Jay Thomas Nygard, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2072

Jay Thomas Nygard,
Appellant,

vs.

Patrick Walsh,
Respondent.

Filed July 20, 2020
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CV-19-10828

Jay T. Nygard, Orono, Minnesota (pro se appellant)

Patrick J. Walsh, Orono, Minnesota (pro se respondent)

Considered and decided by Bryan, Pres iding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jay T. Nygard challenges the district court’s decision to deny his petition
for a harassment restraining order (HRO) against respondent Patrick Walsh. Nygard argues
that the district court (1) failed to appropriately take into account his post-traumatic stress
disorder (PTSD) when determining whether there had been harassment, (2) disregarded his

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evidence, (3) violated his constitutional right to due process, and (4) inappropriately cited
unpublished decisions. We affirm.
FACTS
This dispute is between two neighbors in Orono. As the district court notes in its
findings, the mutual distrust and animosity between the par ties is apparent. Nygard, in
particular, has made numerous appeals to this court, including in two previous lawsuits
against Walsh. See Nygard v. Walsh , No. A15-0272, 2015 WL 6829840 (Minn. App.
Nov. 9, 2015) (arising from a dispute over the boundary line betw een the Nygard and
Walsh properties), review denied (Minn. Jan. 27, 2016); Nygard v. Walsh, No. A14-0011,
2014 WL 7236977 (Minn. App. Dec. 22, 2014) (affirming dismissal of Nygard’s lawsuit
against Walsh for defamation).
At issue in this action are three surveillance cameras that Walsh and his wife, Nancy
Walsh,1 installed on their property. The district court found that the Walshes installed the
cameras on their home and direct ed them primarily toward different sections of their
property.2 The cameras’ field of view does include some parts of Nygard’s yard, and one
of the cameras views the bottom of Nygard ’s house, but it observes no windows. The
cameras record images, which are stored re motely. If no one saves the images, they are

1 Nancy Walsh is referred to as Ms. Walsh throughout the opinion to distinguish her from
respondent Walsh.

2 The district court made its findings base d on testimony from the Walshes, which it
deemed credible.

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deleted after 48 hours. The Walshes testified that they installed the cameras after multiple
incidents involving Nygard.
After the Walshes installed the cameras, Nygard petitioned the district court for an
HRO. Nygard sought a no-contact order and an order preventing Walsh from recording
him on his property. After a hearing on the matte r, the district court dismissed Nygard’s
petition.
This appeal follows.
D E C I S I O N
We review a district court’s decision on whether to grant an HRO for an abuse of
discretion. Kush v. Mathison , 683 N.W.2d 841, 84 3 (Minn. App. 2004), review denied
(Minn. Sept. 29, 2004). We review factual findings for clear error, giving due regard to the
district court’s credibility determinations. Id. at 843-44.
A district court may issue a restraining order if it has “reasonable grounds to believe
that the respondent has engaged in harassme nt.” Minn. Stat. § 60 9.748, subd. 5(b)(3)
(2018). Harassment 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 intended target .” Minn. Stat. § 609.748, subd . 1(a)(1) (2018). “[S]ection
609.748 requires both objectively unreasonable conduct or intent on the part of the harasser
and an objectively reasonable belief on the part of the person subject to harassing conduct.”
Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28,
2006).

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Nygard makes a number of arguments agai nst the district court’s decision, which
we address in turn.
Objective standard of harassment
Nygard makes two arguments regarding th e “reasonable grounds” element of the
HRO statute. See Minn. Stat. § 609.748, subd. 5(b)(3). He first asserts that his PTSD
diagnosis is, in fact, an objective condition a nd that the district court erred by failing to
consider it when assessing whether Walsh harassed him. He then argues, in the alternative,
that the standard under the HRO statute is subjective, not objective.
In its order, the district court stated that “[Nygard’s] particular emotional
vulnerability is not disputed, but this is a subjective feeling and not an objective action by
[Walsh.]” Nygard contends that the district court inappropri ately dismissed his PTSD as
subjective. And he argues that the district court inappropriately prevented him from
introducing testimony from his therapist to demonstrate his “objective diagnosis of PTSD
. . . , what [his] objective symptoms are and how severe the [Walshes’] actions objectively
affected [him].”
Nygard testified to his PTSD diagnosis and to the fact that he finds the cameras
particularly distressing, and his testimony was not disputed. Testimony from his therapist
therefore would have been redundant, and it was reasonable for the district court to exclude
it. See Minn. R. Evid. 403 (“[E]vidence may be excluded if its probative value is
substantially outweighed . . . by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”).

