This opinion will be unpublished
and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
C4-02-267
Royal Oaks Holding Company, et al.,
Respondents,
vs.
John F. Ready, et al.,
Appellants.
Filed October 7, 2002
Affirmed in part, vacated in part, and remanded
Willis, Judge
Dakota County District Court
File No. C5026121
Ernest F. Peake, Justin P. Weinberg, Leonard, O’Brien, Wilford, Spencer &
Gale, Ltd., 100 South Fifth Street, Suite 1200, Minneapolis, MN 55402-1216
(for respondents)
Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South,
Suite 100, Minneapolis, MN 55506 (for appellants)
Considered
and decided by Willis, Presiding Judge, Stoneburner, Judge, and Minge, Judge.*
U N P U B L I S H E D O P I N I O N
WILLIS, Judge
Appellants challenge the district court’s order granting a temporary injunction
against them, arguing that the First Amendment protects their “protest activities”
and that the district court’s order covers speech not yet uttered and therefore
constitutes an unconstitutional prior restraint on free speech. They also
argue that the district court abused its discretion by granting respondents injunctive
relief because analysis of the Dahlberg factors favors them and because respondents
have an adequate remedy at law. We affirm in part, vacate in part, and remand.
FACTS
Respondent
Royal Oaks Holding Company owned real property called Broadmoor, located within
the city of Inver Grove Heights (city). Broadmoor is a 65-lot, residential
real-estate development. In September 2001, Royal Oaks sold all of the lots
in Broadmoor to respondent Kootenia Homes, Inc.
Appellants John F. Ready, Timothy M. Cooney, and Mark Woolston own several noncontiguous,
landlocked parcels of real property southeast of Broadmoor. For several
years, Ready, Cooney, and Woolston, who call themselves the Pinkville 3, have
been engaged in an on-going dispute with the city, and now Royal Oaks and Kootenia,
regarding access to their property through Broadmoor. The Pinkville 3 admit
that, in connection with that dispute, they have used their land for public protests,
including:
a. Painting several trees bright pink and orange.
b. Placing a sign on the edge of the[ir] property, declaring the property to [be]
the “future boundary of the City of Pinkville,” and further declaring,
“Trespassers will be killed and eaten, sorry no exceptions.”
c. Posting various other signs, including signs suggesting [that] “[Inver
Grove Heights] is bogus.”
In January 2002, Royal Oaks and Kootenia sued the Pinkville 3 for harassment,
nuisance, trespass to realty, tortious interference with prospective business
relations, and defamation. By affidavit, Royal Oaks and Kootenia alleged
that the Pinkville 3 also mailed “obscene and threatening letters” to
them; trespassed on Broadmoor; painted trees on or near Broadmoor; erected “obscene
* * * pictures on the border of Broadmoor”; patrolled the streets in Broadmoor,
stopping the vehicles of third-party invitees and threatening their safety, security,
and privacy; and erected a sign on the Pinkville 3’s property that refers
to Royal Oaks as “Taliban Wannabees.”
Royal Oaks and Kootenia moved for a temporary injunction against the Pinkville
3 on the grounds of harassment, trespass, tortious interference with prospective
business relations, and nuisance. The Pinkville 3 argued that the First
Amendment protects their “protest activities.” In February 2002,
the district court granted respondents’ motion, and this appeal follows.
D E C I S I O N
Generally, “[t]his court will not reverse a district court’s decision
to grant a temporary injunction absent a clear abuse of discretion.”
Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 451 (Minn. App. 2001)
(citations omitted). But whether an injunction violates the federal constitution
is a legal issue, which this court reviews de novo. See State v. Wicklund,
589 N.W.2d 793, 797 (Minn. 1999). This court will not set aside a district
court’s factual findings regarding whether to grant injunctive relief unless
they are clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn.
1979).
The temporary injunction at issue here provides that the Pinkville 3 “shall
have no contact with” Royal Oaks and Kootenia, their employees and representatives,
and their business invitees. The order, in part, enjoins the Pinkville 3
from
[t]respassing or entering onto the property known as Broadmoor or within an area
of 200 feet from the entrances to the property and development known as Broadmoor
* * *.
The order also enjoins the Pinkville 3 from [e]recting or displaying offensive,
obscene, threatening, or defaming material directed towards [respondents, their]
representatives, or invitees to Broadmoor lots[;] and [d]istributing, publishing[,]
or mailing offensive, obscene, threatening, or defaming material, or material
[the Pinkville 3] know to be false, to [respondents, their] representatives or
prospective purchasers of Broadmoor lots.
