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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 115449
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I reside in Nevada and my Ex Lives in Massachusetts where

Customer Question

I reside in Nevada and my Ex Lives in Massachusetts where she has a protective order against me.
She had her new husband text message me from her phone (a # ***** didn't recognize) and start up a convo and then I called him and talked to him at his request for about an hour. He admits exactly that in the affidavit he gave the police and now I have been charged with violating the order.
According to Caplan V Donovan Mass SJC*****doesn't have personal jurisdiction over me with this civil order that has a criminal penalty and even if I did call her (which no one is saying I did) . Is that correct?
"The SJC held that while the District Court lacked personal jurisdiction over the defendant, it is not required for the Court to issue an abuse prevention order as long as there is notice and an opportunity to be heard."
Then Also "The court noted that if the telephone calls from the defendant to the plaintiff contained threatening or harassing statements, this could give rise to personal jurisdiction over a nonresident. In this case, the record did not reveal the content of the phone calls."
Plus "...the conditions that place affirmative obligations on the defendant [within massachustts that would otherwise be grounds for a criminal violation] (i.e., that portion of the order that requires the defendant to surrender his firearms and to compensate the plaintiff monetarily) are invalid without personal jurisdiction over the defendant."
So although this is a civil court decision it's going to apply to my civil order that resulted in a criminal violation - when my voice entered the state?
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

Yes. That is basically how it works. But you could always fall back on entrapment. That means that had you not been enticed to make the call with the initial contact coming from the new husband you would not have made contact as per the order. Entrapment is available as a defense when one can show they would not have otherwise acted on their own to break a law or violate an order.

Customer: replied 1 year ago.
1 he/she's not an agent of the state or government so theres no entrapment defense. Try this test; if you run up and slap someone for nothing and then they slap you is that entrapment? No if you're a civilian yes of you're a cop.#2 entrapment is a trial issue. This is a pretrial trial validity issue so it has no place in this conversation it's only mentioned in the context of the conversation being civil and welcomed.
Expert:  Samuel II replied 1 year ago.

Technically you are correct. But the premise is the same and I was trying to articulate it in a comparative way.

Expert:  Samuel II replied 1 year ago.

In essence it is a conspiracy matter where two or more persons conspired to get you to break the order.

Expert:  Samuel II replied 1 year ago.

And it is not something you would have done if you were not contacted first.

Customer: replied 1 year ago.
OK that's totally great for trial defense. The issue at hand is personal jurisdiction. I have a huge amount of great defense no one would ever get a conviction on this but I don't want to fight that battle. It needs to be pre won with personal jurisdiction before it even gets past arrangement.
Expert:  Samuel II replied 1 year ago.

Thank you.

And can you please tell me what the question is in regard to jurisdiction? If you made the call to another state, then the Restraining/Protective Order has been violated in that state. Additionally, the RO/PO will be enforceable in your state if they had it registered to in your state. Were you served with the RO/PO ?

Customer: replied 1 year ago.
The personal jurisdiction issue is that Massachusetts, state with the RO, doesn't have personal jurisdiction over me because I didn't enter the state, am not a resident of the state and I did not make any kind of threatening call to the protected party. It's not a crime to call someone and ask to speak to someone else. And an RO is a civil order so the provisions of civil law are going to apply to it when it comes to the technical personal jurisdiction issue.Caplan V Donovan"...conditions that place affirmative obligations on the defendant (i.e., that portion of the order that requires the defendant to surrender his firearms and to compensate the plaintiff monetarily) are invalid without personal jurisdiction over the defendant."
And they also say"The court noted that if the telephone calls from the defendant to the plaintiff contained threatening or harassing statements, this could give rise to personal jurisdiction over a nonresident. In this case, the record did not reveal the content of the phone calls."
Expert:  Samuel II replied 1 year ago.

Yes. That is what I thought you were asking about. If the RO is effective in Massachusetts and you were not served with the Restraining Order, then it is not in effect. One must be served with the Order for it to be effective.

Expert:  Samuel II replied 1 year ago.

And for that to happen, the Order would have needed to be registered with a court in your county and state, the sheriff would have served you. Then it is effective.

Customer: replied 1 year ago.
The order was served to me In massachusetts 3 years ago. It is a lifetime order that I know of.
Expert:  Samuel II replied 1 year ago.

