Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I’ve been asked most about is how same-sex marriage relates to our domestic violence laws.
Tag Archives: DVPOs
Same Sex Marriage and Domestic Violence
Not showing up for court is, generally speaking, bad trial strategy. In criminal court, such behavior can result in such unpleasantness as entry of an order for arrest and the revocation of one’s driver’s license. In civil court, a defendant’s failure to respond can result in a default judgment for the entire sum claimed by the plaintiff. Yet in criminal cases involving charges of violating a domestic violence protective order, some defendants are benefiting from their failure to appear in the civil action leading to entry of the protective order. The defendants argue that because they never appeared for the hearing in the earlier action, they did not know a domestic violence protective order was entered, and thus, could not have knowingly violated its provisions pursuant to G.S. 50B-4.1(a). They contend that they are entitled to dismissal of the charges on this basis, and some trial courts have agreed.
Though our appellate courts haven’t considered this issue, I’m highly skeptical that such arguments have merit when the alleged violations occur after the defendant was served with the 50B complaint and any ex parte order, regardless of whether the defendant actually received a copy of the final protective order.
How DVPOs Come About. A person entitled to relief under Chapter 50B may file a civil action in district court alleging acts of domestic violence and seeking entry of protective order. When such an action is filed, a summons must be issued and served upon the defendant pursuant to Rule 4 of the Rules of Civil Procedure. The summons must require the defendant to answer within 10 days of the date of service. The complaint, notice of hearing, and any temporary or ex parte order that has been issued must be attached. At the hearing, if the court finds that an act of domestic violence has occurred, the court must enter a protective order restraining the defendant from further acts of domestic violence. G.S. 50B-3. Such an order may, among other types of relief, grant the plaintiff possession of the residence or household and order the defendant to stay away from the residence. G.S. 50B-3(c) provides that “a copy of any order entered and filed under this Article shall be issued to each party.” The statute does not specify how issuance occurs. It seems clear, however, that personal service under Rule 4 is not required. As a practical matter, if the defendant appears at the hearing, the defendant is handed a copy of the order. If the defendant does not appear at the hearing, the clerk carries out this directive by mailing a copy to the defendant and noting that service on the order. Sometimes, defendants contend that they moved or for some other reason did not received the mailed order.
Proving a Knowing Violation. The pattern jury instructions for violation of a domestic violence protective order provide that “[w]here a domestic violence protective order has been served on a defendant, you may presume that the defendant knew the specific terms of the domestic violence protective order.” N.C.P.I.—Crim. 240.50. The court of appeals in State v. Branch, 2011 WL 6402713, ___ N.C. App. ___, 720 S.E.2d 461 (2011) (unpublished op.), implicitly sanctioned that instruction when it found no error in a colloquy between the judge and defense counsel after the close of the evidence regarding whether the State had proved service. In Branch, however, the defendant stipulated to service after the State forecast testimony from the victim that the defendant had appeared at the underlying civil proceeding and was present when the order was issued. This aspect of the factual circumstances in Branch may lead some defendants to argue that the presumption does not apply when the defendant was not personally served with the order. As I said before, I’m doubtful that this is the case.
Like DWLR. The presumption stated in the jury instruction for violating a domestic violence protective order accords with the manner in which the State must prove knowledge of a license revocation for purposes of G.S. 20-28. In that context, the courts have held that proof that DMV mailed notice pursuant to G.S. 20-48 raises a rebuttable presumption that the defendant received the notice and thus knew of the revocation. State v. Coltrane, 184 N.C. App. 140, 143 (2007), aff’d, 362 N.C. 284 (2008) (holding that State raised prima facie presumption of receipt and presumption “was clearly not rebutted” when defendant “chose not to present any evidence at trial”).
Purpose of Chapter 50B. More significantly, the very purpose of Chapter 50B—protecting victims of domestic violence—would be undermined by permitting a defendant to avoid prosecution for violating a protective order when the State cannot prove that the order personally was served upon him. A defendant who is served with a summons for a Chapter 50B action has been notified that the plaintiff is seeking a protective order, since such an order must issue if the court finds that an act of domestic violence occurred. A defendant ought not be able to thwart the enforcement of a protective order issued in such a proceeding by willfully failing to appear. In considering similar provisions under Texas Law, the Texas Court of Criminal Appeals has characterized the “evident purpose” of the “requirement  that the respondent be served with the application and notice of the hearing, without which the protective order is not binding” as ensuring “that the person to whom the protective order applies has knowledge of the order, or at the very least such knowledge of the application for a protective order that he would be reckless to proceed without knowing the terms of the order.” See Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002) (stating that “[t]he requirements are only that the respondent be given the resources to learn the provisions; that is, that he be given a copy of the order, or notice that an order has been applied for and that a hearing will be held to decide whether it will be issued” and that “[t]he order is nonetheless binding on the respondent who chooses not to read the order, or who chooses not to read the notice and the application and not to attend the hearing.”); but see Small v. State, 809 S.W.2d 253, 256-57 (Tex. App. 1991) (finding evidence insufficient to sustain conviction for violation of domestic violence protective order where “[a]side from indicating that the appellant was served with notice of the hearing on the protective order, there is no evidence in this record that the appellant agreed to a protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to his coming into the home”).
