Linda Rae BURKSTRAND, Petitioner, Appellant, v. Steven Glen BURKSTRAND, Respondent.
No. C0-00-813.
Supreme Court of Minnesota.
Aug. 30, 2001.
632 N.W.2d 206
John G. Westrick, Marcia McDowall-Nix, Westrick & McDowall-Nix P.L.L.P., St. Paul, for respondent.
Bruce A. Beneke, Janet C. Werness, St. Paul, for amicus curiae.
OPINION
BLATZ, Chief Justice.
This case presents the question of whether the expiration of the hearing time frames prescribed by the Domestic Abuse Act, specifically
On December 28, 1999, appellant filed a petition and supporting affidavit for an ex parte order for protection against her husband, respondent Steven Glen Burkstrand. The petition requested various types of relief including restraining respondent from acts of abuse; excluding respondent from the family residence and the children‘s schools; awarding appellant temporary custody of the children; and directing respondent to provide monetary support. A more limited ex parte order for protection was issued that same day rеstraining and enjoining respondent from abusive acts against appellant and the children, prohibiting respondent from having contact with appellant, and excluding him from the residence except to retrieve personal effects. The ex parte order also commanded respondent to appear before a referee1 on January 6, 2000, prepared to testify and to present evidence, and stated that the order was effective until the scheduled hearing.
Respondent filed an affidavit on January 5, 2000, refuting appellant‘s allegations of abuse. The next day, the parties appeared with сounsel before a referee. Respondent contested the order for protection and again denied the allegations of abuse, and appellant agreed to withdraw the issue of abuse against the children from the petition. The referee was informed that respondent had commenced a separate action for dissolution of the marriage; therefore, several of appellant‘s requests for relief were deferred to that action, and the only issue remaining before the referee was the petition based on respondent‘s alleged abuse of appellant.
To address thаt issue, the referee suggested that an evidentiary hearing commence that morning, as soon as the refer-
Based on evidence presented at the hearing, the referee issued an order fоr protection valid for one year from January 21, 2000.2 Respondent then retained new counsel and filed a notice of review under
At the court of appeals, Steven Burkstrand argued again that the district court4 lacked subject matter jurisdiction to conduct a hearing on January 21, because the statutory time frames for conducting a hearing on a petition for an order for protection had passed. Thus, he argued that the order for protection issued on that date was void ab initio. Linda Burkstrand responded that the court did not lose jurisdiction over the petition, and in the alternative, that her husband waived his right to object to the January 21 hearing as being untimely because his counsel requested the continuance because of his own illness and did not request that the matter be rescheduled within the statutory time period. The court of appeals concluded that the district court lacked subject matter jurisdiction and reversed. Burkstrand v. Burkstrand, No. C0-00-813, 2000 WL 1847671, at *2 (Minn.App. Dec.13, 2000).
In this appeal, appellant Linda Burkstrand argues that the district court retained jurisdiction to issue an order for protection despite the court‘s failure to adhere to the hearing time parameters of
The parties ask us to interpret the language of the Domestic Abuse Act
The Domestic Abuse Act provides a process whereby domestic abuse victims may petition for protection and relief.
In 1995, the legislature amended portions of subdivision 7 of the Act, which deals specifically with ex parte orders. Immediately before the 1995 amendments, subdivision 7(c) required:
an ex parte temporary order for protection shall be effective for a fixed period not to exceed 14 days, except for good cause as provided under paragraph (d). A full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the temporary order. The respondent shall be served forthwith with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.
Subject to [certain service requirements], an ex parte order for protection shall be effective for a fixed period set by the court, [up to one year, except when the court determines that a longer period is appropriate], or until modified or vacated by the court pursuant to a hearing. Upon request, a full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the ex parte order, if a hearing is requested by the petitioner, or not later than ten days or earlier than eight days from receipt by the court of a request for a hearing by the respondent.
When interpreting statutes our goal “is to ascertain and effectuate the intention of the legislature.”
Respondent contends that subdivision 7(e) is unambiguous as to the mandatory nature of the hearing time frames when an ex parte order for protection has issued. He argues that because appellаnt requested a hearing, subdivision 7(e) clearly and unambiguously required that a hearing be held within 7 days of the ex parte order‘s issuance. The order was issued on December 28, 1999; therefore, respondent argues that the referee lacked jurisdiction to hold a hearing on the matter after January 4, 2000.
