This article written by Jennifer Chase when she was a third-year student at Franklin Pierce Law Center; depicts what Felix Frankfurter may have been referring to when he said "Judicial judgment must take deep account of the day before yesterday in order that yesterday may not paralyze today." because this ruling paralyze's domestic violence victims to day.
Bar Journal - Summer 2006 for her references to case law and her sources click on the link below and you will find them at the bottom of her article; this is extremely well reasoned and points out flaws within the NH Judicial System.
McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims?
By: Jennifer Chase
I. Introduction
A single mother is threatened with harm or physically hurt one more time by the father of her child. She has endured the abuse for years, but this time because he is no longer living with them, and she finally summons the courage to call the police. She is unfamiliar with the law and finds out that to get immediate protection she needs to obtain a temporary protective order and then file a domestic violence petition.1 At the court house, fills out the necessary paperwork and is granted a temporary protective order.2 Once she has the order she feels safer, because now, maybe, the abuse will finally end.
Next, she finds out she has to go to court and have a hearing.3 She knows this is going to make the father angry. But she has the temporary order, so she knows the father will get into trouble if he violates it and she thinks this will deter him from harming or threatening her. A hearing date is scheduled, but there are unanticipated continuances. Then, and for reasons the victim does not understand, the order is dismissed. She has no protection, and to obtain the protection of a protective order, she has to start the process over again. Since the father is already angry that she has involved the court in the first place, does she dare go down that road again? If the court could not offer her protection the first time around, will pursuing the same course protect her, or further provoke the father?
Today, domestic violence victims are particularly vulnerable, especially if they are neither represented by counsel nor familiar with the law. As a result of the Supreme Court’s recent decision inMcCarthy v. Wheeler, the courts have no choice but to leave domestic violence victims unprotected if, through no fault of the alleged victim, the court misses a statutory hearing deadline. In McCarthy, the Supreme Court had to balance the safety interests of the victim against the due process rights of the defendant.4 The Court resolved the balance in favor of the defendant, holding that when the district court failed to schedule hearings within RSA 173-B’s statutorily prescribed time frames, the victim’s domestic violence petition, restraining the defendant from having contact with her, had to be dismissed.5
In this article I intend to first review the history behind current domestic violence laws, including New Hampshire’s, and explain the policy behind the law and how it was intended to operate. Next I will discuss the McCarthy majority and dissenting opinions and will conclude that the majority decision: 1) is legally flawed and inconsistent with the policy behind, and purpose of, the domestic violence statute; 2) failed to consider other remedies short of dismissal; and 3) is inconsistent with State v. Kidder, a recent decision in which the Court upheld the rights of a domestic violence victim in the face of a due process-based challenge by her alleged abuser.6 Finally, I will suggest that the legislature, in response toMcCarthy, amend RSA 173-B to reflect the Domestic Violence Case Protocols’ allowance for an extension when a continuance has been granted, and require dismissal only upon a showing of prejudice by the accused which outweighs the paramount purpose of the statute, protection of the victim.
