Remember in high school civics when you learned about “separation of powers?” You know the drill: The legislative branch makes the laws, the judiciary interprets the laws, and the executive branch enforces the laws. Well, in the context of protective orders, it looks like the Kentucky Supreme Court may need to go back to school.
A little background might be useful here. Protective orders are the legal remedy domestic violence victims use to access the court system and seek protection from their abusers. The remedy was created by statute – KRS 403.715 et. seq. In the very first part of the statute, Kentucky’s legislative body, the General Assembly, declared that the intent of the statute is to “[t]o allow persons who are victims of domestic violence and abuse to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible . . . .”
The process of obtaining an order of protection, very simply put, goes something like this: A victim goes to the courthouse, or intake center, or clerk’s office and completes a petition for an emergency protective order (EPO). The petition is presented to a judge and, if it establishes the existence of domestic violence and abuse, the EPO is entered. The order is then served on the batterer, along with a summons ordering the batterer’s appearance at a full hearing. If, after the hearing, the court again finds the existence of domestic violence, a more permanent order, known as a domestic violence order (DVO), is entered.
But what happens if the court, on reviewing the petition for an emergency order, does not find the existence of domestic violence or abuse? Does she still get to go forward to a full hearing to try and convince the court of her need for protection? In KRS 402.745(1), the General Assembly answered this question with an unequivocal yes:
If, upon review of the petition as provided for in KRS 403.735, the court determines that the allegations contained therein do no indicate the presence of an immediate and present danger of domestic violence and abuse, the court shall fix a date, time, and place for a hearing and shall cause a summons to be issued for the adverse party.
Protective orders are akin to civil lawsuits. In a civil suit, say a trespass case, the process is initiated with the filing of a complaint. In a trespass case, the complaint may be accompanied by an order seeking an emergency injunction preventing the defendant from entering onto the plaintiff’s property. Even if the emergency order is not granted, the plaintiff still gets to go forward and prove that he is a victim of trespass.
The General Assembly thought the same should hold true for domestic violence victims. If the petition for an EPO is denied, the petitioner still gets the opportunity to be heard by the court. The court still must issue summons to the respondent and hold a hearing with both parties present before dismissing the case. Like our trespass case, the suit does not end only because petition for emergency relief was not granted.
Makes sense? To me it does and, apparently, it did to the General Assembly. Not so much to the Kentucky Supreme Court. Last year, the Kentucky Supreme Court adopted new rules of criminal and civil procedure, as well as new rules governing Family Courts. In FCRPP 10 (Family Court Rules of Practice and Procedure), the Court stated, in relevant part:
FCRPP 10 shall read: If an emergency protective order is not issued . . .for failure to state an act or threat of domestic violence between the parties, the finding of the . . . failure to state an act or threat of domestic violence shall be noted on the petition by the judge, and no summons shall be issued.
What’s a judge to do? The Kentucky General Assembly has said a judge must issue a summons if the emergency order has been denied. They made this very clear when they said a court “shall cause a summons to be issued to the adverse party.” In legal speak, “shall” is a mandatory term that means the judge doesn’t have another option. The Kentucky Supreme Court, however, says “no summons shall be issued.” Again, the word shall means a judge doesn’t have a choice – under the rule, they can’t issue a summons.
Here’s where separation of powers problem occurs. Both the Supreme Court and the General Assembly are legislating – that is, making law. What the Supreme Court is ignoring is their high school civics lesson – only the state’s legislative body can make the law. The Supreme Court only gets to interpret it.
The irony here comes in at the end of the process, regardless of what a family court judge chooses to do. Say a victim seeks an EPO, it’s denied, and a judge issues a summons, holds a hearing, finds domestic violence exists and enters a DVO. The respondent appeals the DVO, saying, in part, no summons should have been issued pursuant to FCRPP 10. The case goes first to the Court of Appeals, but for a final resolution, guess where it will end up? That’s right, the Kentucky Supreme Court! Are they going to follow the General Assembly’s pronouncement or their own rule?
Sadly, the bigger problem is not what will happen if a case ends up before the Kentucky Supreme Court. The bigger problem is the countless victims who will essentially be kicked out of court all over the state by judges who choose to follow the erroneous rule of the Supreme Court. We’ve all heard stories of judges who will do nearly anything to erect barriers to victims seeking protection. The Kentucky Supreme Court has handed these judges a huge barrier to use at will.
 Obviously, this is the way the protective order process is supposed to work in a perfect world. If anyone knows where that is, let us know; we want to relocate there.
 If I were a judge, I would follow the statute because the pronouncement of a legislative body trumps the statement of a Court that is exceeding its constitutional authority. Incidentally, I aced high school civics.