No. 14-435

IN THE

NEAL FOX,

Petitioner, v.

EUGENE FOX,

Respondent.

On Petition for a Writ of Certiorari to the Vermont Supreme Court

BRIEF IN OPPOSITION

Cabot Teachout Counsel of Record DESMEULES, OLMSTEAD & OSTLER P.O. Box 1090 Norwich, Vermont 05055 (802) 649-2001 cteachout@doolaw.com

QUESTION PRESENTED

As discussed below, the lack of an Article III case or controversy prevents this Court from reaching the merits.

Regarding the merits, the question presented is:

Whether, in a case not involving intimate partners, a state court may issue a final no-contact protection order against a defendant without having personal jurisdiction over that defendant.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

STATEMENT OF THE CASE..................................... 1

REASONS FOR DENYING THE WRIT ..................... 6

I. This Court Lacks Jurisdiction To Hear This Case Because It Is Moot ............................... 6

II. This Case Is A Particularly Poor Vehicle For Deciding The Question Presented ............... 11

A. This Case Does Not Provide A Proper Factual Basis For Examining The Potential Exceptions To Personal Jurisdiction For Domestic Violence Orders ............................................................ 12

B. Even If This Case Were Still A Live Controversy, Relief From This Court Would Not Affect Its Outcome ...................... 16

III. The Issue That This Case Actually Presents Is A Narrow One That Does Not Require Resolution By This Court ...................... 18

IV. The Vermont Supreme Court Correctly Refused To Dispense With The Personal Jurisdiction Requirement ................................... 22

CONCLUSION .......................................................... 25

APPENDICES

Appendix A, March 13, 2014 Extended Order of Protection .............................................. 1a

Appendix B, June 11, 2014 Extended Order of Protection ......................................................... 6a

Appendix C, August 29, 2014 Entry Regarding Motion .............................................. 11a

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Alvarez v. Smith, 558 U.S. 87 (2009) ................................................. 9

A.R. v. M.R., 99 A.2d 27 (N.J. Super. Ct. App. Div. 2002) ....... 21

Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001) ....................... 15, 16, 18

Benson v. Muscari, 769 A.2d 1291 (Vt. 2001) ..................................... 10

Burke v. Barnes, 479 U.S. 361 (1987) ........................................... 6, 7

Caplan v. Donovan, 879 N.E.2d 117 (Mass. 2008) ...... 14, 16, 18, 19, 24

Embree v. Balfanz, 817 A.2d 6 (Vt. 2002) ........................................... 17

Estin v. Estin, 334 U.S. 541 (1948) ............................................. 24

Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) ........................................... 7

Hemenway v. Hemenway, 922 A.2d 575 (N.H. 2010) .............................. 16, 18

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) ......................................... 5, 22

Kremens v. Bartley, 431 U.S. 119 (1977) ............................................... 7

Kulko v. Superior Court, 436 U.S. 84 (1978) ......................................... 22, 23

iv

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ............................................. 12

Milliken v. Meyer, 311 U.S. 457 (1940) ............................................. 22

Murphy v. Hunt, 455 U.S. 478 (1982) (per curiam) ........................ 11

N. Aircraft, Inc. v. Reed, 572 A.2d 1382 (Vt. 1990) ....................................... 5

North Carolina v. Rice, 404 U.S. 244 (1971) (per curiam) .......................... 8

Rios v. Fergusan, 978 A.2d 592 (Conn. Super. Ct. 2008) ................ 21

Shah v. Shah, 875 A.2d 931 (N.J. 2005) ................... 14, 16, 18, 20

Spencer v. Kemna, 523 U.S. 1 (1998) ................................................. 10

United States v. Juvenile Male, 131 S. Ct. 2860 (2011) (per curiam) ...... 7, 9, 10, 11

Walden v. Fiore, 134 S. Ct. 1115 (2014) ......................................... 22

