                                                            F
                                                   COUP,T
                                                    SIAI E OF




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SAN IRA LYNN SMITH,
                                                 No. 76247-8-1
             Respondent,
                                                 DIVISION ONE
       V.
                                                 PUBLISHED OPINION
JOS UA THADDEUS SMITH,

             Appellant.                          FILED: October 30, 2017


       LEACH, J. — The mere pendency of parallel civil and criminal cases does

not e title the defendant to a stay of the civil case.       Instead, a trial court

consi ering a stay request must consider and balance the eight factors identified

by thi court in King v. Olympic Pipe Line Co.1

       Joshua Smith appeals a one-year domestic violence protection order

(DVP ). Joshua2 contends that the trial court abused its discretion and violated

his d e process rights by entering the protection order before his parallel criminal

case was resolved.     Because the trial court reasonably concluded that the

01 m lc Pi.e Line factors weighed against granting a stay, it did not abuse its

discr tion by entering the order.     Following controlling precedent, we reject

Josh a's due process claims and affirm.


      1 104 Wn. App. 338, 16 P.3d 45(2000).
      2 Because Joshua Smith and Sandra Smith share a surname, we refer to
them sy their first names for clarity.
No. 7.247-8-I /2


                                      FACTS

       On November 16, 2015, the State charged Joshua Thaddeus Smith with

multi le counts of rape of a child involving his wife's daughter. In March 2016,

Sand a Lynn Smith, Joshua's wife, reported to the police that Joshua had asked

her t give false testimony in his criminal case. The police arrested Joshua for

tamp ring with a witness. Sandra, acting pro se, filed a petition seeking a DVPO

again t him, stating that she was "scared he will retaliate against me." The trial

court ssued a temporary protection order and notice of hearing the same day.

       In her petition, Sandra explains that Joshua has an "explosive temper" and

has "lammed" their son into the wall and spanked their daughter "to the point

that s e couldn't sit." Sandra states that Joshua would yell and belittle her and

throw things so that she was fearful he would hurt her or their children. She

descr bes the extent of control Joshua exercised over her: Joshua monitored her

Face ook account and would deny her permission to go the doctor so that she

felt like she was "constantly walking on eggshells around him." One night,

Josh a told Sandra that "he was trying to decide if he was still going to be alive in

the morning."

       In March 2016, Joshua asked the court to continue the protection order

hearing, primarily because of the criminal allegations pending against him. The

court ranted this request over Sandra's objection. In September 2016, after the


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No. 7 247-8-1/ 3


court had granted three continuances at Joshua's request,3 Sandra obtained pro

bono counsel. To further support her protection order request, she filed a Police

repo that included her daughter's description of abuse. Her daughter claimed

that Joshua started sexually abusing her when she was 8 years old and

continued until she was 15. She said that a few weeks before she told everyone

aboui the abuse, Joshua warned her that if she told anyone he would "get his
                                r

gun, shoot the whole family, and then he would kill himself." Sandra claimed that

Joshi.a had told her he had sexually molested a member of the family.

      On September 28, 2016, Joshua requested a fourth continuance because

his criminal case remained pending. Sandra opposed this request. A superior

court commissioner did an on-the-record balancing of the interests involved, as

required by Olympic Pipe Line. She found that the infringement on Joshua's Fifth

Ame dment rights outweighed Sandra's interests in proceeding expeditiously.

She ranted a continuance two weeks beyond the trial date for Joshua's criminal

matter.   But the commissioner explained that if Joshua asked for another

conti uance in his criminal case, the prejudice to Sandra caused by more delay



      3  Sandra requested a 2-week continuance on April 21, 2016, due to a
medi al emergency. During that same proceeding, Joshua requested that the
court extend the continuance to 60 days. Sandra opposed the longer
conti uance because she felt that Joshua was continuing to "control" and
"mani ulate" her. The court granted a 60-day continuance over Sandra's
objec ion, which was the second continuance the court granted at Joshua's
request.
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No. 76247-8-I /4


woul outweigh any infringement on his Fifth Amendment privilege. She stated,

"I ca 't provide that he can continuously continue his criminal case at his own

request and then stymie her right indefinitely to a hearing on the merits."

      The following day, Sandra filed a request to revise the commissioner's

order The revision judge denied this request and adopted the commissioner's

ration le, finding of facts, and conclusions of law. He scheduled a hearing on the

merit of the protection order request for November 21, 2016. This date was not

to be continued unless Sandra requested a continuance or the State obtained a

trial c ntinuance in the criminal matter over Joshua's objection.

