Is New Jersey Law As To Restraining Order Procedures Constitutional?
During my career as a restraining order trial attorney, I have often considered the process and whether it is fair to both the victim as well as the defendant. For obvious reasons, as a lawyer I totally appreciate that these matters must be handled in the quickest and most efficient manner possible. Otherwise, victims may face further domestic violence that could have been prevented. On the other hand, the defendant has rights that need to be protected in case the victim’s allegations turn out to be false. Throughout my career, New Jersey’s Prevention of Domestic Violence Act has had to withstand numerous constitutional challenges in the Supreme Court of New Jersey. In the February 18, 2010 case of Crespo v. Crespo, the Supreme Court of New Jersey addressed the constitutionality of the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17 to -35.
Vivian and Anibal Crespo were married in 1984 and divorced in 2001. Even though the couple divorced, they continued to live in the same two-family house. Anibal lived on the second floor with his parents, and Vivian lived on the first floor with the Crespo children. Vivian filed a domestic violence complaint in 2004 after a dispute over child support. The complaint alleged present and past verbal and physical abuse. A judge immediately entered an ex parte temporary restraining order. This temporary restraining order restricted Anibal from communicating with or contacting Vivian. Anibal was served with the complaint and temporary restraining order and, after a two-day trial, a final restraining order was entered in Vivian’s favor. Anibal filed an appeal and the New Jersey Appellate Division affirmed that decision on June 6, 2006.
Anibal then filed a motion before a different judge on June 15, 2007. He argued that the Prevention of Domestic Violence Act was unconstitutional. He contended that the Act basically converted what should be a criminal proceeding into a civil proceeding, and as a result deprived the parties of their right to a jury trial. Furthermore, he argued that the Prevention of Domestic Violence Act denied him due process by failing to provide sufficient notice before the final hearing, by applying a preponderance of the evidence standard instead of a clear and convincing standard, and by refusing to allow discovery or a right to counsel. In legal terms, a preponderance of evidence means that a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version. This standard is the easiest to meet and applies to all civil cases unless otherwise provided by law.
The concept of preponderance of the evidence can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly to one side or the other, the heavier side will prevail. If the scale does not tip toward the side of the party bearing the burden of proof, that party cannot prevail.
The trial court found in favor of Anibal, and determined that the Act’s “practice and procedure” components violated the separation of powers doctrine and that the Act’s preponderance of the evidence standard of proof violated due process of law principles.
Vivian appealed the decision and the New Jersey Appellate Division reversed, finding that the Prevention of Domestic Violence Act was indeed constitutional. The appellate panel held that the Supreme Court, instead of viewing the Act’s procedural components as seizing its authority over practices and procedures utilized in the courts, has embraced and enhanced the Act’s procedural components by adopting Rule 5:7A and by participating with the Attorney General in the creation of the Domestic Violence Manual that incorporates the procedures contained in the Act. As a result, the New Jersey Appellate Division found Anibal’s argument that the various procedural aspects of the Act violate the New Jersey Constitution to be without merit.
Moreover, the New Jersey Appellate Division held that the previously determined case of Roe v. Roe bound the trial judge and required that he reject Anibal’s arguments in respect of the constitutional sufficiency of the preponderance of the evidence standard in an action brought under the Act and, therefore, the judge was incorrect in refusing to follow Roe. Following Roe, and because the interests at stake, and the fact finding required of Family Part judges in domestic violence matters is not similar at all to those cases in which courts have compelled application of the clear and convincing standard, the appellate panel concluded that a standard of proof more demanding than the preponderance of the evidence standard would undermine the social purposes of the Prevention of Domestic Violence Act.
Anibal went to the New Jersey Supreme Court for redress and the Supreme Court granted his motion for leave to appeal. The Supreme Court affirmed the decision of the New Jersey Appellate Division and held that: Anibal’s argument that the various procedural aspects of the Prevention of Domestic Violence Act violate Article VI, Section 2, Paragraph 3 of the New Jersey Constitution is without merit; that Roe v. Roe, required the rejection of Anibal’s arguments in respect of the constitutional sufficiency of the preponderance of the evidence standard brought pursuant to the Act; that the preponderance of the evidence standard, as applied in domestic violence matters, conforms with due process of law requirements; and the right to trial by jury does not attach when the alleged victim of domestic violence mainly seeks a restraining order, even if other relief, such as damages, are sought.
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” While Article I, Paragraph I of the New Jersey Constitution does not explicitly refer to the right of due process of law, the Court has interpreted this part of the state constitution as “protect[ing] against injustice and, to the extent, protecting[ing] ‘values like those encompassed by the principle of due process.’” Anibal argued that the Act’s preponderance standard, in light of the consequences of a finding of domestic violence, violates these due process principles by placing an unduly light burden of persuasion of the alleged victims of domestic violence.
In considering whether the adoption of particular burden of persuasion adheres to state constitutional principles, the New Jersey Supreme Court follows the balancing test enumerated in Mathews v. Eldridge, recognizing that due process is “flexible and calls for such procedural protections as the particular situation demands.” The Matthews test has three factors. First the private interest that will be affected by the official action. The second, the risk of an deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. And finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Balancing the test and considering the public policy, the Court recognizes that the strong societal interest in protecting persons victimized by domestic violence greatly favors utilization of the preponderance of the evidence standard. The Legislature understood that a clear and convincing standard would saddle victims of domestic violence with a burden that could foreclose relief in many deserving cases.
Domestic violence is a matter that my office takes seriously and we are here for you.