Denying choice of forum: an interference by the Massachusetts trial court with domestic violence victims' rights and safety.

• Author: Drew, Margaret B.

1. Introduction

   Petitions for protection from domestic abuse, often referred to as civil protection or restraining orders, are governed by Massachusetts General Laws Chapter 209A, also called the Abuse Prevention Act (APA or Chapter 209A). (1) With the passing of the APA in 1978, Massachusetts was among the first states to respond to judicial intolerance of domestic violence claims. (2) Massachusetts has since been at the forefront of many civil protections for domestic violence victims, including the provision of a timely, same-day hearing and other relief that eases the burden on petitioners in need of immediate remedies. The APA was designed to give domestic violence victims an effective legal remedy and to protect victims from future incidents of abuse through simplified and accessible judicial procedures for obtaining civil protection orders. (3)

   The APA has been a successful vehicle for those experiencing abuse; approximately 40,000 victims of domestic violence seek civil protection orders to end violence against themselves and their children in Massachusetts each year. (4) In fiscal year 2009, 23,738 abuse victims filed protective order petitions in the District Court, (5) 4318 petitions for protective orders were filed in the Probate and Family Court, (6) and 3572 petitions were filed in the Boston Municipal Court. (7) These statistics confirm that Massachusetts courts have excelled in holding speedy hearings and providing immediate protection for thousands of victims of abuse.

   Despite the success of the APA, recent statistics indicate that the number of domestic violence deaths in Massachusetts is rising: domestic violence-related deaths were nearly three times higher in 2007 than in 2005, totaling fifty-five homicides and suicides. (8) In addition, Jane Doe, Inc. reports that there were thirty domestic violence-related deaths between January and September of 2008 alone. (9) This disturbing statistical trend highlights the continued need for sufficient and appropriate statutory remedies to ensure that the courts provide all possible and necessary relief to keep victims free and independent from abusive partners. With the combination of thoughtfully crafted remedies under Chapter 209A and progressive police practices such as on-site identification of the primary aggressor, (10) Massachusetts survivors of domestic abuse benefit from some of the most comprehensive protections in the country.

   Under the APA, victims can file for civil protection orders and have their cases heard and decided in any superior, Boston municipal, district, or probate and family court division of the Massachusetts Trial Court having jurisdiction over the petitioner's residence. (11) The history of the jurisdiction and venue provisions of the statute reflects a thoughtful and effective process crafted by the Massachusetts Legislature. For more than three decades, victims and their advocates have been free to choose in which trial court departments to file civil protection order petitions, regardless of whether other domestic relations issues were simultaneously pending in a division of the Probate and Family Court. (12) However, on May 4, 2009, the Chief Justice of Administration and Management of the Massachusetts Trial Court launched a pilot program in the Norfolk Division of the Probate and Family Court Department through an Administrative Order entitled, in pertinent part, "for the Interdepartmental Transfer of Certain Abuse Prevention Proceedings." (13) This pilot program authorizes a judge of the Norfolk Division of the Probate and Family Court to initiate interdepartmental transfers of civil protection order petitions pending in other court departments where the parties have related domestic relations matters pending in the Probate and Family Court. (14)

   This article discusses how the pilot program interferes with the rights and safety of domestic violence victims in Massachusetts, in hopes that the Trial Court will voluntarily discontinue the pilot program and return to the statutory scheme contemplated by the legislature and clarified through the long-standing Guidelines for Judicial Practice. First, this article outlines the background and legislative history of Chapter 209A's venue and jurisdictional provisions, which illuminate the proper meaning and interpretation of its provisions. Second, it argues that the provisions of the pilot program directly contradict the purpose of Chapter 209A, and indeed, rewrite statutory language, permitting unconstitutional "back door" legislation by the judicial administration. Finally, this article argues that, by denying domestic violence victims an important choice of forum when seeking protection orders from Massachusetts courts, the pilot program may put their safety at greater risk.

