Measure twice and cut once, they say, and this applies with restraining orders.

22 September 2023

Someone is harassing/abusing you and you want to seek some sort of order from a court, typically called by people a “restraining order.”  You head down to court without any advice from an attorney, because hey, who needs that, and fill out some documents the clerk hands you after asking you a few questions.  You wait a little bit and go in front of the judge and tell your story. Whether the judge rules in your favor or not, there is a hearing set within 10 days and the opposing party is to be notified of it so they can appear and oppose the matter.

We will explore two different scenarios from here.  The first is that you appear and the other party or his lawyer point out that the law you are suing is inappropriate for the circumstances, and the judge cannot issue an order (either issuing in in the first instance or continuing one already in place, depending on what happened at the first hearing).  In this scenario, the adversary prevails, no order is issued, and you are left with your head spinning and thinking “what just happened.”

In this scenario, it depends on the style and approach of the clerk, the judge, and to some extent, opposing counsel, in whether someone tells you what you’re supposed to do next, or if you listened clearly enough to discern enough to figure it out.  Whether they think they are supposed to give you the guidance, arguably legal advice, in the scenario is the question.  Whether the opposing counsel speaks in code or is forced not to by the judge, so he reluctantly tips you off.  If you learn or discern how you are supposed to continue, you do so (Not telling you.).  If not, as stated, you leave the courthouse somewhat bewildered.

In the second scenario, the same facts, but the difference is that judge issues the order and the adversary appeals it.  The case goes to the Massachusetts Appeals Court and it is reversed because you applied for your relief under the wrong statute.

What happened here?  What was the mistake, if any, that you made?  The clerk you initially spoke with decided for you (gave you legal advice, which they are not supposed to do) as to which law to apply under.  You didn’t realize this, of course, because you didn’t even know there was a question to answer.  To the clerk’s defense, most people walking into the clerk’s office don’t know there is an issue/question to address/answer like that, so they routinely decide for you to simply keep things moving.  Also, they are trained to assist people seeking “restraining orders” (more on that phrase later) so they are empowered by the (arguably biased) legal system to make that legal decision, essentially, for you.  (Most clerks/judges would say the clerks are empowered to do this the author imagines, which explores what the policy and customs of a legal system are supposed to be.)

The second scenario happened in the case of S.J. v. T.S. that highlights the differences between a restraining order and other laws and in that specific case more particularly, the definition of “residing together in the same household” of section one of chapter 209A of the Massachusetts General Laws.  103 Mass. App. Ct. 166, 168 (2023).  In S.J. v. T.S. the parties were college roommates, and after careful analysis by the appeals court, they determined that the parties did not have the “’family-like’ connection’” the statute requires for its legal application.

The legal effect in the second scenario is that the trial court’s order is vacated by the appeals court.  All that for nothing you may say.  Well, no, you enjoyed the relief of the order this whole time.  At this point, if you had been involved as the party in this second scenario and were involved by participating or at a minimum read the briefs and appeals court decision, the author surmises that it would be nearly impossible for you not to know what you should have done instead.  It simply would have had to come up at some time.

Now on using the phrase “restraining order,” one must understand it is a word of art, meaning it has a specific legal definition in Massachusetts.  At the same time, people use it as a common phrase, which for those that know the specific definition, continuously begs the question of how the phrase is being used every time it is.  (I am tortured by this, so I am retaliating.)

The author has decided not to reveal the law applicable under the fact pattern, in other words, the law you should have applied under to begin with, and the specific mistake the clerk made (on your behalf) for space reasons (and yes, to torture you somewhat).

The question is, wouldn’t it be nice to have legal advice to know what the answer here is, and maybe some other item you are missing?  And if you are defending against a restraining order (I am using this in the common sense) wouldn’t it be nice to know how to defend and possibly avoid being under an order that was flawed (for the reason outlined here or for some other reason) the whole time?  If so, the first step is to give the author a call.