State ex rel. Williams v. Marsh
626 S.W.2d 223 (1982)
Denise and Edward were having
marital problems. She moved out and took their child with her.
Denise applied for a
restraining order, testifying that Edward had beaten her and sent her to
The Trial Court rejected the request,
claiming sua sponte that the
Statute for restraining orders (Adult Abuse Act §§455.010-.085)
The Trial Court found that
the Adult Abuse Act was a
violation against the Due Process Clause of the 14th
Amendment because it allowed for the
courts to exclude someone from their home and contact with their children
without prior notice or hearing.
The Adult Abuse Act permitted ex parte orders of
protection when there was an immediate and present danger to the
petitioner (aka apprehension of immediate physical injury). These were
granted solely on the testimony of the petitioner and without any notice
to the defendant.
In this case, it was
impossible to notify Edward because no one could find him.
These are temporary orders
that only last for 15 days.
The Court found that the Adult
Abuse Act was also unconstitutional
because it allowed for a warrantless arrest of a person inside their own
Oddly, the Trial Court also
found that the Adult Abuse Act
was incorrectly titled because it also applied to abuse of children.
Therefore it was unconstitutional.
The Missouri Supreme Court
The Missouri Supreme Court
agreed that due process requires
notice and an opportunity to be heard prior to deprivation of a protected
However, the rule is not
applicable to temporary takings, such as in this case.
The Court found that there
is a three part balancing test to determine what due process is required:
The private interest
affected (in this case a property interest in one's home and custody of
The governmental interest
(in this case prevention of domestic violence and the protection of
The fairness and
reliability of the existing pre-termination procedures and the probable
value of any additional safeguards.
The Court found that, when
the balancing test was applied, the Adult Abuse Act meets constitutional standards for due
The Court noted that it is
only a temporary order, so the defendant's rights are only being
affected for a short time.
The Court found that if the
defendant is in his home in violation of the restraining order, there is
probable cause that a crime is being committed, allowing police to enter
the property without a warrant.
In a dissent, it was argued
that the Adult Abuse Act was not
constitutional because it allowed judges to find someone guilty of a crime
without due process, and other the
word of the spouse.
How do you define
"apprehension of physical injury?" It is too open ended and
subject to the judge's discretion.
This was the first case that
found a domestic violence Statute to be constitutional.