                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                 A11-1930, A11-1931

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                Steven Robert Latham,
                                      Appellant.

                               Filed November 24, 2014
                                      Affirmed
                                    Hudson, Judge

                               Dakota County District Court
                    File Nos. 19-AV-CR-11-10412, 19-AV-CR-11-6798

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael E. Molenda, Christine J. Cassellius, Ryan J. Bies, Dougherty, Molenda, Solfest,
Hills & Bauer, P.A., Apple Valley, Minnesota (for respondent)

Michelle L. MacDonald, MacDonald Law Firm, LLC, West St. Paul, Minnesota (for
appellant)

      Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

      This matter is on remand from the Minnesota Supreme Court, for reconsideration

of the First Amendment issue in light of Rew v. Bergstrom, 845 N.W.2d 764 (Minn.
2014). See State v. Latham, Nos. A11-1930, A11-1931, 2012 WL 3792209 (Minn. App.

Sept. 4, 2012), rev’d and remanded (Minn. June 17, 2014). The parties have filed

supplemental briefs. On reconsideration in light of Rew, we conclude that the harassment

restraining order (HRO) prohibiting appellant from contacting his ex-wife does not

violate the First Amendment because the no-contact provision is content-neutral, the no-

contact provision does not burden any more speech than necessary, and the government

has a significant interest in protecting individuals from unwanted contacts where there is

a demonstrated history of harassing conduct.          We therefore affirm appellant’s

convictions.

                                        FACTS

      This appeal was taken from appellant’s misdemeanor convictions of violating an

HRO and disorderly conduct. The cases were consolidated on appeal. Appellant raised

numerous issues in his principal brief, including constitutional challenges to Minn. Stat.

§ 609.748, subds. 4, 5 (2010), which permits a district court to issue a temporary

restraining order (TRO) and an HRO directing a respondent to have no contact with a

particular person. Specifically, appellant challenged these subdivisions on the grounds

that they were: (1) facially overbroad; (2) vague; and (3) in violation of his due process

rights. Appellant also raised issues involving evidentiary error, judicial misconduct, and

prosecutorial misconduct. This court considered all of these issues in our unpublished

opinion, Latham, 2012 WL 3792209.1 Because appellant was not convicted of violating


1
 A more detailed statement of the facts is included in this opinion. Latham, 2012 WL
3792209 at * 1-2.

                                            2
section 609.748 when he pleaded guilty to disorderly conduct, and a guilty plea by a

counseled defendant waives all non-jurisdictional defects, this court did not consider

these issues with respect to appellant’s disorderly conduct conviction. See id. at *7; see

also State v. Miller, 849 N.W.2d 94, 99 (Minn. App. 2014). The supreme court granted

further review and stayed all proceedings pending final disposition in Rew, 845 N.W.2d

764. After the supreme court issued its opinion in Rew, the supreme court vacated the

stay, denied review on all issues except the First Amendment issue, and remanded to this

court for reconsideration in light of Rew.

                                     DECISION

       This court’s “duty on remand is to execute the mandate of the remanding court

strictly according to its terms.” Bauerly v. Bauerly, 765 N.W.2d 108, 110 (Minn. App.

2009) (quotation omitted). The scope of the supreme court’s remand order is limited to

addressing the application of Rew to this court’s opinion in Latham.

       In Rew, the supreme court considered “the legality of a district court’s extension

for up to 50 years of an order for protection (OFP) in favor of a victim of domestic abuse

and her minor children.” 845 N.W.2d 764, 771 (Minn. 2014). After Rew and Bergstrom

divorced, Rew obtained a series of OFPs against Bergstrom, which Bergstrom violated.

Id. at 771-72. Eventually, Rew applied for an extension of the expiration date of the OFP

for up to 50 years, under Minn. Stat. § 518B.01, subd. 6a (2012). Id. at 772. The district

court found that Rew established the criteria for extending the OFP and granted the

application, with additional conditions in the order prohibiting Bergstrom from coming

within 120 yards of Rew’s residence, workplace, or church, suspending Bergstrom’s


                                             3
parenting time until he and the children completed therapy, excluding Bergstrom from

calling or coming within 120 yards of the children’s school or childcare, and creating a

buffer zone requiring Bergstrom to stay 50 yards away from Rew and the children in all

public places. Id. at 773–74. Bergstrom challenged the constitutionality of the extended

OFP on First Amendment, double jeopardy, ex post facto, equal protection, and due

process grounds. Id. This court rejected these claims, and the supreme court granted

review. Id. (citing Rew ex rel. T.C.B. v. Bergstrom, 812 N.W.2d 832 (Minn. App. 2011)).

