Wednesday, October 24, 2007
C.A. Rejects Rubber-Stamped Denial of Restraining Order
By a MetNews Staff Writer
A Contra Costa Superior Court judge abused his discretion by summarily denying a domestic violence restraining order, in a rubber-stamped order, without hearing or explanation, the First District Court of Appeal ruled yesterday.
The court, in an opinion by Presiding Justice J. Anthony Kline of Div. Two, sided with a San Pablo woman and a number of domestic violence prevention and victims’ support groups that filed an amicus brief on her behalf.
Judge Gregory Caskey’s “unusual” use of a rubber stamp to declare an application inadequate “will be seen by some as an indication that [Domestic Violence Prevention Act] protective orders are routinely denied,” Presiding Justice J. Anthony Kline wrote. He added that “the failure of the court to provide any reason for its summary denial of the requested protective order may well stimulate the continuing domestic abuse that the DVPA was specifically designed to prevent.”
The plaintiff, Yuki Nakamura, sued her estranged husband, John Marshall Parker, for divorce in June of last year. She had previously obtained a domestic violence restraining order against Parker, who had spent a night in jail after he allegedly threw and broke a vacuum cleaner, sprayed her with water from a hose, shoved her out of the house in cold, rainy weather, and would not let her back inside.
The couple reconciled three weeks later.
Two months after filing for divorce, she again applied for a protective order, alleging in her petition that Parker, a methamphetamine user, had been violent with her, or threatened her with violence on numerous occasions before they couple separated, and had continued to annoy and threaten her after she left the family home.
She recounted an incident in which Parker telephoned, saying he knew where she shopped, what she “did over the weekend,” and who she was dating, and said he had hired somebody to follow her.
Earlier, she related, he phoned her and called her names, saying he would make her life miserable and destroy an antique doll collection she had at the family house and valued highly. She called the police and, with an officer present, recovered her doll collection, but Parker, she declared, phoned her later that night to say he still had one doll and “was going to tear its head off.”
In another incident, she said, Parker unexpectedly drove the family Honda CRV to a pool where she had driven the family minivan, a Honda Odyssey, to watch their son’s swimming lesson. A pool staff member handed her a note in which Parker included a key and said he had swapped their cars.
The CRV had an expired registration and outstanding ticket, and Parker cancelled the insurance on it the next day, she said.
Nakamura, who had undergone residential treatment for alcoholism, said Parker was trying to “get around” a no-contact order that had just been issued by a judge hearing dependency proceedings involving the couple’s two young children.
Caskey denied the restraining order without comment, other than the rubber-stamped order reading:
“:THE UNDERSIGNED JUDICIAL OFFICER HAS READ AND REVIEWED THE ATTACHED APPLICATION AND DECLARATION FOR ORDER. THE FACTS SET FORTH DO NOT PROVIDE A LEGAL BASIS TO ISSUE THE ORDER REQUESTED AND THE APPLICATION IS THEREFORE DENIED.”
Kline acknowledged that the DVPA does not require a judge to state reasons for denying an application. But it was an affront to the “integrity of adjudication,” and a “highly imprudent” act, for the judge to deny the application without a hearing or an explanation, thereby raising the inference that he did not consider the facts alleged to constitute “abuse” within the meaning of the statute.
In this case, the presiding justice went on to say, the alleged conduct of the husband clearly constituted domestic abuse, so the summary denial of Nakamura’s application was an abuse of discretion on the part of the trial judge.
“[E]ven if some of the facts she alleged, such as the switching of cars and cancelling of insurance, might not clearly constitute ‘abuse’ within the meaning of [the DVPA] Nakamura has under penalty of perjury provided numerous specific and admissible facts based on personal knowledge showing past acts and more recent and recurring acts showing that Parker intentionally or recklessly caused or attempted to cause her bodily injury and placed her in reasonable apprehension of imminent serious bodily injury... in ways that may be described as ‘striking,’ ‘stalking,’ ‘threatening,’ ‘sexually assaulting,’ ‘harassing,’ ‘annoying telephone calls,’ and ‘destroying personal property’...all demonstrating a substantial risk that ‘great or irreparable injury’ would result to her before the matter can be heard on notice.”
The case is Nakamura v. Parker, 07 S.O.S. 6322.
Copyright 2007, Metropolitan News Company