Dunham v. Roer
| Decision Date | 10 January 2006 |
| Docket Number | No. A05-421.,A05-421. |
| Citation | 708 N.W.2d 552 |
| Parties | Debra Ali DUNHAM, Appellant, v. Karen P. ROER, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Minn.Stat. § 609.748, subd. 1(a)(1) (2004), which defines harassment, does not substantially infringe on constitutionally protected speech or expression, and is not facially overbroad.
2. The statutory definition of harassment regulates constitutionally unprotected activity and is not demonstrably vague in all applications.
Jill E. Clark, Golden Valley, MN, for appellant.
Stephen O. Plunkett, Shanda K. Pearson, Rider Bennett, LLP, Minneapolis, MN, for respondent.
Considered and decided by Chief Judge TOUSSAINT, Presiding Judge; DIETZEN, Judge; and CRIPPEN, Judge.*
Appellant challenges the district court order and judgment granting summary judgment to respondent and dismissing appellant's claims (a) that the harassment definition in Minn.Stat. § 609.748, subd. 1(a)(1) (harassment statute) is facially unconstitutional and (b) for malicious prosecution, abuse of process, and defamation. Appellant contends that the harassment statute is facially overbroad, void for vagueness, and that genuine issues of material fact preclude summary judgment on her other claims. Because we find that the harassment statute is not facially overbroad or void for vagueness; and that there are no genuine issues of material fact that preclude summary judgment, we affirm.
Both appellant Debra Ali Dunham and respondent Karen R. Roer were members of the Wayzata Country Club (WCC). In January 2001, appellant discovered that respondent was having an extramarital affair with her husband. Appellant confronted respondent, who denied the accusation. Because respondent claimed that appellant engaged in various forms of harassment, including giving her the finger at the WCC, respondent sought and obtained an ex parte restraining order against appellant in June 2001. The ex parte restraining order was served on appellant shortly after it was issued.
Respondent asserts that two days after the ex parte restraining order was issued, appellant again gave respondent "the finger" on the WCC golf course. Later that evening, a confrontation occurred between the parties at the WCC, during which appellant stated that she did not know "how [respondent could] show [her] face [at the WCC]" and that "[appellant's] daughter knows what [respondent] did." Respondent summoned the police, who reviewed the restraining order, spoke to the parties and others, and then arrested appellant for violating the ex parte restraining order.
Following an evidentiary hearing, the district court issued a two-year restraining order against appellant on August 29, 2001. The order was based on findings that: (a) appellant called respondent's home eight or nine times in one evening and told respondent's husband about the affair and their membership at the WCC; (b) respondent's lawyer sent letters to appellant's attorney asking her to stop contacting respondent and her husband; and (c) appellant engaged in specific acts of harassment against respondent on five different dates in May and June 2001. The August 2001 restraining order prohibited appellant from harassing respondent by engaging in "[a]ny repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of [respondent]." The order specifically prohibited appellant from having any direct contact with respondent "in person, by telephone, or by other means or persons." Appellant did not appeal the issuance of the restraining order.
Respondent asserts that appellant approached her at the WCC in June 2002 and made offensive comments, including calling her a "slut." Appellant adamantly denies that she used the word. Police interviewed the parties and other witnesses and arrested appellant for violating the August 2001 restraining order. A criminal complaint was issued against appellant, and the matter proceeded to trial. Contending that respondent caused the criminal prosecution, appellant presented evidence that the prosecutor spoke to respondent on various occasions concerning the alleged violations. Respondent admitted that she spoke with the prosecutor, but stated that she did not request that appellant be prosecuted. After a jury trial, appellant was acquitted of those charges. Appellant also alleges that respondent wrongfully accused appellant of "giving her the finger" on February 2, 2002 and April 8, 2002, that a summons was improperly issued by the City of Wayzata assistant prosecutor, and that the charges against appellant were later dismissed.
