209A Violations: a one way street

Posted on January 18th, 2007, by Dmitry Lev

A client will often say, “Why am I being accused of violating the 209A order if my (insert Plaintiff wife, husband, boyfriend, girlfriend, ex, etc.) called me first? The Plaintiff violated it, not I!” Understandable line of reasoning, but unfortunately incorrect.

For the sake of this discussion, assume that the Plaintiff took out a 209A Restraining Order against the Defendant, and the order does not allow the Defendant to have any contact with the Plaintiff and also requires the Defendant to stay away. It is legally impossible for the Plaintiff to violate a 209A order. The only person who can be in violation is the Defendant, despite the fact that the Plaintiff may have been the one to initiate contact. Further, the Plaintiff cannot decide to temporarily “suspend” the restraining order or “authorize contact just this one time.” Regardless of what the Plaintiff may say or do, only the court can modify the terms of the restraining order and if the Plaintiff truly wants to communicate, s/he should go to court and ask the judge to vacate the restraining order altogether, or at least modify it to allow contact. Until such action is taken by the judge, any contact by the Defendant, even at the request of the Plaintiff, is a violation of the restraining order which exposes the Defendant to arrest, being held without bail pre-trial, 2.5 years in jail if convicted, monetary fines up to $5,000, and other nasty consequences.

For the Defendant, the best thing to do if the Plaintiff calls is to say nothing and hang up immediately. Any conversation, even if it’s about the fact that the Plaintiff should not be calling, is technically a form of prohibited contact — violation of the order for which the Defendant can be arrested and prosecuted. If the Plaintiff e-mails or sends a text message, do not reply, no matter how temping it may be. If the Plaintiff shows up at the Defendant’s home, do not open the door. If the Plaintiff shows up at the Defendant’s work, try to avoid all contact and have someone else ask the Plaintiff to leave. If the Plaintiff shows up at a public place where the Defendant just happens to be, such as a restaurant, club, or park, the Defendant should leave immediately.

No matter how good the Plaintiff’s intentions are, or seem to be, any responses by the Defendant are violations of the restraining order, and therefore serious crimes under the law. Even if the Defendant merely remains on the phone and “lets the Plaintiff talk,” the Defendant is still committing a violation. Each phone call, e-mail, or text message to which the Defendant replies is considered to be a separate violation. If the Plaintiff continues to initiate contact or expose the Defendant to the risk of violating the order, it is at times advisable for the Defendant to notify the local police. It is always advisable for the Defendant to keep his/her own attorney apprised of these instances.

Short of obtaining a reciprocal restraining order, there are not many things the Defendant can do to “punish” the Plaintiff for initiating contact. But it is important to document the Plaintiff’s instances of initiating contact, because should there be an allegation of a violation and a future criminal proceeding against the Defendant, the fact that the Plaintiff initiated the contacts could possibly serve as a mitigating factor and lessen the strength of the prosecution’s case.

In short, 209A violations are a one way street that only the Defendant can cross.

How about a substantive date?

Posted on January 14th, 2007, by Dmitry Lev

How about a substantive date?

How about not. In Massachusetts, a 209A domestic abuse restraining orders can be issued only when the alleged abuser is a “family or household member.” Interestingly enough, that short definition also includes those who “are or have been in a substantive dating or engagement relationship,” whether or not they are actual household members. What exactly is a substantive dating relationship was explored recently by the Court of Appeals in an unpublished opinion on the matter of Sullivan v. Watkins, 05-P-1552 (November 15, 2006).

The court set out some rather concrete factors for determining whether a relationship is, in fact, a substantial one. Whether the justices of the court apply this reasoning to their personal lives will for now remain a judicial secret. Meanwhile the factors are: 1) the length of time of the relationship; 2) the type of relationship; 3) the frequency of interaction between the parties, and 4) if the relationship has been terminated by either person, the length of time that elapsed since the termination. Further, judicial guidelines encourage judges to give the term “substantive dating relationship” a broad meaning in order to achieve the statute’s purpose.

As the story is told, Plaintiff Shawna Sullivan was seeking a 209A Restraining Order against one Paul Watkins. On the record, Sullivan stated that the two “went out here and there” and had “gone out to eat plenty of times.” Well, the meals must not have been particularly memorable, because Sullivan could not recall a single restaurant or occasion for their dates when asked. Apparently Sullivan’s allegations of fear of imminent physical harm did not include any evidence of Watkins ever having threatened her, neither physically nor verbally. Her affidavit in support of the ex-parte order was based solely on seeing Watkins’ truck driving by her house. According to the Court, “if anything, this record reveals a few casual dates.”

