On April 30, the Minnesota Supreme Court issued its long-awaited decision in Rew v. Bergstrom, — N.W.2d –, A10-2145 (Minn. 2014), ruling on the constitutionality of a 50-year extension of an Order for Protection entered against appellant, Mr. Bergstrom.

The decision is truly a behemoth at 53 pages, along with a (13 page) concurrence/dissent from Chief Justice Gildea and a somewhat briefer concurrence from Justice Anderson.

Because of the length of the opinion, I’ll stick to the high points, and end with a brief diversion into an interesting appellate practice point.

Just the Facts

Rew and Bergstrom were divorced in 2008, after what appears to have been one or more lengthy separations in which Rew obtained Orders for Protection (OFP) against Bergstrom on behalf of herself and their two children.

In what later became one of his chief arguments on appeal, Bergstrom consented to entry of each of the three Orders (obtained in 2002, 2007, and 2008), without admitting to the underlying abuse. As a result, there was never an actual judicial finding that Bergstrom committed acts of domestic abuse against Rew or their children (as one was never required) only that he consented to entry of the Orders.

Bergstrom then proceeded to accumulate three criminal OFP violations (one in 2002, one in 2007, and one in 2008), ultimately resulting in eight months of prison time for the 2008 violation.

A month before the expiration of the 2008 OFP, Rew asked the Court to extend the OFP for up to 50 years consistent with Minn. Stat. 518B.01, subd. 6a. The statute permits the entry of an extension up to 50 years, upon a showing of any of the following:

1. A prior OFP violation;
2. That the party requesting the OFP is reasonably in fear of physical
harm from the abusing party;
3. Stalking; OR
4. The abusing party is about to or has been recently released from

At a hearing in June of 2010, Rew was able to establish 1 and 4 simply by offering authenticated documents relative to Bergstrom’s criminal convictions and jail sentence. Rew did not testify, and the Court precluded Bergstrom from offering any testimony because Bergstrom’s evidence did not rebut Rew’s evidence of prior violations and his recent release from prison.

Finding that Rew satisfied two of the four (disjunctive) criteria for extending an OFP, the Court extended the 2008 OFP for 50 years.

Part and parcel of the 50-year extension were the fairly expansive terms of the 2008 OFP: prohibiting Bergstrom from coming within 120 yards of Rew’s home, workplace or church; the children’s school or childcare; or within 50 yards of Rew or the children. The OFP also suspended Bergstrom’s parenting time with both children pending the completion of several months of therapy.

Bergstrom moved to vacate the 50-year extension under Minn. R. Civ. P. 60.02 arguing various violations of his constitutional rights. The District Court denied Bergstrom’s motion, and Bergrstom appealed.

The central theme of Bergstrom’s arguments on appeal was the absence of any finding, ever, that he committed domestic abuse against Rew, and the subsequent extension of these finding-less OFPs for 50-years (likely the rest of Bergstrom’s life). The Court of Appeals affirmed in a December 2011 decision, holding that the 50-year extension survived constitutional muster. See Rew v. Bergstrom, 812 N.W.2d 832 (Minn. Ct. App. 2012).

The Minnesota Supreme Court accepted review the following March (that’s 2012 for those keeping track) and only just entered its decision now–two years later.

The Decision

Reading the decision, it’s not surprising that it took two years. In addition to being 53 pages, it references no less than three Supreme Court test standards with a total of twelve different considerations/ factors.

But despite its length, the decision essentially boils down to a question of the appropriate standard for analyzing the “incidental restrictions” OFPs impose on an abuser’s rights to speak (in particular to his/her victim), and whether the statute, and the order at hand, met that standard.

Bergstrom’s argument–as best I can reconstruct it from the oral argument and decision–appears to have been that in order to restrict his First Amendment rights for up to 50 years, Rew should be required to show that Bergstrom actually committed acts of domestic abuse against Rew and their children, not just that he violated a prior OFP or had recently been released from prison as required by statute. But because Berstrom stipulated to the entry of the prior OFPs, and the District Court made no finding of abuse to independently justify the 50-year extension (because no such finding required by statute), no judicial finding of abuse had ever been made. Without that finding, Bergstrom argued, a lifetime limitation on his speech couldn’t pass constitutional muster.

The Supreme Court disagreed–at least mostly–upholding the OFP as to Rew and remanded for further finding as to abuse against the children.

Following the Court of Appeals, the Supreme Court adopted the United States Supreme Court’s standard for content-neutral speech injunctions (i.e., we don’t care what you say, just don’t say it here/to these people) enunciated in Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). Under Madsen, injunctions prohibiting a speaker from engaging in certain types of speech aren’t deemed impermissible “prior restraints” on speech (think Near v. Minnesota, 283 U.S. 697 (1931)), where they’re both content-neutral and based on the speaker’s prior, unlawful conduct.

Further following Madsen, the Minnesota Supreme Court held that to survive a constitutional challenge, OFP’s need only demonstrate that “they burden no more speech than necessary to serve a significant government interest.” And with a littany of case law (and common sense) to support the notion that protecting domestic abuse survivors is a “significant government interest” the breadth of the 50-year OFP garnered the majority of the Court’s attention.

