Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23Fam. L. Q. 43 (1989).


The District of Columbia and every state except Arkansas and New Mexico have enacted statutes authorizing civil orders of protection for domestic abuse. Civil protection orders grant immediate relief to victims of domestic abuse by enjoining batterers from further violence against their partner. These orders may provide further protection by evicting the batterer from a shared residence, arranging for temporary custody of children, limiting child visitation rights, requiring payment of child support, and ordering the batterer to attend mandatory counseling. Temporary orders may be obtained in an ex parte proceeding in order to provide for a victim's immediate safety when there is insufficient time to give notice to the batterer. Soon after the respondent receives notice, the court holds a hearing at which both parties have an opportunity to be heard. The temporary order may then become 'permanent,' usually for up to a year.


Civil protection order hearings differ from criminal prosecutions in two important respects.


*44 1. Civil rules of procedure are involved in issuing protection orders - for example, the standard of proof for granting an order is a preponderance of the evidence rather than beyond a reasonable doubt.


2. A hearing on a protection order petition is designed to separate the parties and prevent future unlawful conduct rather than to vindicate the state's interest in punishing past offenses.


Advantages of Protection Orders


Civil protection orders provide the only remedy for abuse that is not yet criminal (e.g., intimidation or harassment) and for behavior that is a misdemeanor crime with insufficient evidence for charging or conviction (e.g., threats or shoving). Civil protection orders alone can provide victims with relief when the victim does not want the batterer charged criminally or jailed for a misdemeanor criminal offense. Due to fear of retaliation, many women [FN1] do not want their partner arrested. In addition, if he were given a criminal record or jailed, he might lose his job and be unable to support the woman and their children. Moreover, the children might turn against their mother for 'throwing dad in jail.' Furthermore, most women are interested in stopping the battering, not punishing their partner.


Civil protection orders can end the abuse by evicting the batterer from the residence, whereas the plaintiff in a criminal process usually has to live with the defendant while he is awaiting trial and even a conviction will not necessarily separate the batterer from the victim, if little or no jail time is ordered. Finally, the specific dynamics of domestic violence create havoc with the criminal justice system because, unlike most other types of violent crime, the offender is motivated to retaliate against a specific victim. In addition, as a cohabitant, he has a unique opportunity both to continue to abuse the victim and at the same time to play on her sympathy ('It won't ever happen again! What will the kids do without me?'). By enjoining any contact and evicting the batterer from the home, civil protection orders can address these unique circumstances.


Petitioning for a protection order does not preclude a victim from bringing criminal charges against the batterer at the same time, except in New York State. Many observers recommend that battered women pursue their cases both civilly and criminally. Some would argue that batterers *45 should always be arrested and prosecuted, at least in cases where there has been aggravated assault and battery or other felonious behavior.


In most jurisdictions a protection order can also be issued as a condition of bail or pretrial release in a criminal case. However, these orders usually provide much less relief than civil protection orders; they do not address issues of visitation, child support, or mandatory counseling for the batterer, and in most cases they do not provide for evicting the defendant from the home. This route is also foreclosed when the abuse is not an 'arrestable' offense or presents insufficient evidence to bring criminal charges.


Even if the victim plans to file for divorce, a civil protection order may be needed because women often are not granted all the relief from an action in divorce that they can get from a civil protection order. In any case, about three quarters of domestic assault victims are already divorced or separated at the time of the incident. [FN2] Thus, a strong civil protection order system is necessary as an alternative and supplement to both criminal prosecution and divorce proceedings.


Limitations of Protection Orders


Many people have questioned whether civil protection orders against domestic abuse are effective. Protection orders have been criticized for failing to prevent further violence, for reinforcing a 'soft' approach to a serious criminal problem, for being susceptible to fraud, and for being difficult to enforce.


All observers agree that, at least until they are violated, civil protection orders are useless with the 'hard core' batterer for whom nothing short of incapacitation with a jail sentence would be effective. Any abuser who is absolutely determined to batter or kill his partner will not be deterred by a piece of paper ordering him not to. Only locking these people up can protect the victim.


The most serious limitation of civil protection orders is widespread lack of enforcement. Most police officers will not obtain an arrest warrant to pursue a batterer who has fled before the officers arrive at the scene of a misdemeanor violation. The burden then falls on the woman to file a complaint so that the court will issue a bench warrant or a summons for the batterer to appear in court for a contempt hearing. Unfortunately, such private complaints are frequently taken less seriously by prosecutors and judges than when batterers appear after arrest by the police.


In the past, problems with the use of civil protection orders often stemmed from lack of clarity and limitations of scope concerning eligible victims, offenses that permit as order of protection, kinds of relief authorized,*46 and provisions for enforcement. As a result, many state statutes were revised to include more clear-cut and comprehensive procedures for courts and law enforcement agencies to follow in issuing and enforcing protection orders. Despite weaknesses in some state statutes, current legislation in many states provides judges with ample opportunity to use civil protection orders to help protect many women from further domestic violence.


This article provides a statutory review and discussion of the provisions of current civil protection order legislation. Although a formal case law review is not presented, the principal appellate court decisions in the field are discussed.


Civil Protection Order Statute Provisions


Table 1 presents the significant provisions of the civil protection order statute of every state and the District of Columbia as of March 1988. Features of the law are recorded in the matrix only if they are explicitly mentioned, that is, required, authorized, or prohibited in the statute. For example, unless the statute specifically references 'sexual abuse,' the matrix does not record that victims are eligible to petition on the basic of sexual abuse. Of course, regardless of local interpretations of the statute, local practice may not reflect what is explicitly called for or authorized by the statute. The statute may say nothing about providing victims with assistance in petitioning for an order, but in practice local agencies or court clerks may regularly furnish such help. Or the statute may say nothing about keeping the victim's address confidential, but judges may regularly do so upon a petitioner's request. However, unless the statute specifically requires, authorizes, or prohibits victim assistance or confidentiality of address, the matrix does not indicate these activities are included in the statute. Conversely, the matrix does record that a statute permits ex parte orders when there is explicit language to this effect even though local judges may never issue orders on this basis.




While many provisions of these statutes require no special commentary, a number benefit from clarification and discussion of pertinent case law.


Eligible Petitioners


Every civil protection order statute makes spouses eligible for protection orders; in addition, former spouses are eligible in forty six jurisdictions, persons living as spouses qualify in thirty nine, and any family member is eligible in forty two. Twenty four statutes explicitly extend relief to household members who are unrelated. For example, the Utah statute *47 permits 'any adult residing within the same residence' [FN3] to petition.


