From the Bench - Harassment restraining orders in Minnesota
Editor's note: This is part of an occasional series, "From the Bench," written by area judges. It will focus on the court system and criminal justice issues.
In my last column I discussed orders for protection (OFPs) pursuant to Minn. Stat. s 518B.01. This column will discuss harassment testraining orders (HROs) as allowed pursuant to Minn. Stat. s 609.748.
Who may obtain an HRO? Any person who is a victim of harassment may seek a restraining order from the district court. The parent, stepparent or guardian of a minor may seek an HRO on behalf of the minor. No family or household relationship is necessary to seek an HRO, which makes HROs different than OFPs.
What is "harassment" for purposes of the statute? A single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security or privacy of another. Harassment also includes targeted residential picketing, and a pattern of attending public events after being notified that the actor's presence at the event is harassing to another.
How does a person obtain an HRO? A person seeking an HRO must file a petition for relief that sets forth the name of the petitioner (the victim of the harassment), name of the respondent (the person who is harassing the victim), and the alleged harassment.
The petition must be accompanied by an affidavit made under oath stating the specific facts that are the basis of the claim of harassment. The court is not required to schedule a hearing if the court determines that the petition has no merit.
Issuance of a temporary restraining order: The court may issue an order prohibiting the respondent from harassing the petitioner or from having any contact with the petitioner if the court finds reasonable grounds to believe that the respondent has engaged in harassment. In order for the court to issue a temporary HRO before the hearing, the petition must allege an immediate and present danger of harassment.
If the court finds that the petition states facts to support a restraining order, the court can issue a restraining order for up to two years without a hearing. The order shall state how long it is in effect. The expiration date of the HRO may change if a hearing occurs.
Filing fees: A filing fee of $320 will be charged unless the petition alleges acts that violate felony or gross misdemeanor harassment statutes. If the petitioner qualifies, he or she may request the filing fee be waived by filing an in forma pauperis application.
What happens at the hearing? Either party may request a hearing. Typically a petitioner will request a hearing if the temporary HRO is not granted. If a temporary HRO is issued the respondent may request a hearing within 45 days of the temporary order being issued. The hearing shall be scheduled by the court upon receipt of respondent's request. The parties may be represented by attorneys. At the hearing, both parties will be allowed to present witnesses who may testify under oath and offer exhibits. The parties will also be allowed to cross-examine witnesses called against them.
The trial court has the discretion to exclude irrelevant witnesses or testimony. The burden is on the petitioner to establish that harassment has occurred. After the hearing the judge will either issue an HRO or dismiss the petition. If an HRO is issued, copies are provided to local law enforcement.
Duration of the HRO: Typically, an HRO cannot be issued for a period of more than two years. However, if the petitioner has obtained an HRO against the same respondent on two or more prior occasions, or if the respondent violated a previous HRO on two or more occasions, the HRO can be issued for a period up to 50 years.
Violations of an HRO: The HRO must advise the respondent of the specific conduct that will constitute a violation and also provide notice that a violation is either a misdemeanor (90 days in jail and/or a $1,000 fine); or a gross misdemeanor (one year in jail and/or a $3,000 fine); or a felony (imprisonment for up to five years and/or a $10,000 fine). The severity of the crime is dependent upon the number of previous convictions for HRO violations or other qualified domestic abuse crimes. (See Minn. Stat. s 609.02 subd.16.)
Judge William Cashman is a 7th Judicial District Court Judge from St. Cloud and presides over cases in Stearns and Mille Lacs counties.