This opinion will be unpublished and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
Robert M. Schwartz,
Scott Meyer, et al.,
Filed March 20, 2001
Dakota County District Court
File No. C8-00-6450
Thomas B. Wieser, Meier, Kennedy & Quinn, Chartered, 2200 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Scott Meyer, Marie Meyer, 4044 Pennsylvania Avenue, St. Paul, MN 55123 (pro se)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.
Appellants challenge the harassment restraining order issued against them, alleging that: (a) the record does not support findings that they harassed respondent or engaged in targeted residential picketing against him; (b) the order violates their First Amendment rights; (c) the district court acted with impropriety; and (d) counsel for each party acted with impropriety. Respondent moves to strike those portions of appellants’ brief that are unsupported by the record and those portions of their appendix that are not part of the record. Because we see no abuse of discretion in issuing the order, we affirm; because the record on appeal is limited to material presented to the district court, we grant the motion to strike.
In 1999, respondent Father Robert Schwartz, pastor of St. John Neumann Catholic Church, sought and obtained no trespassing orders against appellants Scott and Marie Meyer and their daughters, parishioners of St. John Neumann. The no trespassing order on Marie Meyer was issued after she confronted respondent in a non-public area of the church and refused to leave until the police became involved; the no trespassing orders on Scott Meyer and the Meyers’ minor children were issued after the children made derogatory comments about respondent in religious education classes at St. John Neumann.
When appellants were no longer allowed on St. John Neumann church property, they parked and picketed near the church and Schwartz’s residence every day for three months, choosing times of church services and parish events. A parishioner testified that Marie Schwartz said it was her “mission in life to educate and make everyone know what kind of person [respondent] is.” The picketing stopped when respondent was granted a temporary restraining order against appellants. That order was replaced with a permanent restraining order following the hearing.
Appellants challenge the order, arguing that the district court lacked reasonable grounds to believe that appellants either harassed respondent or engaged in targeted residential picketing against him and that the order violates their First Amendment rights. Appellants allege further that the district court, respondent’s counsel and appellants’ former counsel acted with impropriety. Respondent moves to strike portions of appellants’ brief and appendix that contain materials not part of the record.
D E C I S I O N
1. The Harassment Restraining Order
A district court’s issuance of a harassment restraining order is reviewed under an abuse of discretion standard. Witchell v. Witchell, 606 N.W. 2d 730, 731 (Minn. App. 2000). A district court may issue a harassment restraining order if it finds at a hearing that there are reasonable grounds to believe that the party to be restrained has engaged in harassment. Minn. Stat. § 609.748, subd. 5(a)(3) (1998), quoted in Witchell, 606 N.W. 2d at 732. Harassment includes
“(1) repeated, intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; * * *.”
Minn. Stat. § 609.748, subd. 1(a) (1998). The district court found that appellants had engaged in both elements; appellants contend that the district court lacked reasonable grounds to find they engaged in either.
A. Acts, Words or Gestures
The district court found that: (1) Marie Meyer had disrupted a special service for grieving parents by yelling at and threatening respondent after he had asked her to refrain from conduct that disturbed others; (2) Marie Meyer had confronted respondent in another area of the church and refused to leave until the police were summoned; and (3) J.M., one of appellants’ daughters, had walked up to respondent at a parish social gathering, placed her finger near his face, and screamed at him. There is testimony in the record from respondent and other parishioners that supports each of these findings. The district court’s conclusion that these findings constitute reasonable grounds for its belief that appellants had engaged in harassment was not an abuse of discretion.
B. Targeted Residential Picketing
When committed on one or more than one occasion, targeted residential picketing is
marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security or privacy of an occupant of the building.
Minn. Stat. § 609.748, subd. 1(c)(1) (2000). The district court found that between November 1999 and February 2000,
[appellants] on a daily basis have parked their automobile * * * adjacent to the private driveway of [respondent’s] private residence. * * * [Appellants] have engaged in picketing directed at [respondent] * * * not only every day, but also several times a day, such as during all five [weekend] masses, during funerals and weddings, during any event taking place at the church, in the morning and afternoon when education classes let out, and in the evening when religious education programs were being held. This daily conduct has resulted in [respondent] believing that somebody will eventually be physically injured if it is not stopped.
[There has been testimony that Marie Meyer explained the picketing by saying] “it is her mission in life to let people know what kind of person [respondent] is.”
Appellants’ own testimony supports this finding and provided the district court with reasonable grounds to believe that appellants engaged in targeted residential picketing of respondent.
2. First Amendment Rights
Whether the enforcement of a harassment statute amounts to a deprivation of First Amendment rights is reviewed de novo. See, e.g., Welsh v. Johnson, 508 N.W. 2d 212, 214-15 (Minn. App. 1993) (reviewing issue de novo). Three criteria indicate whether a restriction on speech is lawful: (1) the restriction must be justified without reference to the content of the speech; (2) the restriction must be narrowly tailored to serve a significant government interest; and (3) the restriction must leave open ample alternative channels for communication. Id. at 215.
The first criterion is obviously satisfied: the restriction is unrelated to the content of appellants’ signs and does not refer to their comments about respondent.
As to the second criterion, the government has a significant interest in protecting the well-being, tranquility and privacy of citizens’ homes. Id. (citing Frisby v. Schultz, 487 U.S. 474, 482, 108 S. Ct. 2495, 2501 (1988)). Moreover, “when otherwise permissible acts are done with the intent to harass, whether at a home or not, the governmental interests in the protection of its citizens are triggered.” Welsh, 508 N.W.2d at 215. The order here, prohibiting the Meyers from coming within 50 feet of respondent’s residence and of his workplace is narrowly tailored to reflect a significant government interest.
As to the third criterion, appellants are free to picket in other areas and other channels of communication are available for them to use. See id.
The order does not violate appellants’ constitutional rights.
3. Acts of District Court
Appellants argue that the district court erred by signing an order submitted ex parte by respondent’s counsel. The district court, however, required appellants’ counsel to ask appellants, on the record, if they understood the terms of the ex parte order, and both said they understood it, had read it, and had no questions about it. Neither made any objection to it. Appellants’ objection is made for the first time on appeal and is therefore not properly before this court. See Thiele v. Stich, 425 N.W. 2d 580, 582 (Minn. 1988) (this court may consider only what was presented to and considered by the district court).
4. Acts of Former Counsel
Appellants claim that their former counsel was forced by the district court to continue representing them despite the fact that he had a conflict of interest, in that his brother-in-law was “participating in the representation of” respondent. Nothing in the transcript indicates that appellants’ counsel made any attempt to withdraw from representation or that appellants requested time to secure other counsel. Appellants also contend that their former counsel acted improperly in not calling a witness whom they wanted to testify. However, the record has no evidence of this alleged impropriety, and selecting witnesses is within the discretion of counsel. State v. Voorhees, 596 N.W. 2d 241, 255 (Minn. 1999).
5. Respondent’s Motion to Strike
The appellate record consists of the papers filed in the trial court, the exhibits, and the transcripts. Minn. R. Civ. App. P. 110.01. Appellants do not dispute respondent’s assertions that portions of the material in their brief, particularly in the fact section, are without support in the record and that several items included in their appendix were never filed in the district court. This court cannot consider factual allegations that are outside of the record. Krueger v. Washington Fed. Sav. Bank, 406 N.W. 2d 543, 545 (Minn. App. 1987). Further, exhibits that were not received by the trial court cannot be included in the appellate appendix. Kise v. Product Design and Eng’g, Inc., 453 N.W. 2d 561, 566 (Minn. App. 1990). Respondent’s motion to strike is granted.
Affirmed; motion granted.