Rew v. Bergstrom

Decision Date30 April 2014
Docket NumberNo. A10–2145.,A10–2145.
PartiesIn the Matter of Vanessa Yolanda REW, and o/b/o T.C.B. and D.S.B., Respondent, v. James Allen BERGSTROM, Appellant.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. To extend an order for protection under Minn.Stat. § 518B.01, subd. 6a (2012), there is no requirement that a district court make a finding of domestic abuse.

2. The test articulated in Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), is the appropriate standard to evaluate the constitutionality of a content-neutral injunction that burdens speech.

3. The statutory provision authorizing a district court to extend an order for protection for up to 50 years, Minn.Stat. § 518B.01, subd. 6a, does not facially violate the First Amendment to the United States Constitution or Article I, Section 3 of the Minnesota Constitution.

4. The order for protection's incidental restrictions on the appellant's speech to his ex-wife, the victim of domestic abuse, are permissible under the First Amendment to the United States Constitution and Article I, Section 3 of the Minnesota Constitution.

5. An order for protection that restricts the appellant's contact with his minor children applies only until the children reach 18 years of age.

6. The record and the district court's findings are insufficient to determine whether the restrictions in the order for protection that limit the appellant's contact with his minor children are consistent with the First Amendment to the United States Constitution and Article I, Section 3 of the Minnesota Constitution.

7. The process afforded to the appellant when the district court granted an extension of the order for protection for up to 50 years was sufficient to satisfy the appellant's right to procedural due process.

8. To determine whether a sanction is a civil remedy or criminal penalty for purposes of Article I, Section 10 of the United States Constitution and Article I, Section of the Minnesota Constitution—both of which prohibit ex post facto laws—we adopt the analysis used by the Supreme Court of the United States.

9. An extension of an order for protection for up to 50 years does not implicate the Ex Post Facto Clause of either the United States Constitution or the Minnesota Constitution because it is not a criminal penalty.

10. An extension of an order of protection for up to 50 years does not implicate the prohibition against double jeopardy in either the United States Constitution or the Minnesota Constitution because an individual's double-jeopardy rights are unaffected by remedies granted by a court in litigation between private parties.Thomas A. Gilligan, Jr., Murnane Brandt, Saint Paul, MN, for respondent.

James Allen Bergstrom, Roseville, MN, pro se.

Lori Swanson, Attorney General, Alan I. Gilbert, Solicitor General, Michael Everson, Assistant Attorney General, Saint Paul, MN, for amicus curiae Minnesota Attorney General.

Kristine Lizdas, Minneapolis, MN, for amicus curiae Battered Women's Justice Project.

Rana SA Fuller, Minneapolis, MN, for amicus curiae Battered Women's Legal Advocacy Project.

Elizabeth J. Richards, Beverly Balos, Saint Paul, MN, for amicus curiae Minnesota Coalition for Battered Women.

Michelle L. MacDonald, Athena V. Hollins, MacDonald Law Firm, LLC, West Saint Paul, MN, for amici curiae The Family Innocence Project and Center for Parental Responsibility.

Mary Catherine Lauhead, Saint Paul, MN; and Michael D. Dittberner, Linder, Dittberner & Bryant, Ltd., Edina, MN; and Steven Snyder, Maple Grove, Minnesota, for amicus curiae Family Law Section, Minnesota State Bar Association.

OPINION

STRAS, Justice.

At issue in this case is 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. Over the objections of appellant James Allen Bergstrom, the district court granted an extension of an existing OFP to respondent Vanessa Yolanda Rew, Bergstrom's ex-wife, prohibiting contact between Bergstrom and Rew or their minor children. Bergstrom raises a variety of statutory and constitutional challenges to the OFP. We affirm in part, reverse in part, and remand to the district court for findings regarding whether prohibiting Bergstrom from having any contact with his two minor children is necessary to serve a significant state interest.1

I.

Bergstrom and Rew had been married for 14 years when they dissolved their marriage in 2008. In 2002, 2007, and 2008, following hearings that both Rew and Bergstrom attended, Rew obtained a series of 1–year OFPs against Bergstrom. Each OFP also contained provisions that protected the couple's minor children, T.C.B. and D.S.B. Bergstrom consented to the issuance of each of the three OFPs. In fact, the OFPs stated that Bergstrom understood that they would be “enforced as if there was an admission or finding of domestic abuse.”

