Roake v. Delman

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I DATE JAN 1 1
GHiEF JUSTICE
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MEGAN ROAKE,
No. 93456-8
Respondent,
V. En Banc
MAXWELL DELMAN,
Petitioner.
Filed JAN 1 1
JOHNSON,J.—This case involves interpretation of chapter 7.90 RCW,the
Sexual Assault Protection Order(SAPO)Act(SAPO Act). The statute establishes
a special proceeding for a victim of sexual assault to obtain a civil protection order.
The procedure for a SAPO is as follows: A victim of sexual assault files a petition
with the court. RCW 7.90.040(1). Under the statute, the petition contains two
requirements:(1) an allegation of"the existence of nonconsensual sexual conduct
or nonconsensual sexual penetration" and (2) an affidavit "stating the specific
statements or actions made at the same time ofthe sexual assault or subsequently
thereafter, which give rise to a reasonable fear offuture dangerous acts." RCW
7.90.020(1). Based on the filing of the petition, a temporary protection order may
be granted. RCW 7.90.050. The statute authorizes the issuance of a temporary
Roake v. Delman, No. 93456-8
order, ex parte, without prior notice to a respondent. RCW 7.90.110. The court
must then order a full hearing to be held within 14 days. RCW 7.90.050.
In this case, the commissioner granted the petitioner's, Megan Roake's,
temporary SAPO,and it was served. The respondent. Maxwell Delman,filed a
motion to dismiss, challenging both the assertion of nonconsensual assault and the
claim ofreasonable fear offuture dangerous conduct. At the later hearing, the trial
court dismissed the petition, holding that Roake's petition was legally insufficient
because the petition failed to allege a reasonable fear offuture dangerous acts.
Roake appealed the dismissal, and the Court of Appeals reversed and remanded.
The Court of Appeals held that the final order statute, RCW 7.90.090, does not
require proof of a reasonable fear offuture dangerous acts. Roake v. Delman, 194
Wash. App. 442, 377 P.3d 258 (2016), review granted, 187 Wash. 2d 1008, 386 P.3d
1098 (2017). It further held that the SAPO Act provides no basis for considering
the validity ofthe temporary order in determining whether to grant a final
protection order. We reverse. We hold that RCW 7.90.130(2)(e) provides the
procedure and opportunity to contest the sufficiency and validity of the petition
and temporary order, and that the trial court correctly held that Roake's petition
was legally insufficient under RCW 7.90.020(1).
Roake v. Delman, No. 93456-8
Facts and Procedural History
In May 2014, Roake and Delman, both freshmen at the University of
Washington(UW), met at a party. After the party, Roake and Delman returned to
Roake's dorm, where Roake alleges a sexual assault occurred.
In September 2014, when Roake returned to school for classes, she reported
the incident to the Seattle Police Department(SPD). SPD investigated the claim,
did not file charges, and closed the case. Roake then reported the incident to the
university student conduct office, which issued a no contact order.^ During the next
several months, Roake occasionally saw Delman on campus and twice went to
parties hosted by a student group she knew he belonged to. Delman never spoke to
Roake, phoned her, or came to her residence hall or classes.
In January 2015, Roake petitioned for a SAPO,seeking to restrain Delman
from having any contact with her at her residence or workplace or on the UW
campus. In her petition, she alleged that Delman had committed an act of
nonconsensual sexual conduct or nonconsensual sexual penetration. Roake asserted
that she had encountered Delman several times on campus, that she did not know
Delman prior to the night ofthe alleged sexual assault, and that she did "not know
what he [was] capable of." Clerk's Papers(CP)at 4. The court granted an ex parte
^ Delman complied with this order, which is not before us.
Roake V. Delman,No. 93456-8
temporary protection order and scheduled a full hearing on whether to issue a final
order for two weeks later.
The ex parte order was served on Delman, who responded by filing
pleadings asserting that the sexual acts were consensual, and that since the incident
eight months earlier, he had not tried to contact Roake and had complied with the
university's protection order. Also, he argued that because the temporary order
failed to specify the time or locations of Roake's classes or activities on campus,
and because Roake had not provided that information, it was impossible for him to
avoid inadvertent contact with her.
In response, Roake filed affidavits of friends who attested to her good
character, repeated her statements about Delman's alleged assault and how it had
/ affected her, and stated that they believed her. At the February 15, 2015, hearing,
Roake began to testify, but because Delman had not received the declarations on
which she was relying, the hearing was continued. Shortly before the next hearing
date, Delman filed a motion to dismiss Roake's petition generally, and specifically
under CR 12(c).^ He filed declarations of his family and friends attesting to his
good character and disputing Roake's claims of assault.
^ "Motion for Judgment on the Pleadings. After the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment and disposed of
as provided in rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by rule 56." CR 12(c).
Roake v. Delman, No. 93456-8
At the hearing, Delman challenged the ex parte temporary protection order
arguing that it should not have issued because the petition and affidavits Roake
submitted, and the transcript of the ex parte hearing, did not establish the existence
of a reasonable fear of future dangerous acts, as the statute required, and that the
petition should be dismissed. His attorney argued that Delman's 10 months of
avoiding contact with Roake and complying with the university's no contact order
made a final protection order unnecessary. Roake responded that her statement in
her petition that she "did not know what Delman was capable of was sufficient to
demonstrate her reasonable fear of future dangerous acts under the act, and that she
did not have to prove the existence of acts giving rise to reasonable fear of future
dangerous acts to support issuance of a final SAPO. No other assertions or
statements, threats, or subsequent actions by Delman were asserted.
The trial court granted the motion to dismiss, holding that the petition failed
to establish Roake had any reasonable fear of future dangerous acts from Delman,
and that oh that same basis, the temporary order that was issued was invalid. The
trial court entered an order of dismissal. Roake appealed the dismissal, and the
Court of Appeals reversed.
The Court of Appeals, in its statutory interpretation analysis, determined that
the SAPO petition has two elements:"(1) an allegation that a sexual assault
occurred and (2)the specific statements or actions, other than the assault itself.
Roake v. Delman, No. 93456-8
that cause the petitioner to reasonably fear future dangerous acts from the
respondent." Roake, 194 Wn. App. at 450(emphasis added). It noted that while
Roake's petition failed to establish the reasonable fear element, any initial pleading
requirements of a SAPO petition do not control the determination of whether to
grant a final protection order. Roake, 194 Wn. App. at 456("[T]he SAPO Act
provides no basis for considering the validity of the temporary order in
determining whether to grant a final protection order.") It held that to obtain a final
protection order under RCW 7.90.090, the petitioner is not required to prove the
existence of statements or acts giving rise to a reasonable fear offuture dangerous
acts. The Court of Appeals noted the inconsistency in the statutes but dismissed
this by focusing on the language ofthe final order statute, RCW 7.90.090, which,
under that section's language (read in isolation from the petition statute, RCW
7.90.020), does not reference "a reasonable fear offuture dangerous acts."^ It also
^ RCW 7.90.020(1) states,"A petition for relief shall allege the existence of
nonconsensual sexual conduct or nonconsensual sexual penetration, and shall be accompanied by
an affidavit made under oath stating the specific statements or actions made at the same time of
the sexual assault or subsequently thereafter, which give rise to a reasonable fear offuture
dangerous acts, for which relief is sought. Petitioner and respondent shall disclose the existence
of any other litigation or of any other restraining, protection, or no-contact orders between the
parties."
Roake v. Delman,No. 93456-8
held that procedurally, Delman's motion was not properly before the trial court.'^
Delman then sought discretionary review, which we granted.
Analysis
The Court of Appeals addressed three statutory issues:(1)if or when a
respondent may challenge the validity of a petition or ex parte temporary order,(2)
what a SAPO petition requires before a court issues an ex parte temporary order,
and (3) what the final order statute requires before a court issues a final protection
order.
