WV FAMILIES DODGE A METAPHORICAL BULLET

I refer readers to my post, “WV Supreme Court Rules People May Not Agree to Leave Each Other Alone”  https://hunterlawfirm.net/wv-supreme-court-rules-people-may-not-agree-to-leave-each-other-alone/  which I wrote after I learned of a memorandum opinion in the WV Supreme Court of Appeals case of Riffle v. Miller, No. 14-0042.

That opinion was rescinded a short while later, without comment, “for further consideration”.

Thanks to Tom O’Neill, Senator Charles S. Trump, consumer lawyer David McMahon, WV House Delegate Larry L. Rowe, and some reluctant, but committed, opponents of domestic violence in WV, my post triggered a string of events that led to the passage of WV Code 51-2A-2a.

I told the story of “The Bill No One Heard of” in my post of April 2, 2015: https://hunterlawfirm.net/the-wv-senate-bill-430-now-a-law-that-no-one-heard-of/

The Riffle v. Miller case was then presented for oral argument @ March 10 or 11 on or near the day the governor signed WV Code Sec. 51-2A-2a, “Family Court Jurisdiction to Restrict Contact Between Parties”, into law.

The Supreme Court’s written opinion was rendered May 13, 2015. It is the same result  as the ill conceived memorandum opinion, sustaining the ruling of the Circuit Court of Harrison County which overturned the “mutual restraining order” issued by the Family Court, but with a “caveat”.

This time, the baby did not go out with the bathwater. Thank God!

As Paul Harvey used to say, this is “The Rest of the Story”. Justice Laughrie had to add a footnote in which he recognized our legislature had restored the power the Supreme Court had taken away.

I have learned A LOT since firing off my blog article, but my mind has not changed.

I believe the Court’s opinion in Riffle v. Miller, without the passage of Article 51-2A-2a, would have deeply undermined WV Family Courts’ ability to maintain order.

Without the ability to bar bad behavior that falls short of domestic violence, pretty soon every incident of poor behavior would begin to look like domestic violence. to its victims.

DV filings would have soared because it is the only tool the Supreme Court gave the Family Courts. This is an instant where the legislature was much wiser and pragmatic than our Court. And, it is an example that sometimes the people “in the trenches” have better insight than the ones looking down from a lofty perch.

The result? Now family courts may, on motion of a party, on its own motion, and when there is an agreement of parties, even in a domestic violence proceedings, approve an agreement of parties to leave one another alone.

Justice Margaret Workman is cited in Riffle for her dissent in Pearson v. Pearson, 488 SE2nd 414, for her criticism of “mutual restraining orders”. Someday, I hope to discuss with Justice Workman my views on why “mutual protective orders”, properly used, are a very, very good thing.

One point of clarification of “Miller v. Riffle” ; in that case,  the “mutual restraining order” was entered in the divorce case, first I believe as a temporary, and then a final, order, BUT, it was entered after one of the parties dropped a pending DV Petition against the other. Thus, Justice Workman’s concern that abuse victims may be disadvantaged to become a party to a “mutual restraining order” is applicable and deserves to be addressed. 

I am very careful to separate in my mind the case where the alleged “victim” will be less safe from a mutual order. And, victim’s sometimes lack resolve and contact the abuser. I think a particularized “no unwanted contact” order works in the cases where I choose to use them, and a perceptive judge can issue them even for unrepresented parties. Justice Workman’s reservation should be considered, but not used as a “trump card” against “mutual restraining orders”.

Remember, orders are still made out of paper. They will not stop a bullet, a knife, or a fist! Imposing an order on an unstable person can lead to the opposite result of that intended. One fellow, husband of my abuse victim client, went directly from the jail to the home where he expected to find his wife. When she wasn’t there, he left a vicious note for her and blew out his tiny brain. Another fellow ended it in the garage with his engine running, again with the nasty note. These fellows had no regard for an order.

Now the family court has a broad, but clearly described, tool for the “ninety percenters’, the people who are acting childishly, bullying, nasty, hurtful, and emotionally abusive, but not amounting to domestic violence.

Getting them under control, with a threat of contempt findings by the Court, or a clear order telling them that calling their partner a bitch or bastard on FB, constant texting, driving by their work, or flipping the bird is “verboten”, may help calm the waters.

That’s the tool the WV Supreme Court took away in Riffle v. Miller.

It is time for a great “civility movement in WV”, starting with social media.

The message must be taught repeatedly that “the Golden Rule” is not misnamed. A bit of kindness, empathy, forethought, and class can trump mean-spirited, short-sightedness. Maybe we could even have a “reality show” to demonstrate that principle.

Thus, Delegate Larry Rowe’s suggestion, which was implemented, permitting the courts to enter standing “be nice” orders, was a terrific idea. I am working on some “model standing orders” and will post more on this subject later. jbh

This post was written by Burton Hunter