The Court Of Public Opinion

209A is in fact a four letter word in Massachusetts, and this is so because of the nasty implications a 209A order has on the person against whom one is issued. For those unaware, 209A is the common name for the Massachusetts species of domestic restraining orders, and it refers to the number of the chapter of the Massachusetts General Laws entitled Abuse Prevention that governs issuance and outlines the proceedings and procedures for these orders. The purpose of the law was to prevent the rising incidents of domestic violence and to give victims of domestic violence a much needed tool to protect themselves with the help of the court.

Sounds great, in theory. In reality, the much needed tool became an all too easy to use weapon. Judges routinely ignore the narrow definition of abuse, as it is defined in the law:

(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.

Moreover, the law provides that these orders can only be granted where there is a blood, marriage, dating, or co-habitation relationship. Ex spouses, ex fiancees, ex boyfriends/girlfriends are included as well. To set the nomenclature straight, and for the sake of this discussion: Plaintiff is the person asking the court for the order, Defendant is the person against whom the order is issued.

All too often, a vindictive ex spouse fabricates or greatly exaggerates a seemingly benign incident in an attempt to get a 209A order issued in their favor. A state employed Victim Witness Advocate is then appointed to essentially coach the victim on what to say in front of the judge. Fear appears to be the magic word, and even if imminent serious physical harm (note that those are actually four separate elements) is not obvious or not present at all, the orders are liberally granted nonetheless.

The order itself has SIXTEEN sub-parts, some are mandates and others are various prohibitions, and the judge can check the box next to the provisions that apply to a particular order. Discussing all sixteen parts is best left for another day. The most commonly used parts are:

• Not to abuse the Plaintiff by causing the three instances of abuse listed above.
• Not to contact the Plaintiff and stay away a certain distance from the Plaintiff. E-mail is contact. Sending flowers is contact. All are violations, and therefore criminal offenses.
• Leave and stay away from residence of Plaintiff. It does not matter that the Defendant lives there as well or that the Defendant has no other place to stay. It further does not matter if the Defendant owns the property or if the lease is in the Defendant’s name alone.
• Surrender all guns and licenses.

And of course, each order bears in large letters VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.

In this lawyer’s opinion, judges must be constantly reminded of the requirements of the law, and that things like mere annoyance, excessive phone calls, emails, or unannounced visits are generally not adequate grounds for issuing a 209A order, as unpleasant as those actions may be. The victim may have a whole range of other criminal and civil recourse against the alleged offender, but 209A orders sought to patch up someone’s love life or to calm things down between ex lovers are nothing short of blatant abuse of the law.

The extent to which a 209A order can negatively impact and nearly ruin a person’s life, at least with the way the law is currently handled in Massachusetts, is enough to accept 209A as a true four letter word.

Boston Attorney Dmitry Lev handles Criminal Defense and 209A Restraining Order Defense cases in Massachusetts. In addition, Attorney Lev assists individuals who had Restraining Orders issued against them and wish to have these orders removed, as well as those accused of violating these orders.

Attorney Lev maintains a blog at www.levlaw.net/blog and a website at www.bostoncriminallaw.net

Law Offices of D. Lev, PC
77 Franklin St., 3rd Floor
Boston, MA 02110
(617) 556-9990

Can 209A Restraining Orders be issued against out-of-state Defendants?

There are two types of jurisdictional requirements that must be met in order for a court of law to have the authority to rule on matters: subject matter and personal jurisdiction. Subject matter simply means that a court has the authority to hear a particular kind of case. Personal, or in personam jurisdiction, means that a court has the authority to assert power over a specific person, usually the Defendant.

In Massachusetts, Chapter 209A Section 1 grants subject matter jurisdiction to hear 209A Restraining Order cases to Superior, District, Probate and Family, and Boston Municipal Court departments. In cases where there is only a dating relationship between the parties, Superior Court does not have jurisdiction. Thus, subject matter jurisdiction is usually not an issue in 209A Cases.

