Blazel v. Bradley

• Decision Date: 07 November 1988
• Docket Number: No. 87-C-179-C.,87-C-179-C.
• Citation: 698 F. Supp. 756
• Parties: Alvin D. BLAZEL, and Others Similarly Situated, Plaintiffs, v. The Honorable Ann Walsh BRADLEY, Judge for the Circuit Court of Marathon County, Branch III, in her Official Capacity, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

698 F. Supp. 756

Alvin D. BLAZEL, and Others Similarly Situated, Plaintiffs, v. The Honorable Ann Walsh BRADLEY, Judge for the Circuit Court of Marathon County, Branch III, in her Official Capacity, Defendant.

No. 87-C-179-C.

United States District Court, W.D. Wisconsin.

November 7, 1988.

James Jannetta, Wausau, Wis., for plaintiffs.

James H. McDermott, Asst. Atty. Gen., Madison, Wis., for defendant.

CRABB, Chief Judge.

This is a civil action brought pursuant to 42 U.S.C. § 1983 in which plaintiffs ask the court to declare unconstitutional Wis.Stat. § 813.12(3)(b), which permits the issuance of ex parte temporary restraining orders in domestic abuse actions. The case is before the court on the parties' cross-motions for summary judgment. Jurisdiction is present under 28 U.S.C. §§ 1331 and 1343.

I conclude that Wis.Stat. § 813.12 provides the essential due process protections that are required before the state may constitutionally deprive plaintiffs of the protected liberty and property interests at stake when a temporary restraining order is issued in a domestic abuse action. It is explicit in the statute that judicial participation and a verified petition containing detailed allegations are required before an ex parte order may issue and that a prompt post-deprivation hearing must be provided. And in light of the statute's legislative history, it is implicit that ex parte orders are to be issued only upon an allegation of risk of imminent and irreparable harm based on personal knowledge.

From the findings of fact proposed by the parties, I find that no genuine dispute exists as to the following material facts.

FACTS

Plaintiff Alvin Blazel is an adult resident of Wisconsin. Defendant Ann Walsh Bradley is the duly elected Circuit Court Judge of Branch III of the Marathon County Circuit Court in Wausau, Wisconsin.

On March 13, 1987, plaintiff's wife, Donna Blazel, filed a petition for a temporary restraining order and injunction in the Marathon County Circuit Court, Branch III. Pursuant to Wis.Stat. § 813.12(5)(b), she was provided with a simplified form on which to file her petition. The form states that the allegations are made "under oath" and has preprinted responses that the petitioner can check indicating the petitioner's relation to respondent, whether both are adults, and the petitioner's legal interest in his or her residence. The form provides a space for the petitioner to describe the necessity for the order. In this space the form states "The respondent engaged in or might engage in domestic abuse to me because: (The conduct must include an intentional infliction of or threat to inflict physical pain, physical injury or illness; impairment of physical condition; or sexual contact or sexual intercourse without consent, as set forth in s. 940.225(1)(2) or 3, sic Wis.Stats.)." The form has a space where the petitioner must describe "what happened, when, where, who did what to whom." The petition then lists the types of protection that may be ordered, including requiring respondent to avoid petitioner's residence or to avoid contacting her, and a line marked "Other." The petitioner is to mark any of the boxes which apply.

In the space provided for a description of abuse Donna Blazel alleged as follows: "2-28-87 he grabbed me by the back of my hair & tried to throw my neck out, which hurts my arthritis. Called Mara. Co. Sheriff's Dept. About Feb. 12, 1987, threw a loaf of bread at me & then hit me in the back of the head with his fist and tried to throw my neck out, called MCSD and signed an abuse complaint."

Donna Blazel marked with an "X" the lines on the pre-printed petition indicating she was requesting that the court immediately issue a temporary restraining order requiring the named respondent to avoid his residence and to avoid contacting petitioner or causing any other person to have contact with her, and directing the sheriff to place her in physical possession of her residence.

On March 13, 1987, the day Donna Blazel filed the petition, defendant issued a temporary restraining order on a pre-printed form, ordering Alvin Blazel to avoid the petitioner's residence, to avoid contacting petitioner or causing any person other than a party's attorney to contact petitioner, and to leave the children in the home. The first two requirements were preprinted and then marked by the judge. The last requirement was typed on a line marked "other." The order provided that it was in effect until the injunction hearing, which a hand-written entry indicated was scheduled for March 19, 1987.

