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Salvattera v. Ramirez

Court of Appeals of Columbia District

December 15, 2014

ALFREDO SALVATTERA, APPELLANT
v.
ISELA RAMIREZ, APPELLEE

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.

OPINION

Page 1004

Easterly, Associate Judge.

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.

Page 1005

" 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).[1] 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.[2] 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; [3]
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

Page 1006

newly expanded definition for " petitioner," which, as revised in 2007 and then 2009,[4] 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[5] 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,[6] 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." [7] 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." [8] Elsewhere the Report acknowledged that " [f]ive remedies, including a very broad one [referring to the catchall] already exist in the local law,"

Page 1007

but nonetheless characterized the power to issue a vacate order as one of six " new statutory remedies available to the court issuing protection orders." [9]

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,[10] 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[11] 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.[12]

Page 1008

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.[13] These dynamics were very much on the mind of the Council at the time of the passage of the Intrafamily Offenses Act[14] 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.[15] Although the Council has

Page 1009

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,[16] 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.[17] Thus, a stay of the Superior court's vacate order is warranted.

So ordered.

DISSENT

Glickman, Associate Judge, dissenting:

The stay order being entered in this case is quite alarming. Its immediate result is that a victim of sexual violence and her children must flee their home out of fear for her safety, so that her abuser can stay in the neighboring apartment where he assaulted her. Or, as appellant would have it, the terrorized victim in this case is free to remain in her apartment--a home she and her children cannot enter or leave without passing within a few feet of her assailant's door in an interior hallway out of public view--and go on living in fear that she may be attacked again. Either way, contrary to precedent, the stay order rejects a well-established and effective remedial measure and prefers the abuser's property rights over his victim's safety. The stay thus utterly vitiates the CPO that the Superior Court granted Ms. Ramirez.

This outcome is patently and tragically unjust. It is the result of my colleagues' surprising embrace of appellant's radically restrictive interpretation of the Intrafamily Offenses Act. His contention is not that the Act expressly prohibits the relief ordered in this case; there is nothing in the Act that does so. Rather, appellant contends that, by authorizing the court in one provision to issue a CPO directing a respondent to vacate the petitioner's dwelling

Page 1010

unit,[1] the Council implicitly denied the court the power seemingly granted by other facially applicable provisions[2] to direct the respondent to cease residing near the petitioner--regardless of the need for such an order to protect the petitioner from the respondent's harassment or abuse. This narrowing interpretation of the CPO statute has potentially grave consequences not just in the present case, but in any CPO case in which the victim is unfortunate enough to dwell not with, but in close proximity to, his or her abuser.

My colleagues' cramped interpretation of the court's remedial powers under the CPO statute is irredeemably flawed because it is fatally at variance with both " the policy of the legislation as a whole" [3] and the plain language of the statute. As to the former, " the plain intent of the legislature was an expansive reading of the Act" ; [4] it " must be liberally construed in furtherance of its remedial purpose." [5] Accordingly, " we may not read into the Act limitations or restrictions which it does not contain." [6] These principles mean that if a remedy is within the scope of the relief authorized by the Act's remedial provisions broadly construed, and not clearly prohibited, it may be ordered so long as it is appropriate in the circumstances to keep the petitioner safe from the respondent.

Furthermore, my colleagues' acceptance of appellant's argument that D.C. Code § 16-1005 (c)(4) implicitly precludes the relief ordered in this case is premised on a mischaracterization of that provision. Contrary to their view of subsection (c)(4), it focuses solely on the need to remove an abusive respondent from " the dwelling unit of the petitioner" ; it does not purport even to address, let alone prohibit, the court's authority to require an abusive respondent to move away from the petitioner's immediate vicinity. But the latter relief does fall squarely within the purview of two other subsections of D.C. Code § 16-1005 (c): the stay-away provision (c)(2) and the catchall provision (c)(11). Indeed, relying on the catchall provision, this court previously has upheld a petitioner's claim that the trial court has the statutory authority to order a respondent to vacate his own separate residence as " a necessary measure to ensure peace and safety," [7] even though it was conceded that subsection (c)(4) did not authorize such an order.

