Sarah B. Janecek, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1885

Sarah B. Janecek, petitioner,
Appellant,

vs.

Lee Aaron Rosenthal,
Respondent.

Filed June 12, 2017
Reversed and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CV-16-14779

Joseph P. Tamburino, Caplan & Tamburino Law Firm, P.A., Minneapolis, Minnesota (for
appellant)

Todd R. Haugan, Haugan Law Office, Ltd., Wayzata, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Sarah Beth Janecek challenges the district court’s denial of her petition
for a harassment restraining order against her neighbor, respondent Lee Aaron Rosenthal.
Because the d istrict court err ed by dismissing Janecek’s petition without holding an
evidentiary hearing, we reverse and remand.
2

FACTS
Sarah Beth Janecek and Lee Aaron Rosenthal have been next -door neighbors for
several years in Minneapolis’s Lowry Hill neighborhood, where they share a driveway. In
recent years, the relationship became ac rimonious and deteriorated to the point where
Rosenthal installed several security cameras o utside of his home , pointing toward
Janecek’s home . Janecek filed a petition for an ex parte harassment restraining order
(HRO) against Rosenthal in October 2016 . In her petition and affidavit, Janecek alleges
that Rosenthal has constantly videotaped her home 24 hours a day for the last six years.
The petition states:
Mr. Rosenthal has had multiple cameras attached to his home
pointing toward my home in an extraordinary effort to record
me and my actions on a daily basis. None of the cameras are
aimed at a point of entrance into the Rosenthal home. Instead,
the cameras are aimed toward my property and record me on
both public and my private property.

Janecek then lists the various areas of her home that are videotaped, noting that
“additionally, I have seen on occasion the cameras pointed toward the windows of my
home. This has caused me to keep my shades and curtains closed. I feel that I have no real
sense of privacy . . . .” The petition alleges that Rosenthal reviews all the videos and uses
them to try and press criminal and civil charges against her .1 Janecek attached to her
petition three pages from a trial transcript in which Rosenthal was cross -examined about

1 In a separate but related pending appeal before this court regarding the parties’ ongoing
conflict, Janecek challenges the sufficiency of the evidence to sustain her conviction of
disorderly conduct and littering for tipping over Rosenthal’s trash cans . See State v.
Janecek, No. A16-1838.
3

his cameras and recording practices , including his practice of forwarding videos to law
enforcement.
In her petition for an HRO, Janacek asks the court to issue an ex parte restraining
order that includes a directive to Rosenthal to stop video recording her home. She also
petitions that “if the court denies my request for a restraining order because the court finds
there is no immediate and present danger of harassment, then . . . I want . . . a court hearing.”
The district court dismissed Janecek’s petition for lack of merit, concluding that
Rosenthal’s conduct did not constitute harassment. There was no hea ring on the matter.
Janecek appeals.
D E C I S I O N
This court reviews the district court’s decision whether to grant a harassment
restraining order for an abuse of discretion. Kush v. Mathison , 683 N.W.2d 841, 843
(Minn. App. 2004), review denied (Minn. Sept. 29, 2004). An abuse of discretion occurs
if the district court makes findings that are unsupported by the evidence or improperly
applies the law. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009). While this court
reviews a district court’s factual findings for clear error, when the case presents a question
of law, this court reviews the district court’s decision de novo. Peterson v. Johnson, 755
N.W.2d 758, 761 (Minn. App. 2008).
Harassment restraining orders allow a person who has been threatened, harassed, or
stalked on two or more occasions to seek an order prohibiting contact. Minn. Stat.
4

§ 609.748 (2016).2 To do so, an individual must file a petition that includes the names of
the alleged victim and respondent and facts sufficient to show that the respondent engaged
in harassment. Id., subd. 3. Courts are directed to provide simplified forms and assistance
to help with petition filing and to “advise the petitioner of t he right to request a hearing.”
Id. The statute further provides that , upon receipt of a petition and request for a hearing ,
“the court shall order a hearing.” 3 Id. But nothing in the harassment statute requires “a
hearing on a matter that has no merit.” Id.
Because the district cou rt dismissed Janecek’s petition without a hearing, based
upon its lack of merit, the question before us is whether the petition sets forth a legall y
sufficient claim for relief; in short, could the alleged facts, if proven, constitute harassment
under Minn esota Statute s section 609.748? We review this legal question de novo.
Peterson, 755 N.W.2d at 761.
In examining this issue, as in our review of a motion to dismiss pursuant to ru le
12.02 of the Minnesota Rules of Civil Procedure, we consider only the facts alleged in the
petition. We accept those facts as true and construe all reasonable inferences i n favor of
the petitioner. Bodah v. Lakeville Motor Express, Inc. , 663 N.W.2d 550, 553 (Minn.
2003).4 When doing so, in order to decide whether the petition sets forth a legally sufficient

