This opinion will be unpublished and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

CX-01-1350

 

 

Katherine Griffis,

Appellant,

 

vs.

 

Marianne Luban,

Respondent.

 

Filed March 5, 2002

Reversed and remanded

Halbrooks, Judge

 

 

Ramsey County District Court

File No. C1984573

 

 

Peter Erlinder, 566 Marshall Avenue, St. Paul, MN 55102 (admitted pro hac vice); and

 

Ralph Overholt, PO Box 5331, Hopkins, MN 55343 (for appellant)

 

John P. Borger, C. David Flower, Faegre & Benson, 2200 Wells Fargo Center, 90 South 7th Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Katherine Griffis challenges the district court’s order vacating the temporary injunction issued by an Alabama court that prohibited respondent Marianne Luban from making certain defamatory statements about Griffis.  Griffis contends that the district court exceeded its authority under Minn. R. Civ. P. 62.02 and erred as a matter of law in vacating the injunction while an appeal was pending and there was no finding of changed circumstances.  Griffis argues that the injunction does not violate the First Amendment because it was not overbroad on its face and because the prohibited statements have been found to be defamatory by a court of competent jurisdiction.  Because the Constitution permits injunctions against defamatory speech, we reverse and remand to the district court for a determination of the proper scope of the injunction based on the findings made by the issuing court. 

FACTS

This appeal marks the third time that this matter has been before this court.  Because the underlying facts were presented in Griffis v. Luban, 633 N.W.2d 548 (Minn. App. 2001), review granted (Minn. Nov. 13, 2001), they will not be repeated in full here. 

            Procedurally, Griffis, an Alabama resident, brought a defamation claim in Alabama state court against Luban, a Minnesota resident.  Luban failed to answer the complaint or make an appearance and the court granted Griffis a $25,000 default judgment and injunctive relief.  The injunction prohibited Luban from

publishing in any form including, but not limited to, the Internet, World Wide Web, and E-mail, any statement asserting or implying:

 

A.             that [Griffis] is a liar;

B.             that [Griffis] is a phony;

C.             that [Griffis] is a con-artist or scam-artist;

E. [sic]     that [Griffis] has falsified her credentials in order to gain admission to any organization, or inclusion on any list, of Egyptologists;

F.             that [Griffis] is not affiliated with the University of Alabama at Birmingham or has not taught courses in Egypt or Egyptology through that affiliation;

G.             that [Griffis] does not possess a Juris Doctor degree;

H.             that [Griffis] is not engaging in a legitimate consulting business.

 

Griffis filed the judgment in Ramsey County District Court pursuant to the Uniform Enforcement of Foreign Judgments Act and Luban moved to vacate the judgment on the ground that the Alabama court lacked personal jurisdiction over her.  A referee initially granted Luban’s motion, but found, upon reconsideration, that the Alabama court had personal jurisdiction over Luban.

            On appeal, this court vacated the referee’s decision because it had not been reviewed or signed by a district court judge.  Griffis v. Luban, 601 N.W.2d 712, 713 (Minn. App. 1999).  We did not reach the merits of the dispute. 

Luban renewed her motion to vacate the Alabama judgment on the grounds of lack of personal jurisdiction and violation of the First Amendment.  Griffis moved to enforce the injunction.  Based on its conclusion that Alabama’s long-arm statute gave it personal jurisdiction over Luban, the district court gave the judgment full faith and credit without deciding the First Amendment issue.

            Luban appealed on the personal-jurisdiction issue to this court and moved the district court pursuant to Minn. R. Civ. P. 62.02 to vacate the injunction as violative of the First Amendment.  In response, Griffis brought a motion to dismiss Luban’s appeal while the matter was still pending before the district court.  We denied Griffis’s motion to dismiss because we concluded that “[t]he district court retains jurisdiction to rule on [Luban’s] motion to vacate the injunction despite the pendency of the appeal.”  Griffis v. Luban, No. C3-01-296 (Minn. App. Apr. 24, 2001) (order).

            Following a hearing, the district court vacated the injunction on the ground that it violated the First Amendment protection against prior restraint of speech.  Griffis appealed from the district court’s order before this court had issued its decision on Luban’s challenge to the district court’s earlier conclusion that personal jurisdiction existed.  We affirmed the district court on its ruling that Alabama had personal jurisdiction over Luban.  Griffis, 633 N.W.2d at 553.  Griffis now challenges the district court’s order vacating the injunction.

