        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


J.H.,                                        )         No. 78735-7-1
                                             )
                    Appellant,               )         DIVISION ONE
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
STATE OF WASHINGTON,                         )
                                             )
                    Respondent.              )         FILED: July 15, 2019
                                             )


        ANDRUS, J. — J.H. challenges his 14-day order of commitment under the

 Involuntary Treatment Act, RCW ch. 71.05. J.H. contends the trial court erred in

 allowing the State to call a law enforcement witness by video. We affirm.

                                       FACTS

        Sometime after midnight on July 3, 2018, King County Deputy Sheriff Tiffani

 Bowles-Davis responded to a call of a possible burglary and found J.H., a 36-year-

 old male, standing in the driveway of a stranger's home. When Bowles-Davis

 asked J.H. to leave the property, a visibly agitated J.H. walked to the middle of an

 adjacent street, a three-lane road, and stepped into oncoming traffic as vehicles

 approached. Bowles-Davis and her partner used their flashlights to slow or stop

 vehicles to avoid hitting J.H. The officers were concerned for his safety because

 he was not wearing reflective clothing and he would not respond to their request
No. 78735-7-1/2

to get out of the roadway. At times during their interaction with J.H., he seemed

cooperative but then clenched his fist at Bowles-Davis and stated,"Must shoot me

right now." Bowles-Davis concluded J.H. did not have "the mental capacity of just

a normal individual."

         The officers involuntarily detained J.H. and sent him to Highline Hospital for

a mental evaluation. J.H. was evaluated by Community Psychiatric Clinic Case

Manager Alexander Klee and detained for 72 hours.

         On July 6, 2018, Fairfax Hospital filed a petition for 14 days of involuntary

treatment, alleging J.H. suffered from a mental disorder that rendered him gravely

disabled. On July 9, 2018, the trial court conducted the probable cause hearing.

J.H. and his attorney participated in the hearing by television link from Fairfax

Hospita1.1 The State called two witnesses, Bowles-Davis, who testified remotely

via video, and Corbi Griffith, a Fairfax Hospital mental health counselor.

         Before the hearing began, J.H. objected to having Bowles-Davis appear via

video.     He argued that the State had not demonstrated good cause under

compelling circumstances, the CR 43 standard for permitting video testimony of

witnesses. The court permitted the video testimony, reasoning that CR 43's good

cause standard did not apply to ITA hearings because RCW 71.05.020(24)

expressly permits video testimony in these proceedings.

         At the conclusion of the hearing, the trial court found that J.H. suffered from

a mental impairment that rendered him gravely disabled. The court found Bowles-


1 Under King County Local Mental Proceeding Rule (LMPR) 1.8(b), certain authorized facilities
conduct all ITA hearings via this video link. Pursuant to the July 23, 2018 General Order Authorizing
Video Hearings for Involuntary Treatment Act Proceedings, Fairfax Hospital is one of these
authorized hospitals.

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Davis credible and, based on her testimony, found that J.H. put himself in an

unsafe position on the road and, had the officers not been present to flash their

lights and ward off cars, he would likely have been seriously injured. The trial court

entered an order of commitment for up to 14 days of inpatient treatment. J.H.

appeals.

                                     ANALYSIS

       The sole issue on appeal is whether the trial court erred in concluding that

the "good cause in compelling circumstances" standard of CR 43 does not apply

to ITA civil commitment proceedings by virtue of RCW 71.05.020(24). Because

the issue involves the interpretation of a civil rule and a statute, our review is de

novo. Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997).

       CR 43(a)(1) provides:

       In all trials the testimony of witnesses shall be taken orally in open
       court, unless otherwise directed by the court or provided by rule or
       statute. For good cause in compelling circumstances and with
       appropriate safeguards,the court may permit testimony in open court
       by contemporaneous transmission from a different location.

