Rew applied for an extension of the expiration date of the OFP
for up to 50 years, under Minn. Stat. § 518B.01, subd. 6a (2012). Id. at 772. The district
court found that Rew established the criteria for extending the OFP and granted the
application, with additional conditions in the order prohibiting Bergstrom from coming
within 120 yards of Rew’s residence, workplace, or church, suspending Bergstrom’s
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parenting time until he and the children completed therapy, excluding Bergstrom from
calling or coming within 120 yards of the children’s school or childcare, and creating a
buffer zone requiring Bergstrom to stay 50 yards away from Rew and the children in all
public places. Id. at 773–74. Bergstrom challenged the constitutionality of the extended
OFP on First Amendment, double jeopardy, ex post facto, equal protection, and due
process grounds. Id. This court rejected these claims, and the supreme court granted
review. Id. (citing Rew ex rel. T.C.B. v. Bergstrom, 812 N.W.2d 832 (Minn. App. 2011)).
With respect to the constitutional claims, the supreme court considered whether
the extension of an OFP under Minn. Stat. § 518B.01, subd. 6a, for 50 years violates the
First Amendment to the United States Constitution or Article I, Section 3, of the
Minnesota Constitution, which are “coextensive.” Id. at 776. In considering Bergstrom’s
claim that the statute is facially unconstitutional and as applied to him, the supreme court
first considered whether the statute is a prior restraint on speech. Id. The supreme court
noted that, “[A]lthough an OFP satisfies the general definition of a prior restraint because
it prohibits, by judicial order, certain communications before they occur,” not all
injunctions are prior restraints. Id. The supreme court concluded that the OFP was not a
prior restraint because the OFP only prohibited Bergstrom from “express[ing] his views
to Rew or the minor children.” Id. at 777. Additionally, because an OFP is issued based
on a person’s prior unlawful conduct, not on the content of any particular message the
person wishes to express, it prohibits contact regardless of the content of speech. Id.
After concluding that the OFP statute is not a prior restraint on speech, the
supreme court determined that “the proper test for evaluating content-neutral injunctions
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under the First Amendment is the test from Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 114 S. Ct. 2516 (1994). See id. This was the same standard this court had used
to evaluate Bergstrom’s claim. See Rew, 812 N.W.2d at 833 (declining to apply the
heightened prior-restraint standard to 50-year OFP and applying Madsen test).
In Madsen, the Supreme Court considered the constitutionality of an injunction
prohibiting antiabortion protesters from demonstrating outside of a clinic that performs
abortions. 512 U.S. at 757, 114 S. Ct. at 2521. The Supreme Court concluded that strict
scrutiny did not apply because “[a]n injunction, by its very nature, applies only to a
particular group (or individuals) and regulates the activities, and perhaps the speech, of
that group . . . because of the group’s past actions in the context of a specific dispute
between real parties.” Madsen, 512 U.S. at 762, 114 S. Ct. at 2523. After noting that the
protestors “are not prevented from expressing their message . . .; they are simply
prohibited from expressing it within the 36-foot buffer zone,” the Court concluded that
the injunction did not require heightened scrutiny because it did not impose restrictions
based on the content of the message. Id. at 763–64, 114 S. Ct. at 2524. Because
injunctions are different from ordinances and statutes in that they “are remedies imposed
for violations (or threatened violations) of a legislative or judicial decree,” and “carry
greater risks of censorship and discriminatory application,” the Court adopted a
“somewhat more stringent application of general First Amendment principles.” Id. at
764–65, 114 S. Ct. at 2524–25. The Supreme Court held that the standard for evaluating
a content-neutral injunction is “whether the challenged provisions of the injunction
burden no more speech than necessary to serve a significant government interest.” Id.
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Under this standard, the Court concluded that “the noise restrictions and the 36-foot
buffer zone around the clinic entrances and driveway . . . burden no more speech than
necessary to eliminate the unlawful conduct targeted by the State court’s injunction.” Id.
at 776, 114 S. Ct. at 2530.
