This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Jim Luoma, petitioner,



Welbec Hamm, Jr.,


Filed December 23, 1997


Short, Judge

Itasca County District Court

File No. C397537

Jim Luoma, 820 Pokegama Avenue, Grand Rapids, MN 55744 (pro se respondent)

Welbec Hamm, Jr., 749 County Road 434, Bovey, MN 55709 (pro se appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.


SHORT, Judge

On appeal from the trial court's entry of a harassment restraining order pursuant to Minn. Stat. § 609.748 (1996), Welbec Hamm, Jr. argues the trial court: (1) erred in its application of the law; and (2) imposed an unconstitutional order. We affirm.


Where a court weighs statutory criteria in light of its findings of fact, its conclusions include mixed issues of fact and law. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). In such a case, we must correct the trial court's erroneous application of the law, but review the trial court's ultimate conclusions under an abuse of discretion standard. Id. We will not set aside a trial court's factual findings unless clearly erroneous, but will review de novo questions of statutory construction. See Minn. R. Civ. P. 52.01 (factual findings); Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (statutory construction).


Hamm argues the trial court erred in concluding his conduct constituted harassment because he did not "adversely affect the safety, security, or privacy of another." However, a trial court may issue a harassment restraining order if it finds reasonable grounds to believe the alleged harasser has engaged in harassment. Minn. Stat. § 609.748, subd. 4 (1996). Harassment is defined as

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.

Id., subd. 1 (a)(1) (1996). The record demonstrates: (1) the petitioner is the Superintendent of School District No. 318 in Grand Rapids; (2) Hamm is self-employed

in the forestry business in Bovey, and publishes a newsletter called "318 Tattler"; (3) Hamm has a gun permit; (4) Hamm regularly attends school board meetings and writes numerous letters to the petitioner concerning issues of curriculum; (5) Hamm's letters speak in terms of "warfare" and contain charged language; (6) on one occasion, Hamm faxed four letters to petitioner in a single day; (7) Hamm has contacted petitioner at home; and (8) Hamm's letters contain statements like "You can't inflict the mortal wound on me, although given enough time I can and will bring about your demise" and "`Give me liberty or give me death', take these words to heart as this is the only way I will be stopped and your supporters haven't the courage to play this last card." Under these circumstances, we cannot say the trial court's determination that Hamm's words and conduct constituted harassment of petitioner was clearly erroneous. See Davidson v. Webb, 535 N.W.2d 822, 825 (Minn. App. 1995) (holding trial court's findings were sufficient to show alleged harasser intended to adversely affect plaintiff's safety, security, or privacy).


Hamm also argues the trial court's order violates his First Amendment rights. However, First Amendment rights are subject to reasonable time, place, and manner restrictions. Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 2564 (1981). A time, place, and manner restriction is constitutionally permissible if

(1) it is justified without reference to the content of the regulated speech;

(2) it is narrowly tailored to serve a significant governmental interest; and

(3) it leaves open ample alternative channels for communication of the information.

Goward v. City of Minneapolis, 456 N.W.2d 460, 464 (Minn. App. 1990) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753 (1989)).

Here, the harassment restraining order requires Hamm to remain fifteen feet away from the petitioner and prohibits any "unfettered contact." However, the order permits attendance at school board meetings, publication of the "318 Tattler," and allows Hamm to direct his concerns to other school board members. Under these circumstances, the trial court did not impose an unconstitutional harassment restraining order. See Welsh v. Johnson, 508 N.W.2d 212, 215 (Minn. App. 1993) (concluding restraining order with fifteen-foot barrier that prohibited personal contact, but permitted picketing did not violate constitutional rights); River Towers Ass'n v. McCarthy, 482 N.W.2d 800, 804 (Minn. App. 1992) (concluding injunction narrowly drawn to serve significant state interest in keeping peace, where resident prohibited from communicating with security guards and office staff except in case of an emergency; to exchange customary greetings; by telephone, to arrange for guest parking or to pick up packages), review denied (Minn. May 21, 1992); see also Goward, 456 N.W.2d at 464 (concluding as long as order serves purposes unrelated to content of expression and is justified without reference to content, it is facially neutral).