Utah: Court reaffirms no proof needed in protective orders

[pax]

From http://www.sltrib.com/02022001/utah/67920.htm

Court Reaffirms Rules On Protective Orders
Friday, February 2, 2001


BY SHAWN FOSTER
THE SALT LAKE TRIBUNE

In a victory for victims of domestic violence, the Utah Court of Appeals reaffirmed on Thursday the legal standard for the issuing of protective orders.

"This will help educate attorneys, judges and the public about what the requirements are for a protective order," said Stewart Ralphs, director of the Legal Aid Society of Salt Lake. "It confirms the principles established in the statute and in case law."

Protection orders -- predominantly issued against men -- can evict an accused abuser from a home and ban contact with a victim.

In 1999, 7th District Judge Bryce Bryner found that former Blanding City Council member Randee Bayles had threatened his former wife with a gun. In his decision granting a protection order against Bayles, Bryner also listed 20 incidents of Bayles' stalking, threatening and harassing his ex-wife, Jeroldene Bailey.

But Bayles' attorney argued in the appeal that Bailey accused her former husband of the crime of stalking, yet did not prove it. The judge, Bayles' attorney argued, never should have issued the protective order.

Two of the three judges on the appeals panel, however, disagreed.

To obtain a protective order, Bailey only had to demonstrate that she once lived with Bayles, that she had suffered physical abuse and that she had a fear of future physical harm.

Appeals Judge William Thorne wrote in the opinion that Bailey showed her former husband had been abusive and that "Bayles' conduct -- repeatedly calling Bailey's home and workplace, coupled with the evidence of past abuse -- was sufficient for the trial court to conclude that Bailey's fear was both reasonable and real."

In his dissent, Appeals Judge James Davis wrote that the trial judge should have required Bailey to provide evidence proving her ex-husband had committed each element of the crime of stalking, as defined by Utah law. Davis claimed that the appeals court used its discretion inappropriately in a "virtual retrial of the case."

Bayles, a self-described "gun nut," has been charged in U.S. District Court with violating a federal firearms law by possessing guns while under the protection order, a violation of the federal Violence Against Women Act.

He pleaded guilty to that charge this week.

 

[MGB]

That's not what the court said . . .

I have the opinion in front of me, and your characterization of the court's holding is not accurate. The court did not reaffirm "no proof is needed in protective orders." Rather, the court reaffirmed the burden of proof as set forth in the Utah Code Annotated.

The petitioner (Bailey) described several incidents of behavior designed to intimidate and cause her fear. She described her estanged husband's (Bayles) behavior as stalking. After an evidentiary hearings at which both parties were represented by counsel, the trial court concluded that over the 27 year marriage Bayles had pursued a pattern of physical violence against Bailey that included pushing, slapping, punching and even putting a gun to her neck and threatening to kill her.

Bayles appealed the court's granting of the protective order stating that if she was going to allege his behavior was stalking then she needed to meet the burden of proof to prove he had stalked her. The court rejected that argument.

Actually, the Tribune article gave a pretty accurate analysis of the case.