IN COURT OF APPEALS
Debra Ali Dunham,
Karen P. Roer,
Filed January 10, 2006
Affirmed; motion denied
Hennepin County District Court
File No. 03-13936
Jill E. Clark,
Stephen O. Plunkett, Shanda K. Pearson, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondent)
Considered and decided by Chief Judge Toussaint, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
S Y L L A B U S
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.
O P I N I O N
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 en
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
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.
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 (
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.
May 2004, appellant sought to amend her complaint to request declaratory
relief, alleging that the definition of harassment in
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 deposition?
Appellant challenges the
constitutionality of Minn. Stat. § 609.748, subd. 1(a)(1) (2004) on its
face, contending that it is overbroad and void for vagueness. “Evaluating a statute’s constitutionality is
a question of law.”
Standing and Mootness
Respondent contends that
appellant does not have standing to challenge the harassment statute on
void-for-vagueness grounds, and that appellant’s
challenge is moot. We address the
issues of standing and mootness, respectively, before reaching the merits of a
constitutional claim. See, e.g., Kahn v.
Respondent challenges appellant’s standing to assert that the statute is void for vagueness. Because appellant couples her vagueness claim with an overbreadth challenge, we determine her standing in the context of both claims. See In re Welfare of S.L.J., 263 N.W.2d 412, 417 (Minn. 1978) (“Although the overbreadth and vagueness doctrines are conceptually distinct, in the First Amendment context they tend to overlap, since statutes are often overly broad because their language is vague as to what behavior is proscribed.”); see also State v. Castellano, 506 N.W.2d 641, 648-49 (Minn. App. 1993) (considering a facial vagueness claim along with a facial overbreadth claim).
A long-recognized exception
to the ordinary rules of standing applies to facial overbreadth challenges. State v. Mireles, 619 N.W.2d 558, 561
(Minn. App. 2000) (citing Broadrick v. Okla., 413
also argues that appellant’s challenge is moot because no restraining order is
currently in effect against appellant. “[M]ootness
can be described as the doctrine of standing set in a time frame: the requisite
personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).” Kahn, 701 N.W.2d at 821 (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
The “requisite personal interest,” which is asserted by appellant on behalf of herself as well as third-parties, has existed throughout the litigation. Thus, we retain jurisdiction over appellant’s constitutional claims.
Appellant contends that the harassment statute is unconstitutionally overbroad on its face. The crux of appellant’s claim is that the statute violates the right to free speech. The statute defines harassment to include
a single incident 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, regardless of the relationship between the actor and the intended target[.]
Minn. Stat. § 609.748, subd. 1(a)(1). A person who is subject to harassment
as defined in the statute may seek a restraining order from the district
If the petitioner
alleges “an immediate and present danger of harassment,” the district court may
issue an ex parte temporary restraining order, provided that it “finds
reasonable grounds to believe that the respondent has engaged in
Appellant does not challenge the constitutionality of the first prong of the definition of harassment, i.e., a single incident of physical or sexual assault. Instead, appellant’s challenge is directed at the second prong of the definition, i.e., “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. 1(a)(1).
Appellant claims that the
second prong of the definition of harassment is overbroad because it could
encompass words or actions protected by free speech under the
“A statute is overbroad on
its face if it prohibits constitutionally protected activity, in addition to
activity that may be prohibited without offending constitutional
rights.” Machholz, 574 N.W.2d at
419. “[B]ecause the overbreadth doctrine
has the potential to void an entire statute, it should be applied ‘only as a
last resort’ and only if the degree of overbreadth is substantial and the
statute is not subject to a limiting construction.”
that the language of the statute in question is not overbroad because it does
not implicate the First Amendment. Respondent
relies on cases involving time, place, and manner restrictions. See,
e.g., Castellano, 506 N.W.2d at
645 (upholding an ordinance prohibiting targeted residential picketing); Welsh v. Johnson, 508 N.W.2d 212,
216-17 (Minn. App. 1993) (upholding the application of section 609.748 against
person who en
But the state may regulate
certain categories of words or conduct without substantially infringing on
speech or expressive conduct protected by the First Amendment. In that regard, “fighting words” and “true
threats” are not within the area of constitutionally protected speech and may
be regulated. See R.A.V., 505
The state may also regulate conduct
that is invasive of the privacy of another.
