Gentlemen,
Yesterday I received a letter
from a NJ attorney, David
N. Heleniak, saying he ran
across my website and thought
I'd be interested in a law
review article. With
the letter was 57
Rutgers Law Rev. 1009-1042,
containing an article entitled,
"The New Star Chamber:
The New Jersey Family Court
and the Prevention of Domestic
Violence Act" by David
N. Heleniak.
In it, Attorney Heleniak
discusses quite extensively
the domestic violence restraining
laws of several states,
including Massachusetts.
He even discusses
our own Harry Stewart.
For those who do not know
Harry, you cannot find a
more NONviolent, gentle
person. Lots of familiar
names kept popping up: e.g.,
Cathy Young, Boston Globe
Eileen McNamara, Sal D'Amico.
The essence of the excellent
article is a concept that
has NOT been pushed and
SHOULD be:
The Prevention of Domestic
Violence Act is an attempt
to convert that which is
in its nature a prosecution
for a crime into a civil
proceeding. So far,
it has been a success.
The New Jersey Legislature
has to date been allowed
to create, in the Family
Part of the Chancery Division
of the New Jersey Superior
Court, a modern day Star
Chamber.
The article then goes on to
detail the rights the accused
loses by this conversion.
He concentrates on the 10-day
period, those first days after
the ex parte TRO has issued
and before the evidentiary
hearing to which the accused
is entitled to but rarely
gets.
The quotes from case law are
on point and wonderful.
You will want to get a copy
of the article and attach
it to each and every Motion
to Dismiss you file immediately
after being served with a
TRO.
Heleniak ends beautifully:
Authorities on
the Star Chamber "agree
. . . that the most objectionable
of the Star Chamber's practices
was its asserted prerogative
to disregard the common
law rules of criminal procedure
when the occasion demanded."[FN147]
Today, the Family Part of
the Chancery Division of
the New Jersey Superior
Court is not bound by the
procedures of the Criminal
Division in determining
whether an individual committed
an act of domestic violence.
Indeed, it is instructed
by the Prevention of Domestic
Violence Act to ignore them.
Calling an action civil
does not make it so.
"It is idle to entertain
the thought for a single
moment that the legislature
can change the nature of
an offense by changing the
forum in which it is to
be tried."[FN148]
"[T]he Legislature
cannot by mere change of
name or of form convert
that which is in its nature
a prosecution for a crime
into a civil proceeding
and thus deprive parties
of their rights to a trial
by jury. The Constitution
cannot thus be trifled with."[FN149]
That last quote was from Ashley
v. Wait, 116 N.E. 961, 966
(Mass. 1917).
Thank you, Attorney Heleniak.
May we call you "David"?
Barbara
P.S. I have blind-copied
this email also to a few Massachusetts
Supreme Judicial Court and
other judges who, I hope,
will take note and work actively
to send the Massachusetts
Legislature a message about
this conversion that violates
our orphaned Fourteenth Amendment.
U.S. Const.
P.P.S. Attorney Heleniak's
email is
David-Heleniak-Esq@verizon.net,
for those of you who are looking
for a father-friendly, fair-minded,
intelligent attorney in New
Jersey. He is not a
sole-practitioner. He
is with multipractitioner
law firm.
