Motion to terminate a PPO; Due process; Petitioner’s off-camera testimony; Curtailment of cross examination; Burden of proof; Request for remand to a different judge

The court held that where “the petitioner testified off-camera for no discernible reason; cross examination was curtailed by the circuit court; and, most critically, the circuit court shifted the burden of proof from the petitioner to the respondent, the proceedings lacked the due process needed for continuation of the PPO.” But it denied respondent’s request to reassign the case to a different judge. He argued that three aspects of the hearing on his motion to terminate the PPO undermined his right to due process. Beginning with the off-camera testimony, the court concluded that with “the limited testimony and inability of the circuit court to see petitioner, the [circuit] court did not have the ability to assess petitioner’s credibility fully. Nor did respondent’s counsel have the opportunity to see petitioner testify and respond accordingly to her demeanor or credibility.” Next, the record confirmed “that the circuit court curtailed respondent’s opportunity to cross-examine petitioner.” The court found that by depriving him “of the opportunity to cross-examine petitioner about the alleged sexual assault, the circuit court increased the risk of erroneously depriving respondent of significant liberty interests.” Finally, the court concluded the “circuit court impermissibly shifted the burden of proof to respondent.” It held that “the circuit court abused its discretion by prohibiting respondent’s counsel from fully cross examining petitioner. The circuit court also abused its discretion by (1) permitting petitioner to testify off-camera and (2) shifting the burden of proof from petitioner to respondent, and these errors were plain. The errors affected respondent’s substantial rights, specifically his liberty interests. These errors were ‘inconsistent with substantial justice,’ and ‘seriously affected the fairness, integrity, [and] public reputation’ of these PPO proceedings.” Thus, the court vacated the circuit court’s order denying respondent’s motion to terminate the PPO and remanded.