Supreme Court of the United States

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1 No. IN THE Supreme Court of the United States NEAL FOX, v. EUGENE FOX, Petitioner, Respondent. On Petition for a Writ of Certiorari to the Vermont Supreme Court PETITION FOR A WRIT OF CERTIORARI TAVIAN M. MAYER MAYER & MAYER P.O. Box 59 South Royalton, VT (802) tavian@mayerlaw.com MATTHEW S. HELLMAN Counsel of Record ADAM G. UNIKOWSKY JENNER & BLOCK LLP 1099 New York Ave., NW, Suite 900 Washington, DC (202) mhellman@jenner.com

2 i QUESTION PRESENTED Whether, under the Due Process Clause, a state court must have personal jurisdiction over an assailant to award a no-contact order, valid only within that state, to a victim of abuse who is domiciled in the state.

3 ii TABLE OF CONTENTS QUESTION PRESENTED... i TABLE OF AUTHORITIES... v PETITION FOR WRIT OF CERTIORARI... 1 OPINIONS BELOW... 1 JURISDICTION... 1 INTRODUCTION... 1 STATEMENT OF THE CASE... 4 REASONS FOR GRANTING THE WRIT... 8 I. STATE COURTS ARE DIVIDED ON WHETHER PERSONAL JURISDICTION OVER AN ABUSER IS REQUIRED TO ISSUE AN ABUSE- PREVENTION ORDER... 8 A. Several state courts have held that courts may issue no-contact abuseprevention orders without personal jurisdiction over the defendant B. The New Jersey Supreme Court has held that a court could issue a temporary, but not final, restraining order without personal jurisdiction over the defendant

4 iii C. The Vermont Supreme Court s decision reflects a fundamentally different approach to personal jurisdiction in domestic violence cases II. THE QUESTION PRESENTED IS IMPORTANT, AND THIS COURT S REVIEW IS URGENTLY NEEDED A. The question presented recurs with extraordinary frequency and is profoundly significant for both plaintiffs and defendants in domestic violence cases B. Allowing the current conflict of authority to persist is intolerable III. IV. THIS CASE IS AN UNUSUALLY STRONG VEHICLE THE VERMONT SUPREME COURT S DECISION IS INCORRECT CONCLUSION... 26

5 iv Appendix A Fox v. Fox, 2014 VT 100, --- A.3d ---, 2014 WL a Appendix B Fox v. Fox, Docket No Wrfa, Order of Protection (Vt. Fam. Ct., Windsor Cnty. Mar. 25, 2013)... 20a

6 CASES v TABLE OF AUTHORITIES Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001)... 9, 10 Becker v. Johnson, 937 So. 2d 1128 (Fla. Dist. Ct. App. 2006) Caplan v. Donovan, 879 N.E.2d 117 (Mass. 2008)... 11, 12, 13, 25 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) Hemenway v. Hemenway, 992 A.2d 575 (N.H. 2010)... 13, 14, 17 Shah v. Shah, 875 A.2d 931 (N.J. 2005)... 14, 15, 16 Spencer v. Spencer, 191 S.W.3d 14 (Ky. Ct. App. 2006) T.L. v. W.L., 820 A.2d 506 (Del. Fam. Ct. 2003) Walden v. Fiore, 134 S. Ct (2014) CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. art. IV, U.S.C U.S.C V.S.A. 5131(6) V.S.A

7 OTHER AUTHORITIES vi Federal Judicial Statistics Caseload (Table B), available at Statistics/FederalJudicialCaseloadStatisti cs/caseload-statistics-2013.aspx Oregon Dep t of Human Servs., oving-out-of-state.pdf U.S. Department of Justice, Office of Justice Programs, Extent, Nature, and Consequences of Intimate Partner Violence, available at gov/pdffiles1/nij/ pdf

8 1 PETITION FOR WRIT OF CERTIORARI Neal Fox petitions for a writ of certiorari to review the judgment of the Vermont Supreme Court. OPINIONS BELOW The decision of the Vermont Supreme Court (Pet. App. 1a-19a) in Fox v. Fox is not yet reported in the Atlantic Reporter. The decision of the Vermont Superior Court, Family Division, Windsor Unit is unreported. JURISDICTION The judgment of the Vermont Supreme Court was entered on August 14, This Court has jurisdiction pursuant to 28 U.S.C INTRODUCTION This petition presents a pressing question of national importance that has divided the supreme courts of the states: whether, under the Due Process Clause, a state court must have personal jurisdiction over an assailant to award a no-contact order, valid only within that state, to a victim of abuse who is domiciled in the state. State courts have reached directly conflicting conclusions on this question. The highest courts of Iowa, New Hampshire, and Massachusetts, as well as the Kentucky Court of Appeals, have held that personal jurisdiction over the assailant is not required to issue a no-contact abuse-prevention order, which prohibits the assailant from contacting or approaching his victim. Those courts have analogized such orders to divorce or child custody judgments, which are routinely entered

