dissenting.
We are all concerned about the victims of domestic violence. But their interests can best be served by hearings that are fair to all. Respect for law and human dignity can best be fostered by a process that is fair and just.
Respondents in a domestic violence action have the right to testify and present relevant evidence. Courts can and should restrict the evidence to that which is relevant. Courts should maintain control of the courtroom so the proceedings themselves do not become abusive.
Because the trial court denied the respondent a fair hearing in this case, I dissent.
Section 14-07.1-02(4), N.D.C.C., provides: “Upon a showing of actual or imminent domestic violence, the court may enter a protection order after due notice and full hearing.” (Emphasis added.)
Bronson Rockwell was served with an Ex Parte Temporary Protection Order requiring him to “personally appear and show cause, before the [District Court for Cass County], at the Cass County Courthouse, Fargo, North Dakota on April 20, 1994, at 10:00 A.M. why the relief sought by the Petitioner in the Application and Affidavit for Protection Order should not be granted.” When Rockwell appeared at the time and place specified, he was told he could present no evidence, that he had to have presented his evidence by affidavit the previous day. Nowhere in the order was Rockwell told that he had to present his evidence the day before hearing. Indeed, this was contrary to the explicit language of the order and the explicit statutory requirement of a full hearing. No local court rule provides for the affidavit requirement. This is not the general practice of the courts of this state.
The majority wrongly argues the procedure is permissible under the rules. Even if it was, the court would have to have told him so in the notice.
This Court made clear in Steckler v. Steckler: 492 N.W.2d 76 (N.D.1992) that the parties in a domestic violence action have the right to present testimony.
“Section 14-07.1-02, NDCC provides that after ‘due notice and full hearing,’ the court may enter a protection order if there is a showing of ‘actual or imminent domestic violence.' But, at the beginning of the March 4, 1992 hearing, both [parties] stated that they did not wish to present testimony. Thus they waived their right to present testimony. This right is waivable.
“For a waiver to be effective, it must be a voluntary and intentional relinquishment and abandonment of a known existing right, advantage, benefit, claim or privilege which, except for such waiver, the party would have enjoyed. Production Credit Ass’n v. Henderson, 429 N.W.2d 421 (N.D.1988); Gajewski v. Bratcher, 221 N.W.2d 614 (N.D.1974).”
Steckler at 78-79. There was no valid waiver here.
The majority claims that under N.D.C.C. § 14-07.1-02, “the procedure is a simplified motion with a limited hearing.” The plain language of N.D.C.C. § 14-07.1-02(4), however, requires a “full hearing.” The entire analysis of the majority is based on a judicial shell game — its specious claim that a proceeding under N.D.C.C. § 14-07.1-02 is not an action, but a motion. The plain language of N.D.C.C. § 14-07.1-02(1) says the proceeding is an “action,” not a motion. N.D.C.C. § 1-02-08 provides: “Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law ... must be construed according to such peculiar and appropriate meaning or definition.” “Action” has acquired a specific meaning in the law. This Court in Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D.1992), said the proceeding is an action.
Under our statutes, remedies are divided into two classifications: (1) actions, or (2) *853special proceedings. N.D.C.C. § 32-01-01. An “action” is “an ordinary proceeding .in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” N.D.C.C. § 32-01-02. A “special proceeding” is “any remedy other than an action.” N.D.C.C. § 32-01-04.
This Court has previously discussed the procedural differences between an action, or an ordinary proceeding, and a special proceeding.
“A clear expression of the distinction between a special proceeding and an ordinary proceeding is stated in Central Republic Bank & Trust Co. v. Caldwell, 58 F.2d 721, 731 (8th Cir.1932), as follows:
‘The main characteristic differences between a summary proceeding and a plenary suit are: The former is based upon a petition, and proceeds without formal pleadings; the latter proceeds upon formal pleadings. In the former, the necessary parties are cited in by order to show cause; in the latter, formal summons brings in the parties other than the plaintiff. In the former, short time notice of hearing is fixed by the court; in the latter, time for pleading and hearing is fixed by statute or rule of court. In the former, the hearing is quite generally upon affidavits; in the latter, examination of witnesses is the usual method. In the former, the hearing is sometimes ex parte; in the latter, a full hearing is had.’”
Kee v. Redlin, 203 N.W.2d 423, 430 (N.D.1972) (emphasis added). The distinction is more than mere semantics. An action carries with it the procedural guarantees associated with a full hearing or trial, while a special proceeding, often involving an order to show cause, is less formal and may even be held ex parte.
Under N.D.C.C. § 14-07.1-02, upon a showing of actual or imminent domestic violence, the trial court may enter a protection order after “due notice and full hearing.” The majority contends the trial court was statutorily authorized to confine the evidence to affidavits, or to affidavits and cross-examination, because a domestic violence protection order is merely by motion on an order to show cause. The majority then leaps to its analysis under an order to show cause. While an order to show cause may be a way, long-established, to obtain a temporary injunction, nowhere in N.D.C.C. § 14-07.1-02 is “order to show cause” mentioned. Further, it is clearly incorrect to “borrow” procedural limitations from N.D.C.C. ch. 32-06, as the Legislature has not incoiporated the antiquated injunction statutes into § 14-07.1-02, an “innovative, unique effort to provide an alternative remedy in domestic violence matters.” Lucke v. Lucke, 300 N.W.2d 231, 233 (N.D.1980). There would be little reason for the Legislature to enact ch. 14-07.1 if it felt ch. 32-06 was adequately dealing with domestic violence. The patchwork of rules and procedural limitations the majority, and apparently lower courts, have attached to domestic violence protection order proceedings are not found in the statute. These limitations denied Rockwell a full and fair hearing.
Because N.D.C.C. § 14-07.1-02 demands due notice and a full hearing, the trial court’s denial of Rockwell’s evidence requires reversal. Rockwell was denied his fundamental right of due process by the inadequate hearing. Procedural due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case. State v. One Black 1989 Cadillac, 522 N.W.2d 457, 463 (N.D.1994). Notice must provide with specificity the allegations against the defendant and indicate the circumstances surrounding the alleged violation. McGuire v. Warden of State Farm, 229 N.W.2d 211, 218-19 (N.D.1975). Notice must also apprise the defendant of the time and place for hearing. See State v. Hass, 264 N.W.2d 464, 467 (N.D.1978). These requirements ensure the defendant and his or her attorney can adequately prepare for the hearing. McGuire at 219. The trial court here notified Rockwell he was to appear and show cause why a *854protection order should not issue. Relying upon this notice, Rockwell appeared and prepared to present evidence. Only then did the trial court announce affidavits were to be previously filed to present the evidence at the hearing. The notice given to Rockwell nowhere mentions this requirement. The majority contends the filing of affidavits was inferred because of the nature of the “action.” The length of the majority’s analysis belies this inference. Were it a simple question, only a simple answer would be necessary. Because Rockwell, acting pro se, did not receive notice specifying the manner in which to respond to the allegations, and which neither he nor any competent lawyer could infer, Rockwell was denied due process.
In argument to the trial court and to this Court, Rockwell contended he neither threatened nor harassed Sandbeck. He contends that when she saw him with his new special friend, Sandbeck out of jealousy filed this action to impugn his reputation. He contends he has specific evidence, including a witness other than himself, to refute Sand-beck’s allegations of threats and harassment. He was denied the opportunity to present relevant evidence.
I would reverse the order of the trial judge and remand for the hearing required by law. I would reinstate the temporary protection order issued under N.D.C.C. § 14-07.1-03 for a period not to exceed that provided by the statute.