Nothing in the statute or its legislative history justifies viewing subsection (c)(4) as an implicit limitation on the authority conveyed in (c)(2) and (c)(11). In my view, therefore, appellant has not shown any likelihood that his appeal will succeed on its merits, and we should deny his stay motion.

I.

A.

After an evidentiary hearing on Isela Ramirez's request for a CPO against Alfredo

Page 1011

Salvattera, the trial court found the following facts.[8] Ms. Ramirez, who is from Mexico and does not speak English, lived in unit 302 of a small apartment building in Northwest Washington with her father and two small children. Alfredo Salvattera lived and continues to live in unit 102, two floors directly below Ms. Ramirez's apartment. Although his precise employment status was unclear, Mr. Salvattera acted in the capacity of a de facto building manager. On the evening of October 28, 2013, Ms. Ramirez went to Mr. Salvattera's apartment because he had sent her a text message asking to talk with her about the rent she owed. Ms. Ramirez was behind in her payments and concerned about being evicted. Mr. Salvattera let Ms. Ramirez in and offered her some sangria to drink. During their ensuing conversation, he asked her why she was unable to pay her rent and warned her that she could find herself out on the street at any time. He also showed Ms. Ramirez a photograph he had taken of her one day behind the building, without her knowledge.[9]

As this meeting went on, Mr. Salvattera provided Ms. Ramirez a second and then a third glass of sangria. When she took a sip of the third glass, which she did not see Mr. Salvattera prepare, it tasted bitter. Within minutes, Ms. Ramirez developed a strong stomachache and felt sick. She asked Mr. Salvattera to help her, but he ignored the request. Ms. Ramirez vomited blood and passed out.

When she regained consciousness the next morning, she found herself lying in Mr. Salvattera's bed, naked from the waist down. Mr. Salvattera was standing beside the bed, fully clothed, holding the rest of her clothing. In confusion and distress, she began crying and yelling. She asked Mr. Salvattera why she was naked. He said they both had taken their clothes off, and that " what had to happen, happened." Ms. Ramirez denied having taken her clothes off and said she was going to the hospital and would call the police. Mr. Salvattera replied that he never did anything and told her to take her clothing and get out.

Ms. Ramirez fled the apartment. After speaking with her family and friends, who testified about her distraught demeanor as she recounted what had happened to her,[10] she went to a neighborhood health clinic and then to the hospital. There she was examined by a sexual assault nurse and interviewed by the police, who collected her garments as evidence.[11]

Page 1012

Ms. Ramirez felt unsafe continuing to live in the same building as Mr. Salvattera. She became panicky and afraid whenever she encountered him, and she could not go in or out of the building without passing within a few steps of his apartment door. Her anxiety attacks worsened. Nonetheless, she continued to live in her apartment for the next few months because her father was still living there, and he could not be left there alone. Moreover, she had no place else to go. In January, however, her father moved out, and Ms. Ramirez and her children went to live in a shelter because she did not feel safe in the apartment without him there. (Later she moved in with a female friend, but, according to representations of counsel, this was only a temporary arrangement that she could not afford to maintain.) She eventually petitioned for a CPO so that she and her children could return to her apartment and live there in safety. If she is unable to go back there, Ms. Ramirez fears she and her children will become homeless.

B.

When Ms. Ramirez filed her petition for a CPO on March 28, 2014, she requested that the court require Mr. Salvattera to vacate his apartment so that she would feel safe in her own home. Throughout the five months of proceedings that followed, Mr. Salvattera and his counsel were on notice of this request. Ms. Ramirez's counsel reiterated it at the evidentiary hearing. She contended that the court had the authority to order Mr. Salvattera to leave his apartment under the CPO statute's catchall provision, D.C. Code § 16-1005 (c)(11), and this court's decision in Robinson (a case I discuss below).[12] When the trial court subsequently rendered its findings and conclusions in favor of Ms. Ramirez on August 26, 2014, it again heard argument as to whether to require Mr. Salvattera to leave his apartment. Ultimately, the court found that the parties' circumstances and Ms. Ramirez's " paramount" safety concerns necessitated such relief. Accordingly, the court proceeded to enter a CPO requiring Mr. Salvattera to have no contact with Ms. Ramirez, to stay at least 100 feet away from her person, her home, and certain other protected locations, and to vacate his apartment.[13]

