Scott M. Hodges v. Karynn M. Pauley ( 2021 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SCOTT HODGES, ) No. 80949-1-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
KARYNN PAULY, )
)
Respondent. )
)
ANDRUS, A.C.J. — Scott Hodges appeals a domestic violence protection
order (DVPO) protecting his former girlfriend, Karynn Pauly, an order to surrender
weapons, and court-ordered domestic violence treatment. Hodges argues he did
not commit domestic violence because his actions were the result of an illness, not
an intent to inflict fear on Pauly. He also maintains he should not be required to
surrender weapons because he presented no credible threat to Pauly. Finally,
Hodges contends the DVPO process violated his right to procedural due process
and the court-ordered DV treatment violates his free speech rights. We reject his
arguments and affirm.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80949-1-I/2
FACTS
Karynn Pauly met Scott Hodges in February 2017 and the two dated until
April 2018, when Pauly ended the relationship after witnessing several violent
outbursts by Hodges.
In February 2018, when Pauly and Hodges were together in a parking
garage, Hodges became enraged and kicked out the taillights of three cars, later
blaming her for triggering his conduct. In another instance, Hodges threw a
backpack across Pauly’s bedroom with such force that he dented a closet door
and knocked it off its hinges.
This pattern culminated in April 2018, when Hodges subjected Pauly to
seven hours of destructive behavior. During the incident, he yelled at Pauly,
refused to allow her to go to sleep, broke her dishes and glasses, and threw a beer
bottle at her in her bedroom, drenching her, the bed, and walls in liquid. The next
morning, after locking himself out of Pauly’s apartment, Hodges hit the door so
forcefully while trying to get back in that he cracked the door frame, jammed the
bolt and trapped Pauly inside. She was so frightened she did not go to work for
several days. Pauly then informed the couple’s therapist that she wanted to end
the relationship and no longer intended to participate in joint therapy with Hodges.
A week later, Pauly came home from work around midnight to find Hodges
waiting for her in front of her building. Pauly told him that their relationship was not
healthy and she did not want to see him anymore. Over the next several months,
Hodges wrote Pauly several, often lengthy, letters that he left on her doorstep,
sometimes with packages and flowers. In these letters, Hodges acknowledged his
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behavior was threatening, erratic and out of control. He also admitted knowing
“my behavior scared you and it damaged your feeling of safety.” Pauly did not
respond to Hodges’s gestures, hoping he would eventually cease contact.
On the evenings of February 29 and April 11, 2019, Hodges again came to
Pauly’s apartment uninvited and knocked on her door. Both times, Pauly told him
to stop coming to her apartment. Pauly became frightened when Hodges ignored
her entreaties to leave. During the April 11 incident, Pauly again explained that it
was inappropriate for him to continue contacting her given that the relationship had
ended a long time ago. Hodges’s response was that “he did not think we had
concluded the subject.” Pauly’s body flooded with adrenaline and she started
shaking. She told him if he did not leave, she would call the police. Pauly’s new
partner, at Pauly’s home at the time, refused to accept items Hodges wanted to
give to Pauly and succeeded in locking the door. After this incident, Pauly filed a
police report.
Pauly filed a petition for a DVPO on April 15, 2019. In her petition, Pauly
described the fear she experienced and the anxiety with which she had struggled,
and the treatment she had sought for panic attacks. The court granted Pauly a
temporary restraining order on the same date. Once Pauly served Hodges with
the temporary order, he retained counsel, and sought a continuance of the hearing
on Pauly’s petition to allow him to obtain copies of any police reports and to submit
a written response. The court granted this continuance over Pauly’s objection.
