This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-373

 

 

Alicia Haliburton, o/b/o

 Children, petitioner,

Respondent,

 

vs.

 

Alex L. Jackson,

Appellant,

State of Minnesota,

Intervenor-Respondent.

 

Filed October 22, 2002

Affirmed in part and reversed in part
Toussaint, Chief Judge

 

Ramsey County District Court

File No. F401301431

 

Alicia Fay Haliburton, 1211 East Maryland, St Paul, MN 55106 (pro se respondent)

 

John G. Westrick, Tammy L. Merkins, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

Mike Hatch Attorney General, John S. Garry, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101 (for intervenor respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Alex Jackson appeals the grant of an order for protection requested by respondent Alicia Fay Haliburton on behalf of their two children.  Jackson claims that the presiding referee improperly admitted a police report and did not allow Jackson to cross-examine the children at his hearing.  He also claims the Second Judicial District improperly denied his request for district court review of the referee’s decision granting a permanent order for protection.  Because of insufficient admissible evidence we reverse the district court’s decision regarding the order for protection, but affirm the Second Judicial District’s denial of review. 

D E C I S I O N

I.

 

Jackson argues that at the hearing where he challenged an ex parte order for protection against him, the presiding referee erred in admitting into evidence a police report describing an incident in which Jackson struck his two children with a belt.  The police report contained statements made by the two children, Haliburton, and Jackson describing the incident.  Jackson objected to the introduction of the report because the police officers were not called as witnesses to authenticate the document.  The referee ruled that because the report had “St. Paul Police Department Offense Report” printed on it and was dated and signed by the reporting officer, it was authentic and would be admitted pursuant to Minn. R. Evid. 1005 and 902.  We disagree.

Minn. R. Evid. 1101, subd. (a) provides:

Except as otherwise provided . . . . . these rules apply to all actions and proceedings in the courts of this state.

 

Minn. R. Evid. 1005 provides:

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. 

 

Minn. R. Evid. 902 provides:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

 

(1) Domestic public documents under seal:  A document bearing a seal purporting to be that of the United States * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

 

Minn. R. Evid. 902. 

Rule 1005 requires that for a report to be admitted into evidence it must be “otherwise admissible.”  Minn. R. Evid. 1005.  Here, the police report contains statements by the children describing Jackson’s conduct when he struck them.  These statements were introduced to prove the truth of the matter asserted, namely, that Jackson was abusive.  Therefore, the statements are hearsay.  See Minn. R. Evid. 801 (c) (defining hearsay).  Hearsay evidence is inadmissible unless the evidence is subject to an exception to the hearsay rule.  Minn. R. Evid. 802.  Because in this case there was no applicable hearsay exception, the police report containing the statements made by the children was inadmissible as hearsay. 

The only way the report would be admissible is if it was authenticated.  See Minn. R. Evid. 1005 (providing that a report “otherwise admissible” must be authenticated pursuant to Rule 902 or testimony).  Here, the police report did not bear a seal, nor was there any testimony by the officer or other evidence attesting to the authenticity of the report.  See Minn. R. Evid. 902(1) (providing that if a domestic public document bears a seal, extrinsic evidence of authenticity is not needed); Minn. R. Evid. 901 (stating that a document can be authenticated through evidence supporting a finding that the document is what its proponent claims).  Because the police report was not properly authenticated, the referee abused his discretion in admitting the report.  And because there was no other admissible evidence supporting the order for protection, we reverse.

Jackson also claims that because he was not allowed to call the children to testify or cross-examine them regarding the incident, he was denied a full hearing, in violation of Minn. Stat. § 518B.01.  The referee ruled that it was his standard procedure not to allow children to testify against their parents.

Pursuant to Minn. Stat. § 518B.01 (2000), a party is entitled to a full hearing to challenge an ex parte order for protection.  Under the Minnesota Domestic Abuse Act, this court has held that an order for protection cannot be issued without a hearing and “specific findings on domestic abuse.”  Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989).  A full hearing “includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.”  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (citing In re Enger's Will, 225 Minn. 229, 237-38, 30 N.W.2d 694, 700 (1948)). 

In general, “a wide range of inquiry should be allowed on cross-examination.”  Murray v. Walter, 269 N.W.2d 47, 49 (1978) (citation omitted).  But, a family court referee may limit the presentation of evidence where the facts are uncomplicated.  Sieber v. Sieber, 258 N.W.2d 754, 756 (1977) (limiting evidence in an alimony dispute).  The circumstances of each case determine the proper limits of cross-examination, “and it is largely for this reason that the manner and scope of cross-examination is left to the discretion of the trial court.”  This determination will be reversed only if there is an abuse of that discretion.  Id.  Murray, 269 N.W.2d at 49 (citation omitted).     

