This opinion will be unpublished and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

C1-00-1839

 

John Charles Kreuz,

Appellant,

 

vs.

 

F. George Pernat,

Respondent.

 

Filed April 24, 2001

Affirmed
Amundson, Judge

 

St. Louis County District Court
File No. C8-301175

 

John Charles Kreuz, 7670 Pine Tree Road, Side Lake, MN 55781 (pro se appellant)

 

F. George Pernat, 7626 Highway 5, Side Lake, MN  55781 (pro se respondent)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.  

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

On appeal from the denial of a harassment restraining order, appellant argues that the district court erred by refusing to issue a restraining order after respondent confronted appellant when he entered respondent’s land to make a citizen’s arrest.  We affirm.

FACTS

John Kreuz believes that in northern Minnesota there is a culture of non-compliance with laws regarding appropriate all-terrain vehicle (ATV) use that infringes on his right to peace and quiet (as well as safety) in his home.  He has sought to have the ATV laws enforced by several law enforcement officials, including the sheriff’s office and the Minnesota Department of Natural Resources.  In his complaints, he documented the offenses and offenders, sometimes with still photos, sometimes with audiotapes, and sometimes by writing down the license plate numbers of the offenders.  According to Kreuz, very little has been done with this information.

Kreuz’s home is located immediately adjacent to Bimbo’s Bar. According to Kreuz, ATV drivers enroute to Bimbo's trespass on his land and drive where these vehicles are not permitted.  On September 30, 2000, Kreuz had an encounter with some patrons of Bimbo’s and, as a result of this incident, Kreuz filed a petition for a harassment restraining order.

Kreuz's petition alleged that, after observing illegal ATV use, including trespassing on his land, Kreuz entered Bimbo’s parking lot in order to invoke his citizen's arrest powers under Minn. Stat. § 629.37 (2000).  George Pernat, the owner of Bimbo’s, emerged accompanied by a large group of young men each in a “threatening posture.”  Mr. Pernat shouted something to the effect of “get the f--- off my property” at Kreuz.  Kreuz called 911 and an investigator and several police officers responded.  Kreuz told them that Pernat asked Kreuz not to “trespass” and the investigator responded by advising Kreuz not to trespass.  Kreuz told them he was attempting a citizen's arrest and would continue to do so in the future.  Kreuz's petition alleged that he had a psychological reaction to this incident, although it is unclear if he was referring to this incident alone or in conjunction with his loss of peace and quiet due to improper ATV use.

The district court considered the petition, rejected it, and declined to grant Kreuz a hearing, finding that his allegation did not meet the requirements of the harassment statute.  Minn. Stat. § 609.748 (2000).  Kreuz moved the court to reconsider.  The court denied the motion and elaborated on its prior decision by making the following findings:

Essentially, the petition relates one incident on September 30, 2000 in which the petitioner entered upon the property of the respondent to investigate a possible recreational vehicle violation.  The petitioner is not a licensed peace officer.  He states that he intended to effectuate a citizen’s arrest.  The respondent confronted the petitioner and told him to get off his land.  The statement was accompanied by loud words and swearing.

The court again concluded that these facts were insufficient to support a finding of harassment under Minn. Stat. § 609.78.[1]  This appeal followed.

D E C I S I O N

Normally, the district court may issue a harassment restraining order if it finds “reasonable grounds to believe that the respondent has engaged in harassment.”  Minn. Stat. § 609.748, subd. 5(a)(3)(2000). But here, the district court did not find such reasonable grounds.  In fact, it did not even order a hearing on the matter.  Therefore, the posture of the issue presented is different from most harassment restraining order denials.  We consider whether there was error in failing to grant a hearing on this matter.

Appellant argues that the district court erred in finding that no act of harassment occurred and by refusing to issue a harassment restraining order.  We review harassment restraining orders under an abuse of discretion standard, see Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (detailing trial court’s discretion to grant relief under domestic abuse act), and will not reverse a trial court’s findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  “A finding is clearly erroneous if it is not reasonably supported by the evidence as a whole.”  Olson v. Blue Cross & Blue Shield, 269 N.W.2d 697, 700 (Minn. 1978).

Upon receipt of a petition for a harassment restraining order, the district court is compelled to schedule a hearing.  See Minn. Stat. § 609.748, subd. 3(a) (“Upon receipt of the petition, the court shall order a hearing.”).  But the harassment statute also specifically provides for the possibility of denying a hearing on a non-meritorious petition.  Minn. Stat. § 609.748, subd. 3(a) (“Nothing in this section shall be construed as requiring a hearing on a matter that has no merit.”).  We need not decide what the limits of a non-meritorious petition may be.  A valid petition for relief must contain facts sufficient to show that the respondent has engaged in harassment.  Id.  Kreuz’s petition was invalid on its face.

“Harassment” includes

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).  Here, Kreuz's petition describes only a single incident of threatening behavior. The petition is facially invalid because it does not allege multiple incidents or a physical or sexual assault. 

Furthermore, a petitioner must allege “an immediate and present danger of harassment.”  Minn. Stat. § 609.748, subd. 4(a) (requirement for a temporary restraining order); see also Minn. Stat. § 609.748, subd. 5(a)(2) (requiring temporary restraining order as pre-requisite to restraining order).  The immediacy of the danger of harassment to Kreuz only flows from Kreuz’s insistence on entering Pernat’s property to investigate ATV violations and make citizen’s arrests.

Minn. Stat. § 629.37 (2000) permits a private citizen to make arrests for public offenses committed or attempted in the arresting person’s presence.  But as we noted inState v. Rein, a statutory construction granting an absolute right of trespass in order to effect a citizen’s arrest is unsupported and would uniquely threaten the privacy of others.  477 N.W.2d 716, 719 (Minn. App. 1991).  Before a citizen may trespass to make an arrest, it must be shown that deference to law enforcement was unfeasible.  Id. (“Private arrest powers likely cannot supercede public law enforcement activity absent extraordinary circumstances.”). This construction fits with the pertinent statutes.  Minn. Stat. § 629.39 specifically grants authority for a citizen to pursue an arrestee “at any time and in any place in the state” only if that arrestee escapes the custody of a citizen who has made an arrest.  The fact that this right is specifically granted for the pursuit of escapees indicates, under the doctrine of expressio unius est exclusio alterius, that an unrestricted right of pursuit does not exist for citizens who have not already made an arrest.  Kreuz’s petition did not contain evidence that he actually arrested anybody.  As he has made no showing that he had a right to trespass on Pernat’s property, the immediacy of harm requirement of the harassment statute has not been met.

Affirmed.

 



[1] Presumably, the district court meant Minn. Stat. § 609.748.  Minn. Stat. § 609.78 addresses emergency telephone calls and communications.