Before resolving the statutory issues, it is necessary to understand the
procedural posture under which the trial court based its order of dismissal. As
noted earlier, this action was instituted when Roake filed a petition for a SAPO.
Delman appeared and filed a motion to dismiss. The motion included a general
request for dismissal and, more specifically, dismissal under CR 12(c). Both sides
filed declarations, although nothing from the trial court's order indicates whether
they were considered. In our review of the declarations, Roake does not assert that
Delman violated the university's protection order. There are no allegations that
threats, actions, or incidents occurred after the initial incident. The trial court, after
reviewing the pleadings and perhaps considering the declarations to determine
It held that the motion was not a CR 12 motion because it relied on matters outside the
pleadings and it was not a motion for summary judgment because it was not "filed and served
not later than 28 calendar days before the hearing." CR 56(c).
Roake v. Delman, No. 93456-8
whether later incidents or facts were necessary to rule on the motion, dismissed the
petition, providing in the denial order,"The petitioner failed to establish that she
had any reasonable fear of future dangerous acts from the respondent and therefore
the temporary order was invalid." CP at 98. That constitutes the basis ofthe trial
court's decision.^
On appeal, the Court of Appeals held that the trial court's denial rested on an
incorrect interpretation ofthe SAPO Act because the SAPO Act provides no basis
for considering the validity ofthe temporary order. Roake and amicus Legal Voice
argue that this is appropriate because the statutes are unambiguous, and because
Delman had notice and the opportunity to be heard. We disagree.
Essentially, as Delman argues, a commissioner could enter a temporary
order even where a petition fails to allege a statutorily required element, and no
procedure exists for a respondent to challenge the deficiency in the petition
because the requirements for the issuance of a final order differ from those needed
initially. In the briefing before us, Delman argues that the Court of Appeals'
interpretation implicates Delman's due process right to challenge a deficient SAPO
petition.^ See CONST, art. I, § 3.
^ Because the trial eourt dismissed on this basis, it did not reach or resolve the issue
raised concerning the claim of sexual assault, which the Court of Appeals remanded for
resolution.
® Procedural due process imposes constraints on governmental decisions that deprive
individuals of'"liberty"' or '"property."' Mathews v. Eldridge, 424 U.S. 319, 332,96 S. Ct. 893,
8
Roake V. Delman,No. 93456-8
We disagree with the Court of Appeals that the SAPO Act provides no basis
for considering the validity ofthe temporary order. If a respondent alleges a
meritorious defense to the sufficiency of a temporary SAPO,under the statute he
or she may petition the court to reopen the order under RCW 7.90.130, which
states;
(2) A sexual assault protection order shall further state the
following:
(e)For ex parte temporary sexual assault protection orders, that
the respondent may petition the court, to reopen the order if he or she
did not receive actual prior notice ofthe hearing and if the respondent
alleges that he or she had a meritorious defense to the order or that the
order or its remedy is not authorized by this chapter.
(Emphasis added.)
Here, Delman effectively did that by filing the motion to dismiss. Based on
the motion, the trial court heard argument on the motion on the date the final
hearing was scheduled. This was proper procedure established under RCW
7.90.130, which provides that a respondent may petition the court to reopen the ex
47 L. Ed. 2d 18 (1976)."The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.'" Mathews,424 U.S. at 333 (quoting
Armstrong v. Mama,380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62(1965))."Due process is
a flexible concept in which varying situations can demand differing levels of procedural
protection." Gourley v. Gourley, 15^8 Wn.2d 460, 467, 145 P.3d 1185 (2006)(plurality opinion)
(citing Mathews,424 U.S. at 334). In evaluating the process due in a particular situation, we
consider(1)the private interest impacted by the government action,(2)the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards, and (3)the government interest, including the
additional burden that added procedural safeguards would entail. Mathews,424 U.S. at 335.
Roake v. Delman, No. 93456-8
parte temporary order where the respondent alleges that he or she had a meritorious
defense to the order. Delman argued that Roake's petition was legally insufficient,
which is such meritorious defense.
Reviewing the trial court's denial order discloses the procedural posture
supporting the decision. While the order reflects that the court hearing is pursuant
to the petitioner's request, as mentioned, Delman had filed a motion to dismiss,
asserting the allegations ofthe petition were legally insufficient. The trial court
denial order expressly provided,"For a temporary sexual assault protection order,
reasons for denial ofthe order are: The Petitioner failed to establish that she had
any reasonable fear of future dangerous acts from the Respondent and therefore the
temporary order was invalid." CP at 98.
Furthermore, although the denial order appears to be a preprinted form
order, no indication appears on that order that the trial court considered testimony
or other supplemental declarations in resolving any disputed facts, nor did the trial
court enter any findings offact as would typically be included to resolve disputed
facts. The denial order can be characterized only as granting the motion to dismiss.
The Court of Appeals misunderstood the procedural posture and focused its
analysis on RCW 7.90.090(l)(a), which establishes the requirements necessary for
issuance of a final protection order. That statute provides:
Ifthe court finds by a preponderance ofthe evidence that the
petitioner has been a victim of nonconsensual sexual conduct or
10
Roake v. Delman,No. 93456-8
nonconsensual sexual penetration by the respondent, the court shall
issue a sexual assault protection order; provided that the petitioner
must also satisfy the requirements of RCW 7.90.110 for ex parte
temporary orders or RCW 7.90.120 for final orders.
The Court of Appeals held that under this section, no express requirement exists
that a petitioner establish (or reestablish) specific statements or actions that give
rise to a reasonable fear of future dangerous acts. While this conclusion may be
supportable, it misses the point. As established earlier, the trial court denial order
in granting the motion to dismiss the petition did not reach or resolve any issues
required for issuance of a final order.
Moreover, the statutory analysis, from a practical standpoint, will always
focus on what issues are in dispute. Where, as here, a respondent brings a
challenge to the sufficiency of the initial petition, either under RCW 7.90.130 or by
way of a motion to dismiss as filed here, a trial court resolves that claim on the
pleadings. In a different situation where a respondent disputes the claim of sexual
assault, the trial court will conduct a further fact finding hearing and resolve that
issue based on the testimony or evidence submitted. That further hearing will
necessarily depend on how the issue is presented procedurally and what, if
anything, is contested by a respondent, and will proceed to resolve the claims at
issue.
11
Roake v. Delman,No. 93456-8
We reverse the Court of Appeals and reinstate the trial court's dismissal.
WE CONCUR:
12
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
No. 93456-8
GORDON McCLOUD, J. (concurring)—I agree with the lead opinion that
ROW 7.90.020(1) requires a petitioner seeking a sexual assault protection order to
allege and prove, with specific statements or actions, a reasonable fear of future
dangerous acts by the alleged attacker. That statute makes such allegations and proof
mandatory prerequisites to the issuance of a temporary protection order. I write
separately to explain why that is so, and why that statute also makes such allegations
and proof mandatory prerequisites to issuance of a final protection order.
FACTUAL BACKGROUND
Megan Roake and Maxwell Delman, who were both students at the University
of Washington(UW),met at a party on May 9,2014,and exchanged phone numbers.
Clerk's Papers(CP)at 4. Around 1:00 a.m. that night, Roake invited Delman to her
dormitory, where they proceeded to a private bathroom. Roake and Delman agree
that they engaged in consensual kissing, but they dispute whether subsequent sexual
acts were consensual. Roake states that Delman digitally penetrated her, bit her and
slammed her head into the wall during oral sex, attempted to penetrate her with his
1
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
penis, and disregarded her order to stop and her act of pushing him away. Roake
states there was a significant amount of blood on the floor and on her clothing as a
result.
After this single encounter between Roake and Delman, classes ended and
Roake returned home for the summer. She and Delman had no further contact during
this time. Roake did not report the event to campus authorities or to the police. Over
the summer, Roake began attending counseling sessions, including EMDR (eye
movement desensitization and reprocessing) therapy, several times per week. She
asserts that EMDR therapy helped her recall the event.
