RESTRAINING ORDERS UNCONSTITUTIONAL IN NEW JERSEY?
David R. Usher
July 27, 2008
For many years, domestic violence laws have been carelessly abused at both the federal and state levels. Gary Hession, J.D., just nailed the rabid possum to a tree in his New American cover story “Restraining Orders Out of Control.”
Or ask Kathleen Parker, who points out in her new book Save The Males, “In our rush to save those women who desperately need saving, we’ve criminalized ordinary men who may never have raised a hand against their spouse … this often takes place with little due process, without proof of guilt … or any chance to defend himself.”
The principles of national domestic violence policy were established in the Violence Against Women Act (VAWA), a law crafted by the ABA and steered by the ABA Commission On Domestic Violence (CODV). Federal provisions were subsequently implemented at the state level via pass-through funding requirements and by ensuring that federal funding is channeled only by radical feminist non-governmental organizations.
The thinking of the CODV was recently found “unethical and unworthy for use in policy” in RADAR’s recent report “Myths of the ABA Commission On Domestic Violence.” The ABA Standards of Practice for family practitioners is unconstitutional on its face: The petitioner is repeatedly referred to as “she,” despite the fact that men initiate less the half of all serious spousal altercations.
In June, New Jersey trial court judge Francis B. Schultz did his judicial homework and found portions of the New Jersey domestic violence laws are unconstitutional. Attorney David Heleniak, who is also a board member of the True Equality Network, represented the husband in this ground-breaking decision.
In Crespo v. Crespo Judge Schultz applied the Matthews-Eldridge balancing test to properly assess the standard of review required for these cases (trial court judges rarely do this on the notion that only high courts need weigh fundamental elements of due process). He found that since restraining orders impact constitutionally protected parental rights, the highest evidentiary standard of “clear and convincing evidence” applies when determining if restraining orders are issued.
In his decision, Schultz also rejected a common practice of state legislatures who often improperly dictate evidentiary standards and due-process provisions to the courts. It is long held that the standard of review and procedural matters are exclusively the venue of the courts.
The difference between applying the “preponderance of evidence” standard and the strict-scrutiny “clear and convincing” standard in domestic violence cases is important. The “preponderance of evidence” standard, and the lower standard of review presently applied, encourages and rewards false assertions by trial lawyers or clients whose cases have little or no merit whatsoever. Under this standard, evidence is unimportant or even unnecessary. The “clear and convincing” evidentiary standard brings evidence to the forefront of the decision. If evidence of past or future serious violence exists, a restraining order will be issued.
The Supremacists-at-Bar were horrified about the decision. It means the collapse of their arrangement running trial courts as renegade Star Chambers.
The position of big-government advocates on domestic violence is absurd. They pretend having to present evidence that violence will (or has) occurred will make it impossible to get restraining orders. Of course, having to present a little hard evidence never stopped a court from making a prompt ruling. Having to present evidence means that trial lawyers could no longer abuse restraining orders as roadside bombs to commandeer families, children, and assets in divorce, immigration, and fantasy litigation cases (such as the woman who actually got a restraining order against David Letterman for being on television).
Readers must understand that radicals steering big government are not individuals who truly care about women or equality. They are individuals lobbying to expand the business base for trial lawyers, psychologists, foster care, adoption services, and a Colosseum full of other businesses that profit from deconstructing marriage.
This political-industrial complex reshaped government so that the only options available to women are the ones that put them at the mercy of big government that often later takes their children. Terri Lynn Tersak, True Equality Network’s CEO, sums it up precisely: ”these individuals are to feminism, what false prophets are to religion.”
Upholding Crespo predicts decreases in domestic violence and better service for women who have been abused. Abuse of restraining orders injects tremendous conflict into spousal relationships. For this reason, the vast majority of domestic violence occurs after issuance of a restraining order. Women’s abuse centers and courts are clogged with thousands of cases filed for strategic purposes. Truly abused women fall through the cracks.
If divorce is necessary, the dissolution and custody of children should be determined on the merits. Those who are irresponsible to the marriage or abuse mood altering chemicals should not be the victor – which is often the case when domestic violence laws are misused.
According to an Associated Press article, the New Jersey Attorney General’s office is presently seeking leave to appeal this decision, which is likely to ultimately wind up in the New Jersey Supreme Court.
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We shall soon see if the New Jersey Supreme Court is working for the people, or for trade lobbies. Unquestionably, the court must uphold Crespo if its members place the Constitution and Separation of Powers doctrines before the vicarious demands of profiteering trial lawyers and other anti-marriage advocates.
� 2008 David Usher - All Rights Reserve