CONSTITUTIONAL AUTHORITY

U.S. Const., amend. XIV, § 1 ............................. passim

STATUTES

18 U.S.C. § 921(a)(32) ............................................ 4, 13

18 U.S.C. § 922(g)(8) .................................................... 4

18 U.S.C. § 922(g)(8)(B) ................................... 4, 13, 14

18 U.S.C. § 2265(b)(1) ................................................ 21

15 V.S.A. § 1102(c) ....................................................... 3

v

15 V.S.A. § 1103(a) ....................................................... 2

15 V.S.A. § 1103(c) ....................................................... 9

15 V.S.A. § 1103(c)(1) ............................................. 3, 11

15 V.S.A. § 1103(c)(1)(A) .............................................. 3

15 V.S.A. § 1103(c)(2) ................................................. 23

15 V.S.A. § 1103(e) ............................................. 3, 9, 10

15 V.S.A. § 1104(a) ....................................................... 2

15 V.S.A. § 1106(a) ..................................................... 17

15 V.S.A. § 1108(c)(3) ................................................. 22

Cal. Fam. Code § 6345(a)........................................... 10

Fla. Stat. § 741.30(6)(c) ............................................. 10

Iowa Code § 236.19(3)(b) ........................................... 22

Mass. Gen. Laws, ch. 209A ........................................ 19

N.H. Rev. Stat. Ann. § 173-B:13 ............................... 22

N.Y. Fam. Ct. Act § 842 ............................................. 10

Ohio Rev. Code Ann. § 3113.31(E)(3)(a) ................... 10

Wash. Rev. Code § 26.50.060(2) ................................ 10

RULES

Vt. R. App. P. 41(a) .................................................... 6

Vt. R. App. P. 41(c)..................................................... 6

Vt. R. App. P. 41(c)(2) ................................................ 8

Vt. R. Civ. P. 4(e) ..................................................... 17

Vt. R. Fam. P. 9(a)(1) ............................................... 17

OTHER AUTHORITIES

Bragg, H. Lien, Child Protection in Families Experiencing Domestic Violence (2003) ............. 16

vi

Moore, James Wm. et al., Moore’s Federal Practice (3d ed. 2013) ........................................................ 23

Restatement (Second) of Judgments (1982) ............. 24

Wright, Charles Alan et al., Federal Practice and Procedure (3d ed. 2008) ............................... 7, 8, 23

STATEMENT OF THE CASE

Respondent Eugene Fox, a former school guidance counselor, is a 66-year-old resident of New Hampshire. In April of 2012, he attended a guardianship hearing regarding his father in New Hampshire probate court. Pet. App. 1a-2a. Petitioner Neal Fox, a 77-year-old resident of Vermont, traveled to New Hampshire to attend as well. The hearing touched on allegations that petitioner, respondent’s uncle, had sold real estate belonging to respondent’s father by acting as “executor” of his “estate” while the father was still alive. See Vt. Family Ct. Final Hr’g Tr. (“Tr.”) 32-33, 56.

Directly after the probate court hearing, in a parking garage adjacent to the courthouse, petitioner and respondent got into a fight. Defendant’s Further Statement at 1, State v. Fox, No. 216-2012-CR-00500 (N.H. Super. Ct. Feb. 1, 2013). Though respondent maintains that petitioner struck the first blow, id., he ultimately pleaded guilty to misdemeanor simple assault in New Hampshire criminal court and received a twelve-month suspended sentence. Pet. App. 3a. The terms of respondent’s suspended sentence require that he refrain from contact with petitioner and petitioner’s immediate family until February 2015. Def.’s Vt. Sup. Ct. Printed Case (“Printed Case”) 15.

About three weeks after the altercation and without any intervening contact between the parties, petitioner filed a request for a protection order in family court in Vermont where he resides. Pet. App. 2a; Printed Case 1.

2

Under Vermont law, courts may issue both temporary and final protection orders. A temporary order may issue without notice to the defendant upon a showing that the defendant has abused the plaintiff. 15 V.S.A. § 1104(a). These temporary orders may require the defendant to refrain from contacting the plaintiff and his or her children, require the defendant to vacate a shared residence, and temporarily award custody of any children to the plaintiff. Id.

A temporary protection order issued on the date petitioner filed this case, enjoining respondent from contacting or approaching petitioner. Petitioner and respondent do not share children or a residence, so the order did not address those issues.

While the temporary order was in effect, respondent sought to dismiss the complaint and later moved for summary judgment on several grounds. First, respondent argued that because the conduct in question occurred outside Vermont, and he had no significant contacts with the state, Vermont courts lacked personal jurisdiction over him. Printed Case 5. A final order against him, he argued, would be inconsistent with the Due Process Clause and Vermont’s Rules of Civil Procedure. Second, he argued that an order could not issue because the parties were not “family or household members” as required by Vermont law. Id. 5-6; see 15 V.S.A. § 1103(a). Finally, he argued that a protection order was not “necessary,” as required by statute because he had no intent to contact petitioner and, in any case, the conditions of his New Hampshire suspended sentence already prohibited further contact with petitioner, eliminating the need for a separate order

3

in Vermont. Printed Case 12-13; see 15 V.S.A. § 1103(c)(1).

The family court denied respondent’s motions. Rejecting his personal jurisdiction argument, the court relied on the venue provision of Vermont’s protection order statute, 15 V.S.A. § 1102(c), to conclude that “jurisdiction may lie in the county where the plaintiff resides.” Printed Case 11. The court also rejected respondent’s other state-law arguments. Id. 11, 16.

On March 25, 2013, nearly a year after the temporary protection order was issued, the family court held a hearing on petitioner’s request for a final order. Pet. App. 2a-3a. At the hearing, respondent renewed his earlier arguments for dismissal and for summary judgment. He also argued that, in view of petitioner’s in-court testimony acknowledging that respondent had not attempted to approach or contact him at any time since the April 2012 altercation, Tr. 63-64, an order should not issue because there was no “danger of further abuse,” see 15 V.S.A. § 1103(c)(1)(A).

