Note ***the difference between equity (case law) and common law in respect of constitutionality and the right to a jury trial.
More importantly the reference to rules of evidence, what constitutes evidence and how they are circumvented refer back by looking at how this rules evolved.
We therefore enter into executive ABA union business and political methods of making changes for case expediency, simply by using the legislature to amend or ride through rule changes using junior ABA members in any legislature.  Layman who are representatives are often clueless.  It is a case of the tail wagging the dog.

http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=384213MAJ

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION  II
TIFFANY D. BLACKMON,                                            No.  38421-3-II
                            Respondent,
      v.
BRIAN J. BLACKMON,                                          PUBLISHED OPINION
                            Appellant.

      Quinn-Brintnall, J.  --    On September 12, 2008, the Thurston County Superior Court
granted Tiffany D. Blackmon's petition for a domestic violence protection order restraining her
estranged husband, Brian Blackmon, from having contact with her and the couple's seven-year-
old son for one year.  Domestic Violence Prevention Act, ch. 26.50 RCW.  Brian1 filed a timely
appeal, claiming that the trial court improperly denied his request for a jury trial and violated his
due process rights by, among other things, improperly denying his request to present evidence
after he had rested his case but before closing argument.  The protection order expired September
12, 2009, and this appeal is moot.

      Whether there exists a right to a jury trial in a protection order hearing, however, is an

1 We refer to the parties by their first name for clarity and intend no disrespect.

No. 38421-3-II

issue of broad public import and we, like the trial court, take this opportunity to address it.

Because protection orders are essentially injunctive and involve an equitable remedy, we hold that

there is no right to a jury trial in a hearing on a petition for a domestic violence protection order.

We affirm.

                                            FACTS

      On June 16, 2008, Tiffany filed a petition in Thurston County Superior Court for a

protection order against Brian.  Attached to the petition was a four-page listing of incidents that

set out reasons Tiffany stated for fearing for her safety and for the safety of her seven-year-old

son.  That same day, the trial court entered a temporary protection order and notice of hearing to

be held on June 27, 2008.  The parties agreed to continue the hearing several times, each time

extending the temporary protection order.  The hearing was eventually set for September 9, 2008.

      During a pretrial hearing on September 8, Brian's counsel informed the trial court for the

first time that he might be requesting a jury trial.  The trial court directed him to submit a brief to

support such a request.  On September 9, Brian's counsel filed a demand for a jury trial.  There is

no evidence that Brian's counsel paid the required fee, but he did file the demand in open court

with a brief in support of his right to a jury trial.  The trial court denied Brian's request for a jury

trial and his subsequent continuance motion.

      The matter proceeded to a protection order fact finding hearing at which both parties

presented opening arguments, testified on direct and cross-examination, and presented witnesses

and evidence.  After a full day of testimony, the parties rested.  The trial court extended the

temporary protection order through September 12, 2008, and recessed for final arguments and

resolution of the matter on that date.

                                              2

No. 38421-3-II

      On September 11, Brian's counsel filed a motion to reopen his case to present testimony

from Lori Harrison, a therapist who had conducted a parenting assessment of Brian.  The

assessment had a domestic violence component.  On September 12, when the parties reconvened

before the trial court for closing arguments and rulings, Brian's counsel orally renewed his motion

to reopen.  The trial court denied the motion to reopen, and the parties continued to closing

arguments.

      After closing arguments, the trial court reviewed the standard of proof in domestic

violence matters and recounted the history of events Tiffany and Brian presented.  The trial court

found that there was sufficient evidence to support granting a domestic violence protection order.

It issued the domestic violence protection order, restricting Brian from having contact with

Tiffany for one year.  The protection order also required that Brian participate in a domestic

violence perpetrator treatment program as described in RCW 26.50.150.  Although the protection

order required supervised visitation between Brian and his son, it explicitly stated that, after he

was in treatment, Brian  could  request modification of the  supervised visitation  requirement.

Finally, the protection order restricted Brian from possessing a firearm or ammunition, except in
his capacity as military personnel carrying government-issued firearms.2

                                          ANALYSIS

Mootness

      Brian raises several issues in his appeal of the trial court's domestic violence protection

order.  But the protection order terminated on September 12, 2009, and Brian's appeal is moot.

