Due Process and Temporary Orders of Protection: Crawford v. Ally and the Balance of Rights

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Due Process and Temporary Orders of Protection: Crawford v. Ally and the Balance of Rights

Created as a prerogative of the English aristocracy against kingly tyranny through the issuance of the Magna Carta in 1215, the idea of due process, or procedural and substantive protection against deprivations of life, liberty and property, slowly expanded throughout the ensuing centuries to encompass ordinary citizens in the British Isles. The principle became transferred and encompassed in the first 10 amendments appended to the U.S. Constitution in 1791. The generation that fought and won the American Revolution realized that the record of deprivations under British rule provided a precedent that needed future protection.[1] Due process, like other rights accorded in the Constitution, has become a frequently discussed topic in the wake of criticisms around actions of U.S. Immigration and Customs Enforcement. This concept also applies to cases in family law, particularly in cases of temporary orders of protection, where it raises questions about the balance of due process rights with privacy rights.

A new area in this all-important balancing of rights came in 2021 when New York’s Appellate Division, First Department, decided in Crawford v. Ally[2] that an evidentiary hearing should be held when subjects of proposed temporary orders of protection claim that their due process rights may be violated through the deprivation of significant liberty or property interests. This decision is the latest extension of the landmark principle first enunciated by the United States Supreme Court in Goldberg v. Kelly,[3] which held that a recipient of public benefits must receive an evidentiary hearing before the benefits’ rescission. Crawford not only affects criminal but also family courts, since the latter system also deals with temporary orders of protections.

These concerns become especially pertinent in perhaps the most historically crucial area, the due process clause of the 14th Amendment to the United States Constitution which, as one scholar aptly puts it, is the national covenant’s “most familiar and used phrase.”[4] One of the essential areas of the phrase’s consideration centers on the definition of procedural safeguards against deprivations of “life, liberty or property.” In the last 60 years, courts have become more willing to expand the scope of these safeguards. In 1970, the Supreme Court decided to expand due process rights in Goldberg v. Kelly concerning the rescission of public benefits. Recipients now received an evidentiary hearing before their benefits could be denied.[5] While Matthews v. Eldridge (1976) limited this expansion, it established due process safeguards permanently in the area of governmental benefits.[6]

While the nation’s highest court became increasingly chary concerning due process in the late 20th century, courts in the United States’ perhaps foremost legal state did not prove so reluctant. In 2021, Crawford v. Ally decided that an evidentiary hearing should be held when subjects of proposed temporary orders of protection claim that their due process rights could be violated through a deprivation of significant liberty or property interests.[7] Given the prevalent attitude of the current Supreme Court majority, which emphasizes “originalism” over the past century’s inclination to incorporate constitutional rights under the 14th Amendment, any further expansion and delineation of due process may become, as in this situation, the province of state courts.⁷ This article examines the precedents that helped lead to Crawford v. Ally and its practical effects on family law in the United States.

The Legal Background of Family Law Temporary Orders of Protection

New York’s Family Court Act governs familial situations throughout the state, including custody, child support and “family offenses,” which include criminal offenses alleged by persons (or complainants) against “members of the same family or household.” This term encompasses persons related by consanguinity (blood) and intimacy, legally married to each other, formerly married to one another and persons who have a child in common.[8]

While the Family Court Act does grant concurrent jurisdiction to both criminal and family courts of New York in the area of family offenses, three important differences do exist. First, only a limited list of offenses can be alleged in a family court petition or accusatory instrument, such as stalking, menacing or assault. Second, instead of a trial, a “fact-finding hearing” can be held in Family Court to ascertain the veracity of the criminal allegations. Finally, the burden of proof stands as a “fair preponderance of the evidence,” or a “more likely than not” standard, except in parental neglect or criminal contempt.[9]

If the Family Court judge does find in favor of the complainant/petitioner, he or she can issue a permanent order of protection. This order can supersede any temporary order of protection previously issued by a Family Court judge after an ex parte hearing with the complainant/petitioner. Temporary orders of protection and permanent orders of protection exist in two categories: a “stay away” order that mandates no contact between the complainant/petitioner and the person restricted by the order of protection, or a “refrain from” order that prevents the subject from entering residences and contacting children, for example.[10]

