The Volokh Conspiracy
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From the Colville Tribal Court of Appeals in Antonie v. Marchand, 2019 WL 5419957 (decided Sept. 30 but just summarized in the Westlaw Bulletin):
On August 20, 2018 the Petitioner filed a Summons and Complaint and a [request for an emergency restraining order seeking] permission to enter the parties previously shared residence to retrieve her and her son's personal property (including an attachment identifying the property). In the ex parte motion, the Petitioner requested the Respondent be ordered to vacate the premises so she could enter the home and collect all of the identified personal property. She disclosed that she had already removed some personal property from the home, but she did not specifically identify the property. Within an hour of the filing, the Court entered an order without the benefit of a hearing and without notice to the Respondent that:
- Denied the Petitioner's "motion for emergency restraining order";
- sua sponte, ordered "the non-requesting party is restrained from contacting Petitioner and her son in any way at any location";
- ordered that the "Petitioner is allowed to retrieve her personal property August 25, 2018 from 9:00 a.m. to 3:00 p.m."; and
- set a show cause hearing for September 4, 2018.
The record does not indicate how, when or if the Respondent received service of the Order or the Complaint, but on August 22, 2018 he filed a "Motion and Affidavit" requesting a continuance on the grounds he was unprepared and needed to go through the personal property in the shared residence. He also requested a hearing on the ex parte motion indicating that he contested the ownership of the personal property identified in the list attached to the Complaint. That same day, without a hearing, the Court denied the Respondent's Motion for Continuance, and affirmed the Petitioner's ability to enter the home on August 25, 2018.
On August 23, 2018 the Respondent filed a second motion, requesting a hearing before the Petitioner was allowed to enter the home to remove property. In this filing the Respondent informed the Court there was a criminal matter pending in federal court in which it was alleged the Petitioner assaulted the Respondent and the federal court entered a restraining order prohibiting the Petitioner from contacting him. It appears from the Trial Court's order, issued the same day without hearing, the Court did not fully address the Respondent's requests and simply allowed the previous order and denial of a hearing to stand without amendment.
On August 24, 2018 the Office of the Tribal Prosecutor brought a Motion to Intervene and on behalf of the Respondent seeking to have the civil standby order quashed. In support of the motion the prosecutor noted that (among other things);
- there was no emergency warranting distribution of property;
- the Petitioner was not candid with the court;
- the Petitioner failed to inform the court that she was subject to a restraining order issued by a federal court;
- The federal court's order was subject to full faith and credit;
- the Respondent was the alleged victim of a crime perpetrated by the Petitioner and he was contesting ownership of the personal property being sought by the Petitioner;
- Due process required a hearing to allow the Respondent to offer testimony to the court;
- The items requested by the Petitioner were not critical and could be distributed after a hearing; and
- The Respondent's property was subject to damage if the Petitioner was allowed entry to the home.
On the day the prosecutor's motion was filed, the Court, without a hearing, denied the prosecutor's motion on the grounds that the prosecutor was not a party to the case and "no application to Accept a foreign judgment was filed," and that the Court "had no proof" of any restraining order entered against the Petitioner. A subsequent Motion to Reconsider was also denied.
The Petitioner did not enter the residence on August 25 as allowed by the prior order. On August 30 she filed another ex parte motion requesting the Respondent be ordered from the home on September 1 from 9-4 to allow her to remove the previously identified personal property. The request was immediately granted, again without a hearing. A civil standby was allowed "if available." There is no affidavit that the Respondent was served the order, but he apparently received notice as he vacated his home the next day.
On September 1, 2018 the Petitioner entered the home with other private citizens and without a civil standby and removed personal property from the home. It appears from the record she removed at least everything on the list attached to her Complaint and the Respondent later asserted to the Court that she removed more than was identified in the Complaint and damaged property left in the home….
The procedure followed in this matter is troubling and shines a light on the vital importance of due process protections built into our law and procedures. Parties must have reasonable notice to any substantive hearing to allow the parties time to prepare their respective cases. In this case the Trial Court made many decisions and entered crucial orders without the benefit of a hearing and without affording the Respondent the opportunity to be heard before relief was granted to the Petitioner….
When a court is presented with an ex parte motion requesting emergency relief it is constrained by the accuracy and completeness of the information contained in the pleadings offered by a single party. Within reason, the court presumes the truth of what is presented and grants or denies relief based on that information and this presumption. Because the initial pleadings may not accurately convey the complete facts of the situation, the court must be cautious about any ex parte relief granted. The court may only grant relief that is aimed at preventing imminent and irreparable injury to the requesting party.
In this case … the Court granted ALL of the relief requested in the Complaint without conducting a single hearing or knowing if the Respondent even had notice of the proceedings…. This Court makes no findings as to the disputed facts, but there was sufficient credible evidence before the Trial Court to put it on notice that there was a dispute as to the events that occurred between the Petitioner and Respondent and as to the relief that should be granted. The Court should have been alerted to the need to protect the due process rights of everyone involved, yet the Court maintained the ex parte emergency order granting the Petitioner all of the relief she requested in her complaint without the benefit of any hearings.
It is common for a court to grant emergency relief to a party to recover clothing, medications, toiletries and other important personal items from a home they've been forced to vacate. The court may also enter temporary restraining orders preventing either party from transferring, removing, encumbering, or concealing or in any way disposing of any property. There is no way, however, to find that the Petitioner or her son would be irreparably injured if the Court denied her the right to collect most of the items identified in her attachment until after the Court heard from all the parties. Granting the Petitioner the ability to collect furniture, art, kitchen items, holiday decorations and the like without a hearing is clearly erroneous.
There were multiple requests made and ample opportunity for the Court to hear from the Respondent before allowing the Petitioner to remove property from the home. The only hearing scheduled by the court was for September 4, 2018, AFTER the Petitioner was to be permitted to enter the Respondent's home on August 25. Any hearing giving the Respondent the ability to address the Complaint that occurs AFTER the Petitioner is granted the relief requested in the Complaint is meaningless….