      A case is moot if a court can no longer provide effective relief.  Orwick v. City of Seattle,

2 Brian is a member of the United States Army.

                                              3

No. 38421-3-II

103 Wn.2d 249, 253, 692 P.2d 793 (1984).  We normally dismiss a case that involves only moot

questions, unless that case presents issues that are of substantial and continuing interest.  In re

Marriage of Horner, 151 Wn.2d 884, 891-92, 93 P.3d 124 (2004).  We consider three factors in

deciding whether a case presents issues of continuing and substantial interest:  (1) whether the

issue is of a public or private nature, (2) whether an authoritative determination is desirable to

provide future guidance of public officers, and (3) whether the issue is likely to recur.  In re

Horner, 151 Wn.2d at 891-92.  Applying these factors to the issues presented here, the first,

whether the parties to a domestic violence protection order have a constitutional right to demand

a jury trial, is unquestionably an issue of broad public import that is likely to recur and on which

an authoritative determination is desirable to provide guidance to public officers.  See In re

Horner, 151 Wn.2d at 891-92.  Accordingly, we address it here.

Jury Trial

      Brian argues that he has a constitutional right to a jury trial for domestic violence matters

decided under ch. 26.50 RCW and that the trial court erred when it rejected his demand for a jury

trial.  We disagree.

      The right to a jury trial is guaranteed by article I, section 21 of the Washington

Constitution.  Washington courts have consistently interpreted this constitutional provision as

"guaranteeing those rights to trial by jury which existed at the time of the adoption of the

constitution."  Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 365, 617 P.2d 704 (1980); In re

Marriage of Firchau, 88 Wn.2d 109, 114, 558 P.2d 194 (1977).  "[T]here is a right to a jury trial

where the civil action is purely legal in nature."  Brown, 94 Wn.2d at 365.  But there is no right to

a trial by jury where the action is purely equitable in nature.  Brown, 94 Wn.2d at 365.

                                              4

No. 38421-3-II

      To determine whether parties have a constitutional right to jury trials in Domestic

Violence Prevention Act proceedings, we must determine whether such right existed, either at

common law or by territorial statute, when the Washington Constitution was adopted in 1889.

See Sofie v. Fibreboard Corp., 112 Wn.2d 636, 645, 648, 771 P.2d 711, 780 P.2d 260 (1989);

accord Auburn Mech., Inc. v. Lydig Constr., Inc., 89 Wn. App. 893, 897, 951 P.2d 311, review

denied, 136 Wn.2d 1009 (1998).  Under the common law, there is "a right to a jury trial where

the civil action is purely legal in nature, but not where the action is purely equitable in nature."

Auburn Mech., 89 Wn. App. at 897.  "The distinction between legal and equitable claims is based

on the nature of the action, not the form of the action."  Auburn Mech., 89 Wn. App. at 899.

Thus, if cases similar in nature to the modern domestic violence protection order cases were

within the exclusive jurisdiction of equity courts when the state constitution was adopted in 1889,

then the parties in a modern protection order proceeding do not have a constitutional right to a

jury trial.

      Here, Brian urges us to hold that modern domestic violence protection order proceedings

are essentially criminal assault actions and, as such, are legal in nature.  Although assaultive

conduct may lie at the heart of a petitioner's request for a domestic violence protection order, the

remedy sought, an order prohibiting contact, is not a massive curtailment of liberty amounting to

incarceration and is not criminal in nature.  See, e.g., Spence v. Kaminski, 103 Wn. App. 325,

332, 12 P.3d 1030 (2000).

      The only matter at issue is whether or not to grant Tiffany and her son a domestic violence

protection order limiting Brian's contact with them.  As such, protective orders are essentially a

type of injunction.  19 Kenneth W. Webber, Washington Practice:  Family & Community Property

                                              5

No. 38421-3-II

Law § 26.16, at 547 (1997) (stating that temporary restraining orders and preliminary injunctions

are adjuncts of the historical writ of injunction).  Injunctions are equitable in nature.  Kucera v.

Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000); Tradewell Stores, Inc. v. T.B. & M.,

Inc., 7 Wn. App. 424, 427-28, 500 P.2d 1290 (1972).  Thus, when a person petitions the court

solely for a domestic violence protection order, as Tiffany did here, neither she nor the party she

seeks to have restrained is entitled to have a jury decide whether a judge should issue a protection

order.  See Auburn Mech., 89 Wn. App. at 897.

