Rew ex rel. T.C.B. v. Bergstrom

• Decision Date: 27 December 2011
• Docket Number: No. A10–2145.,A10–2145.
• Parties: In the Matter of Vanessa Yoland REW, and o/b/o T.C.B. and D.S.B., petitioner, Respondent, v. James Allen BERGSTROM, Appellant.
• Court: Minnesota Court of Appeals

812 N.W.2d 832

In the Matter of Vanessa Yoland REW, and o/b/o T.C.B. and D.S.B., petitioner, Respondent,

v.James Allen BERGSTROM, Appellant.

No. A10–2145.

Court of Appeals of Minnesota.

Dec. 27, 2011.

Syllabus by the Court

1. An extension of an order for protection (OFP) for up to 50 years does not violate the First Amendment.

2. The extension of an OFP restraining appellant from contacting respondent or his children for up to 50 years does not violate appellant's right to due process.

3. An extension of an OFP based on prior criminal OFP violations does not constitute double jeopardy.

4. An extension of an OFP based on conduct that predates the enactment of Minn.Stat. § 518B.01, subd. 6a(b) (2010), does not violate the ex post facto clauses of the United States and Minnesota Constitutions.

5. An extension of an OFP for up to 50 years does not require a contemporaneous showing of abuse.

Thomas A. Gilligan, Murnane Brandt, St. Paul, MN, for respondent.

Jill Clark, Golden Valley, MN, for appellant.

Elizabeth J. Richards, Minnesota Coalition for Battered Women, St. Paul, MN; Rana Fuller, Battered Women's Legal Advocacy Project, Minneapolis, MN; and Kristine Lizdas, Battered Women's Justice Project, Minneapolis, MN, for amici curiae.

Considered and decided by KALITOWSKI, Presiding Judge; MINGE, Judge; and ROSS, Judge.

OPINION

KALITOWSKI, Judge.

Appellant James Bergstrom challenges the district court's denial of his motion to vacate the 50–year extension of an order for protection (OFP) precluding him from contacting respondent Vanessa Rew or the two minor children of their marriage, arguing that (1) the OFP statute violates the First Amendment because it is a prior restraint on speech; (2) the OFP extension violates appellant's due process rights; (3) basing the extension of the OFP on appellant's prior criminal convictions violates the prohibition on double jeopardy; (4) applying the 50–year extension to appellant based on convictions that occurred before the 50–year extension provision became effective violates the prohibition on ex post facto laws; and (5) the district court erred by interpreting the OFP statute to allow the OFP to be extended without a showing of abuse.

FACTS

Appellant and respondent were married on June 18, 1994, and there are two minor children of their marriage. According to respondent, appellant began physically abusing her three years into the marriage while she was pregnant with the couple's first child. In 2002, respondent alleged that appellant severely beat her, dragged her down stairs, choked and punched her, and hit her head on a faucet, causing her to black out. Appellant pleaded guilty to fifth-degree assault in connection with this incident. On August 22, 2002, respondent obtained an OFP against appellant on behalf of herself and the children. Appellant agreed to the OFP, and no findings of abuse were made. Four months later, respondent was convicted of a misdemeanor violation of the OFP.

Following appellant's convictions, the parties reconciled and remained together until 2007. Respondent later alleged that throughout this period, appellant beat and threatened her. Respondent obtained a one-year OFP on June 5, 2007, again with appellant's agreement, and no findings of abuse. Appellant was subsequently arrested for stalking respondent in a rental car with a camera and binoculars, and on December 17, 2007, he pleaded guilty to violating the OFP. Several months later, respondent reported to police that appellant accessed her e-mail accounts, and on July 3, 2008, appellant again pleaded guilty to violating the OFP.

Before the 2007 OFP was set to terminate in 2008, respondent, with appellant's agreement, obtained a new one-year OFP that included the children. The 2008 OFP temporarily suspended appellant's parenting time until appellant participated in six months of individual therapy or until the district court otherwise modified appellant's parenting time. On January 9, 2009, the OFP was extended from one year to two years, but the parenting-time condition was amended to require that appellant attend only three months of individual therapy.