9 2 without personal jurisdiction over a non-resident spouse or parent. The New Jersey Supreme Court has upheld no-contact provisions in temporary abuseprevention orders, but has held that personal jurisdiction over the defendant is required to issue final abuse-prevention orders. In the decision below, the Vermont Supreme Court held that a court may not enter a no-contact abuseprevention order against a defendant without personal jurisdiction. In doing so, it expressly rejected the reasoning of the courts in its sister states, and created a sharp division of authority. If a victim of abuse moves to New Hampshire and seeks an abuse-prevention order barring her out-of-state assailant from contacting her, she can get one, even if her assailant lacks minimum contacts with New Hampshire. If she moves to Vermont, such an order is now unobtainable. The question recurs with extraordinary frequency. It will arise any time a victim of domestic abuse seeks an abuse-protection order from a state with which her abuser has no contact. This might occur if the victim flees her abuser across state lines and seeks an abuseprotection order from her new home state, or if the victim resides in a state, crosses state lines, is victimized, and then returns home and seeks an abuseprotection order from her local court. It is also extraordinarily important. Abuse-prevention orders are a crucial tool for victims of domestic violence to stay safe. Yet, for many victims of domestic violence, it may be impossible to obtain an abuse-protection order from any court other than a local court in her home state. As the Vermont Supreme Court candidly stated,

10 3 returning to her assailant s home state to seek an abuse-prevention order may be be logistically challenging, psychologically difficult, or even personally dangerous. Pet. App. 14a-15a. Thus, whether these victims can realistically obtain any abuse-prevention order will depend on the on the answer to the question presented here. The conflict of authority will also give rise to grave practical problems in the enforcement of abuseprevention orders. Sadly, domestic abuse may occur across multiple states, and when those states disagree about the constitutional status of abuse-prevention orders, family courts and law enforcement officers will encounter great difficulties determining what the law requires. Further, victims of domestic violence need certainty that their protective orders are valid. Because of the conflict of authority, many victims of abuse will have no idea whether they can obtain protective orders, or if they do, whether those orders will later be subject to collateral challenge. Thus, the conflict of authority creates the very uncertainty and fear that abuse-prevention orders are intended to prevent. This case presents a perfect vehicle to resolve this critical question the parties stipulated that abuse had occurred, and the Vermont Supreme Court explicitly based its decision on the Due Process Clause. Although the question presented arises regularly in local family courts, rarely will it percolate to this Court in a procedural posture that would allow this Court to resolve it. This Court should take this opportunity and grant certiorari.

11 4 STATEMENT OF THE CASE 1. Petitioner Neal Fox is the 77-year-old uncle of Respondent Eugene Fox. Petitioner resides in Vermont and Respondent resides in New Hampshire. On April 6, 2012, Petitioner and Respondent attended a probate court hearing in Manchester, New Hampshire. Following the hearing, Respondent followed [Petitioner] to his car and proceeded to punch, kick, and step on [him]. Pet. App. 2a. Petitioner had to be hospitalized as a result of the injuries he sustained from Respondent s attack. Pet. App. 2a. 2. Petitioner returned to Vermont and filed a complaint for relief from domestic abuse pursuant to 15 V.S.A with the Vermont Superior Court, Family Division, Windsor Unit. After the Superior Court granted a temporary abuse-prevention order, Respondent filed a motion to dismiss. He argued that the uncle-nephew relationship did not constitute family for purposes of Vermont s domestic abuse prevention statute, and that personal jurisdiction was required to issue an abuse-prevention order. The court denied the motion. It concluded that Petitioner and Respondent were family, and that it could issue an abuse-prevention order under 15 V.S.A regardless of whether the defendant had minimum contacts to Vermont. Pet. App. 2a. 3. Following the denial of Respondent s motion to dismiss, the Superior Court held a hearing on Petitioner s complaint. Respondent stipulated on the record that abuse had occurred, but renewed his argument that the court could not issue an abuseprevention order without personal jurisdiction. The

12 5 Superior Court again rejected Respondent s argument, holding that personal jurisdiction was not required. Finding that Respondent had stalked Petitioner as defined in 12 V.S.A. 5131(6) and had met the statutory requirements for an abuse-prevention order, the court issued an order prohibiting Respondent from coming within 300 feet of Petitioner or his home, vehicle or place of employment, except in connection with a court appearance. Pet. App. 3a, 12a, 20a-26a. 4. The Vermont Supreme Court reversed. It held that the trial court was required to have personal jurisdiction over a nonresident defendant in order to issue an abuse-prevention order, and because the trial court did not have personal jurisdiction over Respondent, the imposition of the abuse-prevention order was barred by the Due Process Clause of the federal Constitution. Pet. App. 1a-19a. a. The court characterized the threshold questions as whether the trial court must have personal jurisdiction over a nonresident defendant in order to issue a final RFA order and, if so, whether it had jurisdiction in this case. Pet. App. 4a. The court made clear that its analysis was based on the federal Due Process Clause: it explicitly stated that Vermont s long-arm statute reached as far as the Due Process Clause allowed. Pet. App. 5a; see also Pet. App. 15a n.1 (noting that Vermont law cannot extend the court s jurisdiction beyond the bounds of federal due process ). b. The court observed that [c]ourts from other jurisdictions have taken a range of approaches to challenges to personal jurisdiction in the context of requests for abuse-prevention orders filed against out-

