United States: Trial Court Found To Have Denied Due Process Rights To Pro Se Litigant In Domestic Violence Matter

Last Updated: August 28 2015
Article by Robert A. Epstein

Law is never easy. Practicing law can be even less so. How about going it on your own without an attorney? Not everyone may know that a "pro se" litigant acting on his or her own behalf is expected to know all of the rules and law that apply to their given case. However, going through the process of litigation, let alone appearing in court and proceeding through a trial, can be overwhelming for even the most knowledgeable of self-represented litigants (not to mention some licensed attorneys).

What happens, then, in a case where the self-represented litigant is denied the ability to question a witness and present his case? That was the scenario in C.H. v. J.S., a newly unpublished (not precedential) decision from the Appellate Division where a final restraining order entered against a defendant in a domestic violence matter was vacated due to a lack of sufficient evidence and based on a finding that the "procedures employed at trial deprived defendant of fundamental due process."

The known facts are sparse. The plaintiff asked for a final restraining order based on her alleging that defendant (her former dating partner) engaged in criminal harassment by sending plaintiff a series of "six or seven ranting text messages" calling her names and suggesting that he intended to post private videos of her on the Internet. She further claimed that he had made such threats before, wanted to end the conduct and, when questioned by the trial judge during the final hearing, indicated that "once something goes on the Internet it doesn't come off the Internet."

The judge asked the defendant if he had any questions for the plaintiff, to which the defendant responded to the effect that he did not know. The judge then asked the defendant if he disputed having the alleged conversation with the plaintiff and sending the subject emails, to which defendant responded that he was hurt by the plaintiff breaking up with him a third time, said things he didn't mean, but that she knew he would never do such things to her. The judge then ended the hearing, deemed the defendant's response to his question an admission of harassment, and implemented the final restraining order.

Notably, while the trial judge was detailing on the record the provisions of the FRO, the defendant objected and indicated that he was unable to ask several questions that he had (to which the judge responded such questions could be posed after the Order was issued), and that he was unable to cross-examine the plaintiff as to her allegations and his defenses.

On appeal, the Appellate Division first concluded that there was insufficient evidence that the defendant had committed an act of criminal harassment and, more specifically, that he had a purpose to harass the plaintiff. It is at that point where the decision gets interesting, as the Appellate Division strongly concluded that the defendant was denied his fundamental due process rights by what transpired:

Even more important, we conclude defendant's fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires assurance of fundamental fairness during legal proceedings. U.S. Const. amend. XIV, § 1. This includes the opportunity to be heard and requires "procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . ." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).

It is clear from this hearing transcript defendant was not given the chance to meaningfully respond to plaintiff's allegations and was never permitted to present evidence, including witnesses or documents he believed supported his defense. Rather, the judge concluded the hearing when he understood defendant's response amounted to an admission that satisfied plaintiff's elements of proof.

We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such as requiring a party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to aid the trial process by initiating examination. However, we will not condone the relaxation in trial formalities that deprive due process.

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[M.D.F., supra, 207 N.J. at 481.]

Defendant was not afforded a "full and fair hearing," which must be provided before entry of something as serious as a final restraining order. The July 9, 2014 order must be vacated.

The Court's findings and conclusions as to due process were in the context of a domestic violence matter, but are not limited to that type of matter. While self-represented litigants are, thus, expected to know the law, rules and procedure that apply to their matter, this decision guides trial courts and practitioners to ensure that such procedures are properly followed and notions of due process maintained in all types of litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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