STRAS, Justice.
At issue in this case is the legality of a district court's extension for up to 50 years of an order for protection ("OFP") in favor of a victim of domestic abuse and her minor children. Over the objections of appellant James Allen Bergstrom, the district court granted an extension of an existing OFP to respondent Vanessa Yolanda Rew, Bergstrom's ex-wife, prohibiting contact between Bergstrom and Rew or their minor children. Bergstrom raises a variety of statutory and constitutional challenges to the OFP. We affirm in part, reverse in part, and remand to the district court for findings regarding whether prohibiting Bergstrom from having any contact with his two minor children is necessary to serve a significant state interest.
Bergstrom and Rew had been married for 14 years when they dissolved their marriage in 2008. In 2002, 2007, and 2008, following hearings that both Rew and Bergstrom attended, Rew obtained a series of 1-year OFPs against Bergstrom. Each OFP also contained provisions that protected the couple's minor children, T.C.B. and D.S.B. Bergstrom consented to the issuance of each of the three OFPs. In fact, the OFPs stated that Bergstrom understood that they would be "enforced as if there was an admission or finding of domestic abuse."
The OFPs issued in 2002, 2007, and 2008 provided several forms of relief to Rew and the minor children. First, the OFPs, alone or together with the marital-dissolution decree, provided custody of the children to Rew. Second, the OFPs prohibited
The 2008 OFP imposed further restrictions on Bergstrom that were not part of the earlier OFPs. Specifically, it prohibited Bergstrom from coming within 120 yards of either the children's school or a second residence where the children ostensibly received childcare. It also proscribed any contact between Bergstrom and "the two minor children, whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way." For Bergstrom to regain contact with his minor children through parenting time, the OFP established two conditions: (1) that Bergstrom and the children separately participate in therapy for at least 6 months or "until such time as the therapist deems such therapy no longer necessary"; and (2) that Bergstrom seek and receive court approval for modification of the OFP's parenting-time provisions. In 2009, the district court extended the duration of the 2008 OFP for 1 additional year and reduced Bergstrom's therapy obligation from 6 months to 3 months.
The district court has also convicted Bergstrom of three OFP violations. In 2002, Bergstrom pleaded guilty to a misdemeanor OFP violation that resulted in probation. In 2007, Bergstrom pleaded guilty to a felony charge of knowingly violating an OFP within 10 years of the first of two or more previous qualified domestic-violence-related convictions, Minn. Stat. § 518B.01, subd. 14(a), (d)(1) (2012). The court again placed Bergstrom on probation. At the same time, the court dismissed two other charges brought in the same criminal complaint: a gross-misdemeanor charge of harassment and stalking and a misdemeanor charge of unlawful use of license plates.
In 2008, Bergstrom again pleaded guilty to a felony charge of knowingly violating an OFP within 10 years of the first of two prior qualified domestic-violence-related convictions — the same crime to which he pleaded guilty in 2007. The 2008 conviction arose from evidence that Bergstrom had unlawfully accessed Rew's email account on multiple occasions. The court sentenced Bergstrom to 5 years' imprisonment but stayed execution of the sentence in favor of probation. When Bergstrom violated the terms of his probation in February 2009, the district court revoked the stay and executed Bergstrom's prison sentence. Bergstrom served approximately 8 months in prison. In April 2010, the State charged Bergstrom with felony harassment and another felony OFP violation, but the prosecutor dismissed the charges in June 2010.
In July 2010, approximately 1 month before the extended expiration date of the 2008 OFP, Rew filed an application under Minn.Stat. § 518B.01, subd. 6a (2012), to extend the terms of the 2008 OFP for up to 50 years. Subdivision 6a(a) establishes the criteria for either an extension of an existing OFP or a new OFP after an existing one has expired. The provision states that a court may
Minn.Stat. § 518B.01, subd. 6a(a). To extend an OFP for up to 50 years, subdivision 6a(b) requires a court to further find that: "(1) the respondent has violated a prior or existing order for protection on two or more occasions; or (2) the petitioner has had two or more orders for protection in effect against the same respondent."
In Rew's 2010 application to extend the terms of the 2008 OFP for up to 50 years, Rew alleged facts in support of the four criteria in subdivision 6a(a) and the two criteria in subdivision 6a(b). Rew supported the application with an affidavit describing Bergstrom's history of domestic violence, including the behavior underlying the charges against Bergstrom that were dismissed in 2007 and 2010, and Bergstrom's three prior convictions of violation of an OFP.
The district court held an evidentiary hearing on Rew's application. Both Bergstrom and Rew attended the hearing and were represented by counsel. Rew did not testify or call any witnesses. Instead, she established the existence of the 2002, 2007, and 2008 OFPs by placing certified copies of the OFPs into evidence. She also established the existence of Bergstrom's three prior convictions of violation of an OFP by placing into evidence the Register of Actions from the Minnesota State Court Information System for each conviction. The court took judicial notice of Bergstrom's incarceration in state prison from March 2009 through October 2009 for the violation of an OFP. After reviewing Rew's evidence, the district court found that Rew's application was based solely on evidence that Bergstrom had violated prior OFPs and had been recently released from incarceration, Minn.Stat. § 518B.01, subd. 6a(a)(1), (4), not on evidence that Rew feared physical harm, see Minn.Stat. § 518B.01, subd. 6a(a)(2), or that Bergstrom had engaged in stalking, see Minn. Stat. § 518B.01, subd. 6a(a)(3).
Bergstrom did not admit to any of the allegations in Rew's application for an extended OFP. To the contrary, Bergstrom attempted to present evidence in opposition to Rew's application, including his own testimony and testimony from two other witnesses, but the district court excluded Bergstrom's evidence as irrelevant. See Minn. R. Evid. 402. Although Bergstrom argued that the testimony would refute Rew's evidence regarding the 2010 incident that resulted in the dismissal of charges against Bergstrom, the district court excluded the evidence because it did not rebut Rew's evidence establishing Bergstrom's three prior convictions for violation of an OFP, or the evidence that Bergstrom had recently been released from prison.
Based on the evidence, the district court found that Rew had satisfied two of the criteria for extending an OFP under Minn. Stat. § 518B.01, subd. 6a: that Bergstrom had violated "a prior or existing order for protection," Minn.Stat. § 518B.01, subd. 6a(a)(1); and that Bergstrom had recently been released from incarceration, Minn. Stat. § 518B.01, subd. 6a(a)(4). The court concluded that either basis was independently sufficient to support an extension of the terms of the 2008 OFP.
The court also made findings under subdivision 6a(b) to support the extension of the terms of the 2008 OFP for up to 50
When the district court extended the terms of the 2008 OFP, it included several provisions that are relevant to the legal issues presented in Bergstrom's appeal. First, the extended OFP prohibits Bergstrom from coming within 120 yards of not only Rew's residence, but also her workplace or church — two locations not subject to such a restriction in the earlier OFPs. Second, the extended OFP continues the suspension of Bergstrom's parenting time until he completes a minimum of 3 months of therapy, the children complete a minimum of 6 months of therapy, and he successfully applies to a court for the restoration of his parenting time. Third, the extended OFP prohibits Bergstrom from entering, calling, or coming within 120 yards of the children's schools or locations where they receive childcare. Finally, the extended OFP creates a new buffer zone around Rew and the minor children: it requires Bergstrom to stay at least 50 yards away from Rew and the children in all public places.
Bergstrom then moved to vacate the extended OFP under Minn. R. Civ. P.60.02. Specifically, Bergstrom challenged the sufficiency of the district court's findings and asserted that the extended OFP violated various constitutional provisions, including the First Amendment, the Double Jeopardy Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Due Process Clause. Bergstrom also argued that the district court erred when it issued the extended OFP without making a finding that he had committed domestic abuse against Rew and the minor children. Following a hearing, the district court denied Bergstrom's motion to vacate the extended OFP.
The court of appeals affirmed. Rew ex rel. T.C.B. v. Bergstrom, 812 N.W.2d 832 (Minn.App.2011). The court concluded that Minn.Stat. § 518B.01, subd. 6a, does not violate Bergstrom's First Amendment right to free speech because it burdens no more speech than necessary to serve a significant government interest. Rew, 812 N.W.2d at 840. The court also rejected Bergstrom's claims that his procedural due process rights were violated when the district court granted the extended OFP, that the extended OFP imposes a criminal penalty upon him and thus violates double jeopardy, and that the extended OFP violates the Ex Post Facto Clause of the United States Constitution. Id. at 841-44. Finally, based on the plain language of Minn.Stat. § 518B.01, subd. 6a, the court concluded that a district court is not required
The first question presented by this case is whether Minn.Stat. § 518B.01, subd. 6a, requires a finding of domestic abuse before a district court may extend the duration of an OFP. It is undisputed that the court made no explicit finding of domestic abuse when it extended the terms of the 2008 OFP for 50 years.