      The rules of evidence applicable to Domestic Violence Prevention Act proceedings further

support this conclusion.  ER 1101 states that the rules of evidence need not be applied in

protection order proceedings.  Gourley v. Gourley, 158 Wn.2d 460, 467, 145 P.3d 1185 (2006)
(citing ER 1101(c)(4)3); Hecker v. Cortinas, 110 Wn. App. 865, 870, 43 P.3d 50 (2002) ("the

rules of evidence, including the hearsay rule, need not be applied in protection order proceedings

under chapter 26.50 RCW").  Consequently, competent evidence sufficient to support the trial

court's decision to grant or deny a petition for a domestic violence protection order may contain

hearsay or be wholly documentary.  See Gourley, 158 Wn.2d at 467; Hecker, 110 Wn. App. at

870.

      Moreover, in Gourley, our Supreme Court held that, although a trial court has discretion

to allow it, the Domestic Violence Prevention Act does not create a right for petitioners and

respondents to subpoena or cross-examine witnesses.  158 Wn.2d at 469-70.  The primary role of

a jury - to observe the demeanor of these witnesses, determine witness credibility, and accord

3 ER 1101(c)(4) states that the rules of evidence need not apply to  "[p]rotection order
proceedings under RCW 7.90, 10.14, 26.50 and 74.34."

                                              6

No. 38421-3-II

weight to witness testimony - is not  essential  to a legitimate decision to grant a petitioner's

motion for a domestic violence protection order under RCW 26.50.060.  See Morse v. Antonellis,

149 Wn.2d 572, 574, 70 P.3d 125 (2003) (credibility determinations are reserved solely for the

trier of fact).  Because the purpose of these proceedings is to provide persons who allege that

they are victims of domestic violence with ready access to the protections of the court in allowing

them to avoid contact with someone with whom they no longer wish to associate,  these

proceedings do not include the right to compel and cross-examine witness testimony and without

such testimony there is no compelling need for a jury to determine the credibility of witnesses or

determine the facts underlying the issuing court's protection order.  In short, there is no right to a

jury trial in a domestic violence protection order hearing because such proceeding is equitable in

nature and may be properly determined by a court on documentary evidence alone.  See Auburn

Mech., 89 Wn. App. at 897.  The trial court properly denied Brian's request for a jury trial before

issuing the order prohibiting him from having contact with his estranged wife and requiring
supervision of his contact with his son.4

      The remaining issues that Brian raises on appeal are both moot and unique to this case.

Accordingly, we do not address them.  See In re Horner, 151 Wn.2d at 891 (we will not review

moot issues unless they are of "continuing and substantial public interest").

Conclusion

      We review this case because it presents an issue of continuing and substantial public

interest.  We hold that there is no right to a jury trial in a hearing on a petition for a domestic

4 We also note that Brian did not comply with CR 38(b) and waived any right he might arguably
have had to demand a jury trial.  But the trial court based its denial of Brian's untimely and
deficient jury demand on its merits rather than on his failure to comply with CR 38(b) and so do
we.
                                              7

No. 38421-3-II

violence protection order.  Accordingly, the trial court properly denied Brian's request for a jury

trial.

      Affirmed.

                                                QUINN-BRINTNALL, J.
We concur:

HOUGHTON, P.J.

HUNT, J.

They get paid, but don't invesagate complaints filed by the people against Judges. My question to them is, Why keep getting taxdollars if you aint doing your job.

http://www.bostonherald.com/projects/payroll/massachusetts/last_name.ASC/CJC/

Please share any story about Judge Manzi that will help remove her from the bench and put where she belongs behind bars

Honorable Jeremy Stahlin
24 New Chardon St
Boston, Ma 02114                                                                                                     April 7, 2010  
Honorable Jeremy Stahlin 

    On behalf of Behind the scene with Hector Montalvo, We want to thank you for allowing us into your court room to record the McCabe proceeding. As agreed, a copy of today's hearing is available to any media outlet that wishes to have a copy. 

  If you would like a free copy of the hearing, Please send us your request and one will be provide to you. Again thank you for allowing our request to record.

Essex Probate and Family Court
2 Appleton Street
Lawrence, MA 01840
                                                                                                  April 8, 2010 
   Honorable Mary Manzi,
 
This is a request to film you in your court room for Monday April 19, 2010 from 9AM til 1PM

We seek to record all hearings in front of you which involves contempt hearings. We are asking to record only you, and not any party to any case.

 

As required under SJC rule 1:19, Notice is given to you in a timely manner, this request has been faxed to your clerk, as I have been unable to find any laws that require media not to fax in any request. We are still waiting to hear back from Chief Justice Mulligan's office in regards to your last denial for us to record based on your statements that I was told on the record, that I couldn't fax in any request.

