Tag ex parte orders

Restraining Orders Make Casual Interpretation of Superficial Facts Easy, Privative, and Enduringly Crippling

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Most restraining orders are issued ex parte, that is, based exclusively on the testimony of the accuser. Making hyped, skewed, or false allegations against someone who’s not there to contradict them, and making those allegations persuasive, isn’t hard. Hearings to finalize orders based on ex parte rulings, furthermore, may begin and end in 10 minutes.

At no stage of the process do allegations meet with eagle-eyed scrutiny.

This shouldn’t be news to anyone, nor should it be news that the effects of picknose adjudications are far-reaching. Based on them, citizens are publicly humiliated and may be deprived of access to their children and property besides denied jobs. Proximal effects of these consequences are stress, emotional turmoil, depression, and disease. (Restraining orders are also a foot in the door from which vexatious litigants can persecute the accused relentlessly, aggravating these effects manifold.)

The accused expect these results to be obvious to judges, and they expect consciousness of them to influence judges’ decisions. They expect judges to care about the truth and to care equally about the lives of those who stand before them. Judges, however, aren’t boy scouts, philosophers, or social workers. They’re just people performing a job. They clock their eight and hit the gate like sanitation workers do—and they may not perceive their job very differently.

There is a difference, though. How judges are to perform their job is prescribed by the law. The indifference of the law is the problem.

Laws concerning restraining orders were hastily slapped together decades ago, and their evolution has been informed by very narrow priorities (mostly prescribed by feminist advocates and VAWA). None of these priorities considers the rights or welfare of the accused. Restraining order law is “women’s law,” and the only historical imperative has been to process, prohibit, punish, and permanently brand purported abusers in the name of protecting those who are “politically disadvantaged.”

As recent posts have stressed, restraining orders are public records that staunchly resist revision or expungement. While convicted felons may be able to have their criminal records erased, citizens accused on restraining order petitions, even ones that have been dismissed (“thrown out”), must wear their labels forever.

To be accused is to stay accused.

This injustice won a fresh objector recently whose story is telling. I won’t identify him, because he intends to tell the story himself sometime soon, and he hopes to report a happy conclusion. This man made headlines last year when he successfully appealed a restraining order against him in his state’s supreme court. The order was vacated, and that should have been an end on it.

Not long ago, he says, he and his girlfriend were detained by a customs and border official when they attempted to reenter the country after going on a cruise. The dismissed restraining order raised some kind of red flag (in the mind of the official, anyhow). The man wasn’t seriously inconvenienced, and as an American citizen, he faced no risk of being barred from the country.

What was forcibly brought to his attention, though, is that a very dead order of the court still hounded him months after it should have been laid to rest.

The man is an entrepreneur who works for himself, but he’s now cognizant of the potential harm a record like this could have on anyone who’s employed in the public or private sector who’s subject to a thorough background check. The record that got him detained didn’t say “vacated” or “void” or any such thing. It showed, in fact, as current.

That’s because tidy-up isn’t mandated by law; only this is: “Process, prohibit, punish, and permanently brand purported abusers.” Nobody in the system cares what happens afterwards, because no one in the system has to. It’s on to the next “abuser.”

This highlights a broader fact about restraining orders. They’re prejudicial, and because they’re pumped into statewide and national databases, they’re subject to free interpretation by anyone in the system—or anyone with access to the public record…which is anyone.

Summary:

  1. A judge interprets some superficial claims made by a complainant and enters a “preliminary” (ex parte) order. This is then permanently entered into the public record, including into state and federal registries.
  2. The order may be finalized, or it may be “tossed.” Either way, the initial judge’s (five-minute) impression is preserved.
  3. Any other cog in the system, whether a clerk of the court, police officer, or other public official, can see this record and freely interpret its significance.
  4. Any private party, what’s more (e.g., an employer, a loan officer, a landlord, a student, a client, a girl- or boyfriend, a child’s school administrator, etc.), is also invited to freely interpret the significance of an order that may bear a title as fatal to the accused’s popularity and prospects as “emergency protective order for stalking and sexual assault.” (Even if such an order is tossed after the defendant is afforded the chance to defend him- or herself—or because the plaintiff voluntarily had the order dismissed—the permanent record still says, “emergency protective order for stalking and sexual assault,” and it says it right next to the defendant’s name.)

What might be called cruel and unusual punishment isn’t acknowledged by our government as unjust or even unfair.

Copyright © 2016 RestrainingOrderAbuse.com

*When the writer of this post was first accused in 2006, he inquired with two clerks at the Pima County Superior Courthouse about where to file a brief to a judge. The male of the pair, upon hearing what the matter was about, fixed him with a knowing look and gratuitously remarked, “She wants you to stay away from her, right?” My accuser, a married woman who deceived multiple judges, was someone I had only ever encountered outside of my own house (where she nightly hung around in the dark). Pococurante orders of the court license any arrogant twit to form whatever conclusion s/he wants…and to pronounce that conclusion with righteous contempt.

Lip Service: What Passes for Fair and Sound Restraining Order Policy in Michigan (and, Largely, Everywhere Else)

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I’ve tried in earnest to field a lot of questions about the rules and practices that apply to restraining orders. A lot of the answers don’t make any sense.

Judges and authorities don’t question the fairness or sense of the rules, because that’s not their job. Lawyers sometimes question them but may not be fully aware of them themselves. And defendants, who are terrorized and railroaded through, often have no recourse but to complain afterwards about injustices they’re not always able to explain.

Let’s shed some light on a few of these injustices with the help of the Kalamazoo County Prosecutor’s Office. Its website’s “Personal Protection Orders” page is here.