D E C I S I O N

I.

 

Griffis contends that the district court exceeded its authority under Minn. R. Civ. P. 62.02 by vacating an injunction in response to a motion brought by Luban, who opposed the injunction, after Luban had filed a notice of appeal from the district court’s order that personal jurisdiction existed.  Griffis further argues that the district court abused its discretion by dissolving the injunction in the absence of changed legal or factual circumstances.

This court reviews interpretations of the rules of civil procedure de novo.  Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn. 2000).  Minn. R. Civ. P. 62.02 provides as follows:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. 

 

            The district court concluded that its authority to modify the injunction while an appeal was pending was derived from rule 62.02 and the court’s “inherent power to amend, modify, or vacate an injunction where the circumstances have changed and it is just and equitable to do so.”  Jacobson v. County of Goodhue, 539 N.W.2d 623, 625 (Minn. App. 1995) (quoting Channel 10, Inc. v. Indep. Sch. Dist. No. 709, St. Louis County, 298 Minn. 306, 327-28, 215 N.W.2d 814, 829 (1974)).

            In Jacobson, this court held that a district court retains jurisdiction to vacate an injunction under its inherent powers of equity and Minn. R. Civ. P. 60.02(e) when a sufficient change in circumstances has made the continued application of the injunction inequitable.  Id.  In that case, we affirmed the district court’s order vacating an injunction that prohibited enforcement of a county ordinance banning nude dancing in bars on the ground that the Minnesota Supreme Court upheld the constitutionality of a similar ordinance seven years after the Jacobson injunction was issued.  Id. at 626-27.  The supreme court’s ruling in a later case involving a challenge to the constitutionality of a similar ordinance constituted a sufficient change in legal circumstances to warrant vacating the injunction.  Id. at 626.  But Jacobson is not applicable to the facts and procedural posture of this case, which involves an order to vacate issued while an appeal was pending and in the absence of any findings of changed legal circumstances.

Luban argues that we expressly acknowledged the propriety of her rule 62.02 motion when we stated, “[t]he district court retains jurisdiction to rule on [Luban’s] motion to vacate the injunction despite the pendency of the appeal.”  Griffis v. Luban, No. C3‑01-296 (Minn. App. Apr. 24, 2001) (order).  But the issue then before us was whether the appeal to this court and the motion in the district court could go forward simultaneously.  Our order did not determine the motion’s propriety.

By its terms, Minn. R. Civ. P. 62.02 does not allow a court to vacate an injunction, but only to “suspend, modify, restore, or grant an injunction.”  The rule’s intent is to give courts a mechanism to a stay a judgment and thereby preserve the status quo pending appeal.  See 2A David F. Herr & Roger S. Haydock, Minnesota Practice § 62.5 (1998) (stating that the rule seeks to secure the rights of the adverse party, or appellee).  Here, rather than preserving the status quo, the district court made a ruling akin to a reversal on a motion for reconsideration.  We conclude that rule 62.02 does not give the district court authority to vacate the injunction and the court erred in its decision to do so.

II.

Griffis argues that the district court also erred in finding that the injunction is a prior restraint on free speech being used by Griffis to prohibit any negative speech, including legitimate criticism, by Luban.  Whether an injunction violates the Constitution is a legal issue, which this court reviews de novo.  See State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999) (trial court’s conclusions regarding free speech protections in the Minnesota Constitution reviewed do novo).

Griffis contends that Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1 (Minn. 1984), permits an injunction when there has been a judicial determination that the enjoined statements are defamatory.  Luban counters that, starting with Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625 (1931), courts have generally prohibited these “prior restraints” of speech.  Further, she asserts that the narrow exception in Advanced Training is inapplicable because this dispute did not arise in a commercial context, there was no full adversarial hearing, and the injunction is not tailored to precise statements. 

