Green light to remove fraudulent restraining orders?
Green light to expunge? Can records of fraudulently obtained 209A restraining orders finally be expunged in Massachusetts?
Records for 209A orders last a long time and are unforgiving. 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 a bond proceeding, just to name a few cases. Two recent Massachusetts court decisions may have paved the way for some of these records to be removed. These cases and their implications are discussed below.
In March 2006, the Massachusetts Court of Appeals ruled on a case that has dragged on for four years, and the ruling shed light on an issue that has been haunting the minds of falsely accused 209A defendants for much longer. Time: Does a District Court judge have the inherent power to expunge a 209A Restraining Order from the state domestic violence registry when the order was obtained by fraud in the Court. In short, perhaps surprising but very welcome: YES. the case was Parole Commissioner v. Adam, 65 Mass. app. Court 725 (2006).
The case began when a couple (for reference, court-appointed pseudonyms Jones and Adams will be used) obtained mutual 209A restraining orders on each other, which were later extended for a year. Sometime during this 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 expunge all records of the order. Here followed the typical court ping pong game. The judge granted the motion to vacate after determining that 19 statements made by Jones were false, but denied the motion to dismiss. Adams filed a second motion to strike down the now rescinded Order 209A, which was opposed by the Parole Commissioner (the office that maintains these records). The judge granted Adams’ motion to expunge, 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 did not have the authority to allow cancellation. 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 on a Defendant.”
The Commissioner was correct that Law 209A did not contain any provision allowing the cancellation of even improperly issued orders. While it is no surprise or secret that Statute 209A is poorly drafted and overbroad legislation, unless the legislature specifically says no redactions are allowed, this vagueness left a loophole and an opportunity for judges to make good law. . besides bad, for a change. This is exactly what the Court of Appeals decided to do by returning to lower court judges the power that Chapter 209A never expressly took away from them, but that judges were shy about exercising in 209A settings: the power to correct miscarriages of justice. and to attempt 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 earlier cases, “the lack of legal authorization is irrelevant”, furthermore, such power “cannot be restricted or abolished by the legislature”.
In this case, vacating Order 209A v. Adams is insufficient to protect the integrity of the courts and does not send an adequate 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, but it also leaves, in perpetuity, a record of a fraudulently obtained court order. Although labels such as “dismissed” or “closed” are applied to records in the system, no explanation is provided as to why the order was dismissed or the case closed. Many voided 209A orders are voided because the victim did not prosecute. Law enforcement officials will not be notified that the order was vacated because it was obtained by fraud in court. Rather, they may assume that it was overturned due to the victim’s failure to prosecute or due to insufficient evidence. The perpetuation of fraud amounts to a desecration of the court itself when law enforcement officials rely on inaccurate information produced by the court. Just as vacating the warrant is an insufficient remedy in those circumstances, sealing the record of the warrant is equally inadequate. When the records are sealed, they don’t disappear. While sealed records are no longer available to the public, raw data is still 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 court fraud. Therefore, sealing would not remedy the court filing.
ID. at 731-732 (citations omitted).
Happiness? Can we run and request that all voided 209A orders now be removed? Not quite. First, the court made it clear that only orders obtained by fraud in court are subject to cancellation. As an example of the type of orders that should NOT be expunged, the court cited the Vaccaro v. Vaccaro case, in which a 209A order was vacated because there was insufficient evidence to extend it, unlike an order initially obtained through fraud. 425 Mass 153 (1997). The court said that, in the case of a merely quashed order or a dismissal for failure to prosecute, but where no fraud is found, there is “value” for law enforcement officials in withholding records of its issuance.
Second, the court established a fairly strict definition of what it considers to be fraud, namely “when it can be shown, clearly and convincinglythat one of the parties has knowingly set in motion some unconscionable scheme calculated to interfere with the ability of the judicial system to impartially adjudicate a matter by improperly influencing the adjudicator or unfairly impeding the presentation of the claim or the defense of the opposing party.” Adamat 729-730 (citations omitted).
Third, the court addressed the timing of filing a motion to expungement, ruling that Defendants 209A “have adequate opportunity to assert [the fraud] argument” at the 10-day and extension hearings. “If the judge fails to make a finding of fraud in court, the defendant will have no basis for a subsequent motion to remove the record of the order from the system. Nothing in GL c. 209A, or in this opinion, requires a hearing on the defendant’s motion to expunge. Furthermore, the standard of proof of ‘clear and convincing evidence’ required to prove a fraud in the judicial decision will necessarily limit the number of instances in which expungement can even be considered an appropriate remedy.” ID. at 736-737.
Far from an open gate, the Adam The case appears to offer a small crack in the door to remove certain 209A warrants when backed by strong evidence of fraud and presented at the right time.
Less than six months after the Court of Appeals ruled AdamMuch closer to the everyday reality of the 209A Orders, Judge Gregory Flynn in the Waltham District Court issued a decision applying the new standards of Adam. the case was chamberlain v. khanlian, Waltham District Court File No. 0651-RO-99. In this case, the Plaintiff did not appear for the 10-day hearing and Order 209A against the Defendant expired on 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 setting forth facts supporting fraud. Plaintiff did not appear at the hearing on the expungement motion, but the Parole Commissioner did appear and oppose expungement in this case as well, although this time claiming that his sole purpose in opposing the motion was to ensure that established standards were met. go out in Adam are followed.
“In light of the allegations made in the relevant pleadings, the factual support presented by the attached affidavits, the petitioner’s failure to appear to be heard on the fraud allegations, the court is clearly satisfied that the original restraining order was awarded only on a fraudulent set of facts presented to the Court,” Judge Flynn wrote. “Consequently, in accordance with the rules established in Parole Commissioner v. Adamthe motion to expunge was allowed.”
This being an “unpublished” District Court case, no further light is shed on Judge Flynn’s reasoning or rationale from his brief decision. It is interesting to note, however, that apparently the time standards established in Adam by the Court of Appeals were not met here. In Adam, the Court of Appeals noted that Defendant’s only opportunities to raise allegations of fraud would be at the 10-day hearing or any other extended hearing. Here the 10-day hearing came and went without a motion to expunge. However, Judge Flynn still allowed the cancellation 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 professional reasons for requesting expungement: one was a lawyer while the other was a licensed pharmacist.
If other judges will see Adam as Judge Flynn did, and whether dozens of falsely accused men in Massachusetts will be able to get relief from this twist in the law, only time will tell.