At no point in all this time did Mr. Salvattera argue that the court lacked the statutory authority to direct him to vacate his apartment, though he and his counsel obviously had multiple opportunities and every incentive to do so.[14]

The first time that Mr. Salvattera challenged the court's legal authority to grant such relief in a CPO was in a motion to alter or amend the court's judgment.[15] Although he offered no explanation for having failed to raise this challenge previously, the court decided to address it on the merits. In a written opinion, it rejected

Page 1013

appellant's claim that the Intrafamily Offenses Act permits a court to order a respondent to vacate a dwelling unit only when the petitioner has a statutorily-defined possessory interest in that unit as set forth in D.C. Code § 16-1005 (c)(4). To the contrary, after reviewing how we have interpreted the Act, the court held that its order was authorized by subsections (c)(11) and (c)(2):

In this case, this Court's Order that Respondent vacate his apartment was a valid exercise of its authority under section 16-1005 (c)(11). Section 16-1005 (c)(11) empowers the Court to direct the respondent to perform or refrain from other actions as may be appropriate to the effective resolution of the matter. Here, the evidence at trial demonstrated that the layout of the apartment building would require Petitioner to pass by Respondent's apartment every time she enters or exits the building. The credible testimony of Petitioner also showed that Petitioner fears Respondent and feels deep anxiety due to the risk of encountering Respondent in the hallways and other common areas of the building. After considering the full range of available forms of relief, the Court determined, based on all of the evidence before it, that it would be appropriate to exercise its broad remedial power under the Act to fashion a remedy that will promote Petitioner's safety and peace of mind.
Further, the Court's Order to Respondent to vacate the apartment was necessary to enforce the Civil Protection Order directing Respondent to stay at least 100 feet away from Petitioner's person, home, and vehicle and to have no contact with her. As noted above, due to the layout of the building, Petitioner must come within a few feet of Respondent's apartment each time she enters or exits the apartment building. As such, there is a substantial risk that Respondent will be unable to stay the required distance from Petitioner and to avoid having contact with her. To avoid frustrating the Civil Protection Order's stay-away provision, the Court determined that it would be appropriate to the resolution of this matter to direct Respondent to vacate his apartment. For these reasons, the Court concludes that its August 26, 2014 Order was a valid exercise of its authority under D.C. Code § 16-1005 (c)(11), and that Respondent has not demonstrated a likelihood of success on the merits as to this issue.

II.

The decisive question before us is whether appellant has shown he is likely to succeed on his claim that a trial court may not order a CPO respondent to leave his residence if the criteria of D.C. Code § 16-1005 (c)(4) are not met, " even where the trial court . . . determine[s] that such relief would be 'appropriate' to effectively resolve the matter before it." [16] The question is one of statutory construction, and we recently summarized the basic principles of that enterprise in another case involving the meaning of the Intrafamily Offenses Act, as follows:

When interpreting a statute, the judicial task is to discern, and give effect to, the legislature's intent. The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. Individual words of a statute are to be read in the light of the statute taken as a whole, and where possible, courts should avoid constructions at variance

Page 1014

with the policy of the legislation as a whole.[17]

The essence of appellant's argument is encapsulated in the Latin maxim expressio unius est exclusio alterius --" [a] canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative." [18] As has often been said, this maxim is " an aid to construction of a statute rather than a rule of law." [19] We are careful to apply expressio unius " 'with a considerable measure of caution,' and [to] ignore [the maxim] when the plain meaning of the statute and the intent of the legislature is clear from the expressed words in the statute." [20]

In my view, we must reject appellant's expressio unius construction of D.C. Code § 16-1005 (c)(4) because it conflicts with both the policy and the plain meaning of the statute.

