Guideline 4:06
When an order under G.L. c. 258E is issued, the clerk’s office must transmit two certified copies of the order and one copy of the complaint to “the appropriate law enforcement agency.” G.L. c. 258E, § 9. The Defendant Information Form should accompany these forms. The appropriate law enforcement agency is, in most cases, the police department with jurisdiction over the defendant’s residence, but it can be any police department of the municipality where the defendant is most likely to be found. In addition, the clerk’s office should transmit these documents to the police department of the city or town wherein the plaintiff resides.
Transmission of the papers for service on the defendant should take place immediately after the order is issued. Transmission should be accomplished in the manner best designed for speed and effectiveness. In many courts, this will be electronically. In other courts, arrangements are made to have police personnel pick up the order for service. In every case, the c. 258E order and complaint must be immediately transmitted by the court to the appropriate police departments.
In no circumstances, however, should the order be given to the plaintiff to bring to the police station to effectuate service, nor should the order be mailed to the police station to effectuate service. If a plaintiff would like a copy of the order to bring directly to the police station, a copy of the order should be provided for that purpose. If a police department would like a “hard” copy of an order that has been transmitted electronically to the department for service, the clerk’s office may provide a copy by mail upon request.
The police must serve a copy of the order and a copy of the complaint on the defendant. Service is to be made in-hand.
If the court has reason to know that the defendant is incarcerated and will be incarcerated at the time scheduled for the hearing after notice, the court can use the videoconference system for the hearing after notice or issue a writ of habeas corpus sua sponte. Alternatively, a notice should accompany the order informing the defendant of the right to be present at the hearing and, upon the defendant’s request, the court should timely issue a writ of habeas corpus to bring the defendant to court for the scheduled hearing.
Commentary
“Forthwith” transmission of two certified copies of the order and one copy of the complaint and summons to the police is specifically required by law. G.L. c. 258E, § 9, second par. The statute does not require the affidavit to be served on the defendant. Flynn v. Warner, 421 Mass. 1002, 1002 (1995) (rescript). The clerk’s office is in the best position to determine the most expedient method of transmitting the documents to the appropriate police department for service on the defendant. Whatever method is selected, the court should retain documentation that the transmission was made, when it was made and to whom it was made. The police department is then required to serve one copy of the order on the defendant in-hand, together with a copy of the complaint.
In-hand service should be made on the defendant if at all possible. Failure to make in-hand service may render the ex parte order ineffective. Further harassment will not be deterred if the defendant does not know that the order exists. Alternative service may be authorized by a judge when a law enforcement agency is unable to serve the defendant, upon the judge’s finding that the agency has made a conscientious and reasonable effort to effect service. See Guideline 4:08 Alternative Service Must Be Authorized by a Judge.
If it is unclear what the address of the defendant is, then the court should question the plaintiff about possible residential or work addresses. All of the information which the plaintiff possesses about the defendant’s whereabouts should be contained on the Defendant Information Form. See Guideline 2:03 Completing the Complaint; Obtaining Required Information. The court can also inquire with probation as to any information it may have regarding an address for the defendant, either from probation’s file or by accessing the data available through the Registry of Motor Vehicles (RMV), as well as whether the defendant has any upcoming court dates.
Where the issuing judge is aware of any information that raises safety concerns for a police officer serving the order (e.g., outstanding warrants, firearms, suicidality, etc.) that information should be included on the order (or otherwise conveyed to the serving police department). See Guideline 3:04 Court Action on the Defendant’s Default, Probation, Parole or Warrant Status at Ex Parte Hearings; Heightened Safety Concerns.
Additionally, in cases where a judge finds that the plaintiff may be subject to an imminent threat of bodily injury prior to service being effected, the judge should check the appropriate box indicating this and direct the clerk’s office, the victim witness advocate, or the district attorney’s office to notify the appropriate law enforcement officials of the situation and the circumstances that give rise to the imminent threat of bodily injury. See Guideline 3:04 Court Action on the Defendant’s Default, Probation, Parole or Warrant Status at Ex Parte Hearings; Heightened Safety Concerns.
The police are required to “promptly” make a return of service. If the return is not made prior to the date of the hearing after notice, and there is no other evidence of notice to the defendant, an order after notice may not be issued at that time. See Guideline 5:05 Failure of the Defendant to Appear. Furthermore, successful prosecution for violation of an order of which the defendant is unaware may be impossible. See Commentary to Guideline 5:05 Failure of the Defendant to Appear and Guideline 6:04 Service of Initial Orders After Notice on the Defendant. If the case must be continued because there is no evidence that the defendant received notice, the same ten-day time limit as for ex parte orders must be observed. If alternative service has been authorized and made, however, the judge can issue an initial order for up to one year even if the court is unable to verify such service actually notified the defendant. See Guideline 4:08 Alternative Service Must Be Authorized by a Judge. It should be noted that service without actual notice may preclude enforcement of the order were it to be violated. As such, the plaintiff should be alerted to the limits of service without actual notice.
Incarcerated defendants have the right to be heard on a requested extension of the ex parte order at a hearing after notice. The court should take steps to inform incarcerated defendants of their right to be heard and how to request that a writ of habeas corpus issue. See M.M. v. Doucette, 92 Mass. App. Ct. 32, 36 (2017). The court has an obligation to honor a defendant’s request to be heard at the hearing after notice. However, the mere fact of the defendant’s incarceration at the time of the hearing would not prevent a judge from extending the restraining order in the absence of some indication that the defendant wished to attend and be heard, so long as the defendant had knowledge that the hearing was to be held. Id. While the court is under no obligation to issue a writ of habeas corpus absent a request by the defendant, Commonwealth v. Henderson, 434 Mass. 155, 163, n. 12 (2001), obtaining the defendant’s presence for the hearing after notice is the preferred practice so that notice is clear in the event the defendant is subsequently charged with violating the harassment prevention order. This can be done by either issuing a writ of habeas corpus sua sponte or utilizing the videoconferencing system.
As in a prosecution for a violation of an order, actual service of the c. 258E order is unnecessary if the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order. See Commonwealth v. Delaney, 425 Mass. 587, 589-593 (1997), cert denied, Delaney v. Commonwealth, 522 U.S. 1058 (1998). Contrast Commonwealth v. Welch, 58 Mass. App. Ct. 408, 410 (2003). See Guideline 8:00 Criminal Prosecution of Violation of Harassment Prevention Orders; Venue.
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| Last updated: | October 20, 2025 |
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