The interpretation of a statute is a legal question that we review de novo. 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn.2013). The first step in statutory interpretation is to "determine whether the statute's language, on its face, is ambiguous." Id. (citation omitted) (internal quotation marks omitted). If a statute is unambiguous, then we apply the statute's plain meaning. See Larson v. State, 790 N.W.2d 700, 703 (Minn.2010). If, on the other hand, a statute is susceptible to more than one reasonable interpretation, then it is ambiguous and we may look to the canons of statutory construction to ascertain its meaning. See State v. Hayes, 826 N.W.2d 799, 804 (Minn.2013).
Although Minn.Stat. § 518B.01, subd. 2 (2012), defines "domestic abuse," none of the criteria for extending an OFP mention "domestic abuse." Indeed, subdivision 6a sets forth a total of six criteria that are relevant to the decision of whether to extend an OFP — four in paragraph (a) that govern any extension of an OFP and two in paragraph (b) that govern an extension for up to 50 years — and none require a finding of "domestic abuse." See Minn.Stat. § 518B.01, subd.a (governing the extension of an OFP). Only two of the criteria in paragraph (a) plausibly relate to a finding of "domestic abuse": whether a petitioner "is reasonably in fear of physical harm from the respondent," Minn.Stat. § 518B.01, subd. 6a(a)(2); and whether the respondent "has engaged in the act of stalking," Minn.Stat. § 518B.01, subd. 6a(a)(3). See Minn.Stat. § 518B.01, subd. 2(a) (defining "domestic abuse" as, among other things, "the infliction of fear of imminent physical harm, bodily injury, or assault"). But neither requires a finding of "domestic abuse," and none of the other criteria in paragraphs (a) or (b) require a district court to find the existence of "domestic abuse." In the absence of statutory language requiring a finding of "domestic abuse" before a district court extends an OFP, we decline to impose such a requirement. See Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 760 (Minn.2010) (stating that we will not add words to a statute "that are purposely omitted or inadvertently overlooked" by the Legislature).
Bergstrom is mistaken when he asserts that Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d 523 (Minn.2012), compels a different conclusion. In Schmidt, we vacated an OFP granted on behalf of a minor child because the district court had not found that the child was a victim of domestic abuse. Id. at 529. The OFP at issue in Schmidt, however, was an initial OFP issued under subdivision 4 of Minn.Stat. § 518B.01, not an OFP that was extended under subdivision 6a. By its terms, subdivision requires that an initial petition for an OFP must "allege the existence of domestic abuse" and be accompanied by a supporting affidavit. Minn.Stat. § 518B.01, subd.(b) (2012). Subdivision 6a, however, does not impose either requirement on a party who is seeking the
The second question presented by this case is whether the extension of an OFP under Minn.Stat. § 518B.01, subd. 6a, violates the First Amendment to the United States Constitution or Article I, Section 3 of the Minnesota Constitution. Bergstrom suggests that Minn.Stat. § 518B.01, subd. 6a, which allows a district court to extend the duration of an OFP for up to 50 years, creates an unconstitutional prior restraint of his speech under both provisions. The free-speech protections of the Minnesota Constitution are coextensive with those of the First Amendment to the United States Constitution. See State v. Wicklund, 589 N.W.2d 793, 799-801 (Minn. 1999). The constitutionality of a statute is a question of law that we review de novo. Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 653 (Minn.2012).
The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. Article I, Section 3 of the Minnesota Constitution likewise protects the rights of "all persons" to "freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right." Minn. Const. art. I, § 3. To address Bergstrom's argument that Minn.Stat. § 518B.01, subd. 6a, is facially unconstitutional and unconstitutional as applied to him, we must determine how to analyze an OFP under the First Amendment and Article I, Section 3 of the Minnesota Constitution. Bergstrom argues that an OFP is a prior restraint on speech.
In general, prior restraints are viewed unfavorably under the First Amendment because they forbid certain communications before they occur, usually through the issuance of an administrative or judicial order. See Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). Prior restraints on speech generally bear a heavy presumption against their constitutionality. New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
Although an OFP satisfies the general definition of a prior restraint because it prohibits, by judicial order, certain communications before they occur, the Supreme Court of the United States has clarified that "[n]ot all injunctions that may incidentally affect expression" are prior restraints subject to a presumption of unconstitutionality. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763 n. 2, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). In Madsen, the petitioners challenged the constitutionality of an injunction prohibiting them from engaging in certain types of speech in demarcated areas around an abortion clinic. Id. at 759-61, 114 S.Ct. 2516. The Court declined to characterize the injunction in Madsen as a prior restraint for two reasons. First, the petitioners in Madsen were "not prevented from expressing their message in any one of several different ways." Id. at 763 n. 2, 114 S.Ct. 2516. Second, the injunction in Madsen "was issued not because of the content of petitioners' expression ... but because of their prior unlawful conduct." Id.
An OFP shares the same basic characteristics as the injunction in Madsen.
Having rejected Bergstrom's argument that an OFP constitutes a prior restraint on speech, we must now determine how to analyze an OFP under the First Amendment and Article I, Section 3 of the Minnesota Constitution. The court of appeals evaluated Bergstrom's claim under the standard articulated in Madsen. The court of appeals was correct. As we state above, an OFP shares the same essential characteristics as the injunction that the Court analyzed in Madsen. It does not prevent an individual from expressing his or her ideas in other ways, nor does it regulate speech based on its content. Most importantly, the court of appeals' approach is also consistent with the Supreme Court's guidance that the proper test for evaluating content-neutral injunctions under the First Amendment is the test from Madsen: "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen, 512 U.S. at 765, 114 S.Ct. 2516; see also Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 372, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (stating that the Madsen framework applies to content-neutral
We now turn to Bergstrom's contention that Minn.Stat. § 518B.01, subd. 6a(b), is facially unconstitutional under the First Amendment and Article I, Section 3 of the Minnesota Constitution. To succeed in a facial challenge under the First Amendment, a litigant must establish that "`no set of circumstances exists under which [the statute] would be valid,'" United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)), that "the statute lacks any `plainly legitimate sweep,'" id. (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n. 7, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J., concurring in judgments)), or that "`a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep,'" id. at(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). Without providing specific examples, Bergstrom argues that there are a substantial number of unconstitutional applications of subdivision 6a(b). We disagree with Bergstrom's characterization of the statute.
We do not evaluate the facial constitutionality of a statute in a vacuum. Rather, the task in evaluating a facial challenge is to determine whether a statute is unconstitutional in a substantial number or all of its applications, as the case may be, under the applicable constitutional standard governing challenges of the type brought by the party alleging the unconstitutionality of the statute. Stated more succinctly, facial and as-applied challenges differ in the showing required to invalidate a statute, not in the underlying substantive standard that applies to each type of challenge. See, e.g., Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) (stating that the underlying constitutional standard does not differ between facial and as-applied challenges); Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 155 n. 3 (4th Cir.2009) (explaining that the same constitutional standard applies to facial and as-applied challenges to content-neutral zoning ordinances). We therefore evaluate Bergstrom's facial and as-applied challenges using the constitutional standard from Madsen: whether an OFP "burden[s] no more speech than necessary to serve a significant government interest." 512 U.S. at 765, 114 S.Ct. 2516.
Bergstrom's facial challenge requires us to determine whether, in a substantial
Bergstrom's primary objection, however, is to the potential breadth of an OFP issued under subdivision 6a(b). In his view, such an OFP logically burdens more speech than necessary to serve the government interest because there is rarely, if ever, a reason to extend an OFP for up to 50 years — effectively the remaining lifespan of many abusers. The Madsen framework, however, does not require "surgical precision" in an injunction. Madsen, 512 U.S. at 762, 766-67, 114 S.Ct. 2516 (rejecting the proposition that a content-neutral injunction should be subject to strict-scrutiny review). Rather, it requires only that the injunction burden no more speech than necessary to serve the significant government interest. Coupling the tailoring requirement from Madsen with the heavy burden faced by a party making a facial challenge, Bergstrom has failed to show that a substantial number of the OFPs issued under subdivision 6a(b) would be unconstitutional given the statute's plainly legitimate sweep.