Bottom line: the 209A order was vacated by the Court of Appeals. What remains are two frightening thoughts. First, that Sullivan actually thought she could get a restraining order based on what pretty much amounted to nothing. Second, that Sullivan was right – she did get the order just as she sought. It was initially issued out of Malden District Court by, coincidentally, Judge Sullivan. (I presume that Plaintiff Shawna Sullivan and Judge Mark Sullivan are not related. If, by chance, they were, the judge should have immediately recused himself from the case.) The positive thought is that, once again, the recourse was a successful appeal, and kudos to Watkins for pursuing this matter all the way. Kudos also goes to the Court of Appeals: while their definition of substantive dating is a bit dry, they got this particular case just right.

I hate you permanently not

Posted on December 20th, 2006, by Dmitry Lev

Another piece of the 209A saga and judicial wisdom (please apply sarcasm as you see fit) has been brought to us by the Chelsea District Court. Here, a judge decided that he would issue a permanent 209A order at the 10 day hearing. Not surprisingly, the Court of Appeals disagreed, noting that under the statute, the maximum length of time allowed for an order issued at the 10-day hearing is one year. Shorter is okay, longer is not. Accordingly, the permanent order was vacated.

What’s most surprising about this incident are the actions of the District Court judge. While other 209A matters at times rest on more subjective issues, like the judge’s finding of facts or placing credibility with one side’s testimony versus another, here the issue is one of clear black letter law and its application.

“Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.” MGL Ch 209A, Sec 3.

Seems rather straightforward. The case was an unpublished Massachusetts Court of Appeals matter, Docket No. 2005-P-1760 (October 23, 2006), Scholwin v. Scholwin.

The 209A Appellate Theatre, Act One

Posted on December 11th, 2006, by Dmitry Lev

Last week at a nearby District Court at a 209A hearing a judge fell for the most obvious and transparent stunt by the Plaintiff: tears. There was no physical abuse. There was no threat of physical abuse. There wasn’t even a hint of the possibility of physical abuse. But instead of considering the merits (or lack thereof) of the case and instead of at least attempting to apply the definition of abuse to the facts, as prescribed by law, the judge looked at the Plaintiff’s tears, looked at the defense attorney, interrupted him, and angrily said: “Counsel, I’ve heard enough!! Can’t you see that this Plaintiff is terrified by your client??” The judge then extended the 209A order for one year. A gross injustice, especially considering that the Plaintiff in this case was an actress with enough stage experience to be able to turn the tears on and off at will.

Sad and unfair.  What to do?  Political and legislative pressures aside, the more immediate and effective way of handling the cases of 209A’s being granted without proper consideration of the facts and the law is this: APPEAL, APPEAL, APPEAL.  While the process is costly and lengthy for the client, and tedious and time consuming for the attorney, two good things come out of a successful appeal.  First, depending on the specifics of the case and the nature of the relief sought, the lower court judge’s decision may be reversed, remanded,  or the 209A order could be vacated altogether.  Second, the lower court judge gets a figurative slap on the wrist and another tally on his “reversed” scoreboard.

Judges don’t like to be reversed.  It sends a strong message to the judge, “Hey, Your Honor, you made a mistake!” The next time that judge hears a 209A case, s/he is bound to approach it more carefully. Being overturned once is unpleasant, but being overturned two, three, four times on the exact same issue could affect a judge’s reputation enough to make them think twice.

Clients are hesitant about appealing orders that only last one year. All things considered, the order will probably expire on its own by the time the Appeals Court decision is rendered. But a Defendant who loses in a 209A case must at least consider an appeal and discuss it with their attorney.  Allowing judges to hand out 209A orders based on theatrical tears alone with no repercussions only reinforces the already rampant  carte blanche in this area.  By keeping judges in check with well planned and well argued appeals, the era of free-for-all 209A’s may just near its final curtain.

The 209A Breakup: what about my furniture?

Posted on November 4th, 2006, by Dmitry Lev

Here’s a situation I encounter often: boyfriend and girlfriend have a joint lease. Girlfriend gets tired of the boyfriend. Girlfriend applies for, and of course obtains, a 209A Restraining Order. Boyfriend is booted out of the apartment, at least for the initial 10 days. At the hearing, girlfriend tells a sob story to the judge and sheds tears. The order is extended for one year. Ouch. An all too familiar ouch. To be fair, of course, this ordeal could also play out where genders are reversed and the girlfriend gets the boot, where genders are the same, or among any other relationships covered by the 209A law. But the courts are too often unfair and justice is certainly not gender-blind. And let’s get real: most frequently it’s the boyfriend who is going to be filling out the change of address cards.

