As many Red Herring Alert readers know, I was falsely convicted of 6 felony counts of parental deprivation in September 2016. I was incarcerated for 4 months at the Ramsey County Correctional Facility and sentenced to 8 years of probation.
One of my unconstitutional probation conditions ordered by Judge Karen Asphaug included language that I am not to reference parties involved in this case on any social media.
On July 31st, 2017, I was served with a Temporary Restraining Order for violating my probation condition and referencing the party on Red Herring Alert. On August 28th, 2017, I received a probation violation summons for the same offense.
Temporary Restraining Order
An application for restraining order, filed with the court, provides the victim with temporary protection until a hearing can be held. A temporary restraining order, also referred to as a “TRO,” only becomes effective once an application for a permanent restraining order has been filed with the court and served on the offender. A temporary restraining order offers the victim the same level of protection and a long-term order, but it only requires the victim to provide the court with proof that they are in imminent danger. legaldictionary.net
Temporary orders last only weeks. Judges intentionally keep cases open without a decision as a method of controlling the parties without entering a final judgment. Among other problems, this approach denies worthy petitioners the enforceability of an order recorded in a law enforcement database and denies worthy respondents the ability to appeal. Actions that would otherwise be lawful become potentially criminal.
TIMELINE OF ACTIONS (All hearings were continued at the actual court hearing vs. prior, which means that I had to drive 1 1/2 hours each way for all non-hearings.)
07/31/2017 Served with a Temporary Restraining Order (Signed by Judge Asphaug who presided over our criminal trials).
08/18/2017 I filed a motion to vacate the false Temporary Restraining Order
08/29/2017 Served with a Probation Violation Summons for blog posts
09/11/2017 Served with Summons and Complaint for Harassment Restraining Order violations.
09/28/2017 Contested Revocation Hearing (Rescheduled by Judge Asphaug to 11/02/2017) Judge Asphaug indicated the validity of the restraining order needed to be determined prior to the probation violation hearing. Prosecutor: Kathryn Keena, Assistant Dakota County Attorney
09/29/2017 Hearing Motion to Vacate the Temporary Restraining Order (At this hearing, Judge Kanning rescheduled the motion hearing to 12/13.2017 to allow time for opposing counsel to prepare. Judge Kanning indicated that the validity of the temporary restraining order needs to be determined prior to the disposition of the related criminal case because a ruling on the validity of the temporary restraining order may have a direct impact on that related criminal case.) I would think so.
10/17/2017 Arraignment for Restraining Order Violation (9:00 AM) (Judicial Officer Mayer, Michael J.)Result: Held (Criminal Prosecutor Elliott Knetsch)
11/02/2017 Contested Revocation Hearing (Rescheduled by Judge Asphaug due to rescheduling of the motion hearing to vacate.)
12-13-2017 Motion to Vacate Hearing Judge Kanning continued the hearing per Attorney Lisa Elliott’s request to allow more time to complete collection of evidence. In the Order for Continuance, Kanning wrote, “Further hearings on Respondent’s motion shall be continued to May 16th, 2018, or until such other date following final adjudication of the pending criminal charges against Respondent arising out of the alleged violation of the Restraining Order.” (So now instead of determining the validity of the TRO prior to the criminal trial, they’re going to just have the criminal trial and the motion hearing to vacate after the trial.)
01/09/2018 Pre-trial hearing for Restraining Order violation Judge Asphaug Reset by Court to 04/30/2018 Reset by Court to 07/16/2018
03/01/2018 Emergency Motion Hearing to remove blog posts. Unconstitutional purge conditions were met and more were added by Attorney Lisa Elliott. Conditions again were met however, Lisa Elliott filed an Affidavit of Noncompliance and Request for Arrest Warrant on 03/09/2018 which was signed by retired Judge Kathleen Gearin on 03/14/2018. I filed an Affidavit of Compliance on 03/17/2018 and was arrested on 03/18/2018. I was brought to Stearns County Jail and transported to Dakota County Jail on 03/19/2018. I was transported to Ramsey County Correctional Facility at 5:00 PM and transported back to Dakota County on 3/20/2018 for a hearing with Judge Christopher Lehmann. He stated that I would have to wait to be heard in front of Judge Gearin on 03/21/2018. I was transported back to Ramsey County after spending the day in a holding cell. On 03/22/2018 hearing took place with Judge Gearin. Judicial order included immediate release from custody, constructive contempt of court sentence stayed until March 26th, at 4:30 p.m. in order to allow continued removal of posts. If items are not removed by 4:30 p.m. on March 26th, I was required to turn myself in to the Dakota County Correctional Facility for women on March 27th, at 9:00 a.m. to serve the remaining 26 days. (Some of the images and articles were hot linked from the Red Herring Alert site to other sites and data remained on the web for a short time before they were purged from the servers. I had no control over the cached data.)
05/16/2018 Motion Hearing to Vacate TRO. Attorney Lisa Elliott indicated that my motion to vacate was not filed within the 20 day timeline and could not be reviewed. Judge Kanning indicated that he would tee up an order to appeal the Restraining Order vs. hearing it at the District Court level.
The following objections were provided to the District Court: PETITIONERS OFFER NO EVIDENCE OF HARASSMENT – There is no allegation or evidence of direct contact by Respondent. Instead, the focus of this action is a number of blog posts written by Respondent that are either about
Petitioners or at least mention Petitioner in some way.
The blog posts by themselves cannot meet this definition, and to the extent the Court believes this definition can be expanded to included blog posts, then the statute must necessarily run afoul of the First Amendment
THE BLOG POSTS ARE NOT HARASSMENT AS DEFINED UNDER LAW
THE ORDER IS AN UNCONSTITUTIONAL PRIOR RESTRAINT – Because there are no findings of unprotected speech making up the conduct of Respondent and because the Order prohibits a large category of protected speech, the Order is an unconstitutional prior restraint.
THE MINNESOTA HRO STATUTE, IF APPLIED TO SITUATIONS LIKE THIS WOULD VIOLATE THE FIRST AMENDMENT
04/30/2018 Jury Trial (9:00 AM) (Judicial Officer Gearin, Kathleen R.) Reset by Court to 07/23/2018 -Only to be heard by Judge Gearin-
06/06/2018 Probation Revocation Hearing Reset by Court to 09/05/2018
09/05/2018 Contested Revocation Hearing (9:00 AM) (Judicial Officer Asphaug, Karen)
The contested revocation hearing in file 19HA-CR-15-4227 has been rescheduled to September 5, 2018 at 9:00 a.m. at the Dakota County Judicial Center in Hastings, MN. The hearing for this Wednesday, June 6 has been cancelled. The matter had to be rescheduled due to a continuance in the criminal case 19AV-CR-17-16709. Your trial in that matter is set for July 23, 2018.
Law Clerk to the Honorable Karen Asphaug
Stay tuned for updates!