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State v. Ness

Supreme Court of Minnesota

July 24, 2013

State of Minnesota, Respondent,
v.
Bryan Paul Ness, Appellant.

Office of Appellate Courts Court of Appeals.

Lori Swanson, Attorney General, David S. Voigt, Deputy Attorney General, Saint Paul, Minnesota; and Brian J. Melton, Clay County Attorney, Moorhead, Minnesota, for respondent.

David W. Merchant, Chief Appellate Public Defender, Saint Paul, Minnesota; and Mark D. Nyvold, Special Assistant State Public Defender, Fridley, Minnesota, for appellant.

Elizabeth J. Richards, Beverly Balos, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition for Battered Women; Rana Alexander, Minneapolis, Minnesota, for amicus curiae Battered Women's Legal Advocacy Project; and Kristine Lizdas, Minneapolis, Minnesota, for amicus curiae Battered Women's Justice Project.

Cort C. Holten, Jeffrey D. Bores, Chestnut Cambronne, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

SYLLABUS

Appellant's due process challenges to the face of Minn. Stat. § 629.75, subd. 1 (2012), fail because appellant has not shown that (1) the statute provides inadequate notice and opportunity to be heard in all of its applications or (2) that the statute encourages arbitrary and discriminatory enforcement.

Affirmed.

OPINION

PAGE, Justice.

This case involves two due process challenges to the face of Minn. Stat. § 629.75, subd. 1 (2012), which sets forth the process under which a domestic abuse no contact order may be issued to a defendant in a criminal proceeding. Pursuant to subdivision 1 of section 629.75, the district court issued domestic abuse no contact orders that prohibited appellant Bryan Paul Ness from contacting his wife. After Ness allegedly contacted his wife on multiple occasions, he was charged with two felony violations of Minn. Stat. § 629.75, subd. 2(d) (2012). Ness moved to dismiss both charges, arguing that, on its face, Minn. Stat. § 629.75, subd. 1, violates the Due Process Clauses of the United States Constitution and the Minnesota Constitution because it (1) fails to provide adequate notice and opportunity to be heard and (2) encourages arbitrary and discriminatory enforcement. Concluding that subdivision 1 of section 629.75 provides defendants "no process at all" and grants judges "unfettered discretion, " the district court granted Ness's motions. The court of appeals reversed. Because Ness has failed to establish that, on its face, Minn. Stat. § 629.75, subd. 1, violates procedural due process in all of its applications, and because we conclude that the statute does not encourage arbitrary and discriminatory enforcement, we affirm.

On January 26, 2011, Ness was arrested after he physically assaulted his wife, N.N. In a written complaint, the State charged Ness with one count of gross misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 2 (2012), one count of fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 2 (2012), and one count of child endangerment in violation of Minn. Stat. § 609.378, subd. 1(b) (2012). The complaint requested the following conditions of pretrial release: "$12, 000.00 cash or bond, no use of alcohol or mood altering substances, no contact with N.N. or her children." At Ness's first-appearance hearing, the district court appointed a public defender to represent him.[1] The State served Ness with a Notice of Evidence and Identification Procedures and a trial witness list. The court set conditions of pretrial release, which included no use of alcohol, no contact with N.N., and a requirement that Ness make all future court appearances. The court also signed a domestic abuse no contact order that prohibited Ness from contacting N.N. or going to her residence. The domestic abuse no contact order notified Ness that "[c]ompliance with this Order is a condition of your release and is in addition to any other conditions of release that may be imposed. Your release status may be revoked if you violate any aspect of this Order."

On March 6, 2011, Ness contacted his wife in violation of the January domestic abuse no contact order. As a result, he was charged with one count of violating Minn. Stat. § 629.75, subd. 2(d)(1), which provides that a person is guilty of a felony for violating a domestic abuse no contact order "within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency."[2] The complaint requested the following conditions of pretrial release: "$15, 000 cash/bond, follow existing [domestic abuse no contact order], no consumption of alcohol or mood altering chemicals." The following day, Ness appeared before the district court for a first-appearance hearing on the March domestic-abuse-no-contact-order charge. The court appointed a public defender to represent Ness. The State served Ness with a Notice of Evidence and Identification Procedures and a trial witness list. The court set conditions of pretrial release, which included no use of alcohol and no contact with N.N. The court also signed a second domestic abuse no contact order, which included the same restrictions as the January domestic abuse no contact order. But on April 4, 2011, the court issued an order amending the March domestic abuse no contact order to allow telephone contact between Ness and N.N.

On November 23, 2011, Ness had in-person contact with his wife in violation of the amended March domestic abuse no contact order. Five days later, on November 28, 2011, the State charged Ness with one felony count of violating the amended March domestic abuse no contact order, Minn. Stat. § 629.75, subd. 2(d)(1), and one count of obstructing legal process in violation of Minn. Stat. § 609.50, subd. 1(2) (2012). The complaint requested the following conditions of pretrial release: "$50, 000 cash/bond, follow the existing [domestic abuse no contact order], no consumption of alcohol or mood altering chemicals." When Ness appeared before the district court for a first-appearance hearing on the November domestic-abuse-no-contact-order charge, the court appointed a public defender to represent him. The State served Ness with a Notice of Evidence and Identification Procedures and a trial witness list. The court set conditions of pretrial release, which included a requirement that he "follow any no contact orders." The court also signed another domestic abuse no contact order, which prohibited Ness from contacting N.N. or going to her residence.

Before trial on the March and November domestic-abuse-no-contact-order charges, Ness moved to dismiss, arguing that subdivision 1 of section 629.75 violated the Due Process Clauses of the United States Constitution and the Minnesota Constitution. Ness argued that, on its face, the statute fails to provide adequate notice and opportunity to be heard and encourages arbitrary and discriminatory enforcement. Ness also argued that the statute violated the Separation of Powers Clause of Article 3, Section 1, of the Minnesota Constitution. The district court granted Ness's motion, concluding that section 629.75 fails to provide adequate notice and opportunity to be heard and encourages arbitrary and discriminatory enforcement. The court emphasized that a domestic abuse no contact order is issued through a "pro forma" process that fails to provide a defendant adequate notice or a meaningful opportunity to be heard. The court further concluded that the statute encourages arbitrary and discriminatory enforcement because ...


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