full Opinion Vivian Crespo v. Anibal Crespo (A-28-09) __ NJ __ 2-18-10
The Prevention of Domestic Violence Act is constitutional
Vivian Crespo v. Anibal Crespo (A-28-09)
(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the
Appellate Division is based substantially on the reasons expressed in Judge Fisher’s opinion below.)
Argued January 6, 2010 -- Decided February 18, 2010
PER CURIAM
On this appeal, the Court addresses the constitutionality of the Prevention of Domestic Violence Act (act),
N.J.S.A. 2C:25-17 to -35.
Vivian and Anibal Crespo were married in 1984 and divorced in 2001. Despite their divorce, the parties
continued to live in the same two-family house; defendant Anibal Crespo lived on the second floor with his parents
while plaintiff Vivian Crespo lived with the Crespo children on the first floor. In 2004, after a dispute over child
support, plaintiff filed a domestic violence complaint alleging present and past verbal and physical abuse. An ex
parte temporary restraining order (TRO), which restricted defendant from communicating with or contacting
plaintiff, was immediately entered. Defendant was served with the complaint and TRO and, after a two-day trial, a
final restraining order (FRO) was entered in Vivian’s favor. Defendant appealed and the Appellate Division
affirmed that decision on June 6, 2006.
On June 15, 2007, defendant moved before a different judge to vacate the FRO, asserting that the Act is
unconstitutional. Defendant argued that the Act essentially converted what should be a criminal prosecution into a
civil proceeding, thereby depriving the parties of their right to a jury trial. In addition, he argued that the Act denied
him due process by failing to provide sufficient notice prior to the final hearing, by applying a preponderance-ofthe-
evidence standard instead of a clear-and-convincing standard, and by failing to permit discovery or a right to
counsel. The trial court found for the defendant, determining that the Act’s “practice and procedure” components
violate the separation of powers doctrine and that the Act’s preponderance standard of proof violates due process
principles.
On appeal, the Appellate Division reversed, finding the Act constitutional. The panel reasoned that the
Supreme Court, rather than viewing the Act’s procedural components as usurping its exclusive authority over
practices and procedures utilized in the courts, has embraced and enhanced the Act’s procedural components by
adopting Rule 5:7A and by participating with the Attorney General in the creation of the Domestic Violence Manual
that incorporates the procedures contained in the Act. Accordingly, the panel found without merit defendant’s
argument that the various procedural aspects of the Act violate the New Jersey Constitution.
In addition, the Appellate Division held that the previously determined case of Roe v. Roe bound the trial
judge and required that he reject defendant’s arguments in respect of the constitutional sufficiency of the
preponderance standard in an action brought pursuant to the Act and, as such, the judge erred in refusing to follow
Roe. In conformity with its holding in Roe, and because the interests at stake and the fact-finding required of
Family Part judges in domestic violence matters is not at all similar to those matters in which courts have compelled
application of the clear-and-convincing standard, the panel concluded that a standard of proof more demanding than
the preponderance standard would undermine the social purposes of the Act.
The Appellate Division also rejected defendant’s argument that the Act permits a deprivation of an
individual’s Second Amendment right to bear arms because it allows for the seizure of a defendant’s firearms upon a
finding of domestic violence. The appellate panel found nothing in the U.S. Supreme Court decision in District of
Columbia v. Heller that suggests a limitation on a state’s right to bar persons who have been found to have
committed acts of domestic violence from possessing firearms. The Appellate Division determined that, absent a
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clear and binding announcement from the United States Supreme Court to the contrary, the Act’s prohibition on the
possession of firearms by a person found to have committed domestic violence is a valid, appropriate, and sensible
limitation on an individual’s Second Amendment rights.
The Appellate Division addressed defendant’s additional arguments regarding the ten-day hearing
requirement, the ability to take discovery, the right to counsel and the right to a jury trial and found them to be
without merit.
The Supreme Court granted defendant’s motion for leave to appeal.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in the thorough
opinion of Judge Fisher. The Prevention of Domestic Violence Act is constitutional.
