TRO Procedures Withstand Rational Basis (and Strict Scrutiny)


Hamilton v. Lethem (ICA June 30, 2011)

Background. Lily Hamilton filed a temporary restraining order (TRO) against Christy Lethem on behalf of their daughter, Amber. The TRO alleged three incidents in which Lethem physically assaulted Amber, threatened to physically assault her, and embarrassed her so badly that she suffered emotional distress. The TRO was granted and an evidentiary hearing was set.

At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again . . . . Don't make me hit you again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said that he was going to pull her out of school and that her younger sister was better than her "in this way."

Lethem testified at the hearing. He admitted that he had had a strained relationship with Hamilton and that they often argued because Amber was misbehaving. He spoke about the three incidents. He said that he never hit his daughter in the face, but did admit to hitting her shoulder in order to discipline her. As to the second incident, Lethem said that he was arguing with Amber and she tried to stand up and walk away from him. That was when he reached over and had her sit back down. He denied threatening to hit her. As to the third incident, Lethem denied blaming financial problems on his daughter.

The family court determined that no further action should be taken and allowed the 90-day TRO to run its course without issuing an injunction. The family court also concluded that the parental discipline defense in HRS § 703-309 did not apply. Lethem appealed the decision, and the ICA dismissed the case as moot. The HSC, however, introduced the collateral consequences exception to the mootness doctrine and ordered the ICA to resolve the case on the merits of Lethem's appeal. Hamilton v. Lethem, 119 Hawai'i 1, 193 P.3d 839 (2008).

The Constitutional Right to Raise Children. "No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. Amend. XIV, Sec. 1. Similarly, "[n]o person shall be deprived of life, liberty or property without due process of law[.]" Haw. Const. Art. I, Sec. 5. Lethem argued that the TRO infringed on his constitutional right to discipline his daughter. "In determining whether a statute conflicts with the Due Process Class, we have applied two tests. If a fundamental right is implicated, the statute is subject to strict scrutiny. If, however, a fundamental right is not implicated, the statute is subject to the rational basis test." State v. Mallan, 86 Hawai'i 440, 451, 950 P.2d 178, 189 (1998). The first issue confronted by the ICA was whether the TRO statutory scheme infringes on a "fundamental right."

The State and federal constitutions recognize a right to conceive and raise children. In re Doe, 99 Hawai'i 522, 532, 57 P.3d 447, 457 (2002); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944). However, this right is not unlimited; parents are protected by the constitutions when they inflict excessive discipline. State v. Crouser, 81 Hawai'i 15, 5, 911 P.2d 725, 735 (1996); Prince, 321 U.S. at 167.

TROs do not Infringe Upon the Right to Raise Children. The ICA held that HRS Chapter 586 does not infringe upon the fundamental right to raise children. The statute protects "[p]hysical harm, bodily injury, assault" and "emotional distress." HRS § 586-1. According to the ICA, parents do not have the first to employ force "the legislature has deemed to be excessive and harmful to the child's welfare[.]" Crouser, 81 Hawai'i at 15, 911 P.2d at 735. Thus, the rational basis test applied.

"Under rational basis review, a statute must rationally further a legitimate state interest. A state interest is legitimate if it involves the public health, safety, or welfare." State v. Mallan, 86 Hawai'i at 451-52, 950 P.2d at 189-90. Here, the ICA held that the governmental interest in a family court TRO is to protect minors from physical and psychological harm. The TRO is reasonably related to furthering that interest. Accordingly, it does not violate Lethem's constitutional rights.

Strict Scrutiny too? The ICA noted obiter dictum that "Chapter 586 would withstand strict scrutiny as well." Under the strict scrutiny test, the statute is presumed "unconstitutional unless the state shows compelling state interests which justify such classifications, and that the laws are narrowly drawn to avoid unnecessary abridgements of constitutional rights." SCI Management Corp. v. Sims, 101 Hawai'i 438, 460, 71 P.3d 389, 411 (2003). According to the ICA, HRS chapter 586 "advances a compelling state interest in preventing harm to children." The State has strong interest in preventing child abuse. Crouser, 81 Hawai'i at 14, 911 P.2d at 734; Prince, 321 U.S. at 166. The ICA also noted that "HRS Chapter 586 is narrowly drawn to avoid unduly burdening the exercise of parental rights." The ICA explained that TROs prevent "domestic abuse," which is defined as acts or threats of "[p]hysical harm, bodily injury, assault" or a course of conduct that causes "extreme emotional distress." HRS § 586-1. There are also procedural safeguards that protect a parent's rights.