II. Addressing the Issue
of Domestic Violence
of Domestic Violence
In the United States, violence against women has reached epidemic proportions.7 The National Clearinghouse on Domestic Violence reports that in the United States men batter three to four million women a year.8 Congress allocated substantial federal resources and remedies to address the epidemic in its criminal context, through the Violence Against Women Act of 1994 (VAWA).9 VAWA expired in 2005, and on January 5, 2006 President Bush signed VAWA 2005 Reauthorization into law.10 VAWA 2005 enhances essential programs and policies in the criminal justice and legal systems and “reaffirms the commitment to reform systems that affect adult and youth victims of domestic violence, sexual assault and stalking.”11
Despite the federalization of domestic violence, today more than 95 percent of domestic violence prosecutions take place in state courts.12 During the past two decades, legislatures, courts and state prosecutors, have worked to develop and “improve the criminal justice system’s response to domestic violence,” through numerous reforms and initiatives.13
Among these measures are domestic violence training for police officers, prosecutors and judges.14 Police departments, prosecutor’s offices, probation departments and local courts have created special domestic violence units.15 Mandatory arrest policies in domestic violence cases have been established.16 Emergency ex parte restraining orders are available, and criminal sanctions for violating restraining orders have been created.17 Further, law enforcement now recognizes domestic violence crimes such as stalking; legislation has mandated stiffer sentences in some domestic violence cases; and there are prosecution “no drop” policies.18
A. NH’s Response: RSA 173-B
In every case involving domestic violence there are two overarching interests: “protecting the victim from further abuse by the accused and empowering the victim to take back control over his or her life.”19 In New Hampshire, RSA 173-B:1 provides that protection from domestic violence is afforded to a broad range of persons, including family or household members and current or former sexual or intimate partners of the defendant.20 Since its inception in 1979, on three different occasions the legislature has amended the section defining who is covered by RSA 173-B, and each amendment has broadened the statute’s reach.21
RSA 173-B serves the state’s public policy interest in preventing and deterring domestic violence by providing immediate and effective judicial relief to the victims of domestic violence.22 The provisions of 173-B were crafted to afford victims immediate and easy access to the courts, including a provision allowing victims to forgo a filing fee and appear pro se.23 Temporary relief is available through the issuance of orders to protect the victim without notice to the accused, and such orders may be issued by telephone or fax.24 At the court’s discretion, the temporary orders may: 1) restrain the defendant from abusing the victim, 2) restrain the defendant from entering the premises and curtilage of the victim’s residence, and, 3) restrict or regulate visitation.25
Thus, the statute purports to guarantee the victim judicially enforced law enforcement protection until the hearing date. Violation of the temporary order by the accused results in his automatic arrest.26 The temporary order, served on the defendant also provides notice of a hearing,27 and states that after the hearing the court may issue a final order.28 According to RSA 173-B4, I, when temporary orders are made ex parte, the party against whom the order is issued may request a hearing in writing, and that hearing shall be held no less than three and no later than five days after the request is received by the clerk.29 When a domestic violence petition is filed, RSA 173-B:3, VII states the court “shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later.”30 In the aftermath of McCarthy, however, the victim can no longer count on this protection when the court fails to schedule hearings within these deadlines.
III. McCarthy v. Wheeler
On August 12, 2004, the plaintiff, Wendy L. McCarthy and the defendant, Robert E. Wheeler, were on the phone discussing their son.31 During the call, Wheeler threatened McCarthy with physical harm.32 With the aid of the Enfield Police Department, McCarthy obtained an emergency protective order via telephone through the Lebanon District Court, and the following day, August 13th, McCarthy filed a domestic violence petition.33
The Family Division of the Lebanon District Court granted an ex parte temporary restraining order.34 The case was transferred to the Family Division at Plymouth because of a conflict with Lebanon, and a final hearing was scheduled for August 26th.35 At that hearing the judge informed both parties that he had to recuse himself from the case because he had previously represented the defendant.36 The case was to be rescheduled at the court’s earliest convenience.37
