Connecticut’s legal process for protecting victims of domestic violence has evolved to a point where one particular aspect of that process impermissibly violates the constitutional rights of the alleged offender. That specific step in the process involves administrative interviews of the parties in the Family Services Office after which the court employee/interviewer submits to the court a written opinion without any prior question or challenge, including, among other things, whether the matter is “low,” “medium,” or “high” risk. Because the alleged offender’s constitutional rights have often already been disregarded as an integral part of the statutory scheme, this added administrative step arguably exacerbates that constitutional violation to an extent that is questionable at best.
By now, it is well-known that a person who is under a “continuous threat of present physical violence” may apply to the Family Court for a temporary restraining order based on a sworn affidavit. If the court believes that immediate relief from abuse is warranted, an immediate TRO will issue ex parte without any prior notice to the offender. As an integral part of the statutory scheme, the court must hold a hearing not longer than 14 days from the date when that ex parte TRO was issued. This process reflects a deliberate and careful balancing of the urgent need to protect victims of domestic violence against the offender’s essential constitutional rights to receive notice of the claims and a reasonable opportunity to be heard. Thus, for the duration of the time (usually 14 days) when the ex parte TRO is in effect, the offender will be ordered to remain away from his or her residence and refrain from any form of abuse toward the victim. Unquestionably, that process disregards the offender’s valuable constitutional rights. But in the balance, the Legislature determined that this “price” must be paid when a family or household member’s physical safety is in jeopardy.
This statutory scheme has been in effect for many years and it has served its important intended purposes. Simultaneously, the Family Services Unit has implemented administrative procedures for addressing the high volume of domestic violence cases. But the evolution of those administrative procedures has now expanded to the point where a Family Services counselor will conduct abbreviated interviews before the court hearing date, after which that counselor will submit a written form to the court stating, among other things, an opinion on whether the matter is a “low,” “medium” or “high” risk without any prior opportunity for either party to question or challenge that evaluative opinion.
As previously noted, because the victim has previously submitted a written affidavit which remains on file and forms the basis for the ex parte TRO, when the court holds the 14-day hearing, the offender already faces the task of rebutting that affidavit and that court order. Now, however, because the Family Services Office will submit a written form to the court containing an evaluative statement of an opinion; and that written opinion is placed in the court file without any right of (either party, but more pertinently the offender) to challenge or test that opinion; it is clear that this administrative step exacerbates the existing violation of the offender’s constitutional rights to an extent that is questionable at best.
For any number of reasons, this question is not likely to become the focal point of an appellate challenge. Alternatively, if an aggrieved party does raise such a question on appeal, it is likely that it will be swept aside amid the prevailing sense that the Appellate and Supreme Court normally affords the trial court’s “evidentiary” rulings wide latitude. Or perhaps any such evidentiary “error” will be deemed harmless and this particular step in the administrative process will remain in effect.
We believe therefore that it is important to shine a light on this administrative process and ask first whether it is necessary. If so, to what extent should it be modified to protect the constitutional rights of the parties before the court receives any such untested, unchallenged written opinions or statements of administrative judicial employees.