Under the ITA, if a facility files a petition for 14 days of involuntary treatment, the

court must hold a "probable cause hearing" within 72 hours of the person's initial

detention. RCW 71.05.240(1). During the ITA "hearing:"

       . . . the petitioner, the respondent, the witnesses, and the presiding
       judicial officer may be present and participate either in person or by
       video, as determined by the court. The term "video" as used _herein
       shall include any functional equivalent. . . . Witnesses in a
       proceeding may also appear in court through other means, including
       telephonically, pursuant to the requirements of superior court civil
       rule 43.




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RCW 71.05.020(24). J.H. contends that RCW 71.05.020(24) should be construed

as requiring a showing of"good cause" before a witness may appear by video. We

reject this argument as inconsistent with the plain language of the ITA statute.

RCW 71.05.020(24) contains no "good cause" requirement for video appearances.

In fact, the sentence invoking CR 43 does so only for witnesses who wish to appear

"through other means," such as by telephone. The unambiguous language of

RCW 71.05.020(24) makes CR 43 applicable only when the remote appearance

is not by video.

       Moreover, the statute explicitly provides that on a showing of "good cause,"

the court may require any party or witness to appear in person. This statutory

framework presumes participation by video; in-person appearances are presumed

to be the exception, not the rule. Given that CR 43(a)(1) presumes in-person

testimony, the Legislature clearly intended to set out a process for video testimony

that is different than that contemplated by court rule.

       Although the ITA statute gives the trial court the discretion to decide whether

and when to conduct any ITA hearing by video, that discretion is not unfettered.

The statute imposes a set of safeguards not explicitly provided for in CR 43:

       At any hearing conducted by video, the technology used must permit
       the judicial officer, counsel, all parties, and the witnesses to be able
       to see, hear, and speak, when authorized, during the hearing; to
       allow attorneys to use exhibits or other materials during the hearing;
       and to allow respondent's counsel to be in the same location as the
       respondent unless otherwise requested by the respondent or the
       respondent's counsel.

RCW 71.05.020(24). And it permits the court to consider, when evaluating a

motion for in-person testimony, whether a respondent's alleged mental illness


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No. 78735-7-1/5

interferes with his or her ability to participate by video.                    These additional

safeguards further demonstrate the legislative intent that CR 43(a)(1) not apply to

ITA hearings.

        We conclude,from the text and context of RCW 71.05.020(24), that the ITA

statute does not require a showing of "good cause under compelling

circumstances" before the trial court may permit a witness to appear by video.

        J.H. next argues that if we conclude that the ITA statute and CR 43 are

inconsistent, the civil rule must prevail to avoid a separation of powers violation.

Under State v. Gresham, 173 Wn.2d 405, 428-29, 269 P.3d 207 (2012), if there

are irreconcilable conflicts between court rules and legislative rules, court rules

prevail in procedural matters and statutes prevail in substantive ones. But we

conclude there is no separation of powers issue at play here. CR 43(a)(1) explicitly

contemplates that other rules or statutes may exist that limit its applicability. The

rule provides that it governs unless "otherwise . . . provided by rule or statute." In

this case, we have a statute that provides for a process not contemplated by CR

43(a)(1) and CR 43 explicitly allows this statutory abrogation.2

        We conclude that RCW 71.05.020(24) does not require a showing of good

cause before a trial court may permit a witness to testify by video at an ITA hearing.

We also conclude there is no separation of powers violation because CR 43(a)(1)

expressly limits its applicability to situations in which no statutory provision applies.


2 This court requested additional briefing from the parties on what impact, if any, CR 81 has on this
appeal. That rule provides that the civil rules apply to all civil proceedings, "[e]xcept where
inconsistent with rules or statutes applicable to special proceedings." No court has yet held that
ITA proceedings are "special proceedings" within the meaning of CR 81. Both parties argue CR
81 should not impact the outcome of this appeal. We will therefore save for another day the issue
of whether CR 81 renders CR 43 inapplicable to ITA hearings.

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No. 78735-7-1/6

The trial court did not err in allowing Bowles-Davis to testify at J.H.'s 1TA hearing

by video.

       Affirmed.




WE CONCUR:




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