A Los Angeles-based Milbank pro bono team helped to secure a favorable ruling for a domestic violence survivor in a significant appeal in California involving the jurisdiction of a restraining order.
The team, including associates Byron Chan, Ashlee Lin, and Ayana Sumiyasu and partner Mark Shinderman, filed an amicus brief on behalf of the University of Oregon School of Law Domestic Violence Clinic and 11 other legal services and advocacy organizations serving survivors of domestic violence in the case before the Third District Court of Appeal, Hogue v. Hogue. The appeal was brought by the nonprofit Family Violence Appellate Project.
The plaintiff, Ms. Hogue, a survivor of domestic abuse, fled to California from Georgia and filed a request for a domestic violence restraining order against her husband under California’s Domestic Violence Protection Act. In her request, she stated that her husband physically, verbally and emotionally abused her throughout their 20-year relationship in the two states. She also stated that he sent her a threatening video message from Georgia, which he did not deny, and that she continued to fear for her safety.
The California trial court denied the order of protection, arguing that it “lacked personal jurisdiction” over Mr. Hogue given that he resided in Georgia. The court held that the “gravamen” of Ms. Hogue’s request for a restraining order involved recent incidents of physical abuse that happened when the couple lived in Georgia, rather than in California.
In their brief supporting the appeal of this decision, the amici argued that the trial court erred in failing to connect the 18 years of abuse Ms. Hogue suffered in California to the abuse she suffered in Georgia, and in failing to connect this abuse in Georgia with the abuse that continued after her return to California. “Simply, domestic violence is not episodic, but entails a course of conduct that is factually and legally related,” they observed. The amici cited experts in domestic violence who have demonstrated that this type of abuse is an ongoing “regime” or pattern of domination that takes place over time and cannot be treated as discrete episodes.
Secondly, they argued, the trial court’s failure to issue a restraining order “essentially punished Ms. Hogue for fleeing” Georgia, while rewarding her abuser and leaving her without recourse in California.
The brief also notes that the trial court’s ruling has dangerous implications for other domestic violence survivors, potentially discouraging them from fleeing to California for safety because they would be unable to obtain a restraining order if needed, and making other survivors with protective orders reluctant to go to California for fear their orders would not be enforced. “Not only is domestic violence an enormous problem affecting millions of victims a year, but many of these victims flee across state lines,” the brief states. “The dangerous consequences of the trial court’s decision greatly jeopardize the safety of such victims whose protective orders and ability to obtain protective orders are threatened as they flee to California for safety.”
In its decision – the first-ever ruling of its kind – the appellate court found that Mr. Hogue’s threats from Georgia, including those over the internet, were indisputably domestic violence as defined by California’s laws, and therefore could be considered as the basis for finding personal jurisdiction and granting a restraining order. According to the Family Violence Appellate Project, “This ruling supports California’s goal of protecting all abuse survivors by affirming that anyone who commits an act of domestic violence against someone who is in California will be subject to California’s domestic violence laws.”
According to Mr. Chan, a Milbank associate who helped prepare the brief, “It was an invaluable experience to be given the responsibility to draft an amicus brief on such an important issue for domestic violence survivors throughout the state. The entire pro bono team worked to create a brief that addressed the concerns of the amici and highlighted the social and legal implications of the trial court’s erroneous ruling.”
He adds: “With the Third Circuit Court of Appeal’s ruling to officially publish the case, this decision will provide an important resource for survivors of domestic violence who flee to California for protection.”
Ms. Lin, another associate who worked on the brief, echoed Mr. Chan’s comments: “It was such a wonderful opportunity to be a part of securing this important decision for domestic violence survivors in California. Hopefully this is just one of many decisions to come providing protection to these survivors and allowing them to seek refuge here."