The OFPs issued in 2002, 2007, and 2008 provided several forms of relief to Rew and the minor children. First, the OFPs, alone or together with the marital-dissolution decree, provided custody of the children to Rew. Second, the OFPs prohibited Bergstrom from contacting Rew and placed substantial limits on Bergstrom's parenting time. Third, the OFPs created a buffer zone in and around Rew's home that Bergstrom could not enter. The 2002 OFP prohibited Bergstrom from entering Rew's home, and the 2007 and 2008 OFPs prohibited Bergstrom from coming within 120 yards of Rew's home.

The 2008 OFP imposed further restrictions on Bergstrom that were not part of the earlier OFPs. Specifically, it prohibited Bergstrom from coming within 120 yards of either the children's school or a second residence where the children ostensibly received childcare. It also proscribed any contact between Bergstrom and “the two minor children, whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way.” For Bergstrom to regain contact with his minor children through parenting time, the OFP established two conditions: (1) that Bergstrom and the children separately participate in therapy for at least 6 months or “until such time as the therapist deems such therapy no longer necessary”; and (2) that Bergstrom seek and receive court approval for modification of the OFP's parenting-time provisions. In 2009, the district court extended the duration of the 2008 OFP for 1 additional year and reduced Bergstrom's therapy obligation from 6 months to 3 months.

The district court has also convicted Bergstrom of three OFP violations. In 2002, Bergstrom pleaded guilty to a misdemeanor OFP violation that resulted in probation. In 2007, Bergstrom pleaded guilty to a felony charge of knowingly violating an OFP within 10 years of the first of two or more previous qualified domestic-violence-related convictions, Minn.Stat. § 518B.01, subd. 14(a), (d)(1) (2012). The court again placed Bergstrom on probation. At the same time, the court dismissed two other charges brought in the same criminal complaint: a gross-misdemeanor charge of harassment and stalking and a misdemeanor charge of unlawful use of license plates.

In 2008, Bergstrom again pleaded guilty to a felony charge of knowingly violating an OFP within 10 years of the first of two prior qualified domestic-violence-related convictions—the same crime to which he pleaded guilty in 2007. The 2008 conviction arose from evidence that Bergstrom had unlawfully accessed Rew's email account on multiple occasions. The court sentenced Bergstrom to 5 years' imprisonment but stayed execution of the sentence in favor of probation. When Bergstrom violated the terms of his probation in February 2009, the district court revoked the stay and executed Bergstrom's prison sentence. Bergstrom served approximately 8 months in prison. In April 2010, the State charged Bergstrom with felony harassment and another felony OFP violation, but the prosecutor dismissed the charges in June 2010.

In July 2010, approximately 1 month before the extended expiration date of the 2008 OFP, Rew filed an application under Minn.Stat. § 518B.01, subd. 6a (2012), to extend the terms of the 2008 OFP for up to 50 years. Subdivision 6a(a) establishes the criteria for either an extension of an existing OFP or a new OFP after an existing one has expired. The provision states that a court may

extend the terms of an existing [OFP] or, if an [OFP] is no longer in effect, grant a new order upon a showing that:

(1) the respondent has violated a prior or existing order for protection;

(2) the petitioner is reasonably in fear of physical harm from the respondent; (3) the respondent has engaged in the act of stalking within the meaning of section 609.749, subdivision 2; or

(4) the respondent is incarcerated and about to be released, or has recently been released from incarceration.

Minn.Stat. § 518B.01, subd. 6a(a). To extend an OFP for up to 50 years, subdivision 6a(b) requires a court to further find that: (1) the respondent has violated a prior or existing order for protection on two or more occasions; or (2) the petitioner has had two or more orders for protection in effect against the same respondent.”

In Rew's 2010 application to extend the terms of the 2008 OFP for up to 50 years, Rew alleged facts in support of the four criteria in subdivision 6a(a) and the two criteria in subdivision 6a(b). Rew supported the application with an affidavit describing Bergstrom's history of domestic violence, including the behavior underlying the charges against Bergstrom that were dismissed in 2007 and 2010, and Bergstrom's three prior convictions of violation of an OFP.

The district court held an evidentiary hearing on Rew's application. Both Bergstrom and Rew attended the hearing and were represented by counsel. Rew did not testify or call any witnesses. Instead, she established the existence of the 2002, 2007, and 2008 OFPs by placing certified copies of the...

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