The Minnesota Supreme Court applied the Madsen standard to the 50-year OFP
statute in Rew. The supreme court held that an OFP issued under the statute does not
facially violate the First Amendment because it does not burden more speech than
necessary, the OFP’s restriction on Bergstrom’s speech to Rew, a victim of domestic
abuse, is not unconstitutional, and the restrictions on Bergstrom’s contact with Rew
satisfy Madsen because the incidental restriction on speech is no greater than necessary to
satisfy the state’s interest in protecting Rew. Rew, 845 N.W.2d at 778–81. But because
the OFP restricting contact with the parties’ minor children until the children reach 18
years of age lacked sufficient evidence in the record, the supreme court reversed and
remanded for further findings as to whether the provisions burdening Bergstrom’s speech
to his children are necessary to serve a significant state interest. Id. at 782–85.
Having clarified the appropriate standard for evaluating whether an injunction
prohibiting contact violates the First Amendment in Rew, the supreme court directed this
court to apply that standard to this case. First, this court already concluded that Minn.
Stat. § 609.748, subds. 4, 5, authorizing an HRO prohibiting contact, does not implicate
the First Amendment. Latham, 2012 WL 3792209 at *4. Rew and Madsen do not alter
this conclusion. Indeed, they support it because an HRO, like an OFP, is issued based on
prior unlawful conduct. 845 N.W.2d at 777. As discussed in Rew and Madsen,
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injunctive orders do not prohibit a person from expressing ideas, rather, the orders only
prohibit expressing ideas to a particular person based on past conduct. Id. Further, an
order prohibiting all contact is content neutral because it does not identify or prohibit any
particular type of speech but is designed to protect privacy and safety. See id.; see also
Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L. J. 781, 838–
39, 842 (2013) (discussing whether civil harassment statutes are content neutral).
Next, we consider appellant’s facial challenge to a content-neutral injunction
under the Madsen standard. Like an OFP, the government has a significant public-safety
interest in permitting district courts to issue HROs prohibiting contact with particular
persons where there is a history of unlawful conduct. Rew, 845 N.W.2d at 779; Caplan,
supra, at 840 (noting public safety is important government interest in civil harassment
orders). For example, an OFP is issued where there is a history of domestic violence, and
an HRO is issued where there is a history of harassing conduct. Minn. Stat. § 609.748,
subd. 2 (providing that person who is victim of harassment may seek restraining order).
The no-contact provision in subdivisions 4, 5, and in a TRO/HRO issued according to
these subdivisions, only prohibits appellant from having contact with his former spouse,
who was the target of appellant’s prior harassing conduct, and does not include their
children. Because it prohibits contact only, it does not burden any more speech than
necessary to serve the government’s interest in protecting the safety and privacy of a
victim of harassing conduct.
With respect to the as-applied challenge, Rew instructs that the reviewing court
apply Madsen “in the context of the specific circumstances presented by this case.” Rew,
7
845 N.W.2d at 780. As respondent points out, the record does not contain the petition for
a harassment restraining order, but there is an unpublished opinion affirming appellant’s
challenge to the issuance of the HRO, which states that it was issued because
appellant followed, pursued, or stalked respondent at the
office of the children’s orthodontist and at parenting-time
exchanges, that appellant made harassing phone calls to
respondent by multiple repeat calls without leaving a
message, that appellant frightened respondent with
threatening behavior by yelling and using angry expressions
during parenting-time exchanges, and that appellant called
respondent’s family members to accuse her of various
matters.
Latham v. Latham, No. A11-1085, 2012 WL 686117 at *1 (Minn. App. Mar. 5, 2012).
The TRO/HRO prohibits appellant from having contact with his former spouse only. The
order does not burden any more speech than necessary to achieve the goal of prohibiting
contact where appellant has demonstrated that his prior contacts with his former spouse
have resulted in harassing and threatening behavior.
Appellant argues that the Madsen standard was called into question by a recent
Supreme Court opinion, McCullen v. Coakley, which involves a challenge to a
Massachusetts statute that created a 35-foot buffer-zone requirement around an abortion
clinic. 134 S. Ct. 2518, 2525-26 (2014). Because McCullen involves the
constitutionality of a statute, which is the standard articulated in Ward v. Rock Against
Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753–54 (1989), it does not alter the holding
in Madsen, which articulated the standard for reviewing an injunction. See Madsen, 512
U.S. at 764–65, 114 S. Ct. at 2524–25. Therefore, McCullen is inapposite.
8
After applying the Madsen standard adopted in Rew for evaluating a content-
neutral injunction, we conclude that the TRO/HRO issued pursuant to section 609.748,
subdivisions 4, 5, does not burden more speech than necessary to serve a significant
government interest in protecting individuals from unwanted contacts where there is a
demonstrated history of harassing conduct.
Affirmed.
9