A.

Before considering the relevant remedial provisions of D.C. Code § 16-1005 (c), it is imperative that we be clear about the policy of the Act and the spirit in which we are obliged to construe it. This is legislation " designed to counteract the abuse and exploitation" of vulnerable people, typically (but not exclusively) " women and children." [21] Over the past three decades, the Council has progressively amended the Act to broaden its coverage and ensure that it provides " truly effective remedies" [22] for those in need of them. The Act's protections now are equally available to victims of domestic violence and (as in the present case) to victims of " stalking, sexual assault, or sexual abuse" committed outside the domestic context.[23]

Because " [t]he paramount consideration concerning this legislation is that it is remedial," [24] and " the plain intent of the legislature was an expansive reading of the Act," [25] we repeatedly have emphasized that the Act " should be liberally construed for the benefit of the class it is intended to protect." [26] We have emphasized as well that " [t]rial courts are granted broad discretion when implementing the remedial measures of the Intrafamily Offenses Act." [27] Accordingly, at least until now, we

Page 1015

have rejected attempts by respondents to foist restrictive interpretations on the Act's protections.[28]

Appellant has not disputed these principles or their applicability to the present case. However, my two colleagues on this panel appear to resist them when it comes to the Council's decision to extend the Act's protections to victims of stalking, sexual assault, and sexual abuse outside the context of domestic violence. Recognizing, as they must, what they call " this court's general pronouncements that the Intrafamily Offenses Act must be interpreted broadly in light of its remedial purpose," my colleagues dismissively say that " [w]e have made such statements exclusively in the context of intrafamily offenses, acknowledging the distinct dynamics of intimate partner violence. These dynamics ... do not obviously transfer to crimes by mere acquaintances or strangers." [29]

To be frank, I do not profess to comprehend this rather cavalier belittlement of sexual violence against " mere acquaintances or strangers," or why my colleagues think the different " dynamics" might call for different and less generous principles of statutory interpretation. On the contrary, no principled basis exists to justify construing the remedies in the CPO statute more narrowly when it is applied outside the domestic violence context than when it is applied within it. The Council unquestionably was aware of our decisions holding that the Act is to be " liberally construed for the benefit of the class it is intended to protect" [30]--a principle of construction fully in accord with the Council's own previously expressed desires--when it amended the Act to expand its coverage in 2007 and 2009. The Council said nothing on those occasions, either in the amendments or in the legislative history, suggesting any retreat whatsoever from that principle. The Council therefore must be understood to have endorsed our liberal construction of the available protections under the Act going forward, on behalf of all petitioners.[31]

Page 1016

For the sake of clarity, let me add that no one is arguing that the Council expanded the court's remedial options beyond those already provided in § 16-1005 (c) when it extended the Act's coverage to victims outside the " intrafamily" context.[32] But the Council did not wish to curtail the courts' options. It gave this new class of petitioners access to the same remedies as the Act makes available to the incumbent class of petitioners. And if it is supposed that an order requiring a respondent not to reside in close proximity to the petitioner would never be appropriate or necessary in the " intrafamily" context, that simply is not true. Indeed, as I shall discuss below, this court recognized the need for just such relief in an intrafamily case in Robinson v. Robinson.[33]

Thus, so long as an order requiring an abusive respondent to cease residing in the immediate vicinity of the petitioner is within the scope of the CPO statute's remedial provisions, broadly construed, and is not prohibited by the clear language of the statute,[34] the trial court has discretion under the statute to grant such relief. " [W]e may not read into the Act limitations or restrictions which it does not contain." [35]

B.

