The Honorable Francis B. Schultz, J.S.C. recently held that the New Jersey Prevention of Domestic Violence Act (hereinafter “DVA”) is unconstitutional in that it violates New Jersey’s constitutional article on separation of powers and utilizes the preponderance of the evidence standard of proof. In his letter opinion, the Judge disagreed with the Defendant’s other attacks on the constitutionality of the statute, including arguments regarding the statute’s alleged violation of the Defendant’s First Amendment right to free speech and Second Amendment right to bear arms, as well as other jurisdictional attacks.

With regard to the Defendant’s separation of powers argument that the DVA is unconstitutional based upon the statute’s prescription of procedural aspects constitutionally reserved to the Court, the Judge noted that the procedures established by the DVA directly conflict with established Court Rules and specifically held that “the entirety of N.J.S.A . 2C:25-29A, especially the ‘within ten days’ requirement for the setting of the final hearing, contains what are unambiguously rules for practice and procedure.”

As to the standard of proof issue, the Judge held the DVA unconstitutional utilizing the balancing test promulgated by the United States Supreme Court in Matthews v. Eldridge , 424 U.S. 319 (1976). Based on the implication of a Defendant’s fundamental right as a parent to be with his or her child, the Judge found that the due process clause of the Fourteenth Amendment and the New Jersey Supreme Court case of I n re Polk “require that a clear and convincing standard be utilized in domestic violence matters.” Interestingly, while the Court found that a new hearing was required, the Judge did not order that the Judge who will conduct the hearing to apply the clear and convincing standard, holding only that the Matthews ’ balancing test should be utilized in determining the standard of proof to be applied.