                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1811

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                 Joel Thomas Samuelson,
                                        Appellant.

                                  Filed October 31, 2016
                                         Affirmed
                                      Johnson, Judge

                              Kandiyohi County District Court
                                  File No. 34-CR-14-876

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         Joel Thomas Samuelson was found guilty of violating a harassment restraining

order. On appeal, he argues that his conviction should be reversed on the ground that the
harassment restraining order violated his constitutional right to travel. We conclude that

Samuelson is precluded from challenging the constitutionality of the harassment

restraining order in this criminal case. Therefore, we affirm.

                                         FACTS

       In July 2013, W.C. and R.C. petitioned the Kandiyohi County District Court for a

harassment restraining order (HRO) against Samuelson. See Minn. Stat. § 609.748 (2012).

Their petition alleged that Samuelson threatened them on several occasions at their home

in Swift County and at their lake cabin in Kandiyohi County. The district court issued an

ex parte temporary HRO, which, among other things, prohibited Samuelson from being

within 1,000 feet of W.C.’s and R.C.’s home or lake cabin for two years. The ex parte

temporary HRO included the following notice: “Respondent can ask the court to change or

vacate the Restraining order by filing a Request for Hearing within 45 days of the date of

this Order.” Samuelson did not request such a hearing.

       In August 2014, W.C. and R.C. observed Samuelson in a vehicle at the intersection

of state highway 23 and county road 32, which is between New London and Spicer. That

intersection is approximately 300 feet from the nearest boundary of the property on which

W.C.’s and R.C.’s lake cabin is located, on the shore of Green Lake.

       The state charged Samuelson with violating an HRO, in violation of Minn. Stat.

§ 609.748, subd. 6(c). In January 2015, Samuelson moved to dismiss the complaint on the

ground that the HRO was invalid because it violated his constitutional right to travel. The

district court denied Samuelson’s motion for two independent reasons. First, the district

court determined that Samuelson’s failure to challenge the constitutionality of the HRO in


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the case in which it was issued precludes him from asserting such a challenge in a

subsequent criminal case. Second, in the alternative, the district court determined that the

HRO does not violate Samuelson’s constitutional right to travel because the state’s

legitimate interest in protecting W.C. and R.C. from harassment justifies the minimal

burden imposed on Samuelson.

       Samuelson stipulated to the prosecution’s case to obtain appellate review of the

district court’s pre-trial ruling. See Minn. R. Crim. P. 26.01, subd. 4. After a court trial,

the district court found him guilty and imposed a sentence of 365 days of imprisonment,

with 275 days stayed for two years. Samuelson appeals.

                                       DECISION

       Samuelson argues that the district court erred by denying his pre-trial motion to

dismiss the complaint. He challenges both bases of the district court’s decision. We begin

by considering his argument that the district court erred by determining that he is precluded

from challenging the constitutionality of the HRO in this case.

       As a general rule, a person against whom an HRO is issued must challenge the

validity of the HRO, if at all, in the case in which the HRO is issued. This rule is illustrated

by State v. Harrington, 504 N.W.2d 500 (Minn. App. 1993), review denied (Minn. Sept.

30, 1993), a case in which the defendants, Harrington and Friberg, were, like Samuelson,

convicted of violating an HRO. Id. at 502. When the HRO was issued, Harrington and

Friberg argued that the HRO violated their First Amendment right to freedom of speech,

but the district court in that civil action rejected the challenge, and Harrington and Friberg

did not appeal. Id. at 501-02. On direct appeal from their subsequent criminal convictions,


                                               3
Harrington and Friberg again challenged the HRO on the ground that it violated their First

Amendment right to freedom of speech. Id. at 502-03. This court noted that Harrington

and Friberg had not challenged the constitutionality of the HRO in an appeal in the case in

which it was issued. Id. at 503. Accordingly, we concluded that Harrington and Friberg

were “precluded from attacking [the HRO] in this subsequent action.” Id.

       Similarly, in State v. Romine, 757 N.W.2d 884 (Minn. App. 2008), review denied

(Minn. Feb. 17, 2009), the defendant was convicted of violating an order for protection

(OFP). Id. at 889 (citing Minn. Stat. § 518B.01, subd. 14(b) (2004)). After the OFP was

issued, Romine filed an appeal but later voluntarily dismissed it. Id. at 888. On direct

appeal from his subsequent criminal conviction, Romine challenged the constitutionality

of the OFP.     Id. at 889.    This court noted that Romine had not challenged the

constitutionality of the OFP in an appeal in the case in which it was issued. Id. at 890. We

reasoned, “As a consequence, the OFP is a final judgment, and ‘the constitutional validity

of the [OFP] stands as law of the case.’” Id. (alteration in original) (quoting Harrington,

504 N.W.2d at 503). Thus, we concluded that Romine could not collaterally attack the

constitutionality of the OFP in a subsequent criminal case concerning a violation of the

OFP. Id.