2 HROs are also available to individuals who have experienced a single incident of physical
or sexual assault, stalking, or nonconsensual communications of sexual images. Minn.
Stat. § 609.748, subd. 1(a)(1).
3 The court may also order a tem porary restraining order pending the hearing when the
petition alleges “an immediate and present danger of harassment.” Minn. Stat. § 609.748,
subd. 4.
4 We observe that, while the statute governing the issuance of HROs, Minnesota Stat ute
section 609.748 is located in the chapter containing criminal statutes, HRO proceedings
5

claim for relief, we first consider the language of the harassment statute itself. We then
turn to our previous interpretations of the statute , as well as guidance from caselaw
addressing the reasonable expectation of privacy. Applying the statutory language and the
principles behind the right to privacy, we conclude that the petition sets forth a narrow
claim for relief under the harassment statute. Thus , the district court erred in not holding
a hearing.
Harassment, as defined by Minnesota Statute section 609.748, 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). We note that the plain language of the statute defines
harassment to include repeated intrusive or unwanted acts intended to have a substantial
adverse effect on the privacy of another. Id. And this court has upheld the constitutionality
of the harassment statute in the face of a First Amendment challenge, focusing on the state’s
ability to regulate conduct th at invades another’s privacy. Dunham v. Roer, 708 N.W.2d
552, 565 (Minn. App. 2006), review denied (Minn. March 28, 2006). In doing so, the court
stated:
Thus, the language of the statute is directed against
constitutionally unprotected “fighting words” likely to cause
the average addressee to fight or protect one’s own safety,
security, or privacy; “true threats” evidencing an intent to
commit an act of unlawful violence agains t one’s safety,
security or privacy; and speech or conduct that is intended to

are civil in nature. Dunham v. Roer, 708 N.W.2d 552, 568 (Minn. App. 2006) (noting that
HRO matters are civil in nature), review denied (Minn. March 28, 2006).
6

have a substantial adverse effect, i.e., is in viola tion of one’s
right to privacy.

Id. at 566 (emphasis added) (quotations omitted).
Much of Janecek’s petition addresses Rosenthal’s videotaping of areas that, while
perhaps irritating, do not implicate privacy concerns, such as recording pictures of her front
sidewalk and the boulevard where she sets out her trash. But the allegation that she has
seen cameras pointed toward the windows of her home, leading her to fear being
videotaped within her home, raises the question whether Rosenthal’s videotaping of these
areas amounts to intrusive or unwanted acts intended to have a substantial adverse effect
on Janecek’s privacy—in short, whether these are acts of harassment.
We find no direct and binding authority concerning whether videotaping a home, in
the fashion alleged by Janecek, rises to the level of an intentional violation of privacy
protected by the harassment statute. The district court, in dismissing the case, relied upon
an unpublished decision of this court, Johnson v. Michels Prop. Grps., LLC, No. A09-2315,
2010 WL 3545820, at *1 (Minn. App. Sept. 14, 2010). In Johnson, one neighbor installed
video cameras for security purposes following numerous acts of vandalism, to the dismay
of neighbors who sought an HRO. Id. The neighbors testified that some of the cameras
were directed toward private areas of their home and that the continuous videotaping
substantially affected their privacy. Id. The district court denied the HRO after a hearing
and this court affirmed, noting that the cameras recorded events that an observant neighbor
could view. Id. at *2.
7

But we note that our unpublished decisions are not precedential, Minn. Stat.
§ 480A.08, subd. 3 (2016). Further, other unpublished opinions that address taking videos
and pictures in the harassment setting reach differing results , depending on the facts and
circumstances of those cases . See, e.g., Safstrom v. Morin , No. A15 -1879, 2016 WL
4954541, at *3 (Minn. App. Sept. 19, 2016) (upholding district court’s HRO, issued after
a hearing, based upon intrusive yelling incidents, but not filming , which “without more,
does not constitute harassment as described in the statute” ); Sammon v. Halvorson ,
No. A15-1261, 2016 WL 1175197 , at *1 -*2 (Minn. App. Mar. 28, 2016) (upholding
district court’s HRO based on finding that taking photos of a family in a pasture amounted
to objectively unreasonable conduct in the circumstances ); Vancamp v. Vancamp ,
No. A14-1926, 2015 WL 2468970 , at *4 (Minn. App. June 1, 201 5) (upholding HRO
based, in part, on the factual finding that taking pictures established an act of harassment).
In all of these cases, the district court held a hearing to take testimony from the parties to
gain an appreciation for the context of the dispute.
Because Minnesota precedent has not addressed this precise issue in the harassment
context, we turn to persuasive authority from the principles of privacy in tort recognized in
Lake v. Wal -Mart Stores, Inc ., 582 N.W.2d 231 (Minn. 1998). In Lake, the Minnesota
Supreme Court recognized three torts constituting invasion of privacy: intrusion upon
seclusion, appropriation, and publication of private facts. Id. at 235. Relying upon the
Restatement (Second) of Torts, § 652B (1977), the supreme court held that intrusion upon
seclusion occurs when one “intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would
8