D.C. Code § 16-1005 (c) lists a number of remedial measures that may be included in a CPO to protect the petitioner from the respondent. The list is non-exclusive; we know this because it is followed by a catchall provision stating that the court may " [d]irect the respondent to perform or refrain from other actions as may be appropriate to the effective resolution of the matter." [36] Nonetheless, appellant contends that subsection (c)(4) is exclusive in the sense that it prohibits the court from requiring a respondent to vacate a dwelling unless its conditions are met. My colleagues are persuaded by this contention--they " 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." Ante at 6 (emphasis added).[37]

Page 1017

That is not what (c)(4) says. By its express terms, the subsection addresses only one specific, commonly recurring problem in this area--the problem that arises when the respondent and the petitioner, abuser and victim, are living together. To deal with this one problem, the subsection provides that a CPO may:

Direct[] the respondent to refrain from entering, or to vacate, the dwelling unit of the petitioner when the dwelling is:
(A) Marital property of the parties;
(B) 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;
(C) Owned, leased, or rented by the petitioner individually; or
(D) Jointly owned, leased, or rented by the petitioner and a person other than the respondent[.][38]

In making clear that a court has the authority to remove an abusive respondent from the petitioner's home, subsection (c)(4) goes no further. It does not purport to address--let alone, to withhold--the power of the court to limit where else an abusive respondent may reside. In short, subsection (c)(4) neither authorizes nor prohibits an order directing the respondent to vacate a dwelling unit other than that of the petitioner; it does not speak to the matter.

The mere fact that (c)(4) does not affirmatively authorize such an order does not mean the subsection necessarily precludes it. " Expressio unius does not apply 'unless it is fair to suppose that [a legislature] considered the unnamed possibility and meant to say no to it,' especially where the relevant legislative history reveals no such intent. More broadly, courts look for some evidence a legislature intended application of expressio unius, lest it prevail as a rule of construction despite the reason for and the spirit of an enactment." [39] There is no indication in either the language of (c)(4) or its legislative history that the Council ever considered or was confronted with the question presented here. This, after all, is unsurprising, for while the need to order a respondent out of the petitioner's home arises frequently, the question of whether to order a respondent to stop living in a dwelling near the petitioner has arisen comparatively rarely. And in amending the Act in 1982 to give trial courts more guidance as to the remedies they may provide CPO petitioners, the Council did not undertake to provide a detailed listing of every possible remedy for every conceivable scenario.[40] The question therefore is whether other remedial provisions in D.C. Code § 16-1005 (c), liberally construed, do authorize the court to direct a respondent " to refrain from entering, or to vacate" his residence when it is appropriate to do so to protect the petitioner. If so, then subsection (c)(4) does not stand in the way of granting that relief.

There are, in fact, two such provisions. The first is subsection (c)(2). The second is subsection (c)(11).

Subsection (c)(2) is a complementary remedial provision to (c)(4). While the latter provision focuses only on the need to remove an abusive respondent from his victim's home, and removes any doubt as to

Page 1018

the court's power to do so, (c)(2) more broadly authorizes the court to " require[] the respondent to stay away from or have no contact with the petitioner and any other protected persons or locations." [41] These words, " construed according to their ordinary sense and with the meaning commonly attributed to them," [42] plainly encompass an order limiting how near the petitioner's home the respondent is permitted to reside.[43] Necessarily so, for were it otherwise, the respondent could frustrate the purpose of the stay-away directive and render it virtually worthless simply by choosing to live vexatiously near the petitioner. That is exactly the problem the trial court faced in the present case: If Mr. Salvattera is allowed to maintain his current living arrangements, the court realized, its order requiring him to stay 100 feet away from Ms. Ramirez and her dwelling unit will be an exercise in futility.

