Polinsky v. Bolton
| Decision Date | 22 May 2017 |
| Docket Number | A16-1544 |
| Parties | Paula Polinsky, petitioner, Respondent, v. Charles M. Bolton, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
Affirmed
Hennepin County District Court
William R. Skolnick, Andrew H. Bardwell, Skolnick & Joyce, P.A., Minneapolis, Minnesota (for respondent)
Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Connolly, Judge; and Smith, Tracy M., Judge.
UNPUBLISHED OPINION
On appeal from the district court's grant of a harassment restraining order (HRO) in favor of respondent Paula Polinsky, appellant Charles Bolton argues that (1) the record is insufficient to support the grant of the HRO, (2) the HRO's prospective limits and requirements for his online activity act as a prior restraint on his First Amendment freedom of speech, (3) the HRO is unconstitutionally vague and overbroad, and (4) the HRO is excessive in length. We affirm.
Polinsky and Bolton first met in 2006 and began a romantic relationship, which lasted until 2009. The parties had a volatile relationship, with each claiming verbal and physical abuse by the other party. Police reports were made in California and Minnesota, and both parties were prosecuted based on various incidents at different times.
Polinsky broke off the relationship in 2009, and Bolton became upset and angry, sending her profane emails after the breakup. She obtained a two-year HRO against him. Bolton was convicted of violating that order after a 2011 incident in which he approached Polinsky in his vehicle when she was exiting her workplace parking lot. On appeal, this court upheld that conviction. See State v. Bolton, No. A11-2262, 2012 WL 4052539 (Minn. App. Sept. 17, 2012), review denied (Minn. Nov. 27, 2012).
In 2012, after the 2009 HRO had expired, the district court granted a second HRO, which was based on Bolton's conviction for violating the first HRO. In its order on the second HRO, however, the district court concluded that Bolton's act of "following" Polinsky on Twitter did not amount to contact with her within the parameters of the previous HRO.
The second HRO expired in April 2014. In September 2015, Polinsky filed a petition for a third HRO against Bolton. At a district court hearing, Polinsky produced evidence that Bolton authored a blog website, which contained allegations of perjuryagainst her and misconduct by the prosecutor and the judge in the proceedings on the second HRO. The blog, which identified Polinsky by her former name, purported to describe her past in unflattering terms, called her a "law-breaking, vindictive ex-girlfriend," and contained a copy of her criminal record. It did not reference Bolton by name, instead referring to him as "our victim."
Polinsky also produced evidence that, using the blog's Twitter account, Bolton had sent her a Twitter "@mention" a total of eight times. An expert witness testified that the "@mentions" would result in notifications on her phone and that the primary purpose of sending an "@mention" on Twitter "is to get somebody's attention . . . to send them a notification and let them know about [a] tweet." At some point, Polinsky blocked Bolton from her Twitter account.
Bolton testified that he had tweeted about Polinsky to get public support for a lawsuit he had filed against the city attorney and the state seeking to vacate his conviction of violating the second HRO. He testified that, in tweeting links from his blog referring to Polinsky, he was relying on the district court's 2012 order, which determined that his act of "following" Polinsky on Twitter was not contact that formed the basis for the HRO.
When Polinsky and her fiancé were staying at a hotel for their destination wedding in 2015, a package was delivered to their hotel room. The package, which was delivered a few days before the wedding, contained photocopies of the blog and a copy of a 2008 police report referring to charges of fifth-degree domestic assault against Polinsky. The copy contained Polinsky's name, but had Bolton's name redacted. Polinsky became very upset when the package was received.
Bolton denied that he had sent the package. He noted that the address on the package misspelled the name of the hotel, consistent with Polinsky's previous misspelling of that name when he had been there previously with her. He testified that he initiated an inquiry with the post office to determine the origin of the package, which was not successful, and that he believed that Polinsky had sent the package to herself.
The district court issued an HRO for a period of 20 years, concluding that Polinsky had proved by a preponderance of the evidence that Bolton had engaged in acts of harassment within the meaning of Minnesota Statutes section 609.748 (2014).1 The district court found that the contents of the blog, by itself, amounted to protected expression under the First Amendment, but that the contents of the blog also shed light on Bolton's other actions, some of which were acts of harassment. Specifically, the district court found that Bolton's "@mentions" of Polinsky on Twitter, as well as his sending the package to the hotel, constituted harassing acts. In so doing, the district court found that Bolton's denial that he had sent the package was not credible. Therefore, the district court found that Bolton had committed repeated acts of harassment, which had a distinct, adverse, and substantial effect on Polinsky's security and sense of privacy.
In its order, the district court also defined Bolton's prospective conduct that would be deemed a violation of the HRO. The district court stated:
Writings or other communications by [Bolton] which are made available for public hearing or viewing and which contain addresses, telephone numbers, photographs or any other formof information by which a reader may contact, identify or locate [Polinsky] are acts of harassment and are prohibited by this order. Any communications made by [Bolton] under an identity or auspices other than his true name and which refer to [Polinsky] are acts of harassment and are prohibited regardless of the truth or falsity of any statement made about [Polinsky].
On appeal, Bolton challenges the sufficiency of the evidence to support the HRO, as well as the district court's future prohibition on his communicating public information about Polinsky and mentioning her anonymously.
Bolton raises several challenges to the district court's HRO. First, he argues that the district court abused its discretion by issuing an HRO because his conduct did not meet the statutory definition of harassment. Second, he raises several challenges to the district court's imposition of the HRO going forward. He argues that the HRO as applied to his prospective blog postings or other communications amounts to a prior restraint on his First Amendment rights and is vague and overbroad. Finally, he argues that the district court abused its discretion by ordering a 20-year HRO. We consider these arguments in turn.
The district court may issue an HRO if it finds that there are reasonable grounds to believe that a person has engaged in harassment. Minn. Stat. § 609.748, subd. 5(b)(3). Harassment is defined as either a single act of physical or sexual assault or "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another." Id., subd. 1(a)(1). In order to prove that harassment occurred, the statuterequires both (1) objectively unreasonable intent or conduct on the part of the harasser and (2) an objectively reasonable belief on the part of the person subject to harassment. Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).
This court reviews the district court's grant of an HRO for an abuse of discretion. Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). A district court abuses its discretion if it makes findings that are unsupported by the evidence or improperly applies the law. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009). We review the district court's findings for clear error and defer to its findings regarding witness credibility, Kush, 683 N.W.2d at 843-44, but we review de novo its legal conclusion that the facts found satisfy the elements of harassment. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008).2
The district court found that Bolton had committed repeated acts of harassment, based on his sending the package to Polinsky at the hotel and on his "@mentions" of her on Twitter. Bolton contends that the HRO is not supported by sufficient evidence because the district court's finding that he sent the package is clearly erroneous and because his"@mentions" on Twitter do not constitute contact for purposes of the harassment statute. We examine each argument in turn.
Bolton first argues that Polinsky failed to establish by a preponderance of the evidence that he sent the package to the hotel. He argues that the mere fact that the materials in the package were printed from his public website and that the package was mailed from a post office that he had visited did not establish that he sent the package. He maintains that he introduced a substantial amount of evidence supporting his position, including that there was no evidence that he knew where the Polinskys were; that the address on the package contained misspellings previously used by Polinsky; and that he attempted to trace the package through the post office, suggesting that he was not the sender.
But the district court pointed to evidence in support of its finding that...
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