During the hearing, the court asked petitioner “how long [he] wanted the order to last,” and he requested a one-year order with the option to “renew.”1 Tr. 74-75. After rejecting respondent’s arguments, the judge granted petitioner’s request

1 Vermont law provides that final protection orders may be granted only for a fixed period, “at the expiration of which time the court may extend” the order “for such additional time as it deems necessary to protect the plaintiff . . . from abuse.” 15 V.S.A. § 1103(e).

4

and issued a one-year order. Tr. 78-79. The order thus was originally set to expire on March 25, 2014. See Pet. App. 23a. The order prohibited respondent from contacting or coming within 300 feet of petitioner or his residence, vehicle, or place of employment. Id. Violators of Vermont protection orders are subject to a variety of criminal sanctions and collateral consequences under state and federal law. See id. 12a-13a.2

Respondent appealed to the Vermont Supreme Court. He argued that personal jurisdiction was required under the Due Process Clause, Vermont’s long-arm statute, and the Vermont Rules of Civil Procedure; that the parties were not “family members” under Vermont’s protection order statute; that a protection order was not “necessary” under that statute because of the prohibitions imposed in the New Hampshire criminal proceeding; and that the court made an erroneous factual finding that respondent had “stalked” petitioner. See Pet. App. 1a.

While the appeal was pending, petitioner sought, and respondent agreed to, two extensions of the family court’s final order. BIO App. 1a-5a (Mar. 13, 2014 Order), 6a-10a (June 11, 2014 Order). The

2 The order also referenced 18 U.S.C. § 922(g)(8), which prohibits the ownership of firearms by a defendant subject to an order “restrain[ing] [him] from harassing, stalking, or threatening an intimate partner.” As discussed below, see infra at 13-14, this prohibition did not apply here because petitioner and respondent are not “intimate partners.” See 18 U.S.C. §§ 921(a)(32), 922(g)(8)(B).

5

expiration date of the last order was September 13, 2014. Id. 6a.

On August 14, 2014, the Vermont Supreme Court reversed the family court. The Vermont Supreme Court reached only the personal jurisdiction issue, confining its analysis to the Due Process Clause and Vermont’s long-arm statute. Pet. App. 4a-5a. It thus did not address respondent’s other arguments for reversal.

The court began by noting that the Vermont long-arm statute generally has been interpreted as conferring jurisdiction “‘to the full extent permitted by the Due Process Clause’ of the U.S. Constitution.” Pet. App. 5a (quoting N. Aircraft, Inc. v. Reed, 572 A.2d 1382, 1385 (Vt. 1990)). It thus requires a plaintiff to prove “minimum contacts” – that the defendant has sufficient contacts with the forum state for the court’s exercise of jurisdiction to comport with “‘traditional notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

The Vermont Supreme Court held that “a court cannot issue a final abuse prevention order without personal jurisdiction over a defendant.” Pet. App. 12a. Noting that the order “restrains [the defendant’s] liberty,” “affects defendant’s substantive rights,” and has “substantial collateral consequences,” the court found that the protection order constituted “an enforcement of a liability” against the defendant rather than only a “declaration of plaintiff’s status.” Id. 13a-14a.

Applying this traditional personal jurisdiction requirement, the Vermont Supreme Court held that

6

respondent lacked the requisite “minimum contacts” with Vermont for issuance of the order. Pet. App. 16a. Because all of the conduct at issue took place in New Hampshire, the court concluded that respondent in no way directed his activities toward Vermont or purposefully availed himself of the state’s protection, and, thus, it reversed the family court’s order. Id.

Petitioner did not seek a stay of the Vermont Supreme Court’s mandate. See Vt. R. App. P. 41(a), (c). In light of the Vermont Supreme Court’s decision, the family court vacated its order sua sponte on August 29, 2014, BIO App. 11a, and the order expired by its own terms on September 13, 2014. BIO App. 6a. The petitioner did not oppose the vacatur and did not seek an extension of the underlying protection order.

REASONS FOR DENYING THE WRIT

I. This Court Lacks Jurisdiction To Hear This Case Because It Is Moot.

This case does not present an Article III case or controversy because the order obtained by petitioner was vacated forty-seven days prior to the filing of the petition for certiorari and in any event expired thirty-two days prior to that filing.

“Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case” regardless of whether there “may have been a live case or controversy when the case was decided [in the lower courts].” Burke v. Barnes, 479 U.S. 361, 363 (1987). This remains true even where “thoroughly prepared attorneys” and “amici curiae . . . ‘stand like greyhounds in the slips,

7

straining upon the start.’” Kremens v. Bartley, 431 U.S. 119, 134 n.15 (1977). Hence, where, as here, “an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ . . . the action can no longer proceed and must be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (citation omitted).

