Court of Appeals finds 50-year protection order constitutional

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By Pat Murphy
Dolan Newswires

If there was ever someone entitled to be shielded by a 50-year protection order, it might be Vanessa Rew.

The evidence against her ex-husband, James Allen Bergstrom, is extensive. But Bergstrom thought the order was unjust and wanted it lifted on constitutional grounds.

The Minnesota courts saw things differently, however.

In 2008, the Minnesota legislature amended the state’s domestic abuse statute to permit the extension of a protection order for up to 50 years. The virtual lifetime extension is authorized upon the court finding that the abusing party has violated a prior or existing order for protection on two or more occasions, or that the petitioner has been issued two or more prior protection orders against the same party.

In 2010, Rew applied for a 50-year extension of an existing protection order against Bergstrom in Washington County District Court.

Bergstrom and Rew were married in 1994 and had two children during their marriage. Rew alleged that Bergstrom began physically abusing her three years into the marriage while she was pregnant with the couple’s first child.

According to court records, in 2002 Bergstrom pleaded guilty to assault after Rew claimed that he severely beat her, dragged her down stairs, choked and punched her, and knocked her out by slamming her head into a faucet.

After that incident, Rew obtained a protective order on behalf of herself and the children. It only took four months for Bergstrom run astray and he pleaded guilty to a misdemeanor violation of the protection order.

Afterward, the parties reconciled and remained together until 2007. Rew alleged that throughout this period Bergstrom beat and threatened her. So Rew obtained a one-year protection order in June 2007.

Bergstrom was subsequently arrested for stalking Rew in a rental car with a camera and binoculars. In December 2007, he pleaded guilty to violating Rew’s new order.

Several months later, Rew reported to police that Bergstrom accessed her e-mail accounts. So Bergstrom once again found himself in the position of pleading guilty to violating a protection order.

Before the 2007 order expired in 2008, Rew obtained a new one-year protection order that encompassed the children. The 2008 order temporarily suspended Bergstrom’s parenting time.

In 2009, the 2008 protection order was extended from one year to two years.

According to court records, Bergstrom spent most of 2009 incarcerated for violating terms of probation by stalking and harassing another woman and tampering with his electronic monitoring system. He was released from Minnesota Correctional Facility-Stillwater in October 2009. But it only took him several months to find himself in trouble once more.

In April 2010, Bergstrom was arrested and charged with violating the 2008 protection order after he allegedly showed up at Rew’s church retreat and refused to leave. Bergstrom was incarcerated in the Washington County jail until June 2010 when the charge was dropped.

This last incident caused Rew to apply for the 50-year extension, which a state trial court had little trouble granting.

Under the court’s order, Bergstrom is prohibited from: (1) having any contact with Rew or the children except for purposes of coordinating parenting time; (2) coming within 120 yards of Rew’s residence, place of work, or church; (3) coming within 120 yards of the children’s school or childcare location; (4) coming within 50 yards of Rew or the children in public places; or (5) possessing a firearm.

Despite the clear evidence supporting the appropriateness of the order, Bergstrom appealed to have it vacated. He raised a variety of constitutional challenges, in particular arguing that the 50-year extension violated due process and his First Amendment rights.

Last week, the Minnesota Court of Appeals turned aside these arguments and upheld a protective order which won’t expire until 2060.

With respect to Bergstrom’s free speech claims under the First Amendment , the court recognized that that the state has a “significant interest” in protecting the victims of domestic violence and that someone who has satisfied the statutory criteria for the issuance of a 50-year extension “has demonstrated a pattern of harmful and invasive conduct that invites the lawful regulation of the state.”

In sum, the court concluded that application of the 50-year extension to someone in Bergstrom’s shoes burdens no more speech than necessary to serve a significant government interest.

Bergstrom also argued the extension violated due process because he was not provided notice of the collateral consequences of pleading guilty to his prior protection order violations.

This argument went nowhere with the court.

“The extension of [Rew’s protective order] against [Bergstrom] is not a criminal sanction; it is a remedial civil order issued at the discretion of the district court, intended to protect respondent and the children from future abuse. As such, it is not a direct consequence flowing ‘definitely, immediately, and automatically from the guilty plea.’ Therefore, [Bergstrom] was not entitled to notice that pleading guilty to violating [a protective order] could give rise to the extension of [protective order] as a collateral consequence,” the court said. (Rew v. Bergstrom)