RESTRAINING ORDERS: THE SERIOUS TRUTH BEHIND THE LAW By Judge Herbert Dodell
Although domestic violence is an enormous issue for the courts and many of the forms and procedures for obtaining a restraining order in those instances are similar, this article deals only with civil harassment restraining orders.
Picture this: you’re working away at your job when a police officer suddenly appears at your cubical, hands you a piece of paper, and says, “You have 24 hours to turn over your firearms. If you don’t file notice with the court within 48 hours that you did so, you’re in contempt and can be sent to jail at the hearing.”
What in the world just happened?!
You were served with a Temporary Restraining Order (TRO)—and there is now nothing whatsoever you can do to get it off your public record.
This isn’t the “permanent record” your elementary-school teacher held over your head when you didn’t do your homework or got rambunctious in the hallway. This is CLETS, the California Law Enforcement Telecommunications System, and while it’s not available to the general public, the proceedings are. Once the record exists, a search can kick up a person’s information whenever they’re stopped for a traffic violation, fill out a loan application, or even apply for a new job. Equifax, Experian, and TransUnion routinely update the “public record” on all credit reports, which can affect your ability to get a security clearance, create a hassle for you when re-entering the country, or impact your credit report. Large company Human Resources departments often conduct a broad search of public records on potential employees, and a TRO entry can affect their analysis and perspective of the person. The court has labeled you a risk: unreliable, untrustworthy, and of generally questionable character.
Even if the record is modified to indicate that the order is no longer in effect or has expired, the original entry remains in the inactive files for five years. Even if the court ultimately finds the petition for the order never had any validity in the first place. Even if the person who filed the petition doesn’t bother to show up at the hearing at all!
The mark on your record remains.
This doesn’t sound like the kind of casual, laughable matter that TV shows, movies, and newscasters love to toss around, does it? It’s the harsh reality of California Code of Civil Procedure § 527.6, a well-meaning but poorly drafted law that affects tens of thousands of Californians every year.
As a Superior Court judge (pro tem), I’ve seen many hundreds of petitions for temporary and permanent “prior restraint” orders and have presided at numerous hearings. Believe me when I tell you that this type of court order is far more serious than you realize.
Here’s the truth about this life-saving—or life-hassling—law.
Two Sides to the Coin
Temporary Restraining Orders, commonly referred to as TROs, are granted by judges like me who sit alone in our chambers reading six-page petitions filed by somebody who isn’t happy with someone else.
In the most serious cases, the person who did the filing (the Petitioner), honestly fears for their safety or well being if something isn’t done to stop the other person, called the Respondent, from getting to them, stalking them, harassing them, threatening them, or making their life a living nightmare. Think batterers released from jail, obsessed or vengeful ex-partners, unrequited lovers, and other bullies of all manner, ilk, and size. These Petitioners are the ones for whom the law was truly written, and judges take their circumstances very, very seriously. We don’t want to not help someone in real danger or under real strain of harassment.
In the vast majority of cases, though, the Petitioner is simply annoyed, angry, or aggravated because another person is creating too much noise, crossing over their property line, making a move on their significant other (real or perceived), or in some other way just plain irritating them beyond their level of tolerance. They feel harassed.
Most of these cases should be part of a law suit filed in civil court, where the parties can work out their financial or territorial disagreements. In fact, if I had my way, filing a TRO petition for anything other than real threat of danger or unreasonable harassment would carry serious consequences for the Petitioner. Too many of them showed up on my bench as requests for an immediate TRO with a permanent-injunction hearing to be set two to three weeks later.
That hearing is where the real decision is made, but by then, the Respondent has already paid the consequences.
How Did It Come To This?
Like most laws, the Restraining Order statute was passed in response to a real need. In 1978, the number of people who felt threatened or deliberately harassed enough to call the police was growing at such alarming rates that law enforcement claimed it was overwhelmed. Something had to be done! So the Legislature passed § 527.6 of the California Code of Civil Procedure to protect people from harassment of all sorts: physical, verbal, telephonic, and written. Today, some thirty-six years later, the law has expanded to include harassment via fax, email, texting, and even posting on Facebook or Twitter.
Why? Because people have not grown kinder and gentler, as one of our recent presidents hoped. Rather, folks today feel more and more entitled, frustrated, and irate, and the Restraining Order (RO) offers them a nonviolent way to vent their spleen, exact revenge, or give them a sense that they’ve “done something” about whatever or whoever has been bothering them.