More specifically, “[o]nce an order has expired by its own terms, further review – whether by appeal or by collateral attack – usually is mooted.” 13C Charles Alan Wright et al., Federal Practice and Procedure § 3533.3.2 (3d ed. 2008) (footnotes omitted). For example, in United States v. Juvenile Male, 131 S. Ct. 2860, 2863 (2011) (per curiam), the Court found moot a challenge to the Sex Offender Registration and Notification Act where the “juvenile-supervision order requiring [the defendant] to register as a sex offender [had] expired” while pending before the Ninth Circuit. Similarly, in Burke v. Barnes, the Court was set to consider whether a law had been validly enacted by Congress, but determined that the case was moot because that law had “expired by its own terms” prior to the Court’s review. 479 U.S. at 363.

Much like the controversies in Juvenile Male and Burke, this case is predicated on an order that expired by its own terms prior to the filing of the petition for certiorari. That is, although the parties agreed to extend the protection order to June 13, 2014, and then to September 13, 2014, BIO App. 1a-5a, 6a-10a, petitioner sought no further relief beyond that date. The order thus “lost any further effect or utility,” when the trial court vacated it, or, at the

8

latest, when it expired on its own terms. 13C Wright et al., supra, § 3533.3.2.

Had petitioner sought to maintain his protection order, or had he simply desired to preserve the personal jurisdiction issue for further appeal to this Court, he could have requested a stay of the Vermont Supreme Court’s mandate and then, if necessary, an extension of the family court’s protection order pending appeal. See Vt. R. App. P. 41(c)(2) (providing for a stay of the Vermont Supreme Court’s mandate upon showing of “good cause”). Petitioner did seek and obtain such extensions while the appeal was pending before the Vermont Supreme Court. But petitioner did nothing further to stay the effect of the Vermont Supreme Court’s decision or to extend the family court’s order during the weeks after the ruling. Instead, petitioner allowed the expiration date of the extended order to pass without seeking any additional relief.

Put another way, because a decision from this Court reversing the Supreme Court of Vermont would do nothing to revive or extend the now-expired protection order, petitioner is asking this Court for an advisory opinion. Rather than presenting a “real and substantial controversy admitting of specific relief through a decree of a conclusive character,” petitioner is asking for an “opinion advising what the law would be upon a hypothetical state of facts.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (citation omitted).

Specifically, petitioner seeks a decision from this Court explaining what the rules would be if he (or anyone else) attempted at some future date to seek a new protection order. Vermont law does not

9

authorize revival of an expired protection order. Under Vermont law, “[r]elief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff.” 15 V.S.A. § 1103(c). Thus, because petitioner did not seek an extension “at the expiration” of the original order, he is no longer entitled to extend that order under Vermont law and would need to initiate a new family court proceeding to obtain any further order against respondent. That leaves him with nothing more than “an abstract dispute about the law, unlikely to affect [him] any more than it affects other . . . citizens” of the state. Alvarez v. Smith, 558 U.S. 87, 93 (2009).

Moreover, even if petitioner were entitled under Vermont law to seek an extension of the now-expired order, he would still need to prove that the extension was “necessary” for his protection. 15 V.S.A. § 1103(e). Petitioner’s ability to make that showing is highly speculative in light of the facts of this case, including the existence of the duplicative no-contact provision of the New Hampshire suspended sentence and petitioner’s acknowledgement that there has not been unauthorized contact between the parties since their April 2012 fight. Tr. 63-64. Consequently, even an interpretation of Vermont law that would allow for extension of a long-expired protection order would be an insufficient basis for a finding that there is a present controversy between the parties.

Furthermore, this Court cannot hear this case on the ground that the injury previously suffered by petitioner is “‘capable of repetition, yet evading review.’” Juvenile Male, 131 S. Ct. at 2865 (citation omitted). This exception to mootness doctrine applies

10

only in “‘exceptional situations’” where (1) the challenged action is too short in duration “‘to be fully litigated prior to cessation or expiration,’” and (2) “‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alterations in original) (citation omitted). This case satisfies neither criterion.

Unlike judicial orders involving pregnancy or challenges to transitory election practices, domestic violence protection orders are not inherently transitory or short in duration and thus will not evade review. In fact, the Vermont Abuse Prevention Act “imposes no limit on the duration of relief-from-abuse orders,” Benson v. Muscari, 769 A.2d 1291, 1298 (Vt. 2001) (upholding a five-year protection order), and allows for extensions as the court “deems necessary.” 15 V.S.A. § 1103(e).

Other states allow abuse protection orders to extend for significant periods, and some even provide for relief of indefinite duration. See, e.g., Cal. Fam. Code § 6345(a) (up to five years with the option of extension); N.Y. Fam. Ct. Act § 842 (same); Ohio Rev. Code Ann. § 3113.31(E)(3)(a) (same); Fla. Stat. § 741.30(6)(c) (providing for relief of indefinite duration); Wash. Rev. Code. § 26.50.060(2) (same). As a result, these types of protection orders are not “‘too short to be fully litigated prior to . . . expiration.’” Juvenile Male, 131 S. Ct. at 2865 (citation omitted).