Parental Discipline Defense does not Apply to TROs. The ICA held that the family court did not err in refusing to apply the parental discipline defense. The parental discipline defense is limited to the Hawai'i Penal Code. HRS § 703-309. It does not expressly apply to TRO proceedings. The ICA noted that the definition of "domestic abuse" under HRS § 586-1 encompasses conduct that is broader than criminal domestic abuse defined by HRS § 709-906. Thus, the legislature intended the conduct giving rise to a TRO is broader than conduct giving rise to criminal liability.

TRO Procedure not in Violation of Procedural Due Process. The Due Process Clause requires "notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest" can take place. Guardianship of Carlsmith, 113 Hawai'i 236, 239, 151 P.3d 717, 720 (2007). When a deprivation takes place prior to the notice and hearing, the courts must consider three important factors: (1) the private interest at stake; (2) the government's interest and the interest of the party seeking the remedy; and (3) the probable value of additional or substitute procedural safeguards. Mathrews v. Eldridge, 424 U.S. 329, 335 (1976); Connecticut v. Doehr, 501 U.S. 1, 11 (1991).

The ICA examined the interest at stake: a parent's right to the custody, care, and rearing of his or her children. The ICA acknowledged that the TRO deprived Lethem of his right to care for his child. As for the second factor--the petitioner's interest and the government's "ancillary interests"--the ICA noted that victims of domestic violence have an interest in obtaining immediate relief from the abuse. The government also has an interest in protecting family and household members from harm. The State has a responsibility to protect children. For the third factor--the risk of erroneous deprivation, and the fairness and reliability of pre-deprivation procedures, the ICA ruled against Lethem. The ex parte TRO process requires petitioners to allege past acts domestic abuse. HRS § 586-3(c). It requires a sworn statement and a finding of probable cause that past acts have occurred and further abuse is imminent before a TRO may issue. HRS § 586-4(c). Moreover, there must be an immediate hearing on the TRO, at which the petitioner has the burden of proof. HRS § 586-5(b). The ICA held that these safeguards are adequate for Due Process purposes.

Passes on Claim that TRO is Gender-Biased. Lethem also argued that the TRO process is gender-biased in violation of the Equal Protection Clause. He argued that the ex parte process is "discriminatory against men" that leads to "gender profiling." The ICA held that Lethem waived this claim because he failed to raise a cogent argument. HRAP Rule 28(b)(7). The ICA again stated, in dicta, that there is little evidence of an equal protection violation.

The TRO statutes are gender neutral. Thus, in order to establish an equal-protection violation, there must be "evidence of a pattern of discriminatory enforcement against [men] so overwhelmingly that intent to discriminate can be inferred. Such a pattern of invidious discrimination, demonstrating an unequal application of the law extreme enough to show intentional discrimination is necessary because . . . disparate impact of legislation alone is not enough to make out an equal protection violation." State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 987 (1985). Lethem did not present this kind of evidence.

An Interesting Point . . . According to the ICA, Lethem needed to establish a pattern of discrimination giving rise to inferred discriminatory intent. So maybe there is an equal protection claim out there after all.

No Abuse of Discretion in Granting the TRO. The ICA also held that the family court did not abuse its discretion in granting the TRO against Lethem. There was sufficient evidence in the petition and at the hearing supporting the family court's findings.

What's the Issue? It appears that the question was whether there was sufficient evidence presented to the family court in order to support a finding of probable cause and issuance of an ex parte TRO. This is not unlike challenges to a district court's finding of probable cause to issue a search warrant. In those cases, "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." State v. Detroy, 102 Hawai'i 13, 18, 72 P.3d 485, 490 (2003). Here, the ICA relied on not only the petition, but the testimony at the hearing. It also reviewed the findings issued after the hearing for an abuse of discretion.

This is troubling. If the question was whether the family court had enough evidence to issue the ex parte TRO based on the petition, then the standard of review should be de novo, and the ICA should look no further than the four corners of the TRO petition. The hearing, the evidence presented at that hearing, and the family court's findings of fact would have no bearing on the question.


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