Ok. Thank you. So if you were served and then moved, the Order is still in effect and enforceable. And since you texted and called, it is enforceable.

Customer: replied 1 year ago.
Except for the fact that there's no personal jurisdiction with me residing in another state and being in that state on that civil order which was the basis for the criminal charge.
Expert:  Samuel II replied 1 year ago.

Ok. Well, the state that issued the order has jurisdiction if the order is violated.

Customer: replied 1 year ago.
of course it does but without personal jurisdiction over someone 3000 miles away residing in another state not having entered the state - there's no violation in the first place.Mass SJC affirmed this in Caplan V Donovan"...conditions that place affirmative obligations on the defendant (i.e., that portion of the order that requires the defendant to surrender his firearms and to compensate the plaintiff monetarily) are invalid without personal jurisdiction over the defendant."And they also say"The court noted that if the telephone calls from the defendant to the plaintiff contained threatening or harassing statements, this could give rise to personal jurisdiction over a nonresident. In this case, the record did not reveal the content of the phone calls."
Expert:  Samuel II replied 1 year ago.

Ok. Thank you. I am going to opt out because I obviously am having a time communicating with you.

Please DO NOT Rate or respond here at this time. Another professional will assist you and your Deposit will remain in tact.

Thank you for your patience and I apologize for any inconvenience.

Good luck

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a different contributor and a MA attorney.

You are correct, the court would not have personal jurisdiction over you in this matter unless the incident occurred in MA. The question becomes where the incident occurs when a text is sent from NV to MA. Did the incident occur in MA, where the text was received, which is likely what the court would hold, because had the text not been received by the person in MA there would have been no violation of the order in MA. This is the issue that you have on the personal jurisdiction. However, if the defendant is never served with the order of protection, then you could not have it enforced against you based on the due process argument, not really personal jurisdiction. If you were served, then you would not have the due process claim, since you had notice and an opportunity to object to the order.

Furthermore, while it is not "entrapment" per se, it is a claim for estoppel, which is a civil defense saying that a person cannot benefit from something that they themselves caused. So by the husband calling and initiating the text contact, they caused this to occur as you had no idea who you were responding to. So you have defenses available, but if the text was received in MA, personal jurisdiction would not be the issue as much as your estoppel claim.

Customer: replied 1 year ago.
Did I allegedly violate a civil law or a criminal law here? 209A is a civil order with a criminal penalty. 209A statute in a civil chapter surrounded by other civil law chapter statutes.So if 209A is a civil law then the personal jurisdiction issue doesn't fall under the court authority in a criminal case (YET) as simply a standing order as indicated in Caplan V Donovan.So before we even get to the place where we try and decide if the crime of texting or calling was committed the issue is does the court have the authority to charge me with the violation of a civil statute, with respect to personal jurisdiction?Lets look at the personal jurisdiction requirements for civil law - not criminal.Personal jurisdiction is the power of a court over the parties in the case. Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits. International Shoe v Washington, 326 US 310 (1945).
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

This type of restraining order is a civil order with quasi-criminal penalties. You keep saying the court has no personal jurisdiction, but you said above you were served the order. So the issue the MA court will look at is where the actual violation occurred, if it occurred while you were in NV and the other party was in a state other than MA, then no the MA court would not have jurisdiction as the alleged violation did not happen in MA. IF the text was received in MA though, the violation happened in MA as far as the court is concerned for the enforcement of this type of order.

You are making proper arguments above, but not the same facts that apply to those arguments. You have a defense here, but not the one you want to make. So as you do have a defense here, and a very good defense, that is the one you should be pursuing and not the arguments that you want to make even though they may sound enticing to you, the facts as you described them would make the cases you are citing not apply.

Customer: replied 1 year ago.
These personal jurisdiction arguments would sound very enticing to you too if you had to travel 6000 miles roundtrip otherwise!
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

You do not have to travel, you can engage a local attorney in MA to do the appearance and seek the dismissal without your appearance and it would be infinitely cheaper.

Customer: replied 1 year ago.
I think that's an urban legend at this point. The judge already denied a motion to appear ex parte referencing a revision to Rule 7 Rules of Criminal Procedure. Supposedly no more arraignments in absentia.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

I do not know, I have had numerous judges in MA waive appearance when arguing cases on motions to dismiss. However, you do have a defense to these charges to pursue so if the judge would not approve of you appearing through counsel, then you have to appear and raise your valid defense to these allegations.

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