NJ Ruling Raising Evidence Standard for Restraining Orders Overturned

fathersandfamilies.org ^ | July 20th, 2009 | by Glenn Sacks

[jacknhoo]

In Crespo v. Crespo, the New Jersey Appellate Division overturned the June 18, 2008 ruling of Francis Schultz, who vacated the final restraining order (FRO) entered against defendant Anibal Crespo. Judge Schultz vacated the FRO entered pursuant to the Prevention of Domestic Violence Act because the standard of proof provided by the Act, the preponderance of evidence standard as opposed to the clear-and-convincing standard, violated the defendant’s right to due process. (He also noted that the Act’s “practice and procedure” components violate the separation of powers doctrine, but this finding had no affect on his decision to vacate the FRO and will not be discussed here.)

Characterizing the competing private interests at stake as “victims’ interests in being protected from domestic violence against defendants’ liberty interests in being free to say what they wish and go where they please,” and describing the governmental interest at stake as “interest in eliminating domestic violence and in affording immediate and effective protection to victims of domestic violence,” the Appellate Division concluded that the relevant case law does not require “a burden of persuasion that more effectively eliminated the chance of a mistaken adjudication at the steep price of permitting countless more meritorious claims to be lost at the hands of the clear-and-convincing standard.”

Lawrence Lustberg, who submitted an amicus brief on behalf of the New Jersey Coalition for Battered Women, told the New Jersey Law Journal he was pleased that in addition to overturning Judge Schultz’s decision, “the court performed a full due process rights analysis.” They did nothing of the sort. In footnote seven of their decision, the court stated: “Defendant has also argued that the Act improperly converts what is a criminal prosecution into a civil proceeding,...

[jacknhoo]

Good ole, New Jersey...one of the most Godless states in the union. I have hard time believing NJ Supreme Court will not be activist on this.

[ConservativeMan55]

bttt

[sr4402]

Can anyone sum this up for me? I get lost in the legalese.