Who has jurisdiction?

[JETX]

And I think therein lies the confusion... the restrained party is NOT in Georgia... he is a complete different state. The point is... the GA TRO doesn't apply in other states... especially for a phone call that is NOT a threat!!!

 

[AWorkOfArt]

That will come as news to law enforcement. State law in at least two states - CA and OR - REQUIRES us to honor court orders from other states. And, as I was recently told by representatives of CA DOJ and the FBI, all 50 states supposedly have such statutes as well.

But, if the crime occurred in GA and a restraining order were issued, GA would have to issue a warrant on the matter. The other state would not be involved unless the protected party were actually within the state. If the TRO violation occurred in my state and it involved a GA TRO, then we would be REQUIRED to honor GA's TRO and make the arrest.



However, the crime here is occurring within the jurisdiction of the court. The crime is complete when it is received ... thus it is occuring in GA, and thus the GA courts have jurisdiction.

It is not uncommon out here for subjects in my part of the state to have restraining orders issued against parties in Oregon and vice-versa. The only difficulty WE have is that OR has a strange two level TRO system that sometimes requires the local sheriff's department there to confirm a TRO for criminal enforcement.



Until he violates it in which case a crime has occurred in GA.

I do not know the legalities of service outside the state, but I know that it happens with some regularity on this coast. I also agree that this is not an issue for a TRO as it probably could have been better handled as a criminal complaint for whatever GA's equivalent is for "annoying and harassing phone calls". But, I doubt that the court did anything unlawful in issuing a TRO to a subject who had arguably committed an offense or an act covered under their laws within the confines of their state.

- Carl

from what I read a properly obtained and issued restraining order can be transfered to other states for enforcement mainly due to the Violence against woman ACT, 18 U.S.C. 2265(1994) but what I was trying to understand if a court/judge can issue an order against a person they have no jurisdiction over. I was told by a police officer that the judge will probably not issue one just because you are not in this state but it was and I truly believe it was issued because they failed to recognize it was being requested for someone outside of the state.

 

[AWorkOfArt]

And I think therein lies the confusion... the restrained party is NOT in Georgia... he is a complete different state. The point is... the GA TRO doesn't apply in other states... especially for a phone call that is NOT a threat!!!

JETX, can this be considered a void order?

 

[JETX]

JETX, can this be considered a void order?

What is a 'void order'???
All I can tell you is... if the court gave you a restraining order against someone who is NOT in your state... it is unenforcable against the person in that other state.

A TRO (Temporary Restraining Order) is really a short-term injunction... intended to prevent someone else from changing the current status.

The reason I was surprised to hear that a TRO was issued is that MOST reasonable courts won't just hand them out like candy on Halloween. They are intended to protect people from harm, or from some other danger or hazard. In your case, the judge likely saw no harm in giving you a (pretty much) worthless document... to make you feel good and possible 'scare' the other party into ceasing their conduct. There is nothing in your post to indicate that the order was warranted.

injunction
n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights; to b) get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued; c) serve (personally delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined"); partake in a hearing in which both sides attempt to convince the judge why the injunction should or should not be granted. If there is danger of immediate irreparable harm at the time the petition is filed, a judge may issue a temporary injunction which goes into effect upon it being served (deliver or have delivered) to the other party. This temporary injunction will stay in force until the hearing or sometimes until the outcome of a lawsuit is decided in which an injunction is one of the parts of the plaintiff's demands (in the "prayer"). A final and continuing injunction is called a permanent injunction. Examples of injunctions include prohibitions against cutting trees, creating nuisances, polluting a stream, picketing which goes beyond the bounds of free speech and assembly, or removing funds from a bank account pending determination of ownership. So-called "mandatory" injunctions which require acts to be performed, may include return of property, keeping a gate to a road unlocked, clearing off tree limbs from a right-of-way, turning on electricity or heat in an apartment building, or depositing disputed funds with the court.

 

[AWorkOfArt]

" JETX you are wonderful, you have no idea how much you just answered for me....

What is a 'void order'???
All I can tell you is... if the court gave you a restraining order against someone who is NOT in your state... it is unenforcable against the person in that other state."

one last thought, if the order is, "unenforcable" does anything need to be filed in order for authorities and the courts to recognize this? Or is it merely understood by the courts and police?

 

[JETX]

if the order is, "unenforcable" does anything need to be filed in order for authorities and the courts to recognize this? Or is it merely understood by the courts and police?