Most states allow at least some victims to petition for an order even if they are not currently living with the batterer. Forty five states and the District of Columbia provide for relief to former spouses, and thirty five states and the District of Columbia authorize orders for never married individuals who once lived together as spouses. For example, the Alaska statute includes 'any person who is not a spouse or former spouse of the respondent but who previously lived in a spousal relationship with the respondent.' [FN4] New Hampshire qualifies 'persons who cohabited with each other but who no longer share the same residence. . . .' [FN5] However, Pennsylvania and Kansas restrict eligibility to former cohabitants who 'continue to have legal access to the residence.' [FN6]


Authorizing protection orders for victims who no longer live with their partner is important. A study of emergency room records found that 72 percent of the victims of domestic violence in the sample were not living with the abuser at the time of the assault. [FN7] Many abusive former husbands and boyfriends make repeated attempts to harass or injure their former partners. As a result, a provision such as the one found in Missouri that terminates an order of protection 'upon the entry of a decree of dissolution of marriage or legal separation' [FN8] denies protection to a large number of vulnerable women.


Most state statutes do not preclude a victim from obtaining an order because she is involved in a divorce or separation from the batterer. Utah's statute expressly provides that 'all proceedings pursuant to this act are separate and independent of any proceedings for divorce, annulment, or separate maintenance, and the remedies provided are in addition to any other available civil or criminal remedies.' [FN9] Several states simply require that petitioners disclose to the court any other pending family court actions. However, statutes in Texas and West Virginia explicitly state that no order may be issued if an action for legal separation or dissolution of marriage is pending between the parties. [FN10]


*48 Qualifying Behavior


While victims of physical abuse are eligible for protection orders in all forty nine jurisdictions, victims may petition on the basis of attempted physical abuse in thirty nine states and the District of Columbia. Statutes in forty two states and the District of Columbia expressly permit an order on the basis of assault without battery. The Wyoming statute is typical in including 'threats of physical abuse' [FN11] within its definition of domestic abuse. Often the statutory language is couched in terms of intimidating the victim, as in the Maine statute, which includes 'attempting to place or placing another in fear of imminent bodily injury' [FN12] within its definition of abuse.


Statutes in twenty seven states and the Districtof Columbia specifically include sexual abuse of an adult as a ground for providing relief. However, in Lucke v. Lucke, [FN13] the North Dakota Supreme Court ruled that although the state statute did not expressly include sexual abuse as a ground for issuing an order, the law defining abuse as physical assault or threats of assault should be interpreted to allow relief for sexual assault.


Once a batterer has exhibited behavior that qualifies for relief, statutes in thirty six states provide that the victim remains eligible even if she has left the residence to escape further abuse. Most state statutes are silent, however, regarding how recent the incident must be to qualify the victim for an order. Courts in Oregon are permitted by statute to consider women eligible who have been abused any time in the preceding 180 days. [FN14]


Filing Fees


Twenty three states require a filing fee in order to petition for a protection order. However, every state but Hawaii permits an indigent woman to have the fee waived by filing an affidavit of indigency. Statutes in California, Massachusetts, New Hampshire, Rhode Island, and Vermont prohibit a filing fee. [FN15] California's statute was amended to eliminate filing fees when the State Supreme Court Chief Justice proposed this change to help ensure that battered women could seek court protection regardless of economic means. The Washington State statute prescribes that ' f or the purpose of determining whether a petitioner has the funds available to pay the costs of filing an action under this chapter, the income of the household or family member named as the respondent is not considered.' [FN16]


*49 Pro Se Petitioning


Thirty civil protection order statutes authorize pro se petitions. For example, Florida provides that a cause of action for an injunction 'shall not require that the petitioner be represented by an attorney.' [FN17] Many of these states expressly require the court to assist victims to file pro se. The Massachusetts statute, for example, requires that ' t he administrative justices. . . shall jointly promulgate a form of complaint . . . which shall be in such form and language to permit a plaintiff to prepare and file such complaint pro se.' [FN18]


Standard of Proof


Most statutes are silent regarding the proper standard of proof in protection order hearings. However, all but two of the thirteen states that have prescribed the standard by statute have specified a preponderance of evidence. Maryland requires 'clear and convincing' [FN19] evidence of abuse and Wisconsin requires 'reasonable grounds.' [FN20]


Authorized Relief


Most state statues authorize a broad range of relief. However, the maximum relief is authorized in the thirty eight states that explicitly grant judges the latitude to grant any constitutionally defensible relief that is warranted. For example, Florida's act empowers the court to grant an injunction 'ordering such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions or directives to law enforcement agencies. . . .' [FN21]


In some states (e.g., Massachusetts and Vermont), all the relief authorized for inclusion in a permanent order may also be provided in an ex parte order. [FN22] More commonly, however, statutes exclude some types of relief from ex parte orders. For example, California, Mississippi, Missouri, Pennsylvania, and Utah all exclude spouse support; [FN23] California and Virginia exclude mandatory counseling; [FN24] and Missouri excludes child support. [FN25] At a minimum, however, every civil protection order statute permits eviction of the batterer in an ex parte order, and most authorize *50 awarding the victim temporary custody of the children. Furthermore, Connecticut, Maryland, Massachusetts, North Dakota, and Washington authorize the court to grant such additional relief as the court deems proper or necessary in an ex parte order. [FN26]


Comments from judges and courtroom observation indicate that four types of relief require special discussion.


No contact. While some judges voluntarily specify in the order the types of contact the respondent may and may not have with the victim, even when the order enjoins any contact at all, Texas' civil protection order statute requires that 'the court shall specifically describe the prohibited locations and the minimum distance therefrom, if any. . . .' [FN27] Because in laws can threaten the victim unless the protection order explicitly enjoins them, too, from contact with the victim, the Hawaii statute requires that the order 'shall not only be binding upon the parties to the action, but also upon their officers, agents, servants, employees, attorneys, or any other persons in active concert or participating with them.' [FN28]


Visitation. Judges and victims alike agree that nowhere is the potential for renewed violence greater than during visitation. As a result, the Minnesota Domestic Abuse Act provides that '[i]f the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted visitation, the court shall condition or restrict visitation as to time, place, duration, or supervision, or deny visitation entirely, as needed to guard the safety of the victim and the children.' [FN29] Vermont's civil protection order statute authorizes the court to include visitation rights, if requested, 'unless the court finds that visitation will result in abuse, in which case the order shall specify conditions under which visitation may be exercised so as to prevent further abuse.' [FN30]


In Marquette v. Marquette, [FN31] the Oklahoma Court of Appeals ruled that restraining the defendant from visiting and communicating with the couple's minor children did not violate the defendant's due process rights even though the order had been granted in an ex parte hearing. Although the ex parte order had significantly interfered with the defendant's visitation rights, the court held that the action withstood the due process challenge in light of the procedural safeguards employed under the act before the ex parte order was issued, the requirement for a hearing within ten days thereafter, and the state's interest in securing immediate protection *51 for victims of abuse. The court based its decision on the U.S. Supreme Court's balancing approach enunciated in Mathews v. Eldridge [FN32] which weighed the private interests affected against the asserted governmental interest to protect the health, welfare, and safety of its citizens.