The district court further ordered the Pinkville 3 to remove all signs
“directed towards Broadmoor” by 5 p.m. on February 8, 2002.
I.
A. First Amendment
The Pinkville 3 contend that even if respondents’ claims are meritorious,
the First Amendment and the presence of a clearly adequate remedy at law would
act as an absolute bar for the injunctive relief [that] the district court granted.
The Pinkville 3 argue that respondents’ claim of harassment under Minn. Stat.
§ 609.748 (2000), as well as their common-law-tort claims, “cannot be
enforced to the extent that [those claims] impinge[] upon constitutionally protected
speech.” They contend that the First Amendment protects their “protest
activities,” that they are entitled to post signs on their private property,
and that the district court made no findings that any of the statements that they
made, either on posted signs or in mailings, fell outside the scope of the First
Amendment’s protections.
The district court ordered the Pinkville 3 to remove all signs “directed
towards Broadmoor” by 5 p.m. on February 8, 2002. But the district
court made no legal determination that the signs that were posted on the Pinkville
3’s property were obscene or defamatory and thus outside the scope of First
Amendment protection. For that reason, we must vacate that portion of the
district court’s order.
With regard to the no-contact provision of the district court’s order, we
note that First Amendment rights are not without limits; free speech is subject
to “reasonable time, place, and manner restrictions.” Welsh v.
Johnson, 508 N.W.2d 212, 215 (Minn. App. 1993) (citing Heffron v. Int’l Soc’y
for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 2564 (1981)).
A time, place, and manner restriction is not unconstitutional if it is content-neutral,
narrowly tailored to serve a significant government interest, and leaves open
alternative means of communicating information. Id. (citation omitted).
A time, place, and manner restriction is content-neutral as “long as the
order serves purposes unrelated to the content of the expression and is justified
without reference to the content * * * .” Id. Here, the district
court’s order, in part, enjoins the Pinkville 3 from all contact with Royal
Oaks and Kootenia, their employees and representatives, and their business invitees.
The order’s no-contact provision prohibits the Pinkville 3 from contact with
respondents without regard to whether the contact relates to their “protest
activities”; it is therefore content-neutral.
The district court narrowly tailored the no-contact provision to serve a significant
government interest. “There is no constitutional privilege to assault
or harass an individual or to invade another’s personal space.”
Id. (quoting N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1343
(2nd Cir. 1989)). When a party acts with an intent to harass or to interfere
with property rights, those acts, even if otherwise permissible, trigger governmental
interests in the protection of its citizens. See id.
The district court’s no-contact provision also leaves open alternative means
of communications for the Pinkville 3. In its order, the district court
found that the Pinkville 3 had taken “no formal action to acquire access
to their property through administrative or legal channels”; the Pinkville
3 do not contend otherwise. As the district court noted:
[The Pinkville 3] have remedies available to them if they wish to continue their
protest against the [city]. They have the right to attend council meetings,
speak to the media about their political beliefs, or run in the next election
to unseat the Mayor and other elected officials * * * .
* * * *
The [Pinkville 3] have many avenues to protest actions of the city.
They can send letters of protest and they can carry their protest signs at city
hall.
As in Welsh, 508 N.W.2d at 215, the Pinkville 3 have not shown how the
terms of the no-contact provision of the injunction deny them a forum for their
speech. Therefore, the fact that this provision of the order prohibits contact
is not per se an impingement on the Pinkville 3’s constitutionally protected
speech.
But there is another
issue that we must address in connection with the no-contact provision.
It appears that the underlying basis for that portion of the order was a determination
by the district court that the Pinkville 3’s conduct constituted harassment
under Minn. Stat. § 609.748. That statute defines “harassment”
to include, inter alia, “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 * * *
.” Minn. Stat. § 609.748, subd. (a)(1) (2000).
Our review of the district court’s findings of fact, conclusions of law,
and order for judgment leads us to conclude that the findings are insufficient
to establish that the Pinkville 3’s conduct meets the statutory definition
of harassment. There are only the conclusory statements that the Pinkville
3’s “unwanted, obscene, and threatening correspondence is offensive
and frightening” and that “the First Amendment does not protect conduct
that has affected the security, safety, privacy, and peaceful use and enjoyment
of property by [Royal Oaks and Kootenia].” There are no findings of
what specific conduct had, or was intended to have, a substantial adverse effect
on whose safety and how, whose security and how, or whose privacy and how.
Further, that
portion of the no-contact provision that prohibits the Pinkville 3 from contact
with Royal Oaks’s and Kootenia’s business invitees is based solely on
a finding that the Pinkville 3 “approach[ed] invitees of [Royal Oaks and
Kootenia] who are potential purchasers.”