Specifically, Bergstrom discounts the requirements of subdivision 6a, which compel a district court to make at least two findings before extending an OFP for up to 50 years. The district court must first find that an extension of an existing OFP is necessary because "the respondent has violated a prior or existing order for protection," the applicant is "reasonably in fear of physical harm from the respondent," the respondent had engaged in stalking, or the respondent has been or is about to be released from incarceration. Minn.Stat. § 518B.01, subd. 6a(a). To extend the OFP for up to 50 years, a district court must then make an additional finding either that the respondent has "violated a prior or existing [OFP] on two or more occasions" or that the applicant "has had two or more [OFPs] in effect against" the respondent. Minn. Stat. § B.01, subd.6a(b). Taken together, the findings required under subdivision 6a establish that only the most persistent abusers — those that have repeatedly violated an
To the extent that Bergstrom's facial challenge turns on the potential length of an OFP issued under subdivision 6a(b), the statute does nothing more than authorize a district court to issue an OFP with a duration "of up to 50 years." See Minn.Stat. § 518B.01, subd. 6a(b). It does not require, as Bergstrom appears to assume, that every extended OFP be for 50 years. In fact, the statute authorizes a court to issue an OFP of virtually any duration, so long as the OFP does not exceed 50 years. And even if an OFP carries a timeframe of up to 50 years, as occurred here, nothing prevents a serial abuser from moving to modify or vacate the terms and conditions of the OFP after 5 years. See Minn.Stat. § 518B.01, subd. 11(b) (2012). As a result, even if Bergstrom were correct that a statute requiring a court to issue a 50-year OFP would facially violate the First Amendment and Article I, Section 3 of the Minnesota Constitution — a question not before us today — the discretionary nature of subdivision 6a(b) indicates that a substantial number of its applications are constitutional. See Wash. State Grange, 552 U.S. at 457, 128 S.Ct. 1184 (recognizing that the existence of constitutional applications of a state initiative was "fatal" to the claim that the initiative was facially unconstitutional under the First Amendment).
Moreover, the statute permits only a limited class of individuals to seek, and receive protection from, an OFP. As we have held, only a victim of domestic abuse may seek an initial OFP. Schmidt, 818 N.W.2d at 529. The statute, in turn, limits the relief available under an OFP to matters affecting the victim and members of the victim's household and family. Minn. Stat. § 518B.01, subds. 6(a)(1)-(15), 6a(b) (2012). These provisions place identifiable boundaries around the potential speech that an extended OFP may restrict.
Accordingly, because the statute requires a district court to make specific findings, vests discretion in the district court to determine the length of an extended OFP, and places appropriate limits on the coverage of an extended OFP, we reject Bergstrom's facial challenge to subdivision 6a(b) under the First Amendment and Article I, Section 3 of the Minnesota Constitution.
Bergstrom also challenges Minn. Stat. § 518B.01, subd. 6a, as applied to him. To evaluate Bergstrom's as-applied challenge, we again apply Madsen, but do so in the context of the specific circumstances presented by this case. Those circumstances include the facts underlying the issuance of the 2008 OFP, the terms and conditions of the extended OFP, and the findings made by the district court when it extended the 2008 OFP for up to 50 years. The constitutionality of the restrictions placed on Bergstrom thus turns on whether, in light of the facts and circumstances underlying the 2008 OFP and its 2010 extension, the terms and conditions of the extended OFP burden no more speech than necessary to serve a significant state interest.
We begin our analysis with Rew. The district court initially granted the 2008 OFP based on domestic abuse experienced by Rew. In the 2008 OFP petition, Rew stated that she was "afraid for [her] safety" and "fear[ed] imm[i]nent harm" because, among other things, Bergstrom pushed her down a set of stairs when she
When the district court extended the OFP in 2010, the court did not receive testimony, relying instead on the fact that it had issued OFPs against Bergstrom in 2002 and 2007 at Rew's request, that Bergstrom had recently been released from incarceration, and that Bergstrom had been convicted of violation of an OFP on at least three prior occasions. The record, considered as a whole, establishes that Bergstrom has abused Rew and repeatedly disregarded prior no-contact orders, satisfying the requirements for an extended OFP under subdivision 6a(b).
The record, considered as a whole, also establishes that, with respect to Rew, the extended OFP burdens no more speech than necessary to serve a significant state interest. In Rew's 2008 application for an OFP, she alleged that Bergstrom had committed a variety of "specific acts of domestic abuse." Those acts included violating prior OFPs, hacking into her email account, hiding near her with binoculars, committing fifth-degree domestic assault against her, pushing her down the stairs when she was 8 months pregnant, and threatening not to return the children to her after a visitation. Rew also placed an "X" in a box on the application form to indicate that Bergstrom had "inflicted or threatened domestic abuse" upon her. Rather than contest the issuance of the 2008 OFP, Bergstrom agreed that it would be "enforced as if there was an admission or finding of domestic abuse." It is unnecessary to decide whether Bergstrom's agreement to the issuance of the 2008 OFP constituted an admission to all of the specific allegations in Rew's 2008 petition because, at a minimum, it establishes that Bergstrom had committed domestic abuse against Rew. Moreover, the undisputed record demonstrates that Bergstrom has repeatedly violated OFPs.
In light of the record, we conclude that, although the terms and conditions of the extended OFP are broad, they are no broader than necessary. The extended OFP contains a broad prohibition that prevents Bergstrom from contacting Rew, "whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way." It also forbids Bergstrom from coming within 120 yards of Rew's residence, workplace, or church, and requires him to remain at least 50 yards from Rew in all public places. Yet, other than including similar restrictions regarding Bergstrom's contact with and proximity to the parties' minor children, the extended OFP does not prevent Bergstrom from expressing his ideas and messages in a number of other forums and ways. Thus, while the extended OFP burdens Bergstrom's speech, the district court carefully crafted the specific terms and conditions of the extended OFP in light of the significant government interest at stake: the prevention of future domestic abuse against Rew. Accordingly, we conclude that the provisions of the extended OFP that restrict Bergstrom's contact with Rew satisfy Madsen because the incidental restrictions on Bergstrom's speech are no greater than necessary to satisfy the State's significant interest in protecting Rew from domestic abuse.
Under our interpretation of the extended OFP, the restrictions in the extended OFP that relate to the minor children are much shorter in duration than those that relate to Rew. Nevertheless, the record does not contain sufficient findings for us to conclude that the restrictions on Bergstrom's contact with the minor children burden no more speech than necessary to advance a significant state interest, such as, for example, protecting Rew or the minor children from domestic abuse.
The 2008 petition does not definitively allege that Bergstrom committed domestic abuse against the two minor children (as opposed to against Rew herself). The closest it comes to alleging domestic abuse against the children is paragraph 7, which states that Bergstrom "has inflicted or threatened domestic abuse [x] upon me and/or upon [] the minor child(ren) named here: [T.C.B.] 8/29/97 [and D.S.B.] 7/11/99." Although the minor children's names are listed, there is an "X" in only the first box ("upon me"), and not in the second box ("upon the minor child(ren)"). The omission is not a mere technicality: Bergstrom's agreement that the OFP would be "enforced as if there was an admission or finding of domestic abuse" was the sole basis for determining that Bergstrom had committed domestic abuse. Therefore, in light of Rew's failure to affirmatively indicate that Bergstrom committed
To be sure, Rew alleges in the petition that she feared for her children's safety and that Bergstrom pushed her down the stairs when she was 8 months pregnant with T.C.B., but the petition identifies no other instances of abuse directed toward the children.
We therefore have no findings from the district court that Bergstrom has ever abused the minor children or that the restrictions on Bergstrom's contact with the children are necessary to protect Rew or the minor children from domestic abuse. Nor do we have any findings under Minn. Stat. § 518B.01 with respect to any other significant state interest that could conceivably satisfy the Madsen framework. Accordingly, the court of appeals erred when it affirmed the district court's denial of Bergstrom's First Amendment as-applied challenge to the provisions in the extended OFP that prohibit Bergstrom from having contact with the parties' minor children.
In sum, the record is sufficient to conclude that the extended OFP satisfies the First Amendment with respect to Rew, but insufficient to make such a conclusion with respect to the parties' minor children. To be clear, we conclude only that more findings are necessary to uphold the constitutionality of the extended OFP with respect to the children, not that the extended OFP as it relates to the children necessarily violates the First Amendment.
The third question presented by this case is whether the district court violated Bergstrom's procedural due process rights when it granted the extended OFP to Rew.
We conduct a two-step analysis to determine whether the government has violated an individual's procedural due process rights. See Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). First, we identify whether the government has deprived the individual of a protected life, liberty, or property interest. Id.; Carrillo, 701 N.W.2d at 768. If the government's action does not deprive an individual of such an interest, then no process is due. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). On the other hand, if the government's action deprives an individual of a protected interest, then the second step requires us to determine "whether the procedures followed by the [government] were constitutionally sufficient." Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011).
The first step is to determine whether the extended OFP deprived Bergstrom of a protected life, liberty, or property interest. In general, a parent has a liberty interest in the care, custody, and control of his or her children. Baker, 494 N.W.2d at 287; see also Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In this case, it is not clear from the record how — or even if — the extended OFP affects Bergstrom's liberty interest in the care, custody, and control of his children. The record indicates that the parties' marital-dissolution decree, not the OFPs, initially granted sole legal and physical custody of the minor children to Rew and that the OFPs simply reiterated the earlier custody determination. The record does not indicate, however, whether the extended OFP deprived Bergstrom of parenting time to which he was otherwise entitled. Given the uncertainty in the record, we will assume, for the sake of argument, that Bergstrom's liberty interest in the care, custody, and control of his two minor children was at stake during the proceedings on the extended OFP and that Bergstrom was entitled to constitutionally sufficient process before the district court deprived him of that liberty interest.
