E.B. v. J.R. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice. On appeal, the defendant contends that (1) her motion to vacate the ex parte order was denied in violation of her due process rights, and (2) both the ex parte order and the extension order were issued with insufficient support. We vacate both orders and remand the case for further proceedings consistent with this memorandum and order.

Background. After the plaintiff obtained an ex parte 258E order, the defendant filed a motion to vacate the order, arguing that the plaintiff's complaint failed to make out the necessary elements. The motion was heard at the same time as the hearing after notice where the defendant was self-represented and the plaintiff was represented by counsel. The plaintiff's attorney recited the procedural background and the judge began to review the plaintiff's affidavit. The plaintiff's lawyer then started to relate that the defendant had been charged with violating the ex parte order, when the defendant stated, “I object to that, Your Honor.” The judge admonished the defendant, “No, no. First of all, ․ you're going to understand what the rules are; okay? ․ The rules are, you're not to interrupt at any time.” The judge then explained, “You don't, in a civil case, have the opportunity to say you object․ It doesn't work that way․ That's in a criminal case.”

The judge then turned to the plaintiff and asked her about the Federal trial in which the plaintiff had testified the previous year. The plaintiff explained that the defendant had filed a lawsuit against the city for violation of the Endangered Species Act and that the suit was resolved in favor of the city. The plaintiff's counsel offered to provide the judge with a copy of the decision. When the judge asked whether the defendant had a copy, the defendant replied, “Yes, ma'am, I do. Yes, Your Honor,” and added, “I object to it being relevant.” The judge responded, “What did I say about objections?” and “I decide whether something is relevant[,] right?” The defendant then stated that she disagreed that the Federal court decision was relevant to the plaintiff's request for a 258E order. The judge replied, “You can disagree all you want, but -- and you can voice that, I don't want you [to] think you can't voice it․ But you can't say you object.”

The judge then said that she had reviewed the defendant's motion to vacate and asked why she should not extend the 258E order.¹ Just as the defendant began to explain that the plaintiff's claims did not meet the legal standard, the judge cut off the defendant and asked a series of questions, pointedly asking why the plaintiff would accuse the defendant if the allegations were not true. When the defendant attempted to explain the context and her theory that it was in retaliation for the Federal lawsuit, the judge again cut off the defendant, telling her to “[s]top talking,” and that she (the judge) did not need to know about the elephants at the zoo or the plaintiff's background as a veterinarian.

The judge then invited the plaintiff's counsel to cross-examine the defendant. The cross-examination centered around the Federal lawsuit (concerning the elephants) and the plaintiff's status and licensure as a veterinarian. The plaintiff's counsel then presented the testimony of the plaintiff, who affirmed the truth of her affidavit. The plaintiff expressed how the “entire situation [was] causing [her] immense stress.”

At the conclusion of counsel's direct examination, the judge asked the plaintiff, “[Y]ou are concerned for your safety because of the actions of [the defendant] physically, verbally, and on social media; is that right? ․ And there have been several instances where she has intimidated you; is that right?” After the plaintiff answered in the affirmative, the judge stated, “I have no doubts that you're a competent veterinarian or [the zoo] wouldn't have hired you,” and “don't you for one minute second guess your training. Nobody in this room is a veterinarian and knows anything about what you do, okay? ․ You got your degree. You worked hard for it. Move on with that.”

At the conclusion of the hearing, the judge extended the ex parte order for three years, and later sua sponte amended it to a one-year extension, explaining that a three-year extension was not permitted at the first hearing after notice.²

Discussion. 1. Sufficiency of the evidence. When reviewing whether the evidence was sufficient to support the issuance of a 258E order, we consider whether, “by a preponderance of the evidence, together with all permissible inferences,” the judge could have found “that the defendant had committed ‘[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property’ ” (citation omitted). Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016). The standard for extending a 258E order is the same as that required for issuing it. See id. at 6 n.6. The plaintiff must demonstrate, “by a preponderance of the evidence, that extension of the order is reasonably necessary to protect the plaintiff from ․ harassment.” Danny D. v. Eli E., 102 Mass. App. Ct. 901, 901 (2023). See G. L. c. 258E, § 3; Iamele v. Asselin, 444 Mass. 734, 736-739 (2005).

Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either “true threats” or “fighting words.” O'Brien v. Borowski, 461 Mass. 415, 425 (2012). See A.R. v. L.C., 93 Mass. App. Ct. 758, 760-761 (2018). True threats include “direct threats of imminent physical harm” and “words or actions that -- taking into account the context in which they arise -- cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear.” O'Brien, supra. Fighting words are limited to personal insults that are inherently likely to incite a violent reaction. See id. at 423.

At the hearing after notice, the evidence of harassment consisted of the plaintiff affirming the truth of the affidavit she submitted in support of her ex parte request for a 258E order. Although the defendant denied the allegations, the judge was free to credit the plaintiff's version of events over that of the defendant. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 (2015) (judge determines credibility of allegations). The plaintiff's affidavit described the following four alleged incidents of harassment.

First, in July 2024, while the plaintiff was working at the zoo, the defendant began “yelling and screaming” at the plaintiff that she “should lose [her] job and right to be a veterinarian[,] ․ that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals.”

Second, in September 2024, while the plaintiff was working at the zoo, the defendant began “telling other [zoo] visitors falsehoods about the elephants being beaten.” The plaintiff told the visitors that the allegations were not true, but the defendant “immediately yelled at [her] over [her] explanation to the visitors and got within inches of [her] face to continue yelling” at her. About forty-five minutes later, the defendant reapproached the plaintiff and got “in [her] face yelling at [her] about how [she was] a bad veterinarian and [her] cruelty towards animals.” The plaintiff alleged that she “felt like [the defendant] was trying to intimidate [her] to quit [her] job.” The defendant was “in [her] face videotaping” the plaintiff, so the plaintiff called 911. While the plaintiff was on the phone, the defendant “chased after [the plaintiff].”

Third, also in September 2024, the defendant “formally fil[ed] a written complaint to the [veterinary licensing] Board” that “was all lies and falsehoods.”

Fourth, in November 2024, a television news crew was at the zoo reporting on the elephants when the defendant disrupted an interview and began to “yell and scream at [the plaintiff] that [she was] not a licensed veterinarian and that she [did] not have a license to practice in [Massachusetts], and that [she was] abusing and murdering elephants.” The defendant also “threaten[ed] [the plaintiff's] career.”

Of the four incidents alleged, only the second arguably constituted harassing conduct -- getting within inches of the plaintiff's face while yelling and chasing after the plaintiff. The remaining alleged conduct constituted protected speech, not rising to the level of fighting words or true threats. See O'Brien, 461 Mass. at 427 (threats containing ideas or advocacy causing fear of economic loss or unfavorable publicity are not “true threats”). See also Seney v. Morhy, 467 Mass. 58, 63-64 (2014). As a result, the judge erred in finding that the incidents described by the plaintiff amounted to three requisite acts of harassment pursuant to G. L. c. 258E. The extension order issued following the hearing after notice must therefore be vacated.

