Green Light to Expunge?

Posted on September 19th, 2006, by Dmitry Lev

Records of 209A orders live long and are unforgiving. Even an ex parte order that lasts a mere 10 days and is not renewed creates a record that will haunt the Defendant if there is ever another 209A case against him or in bail proceedings, just to name a few instances. Two recent decisions by Massachusetts courts may well have paved the road to expunge some of these records. These cases and their implications are discussed below.

In March of 2006 the Massachusetts Appeals Court ruled on a case that’s been dragging for four years, and the ruling shed light on an issue that’s been dragging on the minds of falsely accused 209A Defendants for much longer: does a District Court judge have the inherent power to expunge a 209A Restraining Order from the statewide domestic violence registry when the order was obtained through fraud on the Court. In short, perhaps surprising but much welcomed: YES. The case was Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006).

The case commenced when a couple (for reference, court designated pseudonyms of Jones and Adams will be used) obtained mutual 209A Restraining Orders against one another, which were later extended for one year. Sometime during this time period, after Jones was charged with violations of the 209A Order and criminal harassment in two different courts, Adams filed a motion to vacate the 209A Order against her and to expunge all records of the order. Here ensued the typical game of judicial ping pong. The judge granted the motion to vacate after finding 19 statements made by Jones to be false, but denied the motion to expunge. Adams filed a second motion to expunge the now vacated 209A Order, which the Commissioner of Probation (the office maintaining these records) opposed. The judge granted Adams’ motion to expunge, but the Commissioner filed a motion to reconsider. The judge denied the Commissioner’s motion, and the Commissioner appealed claiming that the judge had no authority to allow the expungement. The Commissioner argued that, while the Legislature specifically authorized and directed the development and implementation of a system containing records of all issuances and violations of 209A orders in Massachusetts, there was no provision for expungement of data because, according to the Commissioner, the purpose of the system was to preserve “complete information about a Defendant.”

The Commissioner was correct in that the 209A Law did not contain any provisions allowing for expungement of even incorrectly issued orders. While it is no surprise and no secret that the 209A statute is a poorly written and overly broad piece of legislation, short of the legislature specifically saying that no expungements are allowed, this vagueness left a hole and an opportunity for judges to make some good law on top of bad, for a change. This is exactly what the Appeals Court decided to do by returning to the lower court judges the power that was never expressly taken away by Chapter 209A, but which the judges were timid to exercise in 209A settings: the power to fix judicial errors and to attempt “to secure the full and effective administration of justice” when there has been a finding of fraud on the court. In such instances, said the Appeals Court quoting various earlier cases, “lack of statutory authorization is immaterial,” moreover, such power “cannot be restricted or abolished by the legislature.”

In this case, vacating the 209A Order against Adams is insufficient to protect the integrity of the courts and does not send an appropriate message to the public. Vacating the order leaves a record of the order in the system. Not only does this leave a permanent mark against Adams, but it also leaves, in perpetuity, a record of a fraudulently obtained court order. Although labels such as “dismissed” or “closed” are applied to records in the system, no explanation is provided as to why the order was dismissed or the case closed. Many vacated 209A orders are vacated because of the victim’s failure to prosecute. Law enforcement officials will not be notified that the order was vacated because it was obtained by fraud on the court. Rather, they may presume it was vacated because of the victim’s failure to prosecute or because of insufficient evidence. The perpetuation of a fraud amounts to a defiling of the court itself when law enforcement officials rely on inaccurate information produced by the court. Just as vacating the order is an insufficient remedy in those circumstances, sealing the record of the order is equally inadequate. When records are sealed, they do not disappear. While sealed records become unavailable to the public, the raw data continues to be available to law enforcement officials (police, probation officers, and courts). Law enforcement officials would retain access to information that is inaccurate and misleading and was obtained through fraud on the court. Therefore, sealing would not remedy the defiling of the court.

Id. at 731-732 (citations omitted).

Bravo? Can we run and request that all vacated 209A orders now be expunged? Not quite. First, the court made it clear that only orders procured through fraud on the court are subject to expungement. As an example of the type of orders NOT to be expunged the court cited the Vaccaro v. Vaccaro case, where a 209A order was vacated because there was not enough evidence to extend it, as opposed to an order initially obtained by fraud. 425 Mass 153 (1997). The court said that, in the case of a merely vacated order or a dismissal for failure to prosecute, but where there is no finding of fraud, there exists “value” to law enforcement officials in retaining records of its issuance.

Second, the court set out a rather stern definition of what it considers fraud, namely “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Adams, at 729-730 (citations omitted).

Third, the court spoke of the timing for a motion to expunge, ruling that 209A defendants “have adequate opportunity to assert [the fraud] argument” at the 10 day and the extension hearings. “If the judge does not make a finding of fraud on the court, the defendant will have no basis for a subsequent motion to expunge the record of the order from the system. Nothing in G. L. c. 209A, or in this opinion, requires a hearing on a defendant’s motion for expungement. Furthermore, the ‘clear and convincing evidence’ standard of proof required for demonstrating a fraud on the court finding will necessarily limit the number of instances when expungement may even be considered as an appropriate remedy.” Id. at 736-737.