Hodges appeared with counsel for a hearing before a superior court
commissioner on July 18. The commissioner took testimony from Pauly in which
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she described Hodges’s escalating violence toward her during the relationship, his
refusal to accept her request that he have no contact with her, and the anxiety and
fear she felt not knowing when he might show up on her doorstep. Hodges
submitted a written declaration in which he corroborated Pauly’s account of some
of his behavior, but claimed it was attributable to his severe sleep apnea, panic
attacks, and the stress of being in a relationship with a woman who, he stated, had
an “inability to communicate effectively.” Hodges, through counsel, acknowledged
that “[h]e may have had aggressive outbursts,” but he argued the situation was
simply “an issue of miscommunication.” He maintained he did not intend to harm
or threaten Pauly and he did not realize Pauly wanted to cease contact with him
because she did not communicate that fact clearly until the April 2019 incident.
Hodges contended he was “unaware of what [Pauly] wanted. This is a breakdown
in communication.” Hodges testified that, “had Ms. Pauly been able or willing to
communicate to me clearly after May of 2018 what she did or didn’t want by way
of contact from me, I would have appreciated it, would have known what wishes
she wanted me to follow, and we would not be here.” He insisted he meant Pauly
no harm and did not intend to cause her to have fear of any kind.
Pauly disputed Hodges’s version of events after their separation. She
testified she had an in-person conversation with Hodges on May 8, 2018, in which
she put him on notice of her desire to terminate contact with him. She also testified
she informed him a second time on February 26, 2019, when he showed up on her
doorstep and “told him in no uncertain terms at that point that . . . no relationship
was desired and that any further contact was inappropriate, and he still showed up
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a month later.” She also pointed out that despite Hodges sending her seven letters
spaced out over a calendar year, she did not attempt in any way to communicate
with him because the letters reflected his knowledge and recognition that his
behavior had scared her.
The commissioner found that Hodges’s violent conduct and repeated
uninvited appearances at Pauly’s apartment placed her in reasonable fear of
imminent harm and therefore constituted domestic violence. The commissioner
further found that Hodges represented a credible threat to Pauly and entered a
one year DVPO. The commissioner ordered Hodges to participate in a state-
certified domestic violence perpetrator treatment program out of concern that his
current therapist was not addressing his domestic violence issues. Based on the
credible threat finding, the commissioner entered an order requiring Hodges to
surrender any weapons he had in his possession.
Hodges moved to revise the commissioner’s decision. The trial court,
reviewing the record before the commissioner de novo, affirmed the findings and
denied the motion. Hodges appeals.
ANALYSIS
A. Definition of Domestic Violence
Hodges argues the trial court erred in granting the DVPO because he never
assaulted Pauly and she presented no evidence he intended to inflict fear of any
physical harm. We disagree with Hodges’s interpretation of RCW 26.50.010(3) as
well as his characterization of the evidence before the trial court.
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First, RCW 26.50.010(3) defines domestic violence as “[p]hysical harm,
bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury
or assault, sexual assault, or stalking as defined in RCW 9A.46.110 of one intimate
partner by another intimate partner.” The trial court found that Pauly proved “by a
preponderance of the evidence that she has a present fear of harm based on Mr.
Hodges past violent behavior.” Hodges does not challenge this finding. He instead
argues, in the absence of any actual physical injury or assault, a DVPO cannot be
issued unless a petitioner proves a respondent acted with the specific intent to
inflict fear of physical harm.
Although we generally review a superior court’s decision to grant a
protection order for abuse of discretion, In re Marriage of Stewart, 133 Wn. App.
545, 550, 137 P.3d 25 (2006), Hodges raises a question of statutory interpretation
which we review de novo. Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146
Wn.2d 1, 9, 43 P.3d 4 (2002).
The primary goal of statutory interpretation is to determine and give effect
to the legislature's intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003(2014). To determine legislative intent, we first look to the plain language of the
statute. Id. If a statute is unambiguous, Washington courts apply the statute's
plain meaning as an expression of legislative intent without considering other
sources of such intent. Id. at 762.
Hodges argues the phrase “infliction of fear” must be interpreted to require
proof of intent to cause fear. But the dictionary definitions of “inflict” or “infliction”
do not support such an interpretation. To “inflict” is to “cause (something damaging
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or painful) to be endured.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1160
(2002). One can certainly cause another to endure something damaging or painful
without intending to do so.