The second step in the procedural due process analysis is to determine whether the process afforded to Bergstrom was constitutionally sufficient. To
424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Thus, if a protected life, liberty, or property interest is at stake, we must weigh the Mathews factors to determine what type of process is constitutionally due to a person deprived of such an interest. Id. The fundamental requirements of due process are notice and an "opportunity to be heard at a meaningful time and in a meaningful manner." Id. at(citation omitted) (internal quotation marks omitted).
The first Mathews factor is the private interest at stake. Id. at 335, 96 S.Ct. 893. The Supreme Court has recognized that parents have a fundamental liberty interest in the care, custody, and control of their children. Troxel, 530 U.S. at 66, 120 S.Ct. 2054; accord SooHoo v. Johnson, 731 N.W.2d 815, 820 (Minn.2007). In SooHoo, we observed that the right of parents to the care, custody, and control of their children "is an interest far more precious than any property right" and "should not be interfered with except for grave and weighty reasons." 731 N.W.2d at 823 (citations omitted) (internal quotation marks omitted). The duration of the deprivation also is relevant to the first Mathews factor. See Mackey v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (explaining that the duration of a driver's license suspension is relevant to the substantiality of the private interest at stake). Here, we have assumed that Bergstrom faced the possibility of a multiple-year deprivation of an interest in the care, custody, and control of his children. Accordingly, Bergstrom had a substantial private interest at stake.
The second Mathews factor is the risk of an erroneous deprivation of a protected interest under current procedures and the probable value, if any, of additional safeguards. 424 U.S. at 335, 96 S.Ct. 893. A court may extend an existing OFP only upon application of the person seeking relief and after notice to all parties and a hearing. Minn.Stat. § 518B.01, subd.6a(a). At the hearing, the petitioner must demonstrate facts sufficient for a court to make at least two findings — one under subdivision 6a(a) and another under subdivision 6a(b) — before it can extend an existing OFP for up to 50 years. Id., subd. 6a.
In this case, the district court held an initial hearing on Rew's application after providing notice to Bergstrom. The court also held a second hearing to address Bergstrom's motion to vacate the extended OFP. Counsel represented Bergstrom at both hearings. 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. See Kletschka v. Le Sueur Cnty. Bd. of Comm'rs, 277 N.W.2d 404, 405 (Minn. 1979).
Bergstrom nevertheless argues that the process that he received was constitutionally
Bergstrom's first objection is really a substantive challenge to the criteria of Minn.Stat. § 518B.01, subd. 6a, disguised as a procedural due process claim. The district court relied on the following three allegations from Rew's application to grant the extended OFP: (1) the court had granted OFPs against Bergstrom on Rew's behalf on three prior occasions; (2) the court had convicted Bergstrom three times of violation of an OFP; and (3) Bergstrom recently had been released from incarceration. At the hearing on the extended OFP, Bergstrom had the opportunity to challenge each of Rew's allegations. Had any of the allegations been untrue, Bergstrom could have adduced evidence to prove them false. For example, if Rew's allegation that Bergstrom had recently been released from incarceration had been false, then Bergstrom could have testified or presented documentary evidence to disprove the allegation. Unfortunately for Bergstrom, however, each of the facts underlying the district court's decision to grant an extended OFP was true, and Bergstrom has never claimed otherwise.
Bergstrom's real complaint, therefore, is that the criteria used to extend an OFP for up to 50 years are unfair because many of them had already been judicially determined. However, an individual's right to procedural due process is not violated simply because the relevant facts in a judicial proceeding are easily proven by reference to prior proceedings. Nor does an individual necessarily have a procedural due process right to collaterally attack facts that a court has found in a prior judicial proceeding — such as the three previous findings that Bergstrom had violated an OFP. See Sawh v. City of Lino Lakes, 823 N.W.2d 627, 635 (Minn.2012) (concluding that because a city code required "only the existence of a `potentially dangerous' designation" before the city could declare the appellant's dog "dangerous," the city was not required to provide an opportunity to the appellant to challenge the correctness of that earlier designation at a later hearing); see also United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (holding that due process requires "that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review"). In sum, Bergstrom's first objection does not really implicate procedural due process at all, much less demonstrate that there has been a violation of his procedural due process rights.
Bergstrom's second objection is that the proceeding violated his due process rights because the district court wrongfully excluded his evidence at the hearing. Specifically, Bergstrom attempted to present his own testimony and the testimony of two other witnesses to refute
Under these circumstances, the district court's decision to exclude Bergstrom's evidence did not create a substantial risk that the court erroneously deprived Bergstrom of a liberty interest. District courts have broad discretion to admit or exclude evidence on a number of grounds, including relevance. State v. Brown, 739 N.W.2d 716, 720 (Minn.2007). In this case, the court excluded Bergstrom's evidence only after it entertained Bergstrom's offer of proof and considered the offer of proof in the context of Rew's evidence and the statutory requirements for the issuance of an extended OFP. In making its decision to exclude the evidence, the court effectively decided that the testimony would have no effect on its decision about whether to issue the extended OFP. See State v. LeDoux, 770 N.W.2d 504, 514 (Minn.2009) (stating that, at a bail hearing, "a defendant may only call a witness if the defendant makes a persuasive offer of proof that the witness's testimony, when considered in the context of all the other relevant available information, will lead to either release without bail or a reduction in the bail amount to a level that would result in the defendant's release"). Indeed, as the court explained, it was unnecessary to consider the 2010 incident at all because the remainder of Rew's evidence provided independent justification for the grant of an extended OFP under Minn.Stat. § B.01, subd. 6a. Although the court certainly could have admitted the testimony, neither the United States Constitution nor the Minnesota Constitution required it to do so under the circumstances. See Anderson v. Sternes, 243 F.3d 1049, 1054 (7th Cir.2001) (recognizing that even the presence of evidentiary error does not necessarily result in a violation of due process).
Bergstrom's third objection is that the statute makes it too difficult to modify or vacate an extended OFP once it is issued. Under Minn.Stat. § 518B.01, subd. 11(b), a person who is subject to an extended OFP may seek its modification if it "has been in effect for at least five years and the respondent has not violated the order during that time." To prevail on a motion to modify an extended OFP, the respondent must "prov[e] by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting or extending the order for protection no longer apply and are unlikely to occur." Minn.Stat. § 518B.01, subd. 11(b).
At this point, Bergstrom's third objection is largely theoretical because he has never applied to modify the extended OFP under Minn.Stat. § 518B.01, subd. 11(b). To be sure, Bergstrom filed a motion under Minn. R. Civ. P. 60.02 to vacate the judgment that extended the OFP for up to 50 years, but that motion was not based on any of the grounds delineated in Minn.Stat. § 518B.01, subd. 11(b), nor was it characterized as a motion seeking relief under that provision. We will therefore treat Bergstrom's third objection as a facial challenge to the validity of subdivision 11(b). To succeed on a facial challenge, Bergstrom must meet the "heavy burden
Similar to the procedure to extend an OFP, the procedure to modify or vacate an OFP begins with an application and is followed by "notice to all parties" and a hearing. Minn.Stat. § 518B.01, subd. 11(a). The hearing under subdivision 11(b) occurs before an impartial judge and the decision rendered by the court is subject to the general rules governing appellate review. Bergstrom makes no argument that existing procedures are inadequate to protect his rights. Rather, he argues that it is too difficult to satisfy the substantive standard that applies to an application brought under subdivision 11(b). Bergstrom's third objection is thus another veiled substantive challenge disguised as a procedural due process claim.
Even properly characterized, however, Bergstrom's challenge fails. It is simply not true that a respondent can never prove that there has been a material change of circumstances and that the reasons underlying the decision to grant the extended OFP no longer apply and are unlikely to recur. On the contrary, a prior OFP or a conviction of violation of an OFP can be vacated on appeal, and nothing prevents Bergstrom or any other person subject to the terms and conditions of an extended OFP from filing a petition for postconviction relief in an attempt to overturn a prior conviction of violation of an OFP. Moreover, the OFP in this case provides a separate path for Bergstrom to obtain partial relief from the restrictions it imposes: Bergstrom can regain parenting time by completing the mandated individual therapy and applying to the district court for relief.
In sum, Bergstrom has not shown that the procedures governing the extension of an OFP create a risk of "an erroneous deprivation of [his liberty interest]" or that "additional or substitute procedural safeguards" are necessary. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Indeed, Bergstrom fails to argue that any additional procedures are necessary under Minn.Stat. § 518B.01 to adequately protect his rights.
In light of the lack of any meaningful argument under the second Mathews factor that additional procedures are necessary to protect Bergstrom from an erroneous deprivation of his liberty interest, we address only briefly the third Mathews factor: "the Government's interest, including... the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." 424 U.S. at 335, 96 S.Ct. 893. We first observe that the State has a "strong interest in preventing violence in a domestic setting," Baker, 494 N.W.2d at 288, and that Bergstrom does not dispute the significance of this interest. We also note that Minn.Stat. § 518B.01, subd. 6a, already contains a number of procedural safeguards — including notice, an adversarial hearing in the district court, and the opportunity for appellate review — that adequately protect Bergstrom's liberty interest. Accordingly, we conclude that the district court did not violate Bergstrom's procedural due process rights when it granted the extended OFP to Rew.