On the question of personal jurisdiction, the Court spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in April 2006, clarifying this issue. In this case, the Plaintiff was a native of Massachusetts while the Defendant was from New Hampshire. The couple had a 2 year dating relationship, during which the Plaintiff moved to New Hampshire to live with the Defendant. Shortly thereafter, the Defendant relocated to the State of Washington on a Navy assignment, and the Plaintiff followed. A child was born, and after a brief return to New Hampshire, the Plaintiff remained in Washington. After the relationship ended, the Plaintiff relocated to Massachusetts permanently.

Immediately upon the Plaintiff’s return to Massachusetts, she sought a 209A Restraining Order claiming various threats and fears based in part on the Defendants Navy connections. All of these alleged threats took place while both parties were in Washington.

Generally for personal jurisdiction to exist, the Defendant must have been served with the court papers, and have had sufficient contacts with the state so that the assertion of jurisdiction by the Court meets basic due process and fairness standards. There is no set minimum number or types of contacts that are required; the Court will analyze these issues on case by case basis.

The most obvious contact with a state is residence. When the Defendant resides in the state where the court sits, personal jurisdiction is likely established. The other strong but less obvious basis for jurisdiction is waiver. This is when the Defendant does not reside in the state, but comes to defend and litigate the case and does so to conclusion without raising lack of jurisdiction as an objection. The Defendant is deemed to have waived his lack of jurisdiction defense because by litigating the case he has voluntarily submitted to the jurisdiction of the Court. In the words of the Court, common factor in waiver of personal jurisdiction are dilatoriness and participation in, or encouragement of, judicial proceedings.

The Defendant can also make a special appearance solely for the purpose of disputing personal jurisdiction without waiving the defense.

When can a court assert jurisdiction over a nonresident Defendant?

There are two questions to be asked: is the assertion of jurisdiction authorized by statute, and, if so, is the exercise of jurisdiction consistent with due process requirements under the US Constitution? In Massachusetts, the statute that grants jurisdiction over nonresident Defendants is Mass. Gen. Laws Chapter 223A, Section 3. This is the so called long arm statute. It sets out eight factors for consideration in determining whether jurisdiction may be asserted:

• Transacting business in the state
• Contracting to supply services or things in the state
• Causing injury by act or omission in the state
• Causing injury outside the state while maintaining business or other persistent contacts within the state
• Interest in real property in the state
• Providing insurance within the state
• Maintaining domicile within the state while being a party to a relationship out of which there arises a divorce, custody, child support, alimony, or property settlement action. Note that a domicile is not the same as a residence. A person may have more than one residence, but only one domicile, which entails the intent to remain indefinitely.
• Having been subject in the past to jurisdiction in the state that resulted in alimony, custody, child support, or property settlement orders, if the current action involves modification of such orders.

It is the provision regarding causing injury in the state that is most often invoked in 209A Restraining Order cases. Further, it is the Plaintiff who bears the burden of proof on whether jurisdiction is validly asserted.

In the Lamarche v. Lussier case, the Court went through the eight factors listed above and held that none of the factors applied to the Defendant, and therefore personal jurisdiction should not have been asserted. In short, the Defendant did not reside in Massachusetts, nor conducted any business, nor delivered goods or services, nor owned any real property in the state. The alleged injuries to the Plaintiff occurred while the couple was living in another state.

While the Defendant’s actions may have caused Plaintiff’s injury in Massachusetts, the Defendant did not have the persistent contacts with Massachusetts as required by the statute.

Because the requirements of the statute were not met, the Court did not need to further analyze the second question of due process and whether Constitutional requirements were met so as not to offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (the landmark Supreme Court case setting forth the requirements for personal jurisdiction).

With that in mind, the 209A Restraining Orders issued against the Defendant were dismissed.

As to the question of whether 209A Restraining Orders can be issued against out of state Defendants, the answer comes down to an unsatisfactory and terse summary of everything discussed above, and a classic lawyerly answer: IT DEPENDS.

