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N.J. Family Legal Blog ^ | June 25, 2008 | Sandra C. Fava

Posted on 07/02/2008 5:57:10 AM PDT by frithguild

A Hudson County trial judge has issued a very interesting decision recently regarding a litigant's claim that the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 35, is violative of the NJ and US Constitutions.

The argument was that because domestic violence proceedings may result in serious consequences by the issuance of a Final Restraining Order (i.e. possible jail sentence for future violations; removal of all weapons and inability to obtain weapons in the future; fines; registry on a list of offenders), the Chancery court with equity jurisdiction should not hear these matters. The decision should rest with a jury in order to provide litigants with due process and the ramifications of a Final Restraining Order are outside the scope of the Chancery court's jurisdiction. He also argued that the standard of evidence was much lower in the Chancery courts then should be when determining these matters.

Under the 1947 amendment to the New Jersey Constitution, the Law Division and Chancery Division's roles were determined to be concurrent "when the ends of justice so require". This is in step with the policy to create a uniform judicial system.

The opinion found that Chancery courts do have jurisdiction to hear these matters because in sum, criminal and civil actions arising out of an act of domestic violence are treated as two distinct matters with the criminal action initiated by law enforcement for punishment of the crime on behalf of the public interest and the civil case initiated by the victim for a remedy of the private harm between the parties. Further, none of the criminal penalties available for a crime of domestic violence are permanent and do not ensure that the defendant will not harm the victim once released.

As to the argument that a jury should be deciding these issues, the opinion goes on to state that jury trials would cause undue delay in providing necessary relief to plaintiffs. This is in direct contravention to the Prevent of Domestic Violence Act, which was established to generate a prompt response in an emergency situation.

The defendant was successful in convincing the Court that the standard of evidence, a preponderance of the evideence (i.e. that it was more likely than not to be true), was too low and should be raised to that of clear and convincing evidence. After a review of the case law of this state on the standard of evidence, the Court found that while some domestic violence such as those with objective signs of physical injury are easy to prove, others involving stalking, harassment, terroristic threats, etc. are not so easy to prove and require the judge to tread very carefully into those areas.

The defendant raised several other arguments regarding violations against the NJ and US Constitution, all of which were denied.

It will be interesting to see the aftermath of this decision. Will other counties follow suit or will the matter be taken up once again on Appeal to create legal precedent? We will have to wait and see but for the time being, the Prevention of Domestic Violence act does not violate a New Jersey's citizen's constitutional rights.

TOPICS: Culture/Society; Government; US: New Jersey
KEYWORDS: domesticviolence; dueprocess; judiciary; secondamendment
An improvement from how it is now
1 posted on 07/02/2008 5:57:12 AM PDT by frithguild
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To: frithguild

Laws don’t prevent anything............

2 posted on 07/02/2008 6:02:38 AM PDT by Red Badger (If we drill deep enough, we can reach the Saudi oil fields from THIS side..........)
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To: frithguild

We need more laws, lawyers, judges, and especially higher fees for underpaid lawyers and judges. More Power to the lawyers and judges I say. Sarc

3 posted on 07/02/2008 6:04:53 AM PDT by Neoliberalnot ((Hallmarks of Liberalism: Ingratitude and Envy))
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To: frithguild

It is almost certainly NOT Constitutional.

It pretty clearly involves the restriction of certain citizens’ rights without due process of law.

4 posted on 07/02/2008 6:09:01 AM PDT by WayneS (Respect the 2nd Amendment; Repeal the 16th)
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To: Neoliberalnot

Look - Here is how it works. Wife goes to the Police and says my husband threatened me, I am afraid and he has guns. In the blink of an eye a Judge issues a restraining order, the man is out of the house and the guns are confiscated. In one case the prosecutor kept collectibles in a barrel left outside in the rain. It is this way to stop wife beating. But the upshot is this statute is used for all sorts of nefarious purposes.

5 posted on 07/02/2008 6:09:45 AM PDT by frithguild (I hope for change when I give cash to the Man - but all I ever get is nickels and dimes.)
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To: Red Badger

Only to people who choose to follow them...

