Appeals Court Helps Men Challenge Restraining Orders

By Ed Oliver
July 11, 2002

A recent ruling of the Mass, Appeals Court is good news for men are in jeopardy of having a restraining order extended or made permanent.

At least one lawyer has already made successful use of the new case to help his clients.

Commenting to MassNews, Atty. Greg Hession, Belchertown, said, "Now there must be a new showing of the need for the order before it can be renewed. This is supported by the statute, but had just never been applied, due to judges using a political, rather than a legal standard."

Atty. Barbara Johnson, Andover, had a similar opinion, saying that the Appeals Court made it "crystal clear" to judges that courts must not extend restraining orders without new facts and a new hearing.

"It has always been the law," Johnson told MassNews. "It just has not been adhered to."

Atty. Johnson is gathering signatures to make an independent run for Governor. A major issue for her supporters is court reform and making judges accountable.

Expires Unless New Evidence Is Shown

In explaining the law governing restraining orders, the Appeals Court said, "There is no presumption that the order be continued. There is no entitlement that the order be made permanent. The order expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from 'abuse' as explicitly defined in c.209A sect. 1."

Atty. Hession says he has had two restraining orders vacated for his clients in a span of three weeks, one by Judge Steven Rainaud in Franklin Probate and Family Court and the other by Judge Edward F. Donnelly Jr. at Middlesex Probate and Family Court.

The client who had his restraining order vacated by Judge Donnelly was Zed McLarnon, about whom MassNews has written in past articles.

"At any renewal hearing, the defendant should insist that the person who wants to continue the restraining order show proof that it is still needed, and that there is a basis for it to issue in law," explained McLarnon's attorney, Greg Hession. "When the judge knows you know the law, he or she is much less likely just to rubber stamp a continuance. When a judge is accountable, he or she often gets more honest."

In the case which was taken to the Appeals Court, the woman had a restraining order issued against the man after the couple's personal relationship ended. The stated reason was a poem the man had written and given to a mutual friend expressing his heartbreak over the ended romance. The poem contained no threats toward the woman. When the order expired after a year, she requested a permanent order, and got it. The man appealed, and the order was vacated.

The Appeals Court wrote, "It appears that in making the order permanent the judge inappropriately used the mere existence of the earlier order, issued by a different judge, at a different time, as the sole basis for making the order permanent."

The Court pointed to the statute, saying, "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm."

Using prior case law, the Court said, "Although it is not expressly stated in G.L. c.209A, …[the] plaintiff must make a case for relief by a preponderance of the evidence."
And, "The burden is on the complainant to establish facts justifying the…continuance of an abuse prevention order."

Similar to Appeals Court Decision

McLarnon's recent experience was similar to the Jones case. McLarnon had a restraining order lodged against him in 1994. His ex-wife then obtained a series of automatic renewals. Upon the most recent expiration of the order, she sought a permanent restraining order. As the reason for her request, she presented copies of McLarnon's Internet articles stating his opinions about the court system, but which contained no threats to her.

This time, Atty. Hession was on hand to remind the judge about the law. He presented the new Appeals Court ruling to back up his insistence that the woman must show evidence that she is in danger of imminent serious physical harm.

Judge Edward F. Donnelly, Jr. took a week to study the case file, McLarnon's Internet articles and the Appeals Court ruling. Then the judge denied her request to renew the order.

In his decision, Judge Donnelly wrote that McLarnon's Internet writings "…do not contain threats and cannot be reasonably construed to place the plaintiff 'in fear of imminent serious physical harm,'" and said that the articles are an exercise of free speech.

The judge also said that McLarnon has had no contact with his ex-wife outside of court since 1994 and that the original restraining order request did not allege an act of violence, but a dispute over how to discipline their son.

Atty. Hession explained, "Justice in these matters is, unfortunately, still dependant on the persistence and preparation of the defendant, rather than on the truth of the evidence presented or the commitment of the judge to justice. At least the tide of injustice seems to be ebbing a little bit. Let us hope that the rule of law will be re-established, and with it, genuine due process."

The name of the Appeals Court case was Jones v. Gallagher, which was decided on May 29.

For more details about Zed McLarnon's story, see:
http://www.massnews.com/2002_editions/06_June/061702_mn_zed.shtml