Gormley v. Dir., Conn. State Dept. of Prob., 632 F.2d 938,
942 (2d Cir. 1980) (upholding statute prohibiting telephone harassment as not
unconstitutionally overbroad because such harassment involves conduct and
intrudes on the privacy of others),
cert. denied, 449 U.S. 1023, 101 S. Ct. 591 (1980). In Gormley,
the court upheld a statute similar to Minnesota’s harassment statute, which
provided that: “A person is guilty of harassment when . . . (3) with intent to
harass, annoy or alarm another person, he makes a telephone call, whether or
not a conversation ensues, in a manner likely to cause annoyance or
To run afoul of the statute, a telephone call must be made not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm. Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues.
Here, the focus of the statute
is to prohibit repeated and unwanted acts, words, or gestures that have or are
intended to have a substantial adverse effect on the safety, security, or
privacy of another. See Minn. Stat. § 609.748, subd. 1(a)(1). Thus, the language of the statute is directed
against constitutionally unprotected “fighting words” likely to cause the
average addressee to fight or protect one’s own safety, security, or privacy; “true
threats” evidencing an intent to commit an act of unlawful violence against
one’s safety, security or privacy; and speech or conduct that is intended to
have a substantial adverse effect, i.e., is in violation of one’s right to
privacy. See Black, 53
Appellant further argues
that the statute is overbroad because it focuses on the subjective response of
another person, or “target” of the speech or conduct. Appellant relies on Minnesota Supreme Court’s
decision in Machholz, but that caseis distinguishable. In Machholz,
the supreme court held that a different harassment statute, defining criminal-felony
harassment, was unconstitutional because it was facially overbroad. 574 N.W.2d at 421. That statute defined “harass” as “intentional
conduct in a manner that: (1) would cause a reasonable person under the
circumstances to feel oppressed, persecuted, or intimidated; and (2) causes
this reaction on the part of the victim.”
The harassment statute challenged
in this case does not depend entirely on whether the “target” suffers adverse
effects. It requires both (1) repeated intrusive or unwanted acts,
words, or gestures and (2) a substantial
adverse effect or an intent to adversely effect the safety, security, or
privacy of another.
Further, there is
no showing that the overbreadth can be characterized as “substantial.” See
Machholz, 574 N.W.2d at 419 (observing that a statute to be overturned as
overbroad only if the overbreadth is substantial). For example, even if we were to accept
appellant’s characterization that calling another a “slut” is an expressive
opinion protected by the First Amendment, only such expression specifically
intended to cause or actually causing a “substantial adverse effect” on
another’s safety, security, or privacy would satisfy the statutory definition. “[W]hen speech and nonspeech elements are
combined in the same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental limitations
on First Amendment
do not suggest that [the harassment statute] mandates “
Kush v. Mathison, 683 N.W.2d 841, 845–46 (Minn. App. 2004) (holding that the district court did not abuse its discretion by issuing a restraining order under section 609.748 but not ruling on the constitutionality of the statute) (citations omitted). We conclude that the incidental impact on protected speech, if any, does not render the statute substantially overbroad.
Appellant contends that the
harassment statute is unconstitutionally vague on its face, and therefore, violates
the right to due process. Both the
Appellant contends that the harassment statute is “quasi-criminal” in nature and therefore is subject to the heightened definiteness requirement of due process. The district court concluded that the harassment statute creates a “quasi-criminal” offense because an individual may be prosecuted for violating a restraining order. We agree.
