Argued: September 17, 2014.
As Corrected February 25, 2015.
Appeal from the Superior Court of the District of Columbia. (CPO-1015-14). (Hon. Fern Flanagan Saddler, Trial Judge).
Robert Hornstein, Public Defender Service, with whom James Klein, Samia Fam, Angela Kennedy Acree, and Dominque Winters, Public Defender Service, were on the motion, for appellant.
Rachel L. Applestein, with whom Donald P. Salzman and Luke A. Meisner, were on the motion, for appellee.
Before GLICKMAN and EASTERLY, Associate Judges, and KING, Senior Judge. OPINION by Associate Judge EASTERLY. GLICKMAN, Associate Judge, dissenting.
This matter comes before the court on appellant Alfredo Salvattera's emergency motion for a stay pending appeal. On August 26, 2014, the Superior Court determined that there was good cause to believe that Mr. Salvattera had had unwanted sexual contact with appellee Isela Ramirez, thereby committing misdemeanor sexual abuse. The court issued a one-year Civil Protection Order (CPO) generally directing Mr. Salvattera to have no contact with Ms. Ramirez and specifically directing Mr. Salvattera to vacate his apartment--an apartment which he does not share, and has never shared, with Ms. Ramirez and in which she has no ownership or possessory interest, but which is located in the same building as Ms. Ramirez's apartment. Mr. Salvattera filed a motion under Superior Court Rule of Civil Procedure 59 (e) arguing that the vacate order exceeded the Superior court's statutory remedial authority under D.C. Code § 16-1005 (c) (2012 Repl.), and a motion for a stay pending appeal. Both motions were denied. In this court Mr. Salvattera has filed a notice of appeal and renewed his request for a stay of the vacate order, again challenging the court's statutory authority to issue it. After granting Mr. Salvattera an administrative stay, this court, on September 17, 2014, held oral argument on Mr. Salvattera's motion for a stay of the vacate order pending appeal. We now grant Mr. Salvattera the requested stay. The remainder of the CPO remains in force.
" To prevail on a motion for stay, a movant must show that he or she is likely to succeed on the merits, that irreparable injury will result if the stay is denied, that opposing parties will not be harmed by a stay, and that the public interest favors the granting of a stay." Barry v. Washington Post Co., 529 A.2d 319, 320-21 (D.C. 1987). " These factors interrelate on a sliding scale and must be balanced against each other." Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318, 332 U.S.App.D.C. 407 (D.C. Cir. 1998). Conducting this balancing of the second and third factors, we conclude that they more or less cancel each other out. Although we acknowledge that Mr. Salvattera will suffer irreparable harm if he is forced to move out of his home, Ms. Ramirez represents that she too will suffer harm if Mr. Salvattera remains, because she cannot continue to live in the same apartment building where he lives. Thus, our resolution of this motion turns on the likelihood the Mr. Salvattera will succeed on the merits of his argument that the Superior Court acted extralegally, coupled with the determination that the public interest accordingly favors a stay.
When the Superior Court initially issued the vacate order it did not cite to any specific provision of the Intrafamily Offenses Act as authorizing this directive. We assume it relied on the provisions Ms. Ramirez had cited to the court: D.C. Code § § 16-1005 (c)(4) and (c)(11). We examine each provision in turn.
D.C. Code § 16-1005 (c)(4) addresses when a court, having determined that the petitioner is entitled to a CPO, may take the significant step of ordering a respondent to vacate the petitioner's " dwelling unit." D.C. Code § 16-1005 (c)(4). The court may do so if the dwelling unit is:
o " Marital property of the parties," D.C. Code § 16-1005 (c)(4)(A)--inapplicable in this case because Mr. Salvattera and Ms. Ramirez are not married;
o " Jointly owned, leased, or rented and occupied by both parties; provided, that joint occupancy shall not be required if the respondent's actions caused the petitioner to relinquish occupancy," D.C. Code § 16-1005 (c)(4)(B)--inapplicable in this case because Mr. Salvattera did not jointly possess and occupy a residence with Ms. Ramirez and never had; 
o " Owned, leased, or rented by the petitioner individually; or Jointly owned, leased, or rented by the petitioner and a person other than the respondent," D.C. Code § § 16-1005 (c)(4)(C), (D)--inapplicable in this case because the court ordered Mr. Salvattera to vacate his apartment, not an apartment in which Ms. Ramirez had any ownership or possessory interest.
Indeed, Ms. Ramirez was eligible to seek a CPO under D.C. Code § 16-1003 (2012 Repl.), only because she falls under the
newly expanded definition for " petitioner," which, as revised in 2007 and then 2009, now includes not only individuals who allege they are the victims of " interpersonal, intimate partner, or intrafamily violence" and who thus might be expected to have the dwelling arrangements described above, but also all individuals who allege they are victims of stalking, sexual assault, or sexual abuse, without regard to whether they have any current or prior relationship or domestic arrangement with the alleged perpetrator. D.C. Code § 16-1001 (12) (2012 Repl.). Because (c)(4) was not amended to afford relief to individuals who, like Ms. Ramirez, fall in this latter category, D.C. Code § 16-1005 (c)(4) does not authorize the court's vacate order in this case.