       On November 21, 2016, Joshua requested a fifth continuance in the

DVPt matter because his trial had been continued to March of 2017.                A

corn issioner found that the revision order was binding.            He decided that

altho gh Joshua's trial date had been continued, the conditions established in

the r vision order for any further continuances had not been met and denied

Josh a's request. The commissioner then held a hearing on the protection order

request.   He considered Sandra's evidence supporting the order.              Joshua

decli ed to present any evidence. The commissioner found that Sandra had

estab ished by a preponderance of the evidence that Joshua had committed

dome tic violence and issued a one-year protection order protecting Sandra and

her children. Joshua appeals.


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No. 7 247-8-1/ 5


                                    ANALYSIS

       We start with the proposition that a defendant has no absolute right to

avoid choosing between testifying in a civil matter and asserting his Fifth

Ame dment privilege.4

                          I. The Olympic Pipe Line Test

       Joshua contends that the trial court abused its discretion in granting a

one-y ar protection order while his parallel criminal matter was pending. We

disag ee.    A court exercises discretion when deciding a request to stay

proceedings.5 We review a court's decision for abuse of that discretion.6 "A trial

court buses its discretion only if its ruling is manifestly unreasonable or is based

upon ntenable grounds or reasons."7

       In Olympic Pipe Line, this court held that the trial court must conduct an

on-th -record balancing of eight nonexclusive factors before granting or denying

a mo ion to stay the civil proceeding when parallel criminal proceedings are

pendi g.5 We will overturn the trial court's decision only if it has abused its

discr tion. The eight factors are (1) the extent to which a defendant's Fifth

Ame dment rights are implicated, (2) the similarities between the civil and

crimi al cases,(3) the status of the criminal case,(4) the interest of the plaintiffs

      4 Keating v. Office of Thrift Supervision,45 F.3d 322, 326 (9th Cir. 1995).
      5 Olympic Pipe Line, 104 Wn. App. at 348.
      6 Olympic Pipe Line, 104 Wn. App. at 348.
      7 Olympic Pipe Line, 104 Wn. App. at 348.
      8 Olympic Pipe Line, 104 Wn. App. at 352-53.
                                         -5-
No. 76247-8-I /6


in pr ceeding expeditiously and the potential prejudice to plaintiffs of delay, (5)

the b rden which any particular aspect of the proceeding may impose on the

defendants,(6) the convenience of the court in the management of its cases and

the efficient use of judicial resources, (7) the interests of persons not parties to

the civil litigation, and (8) the interest of the public in the pending civil and

criminal litigation.9

         We address each factor in turn.

1. The Extent to Which a Defendant's Fifth Amendment Rights Are Implicated

         Joshua asserts that the substantial extent to which his Fifth Amendment

right gainst self-incrimination is implicated weighs heavily in favor of granting a

stay nd outweighs any countervailing factors. Once a witness in a civil suit has

invok d his Fifth Amendment privilege, the trier of fact is entitled to draw an

adver e inference from his refusal to testify.1° The extent to which a party's right

again t self-incrimination is implicated in civil proceedings is not determinative,

but it   ust be given "serious consideration' in the balancing of interests."11

         Here, the State criminally charged Joshua with conduct similar to that

alleg d in Sandra's petition.       The allegations in both proceedings involve

dome tic violence. He therefore asserts that his Fifth Amendment rights are


         9 OlympicPipe Line, 104 Wn. App. at 352-53.
      10 Ikeda v. Curtis, 43 Wn.2d 449, 458, 261 P.2d 684(1953).
      11 Olympic Pipe Line, 104 Wn. App. at 353 (quoting White v. Mapco Gas
Prod ., Inc., 116 F.R.D. 498, 502(E.D. Ark. 1987)).
                                       -6-
No. 7 247-8-1/ 7


direct!y at issue. Joshua contends that he must choose between waiving his

Fifth   mendment privilege and being unable to defend himself in the DVPO

proceedings. The extent to which his Fifth Amendment rights are seemingly

impli ated would therefore weigh in strong favor of a stay. In granting a fourth

conti uance at Joshua's request, the trial court accordingly found that the civil

proceedings "squarely implicate" his Fifth Amendment rights.