I only said it is unenforceable as to the actions or conduct of the restrained party NOT being in the state that issued the order.... it is (presumably) valid in your state. If the restrained party does violate the order while in your state... the TRO can be enforced against him/her.

 

[seniorjudge]

If the court had sufficient cause to issue the TRO, they can issue it. The court can issue a TRO against another individual even in another state ... service would be an issue, and arresting the subject of the TRO if he continued to call would be unlikely. Since TROs issued by a court in any state are generally enforceable in all 50 states, legality isn't an issue ... practicality is.

So, my recommendation would be do not call the protected party any more, and just leave it alone.

- Carl

You are correct for jurisdictions with laws such as this:

http://www.moga.mo.gov/statutes/C400-499/4550000067.HTM

Missouri Revised Statutes
Chapter 455
Abuse--Adults and Children--Shelters and Protective Orders
Section 455.067

August 28, 2005


Foreign order of protection to be given full faith and credit--registration of order, content, procedure.

455.067. 1. Any order of protection issued by any other state, tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia shall be given full faith and credit throughout the state in all courts, and by all law enforcement officials and agencies, and all public officials and shall be enforceable in the same manner as any order of protection issued by a court in this state.

2. A person entitled to protection under a foreign order of protection as described in subsection 1 of this section may file a certified copy of the foreign order of protection and an affidavit or sworn statement from the petitioner that the copy of the foreign order is a true and accurate copy and has not been altered in the circuit court having jurisdiction. If the foreign order of protection terminates prior to the expiration date on the order, the petitioner shall notify the circuit court. A foreign order of protection as described in subsection 1 of this section shall be enforceable in this state so long as it is in effect in the issuing state.

3. Filing of the foreign order of protection shall be without fee or cost.

4. Registration and a Missouri court order recognizing a foreign order of protection shall not be required for the enforcement of a certified foreign order of protection in this state.

(L. 1995 H.B. 232 & 485, A.L. 1999 S.B. 1, et al., A.L. 2002 H.B. 1814)



And, yes, these orders are given away like candy.

 

[JETX]

You are correct for jurisdictions with laws such as this

Yep... and never of question.
A foreign Order of Protection can be 'domesticated' into a new state..... and then be enforced in that new state.

However, that is NOT what this thread is about. The case here is a Order of Protection from the originating state being enforced in another state... where it was NOT domesticated.

This is very simple stuff folks... and only confusing when people keep trying to add things to it that are NOT relevant to the issue at hand.

 

[CdwJava]

However, that is NOT what this thread is about. The case here is a Order of Protection from the originating state being enforced in another state... where it was NOT domesticated.

This is very simple stuff folks... and only confusing when people keep trying to add things to it that are NOT relevant to the issue at hand.

Well, if the TRO were issued in GA and it were violated in my state, then we would be required under law to enforce it and make an arrest for said violation. If both parties were in CA we would arrest the suspect based solely on the GA court order - "domesticated" or not.

In this case, we would have to await the warrant from GA as the violation would not have occurred within our jurisdiction and thus we could not make an arrest for the offense.

The point of the matter was whether or not GA can issue a TRO to a subject in another state. My experience in this area says that they CAN. And, as I said, enforcement is a problem in this case as the offense occured in the issuing state and not the state of the restrained person, so the order cannot be enforced based solely upon its face as the violation occurred outside the state where the suspect resides.

- Carl

 

[seniorjudge]

Well, if the TRO were issued in GA and it were violated in my state, then we would be required under law to enforce it and make an arrest for said violation. If both parties were in CA we would arrest the suspect based solely on the GA court order - "domesticated" or not.

In this case, we would have to await the warrant from GA as the violation would not have occurred within our jurisdiction and thus we could not make an arrest for the offense.

The point of the matter was whether or not GA can issue a TRO to a subject in another state. My experience in this area says that they CAN. And, as I said, enforcement is a problem in this case as the offense occured in the issuing state and not the state of the restrained person, so the order cannot be enforced based solely upon its face as the violation occurred outside the state where the suspect resides.

- Carl

You are correct.

 

[JETX]

Well, if the TRO were issued in GA and it were violated in my state, then we would be required under law to enforce it and make an arrest for said violation.

Who cares??
There is NOTHING in this thread to even suggest that California is involved!!!

The point of the matter was whether or not GA can issue a TRO to a subject in another state.

Maybe that is the 'point' in your mind... but it is NOT the question in this thread.... and has NEVER been in dispute!!!