13 6 of-state defendants. Pet. App. 5a. As recounted by the court, state courts in Florida and Delaware have held that personal jurisdiction is a necessary prerequisite to issuing an abuse-prevention order against a nonresident, Pet. App. 6a. By contrast, the Iowa Supreme Court has held that a court does not need personal jurisdiction over a nonresident defendant in order to issue a protective order on behalf of a domiciliary, Pet. App. 6a-8a. The New Jersey Supreme Court has held that temporary abuse-prevention orders, but not permanent abuse-prevention orders, may be issued without personal jurisdiction over the defendant, Pet. App. 8a-9a. Finally, the Kentucky Court of Appeals, Massachusetts Supreme Judicial Court, and New Hampshire Supreme Court have upheld no-contact abuse-prevention orders, but struck down abuse-prevention orders that imposed affirmative obligations on defendants, such as giving up firearms. Pet. App. 9a-11a. c. Rejecting the positions of the Iowa Supreme Court, Kentucky Court of Appeals, Massachusetts Supreme Judicial Court, and New Hampshire Supreme Court, the Vermont Supreme Court held that even nocontact abuse-prevention orders require personal jurisdiction over the defendant. The court reasoned that [a]n order prohibiting defendant from contacting plaintiff, and in this case approaching within 300 feet of plaintiff, plaintiff s home, car, or place of employment, does more than prohibit defendant from engaging in behavior already specifically outlawed. It prohibits him from engaging in behavior that would be entirely legal but for the court s order. And it backs up the

14 7 restrictions with the prospect of criminal prosecution within Vermont or beyond. Pet. App. 12a. Quoting the dissent from the Iowa Supreme Court, the court held that abuse-prevention orders create a direct invasion of [the defendant s liberty interest. Pet. App. 13a-14a. It also stated that such orders may carry collateral consequences. Pet. App. 14a. The court acknowledged that its ruling might force victims of domestic violence to go to distant states to obtain protective orders against their abusers, which may in some cases be logistically challenging, psychologically difficult, or even personally dangerous. Pet. App. 14a- 15a. It nonetheless held that imposing a protective order against an out-of-state defendant without ties to Vermont would offend traditional notions of fair play and substantive justice. Pet. App. 15a. d. Having concluded that personal jurisdiction was required to enter even no-contact protective orders, the court found that the Vermont Superior Court lacked personal jurisdiction over Respondent. It therefore reversed the Vermont Superior Court s judgment. Pet. App. 15a-19a. 1 1 The Vermont Supreme Court declined to reach Respondent s state-law arguments. Pet. App. 1a, 19a. Thus, it did not disturb the Superior Court s determinations that Respondent had stalked Petitioner, and that Respondent and Petitioner were family for purposes of Vermont s domestic abuse statute. Id.

15 8 REASONS FOR GRANTING THE WRIT This case meets all of this Court s criteria for granting certiorari. State courts of last resort have issued directly conflicting decisions about whether a state court must have personal jurisdiction over an abuser to issue a no-contact abuse-prevention order to his victim. The question presented is extremely important to both plaintiffs and defendants in domestic violence disputes, and allowing the conflict of authority to persist will risk significant practical problems in the administration of justice in domestic violence questions. Further, the question presented arises with extraordinary frequency whenever a domestic victim seeks an abuse-prevention order against an out-of-state abuser, state courts must resolve the question presented here. Finally, this case is a perfect vehicle the parties stipulated that the victim had been abused, and the Vermont Supreme Court expressly rested its holding on the federal constitutional question of personal jurisdiction. Accordingly, the Court should grant certiorari. I. STATE COURTS ARE DIVIDED ON WHETHER PERSONAL JURISDICTION OVER AN ABUSER IS REQUIRED TO ISSUE AN ABUSE-PREVENTION ORDER. The Vermont Supreme Court held that a family court could not issue an abuse-prevention order even a no-contact order that imposed no affirmative duties unless it had personal jurisdiction over the abuser. In doing so, it expressly disagreed with decisions of three other state courts of last resort which have authorized

16 9 such abuse-prevention orders in the absence of personal jurisdiction. A. Several state courts have held that courts may issue no-contact abuseprevention orders without personal jurisdiction over the defendant. As the Vermont Supreme Court acknowledged in its opinion, the highest courts of Iowa, Massachusetts, and New Hampshire, as well as Kentucky s intermediate appellate court, have held that courts may issue no-contact abuse-prevention orders without personal jurisdiction over the defendant. The first state supreme court to address this issue was the Iowa Supreme Court in Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001), a decision the Vermont Supreme Court accurately characterized as closely divided and pivotal. Pet. App. 6a. In Bartsch, the victim obtained an abuse-prevention order against her husband in an Iowa family court directing the husband to stay away from the protected party and not assault or communicate with her, even though the couple had resided together in Utah and the husband had no ties to Iowa. 636 N.W.2d at 5, 10 (quotation marks omitted). The Iowa Supreme Court determined that the husband had insufficient contacts with Iowa for an Iowa court to exercise personal jurisdiction. Id. at 5-6. Nonetheless, it held by a 4-3 vote that under the Due Process Clause, personal jurisdiction over a nonresident defendant is not required for a court to issue a no-contact abuse-prevention order. Id. at 6. The court reasoned that [i]n other situations it is clear

