Sandra Smith v. Joshua Smith

F
COUP,T
SIAI E OF
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SAN IRA LYNN SMITH,
No. 76247-8-1
Respondent,
DIVISION ONE
V.
PUBLISHED OPINION
JOS UA THADDEUS SMITH,
Appellant. FILED: October 30, 2017
LEACH, J. — The mere pendency of parallel civil and criminal cases does
not e title the defendant to a stay of the civil case. Instead, a trial court
consi ering a stay request must consider and balance the eight factors identified
by thi court in King v. Olympic Pipe Line Co.1
Joshua Smith appeals a one-year domestic violence protection order
(DVP ). Joshua2 contends that the trial court abused its discretion and violated
his d e process rights by entering the protection order before his parallel criminal
case was resolved. Because the trial court reasonably concluded that the
01 m lc Pi.e Line factors weighed against granting a stay, it did not abuse its
discr tion by entering the order. Following controlling precedent, we reject
Josh a's due process claims and affirm.
1 104 Wash. App. 338, 16 P.3d 45(2000).
2 Because Joshua Smith and Sandra Smith share a surname, we refer to
them sy their first names for clarity.
No. 7.247-8-I /2
FACTS
On November 16, 2015, the State charged Joshua Thaddeus Smith with
multi le counts of rape of a child involving his wife's daughter. In March 2016,
Sand a Lynn Smith, Joshua's wife, reported to the police that Joshua had asked
her t give false testimony in his criminal case. The police arrested Joshua for
tamp ring with a witness. Sandra, acting pro se, filed a petition seeking a DVPO
again t him, stating that she was "scared he will retaliate against me." The trial
court ssued a temporary protection order and notice of hearing the same day.
In her petition, Sandra explains that Joshua has an "explosive temper" and
has "lammed" their son into the wall and spanked their daughter "to the point
that s e couldn't sit." Sandra states that Joshua would yell and belittle her and
throw things so that she was fearful he would hurt her or their children. She
descr bes the extent of control Joshua exercised over her: Joshua monitored her
Face ook account and would deny her permission to go the doctor so that she
felt like she was "constantly walking on eggshells around him." One night,
Josh a told Sandra that "he was trying to decide if he was still going to be alive in
the morning."
In March 2016, Joshua asked the court to continue the protection order
hearing, primarily because of the criminal allegations pending against him. The
court ranted this request over Sandra's objection. In September 2016, after the
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No. 7 247-8-1/ 3
court had granted three continuances at Joshua's request,3 Sandra obtained pro
bono counsel. To further support her protection order request, she filed a Police
repo that included her daughter's description of abuse. Her daughter claimed
that Joshua started sexually abusing her when she was 8 years old and
continued until she was 15. She said that a few weeks before she told everyone
aboui the abuse, Joshua warned her that if she told anyone he would "get his
r
gun, shoot the whole family, and then he would kill himself." Sandra claimed that
Joshi.a had told her he had sexually molested a member of the family.
On September 28, 2016, Joshua requested a fourth continuance because
his criminal case remained pending. Sandra opposed this request. A superior
court commissioner did an on-the-record balancing of the interests involved, as
required by Olympic Pipe Line. She found that the infringement on Joshua's Fifth
Ame dment rights outweighed Sandra's interests in proceeding expeditiously.
She ranted a continuance two weeks beyond the trial date for Joshua's criminal
matter. But the commissioner explained that if Joshua asked for another
conti uance in his criminal case, the prejudice to Sandra caused by more delay
3 Sandra requested a 2-week continuance on April 21, 2016, due to a
medi al emergency. During that same proceeding, Joshua requested that the
court extend the continuance to 60 days. Sandra opposed the longer
conti uance because she felt that Joshua was continuing to "control" and
"mani ulate" her. The court granted a 60-day continuance over Sandra's
objec ion, which was the second continuance the court granted at Joshua's
request.
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No. 76247-8-I /4
woul outweigh any infringement on his Fifth Amendment privilege. She stated,
"I ca 't provide that he can continuously continue his criminal case at his own
request and then stymie her right indefinitely to a hearing on the merits."
