I was going to talk a bit about a Court of Appeal opinion today that I didn't particularly like, even though I think it's probably right on the merits. I was a little bit hesitant to do so, however, because my critiques are more about style and manner of presentation than doctrine, and I understand that different people have different preferences in that regard. Some people are happy with short, concise opinions that read (to me) more as advocacy summaries than as opinions; others take a contrary view. So in a way, I'd have just been talking about matters of style.
Fortunately, this opinion came out today as well. As for that one, I can say unreservedly that (1) I like Justice Dato's style and tone, but (2) have some definite thoughts about the merits as well.
It's another opinion where I totally get where the Court of Appeal is coming from. A mother gets a DVRO (domestic violence restraining order) against her (allegedly) very-drug-abusing 29-year old son who still lives with her. She tells him about the order and he ultimately moves out, but then comes back one day and hops into his (former) bedroom and won't leave. The cops are called and tell him he's got to get the heck out of the house because there's a restraining order against him, but he won't leave, and won't open the door to his bedroom either. Here's the exchange (which, in a way, is kind of a funny one):
“[Germain:] There’s a restraining order on file, Christopher.
[Maldonado:] You’re not allowed to be here, buddy.
[Kenney:] I’m not allowed to be in my own house?
[Germain:] Correct.
[Maldonado:] Yes, you are absolutely correct. So come out.
[Kenney:] (Unintelligible) in my own fucking house. You’re tripping, bro.
[Maldonado:] No, we’re not tripping. You’re the one that needs to come out.
[Kenney:] No, I don’t. This is my fucking house, dog.
[Maldonado:] You’re not allowed here anymore.
[Kenney:] This is my house.” . . .
[Germain:] As of right now you’re not going to be under arrest, we’re gonna serve you with the restraining order.
[Kenney:] This is bullshit. Fuck you guys.
[Maldonado:] Chris, you’re not allowed to be here. Come on, we’ll talk about it. Serve you with your paperwork and you can get going.
[Kenney:] Break my fucking door down, dude. This is my fucking house.
[Germain:] Okay.”
Given that last line, you can probably figure out what happens next. The police bust down the door and arrest Kenney.
At trial, Kenney's defense is basically that the DVRO wasn't valid because -- and this latter part is clearly factually true -- he hadn't been served with it yet. But the statute says that even an unserved DVRO is nonetheless valid if a law enforcement officer verifies that it exists and orally informs the restrained person of its contents.
There's no doubt that the police didn't serve Kenney with the DVRO, and there's no doubt that they didn't inform him of the entire contents of the DVRO. The question at trial was whether what they told him -- basically, that he had to leave -- was enough, or whether they had to do something else, like tell him the whole thing and/or formally serve him with it. Which, again, they didn't.
Ultimately, the Court of Appeal holds that what the police told him was enough, and hence affirm his conviction.
Two funny -- or at least interesting -- things about that, though.
First, even if the statute is satisfied, does this really comport with the Due Process Clause? Is that really the process that's due? Before today, I don't think I'd ever read a case that held due process satisfied in the case of a formal court order when the defendant never ever received that order. Or that held that an oral statement by a police officer -- a cursory summary, no less -- was good enough.
Justice Dato's opinion doesn't talk about that at all. Maybe because he thinks the answer is clear. Or maybe because the defendant never raised the issue. Still, it seems a fairly radical view of due process, or at least one that I'm definitely not used to seeing, even in the wide plethora of procedural due process cases that I normally read and or teach to my students.
Second, at the very end of the opinion, Justice Dato notes (correctly) that the trial court erred by not sua sponte telling the jury what the proper law was regarding whether the defendant had to be formally served with the DVRO or whether the police officer's oral summary was sufficient. This was an issue of law. Indeed, it was an issue of law that was the entire dispute at trial. Defendant said he had to have been formally served and wasn't. The prosecutor said the police officer's oral summary was enough. This was literally the issue at trial, and yet the trial court didn't instruct on what the right legal rule was.
Indeed, the jury was expressly unclear as to this precise issue, and sent a note to the judge after an hour of deliberations that said: "Does Defendant have to comply if orders were not served or seen by Defendant?” To which the trial court responded: "[T]he court cannot answer your question."
That was error. As the Court of Appeal holds. You have to instruct on the law. You can't just leave that up to the jury.
So that part's clearly right.
But the Court of Appeal simultaneously holds that it was harmless error. Because under the Court of Appeal's view of the law, the officer's oral notice was enough. So, essentially, the defendant was clearly guilty. Hence no harm.
Which is, indeed, entirely how harmless error analysis works.
But doesn't that seem somewhat weird?
The entire trial was about essentially a legal issue. The trial court didn't tell the jury anything at all about that legal issue. And then when it gets to the Court of Appeal, the Court of Appeal says that doesn't matter in the slightest because the defendant was guilty anyway.
Then why even have a trial in the first place?
If the whole point is to let a jury get it right initially, why even have a trial if we're (1) not going to tell the jury anything at all relevant, and essentially just make up a total uneducated guess on what the law is, and then (2) affirm the guy's conviction because we think the law's against him.
It just seems an incredibly extreme version of harmless error analysis. The kind that makes the actual trial meaningless.
Nonetheless, that's pretty much what harmless error review does sometimes.
It's just that this is a pretty extreme example of exactly what that entails. For better or worse.
Anyway, super interesting stuff. In an opinion that's well-written and that I liked reading a lot. Even if it raised some additional issues in my mind that I thought are definitely worth considering.