Have your say. That’s my view. As always, if you see things differently or have something to add, please send in a comment below.
Background. In State v. Byrd, 363 N.C. 214 (2009), the state supreme court concluded that an ex parte domestic violence protective order, or DVPO, was not a “valid protective order” for purposes of the sentencing enhancement under G.S. 50B-4.1(d). (As explained in this prior post about Byrd, the enhancement provides that a felony that also constitutes a DVPO violation shall be punished one class higher than it otherwise would be.) The ruling cast broad doubt on the validity of ex parte DVPOs, and the General Assembly subsequently enacted legislation that appeared to be intended to reverse Byrd and to bolster the efficacy of ex parte DVPOs. Today, the court of appeals considered whether the legislation achieved its desired outcome.
The case is State v. Poole. As a side note, the State was represented in the case by new School of Government faculty member LaToya Powell, back when she was still at the Attorney General’s office. Poole involved the following series of events.
- October 14, 2011: The defendant’s wife sought and obtained an ex parte DVPO based on the defendant’s threatening and harassing behavior. The order required the defendant to surrender his firearms to the officer who served the order.
- October 17, 2011: A deputy sheriff served the DVPO on the defendant.
- October 18, 2011: Officers returned to the defendant’s home and found a shotgun. The defendant was “arrested for violating the DVPO and indicted for ‘owning, possessing, purchasing, or receiving a firearm’ in violation of [G.S.] 14-269.8.”
Defendant’s motion to dismiss. The defendant moved to dismiss the charge, apparently on two grounds. First, he noted that G.S. 50B-1 defines a “protective order” as an order issued after a “hearing by the court or consent of the parties.” He argued that Byrd held that an ex parte proceeding is not a “hearing,” and therefore, that an ex parte DVPO is not a “protective order.” And if an ex parte DVPO is not a “protective order,” he reasoned, it cannot support a prosecution under G.S. 50B-3.1(j) (making it a Class H felony to possess a firearm in violation of a “protective order”), and its counterpart, G.S. 14-269.8. Second, he argued that prosecuting him criminally for violating an ex parte order violated due process principles.
Court rulings. The trial judge agreed, but the State appealed and the court of appeals reversed.
Ex parte DVPOs can support charges under G.S. 50B-3.1. It dealt with the statutory argument first. It noted that the General Assembly enacted S.L. 2009-342 immediately after Byrd, and observed that the amendment added G.S. 50B-4(f) and G.S. 50B-4.1(h), both of which expressly define the term “valid protective order” to include ex parte DVPOs. Although the defendant was charged under G.S. 50B-3.1, which was not amended, rather than G.S. 50B-4 or G.S. 50B-4.1, the court of appeals ruled that the amendments manifested a legislative intent to confer full legitimacy on ex parte DVPOs. Furthermore, it noted, G.S. 50B-3.1(a) expressly refers to “an emergency or ex parte order,” so a violation of that statute in particular may be predicated on an ex parte DVPO.
No due process violation. The court then ruled on the constitutional issue, concluding that the defendant was not deprived of due process when he was prosecuted for violating an ex parte DVPO. The court noted that due process usually requires that a person be given notice and an opportunity to be heard before he or she may be deprived of liberty or property, but stated that prior notice and an opportunity to be heard may be dispensed with in exceptional circumstances. It ruled that the need to protect victims of domestic violence is a purpose sufficiently important to justify the use of ex parte orders, especially given that such orders are subject to review at an adversarial hearing within 10 days.
Conclusion. Perhaps the legislative response to Byrd could have been drafted to avoid any ambiguity about the status of ex parte DVPOs. But whatever ambiguity existed before Poole, little remains afterwards. Violations of ex parte DVPOs are no different from violations of other types of orders that may be issued under Chapter 50B, and may result in charges under G.S. 50B-3.1 as well as 50B-4.1.
Is Kenton Retroactive?