The following day, Sandra filed a request to revise the commissioner's
order The revision judge denied this request and adopted the commissioner's
ration le, finding of facts, and conclusions of law. He scheduled a hearing on the
merit of the protection order request for November 21, 2016. This date was not
to be continued unless Sandra requested a continuance or the State obtained a
trial c ntinuance in the criminal matter over Joshua's objection.
On November 21, 2016, Joshua requested a fifth continuance in the
DVPt matter because his trial had been continued to March of 2017. A
corn issioner found that the revision order was binding. He decided that
altho gh Joshua's trial date had been continued, the conditions established in
the r vision order for any further continuances had not been met and denied
Josh a's request. The commissioner then held a hearing on the protection order
request. He considered Sandra's evidence supporting the order. Joshua
decli ed to present any evidence. The commissioner found that Sandra had
estab ished by a preponderance of the evidence that Joshua had committed
dome tic violence and issued a one-year protection order protecting Sandra and
her children. Joshua appeals.
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No. 7 247-8-1/ 5
ANALYSIS
We start with the proposition that a defendant has no absolute right to
avoid choosing between testifying in a civil matter and asserting his Fifth
Ame dment privilege.4
I. The Olympic Pipe Line Test
Joshua contends that the trial court abused its discretion in granting a
one-y ar protection order while his parallel criminal matter was pending. We
disag ee. A court exercises discretion when deciding a request to stay
proceedings.5 We review a court's decision for abuse of that discretion.6 "A trial
court buses its discretion only if its ruling is manifestly unreasonable or is based
upon ntenable grounds or reasons."7
In Olympic Pipe Line, this court held that the trial court must conduct an
on-th -record balancing of eight nonexclusive factors before granting or denying
a mo ion to stay the civil proceeding when parallel criminal proceedings are
pendi g.5 We will overturn the trial court's decision only if it has abused its
discr tion. The eight factors are (1) the extent to which a defendant's Fifth
Ame dment rights are implicated, (2) the similarities between the civil and
crimi al cases,(3) the status of the criminal case,(4) the interest of the plaintiffs
4 Keating v. Office of Thrift Supervision,45 F.3d 322, 326 (9th Cir. 1995).
5 Olympic Pipe Line, 104 Wash. App. at 348.
6 Olympic Pipe Line, 104 Wash. App. at 348.
7 Olympic Pipe Line, 104 Wash. App. at 348.
8 Olympic Pipe Line, 104 Wash. App. at 352-53.
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No. 76247-8-I /6
in pr ceeding expeditiously and the potential prejudice to plaintiffs of delay, (5)
the b rden which any particular aspect of the proceeding may impose on the
defendants,(6) the convenience of the court in the management of its cases and
the efficient use of judicial resources, (7) the interests of persons not parties to
the civil litigation, and (8) the interest of the public in the pending civil and
criminal litigation.9
We address each factor in turn.
1. The Extent to Which a Defendant's Fifth Amendment Rights Are Implicated
Joshua asserts that the substantial extent to which his Fifth Amendment
right gainst self-incrimination is implicated weighs heavily in favor of granting a
stay nd outweighs any countervailing factors. Once a witness in a civil suit has
invok d his Fifth Amendment privilege, the trier of fact is entitled to draw an
adver e inference from his refusal to testify.1° The extent to which a party's right
again t self-incrimination is implicated in civil proceedings is not determinative,
but it ust be given "serious consideration' in the balancing of interests."11
Here, the State criminally charged Joshua with conduct similar to that
alleg d in Sandra's petition. The allegations in both proceedings involve
dome tic violence. He therefore asserts that his Fifth Amendment rights are
9 OlympicPipe Line, 104 Wash. App. at 352-53.
10 Ikeda v. Curtis, 43 Wash. 2d 449, 458, 261 P.2d 684(1953).
11 Olympic Pipe Line, 104 Wash. App. at 353 (quoting White v. Mapco Gas
Prod ., Inc., 116 F.R.D. 498, 502(E.D. Ark. 1987)).
