IN THE
INDIANA SUPREME COURT
IN THE MATTER OF )
)
Case No. 20S00-0205-DI-279
ANONYMOUS )
DISCIPLINARY ACTION
April 25, 2003
Per Curiam.
In this attorney discipline case, the Disciplinary Commission
contends that the respondent lawyer violated the ethical prohibition on ex
parte communication with a judge when she sought and obtained a temporary
restraining order without notice in a marriage dissolution case. While we
agree with Respondent that notice is not necessarily required to obtain a
temporary restraining order in a domestic relations case, compliance with
the trial rules’ prerequisites to obtain an order without notice is
required, even in domestic relations cases. We also write to detail the
lawyer’s obligations when seeking a temporary restraining order without
notice in a domestic relations matter.
Background
The facts are jointly stipulated by the Commission and the
Respondent:
1. [The Respondent] is an attorney in good standing, having been
duly admitted to practice law in the State of Indiana ....
2. [The Husband] was married to [the Wife], and lived with her
and their four children.
3. On June 20, 2001, the Respondent filed divorce proceedings as
lawyer for the Wife.
4. Also on June 20, 2001, the Respondent filed two different
petitions for restraining orders against the Husband.
5. One of the restraining order petitions alleged that the
Husband might sell or dissipate the marital property unless
restrained.
6. The petition further alleged that the Husband might remove a
child from the family home or the court’s jurisdiction, or harm or
harass the Wife or children unless restrained.
7. The petition also alleged that the Husband used intimidation
and harsh punishments to control the Wife and children, and generally
described several such punishments but did not include any allegation
that there was a threat of imminent harm to the Wife or children.
8. The other restraining order petition was identical, except
that it did not include the allegations concerning the Husband's use
of intimidation and punishments.
9. The Respondent did not provide the Husband with notice,
either oral or written, that she was seeking a restraining order
against him until he was served with the dissolution petition, the
restraining order petitions, and the orders granting the restraining
orders against him, approximately one week after the restraining order
petitions were filed and granted.
10. When she filed the restraining order petitions, the
Respondent did not provide oral or written notice to the Husband, she
did not make a written showing that immediate and irreparable injury,
loss or damage would result to the Wife before the Husband could be
heard in opposition to the petitions, and she did not certify in
writing her efforts to give notice to the Husband or reasons why such
notice should not be given.
11. When she filed the petitions with the court and outside the
presence of the Husband or counsel for the Husband (the Husband had
not yet retained counsel), the Respondent orally provided the
presiding judge ... with information supplementing the written
information in the petitions.
12. [The judge] then issued two restraining orders against the
Husband restraining him from transferring or dissipating the marital
assets, removing a child from the court's jurisdiction and harassing
or harming the Wife or children.
13. One of the restraining orders also granted the Wife
temporary possession of the marital residence.
14. The restraining order petitions, the restraining orders, the
dissolution petition and other papers filed in the case were first
served on the Husband at the marital residence on June 27, 2001, by
sheriff’s deputy.
15. The Husband was compelled to immediately leave the marital
residence, pursuant to the restraining orders.
16. The Husband immediately hired counsel and had an emergency
hearing scheduled.
17. After that hearing, the Husband was allowed to enter the
marital residence to retrieve his clothing and personal effects and
was given partial custody of the children.
18. About two weeks later the court held another hearing on
custody and the parties' alternating custody of the children was
confirmed.
Stipulation of Facts 1-4.
The Commission contends that, by communicating with the judge in
connection with the restraining order without notifying the husband,
Respondent violated Ind. Professional Conduct Rule 3.5 (b) which provides
that:
A lawyer shall not … communicate ex parte with [a judge] except
as permitted by law.
Respondent contends that her ex parte communication was permitted by law,
to wit, Ind. Trial Rule 65(E) governing the issuance of temporary
restraining orders in domestic relations cases. The Commission responds
that for Respondent’s ex parte communication to be permissible, she was
required to comply with the notice provisions of T.R. 65(B) governing
restraining orders generally, not just the language of T.R. 65(E).
Discussion
The operative provisions of T.R. 65(B) and T.R. 65(E) are obviously
critical to the resolution of this case. They read as follows:
(B) Temporary restraining order -- Notice -- Hearing --
Duration. A temporary restraining order or maybe granted without
written or oral notice to the adverse party or his attorney only if:
(1) it clearly appears from specific facts shown by
affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant
before the adverse party or his attorney can be heard in
opposition; and
(2) the applicant's attorney certifies to the court in
writing the efforts, if any, which have been made to give notice
and the reasons supporting his claim that notice should not be
required. ...
