Common misconceptions about nonfamily temporary restraining orders

Recent data shows that the number of nonfamily temporary restraining orders filed in district courts in Maui County has been trending up, from 333 in 2014 to

394 in 2021. With the increase in filings, courts are seeing an increase in mistakes made preventing people from obtaining the protection these orders are designed to provide. If you are thinking of filing a nonfamily TRO, you should be aware of common misconceptions that might affect your case.

● When to file a TRO: A TRO is a resource, available through the court, to protect individuals when they have been “harassed.” Under Hawaii law, any person subjected to “harassment” (including physical or sexual assault, verbal threats of violence or a seriously alarming course of conduct) can seek protection by obtaining a TRO against their harasser. If granted, this protective order prohibits the harasser from contacting the person (no calls, emails, texts, etc.), visiting their home or workplace, or future harassment.

● Assistance you can expect from the court: While TROs are intended to ensure public safety, the courts cannot take sides. Courts are required to provide a fair and impartial process to review the evidence and protect the legal rights of both the person filing the TRO (the petitioner) and the person they are filing a TRO against (the respondent). This is due process under the law, which is part of the vital role courts play in our democratic society.

● What harassment means: In daily conversation, people use the word “harassment” loosely, but judges must be very specific about what constitutes “harassment.” Under Hawaii law, harassment is defined as a single act of assault or a threat of physical harm, or a seriously alarming course of conduct directed at an individual that would cause a reasonable person to suffer emotional distress.

● Burden of proof: To prevail at a TRO hearing, the petitioner must prove the claim of harassment by clear and convincing evidence, which is a significant burden of proof. Although the standard is not as demanding as “proof beyond a reasonable doubt,” it’s much higher than the “preponderance of evidence” standard applied in most civil (noncriminal) cases.

● Appropriate evidence: Secondhand statements, or notarized letters from purported eyewitnesses are generally considered “hearsay.” Under the Hawaii rules of evidence, “hearsay” is not usually admissible because it is considered unreliable and does not allow for cross-examination of the person who made the statement.

● When a TRO becomes effective: It’s very important to understand that even if a judge grants a TRO petition, it becomes effective only after it is served on the respondent. Family Court TROs are served by police; nonfamily TROs are not. A petitioner cannot personally serve a TRO, but can hire a process server or sheriff to serve it. Otherwise, it can be served by a person over 18 who is not a party to the case or related to the petitioner.

● Attorneys’ fees: TROs are civil matters, so there are no court-appointed attorneys. Litigants may represent themselves or hire an attorney. After a TRO hearing, if the “prevailing party” hired an attorney, they may seek a judgment for attorney fees against the nonprevailing party. Attorneys’ fees in TROs typically range from $2,000 to $4,000 or more, depending on the complexity of the case.

● Adequate preparation: A TRO can help only if you understand how they work and what you must do to obtain one. Before filing a TRO, talk with a volunteer attorney at the Hoapili Hale courthouse SelfHelp Center. There’s no charge, and they can help you prepare for court. Call (808) 909-2841 from 10 a.m. to 1 p.m. Mondays and Thursdays.

Also, familiarize yourself with Hawai‘i Revised Statutes Chapter 604-10.5: “Power to enjoin and temporarily restrain harassment”; Chapter 626 Hawaii Rules of Evidence (particularly Rules 801-806 on Hearsay); and Hawaii’s District Court Rules of Civil Procedure Rule 4(c): “Process, by whom served.”

TRO instructions and forms are on the District Court Forms for Maui (Second Judicial Circuit) web page at: www.courts .state.hi.us/.

■ The Honorable Christopher M. Dunn is a District Court Judge in Hawai’i’s Second Judicial Circuit. This column was written as part of Law Day, an annual event originally conceived in 1957 when American Bar Association President Charles Rhynes envisioned a national day to mark our commitment to the rule of law. The following year, President Dwight D. Eisenhower established the first Law Day. In 1961 Congress issued a joint resolution designating May 1 as the official date.