 

My understanding of your order from January 7, 2010 is Null and Void as you never issued a written order, Nor have you released any dockets


There is tremendous public interest in the happenings not only of the Probate Courts of the Commonwealth but also the Judges who hears these proceeding. We seek your approval to allow a camera in your court room which again will Only be facing the Judicial Bench, and at NO time will the camera be directed at any Litigant, witness, or bystanders with the exception of any court employee's and only if the employee's conduct would be of public concern.

 

Again Behind the Scene would like to thank you in advance for allowing such request, We ask that if a hearing is required, that your clerk contact us with a hearing date on our request.

 

If you would like more information in regards to my status as a Produce and Director of Behind the scene with Hector Montalvo or any other shows I direct, feel free to contact SJC Joan Kenny, who has all the information provided to her by MCTV.

Don't believe that winning is really everything. It's more important to stand for something. If you don't stand for something, what do you win

In the fight between you and the world, back the world

Letter's I have sent out.


Dear Chief Justice Carey;
 
  Many fathers, including myself, are subjected to "Permission to file rules in the Massachusetts Family and Probate Court." This policy is a clear violation of ones due process rights and it should stop.  This policy often delays justice to families, usually fathers who are fighting for their right to see their children, As I have. The time clock on children's lives does not stop and this delay tactic by the court feeds into parental alienation as well as ones right for speedy justice.   Please order your justices to not violate due process rights and stop the process of first requiring permission to file, when a party needs to or wants to file a motion.  It is a tactic of the court that directly violates a persons legal rights, and I have been subject to that since 1993, and the order has not been vacated.   Does a temporary order in the family probate court have a exparation date?   I am sending a copy of this letter to my State Rep and State Senator to inform them that this is one of the problems within the Family and Probate Court that needs to be addresses and stopped.  

Thank you.
Hector Montalvo


Dear Mr. Montalvo,   I am responding to your recent e-mail to Chief Justice Carey.  If a judge enters an order requiring you to seek permission by motion or otherwise before you can file any further pleadings, then your remedy, if any, is to appeal the order to the Massachusetts Appeals Court.  This office does not overrule or intervene in cases pending in the various Divisions of the Probate and Family Court Department.  We do not have the authority to do this.  At this time, I suggest that you consult with an attorney.  If you have any questions, please feel free to communicate with me further. 
Thank you. 
John Cross, Pro Se Coordinator
Dear Senator Steven A Baddour
Dear Representative Linda Dean Campbell 

I hope you are enjoying your summer. Thank you for your work on behalf of the
Commonwealth.

On September 17, the House Judiciary will be holding hearings on Shared
Parenting bills. I am writing you to alert you to these hearing and to ask that
you put in a good word of support for Equal Shared Parenting for fit parents.

It is time to level the playing field, and insure that equal rights also occur
in the raising of ones children post separation and divorce.

Thank you for your help in this matter. Please let me know if you can be
supportive and put in a good word to members of the Judiciary committee.

Sincerely

Hector Montalvo


Child Support Enforcement Marily Rae Smith,
 
I have been trying to unlock the big secret, the elephant in the closet here in Massachusetts.
 
That is to find out how many fathers, how many men, have been thrown in jail for civil contempt for being to broke to pay child support, to broke to pay attorney’s fees, special master fees, GAL fees and other fees.  I have sent public requests to the head of the Probate Court, to the Commissioner of Prisons, by the way who told me to ask the different county jails.
 
Every day fathers, men are being thrown out of their jobs and their families for just being a dead broke dad.  In this economy, this practice should stop and must stop. Debtors prisons were eliminated years ago. 
 
Your Department is the keeper of the records, your office should be required to provide such information, and if your Department do not have it, You should be required to start compiling it or be able to back into the information so your Department can provide it.
 
Thank you for helping to provide for this information.
  
Hector Montalvo



Secretary of State William F. Galvin

Public Records Request Appeal

One Ashburton Place

Boston, MA 02108-1517


Re. Public Records Request Appeal;


Dear Secretary Galvin;

I have been trying to unlock the big secret, the elephant in the closet here in
Massachusetts.

That is to find out how many fathers, how many men, have been thrown in jail for
civil contempt for being to broke to pay child support, to broke to pay
attorney's fees, special master fees, GAL fees and other fees. I have sent
public requests to the head of the Probate Court, to the DOR and to the
Commissioner of Prisons, by the way who told me to ask the different county
jails.

