State v. KidderState v. Kidder
The Hillsborough District Court (Hatfield, J.) сertified the following question pursuant to Supreme Court Rule 9:
Does the defendant in this case, who is subject to a protective order issued by the District Court which prohibits third party contact with the victim by telephone, violate the ordеr when the defendant’s attorney, a member of the New Hampshire Bar in good standing, contacts the unrepresented protected person on behalf of the defendant?
For the reasons explained below, we answer this quеstion affirmatively and remand.
The district court, following offers of proof and submission of various memoranda and pleadings, made the following findings of fact for the purpose of deciding this motion to dismiss. On January 21, 2003, the Manchester District Court (Lyons, J.) issuеd a temporary protective order against the defendant, Steven Kidder, in favor of the victim, Dawn Cassidy, who had filed a domestic violence petition. See RSA ch. 173-B. The protective order, in relevant part, read: “The defendаnt shall not have any contact with the plaintiff, whether in person or through a third party, including, but not limited [to], contact by telephone.”
The defendant hired attorney Gregory Swope to represent him regarding the domestic violenсe matter pending before the district court. The defendant and attorney Swope knew that Cassidy had procured the protective order against the defendant. At the defendant’s direction, attorney Swope contacted Cassidy to inform her that he represented the defendant, was calling on his behalf, and wanted to organize a meeting with all three parties present. Following the phone call, Cassidy, who was not represented by counsel, contacted the police, fearing that Swope and
As a result, the State filed a class A misdemeanor complaint against the defendant alleging thаt he “did knowingly violate a Temporary Protective Order ... in that [he] did establish third party contact with ... Cassidy, by having Gregory Swope contact her regarding the said protective order.” Swope filed a motion to dismiss the complaint аnd the State opposed the motion. Because this case concerns unresolved issues of New Hampshire law, the district court certified the question to this court.
The defendant argues that interpreting the provisions of RSA chapter 173-B to prohibit all third-party contact, including through an attorney, would lead to an absurd result. Specifically, he contends that imposing criminal penalties on a defendant for the legitimate actions of a third party such аs a teacher or doctor, would lead to an absurd result and fails to further the purpose of the statute. The State contends that under the plain language of the statute, the defendant may properly be found guilty of violating a protective order if he knowingly contacts the victim through his attorney. We agree.
In matters of statutory interpretation, we are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole. In the Matter of Watterworth & Watterworth;
The legislative history reveals that the legislature intended RSA chapter 173-B to be construеd liberally. See N.H.H.R. JOUR. 649 (1999). “It is the public policy of this state to prevent and deter domestic violence through equal enforcement of the criminal laws and the provision of judicial relief for domestic violence victims.” Id. at 648. A broad interрretation of the statute comports with the legislative purpose to “preserve and protect the safety of the family unit for all family or household members by entitling victims of domestic violence to immediate and effeсtive police protection and judicial relief.” Id. at 649.
We find that holding the defendant criminally responsible for knowingly contacting the holder of a protective order through his attorney effectuates this intent. Nothing in the plain language of the statute or the legislative history indicates a legislative intent to except “legitimate contact” by certain third parties. We hold that a trier of fact can find that the defendant violated the protective оrder if the trier of fact finds that the defendant knowingly contacted the unrepresented protected person through his attorney.
We caution, however, that while the defendant may properly be found guilty of violating a protective order when he knowingly contacts the victim through an attorney, teacher, doctor or other party, prosecutorial discretion should be exercised to distinguish between cases when a third party makes innocent contact with the protected party and those where the defendant uses a third party as a conduit.
The defendant argues the State’s interpretation of RSA chapter 173-B renders it unconstitutional on its face and as apрlied, and therefore the State’s interpretation should be rejected. We disagree. First, the defendant contends that the State’s interpretation of RSA chapter 173-B is unconstitutionally overbroad. He argues it should not be construеd to prohibit legitimate contact without a “purpose to harass, intimidate, or otherwise abuse the complainant.” To further this argument, the defendant cites
First,
Next, the defendant argues that under Smith and Albers, omission of a legitimate purpose exception renders RSA chapter 173-B overbroad. In Smith, we interpreted an earlier version of
In contrast, RSA chapter 173-B was enacted with the intent “to preserve and protect the safety of the family unit for all family or household members by entitling victims of domestic violence to immediate and effective police protection and judicial relief.” N.H.H.R. JOUR. 648-49. What the defendant fails to understand is that any contact with a victim of domestic violence, whether legitimate or not, may be perceived by the victim as harassment, intimidation or abuse. Accordingly, we will not create a legitimate purpose exception to the contact prohibited by the issuance of a protective order. Because
The defendant contends further that the State’s interpretation of chapter 173-B criminalizes constitutionally proteсted activity. Specifically, he argues that the State’s interpretation deprived him of his right to effective assistance of counsel and due process, thereby violating his federal and State constitutional rights. See U.S. CONST, amends. V, VI, XIV; N.H. CONST, pt. I, art. 15. We disagree.
We first address his claim under the State Constitution, State v. Ball,
The defendant’s due process rights and right to receive effective assistance of counsel do not confer upon him unfettered access to witnesses, especially when the witness is a victim of domestic violence and holds a protective order against him. Cf. id. at 720-21. Thus, on its face and as applied to the defendant, RSA chapter 178-B does not sweep within its ambit an appreciable amount of constitutionally proteсted conduct. See Albers,
Further we emphasize that protective orders are orders of the court, not orders of the viсtim, and neither the defendant, the victim, nor a representative of either party has the authority to approve exceptions to the order. See People v. Townsend,
If the defendant has a legitimate reason to contact the victim, he is nоt without remedy. He can petition the court for an exception to or modification of the restraining order.
The defendant also contends that the temporary protective order impinged upon his fundamental liberty interest in raising and caring for his children. This argument is without merit, and does not warrant further discussion. See Vogel v. Vogel,
The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See Albers,
Remanded.