Typically, general prohibitory language within a Temporary Restraining Order (“TRO”) states that a Defendant is “prohibited from having any oral, written, personal, electronic, or other form of contact or communication with Plaintiff.” This language, upon serving the Defendant with the TRO, prevents prospective communications with Plaintiff. But, what happens when the communicative processes were set in motion prior to the entry of a TRO? This precise, albeit niche, issue was addressed by Judge Fikry in a contempt proceeding which occurred in Burlington County on July 15, 2020. The opinion was approved for publication on February 1, 2022.

In State of New Jersey v. J.T., Judge Fikry was tasked with deciding whether the Defendant could be found to have “purposely or knowingly” violating the January 31, 2020 TRO pursuant to the Contempt statute, N.J.S.A. 2C:29-9b(2).

Factually, Defendant was served with the TRO the same day it was issued. However, prior to the entry of the TRO, Defendant ordered a floral arrangement and card for Plaintiff on January 24, 2020. The floral arrangement and card were scheduled to be delivered to Plaintiff on February 13, 2020 for Valentine’s Day. The delivery was made on February 13, 2020 and Plaintiff notified local law enforcement who brought the charge of contempt against Defendant.

During the contempt proceeding, Defendant testified that when he was notified of the delivery, he sought confirmation that the order was placed prior to the entry of the TRO. Defendant did not, however, inquire as to whether the order could have been stopped and made no effort to cancel the order following the entry of the TRO.

In contempt proceedings, it is the State’s burden to establish, beyond a reasonable doubt, each of the elements of N.J.S.A. 2C:29-9b(2). In doing so, the State must establish that Defendant purposely or knowingly violated the TRO. Pursuant to N.J.S.A. 2C:2-2b, purposely is defined as “his conscious object to engage in conduct of that nature or cause such a result.” Likewise, the statute defines knowingly as “aware that it is practically certain that his conduct will cause such a result.”

Judge Fikry held that the State cannot meet its burden of proof, as Defendant could not have purposely or knowingly violated the TRO on January 24, 2020 as it was not entered for another week. In other words, the flowers and cards could not have been sent with the conscious object or with awareness that it would be violative of a non-existent TRO.  In legal terms, Defendant did not possess the requisite mens rea, or mental state, required to be established by the State.

As a secondary issue to the matter, Judge Fikry addressed the State’s argument that Defendant should have been imputed with the responsibility of cancelling the order upon receiving the TRO. However, as the Court highlighted, such requirements of Defendant were not contained within the TRO. Since Defendant was not put on notice within the TRO that he would be obligated to recall any communications to Plaintiff which were initiated prior to the service of the TRO, but not yet delivered, requiring this of Defendant after the fact would have been improper for a contempt conviction.

In short, actions that were set in motion prior to the entry and receipt by Defendant of a TRO are insufficient to establish a conviction of contempt. In coming to this conclusion, the Court also highlighted that obligations not set forth in the Prevention of Domestic Violence Act (“Act”) or the restraining order at issue cannot be imposed upon Defendants in light of basic principles of equity, lenity and due process.

To summarize in one sentence: Defendants should receive clear notice from the Act and/or the Restraining Order as to which conduct is prohibited and what, if any, his or her affirmative obligations are. Absent that required notice, proving that a Defendant’s conduct was made purposefully or knowingly will be difficult to establish.