In contrast, appellant asserts an alternate interpretation that the time frames are directory, giving domestic abuse matters priority, but not involving subject matter jurisdiction. Appellant further asserts that the effect of failing to comply with the hearing time frames in subdivision 7(e) may be the expiration of the ex parte order for protection; however, the court would continue to have jurisdiction over the petition for at least 14 days under subdivision 5(a), which applies to petitions when no ex parte order has issued.
Contrary to respondent‘s argument, nothing in the statutory language requires that the district court be divested of subject matter jurisdiction. Rather, the statute is silent as to the consequences of the district court‘s failure to hold a hearing within the statutory time frames. Given this silence and the opposing interpretations of the statute, we conclude that the statute is ambiguous and look to other indicators of legislative intent, as well as the statutory language, to interрret the statute. See
There is no evidence in the legislative history that the legislature intended courts to lose jurisdiction upon failure to meet the hearing time frames. Instead, the legislative history demonstrates an intent to simplify the process and ease the burden on petitioners.7 This intent is also evident in
In addition, divesting the district court of subject matter jurisdiction for failure to set a hearing within the statutory time frames would undermine the purpose of the Act. In Baker v. Baker, we discussed the purpose of the Act, noting the large number of assaults on domestic abuse victims by their partners and the correlating need for assistance and shelter. 494 N.W.2d 282, 285 (Minn.1992). We also recognized that the Act was enacted as one means to protect these victims. Id.; see also Errington, 310 N.W.2d at 682 (noting that the Act was enacted “to provide an efficient remedy for victims of abuse“).
Respondent‘s interpretation of the Act would thwart its very purpose. If subject matter jurisdiction is divested every time a hearing on a petition for an order for protection is not held within the statutory time frames, victims of domestic abuse will be forced to begin the protection process anew. This not only has an impact on public safety, but may also penalize a petitioner when delay is caused by the court, respondent, or by other events beyond the petitioner‘s control. Here, appellant performed the steps required of her by the statute in filing a petition and affidavit. The district court set the hearing date for January 6—a date already beyond the 7-day time frame for a hearing requested by a petitioner. The record indicates that it was primarily a result of the court‘s calendar that a full hearing was continued until January 7. Thеn on January 7, another continuance was granted as a result of respondent‘s counsel‘s illness—another factor not within appellant‘s control. Clearly, divesting the district court of subject matter jurisdiction under such circumstances interferes with the purpose of the Act and is not a consequence dictated by the Act‘s language.8 Thus, we hold that neither the statutory language nor the other indicia of legislative intent dictate that the court loses jurisdiction over appellant‘s petition when a hearing is not held within
Nonetheless, although the district court did not lose subject matter jurisdiction, our holding does not diminish the importance of conducting timely hearings after issuance of an ex parte order for protection. The statute requires courts to give domestic abuse matters priority in scheduling. Moreover, the statutory time frames for conducting hearings after an ex parte order for protection has issued provide procedural protections to ensure that the due process rights of respondents—who may be excluded from the family home and in other ways restrained without the right to initially contest the order—are protected. Baker, 494 N.W.2d at 287, 288 (concluding that the Act provides extensive procedural safeguards for respondents in that ex parte оrders must be based on an application and sworn affidavit, are issued only by a judge or referee, and are issued for a short time period). While the statute no longer expressly provides that ex parte orders for protection are effective for only 14 days, as was the case when Baker was decided, the rights of respondents must still be protected. We conclude that the statute protects these interests by simply allowing the ex parte order to expire if a hearing is not held within the statutory time period.9 However, despite the order‘s expiration, the court retains jurisdiction over the original petition for protеction. The petition is then essentially treated as a petition for an order for protection where no ex parte order has ever
been issued and is subject to the requirement that a hearing be held within 14 days. See
Here, a full hearing on appellant‘s petition was scheduled first for January 6, then January 7, both well within the 14-day deadline in subdivision 5(a). Because respondent‘s counsel was ill, the hearing could not be held on January 7 and was rescheduled for January 21. On these facts it appears the court attempted to give the petition in this case the docket priority the legislature intended. In any event, although a full hearing оn appellant‘s petition was not held within 14 days after the issuance of the ex parte order, we conclude, as we did in our analysis of subdivision 7(e), that failure to hold a hearing within the 14-day time period in subdivision 5(a) does not divest the court of jurisdiction over the petition.
