Restraining Order Case Law Precedents 

 

Trial court's refusal to allow defendant to call witnesses and cross-examine witnesses during hearing on question of continuing temporary abuse prevention order violated defendant's constitutional rights of due process and statutory right to be heard. U.S.C.A. Const.Amend. 14; M.G.L.A. c. 209A, 4. C.O. v. M.M.  442 Mass. 648 (Oct. 2004) 

 

A defendant has a general right to cross-examine witnesses against him.  C.O. v. M.M.  442 Mass. 648 (Oct. 2004) 

 

Due process requires that the defendant be given an opportunity to testify and present evidence. U.S.C.A. Const.Amend. 14.     C.O. v. M.M.  442 Mass. 648 (Oct. 2004) 

 

While a defendant's right to present evidence is not absolute, and while a judge may limit cross-examination for good cause in certain situations, judicial discretion in limiting cross-examination is not unlimited, and each side must be given a meaningful opportunity to challenge each other's evidence.  C.O. v. M.M.  442 Mass. 648 (Oct. 2004) 

 

Although abuse prevention order proceedings were intended by the Legislature to be as expeditious and informal as reasonably possible, the proceedings may not violate the due process rights of defendants in an attempt to accommodate plaintiffs. U.S.C.A. Const.Amend. 14; M.G.L.A. c. 209A, 1 et seq. C.O. v. M.M.  442 Mass. 648 (Oct. 2004) 

 

A plaintiff seeking an initial domestic abuse prevention order on the basis of abuse must show that he or she is currently in fear of imminent serious physical harm, as well as that the fear is reasonable. M.G.L.A. c. 209A, 1(b).     Iamele v. Asselin   444 Mass. 734 

Initial domestic abuse prevention order expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from abuse. M.G.L.A. c. 209A, 1   Iamele v. Asselin   444 Mass. 734  .
 

When a person seeks to prove abuse by "fear of imminent serious physical harm," our cases have required in addition that the fear be reasonable. See Commonwealth v. Gordon, 407 Mass. 340, 349-350, 553 N.E.2d 915 (1990)   Iamele v. Asselin   444 Mass. 734 

 

A plaintiff seeking an initial order on the basis of abuse as defined in 1 (b ) must show that he or she is currently in fear of imminent serious physical harm, see Dollan v. Dollan, 55 Mass.App.Ct. 905, 906, 771 N.E.2d 825 (2002), as well as that the fear is reasonable.   Iamele v. Asselin   444 Mass. 734 


Due Process is a requirement of the U.S. Constitution. Violation of the United States Constitution by a judge deprives that person from acting as a judge under the law. He/She is acting as a private person, and not in the capacity of being a judge (and, therefore, has no jurisdiction). 
 
The state Supreme Courts have held that those who aid, abet, advise, act upon and execute the order of a judge who acts without jurisdiction are equally guilty. They are equally guilty of a crime against the U.S. Government. 
 
A voidable order is an order that must be declared void by a judge to be void; a void order is an order issued without jurisdiction by a judge and is void ab initio and does not have to be declared void by a judge to be void. Only an inspection of the record of the case showing that the judge was without jurisdiction or violated a  person's due process rights, or where fraud was involved in the attempted procurement of jurisdiction, is sufficient for an order to be void.

Potenz Corp. v. Petrozzini, 170 Ill. App. 3d 617, 525 N.E.  2d 173, 175 (1988). In instances herein, the law has stated that the  orders are void ab initio and not voidable because they are already void.

 
Note that I keep referring to Void Judgment. Its a powerful tool. It is any judgment that was made where the court lacked jurisdiction OR was induced by fraud OR it violated due process. It is not necessary to prove all three components - any one of the three creates a Void Judgment.
 
 A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999) Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986).
 
 A Void Judgment may be "attacked in any court at any time", and thus may be used to overcome "timely response" and/or "timely filing. Thus it has no statute of limitations, and may be asserted at the local level ... on up.
 