———————–
Boston Attorney Dmitry Lev handles Criminal Defense and 209A Restraining Order Defense cases in Massachusetts. In addition, Attorney Lev assists individuals who had Restraining Orders issued against them and wish to have these orders removed, as well as those accused of violating these orders.

Attorney Lev maintains a blog at http://www.levlaw.net/blog and a website at http://www.bostoncriminallaw.net

Law Offices of D. Lev, PC
77 Franklin St., 3rd Floor
Boston, MA 02110
(617) 556-9990

Can 209A Restraining Orders be issued against out-of-state Defendants?

There are two types of jurisdictional requirements that must be met in order for a court of law to have the authority to rule on matters: subject matter and personal jurisdiction. Subject matter simply means that a court has the authority to hear a particular kind of case. Personal, or in personam jurisdiction, means that a court has the authority to assert power over a specific person, usually the Defendant.

In Massachusetts, Chapter 209A Section 1 grants subject matter jurisdiction to hear 209A Restraining Order cases to Superior, District, Probate and Family, and Boston Municipal Court departments. In cases where there is only a dating relationship between the parties, Superior Court does not have jurisdiction. Thus, subject matter jurisdiction is usually not an issue in 209A Cases.

On the question of personal jurisdiction, the Court spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in April 2006, clarifying this issue. In this case, the Plaintiff was a native of Massachusetts while the Defendant was from New Hampshire. The couple had a 2 year dating relationship, during which the Plaintiff moved to New Hampshire to live with the Defendant. Shortly thereafter, the Defendant relocated to the State of Washington on a Navy assignment, and the Plaintiff followed. A child was born, and after a brief return to New Hampshire, the Plaintiff remained in Washington. After the relationship ended, the Plaintiff relocated to Massachusetts permanently.

Immediately upon the Plaintiff’s return to Massachusetts, she sought a 209A Restraining Order claiming various threats and fears based in part on the Defendants Navy connections. All of these alleged threats took place while both parties were in Washington.

Generally for personal jurisdiction to exist, the Defendant must have been served with the court papers, and have had sufficient contacts with the state so that the assertion of jurisdiction by the Court meets basic due process and fairness standards. There is no set minimum number or types of contacts that are required; the Court will analyze these issues on case by case basis.

The most obvious contact with a state is residence. When the Defendant resides in the state where the court sits, personal jurisdiction is likely established. The other strong but less obvious basis for jurisdiction is waiver. This is when the Defendant does not reside in the state, but comes to defend and litigate the case and does so to conclusion without raising lack of jurisdiction as an objection. The Defendant is deemed to have waived his lack of jurisdiction defense because by litigating the case he has voluntarily submitted to the jurisdiction of the Court. In the words of the Court, common factor in waiver of personal jurisdiction are dilatoriness and participation in, or encouragement of, judicial proceedings.

The Defendant can also make a special appearance solely for the purpose of disputing personal jurisdiction without waiving the defense.

When can a court assert jurisdiction over a nonresident Defendant?

There are two questions to be asked: is the assertion of jurisdiction authorized by statute, and, if so, is the exercise of jurisdiction consistent with due process requirements under the US Constitution? In Massachusetts, the statute that grants jurisdiction over nonresident Defendants is Mass. Gen. Laws Chapter 223A, Section 3. This is the so called long arm statute. It sets out eight factors for consideration in determining whether jurisdiction may be asserted:

• Transacting business in the state
• Contracting to supply services or things in the state
• Causing injury by act or omission in the state
• Causing injury outside the state while maintaining business or other persistent contacts within the state
• Interest in real property in the state
• Providing insurance within the state
• Maintaining domicile within the state while being a party to a relationship out of which there arises a divorce, custody, child support, alimony, or property settlement action. Note that a domicile is not the same as a residence. A person may have more than one residence, but only one domicile, which entails the intent to remain indefinitely.
• Having been subject in the past to jurisdiction in the state that resulted in alimony, custody, child support, or property settlement orders, if the current action involves modification of such orders.