        Yet, Sandra was seeking a DVPO under the Domestic Violence

Prey ntion Act (DVPA).12      The process created by the DVPA burdens the

defen ant's Fifth Amendment privilege substantially less than do other civil

proce dings. DVPO proceedings are "special proceedings," which means that

rules of civil procedure established by the legislature for DVPOs supersede

incon istent civil court rules.13 Forexample, the rules of evidence do not apply in

DVP     proceedings.14

        Also, in DVPO proceedings parties do not have a right to a jury tria1,15 to

disco ery,16 to compel live testimony, or to cross-examine witnesses.17 Although

        12Ch. 26.50 RCW.
       13 CR 81 states, in part, that civil court rules govern all civil proceedings
"[e]xc pt where inconsistent with rules or statutes applicable to special
proce dings"; see also Scheib v. Crosby, 160 Wn. App. 345, 351, 249 P.3d 184
(2011
       14 ER 1101(c)(4); see also Gourley v. Gourley, 158 Wn.2d 460, 466-67,
145 .3d 1185(2006).
       15 Blackmon v. Blackmon, 155 Wn. App. 715, 721-22, 230 P.3d 233
(201
       16 Scheib, 160 Wn. App. at 352.
       17 Aiken v. Aiken, 187 Wn.2d 491, 500-01, 387 P.3d 680(2017).
                                         -7-
No. 7 247-8-1 /8


the tr al court has the discretion to allow discovery,18 live testimony, and cross-

exam nation,18 DVPO hearings are "equitable in nature and may be properly

deterrnined by a court on documentary evidence alone."20

        Thus, the plaintiff cannot compel evidence or testimony, which means

DVP      proceedings burden a defendant's Fifth Amendment rights substantially

less than do other civil proceedings. Because the burden of proof is on the

plaint ff,21 the defendant can prevail by showing that the burden has not been met

witho t providing incriminating testimony. The defendant does not need to testify

in th        proceedings.   Unless the court permits live testimony and cross-

exam nation or discovery, which did not occur in this case, the defendant need

not invoke his Fifth Amendment right in DVPO proceedings. The fact finder is

    )
there ore unable to infer prejudice, and the defendant need not necessarily

choo e between waiving his Fifth Amendment right and defending himself in the

civil p oceedings. Thus, a court could reasonably decide that the extent to which

these DVPO proceedings implicate Joshua's Fifth Amendment privilege does not

provi e a persuasive justification for a stay.




        18Scheib, 160 Wn. App. at 352.
        18Aiken, 187 Wn.2d at 500-01.
        20 Blackmon, 155 Wn. App. at 723.
        21 RCW 26.50.020(1)(a), .030.
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No. 7.247-8-I / 9


2. Si ilarities between the Civil and Criminal Cases

       Joshua maintains that the fact he is being criminally charged with conduct

that i either the same or similar to that alleged in Sandra's petition weighs in

favor if a stay.

       One of the most important factors in the balancing process is
       "the degree to which the civil issues overlap with the criminal
       issues" because "[i]f there is no overlap, there would be no
       danger of self-incrimination and accordingly no need for a stay."
       Thus a stay is most appropriate where the subject matter of the
       parallel civil and criminal proceeding or investigation is the
       same.E22]

       Joshua was criminally charged with raping his stepdaughter. By contrast,

in Sa dra's petition for a DVPO, she claimed that Joshua physically abused their

childr n and threatened her with physical violence as well as threatened suicide.

The ourt found that although the two cases do not involve identical behavior,

they re "uniquely aligned" because they both involve domestic violence.

       The similarities between the civil and criminal matters would ordinarily

weigh in favor of a stay.       But because DVPO proceedings are special

proce dings and pose substantially less danger of self-incrimination than do




       22 Olympic Pipe Line, 104 Wn. App. at 357 (alteration in original)
(footn tes omitted) (quoting Milton Pollack, Parallel Civil and Criminal
Proceedings, 129 F.R.D. 201, 203 (1990); Trs. of Plumbers & Pipefitters Nat'l
Pensibn Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y.
1995)1 and citing United States v. Private Sanitation Indus. Ass'n of
 Nassau/Suffolk, 811 F. Supp. 802, 806 (E.D.N.Y. 1992)).
                                       -9-
No. 7 247-8-1/10


other civil proceedings, a court could reasonably decide that the similarities

provide minimal weight, if any, for a stay.

3. St tus of the Criminal Case

       Joshua contends that the pending status of his criminal case weighs in

favor f a stay due to Fifth Amendment concerns. A stronger argument exists for

defer ing civil proceedings until the completion of parallel criminal proceedings

when a party, regardless of whether he has been charged, faces a real danger of

self-incrimination in a subsequent criminal proceeding.23 As discussed above,

because the special nature of DVPO proceedings does not place Joshua in

significant danger of incriminating himself, a court could reasonably decide that

the St tus of his criminal case does not weigh in strong favor of a stay.