1. The appellate panel correctly held that: a) defendant’s argument that the various procedural aspects of the Act
violates the NJ Constitution, Article VI, Section 2, Paragraph 3 is without merit; b) that Roe v. Roe required the
rejection of defendant’s arguments in respect of the constitutional sufficiency of the preponderance standard brought
pursuant to the Act; c) that the preponderance standard, as applied in domestic violence matters, conforms with due
process requirements; d) that defendant’s argument that by allowing the seizure of his firearms upon a finding of
domestic violence, the Act permits a deprivation of a person’s second Amendment right to bear arms must be
rejected; e) that defendant’s claim that the Act’s requirement that a final hearing be held within ten days of the
complaint deprived him of due process lacked merit; and f) the right to trial by jury does not attach when the alleged
victim of domestic violence chiefly seeks a restraining order, even if other ancillary relief, such as damages, are
sought. (Pp. 2-3)
2. To the extent that defendant raised whether the Second Amendment’s right to bear arms applies to the states, the
Court notes that the issue of “[w]hether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses” presently is
before the Supreme Court of the United States and therefore, this Court need not reach that point because the right to
possess firearms clearly may be subject to reasonable limitations.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERASOTO,
and HOENS join in this opinion.
SUPREME COURT OF NEW JERSEY
A-28 September Term 2009
VIVIAN CRESPO,
Plaintiff,
v.
ANIBAL CRESPO,
Defendant-Appellant,
and
STATE OF NEW JERSEY,
Intervener-Respondent.
Argued January 6, 2010 – Decided February 18, 2010
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 408
N.J. Super. 25 (2009).
David N. Heleniak argued the cause for
appellant (O’Donnell, McCord & DeMarzo,
attorneys).
Melissa H. Raksa, Assistant Attorney
General, argued the cause for respondent
(Anne Milgram, Attorney General of New
Jersey, attorney; V. Nicole Langfitt, Deputy
Attorney General, on the briefs).
Lawrence S. Lustberg submitted a brief on
behalf of amicus curiae New Jersey Coalition
For Battered Women (Gibbons, attorneys; Mr.
Lustberg and Eileen M. Connor, a member of
the New York and California bars, on the
brief).
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Andrew L. Schlafly submitted a brief on
behalf of amicus curiae Eagle Forum
Education & Legal Defense Fund.
PER CURIAM
The judgment of the Appellate Division is affirmed
substantially for the reasons expressed in the thorough opinion
by Judge Fisher. Crespo v. Crespo, 408 N.J. Super. 25 (App.
Div. 2009).
The panel correctly determined that the Prevention of
Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, was
constitutional. Specifically, the panel properly concluded (1)
that defendant’s “argument that the various procedural aspects
of the Act violate N.J. Const. art. VI, § 2, ¶ 3, [was] utterly
without merit[,]” id. at 34; (2) that Roe v. Roe, 253 N.J.
Super. 418 (App. Div. 1992), required the rejection of
“defendant’s arguments regarding the constitutional sufficiency
of the preponderance standard in actions brought pursuant to the
Act,” id. at 37; (3) that “the preponderance standard, as
applied in domestic violence matters, conforms with the
requirements of due process[,]” ibid.; (4) that “defendant’s
argument that by allowing the seizure of a defendant’s firearms
upon a finding of domestic violence, the Act permits a
deprivation of an individual’s Second Amendment right to bear
arms” also must be rejected, id. at 41; (5) that defendant’s
claim that “the Act’s requirement that a final hearing be held
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within ten days of the filing of the complaint, see N.J.S.A.
2C:25-29(a), deprived him of due process” lacked merit, id. at
43; and (6) that “when the alleged victim of domestic violence .
. . chiefly seeks a restraining order -- even if other ancillary
relief, such as damages, is also sought -- the right to trial by
jury does not attach[,]” id. at 46-47. We add only the
following.
To the extent defendant raised whether the Second
Amendment’s right to bear arms, U.S. Const. amend. II, applies
to the states, id. at 41-43, we note that the issue of
“[w]hether the Second Amendment right to keep and bear arms is
incorporated as against the States by the Fourteenth Amendment’s
Privileges or Immunities or Due Process Clauses” presently is
pending before the Supreme Court of the United States. McDonald
v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted,
___ U.S. ___, 130 S.Ct. 48, 174 L. Ed. 2d 632 (2009). We need
not reach that point because the right to possess firearms
clearly may be subject to reasonable limitations. See District
of Columbia v. Heller, ___ U.S. ___, ___, 128 S. Ct. 2783, 2816-
17, 171 L. Ed. 2d 637, 678 (2008) (holding that “[l]ike most
rights, the right secured by the Second Amendment is not
unlimited” and endorsing “longstanding prohibitions on the
possession of firearms”).
The judgment of the Appellate Division is affirmed.
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CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN,
WALLACE, RIVERA-SOTO, and HOENS join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-28 SEPTEMBER TERM 2009
ON APPEAL FROM Appellate Division, Superior Court
VIVIAN CRESPO,
Plaintiff,
v.
ANIBAL CRESPO,
Defendant-Appellant,
And
STATE OF NEW JERSEY,
Intervener-Respondent.
DECIDED February 18, 2010
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7