We conclude,
therefore, that the no-contact provision of the temporary injunction must be vacated.
But because the Pinkville 3’s attack on the no-contact provision, both before
the district court and on appeal, was almost completely on the ground of a claimed
violation of First Amendment rights, rather than on application of the harassment
statute, we conclude that the no-contact issue should be remanded to the district
court for further consideration of the application of the harassment statute to
the Pinkville 3’s conduct, including whether there has been harassment of
Royal Oaks’s and Kootenia’s business invitees. The district court
may make such findings in that regard as are supported by the evidence and may,
in its sole discretion, reopen the record.
B. Unlawful
prior restraint
In addition to the no-contact provision, the district court’s order enjoins
the Pinkville 3 from [e]recting or displaying offensive, obscene, threatening,
or defaming material directed towards [Royal Oaks and Kootenia, their] representatives,
or invitees to Broadmoor lots[;] and [d]istributing, publishing[,] or mailing
offensive, obscene, threatening, or defaming material, or material [the Pinkville
3] know to be false, to [Royal Oaks or Kootenia, their] representatives or prospective
purchasers of Broadmoor lots.
The Pinkville 3 contend that this future-conduct provision prohibits speech that
has not yet been legally determined to fall outside the protection of the First
Amendment and that it therefore constitutes an unlawful prior restraint on free
speech. We agree.
The United States Supreme Court has noted:
The special vice of a prior restraint is that communication will be suppressed,
either directly or by inducing excessive caution in the speaker, before an adequate
determination that it is unprotected by the First Amendment. Pittsburgh Press
Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390, 93 S. Ct.
2553, 2561 (1973). Therefore, a prior restraint bears “‘a heavy
presumption against its constitutional validity.’” Minneapolis
Star & Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. App. 1985) (quoting
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 639 (1963)).
To overcome that presumption, the prior restraint “must be necessitated by
a compelling state interest, and * * * narrowly tailored to serve that interest.”
Id. (quotation omitted).
Examples of compelling [state] interests include the prevention of the release
of the sailing times of troop ships during times of war and prevention of words
causing incitement to overthrow the government by violent means.
Id. (citation omitted). Because the future-conduct provision enjoins
the Pinkville 3 from displaying, erecting, distributing, publishing, or mailing
materials before those materials have been judicially determined to be outside
the scope of the First Amendment’s protection and because respondents have
not shown that a compelling state interest supports that portion of the order,
the future-conduct provision of the district court’s order constitutes an
unconstitutional prior restraint on free speech and must be vacated.
II.
We must now consider whether the district court abused its discretion by granting
an injunction.
A district court may grant a temporary injunction if a moving party demonstrates,
“by affidavit, deposition testimony, or oral testimony in court,” that
sufficient grounds exist to warrant granting the injunction. Minn. R. Civ.
P. 65.02(b). The moving party must demonstrate an inadequate remedy at law
and that an injunction is necessary to prevent irreparable harm. Medtronic,
630 N.W.2d at 451 (citation omitted).
A court considers five so-called Dahlberg factors when determining whether to
grant a temporary injunction:
(1) the nature of the relationship between the parties before the dispute;
(2) the likelihood that the moving party will prevail on the merits;
(3) the moving party’s harm if the injunction is denied compared to harm
to the nonmoving party if injunction is granted;
(4) public policy considerations triggered by the fact situation; and
(5) administrative burdens to supervise or enforce the injunction.
Eason v. Indep. Sch. Dist. No. 11, 598 N.W.2d 414, 417 (Minn. App. 1999) (citing
Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22
(1965)).
A. Nature of
the relationship
The district
court concluded:
The relationship of the parties exists only because of [the Pinkville 3’s]
actions and the proximity of their land to the * * * Broadmoor development.
The record supports that conclusion. This factor is neutral.
B. Likelihood
of prevailing on the merits
Respondents brought their motion for a temporary injunction against the Pinkville
3 on the grounds of harassment, a violation of Minn. Stat. § 609.748; trespass;
tortious interference with prospective business relations; and nuisance.
The injunction relating to harassment has been vacated and remanded. To
the extent that Royal Oaks and Kootenia’s claim of tortious interference
with prospective business relations is based on the contact by the Pinkville 3
with business invitees, it is subject to the same remand. We therefore decline
to apply the Dahlberg factors to those claims. Based on the current record
and our decision regarding the Pinkville 3’s activities on their own property,
we conclude that respondents are not likely to prevail on their nuisance claim.
That leaves the injunction prohibiting trespass by the Pinkville 3.