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But more importantly, the district court did not misapply the objective standard
under the harassment statute. The objective standard is “[a] legal standard that is based on
conduct and perceptions external to a particular person.” Black’s Law Dictionary 1624
(10th ed. 2014). The subjective standard is “[a] legal standard that is peculiar to a particular
person and based on the person’s i ndividual views and experiences.” Id. Here, by
describing Nygard’s sensitivity to cameras as a “subjective feeling,” the district court was
noting that Nygard’s PTSD was something sp ecific to Nygard and his perceptions; the
district court was not stating that PTSD wa s not a legitimate medical condition. To issue
an HRO, the district court had to assess the conduct and perceptions external to Nygard’s
particular perceptions. Nygard’s PTSD, even though acknowledged by the district court,
was not part of an objective assessment of the impact of the cameras and their placement.3
Nygard argues that the district court in correctly considered only the placement of
the security cameras, not the effect of the placement of the security cameras. But the district
court described the issue in terms of the pl acement of the cameras because the placement
provides an objective means of determining not only the reasonableness of the Walshes’
conduct in installing the came ras but also the reasonablene ss of their effect on Nygard.
Which areas of the yards the cameras are recording, how long the cameras store the
information, and whether the cameras can see any of the wi ndows of Nygard’s house are
all factual considerations external to the perc eptions of a single person. The district court

3 Nygard makes a policy argument that the HR O statute should also protect individuals
who suffer from PTSD, but he provides no legal authority for why PTSD should be
considered under an objective standard.

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applied an objective standard in considering the effect of the cameras on Nygard, rather
than a subjective standard that considered his particular sensitivity to cameras.
Nygard alternatively contends that the objective standard applied by the district
court is the wrong standard, arguing that th e language of secti on 609.748 “is clearly
subjective, especially in this instance.” He asserts that “[w]hat might be a substantial
adverse effect for one person . . . might not be for another” a nd that “[t]here really is no
way to specifically quantify that phrase.” But the law is clear that the district court may
issue an HRO only if it has “reasonable grounds” to believe harassment has occurred and
that whether “reasonable grounds” exist is an objective, not a subjective, analysis. Minn.
Stat. § 609.748, subd. 5(b)(3); see also Dunham, 708 N.W.2d at 567 (“[T]he [HRO] statute
. . . requires a court to find that there are reasonable, rather than merely subjective, grounds
to believe that the accused engaged in harassment”). The district court correctly applied an
objective standard to Nygard’s petition.
Factual findings
Next, we address Nygard’s challenges to th e district court’s factual findings. He
complains that the district court found credible and relied on the Walshes’ testimony about
their camera system, even though the Walshes presented no physical evidence to support
their testimony. A district court determines facts in part by taking testimony and assessing
the credibility of the witnesses. See Kush, 683 N.W.2d at 843-44. Nygard cites no authority
for his argument that there must be physical evidence supporting a witness’s assertion
before a district court can find the witness cred ible. He also points to no evidence in the
record that shows that the district court incorrectly re lied on the Walshes’ description of

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their camera system.4 Nygard, in fact, admitted at the hearing that he had “no idea” about
how the camera system worked or whether it was recording. Nygard has failed to show that
the district court clearly erred in its factual findings about the Walshes’ camera system.
Nygard also contends that the district c ourt “failed to investigate [his] claims of
public provocation.” He contends that Walsh repeatedly called him an offensive name but
that the district court “glossed over” his c oncerns of verbal abuse. His argument is
unavailing for several reasons.
First, Nygard, as the party seeking an HRO, had the burden of proof. See C.O. v.
Doe, 757 N.W.2d 343, 352 (Minn. 2008) (stating that, when a statute does not specify the
burden of proof, “[t]he general rule is that the burden of proof rests on the party seeking to
benefit from a statutory provision”). The distri ct court was not supposed to “investigate”
his claims; he had to provide evidence to prove them.
Second, Nygard’s general allegations of name calling and provocation do not rise
to the level of statutory harassment, even if he is particularly upset by such names. See
Kush, 683 N.W.2d at 844 (“[I]nappropriate or argumentative statements alone cannot be
considered harassment.”); see also Dunham , 708 N.W.2d at 567 (“[S]ection 609.748
requires . . . an objectively reasonable belief on the part of the person subject to harassing
conduct.”).