The fourth question presented by this case is whether the extended OFP violates the prohibition on ex post facto laws in either the United States Constitution or the Minnesota Constitution. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11.
The United States Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." U.S. Const. art. I, § 10. The Minnesota Constitution likewise states that "[n]o ... ex post facto law ... shall be passed." Minn. Const. art. I, § 11. Both provisions prohibit laws that "render[] an act punishable in a manner in which it was not punishable when it was committed." Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955). To qualify as an ex post facto law, a statute must be a criminal or penal law, it must not be "merely procedural," it must "apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29 & n. 12, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); State v. Moon, 463 N.W.2d 517, 521 (Minn.1990).
Bergstrom contends that Minn.Stat. § 518B.01, subd. 6a(b), which allows a court to extend an OFP for up to 50 years, constitutes an ex post facto law because the statute does not limit the court to the consideration of only facts that postdate the passage of the statute. Indeed, when the district court granted an extended OFP to Rew, the court relied upon facts that predated the effective date of the statute, including two of Bergstrom's convictions of violation of an OFP. The third conviction occurred just 2 days after the statute became effective, but it is undisputed that the acts underlying Bergstrom's conviction occurred before the statute's effective date. Thus, Bergstrom is correct when he observes that the district court retrospectively applied subdivision 6a(b) to him when it granted the extended OFP. See Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (defining retrospective application as applying a law to events occurring before its enactment and disadvantaging the offender affected by it). The statute is also not merely procedural because it alters Bergstrom's substantial rights, including his freedom of speech. See Weaver, 450 U.S. at 29 n. 12, 101 S.Ct. 960. The only question in dispute, therefore, is whether subdivision 6a(b) qualifies as a criminal or penal statute under either the United States Constitution or the Minnesota Constitution. See Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (stating that "the constitutional prohibition on ex post facto laws applies only to penal statutes").
We begin with Bergstrom's ex post facto claim under Article I, Section 10 of the United States Constitution. To determine whether a statute constitutes a criminal or penal law, we first "ascertain whether the legislature meant the statute to establish `civil' proceedings." Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If the Legislature indicated, as a matter of statutory interpretation, that an extended OFP is a criminal penalty, then the district court violated Bergstrom's constitutional rights when it retrospectively applied subdivision 6a(b) to Bergstrom. See Smith v. Doe, 538 U.S. 84, 92-93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). If, on the other hand, the Legislature intended the regulatory scheme to be civil and nonpunitive, then
We begin with the first step, which is to determine whether the Legislature indicated that an extended OFP is a civil remedy or a criminal penalty. See id. Although the Legislature did not explicitly declare whether an extended OFP is a criminal or civil sanction, four features of Minn.Stat. § 518B.01 indicate that the Legislature intended to establish a civil remedy.
First, a private party initiates the proceedings for an extended OFP through "an application for subsequent relief" and the relief obtained is an "order for protection." Minn.Stat. § 518B.01, subd. 6a. The use of these remedial, nonpunitive terms in the statute and the absence of the State of Minnesota as a party in such proceedings are indicative of a civil remedy, not a criminal penalty. Cf. United States v. Halper, 490 U.S. 435, 451, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) ("The protections of the Double Jeopardy Clause are not triggered by litigation between private parties."), overruled on other grounds, Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Second, the statute that authorizes an extended OFP is not located in the criminal code, but in its own chapter labeled "Domestic Abuse," which contains a number of indisputably civil provisions, including the standards for domestic-abuse counseling programs. Minn.Stat. § 518B.01-.02 (2012); see also Smith, 538 U.S. at 94, 123 S.Ct. 1140 (noting that the placement of a statute in the civil code can be an important indication of a legislature's intent to create a nonpunitive, regulatory measure). Third, the statute does not require an abuser to be convicted of a crime as a prerequisite to the issuance of an extended OFP. See Minn. Stat. § 518B.01, subd. 6a(b); see also Hendricks, 521 U.S. at 362, 117 S.Ct. 2072 (noting that one indication that Kansas's regime for commitment of sex offenders was civil was that a criminal conviction was not a prerequisite to commitment). Fourth, we already have recognized that the Legislature enacted Minn.Stat. § 518B.01 for a remedial, nonpunitive purpose: to protect victims of domestic abuse from their abusers, not to punish abusers for their conduct. Burkstrand v. Burkstrand, 632 N.W.2d 206, 211 (Minn.2001) (noting that the OFP statute "was enacted as one means to protect [domestic abuse] victims"); see also Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 ("Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil... scheme designed to protect the public from harm."). For these four reasons, we conclude that the Legislature has indicated that an extended OFP is a civil remedy.
We now move to the second step, which requires us to determine whether an extended OFP is so punitive, either in its purpose or effect, "as to transform what was clearly intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99, 118 S.Ct. 488 (citation omitted) (internal quotation marks omitted). In making that determination, we rely on the seven factors from Kennedy v. Mendoza-Martinez:
372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); see also Smith, 538 U.S. at 97, 123 S.Ct. 1140 (applying the Mendoza-Martinez factors to an ex post facto challenge to determine whether a statute created a criminal penalty). The Mendoza-Martinez factors are neither exhaustive nor dispositive; rather, they serve as useful guideposts to determine whether a statute creates a civil or criminal sanction. See Ward, 448 U.S. at 249, 100 S.Ct. 2636.
The first Mendoza-Martinez factor is "[w]hether the sanction involves an affirmative disability or restraint." 372 U.S. at 168, 83 S.Ct. 554. The classic affirmative disability or restraint is "the infamous punishment of imprisonment" that often accompanies criminal statutes. Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (citation omitted) (internal quotation marks omitted). While none of the forms of relief in Minn.Stat. § 518B.01, subd. 6a, impose a restraint approaching the level of imprisonment, many of the available remedies in the statute impose an affirmative disability or restraint. For example, an extended OFP may "prohibit the abusing party from having any contact with the petitioner, whether in person, by telephone, mail or electronic mail or messaging, through electronic devices, through a third party, or by any other means." Minn.Stat. § 518B.01. subd. 6a(b). Such a limitation — which the district court imposed on Bergstrom in the extended OFP — imposes an affirmative disability or restraint because it often eliminates any opportunity for the abusing party to interact with the victim and members of the victim's family and household. Therefore, the first Mendoza-Martinez factor favors the conclusion that an extended OFP is a criminal penalty.
The second Mendoza-Martinez factor is whether the sanction "has historically been regarded as a punishment." 372 U.S. at 168, 83 S.Ct. 554. There is no evidence that an OFP has been regarded in the nation's history and traditions as a punishment. See Smith, 538 U.S. at 97-99, 123 S.Ct. 1140. Although OFPs are of relatively recent vintage, they historically have been regarded as remedial and nonpunitive in light of their purpose to protect the victim and members of the victim's family and household from domestic abuse. See Burkstrand, 632 N.W.2d at 211. For that reason, a number of courts have concluded that the imposition of an OFP is not a criminal penalty. See, e.g., Coburn v. Coburn, 342 Md. 244, 674 A.2d 951, 955 (1996) (explaining that the goals of the Maryland domestic-abuse statute are "preventive, protective and remedial, not punitive"); Cooke v. Naylor, 573 A.2d 376, 377 (Me.1990) (explaining that a domestic-abuse protective order "is historically an equitable remedy, very similar to an injunction, that regulates the defendant's conduct ... without imposing any punishment per se for that conduct" (citation omitted)). Therefore, the second Mendoza-Martinez factor favors the conclusion that an extended OFP is a civil remedy.
The fourth Mendoza-Martinez factor is whether the sanction's "operation will promote the traditional aims of punishment — retribution and deterrence." 372 U.S. at 168, 83 S.Ct. 554. Although an extended OFP unquestionably deters abusers from abusing their victims and "curtail[s] the harm one household member may be doing to the other," Baker, 494 N.W.2d at 285, even the deterrent features of an extended OFP serve a largely civil rather than criminal purpose by "protect[ing] victims of domestic assault." Id.; see also Hudson, 522 U.S. at 105, 118 S.Ct. 488 ("To hold that the mere presence of a deterrent purpose renders such sanctions `criminal' ... would severely undermine the Government's ability to engage in effective regulation...."). Moreover, there is no evidence that an extended OFP has a retributive purpose. Therefore, the fourth Mendoza-Martinez factor favors the conclusion that an extended OFP is a civil remedy.