4. Th Interest of the Plaintiffs in Proceeding Expeditiously and the Potential
Preju ice to Plaintiffs of a Delay

       Joshua asserts that his Fifth Amendment rights trump Sandra's interest in

expe itious resolution of the DVPO matter. "Civil plaintiffs have a substantial

intere t in expeditious conduct of their litigation."24 But Olympic Pipe Line notes

that "while stale memories pose a risk, . . . under settled authority the Fifth

Ame dment is the more important consideration!"25 Here, however, Joshua's



        Olympic Pipe Line, 104 Wn. App. at 358-59.
       23
        Olympic Pipe Line, 104 Wn. App. at 359.
       24
     25 Olympic Pipe Line, 104 Wn. App. at 360 (alteration in original) (quoting
Volm r Distribs., Inc. v. New York Post Co., 152 F.R.D. 36, 40(S.D.N.Y. 1993)).
                                       -10-
No. 7 247-8-1 / 11


Fifth Amendment rights are not substantially infringed, and delay poses hardship

to Sa idra beyond stale memories.

       First, delaying DVPO proceedings denies plaintiffs their right to

meaningfully access the courts.       By continuing a DVPO matter until the

defendant's parallel criminal case is resolved, the court prevents a plaintiff from

timely receiving her statutory remedy under the DVPA.26 The legislature enacted

the DVPA to expedite protection orders and provide victims "easy, quick, and

effect ve access to the court system."27 Here, the trial court continued the DVPO

matter four times, spanning over eight months, before ultimately granting Sandra

a healring on the merits of her request. An eight-month delay does not fulfill the

DVPA's purpose of providing Sandra easy, quick, and effective access to the

court System.

      Second, delaying proceedings hinders victims' ability to act pro se. The

Was ington Supreme Court recognized that "jblecause many victims are unable

to ret in counsel, the system is designed for use by pro se litigants."28 In an

effort to remove financial barriers for victims, the DVPA prohibits agencies from

charging fees for filing, service of process, or certified copies.29 Courts must


         26 RCW 26.50.020(1)(a) ("Any person may seek relief under this chapter
by fili lg a petition with a court alleging that the person has been the victim of
domestic violence committed by the respondent.").
         27 LAWS OF 1992, ch. 111,§ 1.
         28 Aiken, 187 Wn.2d at 497.
         29 RCW 26.50.040.
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No. 76247-8-1 / 12


develop instructions, informational brochures, and a handbook on the domestic

viole ce process and procedures, and are required to provide other services to

mak    it easier for pro se litigants to access the courts.3°      When a court

repe tedly continues DVPO proceedings, the system becomes too challenging to

navig te and pro se litigants are forced either to abandon their claims or seek pro

bono or hired counsel if they are able. Sandra appeared pro se through three

conti uances. Seven months of delay forced her to seek pro bono counsel.

With ut this counsel, repeated delays prevented Sandra from receiving full relief

unde the DVPA, which contravenes its purpose.

      Third, delaying DVPO matters places victims and their families at risk.

"Prol nged court proceedings increase the risk of danger to a victim of domestic

viole ce."31 Even when a court hearing a criminal case prohibits the defendant

from contacting the victim,32 the no-contact order does not provide as much

prote tion as a DVPO. A no-contact order terminates if the criminal defendant is

acqui ted or the charges are dismissed.33 The victim may receive no notice when

the n -contact order is dismissed nor have the chance to contest the termination

of an order. By contrast, a full DVPO may require the defendant to participate in

dome tic violence perpetrator treatment, restrain him from further contact with


      3° RCW 26.50.035.
      31 Juarez v. Juarez, 195 Wn. App. 880, 889, 382 P.3d 13(2016).
      32 RCW 10.99.040(2)(a).
      33 RCW 10.99.040(3).
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No. 7 247-8-1/ 13


the victim or the children at issue, require him to submit to electronic monitoring,

and How the victim to seek renewal of the order, among other requirements.34

        Finally, delay may cause victims to abandon their petition due to

exhaustion, frustration, or as a result of logistical obstacles. For example, a

victi   may not be able to take time off work repeatedly or find childcare or

trans ortation to address each continuance. A victim may also experience these

hardships with a temporary DVPO. The trial court granted Sandra five temporary

order . Although Sandra persevered, it may be prohibitive for a victim to return

to cou rt repeatedly to oppose multiple continuances or ask the court to reissue a

temp rary order; logistical impediments may pose enough of a barrier to

dissu de a victim from pursuing even a temporary DVPO.

