Safe at home



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December 8, 2014 www.PendletonUpdates.com TRAINING UPDATE 14-23

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MINNESOTA JUDICIAL TRAINING UPDATE

www.PendletonUpdates.com




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DOMESTIC VIOLENCE: “SAFE AT HOME” PROGRAM

IMPORTANT FACTS EVERY JUDGE SHOULD KNOW




QUESTION: What is the Minnesota “Safe at Home” program? How does it benefit victims of domestic violence and under what circumstances can the District Court order disclosure of a victim’s confidential physical address?
ANSWER The following are 6 key facts about the “Safe at Home” program:


  1. Minnesota is one of 39 states to enact “address confidential” legislation for victims of domestic violence. In 2007, M.S. Chapter 5B established the “Safe at Home” Program which is operated through the Office of the Secretary of State.



  1. The Safe at Home Program allows victims of domestic violence, sexual assault, and stalking who fear for their safety to enroll in an address confidentiality program. The core tenet of the program is the non-disclosure of a crime victim's residence. However, Safe at Home is not just for victims of domestic violence and stalking. The program can include anyone who fears for their safety (law enforcement, etc.).



  1. In addition to ensuring a victim’s address is kept confidential, the program also provides a substitute address so that victims are reachable, but in a manner that protects their safety. "When a program participant presents the address designated by the Secretary of State to any person [includes any public or private entity], that address must be accepted as the address of the program participant." MS 5B.05(a).



  1. A crime victim’s enrollment into the program is a significant step that requires restrictions to everyday life. For example, land line phones are discouraged, cell phones are allowed but should be kept in 911 mode, with Google maps shut off and participants are encouraged not to engage in social media such as Facebook, etc. Program participants are willing to live with these constraints in exchange for the increased safety of maintaining their residence as confidential.



  1. The statute presumes that releasing information regarding the physical location of an accepted participant might lead to the physical or emotional harm of that person. The other primary concern is that release of the participant’s confidential location would have a chilling effect on future participation in the program.



  1. Legal process can be served on all Safe at Home participants by mail through their PO Box or in person on the Secretary of State.  This is something that not many people know, but is why Safe at Home makes it difficult to physically locate a person but very easy to contact or serve legal process. See Stat. § 5B.03, subd. 1(3) (2014) and Minn. R. 8290.0500 (outlining the procedures for the service of legal process). The designated address also satisfies the requirement to provide the court notice of a current address. See Minn. Gen. R. Prac. 13 advisory committee’s comment (2009 amendment).

UNDER WHAT CIRCUMSTANCES CAN THE DISTRICT COURT ORDER DISCLOSURE OF THE VICTIM’S ADDRESS?
QUESTION: A defendant charged with domestic violence (or criminal sexual conduct or stalking) files a discovery demand pursuant to Minn. R. Crim. P. 9.01, subd. 1, seeking disclosure of the victim’s “Safe at Home” confidential address and telephone number.
What Four (4) Step Legal Analysis Should The Court Apply In Order To Properly Rule?
Note: Writ of Prohibition: Any court order requiring disclosure of a “Safe at Home” participant’s confidential address may be challenged by the Secretary of State filing a Petition for Writ of Prohibition seeking to have the order declared null and void.



  1. COURT ACKNOWLEDGES PROSECUTORS OBLIGATION TO DISCLOSE INFORMATION: Minn. R. Crim. P. 9.01, subd. 1(a),(b) requires a prosecutor to disclose “The names and addresses of witnesses who may be called at trial,” (including anyone else with information relating to the case.). The prosecutor must also assist the defendant in seeking access to matters that are not in the prosecutor’s control but are “within the possession or control of…….any government agency.” Rule 9.01, subd. 2(1).



  1. COURT ACKNOWLEDGES THE PURPOSE FOR THE “SAFE AT HOME” PROGRAM: The purpose is to enable individuals attempting to escape from domestic violence, sexual assault, or stalking to keep information about their location away from individuals who may endanger them. M.S. Chapter 5B enables state and local agencies to respond to requests for data without disclosing the actual physical location of the participant. The confidential address is considered “private data” under the MN Data Practice Act.



  1. COURT IDENTIFIES LIMITED EXCEPTIONS UNDER WHICH DISCLOSURE IS ALLOWED: Pursuant to Chapter 5B (Safe at Home) and M.S. 13.045, subd. 3 (Minnesota Data Practice Act) there are only two limited exceptions under which disclosure of “private Data” including a “Safe at Home” confidential address may be made. For example: a) The first is release of information to law enforcement. M.S. 5B.07, subd. 2(a); b) The second is by court order. M.S. 5B.11; 5B.07, subd 2; M.S. 13.045, subd. 3.


  1. FINAL STEP - COURT MUST APPLY A BALANCE OF INTEREST TEST:



  1. Interest of Defendant vs. Interest of Victim: The District Court may only order

release of private data after balancing the benefit to the defendant against the harm to the confidentiality or privacy interests of the “Safe at Home” victim or witness. M.S. 13.03, subd. 6 (2012). (i.e. privacy interest of victim vs. defendant’s constitutional right to confront witnesses).

  1. Standard for Court to Apply: Defense counsel must make a “plausible

showing” that the confidential address of the victim (or witness) would be “both material and favorable to his defense.” Secretary of State vs. Glass, A14-0600, Minn.Ct.App. May 20, 2014) (Writ of prohibition granted - see note below).

  1. Factors the Court Should/Must Consider: In addition to hearing from both the

prosecution and defense, in order for the court’s balancing test analysis to be deemed “adequate” the court should also consider:

    1. Evidence presented by the victim (direct testimony or by affidavit) on

potential harm to the victim if the confidential address is disclosed; and,

    1. Arguments of amici curiae on public safety concerns (i.e. Battered Women’s Justice Project; Domestic Abuse Intervention Programs; MN Coalitions for Battered Woman and Sexual Assault; MN Alliance on Crime); These amicus briefs offer comment on the impact a judicial decision to release privileged and confidential location information may have on domestic violence, sexual assault, stalking and general crime victims.

NOTE: Amici Curiae briefs addressing the above issues are on file with the court of appeals in Secretary of State v. Glass (A14-0600, Minn.Ct.App. May 20, 2014) (see note below). The amici curiae briefs are also available for viewing by District Court Judges by contacting the Battered Woman’s Justice Project at 612-824-8768.

NOTE: There are no Minnesota cases in which a District Court order disclosing a confidential “Safe at Home” address has ever been upheld by an appellate court.




NOTE: The Glass decision referenced above was an Order Opinion from the Court of Appeals Special Term Panel.  The Court of Appeals has stated that special term orders have no precedential value and should not be cited as authority.  State v. Russell, 481 N.W.2d 148 (Minn. App. 1992). The Glass decision is cited for educational and training purposes only (not as legal authority). The Order Opinion can only be accessed through the Minnesota Appellate Courts Case Management System (P-MACS), call the Court of Appeals at 651-296-2581 for assistance in locating the Order Opinion. Julie Strother, J.D. Government Relations Director, Office of the Secretary of State, 651-201-1399, safe.athome@state.mn.us

Hon. Alan F. Pendleton, Anoka County Courthouse, alan.pendleton@courts.state.mn.us, www.PendletonUpdates.com




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