Throughout most of 2009, appellant was incarcerated for violating the terms of his probation by stalking and harassing another woman and tampering with his electronic monitoring system. He was released from Minnesota Correctional Facility–Stillwater on October 19, 2009. Several months later, on April 22, 2010, appellant was arrested and charged with violating the 2008 OFP after he showed up at respondent's church retreat and refused to leave. Appellant was incarcerated in the Washington County jail until June 16, 2010, when this charge was dropped.

On July 30, 2010, respondent filed a petition to extend the 2008 OFP for 50 years based on appellant's prior OFP violations, respondent's fear of physical harm, appellant's acts of stalking, and appellant's recent release from incarceration. In her petition, respondent alleged incidents of abuse beginning in 1997 and continuing to the present. Included were several incidents of what respondent perceived to be stalking that had taken place after appellant was released from the Washington County jail in June 2010.

At the contested hearing, respondent chose to limit her evidence to appellant's past OFP violations and his recent release from prison in 2009. Appellant proffered his own testimony and that of two other witnesses to contradict some of the factual allegations in respondent's petition. But the district court excluded the proffered testimony as irrelevant because it did not address appellant's previous OFP violations or his recent release from prison.

After considering the evidence, the district court concluded that the statutory criteria for extending the order were satisfied under Minn.Stat. § 518B.01, subd. 6a(a). The district court also extended the duration for 50 years after making the required findings under Minn.Stat. § 518B.01, subd. 6a(b). Under the terms of the extended OFP, appellant is prohibited from (1) committing acts of domestic abuse against respondent or the children; (2) having contact, either direct or indirect, with respondent or the children, “whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way,” except according to the conditions for establishing parenting time; (3) coming within 120 yards of respondent's residence, place of work, or church; (4) coming within 120 yards of the children's school or childcare location; (5) coming within 50 yards of respondent or the children in public places; or (6) possessing, shipping, or transporting any firearm.

Appellant subsequently moved to vacate the order under Minn. R. Civ. P. 60.02, asserting various constitutional and statutory challenges. The district court denied the motion.

ISSUES

1. Was the issuance of a 50–year OFP extension a violation of appellant's First Amendment right to free speech?

2. Was the issuance of a 50–year OFP extension a violation of appellant's due process rights?

3. Does the issuance of a 50–year OFP extension based on appellant's prior OFP violations constitute double jeopardy?

4. Is Minn.Stat. § 518B.01, subd. 6a(b), an unconstitutional ex post facto law when the extension is based on OFP violations that predated enactment of the 50–year extension provision?

5. Did the district court err in ruling that Minn.Stat. § 518B.01, subd. 6a(b), does not require a showing of abuse?

ANALYSIS

The constitutionality of a statute presents a question of law, which is reviewed de novo. State v. Melde, 725 N.W.2d 99, 102 (Minn.2006). We exercise the power to declare a statute unconstitutional “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).

Under the Minnesota Domestic Abuse Act, any person who has been the victim of “domestic abuse” by a “family or household member” may petition the district court for an OFP. Minn.Stat. § 518B.01 (2010). An OFP may grant the petitioning party a variety of relief, including restraining the abusing party from committing acts of domestic abuse, excluding the abusing party from a shared dwelling, or the petitioner's dwelling, awarding temporary custody and parenting time, and prohibiting the abusing party from contacting the petitioner. Id., subd. 6(a). Violating the terms of an OFP is a criminal offense. Id., subd. 14(a)-(d).

Although an OFP typically may not exceed a period of two years, id., subd. 6(b), at a petitioner's request, the district court may extend the relief in an existing OFP or issue a new order. Id., subd. 6a(a). To do so, a petitioner must show that

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

(2) the petitioner is reasonably in fear of physical harm from 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.

Id. The extension provision states that “[a] petitioner does not need to show that physical harm is imminent to obtain an extension or a subsequent order under this subdivision.” Id.

In 2008, the legislature amended the act to permit such an extension for up to 50 years, if the court finds that the abusing party “has violated a prior or existing order for protection on two or more occasions” or that the petitioner has been issued two or more prior OFPs against the same party. 2008 Minn. Laws ch. 316, § 2, at 1216–17; seeMinn.Stat. § 518B.01, subd. 6a(b). The relief that may be granted under this new provision is limited to restraining the abusing party from committing acts of domestic abuse or prohibiting the abusing party from having any contact with the...