Nor can petitioner meet the independent requirement that he would either need or succeed in obtaining an additional protection order against respondent but for the Vermont Supreme Court’s

11

decision below. Thus, there is no “‘reasonable expectation that the same complaining party [will] be subject to the same action again.’” Juvenile Male, 131 S. Ct. at 2865 (alteration in original) (citation omitted). To obtain a new protection order against respondent, petitioner would need to prove that (1) an act of abuse occurred, (2) there is a risk of future harm, and (3) an order is necessary to protect the plaintiff from future harm. 15 V.S.A. § 1103(c)(1). As noted, the record reflects that there has been no contact between the parties other than the single fight more than two-and-a-half years ago. Thus, even assuming that petitioner initiated a new action in Vermont (as opposed to New Hampshire, where respondent lives), there is no more than a theoretical possibility that he would succeed but for the personal jurisdiction requirement. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam). This Court thus lacks Article III authority to decide this case.

II. This Case Is A Particularly Poor Vehicle For Deciding The Question Presented.

Even putting aside the lack of an Article III case or controversy, this case does not provide a proper vehicle for examining the potential legal bases for creating an exception to the Due Process Clause’s personal jurisdiction requirement.

12

A. This Case Does Not Provide A Proper Factual Basis For Examining The Potential Exceptions To Personal Jurisdiction For Domestic Violence Orders.

A tangible illustration of the issues surrounding a legal question is necessary to “‘sharpen[] the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’” Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973) (citation omitted). Here, however, the unusual relationship between the parties might well deny this Court an adequate picture of the weighty considerations at stake in domestic violence cases more broadly.

The petition’s principal stated concern is how a ruling on the question presented might affect domestic-abuse victims, primarily women in abusive relationships who are forced to flee across state boundaries for fear of their abusers. See, e.g., Pet. 17-18. But to the extent that the question presented could be important to battered spouses and other domestic partners fleeing abuse, it should be considered in a case that actually presents those facts to the Court. Petitioner’s amicus emphasizes that domestic abuse is different from other types of violence primarily because “the parties have generally known and had an intimate relationship with each other” and “one party may be financially dependent on another.” Amicus Br. 12. Yet none of these facts is present here.

Instead, petitioner and respondent are adult men who have never lived with one another or shared an intimate relationship. There was no “abuse” either

13

before or after their April 2012 fight. Petitioner did not flee across state borders for fear of respondent; he simply lived in the neighboring state of Vermont and returned home to file this action. Petitioner does not claim that he was unable to return to New Hampshire because he feared attack by respondent; in fact, petitioner has appeared in probate proceedings in New Hampshire since the altercation. See Tr. 64.

Indeed, the facts here are so unrepresentative of domestic violence cases generally that a potentially legally dispositive issue – a federal gun dispossession law that applies only to protection orders involving “intimate partners” – is not presented by this case. As a result, a ruling in petitioner’s favor would not resolve the question presented for the vast majority of domestic violence cases.

Federal law provides that individuals subject to a state-court protection order may not lawfully possess a firearm when that order “restrains such person from harassing, stalking, or threatening an intimate partner.” 18 U.S.C. § 922(g)(8)(B). Although this firearm dispossession provision surely applies to most protection orders (those involving intimate partners), it does not apply here.3

This distinction is potentially crucial. Whether a state court is required to acquire personal jurisdiction over a defendant before issuing a

3 “Intimate partner” is defined as “the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.” 18 U.S.C. § 921(a)(32).

14

protection order turns at least in part on whether the order imposes “affirmative” obligations on a defendant.4 In a case involving intimate partners, Section 922 automatically imposes such an obligation on the defendant, even where the face of the order does not explicitly address firearms. Thus, because defendants in those cases would be subject to a restriction on their liberty that was not present in this case, a ruling of this Court favoring petitioner would leave unresolved whether an order in any case involving intimate partners requires personal jurisdiction.

In addition to the affirmative obligations imposed by federal law, there are other reasons why the absence of traditional domestic violence concerns in this case makes it an unsuitable vehicle for examining the question presented. Creating an exception to personal jurisdiction requirements may depend on balancing the risk of harm to the person alleging domestic abuse against the fundamental fairness concerns underlying the personal jurisdiction requirement. Although respondent does not agree

4 Even courts that have allowed no-contact orders in the absence of personal jurisdiction have struck down portions of those orders requiring defendants to turn over firearms. See Caplan v. Donovan, 879 N.E.2d 117, 125 (Mass. 2008) (“[T]hat portion of the order that requires the defendant to surrender his firearms imposes an affirmative duty. Such an obligation may only be imposed by a court with personal jurisdiction over the defendant, and accordingly, that portion of the order is invalid.”); Shah v. Shah, 875 A.2d 931, 933 (N.J. 2005) (describing turnover of firearms as “affirmative relief” which requires personal jurisdiction).

