Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.
In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. The ex-husband was prohibited from contacting the ex-wife in any manner, with an exception carved out for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband, and he was charged with criminally violating the order.
The charges were later dismissed, as the court found no evidence that the restraining order was violated. The ex-husband defended by noting that his mailing to the ex-wife (the mailing which was the basis of the purported violation) actually contained court filings, which were covered under the exception to the restraining order. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official and was told by the clerk that no such filings existed. The investigating officer also called and was told the same thing.
As it turned out, the ex-husband did file those papers with the court, and the filings were misplaced by court personnel and not docketed until after these events transpired. As a result, the criminal charges were filed when no violation could be proven.
After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife, claiming that she caused him to be arrested without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute, claiming that the lawsuit was based entirely on her protected petitioning activity.
The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the ex-wife’s activities in reporting the suspected criminal activity to police was protected.
“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”
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Once a protective order is issued, under what circumstances might that order be expunged by the court? This question was recently addressed by the Massachusetts Appeals Court.
The case of J.S.H. v. J.S. involved a protective order of harassment prevention which was issued under Massachusetts General Laws, chapter 258E. The plaintiff who sought the order was president of a religious non-profit organization which ran a support group for victims of domestic violence. The defendant was the husband of one of the women who attended the group. The plaintiff claimed in her supporting affidavit that the defendant wrote to board members of her organization, seeking to discredit her, and that he also sent her multiple harassing emails. No letters or emails were included with the plaintiff’s affidavit. The trial court granted an order of protection. Upon expiration of the order, the plaintiff sought to extend it, and she submitted copies of a letter and two emails which the defendant had sent to the organization’s board. The trial court declined to extend the order.
Nearly a year later, the defendant sought to expunge all evidence of the order of protection. The defendant claimed that the plaintiff had committed fraud on the court in obtaining the original protective order, because she indicated that he had sent her emails directly. The court declined to expunge the records, and on appeal, the Appeals Court agreed.
“Chapters 209A and 258E are particularly similar in their treatment of records following the issuance of an order, as well
as after an order is vacated. Under both statues, once a judge issues an order, the order and supporting papers are transmitted to the appropriate law enforcement agency,” the Court explained. Under both statues, once an order is vacated, the court sends written notification to the appropriate law enforcement agency directing it to destroy its records of the vacated order…However, there is no explicit statutory authority regarding the expungement of records of c. 209A or c. 258E orders from any Statewide registry maintained by the commissioner.”
In order for an expungement order to be appropriate, the Court noted, the petitioner must be able to prove that the original abuse protection order was obtained through fraud on the court. Citing a previous case precedent, the Court explained that “[a] ‘fraud on the court’ occurs 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.”
In the case at hand, the Court said, nothing suggested that the plaintiff fabricated her story or was motivated by a deceptive scheme. Something more serious and egregious is required to find fraud on the court than stated in this case, the Court noted, affirming the decision not to expunge the records.
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Emma has been going through a very difficult time. She is now considering getting a 209A protective order, known as a restraining order. Her long-time boyfriend and the father of her two children, Earl, recently lost his job. The stress of unemployment added to the couple’s already rocky relationship, and Earl has grown increasingly abusive and violent towards Emma. Earl has verbally abused Emma in front of the children in their shared home, and he also slapped her on two occasions. Then, last night, Earl beat Emma until she almost lost consciousness and threatened to kill her before fleeing the home. Emma knows she needs to contact a trusted attorney and inquire about her rights.
One particular recourse for Emma, and for anyone in her situation, is to seek a protective order under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.
The process by which a protective order is obtained is called a Complaint for Protection from Abuse. The Complaint is filed in the court, along with an affidavit, which is a sworn statement made under oath and under the pains and penalties of perjury. In the affidavit, the plaintiff must describe the particular circumstances surrounding the abuse, along with any evidence of prior abuse—for example, any facts regarding injuries and hospitalization, any facts regarding abuse of the minor children, and the like.
As with any other claim in court, the person who files the Complaint must adhere to certain requirements of due process: ensuring that the opposing party is entitled to notice and the opportunity to be heard. Notice of the Complaint is served on the defendant, and a hearing is typically held in court within ten court business days of filing the Complaint. There are, however, some situations under which the Court may issue a protective order ex parte, which means without the presence of the defendant, where there is a substantial likelihood of immediate danger of abuse. Moreover, a temporary emergency order may be granted even without the need to file a Complaint where the court is closed for business or the plaintiff’s physical condition, or some other severe hardship, makes him or her unable to appear in court. Initial orders that are granted may be extended, if the plaintiff continues to make a showing of abuse similar to the initial order.
It is important to note that a 209A protective order case is civil, and not criminal, in nature. The person seeking the order (the victim of abuse) files the case against the defendant (the abuser), and no prosecutor is involved. However, if the court grants a 209A protective order, and the defendant violates that order, then the defendant might be committing a crime and therefore might be arrested. Violation of the protective order might occur through continued abuse, threats, or in some cases even by contacting the victim despite the court’s orders not to do so.
What are the defendant’s rights in regards to defending a Complaint for a protective order? First, as explained above, the defendant in most circumstances has the right to notice and the right to appear at the hearing. Second, the defendant may challenge the plaintiff’s Complaint in various ways, including by showing that the plaintiff has fabricated his or her allegations. Third, the defendant is allowed to present his or her own credible evidence in order to present a more balanced view of the defendant’s conduct to the court. For example, the defendant may choose to present evidence of positive and loving family relationships, gainful employment and financial support by the defendant of any minor children, and general good standing in the community. It is important to note, however, that the defendant may exercise his or her right against self-incrimination and refuse to testify at the hearing, particularly if there is a pending or possible criminal prosecution against the defendant. Lastly, once a protective order is granted, the defendant may, under some circumstances, petition to terminate the order or even expunge it from the record.
Do you have questions about protective orders? Are you in need of obtaining one? Or, are you the defendant in a case in which a Complaint for protective orders has been filed against you? Our experienced attorneys can help. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete a contact form here. We will get back to you at our earliest opportunity.