Neither indigent plaintiffs seeking domestic violence restraining orders nor indigent defendants opposing such orders are entitled to legal representation at taxpayer expense, a state appeals court held Thursday in a precedential decision.
The kinds of relief available to domestic violence victims do “not result in a ‘consequence of sufficient magnitude’ to warrant the mandatory appointment of counsel,” the Appellate Division ruled in D.N. v. K.M/K.M. v. D.N., A-3021-11 and A-3022-11.
New Jersey’s Prevention of Domestic Violence Act does not impose incarceration and is essentially remedial in nature, empowering courts to restrain contact with victims, modify parenting time, restrict the right to buy or carry a gun, bar use of a particular residence, mandate counseling and impose civil fines of up to $500, the panel said.
The court took note that a right to appointed counsel has been recognized in some types of civil proceedings, for example, proceedings to classify sex offenders under Megan’s Law, to terminate parental rights and to hold nonpaying child support obligors in contempt.
But because the PDVA is designed to protect victims from future violence, it “does not pit the power of the State against the defendant,” wrote Judge Marie Lihotz, joined by Judges Mitchel Ostrer and John Kennedy. “Rather, a putative victim of domestic violence presents evidence to the court and seeks available relief, not unlike many other remedial statutes designed to protect a specific class of plaintiffs from the wrongful conduct of another.”
In contrast to other remedial laws, domestic violence orders require a finding that the defendant committed a predicate criminal offense, such as assault, harassment, stalking, kidnapping or homicide, but the curative nature of the law still governs, Lihotz said.
With regard to counsel for domestic violence plaintiffs, the court said the Legislature “did not intend to invoke the power of the State to prosecute civil requests for restraining orders.”
The ruling arose from a pair of consolidated cases brought by the same woman, D.N., whose request for a final restraining order against her former lover, K.M., was denied, while K.M. succeeded in obtaining one against her.
The couple had a teenage child and had lived together in Evesham Township but were ending their relationship when the domestic violence occurred.
A consent order they signed on Oct. 25, 2011, gave them joint legal custody and provided the child was to live primarily with K.M. and K.M. would stay in the house, which he owned.
K.M. went to court first, on Dec. 7, 2011, seeking a temporary restraining order over alleged acts of assault and harassment by D.N. He claimed she showed up at his house, despite the consent order giving him exclusive possession, and when he spotted her peeking in the window and asked her to leave, she punched him and smacked him in the face.
D.N.’s complaint, filed Dec. 8, concerned an incident two days earlier. She claimed K.M. followed her into a Wal-Mart parking lot and while they were arguing, she stepped onto the running board of his truck, and he began pulling away while she was still on it. She claimed she was hurt when the side mirror struck her and she fell off but did not describe the injury or say she needed medical care.
K.M. denied D.N. was injured, asserting she stepped off as he began to pull away slowly.
Both received temporary restraining orders from separate judges but the hearings on the final restraining orders were scheduled together, before Superior Court Judge Marie White Bell in Burlington County’s Family Part. K.M. had a lawyer and D.N. appeared pro se.
Bell granted K.M. a final restraining order, finding harassment by D.N. and a need to protect him from future abuse based on the couple’s past history of domestic violence, but found insufficient evidence on D.N.’s complaint and dismissed it.
D.N.’s appeal challenged those findings. She also raised the right to appointed counsel issue and contended Bell erred in finding she waived the right to an attorney at the hearing.
The Appellate Division upheld Bell, saying D.N. failed to prove she was assaulted or injured and the record supported Bell’s determination that K.M. needed protection.
The panel also rejected the waiver argument, finding D.N. “understood her right to employ counsel, which she clearly and intentionally relinquished.” Bell asked D.N. if she wanted a lawyer, explained the consequences of a final restraining order, and told D.N. she could have an adjournment to obtain legal advice but D.N. declined. “That her confidence was ill-founded is not a basis to conclude the court erred,” wrote Lihotz.
K.M.’s lawyer, D. Ryan Nussey of Klineburger & Nussey in Haddonfield, calls the decision an expansion of Crespo v. Crespo, 201 N.J. 207 (2010), which upheld the constitutionality of the PDVA, despite the preponderance burden of proof, lack of a jury and impact on gun rights.
D.N.’s lawyer, Ronald Lieberman of Adinolfi & Lieberman in Haddonfield, says that she might have bolstered her case by subpoenaing Wal-Mart for a surveillance tape, something she did not know she could do, or how to do it.