For all the criticisms deservedly leveled at activist judges who exceed their constitutional authority, legislate from the bench, and destroy Americans’ freedoms, an excessively timid judiciary can have just as damaging an effect. Such is the case with the Maryland Court of Appeals, which through its inaction has effectively dismantled a key protection that state law provides to alleged victims of domestic violence. State law allows let Maryland citizens request temporary protection orders against spouses or other relatives whom they believe pose a serious threat to their safety. The guidelines require that the person requesting a TPO testify — under oath — that the person assaulted, threatened, or held them against their will. If the judge finds reasonable grounds to believe that the petitioner is in harm’s way, a TPO can be issued for seven days. Any extensions beyond that must be approved by the court.
The statute’s clear intent is to provide a weeklong “cooling off” period by separating the parties involved in domestic disputes. A final hearing is then scheduled, at which time both parties may present evidence. After hearing both sides, the judge can either allow the TPO to expire or extend it for up to a year.
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In the case before the Maryland Court of Appeals, a lower court judge issued a TPO, but another judge quashed it before the hearing could be held. To make matters worse, the second judge made his decision ex-parte (“by one side”) without both parties present — and without hearing any of the evidence that convinced the first judge to issue the TPO in the first place. The practical effect of this second ruling was to nullify the state statute granting Maryland residents the right to seek the court’s temporary protection.
The now-unprotected victim made her case to the Court of Appeals, which agreed to clarify the issue. However, after briefs were filed and oral arguments were held, the appellate court suddenly decided not to rule on the case after all. This drew a stinging dissent from Appellate Judge Joseph F. Murphy: “I am persuaded that, even though the case at bar is now moot, the question presented involves ‘unresolved issues of public importance, which are likely to recur, and for which there is manifest urgency of establishing a rule of future conduct.'” It goes to show that sometimes, an inert judiciary can be just as bad as an overactive one.
