This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Zachary Faricy, petitioner,





Derek Schramm,




Filed November 12, 2002


Huspeni, Judge*



Hennepin County District Court

File No. HA02175


Cameron M. Parkhurst, Parkhurst Law Firm, 1700 Highway 36 West, 619 Rosedale Towers, Roseville, MN 55113-4015 (for respondent)


Gregory R. Troy, 2550 University Avenue West, Suite 459S, St. Paul, MN 55114 (for appellant)


Curtis Herbert, 205 Stevens Street West, St. Paul, MN 55107 (for amicus curiae Northstar Legal Center)



            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges a harassment restraining order imposed after he sent a letter to respondent’s employer.  Because appellant’s single act of correspondence does not constitute harassment as defined by Minn. Stat. § 609.748, subd. 1(a)(1) (2000), we reverse.


Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis.  Respondent Zachary Faricy is a teacher at the school.  In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.”  Schramm based his suspicion on the fact that Faricy’s car displays an Apple Computer decal and that Faricy “lives or has lived * * * in a neighborhood that has a higher population of homosexuals.”  Schramm had determined Faricy’s place of residence through an internet search.  Schramm contended in the letter that “both wearing a rainbow sticker on your car [and] living in a neighborhood where more homosexuals live is enough to send up a red flag.”  In closing, Schramm asked school officials

what can be done to learn if Mr. Faricy chooses a * * * homosexual lifestyle and if he is a sodomite, then what is his future around children at [the] school?


Citing fear that Schramm’s “behavior will escalate into something possibly dangerous,” Faricy petitioned the district court to issue a harassment restraining order.  After hearing testimony from both Faricy and Schramm, the district court found that Schramm had engaged in two “acts of harassment.”  The first act consisted of sending a letter to Faricy’s employer suggesting that Faricy might be gay and that, if he were gay, he should not be allowed to teach in the school.  The district court identified the second act of harassment as Schramm’s inclusion in his letter of information about Faricy’s place of residence and the decal on his car.  On the basis of these findings, the district court issued a one-year restraining order prohibiting Schramm from contacting Faricy and from engaging in further acts of harassment.  Schramm challenges the order in this appeal.


This court reviews harassment restraining orders under an abuse-of-discretion standard.  Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).  A district court may grant a restraining order if “the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.”  Minn. Stat. § 609.748, subd. 5(a)(3) (2000). 

As defined by statute, “harassment” includes:

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) (2000).

The statute requires “repeated incidents of intrusive or unwanted acts.”  The district court, in attempting to satisfy the statutory requirements, treated the allegations contained in Schramm’s single letter and the supporting information he divulged in that letter as distinct “acts of harassment.”  We conclude that the restraining order was imposed on the basis of a single act of correspondence, and as such, was contrary to the plain meaning of the statute and to the legislative intent as well.

The current statutory definition of “harassment” is the product of a legislative amendment adopted in 2000.  In that year, the legislature raised the required showing for the issuance of a harassment restraining order from “repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another” to “repeated incidents of intrusive or unwanted acts, words, or gestures” having the same effect.  Compare Minn. Stat. § 609.748, subd. 1(a)(1) (1998), with Minn. Stat. § 609.748, subd. 1(a)(1) (2000) (emphasis added).[1]  The amendment effectively overruled Davidson v. Webb, 535 N.W.2d 822 (Minn. App. 1995), in which this court had affirmed a restraining order imposed following a single incident involving repeated use of profanity and threats because the statute required only that the alleged harasser use “more than a single word, act, or gesture.”  Id. at 824.

The text of the statute now explicitly requires “repeated incidents.”  In a decision issued after this appeal was filed, and thus unavailable to the district court at the time the restraining order here was issued, this court confirmed that conduct occurring within a single confrontation, on one occasion, does not meet the requirement of “repeated incidents” necessary to constitute harassment under the amended statute.  Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002).  While Schramm’s letter may have included more than one “intrusive or unwanted” statement, the content and purpose of the letter are subsumed within the single incident of Schramm corresponding with Faricy’s employer.  The district court abused its discretion by issuing the order based on a single incident.

Schramm also argues that his letter neither had, nor was intended to have, a substantial adverse effect on Faricy’s safety, security, or privacy, as required by the statute.  Having concluded that Schramm’s conduct does not amount to the required “repeated incidents,” we decline to reach the issue of the letter’s effect.  We similarly decline to address arguments raised by Schramm and amicus curiae Northstar Legal Center as to the constitutionality of both the restraining order and the harassment statute.  See State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981) (observing that courts do not decide constitutional issues where unnecessary to dispose of a case).



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] We note that the form restraining order used by the district court predates the amendment to the harassment statute and therefore recites the repealed statutory standard.