15

that the traditional “minimum contacts” test should be abandoned under any circumstance, a contrary view might argue that due process demands a different test when dealing with the concerns surrounding conventional victims of domestic violence. See, e.g., Bartsch v. Bartsch, 636 N.W.2d 3, 9 (Iowa 2001).

Similarly, to the extent that petitioner seeks to characterize abuse prevention orders as protected “status” determinations that are exempt from traditional “minimum contacts” requirements, see Pet. 24-25, the controversy in the courts below over whether the parties are “family” under Vermont law helps illustrate why this case is an unsuitable vehicle for examining this potential exception. See Printed Case 12-16. Because the status exception is based on the importance of the “family relationship” to the forum state, see, e.g., Bartsch, 636 N.W.2d at 8-9, a case where the parties are an uncle and nephew who have never lived together (and may not even qualify as “family” under applicable state law) would be an inappropriate vehicle for deciding whether domestic violence orders fall within this category.

If the issue of personal jurisdiction in domestic violence cases is as pressing as petitioner contends, a more suitable vehicle for resolving that issue will be presented to the Court in the future. Though petitioner asserts that the issue “infrequently ascends to state supreme courts,” Pet. 23, in just thirteen years, four other state supreme courts have weighed in on this topic. What is more, all of these

16

other cases involved more representative allegations of domestic abuse between intimate partners.5

In arguing that alleged abusers will not have the “sophistication” or “funds” to litigate an objection to personal jurisdiction, Pet. 23, petitioner relies on a common misconception about domestic abuse: that allegations of abuse are restricted to poorer, less educated individuals. Victims and perpetrators of domestic abuse, however, “come from every age, sex, socioeconomic, racial, ethnic, occupational, educational, and religious group.” H. Lien Bragg, Child Protection in Families Experiencing Domestic Violence 29 (2003), available at https://www.childwelfare.gov/pubs/usermanuals/domesticviolence/domesticviolence.pdf.

B. Even If This Case Were Still A Live Controversy, Relief From This Court Would Not Affect Its Outcome.

Even if this Court held that this case presented a live controversy and that due process allowed issuance of a protection order here, respondent likely would prevail on remand to the Vermont Supreme Court on state-law grounds.

For starters, Vermont statutory requirements independently prohibit the state courts from issuing orders without personal jurisdiction even if the Due

5 See Bartsch, 636 N.W.2d at 5 (husband and wife); Caplan v. Donovan, 879 N.E.2d 117, 119 (Mass. 2008) (cohabitants and co-parents); Hemenway v. Hemenway, 992 A.2d 575, 577 (N.H. 2010) (husband and wife); Shah v. Shah, 875 A.2d 931, 933 (N.J. 2005) (husband and wife).

17

Process Clause does not. As respondent argued in the Vermont Supreme Court (and petitioner did not dispute), the Vermont Rules of Civil Procedure require “contact or activity in the state . . . sufficient to support a personal judgment.” Vt. R. Civ. P. 4(e). This requirement has been incorporated into the family court rules by statute. See 15 V.S.A. § 1106(a); Vt. R. Fam. P. 9(a)(1). Thus, regardless of how the Court resolves the question presented, petitioner would not be able to obtain a protection order in Vermont absent personal jurisdiction over respondent.

In addition, respondent has raised two other viable grounds for dismissal. First, respondent argues that the parties are not “family” eligible to seek or be subjected to a prevention order under Vermont’s domestic abuse prevention statute.6 Second, a protection order is not “necessary” under Vermont law because respondent’s plea agreement already prohibits contact with petitioner and there has been no contact in violation of the original protection order since the parties’ April 2012 fight.

6 See Embree v. Balfanz, 817 A.2d 6, 8 (Vt. 2002) (rejecting a Vermont protection order between brothers-in-law because brothers-in-law “are not related as parents and children nor by blood or affinity”).

18

III. The Issue That This Case Actually Presents Is A Narrow One That Does Not Require Resolution By This Court.

Any divergence between the Vermont Supreme Court and other courts is narrow and does not warrant this Court’s review.

In the vast majority of cases, the limits and extent of a court’s power to issue protection orders sought by victims of domestic abuse is clear.

State appellate courts are unanimous in holding that the Due Process Clause does not permit a state court to impose “affirmative” obligations on a person over whom the court does not have personal jurisdiction. See Pet. App. 11a (“a court’s authority in the absence of personal jurisdiction over the defendant would be limited to a declaration of status; it does not extend to affirmative relief”); Bartsch v. Bartsch, 636 N.W.2d 3, 10 (Iowa 2001) (“The order here does not attempt to impose a personal judgment against the defendant.”); Caplan v. Donovan, 879 N.E.2d 117, 119 (Mass. 2008) (holding that a court “may not impose affirmative obligations on the defendant if there is no personal jurisdiction”); Hemenway v. Hemenway, 992 A.2d 575, 582 (N.H. 2010) (“Accordingly, an order that prohibits abuse but does not ‘impose any personal obligations on a defendant’ is valid even without personal jurisdiction over the defendant.”); Shah v. Shah, 875 A.2d 931, 940 (N.J. 2005) (“New Jersey courts lack the power to enter an order requiring the performance of any affirmative act by a defendant over whom in personam jurisdiction cannot be asserted.”).

