When someone takes out an order of protection (“order”), the Davidson County Sheriff’s Office (“DCSO”) is responsible for serving the person the order is taken out against (respondent) with a copy of that order. This is called “notice.” Notice of the nature of the case against the person, when and where they can be heard and/or fight the case. Notice is vital to our constitutionally protected Due Process Rights under both the Federal and Tennessee Constitutions. Without proper notice, the court does not have the jurisdiction necessary to make any rulings against the respondent. Tennessee law requires that this service be done in person. (T.C.A. 36-3-605(c)). DCSO serves the orders by phone, which is a clear violation of Tennessee law, or at the very least, does not comply with Tennessee law.
On June 6, 2016 Judge Philip E. Smith, Fourth Circuit, issued an order finding that DCSO’s practice of service by phone renders service insufficient. When service is insufficient, the order and the subsequent violations and criminal charges resulting from those violations may be void. In a footnote, Judge Smith wrote:
“The Court is concerned that if this method of service of process is the current policy of the Davidson County Sheriff’s office, the courts of the Twentieth Judicial district may be entering Orders of Protection against respondents in violation of their due process rights. Additionally, because of the insufficiency of service of process personal jurisdiction would not be properly conferred upon the court resulting in many of the orders of protection being void. While Orders of Protection are civil in nature, violations can be tried by criminal contempt or by a violation warrant. If the Court is in fact correct in its analysis regarding the Sheriff’s Office Current method of service, then this Court is fearful that hundreds, if not thousands, of orders of protection and the corresponding criminal convictions thereon could be void as the courts never obtained personal jurisdiction over the respondent.” Footnote 1.
This order could invalidate thousands of orders of protection. If you or someone you know was served with an order of protection, violated that order of protection, and were convicted of criminal offenses due to those violations; you may be able to have those charges removed from your record. If you are currently dealing with criminal charges due to an order of protection, you may have a defense against the order and all the violations.
If you think this might apply to you, or someone you know, contact the Law Offices of Lords and Cate at 615-418-9814 or by email.