Enclosed please find my request of the Middlesex Sheriff's Office, in which the
Commissioner of jails stated should have such records.

I ask that the Middlesex sheriff's office be required to provide such
information, and that if they do not have it, they should be required to start
compiling it or be able to back into the information so they must provide it.

Every day fathers, men are being thrown out of their jobs and their families for
just being a dead broke dad. In this economy, this practice should stop and
must stop. Debtors prisons were eliminated years ago. They should be for dead
broke dads.

Thank you for helping to provide for this information.

Sincerely yours,

Hector Montalvo


Dear State Rep Linda Dean Campbell,
Dear State Senator Steven A Baddour

Debtors prisons were eliminated years ago. However, if you are a divorce father
who is struggling financially, you would not know that debtors prison has been
eliminated. For now their is something called civil contempt and imputed
income. So what does this mean. This means that if you lose your job and can no
longer pay, often Judges in Massachusetts input income for what they think you
should be making even if you are not making it. Therefore if you are not making
what the Judge thinks you should be making, despite a loss of income or a drop
of income. If you are no longer able to financially meet the obligations of
your child support, the Judges do put you in jails.

Now Massachusetts Probate Court, the Department of Revenue and the Prison system
does not keep track of how many fathers are thrown in jail for inability to pay
ones child support. Fathers have tried to glean this information of how many
dads lives are ruined by being thrown into jails and away from their kids.
Fathers have sent out Massachusetts Record Request to all the aforementioned
agencies for this information, only to be told it is not kept.

During these tough economic times, at a minimum, I hereby request that your
office work to suspend all civil contempt suspensions for fathers inability to
pay child support. Fathers should not be forced to lose what ever jobs they do
have and should not be thrown into jails where they certainly can't help to
raise their children. Second, please request that the aforementioned agencies
start to keep records of how many fathers are being thrown in jail for civil
contempt for inability to pay child support, special masters, GAL's, lawyers and
other para professionals.

Please help to stop this practice and do it for the children of the
Commonwealth.

Thank You

Hector Montalvo


Dear Governor,   

I  write today to alert you to a serious problem in our society and to request your assistance for myself and for others who are similarly situated.   As you are aware from your numerous town hall meetings across the Commonwealth, father's are being treated unfairly in our judicial system, particularly in the Probate and Family Courts with regards to child support and child custody.
 
There needs to be a committee appointed to investigate the concerns that you heard many times from the various reaches of the Commonwealth in these matters. I would request that you consider for the appointment to the committee individuals who would have a greater likelihood of impartiality than lawyers and judges that have participated and contributed to the present problem  

I have been victimized by and suffered from this discrimination. My attempts to resolve reasonably my issues with DOR since 1998 has been to no avail. DOR  insists on operating with arrogance, insensitivity and impunity 

I have sought assistance from Congresswoman Niki Tsonga and Representative Linda Campbell but DOR has refused to respond to their requests for information.   I have requested DOR to cease the frivolous actions for alleged arrears that are unproven because the proceedings are exhausting my time in energy in court, which is more troubling and harmful in the present economy.

DOR has complicated my matter by sending my support payments to another state, without any due process to me or even providing me with an order from that state. 

I am threatened with incarceration constantly while DOR violates the laws of the Commonwealth and the U.S. with impunity because judges allows it to act as it does. This must come to an end.  

In the past i have been more than willing and forthright to express my gratitude and appreciation of you in your performance as Governor of the Commonwealth.

Now i ask that you don't let me down and please use the powers that I gave you when I voted for you to send a clear message to DOR that this abuse will stop and stop immediately.
 
I am relying on you as one of the officials that i elecetd to take action to cease my abuse at the hands of bureaucratic thugs. 

In parting,  I wish you the best in your recovery and look forward to hearing from you soon.

Thank You
Hector Montalvo

preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.   A standard of proof that must be met by a plaintiff if he or she is to win a civil action.

In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.

The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.

The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.

Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents' due process rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 [1987]). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children.

Further readings Orloff, Neil, and Jery Stedinger. 1983. "A Framework for Evaluating the Preponderance-of-the-Evidence Standard." University of Pennsylvania Law Review 131 (April).

Slatkin, Stephanie. 1997. "The Standard of Proof at Sentencing Hearings Under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard is Constitutionally Inadequate."

Cross-references Clear and Convincing Proof.