19

Courts have reached this conclusion fully cognizant of the importance of combating domestic violence. As petitioner’s amicus argues, final orders tailored to “best protect the victim” take on a “variety of forms,” ranging from a “simple no-contact order to an injunction prohibiting the defendant from possessing firearms, having responsibility for his children, or inhabiting a common residence.” Amicus Br. 8. For instance, in Massachusetts, these orders can include an award of financial support, an award of monetary compensation for losses suffered as a result of abuse, and an order conditioning visitation rights on the defendant’s participation in a certified “batterer’s treatment program,” among other things. Mass. Gen. Laws ch. 209A, § 3. Nonetheless, in the absence of “minimum contacts,” courts have unanimously held that imposition of these forms of relief would violate due process. See, e.g., Caplan, 879 N.E.2d at 120 (vacating portions of an abuse prevention order that required the defendant to “compensate the plaintiff” and “surrender his firearms”).

On the other hand, no court has held that the Due Process Clause requires a court to establish personal jurisdiction before it may enter an ex parte emergency protection order. Such “temporary” orders are issued “[f]or those who need emergency protection” and “offer immediate and easily accessible” relief for victims fleeing domestic violence. Amicus Br. 7. The Vermont Supreme Court below expressly reserved the question whether personal jurisdiction is required before a court may issue an emergency “temporary” order. Pet. App. 12a. Thus, in all jurisdictions to have addressed the issue,

20

domestic abuse victims may secure temporary relief in the period immediately following flight, even in a state like Vermont or New Jersey, which requires personal jurisdiction over the defendant to issue a final order. See Shah, 875 A.2d at 942.

In light of this broad agreement, any daylight between the Vermont Supreme Court and other courts is limited to one narrow question: whether a court that lacks personal jurisdiction over the defendant has the power to issue a final order that does no more than prohibit a defendant from contacting the plaintiff. Any plaintiff who only requires emergency protection or who requires any other kind of affirmative relief will not be affected by resolution of the question presented.

Thus, the number of cases in which the question presented arises is small. The plaintiff must (1) be domiciled in a state which (2) lacks personal jurisdiction over a defendant, and the plaintiff must seek an order that is (3) permanent, (4) does not need to be enforced across state lines, and (5) does not contain any other types of affirmative relief.

With respect to (2) in particular, there is little evidence that lack of personal jurisdiction is an issue that arises frequently in domestic abuse cases. Petitioner provides no empirical evidence that the issue of personal jurisdiction is a frequent bar to the issuance of protection orders. And petitioner’s conjecture that the issue might arise in “one-twentieth” of all domestic abuse cases is just that – conjecture. See Pet. 19.

It may be that many courts have little trouble establishing personal jurisdiction over out-of-state

21

defendants, either due to the defendant’s ties with the state to which a victim flees or due to actions taken by the defendant against the victim in the state where she flees. See, e.g., Rios v. Fergusan, 978 A.2d 592, 601 (Conn. Super. Ct. 2008) (finding personal jurisdiction over defendant who directed threats to plaintiff over the Internet while she was in that state); A.R. v. M.R., 799 A.2d 27, 32 (N.J. Super. Ct. App. Div. 2002) (finding personal jurisdiction over a defendant who directed phone calls to the state while searching for the plaintiff).

Petitioner is incorrect to suggest that deciding this case would reduce uncertainty and prevent “inconsistent and unpredictable” action by state courts applying the full faith and credit provisions of the federal Violence Against Women Act (VAWA). See Pet. 21.

First, the issue here applies only to protection orders issued by state courts that are “valid only within that state.” Pet. i. By its own terms, then, petitioner’s question presented does not address any protection orders that are potentially valid outside the state. As a result, resolution of the question presented will not have any effect on the enforcement of orders across state lines.

Second, despite petitioner’s suggestion that there is or will be “confusion” about the cross-jurisdictional enforcement issue, Pet. 21, VAWA expressly states that a protection order be accorded “full faith and credit” only when the issuing court has “jurisdiction over the parties.” 18 U.S.C. § 2265(b)(1). Thus, the “uncertainty” raised by petitioner is answered by VAWA’s text, and petitioner cites no authority holding otherwise.

22

This conclusion is underscored by the fact that many states – including both Vermont and those that have adopted the rule favored by petitioner – have implemented this requirement in their own law, honoring “foreign” (out-of-state) protection orders only when the issuing court had “jurisdiction over the parties.” See, e.g., Iowa Code § 236.19(3)(b); N.H. Rev. Stat. Ann. § 173-B:13; 15 V.S.A. § 1108(c)(3).