17 10 personal jurisdiction is not necessary to satisfy the demands of the Due Process Clause. Id. As an example, it cited the long-standing principle that a court may issue a judgment of divorce to a domiciliary, even without personal jurisdiction over the domiciliary s spouse. Id. at 6-7 (quoting Pennoyer v. Neff, 95 U.S. 714, (1877)). It also noted that a state may make custody adjudications without personal jurisdiction [over] the defendant. Id. at 7. The court explained that [i[f a court may constitutionally make orders affecting marriage, custody, and parental rights without personal jurisdiction of a defendant, it certainly should be able to do what the court did here-enter an order protecting a resident Iowa family from abuse. Id. at 10. It held that due process requires, in status determinations as well as others, reasonable attempts to notify the defendant and a reasonable opportunity to defend, but that the defendant was not required to have substantive contacts to the jurisdiction issuing the abuse-prevention order. Id. at 8-9. The court emphasized that the abuse-prevention order was merely a no-contact order that did not attempt to impose a personal judgment against the defendant. Id. at 10; see also id. at 5 (noting that the order does not purport to grant affirmative relief against the defendant ). Three judges dissented, reasoning that the abuse-prevention order at issue was distinguishable from a judgment of divorce or child custody because [w]hat Tara Bartsch sought from an Iowa court was not a declaration of her status, but rather a grant of injunctive relief against a party beyond the jurisdiction of the Iowa court. Id. at 11 (Carter, J., dissenting).

18 11 Subsequently, in Spencer v. Spencer, 191 S.W.3d 14 (Ky. Ct. App. 2006), Kentucky s intermediate appellate court similarly held that a court could, consistent with the Due Process Clause, issue a no-contact abuseprevention order even without personal jurisdiction over the abuser. The court stated that its task was to balance the due process rights of the defendant against the interest of the Commonwealth in protecting the victims of domestic violence. Id. at 17. Relying on Bartsch, the court upheld portions of an abuseprevention order against a non-resident husband which provided that [r]espondent is restrained from any contact or communication with the above-named Petitioner and that [r]espondent shall remain at all times and places at least 1,000 feet away from Petitioner and members of Petitioner s family or household. Id. at 19. But the court reversed portions of the abuse-prevention order that imposed affirmative obligations on the defendant, such as provisions forbidding the possession, transportation, shipping and receiving of any firearm or ammunition and a provision ordering the defendant to pay child support, on the ground that these affirmative orders went beyond the permissible limits of Kentucky courts jurisdiction. Id. In Caplan v. Donovan, 879 N.E.2d 117 (Mass. 2008), the Massachusetts Supreme Judicial Court followed Spencer and held that under the Due Process Clause, a family court could issue a no-contact abuse-prevention order to a domestic violence victim without personal jurisdiction over the abuser, but could not issue an order requiring any affirmative action. In Caplan, the

19 12 plaintiff and the defendant had a child together and lived in Florida. After the defendant physically abused and threatened to kill the plaintiff, the plaintiff fled to her mother s house in Massachusetts and immediately sought an abuse-prevention order. Id. at The family court granted an abuse-prevention order that directed the defendant not to abuse the plaintiff, not to contact the plaintiff, and not to come within fifty yards of the plaintiff s residence, as well as other relief. Id. at 120. The court held that the family court lacked personal jurisdiction over the defendant, but nonetheless held that [t]he greater part of the order at issue in this case falls within the limits imposed by due process. Id. at 122, 125. In particular, it held that [t]he order s prohibition against the defendant s abusing, contacting, or approaching the plaintiff or their child contains no affirmative obligation, and therefore it does not require personal jurisdiction. Id. at 125. It reasoned that [a] court order that prohibits the defendant from abusing the plaintiff and orders him to have no contact with and to stay away from her provisions that appear in the abuse prevention order issued in this case serves a role analogous to custody or marital determinations, except that the order focuses on the plaintiff s protected status rather than her marital or parental status. Id. at 123. It also noted that if personal jurisdiction was required, the unpalatable choices remaining are either to require the victim of abuse to return to the State in which the abuse occurred in order to obtain an effective abuse prevention order or, alternatively, to wait for the

20 13 abuser to follow the victim to the Commonwealth and, in the event of a new incident of abuse, seek an order from a Massachusetts court. In neither alternative will a court be able to provide protection to those within its borders. Id. The court, however, vacated so much of the abuse prevention order that orders the defendant to compensate the plaintiff and surrender firearms because they imposed affirmative obligation[s]. Id. at 125. Finally, in Hemenway v. Hemenway, 992 A.2d 575 (N.H. 2010), the New Hampshire Supreme Court followed Caplan and held that a family court could issue a no-contact abuse-prevention order, but not an order with affirmative obligations, against a defendant over which it lacked personal jurisdiction. The family court had issued a final protective order prohibiting the husband from threatening or abusing his wife or her family members, contacting her absent special authorization by the family division, coming within a certain distance of her, going to her home or workplace, or taking, converting or damaging her property, and also ordering the husband to relinquish and refrain from purchasing firearms. Id. at Relying heavily on Caplan, the court analogized no-contact abuse-prevention orders to custody and marital determinations, id. at , and relied on Caplan s observation that a State court may grant a divorce to a spouse domiciled within that State without violating the due process rights of an absent spouse over whom it does not have jurisdiction. Id. at 581 (quoting Caplan, 879 N.E.2d at 122). Thus, it affirm[ed] the family division s final protective order to the extent

