A local judge grappled last week with the Tennessee Attorney General's Office over a new state law he said forces him to bill the county for orders of protection people don't want.
In a letter Friday, Hamilton County Circuit Court Judge Neil Thomas III said he billed the state for certain protection-order cases because the state had, in fact, created them whether people requested them or not.
"In at least 98 percent of the cases since January 1, 2017, there has either been a 'no-show' or the victim has said that he or she told the officer that he or she did not want an order of protection," Thomas wrote to Deputy Attorney General C. Scott Jackson about the cases in his courtroom.
State courts issue orders of protection to help victims of domestic violence, sexual assault and stalking. In a 2015 report, the Tennessee Bureau of Investigation said 270 people were killed by domestic violence between 2012 and 2014. So state legislators added a provision to their sweeping Public Safety Act of 2016 to address the issue.
"Unfortunately, often times victims in domestic abuse are the very ones who fear filing an order of protection because they fear retaliation," Sen. Brian Kelsey, R-Memphis, who worked on the law, said in June. "So that's why we allow law enforcement to intervene on their behalf."
Before the law, victims had to apply for an order of protection. But since Jan. 1, magistrate judges must create an order of protection case whenever someone is charged with aggravated domestic assault. Magistrate judges typically work in county jails, ensure officers have probable cause for arrests and set the first bond for a defendant.
However, of the 377 orders of protection filed in Circuit Court between Jan. 1 and June 1, 197 have been dismissed. That's a little more than 50 percent. During the same period in 2016, there were 29 dismissals for 209 cases.
The law is well-intended, critics say, because some victims are caught in a cycle of violence and fear speaking out against their abusers. But it isn't a fix. People may change their minds, fail to show up in court, or not be transported from the jail, attorneys say.
"A lot of times, nobody shows up because they don't want it," said attorney Chrissy Mincy, who practices in Circuit and Criminal courts. "The victims who do want the order of protection come down and get it."
The law, she said, "is for a noble cause, but in practice this has more of a clogging effect."
In the past, the loser in the ensuing litigation would likely have to pay court costs or fees. The petitioner could also face a bill if the judge held a hearing and found he or she wasn't a victim of domestic assault. But who pays the bill when the state issues an order of protection for a victim who doesn't want it or doesn't show up to court?facebook
That's the question Thomas tried to answer in his letter.
"When the case then comes before me and is dismissed, I am faced with the taxation of costs where a final order is not entered against the defendant, and where the petitioner is not the victim," Thomas wrote. He fears the cost will come out of the court clerk's budget.
In his letter, Thomas called the new law "questionable at best."
Deputy Attorney General Jackson, however, said in an Aug. 3 letter to Hamilton County Circuit Court that the state isn't responsible for the costs. He attached 25 cases where the local court billed about $1,500 to the Tennessee Department of Finance and Administration between July 6 and July 7.
"We must conclude that the billings are unfounded and are not authorized by law," Jackson wrote. "Neither the Department, nor the State of Tennessee, owes these court costs, because no department of the state government was party to these civil cases."
Kelsey, reached in June, said it was the first time he'd heard about the issue but said he would look into it before the next legislative session. The Tennessee Attorney General's Office spokesman, Harlow Sumerford, could not be reached for comment Friday.
"I thought it unfair that our Clerk should bear the cost of improvident legislation," Thomas concluded in his letter. "Given your opinion, however, I will not persist in that taxation, but I did want to register our objection."