Green light to remove fraudulent restraining orders?

Green light to delete? Can the records of fraudulently obtained 209A Restraining Orders finally be expunged in Massachusetts?

209A order records last long and are relentless. Even an ex parte order that lasts only 10 days and is not renewed creates a record that will haunt the Defendant if there is ever another 209A case against them or in bail proceedings, just to name a few cases. Two recent decisions by Massachusetts courts may have paved the way for removing some of these records. These cases and their implications are discussed below.

In March 2006, the Massachusetts Court of Appeals ruled on a case that has been dragging on for four years, and the ruling shed light on an issue that has been dragging the minds of falsely accused 209A Defendants for much longer. : Does a District Court judge have the inherent power to remove a 209A Restraining Order from the state domestic violence registry when the order was obtained through fraud in Court. In short, perhaps surprising but very welcome: YES. The case was Probation Commissioner v. Adams, 65 Mass. App. Ct. 725 (2006).

The case started when a couple (for reference, Jones and Adams designated short pseudonyms will be used) obtained mutual 209A Restraining Orders from each other, which were then extended for a year. At some point during this time period, after Jones was charged with violations of Order 209A and criminal harassment in two different courts, Adams filed a motion to vacate Order 209A against her and erase all records of the order. Here followed the typical game of judicial ping pong. The judge granted the motion to vacate after finding that 19 statements made by Jones were false, but denied the motion to vacate. Adams filed a second motion to remove the now-vacated Order 209A, which was opposed by the Parole Commissioner (the office that maintains these records). The judge granted Adams’ motion to remove, but the Commissioner filed a motion to reconsider. The judge denied the Commissioner’s motion and the Commissioner appealed on the grounds that the judge had no authority to allow removal. The Commissioner argued that while the Legislature specifically authorized and directed the development and implementation of a system containing records of all emissions and violations of 209A orders in Massachusetts, there was no provision for data deletion because, according to the Commissioner , the purpose of the system was to preserve “complete information about a defendant.”

The Commissioner was right that Law 209A did not contain any provision that would allow the elimination of even incorrectly issued orders. While it’s no surprise and it’s no secret that 209A is a poorly drafted and overly broad law, unless the legislature specifically says that no expungements are allowed, this vagueness left a void and an opportunity for justices to enact. a good law. plus the bad for a change. This is exactly what the Court of Appeals decided to do by returning to the lower court justices the power that was never expressly taken away by Chapter 209A, but that the justices were shy about wielding in the 209A scenarios: the power to correct mistakes. judicial proceedings and to try to “ensure the full and effective administration of justice” when fraud has been found in court. In such cases, the Court of Appeals said, citing several previous cases, “the lack of legal authorization is irrelevant,” and that power “cannot be restricted or abolished by the legislature.”

In this case, repealing Order 209A against Adams is insufficient to protect the integrity of the courts and does not send an appropriate message to the public. Voiding the order leaves a record of the order in the system. Not only does this leave a permanent mark against Adams, it also leaves, in perpetuity, a record of a fraudulently obtained court order. Although labels such as “dismissed” or “closed” are found in the system logs, no applied explanation is provided as to why the order was dismissed or the case was closed. Many voided 209A orders are voided because the victim did not prosecute. Law enforcement officials will not be notified that the order was overturned because it was obtained through court fraud. Rather, they may assume that it was set aside due to the victim’s failure to prosecute or due to insufficient evidence. Perpetuation of fraud amounts to desecration of the court itself when law enforcement officials rely on inaccurate information produced by the court. Just as annulling the order is an insufficient remedy in those circumstances, sealing the order record is just as inadequate. When the records are sealed, they don’t disappear. While the sealed records are not available to the public, the raw data continues to be available to law enforcement officials (police, probation officers, and courts). Law enforcement officials would retain access to information that is inaccurate and misleading and was obtained through fraud in court. Therefore, sealing would not remedy the desecration of the court.

ID. at 731-732 (citations omitted).

Well done? Can we execute and request that all idle 209A orders be removed now? Not quite. First, the court made clear that only orders obtained through court fraud are subject to expungement. As an example of the type of orders that should NOT be expunged, the court cited the Vaccaro v. Vaccaro case, where a 209A order was voided because there was insufficient evidence to extend it, unlike an order initially obtained for fraud. 425 Mass 153 (1997). The court said that, in the case of an order simply overturned or a dismissal for lack of prosecution, but where there is no finding of fraud, there is “value” for law enforcement officials in withholding records of its emission.

Second, the court established a fairly severe definition of what it considers fraud, namely, “when it can be demonstrated, clearly and convincingly, that a party has consciously set in motion some excessive scheme calculated to interfere with the capacity of the judicial system to impartially judge a matter by unduly influencing the judge or by unjustly obstructing the presentation of the claim or defense of the opposing party “. Adams, at 729-730 (citations omitted).

Third, the court spoke about the timing for a removal motion, ruling that the 209A defendants “have an adequate opportunity to assert [the fraud] argument “in the hearings of 10 days and extension.” If the judge does not find fraud in court, the defendant will have no basis for a later motion to remove the order record from the system. Nothing in GL v. 209A, or in this opinion, requires a hearing on the defendant’s expungement motion. Furthermore, the standard of proof of ‘clear and convincing evidence’ required to prove a fraud in the judicial opinion will necessarily limit the number of cases in which expungement can even be considered as an appropriate remedy. ” ID. at 736-737.

Far from an open hatch, the Adams The case appears to offer a small gap in the door to eliminating certain 209A orders when backed by strong evidence of fraud and presented at the right time.

Less than six months after the Court of Appeals decided AdamsMuch closer to the daily reality of Orders 209A, Judge Gregory Flynn in the Waltham District Court issued a decision applying the new standards of Adams. The case was Chamberlain v. Khanlian, File no. 0651-RO-99 of the Waltham District Court. In this case, the Plaintiff did not appear for the 10-day hearing and Order 209A against the Defendant expired that day. Another 11 days after that, the Defendant filed a motion to expunge the record alleging fraud on behalf of the Plaintiff. Defendant supported his motion with several affidavits stating facts in support of the fraud. Plaintiff did not appear at the hearing on the removal motion, but the Parole Commissioner did appear and objected to removal in this case as well, although this time claiming that his sole purpose in opposing the motion was to make sure that the established rules Exit in Adams are followed.

“In light of the allegations made in the pertinent allegations, the factual basis presented by the attached affidavits, the fact that the petitioner did not appear to be heard on the allegations of fraud, the court is clearly convinced that the order of original restriction was granted solely on a series of fraudulent facts presented to the Court, “wrote Judge Flynn. “Consequently, in accordance with the standards established in Probation Commissioner v. Adams, the motion to delete was allowed. “

This being an “unprecedented” District Court case, its brief decision sheds no further light on Judge Flynn’s reasoning or justification. It is interesting to note, however, that apparently the time standards established in Adams by the Court of Appeals were not met here. In Adams, the Court of Appeals noted that the Respondent’s only opportunities to raise allegations of fraud would be at the 10-day hearing or any other extension hearing. Here the 10-day hearing came and went without a motion to delete. However, Judge Flynn still allowed the removal when the motion was filed 11 days later. It is also interesting to note that both defendants in the two cases discussed above were women, and both had career reasons for seeking expungement: one was a lawyer while the other was a licensed pharmacist.

If other judges will see Adams as Judge Flynn did, and whether dozens of falsely accused men in Massachusetts will be able to get relief from this change in the law, only time will tell.