       With respect to the constitutional claims, the supreme court considered whether

the extension of an OFP under Minn. Stat. § 518B.01, subd. 6a, for 50 years violates the

First Amendment to the United States Constitution or Article I, Section 3, of the

Minnesota Constitution, which are “coextensive.” Id. at 776. In considering Bergstrom’s

claim that the statute is facially unconstitutional and as applied to him, the supreme court

first considered whether the statute is a prior restraint on speech. Id. The supreme court

noted that, “[A]lthough an OFP satisfies the general definition of a prior restraint because

it prohibits, by judicial order, certain communications before they occur,” not all

injunctions are prior restraints. Id. The supreme court concluded that the OFP was not a

prior restraint because the OFP only prohibited Bergstrom from “express[ing] his views

to Rew or the minor children.” Id. at 777. Additionally, because an OFP is issued based

on a person’s prior unlawful conduct, not on the content of any particular message the

person wishes to express, it prohibits contact regardless of the content of speech. Id.

       After concluding that the OFP statute is not a prior restraint on speech, the

supreme court determined that “the proper test for evaluating content-neutral injunctions


                                             4
under the First Amendment is the test from Madsen v. Women’s Health Ctr., Inc., 512

U.S. 753, 114 S. Ct. 2516 (1994). See id. This was the same standard this court had used

to evaluate Bergstrom’s claim. See Rew, 812 N.W.2d at 833 (declining to apply the

heightened prior-restraint standard to 50-year OFP and applying Madsen test).

      In Madsen, the Supreme Court considered the constitutionality of an injunction

prohibiting antiabortion protesters from demonstrating outside of a clinic that performs

abortions. 512 U.S. at 757, 114 S. Ct. at 2521. The Supreme Court concluded that strict

scrutiny did not apply because “[a]n injunction, by its very nature, applies only to a

particular group (or individuals) and regulates the activities, and perhaps the speech, of

that group . . . because of the group’s past actions in the context of a specific dispute

between real parties.” Madsen, 512 U.S. at 762, 114 S. Ct. at 2523. After noting that the

protestors “are not prevented from expressing their message . . .; they are simply

prohibited from expressing it within the 36-foot buffer zone,” the Court concluded that

the injunction did not require heightened scrutiny because it did not impose restrictions

based on the content of the message. Id. at 763–64, 114 S. Ct. at 2524. Because

injunctions are different from ordinances and statutes in that they “are remedies imposed

for violations (or threatened violations) of a legislative or judicial decree,” and “carry

greater risks of censorship and discriminatory application,” the Court adopted a

“somewhat more stringent application of general First Amendment principles.” Id. at

764–65, 114 S. Ct. at 2524–25. The Supreme Court held that the standard for evaluating

a content-neutral injunction is “whether the challenged provisions of the injunction

burden no more speech than necessary to serve a significant government interest.” Id.


                                            5
Under this standard, the Court concluded that “the noise restrictions and the 36-foot

buffer zone around the clinic entrances and driveway . . . burden no more speech than

necessary to eliminate the unlawful conduct targeted by the State court’s injunction.” Id.

at 776, 114 S. Ct. at 2530.

       The Minnesota Supreme Court applied the Madsen standard to the 50-year OFP

statute in Rew. The supreme court held that an OFP issued under the statute does not

facially violate the First Amendment because it does not burden more speech than

necessary, the OFP’s restriction on Bergstrom’s speech to Rew, a victim of domestic

abuse, is not unconstitutional, and the restrictions on Bergstrom’s contact with Rew

satisfy Madsen because the incidental restriction on speech is no greater than necessary to

satisfy the state’s interest in protecting Rew. Rew, 845 N.W.2d at 778–81. But because

the OFP restricting contact with the parties’ minor children until the children reach 18

years of age lacked sufficient evidence in the record, the supreme court reversed and

remanded for further findings as to whether the provisions burdening Bergstrom’s speech

to his children are necessary to serve a significant state interest. Id. at 782–85.