…
(E) Temporary Restraining Orders -- Domestic Relations Cases.
Subject to the provisions set forth in this paragraph, in an action
for dissolution of marriage, separation, or child support, the court
may issue a Temporary Restraining Order, without hearing or security,
if either party files a verified petition alleging an injury would
result to the moving party if no immediate order were issued.
...
Respondent’s legal argument is that T.R. 65(E) is essentially an
exception or a carve-out from T.R. 65(B), the general rule governing
temporary restraining orders. As the foregoing provisions make clear, T.R.
65(B) requires two showings: (1) a showing regarding "injury, loss, or
damage" and (2) a showing regarding notice; T.R. 65(E) requires one
showing, a showing regarding "injury." As long as she makes the requisite
showing of injury required by T.R. 65(E), Respondent argues, her ex parte
communication is authorized by law and she is not guilty of misconduct.
Even assuming the correctness of Respondent's legal argument, we find
Respondent violated Prof. Cond. R. 3.5(b). Trial Rule 65(E) requires "a
verified petition alleging an injury would result to the moving party if no
immediate order were issued" (emphasis supplied). Our reading of the
parties' stipulation is that Respondent and her client made no allegation
that "injury would result ... if no immediate order were issued." The
allegations were couched in terms of what "might" happen or what had
happened in the past. See, e.g., Stipulation no. 6 ("Husband might remove
a child...."); no. 7 ("The petition... did not include any allegation that
there was a threat of imminent harm to the Wife or children."). Trial Rule
65(E) requires an allegation of more than what “might” happen.
We do not, however, agree with Respondent's legal argument. Trial
Rule 65(E) exists for the purpose of setting forth an alternative to the
T.R. 65(B)(1) showing regarding "injury, loss, or damage" but it does not
replace or modify in any way the T.R. 65(B)(2) showing regarding notice.[1]
At the time of the conduct at issue in this case, Trial Rule 65(E) set
forth the showing regarding injury required to obtain a temporary
restraining order in domestic relations cases (“fil[ing] a verified
petition alleging an injury would result to the moving party if no
immediate order were issued”). But T.R. 65(E) was not an exception or
carve-out from the T.R. 65(B)(2) showing regarding notice; restraining
orders issued under the provisions of T.R. 65(E) applicable only in
domestic relations cases were also subject to the notice provisions of T.R.
65(B)(2) applicable to all temporary restraining orders.
This can be seen by reviewing the "legislative history" of T.R. 65(B)
and T.R. 65(E). When we first adopted T.R. 65(B), it read essentially as
it does today, requiring the two showings for “injury, loss, or damage” and
notice; it contained no reference to domestic relations cases. Indiana
Rules of Court 90 (West 1970). In 1970, we added language to T.R. 65(B)
specifying that the "restrictions as to issuance of temporary restraining
orders without notice shall not apply to divorce actions." Indiana Rules
of Court 126 (West 1971). Effective January 1, 1990, we deleted the
exemption language added in 1970 from T.R. 65(B) and replaced it with
entirely new language designated T.R. 65(E). New T.R. 65(E) provided that
"a joint preliminary injunction" would be issued "in an action for
dissolution of marriage, separation, or child support ... on the verified
application of either party alleging the injury would result to the moving
party if no immediate order were issued." The preliminary injunction would
be issued automatically -- "without hearing or security" -- and prohibit
both parties from disposing of marital assets, harassing or abusing the
other, and removing a child of the parties from the state. Indiana Rules
of Court 129-30 (West 1990). The use of the term “preliminary injunction”
in the 1990 amendment was used to distinguish the requirements of T.R.
65(E) from the notice showing required by T.R. 65(B).
But in 1995, we rewrote T.R. 65(E) to provide that a “Temporary
Restraining Order” could be (but was not required to be) issued "in an
action for dissolution of marriage, separation, or child support ... if
either party filed a verified petition alleging an injury would result to
the moving party if no immediate order were issued." Indiana Rules of
Court 65 (West 1995). Our substitution of the term “Temporary Restraining
Order” for “preliminary injunction” in the 1995 amendment was meant to
signify that the requirements of T.R. 65(B)(2) applicable to all temporary
restraining orders were henceforth applicable to the restraining orders
covered by T.R. 65(E). Put differently, beginning with the 1995 amendment,
T.R. 65(E) set forth the injury showing required to obtain temporary
restraining orders in dissolution of marriage, separation, and child
custody cases; T.R. 65(B)(2) set forth notice requirements for temporary
restraining orders generally.