Child custody. Statutes in forty states and District of Columbia specifically authorize judges to award custody of any children to the mother. In State ex rel. Williams v. Marsh, [FN33] the Missouri Supreme Court upheld against due process challenge a provision of the Missouri Adult Abuse Act authorizing the ex parte award of temporary custody of minor children to the plaintiff. The court ruled that, although the liberty interest in custody of one's children was a significant private interest, the governmental interest in preventing domestic violence outweighed the private interests because of the high incidence and severity of domestic violence. The court also based its decision on the statute's fifteen day limitation on the effectiveness of an ex parte order, after which a hearing must take place at which the batterer may contest the custody provision of the temporary order.


Mutual orders. In the cases in which the respondent claims that the woman initiated the violent behavior or retaliated against him, judges sometimes issue mutual orders enjoining both partners from engaging in violence. However, in Fitzgerald v. Fitzgerald [FN34] the Minnesota Court of Appeals ruled that the issuance of a mutual restraining order in a domestic abuse action following a hearing at which only the wife requested an order was erroneous where there was no evidence that the wife abused the husband. In appealing the mutual order, the wife claimed that she was prejudiced by such an order because it suggested that she was found to have committed acts of domestic violence and because it gave the abuser the message that he was not going to be held accountable for his violent behavior. The petitioner also claimed that mutual restraining orders are less enforceable than orders against just the batterer because the police may be misled as to which party actually has a history of battering.


Temporary Ex Parte Orders


Statutes in forty eight states and the District of Columbia provide for ex parte orders valid typically for up to ten or fourteen days. Nearly every state permits judges to evict the batterer as part of an ex parte proceeding. However, every statute specifies certain conditions for granting an ex parte order that are intended to safeguard the respondent from either an unconstitutional deprivation of his due process rights or unfair hardship.


*52 1. Most statutes require a greater degree of danger to issue an ex parte order than to issue a permanent order. Specifically, the situation must be an emergency for which any delay might seriously endanger the petitioner's safety. For example, statutes in Florida, Minnesota, Mississippi, North Dakota, Pennsylvania, Tennessee, and Virginia all require 'immediate and present danger' [FN35] of domestic violence. Similar wording is found in other statutes  for example, 'substantial likelihood of immediate danger' (Massachusetts), [FN36] 'irreparable injury could result' (Washington), [FN37] and 'immediate and present physical danger' (Connecticut). [FN38]


2. Most state statutes specify that evicting a batterer from the residence does not change his interest in real property. For example, the Kansas statute provides that '[n]o order or agreement under this act shall in any manner affect title to any real property.' [FN39]


3. State statutes generally make provision for respondents who have been evicted in an ex parte proceeding to receive a hearing within a few days to contest the eviction. For example, the Colorado Domestic Abuse Act stipulates that '[w]ith respect to any continuing [ex parte] order, on two days' notice to the party who obtained the emergency protection order or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification. The motion to dissolve or modify . . . shall be set down for hearing at the earliest possible time and take precedence of all matters except older matters of the same character. . . .' [FN40]


Most states require the petitioner to have an interest in the property for a judge to award her exclusive possession of the residence. However, statutes in Alabama, Maine, Pennsylvania, South Carolina, Texas and West Virginia authorize granting exclusive possession to the petitioner where the respondent has sole interest in the residence but owes the petitioner a duty to support. [FN41] The Wisconsin statute provides for the court to 'order the respondent to avoid the premises for a reasonable time until the petitioner relocates . . .' [FN42] regardless of who has title to the property. California and New Jersey explicitly authorize the court to evict *53 the batterer even when he is the sole owner or renter of the residence. [FN43]


There are no United States Supreme Court cases that deal directly with ex parte civil protection orders. However, the following cases establish the constitutionality of ex parte orders in other circumstances, and appear to be controlling.


Fuentes v. Shevin. [FN44] The Court held that a court may forego notice in certain prejudgment replevin cases if the pending action is necessary to protect an important governmental or public interest, or if the situation has a special need for prompt action.


Mathews v. Eldridge. [FN45] In determining whether ex parte termination of disability benefits violated due process, the Court balanced three factors: the private interests affected versus the asserted governmental interest, the fairness and reliability of the existing procedures, and the probable value, if any, of additional procedural safeguards.


Mitchell v. W. T. Grant Co. [FN46] The Court ruled that providing relief prior to notice and deferring a hearing on deprivation of property may be permissible if (1) the petition includes statements of specific facts that justify the requested relief, (2) notice and opportunity for a full hearing are given as soon as possible, preferably within a few days after the order is issued, and (3) the temporary injunction is issued by a judge.


Two state courts have upheld the constitutionality of ex parte evictions in domestic violence cases. In Boyle v. Boyle, [FN47] a respondent attacked the constitutionality of Pennsylvania's Protection From Abuse Act. A lower court had granted an ex parte protection order that excluded the petitioner's husband from their jointly owned residence. In challenging the order, the respondent argued, among other assertions, that the act permitted a taking of property without due process of law by not providing him with timely notice and an opportunity to be heard before the eviction. In rejecting the respondent's claim, the Pennsylvania court observed that providing notice before the presentation of the petition would defeat the act's purpose of providing the victim with immediate protection. Although a notice requirement would better meet the goals of the Fourteenth Amendment, it would increase the risk of violence. The court held further that subordinating the respondent's due process rights to the victim's right to immediate protection was consistent with Fuentes v. Shevin, [FN48] in which, as noted above, the U.S. Supreme Court held that a court may forego *54 notice in certain prejudgment replevin cases if the situation has a special need for prompt action.