For the sake of this discussion, let us assume the “best” case scenario: that no children are involved, that no actual violence or abuse ever took place, that the relationship was winding down in any event, and that the boyfriend was thinking of leaving on his own. A sore spot and the cause of his past immobility, i.e. the reason he has not left sooner, is literally immobility — of his furniture. Say he spent $10,000 of his money on a living room set, bedroom set, electronics, and the obligatory 45 inch flat panel LCD TV. As soon as that restraining order goes into effect and the boyfriend is woken up by the police at 6:00am, in his morning stupor he will be lucky if the police give him 5 minutes to gather his essentials and depart.

While I understand that virtually no one reads these materials in anticipation of a 209A being issued against them, I still feel obliged to share what I think the “5 Minute Essentials Grab List” ought to be:

    1. Grab your cell phone WITH THE CHARGER!
    2. Grab your day planner or PDA or wherever you keep phone numbers and important contact information
    3. Grab your check book, ATM cards, Credit Cards
    4. Grab your Passport, social security card, green card, whatever gives you the ability to work and travel
    5. Grab your laptop, work briefcase, tool bag, uniform, suit, whatever you need to continue working
    6. Grab your prescription medicine

I consider the above list to be essential for most people not to get stuck in desperate need of something inside the residence that they can no longer access. And setting up the police appointment to go and get more things, while may be allowed under the terms of the order, usually ends up being an exercise in futility: chances are the apartment has been rearranged and things won’t be found as easily, if at all. Still, most people worry about grabbing their toiletries and underwear. Come on. Those are the easiest and cheapest items to replace.

What about that furniture? Hold on. More importantly, our boyfriend from the above scenario should sever all financial ties with the girlfriend. A word of warning, in certain situations with children and spouses, financial support is a part of the restraining order, and severing certain financial ties may be a violation. In some instances the ousted spouse is ordered to continue making mortgage payments on the home where he can no longer live. I won’t address that injustice at the moment. In our case, severing financial ties may mean changing passwords and PIN numbers on bank accounts and credit cards to which the girlfriend may have access. If she is an authorized user or a co-signer on an account, her name should be removed. If she is a joint account holder the bank won’t remove her name or allow the account to be closed without her permission. That’s fine. At the least, the boyfriend should withdraw any money from the joint accounts that he feels is rightfully his, that he deposited, or that he earned.

While shutting off utilities to the residence is a violation of the order, it is important for the boyfriend to let the utility companies know that he is no longer responsible for those accounts. Some companies may offer to disconnect the power, phone, etc. This is dangerous territory! The actions must not be viewed as interfering with the residence.

Are we up to the furniture yet? No. In our case, the lease was joint, meaning both persons are responsible for the payment of rent. This responsibility is usually “joint and several,” which means that should the girlfriend fail to pay rent, the landlord can technically come after the boyfriend to collect it despite the fact that the boyfriend no longer lives there and, further, cannot live there because of the 209A Order. The way to handle the situation is to talk to the landlord. Some might be more understanding than others and agree to remove the boyfriend’s name from the lease without a penalty or a buy-out. Others will not cooperate, especially if the credit application was approved based largely on the boyfriend’s income. This situation is tough, and there are no black and white answers here.

It should be noted, however, that if the lease is in the boyfriend’s name alone, he can usually institute an eviction proceeding against the girlfriend, which, if successful, would allow him to have the 209A order modified to allow him to move back in after she is gone. Then, hopefully, the furniture is still there. Same for the TV. In theory, the 209A Order should not affect title or ownership of property, or impair other available legal remedies.

But if the lease is joint and the girlfriend is not leaving, the boyfriend may consider the following:

    1. Get an attorney to speak to the girlfriend or to her attorney about reclaiming the furniture. A compromise of sorts may be achieved.
    2. Be careful asking a friend to contact the girlfriend! This may be viewed as a prohibited contact under the Restraining Order, which would be a violation.
    3. The boyfriend may have several civil causes of action available to him against the girlfriend to reclaim the furniture. This is an adversarial and lengthy process, especially if ownership is disputed.

Then comes the time to actually fill out the change of address card to get the boyfriend’s mail properly forwarded. And he should deal with that cell phone family plan.

Naturally, most 209A cases are not about furniture. Usually emotions run high, vengeance is in the air, and children may be involved. At times a 209A extension will be opposed and fought in court successfully. At other times the parties will reconcile and the girlfriend will ask the court to drop the order. Sometimes, however, a 209A could be an ironic blessing in disguise when it serves as a catalyst to a long overdue and much needed breakup. In those instances, furniture may just be the main concern. Well, good riddance.

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.

10 Most Important Actions When Served with a 209A Restraining Order

Posted on August 23rd, 2006, by Dmitry Lev

1. DO calm down. This is more important than it sounds. Wait one hour before doing anything else.

2. DO NOT contact the person who took out the order in any manner whatsoever. This includes text messages, e-mails, sending flowers, or contact through third persons. It is tempting to ask “Why did you do it??” but this is a dangerous temptation.

