Allyah Ayesh v. Jonathan M. Bullis ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 29, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ALLYAH JASEM SALIM AYESH, No. 47794-7-II
Respondent,
v.
JONATHAN MICHAEL BULLIS, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Jonathan Bullis appeals the superior court’s orders denying his motions
for revision and reconsideration of a renewed protection order entered against him. Bullis argues
that the superior court abused its discretion and violated his fair hearing right. Because the superior
court neither abused its discretion nor violated Bullis’s fair hearing right, we affirm.
FACTS
I. PROTECTION ORDER
In February 2014, Allyah Ayesh obtained a one-year protection order against Bullis. The
superior court commissioner found that Bullis had perpetrated domestic violence against Ayesh
and presented a threat to her physical safety. The protection order required Bullis to “participate
in treatment and counseling,” defined as a “domestic violence perpetrator treatment program
approved under RCW 26.50.150 or counseling [at a] State certified provider that provides
current WAC compliant treatment.” Clerk’s Papers (CP) at 57 (emphasis added). The
No. 47794-7-II
protection order additionally required that “[e]valuations . . . be [completed] within 30 days and
include releases of information to permit the Provider to contact [Ayesh].” CP at 57. The
protection order barred Bullis from contacting Ayesh or coming within 500 feet of her home or
workplace.1
II. TREATMENT EVALUATION
In March 2014, Bullis was evaluated by the “Social Treatment Opportunity Programs”
(STOP).2 CP at 63. A domestic violence treatment professional assessed Bullis and found that
“[p]ower and control issues germane to the etiology of domestic violence were not apparent.” CP
at 65. STOP recommended that instead of enrolling in its domestic violence treatment program,
Bullis “continu[e] with his Mental Health counseling and . . . taking his medication as
recommended by his physician.”3 CP at 65. Bullis did not enroll in STOP following this
assessment.
III. RENEWAL MOTION
In February 2015, Ayesh petitioned to renew the protection order for another year. In her
petition, Ayesh stated that she was “still in fear of [Bullis] due to his violent actions.” CP at 4.
Ayesh testified at the renewal hearing that she continued to live in fear of Bullis and that no
1
Bullis unsuccessfully appealed the protection order to this court, arguing that the evidence was
insufficient to support the order’s issuance. Ayesh v. Bullis, noted at 188 Wash. App. 1022 (2015).
2
STOP is a domestic violence treatment program that claims to provide chapter 388.60 WAC-
compliant treatment.
3
Nothing in the record indicates that Bullis otherwise participated in counseling or taking
prescribed medication. In fact, Bullis conceded at the renewal hearing that he had not done “any”
treatment.
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No. 47794-7-II
provider had contacted her, despite the protection order’s release of information requirement.
Bullis opposed renewal. He claimed that his submission to the STOP evaluation constituted
compliance with the protection order and that he had avoided all contact with Ayesh, although he
admitted that he had not done any treatment. Bullis claimed that Ayesh’s fear of him was
unreasonable because he had not contacted her or violated the protection order.
The superior court commissioner concluded that Bullis had not complied with the
protection order because he had not participated in domestic violence treatment. The superior
court commissioner granted an order that renewed the protection order until February 2016.
IV. REVISION MOTION
In March 2015, Bullis moved to revise the renewal order; he restated his renewal hearing
arguments. Bullis submitted STOP’s evaluation, which stated that STOP did not recommend
domestic violence counseling, and his own declaration, which stated that he had had no contact
with Ayesh since the original order’s entry and that he never wanted to have any contact with
Ayesh again. Bullis claimed that he had signed a release of information at the evaluation that
permitted STOP to contact Ayesh.
In May 2015, the superior court held a revision hearing. The superior court reviewed the
renewal hearing transcript, including Ayesh’s prior testimony that she was still in fear of Bullis’s
acts of violence against her and that no provider had contacted her. Bullis told the superior court
that he had been “rejected” from STOP and that he “wasn’t required to attend anything for the
program.” Report of Proceedings (RP) (May 8, 2015) at 6. The superior court stated that Bullis
“hasn’t done the treatment that was ordered.” RP (May 8, 2015) at 8. The superior court
“appreciat[ed] . . . that [Bullis’s] real position” was that he had never committed an act of domestic
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No. 47794-7-II
violence. RP (May 8, 2015) at 9. The superior court commented also that it “recognize[d] STOP
might be different, and perhaps that’s why [Bullis] went to STOP, because he thought he could get
an assessment that didn’t require treatment.” RP (May 8, 2015) at 8. Although Bullis claimed to
have signed releases of information that permitted STOP to contact Ayesh, the superior court noted
that no provider had contacted Ayesh. The superior court denied Bullis’s revision motion.
