Judges ideology and domestic restraining orders

[bruceleejr]

The process IS fair. As fair as it can be.


Then you are free to advocate for laws that provide similar clinics for the defendants in these matters.

We also have state and county offices that provide assistance to victims of all manner of crimes, and none for suspects. Should we also develop and office of "Defendant Services"?


Actually, the training has nothing to do with "stereotypes" and everything to do with the law, case studies, and related legal and criminal justice information. I have been to them. There is nothing in these programs that relates to stereotypes other than the gender terminology that often refers to the victim as "her" or "she" as that is mostly what the criminal justice system have to deal with.


As restraining orders are CIVIL and not CRIMINAL matters, there is no obligation for a state to provide an attorney. if there was such a requirement, both parties would likely have to be provided counsel. How much are you willing to see your taxes go up to pay for this? Will we then provide attorneys for ALL civil case? An argument would certainly be made if we carved out an exception for civil harassment and DV restraining orders.

Saying something is fair does not make it so. And yes a DVRO civil. Contempt is also civil but they provide criminal protection because it is quasi-criminal. Before someone challenged that there was no right to an attorney.
Many civil cases are required by DP to have attorneys.
Did you know that? That there are civil cases that you have a right to an attorney? Do you think a DVRO should be one of them or do the accused in DVROs not be entitled to any DP?

 

[Zigner]

Folks - let's stop feeding him...he'll fade away.

 

[CdwJava]

Saying something is fair does not make it so.

No more so than claiming it is NOT fair. The party that loses inevitably claims the process was unfair. Hence most every hearing held in the US is "unfair" in the opinion of one party or the other.

Each case must be addressed individually as to whether or not due process was properly applied as the law allows. One cannot arbitrarily states that the entire procedure violates due process because, clearly, it does not.

And yes a DVRO civil. Contempt is also civil but they provide criminal protection because it is quasi-criminal. Before someone challenged that there was no right to an attorney.

In CA contempt of court (violation of a court order such as a civil harassment or DV restraining order) CAN be a criminal offense. If charged criminally, THEN the party would have the opportunity for appointed counsel.

Many civil cases are required by DP to have attorneys.

"Required" by whom? By what law? Certainly not in my state.

Do you think a DVRO should be one of them or do the accused in DVROs not be entitled to any DP?

Having an attorney does not mean one has received due process. Likewise, NOT having one does not mean there was NO due process. A person in a civil matter can choose to have an attorney or not. The majority of these cases, I believe, are done without attorneys on both sides. It is always foolish to go into court without an attorney, but I know many people that have done so. When they have lost it is usually because they came in with nothing more than a statement of, "Your honor, I do not want to bother her. Please do not issue the order," and they completely fail to address the allegations in the complaint. In such instances, they had their due process - they had a chance to make their defense - and they did not.

If you want to mandate that we supply attorneys to both sides in civil cases, go ahead and try ... but, be ready for taxes to skyrocket to pay for such a thing. My state is broke, so that just ain't gonna happen.

 

[bruceleejr]

No more so than claiming it is NOT fair. The party that loses inevitably claims the process was unfair. Hence most every hearing held in the US is "unfair" in the opinion of one party or the other.

Not opinion of a party based upon the court's objective standards. It is not the result but the process. Addington v. Texas; Santosky, etc

Each case must be addressed individually as to whether or not due process was properly applied as the law allows. One cannot arbitrarily states that the entire procedure violates due process because, clearly, it does not.

Clearly does not. Do you know what standard of proof DP requires? Do you know what standard applies in DVROs? yeah it "clearly" does violate DP.

In CA contempt of court (violation of a court order such as a civil harassment or DV restraining order) CAN be a criminal offense. If charged criminally, THEN the party would have the opportunity for appointed counsel.

No it is not a criminal trial it is a civil trial but after it was challenged then the Supreme Court required that since there are potential criminal consequences it cannot transform a civil case into a criminal case.

"Required" by whom? By what law? Certainly not in my state.

I thought you lived in CA? Do you live in Canada? Every state requires certain civil proceedings a right to an attorney.

Having an attorney does not mean one has received due process. Likewise, NOT having one does not mean there was NO due process. A person in a civil matter can choose to have an attorney or not. The majority of these cases, I believe, are done without attorneys on both sides. It is always foolish to go into court without an attorney, but I know many people that have done so. When they have lost it is usually because they came in with nothing more than a statement of, "Your honor, I do not want to bother her. Please do not issue the order," and they completely fail to address the allegations in the complaint. In such instances, they had their due process - they had a chance to make their defense - and they did not.