3. DO read the order carefully to see which provisions are checked. Is there a “No Contact” provision? Is there a “Stay Away” provision? Note the addresses of the stay-away locations. Are there provisions regarding children?

4. DO note the date and location of the next scheduled hearing. This will be indicated on page 2 of the 209A Order. If you cannot read the writing, call the Clerk’s Office for the court listed at the top of the 209A Order.

5. DO contact family and friends to arrange for a place to stay at least until the next hearing date, which should be in about 10 days.

6. DO NOT return to the residence to retreive personal belongings if the order specifies your residence as a stay-away location. Doing so would be a violation of the order, which is a serious crime.

7. DO NOT disconnect utilities or telephone lines even if the rental lease or the house is in your name. Doing so may negatively impact your chances of getting the order dismissed later. If the other person has no legal claim to the residence from which you were ordered to stay away, you may be able to force them to leave via an eviction proceeding.

8. DO NOT go near the other person’s workplace, school, or any other place where they may be spending time even if it is a public place.

9. DO contact an attorney. The attorney can help you to retreive your belongings by communicating with the police on your behalf. The attorney will also advise you of your rights and what options may be available. If you and the other person work or go to school at the same place, the attorney will have the order modified to allow you access to these places without placing you in violation. The attorney will also advise you whether there is a good chance of getting the order dismissed (removed) and what procedures will be involved.

10. DO try to distract yourself and keep yourself occupied with other things. The next few weeks will be especially tough. It is important to surround yourself with supportive people, family, and friends so that the nightmare of the 209A order seems less daunting.

Most importantly, ABIDE BY THE ORDER. Doing so will give you the best chances of successfully presenting your case in court in order to get the order removed.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders. Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.

209A — a four letter word?

Posted on August 17th, 2006, by Dmitry Lev

209A is in fact a four letter word in Massachusetts, and this is so because of the nasty implications a 209A order has on the person against whom one is issued. For those unaware, 209A is the common name for the Massachusetts species of domestic restraining orders, and it refers to the number of the chapter of the Massachusetts General Laws entitled “Abuse Prevention” that governs issuance and outlines the proceedings and procedures for these orders. See the full text of the 209A law. The purpose of the law was to prevent the rising incidents of domestic violence and to give victims of domestic violence a much needed tool to protect themselves with the help of the court.

Sounds great, in theory. In reality, the much needed tool became an all too easy to use weapon. Judges routinely ignore the narrow definition of abuse, as it is defined in the law:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress.

Moreover, the law provides that these orders can only be granted where there is a blood, marriage, dating, or co-habitation relationship. Ex spouses, ex fiancees, ex boyfriends/girlfriends are included as well. To set the nomenclature straight, and for the sake of this discussion: Plaintiff is the person asking the court for the order, Defendant is the person against whom the order is issued.

All too often, a vindictive ex spouse fabricates or greatly exaggerates a seemingly benign incident in an attempt to get a 209A order issued in their favor. A state employed Victim Witness Advocate is then appointed to essentially coach the “victim” on what to say in front of the judge. “Fear” appears to be the magic word, and even if “imminent serious physical harm” (note that those are actually four separate elements) is not obvious or not present at all, the orders are liberally granted nonetheless.

The order itself has SIXTEEN sub-parts, some are mandates and others are various prohibitions, and the judge can check the box next to the provisions that apply to a particular order. Discussing all sixteen parts is best left for another day. The most commonly used parts are:

* Not to abuse the Plaintiff by causing the three instances of abuse listed above.

* Not to contact the Plaintiff and stay away a certain distance from the Plaintiff. E-mail is contact. Sending flowers is contact. All are violations, and therefore criminal offenses.

* Leave and stay away from residence of Plaintiff. It does not matter that the Defendant lives there as well or that the Defendant has no other place to stay. It further does not matter if the Defendant owns the property or if the lease is in the Defendant’s name alone.

* Surrender all guns and licenses.

And of course, each order bears in large letters “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.”

In this lawyer’s opinion, judges must be constantly reminded of the requirements of the law, and that things like mere annoyance, excessive phone calls, emails, or unannounced visits are generally not adequate grounds for issuing a 209A order, as unpleasant as those actions may be. The “victim” may have a whole range of other criminal and civil recourse against the alleged offender, but 209A orders sought to patch up someone’s love life or to “calm things down” between ex lovers are nothing short of blatant abuse of the law.

The extent to which a 209A order can negatively impact and nearly ruin a person’s life, at least with the way the law is currently handled in Massachusetts, is enough to accept 209A as a true four letter word.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.