The fifth Mendoza-Martinez factor is whether the behavior to which the sanction applies "is already a crime." 372 U.S. at 168, 83 S.Ct. 554. The fifth factor is entitled to little weight in the analysis because, although an extended OFP can be predicated on "past conduct, which was, and is, a crime, ... [t]he obligations the statute imposes ... [are] not predicated upon some present or repeated violation." Smith, 538 U.S. at 105, 123 S.Ct. 1140. Therefore, the fifth Mendoza-Martinez factor does not favor either conclusion.
The sixth Mendoza-Martinez factor is "whether an alternative purpose" may be rationally assigned to the sanction. 372 U.S. at 168-69, 83 S.Ct. 554. An extended OFP can serve a number of civil, nonpunitive purposes, which include, among others, the facilitation of ongoing treatment and counseling for persistent domestic abusers, the protection of the safety and best interests of children through the modification of parenting-time and custody arrangements, and the delivery of restitution and monetary support to victims of domestic abuse. See Minn.Stat. § 518B.01, subd. 6 (describing the various forms of relief that may be granted in an OFP). Moreover, Bergstrom does not dispute that an extended OFP has the "legitimate nonpunitive purpose" of promoting public safety. Smith, 538 U.S. at 102-03, 123 S.Ct. 1140. Therefore, the sixth Mendoza-Martinez factor favors the conclusion that an extended OFP is a civil remedy.
The seventh and final Mendoza-Martinez factor is whether the sanction appears excessive in relation to the alternative purposes assigned to it. 372 U.S. at. The extension of an OFP for up to 50 years may be, in some cases, excessive in relation to the alternative purposes identified above. However, "[t]he excessiveness
Only two of the seven Mendoza-Martinez factors favor the conclusion that an extended OFP is a criminal penalty: it involves an affirmative disability or restraint and, in some cases, it may be excessive in relation to the alternative purposes assigned to it. By contrast, four of the factors favor treating an extended OFP as a civil remedy, and the remaining factor is neutral. Because "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty," Smith, 538 U.S. at 92, 123 S.Ct. 1140 (citation omitted) (internal quotation marks omitted), we conclude that an extended OFP is a civil remedy. Accordingly, there has been no violation of the United States Constitution's prohibition on ex post facto laws in this case.
Bergstrom also raises a state constitutional challenge to Minn.Stat. § 518B.01, subd. 6a(b), based on the ex post facto clause of the Minnesota Constitution. Minn. Const. art. I, § 11. Although we have never squarely decided whether the Minnesota Constitution's ex post facto clause provides greater protection than its federal counterpart, we long ago observed that the "language of our state constitution on [ex post facto laws] is [materially] identical with that of the constitution of the United States." State v. Ryan, 13 Minn. 370, 375-76 (Gil. 343, 348) (1868).
The central question, therefore, is whether we should apply the federal ex post facto analysis to Bergstrom's state ex post facto claim. Two possibilities exist. The first is to apply the federal analysis to Bergstrom's federal claim, as we must, and then adopt some other analysis to distinguish criminal penalties from civil remedies under the Minnesota Constitution. The other is to treat the two claims identically. The latter option is more consistent with our general approach to state constitutional questions.
We generally do not construe the Minnesota Constitution to provide more protection for individual rights than the United States Constitution "unless there is a principled basis to do so." Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn.2005). The text of the two provisions does not provide a principled basis to depart from
Because the language of the two constitutional provisions is substantively identical, we will only consider a departure from Supreme Court precedent if: (1) the Supreme Court "has made a sharp or radical departure from its previous decisions" and we "discern no persuasive reason to follow such a departure"; (2) the Supreme Court has retrenched on a Bill of Rights issue; or (3) Supreme Court precedent "does not adequately protect our citizens' basic rights and liberties." Kahn, 701 N.W.2d at 828. None of those circumstances is present here. Far from retrenching or sharply or radically departing from precedent, the Supreme Court has never applied the Ex Post Facto Clause of the United States Constitution to civil proceedings and remedies, see Calder v. Bull, 3 U.S. 386, 391, 3 Dall. 386, 1 L.Ed. 648 (1798), and its approach to distinguishing between criminal penalties and civil remedies has remained largely unchanged over time, see, e.g., Helvering v. Mitchell, 303 U.S. 391, 399-400, 58 S.Ct. 630, 82 L.Ed. 917 (1938). Moreover, Bergstrom does not make any argument that the federal framework would inadequately protect our citizens' rights and liberties under the Minnesota Constitution. Accordingly, because we can discern no principled reason, textual or otherwise, to treat the prohibition on ex post facto laws in the Minnesota Constitution any differently than its federal counterpart, we conclude that there has been no violation of the Minnesota Constitution's ex post facto clause in this case.
The fifth and final question presented by this case is whether the extended OFP violates the Double Jeopardy Clause of either the United States Constitution or the Minnesota Constitution. U.S. Const. amend. V; Minn. Const. art. I, § 7. The Double Jeopardy Clause of the United States Constitution states that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend.V. Using substantially similar language to the United States Constitution, Article I, Section 7 of the Minnesota Constitution provides that "no person shall be put twice in jeopardy of punishment for the same offense." Each constitutional provision protects both against multiple punishments for the same offense, and against a second prosecution after an acquittal or conviction. See State v. Jeffries, 806 N.W.2d 56, 60-61 (Minn. 2011). We review Bergstrom's double-jeopardy challenge de novo. See State v. Large, 607 N.W.2d 774, 778 (Minn.2000).
Bergstrom argues that the extended OFP violates his double-jeopardy rights because it amounts to an additional punishment for his three prior criminal convictions of violation of an OFP. Bergstrom, however, overlooks a critical fact: Rew, a private party, obtained the OFP through private litigation in which the State was not a party. Bergstrom has not identified, and we have not found, any case law extending an individual's double-jeopardy rights to invalidate relief obtained by one private party against another.
The reason is that the Supreme Court has declared that "[t]he protections of the Double Jeopardy Clause are not triggered by litigation between private parties." Halper, 490 U.S. at 451, 109 S.Ct. 1892. Although the Court has not provided any further explanation of its statement in Halper, the United States Court of Appeals for the Fifth Circuit has provided a justification for the rule:
United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.1994). In light of Halper, Bergstrom's federal double-jeopardy claim fails because the sovereign was not involved in obtaining the extended OFP.
As with the ex post facto analysis, this case requires us to again consider whether to extend the Supreme Court's analysis to an analogous provision of the Minnesota Constitution. Historically, we have interpreted Minnesota's Double Jeopardy Clause to be coextensive with its federal counterpart. See, e.g., State v. Castillo-Alvarez, 836 N.W.2d 527, 535-36 (Minn. 2013) (adopting the dual-sovereignty doctrine for double-jeopardy challenges under the Minnesota Constitution); State v. Hanson, 543 N.W.2d 84, 87-88 (Minn. 1996) (following the Supreme Court's lead in replacing the double-jeopardy test from Ward, 448 U.S. at 248-49, 100 S.Ct. 2636, with the "solely deterrent/retributive" test from Halper, 490 U.S. at 448-49, 109 S.Ct. 1892).
Moreover, there is no other principled basis to adopt a different rule. The rule from Halper — which limits the application of the constitutional prohibition on double jeopardy — is neither a sharp nor a radical departure from the Supreme Court's previous decisions, nor does it represent a retrenchment on a Bill of Rights issue. See Kahn, 701 N.W.2d at 828. And Bergstrom has not identified any reason that a rule limiting double-jeopardy claims to actions by the sovereign would inadequately
For the foregoing reasons, we affirm the decision of the court of appeals in part, reverse in part, and remand to the district court for further proceedings to determine whether the provisions in the extended OFP that prohibit Bergstrom from having contact with the minor children burden no more speech than necessary to serve a significant state interest.
Affirmed in part, reversed in part, and remanded.
LILLEHAUG, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
GILDEA, Chief Justice (concurring in part, dissenting in part).
The plurality today rewrites the facts in the record in order to support its ill-considered and unnecessary remand of Bergstrom's claim with respect to his children. The plurality's analysis of this claim is not consistent with either the record or our precedent. I therefore respectfully dissent from that portion of the opinion.
Bergstrom argues that the 50-year extension of the order for protection (OFP) in this case is unconstitutional both with respect to Vanessa Rew, his ex-wife, and with respect to his and Rew's minor children. I concur with the conclusion that the statute authorizing the extension of an OFP for 50 years, Minn.Stat. § 518B.01, subd. 6a(b) (2012), is constitutional on its face and as applied with respect to Rew. With respect to the children, the court rightly concludes that the OFP does not limit Bergstrom's contact with his children for 50 years. Rather, the OFP prohibits Bergstrom from having contact with his children only until they reach 18. The plurality nevertheless holds that Bergstrom's as-applied challenge to the OFP with respect to the children must be remanded for further fact-finding by the district court. I disagree for two reasons.