Our Supreme Court has rejected a similarly limiting interpretation of the
definition of domestic violence in Rodriguez v. Zavala, 188 Wn.2d 586, 398 P.3d
1071 (2017). In that case, the Supreme Court reversed this court’s interpretation
that fear of imminent harm referred only to “the fear possessed by the one seeking
protection, not fear that another family member has of harm to the one for whom
protection is sought.” Id. at 592. The Supreme Court concluded that this
interpretation was “unnecessarily narrow” and went against the plain and
unambiguous language of the statute indicating that domestic violence includes
the infliction of fear of harm between family members generally. Id.As in Rodriguez, Hodges seeks to append a restricting element that is not
supported by the plain language of the statute. The meaning of RCW 26.50.010
is unambiguous. One commits domestic violence when one inflicts fear of physical
harm on one’s intimate partner. This court has repeatedly held that a petitioner’s
fear of harm is sufficient basis for a DVPO. See Maldonado v. Maldonado, 197
Wn. App. 779, 791, 391 P.3d 546 (2017) (“[e]ven when there is no evidence of a
direct assault on a child, fear of violence is a form of domestic violence that will
support an order for protection”); Stewart at 551 (children’s fear of future assault
on their mother constituted domestic violence); Spence v. Kaminski, 103 Wn. App.
325, 332-33, 12 P.3d 1030 (2000) (trial court’s finding that respondent had
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threatened petitioner in the past and that the petitioner continues to be afraid of
petitioner was adequate grounds for permanent protection order).
And despite Hodges’s characterization of his conduct as mere “illness-
induced destructive acts,” Pauly offered circumstantial evidence that Hodges
intended to cause her to fear violence at his hand. A trier of fact “may infer . . .
intent from . . . conduct where it is plainly indicated as a matter of logical probability.
This includes inferring or permissibly presuming that a defendant intends the
natural and probable consequences of his or her acts.” State v. Bea, 162 Wn. App.
570, 579, 254 P.3d 948 (2011). Pauly presented evidence that Hodges yelled and
screamed at her for a seven-hour period, refused to let her sleep, and then after
she went to bed, woke her up by throwing a beer bottle across her bedroom
showering her, the bed, and her walls in liquid. A reasonable trier of fact could
infer intent to inflict fear of bodily harm from the nature and duration of Hodges’s
aggressive actions.
The trial court therefore did not err in granting the DVPO.
B. Credible Threat Finding
Hodges next argues that the trial court erred in finding that he presents a
credible threat to Pauly and ordering him to surrender weapons. A court must
enter an order to surrender weapons in connection with a DVPO if that court finds
the respondent “represents a credible threat to the physical safety” of the individual
protected by the DVPO. RCW 9.41.800(3)(c)(i).
Hodges first maintains that our standard of review should be de novo
because the credible threat finding is a conclusion of law. We disagree. “If a
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determination concerns whether the evidence showed that something occurred or
existed, it is properly labeled a finding of fact, but if a determination is made by a
process of legal reasoning from, or interpretation of the legal significance of, the
evidentiary facts, it is a conclusion of law.” Goodeill v. Madison Real Estate, 191
Wn. App. 88, 99, 362 P.3d 202 (2015) (citing Moulden & Sons, Inc. v. Osaka
Landscaping & Nursery, Inc., 21 Wn. App. 194, 197 n. 5, 584 P.2d 968 (1978)).
In contexts other than the Domestic Violence Protection Act (DVPA), 1 we
have held that whether a person’s past statements were threats and perceived as
threats are questions of fact. Lawter v. Emp’t Sec. Dep’t, 73 Wn. App. 327, 333,
869 P.2d 102 (1994). We have also held that whether a person presents a danger
in the future based on past threatening conduct is also a question of fact. State v.
Wood, 57 Wn. App. 792, 799, fn. 4, 790 P.2d 220 (1990). The DVPA presents a
trial court with an analogous inquiry. Whether Hodges presents a credible threat
of physical harm under the DVPA requires the trier of fact to determine whether
his prior conduct and statements evidence a risk of future dangerousness.