In a post here, Jeff wrote about the N.C. Court of Appeals decision in Kenton v. Kenton, holding that a consent domestic violence protective order (DVPO) lacking any finding that the defendant committed an act of domestic violence was void ab initio. As it turns out, a number of district court judges have been entering orders similar to those held void under Kenton. Of course, Kenton applies prospectively. However, questions have been raised about whether it applies retroactively to convictions that became final before it was decided. Consider the defendant who was convicted in 2010 of violating a Kenton-like DVPO. An element of that crime is the existence of a valid DVPO. Can the defendant now file a motion for appropriate relief (MAR) asserting that the protective order was invalid under Kenton and thus that he or she is entitled to relief? The answer depends on whether Kenton applies retroactively to the defendant’s case.
As I discuss in more detail here, the retroactivity analysis for new federal rules is known as the Teague test. Kenton, however, was grounded in North Carolina law, not federal law. When a new rule is grounded in North Carolina law, the relevant retroactivity rule is that articulated in State v. Rivens, 299 N.C. 385 (1980). See State v. Zuniga, 336 N.C. 508, 513 (1994). Under Rivens, new rules are presumed to operate retroactively unless there is a compelling reason to make them prospective only.
Thus, the first question in the retroactivity analysis is this: Is Kenton a new rule? If a rule isn’t new there is no retroactivity issue because the rule doesn’t change existing law. There isn’t a lot of guidance in the North Carolina case law about how to resolve this issue. Under the federal Teague test, a rule is “new” if reasonable jurists could differ as to whether precedent compelled the new rule. Federal law says that answering this question requires an examination of appellate precedent as well as institutionalized practice over a period of years. Under this approach Kenton arguably is not a new rule. The Kenton opinion expressly concluded that the precedent set by Bryant v. Williams, 161 N.C. App. 444 (2003), controlled. Slip Op. at 6 (“[W]e must conclude the precedent set by Bryant is controlling in this case.”). That’s pretty compelling evidence that the rule is not new (whether Bryant was a new rule is a separate question). On the other hand, there seems to be evidence of an institutionalized practice of judges entering Kenton-like orders, thereby suggesting that reasonable jurists disagreed on whether Kenton was mandated by Bryant. In Jeff’s post, for example, 89 blog readers answered his survey, indicating that judges have been entering Kenton-like DVPOs in their districts. Thus, this aspect of the analysis may not be so clear cut.
If Kenton is a new rule, under Rivens it operates retroactively unless there are compelling reasons to make it prospective only. Note that this standard is very different than the federal Teague test which starts from a presumption of non-retroactivity. Cases have clarified that for purposes of determining whether compelling reasons exist for prospective application only, the court must look to the “purpose and effect of the new rule and whether retroactive application will further or retard its operation” as well as “the reliance placed upon the old rule and the effect on the administration of justice of a retrospective application.” Faucette v. Zimmerman, 79 N.C. App. 265, 271 (1986) (civil case applying Rivens). State v. Honeycutt, 46 N.C. App. 588 (1980), decided only months after Rivens—but not citing that case—found reasons for prospective-only application of a new evidence rule. In Honeycutt, the defendant filed a MAR asserting that after his case was decided, the N.C. Supreme Court decided State v. Haywood, 295 N.C. 709 (1978), changing the law regarding the admissibility of declarations against penal interest. For more than a century, the North Carolina courts had ruled that declarations against penal interest were inadmissible for any purpose. Then, in Haywood, the Court held that such declarations may be admitted under certain conditions. The defendant asserted that although he had litigated this evidentiary issue in his case and lost, he was entitled to retroactive application of the new rule. The superior court judge agreed and ordered a new trial. The State appealed, contending that the new rule should have prospective application only. The Honeycutt court agreed, reasoning that retroactive application “could easily disrupt the orderly administration of [the] criminal law.” See Honeycutt, 46 N.C. App. at 591 (quotation omitted). The court found this conclusion bolstered by its belief that the change in evidentiary law did not “rise to the magnitude of a constitutional reform,” which “most likely would mandate retroactivity.” Id. at 591-92. But as noted above Honeycutt did not cite Rivens, a fact that’s significant because it’s not clear that Honeycutt honored the Rivens presumption of retroactivity. By contrast, however, is State v. Funderbunk, 56 N.C. App. 119 (1982), a case that did cite Rivens. In Funderbunk the court found no compelling reason why a decision modifying the common law rule of general disqualification in criminal proceedings of the testimony of a defendant’s spouse involving communications between the spouse and the defendant should not apply retroactively.