In State ex rel. Williams v. Marsh, [FN49] the Missouri Supreme Court upheld the constitutionality of the Missouri Adult Abuse Act against a due process challenge. A wife had sought a writ of mandamus to compel the trial court to issue a protection order to restrain her husband from entering their home. The trial court admitted that the wife had shown an unqualified right to the temporary relief available under the act. However, the trial court denied relief because it held the act was unenforceable on the grounds that it violated the United States and Missouri constitutions by excluding the respondent from the home without notice or hearing. The trial court reasoned that the facts of the case were inappropriate for presentation by an affidavit because courts could not easily verify whether the evidence was sufficient to issue a protection order. In reversing the trial court, the Missouri Supreme Court held that the ex part order provisions satisfied due process requirements because the provisions were a reasonable means to achieve the state's legitimate goal of preventing domestic violence, and because the provisions afforded adequate procedural safeguards before and after any deprivation of rights.


The Missouri Supreme Court analysis relied on the balance test articulated by the United States Supreme Court in Mathews v. Eldridge. [FN50] In applying Mathews to the case at hand, the Missouri Supreme Court recognized that the property interest in one's home and the liberty interest in custody of one's children were significant private interests. However, the court reasoned that the governmental interest in preventing domestic violence outweighed the private interests because of the high incidence and severity of domestic violence. Furthermore, states have broad powers to enact laws to protect the general health, welfare, and safety of its citizens, and courts traditionally defer to the states in adopting reasonable summary procedures when acting under their police power. Concerning the reliability of existing procedural safeguards, the court noted that the petitioner must establish grounds justifying the order as is required in any other proceeding to obtain a restraining order. This generally requires the victim to be present in court, where the judge can assess the victim's credibility. Furthermore, contrary to the trial court, the Missouri Supreme Court observed that evidence of domestic abuse is easy to detect. Finally, the act provided that an ex parte order is effective for only fifteen days, after which a hearing must take place at which the court can assess the husband's rights and, if appropriate, modify the order.


*55 Emergency Protection


Many, perhaps most, victims of domestic violence are threatened or attacked during evenings and weekends. Victims may secure relief at these times (as at other times of the day and week) by calling the police, who have legal authority in most states to arrest the batterer without a warrant if a misdemeanor has been committed in their presence or if they have reasonable cause to believe a felony has been committed. However, statutes in twenty three states provide for emergency civil protection orders after court hours, as a supplement to arrest or as an alternative when the abuse is not an arrestable offense (because it does not violate any criminal statute or there is insufficient evidence). [FN51] The Illinois statute is typical:

(1) Prerequisites. When the court is unavailable at the close of business, the petitioner may file a petition for a 14 day emergency order before any available circuit judge or associate judge who may grant relief under this Act. If the judge finds that there is an immediate and present danger of abuse to petitioner and that petitioner has satisfied the prerequisites set forth in subsection (a) of Section 217, that judge may issue a 14 day emergency order of protection. [FN52]


Police in California and Colorado are authorized to telephone a judge evenings and weekends for an emergency protection order. [FN53] The officer has the victim fill out an application and reads it to the judge. The order may include evicting the batterer from the residence.


Penalties for Violation


Violation of a protection order constitutes civil contempt in thirty  one states, criminal contempt in twenty states and the District of Columbia, and civil and criminal contempt in eleven states. Twenty nine states make the violation of a protection order a misdemeanor offense. For example, Ohio has made a first violation a misdemeanor of the fourth degree, a second violation a misdemeanor of the first degree, and a third and subsequent violation a felony of the fourth degree. [FN54]


Because police are not usually on the scene when the batterer violates the order, statutes in twenty four states permit officers to arrest without a warrant when they have probable cause to believe that the respondent has violated an order. Thirteen states go further by mandating, rather than simply permitting, warrantless arrest for violation of a protection order. For example, the Minnesota statute prescribes that '[a] peace officer *56 shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order granted pursuant to this section restraining the person or excluding the person from the residence, if the existence of the order can be verified by the officer.' [FN55] The Minnesota and New Hampshire statutes require arrest even if the victim invited the abuser back into the home. [FN56] Oregon's statute mandates arrest even if the victim objects to the perpetrator's being taken into custody. [FN57]


Case law in a number of states supports a strong arrest policy. In a widely publicized case, a Connecticut appeals court ruled in Thurman v. City of Torrington [FN58] that the nonperformance or malperformance of official duties by a municipality and its police officers denied a victim of domestic violence equal protection of the law. The court ruled that police may not treat instances of domestic violence less seriously than other types of assaults simply because of the relationship between the persons involved. A municipality and its law enforcement officers may no more refrain from interfering a domestic violence than in any other kind of violence. As a result, the court upheld a $3.2 million damage award to the victim and $300,000 in damages to her son.


Several courts have also ruled that law enforcement officers have a duty specifically to enforce civil protection orders. As long ago as 1966, an appeals court in Baker v. City of New York, [FN59] ruled that a person issued a protection order is owed a special duty of care by the police department. Nearing v. Weaver [FN60] is a more recent case based on the Oregon Abuse Prevention Act of 1977, which prescribes that a peace officer shall arrest and take into custody a person without a warrant when the officer has probable cause to believe that an order under the statute has been served and filed and that the person has violated the order. In the instant case, a victim reported seven incidents to the police in which the batterer violated a valid protection order. After each call, the officer refused to make an arrest because the violations did not occur in his presence. His refusal was not based on a conclusion that there was no probable cause that the violations had occurred. When the victim brought suit for damages against the department, the Oregon Supreme Court ruled that police officers could be liable in a civil suit for damages resulting from failure to arrest in a domestic violence situation. The court ruled that a police officer had a duty to protect the plaintiff from her violent husband because the existence of a restraining order created a special relationship between *57 the injured plaintiff and the police officer. As such, officers who knowingly fail to enforce such orders are potentially liable for the resulting psychic and physical harm to the intended beneficiaries of the orders.


Kubitscheck v. Winnett [FN61] is an Oregon case involving police who had declined to arrest when first called to the scene of a domestic violence incidence but later arrested the violator after a subsequent violation the same night. The case was settled for an undisclosed but substantial sum of money. In Soto v. County of Sacramento [FN62] the California Superior Court ruled in a mandamus action that the sheriff had a mandatory duty to enforce a restraining order held by a battered woman, and that her husband's claims of living in the home after she had obtained the order did not affect the validity of the order.