On May 11, 2015, Bullis requested transcripts of the revision hearing from the court
reporter. On Friday, May 15, 2015, the court clerk e-mailed Bullis that the superior court judge
had not yet approved the transcripts or returned them to the clerk. By Monday, May 18, 2015, the
deadline for filing his reconsideration motion, Bullis had not received the transcripts.
V. RECONSIDERATION MOTION
On May 18, 2015, Bullis moved for reconsideration of the denial of his revision motion.
He argued that STOP’s recommendation that he not enroll in treatment satisfied the protection
order’s counseling requirement and that he had signed releases at STOP. Bullis contended that his
revision hearing had not been fair because the judge’s comment that Bullis may have gone to STOP
to avoid treatment implied that he was “‘gaming’” the system. CP at 107. And Bullis claimed that
the superior court clerk’s failure to provide the revision hearing transcript before the
reconsideration motion’s filing deadline had prejudiced his reconsideration motion. The superior
court denied the reconsideration motion.
Bullis appeals the denial of his revision and reconsideration motions.
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No. 47794-7-II
ANALYSIS
I. REVISION ORDER
Bullis argues that the superior court both abused its discretion and deprived him of a fair
hearing when it denied his revision motion. His abuse of discretion arguments are that the superior
court wrongly determined that Bullis had not complied with the protection order, Ayesh did not
establish the factors required to renew a protection order, and Bullis had proven by a
preponderance of the evidence that he was not likely to reoffend. His fair hearing argument is that
the superior court evinced bias against him in a comment. Bullis’s arguments fail.
A. ABUSE OF DISCRETION
Bullis contends that the superior court abused its discretion in two ways when it denied his
revision motion. First, Bullis argues that the superior court abused its discretion when it concluded
that he had not complied with the protection order’s treatment or counseling requirement because
he had not undergone counseling at a chapter 388.60 WAC-compliant provider. Related to
compliance, Bullis argues both that the superior court should have concluded that “no treatment is
still treatment” and that the superior court did not have the authority to conclude that Bullis had
not complied with the protection order after STOP had found Bullis did not need counseling. Br.
of Appellant at 9-10. Second, Bullis argues that the superior court abused its discretion because
there were no tenable grounds to renew the protection order. We hold that the superior court did
not abuse its discretion when it denied Bullis’s revision motion.
1. STANDARD OF REVIEW
We review the superior court’s decision to renew a protection order for abuse of discretion:
we reverse the decision if it is manifestly unreasonable or exercised on untenable grounds. Barber
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No. 47794-7-II
v. Barber, 136 Wash. App. 512, 516, 150 P.3d 124 (2007); State ex rel. Carroll v. Junker, 79 Wash. 2d
12, 26, 482 P.2d 775 (1971). We review questions of law de novo. Knight v. Knight, 178 Wn.
App. 929, 937, 317 P.3d 1068 (2014).
2. PROTECTION ORDER NONCOMPLIANCE AND AUTHORITY TO ORDER COUNSELING
Bullis argues that his “timely submi[ssion] to a domestic violence perpetrator treatment
program evaluation” constituted compliance with the protection order. Br. of Appellant at 13. He
contends that the superior court abused its discretion when it denied his revision motion because
during the hearing, the superior court stated that Bullis did not comply with the order. Specifically,
Bullis claims that the superior court improperly “substitute[d] its opinion regarding domestic
violence perpetrator treatment for that of a State-certified domestic violence perpetrator treatment
provider.” Br. of Appellant at 14. We disagree.
a. LEGAL PRINCIPLES
“Upon notice and after hearing,” a superior court may enter a protection order that forbids
further contact between the parties, requires the restrained party “to participate in a domestic
violence perpetrator treatment program approved under RCW 26.50.150,” or imposes “other relief
as [the superior court] deems necessary for the protection of the petitioner.” RCW 26.50.060(1),
(e), (f), (h). If the petitioner timely moves to renew the order, the superior court “shall grant” the
renewal “unless the [restrained party] proves by a preponderance of the evidence that the
respondent will not resume acts of domestic violence against the petitioner . . . when the order
expires.” RCW 26.50.060(3).