This court has not heretofore had occasion to determine the scope of the stay-away provision of § 16-1005 (c). However, even before the 1982 amendments that added subsection (c)(4) to the CPO statute, the stay-away provision in the original Intrafamily Offenses Act was understood to permit the court to order the respondent to vacate his residence if necessary.[44] And as we consider the interplay between subsections (c)(2) and (c)(4), a New Jersey case, Zappaunbulso v. Zappaunbulso,[45] is quite instructive. In Zappaunbulso, the complainant's ex-husband had been barred from her home under a provision (" subsection (b)(2)" ) of New Jersey's Prevention of Domestic Violence Act authorizing the court to grant " exclusive possession" of the parties' residence to the plaintiff.[46] The ex-husband proceeded to rent and move into a house in the complainant's immediate neighborhood so that he could continue to stalk and harass her. Because this house was not his ex-wife's dwelling, subsection (b)(2) did not apply to it. Nonetheless, observing that " [i]n construing the scope of the Act's protections, courts have looked beyond the four walls of a victim's residence," [47] the Appellate Division held that the stay-away provision in the New Jersey Act empowered the court to order the abusive ex-husband to vacate the house he had rented.[48] Thus, the existence of a provision like our (c)(4) did not prevent the entry of such an order under a provision like our (c)(2).

We have not been cited to any contrary authority preventing a court from relying on the plain language of a stay-away provision such as D.C. Code § 16-1005 (c)(2) to order a respondent to move away from the

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immediate vicinity of the petitioner's home, and I am not aware of any. My colleagues say, in declining to interpret (c)(2) in accordance with its plain language, that they find no " support" for doing so in the legislative history. Ante at 10 n.12. But the silence of the legislative history cannot be a reason to reject the plain meaning and scope of the statutory text. As we have said, " a court should look beyond the ordinary meaning of the words of a statute only where there are " persuasive reasons' for doing so." [49] A silent legislative record does not furnish such reasons.[50] And, of course, adherence to the principle that the CPO statute's remedial provisions must be construed expansively to benefit petitioners, per the Council's intentions, compels us to read the words of (c)(2) in accordance with their ordinary meaning, i.e., as authorizing the court to order a respondent to move away from the vicinity of the petitioner.

Subsection (c)(11) is the other pertinent provision in D.C. Code § 16-1005. It is, as the Council's Committee on the Judiciary stated in its report on the 1982 amendments, a " very broad" remedial provision in its own right.[51] As I have said above, (c)(11) allows the court to " [d]irect[] the respondent to perform or refrain from other actions as may be appropriate to the effective resolution of the matter." There is no question that an order directing a respondent to cease living in close proximity to a petitioner whom he had abused or harassed would be " appropriate to the effective resolution of the matter" in some cases. Thus, the catchall provision by its terms encompasses the power to issue such an order. To construe it otherwise would, to quote this court's decision in Powell, " strain . . . the facial meaning of the provision." [52] Moreover, as this court declared in Powell, " an expansive reading . . . must be accorded to the catchall provision," just as it is to the Act as a whole.[53]

It is no answer to say that the Council did not specifically envision the issuance of

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orders to vacate under subsection (c)(11). The basic function of a catchall provision such as (c)(11) is to cover situations " not specifically contemplated" by the legislature; [54] the provision " act[s] as a safety net, offering appropriate equitable relief" for violations that the other subsections do not " adequately remedy." [55] Similarly, the fact that such " appropriate equitable relief" might be viewed as akin to the relief specifically authorized by one of the other subsections (as appellant contends is so in this case) is not a reason to except it from the scope of the catchall provision. On the contrary, catchall provisions are exceptions to the norm that the specific controls the general. It is " a familiar canon of statutory construction that catchall clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated." [56] So, for example, in Powell this court held that the catchall provision in (c)(11) authorizes monetary relief even though " several of the [specific remedial] provisions [in § 16-1005 (c)] [already] effectively deal with temporary adjustment of property interests, a form of monetary relief, and the litigation costs provision involves, of course, direct payment." [57] So, too, does (c)(11) authorize a court to order a respondent not to reside in the immediate vicinity of the petitioner, even as (c)(4) deals with excluding the respondent from residing inside the petitioner's dwelling.