On August 30th the court received the defendant’s motion for an immediate hearing, claiming the August 13th visitation order was “unjustified” and “overbroad.”38 A hearing was scheduled on issues of visitation and property, for September 9th, but because the plaintiff’s counsel had a scheduling conflict, the hearing was rescheduled for September 16th.39 At the defendant’s request, however, a full hearing on the merits of the domestic violence petition was postponed until October 12th, 40 based on the defendant’s [Wheeler’s] request for a lengthier hearing.41 At the October 12th hearing, Wheeler moved to dismiss, asserting that the court failed to hold a hearing within the time limits prescribed by RSA 173-B:3, VII and RSA 173-B:4, I.42
A. The Family Division’s Decision
The court denied the motion to dismiss because it held that the delay was not unreasonable.43 The court concluded that although the first hearing where visitation and property issues were addressed occurred on September 16th, exceeding by three days the 30 day time limit mandated by 173-B:3, VII for conducting a final hearing, the delay was not unreasonable.44 The court noted that Wheeler’s liberty and property interests were protected and, where the final hearing date was scheduled within two weeks of the date of the temporary order, the hearing could have been held but for the additional delay resulting from the conflict with the judge.45 Finally, the court found that the defendant failed to object to a continuance requested by the plaintiff.46
B. The Appeal
On appeal, Wheeler claimed because the court failed to hold a hearing within the time frames set forth under RSA 173-B:4, I for the temporary orders, and RSA 173-B:3, VII, for the domestic violence petition, the court had to dismiss the domestic violence petition.47 The Supreme Court held that the hearing on the temporary restraining order should have been held within five business days of August 30th when the defendant’s request for an immediate hearing was received, and the hearing on the domestic violence petition should have been held within 30 days of August 13th the date the victim filed the petition.48 The issue the Court addressed was the appropriate remedy when the hearings do not occur within these time frames.49
C. The Majority’s Analysis
The McCarthy Court examined the words “shall hold a hearing” in RSA 173-B:3, VII, and “such hearing shall be held,” in RSA 173-B:4, I and concluded that the word “shall” suggests the legislature intended that the hearings must be held within the time limits prescribed.50 Because the legislature was silent on enforcement of the mandate, the Court was left to identify the proper remedy when a court fails to schedule a timely hearing.51 In doing so, the Court weighed the statute’s purpose against the prejudicial effect of the delay on Wheeler.52
The McCarthy Court noted that the legislature intended that the protection and safety interests of victims be balanced against the liberty interests of the defendant.53 Applying this balancing test, theMcCarthy Court first evaluated the import of the defendant’s interest in safeguarding his rights temporarily restricted by the protective order, such as his ability to visit his child.54 The defendant’s interest could, if substantial, outweigh the victim’s.55 The critical point and crux of the McCarthy Court’s analysis was its analogy of the defendant served with a temporary order or a domestic violence petition to a juvenile charged with delinquency.56 Since, in In re Russell, C., under the juvenile statute, when the adjudicatory hearing fails to occur within the statutory time frame the appropriate remedy is dismissal, the McCarthyCourt held the same remedy must apply, where the District Court fails to hold hearings for a temporary Restraining Order, or a Domestic Violence Petition within the time limits established in RSA 173-B.57
Since the delays were not deemed to have been caused by the defendant, the McCarthy Court held the only remedy was dismissal.58 The Court held that the victim was not precluded from refiling the domestic petition.59 In response to the plaintiff’s contention that dismissal only served to frustrate the purpose of RSA 173-B, the Court acknowledged that dismissal might result in effectively defeating the goals of the domestic violence statute but the result was consistent with legislative intent and thus, was not “absurd, unjust or illogical.”60
D. The Dissent
The dissent disagreed with the majority’s analogy of a domestic violence respondent’s liberty interests to those of a juvenile.61 According to the dissent, the domestic violence statute, unlike the juvenile statute in Russell C., is not intended to protect the defendant’s liberty interests.62 The dissent’s conclusion was based on the fact that there is no reference to the defendant’s liberty interests in either the statute’s “statement of purpose or the mandate for liberal construction.” 63
Rather, the dissent argued that this case is more similar to In re Robyn W., where the statute at issue, RSA 170-C:11, contains a hearing time limit for issuing a disposition in a parental rights termination proceeding after the final hearing.64 Similar to the district court in McCarthy, in Robyn W.,the probate court, through no fault of either party, failed to comply with the statutory time limit.65 TheRobyn W. Court recognized that RSA 170-C:11 addressed the competing interests of providing “a speedy disposition for the sake of child’s welfare and the interest of the parent whose parental rights [might] be terminated.”66 The dissent analogized the parental interest of a speedy disposition to theMcCarthy “defendant’s interest in a speedy disposition of the proceedings.”67 The Robyn W. Court held that although dismissal would vindicate the interest of the parent it would also thwart the statute’s other objectives and lead to an illogical result.68 By analogy, the dissent concluded that dismissal of McCarthy’s petition vindicated Wheeler, but at the expense of the primary purpose of the statute.69
