State v. Ness, 2013 Minn. LEXIS 356

Background

Bryan Paul Ness was charged after domestic-assault incidents; district courts issued pretrial domestic abuse no contact orders (DANCOs) barring contact with his wife. He was later charged with felony violations of Minn. Stat. § 629.75, subd. 2(d)(1) for violating those DANCOs.
Ness moved to dismiss, arguing that Minn. Stat. § 629.75, subd. 1 (the statute authorizing DANCOs) is facially unconstitutional under federal and state Due Process Clauses because it (1) provides no adequate notice or opportunity to be heard and (2) encourages arbitrary and discriminatory enforcement (void-for-vagueness).
The district court granted Ness’s motion, finding the statute gave defendants “no process at all” and left judges with “unfettered discretion.” The court of appeals reversed.
The Minnesota Supreme Court granted review to decide the facial due process challenges: whether § 629.75, subd. 1 always fails to provide procedural protections, and whether it encourages arbitrary/discriminatory enforcement.
The statute limits DANCOs to persons charged with or convicted of four enumerated domestic-related offenses, authorizes DANCOs as pretrial or postconviction probationary orders, and requires the DANCO hearing to be held “immediately following” the proceeding deciding pretrial-release or sentencing issues.
The Supreme Court held that Ness failed his heavy burden for a facial challenge: the statute, on its face, provides constitutionally sufficient notice and opportunity to be heard (via the immediately-following requirement and existing criminal procedure rules) and does not encourage arbitrary or discriminatory enforcement given statutory limits and existing procedural safeguards.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 629.75, subd. 1 facially deprives defendants of adequate notice and opportunity to be heard	Ness: statute authorizes DANCOs through a pro forma process giving "no process at all" before orders issue	State: statute requires DANCO hearing immediately after pretrial-release or sentencing proceedings; criminal rules provide notice and hearing protections	Held: Not facially invalid — the "immediately following" requirement plus criminal procedure rules supply constitutionally sufficient notice and hearing opportunities
Whether § 629.75, subd. 1 is unconstitutionally vague because it encourages arbitrary/discriminatory enforcement	Ness: statute lacks standards guiding judges, so it delegates policy and invites arbitrary decisions	State: statute limits discretion by restricting who may receive DANCOs and when they may be issued; existing procedures require probable-cause findings and consideration of victim safety	Held: Not vague on its face — statutory limits and procedural checks prevent arbitrary or discriminatory enforcement

Key Cases Cited

SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) (standard for reviewing constitutionality of statutes)
In re Haggerty, 448 N.W.2d 363 (Minn. 1989) (caution in declaring statutes unconstitutional)
McCaughtry v. City of Red Wing, 831 N.W.2d 518 (Minn. 2013) (facial-challenge burden; example of statute allowing judicial limitation saving facial validity)
Minn. Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009) (facial challenge heavy burden)
United States v. Salerno, 481 U.S. 739 (1987) (facial challenge is difficult; must show no valid applications)
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) (purpose of notice to permit preparation for hearing)
Kolender v. Lawson, 461 U.S. 352 (1983) (void-for-vagueness doctrine and arbitrary enforcement concerns)
Hill v. Colorado, 530 U.S. 703 (2000) (two analytical bases for vagueness challenges)
Grayned v. City of Rockford, 408 U.S. 104 (1972) (statutes must provide explicit standards to avoid arbitrary enforcement)
State v. Cottew, 746 N.W.2d 632 (Minn. 2008) (judicial discretion requires conscientious judgment)
Vogt v. Vogt, 455 N.W.2d 471 (Minn. 1990) (OFPs imply probable-cause finding)