Law enforcement agencies in Texas and New York agreed to consent decrees after class action suits were brought against them for alleged failure to act in cases of domestic violence. In Lewis v. Dallas, [FN63] a battered woman in Dallas, alleging that the police department denied her due process and equal protection, sought injunctive relief and $500,000 in damages. The 1987 settlement by consent decree provided for nominal damages for the named plaintiffs and mandatory police arrest if there is probable cause to believe (among other offenses) that a court order has been violated. In 1978, the New York City Police Department signed a consent decree after twelve married battered women filed a class action complaint in the New York County Supreme Court. [FN64] The police department obligated itself to arrest when it had reasonable cause to believe that a husband violated an order of protection. The department agreed to make supervisors at police precincts responsible for making sure that patrol officers comply with all requirements of the agreement.


Finally, the Pennsylvania Supreme Court has held that prosecution of a man for criminal trespass, assault, and rape of his wife is not barred by a concurrent finding of criminal contempt for violating a civil protection order obtained by the woman. [FN65] Even though the contempt finding was based on the same conduct giving rise to the prosecution indirect criminal contempt and other criminal charges were held to be separate offenses that serve distinct purposes and require different elements of proof. As a result, the court ruled that neither the principle of double jeopardy or compulsory joinder barred the criminal prosecution. In the court's opinion, *58 to hold otherwise would either seriously restrict the state's interest in punishing criminal acts or impair the effectiveness of the civil protection order statute.


CommonStatutory Weaknesses


Many statutes contain provisions that reduce the court's ability to protect victims as completely as possible. Brief mention of these statutory deficiencies follows.


Filing fees. Twenty three states have filing fees for orders of protection. While all but one of these states provide for waiving the fee, courts in these states usually include the income of the petitioner's spouse in determining whether the fee can be waived.


Training for clerks. Many statutes require clerks to assist petitioners seeking an order. Even in jurisdictions without this requirement, clerks typically play a critical screening role in encouraging or dissuading women from petitioning. However, no statute provides procedures or funds for training or supervising clerks in this sensitive function.


Emergency orders. Most domestic violence occurs during the evening or on weekends, when most courts are not in session. Yet only twenty three states provide for issuing emergency after hours orders.


Service. Most statutes require personal service of protection orders before they become enforceable. However, many batterers are difficult to locate. As a result, victims are unprotected during the days and even weeks until service has been made. Public posting or certified mail may be the answer.


Monitoring. Tracking violations is a key to effective enforcement of any civil protection order. Yet only a few state statutes require courts to find out whether respondents are complying with the terms of the order.


Enforcement. Statutes that make a violation merely contempt, whether civil or criminal, have the disadvantage of failing to provide immediate protection to the victim. Unless otherwise specified in the legislation, law enforcement officers have no arrest powers for civil contempt and usually no authority to arrest for criminal contempt, even if they have witnessed the violation, unless an arrest warrant has been issued following a hearing. As a result, the victim's only remedy is to petition the court to summon the violator to a civil contempt hearing that may not be held until several days after the assault has occurred. Yet most victims mistakenly assume, with potentially dangerous consequences, that a violation will result in the immediate removal of the batterer from the home by the police.


One way to avoid these difficulties is to make the violation of a protection order a misdemeanor offense. By making a violation a crime in itself, law enforcement officers have clear authority under their arrest powers to detain anyone who commits a violation they have witnessed, *59 in particular, the mere presence of the batterer in the home. However, only twenty three states have made violations a criminal offense.


Because police are not usually on the scene when the batterer violates the order, statutes in twenty four states permit officers to arrest without a warrant when they have probable cause to believe that the respondent has violated an order. Thirteen states go further by mandating, rather than simply permitting, warrantless arrest for violation of a protection order. However, a majority of states (twenty five) still do not permit warrantless arrest for a protection order violation.




Despite the weaknesses in some statutes, current legislation in many states provides the court with ample opportunity to use civil protection orders to help protect many women from further domestic violence. Even where statutes are weak, there are steps that the court can take that can help improve the use and enforcement of protection orders. For example, judges can establish a court policy on enforcement of orders that includes admonishing defendants, establishing procedures for modifying orders, promoting the arrest of violators, and handling violators sternly. Judges can also see to it that court clerks are trained in the proper handling of petitioners.


Judges can act outside the court, as well. For example, judges can make their own arrangements for providing emergency orders. The Pennsylvania statute mandates a system for issuing emergency orders in the evening, but judges in Philadelphia took this requirement one step further by providing a procedure for weekend emergency relief. In conjunction with other officials, judges in several Minnesota cities have implemented effective procedures for monitoring compliance with civil protection orders. Finally, judges can initiate action to improve their state legislation, such as to broaden the categories of eligible petitioners, eliminate the filing fee, make violations a misdemeanor offense, and provide statutorily for emergency orders, training for clerks, and alternatives to personal service.









1. Features of the law are recorded in the matrix only if they are explicitly mentioned, that is, required, authorized, or prohibited, in the statute.


2. 'Household members related by blood or marriage' is often stated in the law as 'persons related by consanguinity or affinity,' or in some states as 'relatives.' Consanguinity refers to blood relatives and affinity includes spouses and in laws. Many of the states listed do not require that persons in this category be living together.


3. Explicitly provided in the protection order statute.


4. Explicitly provided in the protection order statute. However, some states have fee waiver provisions elsewhere in the state codes that apply to protection order proceedings but are not specifically referred to in the protection order statute.


5. Explicitly provided in the protection order statute. Local jurisdictions often provide assistance with forms even when not required by statute to do so.


6. This section refers to relief explicitly authorized in the statutes, even though the court may be authorized by statute generally to provide 'any other relief' it deems warranted.


7. Procedures by which the order is signed by a responsible court official and entered into the court's official record keeping system.


a. In Mississippi, if parties are spouses, a petition for relief must state that no suit for divorce is pending.


b. In Mississippi, if the petitioner is a former spouse of the respondent, a copy of the decree of divorce must be attached to the petition.


c. Persons qualify in Iowa as long as they are adult members of the same household.


d. Family members are adults related by blood or marriage, according to Oregon statute.


e. Persons qualify under Iowa statute as long as they are adult members of the same household.


f. In Oregon, household members related by blood or marriage refers to adults only.


g. In Missouri, coverage is for unrelated household members only of the opposite sex.


h. In Rhode Island, unrelated household members are eligible for a restraining order if they have lived together within the past twelve months.


i. In Mississippi, former household members are covered if they are related.


j. The Maryland statute states that a victim need not be living in the home to apply for a protection order; however, the victim must have been living with the abuser at the time the abuse occurred.