Although the finding does have legal significance in that it requires the court to
enter a surrender weapons order, the court does not interpret the legal significance
of this finding; it only decides whether the threat in fact exists. It is therefore a
finding of fact that we review for substantial evidence. In re Dependency of
Schermer, 161 Wn.2d 927, 940, 169 P.3d 452 (2007).
1
Ch. 26.50 RCW.
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Hodges next maintains that substantial evidence does not support the trial
court’s finding that he represents a credible threat to Pauly. In its oral ruling, the
trial court stated that
I do conclude that Ms. Pauly did witness Mr. Hodges engage in
violent acts in the past, and that having witnessed those acts,
combined with Mr. Hodges showing up at Ms. Pauly’s front door late
at night in April 2019, that was enough, that is enough for me to
conclude that. . . . Mr. Hodges presents a credible threat to physical
safety of Ms. Pauly.
Hodges does not dispute that Pauly witnessed him engage in violent acts or that
he repeatedly showed up at her apartment uninvited late at night. Instead, Hodges
argues that he never intended to harm Hodges and that his actions were caused
by his ongoing medical issues.
But this argument does little to counter the weight of evidence supporting
the trial court’s determination. Regardless of the cause and intent behind
Hodges’s actions, Pauly’s undisputed testimony that she was repeatedly subjected
to his threatening and abusive behavior, that she repeatedly told him to have no
further contact with her, that he ignored her entreaties and continued to show up
on her doorstep late at night, and that he continued to leave her letters suggesting
his intent to continue a relationship she did not want, supports the conclusion that
Hodges represents a credible threat to her. After making this finding, the trial court
was obligated to enter the surrender weapons order and therefore did not err in
doing so.
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C. Domestic Violence Treatment Program
Hodges next argues that the trial court abused its discretion when it ordered
he participate in a domestic violence perpetrators treatment program. We
disagree.
Hodges contends that the court’s order was based on untenable grounds
because his “episodes of violence were illness-based, not part of a pattern of
behavioral domestic violence” and he “was already receiving appropriate medical
and mental health treatments to prevent future episodes of violence.” Hodges
supports his argument by citing to the Washington Domestic Violence Manual for
Judges (DV Manual), which states that “specialized domestic violence counseling
is contraindicated for illness-based violence. In such cases, the violence can be
more effectively managed by appropriate external constraints and by appropriate
medical or mental health intervention.” WASH. STATE SUPREME COURT GENDER &
JUSTICE COMM’N, ADMIN. OFFICE OF COURTS, DOMESTIC VIOLENCE BENCH GUIDE FOR
JUDICIAL OFFICERS 2-27 (June 2016),
http://www.courts.wa.gov/content/manuals/domViol/Complete%20Manual%2020
15.pdf#search=domestic%20violence%20manual%20for%20judges. He
maintains that domestic violence treatment is inappropriate for him. This argument
is unconvincing.
First, state regulations now require that a participant in a domestic violence
treatment program “must complete an individual interview and behavioral
assessment with a certified program prior to starting any level of treatment.” WAC
388-60B-0400(1). The purpose of this assessment is to determine the level of risk,
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needs, and responsivity for the participant as well as the level of treatment required
and the creation of an individualized treatment plan. WAC 388-60B-0400(2). As
part of this process, assessors screen for mental health indicators and are
authorized to recommend no domestic violence intervention treatment where
appropriate. WAC 388-60B-0400(10) and (19)(f). This procedure minimizes the
risk that Hodges will receive domestic violence treatment that is unnecessary or
unhelpful.
