Judge Francis Schultz, the New Jersey Superior Court judge who just declared a gestational carrier the legal mother of twins she carried for her brother, has a history of bizarre rulings. In 2008, Judge Schultz held that a New Jersey statute allowing restraining orders to be issued in domestic violence cases was unconstitutional and determined that a far more stringent standard was required:
Women’s rights groups and the state Attorney General’s Office are preparing to challenge a judge’s ruling that determined it’s too easy to get a restraining order in New Jersey.
The decision is not binding on any other state judge and appears headed for an ultimate ruling by the New Jersey Supreme Court. That showdown could be many months away, and the outcome could have broad impact. Although the numbers have declined over the past five years, about 40,000 domestic violence complaints are filed annually in New Jersey. From those, roughly 30,000 temporary restraining orders are issued, with most of the rest withdrawn by the accuser. Nearly 80 percent of the complaints are filed by women.
The recent ruling by a Hudson County judge, however, threatens to make it more difficult for victims to prove they have been beaten or threatened and could scuttle the state’s Prevention of Domestic Violence Act. State Superior Court Judge Francis B. Schultz found that some elements of the 17-year-old law are unconstitutional. Among them: a low threshold of evidence — just a “preponderance” — to get a restraining order violates due process protections. Instead, judges need “clear and convincing” evidence to issue a restraining order, Schultz said.
Schultz also found the law violated the New Jersey Constitution’s separation of powers mandate because the Legislature usurped the state Supreme Court’s role by dictating court procedures, including what to consider in setting bail. “If it’s allowed to stand, it certainly would be a significant problem for victims of domestic violence,” said Sandy Clark, associate director of the New Jersey Coalition for Battered Women.
“They are typically the only witnesses to the abuse. So to have to show by clear and convincing standard would certainly be challenging,” Clark said. She considers New Jersey’s law among the best in the country, since it provides restraining orders of indefinite length, along with mandatory training for police and judges. Other states have tougher standards to obtain restraining orders, she said.
Prosecutors are also alarmed at what would happen if the ruling stands. “You’re going to have a chilling effect. That’s the bottom line,” said Deputy Chief Assistant Essex County Prosecutor Debra Cannella, who led the office’s domestic violence unit for 11 years. “We’re very concerned about this because elevating the standard of proof will make it more difficult for victims of domestic violence who desperately need relief,” Cannella said. “The next time that victim is assaulted, they may not come back to court because there were rebuffed.”
Not surprisingly, the New Jersey Supreme Court overturned Judge Schultz’s ruling this year. I expect a similar result in the Hollingsworth case.