In September 2014, Roake returned to campus for fall classes. At this point,
she reported the May 9th incident to the Seattle Police Department. The police
conducted a one-month investigation. As a result, they declined to prosecute. Roake
then reported the incident to the UW's office of Community Standards and Student
Conduct (CSSC). CP at 35-36. The CSSC began an investigation process into the
May 2014 incident. Roake obtained a no-contact order against Delman from this
campus office.
After the CSSC no-contact order issued, Roake occasionally saw Delman in
passing on campus. According to declarations that Roake filed, she twice attended
parties hosted by a student group that she knew Delman belonged to, and once she
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
chose not to leave when she saw him at that party. According to those same
declarations, Roake stated that Delman did not attempt to contact her, instead, he
acted like he did not recognize her. Both parties agree Delman has complied with
the CSSC no-contact order. And it is also undisputed on this record that Roake's
friends began following Delman to his own campus activities, not the other way
around, and that at least once Roake's friend engaged Delman in a conversation at a
party while Roake was present.
PROCEDURAL HISTORY
On January 14, 2015, Roake filed a petition for a SAPO (sexual assault
protection order) against Delman in connection with the May 2014 incident. CP at
1-5. Roake stated that she sought the SAPO because "I have reported the incident to
UW authorities and a no[]-contact order was entered but since the holidays, I have
encountered the respondent several times on campus. We also have mutual friends
and can end up in the same places and similar areas on campus." CP at 4. Roake
sought to restrain Delman from having any contact with her at her residence, at her
workplace, or on the UW campus. In her petition, she stated that Delman had
committed a single act of nonconsensual sexual conduct or nonconsensual sexual
penetration. CP at 3. The petition—filed on a form—also contained the standard
form language: that that act "g[a]ve rise to a reasonable fear of future dangerous
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
acts." Id. Roake then described the alleged assault itself as the specific conduct that
caused her to fear Delman. Instead of describing "specific" facts that could support
an allegation of reasonable fear of future harm (as RCW 7.90.020(1) requires), her
statement, contained within the petition itself, stated that she knew Delman only
from that night eight months earlier and that she did ''not know what he was capable
of." CP at 4(emphasis added).
On January 14, 2015, a King County court commissioner issued an ex parte
temporary SAPO restraining Delman from contacting Roake, and set a later date for
a full hearing on the final order.
Delman did not receive notice of the ex parte temporary SAPO hearing and
thus did not appear. Report of Proceedings (RP)(Jan. 14, 2015) at 4-11. He was
served with the petition and temporary SAPO in the middle of a class the next day,
January 15, 2015. CP at 12.
Delman then filed a response, stating that since the May 2014 incident eight
months earlier, he had not attempted to contact Roake and he had fully complied
with the CSSC no-contact order. He also sought clarification of Roake's campus
schedule and activities, along with identities oftheir mutual friends, so that he could
better comply with the temporary order, since that order did not specify the time or
location of Roake's classes. Roake refused to provide this information. Delman
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
stated it was therefore impossible for him to avoid inadvertent contact with Roake.
CP at 10. Delman also argued that Roake's claims were insufficient to support a
final protection order. CP at 11.
Roake responded with material to support her petition for a final protection
order. She filed declarations from several friends who attested to her good character,
explained that Roake had a reputation for not allowing sexual activity "below [the]
waist," relayed their eyewitness impressions of Roake (but not of the disputed acts)
from the night of May 9, 2014, restated what Roake had told them about what
happened on that night, gave their impressions of how the encounter appeared to
affect Roake, and stated that they believed her. CP at 17. Some of the declarations
also stated that Roake had recalled additional details about her encounter with
Delman only after engaging in EMDR therapy, and that the therapy allowed Roake
to understand the encounter with Delman had been a nonconsensual assault.
At the hearing on whether to issue the final SAPO order, on February 15,
2015, Delman's counsel realized that it had not received the declarations on which
Roake was relying. The judge therefore granted his motion to continue the hearing
five days, until February 20, 2015.
Delman then moved to dismiss. CP at 33-70. He argued that the petition
failed to allege, and Roake failed to prove, what the statute requires: "specific
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
statements or actions made at the same time of the sexual assault or subsequently
thereafter, which give rise to a reasonable fear of future dangerous acts, for which
relief is sought." RCW 7.90.020(1); CP at 33-43. Delman pointed to the eight
months that had passed since the initial encounter, during which time he had avoided
contact with Roake and complied with the university's no-contact order, which he
believed undercut Roake's claim of reasonable fear of future harm. CP at 42-43.
Delman added that he was transferring to an out-of-state school and was moving at
the end of the month which made Roake's fear of future harm even more
unreasonable. CP at 43. Lastly, Delman argued that Roake's fear was unreasonable
because the sexual acts were consensual. CP at 2. Delman filed several declarations
from family, friends, and others, attesting to his good character and reliability. CP
at 44-68. Delman challenged Roake's recalled memories of nonconsent as not
credible because they were retrieved through questionable EMDR therapy. CP at
40-41. For these reasons, Delman argued that the ex parte temporary order should
not have been issued and that a final protective order should not be issued in its place
because Roake's petition, attached affidavit, and transcript of the ex parte hearing
all failed to establish "reasonable fear" of dangerousness, as required by the SAPO
statute.
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
Roake responded that the assault alone, coupled with her fear of Delman
based on her not knowing him, not knowing what he was capable of, and knowing
they went to the same school and periodically inadvertently crossed paths was
sufficient to establish a reasonable fear of dangerous acts. RP (Feb. 20, 2015) at 65-
66. She argued that the SAPO statute did not require her to prove the existence of
additional acts giving rise to a reasonable fear of future dangerous acts to support
the final SAPO.
The trial court agreed with Delman that Roake had to allege and prove a
reasonable fear of future dangerous acts. It found that Roake did not present
"statements or actions . . . which give rise to a reasonable fear of future dangerous
acts" as ROW 7.90.020(1)required, and granted Delman's motion to dismiss without
holding a full factual hearing on the request for a final protection order. Id. at 78-
79. It denied Roake's petition and terminated the temporary SAPO.'Id.\ CP at 97-
99.
The Court of Appeals reversed. Roake v. Delman, 194 Wash. App. 442, 377
P.3d 258, review granted, 187 Wash. 2d 1008, 386 P.3d 1098 (2017). It ruled that the
SAPO statute required Roake to allege both a sexual assault and "specific statements
'The trial court dismissed Roake's petition before the burden shifted to Delman to argue
against the sexual assault allegation. The briefs therefore emphasize the "reasonable fear"
requirement rather than Delman's refutation ofthe sexual assault allegation.
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
or actions" giving rise to a "reasonable fear of future dangerous acts." But it also
held that that the SAPO statute did not require Roake to actually prove those latter
allegations; she had to only allege them. Id. at 451-52. That court also held that the
trial court lacked the authority to dismiss Roake's petition as a matter oflaw because
the parties had submitted declarations on Delman's motion to dismiss and the judge
failed to exclude other extrinsic documents from its consideration, thus converting
his CR 12(c) motion into a CR 56 motion for summary judgment, which was not
permitted in this context. Id. at 455-56.
ANALYSIS
I. RCW 7.90.020(1) Requires a Petitioner Seeking a Temporary or Final
SAPO To Allege and Prove a Reasonable Fear of Future Dangerous
Acts by the Alleged Attacker
A. The Language ofthe Statute Creating the SAPO Remedy Requires
an Allegation ofReasonable Fear ofFuture Dangerous Acts
The SAPO statute requires a petitioner to allege the existence of both (1) a
sexual assault and (2) "specific statements or actions . . . which give rise to a
reasonable fear of future dangerous acts." RCW 7.90.020(1). This is clear from
RCW 7.90.020(1), which states in part:
A petition or relief shall allege the existence of nonconsensual sexual
conduct or nonconsensual sexual penetration, and shall be accompanied
by an affidavit made under oath stating the specific statements or
actions made at the same time of the sexual assault or subsequently
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
thereafter, which give rise to a reasonable fear offuture dangerous acts,
for which relief is sought.
