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Panel orders lower court to enforce protective order

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Highlighting a bias in state statute relating to protective orders, the Indiana Court of Appeals has held that an accuser’s request for a civil contempt hearing against someone alleged to have violated a protective order can’t be tied to any other criminal or civil proceedings under way or available in the future.

The three-judge appellate decision came today in S.W. by P.W. v. B.K., No. 71A03-1012-PO-655, which comes from St. Joseph Superior Judge Roland Chamblee and Magistrate Brian Steinke.

This case involves a developmentally disabled adult named S.W. who shares an apartment with another developmentally disabled woman as part of a semi-independent living program. P.W., the woman’s sister, obtained a protective order following September 2010 incidents in which B.K. came to the apartment late at night and pounded on the door, trying to enter and yelling for S.W. to come to the door. The South Bend Police Department responded. The ex parte protective order prohibited B.K. from stalking, harassing, annoying, contacting, or visiting the residence. B.K. apparently disregarded the order and returned to the apartment at least twice in November and displayed similar behavior.

P.W. filed a petition for B.K. to appear for a hearing to show cause why he shouldn’t be held in contempt for violating the protective order, and with that petition P.W. filed affidavits supporting the request and also asked for attorney fees. The trial court denied her petition the same day without a hearing, stating that the protective order violations were criminal matters that should be handled by the prosecutor’s office. She filed a motion to correct error and the trial court denied that motion on the same grounds.

On appeal, the appellate panel addressed S.W.’s claim that her due-process rights were violated by the trial court’s refusal to hold a hearing on the alleged indirect civil contempt accusation. The panel explored Indiana Code 34-47-3-5 that lists an array of notice requirements for the accused and how that person must be served with the court order he or she is accused of violating and the specific facts outlined in the accusation.

“Interestingly, the indirect civil contempt statute addresses due process issues, but only in terms of preserving the due process rights of the person accused of contempt,” Judge Terry Crone wrote for the panel that included Judge Edward Najam and Chief Judge Margret Robb. “Absent from the statute is any express language indicating that the accuser is entitled to a hearing.”

The judges agreed with S.W’s citation of I.C. 34-47-5-6 that says in part, “an order for protection is in addition to, and not instead of, another available civil or criminal proceeding… A petitioner is not barred from seeking an order (of protection) because of another pending proceeding.”

“We do not find any parallel provision in the contempt statute, but find the statute instructive,” the court wrote in its footnote, expanding on what it wrote in the opinion itself. “The record does not indicate the specifics of any criminal proceedings against (B.K.) or whether they are still pending, and we do not believe that the decision to grant or deny a civil contempt petition should be based on such collateral matters. Instead, the petition should be valued independently, without reference to other proceedings that may or may not otherwise protect the person for whose safety the original protective order was issued.”

The judges also determined S.W. should be reimbursed her $250 appellate filing fee because this appeal is based on the trial court’s refusal to enforce the protective order against B.K. and that’s what is being reversed and remanded here.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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