21 14 that it protects the wife from abuse, but reverse to the extent that the order requires affirmative action from the defendant. Id. B. The New Jersey Supreme Court has held that a court could issue a temporary, but not final, restraining order without personal jurisdiction over the defendant. The New Jersey Supreme Court has adopted a different rule: A family court may issue a no-contact abuse-prevention order without personal jurisdiction over the abuser, but only in the context of temporary orders; issuing final orders without personal jurisdiction violated the Due Process Clause. In Shah v. Shah, 875 A.2d 931 (N.J. 2005), the New Jersey Supreme Court held that a court could issue temporary prohibitory orders that serve to protect the domestic violence victim, reasoning that the issuance of a prohibitory order does not implicate any of defendant s substantive rights. Id. at 939. It observed that the entry of an order prohibiting acts of domestic violence against a defendant over whom no personal jurisdiction exists, is addressed not to the defendant but to the victim: it provides the victim the very protection the law specifically allows. Id. But the court held that a court could issue only temporary orders: [I]f personal jurisdiction cannot be exercised over a defendant within constitutional due process limits... no final restraining order may issue. Id. at 942. It reasoned that under state law, [a] final restraining order must, by statutory definition, include affirmative relief, and thus held that such orders could

22 15 not be entered without personal jurisdiction over the defendant. Id. at 940. It also expressly rejected the argument accepted by the highest courts of Iowa, Massachusetts, New Hampshire that abuseprevention orders were analogous to final child custody orders, reasoning that in child custody cases, unlike in abuse-prevention order cases, the res of the dispute the children are located in New Jersey. Id. at 940 n.5; see also Pet. App. 8a (noting that the New Jersey Supreme Court rejected the Iowa court s rationale ). C. The Vermont Supreme Court s decision reflects a fundamentally different approach to personal jurisdiction in domestic violence cases. The Vermont Supreme Court s decision diverged from, and created a conflict with, the preceding authorities. Adopting the rationale of courts in Florida and Delaware, see Becker v. Johnson, 937 So. 2d 1128, 1132 (Fla. Dist. Ct. App. 2006); T.L. v. W.L., 820 A.2d 506, (Del. Fam. Ct. 2003); Pet. App. 6a, the Vermont Supreme Court held that personal jurisdiction was required to enter even a purely prohibitory, nocontact abuse-prevention order against an out-of-state abuser. Thus, the court reversed the entirety of the abuse-prevention order entered against Respondent, including the no-contact portion disallowing the defendant from approaching within 300 feet of plaintiff, plaintiff s home, car, or place of employment. Pet. App. 12a. In reaching this conclusion, the Vermont Supreme Court analyzed and rejected the holdings of Bartsch, Caplan, and Hemenway, which upheld no-contact

23 16 provisions in abuse-prevention orders. Instead, it quoted the reasoning of Justice Carter s dissenting opinion in Bartsch, which argued that such abuseprevention orders result in a direct invasion of [the defendant s] liberty interest and collateral consequences of a lasting nature. Pet. App. 13a-14a (quoting Bartsch, 636 N.W.2d at (Carter, J., dissenting)). The court acknowledged Caplan s rationale that if personal jurisdiction was required, the unpalatable choices remaining are either to require the victim of abuse to return to the State in which the abuse occurred in order to obtain an effective abuse prevention order or to wait for the abuser to engage in conduct directed at the victim in Vermont that gives rise to personal jurisdiction. Pet. App. 14a (quoting Caplan, 879 N.E.2d at 123)). But it rejected that rationale, on the ground that a contrary rule gives rise to unpalatable possibilities of its own, such as a defendant being forced to defend against abuse allegations in a state with which he had no contact. Pet. App. 15a. Further, although the court aligned itself with the bottom-line result in Shah that personal jurisdiction was required to enter a final abuseprevention order it reached that conclusion for different reasons. Whereas in Shah the court held that personal jurisdiction was required for final abuseprevention orders because such abuse-prevention orders imposed affirmative obligations by operation of state law, 875 A.2d at 940, the Vermont Supreme Court held that personal jurisdiction was required even for purely prohibitory no-contact provisions. Pet. App. 12a-15a.

24 17 Thus, the Vermont Supreme Court issued a decision that reached the same result (but for different reasons) as the New Jersey Supreme Court, but that was flatly contrary to decisions of the highest courts of Iowa, Massachusetts, and New Hampshire. Indeed, the starkness of this conflict can be seen on the facts of this specific case, because Respondent resides in New Hampshire. As noted above, unlike the Vermont Supreme Court, the New Hampshire Supreme Court has upheld final abuse-prevention orders containing nocontact provisions. See Hemenway, 992 A.2d at 582 ( we affirm the family division s final protective order to the extent that it protects the wife from abuse, but reverse to the extent that the order requires affirmative action from the defendant ). Thus, if Respondent had sought a no-contact abuse-prevention order from a New Hampshire court against Petitioner, he could have obtained one even if New Hampshire court lacked personal jurisdiction over Petitioner. And yet, Petitioner was denied such an order against Respondent because he lived in Vermont. Only this Court can resolve this conflict of constitutional law. II. THE QUESTION PRESENTED IS IMPORTANT, AND THIS COURT S REVIEW IS URGENTLY NEEDED. A. The question presented recurs with extraordinary frequency and is profoundly significant for both plaintiffs and defendants in domestic violence cases. It is difficult to overstate the practical importance of the question presented. Domestic violence occurs

