The Massachusetts Appeals Court today ordered a new hearing for a college student seeking an extension of a restraining order against a classmate after a lower-court judge said it's a matter for college officials, not the judicial system.
The unidentified woman wanted to continue to have her equally unnamed classmate to stay away from her and her classes on campus after their romance soured and, she claimed, he stalked her and eventually attacked her sexually. But Somerville District Court Judge Neil Walker rejected her request:
I'm sorry and I, again, point out the fact that I've been hearing a lot of these cases since I've been here. My home is Lowell. I deal with [a different university], and I deal with them fairly frequently. I am satisfied, in most cases, that once the college or university gets involved, they can do a lot more than I can. I will say to you at this point that I will not under any circumstances, unless it can be shown otherwise, ... prevent any student from physically being on the campus, physically attending any and all classes.... I'm going to suggest you might want to sit down and discuss this because I'm going to tell you I'm going to be hard-pressed to continue an order that's going to prevent one student, okay, as opposed to the other, to attend a private institution.
Walker declined to extend the restraining order even when the woman said the college had failed to protect her - and even after her attorney told the judge college officials were on their way to the court to testify.
But what got the appeals court to order a new hearing for the woman was what it said was Walker's mistake in refusing to let the woman's attorney ask the classmates questions under oath:
It may be that the defendant would have asserted his constitutional privilege not to testify, through counsel or otherwise. It is also possible that the defendant would have testified about some of the incidents described by the plaintiff and thus corroborated, or contradicted, some or all of her testimony. In any event, it was not the judge's prerogative to make that choice for him.
Normally, when appeals courts order a new hearing, they kick it back to the original judge. In this case, however, the appeals court said;
Under all the circumstances of this case, including, particularly, what might be thought to be irregularities in the procedures employed here, we think it better that the matter be heard before a different judge.