“Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.”
—Black’s Law Dictionary
The phrase due process (or due process of law) names those most fundamental legal entitlements that ensure an individual is provided the means and opportunity to defend him- or herself and his or her interests in court.
In the previous post, I observed that restraining orders skirt due process entirely—which I’m hardly the first person to remark.
As this post’s epigraph explains, whenever the court presumes that a person is liable for or guilty of some alleged transgression and enters a judgment against that person without first granting that person the opportunity to challenge the allegations against him or her, that person is denied due process.
Not kinda-sorta but flatly.
Since restraining orders (by legislative mandate) are issued ex parte, which means that the only parties judges hear from prior to entering rulings are restraining order applicants, every restraining order recipient is denied due process. Every one of them. Always. Restraining order defendants are just inked names on paper forms; judges have no idea whom they’re entering judgments against, and defendants have no idea judgments have been entered against them until a constable comes knocking.
Restated using legalese from this post’s epigraph, when a defendant’s guilt is “conclusively presumed,” as it is when a judge approves a restraining order, “this is not due process of law.” Restated simply, when rulings are made prior to defendants’ being given a chance to defend themselves, there’s no due process. Restated simplest, restraining orders = no due process = no adherence to the most basic principles of law = dirty pool.
This is an obvious and indisputable fact, and as I stated earlier, I’m hardly the first person to have noted it.
What’s more rarely observed is that denying defendants due process was the purpose of restraining orders’ being enacted. Restraining order legislation, by design, authorizes a plaintiff to communicate his or her allegations directly to a judge, without having to convince any legal authorities of the merits of those allegations, and requires that a judge enter a ruling on those allegations without a plaintiff’s having to face the person s/he’s accused. (Due process is a constitutional guarantee under the Fourteenth Amendment—except when lawmakers say otherwise.)
The motive for this circumvention of due process is now a very dusty one.
Restraining orders were born three decades ago in response to a pressing demand from female advocates for a process that allowed at-risk women, particularly victims of domestic violence, to avoid the pain and humiliation of having to take their claims to the police (who may have discounted those claims or even criticized women for making them) and go straight to a judge, that is, to have the opportunity to quickly and quietly explain their hardships in a situation of security and minimal scrutiny.
In the social climate that predominated in the 1970s, this made sense. Wives were still expected, by and large, to stay home, tend to their kids and kitchens, and mind their husbands. If husbands sometimes got a little free with their hands, that wasn’t something you broadcast to the world.
Restraining orders, which were legal finesses from the outset, were meant to arrest domestic violence and provide abused women with a discreet and minimally agonizing way to communicate abuse to the court and gain immediate relief from it. It certainly wasn’t on the minds of lawmakers at the time (or anyone else) that restraining orders would one day be applied to routine annoyances or that applicants might fabricate allegations or manipulate a free and convenient process for malicious or selfish ends.
Legislators bowed to social pressures for very sympathetic reasons. The problem is they’ve gone right on bowing for 30 years without consideration to how far restraining orders have drifted from their original intent or to whether their denial of due process to defendants is still justifiable.
Today, relative to the millions of restraining orders that are issued every year, it’s only seldom that allegations of violence are made on restraining orders at all.
Which doesn’t at all mean that the presumption of violence (stalking, sex offenses, etc.) isn’t applied to restraining order recipients universally.
Warrant for the continuation of a process whose nuclear cloud has gusted so far from its target demands a retrofit. This isn’t 1979, and there no longer exists any conscionable excuse for denying defendants due process of law. This is 2013, and violating defendants’ civil rights and burdening them thereby with criminal imputations for the rest of their lives is cruel and unusual punishment.
It’s vicious.
The restraining order process either needs to be dusted off and revisited or relegated to the dustbin of history.
Copyright © 2013 RestrainingOrderAbuse.com
TALKING BACK to restraining orders 
Reblogged this on Protective Order Victims (POV).
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Hi, I am a pro se litigant preparing to file for a Writ of Certiorari to the US Supreme Court alleging that Montana’s Temporary and final protective order statutes violate due process. My former psychologist got one against me. She did not even allege that there were any threats or violence (I was never even in her presence during the period in question). She simply swore out an affidavit, that was rather vague in it’s allegations, relied almost exclusively on events that occurred 20 years ago, did not involve her, were obtained during confidential counseling sessions, and was lacking in a great deal of veracity. Yet she got the order, ex parte, then got the permanent one despite that fact that her attorney and myself agreed to a “no contact order.” Would like to find someone to file an amicus brief, or better yet, represent me.
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Richard, could you provide some more information? Do you have a recording of the proceedings that you could transcribe? What did the judge rule (and on what basis)? Get the digital recording if you haven’t already. Put the CD in a computer, use Window Media Player and “rip” the CD into a .wav file. Then download Audacity for free. Open the program, drag the .wav file into it, use the “Edit” menu to “Select: All.” Then use the “Effect” menu to “Normalize,” perform “Noise Reduction,” and “Amplify” (use the magnifier and highlight a snippet of the audio where there’s no noise). This will give you a nice clean copy that you can save as an mp3, upload to the Internet, email, take snippets from, etc.
(Quick snipping can be done very easily in RealPlayer—also free.)
If there’s a written ruling, scan that. You can often do this at your public library for free. You load the documents into the tray, just like you’d do to make a copy, press SCAN instead of COPY, and save the documents to a thumb drive as a PDF. This e-document can be emailed anywhere. (A librarian can help.) Also scan the petitioner’s affidavit (sworn statement).
You can post links to materials uploaded to Dropbox, for instance, to any website you want (or any lawyer’s website contact page). This will allow you to put things in play. To suggest any kind of legal solution that you might investigate, though, I’d have to know more.