6 posted on 07/02/2008 6:09:49 AM PDT by misterrob (Obama-Does America Need Another Jimmy Carter?)
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To: frithguild
A Hudson County trial judge has issued a very interesting decision recently regarding a litigant's claim that the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 35, is violative of the NJ and US Constitutions.

US Constitution:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment 7 - Trial by Jury in Civil Cases. Ratified 12/15/1791.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment 14 - Citizenship Rights. Ratified 7/9/1868.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Seems pretty clear cut…
7 posted on 07/02/2008 6:10:35 AM PDT by Lucky Dog
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To: Lucky Dog
Seems pretty clear cut… Not when it's a "living and breathing" document. It's old now--it very well could be developing dementia.
8 posted on 07/02/2008 6:29:42 AM PDT by SirFishalot
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To: WayneS

I have had considerable experience with domestic violence shelters, and related matters both before and after the Federal Violence Against Women Act. A dirty little secret is that since VAWA was imposed as the model for domestic violence programs, support for other approaches has slackened, but the VAWA approach doesn’t work very well. It assumes that men are always the perps and women always the victims in domestic violence, which is not borne out by statistics, and, because some of the penalties are so extreme, discourages victims whose problems are transient, albeit serious, from seeking shelter or assistance, because the VAWA model tends to handle every case as insoluble. This decision is a good start, but the federal government ought to either butt out on the issue altogether, or change their program to something which is more reality-based.

9 posted on 07/02/2008 6:29:54 AM PDT by mathurine
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To: frithguild

Many statutes are used in various ways. As the lawyers say, rules and laws are subject to interpretation and there are so many laws out there that selective enforcement is used to remove citizens that buck the system or to remove citizens as an example to the rest of the “lawbreakers.” Nobody can now go through life without breaking laws.

10 posted on 07/02/2008 7:04:25 AM PDT by Neoliberalnot ((Hallmarks of Liberalism: Ingratitude and Envy))
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To: mathurine

The VAWA itself is seriously flawed by virtue of relying on claims of “relgulating interstate commerce” as the basis for Congress to enact it in the first place.

11 posted on 07/02/2008 7:12:32 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: SirFishalot
We have at our collective disposal (through our elected Representatives and Senators) the means of controlling a “runaway judiciary.” All it takes is political will to do so. Please note the excerpts from the US Constitution below:

Article. I. - The Legislative Branch

Section 1 - The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 - The House…

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3 - The Senate…

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 8 - Powers of Congress

The Congress shall have Power …

To constitute Tribunals inferior to the supreme Court;

Article. II. - The Executive Branch

Section 1 - The President

Section 2 - …

He shall have Power… [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for…

Article III. - The Judicial Branch

Section 1 - Judicial powers.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office… [Emphasis added]

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

… In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, [with such Exceptions, and under such Regulations as the Congress shall make].[Emphasis added]
12 posted on 07/02/2008 7:20:34 AM PDT by Lucky Dog
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To: Red Badger; frithguild
Wife slain at (Montclair, NJ) YMCA had restraining order, She needed a Gun!

13 posted on 07/02/2008 11:31:20 AM PDT by Coleus (Abortion and Physician-assisted Murder (aka-Euthanasia), Don't Democrats just kill ya?)
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To: frithguild

The decision of the judge is useless, because all it did was to up the standard of evidence from preponderance to clear and convincing, and all a judge needs to do is declare the same result citing there is clear and convincing evidence.

14 posted on 07/05/2008 9:04:21 AM PDT by Smedley (It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park)
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To: Coleus

Agreed, in addition to needing a CCW and practice.

Try getting that CCW here particularly given the specious grounds upon which DVC Hearings and RO are granted in this state.

Calling Evan Nappen!

Oh, he’ll be so busy. Let’s hope additional, knowledgable pro-2nd Attornies-at-Law take up the slack for what appears may be a glut of litigation to be coming down the pipe.

15 posted on 07/15/2008 9:47:53 AM PDT by Freemeorkillme ("Don your Kevlar, Mac the knife is at our rear!")
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