Andrew J. Eisenzimmer, John C. Gunderson, Meier, Kennedy & Quinn, Chartered, 2200 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Lawrence H. Crosby, Crosby & Associates, 630 Roseville Professional Center, 2233 Hamline Avenue North, St. Paul, MN 55113 (for appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Forsberg, Judge. ^**

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

In this appeal challenging the amendment of an existing harassment restraining order, appellant Henry Zimmer has failed to show the terms of the amended order burden more speech than necessary. We affirm.

In April 1991, a harassment restraining order was issued. The order prohibited Zimmer from entering church property and abutting sidewalks and from having any contact with the church's pastor for two years, the maximum period permitted by statute.

When the order expired, Zimmer was invited back to the church. Soon however, Zimmer resumed his disruptive activities, interfering with the ability of other parishioners to worship. The church's new pastor, Father Moudry, then wrote to Zimmer, informing him again that he was no longer allowed on church property. Zimmer disregarded the letter and continued to disturb church services, including a Christmas service.

On April 25, 1996, the church obtained another restraining order barring Zimmer from church property and from having any contact with the pastor and other church leaders. The order also required Zimmer to cease and desist from any conduct that constituted harassment of the church. Zimmer appealed the order, arguing it violated his First Amendment rights. This court affirmed the terms of the original order. Naumann v. Zimmer, No. C2-96-1066 (Minn. App. Jan. 14, 1997), review denied (Minn. Mar. 18, 1997), cert. denied, 118 S. Ct. 74 (1997).

Zimmer continued to harass the church and its parishioners. In 1997, the church brought a motion requesting that the terms of the existing order be amended and that Zimmer be held in contempt. The district court granted the motion to amend the order but, upon agreement by the parties, dismissed the claim for contempt. The amended order bars Zimmer from all church property and a one-block area around the church.[0]

In this appeal challenging the amendment of an existing harassment restraining order, appellant Henry Zimmer has failed to show the terms of the amended order burden more speech than necessary. We affirm.

In April 1991, a harassment restraining order was issued. The order prohibited Zimmer from entering church property and abutting sidewalks and from having any contact with the church's pastor for two years, the maximum period permitted by statute.

When the order expired, Zimmer was invited back to the church. Soon however, Zimmer resumed his disruptive activities, interfering with the ability of other parishioners to worship. The church's new pastor, Father Moudry, then wrote to Zimmer, informing him again that he was no longer allowed on church property. Zimmer disregarded the letter and continued to disturb church services, including a Christmas service.

On April 25, 1996, the church obtained another restraining order barring Zimmer from church property and from having any contact with the pastor and other church leaders. The order also required Zimmer to cease and desist from any conduct that constituted harassment of the church. Zimmer appealed the order, arguing it violated his First Amendment rights. This court affirmed the terms of the original order. Naumann v. Zimmer, No. C2-96-1066 (Minn. App. Jan. 14, 1997), review denied (Minn. Mar. 18, 1997), cert. denied, 118 S. Ct. 74 (1997).

Zimmer continued to harass the church and its parishioners. In 1997, the church brought a motion requesting that the terms of the existing order be amended and that Zimmer be held in contempt. The district court granted the motion to amend the order but, upon agreement by the parties, dismissed the claim for contempt. The amended order bars Zimmer from all church property and a one-block area around the church.[1] It does not extend the term of the restraining order, which will expire April 24, 1998. Zimmer appeals the amended order.

The law of the case doctrine does not apply here because the propriety of limiting Zimmer's proximity to church property has not been litigated before. Moreover, this court's affirmance of the original order rested on a determination that the terms of that order did not offend Zimmer's constitutional rights, but we did not limit the district court's continuing jurisdiction to modify and add to the terms of the original order. Kornberg, 525 N.W.2d at 18.

2. Zimmer argues the district court's failure to hold a hearing prior to amending the order was error. We disagree. Before issuing a permanent harassment restraining order, a district court is to hold a hearing. Minn. Stat. § 609.748, subd. 5 (1996). This court has held that the hearing must involve the taking of sworn testimony and the right to cross-examine witnesses under oath. Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995).

