By Dan Gunderson, MPR News 91.3 FM
ST. PAUL – The Minnesota Supreme Court has agreed to consider the constitutionality of a state law designed to protect the victims of domestic abuse.
An attorney for Bryan Ness is challenging the law, which allows judges to impose domestic abuse no contact orders that prevent someone suspected of abuse from contacting the victim.
Authorities say Ness, 33, struck his wife in the head several times during a January 2011 argument at their Moorhead apartment. When he appeared in court the next day to face charges for the assault, a Clay County judge ordered him not to have any contact with his wife.
Such court orders are popular with prosecutors. According to court records, Minnesota judges issued nearly 11,000 DANCO orders last year.
Clay County prosecutor Pamela Harris said she requests one in every domestic abuse case to protect victims.
“It also maintains some integrity to the judicial system because obviously we don’t want the defendant getting out and going home and telling the victim what to say when she comes to court,” Harris said.
Ness pleaded guilty to a charge of domestic assault, a misdemeanor. Police later arrested him for violating the no-contact order and prosecutors charged him.
Ness then challenged the constitutionality of the law that gives judges the authority to issue domestic abuse no contact orders. His lawyer contends that the judge issued the order without allowing Ness a chance to respond, violating his due-process rights.
A Clay County judge, following a ruling by Beltrami County Judge Paul Benshoof questioning the constitutionality, agreed.
After the Minnesota Court of Appeals overturned that ruling, Ness appealed to the state Supreme Court.
Until recently, judges nearly always approved the no-contact order in domestic abuses cases. But because of the constitutional challenge, judges in Clay County now refuse to issue the orders.
Judges in other counties around the state are also refusing to enforce the statute according to the Minnesota County Attorneys Association.
Judges can issue a no-contact order. But Harris said those orders don’t carry the criminal penalties that a domestic abuse no contact order does. She said police don’t have easy access to simple no-contact orders because courts do not enter them in the state electronic crime data system.
“We’ve had some violations of these orders where the victims have called and the police say well, we can’t do anything because there’s not a DANCO,” Harris said. “So there’s not an arrest made.”
Because of the constitutionality question, judges have dismissed charges in several cases where defendants violated a no-contact order.
Defense attorneys say broad use of the no-contact orders in domestic abuse cases is proof defendants don’t get a fair shake.
Fridley attorney Mark Nyvold, who represents Ness in the Supreme Court Appeal, said his client had no opportunity to challenge the prosecutors’ request for a no-contact order, and the state has no burden of proof to show that the order is needed.
“As the district court judge who found the statute unconstitutional said, basically there are no standards,” Nyvold said. “There is essentially limitless discretion.”
The Minnesota Court of Appeals ruled that a judge’s discretion is limited, because there must be a domestic violence crime alleged before the court order can be issued.
But Nyvold argues the law allowing domestic abuse no-contact orders creates another criminal case without due process.
“The attractiveness of a DANCO for the prosecution is that once that order is imposed it carries separate criminal penalties that could exceed the ones that exist for the underlying case for which it was issued,” he said.
That’s what happened in the case against Ness, pleaded guilty to a misdemeanor charge for the original assault on his wife.
But prosecutors charged with violating the no-contact order, a felony in his case because he had a record of assault and two DANCO violations. If convicted, he could be sentenced to up to five years in prison for each violation of a no-contact order.
Critics of the law say it confuses civil and criminal issues.
Among them is William Mitchell Law School professor Bradford Colbert, also a part-time public defender.
Colbert said current domestic abuse law on no-contact orders leaves defendants out of the process, and research shows they are more likely to violate protection orders if they don’t have a say in the process. State court records show 12 percent of defendants subject to a domestic abuse no contact order were convicted of violating that order in 2011.
“Before you make such an important decision, an order which has serious ramifications which carries felony level issues, then you need to have a process where everyone gets to be heard,” Colbert said. “I think it’s a matter of the constitution but it’s also a matter of good policy.”
Advocates for battered women argue that in such cases the integrity of the judicial system outweighs the loss of a defendant’s right to contact family members.
The orders protect victims and the justice system, said Beverly Balos, a university of Minnesota law professor who specializes in the area of domestic violence. She filed a friend of court brief in support of the law.
“It protects the integrity of the process because it makes it more difficult in this area for defendants to intimidate and manipulate victim witnesses,” she said.
Advocates for victims of domestic violence tried to change the law earlier this year to clarify the due process provision. The legislature did not pass the proposal.
The state Supreme Court is expected to hear arguments early next year.