Posted on Sep 15, 2009 12:00am PDT
Orders of protection (temporary or permanent) are causing considerable problems here in New Mexico. Litigants, court personnel, law enforcement personnel, and the parties are having considerable difficulties in navigating the cases.
The petitions for these orders are filed for different reasons. They are filed to harass or annoy people (ironically by people who are accusing others of harassing or annoying them), to try to gain an advantage in child custody cases, and, of course to protect against abuse.
When the orders of protection are abused, the last thing law enforcement personnel and even some hearing officers know how to do is how to read and construe them. For example, one clause in a typical (boiler plate) order of protection states that the Respondent shall not come within 100 yards of the Petitioner. However, another clause found in just about each order that's issued states that the Petitioner cannot take any actions to cause a violation of the order of protection.
For instance, I represented a client who frequented a particular bar that played mariachi music each Sunday evening. His ex-wife knew this and wanted to watch the same performance each Sunday without having to encounter him. The solution she had was to file a Petition for an Order of Protection. There was some indication that she received advice from counsel or staff at a local charity for new immigrants that lead to her decision. She believed that she could keep him 100 yards away from her by simply filing the petition and arguing that there was abuse --she was clearly abusing process by seeking an order of protection.
At the hearing on the Petition for an Order of Protection we were successful by pointing out the clause that forced the Petitioner not to cause a violation of the order of protection. We informed the judge that my client arrived earlier than the Petitioner and that she was causing a violation. The week prior to the hearing, I simply instructed my client to arrive at his favorite bar prior to the Petitioner and to be sure to have witnesses that could testify to the same. The way I saw it, she'd be required to leave if she couldn't be 100+ yards from him in the bar if he was there first. Some of my contemporaries have not fared so well using the same reasoning.
The Orders of Protection have caused costly civil rights ligitation, countless missed hours of work, serious headaches for law enforcement and court personnel and thousands of dollars in attorneys fees. Another problem is that the orders are civil in nature even though they come with clear-cut criminal sanctions. Because they are civil in nature, the Respondent is not entitled to a lawyer if they can't afford one. Also, they are prosecuted either by privately retained lawyers or pro se litigants that are not limited by special prosecutorial ethical considerations that criminal prosecutions require (under the rules of professional responsibility, prosecutors are required to refuse to prosecute cases that are being brought for inappropriate reasons).
In addition, the hearings are held by "hearing officers" who are not judges --they are not subjected to the same evaluation or political process that judges are in the selection process, and they are not referenced in most of the rules of civil procedure --most notably the rules do not allow a litigant to excuse a hearing officer whereas litigants are allowed to excuse one judge in a civil case.
The existing process concerning protection orders deserves a second look by the rules committee and those that work in the area. They haven't gotten much attention in continuing legal education courses either. I haven't seen a course on the subject offered in the last five years!