RCW 7.90.020 appears at the beginning ofthe chapter devoted to SAPOs,ch.
7.90 RCW. It is not a section that applies only to ex parte temporary restraining
orders; it is the section that defines the action and hence applies to both temporary
and final orders. And in defining the action, RCW 7.90.020(1) contains both the
sexual assault prerequisite and the future dangerous acts prerequisite. It explicitly
applies to any "petition for a sexual assault protection order," which includes both
temporary and final SAPOs. RCW 7.90.020.
To be sure, the SAPO chapter's other subsections—^particularly RCW
7.90.090—create some confusion. The reason is that despite the unambiguous
language of RCW 7.90.020 requiring such proof, another portion of the SAPO
chapter, RCW 7.90.090, discussing the proof needed to obtain a temporary or final
protection order lacks the language about "specific statements or actions .. . which
give rise to a reasonable fear of future dangerous acts."
But other language in RCW 7.90.090(1)(a) cross-references that "future
danger[ousness]" requirement. RCW 7.90.090(l)(a) provides:
Ifthe court finds by a preponderance ofthe evidence that the petitioner
has been a victim of nonconsensual sexual conduct or nonconsensual
sexual penetration by the respondent, the court shall issue a sexual
assault protection order; provided that the petitioner must also satisfy
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
the requirements ofRCW 7.90.110for ex parte temporary orders and
RCW 7.90.120forfinal orders.
(Emphasis added.) The cross-referenced statute, RCW 7.90.110(1), states:
An ex parte temporary sexual assault protection order shall issue if the
petitioner satisfies the requirements of this subsection by a
preponderance ofthe evidence. The petition shall establish that:
(a) The petitioner has been a victim of nonconsensual sexual
conduct or nonconsensual sexual penetration by the respondent; and
(b) There is good cause to grant the remedy, regardless of the
lack of prior service of process or of notice upon the respondent,
because the harm which that remedy is intended to prevent would be
likely to occur if the respondent were given any prior notice, or greater
notice than was actually given, of the petitioner's efforts to obtain
judicial relief.
(Emphasis added.)
That cross-reference to RCW 7.90.110(1) clarifies that the "petition" must
"establish" a reasonable fear of future dangerous acts to obtain a SAPO.
Specifically, RCW 7.90.110(1) contains two prerequisites to issuance of a SAPO,
just as RCW 7.90.020, creating the cause of action, does. The first prerequisite, in
RCW 7.90.110(l)(a), is a sexual assault. But the second prerequisite, in subsection
(b),is "good cause"to take the drastic step ofissuing an ex parte order without notice
to the respondent because "the harm which that remedy is intended to prevent would
^ The cross-referenced statute, RCW 7.90.120, provides no separate or additional
requirements, it just guarantees a "full hearing" with respondent present absent
circumstances not applicable here. RCW 7.90.120(l)(a).
10
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
be likely to occur" if prior notice were given. What is the "harm ... that remedy is
intended to prevent"? It must certainly be the harm identified in RCW 7.90.020(1)
defining the cause of action, that is, "future dangerous acts" that the complainant
"reasonabl\y\ fear[s]." (Emphasis added.)
I say that for five reasons, discussed infra.
B. The Language ofthe Temporary SAPO Statute Specifically Cross-
References the Statute Creating the SAPO Remedy with Its
Prerequisites to Relief
First, as noted above, the language "harm . . . that remedy is intended to
prevent," RCW 7.90.110(l)(b), must be a cross-reference to something. And the
most logical harm for it to cross-reference is the harm specifically identified in RCW
7.90.020,the statute creating and defining the SAPO claim. It would make no sense
for the harm referenced to be a broad, general statement intended to capture all the
harm identified in the legislative history, rather than the harm the statute specifically
captures and the judge must specifically determine.
C. The Legislature DeclaredIts Intent ThatSAPO Is To Protect against
Future Harms, Not Remedy Past Ones
Second, the harm described in the legislative declaration beginning this
chapter is another reason. RCW 7.90.005. Because the "fundamental objective of
statutory construction is to ascertain and to carry out the Legislature's intent," the
"preamble or statement ofintent can be crucial to interpretation of a statute." Towle
11
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
V. Dep't of Fish & Wildlife, 94 Wash. App. 196, 207, 971 P.2d 591 (1999). The
legislative declaration in RCW 7.90.005 states:
Sexual assault is the most heinous crime against another person short
of murder. Sexual assault inflicts humiliation, degradation, and terror
on victims. According to the FBI [Federal Bureau of Investigation], a
woman is raped every six minutes in the United States. Rape is
recognized as the most underreported crime; estimates suggest that only
one in seven rapes is reported to authorities. Victims who do not report
the crime still desire safety andprotectionfromfuture interactions with
the offender. Some cases in which the rape is reported are not
prosecuted. In these situations, the victim should be able to seek a civil
remedy requiring that the offender stay awayfrom the victim. It is the
intent of the legislature that the sexual assault protection order created
by this chapter be a remedy for victims who do not qualify for a
domestic violence order of protection.
(Emphasis added.) This RCW 7.90.005 shows a legislative intent to prevent future
harm to petitioners who need that "protection," not to provide compensation or
impose punishment for past acts. This analysis is supported by RCW 7.90.090(5),
which provides that "[mjonetary damages are not recoverable as a remedy."
D. The Statutory Language Requiring "Reasonable Fear of Future
Dangerous Acts" Was Specifically Added by Amendment
Third, as Delman notes,"[T]he Legislature rejected the version of the SAPO
Act initially proposed by amicus[Legal Voice], which lacked the language requiring
a reasonable fear of future dangerous acts. Compare [SUBSTITUTE H.B.] 2576 § 5[,
59th Leg., Reg. Sess.]([Wash.] 2006), with Laws of 2006, ch. 138 § 5." Resp't's
12
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
Answer to Amicus Curiae Br. at 8; Pet. for Review at 18-19. This prior proposed but
rejected version ofthe statute required only an allegation ofa sexual assault and "the
specific facts and circumstances from which reliefis sought." H.B.2576,at 3-4,59th
Leg., Reg. Sess.(Wash. 2006).
The legislature must have added the "reasonable fear" language for a reason.
The clearest reason is to limit prospective relief for sexual assault victims to cases
where there is a real need to prevent future interaction with a respondent who poses
a demonstrable likelihood of danger—not to allow prospective relief of the sort
offered by this injunctive-type remedy any time a sexual assault is alleged and
proved. See S.B. Rep. ON Substitute H.B. 2576, at 2, 59th Leg., Reg. Sess.(Wash.
2006)("The amended bill requires that the petitioner for a sexual assault protection
order must set forth, in the affidavit, the statements or actions made that gave rise to
a reasonable fear of future dangerous acts, for which the order is sought."); accord
Pet. for Review at 17-18; Resp't's Answer to Amicus Curiae Br. at 8-12.
E. The Statutory Requirement of Future Harm Is Unique among
Protection Order Statutes
Fourth, this additional future harm requirement is unique. The SAPO statute
is the only Washington protective order statute that requires it. Compare RCW
7.90.020(1), with RCW 26.50.030(1)(domestic violence protection order petition
must "allege the existence of domestic violence, and shall be accompanied by an
13
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
affidavit made under oath stating the specific facts and circumstances from which
relief is sought"), and RCW 7.92.050(1) (stalking protection order petition shall
"alleg[e] that the person has been the victim of stalking conduct committed by the
respondent"), awJRCW 10.14.040(1)(petition for antiharassment protection order
shall "allege the existence of harassment and shall be accompanied by an affidavit
made under oath stating the specific facts and circumstances from which relief is
sought").
