Protection Orders Relating to Domestic Violence
The basic and foremost canon of statutory interpretation is to avoid ambiguity or contradictions with other aspects of law – in this case with special emphasis on not violating due process. The way this statute is written and the way it’s applied results in ambiguity and/or contradictions. That situation can be avoided – it’s a matter of interpretation and goals.
The second rule of statutory interpretation, where a hint of ambiguity exists, is that the administrators, the judges and the officers will interpret law in a way that gives them the most power and flexibility, unless constrained.
I have tried to analyze AS 18.66.100 and AS 18.66.110 separately, which didn’t work out well. So, let’s review them together under the general heading Protective Orders.
First I’ll quote the Alaska Statutes that are being considered. For simplicity, this is a partial quote. The omitted portions are not relevant to this analysis. I advise the reader to not try and understand all of it just yet. Read through it to see the scope, but the point of this analysis is to break it down in pieces to see what is really going on therein.
AS 18.66.100. Protective Orders: Eligible Petitioners; Relief.
(a) A person who is or has been a victim of a crime involving domestic violence may file a petition in the district or superior court for a protective order against a household member……
(b) When a petition for a protective order is filed, the court shall schedule a hearing and provide at least 10 days’ notice to the respondent of the hearing and of the respondent’s right to appear and be heard, either in person or by an attorney. If the court finds by a preponderance of evidence that the respondent has committed a crime involving domestic violence against the petitioner, regardless of whether the respondent appears at the hearing, the court may order any relief available under (c) of this section…..
AS 18.66.110. Ex Parte and Emergency Protective Orders.
(a) A person who is a victim of a crime involving domestic violence may file a petition under AS 18.66.100 (a) and request an ex parte protective order. If the court finds that the petition establishes probable cause that a crime involving domestic violence has occurred, it is necessary to protect the petitioner from domestic violence, and if the petitioner has certified to the court in writing the efforts, if any, that have been made to provide notice to the respondent, the court shall ex parte and without notice to the respondent issue a protective order. An ex parte protective order may grant the protection provided by AS 18.66.100 (c)(1) – (5), (8) – (12), and (16). An ex parte protective order expires 20 days after it is issued unless dissolved earlier by the court at the request of either the petitioner or the respondent and after notice and, if requested, a hearing. If a court issues an ex parte protective order, the court shall have the order delivered to the appropriate local law enforcement agency for expedited service and for entry into the central registry of protective orders under AS 18.65.540.
(b) A peace officer, on behalf of and with the consent of a victim of a crime involving domestic violence, may request an emergency protective order from a judicial officer. The request may be made orally or in writing based upon the sworn statement of a peace officer, and in person or by telephone. If the court finds probable cause to believe that the victim is in immediate danger of domestic violence based on an allegation of the recent commission of a crime involving domestic violence, the court ex parte shall issue an emergency protective order. In an emergency protective order, the court may grant the protection provided by AS 18.66.100 (c)(1) – (5), (8), (10), (11), and (16). An emergency protective order expires 72 hours after it is issued unless dissolved earlier by the court at the request of the petitioner.
Now, breaking it down, let’s compare the headings and the first sentences of the two statute sections.
AS 18.66.100. Protective Orders: Eligible Petitioners; Relief.
(a) A person who is or has been a victim of a crime involving domestic violence may file a petition in the district or superior court for a protective order against a household member…
AS 18.66.110. Ex Parte and Emergency Protective Orders.
(a) A person who is a victim of a crime involving domestic violence may file a petition under AS 18.66.100 (a) and request an ex parte protective order.
Section 18.66.110(a) refers back to section 18.66.100(a).
So, let’s look closer to the words in section 18.66.100(a). It clearly says that a victim of a crime involving domestic violence is eligible to file a petition for long term protection. It goes to the trouble to specifically say “is or has been a victim of a crime.” It does not say “may be a victim of a crime” or “alleged victim of a crime.” Thus to be eligible to file a petition the Statute says the petitioner must be a victim of a crime, and thus we can infer that there must be a crime in order for there to be a victim. Also, for there to be any relief under Section 18.66.100 there must be a victim and a crime. The relief is the long term protection order.
Notice that within the two sections there are three types of protective orders; an emergency protective order which expires in 72 hours, and a 20-day protective order which may be extended, and a long term protective order for a term of up to a year and it also may be extended.
Secondly, there are two standards of proof mentioned, probable cause relating to the 72 hour and the 20-day order, and preponderance of evidence relating to the long term order. It is important to know that the standard of proof generally considered due process in a conviction of a crime adjudicated by the courts is the clear and convincing standard. These standards of proof may overlap somewhat due to the subjective nature of being a judge, but there is a lot of difference comparing probable cause and clear and convincing, for example.