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No. 7 247-8-1/ 7
direct!y at issue. Joshua contends that he must choose between waiving his
Fifth mendment privilege and being unable to defend himself in the DVPO
proceedings. The extent to which his Fifth Amendment rights are seemingly
impli ated would therefore weigh in strong favor of a stay. In granting a fourth
conti uance at Joshua's request, the trial court accordingly found that the civil
proceedings "squarely implicate" his Fifth Amendment rights.
Yet, Sandra was seeking a DVPO under the Domestic Violence
Prey ntion Act (DVPA).12 The process created by the DVPA burdens the
defen ant's Fifth Amendment privilege substantially less than do other civil
proce dings. DVPO proceedings are "special proceedings," which means that
rules of civil procedure established by the legislature for DVPOs supersede
incon istent civil court rules.13 Forexample, the rules of evidence do not apply in
DVP proceedings.14
Also, in DVPO proceedings parties do not have a right to a jury tria1,15 to
disco ery,16 to compel live testimony, or to cross-examine witnesses.17 Although
12Ch. 26.50 RCW.
13 CR 81 states, in part, that civil court rules govern all civil proceedings
"[e]xc pt where inconsistent with rules or statutes applicable to special
proce dings"; see also Scheib v. Crosby, 160 Wash. App. 345, 351, 249 P.3d 184
(2011
14 ER 1101(c)(4); see also Gourley v. Gourley, 158 Wash. 2d 460, 466-67,
145 .3d 1185(2006).
15 Blackmon v. Blackmon, 155 Wash. App. 715, 721-22, 230 P.3d 233
(201
16 Scheib, 160 Wash. App. at 352.
17 Aiken v. Aiken, 187 Wash. 2d 491, 500-01, 387 P.3d 680(2017).
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No. 7 247-8-1 /8
the tr al court has the discretion to allow discovery,18 live testimony, and cross-
exam nation,18 DVPO hearings are "equitable in nature and may be properly
deterrnined by a court on documentary evidence alone."20
Thus, the plaintiff cannot compel evidence or testimony, which means
DVP proceedings burden a defendant's Fifth Amendment rights substantially
less than do other civil proceedings. Because the burden of proof is on the
plaint ff,21 the defendant can prevail by showing that the burden has not been met
witho t providing incriminating testimony. The defendant does not need to testify
in th proceedings. Unless the court permits live testimony and cross-
exam nation or discovery, which did not occur in this case, the defendant need
not invoke his Fifth Amendment right in DVPO proceedings. The fact finder is
)
there ore unable to infer prejudice, and the defendant need not necessarily
choo e between waiving his Fifth Amendment right and defending himself in the
civil p oceedings. Thus, a court could reasonably decide that the extent to which
these DVPO proceedings implicate Joshua's Fifth Amendment privilege does not
provi e a persuasive justification for a stay.
18Scheib, 160 Wash. App. at 352.
18Aiken, 187 Wash. 2d at 500-01.
20 Blackmon, 155 Wash. App. at 723.
21 RCW 26.50.020(1)(a), .030.
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No. 7.247-8-I / 9
2. Si ilarities between the Civil and Criminal Cases
Joshua maintains that the fact he is being criminally charged with conduct
that i either the same or similar to that alleged in Sandra's petition weighs in
favor if a stay.
One of the most important factors in the balancing process is
"the degree to which the civil issues overlap with the criminal
issues" because "[i]f there is no overlap, there would be no
danger of self-incrimination and accordingly no need for a stay."
Thus a stay is most appropriate where the subject matter of the
parallel civil and criminal proceeding or investigation is the
same.E22]
Joshua was criminally charged with raping his stepdaughter. By contrast,
in Sa dra's petition for a DVPO, she claimed that Joshua physically abused their
childr n and threatened her with physical violence as well as threatened suicide.
The ourt found that although the two cases do not involve identical behavior,
they re "uniquely aligned" because they both involve domestic violence.