Chapter 26.50 RCW governs domestic violence perpetrator programs; it requires the
Department of Social and Health Services to adopt standards to approve these programs, which
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No. 47794-7-II
are found in chapter 388-60 WAC. RCW 26.50.150. The WAC standards define a “participant”
in a program as “the client enrolled in the . . . program.” WAC XXX-XX-XXXX. A domestic violence
perpetrator treatment program must focus on holding participants accountable for “abuse that
occurred” and changing participants’ “violent and abusive behaviors.” WAC XXX-XX-XXXX(2). For
instance, a program must require participants to attend weekly group therapy, sign releases of
information, and contract for services with the treatment program. WAC XXX-XX-XXXX.
b. AUTHORITY OF THE SUPERIOR COURT
Bullis attacks the superior court’s authority to require him to attend counseling.4 He claims
that the superior court erred because it “elected to substitute its opinion regarding domestic
violence perpetrator treatment for that of a State-certified domestic violence perpetrator treatment
provider.” Br. of Appellant at 14. We disagree.
The superior court’s authority to order counseling is a question of law we review de novo.
See Knight, 178 Wash. App. at 937. When the superior court grants a protection order, it has the
authority to order “particip[ation]” in a RCW 26.50.150-compliant treatment program for domestic
violence perpetrators and “other relief [the superior court] deems necessary.” RCW
26.50.060(1)(e), (f).
WAC XXX-XX-XXXX defines a “participant” as one who “enroll[s] in [a] domestic violence
perpetrator treatment program.” (Emphasis added.) Only by enrolling in the program could Bullis
“participate” in treatment as the protection order required. See WAC XXX-XX-XXXX, -0075. Thus,
“participation” in counseling requires actually enrolling in counseling. See WAC XXX-XX-XXXX.
4
Insofar as Bullis attacks the legislative policy behind RCW 26.50.060, that argument is not
appropriately before us.
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No. 47794-7-II
The superior court acted within its authority when it required Bullis to enroll in counseling
regardless of STOP’s opinion that Bullis did not need to enroll in STOP’s program.
c. COMPLIANCE WITH “TREATMENT OR COUNSELING” REQUIREMENT
Bullis’s argument is essentially that the decision of STOP, a chapter 388.60 WAC-
compliant counseling program, not to enroll him in treatment is nevertheless “treatment.”
The protection order required Bullis to “participate in treatment and counseling,” defined
as a “domestic violence perpetrator treatment program approved under RCW 26.50.150 or
counseling [at a] State certified provider that provides current WAC compliant treatment.” CP
at 57 (emphasis added). As discussed above, one participates in treatment only when one enrolls
in a domestic violence perpetrator treatment program. WAC XXX-XX-XXXX. But Bullis conceded
at both the renewal and the revision hearing that he never enrolled in State-certified counseling or
domestic violence treatment program.
The superior court properly determined that Bullis had not participated in the ordered
treatment.5 Accordingly, the superior court did not abuse its discretion when it concluded that
Bullis had not complied with the protection order.
We conclude that the superior court had the authority to order Bullis to enroll in counseling
and that the superior court properly denied Bullis’s revision motion on the basis of Bullis’s lack
of compliance.
5
And although STOP did recommend that Bullis “continue[ ] with his Mental Health counseling
and . . . taking his medication as recommended by his physician,” the record indicates that Bullis
did not comply with that recommendation. CP at 65.
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No. 47794-7-II
3. THE SUPERIOR COURT HAD TENABLE GROUNDS TO DENY REVISION
Bullis addresses the statutory grounds that require a court to renew a protection order. He
argues that the superior court abused its discretion when it denied his revision motion because
Ayesh’s fear of Bullis was not reasonable. Bullis further argues that he proved by a preponderance
of the evidence that he would not resume acts of domestic violence because he had had no contact
with Ayesh. We disagree.
Under RCW 26.50.060(3), renewal of a protection order is mandatory upon the petitioner’s
motion unless the respondent “proves by a preponderance of the evidence that the respondent will
not resume acts of domestic violence against the petitioner.” We have previously held that the
petitioner must show past abuse and present fear. Barber, 136 Wash. App. at 516. The statute does
not, however, require new or recent acts of domestic violence or contact if the present fear of
violence is reasonable. In re Marriage of Freeman, 169 Wash. 2d 664, 675, 239 P.3d 557 (2010).
Because Ayesh presented evidence of past abuse and present fear and because Bullis failed
to prove by a preponderance of the evidence that he would not resume acts of violence against
Ayesh, we hold that the superior court did not abuse its discretion when it denied Bullis’s revision
motion. The superior court had tenable grounds upon which to deny the revision motion.
a. REASONABLE PRESENT FEAR OF VIOLENCE
Bullis argues that Ayesh’s claimed fear of him was unreasonable because he and Ayesh no
longer interacted and because he had complied with the terms of the order.6 We disagree.
6
In his reply, Bullis argues for the first time that Ayesh’s fear of him is unreasonable because he
now lives in Michigan. We do not consider Bullis’s argument because evidence that Bullis had
relocated was not before the superior court and because the record contains no such evidence.