*69 k. The Domestic Violence Act of New Jersey makes no mention of self  defense. However, domestic violence in the state is defined with reference to sections of the penal code for such offenses as assault, kidnapping, murder, rape, etc. Thus, since those criminal statutes, which are incorporated into the Domestic Violence Act by reference, permit self defense as a defense, the Domestic Violence Act may permit self defense. There is no case law in this area, however.


l. In Texas, a prosecuting attorney may petition for a civil protection order on behalf of a victim.


m. In Nevada, all costs and fees are deferred until after a full hearing is held; costs and fees may then be assessed against either party, apportioned between the parties, or waived.


n. Although the Maryland statute permits ordering the respondent to stay away from the residence, there is no provision to order the abuser to stay away from the victim's place of employment.


o. In Indiana, this relief is available only if the parties are married and a dissolution or legal separation is not pending.


p. In Oregon, the court must include visitation rights in a protection order unless they are not in the best interests of the child.


q. In Pennsylvania, visitation is limited to supervised visitation only.


r. In Oregon, costs and attorney's fees are ordered only after a contested hearing.


s. In Indiana, there is no maximum duration for the protection order itself. However, the extra relief which can be ordered if the parties are married (see footnote o above) is subject to a ninety day maximum.


t. In Kansas, child support and support of spouse expire in six months, although the plaintiff may request a six month extension.


u. New Jersey provides that a temporary restraining order shall remain in effect until further action by the court.


v. In Oklahoma, final orders do not have a fixed duration but are continuous until modified, until rescinded upon motion by either party, or if the court approves any consent agreement entered into by the plaintiff and defendant.


w. Orders are extendable in Alaska, except for provisions related to child custody and support.


x. In Tennessee, the ex parte order is effective until a hearing is held. There is no statutory time limitation.


y. In California, the order lasts until the close of business on the next court day.


z. In Pennsylvania, evening/weekend relief lasts until the beginning of the next business day of court.


aa. Although not discussed in the Indiana statute, a violation falls under general contempt principles that are enforceable by civil contempt.


bb. In Maryland, violation of the order outside the residence is defined *70 as a misdemeanor and civil contempt. All other violations are civil contempt only.


cc. Penalties in Ohio are as follows: first conviction  fourth degree misdemeanor; second conviction  first degree misdemeanor; third or subsequent conviction  felony of the fourth degree.


dd. Penalties for violation: in California, if a violation results in an injury, a minimum jail sentence of forty eight hours is required.


ee. In Ohio, a first conviction carries a maximum sentence of thirty days; second conviction, six months; third or subsequent conviction, five years.


ff. Maximum fines in Ohio are as follows: first conviction  $250; second conviction  $1,000; third conviction  $2,500.


gg. Indiana provides that police may arrest without a warrant when probable cause to believe that battery with bodily injury has occurred and that arrest is necessary to prevent reoccurrence of a battery.


hh. In Iowa, arrest is discretionary if no injury results; otherwise it is mandatory.


ii. There is no specific warrantless arrest provision in the Maryland Family Law Article. However, a separate statute, article 27, 594B, provides for warrantless arrest when: (a) the violence involves spouses; (b) there is evidence of physical injury; (c) the incident is reported to the police within two hours; and (d) unless there is an arrest, there will be further harm to the victim, the assailant will get away, or evidence will be destroyed.


jj. Arrest without a warrant on a charge of a misdemeanor or violation of a valid protection order is lawful in New Hampshire whenever the officer has probable cause to believe that the person to be arrested has assaulted a family or household member within the previous six hours.


kk. In Iowa, arrest is mandatory if injury results; otherwise it is discretionary.


ll. Delaware does not have a specific protection order statute. However, relief may be sought through family court by filing a civil imperiling the family relations petition. (See 10 DEL. C. 921(6) and 950.)


mm. Kansas prohibits the use of protection order procedures more than twice in a twelve month period except in the case of abuse of a minor.


nn. In Maine, voluntary intoxication is not a defense to a charge of abuse.


oo. Orders for protection issued by a court in another state must be accepted as evidence of fact by a court in Nevada, upon which a court in Nevada must issue an order of protection as warranted.


pp. New Hampshire statutes state that temporary reconciliations do not revoke an order.


qq. The Pennsylvania statute states that temporary reconciliations do not revoke an order.






ALA. CODE 30 5 1 11 (Supp. 1988) (Protection from Abuse Act)




ALASKA STAT. 25.35.010 .06 (1983 & Supp. 1986)




ARIZ. REV. STAT. ANN. 13 3602 (Supp. 1988 1989)




No provision




CAL. CIVIL PROCEDURE CODE 540 553, 527.6 (West Supp. 1989)




COLO. REV. STAT. 14 4 101 105 (1987)




CONN. GEN. STAT. ANN. 46b 15, 46b 38a f (West 1986 & Supp. 1988)




DEL. CODE ANN. 921, 950 (1975 & Supp. 1988)


District of Columbia


D.C. CODE ANN. 16 1001 1006 (1981 & Supp. 1988)




FLA. STAT. ANN. 741.30 (West 1986 & Supp. 1988)




GA. CODE ANN. 19 13 15; 19 13 20 22 (1982 & Supp. 1988) (Procedures for Prevention of Family Violence)




HAW. REV. STAT. 586 1 10.5 (Supp. 1987) (Domestic Abuse Protective Orders)




IDAHO CODE 39 6301 6317 (Supp. 1988) (Domestic Violence Crime Prevention)




ILL. ANN. STAT. 2311 1 3; 1212 1 27; 2313 1 5 (Smith Hurd Supp. 1988) (Domestic Violence Act of 1986)




IND. CODE ANN. 34 4 5.1 1 6 (Burns 1986)




IOWA CODE ANN. 236.1 .18 (West 1985 & Supp. 1988) (Domestic Abuse Act)




KAN. STAT. ANN. 60 3101 3111 (1983 & Supp. 1987) (Protection from Abuse Act)




KY. REV. STAT. ANN. 403.715 .785 (Michie/Bobbs Merrill 1984 & Supp. 1988)


*72 Louisiana


LA. REV. STAT. ANN. 46:2131 2142 (West 1982 & Supp. 1988) (Domestic Abuse Assistance)




ME. REV. STAT. ANN. tit. 19, 761 770 (1981 & Supp. 1988)




MD. FAM. LAW CODE ANN. 4 501 510 (Supp. 1988);MD. ANN. CODE art. 27 594B (Supp. 1987)




MASS. GEN. LAWS ANN. ch. 209A, 1 9 (West 1987 & Supp. 1988)




MICH. COMP. LAWS ANN. 552.14 (West 1988); 600.2950 (West 1986)




