What’s Law Got To Do With It? Confronting Judicial Nullification Of Domestic Violence Remedies

INTRODUCTIONImagine a state where the legislature created and passed a comprehensive system of protection laws for survivors of domestic violence. Now imagine that a county within that state implemented a specialized courthouse where the judges are trained to focus solely on civil orders of protection and misdemeanor domestic violence-related crimes. Finally, imagine that the courthouse has a play area and child care for children, to enable survivors who do not have available child care; a special elevator and waiting area just for the petitioners, so they can safely wait for their cases away from their abusers; and domestic violence advocates, pro bono attorneys, a lawyer-staffed clinic, and prosecutors with the state attorney's office all operating to assist survivors seeking orders of protection or criminal prosecution of domestic violence-related crimes. The confluence of these circumstances creates the hope, indeed the reasonable expectation, that survivors of domestic violence will receive the justice they deserve. While a system this complete and equitable may seem politically impossible, it exists in Illinois.In 1982, the Illinois legislature passed the Illinois Domestic Violence Act (the Act) and most recently passed an updated version in 2012.1 The courthouse described opened in Chicago, Illinois on October 11, 2005.2 This Article examines how the specialized domestic violence courthouse in Chicago implements these laws.3 Where the courthouse falls short, this Article will explore why, what can be done, and consider implications for other jurisdictions seeking to implement similar resources for survivors of domestic violence.The results from this empirical study are mixed. On the positive side, the data reflect that judges are properly applying many important aspects of the new order of protection laws4 and granting a high percentage of emergency orders of protection.5 The data also reflect that judges fail to grant certain important remedies, even when survivors seek the remedies and appear to meet the statutory requirements to receive them.6 Judges also fail to specify reasons for their denial of certain remedies when issuing an order of protection, notwithstanding that the Act requires that an order of protection include an explanation for a denial of any sought remedies.7 This Article argues that these failures are a form of judicial nullification,8 judicial refusal to fairly interpret the law. Counter-intuitively, this problem may be exacerbated by the specialized nature of this domestic violence-focused court. A second important finding is that the vast majority of petitioners are pro se, and they often fail to seek some of the remedies under the protective legislation implicated by their factual situation.Part I of this article explains, through a review of the Act, what remedies are available under an order of protection and what types of abuse and relationships can trigger this protection. Part II and the Appendix report on the methods and types of data collected in the empirical study. Part III discusses the remedies that judges rarely or never grant; explores the philosophical, practical, and psychological underpinnings for the judicial nullification phenomenon; and contemplates how to address nullification. Part III also explores why pro se petitioners leave potentially beneficial remedies unsought and proposes an empowerment model of assistance to guide future petitioners. Part IV considers how the results and policy implications from this study may apply to other jurisdictions.I. ORDERS OF PROTECTION AND THE ILLINOIS DOMESTIC VIOLENCE ACTThe Illinois Domestic Violence Act establishes laws surrounding orders of protection, which provides strong protections to survivors of domestic violence.9 The Act was first passed in 1982 and most recently updated in 2012. This Part explains three essential aspects of orders of protection, in general, and under the Act: (i) the types of conduct that constitute "abuse" sufficient for an order of protection, (ii) the categories of individuals who are eligible to seek an order of protection, and (iii) the kinds of remedies available with an order of protection. …