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Restraining
Order Case Law Precedents |
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Trial
court's refusal to allow defendant
to call witnesses and cross-examine
witnesses during hearing on question
of continuing temporary abuse prevention
order violated defendant's constitutional
rights of due process and statutory
right to be heard.
U.S.C.A. Const.Amend. 14;
M.G.L.A. c. 209A, § 4. C.O.
v. M.M. 442 Mass. 648 (Oct.
2004)
A defendant has a general right to
cross-examine witnesses against him.
C.O. v. M.M. 442 Mass. 648 (Oct.
2004)
Due process requires that the defendant
be given an opportunity to testify
and present evidence.
U.S.C.A. Const.Amend. 14.
C.O.
v. M.M. 442 Mass. 648 (Oct.
2004)
While a defendant's right to present
evidence is not absolute, and while
a judge may limit cross-examination
for good cause in certain situations,
judicial discretion in limiting cross-examination
is not unlimited, and each side must
be given a meaningful opportunity
to challenge each other's evidence.
C.O.
v. M.M. 442 Mass. 648 (Oct.
2004)
Although abuse prevention order proceedings
were intended by the Legislature to
be as expeditious and informal as
reasonably possible, the proceedings
may not violate the due process rights
of defendants in an attempt to accommodate
plaintiffs.
U.S.C.A. Const.Amend. 14;
M.G.L.A. c. 209A, § 1 et seq.
C.O. v.
M.M. 442 Mass. 648 (Oct. 2004)
A
plaintiff seeking an initial domestic
abuse prevention order on the basis
of abuse must show that he or she
is currently in fear of imminent serious
physical harm, as well as that the
fear is reasonable.
M.G.L.A. c. 209A, § 1(b).
Iamele
v. Asselin 444 Mass. 734
Initial
domestic abuse prevention order expires
unless extended after a judicial determination,
essentially, a new finding, that the
plaintiff continues to require protection
from abuse.
M.G.L.A. c. 209A, § 1
Iamele
v. Asselin 444 Mass. 734
.
When
a person seeks to prove abuse by "fear
of imminent serious physical harm,"
our cases have required in addition
that the fear be reasonable. See
Commonwealth v. Gordon, 407 Mass.
340, 349-350, 553 N.E.2d 915 (1990)
Iamele v. Asselin 444
Mass. 734
A
plaintiff seeking an initial order
on the basis of abuse as defined in
§ 1 (b ) must show that he or
she is currently in fear of imminent
serious physical harm, see
Dollan v. Dollan, 55 Mass.App.Ct.
905, 906, 771 N.E.2d 825 (2002),
as well as that the fear is reasonable.
Iamele
v. Asselin 444 Mass. 734
Due Process is a requirement
of the U.S. Constitution. Violation
of the United States Constitution
by a judge deprives that person
from acting as a judge under the
law. He/She is acting as a private
person, and not in the capacity
of being a judge (and, therefore,
has no jurisdiction).
The state Supreme Courts have
held that those who aid, abet, advise,
act upon and execute the order of
a judge who acts without jurisdiction
are equally guilty. They are equally
guilty of a crime against the U.S.
Government.
A voidable order is an order
that must be declared void by a
judge to be void; a void order is
an order issued without jurisdiction
by a judge and is void ab initio
and does not have to be declared
void by a judge to be void. Only
an inspection of the record of the
case showing that the judge was
without jurisdiction or violated
a
person's due process rights,
or where fraud was involved in the
attempted procurement of jurisdiction,
is sufficient for an order to be
void. Potenz Corp. v. Petrozzini,
170 Ill. App. 3d 617, 525 N.E.
2d 173, 175 (1988). In instances
herein, the law has stated that
the
orders are void ab initio
and not voidable because they are
already void.
Note that I keep
referring to Void Judgment. Its
a powerful tool. It is any judgment
that was made where the court lacked
jurisdiction OR was induced by fraud
OR it violated due process. It is
not necessary to prove all three
components - any one of the three
creates a Void Judgment.
A void judgment which includes
judgment entered by a court which
lacks jurisdiction over the parties
or the subject matter, or lacks
inherent power to enter the particular
judgment, or an order procured by
fraud, can be attacked at any time,
in any court, either directly or
collaterally, provided that the
party is properly before the court.
See Long v. Shorebank Development
Corp., 182 F.3d 548 (C.A. 7 Ill.
1999) Void judgment is one where
court lacked personal or subject
matter jurisdiction or entry of
order violated due process, U.S.C.A.
Const. Amend. 5-Triad Energy Corp.
v. McNell, 110 F.R.D. 382 (S.D.N.Y.
1986).
A Void Judgment may be "attacked
in any court at any time",
and thus may be used to overcome
"timely response" and/or
"timely filing. Thus it has
no statute of limitations, and may
be asserted at the local level ...
on up.
A court lacks
jurisdiction anytime it denies
you the Bill of Rights or amendments,
particularly Due Process.
