December 22, 2005

What does it take to get a restraining order?

Do the judges apply any judgment at all?
Lawyers for David Letterman have gone to court in New Mexico to quash a restraining order obtained by a Santa Fe woman who said he had used code words to indicate he wanted to marry her and train her to be a co-host, The Associated Press reported. The temporary restraining order was granted to Colleen Nestler, who alleged that Mr. Letterman had forced her to go bankrupt and inflicted "mental cruelty" and "sleep deprivation" on her since 1994. She asked that Mr. Letterman, who tapes his "Late Show" in New York, stay at least three yards from her and not "think of me, and release me from his mental harassment and hammering." In a motion filed on Mr. Letterman's behalf, Pat Rogers, an Albuquerque lawyer, wrote, "Celebrities deserve protection of their reputation and legal rights when the occasional fan becomes dangerous or deluded." Saying that the restraining order is without merit, Mr. Letterman's lawyers asked District Court Judge Daniel Sanchez to quash it. A hearing on the request for a permanent restraining order was set for Jan. 12.

7 comments:

Jake said...

David Letterman is sending secret signals to the Judge to come to NYC and be his cue-card guy. So the judge has sympathy for the woman's plight.

reader_iam said...

I just got beamed to an alternate universe where the inmates do, in fact, run the asylum.

(Gobsmacking to the point of mouthdropping)

P_J said...

The only thing I can think is that the judge was trying to humor this woman? The more you read about this, the more obvious it is that what this woman needs is serious psychiatric care, not a kind pat on the hand. Kindness can be cruelty.

P_J said...

Or maybe "restraining order" was the judge's way of signalling the bailiff with "code words" that really meant "involuntary committal."

XWL said...

A judicious application of common sense would seem to have been in order while adjudicating this matter.

That this judge chose not to speaks to some of the problems with our courts as they are currently constructed.

Was the judge trying to avoid being judgemental?

When Mark above points out, "Judges have told me that they dare not fail to approve the TRO then have something tragic happen to the petitioner" that sounds parallel to the practice of 'defensive medicine' that you hear so many doctors complaining of having to do.

Just as defensive medicine has real costs in vast inefficiencies so does defensive jurisprudence. There are a finite number of lawyers and judges with finite resources and finite time, the preliminary judge was in a position and had the authority to end this time waster there and then, not to do so, regardless of the reasoning, resembles incompetence when viewed from outside the legal profession.

At least that's my view of things as someone with no connection to law other than as a citizen who must live by the laws as written.

Anonymous said...

It sounds like an abuse for Judge Sanchez to issue this TRO.

That being said, I will take issue with Hans. I don't practice matrimonial law now and haven't for 20 years, but my experience was that women who showed physical signs of abuse were routinely granted TROs. And they should be. For others who sought a TRO, other evidence such as police reports, testimony of neighbors or medical professionals was necessary to secure this relief. A good lawyer will provide evidence to supplement his client's claims. And judges, although cautious, request this supportive information in most questionable cases.

And I would question Hans about the statistics because women by far are the victims of abuse. Sure, you can point out the odd case where the man is the victim. But there are many, many more women who are abused. Most cities have homes for battered women and these homes have been established for a valid reason.

As for U.S. v. Morrison, 529 U.S. 598 (2000), held that a federal civil remedy for the victims of gender-motivated violence cannot be sustained under the Commerce Clause or §5 of the Fourteenth Amendment. In fact, there are numerous statements in Souter's dissent that directly contradict your view. See for example, "Since 1974, the assault rate against women has outstripped the rate for men by at least twice for some age groups and far more for others." S. Rep. No. 101-545, at 30 (citing Bureau of Justice Statistics, Criminal Victimization in the United States (1974) (Table 5)).

If "domestic violence restraining orders are massively overissued and in violation of due process" then I'm sure some lawyer would have brought a case to challenge this alleged harm.

I'm not persuaded.

queleanorirk said...

I have not gone near my husband since he sent me to the hospital in March of 2004. I decided never to go near him after this (he left me in October of 2003).I have documented instances of bruises on my arms from him. I do not wish to speak to him live, ever, so we devised a method of leaving each other messages. (We have three children and ongoing financial issues.)In July of 2005, I felt that he had again emotionally abused my youngest daughter, and attempted to leave him a message cautioning him about this. He kept picking up the phone and taunting me and trying to fight with me, so I kept hanging up until he let it go to message. Then in August, September and October I started getting repeated calls from a credit card which we share, and for which I write him a check every month. Clearly he wasn't paying the bill. I called him to ask about it and he simply ignored me. I kept calling him about this bill. The last message I left him said that I understood he was angry at me (he cheated on me, by the way, and is angry because I got angry about it. I swear before God this is true) and that I would go to mediation with him. (I have not divorced him because I have Stage IV breast cancer and will have not insurance if we divorce. I put him through school to get his degrees, the whole magilla and he left me when my cancer came back.)The next day a cop came to my door with a TRO. My husband didn't win, but it cost me a LOT of money to defend against it.