“Quasi-criminal” statutes are “[l]aws that provide for punishment but are civil rather than criminal in form[.]” Savina Home Indus., Inc. v. Sec’y of Labor, 594 F.2d 1358, 1362 n.6 (10th Cir. 1979). For purposes of a vagueness analysis, “quasi-criminal” statutes are tantamount to criminal ones. See Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 422 (5th Cir. 2001) (applying the criminal vagueness analysis to a “quasi-criminal” statute). Here, although the harassment proceeding is civil in nature, criminal sanctions may result if the court order is violated. Minn. Stat. § 609.748, subd. 2, subd. 6(b)–(d) (providing misdemeanor, gross misdemeanor, or felony penalties for violations of restraining orders). Therefore, we conclude that the harassment statute is “quasi-criminal” and is subject to the heightened definiteness requirement.
doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Newstrom, 371
N.W.2d at 528 (quoting Kolender, 461
Here, appellant must demonstrate that the law is vague in all its applications because the statute proscribes only words and conduct unprotected by the First Amendment. But appellant fails to demonstrate that an ordinary person of reasonable understanding would be unable to determine, with reasonable certainty, what repeated incidents likely to have a substantial adverse effect on the safety, security, or privacy of another are subject to the statute. No reasonable person could inadvertently violate the statute because of an inability to determine what type of conduct is prohibited. A reasonable person would know, for example, that repeated confrontations and incessant, unwanted phone calls over the course of several months could constitute harassment within the meaning of the statute. Therefore, the district court did not err in concluding that the statute is not unconstitutionally vague.
Appellant contends that the
district court erred in granting summary judgment against her malicious
prosecution, abuse of process, and defamation claims. On
appeal from summary judgment, this court makes two determinations: (1) whether
there are any genuine issues of material fact; and (2) whether the district
court erred in its application of the law.
State by Cooper by French, 460
N.W.2d 2, 4 (
“On appeal, the reviewing
court must view the evidence in the light most favorable to the party against
whom judgment was granted.” Fabio, 504 N.W.2d at 761. “The party
opposing summary judgment may not establish genuine issues of material fact by
relying upon unverified and conclusory allegations, or postulated evidence that
might be developed at trial, or metaphysical doubt about the facts.” Dyrdal
v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (
Appellant contends that the district court erred by granting summary judgment on her malicious prosecution claim. To state a claim for malicious prosecution, appellant must demonstrate that:
(1) the action was brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of [appellant].
Kellar v. VonHoltum, 568 N.W.2d 186,
192 (Minn. App. 1997), review
denied (Minn. Oct. 31, 1997). “Probable
cause for pursuing a civil action consists of such facts and circumstances as
will warrant a cautious, reasonable and prudent person in the honest belief
that his action and the means taken in prosecution of it are just, legal and
proper.” First Nat’l Bank of
Appellant argues that three series of incidents, taken together, demonstrate genuine issues of material fact exist which render summary judgment inappropriate for her malicious prosecution claim. We address each series in turn.
A. Initial Restraining Orders
First, appellant argues that respondent’s filing of a petition and affidavit for the ex parte restraining order and restraining order that were in effect from June 2001 until August 2003 constituted malicious prosecution. But appellant does not assert any genuine issues of material fact. In short, the August 2001 restraining order issued to respondent, without other compelling evidence, effectively precludes appellant from pursuing this claim. Because the district court found that appellant’s behavior constituted harassment and it granted the initial restraining order, appellant cannot demonstrate that the petition for the restraining order was brought without probable cause. And because appellant did not appeal that order, she cannot now collaterally attack it.
Appellant also presents no
admissible evidence that respondent had malicious intent in seeking the August
2001 order. Appellant’s mere belief that
the restraining order was sought with malicious intent is insufficient to
establish the existence of a genuine issue of material fact. See
B. Prosecution for Violation of the Restraining Order
Second, appellant argues that the June 2002 incident at the WCC in which appellant was arrested for violating the August 2001 restraining order, along with respondent’s other allegations that appellant violated the restraining order and appellant’s subsequent arrest and prosecution, constituted malicious prosecution.