The similarities between the civil and criminal matters would ordinarily
weigh in favor of a stay. But because DVPO proceedings are special
proce dings and pose substantially less danger of self-incrimination than do
22 Olympic Pipe Line, 104 Wash. App. at 357 (alteration in original)
(footn tes omitted) (quoting Milton Pollack, Parallel Civil and Criminal
Proceedings, 129 F.R.D. 201, 203 (1990); Trs. of Plumbers & Pipefitters Nat'l
Pensibn Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y.
1995)1 and citing United States v. Private Sanitation Indus. Ass'n of
Nassau/Suffolk, 811 F. Supp. 802, 806 (E.D.N.Y. 1992)).
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No. 7 247-8-1/10
other civil proceedings, a court could reasonably decide that the similarities
provide minimal weight, if any, for a stay.
3. St tus of the Criminal Case
Joshua contends that the pending status of his criminal case weighs in
favor f a stay due to Fifth Amendment concerns. A stronger argument exists for
defer ing civil proceedings until the completion of parallel criminal proceedings
when a party, regardless of whether he has been charged, faces a real danger of
self-incrimination in a subsequent criminal proceeding.23 As discussed above,
because the special nature of DVPO proceedings does not place Joshua in
significant danger of incriminating himself, a court could reasonably decide that
the St tus of his criminal case does not weigh in strong favor of a stay.
4. Th Interest of the Plaintiffs in Proceeding Expeditiously and the Potential
Preju ice to Plaintiffs of a Delay
Joshua asserts that his Fifth Amendment rights trump Sandra's interest in
expe itious resolution of the DVPO matter. "Civil plaintiffs have a substantial
intere t in expeditious conduct of their litigation."24 But Olympic Pipe Line notes
that "while stale memories pose a risk, . . . under settled authority the Fifth
Ame dment is the more important consideration!"25 Here, however, Joshua's
Olympic Pipe Line, 104 Wash. App. at 358-59.
23
Olympic Pipe Line, 104 Wash. App. at 359.
24
25 Olympic Pipe Line, 104 Wash. App. at 360 (alteration in original) (quoting
Volm r Distribs., Inc. v. New York Post Co., 152 F.R.D. 36, 40(S.D.N.Y. 1993)).
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No. 7 247-8-1 / 11
Fifth Amendment rights are not substantially infringed, and delay poses hardship
to Sa idra beyond stale memories.
First, delaying DVPO proceedings denies plaintiffs their right to
meaningfully access the courts. By continuing a DVPO matter until the
defendant's parallel criminal case is resolved, the court prevents a plaintiff from
timely receiving her statutory remedy under the DVPA.26 The legislature enacted
the DVPA to expedite protection orders and provide victims "easy, quick, and
effect ve access to the court system."27 Here, the trial court continued the DVPO
matter four times, spanning over eight months, before ultimately granting Sandra
a healring on the merits of her request. An eight-month delay does not fulfill the
DVPA's purpose of providing Sandra easy, quick, and effective access to the
court System.
Second, delaying proceedings hinders victims' ability to act pro se. The
Was ington Supreme Court recognized that "jblecause many victims are unable
to ret in counsel, the system is designed for use by pro se litigants."28 In an
effort to remove financial barriers for victims, the DVPA prohibits agencies from
charging fees for filing, service of process, or certified copies.29 Courts must
26 RCW 26.50.020(1)(a) ("Any person may seek relief under this chapter
by fili lg a petition with a court alleging that the person has been the victim of
domestic violence committed by the respondent.").
27 LAWS OF 1992, ch. 111,§ 1.
28 Aiken, 187 Wash. 2d at 497.
29 RCW 26.50.040.
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No. 76247-8-1 / 12
develop instructions, informational brochures, and a handbook on the domestic
viole ce process and procedures, and are required to provide other services to
mak it easier for pro se litigants to access the courts.3° When a court
repe tedly continues DVPO proceedings, the system becomes too challenging to
navig te and pro se litigants are forced either to abandon their claims or seek pro
bono or hired counsel if they are able. Sandra appeared pro se through three
conti uances. Seven months of delay forced her to seek pro bono counsel.