First, the remand is ill-considered. Specifically, consistent with our precedent, we should not even address Bergstrom's as-applied challenge to the 50-year duration of the restrictions on his contact with the children. There is no reason to address Bergstrom's claim because the court has interpreted the extended OFP as limiting Bergstrom's contact with the children "for only a few years." Bergstrom makes no argument that a restriction on contact with his children "for only a few years" is unconstitutional, and he has not provided an adequate record for appellate review of that unasserted claim.
Second, if the court were to reach the claim that Bergstrom does not make, a remand is still not necessary. A remand is unnecessary because Bergstrom consented to the restrictions in the 2008 OFP, and the district court specifically found that the safety of Rew and the children requires the parenting-time restrictions. The plurality ignores both facts in unnecessarily
For these reasons, I respectfully dissent from that portion of the opinion addressing the constitutionality of Minn.Stat. § 518B.01, subd. 6a(b), as applied to the restrictions on Bergstrom's contact with the children.
I turn first to a discussion of the facts in the record before us. The plurality grounds its decision to remand on its assertion that Rew's allegations of domestic abuse did not include allegations that Bergstrom abused the children. The plurality is wrong.
The record shows that Rew alleged that Bergstrom has waged an extended campaign to terrorize his children along with his ex-wife, both by violating orders for protection in the children's names and by threatening the children's safety and emotional well-being. In Rew's 2008 OFP affidavit and petition, she alleges that when she was 8 months pregnant with her first son, Bergstrom pushed her down the stairs during an argument. Minnesota law makes clear that an assault against a pregnant woman can also qualify as an assault against her unborn child. See Minn.Stat. §§ 609.267-.2672 (2012). In addition, Rew alleged that Bergstrom had "threatened in the past to not return the children" after visitation. Threatening to kidnap the children constitutes "domestic abuse" against the children under the Domestic Abuse Act.
Even if Rew should have checked both boxes to allege abuse against the children (which is not clear from the form), her intent was clear from the fact that she listed the children and their birth dates in the spaces provided. Moreover, our precedent requires us to liberally construe pro se filings. See State ex rel. Farrington v. Rigg, 259 Minn. 483, 484, 107 N.W.2d 841, 841-42 (1961). Our precedent therefore does not permit the rejection of Rew's allegation of abuse against her children on a technicality.
To summarize, the allegations Rew made in support of her petition for an OFP in 2008 and in her 2010 motion for an extension of the OFP make clear that Bergstrom's domestic abuse was targeted not only at Rew but also at the well-being of the children. The district court acknowledged these allegations when it held that the OFPs were necessary for the safety of the children. We are bound by this record and are not entitled to create our own facts.
When all of Rew's allegations in the record are considered, it is clear that it is a mistake to remand Bergstrom's claim challenging a 50-year restriction on his contact with the children.
As a threshold matter, an analysis of the constitutionality of the restrictions on Bergstrom's contact with the minor children for 50 years is not necessary. The analysis is not necessary because the suspension of Bergstrom's parenting time in the extended OFP was only "temporar[y]" and the court interprets the restrictions on his contact with the children as applying — at the longest — only until each child reaches the age of 18.
In this case, Bergstrom indicates that he is challenging the "50-year OFP `remedy' subsection" of the OFP statute, Minn.Stat. § 518B.01, subd. 6a(b), which permits a court to grant relief "for a period of up to 50 years." Bergstrom's First Amendment challenge centers on "the very long length of time of the restraining order" — the extension of the OFP for a period of 50 years. Bergstrom argues that it is unconstitutional to restrain his speech for 50 years, which "would not allow him to see his children, ever again." In a memorandum to the district court, Bergstrom acknowledged that "[a]n OFP extended for 1-2 years is hugely different from one extended for 50 years." Therefore, the conclusion that the extended OFP restricts Bergstrom's contact with the children "for only a few years" renders unnecessary the consideration of Bergstrom's challenge to "a 50-year prior restraint on speech." See State v. One Oldsmobile Two-Door Sedan, 227 Minn. 280, 288, 35 N.W.2d 525, 530 (1948) (adopting alternative ground of decision rather than deciding constitutionality of statute).
Even if the constitutionality of the restrictions on Bergstrom's contact with the minor children were properly before us, we should not reach the First Amendment issue because Bergstrom has not provided an adequate record for appellate review. See Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (explaining that the party seeking review must provide a record that is sufficient to show "all matters necessary for consideration of the questions presented"). Bergstrom argues that the restrictions on his contact with the children violate the First Amendment because there is no finding that he ever abused the children, notwithstanding his consent to the 2008 OFP with the "understand[ing] that the order will be enforced as if there was an admission or finding of domestic abuse." The plurality evaluates Bergstrom's as-applied challenge "in the context of the specific circumstances presented by this case," including "the facts underlying the issuance of the 2008 OFP." This analysis focuses on the "adequacy of the record" and the absence of any evidence that Bergstrom abused the children, and determines that the record is "insufficient" to conclude that the extended OFP satisfies the First Amendment with respect to the children. The plurality and concurrence can reach this conclusion, however, only by ignoring all of Rew's allegations detailed above.
Moreover, even if the record could be viewed as insufficient, which in my view it cannot, such deficiency exists because Bergstrom consented to the 2008 OFP without findings, and he has not provided a copy of the transcript from the hearing at which the parties' agreement was stated on the record. Accordingly, Bergstrom has not met his burden of providing an adequate record for review. See Kendaco, Inc. v. Rickard-Borske Co., 290 Minn. 346, 350-51, 187 N.W.2d 697, 700 (1971) (affirming the district court where the record presented to support the appellants' claim was incomplete and ambiguous).
In any event, the plurality misconstrues the record that is available in concluding that a remand is required because there are "no findings from the district court that Bergstrom has ever abused the minor
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.
Moreover, although the plurality "remand[s] to the district court for further findings as to whether the provisions burdening Bergstrom's speech to the children are necessary" to protect Rew or the children from domestic abuse, the district court already found that "[t]he safety of [Rew] and the children requires that parenting time (visitation) be limited." It is not clear what further findings are needed.
Indeed, the court concludes that the district court's findings with respect to Rew meet the constitutional standard even for a 50-year restriction. In reaching this conclusion, the court specifically states that "[t]he record, considered as a whole, establishes that Bergstrom has abused Rew and repeatedly disregarded prior no-contact orders, satisfying the requirements for an extended OFP under subdivision 6a(b)." The facts the court relies on to support this holding are:
These same three facts are true for the children; the court cannot contend otherwise unless it is going to ignore the evidence
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.
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. This is so because the OFP to protect the children, which extends for only a few years, is much more narrowly tailored than the OFP to protect Rew, which extends for 50 years.
In conclusion, the court errs by addressing Bergstrom's First Amendment challenge to the 50-year restriction on his contact with the children and remanding to the district court. I would resolve the appeal without addressing the as-applied challenge with respect to the children, and affirm.
I join in the concurrence and dissent of Chief Justice Gildea.
ANDERSON, Justice (concurring).
I join the majority opinion, except with respect to certain factual issues pertaining to Rew's safety and the best interests of her children justifying the restrictions on Bergstrom's parenting time. I agree with the majority that a remand is required, but I would conclude that the remand is only necessary to clarify for the benefit of the parties whether an order for protection (OFP) was issued against Bergstrom protecting the children based on past domestic abuse or a threat to the safety of the children, or whether the restrictions involving the children were only intended as a temporary parenting-time decision based on the abuse against Rew and the best interests of the children. Because the current restrictions placed on Bergstrom's contact with the children are no more burdensome than necessary to protect the State's interest in Rew's safety and the emotional well-being and mental health of the children, I would conclude that the restrictions are not unconstitutional and that further fact-finding is not required on this issue.
The majority properly outlines that restraints on speech must be balanced against a significant state interest and analyzed with an eye towards restricting as little speech as possible while still protecting that state interest. As the majority discusses, protecting the children from domestic abuse is clearly a significant state interest. A valid OFP issued on behalf of the minor children requires either that domestic abuse was committed directly against the children, Minn.Stat. § 518B.01, subd. 4 (2012), or that the district court found that the order was necessary to protect the children as Rew's family or household members, see Minn.Stat. § 518B.01, subd. 6(a)(13) (2012); Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d 523, 529 n. 6 (Minn.2012). There is no dispute here that an OFP was issued involving the children, but neither the detailed July 30, 2010, affidavit submitted by Rew outlining the criminal, abusive, and stalking behavior of Bergstrom, nor any of the three orders issued by the district court imposing or continuing the OFP contain any specific allegations of domestic abuse against the children or explain why the OFP is necessary for the children's protection. Thus, I agree with the majority that if the safety of the children, including protecting them from domestic abuse by Bergstrom, is to be the state interest that justifies restricting Bergstrom's speech, further findings of fact would be required.
I begin with the observation, not clearly laid out in either the majority opinion or by the Chief Justice in her concurrence and dissent, that the consequences of an extended OFP are of different orders of magnitude as between Bergstrom's former spouse and his children. As a consequence of the dissolution of a marriage, even under less threatening circumstances than we have here, there is only a limited legal (or practical) relationship between the former spouses, usually centered on raising children, and even that relationship likely fades away with time. It is a different, and much more complicated, story when dealing with parent-child relationships, usually life-long in character.