Appellant claims that witnesses offered different testimony at trial in October 2002 than in the June 2002 police report, and, therefore, this prosecution was brought without probable cause. But appellant failed to establish that testimony incorporated into the police report did not support the prosecution. In 2002, the district court determined that there was probable cause to make the arrest based on respondent’s statement that appellant had violated the restraining order, and the police report indicates that another witness corroborated the statement.
Appellant nonetheless argues
that respondent improperly persuaded the city prosecutor to file criminal
charges against her, and force the case to trial with resulted in her
acquittal. But appellant fails to
establish that respondent brought the action, i.e., the criminal complaint,
without probable cause. In fact, the
action was initiated by the city prosecutor on the basis of an independent
exercise of prosecutorial discretion. See Bordenkircher v. Hayes, 434
Appellant also fails to show
the second element of malicious prosecution, i.e., that respondent acted with malicious
intent in reporting appellant’s violations of the restraining order. See
Kellar, 568 N.W.2d at 192. Appellant
speculates that respondent had malicious intent in seeking to bring the charge
against her but does not support that speculation with admissible evidence. See
While appellant is able to satisfy the third criterion, i.e., the criminal charge resolved in her favor, she failed to establish the first two criteria. Here, we have a criminal complaint that was pursued by the city prosecutor, not respondent. And the district court concluded that probable cause existed for the arrest and to proceed with a trial. Given these undisputed facts, summary judgment was appropriate.
C. Petition for Extension of the Restraining Order
Third, appellant argues that
respondent’s petition for an extension of the restraining order in 2003 constituted
malicious prosecution. But appellant again
fails to meet the first two elements for malicious prosecution, i.e., lack of probable
cause for the relief sought and that respondent acted with malicious intent. Here, in extending the restraining order, the
district court specifically found that respondent’s claims were credible and
appellant’s testimony was not credible, and that appellant had violated the
original restraining order on multiple occasions. And this court’s opinion that the facts found
by the district court were ultimately insufficient to support a second restraining order does not establish that respondent
lacked probable cause to seek additional relief. See Roer v. Dunham, 682 N.W.2d 179,
Appellant offered no substantial
evidence that respondent acted with malice in seeking additional relief in 2003. See
Abuse of Process
also contends that the district court erred by granting summary judgment on her
abuse-of-process claim. “The essential elements for a cause of action for abuse
of process are the existence of an ulterior purpose and the act of using the
process to accomplish a result not within the scope of the proceedings in which
it was issued, whether such result might otherwise be lawfully obtained or
not.” Kellar, 568 N.W.2d at 192.
“[T]he test is whether the process was used to accomplish an unlawful
end for which it was not designed or intended, or to compel a party to do a
collateral act which he is not legally required to do.” Kittler
& Hedelson v. Sheehan Props., Inc., 295
Appellant argues that respondent’s applications to the courts and police for establishment and enforcement of the restraining orders were purely retaliatory. But appellant failed to produce admissible evidence in the district court sufficient to establish the existence of genuine issues of material fact. Nothing in the record suggests that respondent used the harassment process to accomplish any result other than limiting appellant’s unwanted contacts and harassment described in the petition. The bare allegation that respondent had some greater scheme is insufficient to establish a genuine issue of material fact concerning an unlawful end. Therefore, the district court did not err in granting summary judgment against appellant on the abuse-of-process claim.
argues that the district court erred in granting summary judgment on her
defamation claim. To establish a claim
for defamation, the claimant must offer proof of (1) a false statement; (2)
communication to a third party; and (3) resulting harm to the claimant's
reputation in the community. Weinberger v.
Appellant argues that summary judgment was inappropriate because there is evidence that respondent made false statements that appellant “committed criminal acts.”
Appellant claims that she provided evidence of
“defamation by implication,” i.e., that respondent led many at the WCC to believe
that appellant was “violent” or that they should fear for their safety. But the May 22, 2002 letter from respondent to
the WCC does not assert that appellant was en
Appellant claims that other portions of the record, such as respondent’s and appellant’s depositions, support her claim for defamation. We have carefully reviewed these portions of the record cited by appellant, and they do not support her claim. For example, appellant stated in her deposition that respondent denied the affair in a conversation with a friend, and the friend inferred that respondent was calling appellant a liar. But appellant admitted that her friend did not state that the word “liar” was used in the conversation. In short, appellant failed to provide admissible evidence in support of her claim for defamation. Therefore, the district court did not err in granting summary judgment against appellant.