Far short of an open floodgate, the Adams case seems to offer an ever so slight crack in the door for expunging certain 209A orders when backed by strong evidence of fraud and brought at the precisely right time.

Less than six months after the Appeals Court decided Adams, much closer to the daily reality of 209A Orders, Judge Gregory Flynn in the Waltham District Court rendered a decision applying the new standards from Adams. The case was Chamberlain v. Khanlian, Waltham District Court Docket No. 0651-RO-99. Here the Plaintiff failed to appear at the 10 day hearing and the 209A Order against the Defendant expired on that day. Another 11 days after that, the Defendant brought a motion to expunge the record alleging fraud on behalf of the Plaintiff. The Defendant supported his motion with several affidavits that set out facts in support of the fraud. The Plaintiff failed to appear at the hearing on the motion to expunge, but the Commissioner of Probation appeared and opposed the expungement in this case as well, though this time claiming that its sole purpose in opposing the motion was to make sure that the standards set out in Adams are followed.

“In light of the allegations made in the relevant pleadings, the factual support presented by the accompanying affidavits, the failure of the petitioner to appear to be heard on the allegations of fraud, the court is clearly convinced that the original restraining order was granted only upon a fraudulent set of facts presented to the Court,” wrote Judge Flynn. “Accordingly, in conformity with the standards set forth in Commissioner of Probation v. Adams, the motion to expunge was allowed.”

This being an “unpublished” District Court case, no further light into Judge Flynn’s reasoning or rationale is shed from his brief decision. It is interesting to note, however, that seemingly the timing standards set in Adams by the Appeals Court were not met here. In Adams, the Appeals Court noted that the Defendant’s only opportunities to raise allegations of fraud would be at the 10 day hearing or any further extension hearings. Here the 10 day hearing came and went without a motion to expunge. Yet, Judge Flynn still allowed the expungement when the motion was brought 11 days later. It is also interesting to note that both defendants in the two cases discussed above were women, and both had career motivated reasons for seeking expungements: one was an attorney while the other was a licensed pharmacist.

Whether other judges will see Adams as Judge Flynn did, and whether dozens of the falsely accused men in Massachusetts will be able to obtain relief from this turn in the law — only time will tell.

Attorney Lev quoted on felon voting rights

Posted on September 13th, 2006, by Dmitry Lev

Attorney Dmitry Lev was quoted in the Nashville Scene in a news editorial on voting rights of felons entitled Dead Men Voting.

“The history behind disenfranchisement in the United States was closely tied to racial motives and attempts to prevent newly freed slaves from taking part in the political process,” says Dmitry Lev, an attorney who has researched felon disenfranchisement. “Minorities still face a heavy disparate impact resulting from disenfranchisement laws, as statistically there is a greater number of minority felons.”

The article was written by Willian Dean Hinton and published in the August 24, 2006, edition.

The issue raised in the story, and one on which I expand here, is the inconsistency in the restrictions on convicted felons’ ability to vote among states. Any restriction on felon voting (“disenfranchisement”) is problematic because it is a state measure and its implementation and reach vary greatly among states. Thus, felons convicted of identical crimes in different states may have opposite outcomes on their ability to vote in the next election, whether federal or state. The opposite extremes are the states of Florida and Maine: in the former, convicted felons lose their ability to vote for life, while in the latter felons can vote while still imprisoned. Other states track everywhere in between.

Aside from having an obvious impact on the voting rights of minorities, disenfranchisement does not satisfy any of the four commonly recognized purposes behind punishing criminals: incapacity, rehabilitation, restitution, or deterrence. By analogy, certain felons are prohibited from buying guns because society perceives them as dangerous. Therefore, society imposes a narrow (and arguably not very effective) incapacity on that felon by restricting his right to freely purchase a gun. So too, by taking away a felon’s right to vote, society sends a message that the felon is dangerous to the political process and to democracy because he may have a say in electing politicians more inclined to support the felon’s causes. In other words, exercising the most fundamental right in a representative government structure becomes a threat if the causes turn unpopular.

It must also be noted that crimes come in two varieties: malum prohibitum and malum in se. The former is literally “wrong because prohibited” while the latter is “wrong in itself.” A large percentage of felons have been convicted of malum prohibitum crimes: various small drug offenses. These crimes are essentially victimless, do not infringe on the rights of others, do not cause pain, suffering, or death of those around. To classify these in the same category as felons who were convicted of malum in se crimes (murder, robbery, rape, kidnapping, etc) is clearly wrong, and to impose the same life long ban from the political process on both groups of felons is outright suspicious considering that malum prohibitum crimes are mostly political fruits. It is also interesting to note that malum prohibitum acts are generally criminalized by the political right, while the political left would be the clear winner if disenfranchisement laws were to be repealed.