MINN. STAT. ANN. 518B.01 (West Supp. 1989) (Domestic Abuse Act)




MISS. CODE ANN. 93 21 1 29 (Supp. 1988) (Protection from Domestic Abuse Law)




MO. ANN. STAT. 455.010 .230 (Vernon Supp. 1989)




MONT. CODE ANN. 40 4 121 125 (1987)




NEB. REV. STAT. 42 901 927 (1988) (Protection from Domestic Abuse Act)




NEV. REV. STAT. ANN. 33.017 .100 (Michie 1986)


New Hampshire


N.H. REV. STAT. ANN. 173 B. 1 11a (Supp. 1988) (Protection of Persons from Domestic Violence)


New Jersey


N.J. STAT. ANN. 2C:25 1 16 (West 1982 & Supp. 1988) (Prevention of Domestic Abuse)


New Mexico


N.M. STAT. ANN. 31 1 7 (1984); 40 13 1 7 (Supp. 1988)


New York


N.Y.JUD. LAW 153 C 217, 812 (McKinney 1983 & Supp. 1989) (Family Court Act)


North Carolina


N.C. GEN. STAT. 50b 1 8(1987) (Domestic Violence)


North Dakota


N.D. CENT. CODE 14 07.1 01 09 (Supp. 1987)




OHIO REV. CODE ANN. 3113.31 .33 (Anderson Supp. 1987)


*73 Oklahoma


OKLA. STAT. ANN. tit. 22, 60 60.7 (West Supp. 1989) (Protection from Domestic Abuse Act)




OR. REV. STAT. 107.700 .730 (1987) (Abuse Prevention Act)




35 PA. CONS. STAT. ANN. 10181 10190 (Purdon Supp. 1988) (Protection from Abuse Act)


Rhode Island


R.I. GEN. LAWS 15 15 1 7 (1988) (Domestic Abuse Prevention)


South Carolina


S.C. CODE ANN. 20 4 10 130 (Law. Co op. 1985) (Protection from Domestic Abuse Act)


South Dakota


S.D. CODIFIED LAWS ANN. 25 10 1 13 (1984 & Supp. 1988) (Protection from Domestic Abuse)




TENN. CODE ANN. 36 3 601 614; 40 7 103 (1984 & Supp. 1988)




TEX. FAM. CODE ANN. 71.01 .19 (Vernon 1986 & Supp. 1989) (Protective Orders); TEX. PENAL CODE 25.08 (Vernon Supp. 1989)




UTAH CODE ANN. 30 6 1 10 (1984 & Supp. 1988) (Spouse Abuse Act); UTAH CODE CRM. PROC. 77 3 1 12 (1982)




VT. STAT. ANN. tit. 15, 1101 1109 (Supp. 1988) (Abuse Prevention)




Va.Code.Ann. 16.1 253.1; 16.1 279.1 (1988).




WASH. REV. CODE ANN. 26.50.010 .902 (1986 & Supp. 1989) (Domestic Violence Prevention)


West Virginia


W. VA. CODE 48 2a 1 10(Supp.1988) (Prevention of Domestic Violence)




WIS. STAT. ANN. 813.12 (West Supp. 1988)




WYO. STAT. 35 21 101 107 (1988) (Family Violence Protection Act)


[FNa] Peter Finn is a senior associate at ABT and Associates, Inc. in Cambridge, Massachusetts.


Author's Note: Cynthia Carlson and Taylor McNeil helped in conducting the statutory review. The format, but not the content, of the statutory matrix has been adapted from Lisa G. Lerman and Franci Livingston, 'State Legislation on Domestic Violence,' Response to Violence in the Family and Sexual Assault, Volume 6, Number 5 (Center for Women Policy Studies, Sept./Oct. 1983). Lisa Lerman also made several useful suggestions for revising the matrix format, and she suggested and helped arrange the state by state verification of the matrix content. Carol Petrie, Gail Goolkasian, and Marianne Takas provided helpful comments on the legislative discussion as part of a review of the full study report. Funding for the full study on which this article is based was provided by the National Institute of Justice, U.S. Department of Justice, under contract OJP 86 C 002. Opinions stated in the article are those of the author and do not necessarily represent the position or policies of the U.S. Department of Justice.


[FN1]. Because the vast majority of domestic abuse involves men assaulting women, this article sometimes refers to the victim as 'she' or 'the woman.' Certainly, there are instances in which women may slap the man, sometimes precipitating serious retaliatory violence. However, in the few cases in which women use serious force, they have usually been repeatedly assaulted in the past by their partners or they have acted in self defense. See also E. Pence, The Justice System's Response to Domestic Assault Cases: A Guide for Policy Development (Minnesota Program Development) at 41 (1985). Of course, in the instances in which the batterer is a woman, the man should be entitled to the same relief in a civil protection order as a female victim would receive.




[FN3]. UTAH CODE ANN. 30 6 2 (1984).


[FN4]. ALASKA STAT. 25.35.060 (1983).


[FN5]. N.H. REV. STAT. ANN. sec 173 B:1(II)(a) (Supp. 1988).


[FN6]. 35 PA. CONS. STAT. ANN. 10182 (Purdon Supp. 1988); KAN. STAT. ANN. 60 3102 (Supp. 1987).


[FN7]. Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 74 n.52 (1984).


[FN8]. MO. ANN. STAT. 455.060(4) (Vernon Supp. 1989).


[FN9]. UTAH CODE ANN. 30 6 7 (1984).


[FN10]. TEX. FAM. CODE ANN. 71.06 (Vernon Supp. 1989); W. VA. CODE 42 2A 1 (Supp. 1988). But cf. In re McGraw, 359 S.E.2d 853 (W. Va. 1987) (nothing prohibits abused spouse from charging with criminal conduct).


[FN11]. WYO. STAT. 35 21 102(a)(iii) (Supp. 1988).


[FN12]. ME. REV. STAT. ANN. tit. 19, 762(1)(B) (1984 & Supp. 1988).


[FN13]. 300 N.W.2d 231 (N.D. 1980).


[FN14]. OR. REV. STAT. 107.710(1) (1987).


[FN15]. CAL. CIV. CODE 546.5 (West Supp. 1989): MASS. GEN. LAWS ANN. ch. 209A, 3 (West 1987): N.H. REV. STAT. ANN. 193 B:3(II) (Supp. 1988); R.I. GEN. LAWS 15 15 2 (1988); VT. STAT. ANN. tit. 15, 1103(c) (Supp. 1988).


[FN16]. WASH. REV. CODE ANN. 26.50.040(2) (1986).