IV. The Vermont Supreme Court Correctly Refused To Dispense With The Personal Jurisdiction Requirement.

The Vermont Supreme Court correctly recognized that a court may issue a final judgment restraining a defendant’s liberty only when it has personal jurisdiction over that defendant. Final protection orders fall into this category of cases, just like any other award of injunctive relief.

The Due Process Clause requires that “a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant.” Kulko v. Superior Court, 436 U.S. 84, 91 (1978). Personal jurisdiction, in turn, requires that the defendant have sufficient contacts with the forum state such that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This requirement serves to “protect the liberty of the nonresident defendant.” Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014).

This important principle applies with full force to requests for injunctive relief. “The first prerequisite

23

to obtaining a binding injunction is that the court must have valid in personam jurisdiction over the defendant.” 11A Charles Alan Wright et al., Federal Practice and Procedure § 2956 (3d ed. 2013); accord 13 James Wm. Moore et al., Moore’s Federal Practice § 65.05 (3d ed. 2014).

It follows that the protection order at issue here could not be issued by a court lacking personal jurisdiction over the defendant. As with the alimony claims that were at issue in Kulko, protection orders are “judgments affecting [the] rights or interests” of the defendant. 436 U.S. at 91. As petitioner concedes, the now-expired Vermont order enjoined conduct by respondent that would otherwise be lawful. Pet. 25. For instance, under that order, if petitioner had appeared while respondent was attending a family gathering in Vermont, respondent would have been required to leave. Indeed, protection orders issued under the Vermont statute in question can require a defendant to vacate a shared residence, pay child support for a fixed period, and refrain from contact with his children. 15 V.S.A. § 1103(c)(2). Protection orders can also give rise to other significant restrictions of the defendant’s liberty, such as the defendant’s inclusion in state and federal databases, inability to obtain housing, and the loss of employment.7

7 As Vermont Supreme Court Justice Geoffrey Crawford put it at the oral argument below:

There are a slew of collateral consequences, the least of which is the federal firearms violation – people lose their jobs, people can’t live in some apartment

24

Even assuming that a “status exception” to the personal jurisdiction requirement exists, it does not apply here.

State courts sometimes issue orders that “establish or terminate a status” of a plaintiff in connection, for example, with a divorce or child custody determination without personal jurisdiction over the defendant. Restatement (Second) of Judgments § 7 (1982). A small number of states have concluded that protection orders are analogous because such orders “focus[] on the plaintiff’s protected status rather than her marital or parental status.” Caplan v. Donovan, 879 N.E.2d 117, 123 (Mass. 2008).

But protection orders are not only determinations of status, assuming that they are status determinations at all. This Court has distinguished between jurisdiction to “change the martial status of the parties” and “jurisdiction to alter [the defendant’s] rights,” Estin v. Estin, 334 U.S. 541, 547, 549 (1948), and a similar distinction resolves the question presented in respondent’s favor here. Protection orders prohibit otherwise lawful conduct by the defendant and, as discussed above, carry significant additional consequences that

houses . . . you have troubles in the military . . . if you are a police officer you have problems – huge collateral [consequences], so you can’t say it’s trivial.

Nov. 7, 2013 Oral Argument at 19:28, Fox v. Fox, No. 2013–147 (Vt. S. Ct.), available at https://www.vermontjudiciary.org/ LC/audioarguments.aspx.

25

infringe on the defendant’s liberty. They therefore go well beyond a declaration of the plaintiff’s status.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Cabot Teachout Counsel of Record DESMEULES, OLMSTEAD & OSTLER P.O. Box 1090 Norwich, Vermont 05055 (802) 649-2001 cteachout@doolaw.com

December 17, 2014

APPENDIX

11a

APPENDIX C

STATE OF VERMONT

SUPERIOR COURT Windsor Unit

FAMILY DIVISION Docket No. 123-4-12 Wrfa

Fox vs. Fox

ENTRY REGARDING MOTION

Count 1, Fox vs. Fox (123-4-12 Wrfa)

Title: Motion to Vacate (Motion 13) Filer: Court Attorney: Filed Date: August 14, 2014

No response filed

The motion is GRANTED.

Based upon the decision issued by the Vermont Supreme Court in Neal Fox v. Eugene Fox, 2014 VT 100, the Court hereby vacates the Final Relief from Abuse order in Docket No. 123-4-12 Wrfa.

So ordered.

Electronically signed on August 29, 2014 at 02:16 PM pursuant to V.R.E.F. 7(d).

/s/ Karen R. Carroll Karen R. Carroll Superior Court Judge Notifications: Tavian M. Mayer (ERN 5582), Attorney for Plaintiff

Neal Fox Cabot Teachout (ERN 3948), Attorney for Defendant

Eugene Fox