Second, Hodges has offered no evidence, other than his own assertions
that his aggressive, threatening behavior is “illness-based domestic violence” as
defined in the DV Manual. The DV Manual cautions that this type of domestic
violence is uncommon, but recognizes that “[a] very small percentage of violence
against intimates is mislabeled as domestic violence when actually it is caused by
organic or psychotic impairments.” DOMESTIC VIOLENCE BENCH GUIDE, supra, at 2-
26. The manual provides an illustrative list of impairments causing illness-based
domestic violence including Alzheimer’s disease, Huntington’s chorea, and
psychosis. Id. The manual makes no mention of sleep apnea or PTSD. Moreover,
the manual states that perpetrators of domestic violence often externalize
responsibility to factors supposedly outside of their control, including PTSD. Id. at
2-37. Ultimately, the trial court is in the best position to determine whether a
respondent’s actions are the result of an illness not amenable to domestic violence
treatment.
The record indicates that the commissioner carefully considered the
evidence of Hodges’s medical issues and the type of treatment he was receiving
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from his long-term therapist. After weighing this evidence, the commissioner
exercised her discretion to order Hodges to participate in a treatment program to
specifically address domestic violence that did not appear to be a part of his
existing therapist’s plan of treatment. The trial court did not err in ordering such
treatment.
D. Court-Ordered DV Treatment as Compelled Speech
Hodges next argues that court-ordered participation in a domestic violence
treatment program constitutes “compelled speech” in violation of his First
Amendment rights. He argues that this requirement in the DVPO will force him “to
express opinions with which [he] might not agree.” We assume, although Hodges
does not explicitly say so, that one of the ideas he disagrees with is the trial court’s
finding that he committed domestic violence.
We will review Hodges’s constitutional challenge de novo. Shoop v. Kittitas
County, 149 Wn.2d 29, 33, 65 P.3d 1194 (2003); Aiken v. Aiken, 187 Wn.2d 491,
501, 387 P.3d 680 (2017).
The freedom of speech contained in the First Amendment to the United
States Constitution “includes both the right to speak freely and the right to refrain
from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51
L. Ed. 2d 752 (1977). “Compelling individuals to mouth support for views they find
objectionable violates that cardinal constitutional command.” Janus v. Am. Fed’n
Mun. Emps., Council 31, 138 S. Ct. 2448, 2463, 201 L. Ed. 2d 924 (2018). It is
this line of cases on which Hodges relies for his challenge here.
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Hodges cites no authority for the proposition that court-mandated treatment
constitutes unlawful compelled speech when the treatment arose out of a judicial
determination that Hodges perpetrated domestic violence. We are not required to
search for authorities and assume that counsel, after diligent efforts, has found
none. City of Seattle v. Muldrew, 69 Wn.2d 877, 420 P.2d 702 (1966).
It is somewhat speculative that Hodges will be “compelled” to admit he
committed domestic violence or else be forced to engage in protected expressive
conduct or speech as a part of his treatment program. However, we assume
without holding, that court-ordered domestic violence treatment involves some
“expression” protected by the First Amendment. See State v. Arlene’s Flowers,
Inc., 193 Wn.2d 469, 511, 441 P.3d 1203 (2019) (a party alleging a violation of the
First Amendment based on compelled speech “must first demonstrate that the
conduct at issue . . . amounts to ‘expression’ protected by the First Amendment”).
WAC 388-60B-0370(3)(d) does require a participant in a domestic violence
treatment program to “actively participate in treatment, including sharing personal
experiences, values, and attitudes.”
The next inquiry is whether the mandated treatment is a “content-based” or
“content-neutral” regulation of speech. Nat’l Inst. of Family and Life Advocates v.
Becerra, 138 S. Ct. 2361, 2371, 201 L. Ed. 2d 835 (2018). Content-based
regulations “target speech based on its communicative content.” Reed v. Town of
Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015). A speech
regulation targeted at a “specific subject matter” will be deemed content-based
even if it does not discriminate among viewpoints within that subject matter. Reed,
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135 S. Ct. at 2230. Laws regulating the content of speech are presumptively
unconstitutional unless they are narrowly tailored to serve compelling government
interests. Becerra, 138 S. Ct. at 2371. Although neither party offers any argument
on whether court-mandated domestic violence treatment programs are content-
based or content-neutral, we assume here that because treatment is targeted at a
specific subject matter, it falls into the category of regulating content-based speech
and will apply strict scrutiny.