The legislature thus clearly knows how to relieve a petitioner from the burden
of showing future dangerousness by specific statements or acts. But in this statute,
it did not relieve the petitioner of that burden—it placed that burden squarely on the
petitioner. This difference between the SAPO petition requirements and other
protection order petition requirements indicates an intent that SAPO petitioners
make an additional showing beyond an assault itself to obtain relief.
F. ItIs Absurd To Interpret the SAPO Language To Require Allegation
ofan Element ofFuture Harm That Need Not Ever Be Proved
Fifth, Roake's argument—adopted by the dissent—interprets the SAPO
statute to require an allegation of reasonable fear that need not ever be proved.
Dissent at 1. That is an absurd interpretation. I can think of no other claim where
the petitioner must allege the required grounds for relief, but need not ever prove
them. This court will avoid an absurd result even if it must disregard unambiguous
14
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
statutory language to do so. State v. McDougal, 120 Wash. 2d 334, 351-52, 841 P.2d
1232(1992). In this case, we don't have to ignore anything to avoid an absurd result.
All we need to do is adhere to the plain language ofRCW 7.90.020(1), which creates
the SAPO claim and sets forth its prerequisites. It establishes two prerequisites. One
is the existence of a sexual assault. But the other is specific proof that petitioner
reasonably fears future dangerous acts by the alleged attacker.^
G. Conclusion as to Allegations and ProofNeeded To Obtain All
SAPOs
I therefore concur in the lead opinion's holding that a petitioner seeking a
SAPO must allege and prove both a sexual assault and a reasonable fear of future
dangerous acts, through specific acts or statements, and not just allege or prove the
assault itself. And I agree with the lead opinion that Roake's petition lacks such
specific statements or actions supporting a reasonable fear of such future
dangerousness."^
^ Any other interpretation also risks violating due process clause protections, as the lead
opinion acknowledges. CONST, art. I, § 12.
Roake filed her petition on a standard court form that instructs her to "describe" the sexual
assault that gave rise to her fear. CP at 3. But that form does not instruct her to describe
what the statute requires, i.e., the "specific statements or actions" that give rise to not just
a general fear, but "a reasonable fear of future dangerous acts" by the attacker. RCW
7.90.020(1). The lack of clarity in the form is probably a reflection ofthe lack of clarity in
the statute. RCW 7.90.020 makes both the existence of a sexual assault and the existence
of a reasonable fear offuture dangerous acts prerequisites to SAPO relief. But as discussed
above, it is not completely clear about what must be alleged, and what must be proved, to
15
Roake(Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
I note, however, that the lead opinion limits its holding to temporary SAPOs.
Lead opinion at 11. As the discussion above shows, however, the portion of the
SAPO act establishing these prerequisites to relief covers all SAPOs, not just
temporary ones. Ch. 7.90 RCW. It covers final SAPOs also. It is therefore
impossible to conclude, as the Court of Appeals did, that this statutory scheme
relieves the petitioner of the burden of actually proving these mandatory
prerequisites to SAPO relief to obtain a final SAPO.
II. Roake Failed To Establish That She Is Entitled to a SAPO
In her petition for a SAPO,Roake alleged no acts or statements separate from
the sexual assault itself. The proof she presented was a written statement in the
petition itself. That statement contains details about the alleged sexual assault. It
shows that that alleged assault occurred eight months earlier. It shows no threats or
purposeful contact by Delman since then. Instead, it indicates that such purposeful
conduct likely did not occur, even though it easily could have. CP at 4("We also
have mutual friends and can end up in same places and similar areas of campus.").
The petition lacks the statutorily required "specific statements or actions" that
caused petitioner "reasonable" fear of notjust happenstance meetings, but of"future
obtain each type of SAPO. I believe that the legislature requires petitioners to prove both
the assault and the reasonable fear of future dangerous acts to obtain any type of SAPO,
and that the form should clearly state that.
16
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
dangerous acts." RCW 7.90.020(1). In fact, the petition's statement says that she
did not know anything about what Delman might do in the future.
Roake's petition therefore lacks the mandatory prerequisite to SAPO relief of
"specific statements or actions" constituting "reasonable" fear of"future dangerous
acts." For that reason, she was not entitled to either a temporary or final SAPO.^
CONCLUSION
I would hold that RCW 7.90.020 requires a SAPO petitioner to allege and
prove not just a sexual assault, but also reasonable fear of future dangerous acts,
through specific statements or acts separate from the acts inherent in an assault, to
prevail. I would hold that these requirements apply to all SAPOs, temporary and
final.
I therefore concur.
^ The lead opinion like the trial court, assumes that issuance of a temporary SAPO is a
prerequisite to issuance of a final SAPO. Lead opinion at 11. The dissent does not
explicitly address that issue (because it finds the petition sufficient) but seems to assume
that issuance of a temporary SAPO is not a prerequisite to issuance of a final SAPO.
Dissent at 5. 1 would not reach that issue because 1 find the petition fails to satisfy the
statutory prerequisites to both temporary and final SAPOs.
17
Roake (Megan) v. Delman (Maxwell), No. 93456-8
(Gordon McCloud, J., concurring)
) L,
18
Roake(Megan) v. Delman (Maxwell)
No. 93456-8
STEPHENS, J. (dissenting)—Contrary to the lead opinion's interpretation,
RCW 7.90.020(1) does not require a petitioner seeking a sexual assault protection
order to explicitly allege or prove a fear of future dangerous acts by the alleged
attacker. Instead, it includes an affidavit requirement to assure that any allegation
of sexual assault is supported with substantive details. Id. (directing petitioners to
include "specific statements or actions," including any acts or words "which give
rise to a reasonable fear"). The lead opinion's interpretation transforms the
modifying phrase "which give rise" into an additional "statutorily required element."
Lead opinion at 8. In doing so, it creates unnecessary confusion as to the
requirements for temporary and permanent protection orders and ignores the reality
Roake (Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
that experiencing a sexual assault is itself a reasonable basis for ongoing fear. I
respectfully dissent.
The purpose ofthe Sexual Assault Protection Order(SAPO)Act(SAPO Act),
chapter 7.90 RCW,is to provide a straightforward and accessible civil remedy for
sexual assault survivors. The SAPO Act recognizes that while sexual assault is "the
most heinous crime against another person short of murder," it often goes
unpunished. RCW 7.90.005. Rape is among the most underreported crimes and,
even when reported, not always prosecuted. See id. When a rape occurs but is not
prosecuted, a civil protection order is often the only remedy available to a survivor.
However, a survivor whose assault stems from a single encounter with the
perpetrator, outside the context of an ongoing relationship, may not qualify for
existing protection orders. See, e.g., RCW 26.050.010(2)-(3), (6) (restricting
domestic violence protection orders to those "in a dating relationship" or "household
members" with the perpetrator); RCW 7.92.020(3), .030(l)(c) (requiring stalking
protection order petitioners to allege a pattern of stalking conduct, rather than an
isolated incident). The SAPO fills this gap.^
^ "It is the intent ofthe legislature that the sexual assault protection order created by
this chapter be a remedy for victims who do not qualify for a domestic violence order of
protection." RCW 7.90.005.
-2-
Roake(Megan) v. Delman (Maxwell),93456-8 (Stephens, J., dissenting)
The SAPO's role is clear: to protect survivors who report sexual assaults.
Specifically, "the victim should be able to seek a civil remedy requiring that the
offender stay away from the victim." RCW 7.90.005. To achieve this purpose, the
SAPO petition process must be straightforward and accessible to survivors, many of
whom seek judicial relief without legal assistance. See, e.g., RCW 7.90.180
(requiring the development ofinstructional brochures and a standard SAPO petition
form); Br. of Amicus Curiae Legal Voice at 15 (noting that the majority of SAPO
petitioners are pro se). To obtain a SAPO,the petitioner(1) must submit a petition
alleging that a sexual assault occurred that is supported by (2) a sworn affidavit
detailing the defendant's "specific statements or actions," and (3) appear at a
hearing. RCW 7.90.020(1),.050.