Thus compliance with T.R. 65(B)(2) is required in all situations in
which temporary restraining orders are sought, including domestic relations
cases. But that is not to say that temporary restraining orders without
notice cannot be issued in domestic relations cases. Dissolutions of
marriage are among the most contentious matters coming before trial courts.
Tempers flare, emotions run high, and resolving divorce-related issues
often requires the patience of Job and the wisdom of Solomon. When a
marital relationship reaches the point that one of the parties feels
compelled to seek a temporary restraining order in many cases, there is a
very real possibility that domestic violence has occurred or is likely to
occur. Although observing that additional research is needed on the
subject, a recent study from the National Institute of Justice and the
Centers For Disease Control and Prevention noted, “[i]t is a common belief
that the termination of a relationship poses an increased risk for, or
escalation of, intimate partner violence." Patricia Tjaden and Nancy
Thoennes, Office of Justice Programs, Extent, Nature and Consequences of
Intimate Partner Violence 37 (2000). This Court has recognized that the
issue of domestic violence is an "escalating societal problem." In re
Walker, 597 N.E.2d 1271, 1272 (Ind. 1992). It would be unwise if not
dangerous to require a party seeking a restraining order in such a
situation to telegraph the party's intentions by giving prior notice to the
very person the party fears will cause injury or harm.
But, of course, T.R. 65(B)(2) does not require a party seeking a
temporary restraining order to give notice. Indeed, the whole purpose of
T.R. 65(B)(2) is to provide an orderly and constitutional procedure for
obtaining temporary restraining orders without notice. That procedure
requires setting forth "reasons supporting [the] claimed that notice should
not be required" but most assuredly does not prohibit the issuance of an
order without notice. The fact that intimate partner violence has occurred
or is likely to occur or escalate is certainly a good and sufficient reason
under T.R. 65(B)(2) that notice not be required. But if this is the case,
a party can so state under oath. The filing of boilerplate allegations
without specific facts is not sufficient to invoke the court’s intervention
without notice.
In order to engage in the ex parte communication with the judge on
the facts of this case, Respondent was required to “file[ ] a verified
petition alleging an injury would result to the moving party if no
immediate order were issued, T.R. 65(E); and to ... certif[y] to the court
in writing” that no effort had been made to give notice “and the reasons
supporting her claim that notice should not be required,” T.R. 65(B)(2).
As of the time of the conduct at issue in this case, then, requests
for temporary restraining orders in domestic relations cases were subject
to the provisions of T.R. 65(E) requiring a showing regarding "injury” and
to the general provision of T.R. 65(B)(2) requiring a showing regarding
notice. In 2002, the Legislature, with the strong support of the Indiana
Judicial Center, enacted comprehensive reform of state law regarding
protective orders in domestic and family violence situations. Ind. Code §
34-26-5, as amended by 2002 Ind. Acts 133. Among the statutory
requirements for a protective order under this legislation is that the
petition “must be verified or under oath.” Ind. Code § 34-26-5-3(e).
According, we amended T.R. 65(B) effective July 19, 2002, to provide that
“[p]arties wishing protection from domestic or family violence in Domestic
Relations cases shall petition the court pursuant to IC 34-26-5. Indiana
Rules of Court 61 (West 2003). Temporary restraining orders in all other
domestic relations cases remain subject to the requirements of both T.R.
65(B)(2) and T.R. 65(E).
In determining the appropriate sanction for Respondent’s misconduct,
we acknowledge that we have never before explicitly said that temporary
restraining orders in domestic relations cases are subject to the
requirements of both T.R. 65(B)(2) and T.R. 65(E) and that Respondent's
position on this issue is reasonable. As such, we impose no sanction for
her failure to provide the court with reasons that notice should not be
required. However, as noted above, even if we accepted Respondent's
argument that restraining orders in domestic relations cases are subject
only to the requirements of T.R. 65(E) and not T.R. 65(B), we would still
find her guilty of misconduct for engaging in an ex parte communication
with the judge without complying with the requirements of T.R. 65(E) in
that she failed to allege that "an injury would result to the moving party
if no immediate order were issued." For this misconduct, we find that the
appropriate sanction is a private reprimand.
-----------------------
[1] Trial Rule 65(E) also sets forth additional provisions for temporary
restraining orders in dissolution of marriage, separation, and child
custody cases: the behavior that a restraining order in domestic relations
cases will cover and when joint restraining orders are permitted and
separate restraining orders required. This includes disposing of marital
property, harassing or abusing the other party or a child or step-child of
the parties, and removing a child of the parties from the state. T.R.
65(E).