With ut this counsel, repeated delays prevented Sandra from receiving full relief
unde the DVPA, which contravenes its purpose.
Third, delaying DVPO matters places victims and their families at risk.
"Prol nged court proceedings increase the risk of danger to a victim of domestic
viole ce."31 Even when a court hearing a criminal case prohibits the defendant
from contacting the victim,32 the no-contact order does not provide as much
prote tion as a DVPO. A no-contact order terminates if the criminal defendant is
acqui ted or the charges are dismissed.33 The victim may receive no notice when
the n -contact order is dismissed nor have the chance to contest the termination
of an order. By contrast, a full DVPO may require the defendant to participate in
dome tic violence perpetrator treatment, restrain him from further contact with
3° RCW 26.50.035.
31 Juarez v. Juarez, 195 Wash. App. 880, 889, 382 P.3d 13(2016).
32 RCW 10.99.040(2)(a).
33 RCW 10.99.040(3).
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No. 7 247-8-1/ 13
the victim or the children at issue, require him to submit to electronic monitoring,
and How the victim to seek renewal of the order, among other requirements.34
Finally, delay may cause victims to abandon their petition due to
exhaustion, frustration, or as a result of logistical obstacles. For example, a
victi may not be able to take time off work repeatedly or find childcare or
trans ortation to address each continuance. A victim may also experience these
hardships with a temporary DVPO. The trial court granted Sandra five temporary
order . Although Sandra persevered, it may be prohibitive for a victim to return
to cou rt repeatedly to oppose multiple continuances or ask the court to reissue a
temp rary order; logistical impediments may pose enough of a barrier to
dissu de a victim from pursuing even a temporary DVPO.
Temporary orders raise an additional concern. Federal and Washington
state law prohibit an abuser from possessing firearms only if the court issues a
full p otection order.35 Thus, when a court issues only a temporary order, the
l prohibition is not available.36 Although Joshua warned his stepdaughter
firearril
that i. she told anyone about the sexual abuse he would "get his gun, shoot the
whol family, and then he would kill himself," the trial court had authority to order
Josh a to surrender his firearms only after it granted Sandra a full protection
order
34 RCW 26.50.060.
35 18U.S.C. 922(g)(8); RCW 9.41.040(2)(a)(ii).
36 RCW 9.41.040(2)(a)(ii)(A).
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No. 7 247-8-1 /14
Although the superior court did not account for the special nature of DVPO
proc edings and therefore attributed more weight than was due to the potential
infrin ement on Joshua's Fifth Amendment privilege, the court recognized that if
Joshtla continued his trial beyond November, prejudice to Sandra would
outw igh the burden on Joshua. A court could reasonably conclude that the
many potential burdens of further delaying the DVPO proceedings would cause
Sand a substantial hardship that weighs in strong opposition to a stay.
5.T e Burden that Any Particular Aspect of the Proceeding May Impose on the
Defe dants
Joshua asserts that proceeding with the DVPO hearing before resolution
of his criminal case imposed a number of burdens that weigh in favor of a stay.
01 ic Pi.e Line recognizes that the burdens on the defendant may include the
diver ion of resources in simultaneous defense of civil and criminal actions or the
likelih od that the materials uncovered during civil discovery may aid the
prosecution.37 Asserting a Fifth Amendment privilege during civil discovery may
const tute a "'road mar and provide a "link in the chain of evidence" benefiting
the p osecution.38 As discussed above, if the defendant exercises his Fifth
Ame dment rights, an adverse inference can be drawn by the trier of fact. In
37 Olympic PipeLine, 104 Wash. App. at 362-63.
38Olympic Pipe Line, 104 Wash. App. at 364 (quoting Afro-Lecon, Inc. v.
Unite States, 820 F.2d 1198, 1203(Fed. Cir. 1987)).
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No. 7 247-8-1/15
additi n, imposition of a DVPO requires the defendant to surrender any firearms
and could prohibit him from contacting his children.