It is the provision regarding causing injury in the state that is most often invoked in 209A Restraining Order cases. Further, it is the Plaintiff who bears the burden of proof on whether jurisdiction is validly asserted.

In the Lamarche v. Lussier case, the Court went through the eight factors listed above and held that none of the factors applied to the Defendant, and therefore personal jurisdiction should not have been asserted. In short, the Defendant did not reside in Massachusetts, nor conducted any business, nor delivered goods or services, nor owned any real property in the state. The alleged injuries to the Plaintiff occurred while the couple was living in another state.

While the Defendant’s actions may have caused Plaintiff’s injury in Massachusetts, the Defendant did not have the persistent contacts with Massachusetts as required by the statute.

Because the requirements of the statute were not met, the Court did not need to further analyze the second question of due process and whether Constitutional requirements were met so as not to offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (the landmark Supreme Court case setting forth the requirements for personal jurisdiction).

With that in mind, the 209A Restraining Orders issued against the Defendant were dismissed.

As to the question of whether 209A Restraining Orders can be issued against out of state Defendants, the answer comes down to an unsatisfactory and terse summary of everything discussed above, and a classic lawyerly answer: IT DEPENDS.

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209A is in fact a four letter word in Massachusetts, and this is so because of the nasty implications a 209A order has on the person against whom one is issued. For those unaware, 209A is the common name for the Massachusetts species of domestic restraining orders, and it refers to the number of the chapter of the Massachusetts General Laws entitled Abuse Prevention that governs issuance and outlines the proceedings and procedures for these orders. The purpose of the law was to prevent the rising incidents of domestic violence and to give victims of domestic violence a much needed tool to protect themselves with the help of the court.

Sounds great, in theory. In reality, the much needed tool became an all too easy to use weapon. Judges routinely ignore the narrow definition of abuse, as it is defined in the law:

(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.

Moreover, the law provides that these orders can only be granted where there is a blood, marriage, dating, or co-habitation relationship. Ex spouses, ex fiancees, ex boyfriends/girlfriends are included as well. To set the nomenclature straight, and for the sake of this discussion: Plaintiff is the person asking the court for the order, Defendant is the person against whom the order is issued.

All too often, a vindictive ex spouse fabricates or greatly exaggerates a seemingly benign incident in an attempt to get a 209A order issued in their favor. A state employed Victim Witness Advocate is then appointed to essentially coach the victim on what to say in front of the judge. Fear appears to be the magic word, and even if imminent serious physical harm (note that those are actually four separate elements) is not obvious or not present at all, the orders are liberally granted nonetheless.

The order itself has SIXTEEN sub-parts, some are mandates and others are various prohibitions, and the judge can check the box next to the provisions that apply to a particular order. Discussing all sixteen parts is best left for another day. The most commonly used parts are:

• Not to abuse the Plaintiff by causing the three instances of abuse listed above.
• Not to contact the Plaintiff and stay away a certain distance from the Plaintiff. E-mail is contact. Sending flowers is contact. All are violations, and therefore criminal offenses.
• Leave and stay away from residence of Plaintiff. It does not matter that the Defendant lives there as well or that the Defendant has no other place to stay. It further does not matter if the Defendant owns the property or if the lease is in the Defendant’s name alone.
• Surrender all guns and licenses.

And of course, each order bears in large letters VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.

In this lawyer’s opinion, judges must be constantly reminded of the requirements of the law, and that things like mere annoyance, excessive phone calls, emails, or unannounced visits are generally not adequate grounds for issuing a 209A order, as unpleasant as those actions may be. The victim may have a whole range of other criminal and civil recourse against the alleged offender, but 209A orders sought to patch up someone’s love life or to calm things down between ex lovers are nothing short of blatant abuse of the law.

The extent to which a 209A order can negatively impact and nearly ruin a person’s life, at least with the way the law is currently handled in Massachusetts, is enough to accept 209A as a true four letter word.

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