The Supreme Court Expands Due Process Rights to Governmental Benefits

The case that established a significant precedent for alleged possible due process violations concerning the issuance of a temporary order of protection became Goldberg v. Kelly. In this case the United States Supreme Court considered the issue of whether a state authority that revokes public assistance to a recipient without an evidentiary hearing prior to termination denies procedural due process under the 14th Amendment. The case arose from recipients of the partially federally supported Aid to Families with Dependent Children program who received either suspensions or discontinuance of their payments from the New York City Department of Social Services. The department’s guidelines allowed affected recipients an evidentiary hearing only after the terminations. In his majority opinion, Justice William Brennan noted that the receipt of welfare benefits constituted a right, not a privilege, citing previous Supreme Court cases upholding similar due process protections for workers’ compensation and other state benefits. Brennan also noted that the suspension of welfare benefits could cause undue harm, such as destitution. Brennan’s opinion therefore affirmed the lower court’s requirement of a pre-termination evidentiary hearing. The court noted, however, that this constitutionally mandated “opportunity to be heard” did not require the processes of a court trial, such as a complete record and a comprehensive decision.

Matthews v. Eldridge limited the generous procedural due process guarantees first established in Goldberg v. Kelly. The case involved a worker whose Social Security disability benefits were terminated. The majority opinion by Justice Lewis Powell first held that, unlike welfare benefits, Social Security disability benefits did not depend on financial need. In order to evaluate whether proper procedural actions existed, the opinion further established a three-fold threshold test: the private interest affected by the official government action; the risk of an erroneous deprivation of such interest through the available procedures and the probable value, if any, of additional or substitute procedural safeguards; and the government’s interest in the action. The decision held that any Social Security disability claimants possess sufficient safeguards for the protection of their due process rights, including an ability to pursue remedies through questionnaires and the presentation of medical evidence, as well as the right to judicial review after a final determination by the secretary of health and human services. Thus, no pre-termination evidentiary hearing need be held, according to the court, as in Goldberg v. Kelly.

Even with this new boundary, a person’s property entitled to due process now became more than just the personal and real property envisioned by the Founding Fathers in creating the Bill of Rights, or the corporate interests granted 14th Amendment protection by a laissez-faire Supreme Court in the late 19th century. It now encompassed the area of governmental benefits.[11] These two important decisions by the nation’s highest court left further determinations mostly to the state courts, as evidenced in the following section.

A New Opportunity for Due Process?

The first case in New York that considered the applicability of evidentiary hearings for alleged due process violations arising from the issuance of a temporary order of protection was People v. Forman (1988).[12] In this case the defendant, Forman, found himself excluded from his residence by a temporary order of protection issued by a New York City criminal court following charges of assault and harassment. The court issued the order pursuant to New York Criminal Procedure Law Section 530.11, which prevented Forman from entering two cooperative apartments shared with his wife. CPL 530.11 (now 530.12) authorizes a criminal court to issue a criminal order of protection when an action involving “any crime or violation between spouses, former spouses, parent and child, or between members of the same family or household” is pending. Courts may issue either a limited or complete temporary order of protection. The court did note, however, that such temporary or limited orders usually do not allow the subjects of such orders of protection the right to litigate over their feasibility due to their relatively short-term existences.

In its analysis, the Forman court used the three-part balancing test first established in Matthews. v. Eldridge. After determining that Forman possessed standing, the court then discussed the issue of whether he remained entitled to an evidentiary hearing concerning his alleged constitutional violations before the issuance of the order of protection. While recognizing the order directly affected Forman’s property and liberty interests by excluding him from his residences, the criminal court nonetheless held that the already instituted “probable cause” evidentiary hearing required by New York State statutes provided Forman an opportunity to be heard, and that, moreover, such a procedure could properly consider any alleged constitutional violations.

Nearly 40 years later, the New York State Appellate Division, First Department considered a similar situation in Crawford v. Ally. The appellate court considered the denial in the trial court of a writ of mandamus that requested an evidentiary hearing before the issuance of a temporary order of protection that excluded the appellant from her apartment. The Appellate Division reversed, holding that the possible deprivation of significant liberty or property interests, such as the denial of access to one’s residence or one’s children, constituted an important factor in determining the issuance of an order. Thus, the appellate court added, an evidentiary hearing should be held in such a situation. As in Goldberg, however, the court did not specify the nature of such a hearing, other than that one should be held when the “defendant presents the court with information showing that there may be an immediate and significant deprivation of a substantial personal or property interest.”[13] The decision noted that before its current determinations no explicit procedures for an evidentiary hearing existed when a person contested a temporary order.