Determinig whether the district court complied with the statute is a question of law, which we determine de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d527, 529 (Minn. 1985). The district court held a hearing that complied with Anderson when it issued the original order. The amended order merely modified the terms of the existing order, without extending the term of that order. Both parties had an opportunity to submit legal memoranda and affidavits. The district court was not required to hold a separate hearing before it amended the order to preclude additional harassment.

3. Zimmer argues the terms of the amended order violate his constitutional right to free speech. Whether the district court's amended order violates Zimmer's constitutional right to free speech is a question of law this court reviews de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. App. 1984). A content-neutral injunction violates the First Amendment if it burdens more speech than necessary to serve a significant governmental interest. Schenck v. Pro-Choice Network, 117 S. Ct. 855, 864-65 (1997). Whether a governmental restriction is content-neutral is determined by asking what purpose the regulation serves. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763, 114 S. Ct. 2516, 2523-24 (1994).

The amended order in this case is content-neutral because its purpose is not related to the content of Zimmer's speech. The order was issued to promote public safety, provide for the free flow of traffic on the streets and sidewalks, and protect the church's property rights. The order also protects Zimmer. The pastor testified previously that the parishioners are fed up with Zimmer's harassment and have spoken of violence toward Zimmer. The purposes of the amended order are unrelated to the content of Zimmer's speech. See id. at 767-68, 114 S. Ct. at 2526.

Having determined that the restraining order is content-neutral, we next ask whether it burdens more speech than necessary. Schenck, 117 S. Ct. at 864-65. A record of abusive conduct may support a restriction on speech in a traditional public forum. Id. at 868-69. Zimmer's long history of harassing the church, including previous criminal convictions for trespass, supports the district court's finding that unless the area from which Zimmer is excluded is expanded, he will continue the pattern of harassment. The facts of this case show that the one-block restriction burdens no more speech than necessary. See Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993).

Affirmed.

LANSING, Judge (dissenting)

On April 25, 1996, the Anoka County district court issued an order restraining Henry Zimmer from entering the premises of Immaculate Conception Church, including the "front of the church on 41st St. N.E., Jackson St., 40th St. N.E. [and] any other church property." The evidence is undisputed that Zimmer has not violated that restraining order.

Zimmer has, however, continued his anti-abortion protest by parking his van, with anti-abortion signs attached to it, on a public street outside the area covered by the April 25, 1996, restraining order but still within view of the church. In response, the church obtained an amended restraining order that bars Zimmer not only from the church property and entrance, but creates a one-block buffer zone around the property. The buffer zone includes the surrounding sidewalks, streets, alleys, and private property.

The test for determining whether the amended restraining order violates Zimmer's expressive rights under the First Amendment is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Schenck v. Pro-Choice Network, 117 S. Ct. 855, 864 (1997) (quoting Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765, 114 S. Ct. 2516, 2525 (1994)). The majority observes that we have previously upheld a two-block geographic restriction on picketing by abortion protestors. Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993). But the restriction in Welsh was applied to targeted picketing of a clinic worker's house on a block with only two other houses in a secluded residential area. The church is not in a remote location, and Zimmer's activities are directed not toward one person but the entire body of parishioners to whom he wishes to convey his message. A protestor's using the public street or sidewalk to comment on matters of public concern may be annoying to others, but it is the classic form of speech that is at the heart of the First Amendment. See Schenck, 117 S. Ct. at 866.

The church's interest in protecting its private property and the safety of its parishioners is significant. But the record demonstrates that since the April 25, 1996, restraining order there has been no interference with the free flow of traffic on the streets or sidewalks, no interference with the parishioners' right to worship, and no identifiable threat to public safety or the orderly conduct of daily living. On this record, the extensive buffer zone burdens more speech than necessary. See id. at 866-67 (striking down all but a 15-foot buffer zone around the entrance of an abortion clinic). Because the restraining order as amended does not comply with First Amendment protections, I would remand to the district court to reinstate the April 25, 1996, restraining order that extends to April 24, 1998.

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

]¹ More specifically, the amended order prohibits Zimmer from being on 41st Avenue N.E. between Monroe and Van Buren; on 40th Avenue N.E. between Monroe and Van Buren; on Jackson Street between 41st Avenue N.E. and one-half block south of 40th Avenue; and finally on Quincy Street one-half block north of 41st Avenue N.E. and one-half block south of 40th Avenue.