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Case Law

4/28/2010

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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.
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