The temporary restraining order was issued without any notice to Alvin Blazel. He first became aware of the matter on March 14, 1987, when he was served with the order.

Alvin and Donna Blazel own their residence jointly.

On March 19, 1987 Donna Blazel failed to appear at the injunction hearing and the action was dismissed. On the same day, Donna Blazel filed a second petition with the Marathon County Circuit Court, again requesting a domestic abuse restraining order. In the petition she repeated the allegations she had made in her first petition and added others about earlier incidents. She checked the boxes indicating that she wished an order requiring the respondent to avoid their residence and to avoid contacting her. In the space entitled "Other" she requested that respondent's family and friends be prevented from contacting her or the children on their property.

On March 19, 1987 Hon. Vincent Howard, Circuit Court Judge, issued an ex parte temporary restraining order similar to the one Judge Bradley had issued with the additional requirement that respondent's family and friends should avoid contact with petitioner and children at petitioner's residence.¹

Donna Blazel executed a dismissal of the second action on March 24, 1987 and the court dismissed the action on March 30, 1987.

Between March 1, 1986 and March 3, 1987, at least 29 petitions for domestic abuse restraining orders were filed with the Circuit Court for Marathon County. Most involved the issuance of a temporary restraining order. It appears that some were issued without notice to the respondent.

Gerhardt Getzin, a family law practitioner in Wausau, Wisconsin, was involved in thirteen of these cases. In each case, the court issued an ex parte domestic abuse restraining order based on the petition alone. In many of these cases, there was no judicial contact with the petitioner.

OPINION

Plaintiffs' challenge to Wis.Stat. § 813.12(3) is directed to what they contend is the statute's authorization of procedures that violate due process.² They argue that it is unconstitutional for judges and family court commissioners to issue temporary restraining orders without notice to the respondent, ordering the respondent to avoid petitioner's home and not to contact the petitioner simply because the petitioner alleges sufficient facts for a judge or family court commissioner to find "reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent, may engage in, domestic abuse of the petitioner."³ Plaintiffs contend that the statute is deficient on its face and as applied because it does not require notice or hearing before the order is issued and because it does not incorporate necessary safeguards that would render an ex parte order constitutional, such as sworn statements, evidence of a pattern of abuse, allegations of imminent danger, narrowly drawn definitions, and intensive review of specific allegations.

The statute at issue is a fairly recent response to the growing public understanding of the serious problem of domestic abuse. It was preceded by an earlier version of the statute, § 813.025, enacted in 1979, and repealed and replaced with the current statute, § 813.12, in 1983. Both contain essentially similar provisions concerning ex parte temporary restraining orders.

Wisconsin is not alone in having this type of legislation. Every state and the District of Columbia have enacted legislation intended to respond to the problem of domestic violence. See Ex Parte Protection Orders: Is Due Process Locked Out?, 58 Temple Law Quarterly 841, 841 n. 1 (1985). Thirty-seven of these statutes provide ex parte preliminary relief. Id. at 848 n. 37. No federal court has yet addressed the constitutionality of any of these statutes, although the Eastern District of Wisconsin considered the constitutionality of a similar statute in the divorce context. See Geisinger v. Voss, 352 F.Supp. 104 (E.D.Wis. 1972). Four state courts, including the Wisconsin court of appeals, have considered due process challenges to state statutes permitting ex parte orders in domestic abuse cases and have upheld the statutes. See Schramek v. Bohren, 145 Wis.2d 695, 429 N.W.2d 501 (Ct.App.1988); Marquette v. Marquette, 686 P.2d 990 (Okla.App.1984); State v. Marsh, 626 S.W. 2d 223, 231 (Mo.1982) (en banc); Boyle v. Boyle, 12 D. & C.3d 767, 775 (C.P.Alleg. 1979).

1. Analysis of Wisconsin Decision

In the recent Schramek decision, the Wisconsin court of appeals considered claims that § 813.12 is unconstitutional on its face and as applied because of inadequate notice of hearing, denial of a hearing before issuance of a temporary restraining order, denial of the right to a jury trial, vagueness, overbreadth, and denial of equal protection. The court rejected each of these claims. (Because the plaintiffs in this case challenge only the statute's notice and hearing provisions, I will not examine the court of appeals' discussion and rejection of Schramek's other constitutional claims.)

In Schramek, the plaintiff contended that the statute violated the due process clause because it failed to provide for notice of the injunction hearing and the nature of the charge so as to permit the respondent to prepare a defense and make objections. The court of appeals found that due process was satisfied by the statute's...