be highly offensive to a reasonable person. ” Id. at 233 (quotation omitted). Quoting the
seminal law review article by Samuel Warren and Louis Brandeis, the court noted that
“‘the right to life has come to mean the right to enjoy life —the right to be let alone.’” Id.
at 234 (quoting Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193, 193 (1890)). And this right is, the supreme court noted, at the heart of our liberty.
Id. at 235.
While the facts in Lake differ from those before us ,5 the Restatement upon which
the supreme court relies further describes the “intrusion upon seclusion” central to the right
to privacy adopted in Lake. In doing so, the Restatement notes that “[t]he intrusion may
be . . . by the use of the defendant’s senses, with or without mechanical aids, to oversee or
overhear the plaintiff’s private affairs, as by looking into his upstairs windows with
binoculars.” Restatement (Second) of Torts, § 652B cmt. b (1977).
Relying upon this Restatement provision, the Supreme Judicial Court of
Massachusetts recently held that homeowners stated a cause of action for invasion of
privacy where they alleged that a neighbor, in order to cause them extreme discomfort,
installed vid eo cameras directed at their property that recorded on a continuous basis,
including recording through the windows of their home. Polay v. McMahon , 10 N.E.3d
1122, 1125 (Mass. 2014). The court stated that, even whe n an individual’s conduct is

5 In Lake, two friends gave five rolls of film to a Wal -Mart photo lab to develop vacation
pictures, which included a nude photograph. 582 N.W.2d at 232 -33. After learning that
store employees had circulated the photograph in the community, the friends filed a lawsuit
alleging invasion of privacy. Id. The district court granted Wal-Mart’s motion to dismiss,
concluding that invasion-of-privacy torts were not yet recognized in Minnesota. Id.
9

observable by the public, that person “still may possess a reasonable expectation of privacy
against the use of electronic surveillance that monitors and records such conduct for a
continuous and extended duration.” Id. at 1127.
And, while not controlling in th is civil matter, w e further observe that the Fourth
Amendment has long upheld the sanctity of the home, generally requiring a search warrant
for the interior of the home except where exigent circumstances exist. Kyllo v. United
States, 533 U.S. 27, 31 -34, 121 S. Ct. 2038, 2042 -43 (2001). In fact, the Supreme Court
has held that not only the home itself , but the area immediately surrounding the home,
including the front porch, is part of the home because it “is intimately linked to the home,
both physically and psychologically .” Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013)
(quotation omitted) ; see State v. Luhm , 880 N.W.2d 606 , 616 -17 (Minn. App. 2016)
(describing a home’s curtilage for Fourth Amendment purposes).
Addressing the legality of videotaping through a neighbor’s window, Rosenthal
contends that the district court did not err in dismissing the petition because the only
evidence for the allegation that his cameras are pointed into her windows is Janecek’s “self-
serving” petition and attachment. But our standard of review requires us to assume that
the statements in the petition , and any reasonable inferences from them, are tru e for
purposes of determining whether a petition is “without merit.” Bodah, 663 N.W.2d at 553.
When a petition states a legally sufficient claim for relief, a hearing must be held.
Given the assessment of the Restatement of Torts that surveillance may form the
basis for an invasion -of-privacy tort claim and the historically protected status of the
interior of the home, we conclude that Janecek’s petition sets forth a legally cognizable
10

claim of harassment when it claims that video cameras, which were cons tantly recording,
were pointed at the windows of her home. The right to privacy, as the supreme court noted
in Lake, is an integral part of our liberty. 582 N.W.2d at 235. With this in mind, and taking
the allegations in the petition as true, the district court should properly have held a hearing
to determine whether , in c ontext, the videos amounted to “objectively unreasonable
conduct” intended to have a substantial adverse impact on Janecek’s privacy. See Kush,
683 N.W.2d at 844 (considering the broader context in which the alleged harassment took
place).
We therefore reverse the district court’s dismissal of the petition and remand for
further proceedings.
Reversed and remanded.