Near and its progeny dealt with a number of injunctions that the U.S. Supreme Court held to be unconstitutional as “prior restraints” of speech.  Near, 283 U.S. at 713-23, 51 S. Ct. at 630-33; see Okla. Publ’g Co. v. Dist. Court, 430 U.S. 308, 311-12, 97 S. Ct. 1045, 1047 (1977); N.Y. Times Co. v. United States, 403 U.S. 713, 719-20, 91 S. Ct. 2140, 2144 (1971); Org. for a Better Austin v. Keefe, 402 U.S. 415, 419-20, 91 S. Ct. 1575, 1578 (1971).  But while “[t]hese cases may once have stood for the proposition that any injunction against speech activity was a ‘prior restraint’ on speech,” the Court later stated that the “special vice of a prior restraint is that communication will be suppressed * * * before an adequate determination that it is unprotected by the First Amendment.”  Advanced Training, 352 N.W.2d at 11 (quoting Pittsburgh Press Co. v. Comm’n on Human Relations, 413 U.S. 376, 390, 93 S. Ct. 2553, 2561 (1973)).

In Pittsburgh Press, the Court upheld an order that prohibited a newspaper from listing help-wanted advertisements in gender-specific columns, e.g., “Male Help Wanted.”  413 U.S. at 390, 93 S. Ct. at 2561.  In doing so, the Court indicated there was an “adequate determination” when the order was (1) based on a continuing course of conduct so that the court did not have to speculate as to its effects, (2) not in effect until after the court determined the character of the speech, and (3) clear and narrowly drawn to enjoin no more speech than necessary.  Id.  Similarly, in Advanced Training, our supreme court found that an injunction against a business’s disparaging comments was constitutionally permissible because (1) the oft-repeated comments allowed the court to “gauge [their] actual impact,” (2) the court held adversarial proceedings to determine the comments’ character, and (3) the injunction was limited to the precise statements found to be libelous.  Advanced Training, 352 N.W.2d at 11.  Although Advanced Training arose in a commercial context, the court’s analysis can be applied more broadly.  Therefore, we hold that an injunction is not an unconstitutional “prior restraint” if it is (1) based on a sufficient record, (2) issued after a judicial determination that the speech is in an unprotected class, and (3) narrowly tailored to enjoin only the offending speech.

A.        Sufficient record.

The first factor requires there to be a sufficient record of the speech at issue to permit a court to adequately gauge its nature and impact.  In Pittsburgh Press, the record was sufficient to avoid speculation about the speech when it included newspaper clippings from one day’s edition that enabled the court to conclude that there had been 248,000 similar help-wanted advertisements.  413 U.S. at 379, 93 S. Ct. at 2555-56.  In Advanced Training, the defendant circulated at least five different “bulletins” and wrote letters over a number of years from which the court and jury had ample opportunity to assess the nature and impact of the speech.  352 N.W.2d at 11.  Here, the Alabama court identified at least 100 communications that formed the basis of Griffis’s complaint.  In light of the governing cases, this is a sufficient record from which to gauge the nature and impact of the speech in issue.

B.        Judicial determination.

The second factor requires that there be a judicial determination as to the quality of the allegedly unprotected speech.  In describing this requirement, Advanced Training used terms such as “full adversarial proceedings,” “full and fair adversary proceeding,” and “full jury trial.”  352 N.W.2d at 11.  Because these terms lack legal precision, we must look to the genesis of the “prior restraint” doctrine, and the cases that followed, to determine the character of this requirement.

In Pittsburgh Press, the U.S. Supreme Court quoted Blackstone when describing the common law underpinnings against prior “restraints:”

To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, * * * is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.

 

Pittsburgh Press, 413 U.S. at 391, 93 S. Ct. at 2561 (quotation omitted).  From this, it is apparent that the doctrine seeks to avoid the arbitrary and capricious exercise of censorship that would exist without “an adequate determination that [speech] is unprotected by the First Amendment.”  Id. 

            This concern is also evident in the Court’s cases involving the licensing of motion pictures and other media.  See S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 560-61, 95 S. Ct. 1239, 1247-48 (1975).  In this realm, the Court has repeatedly stated that

a system of prior restraint “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” 

 

Id. at 560, 95 S. Ct. at 1247 (quoting Freedman v. Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 739 (1965)).  To that end, the Court invalidates such “prior restraints” unless (1) the burden of instituting and proving the case lies with the censor, (2) any restraint prior to judicial review serves only to maintain the status quo, and (3) the judicial determination is prompt.  Id.  Again, it is apparent that the constitutional concerns arise only when a restraint is imposed without a proper process.  In light of this common concern, we conclude that a court makes “an adequate determination” when it employs due process before enjoining any speech.