“A police officer called and informed me of a PPO [personal protection order]. Is a phone call effective without personal service upon me?” This is a question the likes of which bring visitors to this blog regularly.

Most attorneys, if asked this question, would probably say no, it isn’t sufficient—and for good reason. The average person who’s issued an order of the court has no idea what its significance is. A cop’s calling and telling him or her about it—“Hi, a protection order has been issued against you”—hardly qualifies as making him or her aware of prohibitions whose violation s/he can be arrested and jailed for without being tried before a jury for anything.

In Michigan, however, “oral notice” (lip service) is apparently deemed “good enough.”

Notice no actual confirmation that a defendant has even been orally informed of a court order is required (like a signature, for example). It’s sufficient if a police officer (or clerk) files a form that says the defendant was told of its “existence.” This say-so is called “proof.”

This “proof,” once “entered into the computer system,” authorizes a police officer to arrest the defendant for violating an order of the court that s/he may not even have been given a copy of. The defendant’s so much as saying hello to the plaintiff now qualifies as a crime for which s/he can be arrested and punished.

(The Kalamazoo website later contradicts itself with this statement: “The police might not arrest the restrained party, especially if the officer did not witness the acts violating the PPO, or if there was insufficient proof that the Respondent had been served with the PPO papers before the alleged violation occurred.” This suggests that service does require that a police officer place a copy of the order in the defendant’s hands. You see from these kinds of inconsistencies why so many people complain that officers they question seem to make up answers on the spot.)

You may be thinking that with policy’s being so wishy-washy, there’d have to be evidence that the defendant committed a violation of the order before a police officer could arrest him or her. Not so. A violation, which the defendant may not even understand to be a legal trespass, just has to be reported to a police officer once the order is in the system.

I like the phrase “warrantless arrest,” because one of the meanings of warrantless is lacking justification or proof. To be clear, the basis for hauling someone off to jail may once again be somebody’s say-so. An officer doesn’t have to witness anything.

An order itself is, of course, issued on somebody’s say-so. Consider:

An ex parte order may be obtained by a plaintiff without the defendant’s knowing a thing about it (that’s what ex parte means), and obtaining the order is an investment of two and a half hours’ time tops. Most of this is waiting. The actual audience with a judge may only take five minutes. Observe, further, that “PPOs do not require a court hearing.” That means there’s no follow-up mandated by law. Unless the defendant knows to request a hearing to challenge the allegations against him or her—which may include anything from harassment to stalking to battery or worse—the order (possibly based on a five-minute interview) is a done deal, and those allegations remain permanently stamped on the defendant’s public record.

To repeat for emphasis: A judge may never so much as clap eyes on the defendant, who’s just a name scrawled on a form.

As if all this didn’t sound bent enough, contemplate this, finally:

This means that if the plaintiff on the order opts to contact the defendant, that’s perfectly okay. The person who goes to jail is the defendant.

Does this mean a malicious plaintiff can bait the defendant into violating a court order by calling, texting, or emailing him or her, or showing up at his or her home or place of work?

phewRight. (People report answering the phone and actually being told, “Gotcha!”)

The Kalamazoo County Prosecutor’s Office is hip to this potential source of abuse, however. It admonishes plaintiffs in the sternest terms not to “send the wrong signals.”

Copyright © 2014 RestrainingOrderAbuse.com

“Why Fix It If It Ain’t Broke?”: On Restraining Order Injustice and the Authority of Usage

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“The greatest absurdities in the world become correct, as soon as they have got Usage fully on their side, just as the worst usurper becomes legitimate, as soon as he is completely established on the throne.”

—Esaias Tegner (1874)

The author of the epigraph, a Swede who popularized linguistic research, was talking about language, but his denunciation is broadly applicable. He deplored that standards of reason and rectitude are easily corrupted when “anything goes” becomes the norm.

He despairingly observed, in other words, that when absurdity becomes customary, it’s accepted without question.

The inanities inherent in the administration of civil restraining orders persist, because the process has enjoyed a 30-year reign virtually uncontested. Those most qualified to protest its inequities and inadequacies are seldom its victims, so their protests (few and far between) have accomplished little toward motivating reform, and those victimized by the process are seldom sufficiently educated in the law or spiritually equipped to defy their lot.

Popularity and rootedness have replaced decency and propriety as the gauges of worthiness, and the authorities who should most be outraged by this misrule have mostly kept mum.

Estimable jurists (legal experts) shouldn’t be contented with the dismissal, “Why fix it if it ain’t broke?” The restraining order process is broke, in more ways than one. It’s not only broken; it’s morally bankrupt, besides.

Elaine Epstein, former president of the Massachusetts Bar Association, acknowledged two decades ago that restraining orders are “granted to virtually all who apply.” Echoes of her critical candor from peers in the legal community have been markedly few, however, during the years since. Disdainful remarks by respected attorneys about how restraining orders are abused, such as those by Terri Weiss in her blog From Bedroom to Courtroom, may appear as asides in treatments of other topics, but seldom are restraining orders categorically denounced at length.

Eminent legal scholars are more likely to parse and weigh in on legal niceties of interest to the highest courts in the land, because such opinions are excellent fodder for curricula vitae (academic résumés). Meanwhile gross abuses of everyday processes that victimize citizens on an epidemic scale go disregarded. Too mundane, wot, wot. In reality, bucking the status quo by observing the obvious isn’t impressive or likely to enhance one’s popular (and thus professional) regard and credibility.

It would, however, promise to do a lot more social good.

Copyright © 2014 RestrainingOrderAbuse.com