RCW 7.90.020(1) details the petition and affidavit requirements:
A petition for relief shall allege the existence of nonconsensual sexual
conduct or nonconsensual sexual penetration, and shall be accompanied by
an affidavit made under oath stating the specific statements or actions made
at the same time of the sexual assault or subsequently thereafter, which give
rise to a reasonable fear of future dangerous acts, for which relief is sought.
Petitioner and respondent shall disclose the existence of any other litigation
or of any other restraining, protection, or no-contact orders between the
parties.
A SAPO petition is legally sufficient ifthe petitioner(1)alleges that "nonconsensual
sexual conduct or nonconsensual sexual penetration" occurred and (2)supports this
allegation with a sworn affidavit detailing the assault. RCW 7.90.020(1). These
-3-
Roake (Megan) v. Delman (Maxwell),93456-8 (Stephens, J., dissenting)
streamlined requirements are in keeping with the Legislature's intent to make the
SAPO process accessible.^ Nevertheless, the SAPO Act balances the interests of
petitioners and respondents. Based on the petition alone, RCW 7.90.110(1)
authorizes the court to grant immediate relief in the form of an ex parte temporary
protection order (TPO)—^but a final SAPO requires notice and a hearing. RCW
7.90.050, .120(l)(a)(requiring a hearing no later than 14 days after issuance of a
TPO).
Following the hearing, RCW 7.90.090 authorizes the court to grant a final
SAPO. RCW 7.90.090(l)(a) states:
If the court finds by a preponderance of the evidence that the petitioner has
been a victim of nonconsensual sexual conduct or nonconsensual sexual
penetration by the respondent,the court shall issue a sexual assault protection
order; provided that the petitioner must also satisfy the requirements of
RCW 7.90.110 for ex parte temporary orders or RCW 7.90.120 for final
orders.
See also RCW 7.90.120 (detailing hearing notice requirements and SAPO duration
guidelines). Thus, a final SAPO is based on a single substantive finding: that the
respondent more likely than not sexually assaulted the petitioner. As the Court of
Appeals correctly noted, the burden of proof at the final order stage is distinct from
^ Although RCW 7.90.020(1)separately lists the petition and affidavit requirements,
Washington courts have fiirther streamlined the petition process by combining both into a
single, standardized form. See Wash. Courts, Petition for Sexual Assault Protection Order,
Form SA 1.015 (June 2014), http://www.courts.wa.gov/forms/?fa=forms.contribute
&formID=65 [https://perma. cc/LM2C-DT2K].
-4-
Roake(Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
the procedural requirements associated with filing a SAPO petition. See Roake v.
Delman, 194 Wash. App. 442, 451, 377 P.3d 258 (2016)("Notably, RCW 7.90.090
does not require that a petitioner prove each ofthe allegations that must be included
in a SAPO petition."), review granted, 187 Wash. 2d 1008 (2017). With the
opportunity to consider evidence and testimony from both the petitioner and
respondent, at the hearing and final order stage the court is appropriately focused on
the single essential finding: whether a sexual assault occurred.
In this case, the trial court dismissed Roake's petition without determining
whether she was assaulted by Delman. Clerk's Papers(CP)at 98. Roake submitted
her initial petition, described her alleged sexual assault, and was granted a IPG. Id.
at 1-8. Before the court could conduct a full SAPO hearing, Delman moved to
dismiss. Id. at 33. Delman argued that Roake's petition and the initial TPO were
legally deficient because RCW 7.90.020(1) requires petitioners to allege sexual
assault and separately demonstrate their reasonable fear offuture dangerous acts. Id.
at 42. The trial court granted Delman's motion, stating that Roake "failed to
establish that she had any reasonable fear of future dangerous acts from the
Respondent and therefore the temporary order was invalid." Id. at 98. The Court of
Appeals and a plurality of this court similarly read RCW 7.90.020(1) as requiring
-5-
Roake(Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
SAPO petitions to separately allege both sexual assault and reasonable fear. See
Roake, 194 Wash. App. at 453; lead opinion at 1, 8. They are mistaken.
RCW 7.90.020(1) states that a SAPO petition "shall be accompanied by an
affidavit made under oath stating the specific statements or actions made at the same
time ofthe sexual assault or subsequently thereafter, which give rise to a reasonable
fear offuture dangerous acts." The Court of Appeals and the lead opinion read this
language as requiring separate allegations of(1) sexual assault and (2) reasonable
fear. See Roake, 194 Wn.App. at 453;lead opinion at 8. This conclusion is incorrect
for two reasons. First, the statutory text does not require a petition to restate the
obvious—^that the petitioner is reasonably afraid ofthe attacker in light ofthe alleged
sexual assault.^ Second, even if RCW 7.90.020(1) required such an allegation, it
may be satisfied by describing "statements or actions" associated with the
underlying sexual assault."^
^ The SAPO Act's first paragraph sets forth the Legislative declaration that"[sjexual
assault inflicts humiliation, degradation, and terror on victims." RCW 7.90.005(emphasis
added). Because the SAPO Act recognizes that fear is a by-product of sexual assault, a
SAPO petitioner whose affidavit describes his or her assault necessarily describes the
"specific statements or actions ... which give rise to a reasonable fear." RCW 7.90.020(1).
This interpretation is consistent with SAPO instructions listed on the Washington
Courts' website, which focus on the importance of describing the assault in detail. See
Wash. Courts, Instructions for Petition for Sexual Assault Protection Order, Form SAi-
1.015, at 3(Jrme 2010)("Describe any nonconsensual sexual conduct The more details
you can provide, the more helpful it is to the judge."), http://www.courts.wa.
gov/forms/?fa=forms.contribute&formID=65 [https://perma. cc/MD63-YGAJ]. The
instructions give three examples, each focused on improving a petition by adding
-6-
Roake (Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
Nothing in RCW 7.90.020(1) requires an allegation of reasonable fear of
future dangerous acts as a separate statutory element. Instead, a careful reading of
the SAPO Act's operative language confirms that a legally sufficient petition needs
only two components:(1)an allegation ofsexual assault accompanied by(2)a sworn
affidavit describing the defendant's "specific statements or actions." RCW
7.90.020(1). Among the statements or actions petitioners should include are any
"which give rise to" reasonable fear of future harm. Id. The reasonable fear
language, in context, is an explanatory phrase modifying the "specific statements or
actions" that shall be alleged. It is not a separate substantive requirement. As a
modifying phrase, it relates back to the affidavit requirement, providing guidance as ,
to the kinds of"specific statements or actions" the petition must include. Id.
Interpreting RCW 7.90.020(l)'s reasonable fear language as providing
guidance to petitioners makes sense in the SAPO Act's procedural context.
Although a final SAPO requires notice and a hearing, courts determining whether to
grant an ex parte TPO must rely primarily on the SAPO petition and accompanying
affidavit. See, e.g., RCW 7.90.110(1). A robust petition thus serves the interest of
both petitioners and the courts. Such a petition is more credible, making it, from the
petitioner's perspective, more likely to succeed; it also provides a factual basis for
descriptive detail about the assault. Id. at 4. None of the examples mention separate
allegations of"reasonable fear." Id.
-7-
Roake (Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
the court to corroborate key facts and assess the consistency of any allegations.
Requiring the formality of a sworn affidavit further communicates the seriousness
of the proceeding to the petitioner, potentially protecting respondents against
frivolous accusations.
Perplexingly, the Court of Appeals acknowledged that "a survivor may
reasonably fear the person who assaulted her based on the assault alone" yet
interpreted RCW 7.90.020 as requiring the petitioner to cite "specific statements or
actions, other than the assault itself, that cause the petitioner to reasonably fear
future dangerous acts from the respondent." Roake, 194 Wash. App. at 449-50.