Although the trial court found that "the risk of incrimination. . . is severe,"
the s ecial nature of DVPO proceedings significantly reduces that risk. Indeed,
the parties do not have a right to discovery, and in this case neither party
requ sted discovery. Thus, the DVPO proceedings provided the State with no
"road map" or "link in the chain" aiding its prosecution. Moreover, the defendant
gene ally need not assert his Fifth Amendment privilege in DVPO proceedings.
This liminates the concern that the trier of fact may draw an adverse inference.
Josh a, in fact, did not invoke his Fifth Amendment privilege. Instead, his
coun el stated that "we do not intend to present any testimony on behalf of the
respo dent."
Finally, having to expend resources in both his civil and criminal
proce dings could burden Joshua, assuming the court has not made a finding of
indig ncy. But on balance, a court could reasonably decide that this burden is
slight compared to the potential hardships delay could cause Sandra.
6. T e Convenience of the Court in the Management of Its Cases and the
Effici nt Use of Judicial Resources
Parallel proceedings may raise concerns about calendar congestion and
dupli ative judicial effort.39 But the alternative to holding the DVPO hearing is to
39 Olympic Pipe Line, 104 Wash. App. at 365.
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No. 76247-8-I /16
requi e a victim to repeatedly ask to renew a temporary order. Thus, proceeding
with single DVPO hearing may congest the court's calendar less considering
the p ssibility of multiple requests for continuances and the repeated reissuance
of a emporary order. Moreover, there may be little risk of duplicative judicial
effort. If the civil and criminal cases are at all distinct, resolution of the criminal
case ay not resolve the issues in the DVPO case. Thus, the trial court would
still n ed to hold a DVPO hearing after the conclusion of the criminal case.
Olympic Pipe Line notes another concern. Often, "after the criminal matter
is resolved and the Fifth Amendment issue gone, civil discovery will proceed
more smoothly and efficiently."4° But if the State criminally charged the
defen ant with only some of the conduct at issue in the DVPO proceeding, he is
unlik ly to waive his Fifth Amendment privilege to testify in the civil proceeding.
Here, Joshua would be unlikely to waive his privilege even after resolution of his
crimi at case because the State did not charge him with the physical abuse of his
childr n alleged in the protection order petition.
In addition, the DVPA states that relief under the DVPA "shall not be
denie or delayed on the grounds that the relief is available in another action."41
The •VPA therefore explicitly prohibits the trial court from delaying DVPO
proce dings based on the rationale that the issues underlying that DVPO matter
40 Olympic Pipe Line, 104 Wash. App. at 365.
41 RCW 26.50.025(2); see also Juarez, 195 Wash. App. at 883-84, 887-88.
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No. 7 247-8-1/ 17
could be resolved in another proceeding. Thus, a court could reasonably decide
that he efficient use of judicial resources weighs in favor of not staying the
DVP matter and proceeding as the legislature intended.
7. T e Interests ofPersons Not Parties to the Civil Litigation
Olympic Pipe Line notes that the interests of persons not parties to the
civil Ii igation may be entitled to "real weight.'"42 The public and the courts have
a strong interest in the protection of minor children, particularly when they are the
victims of abuse. Both have an interest in a protection order being issued
expeditiously. In her petition, Sandra contends that Joshua "slammed" their son
into the wall and spanked their daughter "to the point that she couldn't sit." The
L reasonably noted that the children's interests in issuance of the order
trial curt
weigh against a stay.
8. The Interest of the Public in the Pending Civil and Criminal Litigation
The public interest also includes an interest in the integrity of the judicial
systern.43 This case implicates that interest because of general concern about
how tle judicial system resolves DVPO matters. The legislative findings in RCW
26.50.030 provide instruction about how the DVPA serves the public interest and
expre s concerns about the need to improve the judicial response to domestic
viole ce. The legislature enacted the DVPA to provide "the easy, quick, and
Olympic Pipe Line, 104 Wash. App. at 366 (quoting Golden Quality Ice
42
Crea Co. v. Deerfield S ecialt Pa ers Inc., 87 F.R.D. 53, 58(E.D. Pa. 1980)).