Under this test, we conclude court-mandated domestic violence treatment
is narrowly tailored to advance a compelling government interest. First,
Washington’s legislature and state Supreme Court have both recognized that the
government has a compelling interest in preventing domestic violence and abuse.
Gourley v. Gourley, 158 Wn.2d 460, 468, 145 P.3d 1185 (2006); LAWS OF 1993,
ch. 350, § 1 (recognizing that “domestic violence is a problem of immense
proportions affecting individuals as well as communities. . . . Domestic violence
costs include the loss of lives as well as millions of dollars each year in the state
of Washington for health care, absence from work, and services to children. The
crisis is growing.”)
The court-ordered treatment is narrowly tailored to advance this compelling
interest. First, RCW 26.50.060(1)(e) gives courts the discretion to “[o]rder the
respondent to participate in a domestic violence perpetrator treatment program
approved under RCW 26.50.150.” RCW 26.50.150, in turn, requires domestic
violence treatment programs to be certified by the Department of Social and Health
Services and meet minimum standards, the primary focus of which is “ending the
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violence, holding the perpetrator accountable for his or her violence, and changing
his or her behavior.” RCW 26.50.150(4). This focus ties back directly to the
compelling interest in preventing domestic violence.
Second, the court ordered Hodges to attend this treatment only after
conducting a contested evidentiary hearing during which he was represented by
counsel and only after finding that he had in fact committed domestic violence.
Third, Hodges had the opportunity to argue to the commissioner and
subsequently on revision before the trial court that domestic violence treatment
was not appropriate for him. Moreover, the governing WAC provisions provide for
an intake process that tailors an individualized treatment plan and minimizes the
likelihood that Hodges will receive treatment that is outside the legislature’s stated
objective of preventing domestic violence and abuse. WAC 388-60B-0400.
We conclude under these circumstances, the court order requiring Hodges
to participate in domestic violence treatment survives strict scrutiny.
E. Procedural Due Process
Hodges next argues that the trial court’s orders violated his procedural due
process rights. We reject this contention as well.
“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The level of procedural protection
required varies based on circumstance. Id. at 334.
Our Supreme Court has upheld the DVPA against procedural due process
challenges. See Aiken, 187 Wn.2d at 504-05 (due process does not require trial
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court to allow parent to cross examine child regarding alleged domestic violence);
Gourley, 158 Wn.2d at 467 (same). Hodges seeks to distinguish Gouley and Aiken
by arguing that, unlike in the parenting context where the petitioner and respondent
have competing equal rights to the control and care of their children, Pauly has “no
offsetting rights over [Hodges’s] liberty or right to bear arms.” He argues that
“[h]ere, where firearm restrictions or DV treatment requirements are at stake, due
process should require more.” But our due process analysis does not pit Hodges’s
rights to bear arms against Pauly’s right to be free from domestic violence. We
look at Hodges’s interests and those of the government in protecting victims:
In evaluating the process due in a particular situation, [Washington
courts] 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.
Aiken, 187 Wn.2d at 501-02 (quoting Mathews, 424 U.S. at 335). In both Aiken
and Gourley, despite recognizing the respondents’ fundamental right to make
decisions concerning the care, custody, and control of their children, the Supreme
Court concluded that “[t]he government has an equally compelling interest in
protecting children and preventing domestic violence or abuse.” Aiken, 187 Wn.2d
at 502-03 (citing Gourley, 158 Wn.2d at 468). This interest is anchored in the
legislature’s explicit findings in enacting provisions of the DVPA. See LAWS OF
1993, ch. 350, § 1. The court concluded in both cases that the parent’s rights over
their children does not outweigh the government’s compelling interest in preventing
domestic violence. Aiken, 187 Wn.2d at 502-03; Gourley, 158 Wn.2d at 468.
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We therefore conclude, as the Supreme Court did in Aiken and Gourley,
that the first and third factors must be balanced by a consideration of the
procedures employed by the government and the risk that Hodges's interests were
erroneously deprived. Gourley, 158 Wn.2d at 468.