As she did below, the defendant seeks to have the ex parte order vacated, as well. Ordinarily, no appeal lies from an ex parte order that has been extended following a hearing after notice; this is so because the extended order supersedes the ex parte order, making the ex parte order moot. See Noelle N. v. Frazier F., 97 Mass. App. Ct. 660, 661 (2020). See also Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 637-638 (2023) (recognizing general applicability of same analysis in c. 209A and c. 258E cases). We have reasoned that “the defendant had the right -- and an opportunity -- to be heard in the trial court about the extension of the ex parte order and, when it was extended, [s]he had the right to be heard in this court on the issue whether that decision was proper” (citation omitted). Noelle N., supra. Here, however, we have determined that the extension was not proper. Because the extension was based on the same inadequate factual basis as the ex parte order -- the allegations in the plaintiff's affidavit -- we conclude that the ex parte order should not have issued. At the hearing after notice, therefore, the ex parte order should have been terminated with an order directing law enforcement agencies to destroy all records of the order. See Gassman, 90 Mass. App. Ct. at 6, citing Allen v. Allen, 89 Mass. App. Ct. 403, 403 (2016), and Quinn v. Gjoni, 89 Mass. App. Ct. 408, 414 (2016). See also Carroll v. Kartell, 56 Mass. App. Ct. 83, 87-88 (2002) (in abuse prevention order context, both ex parte order and extension order following hearing after notice vacated where neither supported by sufficient facts). We therefore vacate both the ex parte order and the extension order and remand the matter for further proceedings consistent with this decision.

Although this outcome obviates the need to address the remaining issues in the defendant's appeal, we nonetheless take this opportunity to address the defendant's due process claims to guide further hearings in this matter.

2. Due process. A hearing for a 258E order must comport with fundamental requirements of due process. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4 (2019). These requirements include fair notice of the proceedings and a meaningful opportunity to be heard, the latter of which includes the defendant's right to testify, to present evidence, and to cross-examine the witnesses against her. See Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 788 (2022). At a hearing after notice, it is the plaintiff's burden to establish her entitlement to relief as well as a continuing need for the order of protection. See Iamele, 444 Mass. at 736, citing Frizado v. Frizado, 420 Mass. 520, 596 (1995). “No presumption arises from the fact that a prior order has issued.” Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010). “An ex parte order is entitled to no weight and the issue must be relitigated anew.” Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 258 n.11 (2022).

Here, the judge appeared to shift the burdens by accepting the plaintiff's affidavit and then challenging the defendant to disprove the allegations contained within it. The defendant had no burden to testify or present evidence. Furthermore, due process required that she be heard on her legal argument that the plaintiff's claims did not meet the elements for a 258E order. Instead, the defendant was repeatedly shut down when attempting to make her valid legal points, incorrectly told that she had no right to make objections, and subjected to questioning pointedly challenging her veracity while assuming the veracity of the plaintiff. Then, the plaintiff's counsel was invited to cross-examine the defendant. The plaintiff, who had the burden, testified after the defendant and was not cross-examined at all. The record reflects that the defendant did not have a meaningful opportunity to be heard. Collectively, these irregularities raise troubling due process concerns.

Conclusion. The orders issued on December 5, 2024, and January 16, 2025 (as modified on February 5, 2025), are vacated. The case is remanded to the District Court for the entry of an order directing the appropriate law enforcement agency to destroy all records of the vacated orders, in accordance with G. L. c. 258E, § 9, third par.³

So ordered.

FOOTNOTES

1.   The defendant contends that she was denied due process when her motion to vacate the ex parte order, originally scheduled for January 23, 2025, was “brought forward” on January 15 and rescheduled to January 16, the same date as the hearing after notice. She argues that she was unaware that she would be required to go forward on her motion because she had not received notice of the rescheduling. Although we agree that due process requires adequate notice, see In re Adoption of Zev, 73 Mass. App. Ct. 905, 905-906 (2009), and we understand the confusion caused by the last-minute rescheduling, we discern no legal prejudice since the points raised in the motion to vacate were essentially the same as those made to defend against the 258E order -- that the plaintiff's allegations were insufficient to support such an order.

2.   At the one-year renewal date, while this appeal was pending, the order was extended for an additional two years.

3.   The docket reflects that the January 16, 2025 extension order has expired, but a subsequent, two-year extension order has since entered on January 16, 2026. The defendant filed a motion to vacate that order, the denial of which is currently the subject of a separate, pending appeal in this court. Our disposition here is without prejudice to the defendant's filing a renewed motion in the trial court to vacate the January 16, 2026 order, to the extent that the issuance of that order was solely predicated on the same allegations as the original ex parte and first extension orders.