Introducing the “Indefinite Temporary Restraining Order”

Posted on November 11, 2015

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No, this isn’t satire, and Joseph Heller, author of Catch-22, didn’t coin the phrase “indefinite temporary.” It’s a capsular commentary on the state of our courts, however, that actual judges can actually use a phrase like this in actual rulings that affect actual people.

That these judges can actually get away with it says a lot about the state of our press, too.

The injunctive process is rife with oxymorons. Among this writer’s favorites is “speedy justice” (a phrase used by his own most recent judge to excuse carelessness). Restraining order courts are home to findings like “vegetarian stalker” and “handicapped batterer.” Trials in this arena operate in a vacuum (as law professor and former ACLU staff attorney Aaron Caplan observes); there is no oversight or accountability, and “meritorious” grounds for appeal are few, so judgments seldom receive scrutiny by the higher courts at all, and published rulings are scant. (Appellate courts don’t rehear cases; they only rule on the conduct of judges. Patent absurdities and abject fraud may be winked at…and legally.)

This post concerns a New Jersey family court ruling in the case of Kelleher v. Galindo. The case is 13 years old. That’s how asleep at the wheel our popular press is.

Follow the link to the case above, and the first sentence you’ll see in the ruling is this: “No appearance by Plaintiff. No appearance by Defendant.” That’s right, no one actually appeared in court, but a restraining order was issued anyway…an “indefinite temporary” one.

The plaintiff in the case petitioned nine restraining orders against the defendant between the years of 1996 and 2002, and in each and every instance, the order was dismissed, in most cases because “plaintiff [the person who petitioned the order] failed to appear at the hearing”; in a couple of cases, because she requested a dismissal.

The reasoning of the latest judge’s ruling runs thus (emphases added) and should be heard in the voice of a character from Alice in Wonderland:

This court has no doubt that if it were to grant plaintiff’s request to dismiss this most recent TRO [temporary restraining order], it would not be very long before plaintiff was back in the Cherry Hill Municipal Court seeking a tenth TRO against defendant.

[…]

It is this court’s opinion that, despite plaintiff’s telephonic request to dismiss this most recent TRO, the plaintiff’s past history of obtaining eight TROs against defendant in a five year period, all of which were dismissed prior to an FRO hearing [final restraining order hearing], along with six prior contempt charges filed against defendant based upon plaintiff’s allegation of violations of those TROs, all of which were likewise dismissed prior to an adjudication, justifies this court’s denial of plaintiff’s request to dismiss the TRO and instead justifies the issuance of an indefinite TRO.

There was no determined basis for an order and no basis for a ruling (in the absence of the litigants in the case). “Therefore” the judge, Michael J. Kassel, ruled that the latest temporary order be indefinitely sustained.

In the interest of economy, that is, the court determined itself justified in issuing an order contrary to the plaintiff’s express wishes and without any trial at all.

Copyright © 2015 RestrainingOrderAbuse.com

*The judge’s legal contortionism is illuminating. Because the judge couldn’t “justify” entering a “final ruling” in the absence of the parties but plainly wanted to, he circumvented the rules of civil procedure and made a “temporary” order permanent (instead of, for example, sanctioning the petitioner of the nine orders for “squandering judicial and law enforcement resources and diverting attention from urgent and meritorious domestic violence matters”). This provides other judges with a precedent to cite to justify violating other defendants’ due process rights, limited as they already are in this process.

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