Understandably, the court cited no statutory language in support of the italicized
text, which appears to be in tension with the legislative declaration in RCW
7.90.005, discussed supra.^ Indeed, this approach invites absurd results: if the
assault itself cannot form the basis of a required showing, any petition based on a
single assault by an unknown assailant would be legally insufficient, though this is
exactly the type of assault the SAPO Act is meant to address. See RCW 7.90.005
(SAPOs are intended to "be a remedy for victims who do not qualify for a domestic
violence order of protection").
^ The Court of Appeals instead expressed concem that any other interpretation
would render RCW 7.90.020(l)'s "specific statements and actions" language redundant.
See Roake, 194 Wash. App. at 449. As discussed, this language is not redundant because it
ensures SAPO petitions include details corroborating the sexual assault allegation.
-8-
Roake(Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
Based on the record and the plain language ofRCW 7.90.020(1),I would hold
that Roake's SAPO petition was legally sufficient. Using the provided petition and
affidavit form, she alleged nonconsensual sexual conduct and penetration
perpetrated by Delman. See RCW 7.90.020(1); CP at 4. She also certified under
penalty ofpeijury that her allegations were true and correct, satisfying the affidavit's
"under oath" requirement. RCW 7.90.020(1). Finally, Roake described Delman's
"specific statements or actions made at the same time of the sexual assault," id.,
alleging that Delman forced his penis into her mouth, forced his fingers and tongue
into her vagina, and bit her genitals. CP at 4. With these two elements—-an
allegation of sexual assault and a signed declaration containing corroborating
details—Roake's SAPO petition was legally sufficient. See RCW 7.90.020(1). The
SAPO Act, at least at the petition stage, requires no more.^
Finding a SAPO petition to be legally sufficient does not guarantee that a
petitioner will receive a permanent protection order. At the hearing, the petitioner
must prove "by a preponderance ofthe evidence that the petitioner has been a victim
of nonconsensual sexual conduct or nonconsensual sexual penetration by the
^ Even if RCW 7.90.020(1) required Roake to demonstrate reasonable fear, a fair
reading of the record shows she has done so. Roake's petition describes her assault in
graphic detail, alleging that forced penetration and biting of her genitals left her underwear
and skirt "soaked in blood" and a pool of blood "about the size of a basketball hoop" under
the sink. CP at 4. It is absurd to suggest that Roake needs to allege anything further before
her fear of Dehnan can be considered "reasonable."
-9-
Roake (Megan) v. Delman (Maxwell),93456-8 (Stephens, J., dissenting)
respondent." RCW 7.90.090(l)(a). Roake's allegations, if substantiated, seem to
support issuance of a SAPO. Id.\ CP at 4. However, making such a finding is
properly the realm ofthe trial court.^
I would resolve only the question squarely before us and hold that the trial
court erred by rejecting Roake's petition for "fail[ing] to establish that she had any
reasonable fear of future dangerous acts from the Respondent." CP at 98. RCW
7.90.020(1) places no such burden on a petitioner, requiring only that a SAPO
petition allege that a sexual assault occurred and include specific details in the
accompanying affidavit describing what happened. Under a proper interpretation of
the statute's requirements, Roake's SAPO petition was legally sufficient.
CONCLUSION
I would affirm the Court of Appeals in result only, reversing the trial court's
improper dismissal of Roake's petition and remanding the case for fact-finding
under RCW 7.90.090.
As the lead opinion recognizes,it appears the trial court dismissed Roake's petition
before it "considered testimony or other supplemental declarations in resolving any
disputed facts, nor did the trial court enter any findings offact." Lead opinion at 10.
-10-
Roake(Megan) v. Delman (Maxwell), 93456-8 (Stephens, J., dissenting)
(=>
)
-11-
Roake v. Delman
No.93456-8
GonzAlez, J.(concurring in dissent)—share the concerns raised in Justice
Stephens's dissent. This case should be remanded for further proceedings.
Further, this case is our first opportunity to opine on the requirements of a sexual
assault protection order(SAPO)petition and I fear the primarily procedural
conclusions reached by the lead opinion may cause serious consequences for future
SAPO petitions. I therefore agree with the dissent.
Megan Roake made allegations in her SAPO petition about her fear of
Maxwell Delman, allegations that if proved true would entitle her to relief. Roake
alleges that Delman forced her to perform sexual acts. Clerk's Papers(CP)at 4
(Roake's graphic description of the sexual assault). Her petition says that both of
them are students at the University of Washington(UW)and, despite a university
no contact order, she "encountered [Delman] several times on campus" and said
she does "not know what he is capable of." Id. The lead opinion, without
explanation, agrees with the trial court that Roake "failed to establish that she had
any reasonable fear offuture dangerous acts" by Delman, id. at 98-99(Denial
1
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
Order); lead opinion at 8, 10. And it is unclear what standard the lead opinion
applies to arrive at this conclusion when there was no hearing on a final order in
which Roake could prove her allegations are true. See Rodriguez v. Zavala, 188
Wash. 2d 586, 598, 398 P.3d 1071 (2017)(reviewing decision to deny a protection
order after hearing for an abuse of discretion).
The lead opinion holds that no hearing on the final order was required in this
case because "a trial court resolves [the] claim on the pleadings." Lead opinion at
10. But, notably, the lead opinion fails to address the merits of Delman's motion
to dismiss Roake's SAPO petition under CR 12(c)(motion for judgment on the
pleadings).^ See id. at 4. Instead, the lead opinion says that legal insufficiency is a
ground to dismiss a SAPO,but fails to discuss why the facts alleged in Roake's
petition are legally insufficient to warrant a full hearing. See Halvorson v. Dahl,
89 Wash. 2d 673, 674,574 P.2d 1190(1978)("a challenge to the legal sufficiency of
the plaintiffs allegations must be denied unless no state of facts which plaintiff
could prove, consistent with the complaint, would entitle the plaintiff to relief on
the claim"(emphasis added)). The lead opinion's decision will cause confusion if
it does not discuss the standard under which courts are to review CR 12(c)
dismissals of SAPO petitions.
^ "After the pleadings are closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings." CR 12(c).
2
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
Standard of Review
We generally review CR 12(c) dismissals de novo. P.E. Sys., LLC v. CPI
Corp., 176 Wash. 2d 198, 203, 289 P.3d 638(2012). The court is empowered to
depart from the general rules of civil proceedings because SAPO proceedings are
"special proceedings," but only to the extent SAPO proceedings are inconsistent
with the Civil Rules. CR 81(a)("Except where inconsistent with rules or statutes
applicable to special proceedings, these rules shall govern all civil proceedings.").^
Without more clarity, the lead opinion runs the risk of suggesting that this ruling
affects civil proceedings outside the confines of SAPO petitions.
"We treat a CR 12(c) motion . . . identically to a CR 12(b)(6) motion." P.E.
Sys., 176 Wash. 2d at 203. Dismissal under either subsection is "appropriate only
when it appears beyond doubt" that the plaintiff cannot prove any set of facts that
"would justify recovery." San Juan County v. No New Gas Tax, 160 Wash. 2d 141,
164, 157 P.3d 831 (2007); Gorman v. Garlock, Inc., 155 Wash. 2d 198, 215, 118 P.3d
311 (2005). We presume that the plaintiffs factual allegations are true and draw
all reasonable inferences from the factual allegations in the plaintiffs favor.
Trujillo V. Nw. Tr. Servs., Inc., 183 Wash. 2d 820, 830, 355 P.3d 1100(2015). We
may also consider hypothetical facts not included in the record. FutureSelect
^ Delman interprets CR 81 to say "civil rules do not apply to special proceedings," Resp't's
Answer to Amicus Curiae Br. at 18, but CR 81(a) explicitly says that the statute must be
inconsistent with the Civil Rules that would normally apply.