Ms. Ramirez also cited D.C. Code § 16-1005 (c)(11) as a basis for the court's authority to order Mr. Salvattera to vacate his apartment. And in fact this was the statutory authority the Superior Court relied upon in its order denying Mr. Salvattera's Rule 59 (e) motion to Alter or Amend the Judgment. Section 16-1005 (c)(11) is a catchall provision; it authorizes a court issuing a CPO to " [d]irect the respondent to perform or refrain from other actions as may be appropriate to the effective resolution of the matter." D.C. Code § 16-1005 (c)(11). For the purpose of assessing Mr. Salvattera's likelihood of success on the merits, we do not think D.C. Code § 16-1005 (c)(11) can be read so broadly as to authorize the vacate order in this case. Instead we understand D.C. Code § 16-1005 (c)(4) to define all circumstances under which a court may currently require a CPO respondent to vacate his residence and we see no support for an interpretation of the catchall provision of D.C. Code § 16-1005 (c)(11) that circumvents those limitations.
In support of this interpretation of the Intrafamily Offenses Act, we note that the catchall provision appeared in the original version of the statute, while the provision codified in D.C. Code § 16-1005 (c)(4) granting authority to order a respondent to vacate a residence--that of a petitioner--was added only later, in 1982, indicating that the preexisting catchall was not understood to give courts such authority. Indeed, in the Report discussing 1982 amendments, the Committee on the Judiciary observed that " several critical weaknesses in the District's current intrafamily offenses law have surfaced" and " existing remedies have been shown to be inadequate."  The proposed amendments were " designed to fill in . . . areas of need in the current District law," inter alia, by " supplementing existing remedies" and authorizing courts to " direct an offending householder or family member to vacate the dwelling unit."  Elsewhere the Report acknowledged that " [f]ive remedies, including a very broad one [referring to the catchall] already exist in the local law,"
but nonetheless characterized the power to issue a vacate order as one of six " new statutory remedies available to the court issuing protection orders." 
By the same token, we note that with the addition of D.C. Code § 16-1005 (c)(4) the Council carefully delineated circumstances under which courts had the power to order a respondent to vacate a " dwelling unit." There would be little point in drafting the vacate provisions of (c)(4) with such precision if it were already understood that courts possessed broad power to issue vacate orders under the catchall provision of the statute. (And if this were the case, then (c)(4) would have been recognized as having a limiting effect--not the " expanding" effect ascribed by the Council.).
Lastly, we note that when the Intrafamily Offenses Act was amended again in 2007 and 2009, and the class of petitioners was expanded beyond the " intrafamily" context to include victims of stalking, sexual assault, or sexual abuse generally, there was no indication that the Council wished to empower courts to order the correspondingly expanded class of respondents to vacate their homes. As noted above D.C. Code § 16-1005 (c)(4) was not amended. Nor was there any indication that the Council believed an amendment was unnecessary and that courts already possessed broad power under the catchall provision to issue vacate orders. Against this backdrop of legislative silence, we determine that such power does not currently exist. If the Council desires that petitioners who have established by the low measure of good cause that they were victims of stalking, sexual assault, or sexual abuse be able to obtain a one-year CPO not only directing the respondent to have no contact with them, but also forcing the respondent to vacate his or her separate pre-existing residence--because it is in the same apartment building, or on the same block, or in the same neighborhood as the petitioner's residence--then the Council will have to grant this power expressly.
The gap we have identified in the statute is not filled by this court's general pronouncements that the Intrafamily Offenses Act must be interpreted broadly in light of its remedial purpose. We have made such statements exclusively in the context of intrafamily offenses, acknowledging the distinct dynamics of intimate partner violence. These dynamics were very much on the mind of the Council at the time of the passage of the Intrafamily Offenses Act and do not obviously transfer to crimes by mere acquaintances or strangers. In any event, we cannot interpret broadly that which is not there. Put another way, even accepting that (c)(11) should be interpreted broadly in cases that fall both within and outside the intrafamily context, (c)(11) cannot give courts power in the latter context that they never had in the former.
As we acknowledged in Robinson v. Robinson, " ordering a person to vacate his or her home . . . is a serious step, not to be lightly undertaken." 886 A.2d 78, 86 (D.C. 2005). This is particularly true given that, in the civil protection order context, a petitioner's burden of proof is only good cause--far less than the burden of proof beyond a reasonable doubt required in criminal cases. Although the Council has
established and this court (in the context of discussing D.C. Code § 16-1005 (c)(4)) has recognized that this serious step " can be a necessary measure to ensure peace and safety" of petitioners in the context of intrafamily offenses, Robinson, 886 A.2d at 86, the same cannot yet be said for the new class of petitioners, general crime victims, who may now seek a CPO under the Intrafamily Offenses Act. A merits division of this court may ultimately reach a different conclusion, but for now, while Mr. Salvattera's appeal is pending and while the other provisions of the CPO are in force, we determine that Mr. Salvattera has at least shown a likelihood of success on the merits of his argument that the court exceeded its authority in ordering him to vacate his apartment. Thus, a stay of the Superior court's vacate order is warranted.