43 Olympic Pipe Line, 104 Wash. App. at 367-68.
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No. 7 247-8-1 / 18
effec1ive access to the court system envisioned at the time the protection order
process was first created."44 The legislature envisioned that the DVPA would
make protection orders more of a "valuable tool to increase safety for victims and
to hold batterers accountable."45 "[T]he legislature has sought to further [prevent
dome tic violence] by taking clear, concrete actions to encourage domestic
viole ce victims to end abuse, leave their abusers, protect their children, and
coop rate with law enforcement and prosecution efforts to hold the abuser
acco ntable."46
The trial court found that when the court "does not afford prompt, efficient
relief, it to a degree becomes an obstacle to the significant public interest that the
legisl ture said it had in addressing the immense proportions of domestic
viole ce." Denying a full protection order because of the defendant's pending
parall I criminal proceedings neither honors the purpose of the DVPA nor serves
the p blic interest of ensuring victims of domestic violence have access to an
expe ited process for receiving a protection order. A court could reasonably
decid that the public interest weighs in strong favor of denying a stay.
LAWS OF 1992, ch. 111,§ 1.
44
LAWS OF 1992, ch. 111, § 1.
45
46 Danny v. Laidlaw Transit Servs., Inc., 165 Wash. 2d 200, 213, 193 P.3d
128(2008).
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Conc usion on Olympic Pipe Line Factors
On balance, a court could reasonably decide that the Olympic Pipe Line
facto heavily weigh in favor of proceeding with the DVPO matter before
resol tion of Joshua's criminal case. Because of the special nature of DVPO
proceedings, there is minimal to nonexistent infringement on Joshua's Fifth
Ame dment privilege compared to the potentially heavy burden a stay would
impo e on Sandra. Also, staying DVPO proceedings frustrates the purpose of
the D PA—to provide quick and effective access to the judicial system to victims
of do estic violence. The superior court did not abuse its discretion by granting
the D PO while Joshua's criminal matter was pending.
We note that in future cases, the parties could avoid many of the issues
prese ted in this case and reconcile the defendant's interest in protecting his
Fifth mendment right with the plaintiffs interest in avoiding the hardship
asso iated with delay. They could accomplish this by stipulating to an order of
conti uance that remains in effect until after the resolution of the criminal case,
incore orates the defendant's voluntary agreement to surrender all firearms, and
grant the same protections as a full protection order.
II. Due Process
Joshua contends that the DVPO proceedings denied him an opportunity to
be h ard "at a meaningful time and in a meaningful manner" in violation of his
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No. 7 247-8-1/ 20
const tutional right to due process.47 We disagree. Whether the DVPO
proce dings afforded Joshua due process is a question of law that this court
revievis de novo."
Both the Washington Constitution and the federal constitution guarantee
due process before a court restricts a person's liberty." Protection orders
implicate a respondent's liberty interests.50 The Washington Supreme Court
recen ly held that chapter 26.50 RCW, the DVPA, satisfies the respondent's
consttutional right to due process: "[The] guarantee that a person must be heard
at a meaningful time and in a meaningful manner is protected by the procedures
in ch pter 26.50 RCW."51 Because the DVPA did not deprive Joshua of any
const tutionally required procedural safeguards, the trial court did not deny
Josh a due process when it ultimately denied his request to stay the DVPO
proceedings.
CONCLUSION
The trial court did not abuse its discretion by deciding that a balancing of
the m ic Pi.e Line factors weighed in strong favor of proceeding with the
47 Aiken, 187 Wash. 2d at 501 (quoting Mathews v. Eldridge, 424 U.S. 319,
333, 6 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
48 Aiken, 187 Wash. 2d at 501.
49 WASH. CONST. art. 1, § 3; U.S. CONST. amend. XIV, §1.
58 Gourley, 158 Wash. 2d at 467-68.
51 Aiken, 187 Wash. 2d at 503. The court cites Mathews, 424 U.S. at 335, in
whic the United States Supreme Court established the three-factor balancing
test t be used in evaluating the process due in a particular circumstance.
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DVP matter. Also, the court did not deny Joshua due process because the
DVP affords respondents due process.
Affirmed.
WE CONCUR:
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