Off the top of my head, I’d question whether the judge had jurisdiction to approve the order. In my state—as in many—the lawful issuance of a protection order depends on the existence or prior existence of a domestic or dating relationship between the plaintiff and the defendant. Check out the statute for the order you were issued. Maybe the appropriate order was a “no-contact” order.
If the judge lacked jurisdiction to issue the order, you can appeal the order as “void.” Use whatever your state’s version of Federal Rule of Civil Procedure 60(b) is.
It seems like there may have been a violation of confidentiality, too. Have you already tried to appeal the order? There may be an attorney who’d take an interest if this woman violated her professional ethics. It may even be a crime.
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I just took a look, Richard, and the statute says the petitioner has to be a family member or partner. Unless she’s alleging assault, rape, or “stalking.”
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Actually, from my study of law and its history, it’s the reasonable man that’s been used to “over-ride” the constitution. From a wikipedia entry on the “reasonable person” the “reasonable person” was a legal creation made sometime in the 1800s, which came after the establishment of the U.S. Constitution. Here is a great article on the “reasonable person”: http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-1378/The-Reasonable-Man–Laws-Ghost-God.aspx
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Your comments, as always, are trenchant and cogent. And renew the grease on my wearied cogs. Very interesting about how restraining orders can sustain criminal allegations indefinitely that should otherwise fade away because never litigated in a criminal proceeding.
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The stalking restraining orders were DESIGNED, as I believe, to make criminal prosecution for stalking easier, thus lowering the bar for prosecution when such a restraining order was violated.
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The Illinois Stalking No Contact Order Act is one more unconstituational legal object ontop of the already unconstituational ex parte restraining order process. Combine that with the fact that any individual can bring up criminal allegations that have already expired due to the criminal statute of limitations, you’ve got cruel and unusual punishment. The Illinois Stalking No Contact Order Act breaks a variety of constitutional rights. From my reading of the “reasonable person,” it was evolved so that constitutional rights could be over-ridden by judicial activism.
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Restraining orders allow for unconstitutional activity by the courts. I have no doubt about this. It circumvents the 14th amendment. Furthermore, this is like stalking laws, whereby stalking laws are ex post facto.
This is very similar to stalking law, whereby there exists ambiguity due to the vague and broad language. The language is broad and vague in order to deter behavior. However, that behavior is not determined stalking until a a conviction occurs. Otherwise, there is judicial activism at play, which may not be representative of community values.
To go back to the point, however, the point is that some legal procedures, laws, and processes have been designed to disarm individuals before things get worse. For instance, I’ve read literature on stalking laws. A decent article is “The Stalking Statute Saga.” (1)
In Illinois, in 2010, the Illinois Stalking No Contact Order came about. However, stalking laws were always problematic, especially when related to Orders of Protection. For instance, in “Suing a Stalker: A Case Study” by Daniel Wolf Esq. (2), the plaintiff eventually decided to sue for infliction of emotional distress; and the defendant had been arrested plenty of times. Matter of fact, from a few Google searches I did last month, no one was ever charged with criminal stalking in Illinois UNLESS that individual had a restraining order against him or her. Sure, there was a small sample of people, maybe about 6 from August 2013, but it’s unusual for a criminal stalking prosecution to occur unless a restraining order is present.
For example, in Illinois, the case of People vs. Holt (1995), the defendant had a restraining order on him. The individual violated the restraining order, whereby criminal prosecution for stalking occurred (3).
I believe the system has been gamed so that protective orders are given out before criminal prosecution for “stalking” occurs (3: Chapter 3: Interventions for Domestic Violence and Stalking). This is because the legal system recognizes that the stalking law is unconstitutional is attempting to make it constitutional under the guise of the “reasonable person,” which is an ex post facto, ad hoc invention taking place via judicial activism if not contemporary community standards from the view of a jury.
As such, the police are going to be more willing to refer someone to civil court before taking things to the district attorney. With that in mind, individuals seek a restraining order. From that point, if the restraining order is violated, then it’s alleged that a person has a “reasonable” fear for his or her safety, thus criminal stalking has occurred. This whole “reasonable” fear thing is based on the “reasonable person” concept, which in civil court may be tainted by judicial activism, thus tainted by the beliefs of the judge, of whom may not be adequately representing community views. A more recent judge into office may be more representative of community views if the judge was recently elected. However, the most contemporary views are going to be from a jury rather than a judge; in addition, the judge may be trying to save his or her own arse from political backfire from not granting a restraining order.
For instance, a website from the National Criminal Justice Reference Service discusses arguments as to why the stalking law is vague and unconstituational. However, it avoids the arguments about the “reasonable person.”
It’s a way the legal system has layered things, thus generating more credibility for the criminal prosecution of an allegation of criminal stalking. That goes with some half-baked idea the legal system has that a reasonable person would believe that an individual who comes looking for another person, while a restraining order is in place, has some unsettled business with the individual, thus giving credibility to any stalking accusation.
There already exist plenty of arguments, whereby stalking statutes are unconstitutional. As such, there is an attempt to circumvent this problem by the granting of restraining orders.
Sources:
(1) The Stalking Statute Sage [John Tyner Hillsboro and Steven Price Hillsboro]
(2) “Suing a Stalker: A Case Study” [Daniel Wolf Esq.] Victim Advocate: The Journal of the National Crime Victim Bar Association. Vol. 2. Num. 2. Fall 2000.
(3) Domestic Violence, Stalking, and Antistalking Legislation: An Annual Report to Congress under the Violence Against Women Act. National Institute of Justice. Research Report. April 1996.
(4) National Criminal Justice Reference Service. https://www.ncjrs.gov/ovc_archives/bulletins/legalseries/bulletin1/2.html. Accessed: September 7th, 2012.
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