Hell, any state can issue a TRO for any reason they want. So, let me make it very clear for some of the mentally-challenged on this forum......
A TRO issued by GA will MAYBE (depending on LOTS of possibilities) be recognized in California. BFD!!
And as much as Californians seem to think that their rules and practices are somehow national in scope... they aren't.

 

[JETX]

You are correct.

Wow, like that is supposed to mean something...

 

[CdwJava]

And as much as Californians seem to think that their rules and practices are somehow national in scope... they aren't.

No, the point is that all 50 states are supposed to recognize the court orders of all the other states.

Whether they can effectively be enforced depends on the particular circumstances. But an order does NOT have to be "domesticated" to be enforceable in most cases.

- Carl

 

[CdwJava]

Hopefully this clears up the matter ... for good or ill .... and it appears that everyone can be right on this one (depending on their state) ...

From the OJP at the USDOJ (note it discusses a validation process in some states):

Full Faith and Credit Provisions

In addition to enforcing protective orders issued within a state, law enforcement agencies and state courts also must recognize orders issued in another state or jurisdiction. The full faith and credit provisions of the 1994 Violence Against Women Act (VAWA) require that every temporary or final injunction, protective order, or restraining order properly issued by a state court be given full faith and credit by courts in every other state.

Most states have passed their own full faith and credit laws. Under state provisions, the terms of a foreign protective order (i.e., an order issued in another state) must be enforced as though it were issued by the new state. This means that the new state’s remedies and sanctions apply, even if they differ from those of the issuing state. As the Colorado General Assembly recognized, “domestic violence is an issue of public safety. The risk of harm to victims of domestic violence is not limited by state boundaries. Victims have the right to travel safely from one state, tribe, or territory to another and be afforded the same protections as their home state would provide against a perpetrator.” The goal of these VAWA-required provisions is to ensure enforcement of civil and criminal protective orders nationwide, even when victims cross state lines to escape abuse.

In some states, such as Montana, foreign protective orders must be filed formally to be enforceable:

A certified copy of an order of protection from another state, along with proof of service, may be filed in a Montana court with jurisdiction over orders of protection in the county where the petitioner resides. If properly filed in Montana, an order of protection issued in another state must be enforced in the same manner as an order of protection issued in Montana.

In Kentucky, a victim filing a foreign protective order must file an affidavit along with the order certifying “the validity and status of the foreign protective order, and attest[ing] to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed.” In addition, the circuit court clerk in Kentucky must validate each foreign protective order annually by contacting the original issuing court. If validation is not received from the foreign jurisdiction within 31 days of the request, the invalidated order shall be cleared from Kentucky’s registry.

In order to assist a court of another state in determining whether a protective order issued in [Kentucky] is entitled to full faith and credit, . . . all protective orders issued [in Kentucky] . . . shall include a Statement certifying that the issuing court had jurisdiction over the parties and the matter, and that reasonable notice and opportunity to be heard has been given to the person against whom the order is sought sufficiently to protect that person’s right to due process.

Requirements like this help streamline the validation process and ensure that protection of the victim is continued without interruption.

In other states, such as Colorado, filing a foreign protective order is voluntary:

Filing of the foreign protection order in the central registry or otherwise domesticating or registering the order . . . is not a prerequisite to enforcement of the foreign protection order. A peace officer shall presume the validity of, and enforce . . . a foreign protection order that appears to be an authentic court order that has been provided to the peace officer by any source.

Likewise, Arizona law enforcement officers may rely on a copy of a protection order issued by another state, a United States territory, or an Indian tribe. In addition, a “peace officer may . . . rely on the Statement of any person who is protected by the order that the order remains in effect.”

http://www.ojp.usdoj.gov/ovc/publications/bulletins/legalseries/bulletin4/2.html


- Carl

 

[JETX]

No, the point is that all 50 states are supposed to recognize the court orders of all the other states.

Before 'SJ' comes in here and cites his latest mantra "You are correct" like some android....
I have to ask... where in the world did you get that idea??

Of course, SOME states have tried to follow 'model' rules and laws... but it is a far cry from "all 50 states" recognizing the "court orders of all the other states"!!

But an order does NOT have to be "domesticated" to be enforceable in most cases.

Some civil orders have to be domesticated. Some civil orders are recognized by special statutory arrangements with other states. But EVERY states civil orders must, in some way, have 'validation' in the secondary state before it can be enforced there.