            The issue before us is whether there was due process in this instance.  The U.S. Supreme Court stated:

Due process does not, of course, require that the defendant in every civil case actually have a hearing on the merits.  A State, can, for example, enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance * * * .

 

Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 786 (1971).  Likewise, the Minnesota Supreme Court has held that a default judgment satisfies due process when the court has jurisdiction over both the offense and the defendant and the resulting trial is not merely a sham or pretense.  In re Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001).

            Here, Luban was subject to personal jurisdiction in the Alabama court and she received proper notice.  Griffis v. Luban, 633 N.W.2d 548, 552-53 (Minn. App. 2001), review granted (Minn. Nov. 13, 2001).  There is nothing in the record to indicate that the proceeding was a mere sham or pretense.  To the contrary, the record shows the Alabama court reviewed the evidence and made detailed findings from which it crafted its injunction.  Therefore, we find that the court employed due process and thus made an “adequate determination” before issuing the injunction.

            C.        Narrowly tailored.

            Advanced Training requires that any injunction against speech be “limited to the precise statements found libelous.”  352 N.W.2d at 11.  Griffis, herself, concedes that an injunction must be narrowly tailored so as to enjoin only unprotected speech.  The Alabama court found that Luban made the following false statements:

A.        She has called [Griffis] a liar;

B.        She has alleged, directly and by implication, that [Griffis] secured membership in the International Association of Egyptologists and placement on other lists of Egyptologists or membership in other Egyptological organizations by misrepresenting her qualifications when applying to those organizations and lists;

C.        She claimed that [Griffis] was not affiliated with the University of Alabama at Birmingham and that she had not taught courses in Egyptology in the Special Studies Department of the University of Alabama at Birmingham;

D.        She claimed that [Griffis] lied when she identified herself as having a Juris Doctor degree;

E.         She alleged that the consulting business [Griffis] conducts is not legitimate; and

F.         She has referred to [Griffis] as a “con-artist,” a “scam-artist” and a “phony.”

 

Accordingly, the Alabama court enjoined Luban from saying or implying the following:

A.           that [Griffis] is a liar;

B.           that [Griffis] is a phony;

C.           that [Griffis] is a con-artist or scam-artist;

E. [sic]   that [Griffis] has falsified her credentials in order to gain admission to any organization, or inclusion on any list, of Egyptologists;

F.            that [Griffis] is not affiliated with the University of Alabama at Birmingham or has not taught courses in Egypt or Egyptology through that affiliation;

G.           that [Griffis] does not possess a Juris Doctor degree;

H.           that [Griffis] is not engaging in a legitimate consulting business.

 

The issue before us is whether the injunction is sufficiently narrow so as not to prohibit non-defamatory speech.  For instance, the Alabama court found that Luban defamed Griffis by calling her “a liar” with respect to Griffis’s postings to an Egyptology newsgroup.  As a result, the court enjoined Luban from saying “that [Griffis] is a liar.”  But because this provision is not restricted to any particular context, i.e., postings to the Egyptology newsgroup, the injunction has the effect of prohibiting Luban from calling Griffis “a liar” even if to do so in another context would not be defamatory.  For example, the injunction prohibits Luban from calling Griffis “a liar” even if Griffis were to say that “John F. Kennedy was never President of the United States.”  On its face, the injunction prohibits speech even if non-defamatory and protected by the First Amendment.  See Bebo v. Delander, 632 N.W.2d 732, 739 (Minn. App. 2001) (holding that one element of defamation is that the statement be false).

We conclude that the injunction is overbroad because it enjoins Luban from making certain statements regardless of the context.  As a result, because portions of the injunction are not limited to the precise statements found by the Alabama court to be defamatory, it violates the “prior restraint” doctrine.

We reverse the vacation of the injunction and remand to the district court to narrow the scope of the injunction so that it restricts only those statements found to be defamatory and does not extend to non-defamatory speech.

Reversed and remanded.