Even appellate courts sometimes disregard the operative language of a problem in order to achieve the result they want. A recent example is State v. Crombie, 267 Or. App. 705 (2014), which is a contempt action arising from a Family Abuse Prevention Act (“FAPA”) order and a divorce.
In Crombie the wife had obtained what the court described as “a standard-form FAPA order that prohibited her husband, the defendant, from, “‘intimidating, molesting, interfering with or menacing’ the victim.” However, the order also provided that “nothing in this order prevents [defendant] from serving or providing documents related to a court * * * case to the [victim] in a manner permitted by law.” (emphasis supplied)
Shortly after getting the FAPA order, the wife began a divorce case against her husband. Neither the wife nor her husband was represented by attorneys. In the divorce case the husband first filed a response to the divorce petition and later served his wife with a five page document entitled “Addendum to Response and Counterclaim” which was also filed with the court. His addendum stated reasons why, defendant believed, the parties shouldn’t divorce but didn’t contain any threatening or violent language. The wife gave the addendum to the police. The defendant was charged and convicted of contempt for violating the FAPA order.
The Court of Appeals, implicitly holding that “nothing” does not really mean “nothing”, and claiming that the defendant’s addendum to the response and counterclaim he filed in court was not a document “related to a court case” within the meaning of the FAPA order, affirmed the finding of willful contempt and the conviction because, the court explained, there’d otherwise be a “loophole” in the FAPA order. Of course, in this context “a loophole” and “an exception” are essentially synonyms which are substantively indistinguishable except that the court disapproves of the loophole while claiming to honor the exception.
The result in this case is both absurd and unfair. It is absurd because it relies on a reading of the explicit and unqualified exception in the FAPA order for documents “related to a court case” to exclude a document filed with the court “related to a court case.” Instead the court essentially rules that the FAPA order’s exception allowing defendant to file and serve documents related to a court case only encompasses those documents with content which the court likes. The result is unfair to the extent it assumes that a non-lawyer would expect an appellate court, composed of lawyers, would actually ignore and twist the explicit language of an earlier order because the court can’t accept the import of the plain language of the order.