In its decision granting respondents’ motion for a temporary injunction,
the district court found that the Pinkville 3 “routinely trespassed”
on Broadmoor to gain access to their property. A person who enters land
without the owner’s consent commits trespass. Special Force Ministries
v. WCCO Television, 584 N.W.2d 789, 792 (Minn. App. 1998) (citation omitted),
review denied (Minn. Dec. 15, 1998).
The Pinkville 3 contend that Broadmoor “consist[s], in large part, of soon-to-be
public streets, directly connected to existing public streets, with no demarcation
as to where the public streets ended and Broadmoor property began.”
The final plat for Broadmoor was recorded in May 2002. The Pinkville 3 maintain
that filing a plat under Minn. Stat. § 505.01 (2000) conveys to the public
an interest in the roads on the plat. In re Maint. of Rd. Areas Shown on
Plat of Suburban Estates, 311 Minn. 446, 451, 250 N.W.2d 827, 831 (1977).
In fact, Minn. Stat. § 505.01 (2000) provides that the recording of
a plat that contains a donation to the public operates to convey title to all
land so donated to the same effect as though the land were conveyed by warranty
deed. We do not have before us a copy of the plat for Broadmoor, but Royal
Oaks and Kootenia represent that the final plat was recorded in March 2002.
To the extent that the plat designates portions of Broadmoor as public streets,
title to that part of Broadmoor has passed to the city. Royal Oaks and Kootenia
do not have standing to seek to enjoin the Pinkville 3 from “trespassing”
on public property. But the record does not show the state of development
of public streets in Broadmoor or whether the public land can be reached without
trespassing on property owned by respondents. And to the extent that the
public streets are open and accessible, the Pinkville 3’s conduct on those
streets is subject to the same laws as is the conduct of any person on a public
street.
The Pinkville 3 claim that because Royal Oaks and Kootenia planned to construct
residential homes for sale on Broadmoor, “Broadmoor developers plainly wanted
people to enter the property and look at potential home buying sites.”
To the extent that they mean to argue that they had implied consent to enter property
owned by Royal Oaks and Kootenia, rather than by the city, we disagree.
They do not argue here that they entered the property to look at potential home
sites. And regardless, one who has consent to enter another’s land
may become a trespasser by exceeding the scope of that consent. Special
Force Ministries, 584 N.W.2d at 792. By affidavit and oral testimony, Royal
Oaks and Kootenia maintain that the Pinkville 3 trespassed on Broadmoor after
being specifically asked not to trespass.
Because we are remanding other issues, we also remand the no-trespass provision
of the district court’s order for modification to prohibit the Pinkville
3 from trespassing only on property owned by Royal Oaks and Kootenia. And
we find no basis in the current record for that portion of the no-trespassing
provision that purports to enjoin the Pinkville 3 from being on areas within 200
feet from the entrances to Broadmoor, subject to determination of the remand of
the no-contact provision. With those modifications, the district court did
not err by concluding that respondents will likely prevail on the merits of their
trespass claim.
C. Comparative
harms
The supreme court has determined that a “[p]ermanent injunction is a proper
remedy to restrain a continuous and repeatedly threatened trespass.”
Theros v. Phillips, 256 N.W.2d 852, 859 (Minn. 1977) (citation omitted).
The district court did not err by concluding that the balance of harms favors
respondents.
D. Public policy
When a party acts with an intent to interfere with property rights, those acts
trigger governmental interests in the protection of its citizens. See Welsh,
508 N.W.2d at 215. The district court did not err by concluding that public
policy favored issuing the order to enjoin the Pinkville 3 from trespassing on
respondents’ property.
E. Administrative
burdens
The no-trespassing provision is no greater burden to administer than is any other
such order.
Because analysis of the Dahlberg factors favors Royal Oaks and Kootenia as to
the no-trespassing provision, at least to the extent that it prohibits trespass
on property owned by Royal Oaks and Kootenia, the district court did not abuse
its discretion by granting respondents injunctive relief. We therefore affirm
the no-trespassing provision of the district court’s order as it relates
to trespass on respondents’ property. But because the future-conduct
provision of the order constitutes an impermissible prior restraint on the Pinkville
3’s free speech, we vacate that provision. We remand the no-contact
provision for reconsideration as described herein.
Affirmed in part, vacated in part, and remanded.
------------------------------------------------------------------------
* The Honorable Daniel F. Foley, one of the founding members of this court, who
continued to serve by appointment order from the supreme court after his retirement,
fully participated in the consideration of this appeal. Due to Judge Foley’s
untimely death before the filing of the opinion, Judge Minge has been assigned
as a substitute, and now joins the panel in issuing this decision. 