25 18 with tragic frequency in the United States. Many victims respond by fleeing their assailants to other states. Victims have a strong incentive to move to a state with which the abuser has no ties, in order to make it less likely that the abuser will show up in the state. Any time a victim moves to such a state and seeks a no-contact abuse-prevention order, the family court will be forced to answer the question presented here. Thus, the question presented recurs with extraordinary frequency far more frequently than typical questions on which this Court grants certiorari. According to a 2000 report by the Department of Justice, victims of domestic abuse receive over 1,130,000 abuse-prevention orders each year. U.S. Department of Justice, Office of Justice Programs, Extent, Nature, and Consequences of Intimate Partner Violence at 54, available at To put that number in perspective, last year there were just 56,453 appeals filed in all of the federal courts of appeals combined. Federal Judicial Statistics Caseload (Table B), available at loadstatistics/caseload-statistics-2013.aspx. Hard numbers on how many abuse-prevention orders are entered against out-of-state defendants are difficult to obtain, although the scenario apparently arises frequently enough that some states have provided official guidance for domestic violence victims fleeing in and out of the state. See, e.g., Oregon Dep t of Human Servs.,

26 19 caf/dv/policy/moving-out-of-state.pdf (giving guidance to Current Oregon residents that want to flee to another State and Survivors Fleeing to Oregon from another State ). But based on these numbers, if even one-twentieth of abuse-prevention orders are entered against out-of-state defendants, then the question presented in this case arises in more cases than the total number of cases filed in federal appellate courts each year. In addition to the sheer number of cases in which the question arises, the question presented is of profound importance to victims of domestic abuse. Abuse-prevention orders serve a critical role in protecting victims of domestic abuse from subsequent violence. They can mean the difference between life and death or serious injury. For many victims who flee from their abusers to different states, the only realistic way to obtain an abuse-prevention order is to apply for such an order from a local court. Although victims may have the theoretical option of returning to their abuser s home state to apply for an abuse-prevention order, this may be unrealistic: victims of domestic abuse may lack the resources to leave their state for what might be a multitude of hearings, especially if they need to transport witnesses to the hearings, such as their children. Further, a victim of domestic abuse who flees a state for the specific purpose of escaping her abuser may be reluctant to return to her abuser s jurisdiction. Thus, for many victims, the ability to obtain an abuseprevention order will turn on the question presented

27 20 here. 2 B. Allowing the current conflict of authority to persist is intolerable. The Court should decide the question presented immediately. It is, of course, undesirable that state supreme courts disagree on a fundamental question of federal law, and that conflict alone is grounds for granting certiorari. But the need to grant certiorari in this case goes beyond the general interest in resolving splits of authority. The conflict of authority may lead to serious friction among the states. Under the status quo, New Hampshire and other states assert the ability to issue no-contact abuse-prevention orders against Vermont residents who have no contact with New Hampshire, notwithstanding Vermont s view that this is unconstitutional. Thus, suppose a Vermont resident travels to New Hampshire, violates a New Hampshire abuse-prevention order entered under Hemenway v. Hemenway, and then returns to Vermont. If the New Hampshire judge orders the Vermont resident jailed for criminal contempt, New Hampshire law enforcement may seek cooperation from Vermont law 2 The question presented is also of great importance for defendants in domestic-abuse cases. A court injunction barring a defendant from contacting a family member, who may be the mother of the defendant s children, obviously can have a very serious effect on the defendant s life. Defendants have an obvious interest in litigating domestic violence disputes close to home. Thus, the resolution of the question presented will also have a tremendous impact on defendants day-to-day lives.

28 21 enforcement to apprehend him. Yet, Vermont law enforcement may refuse, based on the Vermont Supreme Court s view that such orders are void ab initio for lack of personal jurisdiction. This Court should exercise its authority as the nationwide arbiter of federal law to preclude such conflicts. The split of authority may create other practical problems. For instance, victims may attempt to enforce protective orders across state lines, relying either on the constitutional Full Faith and Credit Clause, U.S. Const. art. IV, 1, or the Violence Against Women Act s full faith and credit provision, 18 U.S.C To be sure, this case does not present the question of whether abuse-prevention orders against non-resident defendants are entitled to full faith and credit across state lines; rather, it presents the more fundamental question of whether such orders can be entered at all. Nevertheless, the confusion on that fundamental question is likely to yield inconsistent and unpredictable results when state courts are faced with protective orders entered by sister state courts applying different interpretations of federal law. The legal uncertainty is equally troubling in the many states for which the state supreme court has not yet ruled on the question presented here. Suppose an abused victim moves to a state like New York or California, and seeks an abuse-prevention order. Given the conflict of authority, she will be unable to predict whether such an order would be granted. Worse, even if the defendant fails to appear and the order is granted, she will be unable to predict whether the order will be enforceable, or whether the assailant can

29 22 later collaterally attack the order on the ground that personal jurisdiction was required. She will therefore suffer from the very type of uncertainty and fear that abuse-prevention orders were designed to prevent. Of course, the uncertainty is also deeply troubling from the defendant s perspective: a defendant who wishes to enter a foreign state and approach a plaintiff to see his children, for instance, will have no way to know whether this will subject him to possible jail time. In light of these practical difficulties and the grave uncertainty that affects a multitude of domestic violence cases, it is incumbent on this Court to set forth a single rule on whether personal jurisdiction is required to impose a no-contact abuse-prevention order against an out-of-state defendant. III. THIS CASE IS AN UNUSUALLY STRONG VEHICLE. This case is the ideal vehicle to resolve the question presented. The parties stipulated that there was abuse. Pet. App. 2a, 19a. The Vermont Supreme Court expressly declined to reach Respondent s state-law arguments and made clear it was ruling exclusively on the issue of personal jurisdiction. Pet. App. 19a. Further, the Vermont Supreme Court made clear that its decision was based on the federal Due Process Clause: it expressly stated that Vermont s long-arm statute reached as far as the Due Process Clause allowed, Pet. App. 5a. This is the exact posture in which the Court has resolved other recent personal jurisdiction cases. See, e.g., Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (resolving personal jurisdiction dispute under Due Process Clause because Nevada s