It can be argued that like the rule in Honeycutt, retroactive application of Kenton DVPO rule “could easily disrupt the orderly administration of [the] criminal law” and does not “rise to the magnitude of a constitutional reform.” On the other hand, Honeycutt didn’t cite Rivens and it’s not clear that Honeycutt is entirely consistent with the Rivens rule. Additionally, any retroactive application of a new rule will cause some disruption to the “orderly administration of [the] criminal law;” a blind application of this exception would swallow the Rivens rule. Considering the dearth of cases applying Rivens, the issue seems open. If you have thoughts as to how it should be resolved with respect to Kenton, please share them.
The court of appeals recently decided Kenton v. Kenton, a civil case of major significance for criminal lawyers. In a nutshell, a wife sought a domestic violence protective order (DVPO) against her husband. A district court judge entered a consent DVPO, finding that “[t]he parties agree to entry of this order without express findings of fact regarding the behavior of either party,” and noting that the parties also waived conclusions of law. A year later, the wife sought to renew the DVPO. The husband “moved to dismiss the motion on the ground that the [c]onsent DVPO was facially invalid because the order contained no finding of fact or conclusion of law that defendant committed an act of domestic violence, as required by [G.S.] 50B-3(a).” The trial court denied the defendant’s motion and renewed the DVPO, but the court of appeals reversed. Citing Bryant v. Williams, 161 N.C. App. 444 (2003), it ruled that the DVPO was “void ab initio” because it “lacked any finding that defendant committed an act of domestic violence.”
No further appeal seems likely. The opinion was unanimous, so the wife doesn’t have a right to further review. And although the docket sheet states that she was represented by an attorney, no brief was filed on her behalf in the court of appeals.
So, now we know that consent DVPOs without findings of fact are not proper. I’ve heard that such orders were common practice in some districts and not common in others. To try to get a rough handle on the prevalence of such orders, I’ve put up a poll – please take a moment to note how things worked in your district.
Clearly, Kenton will affect any pending cases in which a defendant is charged with violating a consent DVPO without findings of fact. Under G.S. 50B-4.1, it is a crime to violate a “valid protective order.” An order that is void ab initio isn’t valid, so violating it can’t be a crime.
The more interesting question is whether Kenton affects past cases in which defendants have been convicted of violating consent DVPOs without findings of fact. Under G.S. 15A-1415(b)(1), a defendant is entitled to relief if “[t]he acts charged . . . did not at the time they were committed constitute a violation of criminal law.” I can imagine an argument that (1) Kenton-style DVPOs are void ab initio, meaning (2) that no such order was ever valid, no matter how common they were, and so (3) a defendant convicted of violating such an order was convicted of something that was not a crime. Or an argument that under the retroactivity principles of Teague, Kenton is an “old rule” and so retroactive at least to Bryant. On the other hand, the state may argue that Kenton is a “new rule” that should not be applied retroactively to afford relief in closed cases. I haven’t thought much about this, and I’d be interested in readers’ analyses of this issue. [Update: my colleague Jessie Smith believes that, because Kenton is grounded in state law, retroactivity should be determined under State v. Rivens, 299 N.C. 385 (1980), not Teague. Her paper here discusses the difference and states that Rivens provides for a presumption of retroactivity.] Note that if defendants are entitled to reopen old cases under Kenton, convictions beyond those for violating a DVPO may be implicated. For example, a defendant convicted of the federal crime of possessing a firearm while subject to a DVPO, 18 U.S.C. § 922(g)(8), might seek relief based on the asserted invalidity of the DVPO.
Kenton raises other issues, too, like how detailed the findings of fact must be to support a DVPO, and whether a defendant who is willing to consent to a DVPO can do so in a way that doesn’t amount to an admission in a related criminal case. Stay tuned.
State v. Byrd and Violations of DVPOs
I thought that I might blog today about the Sotomayor confirmation hearings, but they’ve been thoroughly dull. The only piece I’ve seen that makes them seem even a little bit interesting is this one, which I understand to be written by a liberal commentator unimpressed with the judge.
Fortunately, my colleague John Rubin rescued me from what was sure to be a slow blogging day when he emailed me a terrific piece about the implications of State v. Byrd. I blogged about Byrd previously. The very short version of the case is that it held that ex parte TROs are not “protective orders” as that term is used in Chapter 50B of the General Statutes, and therefore, violations of such TROs can’t support the criminal charges in that Chapter.
John’s piece explores the further implications of the case, including its impact on the “shall arrest” provision in G.S. 50B-4.1(b), and provides an update on the legislative “fix” that the General Assembly is considering. It’s worth your time, and although too long to be a blog post, it’s still quite brief. Click on the link below to take a look: