In Re The Marriage Of: Leslie Mccann, And Jeffery Mccann ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of tP
..•Aa.
No. 76113-7-1
LESLIE MCCANN, .40"A
DIVISION ONE
.1 01
1 4"
Appellant, V
irtrt
PUBLISHED OPINION .
1
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and
JEFFERY MCCANN, 1
.4
Respondent. FILED: August 20, 2018
APPELWICK, C.J. — Orr seeks a new trial because the trial court denied her
accommodations for disability sought pursuant to GR 33. She argues that she was
denied a fair trial and that her constitutional rights were violated as a result. But,
Orr failed to establish that she had a disability entitling her to accommodation
under GR 33. We affirm.
FACTS
The care of the parties' special needs child was the central issue in this
dissolution proceeding. Leslie Orr's' and Jeffery McCann's daughter was born on
August 24, 2004. The daughter has been diagnosed with high-functioning autism,
separation anxiety, obsessive-compulsive disorder (OCD), and selective mutism.
The parenting plan evaluation, authored by Clinical and Forensic Psychologist Dr.
Gary Wieder, concluded that the daughter is "profoundly impaired and has lived a
1 Orr was previously known as Leslie McCann. The final dissolution decree
changed her name to Leslie Orr.
No. 76113-7-1/2
sheltered and unusual life." Dr. Wieder warned that "[w]ithout intensive specialized
treatment for separation anxiety and OCD she will likely become a disabled adult."
The daughter was completely estranged from her father for reasons that Dr.
Wieder described as "completely irrational" and "a manifestation of[the daughter's]
severe anxiety/OCD."
Following trial, the court granted McCann full decision making authority for
the child's education and medical care, and ordered that the child be transitioned
to live with McCann half of the time.2 It appointed a guardian ad litem. It also
ordered McCann to pay spousal support and awarded him the family residence.
Orr does not assign error to the substance of the dissolution decree or related
orders. Instead, she seeks a new trial based on the failure of the trial court to
accommodate her disability during the trial.
Orr filed for dissolution from McCann on October 26, 2015. Trial was set
for September 26, 2016. The discovery cut off was August 26, 2016. Dr. Wieder
completed the parenting evaluation in June 2016. Mediation was scheduled for
August 29, 2016.
Orr was represented by three different attorneys in the extensive pretrial
litigation during the nine months after she filed for dissolution. Her last counsel
withdrew on July 18, 2016 and Orr proceeded pro se through trial. The
proceedings from this point forward relative to accommodation are at issue in this
appeal.
2The parenting plan giving residential time to McCann had not been
implemented at the time of oral argument. Neither Orr nor the child could be
located.
2
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On August 9, 2016, Orr resumed the discovery process and issued multiple
subpoenas duces tecum for business records.3 On August 26, 2016, the day of
the discovery cutoff and one month before trial, Orr e-mailed a request for a 30
day trial continuance. The basis for her request was to give her time to identify
potential accommodations for an alleged disability. The request was e-mailed to
the King County Superior Court deputy court administrative officer. She was not
in the office. On September 2, 2016, the Friday before the Labor Day weekend,
the administrative officer forwarded the request to the assigned trial court.
The mediation set for August 29, 2016 was unsuccessful.
On September 7, 2016, the trial court denied the request for a continuance,
because it had not been served on McCann as required by CR 5, could potentially
affect court proceedings, and prejudice McCann.
On September 14, 2016, less than two weeks before trial, Orr submitted
additional information to the trial court in support of her continuance request. She
provided a completed request for accommodation form, on which she described
her disability as a "[p]sychiatric injury either caused by or exacerbated by the stress
regarding protecting and providing for her daughter with developmental
disabilities." With this submission, she included a declaration from Dr. Karin
Huffer, a licensed therapist. Dr. Huffer's curriculum vitae stated that she had a
high honorary Doctor of Philosophy (PhD) in counseling and forensic psychology
3 Orr alleged that the third party recipients of the subpoenas were entities
that may have paid McCann. Orr believed that the payment records from these
entities might contradict McCann's previous interrogatories regarding his source
of income.
3
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from Kings International University of Science and Technology, Delaware and
Republic of Dominica, based on her research and work, and was an adjunct
professor of Professional Studies at John Jay College of Criminal Justice. She
described herself as an Americans with Disability Act of 19904 (ADA) advocate.
Dr. Huffer described Orr as "a qualified person under the Americans with
Disabilities Act Amendments Act due to psychiatric injury either caused by or
exacerbated by the stress regarding protecting and providing for her daughter with
developmental disabilities." The materials did not include documentation of a
medical diagnosis of posttraumatic stress disorder(PTSD) or any other disability.
Nevertheless, Dr. Huffer stated that Orr needed a disability advocate with her at
all times during trial, and Orr required a 30 day continuance to properly evaluate
what accommodations were necessary.
On September 16, 2016, Orr filed an addendum to her accommodation
request, this time seeking a continuance until December 1, 2016. The majority of
this addendum discussed the voluminous discovery that Orr had received from her
August 9 subpoenas and the time she needed to adequately review this discovery.
Two sentences of that addendum noted that disability accommodations "are still
not in place" which had hindered her access to justice and caused her to miss
deadlines and procedures. The only accommodation requested by Orr in her
previous filing was that an ADA advocate be present during trial. Orr's
memorandum did not identify what deadlines or procedures she had missed.
4 42 U.S.C. §§ 12101-12213.
4
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McCann objected to the continuance. On September 23, the trial court
again denied the requests for continuance in the September 14 and 16 filings.
Trial commenced on September 26, 2016. Orr made a request for a two
week continuance: "I have an attorney who is willing to represent me,.. . and can
do it with a short continuance of two weeks. I do not feel I am prepared or able to
represent myself in this matter. I am extremely afraid of cross[-]examining and
directly examining Jeff." The trial court denied the request, reasoning,
I understand that request. That request is again denied. You have
made that a few times. I understand the reluctance that someone
has representing themselves, but you have had an opportunity to
obtain an attorney. You have had at least a couple of attorneys
representing you in this matter. I have also had the opportunity to
interact with you in court and receive your written material, which is
of high quality in advocating your position. So I respect what you are
asking for, but that request is denied.[5][6]
The issues at trial generally involved the care of the daughter, property
division, and maintenance. Orr began her case-in-chief by calling McCann as a
witness and examining him at length.
Next, she called Dr. Huffer, who testified by phone. Dr. Huffer testified that
she teaches an Americans with disabilities certification course, and she testified
about how the parties' child should be accommodated. She did not testify that she
had diagnosed Orr with any specific disability, nor that she was competent to do
so. On cross-examination she testified that she supplied a "functional evaluation"
5 The trial court subsequently also observed, "She has had money to hire
an attorney."
6 Orr argues the court's comments on the high quality of her work indicates
the court was substituting its judgment for the evidence on the question of whether
she had a disability. In context of the statement, such a claim is baseless.
5
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regarding accommodations necessary for Orr. She did not elaborate on what a
functional evaluation means. Nor did she explain the extent to which the
assessment and any recommended accommodations were predicated on Orr's
claim of PTSD.
On the third day of trial, September 28, 2016, Orr failed to appear. One of
Orr's friends reported to the trial court that Orr had had symptoms of vomiting,
fainting, incoherence, chest pains, and panic attack and had to go to the
emergency room. The trial court recessed until the next day. However, on
September 28, the trial court received two packets of information from Orr. They
were materials from Dr. Huffer prepared as part of another request for a disability
accommodation.7
Orr did not appear in court the next day, either. The trial court addressed
the materials it received the previous day. It noted that the only information that
purported to identify a disability diagnosis referred to the parties' daughter, who
had been diagnosed with autism disorder, among other things. For the first time,
the documents specifically requested distinct accommodations, eight of them,
other than a continuance. But, because the supporting information failed to
specifically identify that Orr had been diagnosed with a disability, and because it
was unclear whether Dr. Huffer had appropriate credentials, the trial court
concluded that it had insufficient evidence to find that Orr had a disability as
7 The packets were duplicative; the latter included an accommodation
request cover sheet.
6
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contemplated by GR 33. It ordered trial to continue on the following Monday,
October 3.
On October 3, before trial resumed, the court received another packet of
information from Orr relating to accommodations.8 Much of Dr. Huffer's material
in this packet discussed the challenges that disabled persons have in access to
justice, and only a small portion focused on Orr specifically.8 However, Dr. Huffer
included a new line: "Diagnosis: Post-Traumatic Stress Disorder."1°
This was the first time a reference to a diagnosis related to Orr was made
and the first opportunity that the trial court had to address the accommodations
8 The October 3 materials were filed late on September 30, but the trial court
did not actually receive them until the morning of October 3.
9 As with previous submissions, the October 3, 2016 packet referred to
domestic violence suffered by Orr. It noted that Orr's history demonstrates an
insidious type of domestic abuse. No details were provided.
Importantly, Orr had previously reported two incidents of domestic violence.
First, in 2012, Orr reported a domestic disturbance after a struggle over a
briefcase. Second, in 2013, Orr reported that McCann had wrapped his arms and
legs around her during a dispute. In both cases, sheriff's deputies responded, but
no arrests were made. Orr obtained a temporary restraining order against
McCann, and also petitioned for a domestic violence protection order. The parties
underwent a domestic violence assessment, which rejected the assertion that
there was domestic violence in the marriage. Following that assessment, the
petition for a domestic violence protection order was dismissed by agreement
between the parties. Orr also had filed a tort claim against McCann based on
domestic violence, but abandoned that case.
10 In her opening brief, Orr argues that we should also consider evidence
not submitted below that shows Orr's treating naturopath, Dr. Beth Falanga, had
diagnosed her with PTSD on September 19, 2016. She asserts that she was
unable to present this diagnosis below, because this physician was scheduled to
testify on the dates when Orr fell ill, and was otherwise unavailable.
Orr does not give a meaningful analysis of the RAP 9.11 requirements. We
deny the request that we consider this evidence.
In response to the RAP 9.11 request in Orr's opening brief, McCann moved
to either strike Dr. Falanga's diagnosis, or to allow submission of an interrogatory
answer in which Orr stated that she did not have any mental disorder. Because
we do not consider Orr's offered evidence, we need not consider this offer either.
7
No. 76113-7-1/8
request in context. After analyzing the October 3 packet, the trial court was again
unable to conclude that Orr had provided sufficient evidence to show that she in
fact suffered from a disability:
The Court has several concerns about this memorandum from
Karen Huffer. One is that this memorandum is primarily a general
broad discussion of Ms. Huffer's concerns around coercive control
with very little indication that Dr. Huffer's observations are related
specifically to Ms. McCann's actual situation. In fact, the
memorandum makes very few actual references to Ms. McCann or
Ms. Orr specifically. Second, after reading Dr. Huffer's
memorandum, reading her curriculum vitae, which is trial Exhibit 2,
and hearing her testimony by phone last week, it is far from clear that
Dr. Huffer has the credentials or expertise to provide a medical
psychiatric or psychological evaluation of Ms. McCann. Third, even
if Dr. Huffer did have the credentials to do so, it does not appear that
she has actually done so. Although she is offering some
conclusions.
In summary, based on the information provided to me, I
cannot find that Ms. McCann has a disability.
The court went on to address the requested accommodations out of respect for
Orr:
Even so, I'm going to address the 8, now 9, specific requests for
accommodation in Dr. Huffer's memo. I do this for three primary
reasons. First, regardless of the legal analysis, as a matter of
respect and dignity, I want all parties to have within reason a pleasant
court experience, or at the least, the least unpleasant court
experience. Second, there is a child involved in this case. It is in the
child's best interest for me to keep this trial moving along towards a
final parenting plan. That is consistent with what is expressed in our
state case law, as well as RCW 26.09, the revised code of
Washington. In this case, those policy reasons are exacerbated by
the fact that it has been so long since the child has seen her father.
Third, I want to address the accommodations in the event that I'm
wrong about the finding [on] disability and someone believes that I
have reached an incorrect conclusion, it may be helpful to also have
my analysis about the accommodations. I want to note that the
accommodations must be, to use GR 33(b)'s wording, necessitated
8
No. 76113-7-1/9
by the disability. So there must be a connection there. So let me
address the nine accommodations that Dr. Huffer proposes.
Even though it found no disability, the trial court did not outright reject these nine
requested accommodations. Instead, it completely granted some, partially granted
some, and denied others on the grounds that they were unwarranted or
impractical."
Following trial, the court granted McCann full decision making authority for
the child's education and medical care, and ordered that the child be transitioned
to live with McCann half of the time. It appointed a guardian ad litem. And, the
trial court ordered McCann to pay spousal support, and awarded McCann the
family residence.
Orr moved for a new trial, to void the judgment, and for a new trial judge.
She argued that her disabilities were not properly accommodated. The trial court
denied these motions.
Orr appeals.
DISCUSSION
The appeal turns on whether Orr has a disability, and if so, whether the
disability accommodations given to Orr, or lack thereof, deprived her of a fair trial.
11 The nine requested accommodations were as follows: (1) 30 day
continuance,(2) trained ADA advocate at Orr's side at all times or reachable by
phone during trial, (3) rules, orders, and deadlines must be provided to Orr orally
and written, (4) Orr must be allowed breaks when symptomatic,(5) Orr must be
allowed to record all proceedings for her private use, (6) court days must be
shortened to no more than four hours,(7) Orr must be allowed to wait for her court
time in a sequestered area away from McCann, (8) Orr may need further
continuances to revisit issues decided when she did not have access to
proceedings, (9) Orr must be allowed to seek medical care if she becomes
symptomatic.
9
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Orr makes three arguments. First, she argues that the trial court procedurally and
substantively misapplied GR 33. Second, she argues that the trial court abused
its discretion in denying her motion for a mistrial. Third, she argues that she was
denied her procedural due process rights. McCann seeks attorney fees on appeal,
based on what he describes as Orr's intransigence.
I. GR 33
Orr argues that the trial court misapplied GR 33. Specifically, she argues
that the trial court misapplied the procedures for addressing GR 33 requests. And,
she argues that the trial court substantively erred by not implementing the required
accommodations under GR 33.
In response, McCann raises two threshold arguments. First, he makes a
purely legal argument that GR 33 is not subject to appeal in the same case in which
the accommodation was denied, and, in any event, the proper party to bring that
claim against is the King County Superior Court, not McCann. Second, he argues
that Orr failed to prove that she has a disability, and thus the provisions of GR 33
do not apply.
A. Appealability and Proper Party
McCann argues that Orr cannot seek relief under GR 33, because (1) the
rule provides no right of appeal, and (2) the real party in interest in any such suit
would be King County, because McCann was not the party that denied her an
accommodation. No Washington case has addressed whether and how a
misapplication of GR 33 may be appealed.
10
No. 76113-7-1/11
McCann is correct that GR 33 does not explicitly provide the right to an
appeal. But, comment 1 to GR 33 states that the policy of the courts is to provide
meaningful access to justice and the judicial system. Creating a strict, narrow, and
more onerous path to obtaining a remedy under GR 33 would cut against this
stated purpose. And, Washington appellate courts have repeatedly entertained
appeals involving other general rules that, like GR 33, do not grant an explicit right
to an appeal. In In re Dependency of M.H.P., 184 Wn.2d 741, 753, 364 P.3d 94(2015), the Supreme Court reviewed the trial court's application of GR 15(c), which
concerns sealing of records. Like GR 33, GR 15 does not explicitly grant a right
to appeal, or otherwise instruct that an application of GR 15 is appealable. And,
in State v. Russell, 141 Wn. App. 733, 740, 172 P.3d 361 (2007), this court
reviewed the trial court's application of GR 16, which concerns media in the
courtroom, to the defendant's trial below. As with those rules, a party is entitled to
challenge the application of GR 33 in an appeal of the same proceeding in which
the GR 33 accommodations were sought.
McCann also contends that King County is the proper party to defend
against Orr's claims that GR 33 was violated, because it was the superior court
that denied Orr's accommodation. That argument fails for similar reasons. In
M.H.P., the dispute involved application of the general rule on sealing, GR 15. See
184 Wn.2d 748. In Russell, the defendant claimed that his right to a public trial
was denied, in part because the trial court failed to allow open access to the court
room under GR 16. 141 Wn. App. at 740. In neither case were the appellants
required to bring their claims against the counties. The same is true here.
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No. 76113-7-1/12
Orr contends that her right to a fair trial was violated because of the trial
court's misapplication of a general rule that pertains to courtroom procedures, not
because of any conduct by McCann. The issue in this forum is whether Orr was
denied a fair trial, not whether King County should be sanctioned for failure to
accommodate her. We reject McCann's argument that an appeal Of the
accommodation issue must be separate from an appeal of the underlying action
and that King County is the proper party to defend such an appeal.
B. Proof of Disability
The trial court found that Orr failed to establish that she has a disability, and
thus accommodations under GR 33, including a continuance, were not warranted.
1. GR 33 Requires Existence of a Disability to Trigger Accommodation
We first address whether the trial court properly interpreted GR 33 to require
that Orr prove the existence of a disability to trigger the accommodation process.
The interpretation of a court rule is a question of law that is reviewed de novo.
Seto v. Am. Elevator, Inc., 159 Wn.2d 767, 772, 154 P.3d 189 (2007). GR 33
requires that a court service be readily accessible to a person with a disability. GR
33(a)(1). It defines "person with a disability" as
a person with a sensory, mental or physical disability as defined by
the Americans with Disabilities Act of 1990 (§ 42 U.S.C. 12101 et
seq.), the Washington State Law Against Discrimination [(WLAD)]
(RCW 49.60 et seq.), or other similar local, state, or federal laws."
GR 33(a)(2). The ADA defines a disability as "a physical or mental impairment that
substantially limits one or more major life activities of such individual," "record of
such impairment," or "being regarded as having such an impairment." 42
12
No. 76113-7-1/13
U.S.C. § 12102(1). WLAD defines "disability" as "a sensory, mental, or physical
impairment," that is "medically cognizable or diagnosable," "[e]xists as a record or
history," or is "perceived to exist whether or not it exists in fact."12 RCW
49.60.040(7). At oral argument, Orr argued that WLAD contains a broader
definition of disability than the ADA. Orr claimed psychiatric injury identified as
PTSD. McCann does not argue that PTSD is not a disability. The question is
whether Orr had the disability she claimed.
GR 33 permits a trial court to deny an accommodation request for a handful
of reasons:
(A)the person requesting application has failed to satisfy the
substantive requirements of this rule; or
(B) the court is unable to provide the requested
accommodation on the date of the proceeding and the proceeding
cannot be continued without significant prejudice to a party; or
(C) permitting the applicant to participate in the proceedings
with the requested accommodation would create a direct threat to
the health or well being of the applicant or others.
(D) the requested accommodation would create an undue
financial or administrative burden for the court; or would
fundamentally alter the nature of the court service, program or
activity under (i) or (ii):
(i) An accommodation may be denied based on a
fundamental alteration or undue burden only after considering
all resources available for the funding and operation of the
service, program or activity, and must be accompanied by a
written statement of the reasons for reaching that conclusion.
12 In the employment context, Washington courts have reasoned that "[i]f
the employee is relying on perception to establish disability, the employer, not the
employee, must perceive the disability." Fischer-McRevnolds v. Quasim, 101 Wn.
App.801, 810,6 P.3d 30(2000). Orr does not specifically argue under a perceived
disability theory, and thus it is not at issue.
13
No. 76113-7-1/14
(ii) If a fundamental alteration or undue burden would result
from fulfilling the request, the Court shall nevertheless ensure
that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the
Court.
GR 33(c)(2). GR 33(c)(2)(A) is the exception at issue.
The trial court did not err in its interpretation that GR 33 requires proof of
disability as a prerequisite to accommodations at trial.
2. The Evidence Did Not Establish the Existence of a Disability
When the trial court has weighed the evidence, our review is limited to
determining whether substantial evidence supports the findings. Ridgeview Props.
v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). Orr argues that the trial
court's actions reflect implicit bias against or ignorance of mental illness. Her
argument largely ignores that her claim of PTSD was not supported by evidence
of a competent diagnosis and that Dr. Huffer's accommodation recommendations
were predicated on the assumption that PTSD had been diagnosed.