Appellant also contends that respondent was responsible for her membership being terminated at the WCC. Specifically, the WCC board terminated the Dunhams' family membership at the WCC in September 2002. Respondent testified by deposition that prior to the termination, she was unaware that the WCC was investigating the Dunhams' membership. Appellant's husband, Audie Dunham, acknowledged that appellant had been reprimanded previously for violating WCC rules and that the WCC president stated to him that the decision to expel the family was based on (a) appellant's objections to the WCC dress code, (b) appellant's conduct towards respondent, and (c) other violations of WCC rules.
In July 2003, respondent petitioned to extend the August 2001 restraining order for two more years. After an evidentiary hearing, the district court "extended" the restraining order for one year. The order included specific findings that respondent's testimony was credible and appellant's testimony was not credible. Respondent had alleged four incidents of harassment in support of her motion to extend the order. But the court's order relied on a single incident, which occurred at respondent's church on May 7, 2003. On appeal, this court held that (a) the district court did not have authority to "extend" a restraining order beyond two years; and (b) the order was insufficient as a new or initial restraining order because it relied on a single incident of harassment, rather than on repeated incidents, as required by statute. Roer v. Dunham, 682 N.W.2d 179, 182 (Minn.App.2004) (applying Minn.Stat. § 609.748, subd. 1(a)(1) (2002)).1 There was no allegation of physical or sexual assault. Accordingly, respondent was required to establish the existence of "repeated incidents." Because only one incident was found by the court to have occurred, we reversed the order in an opinion filed on June 29, 2004. Roer, 682 N.W.2d at 182.
Appellant alleges that respondent told others that appellant had committed criminal acts and that she was violent. Appellant relies primarily on a letter dated May 22, 2002 from respondent to the WCC. In the letter, respondent complains that mouthwash was pumped into her locker damaging property and that her nameplate was removed from the locker. Respondent's letter acknowledged that "no one ha[d] been seen perpetrating these acts," but that the acts were "consistent with the harassing behavior [respondent had] experienced in the community and at the club by [appellant]."
In May 2003, appellant sued respondent for malicious prosecution, abuse of process, defamation, and other claims. Upon stipulation of the parties, a scheduling order was issued, which set a discovery deadline of March 10, 2004. There were several disputes over discovery issues. First, respondent argued that appellant should be allowed to attend respondent's deposition. The district court granted a protective order that precluded appellant from attending respondent's deposition, but the order allowed appellant to listen to the deposition by telephone in another room. Second appellant sought to depose the city prosecutor in connection with her claims of malicious prosecution. But the prosecutor objected to the deposition on the basis of prosecutorial privilege. After discussion, appellant's counsel and the city attorney stipulated that appellant served written interrogatories on the city prosecutor. But that process was not completed by the discovery deadline.
On March 8, 2004, appellant sought an extension of the discovery deadline. Following a hearing, the motion was denied. The district court concluded that an extension was inappropriate because the matter was scheduled for trial on June 21, 2004, and appellant had 10 months to complete discovery. The court determined that appellant's claims were "not complicated" and it was "simply too late for more discovery." But the court agreed to honor discovery agreements between counsel as set forth on the record. Apparently, appellant did not follow up on obtaining answers to the interrogatories from the city prosecutor.
In May 2004, appellant sought to amend her complaint to request declaratory relief, alleging that the definition of harassment in Minn.Stat. § 609.748, subd. 1(a)(1) was facially unconstitutional. In separate orders, the district court granted summary judgment for respondent on all claims, granted appellant's motion to amend, and dismissed the claim that the statute was unconstitutional. On appeal, appellant challenges the denial of declaratory relief and the dismissal of her claims for malicious prosecution, abuse of process, and defamation.
I. Is Minnesota's harassment statute, Minn.Stat. § 609.748, subd. 1(a)(1) (2004), unconstitutionally overbroad or void for vagueness on its face?
II. Did the district court err in granting summary judgment against appellant's malicious-prosecution, abuse-of-process, and defamation claims?
III. Did the district court abuse its discretion in denying appellant's request to extend the discovery period or by ordering that appellant could not be present at respondent's...
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