A court lacks jurisdiction anytime it denies you the Bill of Rights or amendments, particularly Due Process.  I.e. most M209A's are invalid by denial of Due Process evidentiary hearings.
 
VOIDNESS is a very powerful tool, and certainly makes any judgment attackable when Due Process is denied, property taken,  no cross exam of witnesses/accusers permitted.  etc.
 
As I noted before:
The rational/explanation  of "LACK OF JURISDICTION " thus a VOID judgment  is further described in a Supreme Court  case referenced in Bass:
 
Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. When this *468 right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the hearing of trial may be lost 'in the course of the proceedings' due to failure to complete the court--as the Sixth Amendment requires--by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. [FN22] If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction **1025 to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.  Johnson v. Zerbst   58 S.Ct. 1019  U.S. 1938.

 
Let me make a leap of faith then and suggest the same principal applies to the Fifth Amendment and Due Process. 
I.e.     No 5'th Amendment DUE PROCESS MEANS  NO JURISDICTION  per the Supreme Court interpretation of the Bill of RIghts. .
 
 
MORE:
 
A judgement is void if it not consistent with Due Process of law. Orner v. Shalala, 30 F.3d 1307, 1308 ( C.A.10 (Colo.),1994); V.T.A., Inc. V. Airco, Inc., 597 F.2d 220, 221 (1979).  A judgment reached without due process of law is without jurisdiction and thus void. Bass v. Hoagland, 172 F. 2d 205, 209 (1949)

Any motion for relief from a void judgment is timely regardless of when it is filed. V.T.A., Inc. V. Airco, Inc., supra @ 224 (footnote no. 9). If a judgment is void, it is a nullity from the outset and any Civ. R. 60(B) motion is therefore filed within a reasonable time. Orner v. Shalala, supra @ 1308.
 

If voidness of judgment is found then relief from judgment is not discretionary and any order based upon that judgment is also void. V.T.A., Inc. V. Airco, Inc.,supra @ 221; Venable v. Haislip, 721 F.2d 297, 298 (1983).
Sure, you have a couple of choices to attack these orders, the appeals court, the federal court, and the Superior Court.  Personally I am writing a complaint for federal court at the moment. I will file down here.  (Its my Christmas present for my EX!!.  LOL). I plan to have some federal marshals serve it up.  I think that adds a touch of pizzazz to the service.
 
File in federal court or in Mass Superior Court as a violation of state civil  rights and/or federal civil rights.  A Null judgment can be attacked in any court at any time as I read it.  Note the Mass Civil rights laws are supposed to be more liberal than the federal laws -  I believe no state action is needed for a starter and the interpretation is also looser. 

INSTRUCTION ON FILING AGAINST A VOID ORDER:

 
File a motion for an evidentiary hearing.  You can ask for a review anytime you desire you know per part 3 of 209A. Note your civil rights and due process are being violated as well as the right for an evidentiary for due process.  This sets you up well for appeal or review by another court. 
 
I do not believe you need to file an appeal to attack the judgment as a nullity, but I would file one anyhow.  Appeals are free to file and preserve rights.  I have read cases where Appeals Judges say, "he never filed an appeal so it must have been ok with him."
 
The lack of evidentiary hearings is a time saver and the courts do not have enough hours in the year to hear all the RO's they renew.  This is why VA only has perhaps 1500 RO's a year which are likely well needed.  The rest of the false garbage never gets approved initially or renewed later.
 
The trick in Federal court is the Fed wants to throw these family court issues out and avoid them.  You have to use Catz approach on the Due Process attack.  Don't ask for a change in the judgment, just a declaratory judgment the process used was invalid.  Then any order resulting by from that process is NULL by definition. 
 
As soon these orders start getting trashed,  the courts will have to change their approach.  The legislature will have to rethink its approach as will the feministas.  We note the SJC has several times stated evidentiary hearings  should be permitted and added to due process.  The lower courts ignore it because nothing happens.