[FN17]. FLA. STAT. ANN. 741.30(2)(f) (Supp. 1988).


[FN18]. MASS. GEN. LAWS ANN. ch. 209A, 9 (West 1987).


[FN19]. MD. FAM. LAW CODE ANN. 4 506(d)(2) (Supp. 1988).


[FN20]. WIS. STAT. ANN. 813.12(c)(3)(2) (West Supp. 1988).


[FN21]. FLA. STAT. ANN. 741.30(7)(a)(6) (West Supp. 1988).


[FN22]. MASS. GEN. LAWS ANN. ch. 209A, 4 (West 1987); VT. STAT. ANN. tit. 15, 1104(a) (Supp. 1988).


[FN23]. CAL. CIV. CODE 546(a) & (b) (West Supp. 1989); MISS. CODE ANN. 93 21 13 (Supp. 1988); MO. ANN. STAT. 455.045 (Vernon Supp. 1989); 35 PA. CONS. STAT. ANN. 10188(a) (Purdon Supp. 1988); UTAH CODE ANN. 30 6 6(2)(b) (1984).


[FN24]. CAL. CIV. CODE 546(a) & (b) (West Supp. 1989);VA. CODE ANN. 16.1 253.1 (1988).


[FN25]. MO. ANN. STAT. 455.045 (Vernon Supp. 1989).


[FN26]. CONN. GEN. STAT. ANN. 46b 15(b) (West 1986 & Supp. 1988); MD. FAM. LAW CODE ANN. 4 505(a)(2)(v) (Supp. 1988); MASS. GEN. LAWS ANN. ch. 209A, 4 (West 1987); N.D. CENT. CODE 14 07.1.03(1) (Supp. 1987); WASH. REV. CODE ANN. 26.50.070(1) (1986).


[FN27]. TEX. FAM. CODE ANN. 71.11(c) (Vernon Supp. 1989).


[FN28]. HAW. REV. STAT. 586 4(b) (Supp. 1987).


[FN29]. MINN. STAT. ANN. 518B.01, subd. 6(a)(3) (West Supp. 1989).


[FN30]. VT. STAT. ANN. titl. 15, 1103(d) (Supp. 1988).


[FN31]. 686 P.2d 990 (Okla. Ct. App. 1984).


[FN32]. 424 U.S. 319 (1976).


[FN33]. 626 S.W.2d 223 (Mo. 1982).


[FN34]. 406 N.W.2d 52 (Minn. Ct. App. 1987).


[FN35]. FLA. STAT. ANN. 741.30(6)(a) (West Supp. 1988); MINN. STAT. ANN. 518B.01, subd. 7(a) (West Supp. 1989); MISS. CODE ANN. 93 21  13(1) (Supp. 1988); N.D. CENT. CODE 14 07.1 0.3(1) (Supp. 1987); 35 PA. CONS. STAT. ANN. 10188(a) (Purdon Supp. 1988); TENN. CODE ANN. 36 3 605 (Supp. 1988); VA. CODE ANN. 16.1 253.1 (1988).


[FN36]. MASS. GEN. LAWS ANN. ch. 209A, 4 (West 1987).


[FN37]. WASH. REV. CODE ANN. 26.50.070(1) (1986).


[FN38]. CONN. GEN. STAT. ANN. 46b 15(b) (West 1986 & Supp. 1988).


[FN39]. KAN. STAT. ANN. 60 3107(F) (1983).


[FN40]. COLO. REV. STAT. 14 4 103(4) (1987).


[FN41]. ALA. CODE 30 5 7(a)(3) (Supp. 1988); ME. REV. STAT.ANN. tit. 19, 766(1)(c)(1) (Supp. 1988); 35 PA. CONS. STAT. ANN 10186(a)(3) (Purdon Supp. 1988); S.C. CODE ANN. 20 4 60(c)(3) (Law. Co op. 1985); TEX. FAM. CODE ANN. 71.11(a)(2)(C) (Vernon 1986); W. VA. CODE 48 2A 6(1)(c) (Supp. 1988).


[FN42]. WIS. STAT. ANN. 813.12(c)(3)(2)(a) (West Supp. 1988).


[FN43]. CAL. CIV. CODE 4359(a)(3) (West Supp. 1989); N.J. STAT. ANN. 2C:25 13(b)(3) (West Supp. 1988).


[FN44]. 407 U.S. 67 (1972).


[FN45]. 424 U.S. 319 (1976).


[FN46]. 416 U.S. 600 (1974).


[FN47]. Boyle v. Boyle, 12 Pa. D. & C.3d 767 (1979).


[FN48]. 407 U.S. 67 (1972).


[FN49]. 626 S.W.2d 223 (Mo. 1982).


[FN50]. 424 U.S. 319 (1976).


[FN51]. In Ohio and possibly other states, criminal protection orders are available on evenings and weekends, but only if a charge has been filed and is pending.


[FN52]. ILL. ANN. STAT. ch. 40, para. 2312 17, 217(c)(1) (Smith Hurd Supp. 1988).


[FN53]. CAL. CIV. CODE 546(b) (West Supp. 1989); COLO. REV. STAT. 14 4 103(1) (1987).


[FN54]. OHIO REV. CODE ANN. 2919.25(D) (Supp. 1987).


[FN55]. MINN. STAT. ANN. 518B.01, subd. 14(b) (West Supp. 1989).


[FN56]. Id. 518B.01, subd. 14(e) (West Supp. 1989);N.H. REV. STAT. ANN. 173 B:4(V) (Supp. 1988).


[FN57]. OR. REV. STAT. 133.310(3)(1987).


[FN58]. Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984).


[FN59]. 25 A.D.2d 770, 269 N.Y.S.2d 515 (1966).


[FN60]. 295 Or. 702, 670 P.2d 137 (1983).


[FN61]. No. 8587, slip op. at ___ (Or. Feb. 20, 1980).


[FN62]. No. 332313, slip op. at ___ (Cal. Sup. Ct. 1986).


[FN63]. No. CA3 85 0606 T, slip op. at ___ (N.D. Tex. 1985).


[FN64]. Bruno v. Codd, 90 Misc. 2d 1047, 396 N.Y.S.2d 974 (Sup. Ct. 1977), rev'd on other grounds, 64 A.D.2d 582, 407 N.Y.S.2d 165 (1978), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979), appeal denied, 48 N.Y.2d 656, 424 N.Y.S.2d 1032, 396 N.E.2d 488 (N.Y. 1979).


[FN65]. Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, Allen v. Pennsylvania, 474 U.S. 842 (1985).