Appellant challenges two
discovery rulings by the district court.
The district court has broad discretion in granting or denying discovery
requests. Erickson v. MacArthur, 414 N.W.2d 406, 407 (
Appellant argues that the
district court improperly denied her motion to extend the discovery period in
order to take the deposition of the city prosecutor. There is a “presumption in favor of granting
continuances to allow sufficient time for discovery.” Rice v.
Perl, 320 N.W.2d 407, 412 (
Here, appellant failed to establish diligence in obtaining or seeking discovery. The district court determined that (a) appellant’s motion to extend the discovery deadline was untimely (because it was brought just two days before the discovery deadline); and (b) appellant had ten months to complete discovery on claims that were not overly complicated. Appellant does not dispute these specific findings. When the city attorney and appellant agreed that the deposition would be taken by written interrogatories, it was incumbent on appellant to obtain timely responses or bring a motion to compel. But appellant failed to diligently follow up with either the city attorney or the district court. On this record, appellant failed to establish good cause, and the district court did not abuse its discretion in denying the motion to extend the discovery period.
Second, appellant challenges the protective order that required her to monitor respondent’s deposition in another room. Minn. R. Civ. P. 26.03(e) provides that for good cause, the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . that discovery be conducted with no one present except persons designated by the court[.]” Given the history between the parties, the acrimonious nature of the litigation, and the existence of a restraining order in effect at the time of the deposition that precluded contact between the parties, the district court did not abuse its discretion in fashioning the protective order to allow appellant to monitor the deposition without having direct contact with respondent.
respondent moves to strike 16 statements from the fact section of appellant’s
brief. An appellate court may not base
its decision on matters outside the record on appeal and may not consider
matters not produced and considered by the district court. Theile v. Stich, 425 N.W.2d 580, 582 (
D E C I S I O N
The definition of harassing conduct in Minn. Stat. § 609.748, subd. 1(a)(1) (2004) is neither facially overbroad nor void for vagueness. Appellant failed to present evidence sufficient to establish genuine issues of material fact to support her claims for malicious prosecution, abuse of process, and defamation. The district court did not abuse its discretion in denying appellant’s discovery requests. Accordingly, we affirm the district court’s grant of summary judgment to respondent and denial of declaratory judgment.
Affirmed; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
The statute, which remains unchanged, requires a “single incident 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.”
 “‘Facial’ overbreadth challenges should be distinguished from ‘as applied’ challenges, the latter involving a judgment as to the constitutionality of a statute based on the harm to the litigating party.” Mireles, 619 N.W.2d at 561 n.1 (citing Turchick v. U.S., 561 F.2d 719, 721 n.3 (8th Cir. 1977)). Appellant does not challenge section 609.748 as applied to her.
This interpretation is consistent with the accepted principle of constitutional interpretation that courts should, when feasible, construe the regulatory effect of statutes challenged under the First Amendment to punish only “fighting words.” See S.L.J., 263 N.W.2d at 419 n.5 (observing that the United States Supreme Court has encouraged state courts “to sustain the constitutionality of their offensive-speech statutes by construing them narrowly to punish only fighting words”).
 Appellant cites Dunnell’s Minnesota Digest
to define “malice,” but fails to meet the definition she cites. 31 Dunnell’s Minn.
Digest Malicious Prosecution § 2.03 (4th
ed. 1996). Appellant makes no showing
that the respondent “instituted a groundless prosecution knowingly and
The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect—the improper use of a regularly issued process.
Black’s Law Dictionary 977–78 (8th ed. 2004) (quoting 52 Am. Jur. 2d Malicious Prosecution § 2, at 187 (1970)).