3
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954,962,331
P.3d 29(2014). Thus, Roake's statement that she would encounter Delman on
campus and that she did not know what he was capable of should carry great
weight.^
However, the lead opinion's deference to the denial order likely means it is
applying an abuse of discretion standard. Even though this action comes to us on a
motion to dismiss, the lead opinion does not treat Roake's factual allegations as
true because, presumably under CR 81(a), it roots the motion to dismiss in the
SAPO act. Ch. 7.90 RCW. "If a respondent alleges a meritorious defense to the
sufficiency of a temporary SAPO, under the statute he or she may petition the court
to reopen the order under RCW 7.90.130(2)(e).... Delman effectively did that by
filing the motion to dismiss." Lead opinion at 9. I understand this to mean that the
"motion to dismiss" was effectively mislabeled, but that it amounted to Delman
making an RCW 7.90.130(2)(e) challenge to the temporary order's validity. I
disagree with this approach, but if the lead opinion is going to adopt it, the "motion
to dismiss" must be consistent with the requirements of RCW 7.90.130(2)(e). Id.
^ It is unlikely that the lead opinion intends to heighten the CR 12(c) standard in SAPO petitions
to require allegations that are plausible. Compare Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009)("the tenet that a court must accept as true all ofthe
allegations contained in a complaint is inapplicable to legal conclusions ...[;] only a complaint
that states a plausible elaim for relief survives a motion to dismiss") with McCurry v. Chevy
Chase Bank, FSB, 169 Wash. 2d 96, 101-02, 233 P.3d 861 (2010)(explicitly rejecting to heighten
the standard for motions to dismiss to plausibility).
Roake V. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
"Motion To Dismiss" and RCW 7.90.130(2)(e)
Even if the lead opinion is saying the "motion to dismiss" was actually an
RCW 7.90.130(2)(e) motion to "reopen the order" that the trial court granted, the
denial order was an abuse of discretion. An abuse of discretion is found when a
decision is based on untenable reasons, including relying on an incorrect standard.
Rodriguez, 188 Wash. 2d at 598 (citing/« re Marriage ofLittlefield, 133 Wash. 2d 39,
47,940 P.2d 1362(1997)). The language of RCW 7.90.130(2)(e) supports the
conclusion that the denial order was premature; therefore, Roake is entitled to a
full hearing if a temporary order is reopened.
We review questions of statutory interpretation de novo to give effect to the
legislature's intentions. Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d
1, 9-10,43 P.3d 4(2002). When possible, we derive legislative intent solely from
the plain language enacted by the legislature, considering the text of the provision
itself, the context ofthe statute in which the provision is found, related provisions,
and the statutory scheme as a whole. Id/, State v. Ervin, 169 Wash. 2d 815, 820, 239
P.3d354(2010).
A fair reading ofthe RCW 7.90.130(2)(e) shows that it provides only an
opportunity to reopen a temporary order. RCW 7.90.130(2)(e) explains:
(2) A sexual assault protection order shall further state the following:
(e)For ex parte temporary sexual assault protection orders, that the
respondent may petition the court, to reopen the order if he or she did not
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
receive actual prior notice of the hearing and if the respondent alleges that he
or she had a meritorious defense to the order or that the order or its remedy
is not authorized by this chapter.
Thus, to reopen an order, the respondent needs to show both failure to "receive
actual prior notice ofthe hearing" and a "meritorious defense." RCW
7.90.130(2)(e). The phrase "meritorious defense" does not permit dismissal ofthe
temporary order; it relates to vacation ofthe temporary order so the respondent can
participate in a hearing for a temporary order. "Meritorious defense" is a term of
art used in the specific context of vacating default orders and judgments. See 14
Washington Practice, Civil Procedure § 9:26 (2d ed. 2009)("Factors
considered by court—^Meritorious defense"). And the phrase "reopen the order"
also suggests vacating the temporary protection order for further proceedings. See
CR 59(g)(reopening judgment); see also Black's Law Dictionary 1490(10th
ed. 2014)("reopen").
The Trial Court Abused its Discretion
In this case, a superior court commissioner issued a temporary SAPO
restricting Delman from contacting Roake. Delman claims he did not contest the
SAPO because he did not receive notice. See Br. of Resp't at 2-3. He moved to
reopen the temporary order and, at a hearing on the motion, argued that the
temporary order was invalid because there was no discussion of"fear" at the ex
parte hearing. Report ofProceedings (Feb. 20, 2015) at 55. While the lead
Roake V. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
opinion holds that Delman had a meritorious defense—^legal insufficiency—and
the case should be dismissed on that basis, at most this provision permits vacating
the temporary order to provide Delman with an opportunity "to file a general
appearance and testify," RCW 7.90.110(2), before the court may impose a
temporary order.
Roake never had an opportunity to argue her allegations offear were true at
a hearing on the temporary order. And, even if a trial judge determines a
temporary order is not necessary without "reach[ing] or resolv[ing] any issues
required for issuance of a final order," lead opinion at 11, it is still necessary to
provide a hearing on the final order. Somehow,the lead opinion implies, this
"meritorious defense" to default judgment made the temporary order a prerequisite
of the final order. Id. at 9. Again, that would be highly unusual—^that requirement
is found nowhere in the SAPO act. The requirements for a final order say nothing
about the petitioner's fear of a respondent. RCW 7.90.090,.120.
In light of the fact that the lead opinion endorses the trial court's action, it
should also consider RCW 7.90.170(1), which actually explains when a court can
"terminate or modify the terms of an existing sexual assault protection order." The
trial court found that Roake did not establish "reasonable fear offuture dangerous
acts." CP at 98. In Delman's motion to dismiss, he argued he will no longer
interact with Roake on campus. See id. at 43("Delman is no longer a UW student.
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
[and] is enrolled in a college outside the State of Washington."). While he also
argued that 10 months had passed since the alleged sexual assault and that a SAPO
would damage his reputation, id. at 51, his relocation is the sole ground that gave
the trial court cause to terminate the SAPO under chapter 7.90 RCW. See
generally RCW 7.90.170(2)(b)(an order can be terminated "if the respondent
proves by a preponderance ofthe evidence ...[he or she] is not likely to engage in
or attempt to engage in physical or nonphysical contact with the persons protected
by the protection order")."^ Nonetheless, without the required hearing on the
motion under RCW 7.90.170(3) and a hearing on the final order, the denial order
was premature and thus an abuse of discretion.
Finally, the lead opinion says that "[i]n a different situation where a
respondent disputes the claim of sexual assault, the trial court will conduct a
further fact finding hearing and resolve the issue based on the testimony or
evidence submitted." Lead opinion at 11. It should be noted, however, that the
lead opinion does not expressly raise the dismissal standard to require plausible
fearfulness in the petition, and all evidence of legislative intent in the SAPO act is
This language was added by the legislature after the briefs were filed in this case, and it became
effective July 23,2017. Laws OF 2017, ch. 233, § 3. The legislature included it to clarify how
protection orders can be modified or terminated. Notably, to modify or terminate an order,"[t]he
petitioner bears no burden of proving that he or she has a current reasonable fear of harm by the
respondent." Id. The requirement that the petition "be accompanied by an affidavit" with
statements or actions that gave "rise to a reasonable fear," RCW 7.90.020(1), should be
considered in light of this amendment.
8
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
to the contrary. See, e.g., RCW 7.90.005 ("Sexual assault inflicts humiliation,
degradation, and terror on victims.").
The lead opinion determined the trial court did not abuse its discretion by
issuing a denial order dismissing Roake's petition. I agree with the dissent that
Roake's allegations were legally sufficient. Roake should have had an opportunity
to test the veracity of her allegations in a full hearing. I concur in dissent.
Roake v. Delman, No. 93456-8 (Gonzalez, J., concurring in dissent)
10