       Having clarified the appropriate standard for evaluating whether an injunction

prohibiting contact violates the First Amendment in Rew, the supreme court directed this

court to apply that standard to this case. First, this court already concluded that Minn.

Stat. § 609.748, subds. 4, 5, authorizing an HRO prohibiting contact, does not implicate

the First Amendment. Latham, 2012 WL 3792209 at *4. Rew and Madsen do not alter

this conclusion. Indeed, they support it because an HRO, like an OFP, is issued based on

prior unlawful conduct.       845 N.W.2d at 777.       As discussed in Rew and Madsen,


                                              6
injunctive orders do not prohibit a person from expressing ideas, rather, the orders only

prohibit expressing ideas to a particular person based on past conduct. Id. Further, an

order prohibiting all contact is content neutral because it does not identify or prohibit any

particular type of speech but is designed to protect privacy and safety. See id.; see also

Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L. J. 781, 838–

39, 842 (2013) (discussing whether civil harassment statutes are content neutral).

       Next, we consider appellant’s facial challenge to a content-neutral injunction

under the Madsen standard. Like an OFP, the government has a significant public-safety

interest in permitting district courts to issue HROs prohibiting contact with particular

persons where there is a history of unlawful conduct. Rew, 845 N.W.2d at 779; Caplan,

supra, at 840 (noting public safety is important government interest in civil harassment

orders). For example, an OFP is issued where there is a history of domestic violence, and

an HRO is issued where there is a history of harassing conduct. Minn. Stat. § 609.748,

subd. 2 (providing that person who is victim of harassment may seek restraining order).

The no-contact provision in subdivisions 4, 5, and in a TRO/HRO issued according to

these subdivisions, only prohibits appellant from having contact with his former spouse,

who was the target of appellant’s prior harassing conduct, and does not include their

children. Because it prohibits contact only, it does not burden any more speech than

necessary to serve the government’s interest in protecting the safety and privacy of a

victim of harassing conduct.

       With respect to the as-applied challenge, Rew instructs that the reviewing court

apply Madsen “in the context of the specific circumstances presented by this case.” Rew,


                                             7
845 N.W.2d at 780. As respondent points out, the record does not contain the petition for

a harassment restraining order, but there is an unpublished opinion affirming appellant’s

challenge to the issuance of the HRO, which states that it was issued because

                appellant followed, pursued, or stalked respondent at the
                office of the children’s orthodontist and at parenting-time
                exchanges, that appellant made harassing phone calls to
                respondent by multiple repeat calls without leaving a
                message, that appellant frightened respondent with
                threatening behavior by yelling and using angry expressions
                during parenting-time exchanges, and that appellant called
                respondent’s family members to accuse her of various
                matters.

Latham v. Latham, No. A11-1085, 2012 WL 686117 at *1 (Minn. App. Mar. 5, 2012).

The TRO/HRO prohibits appellant from having contact with his former spouse only. The

order does not burden any more speech than necessary to achieve the goal of prohibiting

contact where appellant has demonstrated that his prior contacts with his former spouse

have resulted in harassing and threatening behavior.

          Appellant argues that the Madsen standard was called into question by a recent

Supreme Court opinion, McCullen v. Coakley, which involves a challenge to a

Massachusetts statute that created a 35-foot buffer-zone requirement around an abortion

clinic.      134 S. Ct. 2518, 2525-26 (2014).          Because McCullen involves the

constitutionality of a statute, which is the standard articulated in Ward v. Rock Against

Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753–54 (1989), it does not alter the holding

in Madsen, which articulated the standard for reviewing an injunction. See Madsen, 512

U.S. at 764–65, 114 S. Ct. at 2524–25. Therefore, McCullen is inapposite.




                                             8
      After applying the Madsen standard adopted in Rew for evaluating a content-

neutral injunction, we conclude that the TRO/HRO issued pursuant to section 609.748,

subdivisions 4, 5, does not burden more speech than necessary to serve a significant

government interest in protecting individuals from unwanted contacts where there is a

demonstrated history of harassing conduct.

      Affirmed.




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