That might be the case but do you think it is fair for people with little sophistication to try to develop a legal defense? That might seem obvious to us but to many it is not obvious especially those with little education or modest means.
Do you think it is fair for them? Even if the person is superior intelligence the law applies equally to all whether they're racist, sexist, rude, or despicable as it would to the most benevolent of us all. The law does not treat similar people similarly but "individuals" situated similarly because we are all unique. And whatever the court might think about the person it must apply the law the same.

If you want to mandate that we supply attorneys to both sides in civil cases, go ahead and try ... but, be ready for taxes to skyrocket to pay for such a thing. My state is broke, so that just ain't gonna happen.

If you're in CA they have already done it starting either this year or 2011. I do advocate protecting people's rights. Cost do not determine DP.

 

[CdwJava]

Three things ...

(1) Whether a due process violation has occurred or not requires an evaluation of the specifics of an individual case.

(2) Having a "right" to an attorney does not compel the state to provide you with one. Perhaps you can advise what civil matters in California REQUIRE THE STATE to pay for the party's attorneys? (aside from juvenile dependency or delinquency matters)

(3) Since you feel so strongly about this, cease the blogging here and go out and engage an attorney to challenge the law ... well, uh ... that might be difficult if you have not been subject to such an order because you will likely have no standing upon which to challenge the law. But, you are free to advocate for a change in the law to add whatever requirements you wish. If that includes the payment for attorneys for both parties in all restraining order matters, then please include a method by which the state can pay for this as there is no legal requirement under federal law to provide legal counsel to civil claimants.

 

[bruceleejr]

Three things ...

(1) Whether a due process violation has occurred or not requires an evaluation of the specifics of an individual case.

(2) Having a "right" to an attorney does not compel the state to provide you with one. Perhaps you can advise what civil matters in California REQUIRE THE STATE to pay for the party's attorneys? (aside from juvenile dependency or delinquency matters)

(3) Since you feel so strongly about this, cease the blogging here and go out and engage an attorney to challenge the law ... well, uh ... that might be difficult if you have not been subject to such an order because you will likely have no standing upon which to challenge the law. But, you are free to advocate for a change in the law to add whatever requirements you wish. If that includes the payment for attorneys for both parties in all restraining order matters, then please include a method by which the state can pay for this as there is no legal requirement under federal law to provide legal counsel to civil claimants.

No unique violations require specific facts but general violations require general facts. If you have a right and not entitled to it then yet is violates their right.

Dependency, juvenile, commitment, guardianship, probate, termination, and many other proceedings.

You can have standing if an organization has members and the purpose of the group is directly harmed.

 

[tranquility]

The best answer was given by Carl:

(1) Whether a due process violation has occurred or not requires an evaluation of the specifics of an individual case.

However, the OP gave a reasonable but a legally erroneous response:

No unique violations require specific facts but general violations require general facts.

The error is that general violations still require specific facts.

What, specifically, is a violation of due process in the way such hearings are held?

 

[bruceleejr]

The best answer was given by Carl:
However, the OP gave a reasonable but a legally erroneous response:
The error is that general violations still require specific facts.

What, specifically, is a violation of due process in the way such hearings are held?

For one the person filing the application has infinite amount of time to prepare while, the accused has no notice for an ex-parte and 20 days for a permanent to prepare.

There are no cognizble burden of proof and the standard is preponderance of the evidence. The court literally can consider anything as evidence as literally anything is relevant.

One case, the ex-wife hacked into the husband email account and discovered who he was dating and all the women. She then contacted all the women. He was naturally pissed. He called but she wouldn't pick up the phone so he kept calling and leaving message telling her what a "bitch" she was. Not once did he threaten physical violence but simply demanded she talk to him.

She filed for a DVRO. He had to work and asked for it to be continued and couldn't afford an attorney. So he risked everything and left work early to attend the hearing.

He admitted to the incident and apologized that it was an isolated incdent. The judge said because he was a big guy that women would naturally be fearful for their lives if he kept calling.

The judge then issued a 5 yr DVRO. He was working security and lost his clearance. He appealed but the court of appeal said that under the statute phone calls are sufficient acts of violence even if they are not likely to create a reasonable apprehension of physical harm.

He also is now limited in visitation to his kids because another judge thinks he is violent because of the DVRO.

Had he had an attorney they could have raised numerous defenses and challenged the law. He basically lost everything but by the time I talked to him the 5 yrs was up but it is still on certain databases which prevents him from having working in his previous career.

He now works multiple retain jobs making 1/3 of what he sued to make. Tehre are many more people where that has happened.