Let’s consider the 72 hour protective order first. 18.66.110(b) says a peace officer may request an emergency order from a judicial officer. Surely such judicial officer includes a magistrate. This is a civil matter. This clearly may be based on allegations by the alleged victim and also clearly intended to offer protection from harm that the officials consider immediate danger from domestic violence, based on the probable cause standard. This is as it should be. Who most likely would know the situation better than the arresting officer? Probable cause is the same standard of proof used for both the warrantless arrest and the basis for issuing the emergency protective order. In real life, most likely the accused will be in jail for at least overnight, and when released the 72 hour order will be in effect.
Then, the next order of business is for a magistrate to issue the 20-day protective order, using the same standard of probable cause. This is usually done in collaboration with the district attorney and thus with the district court. Note that the law says “If the court finds that the petition establishes probable cause that a crime involving domestic violence has occurred …… the court shall ex parte and without notice to the respondent issue a protective order.” This is a civil matter rather than criminal. The ex parte protective order is the same thing as the 20-day order, because it’s term is for 20 days and may be extended.
This is the tricky part. The “petition” mentioned in the law relating to the 20-day order is the same petition mentioned in the section relating to long term protection. The difference in the effect of the petition is that the 20-day order section says “If the court finds that the petition establishes probable cause that a crime involving domestic violence has occurred.” The long term protection order section says “If the court finds by a preponderance of evidence that the respondent has committed a crime involving domestic violence against the petitioner.”
To my thinking, this is really tricky, but remember that the statute is supposed to be interpreted to eliminate ambiguity rather than accentuate it. The wording in the above paragraph is significant, but may not be the critical factor in sorting this out. The words “the petition establishes probable cause … a crime … has occurred” and “the respondent has committed a crime” seems to saying that a crime may have occurred, compared to saying a crime has been committed. That’s like comparing the concept of “reason to believe” based on allegations primarily with the benefit of doubt, compared to “adjudication” based on evidence – lots of it.
This apparent incongruity may be resolved with a reasonable interpretation. It appears the intent of section 18.66.110 is that the law provides for the issuance of the 20-day order based on the probability that a crime of domestic violence has occurred, with protection of the probable victim of high priority. But once this protection is in place, the need to issue a long term protection order is deferred until such time as the court can adjudicate the charges under the higher standard of proof, consistent with criminal court due process. Remember the 20-day order may be extended. Thus, nothing is lost in the way of protection of the alleged victim. And also very important, the accused is afforded some degree of fundamental due process and protection from zealot magistrates imposing the burden of the long term protection order when no crime has been adjudicated.
Once the outcome of the prosecution is known, then the petition for long term protection may be submitted if appropriate and a hearing held, only upon conviction or plea of guilty or no-contest by the defendant, in a criminal proceeding within the jurisdiction of the superior or district court. Dismissal or acquittal precludes the petition for long term protection even being eligible to file, there being no victim or crime.
This is not the way it is being done.
Facts: The Delian magistrate helped the petitioner, Narciss, prepare the petition for long term protection during the same meeting as the 20-day protective order was prepared. The magistrate delivered both the 20-day order and the notice of hearing for the long term protection order to Westley at the same time, along with notification of pending prosecution by the District Court.
Within three days thereafter, the District Court dismissed the criminal case “without prejudice” thus no prosecution was pending.
The magistrate held the hearing for long term protection anyway.
The petition was denied because the evidence did not support the accusations.
Conclusion: The magistrate violated the law in four ways.
First violation was accepting the petition for long term protection. Since Narciss was not a victim of a crime she was not eligible to file the petition pursuant to Alaska Statute. Look at the statute again, see the title “eligible petitioners.” That’s what that section of the law is about – defining who is eligible and when eligibility begins.
Second violation – the “court” in the Statute 18.66.100 is not before the magistrate, but the Superior Court, or District Court, before a real Judge. The law provides for the petition to be filed with the district or superior court, after a crime is determined to have been committed, adjudicated by the superior court or district court judge. Thus there is no provision for adjudication of a crime, assault in the fourth degree – a class A misdemeanor, by the magistrate.
The third violation is the affirmation of the second by the limitation of proceeding statute analyzed in another post. Whether the magistrate can hold the hearing is not contingent upon the standard of proof, but upon Alaska Statute AS 22.15.120, limitations on proceedings. The law specifically precluded the magistrate from holding the hearing, a civil proceeding, and during the same hearing consider evidence to determine if a crime has been committed, a criminal case.
Fourth violation – holding the hearing. Again look at the wording of the statute 18.66.100 – see the word “relief”. This section is about defining eligibility and the form of relief. There is no eligibility or relief if there was no adjudicated crime. There is no victim of a crime, and the prerequisite to the hearing is for a crime to exist, not merely accusations. Clearly, the purpose of the Magistrate’s hearing (a civil matter) was to hear evidence and consider if a crime (a criminal case) had been committed by the respondent