Shortening the long arm — can a 209A Restraining Order be issued against an out of state Defendant?

Posted on September 7th, 2006, by Dmitry Lev

Can 209A Restraining Orders be issued against out-of-state Defendants?

There are two types of jurisdictional requirements that must be met in order for a court of law to have the authority to rule on matters: subject matter and personal jurisdiction. Subject matter simply means that a court has the authority to hear a particular kind of case. Personal, or in personam jurisdiction, means that a court has the authority to assert power over a specific person, usually the Defendant.

In Massachusetts, Chapter 209A Section 1 grants subject matter jurisdiction to hear 209A Restraining Order cases to Superior, District, Probate and Family, and Boston Municipal Court departments. In cases where there is only a dating relationship between the parties, Superior Court does not have jurisdiction. Thus, subject matter jurisdiction is usually not an issue in 209A Cases.

On the question of personal jurisdiction, the Court spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in April 2006, clarifying this issue. In this case, the Plaintiff was a native of Massachusetts while the Defendant was from New Hampshire. The couple had a 2 year dating relationship, during which the Plaintiff moved to New Hampshire to live with the Defendant. Shortly thereafter, the Defendant relocated to the State of Washington on a Navy assignment, and the Plaintiff followed. A child was born, and after a brief return to New Hampshire, the Plaintiff remained in Washington. After the relationship ended, the Plaintiff relocated to Massachusetts permanently.

Immediately upon the Plaintiff’s return to Massachusetts, she sought a 209A Restraining Order claiming various threats and fears based in part on the Defendants Navy connections. All of these alleged threats took place while both parties were in Washington.

Generally for personal jurisdiction to exist, the Defendant must have been served with the court papers, and have had sufficient contacts with the state so that the assertion of jurisdiction by the Court meets basic due process and fairness standards. There is no set minimum number or types of contacts that are required; the Court will analyze these issues on case by case basis.

The most obvious contact with a state is residence. When the Defendant resides in the state where the court sits, personal jurisdiction is likely established. The other strong but less obvious basis for jurisdiction is waiver. This is when the Defendant does not reside in the state, but comes to defend and litigate the case and does so to conclusion without raising lack of jurisdiction as an objection. The Defendant is deemed to have “waived” his lack of jurisdiction defense because by litigating the case he has voluntarily submitted to the jurisdiction of the Court. In the words of the Court, common factor in waiver of personal jurisdiction are “dilatoriness and participation in, or encouragement of, judicial proceedings.”

The Defendant can also make a “special appearance” solely for the purpose of disputing personal jurisdiction without waiving the defense.

When can a court assert jurisdiction over a nonresident Defendant?

There are two questions to be asked: is the assertion of jurisdiction authorized by statute, and, if so, is the exercise of jurisdiction consistent with due process requirements under the US Constitution? In Massachusetts, the statute that grants jurisdiction over nonresident Defendants is Mass. Gen. Laws Chapter 223A, Section 3. This is the so called “long arm” statute. It sets out eight factors for consideration in determining whether jurisdiction may be asserted:

  • Transacting business in the state
  • Contracting to supply services or things in the state
  • Causing injury by act or omission in the state
  • Causing injury outside the state while maintaining business or other persistent contacts within the state
  • Interest in real property in the state
  • Providing insurance within the state
  • Maintaining domicile within the state while being a party to a relationship out of which there arises a divorce, custody, child support, alimony, or property settlement action. Note that a domicile is not the same as a residence. A person may have more than one residence, but only one domicile, which entails the “intent to remain indefinitely.”
  • Having been subject in the past to jurisdiction in the state that resulted in alimony, custody, child support, or property settlement orders, if the current action involves modification of such orders.

It is the provision regarding causing injury in the state that is most often invoked in 209A Restraining Order cases. Further, it is the Plaintiff who bears the burden of proof on whether jurisdiction is validly asserted.

In the Lamarche v. Lussier case, the Court went through the eight factors listed above and held that none of the factors applied to the Defendant, and therefore personal jurisdiction should not have been asserted. In short, the Defendant did not reside in Massachusetts, nor conducted any business, nor delivered goods or services, nor owned any real property in the state. The alleged injuries to the Plaintiff occurred while the couple was living in another state.

While the Defendant’s actions may have caused Plaintiff’s injury in Massachusetts, the Defendant did not have the “persistent contacts” with Massachusetts as required by the statute.

Because the requirements of the statute were not met, the Court did not need to further analyze the second question of due process and whether Constitutional requirements were met so as not to offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (the landmark Supreme Court case setting forth the requirements for personal jurisdiction).

With that in mind, the 209A Restraining Orders issued against the Defendant were dismissed.

As to the question of whether 209A Restraining Orders can be issued against out of state Defendants, the answer comes down to an unsatisfactory and terse summary of everything discussed above, and a classic lawyerly answer:  IT DEPENDS.