4 Nygard claims that the district court prevented him from entering police reports and court
documents into evidence. But Nygard did not e xplain to the district court, and does not
explain on appeal, how those documents are re levant to the Walshes’ camera system.
Instead, it appears that he want ed to enter them to show th at “[Walsh] lied” previously
about another incident.

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Third, the district court accurately described the testimony when it said that “[t]he
claims by [Nygard] that [Wal sh] engaged in verbal abus e were not specific and not
developed extensively during the hearing.” Nygard described an incident in which Walsh
repeatedly called him a name that he finds particularly offensive, but he provided no factual
details about the incident besides the name calling. The district court’s finding on the matter
was not clearly erroneous.
Due process
Nygard makes broad allegations that his constitutional rights, particularly his right
to due process of law, were violated. He claims that the violations occurred in two forms:
(1) when the district court interrupted hi s questioning of Ms. Walsh and (2) when the
district court considered certain aspects of the history between Nygard and the Walshes.
The disputed exchange between Nygard and Ms. Walsh involved him questioning
her about why the Walshes had installed the cameras on their propert y. After Ms. Walsh
explained why one of the cameras was point ed at their mailbox, Nygard began using
compound, leading questions in an attemp t to extract some kind of admission from
Ms. Walsh. Ms. Walsh kept denying details inserted by Nygard into his questions, until the
district court, recognizing that the questioning was going nowhere, told Nygard to move
onto something else. The district court gave Nygard ample opportunity to cross-examine
Ms. Walsh and did not violat e Nygard’s due-process rights by stopping unproductive
questioning.
As to his second claim of a due-process viol ation, Nygard argues that the district
court violated his rights when, in its order, it used the “regardless of the relationship

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between the actor and the intended target” la nguage of section 6 09.748 “to ignore the
history of the actor, but then include the history of the intended target.” Nygard claims that
the district court ignored the statute when it noted that “the cameras were installed in
response to a long history of st rife between the parties.” Nygard then states: “Clarifying
[section] 609.748 to clearly spell out that the history of the intended target is to be ignored
while the history of the actor can be reviewed, or to be clear that the history of both is to
be ignored in their entirety is a must.”
Nygard provides no legal au thority connecting the “regardless of the relationship”
language of section 609.748 to a prohibition on a court’s c onsideration of the history
between two parties when considering an HRO petition.5 Instead, the plain language of the
statute indicates that courts, when assessin g whether conduct is harassment, are not to
consider the relationship status between th e parties—for example, whether there is a
familial relationship between the parties. See Minn. Stat. § 609.748, subd. 1(a)(1). Here,
the cameras were the subject of the dispute, so it was not inappropriate for the district court
to describe, especially in the neutral manner th at it did, the impetus for the installation of
the cameras. The district cour t did not violate Nygard’s due-process rights by briefly
mentioning the history of the relationship between Nygard and the Walshes in its order.

5 It is not really clear how Nygard’s interpretation would even work in practice. In order to
grant an HRO, the district court needs to consider past conduct—the “history”—of the
parties towards one another.

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Unpublished case law
Lastly, Nygard takes issue with the distri ct court citing unpublished opinions from
this court in its order. Nygard contends th at the law requires parties citing unpublished
opinions to provide a copy of the unpublishe d opinion to all other counsel under Minn.
Stat. § 480A.08, subd. 3, (2018). But this rule applies to parties in a case, not the court. A
district court may cite unpublished opinions for their persuasive value, even if those
opinions are not binding as precedent on the district court. Donnelly Bros. Constr. Co. v.
State Auto Prop. & Cas. Ins. Co. , 759 N.W.2d 651, 659 (Min n. App. 2009) (concluding
that the district court did not inappropriately cite an unpublished case because it was used
for its persuasive, not precedential, value). The district court did not err.
Affirmed.