Procedural deficiency may render a TRO voidable SUPERIOR COURT OF NEW JERSEY
Unpublished.)
APPELLATE DIVISION
A-1989-10T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
A.E.C.,
Defendant-Respondent.
_______________________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
J.C.,
Defendant-Respondent.
_______________________________________
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
August 30, 2012
ubmitted (A-1656-10) and Argued (A-1989-10) September 26, 2011 - Decided
Before Judges A. A. RodrÃguez and Ashrafi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos. FO-01-65-11B and FO-01-138-11C.
Jack J. Lipari, Assistant Prosecutor, argued the cause for appellant in A-1989-10 (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, on the briefs in A-1656-10 and A-1989-10).
Respondent A.E.C. has not filed a brief.
Robert D. Herman argued the cause for respondent J.C.
PER CURIAM
In these two appeals, which we address in one opinion, the issue presented is whether procedural deficiencies in a domestic violence temporary restraining order (TRO) require the dismissal of contempt charges for violating the TROs. The two appeals are from decisions of the same Family Part judge dismissing contempt charges in different cases. Both TROs were issued by the same municipal court judge.
We hold that because such deficiencies may render a TRO voidable rather than void, dismissal of the contempt charges is inappropriate. In short, until a TRO is voided it is a valid order that a party subject to its restraints must obey. The orders dismissing the contempt charges are reversed and the matters remanded to the Family Part for appropriate disposition.
STATE v. A.E.C.
A.E.C. was the subject of a TRO issued on July 19, 2010, by the Northfield municipal court judge. A.E.C.'s wife, T.C., alleged that a verbal dispute with him escalated into a physical assault, during which he grabbed her right arm.
The TRO was served on A.E.C. He acknowledged service thereof and went to the marital home to remove personal belongings. While at the home, he allegedly wrote the following note and left it at the house:
I pray you tell the kids that you lyed [sic] about all of this and the police! You have no idea how big a mistake you made! 10 years and this is how I'm treated? Really.
The next day, T.C. found the note. She reported the incident and the police filed a criminal complaint against A.E.C. for harassment and for violating the TRO.
At the hearing in the Family Part on the harassment and contempt charges, T.C. testified about what occurred when she applied for the TRO. At around 7:30 p.m., on July 19, 2010, she spoke with a Northfield police officer. She then filled out a sworn statement. After the order was granted, she went to her mother's house until the Northfield Police Department notified her that A.E.C. had removed his personal items from the house. She returned to the house the next day and saw a note. According to T.C., she felt threatened by the note.
The Family Part judge inquired as to whether T.C.'s statement was made before or after she had spoken with the municipal court judge. T.C. replied that she did not recall ever speaking to a judge. The Family Part judge asked the assistant prosecutor whether, if T.C. had never spoken with the judge, there were any grounds for the contempt charge because the TRO would be procedurally defective.
The Family Part judge recited the provisions of N.J.S.A. 2C:25-28(h), which explains generally how a victim of domestic violence can get emergent relief. Subsection (h) provides that:
A judge may issue a [TRO] upon sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules, or by a person who represents a person who is physically or mentally incapable of filing personally. A [TRO] may be issued if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown.
[N.J.S.A. 2C:25-28(h).]
The Family Part judge determined that the procedure set out in this subsection was not followed and inquired why the contempt charge for violating the TRO should not be dismissed.
The assistant prosecutor argued that the sworn statement itself was sufficient. The Family Part judge required evidence that the municipal court judge actually had some direct communication with T.C., and adjourned the hearing for two weeks so that proof of such could be adduced.
When the hearing resumed, the assistant prosecutor argued that the TRO was a judicial order, and thus, A.E.C. was obliged to follow it despite procedural deficiencies. The assistant prosecutor presented the testimony of Northfield Police Patrolman William Walter Cornell, Jr., who testified that he had T.C. complete a written statement. He read this statement over the telephone to the municipal court judge. The municipal court judge granted the TRO application and issued an order. However, the municipal court judge did not speak to T.C. directly. Cornell testified that another officer told A.E.C. that the TRO was in effect until he went to court and he was to have no contact with T.C.
