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Order of Protection Notice

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CaseState of Tennessee v. Rodney Stephens

Issue:  How much “notice” of a protective order must a respondent be given to be guilty of aggravated stalking when the person is “under” an order of protection or restraining order?

Facts:  Defendant “stalked” his wife who had obtained an order of protection against him for assaultive behavior.  Defendant contended that he was given insufficient notice of the order and could not be guilty of violating it. If he was aware of the terms of the order of protection then he would have been guilty of aggravated stalking.  But if he were not aware of the terms of the order of protection then he could only be convicted of the misdemeanor version of this offense.

Appellate Decision: The intermediate appellate court agreed with the Defendant, finding that while he was aware of the ex parte order of protection, the record contains evidence that the only document served on the Defendant was the petition for an order of protection rather than the order itself.  The intermediate appellate court found that the defendant’s testimony “supports the conclusion that he was given a document at the jail but he did not know what the document was.”

Judge Easter dissented finding that there was, at minimum, constructive knowledge of the terms of the order.

Review Granted:  June 23, 2016.

Prediction:  David Raybin believes that the Supreme Court should affirm the finding that the Defendant was guilty, at most, of misdemeanor stalking.  The record here is ambiguous at best as to whether the Defendant had actual notice of the terms of the order of protection and had actually been served with the order itself rather than the petition.  The government should not be awarded by “sloppy” presentation of proof at trial.  It would have been a simple matter to have established unequivocally that the Defendant was actually served with the order.  The State did not call the officer who had served the Defendant with the document in question.  The Supreme Court should also take this opportunity to clarify what is implicit in these orders of protection or other restraining orders.  The cases from other states addressing criminal contempt for violating restraining orders and orders of protection are instructive  here.

In Toledo v. Lyphout, 2009 WL 2855714 (Ohio 2009) the court held that “actual notice requires more than general knowledge that an order has been issued.”  The court went on to hold that a court order is an order only to the extent of its terms:  “To know an order, one must know its terms.”  The court concluded that “absent proper service or actual notice of the prohibited behavior, [the defendant] cannot be held criminally liable for disobedience of the order’s terms.”

In People v. Jakubowski, 975 N.Y.S. 2d 861 (N.Y. 2013), the defendant was charged with criminal contempt based on violating an order of protection.  He argued that he did not have knowledge of the order of protection because it was improperly served on him.  The court found that actual physical service of process is not required to be found guilty of contempt for a violation of an order of protection where the offender has actual notice. Notwithstanding certain policy reasons regarding service of process, “those reasons do not also require that a criminal contempt proceeding be dismissed because of improper service of the underlying order.  When a defendant knows the content of the court order and intentionally disobeys it, the contempt statute, which vindicates the authority of the court is violated even if the manner of service of the order was not specifically permitted.”  In short, form over substance will not prevail where a defendant has actual notice of the terms of the court order he or she is alleged to have violated.

While no Tennessee court has explicitly held that actual notice of the contents of an order is necessary for a finding of contempt, the courts have implicitly found this to be a case.  This is hardly surprising since the legal doctrine is so basic.  In Konvalinki v. Chattanooga, 249 S.W.3d 346 (Tenn. 2008) the court held that for an individual to be held in contempt the person must have willfully violated the court order.  The court found that Tennessee law inquires as to the clarity of the order since “a person may not be held in civil contempt for violating an order unless an order expressly spells out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden.”  In Ross v. Ross, 2008 WL 5191329 (Tenn.Ct.App. 2008) the court adopted the same requirement for criminal contempt requiring that the order must be specific and unambiguous.  See also Beyer v. Beyer, 428 S.W.3d 59, 78 (Tenn. Ct. App. 2013) “A person may not be held in civil [or criminal] contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden.”

In Nashville Corporation v. United Steel Workers of America, 215 S.W.2d 818 (Tenn. 1948) the court held that a person can only be found guilty of criminal contempt for an injunction or restraining order until the person has “actual notice” sufficient to bind the party to the proceeding regardless of want of or defective service of the injunction or order.  In this case the court found that in convicting the defendant the proof showed that each defendant had “actual notice of the injunction and its terms.”  This is clear precedent for the proposition that one must not only have knowledge of the order but must also have knowledge of the terms of the order to be held in criminal contempt.

The same reasoning would apply to being “under” an order of protection.  These ever-increasing domestic injunctions will trigger even more litigation over this issue.  The Supreme Court should take this opportunity to emphasize that given the serious consequences which flow from violating quasi-criminal orders of protection, these orders must be actually served on the defendant and absolute proof of service must be documented.  Failure to follow this important doctrine will do nothing more than promote further violence.  Those who serve orders of protection and related injunctions should not treat them as if they were mere notices of eviction.