30 23 long-arm statute reached as far as the Due Process Clause permitted); Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014) (same, for California s long-arm statute). Indeed, the Vermont Supreme Court rejected Petitioner s argument that the abuse-prevention order was authorized by state law on the ground that Vermont s statute cannot extend the court s jurisdiction beyond the bounds of federal due process. Pet. App. 15a n.1. Thus, there is no question that the court s Due Process analysis was outcomedeterminative. Further, the Court should take this opportunity to resolve the question presented, because this is the unusual type of question that arises with great frequency in trial-level courts, but infrequently ascends to state supreme courts. Unlike criminal defendants, alleged abusers are not entitled to appointed counsel when their victims seek abuse-prevention orders. Thus, abuse-prevention orders are often issued on an ex parte basis, especially in proceedings against out-ofstate defendants. When the alleged abuser responds to the allegations, he is often pro se and lacks the sophistication to lodge a special objection to personal jurisdiction. If he does hire a lawyer, he may not have the funds or willingness to take the personal jurisdiction issue up through all layers of the state judicial system. Further, entities with the resources to pursue such appeals pro bono, such as private law firms, are unlikely to represent an alleged domestic abuser, especially where, as here, the abuser stipulates that the abuse occurred. Thus, this Court can resolve the question presented

31 24 only when an accused abuser has the funds and sophistication to retain counsel in a state in which he has no contact, and lodge and litigate a special objection to personal jurisdiction all the way up to the state supreme court, yielding a decision directly addressing the issue of personal jurisdiction. That will only happen in a small fraction of domestic violence disputes, but it happened here. The Court should take this opportunity to grant certiorari and provide guidance on the critical questions presented. IV. THE VERMONT SUPREME COURT S DECISION IS INCORRECT. The Vermont Supreme Court erred in holding that personal jurisdiction was required to issue a no-contact abuse-prevention order. As the Massachusetts Supreme Judicial Court eloquently explained: A court order that prohibits the defendant from abusing the plaintiff and orders him to have no contact with and to stay away from her provisions that appear in the abuse prevention order issued in this case serves a role analogous to custody or marital determinations, except that the order focuses on the plaintiff s protected status rather than her marital or parental status. Such an order furthers the Commonwealth s important public policy goal of securing the fundamental human right to be protected from the devastating impact of family violence, by declaring the protected status of a person who is currently domiciled in this Commonwealth after coming here to escape from abuse. As the Supreme Court of Iowa

32 25 observed, [i]f a court may constitutionally make orders affecting marriage, custody, and parental rights without personal jurisdiction of a defendant, it certainly should be able to do what the court did here enter an order protecting a resident... family from abuse. Bartsch v. Bartsch, 636 N.W.2d at 10. If this were not so, the unpalatable choices remaining are either to require the victim of abuse to return to the State in which the abuse occurred in order to obtain an effective abuse prevention order or, alternatively, to wait for the abuser to follow the victim to the Commonwealth and, in the event of a new incident of abuse, seek an order from a Massachusetts court. In neither alternative will a court be able to provide protection to those within its borders. Caplan, 879 N.E.2d at 123 (citations and quotation marks omitted). In rejecting this reasoning, the Vermont Supreme Court argued that a final abuse prevention order has significant impact on a defendant s substantive rights and restrains his liberty. Pet. App. 12a, 13a. That is true. But no more than an order denying child custody, which may restrict an out-of-state resident s contact with his own children, or a divorce judgment, which will affect taxation and property and have other dramatic legal consequences far exceeding the effect of a no-contact abuseprevention order. Yet, those types of orders may be issued to a domiciliary of a state, even if the state court lacks personal jurisdiction over the other parent or spouse. In light of the historic power of state courts to

33 26 define family rights and obligations, and the historic power of states to protect their domiciliaries from danger, issuing no-contact abuse-prevention orders against non-resident defendants does not violate the Due Process Clause. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, TAVIAN M. MAYER MAYER & MAYER P.O. Box 59 South Royalton, VT (802) MATTHEW S. HELLMAN Counsel of Record ADAM G. UNIKOWSKY JENNER & BLOCK LLP 1099 New York Ave., NW, Suite 900 Washington, DC (202) October 15, 2014

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35 1a Appendix A Supreme Court of Vermont Neal FOX v. Eugene FOX. No Aug. 14, ROBINSON, J. This case requires us to evaluate the constitutional requirements for personal jurisdiction over a nonresident defendant in the context of a relief-fromabuse (RFA) order. Nonresident defendant appeals the family court order granting plaintiff s request for a final RFA order. Defendant argues: (1) the family court lacked personal jurisdiction over him to issue the final order, (2) defendant and plaintiff are not family members for purposes of the domestic abuse prevention statute, (3) plaintiff failed to establish that a final RFA order was necessary, and (4) the court erred in finding that defendant engaged in stalking, as defined in Vermont s stalking statute. We conclude that the trial court lacked personal jurisdiction to enter a final RFA order, and reverse. 2. Plaintiff Neal Fox s brother adopted defendant Eugene Fox when defendant was an infant. On April 6, 2012, defendant, a New Hampshire resident now in his sixties, and plaintiff, a Vermont resident, attended a probate court hearing in Manchester, New Hampshire.