       This court’s opinion in Romine is based in part on the supreme court’s opinion in

State v. Cook, 275 Minn. 571, 148 N.W.2d 368 (1967), a case in which the defendant was

convicted of driving with a suspended license and sought to challenge the validity of the

underlying suspension in a direct appeal from his conviction. Id. at 571, 148 N.W.2d at

369. The supreme court concluded that Cook “cannot collaterally attack the [suspension


                                             4
order] in an appeal arising out of its violation.” Id. at 571-72, 148 N.W.2d at 369. The

supreme court reasoned that, after his license was suspended, Cook “was entitled to a

hearing in the district court where he had a right to challenge the propriety of” the

suspension order but “failed to pursue that remedy.” Id. at 572, 148 N.W.2d at 369.

          In this case, Samuelson had opportunities to challenge the constitutionality of the

HRO before he was charged with a crime, but he did not do so. The ex parte temporary

HRO advised Samuelson that he could request a hearing within 45 days. See Minn. Stat.

§ 609.748, subd. 4(f).        At such a hearing, Samuelson could have challenged the

constitutionality of the HRO. See, e.g., Harrington, 504 N.W.2d at 501 (noting that district

court ruled that underlying HRO “did not unconstitutionally infringe upon their First

Amendment rights to free speech”). After preserving a challenge to the HRO in the district

court, Samuelson could have raised that issue in an appeal to this court. See Kush v.

Mathison, 683 N.W.2d 841, 843-46 (Minn. App. 2004) (reviewing HRO granted after

contested hearing); Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002) (same).

But Samuelson did not take either of those steps. He did not request a hearing in the district

court within 45 days, and he did not attempt an appeal. As a consequence, the district

court’s ex parte temporary HRO ripened into a final judgment, which is binding on

Samuelson. See Romine, 757 N.W.2d at 890; Harrington, 504 N.W.2d at 503. In light of

this court’s precedent, Samuelson’s failure to successfully challenge the constitutionality

of the HRO in the case in which it was issued is conclusive on that issue. See Cook, 275

Minn. at 572, 148 N.W.2d at 369; Romine, 757 N.W.2d at 890; Harrington, 504 N.W.2d

at 503.


                                               5
       Samuelson contends that the district court’s reasoning is flawed on the ground that

he did not have a right to appeal from the ex parte temporary HRO in the prior case. In

response, the state contends, without citation to caselaw, that the ex parte temporary HRO

was immediately appealable. Samuelson is correct that an ex parte temporary HRO is not

immediately appealable. See Fiduciary Foundation, LLC v. Brown, 834 N.W.2d 756, 761

(Minn. App. 2013), review denied (Minn. Sept. 17, 2013). But Samuelson nonetheless had

a means of obtaining appellate review. He could have requested a hearing pursuant to

section 609.748, subdivision 4(f), in which event a subsequent adverse ruling would have

been an appealable final judgment. See Kush, 683 N.W.2d at 843-46 (reviewing HRO

granted after contested hearing); Beach, 649 N.W.2d at 503 (same). For that reason, this

case is different from State v. Ness, 819 N.W.2d 219 (Minn. App. 2012), in which we

permitted a collateral attack on a pre-trial domestic-abuse no-contact order (DANCO) that

was issued in a prior criminal case because the appellant had no opportunity under the rules

of criminal procedure to appeal immediately after the issuance of that order. Id. at 222-24.

       Samuelson also contends that the district court’s reasoning is flawed on the ground

that a subsequent opinion of this court permitted an appellant in a criminal case to assert a

collateral attack on an OFP that had been issued in a prior civil case. In the case cited by

Samuelson, we considered whether an OFP was unconstitutionally vague and concluded

that it was not, thereby upholding the appellant’s conviction of violating the OFP. State v.

Phipps, 820 N.W.2d 282, 286 (Minn. App. 2012). We considered the appellant’s collateral

attack in Phipps because, as we noted in a footnote, “The state did not argue that Phipps’s

constitutional challenge is barred on the ground that it is an impermissible collateral attack


                                              6
. . . .” Id. at 285 n.1. In this case, however, the issue was raised and considered in the

district court, and the state argued on appeal that Samuelson may not assert a collateral

attack on the HRO. Thus, our opinion in Phipps is not inconsistent with our opinion in

Romine.

       In sum, the district court did not err by determining that Samuelson is precluded

from challenging the constitutionality of the HRO that was issued in a prior civil case. For

that reason, we will not consider the substance of Samuelson’s constitutional challenge.

       Affirmed.




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