The DVPA provides several procedural protections for respondents. Aiken,
187 Wn.2d at 502; Gourley, 158 Wn.2d at 468-69. The provisions of the DVPA
satisfy the two fundamental requirements of due process—notice
and a meaningful opportunity to be heard by a neutral decision
maker. The procedural safeguards include: (1) a petition to the court
setting forth facts under oath; (2) notice to the respondent; (3) a
hearing before a judicial officer where the petitioner and respondent
may testify; (4) the opportunity to file a motion to modify a protection
order; (5) a requirement that a judicial officer issue any order; and (6)
the right to appeal.
State v. Karas, 108 Wn. App. 692, 699, 32 P.3d 1016 (2001) (citing Spence v.
Kaminski, 103 Wn. App. 325, 334, 12 P.3d 1030 (2000). Each of these procedural
safeguards was provided in the present case to protect Hodge’s due process
rights.
Hodges was represented by counsel at every stage of this proceeding. He
was afforded adequate notice and the court granted him a five-week continuance
to respond to Pauly’s petition. Hodges presented his argument via a declaration
and exhibits, and volunteered testimony at the hearing. He did not request the
opportunity to cross examine Pauly. After the commissioner’s ruling, Hodges filed
a motion for revision and again had the opportunity to be heard in front of a trial
court.
Moreover, the risk of the erroneous deprivation of Hodges’s constitutional
interests is mitigated by the DVPO’s limited one-year term. See Mathews, 424
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U.S. at 341 (holding that the possible length of wrongful deprivation of a property
interest is an important factor in assessing the impact of official action on the
private interests).
Hodges has failed to show how these numerous safeguards were so
deficient as to deprive him of due process. Our Supreme Court has repeatedly
upheld these procedural protections in the DVPO context and we adhere to those
holdings here.
F. Appearance of Fairness
Hodges lastly argues that the DVPO process violates the appearance of
fairness doctrine. We disagree.
“Under the appearance of fairness doctrine, a judicial proceeding is valid
only if a reasonably prudent, disinterested observer would conclude that the parties
received a fair, impartial and neutral hearing.” State v. Gamble, 168 Wn.2d 161,
187, 225 P.3d 973 (2010). The doctrine requires that the judge not only be
impartial, but also appear to be impartial. Id. (citing State v. Madry, 8 Wn. App. 61,
70, 504 P.2d 1156 (1972)). A successful claim under the doctrine requires
evidence of actual or potential bias on the part of the judge. State v. Chamberlin,
161 Wn.2d 30, 37, 162 P.3d 389 (2007).
Hodges cites a number of provisions of the DVPA, arguing that they create
a process which favors petitioners over respondents. The fundamental problem
with Hodges’s argument is that he does not provide evidence of bias on the part
of any judicial officer, but instead asserts bias of the legislature in drafting the
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DVPA. The appearance of fairness doctrine does not apply to legislative actions.
See Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996).
Hodges also argues the commissioner who granted Pauly’s ex parte DVPO,
violated the appearance of fairness doctrine by asking Pauly several leading
questions during the hearing. But the commissioner’s efforts to elicit information
from a pro se petitioner does not constitute evidence of bias. Judges are permitted
“to make reasonable accommodations to ensure pro se litigants the opportunity to
have their matters fairly heard” without violating the rule of partiality and fairness.
CJC 2.2, comment 4. These actions do not violate the appearance of fairness.
G. Attorney Fees
Pauly requests attorney fees for this appeal. An appellate court may award
attorney fees where allowed by statute, rule or contract. Aiken, 187 Wn.2d at 506.
Under RCW 26.50.060(1)(g), the court has the discretion to require a respondent
in a DVPA proceeding to pay reasonable attorney fees. Id. Because Pauly is the
prevailing party, we exercise our discretion and grant her request for reasonable
attorney fees and costs on appeal subject to her compliance with RAP 18.1.
Affirmed.
WE CONCUR:
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