The law has, in effect, become a tool for impatient citizens seeking revenge.
Just the Facts, Ma’am
To get a permanent restraining order injunction, you have to show up at a hearing, present your evidence, and let the other person present evidence that contradicts yours. Think Judge Judy, with both sides telling their story, and someone like me deciding which party to believe. You’ll have to present “clear and convincing evidence of a credible threat of violence” demonstrated by “a course of conduct” that has “no legitimate purpose”: “a pattern of behavior composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.”
If you don’t, you won’t get that permanent injunction—at least not in my court when I was presiding over these cases. I expected real evidence and consequences. The law may say I have to accept hearsay evidence when making my decision, but it doesn’t say I had to give it any weight, so I gave it the weight it deserved. If I was going to issue a court order telling someone what they could not do or say, I expected you to persuade me that you weren’t just being inconvenienced; you really felt frightened or beleaguered.
To get a temporary restraining order, though, all you have to do is fill out a form claiming that you feel threatened. You don’t have to prove anything, offer a shred of evidence, or file a police report.
What’s more, you don’t even have to tell the other person you’ve filed against them until after it’s too late for them to do anything about it. In fact, in most instances, the Respondent doesn’t know what’s happened until just before the hearing.
It’s All about Filing out the Form
Three of the most important questions on the CH-100 can be answered simply by putting an “x” in a box and providing a brief explanation:
- Box 11: Immediate Orders, which asks the court to make the “prior restraint” order effective right now, even though the Respondent has had no chance to offer their own defense,
- Box 12: Request to Give Less than Five Days’ Notice, which asks the court to do an end-run around the Respondent’s right to be informed in time to prepare that defense, and
- Box 13: No Fee for Filing or Service, which allows the Petitioner to not pay to a) file the petition, usually a $430 fee, or b) have a sheriff or marshal serve the Respondent, usually a nominal fee.
Then it comes down to one of the Superior Court judges who preside over these cases to weigh the Petitioner’s concerns against the Respondent’s rights.
The Petitioner’s POV
If you’re the Petitioner, you want your court order, and you want it with little or no hassles. You’re being harassed. You’re scared, you feel spied on, your inbox is flooded, people you know are being hassled—you have reason to be upset, frightened, or concerned. You don’t have the patience or the money to file in civil court. Besides, what if something happens between now and when your case comes up? You need action now!
I have seen three types of Petitioners asking for an immediate, albeit temporary court order that will last until the injunction hearing:
- Frightened people who need real protection;
- People with nuisance or property issues who would be better off filing a civil suit, but are either too impatient for that route or just don’t want to pay the court and attorney fees; and
- Angry or clever people trying to abuse or exploit the law out of revenge or maliciousness.
If you are among the cases that involve real danger of harm to yourself or your loved ones or are actually being unreasonably harassed, you’ll probably receive that temporary order to ensure your safety until the hearing. Still, you’d be wise to bring legal counsel with you to court. While it may be easy to fill out the form, many things can go wrong when you have to face the Respondent in open court.
For one thing, the judge who presides over your hearing will likely not be the same one who granted the TRO. You’ll have to make your case again, from the beginning.
You’ll also need to be ready to answer the Respondent’s defenses and their counter claims against you if they file their own petition. That’s right; they’ll get to tell their side during the hearing, undoubtedly disputing everything you claim and possibly adding a few accusations of their own against you. You’ll need to be able to state your case plainly, calmly, and with as much solid evidence as you can muster. When I presided over restraining order hearings, I looked for facts and substantiated proof, not emotional claims and hearsay.
I suggest you have an attorney at your side to help you pull this off. When situations get tense and the pressure is on, human nature kicks in, and we all tend to make poor decisions or rash statements. No matter how legitimate your claim, your presentation at the hearing must be clear and compelling. Legal counsel will help keep all your ducks in a row.
The Respondent’s POV
But suppose you aren’t the one filing a claim. Suppose you’re the person against whom someone else holds a grudge. You’ve been served notice for a hearing, and now you have to respond. What do you do?
You cannot do anything about your record permanently being altered or the TRO showing up on CLETS or in the public record. You also cannot do anything to stop a judge from issuing a TRO, so the one levied against you might be the result of something as mundane as a neighbor complaining about how loudly you play basketball on your own property—an actual case, believe it or not, that came through the courts.
