Diddly: What Judges Who Issue Restraining Orders May Know about the Law

Posted on March 11, 2015


I should go back and edit out whatever grudging credit I’ve given to judges for their knowledge of the law in posts past. It turns out that if you’ve been calling the guy or gal who issued you a restraining order—and then scorned and humiliated you when you tried to defend yourself—a “clown,” a “petty tyrant,” or a “mouth-breathing wannabe,” you may have better grounds for your assessment of his or her character and qualifications than you imagine.

A client I talked with this week, a retired criminal defense attorney who started out as a county prosecutor, set me straight about what legal credentials are required to ascend to a seat on the court’s lowest tier in my home state of Arizona.

None. At all. These “judges” don’t have to know jack about the law.

Arizona isn’t known for progressivism, of course. We still have “justices of the peace.” On the other hand, so, too, do New York and the United Kingdom.

The majority of JPs (or “magistrates,” as they’re sometimes called) aren’t qualified lawyers, that is, they don’t have law degrees. It may be the case, what’s more, that bottom-rung municipal and county judges in many or most places are laypeople whose only grounding in the law may be a bit of mandated “judicial training.”

(When I was a graduate teaching assistant, I was required to meet with a panel of professors once a week for a “colloquium.” The point was to familiarize up-and-coming professors with what the business of professorship entailed. I’ve witnessed no evidence that “judicial training” is any more intensive than this was.)

Restraining orders, it should be noted, may issue from a diversity of courts. Their typical sources, however, are judges at the dirt end of the totem pole, the same people who hear traffic cases and officiate over marriages for tips (they can make, incidentally, $100–$200K, depending on the size of the jurisdiction they preside in and the docket it generates). All that may distinguish JPs or their equivalents from anybody else (excepting their lavish salaries) is that they got elected or appointed to office. In Arizona and places elsewhere, they’re minor politicians, like schoolboard members and city councilmen and -women.

(In 2014, nearly 50 JPs elected in my state of Arizona ran unopposed; they didn’t even have to be good politicians to “earn” their judicial posts. Amusing story: In 2011 or 12, after I’d just started writing about procedural abuses, I chanced to bump into a friend from the University of Arizona English Department. She hollered at me across the parking lot of a public library. It happened that she was dating a judge and wanted me to sign her boyfriend’s petition for reelection. He seemed like a nice guy—I’d never met him before—and I didn’t think twice about lending my support and shaking his hand. I only realized as I was driving away that he’d been one of the four judges involved in my own case in 2006. I made the connection because his promotional gimmick was a chip bag clip with his name embossed on it. It’s probably still in my truck somewhere under the string cheese wrappers.)

All this is to say that the “reverend pontiffs” we’re required to bow and scrape to when we appear in court (“Yes, Your Honor!”) may have been former McDonald’s shift managers. These are the same guys, mind you, whose offhand judgments may spur protracted domestic wars whose financial tolls can run to the five or six digits (and ruin families)—and that’s besides the thousands or tens of thousands that serial litigations (from one couple) may cost the taxpaying public.

(“Can I interest you in a large drink to go with your order?”)

Rulings by these men and women, who may have no collegiate training in the law, may moreover drive some defendants to commit suicide or to do violence to others.

(“You wanna supersize that?”)

Several people who’ve registered complaints about restraining order decisions on this site have J.D.’s—law degrees—and are or were licensed attorneys. (Larry Smith is a former lawyer who’s been subject to and who blogs about restraining order and other procedural abuses.) As if the restraining order process weren’t already a sham owing to the slack standards authorized by lawmakers, the mere minutes-long (“drive-thru”) hearings, and the preferential treatment shown to plaintiffs, the process is also administered by folks who may have less background in the law than the people they pronounce judgment upon.

This isn’t to say these guys don’t know “the rules” and what the statutes say. There’s more, though, to the law than laws. You or I could learn those with a few nights of study. The point is they may have no footing in the principles of jurisprudence or have ever taken a freshman level course in legal ethics. All they may know is what they’re “supposed” to do.

(“Does everything look right on your screen?”)

Judges higher up the ladder, like superior court justices, do have to have degrees and must have passed the bar, according to the former lawyer I talked with this week (for whom I removed an aged tree with hands I’d meant to do other things with—I did also offer to help him with a book he’s writing). But even superior court judges need not necessarily have practiced the law significantly before assuming a position on the bench. It’s sort of like naming a greenhorn architecture professor to be the foreman of a construction site.

The snarky zinger often aimed at teachers applies at least as aptly to the court: Those who can’t do, judge.

Not only did my client (the former lawyer) opine that some judges were “complete idiots”; he felt some of them weren’t even sane (and he named names, which I have to be cautious about doing). “God,” I said, “it’s like the Wild West.” He agreed.

Copyright © 2015 RestrainingOrderAbuse.com

*To make matters more shameful yet, restraining orders may be issued by judges pro tem—temporary help hired by the court to cover for JPs or their ilk. These courthouse temps may have no judicial experience (and no particular investment in doing their jobs well). The restraining order this writer was issued in 2006, which had been petitioned by a married woman who hung around his house at night in 2005 (minus both her husband and her wedding ring), was approved by a judge pro tem. On appeal, the order was determined by a JP to have been “incorrectly issued,” because the woman had included her husband on the order (her motive for the order was plainly to have me prohibited from speaking to him). The judge, who had a black cowboy mustache that screamed dye, ruled to affirm the order despite its sketchiness after he “allowed” me to testify for 15 minutes. What a guy. (In conversation with the client I’ve mentioned in this post, I was told he’d ironically helped to get this particular judge elected. He shared some gossip with me, too. He said the man liked to tell people he was a former member of Special Forces. My client quipped he was probably the cook. Not long after I stood before him in 2006, “Judge Commando”—who had declared during my hearing that he considered his courtroom the “last bastion of civilization”—was nominated to head up my county’s domestic violence court. Who better to sensitively negotiate disputes that fracture families than a fella who fancies himself Rambo? As you might guess, he’s very popular with female plaintiffs.)