Court Rejects Facial Due Process Challenge to DANCO Statute

State v. Ness, Minn.S.Ct., 7/24/2013.  This is the DANCO challenge case.  Read here.  After the district court issued a domestic abuse no contact order that prohibited Mr. Ness from contacting his wife he allegedly violated that order.  That resulted in a new criminal charge.  Mr. Ness moved to dismiss the charge.  He said that the statute, itself, failed to provide adequate notice and opportunity to be heard; and it encouraged arbitrary and discriminatory enforcement.  On the first claim, Mr. Ness said that because the statute requires that the hearing on the application for the DANCO must immediately follow  – and be separate from – the hearing to establish terms of release there was inadequate notice and opportunity to be heard on the request for the DANCO.  On the second claim, he said that the statute established no criteria by which the trial court was to decide whether to issue the DANCO.

And the court rejects both arguments.  Justice Page says that because this is a facial challenge to the statute and not an “as applied” challenge, Mr. Ness had to show that no set of circumstances exist under which the statute would be valid.  Any constitutionally valid application of the statute suffices to defeat a facial challenge.  Here, Justice Page concludes that the pretrial release hearing is, itself, adequate notice and opportunity to be heard on the immediately to follow DANCO hearing.  The reason for this is that the pretrial release hearing is a constitutionally valid process and thus provides valid notice of what’s next in store.  Moreover, counsel will have been appointed during that pretrial release proceeding so in the DANCO hearing there is legal representation.  The court also repeatedly stresses that counsel had been appointed to represent Mr. Ness, that the Complaint recited the state’s requested conditions of pretrial release, that at the first appearance the state served Mr. Ness with a notice of evidence and identification procedures, and that at the first appearance the state served him with a trial witness list.

On the second claim, the court says that the DANCO statute contains restrictions enough on the circumstances under which the order can be issued, and thus on its face the statute does not encourage arbitrary and discriminatory enforcement.  The order can only be issued against a limited class of individuals, individuals charged with the four offenses specified in the statute.  The order can only be issued as a pretrial order or as a postconviction probationary order.  the order can only be issued “immediately following” either the pretrial release hearing or probationary sentencing hearing.  Just how these logistical requirements act as a check on a court’s arbitrary actions isn’t really explained.  Additionally, for a defendant arrested and not released, the court must make a determination of probable cause without unnecessary delay.  If the court sets conditions of release at a pretrial hearing it must issue a written order that recites those conditions and a copy of the order must be given to the defendant, among others.  These requirements, having nothing to do with the DANCO order, are, nonetheless, a further check on arbitrary judicial action.

Finally, the court observes but neither endorses nor rejects the conclusion of the court of appeals that Mr. Ness could actually challenge the DANCO order collaterally as part of his defense.