The Court upheld the breadth of the restriction with respect to Rew, but found “the adequacy of the record…less clear…with respect to the restrictions in the extended OFP that limit Bergstrom’s contact with the parties’ minor children.” (Restrictions that the entire Court agreed would last only about four years, not 50, because they applied specifically to the “minor” children). Observing that Rew’s petition failed to allege acts of domestic abuse against the children, Justice Stras concluded that:

[I]n light of Rew’s failure to affirmatively indicate that Berstrom committed domestic abuse against the minor children and the focus of Rew’s petition on instances of domestic abuse committed against Rew personally, Berstrom did not admit that he had committed domestic abuse against the children when he agreed to the 2008 OFP.

Without delving too heavily into the Chief Justice’s dissent, I can’t help but note that the majority misses a fairly fundamental point in its rush to remand:

Bergstrom never admitted to committing domestic abuse against anyone. Ever.

What Bergstrom did was consent to the entry of an OFP for the benefit of Rew and the parties’ minor children without any findings.

If Bergstrom felt that the allegations in Rew’s petition were insufficient to sustain a finding of domestic abuse as to the children, his time to raise that issue was before the original OFP was entered, not in an appeal four years after the fact. But Bergstrom–for reasons entirely his own–chose not to raise that challenge, and accepted the entry of OFP for both Rew and the children, regardless of any technical deficiencies in Rew’s Petition.

The Court’s focus on “findings” is an exercise in point missing. There never was a finding of domestic abuse, because Bergstrom purposely chose not to avail himself of his right to contest the allegations in Rew’s petition. For the Court to now focus so intently on the absence of findings (and the deficiencies of Rew’s Petition) seems to ignore Bergstrom’s own complicity in failing to develop the record or contest the entry of any of the three prior OFPs.

But I digress.

After remanding the extension with respect to the children, the Supreme Court rejected the remainder of Bergstrom’s arguments with respect to procedural due process claims:

The process that Bergstrom received before the court granted the extended OFP–which consisted of notice followed by adversarial hearings before an impartial judicial officer at which Bergstrom appeared with counsel–constitutes the “full panoply of procedures” available in the judicial system.”

And prohibitions on ex post facto laws (which don’t apply to civil remedies).

And double jeopardy (again, not applicable to proceedings between private parties).

But that one remand, for a 4-year extension on behalf of the children, still rankles.

The Chief Justice’s Concurrence and Dissent

And apparently with more than just me. In an impassioned dissent Chief Justice Gildea (joined by Justice Dietzen) took the majority to task for applying one standard to Rew and a seemingly different standard to the children.

When the record as a whole is considered, it is clear that there was no need for the district court to make further findings of abuse in the 2008 OFP. The district court did not need to make further findings because, just as he did for Rew, Bergstrom did not object to the restrictions on his contact with the children and he conceded that he understood that the OFP would be enforced as if there was a finding of domestic abuse. In reaching the conclusion that the district court needed to make more findings, the plurality adds words to the OFP by interpreting the order as limited to a finding of domestic abuse against only Rew. The OFP, however, was explicitly issued on behalf of the children and grants protection to the children.


What the plurality and concurrence are really doing is applying different standards in examining the constitutionality of the restrictions placed on Bergstrom’s contact with the children and the restrictions placed on contact with Rew…[T]he court did not require these specific findings in upholding the 50-year prohibition on Bergstrom’s contact with Rew. Rather, it simply determined that the district court “carefully crafted the specific terms and conditions of the extended OFP.” We cannot have it both ways. If, as the court concludes, the district court made sufficient findings for the OFP extension to be constitutional as applied to Rew, then surely those same findings must be sufficient to sustain the much more limited order with respect to the children.

If my sympathies aren’t already apparent, I find the Chief Justice’s reasoning persuasive. As I read the decision, the majority places far to much emphasis on “findings” when Bergstrom specifically waived his right to have the District Court make these findings by stipulating to the entry of an OFP for Rew and the children.

Justice Anderson’s Concurrence

Writing a separate concurrence, Justice Anderson offered the District Court a way out of the conflict between the majority and the Chief Justice, suggesting that the “restrictions involving the children,” might only have been “temporary parenting-time decisions based on the abuse against Rew and the best interests of the children.” In so doing, Justice Anderson appears to be suggesting an alternative “significant state interest” (the children’s best interest) that could support a restriction on Bergstrom’s speech even in the absence of a finding of domestic abuse against the children.

Some Tangential Practice Points

While the Court’s constitutional analysis takes up the vast majority of the decision, the case also offers two practice points worth noting before I wrap up.

  • When an OFP is made on behalf of “minor” children, it will automatically lapse upon the children reaching age 18 regardless of the duration specified in the OFP (at which point they presumably need to Petition again on their own). While this may not seem to make a good deal of practical sense, the inclusion of the word “minor” in an OFP may be more trouble than its worth, particularly if the OFP is being issued on behalf of the children (rather than simply addressing parenting time).
  • Whether a Guardian ad Litem’s report is part of the record on appeal depends on whether it was “filed” with the district court. Debating the meaning of Minn. R. App. P. 110.01, Justice Stras and Chief Justice Gildea exchanged in a trial-by-footnote contest to determine whether the Guardian’s report was ever “filed” even though it was obviously received and considered. To be on the safe side, the party relying on the Guardian’s report should take the additional step to be sure it has actually been filed.
  • Well, Rew‘s in the books. The next big case expected out of the Supreme Court will be Citizens Bank of Norwood Young American v. Brown, addressing whether transfers incident to divorce are presumptively fraudulent under the Uniform Fraudulent Transfers Act. I’ve written a bit about the oral arguments here, but I’ll have a longer piece when the decision comes down.

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