A.E.C. moved for dismissal of the charges, based on the municipal court judge's failure to speak with T.C. prior to issuing the TRO. The Family Part judge, separating the contempt and harassment charges, granted A.E.C.'s motion to dismiss the contempt charge. In making that ruling, the Family Part judge distinguished State v. Masculin, 355 N.J. Super. 250 (Ch. Div. 2002), because the procedural deficiencies here were greater in that the municipal court judge did not even speak with T.C. Likewise distinguishable were State v. Gandhi, 201 N.J. 161 (2010), which he characterized as "the Supreme Court declin[ing] to reach the issue of whether or not a jurisdictional defect would void a no contact order," and State v. Roberts, 212 N.J. Super. 476 (App. Div. 1986), allowing a TRO issued by a municipal court judge who lacked proper jurisdiction to be the basis for a contempt charge.
The Family Part judge concluded that the TRO issued by the municipal court judge was void at its inception, and thus, A.E.C. could not be convicted of violating it. The judge denied the State's motion to stay the trial of the harassment charge pending an appeal of the contempt charge dismissal.
STATE v. J.C.
Early in the morning on August 15, 2010, the Northfield municipal court judge, temporarily sitting in Hammonton Municipal Court, issued a TRO preventing J.C. from having any contact with A.W., who had sought a domestic violence TRO against him. A.W. had arrived at the Hammonton Police Department in the early hours of August 15, 2010, her mouth bleeding, lip bruised and eyes bloodshot. The next day, J.C. was charged with contempt of the TRO, in violation of N.J.S.A. 2C:29-9b, after A.W. alleged he harassed her by calling her house twelve times and leaving six voice messages on her cell phone. As the contempt trial was to be heard by the same Family Part judge who decided State v. A.E.C. — and the TRO happened to have been issued by the same municipal court judge as in that case — the State moved in limine to exclude from evidence the process by which the TRO was granted. At the November 29, 2010 motion hearing, the State called police officer Samuel Angello, III, to testify about how the TRO was granted. At approximately 5:00 a.m., Angello contacted the municipal court judge, and explained the circumstances to him that A.W. had described. The municipal court judge did not speak to A.W. On cross-examination, Angello reaffirmed that A.W.'s statements that Angello repeated to the municipal court judge were not sworn and that she did not speak directly to the municipal court judge.
The Family Part judge issued an order denying the State's motion, ruling that, in accord with his decision in State v. A.E.C., the procedural deficiencies underlying the issuance of the TRO here similarly rendered it void ab initio. He dismissed the contempt charge.
We granted leave to appeal and a stay from the interlocutory order. No. M-001997-10 (App. Div. Dec. 23, 2010).
As to State v. A.E.C., the State contends:
THE TRIAL COURT ERRED IN DISMISSING THE CHARGE ALLEGING VIOLATION OF THE TRO, OR DOMESTIC VIOLENCE CONTEMPT.
As to State v. J.C., the State similarly contends:
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE PERTAINING TO ALLEGED DEFICIENT PROCEDURES LEADING TO THE ISSUANCE OF THE TRO, AND IN DECLINING TO DECLARE THAT THE ORDER WAS ENFORCEABLE AND REQUIRED TO BE OBEYED UNTIL SUCH TIME AS IT MIGHT HAVE BEEN VACATED.
"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Thus, we review a trial court judge's interpretation of the law de novo.
The State argues that the Family Part judge erred in dismissing the contempt charges based on procedural problems in the issuance of the TROs because the Supreme Court has held that, no matter the flaw, a judicial order must be obeyed until vacated. To do otherwise would destroy the deterrent effect of a TRO, i.e., any defendant served with a TRO could violate it hoping to be able to have a subsequent contempt charge dismissed because of a procedural defect in the issuance of the TRO. We agree.
The Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to 34, was intended to address deficiencies in the process by which domestic violence incidents, particularly those among spouses or cohabitants, were handled by the police and the courts. See N.J.S.A. 2C:25-18. N.J.S.A. 2C:25-28i states that "[a]n order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order." However, a TRO under the PDVA is "immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered" so long as that judge either issued the TRO or can obtain the reasons underlying it. Ibid.
Under N.J.S.A. 2C:29-9(b), it is a fourth degree crime if a person subject to a domestic violence TRO "purposely or knowingly violates any provision" therein "when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense." A person is otherwise guilty of a disorderly persons offense for knowingly violating an order issued under the PDVA. Ibid.
