Minnesota Supreme Court Holds 50 Year Order of Protection Does Not Violate The First Amendment and Other Constitutional Guarantees

The Minnesota Supreme Court held that the district court could extend an order of protection in favor of a victim of domestic abuse for up to 50 years, rejecting the argument that such a lengthy order of protection violated the First Amendment and other constitutional guarantees. The case, Rew v. Bergstrom, A10-2145 (Minn. April 30, 2014), centered around Bergstrom, an ex-husband, who allegedly committed domestic violence against his then-pregnant wife.

Minnesota Statutes Section 518B.01, subdivision 6a(a) provides that an existing order of protection can be extended or a new one issued upon a showing that:

1. The individual has violated a prior or existing order of protection;
2. The petitioner is reasonably in fear of physical harm from the individual;
3. The individual has engaged in stalking under Minnesota criminal law; or
4. The individual was recently incarcerated or is incarcerated and will shortly be released.

The statute also provides that an order of protection can be extended for as long as 50 years, per the provisions of Minnesota Statutes Section 518B.01, subdivision 6a(b), if the court finds that the individual has either (1) violated a prior or existing order of protection two or more times or (2) been the subject of two or more orders for protection.

Ex-Husband the Center of Case

In this case, the district court granted the 50-year extension solely based on evidence that the ex-husband had been recently released from prison and had violated prior orders for protection after holding a hearing that both parties attended with counsel representing them. The order of protection barred the ex-husband from coming within 120 yards of the ex-wife’s residence but also added two new locations: her workplace and her church. It also continued the suspension of his parenting time until he succeeds on a motion to restore his parenting time after completing at least three months of therapy and after the children complete six months of therapy. The order also bars him from entering, calling or coming within 120 yards of the children’s school and childcare locations, and sets up a new buffer zone in public places, requiring him to stay at least 50 yards from the ex-wife and children.

The Minnesota Supreme Court held that the statute does not require a finding of domestic abuse before extending an order for protection. The Court also held that the order of protection was not an unconstitutional prior restraint of his speech and therefore was not barred by First Amendment of the United States Constitution, and the free speech protections of the Minnesota state constitution did not bar the extension of an order of protection. The court held that the order of protection does not prohibit an individual from expressing his or her ideas; it merely requires the individual to express them to others than those protected by the order of protection. Thus, the order of protection merely restrained the ex-husband from expressing his views to his ex-wife and children, not anyone else. Further, the order for protection was based on his prior unlawful conduct, not on the content of the message.

The Minnesota Supreme Court held that the prevention of domestic violence and protecting domestic-abuse victims and the members of their households and family are “significant government interests,” and that an order of protection services those significant interests by protecting domestic-abuse victims and members of their household and family from a perpetrator of domestic violence, who may present dangers to them. It also found that a lengthy order of protection, even up to 50 years, provides victims of domestic violence with a long-term remedy that avoids the need for them to appear in court repeatedly and see their abusers. The court noted that the statute only subjected “the most persistent abusers” to the 50-year order of protection.

Order of Protection Did Not Burden Speech

The court found that there was sufficient evidence that the 50-year order for protection did not burden more speech than necessary to serve the state interest in protecting domestic violence victims; that evidence included violating prior orders for protection, pushing his ex-wife down the stairs when she was eight-months pregnant, and threatening not to return the children after visitation, among other things. The court found that his agreement to the issuance of an order of protection in 2008 established an admission that he committed domestic abuse against her.

Because the order repeatedly referred to minor children, the court interpreted the order to apply only until each child turns 18 and is no longer a minor. Because the court found was no evidence he committed domestic abuse against the minor children apart from pushing the pregnant mother down the stairs, the court reversed the lower court decision and remanded the case to the district court for findings as to whether the provisions regarding Bergstrom’s speech to his children serve a significant state interest. Chief Justice Gildea dissented from this part of the opinion; he would have held that the order of protection restricting contact with the children until they turned 18 was valid, noting evidence of threats to the children as well as violating orders for protection involving them. He noted that the threat not to return the children was a threat to kidnap them.

The Minnesota Supreme Court also held that the 50-year order of protection did not violate procedural due process and double jeopardy, and the order was not an ex post facto law.