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No. 47794-7-II
Under Freeman, to “renew . . . a protection order, the victim does not need to prove a new
act of domestic violence if the present likelihood of a recurrence is reasonable.” 169 Wash. 2d at
674-75. The Freeman court held that the likelihood of a recurrence was unreasonable given the
restrained party’s “10-year compliance” with the protection order and his avoidance of any contact
with the petitioner. 169 Wash. 2d at 675.
At the revision hearing, the superior court considered evidence that Ayesh still feared
Bullis because of his past violence against her. Here, unlike Freeman, merely a year had elapsed
and despite the protection order’s release requirement, no treatment provider or counseling
program had contacted Ayesh. Because Bullis had apparently not received any domestic violence
counseling or treatment, Ayesh’s fear of Bullis was reasonable. The superior court did not abuse
its discretion in determining that Ayesh presently and reasonably feared Bullis.
b. LIKELIHOOD OF RESUMING DOMESTIC VIOLENCE
Bullis claims that he met his burden to show that he would not resume acts of domestic
violence when he showed that he had no contact with Ayesh since the original order and because
he never wanted to contact Ayesh again. Bullis also maintains that he complied with the protection
order’s counseling or treatment requirement. We disagree.
The superior court was required to renew the protection order upon Ayesh’s showing of
fear unless Bullis proved by a preponderance of the evidence that he would not resume acts of
domestic violence against Ayesh. RCW 26.50.060(3). Here, Bullis’s uncontroverted failure to
enroll in domestic violence treatment or counseling, despite the protection order’s requirement to
do so, and his failure to accept responsibility, were reasonable bases upon which the superior court
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No. 47794-7-II
could conclude that Bullis had failed to prove by a preponderance of the evidence that he would
not resume acts of domestic violence against Ayesh.
Thus, there were tenable grounds for the superior court to determine that Bullis had not
met his burden of proving that he was unlikely to continue to perpetrate domestic violence against
Ayesh. We hold that the superior court did not abuse its discretion when it denied Bullis’s revision
motion.
B. FAIR HEARING
Bullis argues that the superior court violated the appearance of fairness doctrine and denied
him a fair hearing when the superior court made an improper comment at the revision hearing. We
conclude that the superior court’s comment did not violate the appearance of fairness doctrine or
deny Bullis a fair hearing.
An alleged violation of the appearance of fairness doctrine is a legal issue we review de
novo. In re Disciplinary Proceeding Against King, 168 Wash. 2d 888, 899, 232 P.3d 1095 (2010).
A trial court is presumed to act without bias or prejudice. King, 168 Wash. 2d at 904 (quoting In re
Pers. Restraint of Davis, 152 Wash. 2d 647, 692, 101 P.3d 1 (2004)). A claimed violation of the
appearance of fairness doctrine requires evidence of a judge’s actual or potential bias. State v.
Gamble, 168 Wash. 2d 161, 187-88, 225 P.3d 973 (2010) (quoting State v. Chamberlin, 161 Wash. 2d
30, 37, 162 P.3d 389 (2007)). The test for bias is whether “a reasonably prudent, disinterested
observer would conclude that the parties received a fair, impartial, and neutral hearing.” Gamble,
168 Wash. 2d at 187.
Bullis argues that the superior court’s comment that perhaps Bullis went to STOP because
“‘he thought he could get an assessment that didn’t require treatment’” was “highly prejudicial in
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No. 47794-7-II
general and . . . exceedingly offensive” because it implied he sought to “‘gam[e]’ the system” and
“impugn[ed] his integrity.” Reply Br. of Appellant at 20. But Bullis’s arguments fail to amount
to bias under the reasonable observer test. As discussed above, the superior court’s determination
of whether to renew the protection order required it to look at all the evidence before it. Given all
the evidence, including the fact that Bullis was in noncompliance with the protection order, a
reasonable, disinterested observer would conclude that parties received a fair, impartial, and
neutral hearing.
We hold that the record shows that the superior court did not evince bias. Thus, the superior
court did not violate the appearance of fairness doctrine or Bullis’s right to a fair hearing.
II. RECONSIDERATION ORDER
Bullis challenges the superior court’s order denying reconsideration. First, he argues that
the superior court abused its discretion when it denied his reconsideration motion because the court
had abused its discretion when it denied his revision motion. Second, he argues that the superior
court violated his right to a fair hearing and violated the appearance of fairness doctrine when it
withheld the revision hearing transcript. We conclude these arguments fail.