According to the dissent, the better framework within which to address failure of the court to hold a timely hearing is to follow the reasoning in Robyn W., and treat the “statutory mandate as one directed to this court” in its supervisory function.70 An approach which enforces the statutory time frames, not through dismissal, but through the Supreme Court exercising its supervisory capacity, would better serve and reconcile the various interests of the parties, since the purpose of the statute would not be compromised.71 By considering and reviewing complaints against dilatory judges, the statutory times frames would be enforced by the Court, providing an appropriate remedy when the district or family court failed to act within the statutory time frames.72 Acting in this supervisory capacity, the Court could order prompt action by the family or district court, order that the judge obtain additional judicial help, and “where appropriate initiate judicial disciplinary proceedings.”73
IV. Analysis
When the McCarthy decision is measured against the underlying policies and goals of RSA 173-B, it is inconsistent with the statutory scheme and intent of the legislature, since the victim is left unprotected. When viewed in the context of the larger judicial scheme, against statutory time frames for speedy trial claims, and administrative and parole hearings, the result is illogical. Positioned next to theKidder, where the Kidder Court concluded the victim’s interests were paramount to the defendant’s, theMcCarthy decision is inconsistent. When the decision is considered in the context of the guidelines established in the New Hampshire Domestic Violence Case Protocols, it is anomalous since nowhere is dismissal contemplated.
The critical moment for McCarthy occurred when the Court determined how it would characterize the defendant’s liberty interest. Once the Court decided to equate the domestic violence respondent with a juvenile facing delinquency, the result it reached was fixed since the juvenile statute, and the case law interpreting it, mandated dismissal. This, of course, begs the question of why the Court found the juvenile model so persuasive, especially where the domestic violence statute in no way purports to similarly protect the respondent’s interest. As the dissent rightly argues, the analogy is flawed, and the resultant dismissal is at the expense of the primary purpose of the domestic violence statute, which is to safeguard the interests of petitioners like Wendy McCarthy.
Given the obvious lack of similarity between the domestic violence and juvenile statutes, it is unclear why the majority rejected other suitable analytical models, all of which require a showing of actual prejudice to warrant dismissal when there has been a similar breach of statutory time frames. For example, in addition to Robyn W., the Court has rejected dismissal in speedy trial hearings, administrative hearings, and parole hearings, absent the respondent or defendant demonstrating actual prejudice, when there is a failure to comply with a prescribed time frame.74
McCarthy is particularly puzzling when examined in the larger context of criminal cases, specifically a speedy trial claim where a defendant is required to demonstrate actual prejudice to succeed on his motion to dismiss.75 The Court has held that when a defendant is unable to demonstrate actual prejudice, his speedy trial claim must fail.76 The criminal defendant, whose liberty interests are superior to all other defendants, must show actual prejudice; yet in McCarthy, the Court required no such showing by the domestic violence defendant whose liberty interests are substantially less than those of the criminal defendant. The Court presumed prejudice when it held the violation of the time frames was itself prejudicial to the due process rights of the domestic violence defendant. The criminal defendant’s liberty interests are especially acute: if he is incarcerated while awaiting trial, he has lost all freedom.77 Ironically, the standard the criminal defendant must demonstrate to succeed on a speedy trial claim is substantially higher than the standard the Domestic Violence defendant must show to succeed on his motion to dismiss.
Aside from the critical flawed analogy to the juvenile statute, the McCarthy decision suffers from other flaws. First, it gives short shrift to the inconvenience and stress associated with refiling a petition that has been dismissed. Practically speaking, refiling can be a frustrating, and demoralizing experience. The pro se victim is forced to take time off from work, and if there are young children involved, bring them to the courthouse, or obtain daycare, proceed to fill out all of the necessary paperwork again, and wait for as long as it takes for a judge to decide on whether to grant the petition.78 Thus, both the victim and the accused must endure a second waiting period of up to 30 days.79 Further, the children must endure the continued disruption of their lives. As for the represented victim, he or she must incur additional attorney’s fees.
