ILNews

Court affirms protective order without evidentiary hearing

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A Shelby County man’s protective order against a neighbor is valid even though the trial court didn’t hold an evidentiary hearing or honor the neighbor’s request for a continuance, the Court of Appeals ruled Tuesday.

The court held that the nature of claims in Ray Evans v. Eric L. Thomas, 73A04-1112-PO-670, were sufficient to warrant quick action by the court. Thomas claimed that disputes with Evans, with whom he shared a driveway, had escalated to violence and that he feared for his safety.

Thomas went to Shelby Superior Court in December 2011 and asked for a protective order against Evans, alleging among other things that Evans punched him a month earlier, had pulled a gun on him in 2005, had shot and killed the family cat at some point, and had threatened and stalked his family.

The court set a hearing on the protective order for Dec. 20, 2011, and Evans was served notice on Dec. 15. On Dec. 19, Evans moved for a continuance on the basis that he would be unable to retain counsel by the hearing date.

The court denied the request for continuance and noted that requests for protective orders are to be handled promptly. Evans told the court he did not object to the issuance of the P.O., which would have required him to surrender his firearms to the sheriff’s department.

The appeals court noted that the trial court assured Evans that if he wished to file petition to modify after retaining counsel, the court would consider it.

“We conclude with little hesitation that the seriousness of the allegations in Thomas’s petition warranted the swiftest of judicial action,” Judge Cale Bradford wrote for the unanimous panel. “Further delay might have put Thomas at risk. Evans has not established an abuse of discretion in this regard.”

The court also disagreed with Evans’ contention that a full evidentiary hearing is required for issuance of a P.O.

Evans also was unsuccessful in arguing that he had insufficient time to obtain counsel or that he didn’t understand the proceedings in which he said he did not object to the P.O.

“Evans does not explain how either of these things, even if true, denied him notice, the opportunity to be heard, or the opportunity to confront witnesses. Evans has not established that his rights to due process and due course of law were infringed,” Bradford wrote.


 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

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