A. ABUSE OF DISCRETION
Bullis argues that the superior court abused its discretion when it denied his reconsideration
motion. Bullis makes the same argument that he made regarding the denial of his revision motion:
the superior court wrongly determined that Bullis did not comply with the protection order at the
revision hearing. Thus, Bullis concludes that it was an abuse of discretion for the superior court
to deny his reconsideration motion, just as it was an abuse of discretion for the court to deny his
revision motion. We affirm the denial of Bullis’s reconsideration motion.
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No. 47794-7-II
We review a trial court’s denial of reconsideration for abuse of discretion. Rivers v. Wash.
State Conf. of Mason Contractors, 145 Wash. 2d 674, 685, 41 P.3d 1175 (2002). Bullis moved for
reconsideration under CR 59(a).7 For the reasons addressed above in the revision section, Bullis’s
argument that he had complied with the treatment requirement fails. Thus, the superior court did
not abuse its discretion when it denied Bullis’s reconsideration motion.
B. FAIR HEARING AND APPEARANCE OF FAIRNESS
Bullis argues that the superior court denied him his due process right to a fair hearing and
violated the appearance of fairness doctrine when it withheld the revision hearing transcript until
after the deadline for his reconsideration motion. We disagree.
We review claimed violations of the due process right to a fair hearing and the appearance
of fairness doctrine de novo. In re Welfare of J.M., 130 Wash. App. 912, 920, 125 P.3d 245 (2005);
King, 168 Wash. 2d at 899. The right to a fair hearing prohibits both actual bias and the probability
of unfairness. Chamberlin, 161 Wash. 2d at 38 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.
Ct. 1456, 43 L. Ed. 2d 712 (1975)).
7
Bullis’s reconsideration motion argued that the superior court had erroneously determined that
he had not complied with the order and prejudicially implied that Bullis was “‘gaming’” the
system. CP at 107. Bullis claimed “[i]rregularity in the proceedings of the court . . . or abuse of
discretion, by which such party was prevented from having a fair trial” (CR 59(a)(1)), “[e]rror in
law occurring at the trial and objected to at the time by the party making the application” (CR
59(a)(8)), and “[t]hat substantial justice ha[d] not been done” (CR 59(a)(9)). CP at 100.
Even if Bullis had addressed the three subsections of CR 59(a) on appeal, his arguments
would fail. As discussed, the superior court properly determined that Bullis had not complied with
the protection order and the superior court was not biased against Bullis at the revision hearing.
Thus, Bullis could not succeed even if he argued that the superior court abused its discretion when
it did not find an irregularity in the proceedings, an error in law, or that Bullis had been deprived
of substantial justice.
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No. 47794-7-II
When reviewing an alleged violation of the appearance of fairness challenge, we presume
a trial court acted without bias. King, 168 Wash. 2d at 904 (quoting Davis, 152 Wash. 2d at 692). The
party who claims there has been an appearance of fairness doctrine violation must provide evidence
of actual or potential bias. State v. Post, 118 Wash. 2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992).
Evidence of a judge’s actual or potential bias invalidates the result of a hearing when a reasonable
observer would conclude from the evidence that the party could not have received a fair, impartial,
and neutral hearing and that the trial court was prejudiced against the party. See Gamble, 168
Wash. 2d at 187-88. “[J]udicial bias” is an “inclination or tendency; prejudice; [or] predilection”
against a party to a case. BLACK’S LAW DICTIONARY 192 (10th ed. 2014).
Bullis claims that he has presented evidence of bias by showing that the superior court
“inexplicabl[y] with[held]” the revision hearing transcript. Reply Br. of Appellant at 23. He relies
on the court clerk’s statement that the superior court judge had not yet approved the transcript for
release by the business day before his reconsideration motion deadline. Without the transcript,
Bullis claims that he could not obtain a declaration from STOP explaining why STOP did not
contact Ayesh.
Bullis does not explain why he could not obtain the STOP declaration without the revision
hearing transcript. Bullis also fails to show that he could not have amended his reconsideration
motion to include any arguments suggested by the revision transcript if needed. And Bullis fails
to show how withholding the revision hearing transcript equates to actual bias or the probability
of unfairness. See Chamberlin, 161 Wash. 2d at 38. On this record, a reasonable observer could not
conclude that the superior court showed bias against Bullis when it did not approve the transcript
for release before the reconsideration motion deadline or that Bullis could not have received a fair,
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No. 47794-7-II
impartial, and neutral hearing. See Gamble, 168 Wash. 2d at 187-88. We hold that Bullis fails to
show a violation of the appearance of fairness doctrine or that he did not have a fair hearing.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
BJORGEN, C.J.
LEE, J.
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