2. THE LEGISLATIVE HISTORY OF CHAPTER 209A

   Prior to the drafting of the APA in 1978, the judicial process in Massachusetts was effectively unavailable as a remedy to victims of domestic violence because of the slow speed and high cost of judicial remedies. (15) Before 1978, abused family members, particularly abused women,16 were forced to rely on largely unresponsive law enforcement and slow, inadequate criminal law remedies. If criminal remedies were pursued at all, they failed to protect victims from continued threats and abuse during the pendency of criminal complaints. (17) Similarly, civil remedies were only available as part of already commenced divorce or support actions. (18) While it is evident that significant progress has been made regarding the attitude of law enforcement and the courts towards claims of domestic violence, prior to the 1980s, victims seeking legal remedies often faced courts overtly hostile to their claims. (19) Judges, and indeed society at large, tended to disbelieve claims of domestic violence as fabrications, inclined to the view that courts should not intervene in marriages and other intimate relationships. (20)

   What made Chapter 209A truly progressive legislation was that it was drafted in response to these problems, and creatively established effective, preventative remedies for abuse victims and their children. (21) The act was originally authored by the Battered Women's Action Committee (BWAC), a grass roots activist organization working with battered women during a time when domestic abuse victims were largely ignored by courts and law enforcement officials. (22) The APA was subsequently amended to reflect stylistic differences and to correct identified problems. (23) The material provisions of the law, however, remain substantively unchanged from the original version. (24)

   The legal remedy created by the APA is a civil protection order, also referred to as a "209A order." (25) Under Chapter 209A, a temporary order can be obtained ex parte on the same day that a petitioner files a complaint. That emergency, or ex parte, order generally remains in effect for an initial ten business days. (26) At the ex parte hearing, a judge reviews the complaint and the victim's supporting affidavit to determine whether there is a "substantial likelihood of immediate danger of abuse." (27) The respondent is then served and, within ten days of the ex parte hearing, a full hearing is held, at which the defendant is given the opportunity to defend against the petitioner's claims. After the full hearing, the judge determines whether to extend the protection order for up to one year. (28) At the expiration of the extended time, the petitioner has the opportunity to renew the order and may ask the court to issue a permanent order. (29) Although the protection order is in the nature of a civil proceeding, a violation of the order is a criminal offense and can carry a jail sentence and fine. (30)

   The primary goal of Chapter 209A was to enhance existing legal remedies, such as child support and assault and battery complaints, and to provide victims with an accessible means of stopping the violence without resort to the more onerous criminal process or the protracted and often unwanted civil remedies, such as divorce. (31) The original intent of the APA's drafters was to create "a very simple law that attempts to address the immediate needs of battered women" by providing them with "easy access ... to the courts, relief in the form of immediate restraining orders, and orders that are enforceable by the police." (32)

   1. Structure of the Trial Court of the Commonwealth of Massachusetts

      Also in 1978, the Massachusetts Legislature passed the Court Reorganization Act (CRA), (33) which consolidated the several independent courts, including the then-separate district, probate, and superior courts, into a single department, the Trial Court of the Commonwealth. (34) Post-1978, the Massachusetts Trial Court consists of seven court departments: Superior Court, Housing Court, Land Court, Probate and Family Court, Boston Municipal Court, Juvenile Court, and District Court. (35) Under the CRA, each court department was given equal standing with other court departments, and each judge was made an associate judge of the Trial Court appointed to a particular division. (36) The Trial Court departments were consolidated administratively, and a centralized administrative office was created for the Chief Justice of Administration and Management. (37) The Chief Justice of Administration and Management appoints a Chief Justice to head each Trial Court department for five-year terms. (38)

      Subsequent statutes and amendments provide each Trial Court department with exclusive and concurrent jurisdiction within particular areas. For instance, the Probate and Family Court has superior and general jurisdiction over domestic relations matters, including divorce, child custody, and support.39 Similarly, the Superior Court has original jurisdiction over many crimes and most civil actions in law and equity. (40) Finally, the District and Boston Municipal Courts have concurrent jurisdiction with the Superior...