New Jersey Judges Told: Issue the Restraining Order or Else

Trenton, NJ–As I explained in my recent co-authored column Restraining Orders Can Be Straitjackets On Justice (Newark Star-Ledger, 7/28/08), there is a controversy over a recent New Jersey court ruling which raises the evidence standard needed to obtain a domestic violence restraining order. Evidence shows that the orders are often applied for to get an advantage in custody litigation, and that many of the domestic violence claims made to get the orders are fraudulent.

The current controversy brings to mind an amazing article in the New Jersey Law Journal in 1995 which accurately reflects the mentality which is sometimes behind the issuance of these restraining orders. The article “New Jersey Judges Told to Ignore Rights in Abuse TROs” (4/24/95) details a judges’ training session given by the Administrative Office of the Courts. The article is excerpted below–after that, see the kicker:

On Friday, at a training session at the Hughes Justice Complex in Trenton, novitiate municipal judges were given the “scared straight” version of dealing with requests for temporary restraining orders in domestic violence cases. The recommendation: Issue the order, or else.

Failing to issue temporary restraining orders in domestic violence cases, the judges are told, will turn them into fodder for headlines.

They’re also instructed not to worry about the constitution.

The state law carries a strong presumption in favor of granting emergency TROs for alleged domestic violence victims, the new judges were told at the seminar run by the Administrative Office of the Courts. Public sentiment, mostly due to the O.J. Simpson case, runs even stronger.

The judges’ training is rife with hyperbole apparently designed to shock the newcomers. It sets down a rigid procedure, one that the trainers say is the judges’ only choice under a tough 1991 domestic violence law and its decade-old predecessor. Since the Legislature has made domestic violence a top priority, municipal court judges are instructed that they can do their part by issuing temporary restraining orders pronto.

“Throw him out on the street,” said trainer and municipal court judge Richard Russell at a similar seminar a year ago, ‘give him the clothes on his back, and tell him, ‘See ya’ around.'”

This napalm approach to implementing the domestic violence statute has some state judges talking. No one disputes the presumption in the law of granting a TRO, and there have been no serious court challenges to the statute’s ex parte provisions.

The strident teaching, however, doesn’t always sit well with some judges, even those who characterize the instruction as deliberate verbal flares directed at a worthy goal.

“[It’s] one of the most inflammatory things I have ever heard,” says one municipal court judge, who asked not to be identified, about a presentation held last year. “We’re supposed to have the courage to make the right decisions, not do what is ‘safe.”‘

At the same time, even former and current municipal and Superior Court judges who are critical of the seminar have words of admiration for the candor of trainers Russell, Somerset County Superior Court Judge Graham Ross and Nancy Kessler, chief of juvenile and family services for the AOC. One municipal court judge says that while the statements reflect an incorrect approach, “I wouldn’t be real keen to inhibit the trainers at these sessions from exhibiting their honest opinions.”

For their part, Russell and Kessler say they are doing what the law says they should do — protecting victims, which in turn can save lives. Ross didn’t return telephone calls about the training. He, Russell and Kessler were scheduled to conduct Friday’s program for new judges, a program Kessler says the trio has conducted for judges at least five times since the law was passed.

The law, N.J.S.A. 2C:25-17 et seq., requires judges to be trained on the issue of domestic violence, a requirement that women’s rights advocates say is unique. The TRO provisions also were reemphasized three years ago, encouraging the use of such orders after a municipal court judge hears from one complainant.

The kicker? Judge Richard¬†“Throw him out on the street [and don’t worry about the constitution]”¬†Russell apparently still serves on the New Jersey Supreme Court’s State Domestic Violence Working Group, the Executive Committee of the State Bar’s Family Law Section, and the New Jersey Supreme Court’s Family Practice Committee. He currently is the chair of the court’s Child Support Subcommittee.

Thanks to Richard Smaglick of for the information.

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