I.e. most M209A's are invalid
by denial of Due Process evidentiary
hearings.
VOIDNESS is
a very powerful tool, and certainly
makes any judgment attackable
when Due Process is denied, property
taken, no cross exam of
witnesses/accusers permitted.
etc.
The
rational/explanation of
"LACK OF JURISDICTION "
thus a VOID judgment is
further described in a Supreme
Court case referenced
in Bass:
Since
the Sixth Amendment constitutionally
entitles one charged with crime
to the assistance of counsel,
compliance with this constitutional
mandate is an essential jurisdictional
prerequisite to a federal court's
authority to deprive an accused
of his life or liberty. When
this
*468
right is properly waived,
the assistance of counsel is
no longer a necessary element
of the court's jurisdiction
to proceed to conviction and
sentence. If the accused, however,
is not represented by counsel
and has not competently and
intelligently waived his constitutional
right, the Sixth Amendment stands
as a jurisdictional bar to a
valid conviction and sentence
depriving him of his life or
his liberty.
A
court's jurisdiction at the
hearing of trial may be lost
'in the course of the proceedings'
due to failure to complete the
court--as the Sixth Amendment
requires--by providing counsel
for an accused who is unable
to obtain counsel, who has not
intelligently waived this constitutional
guaranty, and whose life or
liberty is at stake.
[FN22] If this requirement
of the Sixth Amendment is not
complied with, the court no
longer has jurisdiction
**1025
to proceed. The judgment
of conviction pronounced by
a court without jurisdiction
is void, and one imprisoned
thereunder may obtain release
by habeas corpus. Johnson
v. Zerbst
58 S.Ct. 1019
U.S. 1938.
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Let me
make a leap of faith then and suggest
the same principal applies to the Fifth
Amendment and Due Process. |
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I.e.
No 5'th Amendment DUE PROCESS
MEANS NO JURISDICTION
per the Supreme Court interpretation
of the Bill of RIghts. . |
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MORE: |
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A judgement is void if it not consistent
with Due Process of law. Orner v.
Shalala, 30 F.3d 1307, 1308 ( C.A.10
(Colo.),1994);
V.T.A., Inc. V. Airco, Inc.,
597 F.2d 220, 221 (1979). A judgment
reached without due process of law is
without
jurisdiction
and thus void. Bass v. Hoagland,
172 F. 2d 205, 209 (1949) |
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Any motion for relief from a void
judgment is timely regardless of when
it is filed. V.T.A., Inc. V. Airco,
Inc., supra @ 224 (footnote no.
9). If a judgment is void, it is a nullity
from the outset and any Civ. R. 60(B)
motion is therefore filed within a reasonable
time. Orner v. Shalala, supra
@ 1308. |
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If voidness of judgment
is found then relief from judgment is
not discretionary and
any order based upon that judgment
is also void. V.T.A., Inc. V. Airco,
Inc.,supra @ 221; Venable v.
Haislip, 721 F.2d 297, 298 (1983). |
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Sure, you have a couple of choices
to attack these orders, the appeals
court, the federal court, and the Superior
Court. Personally I am writing
a complaint for federal court at the
moment. I will file down here.
(Its my Christmas present for my EX!!.
LOL). I plan to have some federal marshals
serve it up. I think that adds
a touch of pizzazz to the ser |
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File in federal court or in Mass Superior
Court as a violation of state civil
rights and/or federal civil rights.
A Null judgment can be attacked in any
court at any time as I read it.
Note the Mass Civil rights laws are
supposed to be more liberal than the
federal laws - I believe no state
action is needed for a starter
and the interpretation is also looser. |
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INSTRUCTION ON FILING
AGAINST A VOI |
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File a motion for an evidentiary
hearing. You can ask for a review
anytime you desire you know per part
3 of 209A. Note your civil rights
and due process are being violated
as well as the right for an evidentiary
for due process. This sets you
up well for appeal or review by another
court. |
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I do not believe
you need to file an appeal to attack
the judgment as a nullity, but I would
file one anyhow. Appeals are
free to file and preserve rights.
I have read cases where Appeals Judges
say, "he never filed an appeal
so it must have been ok with him."
The lack of evidentiary
hearings is a time saver and the courts
do not have enough hours in the year
to hear all the RO's they renew.
This is why VA only has perhaps 1500
RO's a year which are likely well
needed. The rest of the false
garbage never gets approved initially
or renewed later.
The trick in Federal
court is the Fed wants to throw these
family court issues out and avoid
them. You have to use Catz approach
on the Due Process attack. Don't
ask for a change in the judgment,
just a declaratory judgment the process
used was invalid. Then any order
resulting by from that process is
NULL by definition.
As soon these
orders start getting trashed,
the courts will have to change their
approach. The legislature will
have to rethink its approach as will
the feministas. We note the
SJC has several times stated evidentiary
hearings should be permitted
and added to due process. The
lower courts ignore it because nothing
happens.
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