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.

15 comments:

nypundit said...

The disturbing thing about this is I thought Dave was secretly talking about me all this time! ;-)

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)

Pastor_Jeff 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.

Pastor_Jeff said...

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

Mark said...

As an attorney practicing in Wisconsin, I do not find it strange that the judge approved the TRO. My experience is that at the initial phase, most, if not all, restraining orders are approved. Judges have told me that they dare not fail to approve the TRO then have something tragic happen to the petitioner, when a restraining order could have protected her (petitioner). The problem for this case is going to be getting service of process on Letterman and prevailing at the final hearing on the restraining order.

In a related note, it is somewhat common to see women (especially) in pre-divorce planning file for a TRO to get the husband kicked out of the house, and allowing the wife a leg up in getting the house and the kids. The courts (at least in my county) seem very cognizant of this practice though, and do scrutinize the need for a restraining order at the final hearing.

Hans F. Bader said...

It takes only a bare, false allegation to get a restraining order. Judges rubberstamp requests for restraining orders, since to do otherwise, they have been taught by advocates, is "insensitive."

The Letterman case illustrates that judges just rubber-stamp restraining order requests in violation of due process.

Frivolous restraining orders aren't harmless or meaningless -- they have terrible consequences in child custody and other divorce-related litigation brought by the false accuser against the innocent accused.

And loads of restraining orders are based on false allegations.

And legal rights are permanently affected by restraining orders. For example, federal law bans objects of restraining orders from possessing long-held firearms, meaning a falsely accused hunter or security guard has to give up his guns and lose thousands of dollars worth of property.

This patent abuse of process in the Letterman case is typical of how frivolous domestic violence claims are upheld by cowardly judges.

Most judges, desiring to appear sensitive to domestic violence victims, grant more than 99 percent of all temporary restraining orders that are filed. (And it costs nothing to seek a domestic violence TRO, unlike every other kind of civil process, which requires a filing fee).

They're terrified that in the freak event that they deny a poorly-supported TRO motion, and the defendant then goes nuts in response to the TRO motion and kills the complainant, they'll be
demonized on TV and in the press or even, in rare cases, removed from the bench for "insensitivity."

Domestic violence TRO's are granted without any opportunity for the innocent accused to tell his or her side of the story.

Such TRO's have been called the "poor woman's divorce" because they enable the wife to summarily kick out her husband and gain control of the house and family car without even going through the procedural safeguards needed for a divorce.

I myself have talked to men who were wheelchair bound or otherwise physically disabled from posing much risk of harm who were falsely
accused and then made subject to ex parte domestic violence TROs.

This episode reminds me of Tonya Harding. She was previously convicted of a violent felony for conspiring to attack a figure-skating rival. And she was previously also charged with domestic violence herself.

Yet she managed to get her injured boyfriend arrested for domestic violence after first telling 911 operators falsely that she was beaten by masked intruders and then admitting that story was false and instead changing her story to accuse her boyfriend.

The prosecutors believed her, despite her own conceded initial lie about the very incident in question, and history of felonious and domestic violence, and charged the boyfriend despite his denials.

There's an awful lot of sex bias in handling domestic violence cases, almost always against the male. Women who kill their husbands without provocation get only 7 years, according to the federal Bureau of Justice Statistics' study of large urban counties, compared to 17 years for men who kill their wives.

For evidence of the bias against men, see the statistics cited in the amicus briefs in U.S. v. Morrison, 529 U.S. 598 (2000) filed by the Independent Women's Forum and Women's Freedom Network.

(I am a lawyer, but not a divorce lawyer. I should not have to point this out, but since you might otherwise wonder, I have never been accused of domestic violence, nor have I been divorced).

Hans Bader
202-331-2278

Hans F. Bader said...
This comment has been removed by a blog administrator.
37921 said...

Hey Ann, can I advertise my business on your blog? Let me know and I'll post my phone number too, maybe a scan of my business card.

Hans F. Bader said...

I wasn't advertising my business by giving my phone number.

I gave my phone number so readers can call me to confirm that I have statistical and other evidence for what I'm saying on this blog: namely, that domestic violence restraining orders are massively overissued and in violation of due process.

I don't practice in state court (where restraining orders are granted) anyway, so I can't obtain any business opportunities from this blog.

Don't call me seeking legal assistance about a restraining order. I don't practice in the state court that issued it.

My opinions on this blog are solely my own, and not those of my employer, which is a think tank that focuses on regulatory issues, not family law.

37921 said...

Okay, I apologize, and I will take your word for it. But I think this is the first time I have seen anyone post their telephone number in a comment on a blog.

miklos rosza said...

I've found both Mark's and Hans Bader's posts here very interesting. Bader's phone number I take as proof of his sincerity, nothing more.

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.

brylin 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.