In her August 26 request for a continuance, Orr claimed a disability of
"[p]sychiatric injury either caused or exacerbated by the stress regarding protecting
and providing for her daughter with developmental disabilities." The
accommodation she requested was a 30 day continuance to complete ADA
accommodation evaluations. The attached declaration from Dr. Huffer stated that
she had been engaged by Orr to "help alleviate her anxiety."
In Dr. Huffer's September 28, 2016, submission, she discussed only
"[d]iagnostic [c]onsiderations" with respect to the 12 year old special needs
daughter. She noted in this and subsequent submissions that "Orr's history
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No. 76113-7-1/15
demonstrates an insidious type of domestic abuse," and opined that "[t]he type of
PTSD suffered from intimate partner violence usually is sustained by" a number of
factors. However, the evidence at trial does not support the domestic violence
allegations implied by Dr. Huffer. Most notably, the domestic violence assessment
of McCann found that the information did not lead to the conclusion that McCann
engaged in a pattern of domestic violence. To the contrary, that report stated,
Ms. Orr maintains that Mr. McCann has been controlling of her
throughout the marriage but a review of the information provided
indicates that Ms. Orr has been controlling of Mr. McCann, his
relationship with his daughter and the type of treatment and or/care
that [the daughter] has received to address her significant mental
health needs. It appears that Ms. Orr has used [the daughter] to
control Mr. McCann and has marginalized his access to or input into
his daughter.
The assessment also recommended that the domestic violence protection order
against McCann be dismissed, and it ultimately was dismissed by agreement on
January 29, 2016. Dr. Huffer provided no evidence in her written materials or in
her testimony that Orr suffered from domestic violence at the hands of McCann.
Neither she nor any other expert witness provided a competent diagnosis that Orr
suffered from PTSD, regardless of cause. Dr. Huffer's final amended written
submission, provided on October 3, 2016, days after she had testified at trial,
included a notation for the first time of "Post Traumatic Stress Disorder (Acute
Stress Disorder)" specifically attributed to Orr. However, Dr. Huffer did not identify
who may have made such a diagnosis. She did not claim in her memorandum or
testimony to have made a diagnosis of PTSD, nor did she claim to have the proper
credentials to make such a diagnosis.
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No. 76113-7-1/16
Instead, Dr. Huffer purported to offer a "functional assessment" of Orr. She
described her expertise as, "I work as a special ed[ucation]teacher, now a special
ed[ucation] teacher on steroids going around the nation ensuring everybody
everywhere has equal access. But it is taking the disability law and being sure that
it is included in decisions in order to ensure equal access."
The trial court found that Orr failed to satisfy the substantive requirements
of the rule—proof of a disability. To the extent the court concluded that Dr. Huffer
was not qualified to diagnose Orr with a psychiatric disability, that conclusion is
supported by substantial evidence. And,to the extent that the trial court concluded
that Orr failed to demonstrate that she had been diagnosed with a disability that
conclusion is also supported by substantial evidence. In absence of a disability, it
was not error for the trial court to deny the requested accommodations.
C. Procedural Arguments
Orr also argues that the trial court erred in its process for addressing her
GR 33 request. She argues that (1) the trial court erred by not entering a written
decision denying her accommodation requests, (2) the trial court erred by not
advising her of her right to file an ADA complaint,(3)the process should have been
handled wholly ex parte, and (4) the trial court failed to promptly act on the
requests.
The text of the rule refutes the argument that the decision must have been
in writing. The rule states,
The court shall, in writing or on the record, inform the person requesting an
accommodation that the request for accommodation has been granted or
denied, in whole or in part, and the nature and scope of the accommodation
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to be provided, if any. A written decision shall be entered in the proceedings
file, if any, in which case the court shall determine whether or not the
decision should be sealed. If there [are] no proceedings filed the decision
shall be entered in the court's administrative files, with the same
determination about filing under seal.
GR 33(d)(emphasis added). If a written decision is made, it shall be entered in
the proceedings file, if any.
Here, when the trial court entered decisions, it did so on the record in each
instance and stated the grounds for its ruling. It also denied, in writing, the August
26 continuance request, and the September 14 and September 16 requests. It
appears that the trial court denied the later requests for a continuance and
accommodation made at trial on the record, but not in writing.13 We do not read
GR 33 as requiring that the court file a written decision in every instance.
Therefore, Orr has not established the trial court violated the rule. But, even if the
rule required a written order following a decision on the record in every instance,
Orr does not articulate how failure to enter these written orders denied her a fair
trial.
Second, Orr argues that the trial court erred by not advising her of her right
to file an ADA complaint. GR 33(e)states that when a request is denied, the court
must "ensure that the person requesting the accommodation is informed of his or
her right to file an ADA complaint with the United States Department of Justice
Civil Rights Division." GR 33(e). McCann concedes that the trial court did not
advise Orr of this right. Orr clearly knows of the right, but the record does not
13 To the extent that any of Orr's requests for a continuance were not related
to a disability, but were to allow her to better prepare for trial, GR 33 does not
apply. Given the proximity of those requests to the date of trial, we find no abuse
of discretion in denying them.
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No. 76113-7-1/18
reveal when she became aware of it. She does not argue that, as a result of this
failure of the court to give notice, she learned of this right too late to file such a
complaint, or that any remedies she might have under the ADA have been
prejudiced. She does not identify how this failure of notice denied her a fair trial.
Third, Orr argues that the GR 33 process should have been wholly ex parte.
The rule specifically states that an application requesting accommodation "may be
presented ex parte in writing." GR 33(b)(4). However, the rule does not require
that the request be handled wholly ex parte. Nothing in the facts of this case
compels a conclusion that this proceeding was required to be wholly ex parte.
The August 26, September 14, and September 16 requests all involved a
continuance in the trial date. The August 26 application neither documented a
disability, nor documented necessary accommodations. It requested time to
evaluate the need for accommodations. Health care information is to be sealed
and available only to the court and the person requesting accommodation unless
expressly ordered by the court. GR 33(b)(5). The documents were sealed by the
trial court. But, the court then required them to be available to McCann,as allowed
by the rule.
The trial court was aware that McCann and his daughter were being kept
apart pending the outcome of the trial. The trial court recognized that McCann had
a right to notice of a motion for a continuance. See CR 5(a). It ordered that
McCann be served with the continuance and accommodation requests. Orr makes
no claim that disclosure of the information she submitted in her accommodation
documents, by service on McCann, resulted in prejudice to her at trial. In fact, she
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No. 76113-7-1/19
made the same argument for a continuance at the start of trial. On the facts of
these three requests, it was not an abuse of discretion for the trial court to apply
CR 5, requiring service of the motion on McCann, rather than suspending the court
rule and proceeding ex parte.
The continuances requested on September 14, 2016 and on September 16,
repeated the original request, but relied heavily on Orr's declaration that she
needed additional time to prepare for trial due to discovery she initiated after going
pro se. The September 28, 2016 and October 3, 2016 requests contained a list of
accommodation requests, in addition to a continuance. The requests were sealed,
but the trial court ordered that they be served on McCann. On did not object to
service of the subsequent motions on McCann. She does not argue any prejudice
from serving the motions. On these facts it was not an abuse of discretion to
require notice to McCann of these motions.
Fourth, Orr argues that the trial court failed to act promptly in resolving her
accommodation requests. GR 33(b)(1) states that requests "will be addressed
promptly." Orr argues that trial court did not act "promptly," because her first
request was made on August 26, but the trial court took nearly a month to rule on
the merits of that request. The initial request was not forwarded to the trial court
until Friday, September 2, 2016, because the administrator to whom it was
addressed had been out of the office. And, the trial court was on leave until
September 6, 2016. On September 7, the trial court denied the request. The trial
court acted promptly on this initial request.
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Orr renewed the continuance requests on September 14, 2016 and on
September 16. On their face, the requests did not establish that a disability
existed, and it was clear that accommodations, if any, would be identified by the
yet-to-be-done evaluation. The only accommodation requested to that point was
that an ADA advocate be present with Orr.14 McCann was entitled to five days'
notice as to the continuance under CR 6(d). The trial court issued a written denial
on September 23, 2016. The trial court acted promptly on Orr's request.
