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Bemidji case prompts judge to seek appeals court ruling on domestic abuse no-contact orders

Judges in Clay County and some other Minnesota courts have stopped issuing domestic abuse no-contact orders, a move prosecutors worry could put victims at greater risk by softening the penalties for offenders.

Clay County's moratorium on the orders - nearly 500 of which were issued from the judicial benches in Moorhead the last two years - follows a Beltrami County judge's ruling that questioned their constitutionality.

The Minnesota Court of Appeals is reviewing whether it has jurisdiction to answer that question.

Meanwhile, it's thrown a wrench into Clay County's new domestic violence court, which began hearing cases on Oct. 31.

"It's just a big mess," said Assistant County Attorney Pamela Harris, who is appealing the dismissal of charges related to violations of domestic abuse no-contact orders, or DANCOs, in two of her case files.

The Minnesota Coalition for Battered Women pushed for the DANCO law in 2000, giving police more ammunition to enforce no-contact orders being issued from the bench.

"I think that almost any prosecutor in the state will tell you that it's one of the most critical tools they have in terms of trying to create safety," said Liz Richards, programming director for the coalition.

Coalition members, including the Rape and Abuse Crisis Center in Fargo-Moorhead, know that the most dangerous time for a battered woman is when she tries to leave her abuser, Richards said.

Prosecutors and victim advocates prefer DANCOs because they can be issued swiftly and without the permission of victims, who sometimes don't want a protection order, she said.

"We know that these are the cases where there's a high risk," she said.

John Kingrey, executive director of the Minnesota County Attorneys Association, said DANCOs "have been a good tool to address domestic violence" because they have more serious consequences than other protection orders and prosecutors don't need victims' permission.

State law allows a judge to issue a DANCO against a defendant before he or she goes to trial or as a condition of probation.

Violating it can lead to new charges ranging from a misdemeanor to a felony punishable by up to five years in prison, depending on the offenders' criminal background.

Clay County judges stopped issuing DANCOs in January. They instead issue standard no-contact orders as a condition of release from jail.

A defendant who violates such an order may land back in jail with a higher bail amount or, in rare instances, be charged with misdemeanor contempt of court. Both are less severe penalties than the DANCO law provides.

Harris said it's become "quite complicated" and hard to explain to victims.

Two years ago, the coalition led a successful effort to move the DANCO provision of Minnesota law from the civil statutes to the criminal statutes, and to clarify that DANCOs are not issued as a condition of release from jail.

That was important, Richards said, because in Minnesota a defendant can post a higher bail amount to be released without conditions.

At the time, the coalition knew questions existed about whether the DANCO law was constitutional - specifically, whether it violated a defendant's right to due process and right to bail without conditions, Richards said.

Last November, Beltrami County Judge Paul Benshoof ruled the law unconstitutional in the case of 33-year-old Jason Patch of Bemidji.

Patch was accused of violating a DANCO. He filed a motion to dismiss, arguing that the law didn't provide sufficient notice or opportunity to be heard and therefore violated his right to due process.

Benshoof agreed, but wrote that "the question is so important and doubtful," the Court of Appeals should decide whether his ruling is correct.

Benshoof, in a memorandum filed on Nov. 15, noted that a typical DANCO hearing takes place immediately after arraignment, at which time defendants almost always appear without a lawyer.

"At such an early stage in the case, often within hours of arrest, a defendant has had no chance to subpoena witnesses or to devise anything resembling a strategy for presenting evidence," he wrote.

Defendants often want to discuss the facts of their cases at the hearings. But because there's no defense attorney present, judges tend not to allow them to speak because of the risk they could incriminate themselves, Benshoof wrote, calling it "an absolutely untenable position."

Harassment restraining orders, orders for protection and DANCOs all put similar restrictions on defendants, but only DANCOs "give defendants neither notice nor a meaningful chance to contest their issuance," Benshoof wrote.

In rulings last June and September, two other Minnesota judges reached opposite conclusions on whether the DANCO law is constitutional.

The importance of the issue is heightened by the fact that DANCOs have become so common, Benshoof wrote, pointing out that the three judges chambered in Beltrami County had issued 242 DANCOs in 2011 alone.

Clay County judges issued 237 DANCOs last year and 247 in 2010, according to court administration. Before the unofficial moratorium began in January, the judges had issued 19 DANCOs, the last being entered on Jan. 18.

Until the appellate court answers the question of the law's constitutionality, "defendants are likely to continue to challenge it in courts all over Minnesota, causing a severe strain on the limited resources of the trial courts," Benshoof wrote.

Kingrey said judges across the state are handling DANCOs differently - sometimes within the same courthouse, as in Clay County. Harris said Judge Lisa Borgen has been dismissing all pre-trial DANCOs and replacing them with no-contact orders as a condition of release, while Judge Michael Kirk is honoring existing DANCOs but not issuing new ones.

"It's a mixed bag," Kingrey said.

Richards said there's "a lot of misinformation flying around the state" that the DANCO law has already been ruled unconstitutional. The coalition is reaching out to county courts, hoping to convince judges to continue or resume their use of DANCOs and offering advice on alternative protection orders in the meantime.

If the appeals court takes up the question and rules the law unconstitutional, Richards said she expects it will give direction on how the law can be rewritten by lawmakers.

It could be six months or longer before the question is answered, she said.

Kingrey said he hopes the state Supreme Court will weigh in on the issue.

"At this point we're just kind of waiting," he said.

Reporter Mike Nowatzki writes for The Forum of Fargo-Moorhead. The Pioneer and The Forum are both Forum Communications Co. newspapers.