This case followed closely the legal reasoning, albeit in a different factual milieu, in Matter of F.W.[14] In that case, the Bronx Family Court postponed an evidentiary hearing concerning a father’s alleged neglect of his children and their removal from the residence. The court noted that there are certain facets that need to be considered in a Family Court hearing, such as the presence of “undisputed harm” and the private interests of parents and children.[15] No appellate court in New York has further elaborated on the standards first established in Crawford. Trial courts, however, readily use the decision, as evidenced by People v. P.D., Defendant, which considered the applicability of a Crawford hearing to criminal orders of protection and what documents could be used in such proceedings without violating confidentiality interests. Family law courts could use the Crawford standards to hold fact-finding hearings to determine how a temporary order of protection could deprive the intended recipient of employment, National Guard service or even his or her house.¹⁷

Moreover, the standards established by Crawford may not seem immediately applicable to Family Court cases. Criminal courts deal with alleged offenses that may result in imprisonment, while its familial counterpart only encompasses “family offenses” that can at most result in temporary or permanent orders of protection. But there can be deprivations of emotional support, such as being barred from personal relationships with family members, or even habitation when a person cannot enter his or her residence for a period that normally can extend to up to one year. Thus, the protections now afforded by a Crawford hearing can help prevent the unjust imposition of such restrictions on the lives of citizens, deprivations that can be devastating: A temporary order of protection can prevent a person from seeing his or her children by prohibiting communications or visits.

Conclusion

As in any area of law, the development of expanding due process rights and their corresponding procedures can be slow and even ad hoc. This is especially true with the parameters expanded and established by national and New York courts and discussed in this article. Thus, the intersection of rights, temporary orders of protection and family law courts remains necessarily fluid. Perhaps this development comes from the historical flexibility of due process. Originally envisioned in the U.S. Constitution’s Fifth Amendment as a protection against the abuses of executive power that prompted the Revolution, it eventually expanded to encompass more than just appropriate procedure in a court. Corporations received such protection by the late 19th century. As illustrated by this article, moreover, due process expanded to recipients of governmental benefits. Now persons facing temporary or permanent orders of protection in the state-based Family Court system may receive due process protection. The nascent importance of such a new protection, however, may be further attenuated due to the current preoccupation with due process rights for undocumented aliens in federal immigration proceedings, particularly deportation.

John Thomas McGuire is an assistant public defender in the Columbia County Public Defender’s Office located in Hudson, New York, where he concentrates on family law.

Endnotes:

[1] An excellent recent source for the development of due process is Max Crema and Lawrence B. Solum, The Original Meaning of “Due Process of Law’” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022).

[2] 197 A.D.2d 27, 150 N.Y.S.3d 712 (1st Dep’t 2021).

[3] Fred Rodell, Nine Men: A Political History of the Supreme Court of the United States, 147-48 (1955).

[4] 397 U.S. 254 (1970).

[5] 424 U.S. 319 (1976).

[6] For an extensive discussion of this issue, see Jamal Greene, Fourteenth Amendment Originalism, 71 Md. L. Rev. 978 (2011).

[7] N.Y. State Fam. Ct. Act § 812.

[8] N.Y. State Fam. Ct. Act §§ 812, 822. See Santosky v. Kramer, 455 U.S. 745 (1982), (in which the Supreme Court mandated a “clear and convincing” burden of proof for parental neglect cases in New York as a significant exception to the usual “preponderance of the evidence” standard).

[9] N.Y. State Fam. Ct. Act § 842(a)(1).

[10] Robert L. Cord, The Incorporation Doctrine and Procedural Due Process Under the Fourteenth Amendment: An Overview, 1987 B.Y.U. L. Rev. 867.

[11] 145 Misc. Parenthetical s/b (Crim. Ct. New York Co., 1989).

12 Crawford at 715. A good guide to the significance of the Crawford decision may be found in Isabelle Leipeger, The Collateral Effects of Criminal Orders of Protection on Parent-

Defendants in Cases of Domestic Partner Violence, 91 Fordham L. Rev. 272 (2022).

[13] 183 A.D.3d 276 (1st Dep’t 2020).

[14] Id. at 280.

[15] 181 N.Y.S.3d 452 (N.Y. Crim. Ct. 2023).