Where a municipal court judge fails to follow the prescribed procedures for issuing a TRO, the Supreme Court has recognized that those flaws may form a basis for challenging the validity of the TRO. See State v. Cassidy, 179 N.J. 150, 159 n.3 (2004). In Cassidy, the Court was faced with a TRO and search warrant for weapons, approved telephonically by a municipal court judge who failed to administer an oath to the applicant, to make a contemporaneous record of the testimony or make any written notes. Id. at 159 n.2. Because of the those failures, and the lack of any exigency excusing them, the Court dismissed the defendant's convictions on weapons charges as the fruit of an unlawful search.Id. at 164. However, the Court noted:
It goes without saying that although failure to meet the technical and substantive requirements for a restraining order results in an invalid order, the order nonetheless has legal effect until vacated.
Thus, even if an ex parte domestic violence TRO is issued pursuant to a flawed process, the person intended to be protected must receive the benefits of the order. A defendant must comply with the TRO's restraints . . . contained therein, if only to challenge the validity of its respective parts in an appropriate forum later.In respect of the restraints, a defendant may obtain relief from the TRO under an expedited process set forth in the Act. See N.J.S.A. 2C:25-28i.
[Cassidy, supra, 179 N.J. at 159 n.3 (internal citations omitted).]
The Court restated this principle in State v. Gandhi, 201 N.J. 161(2010), which dealt with a conviction for violating a no-contact order issued by a municipal court judge without jurisdiction. "Restraining orders are entered for purposes of shielding a victim who needs protection and who is compelled to seek judicial assistance to obtain that security; thus, we have insisted on full compliance with restraining orders no matter the flaws a defendant may discern in their form or entry." Id. at 189. For this reason, the Court saw no need to address the jurisdictional problem. Ibid. "Even when a court lacks jurisdiction over a matter at the time an order is issued, a defendant is bound to obey the court's order until the order is vacated through a judicial proceeding." Ibid. See also State v. Roberts, 212 N.J. Super. 476, 485 (App. Div. 1986) (validating a contempt conviction of a court order despite its having been issued without jurisdiction); State v. Masculin, 355 N.J. Super. 250, 259 (Ch. Div. 2002) ("So long as the [PDVA] TRO was in existence, and defendant had knowledge of it at the time he allegedly violated its provisions, he can be prosecuted for contempt[.]").
Here, there is no dispute that the municipal court judge in both cases failed to follow proper procedures in issuing the TROs. Nonetheless, applying the above principles it is clear that the Family Part judge erred in dismissing the contempt charges.
Evidence that both defendants received and acknowledged the TROs was uncontroverted. The defendants allegedly violated the terms of the respective TROs by contacting the complainants in a prohibited form: A.E.C. left a note; J.C. made repeated attempts at electronic communication, according to the complaining victims. These facts present a prima facie case for contempt of a TRO. The case law surrounding procedural deficiencies in TROs is unmistakably clear that no matter the errors in its making, the order is enforceable until declared otherwise by a court.
However, the Family Part judge's opinion in State v. A.E.C. virtually ignores the language in Cassidy and Gandhi (decided only seven months prior to State v. A.E.C.) stating that court orders, no matter how flawed, simply must be adhered to until overturned. The defendants' violative conduct occurred prior to any hearing; indeed in both instances the defendants contacted the victims within twenty-four hours of the TRO being issued to them. The message the Supreme Court has delivered in regards procedural deficiencies in TROs is akin to a labor law maxim: "Obey now, grieve later." The defendants failed to obey, and thus, the Family Part judge erred in dismissing the contempt charges.
The Family Part judge may be correct that the municipal court judge failed to follow R. 5:7A. The municipal court judge did not speak with the victims before issuing the TROs, nor did he make any recordings or writings memorializing the testimony. Out of a desire to address what he perceived as a serious problem, the Family Part judge sought to make a statement about the importance of procedure in maintaining the rights of the parties on both sides of a TRO.
Nonetheless, the Legislature and Supreme Court have determined that not all procedural violations are equal. The legislative findings indicate that the imperative in the PDVA is to protect the victim. It is implicit that, when necessary, judges granting TROs should err on the side of the victim. The Supreme Court has affirmed strict adherence to domestic violence TROs and the procedures in place to correct deficiencies in their making. Such problems are able to be dealt with in either an expedited hearing in the Family Part, or at the hearing for a FRO.
The orders on appeal are reversed and the matters are remanded to the Family Part for disposition. We do not retain jurisdiction.
b.