Obviously, this is where the law shows up as terribly unbalanced. Even though you now have to live with a mark on your record, the Petitioner who filed against you will pay no consequences should the judge deny the petition. At worst, they’ll have to endure a dressing down at the hearing, and possibly pay your attorney’s fees, if you had an attorney.
But you can have your day in court. You can make the most of your opportunity to defend yourself against the charges and prevent the TRO from becoming a permanent injunction. With the stakes so high, don’t have a fool for a client by trying to be your own lawyer; odds are the Petitioner will show up in court with legal counsel, ready to tear your story to shreds. Your civil rights and freedoms are at stake, so I strongly urge you to have someone at your side that knows this law inside and out and can vigorously protect your interests. If you prevail, you can request attorney fees, a simple and immediate process.
The Judge’s POV
When a TRO request crosses a judge’s desk, they have to take the statements seriously.
When I reviewed a petition, I weighed the Petitioner’s safety and welfare against the Respondent’s rights and constitutionally guaranteed freedoms, such as the right to free speech, one of the cornerstones of our society. If the allegations were true, not issuing a TRO could have put the Petitioner at serious physical, mental, or emotional risk. On the other hand, if the allegations were exaggerated or downright false, issuing that TRO would have needlessly and permanently impinged the Respondent’s rights and freedoms.
It’s a balancing act. Frankly, I think most TRO applications should be turned down unless they are clear on their face. But, too often, the decision is not clear. When it’s not, judges have no choice but to err on the side of the Petitioner’s safety, even if it means inflicting life-altering consequences on someone who may or may not be aware of what’s going on.
How can this be acceptable in America? Plainly, the law needs to be altered to make it more balanced.
Violating a Restraining Order
If the Respondent does whatever the order forbids them to do, the Petitioner can either have them arrested or ask they be cited with contempt of court. More often than not, the Petitioner calls the police and has the Respondent arrested. As a former Deputy District Attorney, I know the drill.
This is almost always an automatic arrest, not something the person can talk their way out of, because violating any court order is a criminal act. The arrest moves matters up a notch on the seriousness scale, because now the Respondent not only has to make bail to be released, they have to answer to the charges filed by either the City or District Attorney. They’ll either have to hire an attorney or rely on a Public Defender. If convicted, they may be sentenced to a stint in jail—and that criminal charge will also appear on CLETS and the public record.
From the Trench to the Bench
I’ve been on both sides of restraining order hearings. In fact, I’ve been on all three sides—as attorney for the Petitioner, as legal counsel for the Respondent, and as a Superior Court judge (pro tem) presiding over the case—so I understand all aspects:
- The vital need for the law and how to utilize it when necessary
- The benefits of filing a civil action to effect a more satisfactory result and avoid abusing the §527.6 statute
- How to defend oneself when someone does file a capricious, false, or malicious petition against you
I cannot state strongly enough that if someone is bothering you—or if someone is claiming you’re bothering them—don’t try to go it alone. Permanent restraining orders are seldom as trouble-free or simple as people like to think. When tempers flare, it’s easy for things to get out of hand, for accusations to fly, and for counter, and counter-counter claims to be filed.
The system is imperfect as its written, and until the Legislature passes new law, restraining orders can be a nightmare of their own making. For instance, suppose you’re already in jail when you get served with a TRO—what can you do? You need an attorney to represent you at the hearing. And if violation of a TRO is part of a criminal charge filed against you, you’ll definitely want legal counsel at your side. You must be aware of your Fifth Amendment rights to prevent you from inadvertently waiving them so the privilege is preserved in the criminal court trial.
Things can get very tricky whenever one person files any kind of suit or petition against another. Don’t let the system, or anyone else, bully you! Get expert help before you file that petition, before you file a response, and definitely before you go to court.
The reputation you save may be your own.
About Herbert Dodell
Herbert Dodell is a Superior Court judge (pro tem). During his five years assigned to Civil Harassment calendars throughout the courts in Southern California, he reviewed hundreds of TRO petitions and presided over numerous hearings. A member of the American Board of Trial Advocates, he is currently assigned to preside over unlawful detainer, small claims, and civil litigation cases. Judge Dodell also continues to hear restraining order cases. He will not appear in any court on any restraining order case that is scheduled in any courthouse where he presides over these types of cases. This is to avoid any perception of a conflict of interest.
He can be reached at (310) 824-1515 or firstname.lastname@example.org.
© 2014 Herbert Dodell
For more information about Temporary and Permanent Restraining Orders, go to https://restrainingorders.expert/index2.php/about-restraining-orders/
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