This conclusion comports with that of the Tennessee Supreme Court in Kite v. Kite, 22 S.W.3d 803 (Tenn.1997). Faced with a similar issue, the court held that the statutory 10 day hearing requirement at issue was a limitation on the duration of the ex parte order and not a jurisdictional limitation. Id. at 806. In so holding, the Tennessee Supreme Court concluded: (1) that the intended operation of the statute is ambiguous because it mandates a hearing within 10 days but does not define the consequences for failure to meet that requirement; (2) that the legislature could
We concur with this reasoning. Like the statute at issue in Kite, Minnesota‘s Act does not define the consequences for the failure to meet the hearing time frames. Because the legislature could have drafted a jurisdictional bar into the statute but failed to do so, we decline to read such a consequence into the statute. Furthermore, treating the time frames for conducting a hearing on ex parte orders for protection as jurisdictional would undermine the purpose of the Act—to provide speedy, effective relief to victims of domestic abuse. As recognized in Kite, such divestiture would be an absurd result, especially when a hearing is delayed due to causes other than the petitioner‘s own actions.
The statutory time frames operate effectively as limits on the duration of ex parte orders for protection and mandate that domestic abuse cases be given docket priority. Therefore, we hold that although the ex parte order expired upon the court‘s failure to comply with the statutory hearing time frames, the court did not lose subject matter jurisdiction over the original petition as amended and had the authority to сonduct a hearing and issue an order for protection on January 21, 2000.
Reversed.
GILBERT, Justice (dissenting).
I agree with the majority‘s statement on public policy in regard to the importance of petitions for an order for protection in cases of domestic abuse. However, we should not use public policy reasoning to alter a purely statutory equitable remedy. I therefore dissent because the district court‘s failure to hold the hearing within the 14-day time frame as required by
Under this provision of the Domestic Abuse Act, the district сourt is required to order a hearing no later than 14 days after receipt of a petition for an order for protection, or, if an ex parte order has been issued under subdivision 7, those time periods apply.
Instead of creating a theory of continuing jurisdiction when the order itself did not provide for that and the petitioner did not ask for the extension, I would affirm the court of appeals and hold that when the district court fails to order а hearing held within the required time frame, the petition expires and the court does not have jurisdiction unless the petitioner asks the court to extend the timeframe or files another petition. Although this result places a burden on the petitioner to either ask for an extension or file a new petition when a previous one expires, the burden is slight and when compared to the alternative, which could result in a gap in protection. Requiring the petitioner to request an extension of the time deadlines or file a new petition resolves the potential gap problem and is consistent with the purpose and the clear and unambiguous language of the Act.
The courts are directed to give these hearings priority, but under the majority‘s holding there is no real incentive for the court or parties to do so—other than the potential loss of protection if a hearing is not held before an order expires. Petitions for orders for protection have become a significant part of our judicial system. In fact, during the year 2000 alone, over 13,000 petitions were filed1 in Minnesota. The high volume of this time-consuming procedure created by the legislature obviously has a major impact on the judicial system because we only have 258 district court judgеs in the State of Minnesota. Although the legislature did not appropriate new funds to handle this huge new case influx, it did limit the terms of existence of these petitions, which this majority opinion now nullifies. Because of the high volume and the importance of a timely hearing, the district court, as well as the lawyers who agree to take these cases, must give these hearings priority on their calendars.
Contrary to what the majority states, the initial hearing date of January 6 was not delayed “primarily [as] a result of the court‘s calendar,” but initially and solely
Traditionally, a temporary restraining order has been treated as a common law equitable remedy available when there was an underlying civil case pending. See, e.g., Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 91-92 (Minn.1979). A civil action is commenced by filing and serving a summons and complaint and equitable relief could be part of the case.
The courts are evidently finding the time to routinely grant these ex parte orders. However, when they do so, they must be mindful of the statutory time frames and the requirement of setting aside all other matters “except older matters of the same character” on their calendars and on the lawyers’ calendars if necessary to ensure that there is a hearing within the required time frame. Then these orders would not expire by their own terms, but they could be properly extended by the court after a full hearing.
Granting of an order such as this has significant immediate collateral consequences in marital dissolution matters and in state and federal criminal cases.5 The legislature must have been mindful of this when they set short time deadlines within the statute for the continuation of these orders until a full hearing. However, in this case the majority acknowledges that the mandatory 7-day hearing requirement contained in