In fact, this court already has recognized that such an order may be issued under (c)(11) even though it is not authorized by (c)(4). In Robinson v. Robinson,[58] the trial court granted a CPO requiring the respondent (Mr. Robinson) to vacate the petitioner's (Mrs. Robinson's) home at 1224 Emerson Street; but the court refused to order him out of the house next door, at 1228 Emerson Street, because that house was " his property" and he had " a right" to live there.[59] On appeal, Mrs. Robinson correctly conceded that subsection (c)(4) did not authorize the court to order Mr. Robinson " to refrain from entering,

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or to vacate" 1228 Emerson Street, because " that provision applies only to the petitioner's " dwelling.'" [60] Nonetheless, Mrs. Robinson argued, such relief was available under the catchall provision in § 16-1005 (c).[61] This court agreed with Mrs. Robinson: " Although," we stated, " ordering a person to vacate his or her home or denying the use of owned property is a serious step, not to be lightly undertaken, when the trial court finds that intra-family offenses have been committed or are imminent, it can be a necessary measure to ensure peace and safety." [62] Concerned that the trial court had placed undue " reliance on Mr. Robinson's property rights in allowing him, a known abuser, to live within twelve feet of his wife, his repeated victim," and that merely requiring him to vacate the marital home might be " inadequate," this court remanded the case for the trial court to re-evaluate the situation in light of all the facts " as well as the broad remedial

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measures available to safeguard Mrs. Robinson's safety and peace of mind." [63]

My colleagues appear to suggest that Robinson is distinguishable from the present case because it arose in the context of domestic violence,[64] but that is an untenable distinction to draw in the wake of the 2009 amendment of the Intrafamily Offenses Act expanding the class of petitioners to include victims of stalking, sexual assault, or sexual abuse outside that context. As discussed above, the remedies provided in D.C. Code § 16-1005 (c) are equally available to all petitioners. If the Act authorizes a court to order an abusive ex-husband not to reside near the petitioner, as Robinson holds it does, then the Act authorizes a court to order the perpetrator of a sexual assault outside the domestic relations context not to reside near his victim. Appellant and my colleagues have identified no principled basis to distinguish the two cases as a matter of law. No principled basis exists. Although Robinson speaks in terms of intrafamily offenses, that is merely because it was decided before the Council expanded the coverage of the Act.

My colleagues also assert that Robinson " neither dictates nor informs our analysis of (c)(11) in this case" because Mr. Robinson was not yet living in his property at 1228 Emerson Street at the time the CPO was issued, and therefore the court's authority to order him to " vacate" his residence was not the question before us on appeal. Ante at 12-13 n.16.[65] This assertion is erroneous in two respects. In the first place, in Robinson this court recognized that it needed to address the propriety of a vacatur order, and it expressly did so. This was because Mr. Robinson had moved in at 1228 Emerson Street after the trial court allowed him to live there. Hence the court specifically directed the trial court on remand to " re-evaluate the situation of the parties, considering the entire mosaic of facts before it (including any developments since the entry of the last order), as well as the broad remedial measures available to safeguard Mrs. Robinson's safety and peace of mind." [66] This directive would have made no sense if the court's opinion had not made it clear that the authority existed to order Mr. Robinson to vacate 1228 Emerson Street.

Secondly, and in any event, (c)(4) specifically addresses orders directing a respondent " to refrain from entering" as well as orders " to vacate" the petitioner's dwelling unit, and it draws no distinction between the two directives. Even if Robinson established only that (c)(11) authorized a " refrain from entering" order to a respondent with respect to his own residence, as my colleagues (mistakenly) imply, that would surely mean (c)(11) would authorize a " vacate" order to such a respondent as well. No reason appears why the catchall provision would cover one but not the other.

III.

For the foregoing reasons, my colleagues err in concluding that appellant has a likelihood of prevailing on his argument that the Superior Court exceeded its authority under D.C. Code § 16-1005 (c) in ordering him to vacate his apartment. As I have shown, appellant's and my colleagues' parsimonious construction of the CPO statute is contrary to its plain words, the history and policy of the legislation, the Council's intentions, basic principles of statutory interpretation, and this court's precedents. It is tragically wrong in every respect that counts. In my view, appellant has not shown any likelihood that his appeal will succeed on its merits, and we should deny his stay motion.


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