Jackson was not allowed an opportunity to cross-examine the children about the circumstances of the incident in question because it was the referee’s policy not to allow children to testify against their parents.  This policy prevented Jackson from questioning   the children as to the circumstances and the severity of the event.  Minn. R. Evid. 611 (a) provides that the court shall exercise reasonable control over the mode and order of interrogation of witnesses and presenting evidence so as to protect witnesses from harassment or undue embarrassment.  It is well within the district court’s discretion to control the interrogation of witnesses.  A district court’s decision to limit the interrogation of witnesses will not be reversed absent an abuse of discretion.  We conclude that the referee did not abuse his discretion in preventing appellant from cross-examining the children.

II.

Jackson claims that he was unconstitutionally denied a review of the referee’s decision pursuant to Minn. Stat. § 484.70, subd. 7 (2000).  After the order for protection was issued, Jackson attempted to file for district court review of the referee’s decision. 

The Second Judicial District informed Jackson, by letter that it was involved in a pilot program that did not allow for such review.  Jackson claims that the statute requires that the referee’s decision be reviewed, and the Minnesota Supreme Court’s order suspending such review is a violation of the separation of powers.

Determination of the constitutionality of a statute is a question of law, reviewed de novo by an appellate court.   In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  

            Minn. Stat. § 484.70, subd. 7(d)(2000), provides for the review of a referee’s decision by a district court judge.  However, 1996 session law 365 provides:

Notwithstanding Minnesota Statutes, * * * 484.70, subdivisions 6 and 7, paragraphs (d) and (e), the second judicial district may implement a pilot project to improve the resolution of family problems by assigning related family, probate, and juvenile court matters, other than delinquency proceedings, to a single judge or referee.

 

1996 Minn. Laws Ch. 365, § 2.[1] 

            In response to the session law, the Minnesota Supreme Court issued an order suspending the right to request review of a referee's recommend findings and orders pursuant to Minn. R. Civ. P. 53.05.  In Re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile & Probate Jurisdiction Pilot Project, No. CX-89-1863 (Minn. Apr. 10, 1996).[2]  The Minnesota Supreme Court has the inherent authority to regulate pleadings, practice, and forms in civil litigation.  Minn. Stat. § 480.051 (2000).  Court rules may not abridge, enlarge, or modify the substantive rights of litigants.  Id.

The supreme court’s order has not denied Jackson his rights under Minnesota law.  “Every law shall be construed, if possible, to give effect to all its provisions.”  Minn. Stat. § 645.16 (2000).  If a statute, construed according to ordinary rules of grammar, is unambiguous, a court may engage in no further construction and must apply its plain meaning.  State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996). 

Session Law 365’s use of the word “notwithstanding” exempts the pilot project from the cited statutory provisions, including the right to obtain district court review.  If this were not the intent, the word would have no effect.           

Jackson also claims he was denied due process when the Second Judicial District denied his appeal to the district court.  He claims that he had a right to have his case heard by a district court judge.  The rights to obtain review and be heard are required in meeting due process standards.  See Blatz v. Allina Health System, 622 N.W.2d 376, 387-88 (Minn App. 2001).  Jackson had his case reviewed by a judge of the district court who then signed off on the referee’s decision.  Referees are members of the judicial branch, are under the authority and supervision of district court judges, and their orders become orders of the district court when confirmed by a district court judge.  Minn. Stat. § 484.70 subds. 1, 7 (2000).  The supreme court’s order preserved the requirement that a referee’s decision must be confirmed.  Griffis v. Luban, 601 N.W.2d 712, 715.  Thus, Jackson’s due process argument fails because his case was reviewed and confirmed by a district court judge, and he was then allowed review by this court. 

Affirmed in part and reversed in part.

 

 



[1] The pilot project created by 1996 Minn. Laws Ch. 365, § 2 was originally temporary, but  has been extended by 1998 Minn. Laws Ch. 367 § 26, 2000 Minn. Law Ch. 452 § 1, and 2002 Minn. Law Ch. 242.  For the purposes of this opinion, we will refer to this series of laws as Session law 365.

[2] Consistent with the legislature’s extension of the temporary pilot project created by session law 365, the time frame of the suspension of the right to seek review imposed by  In Re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile & Probate Jurisdiction Pilot Project, No. CX-89-1863 (Minn. Apr. 10, 1996), has been extended by In Re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile & Probate Jurisdiction Pilot Project, No. CX-89-1863 (Minn. Jun 17, 1998), (Minn. May 23, 2000), and (Minn. Jun. 3, 2002).