CAN YOU GET CHARGED WITH VIOLATING A PROTECTION ORDER THAT WAS NOT THE RESULT OF A PROTECTION FROM ABUSE/STALKING CASE?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Wilmer, 2016, 384 P.3d 32, 53 Kan.App.2d 99.

This case addresses the following issue:

Can you get charged with violating a protection order that was not the result of a protection from abuse/stalking case?

“Following a preliminary hearing, Wilmer was bound over on charges of attempted first-degree murder, aggravated assault with a deadly weapon, child endangerment, and being a felon in possession of a firearm. All charges arose out of an incident where he allegedly shot Rudy Hall while Hall was a passenger in a car with Cruce, and Cruce and Wilmer’s infant daughter. At the hearing, there was testimony from several witnesses that Wilmer contacted Cruce and attempted to influence the way she testified. There was also testimony that Wilmer had been violent with Cruce in the past. In fact, the preliminary hearing that was to be heard immediately following the one in this case was on a domestic battery charge against Wilmer in which Cruce was the victim. Wilmer was in jail, so he could only contact Cruce using phone calls and letters. The State requested a no-contact order between Wilmer and Cruce pending trial because there had been “a lot of testimony regarding letters and phone calls and perhaps attempts to get her to change her testimony.” The State’s concern was “not necessarily for the victim’s protection because the defendant is in custody, but it is about intimidation, which the Court is well aware does occur in domestic violence cases, and it occurs even when one party is incarcerated.” The district court granted the no-contact order, reasoning that “the State has the right to attempt to preserve their evidence, their witnesses from contact with the defendant.”” Id. at 100.

Three months later, Wilmer was charged with 21 counts of violating the no-contact order between February 24 and April 22, 2015, in violation of K.S.A. 2015 Supp. 21–5924(a)(4). Id. at 101. Wilmer filed a motion to dismiss, arguing that “there is no statutory authority for a District Court Judge to issue a no-contact order upon an incarcerated Defendant in a criminal case.” Id. The district court denied the motion and then found Wilmer guilty on all 21 counts. Wilmer was sentenced to 12 months for each count, set to run concurrently. Wilmer appealed.

Wilmer argued that the provision of that statute that allows the issuance of a no-contact order on a person in prison infringes on the prisoner’s rights under the First Amendment to the United States Constitution and Section 11 of the Kansas Constitution Bill of Rights. Id. The Court noted that Wilmer did not dispute the sufficiency of the evidence. Id. The State presented the audio recordings of the phone calls it claimed violated the no-contact order. Id.

Wilmer contended that if the court had the authority to issue the no-contact order, punishment for contempt of court was the exclusive remedy available to it. Id. at 103. Accordingly, Wilmer could not be charged criminally but would be limited to the court’s statutory authority to punish for contempt. Id. The Court disagreed.

Many states, including Kansas, have adopted procedures that courts must follow in the case of contemptuous behavior, either direct or indirect. See K.S.A. 20–1201 et seq. These statutes generally do not define what action constitutes contempt, nor do they outline the breadth of orders a court may enter in any give case, but they merely set out the procedures that must be followed, such as issuance of a show cause order, opportunity to be heard, etc. before a person is found to be in contempt of court. See K.S.A. 2015 Supp. 20–1204a. Although the court had the authority at common law to punish contemptuous behavior, these statutes now control the procedure to be followed. Id.

The Court of Appeals had unlimited review of the statute at issue in this case. Id. at 104. K.S.A. 2015 Supp. 21–5924 states:

“(a) Violation of a protective order is knowingly violating: (4) an order issued in this or any other state as a condition of pretrial release, diversion, probation, suspended sentence, postrelease supervision or at any other time during the criminal case that orders the person to refrain from having any direct or indirect contact with another person.” Id. at 104.

“The language of the statute is clear. It presumes that the court has the authority to enter no-contact orders during the course of any criminal proceeding.” Id.

The court determined that the statutory language was consistent with their discussion of the court’s inherent power to issue such orders to advance the orderly and fair administration of justice. Id. at 105. This case is a situation in which the legislature has obviously stepped in to assist the court in the enforcement of its orders by providing for the criminal prosecution of people who fail to follow them. Id. The State is not prohibited from doing so merely because the district court could punish Wilmer for contempt of court. Id.

“In sum, punishment for contempt of court is not the exclusive remedy for the violation of a no-contact order issued during a pending criminal case. If the contemptuous conduct also violates a criminal statute, the government may prosecute the offender.” Id.