I had a harassment prevention order wrongly issued against me and I need relief from it soon, what can I do?
14 December 2019
Answer: There are a few options, move for reconsideration and/or appeal, and if you appeal, since it takes a long time for a decision, you many seek a stay of the order while the appeal is pending. But whatever you do, do it NOW.
One of the most common mistakes an unsuccessful defendant in an HPO case makes is not taking action soon enough. For whatever reason, people are either not aware of the necessity for, or do not appreciate the importance of, taking action right away.
As a general concept, the law is constantly seeking finality to permit people to rely on decisions. Windows of opportunity to challenge decisions close. Don’t let a window close on you to challenge a bad decision. And with harassment prevention orders in particular, every minute there is the risk you will be arrested for violating the order, including by mistake or inadvertence, which happens easier than you think.
Even if you believe you know the specific deadline to take action, please understand that attorneys need time to make an agreement with you, interview you and/or others, gather other facts, gather documents, draft pleadings, and file them before that deadline. If you come to an attorney’s office too close to a deadline, they may turn you away for that reason alone. And do not fail to factor in time it might take to find the right attorney too. For all these reasons, immediately start the process after a bad decision has issued.
With respect to what avenue to take to challenge the HPO, understand that every situation is different and these general ideas may not be applicable. That being said, a motion for reconsideration is possible, but if you really want to ensure the best chance of success an appeal in conjunction with reconsideration is desirable. You may need to start the process of appealing the decision at the same time your motion to reconsider is in process to ensure the best chance of avoiding missing time deadlines and attaining success.
If you do appeal, it is likely it will be many months before an appeals court issues a decision. All the while, that HPO is a potential, lingering threat to your liberty. So one way you can get relief from the order sooner is to seek a stay of it while the appeal it pending. The general standard that must be met is to satisfy each of these elements:
1) the likelihood of appellant’s success on the merits;
2) the likelihood of irreparable harm to the appellant if the court denies the stay;
3) the absence of substantial harm to other parties if the stay issues; and
4) the absence of harm to the public interest from granting the stay.
C.E. v. J.E., 472 Mass. 1016, 1017 (2019).
It is a lot of work to bring a motion to stay in the appeals court, but it could be worth it. One general prerequisite of bringing a motion to stay in the appeals court is to have sought a stay in the trial court already, or show why doing was not practicable. Thus, it is desirable to seek the stay from the trial court at the same time you seek reconsideration, to meet that prerequisite.
To reiterate, call an attorney right away, this one will likely be happy to talk.