The Court’s opinion is also problematic because it is inconsistent with State v. Kidder, a recent case in which the Court vindicated the rights of the domestic violence petitioner in the face of a more serious challenge by the defendant.80 In Kidder, the defendant contacted the victim through his attorney, in violation of a protective order issued under RSA 173-B, I (a)(6).81 The defendant raised due process and liberty concerns.82 Similar to McCarthy, the Court had to balance the rights of a criminal defendant subject to a domestic violence restraining order against the victim’s interest in safety.
Ultimately, the Kidder Court subordinated the rights and interests of the defendant to those of the victim, which meant that the defendant, even in the interest of preparing for his criminal trial could not contact the victim without a special court order.83 Where the liberty interests of a criminal defendant exceed and are superior to those of a defendant like Wheeler, the results of these two cases cannot be reconciled. Had McCarthy been decided using the balancing test applied in Kidder; the result would have favored the victim.84 Ensuring protection of the victim would have been the primary and governing consideration since the statute’s expressly stated policy is to provide judicial relief to the victim and the entire statutory scheme was intended to maintain and protect the safety of domestic violence victims.
Another problem with the Court’s analysis stems from consideration of The New Hampshire Domestic Violence Case Protocols.85 Protocol 5-20 of the N.H. District Court Domestic Violence Case Protocols, states:
If a continuance of the final hearing is granted, the case should be expeditiously rescheduled, but in all cases, within 14 days unless for good cause shown. However, it need not be rescheduled within the statutory time frame. The temporary order should be extended until disposition of the final order.”86
The judges and legal professionals who developed the Protocols understood there would be circumstances where the thirty day deadline could not be met, and made a provision to allow for a reasonable delay in the final hearing date. In response to Wheeler’s contention that the final hearing date exceeded the statutory time limit, this case would have fallen squarely within the parameters of the Protocols which allow for a final hearing to be scheduled within 14 days of the grant of a continuance. Under the Protocols, the case would not have been dismissed.
If the Protocols are a legitimate judicial resource providing guidelines for the District Courts in their management of Domestic Violence cases, Protocol 5-20 permits District Courts to extend the final hearing deadline beyond the statutory time limit, and if good cause is shown, sets no window. It makes no sense to expend time and resources developing protocols to govern the disposition of domestic violence cases if such protocols have no influence in shaping jurisprudence or policy under RSA 173-B.
V. Remedies by the Court / Legislature
Based on the foregoing analysis, I recommend that the legislature amend RSA 173-B in response to McCarthy. Specifically, upon review of the relevant case law and protocols, I recommend that the legislature build into the statutory framework remedies for violations of the hearing time frames which recognize that delays in scheduling hearings may occur. Those remedies should not punish or potentially endanger a victim who was not responsible for such a delay and who did not expressly or impliedly waive the protections RSA 173-B was designed to provide. I recommend that the current time frames for hearings under RSA 173-B4, I and173-B3, VII remain as drafted and that the following language be incorporated into the statute:
• The deadlines may be extended upon motion of either party for good cause shown;
• In the event of a delay, the court shall reschedule a hearing as soon as is practicable, and shall give the matter high priority in scheduling;
• A domestic violence petition may only be dismissed, based on delay, if the moving party demonstrates the delay has caused the party actual prejudice;
• In the event of a delay, the court should incorporate leave for visitation into any temporary order, unless to do so would pose a risk to the safety of the child or another person.
VI. Conclusion
The judicially enforced protection of domestic violence victims has been significantly eroded by the McCarthy decision because the remedy of dismissal leaves the victim without protection. There are less drastic measures the Court could have employed to remedy the violation of the statutory deadlines. It has taken society centuries to not only identify, define and understand domestic violence for what it actually is, but also to develop an effective judicial and law enforcement response. Unfortunately, McCarthy represents a break with current public policy and judicial management of domestic violence proceedings and erodes the carefully crafted protections of RSA 173-B.
It would appear that the Majority in this NH decision acted without vision. Helen Keller once said "the most pathetic person in the world is someone who has sight, but no vision."
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