And while I agree with the majority that the reference to "minor children" is sufficient to confine the OFP in this case to the
And if that is what the parties sought and resisted here, and what the district court ordered, the Chief Justice's argument that an OFP was issued protecting not only Rew but also the children would be very problematic. Would a 50-year restraining order, without district court findings of abuse of the children, be enforceable if the references to "minor" children did not appear?
Fortunately, in the end, although not free from doubt, I think there is an alternative explanation for what the district court was attempting to accomplish when faced with these difficult circumstances. That explanation is that the orders restricting Bergstrom's contact with his children were instead intended as a temporary decision on parenting time. Parenting-time decisions are made based on different considerations than the issuance of an OFP, but these considerations can also represent significant state interests that may justify a burden on speech. The OFP statute specifically permits the district court to temporarily limit or deny parenting time based on the safety of the victim (here, Rew), the safety of the children, and the best interests of the children. Minn. Stat. § 518B.01, subd. 6(a)(4). Thus, Bergstrom's parenting time can be temporarily denied, which in effect means no contact with his children, if this restriction was necessary to protect the State's interests in Rew's safety and the safety and best interests of the children.
There is significant evidence supporting the theory that the OFP incorrectly listed the children as direct petitioners and instead meant to include them only as to a temporary denial of parenting time. In Rew's 2008 application for an OFP, she requested relief including "[N]o parenting time (visitation)." In the guardian ad litem report, Rew's request on behalf of the children is characterized as a parenting-time decision, stating "[Rew's] current request for protection seeks review of [Bergstrom's] parenting time award under the Judgment and Decree based upon the most recent OFP violation and related allegations of conduct that, if proven, may be contrary to the welfare and best interests of the children."
If the restrictions in the OFPs regarding the children were intended as temporary restrictions on parenting time, Minn. Stat. § 518B.01, subd. 6(a)(4), introduces two additional state interests beyond the safety of the children that potentially form a basis for restricting Bergstrom's speech — Rew's safety and the best interests of the children. There is significant evidence in the record that Bergstrom's contact with the children endangers Rew and is not in the best interests of the children. In Rew's affidavit, she describes numerous acts of domestic abuse that Bergstrom has committed against her, including pushing her down the stairs, punching her, choking her, causing her to black out by hitting her head against a faucet, and threatening to kill her. Some of these actions led to the arrest and conviction of Bergstrom for fifth-degree domestic assault. Bergstrom has also repeatedly stalked Rew and violated the OFPs issued to protect her from him. A psychological evaluation of Bergstrom reported that it was conceivable that Bergstrom would involve the children in the "determined, even obsessive" way in which he stalked Rew. The conclusion that Bergstrom may use the children to reach Rew is also supported by a claim by one of the children, reported to a therapist, that Bergstrom had hidden cellphones in various locations and pressured the child to use these phones to secretly call him. Thus, there is ample support in the record to conclude that allowing Bergstrom to contact the children would create a safety risk for Rew.
In addition to the potential threat to Rew's safety, Bergstrom's contact with the
The restrictions imposed on Bergstrom's speech as related to the children are narrowly tailored so as to not burden any more speech than necessary to protect these interests. A parenting-time decision authorized by the OFP statute based on the best interests of the child and the safety of the non-abusive parent can only create restrictions that last until the child is no longer a minor. Here, the district court only imposed restrictions on Bergstrom's access to his children that would last a few years, and the restrictions can be removed by meeting conditions directly tailored to protect the children's best interests. Specifically, the conditions involving therapy and input from the therapists about reunification are designed to allow Bergstrom to reunite with his children as soon as it can be shown that both the children and Bergstrom are equipped with the tools necessary to prevent the interaction from being harmful to the children. Accordingly, the restrictions are constitutional, as they burden no more speech than necessary to protect the State's interest in Rew's safety and the children's best interests, and additional fact-finding by the district court is not necessary regarding the parenting-time restriction. This analysis has the additional benefit of avoiding the more difficult questions otherwise presented about enforcing an OFP on behalf of children where none of the orders issued by the district court specifically finds abuse of the children by the restrained party.
Because I conclude that the parenting-time approach set forth above is the most
Id. at. Because neither party discusses the applicability of the captive-audience doctrine from Rowan and its progeny, however, we express no opinion about when, and how, the doctrine might apply in a future case involving the constitutionality of an OFP.
In addition, we have not addressed any arguments that venture beyond the matters raised in the parties' briefs. Bergstrom has argued at every stage of the litigation that an extended OFP violates his First Amendment rights, and Rew does not contend that Bergstrom has failed to preserve his First Amendment claim. Nor is an extended OFP with a maximum duration of 4 years for D.S.B. and 2 years for T.C.B. exempt from satisfying the requirements of the First Amendment.
The Chief Justice reads too much into Rew's 2008 petition. We acknowledge that Rew alleged in the petition that Bergstrom pushed her down the stairs when she was pregnant, roughly 10 years before the date of the petition. Assuming that Bergstrom's conduct qualified as domestic abuse of one of the children, it is at best unclear whether an allegation of abuse 10 years earlier is sufficient, standing alone, to conclude that the restrictions in the extended OFP are no broader than necessary with respect to the children. It is also true that Rew alleged that, at some unspecified time or times, Bergstrom threatened not to return the children after a visitation. But the petition alleges that this threat was directed at Rew, not the children. Finally, Rew also alleged that she feared for the safety of the children, but she did not explain why she feared for their safety. And, in any event, a bare allegation of fear is insufficient to demonstrate that Bergstrom domestically abused the children. In short, even if we assume that Bergstrom admitted to each of the allegations in the petition when he agreed to the 2008 OFP, the allegations are insufficient to conclude that the terms and conditions of the extended OFP with respect to the children burden no more speech than necessary to protect Rew or the children from domestic abuse.
A 2008 guardian ad litem report, which documents the impressions of a guardian ad litem and is relied upon by the Chief Justice in her separate opinion, does not add much to the analysis for two reasons. First, the statements relied upon by the Chief Justice demonstrate only that the children were afraid of their father, which does not establish that Bergstrom domestically abused them. Second, it is doubtful that the report is even part of the record on appeal, which is defined in Minn. R. Civ.App. P.0.01 as "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." (Emphasis added.) Although the report is physically located in the district court's file, so are a number of other documents that are not part of the record on appeal (including the judge's handwritten notes and what appears to be a memorandum to the judge from a law clerk). The guardian ad litem report does not bear a file stamp, the district court's register of actions does not show that the guardian ad litem (or any party) filed the report with the district court, and the district court's file does not indicate that the court admitted the report into evidence as an exhibit. Moreover, none of the parties have mentioned the report in their briefs or included it in their appendices or addenda. Perhaps the Chief Justice is right that the report was "submitted" to the district court, but Rule 110.01 refers to papers that were "filed in the trial court," not to papers that were "submitted" to the trial court. Accordingly, it is, at best, unclear whether the report is part of the record on appeal under Rule 110.01.
We do not mean to suggest that the allegations in the 2008 petition, if they are established or admitted in the district court on remand, would be irrelevant to determining whether the terms and conditions of the extended OFP with respect to the minor children survive First Amendment scrutiny. They would be relevant. Instead, we simply hold that it is the district court's responsibility, not ours, to make the findings necessary to resolve the constitutional challenge. See, e.g., Dunn v. Nat'l Beverage Corp., 745 N.W.2d 549, 555 (Minn.2008) ("[A]ppellate courts may not sit as factfinders, and are not empowered to make or modify findings of fact." (citations omitted) (internal quotation marks omitted)).
In response to a question from the court seeking clarification, counsel for Rew explained: "There were allegations [of abuse to the children] in the petition. There was no evidence."
In yet another exchange with the court about the nature of any allegations of domestic abuse against the children, counsel for Rew stated:
Justice Anderson may be correct that the district court simply intended to impose temporary restrictions on Bergstrom's parenting time, rather than issue an extended OFP in favor of the children. But whatever the court meant to do, the fact remains that it did issue an extended OFP that not only imposed parenting-time restrictions on Bergstrom, but also directed Bergstrom, among other things, to stay 120 yards away from the children's schools and child-care locations. Notably, the parties do not make the argument that Justice Anderson advances about the district court's intentions. Under these circumstances, we must base our analysis on the district court's actions, rather than on speculation about the district court's intentions.
Perhaps the district court, on remand, will analyze the restrictions placed on Bergstrom along the lines suggested by Justice Anderson, and perhaps the 2008 guardian ad litem report upon which Justice Anderson relies will be filed with the district court or admitted as an exhibit at a hearing. See supra n. 5. Based on the record before us and the arguments made by the parties, however, we see no reason to declare in advance what evidence the district court should consider, or what conclusions it should reach in light of that evidence, on remand.