36 2a Following the hearing, defendant followed plaintiff to his car and proceeded to punch, kick, and step on plaintiff. Plaintiff was hospitalized as a result of the encounter. 3. Plaintiff filed a complaint for relief from abuse with the family division of the Windsor Superior Court. The trial court granted a temporary RFA order, which was extended multiple times. Before the hearing on the final RFA order, defendant filed a motion to dismiss for lack of jurisdiction, arguing that the Vermont court lacked personal jurisdiction over him to hear the RFA case. He further argued that even if the court had jurisdiction, the uncle-nephew relationship did not constitute family for purposes of the domestic abuse prevention statute. The court denied defendant s motion, interpreting 15 V.S.A to establish jurisdiction in RFA cases even in the absence of minimum contacts between defendant and the forum state. The court also concluded that, while family is not defined by the relevant statute, except to include reciprocal beneficiaries not at issue in this case, the blood relation between plaintiff and defendant s adoptive father is a sufficient family relationship to trigger the protections of the statute. 4. During the final RFA hearing on March 25, 2013, defendant stipulated on the record at the final RFA hearing that abuse had occurred. Plaintiff testified that, at some point during the incident in New Hampshire, defendant made note of plaintiff s Vermont license plate and stated that he was recording the license plate in case he needed it again. Defendant admitted that he made note of plaintiff s license plate, but he could not

37 3a recall what he said to plaintiff. Defendant also stated that he understood that plaintiff had changed his license plate since the incident. Outside of court appearances, plaintiff has had no contact with defendant since the incident. 5. At the close of the RFA hearing, defendant renewed his motion to dismiss for lack of personal jurisdiction. The court denied the motion to dismiss on the ground that personal jurisdiction for the final RFA order was not materially different from the question of jurisdiction at the temporary order stage. The court then granted plaintiff s request for a final RFA order that prohibited defendant from coming within 300 feet of plaintiff or his home, vehicle or place of employment, except in connection with a court appearance. In that order, the court made a finding that defendant had stalked plaintiff as defined in 12 V.S.A. 5131(6). The court denied defendant s motion to reconsider his motion to dismiss, and defendant appealed. 6. In the meantime, defendant, a New Hampshire resident, was charged criminally in New Hampshire and pled guilty to simple assault. In February 2013, the New Hampshire court sentenced defendant to twelve months of incarceration, with the entire sentence suspended contingent on good behavior and compliance with certain conditions. The conditions on defendant s suspended sentence included a no-contact provision stating that defendant shall have no contact with [plaintiff] or members of his immediate family, including wife and children. No contact means direct, indirect, through third parties or through social media.

38 4a 7. The threshold questions are whether the trial court must have personal jurisdiction over a nonresident defendant in order to issue a final RFA order and, if so, whether it had jurisdiction in this case. Defendant argues that the trial court had no jurisdiction to issue an RFA order against him because he has no contacts with Vermont whatsoever, and his connections therefore do not satisfy the minimum contacts requirement of the U.S. Constitution, Vermont s long-arm statute, or Vermont Rule of Civil Procedure 4(e). 8. Plaintiff and amicus curiae Vermont Network Against Domestic and Sexual Violence both cite decisions from other jurisdictions holding that a court is not required to have personal jurisdiction over a defendant in order to issue an abuse-prevention order against him or her. They also argue that, to the extent personal jurisdiction is required, it is present in this case for a host of reasons. Specifically, plaintiff argues that Vermont s abuse prevention statute itself confers the necessary jurisdiction. That statute provides: Proceedings under this chapter may be commenced in the county in which the plaintiff resides. If the plaintiff has left the residence or household to avoid abuse, the plaintiff shall have the option to bring an action in the county of the previous residence or household or the county of the new residence or household. 15 V.S.A. 1102(c). In addition, plaintiff and amicus curiae argue that given the facts of this case, including defendant s express notation of plaintiff s license plate number at the time he assaulted plaintiff, the court s

39 5a exercise of jurisdiction was consistent with the requirements of fairness at the core of constitutional doctrine concerning personal jurisdiction. Int l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 9. Our review of the trial court s legal analysis concerning personal jurisdiction is nondeferential and plenary. Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 993 (1995). It is well settled that Vermont courts must have both statutory and constitutional power to exercise personal jurisdiction over a nonresident defendant. Vermont s long-arm statute, 12 V.S.A. 913(b), permits state courts to exercise jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause of the U.S. Constitution. N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385 (1990). Accordingly, although the long-arm statute and the U.S. Constitution provide separate and distinct limitations on the authority of Vermont courts to enter judgments, the statutory and constitutional analyses in this case are one and the same. I. 10. Courts from other jurisdictions have taken a range of approaches to challenges to personal jurisdiction in the context of requests for abuseprevention orders filed against out-of-state defendants. Many of these cases involve a complainant who, having fled to the forum state, seeks protection in the forum state s courts in response to abuse that occurred in another state, although some involve plaintiffs who, like plaintiff in this case, are domiciliaries of the forum state.