The next continuance request was made on the first day of trial, September
26, 2016. The trial court denied that request promptly that day.
On September 28, 2016 the first request was made for any specific
accommodation, other than a continuance or to have an ADA advocate present.
The trial court directly addressed that request on the record at the beginning of the
next trial day at which Orr was present, October 3, 2016.
The trial court did not violate GR 33(b) by failing to act promptly.
II. Motion for New Trial
Orr argues that the trial court abused its discretion in denying her motion for
a new trial due to irregularities in the proceedings that arose out of the GR 33
accommodation requests and denials.
Under CR 59(a)(1), a trial court may "grant a new trial if an irregularity in the
proceedings of the court prevented the moving party from receiving a fair trial and
materially affected the party's substantial rights." Ramey v. Knorr, 130 Wn. App.
Orr was allowed to have persons of her choosing at her side for trial.
14
Whether they were formally ADA advocates is not clear from the record.
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672,687, 124 P.3d 314(2005). A trial court's decision to grant or deny a new trial
is reviewed for an abused of discretion. Alum Co. of Am. v. Aetna Cas. & Sur. Co.,
140 Wn.2d 517, 537, 998 P.2d 856(2000). A court abuses its discretion when an
order is manifestly unreasonable or based on untenable grounds. In re Pers.
Restraint of Rhome, 172 Wn.2d 654, 668, 260 P.3d 874(2011).
But, here, the irregularity relied on by Orr is the same disability
accommodation issue that is the basis of the appeal:"Here, the trial court deviated
from the appropriate proceeding when . . . it failed to abide by the requirements of
GR 33 and denied Leslie necessary accommodations for her disability." Her
argument for a new trial effectively stands or falls based on the outcome of the
analysis of GR 33 above. And, because we reject Orr's argument that she was
denied a fair trial because GR 33 was violated, we also reject Orr's argument for
a new trial.
The trial court did not abuse its discretion in denying Orr's motion for a new
trial.
III. Procedural Due Process
Orr also argues that the trial court's failure to provide the requested
accommodations denied Orr her due process rights under the United States
Constitution and the Washington Constitution. Constitutional challenges are
questions of law subject to de novo review. City of Redmond v. Moore, 151 Wn.2d
664, 668, 91 P.3d 875(2004).
The United States Constitution guarantees that federal and state
governments will not deprive an individual of "life, liberty, or property, without due
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process of law." U.S. CONST. amends. V, XIV,§ 1. The due process clause of the
Fourteenth Amendment confers both procedural and substantive protections.
Albright v. Oliver, 510 U.S. 266, 272, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994).
When a state seeks to deprive a person of a protected interest, procedural due
process requires that an individual receive notice of the deprivation and an
opportunity to be heard to guard against erroneous deprivation. Mathews v.
Eldridqe, 424 U.S. 319, 348-49, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976).
Dissolution proceedings certainly involve liberty interests, particularly when
children are involved. Orr does not claim that trial procedures for dissolution
actions are unconstitutional in general. Nor is her procedural due process claim
about the burden of proceeding pro se. Her challenge is strictly to the failure to
grant her the accommodations she sought for her disability. She relies on the
protections provided in GR 33 as the basis for the accommodations sought. She
does not argue that GR 33 is facially unconstitutional or otherwise insufficient to
protect persons with disabilities.
As noted in the preceding analysis, Orr had opportunity from the time of
filing her case, and well into trial, to establish factually that she had a disability
entitling her to protection and accommodation under GR 33. She failed to establish
that she suffers from a disability. Therefore, she was not entitled to the
accommodations provided for in GR 33. Her procedural due process claim fails
as a matter of law.
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IV. Attorney Fees
McCann seeks his fees on appeal. He argues that Orr's conduct during the
litigation has shown intransigence and a willingness to defy court orders, and thus
fees are warranted. But, on appeal, Orr has provided a novel argument about GR
33, and the disposition of this case should not and will not foreclose any remedies
at law available to McCann after disposition of this case. We decline to award
McCann his fees.
We affirm.
WE CONCUR:
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