        Temporary orders raise an additional concern. Federal and Washington

state law prohibit an abuser from possessing firearms only if the court issues a

full p otection order.35 Thus, when a court issues only a temporary order, the

       l prohibition is not available.36 Although Joshua warned his stepdaughter
firearril

that i. she told anyone about the sexual abuse he would "get his gun, shoot the

whol family, and then he would kill himself," the trial court had authority to order

Josh a to surrender his firearms only after it granted Sandra a full protection

order

        34 RCW 26.50.060.
        35 18U.S.C. 922(g)(8); RCW 9.41.040(2)(a)(ii).
        36 RCW 9.41.040(2)(a)(ii)(A).
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No. 7 247-8-1 /14


      Although the superior court did not account for the special nature of DVPO

proc edings and therefore attributed more weight than was due to the potential

infrin ement on Joshua's Fifth Amendment privilege, the court recognized that if

Joshtla continued his trial beyond November, prejudice to Sandra would

outw igh the burden on Joshua. A court could reasonably conclude that the

many potential burdens of further delaying the DVPO proceedings would cause

Sand a substantial hardship that weighs in strong opposition to a stay.

5.T e Burden that Any Particular Aspect of the Proceeding May Impose on the
Defe dants

      Joshua asserts that proceeding with the DVPO hearing before resolution

of his criminal case imposed a number of burdens that weigh in favor of a stay.

01    ic Pi.e Line recognizes that the burdens on the defendant may include the

diver ion of resources in simultaneous defense of civil and criminal actions or the

likelih od that the materials uncovered during civil discovery may aid the

prosecution.37 Asserting a Fifth Amendment privilege during civil discovery may

const tute a "'road mar and provide a "link in the chain of evidence" benefiting

the p osecution.38   As discussed above, if the defendant exercises his Fifth

Ame dment rights, an adverse inference can be drawn by the trier of fact. In




      37 Olympic PipeLine, 104 Wn. App. at 362-63.
      38Olympic Pipe Line, 104 Wn. App. at 364 (quoting Afro-Lecon, Inc. v.
Unite States, 820 F.2d 1198, 1203(Fed. Cir. 1987)).
                                    -14-
No. 7 247-8-1/15


additi n, imposition of a DVPO requires the defendant to surrender any firearms

and could prohibit him from contacting his children.

      Although the trial court found that "the risk of incrimination. . . is severe,"

the s ecial nature of DVPO proceedings significantly reduces that risk. Indeed,

the parties do not have a right to discovery, and in this case neither party

requ sted discovery. Thus, the DVPO proceedings provided the State with no

"road map" or "link in the chain" aiding its prosecution. Moreover, the defendant

gene ally need not assert his Fifth Amendment privilege in DVPO proceedings.

This liminates the concern that the trier of fact may draw an adverse inference.

Josh a, in fact, did not invoke his Fifth Amendment privilege.         Instead, his

coun el stated that "we do not intend to present any testimony on behalf of the

respo dent."

       Finally, having to expend resources in both his civil and criminal

proce dings could burden Joshua, assuming the court has not made a finding of

indig ncy. But on balance, a court could reasonably decide that this burden is

slight compared to the potential hardships delay could cause Sandra.

6. T e Convenience of the Court in the Management of Its Cases and the
Effici nt Use of Judicial Resources

       Parallel proceedings may raise concerns about calendar congestion and

dupli ative judicial effort.39 But the alternative to holding the DVPO hearing is to


      39   Olympic Pipe Line, 104 Wn. App. at 365.
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No. 76247-8-I /16


requi e a victim to repeatedly ask to renew a temporary order. Thus, proceeding

with   single DVPO hearing may congest the court's calendar less considering

the p ssibility of multiple requests for continuances and the repeated reissuance

of a emporary order. Moreover, there may be little risk of duplicative judicial

effort. If the civil and criminal cases are at all distinct, resolution of the criminal

case   ay not resolve the issues in the DVPO case. Thus, the trial court would

still n ed to hold a DVPO hearing after the conclusion of the criminal case.

       Olympic Pipe Line notes another concern. Often, "after the criminal matter

is resolved and the Fifth Amendment issue gone, civil discovery will proceed

more smoothly and efficiently."4°       But if the State criminally charged the

defen ant with only some of the conduct at issue in the DVPO proceeding, he is

unlik ly to waive his Fifth Amendment privilege to testify in the civil proceeding.

Here, Joshua would be unlikely to waive his privilege even after resolution of his

crimi at case because the State did not charge him with the physical abuse of his

childr n alleged in the protection order petition.

       In addition, the DVPA states that relief under the DVPA "shall not be

denie or delayed on the grounds that the relief is available in another action."41

The •VPA therefore explicitly prohibits the trial court from delaying DVPO

proce dings based on the rationale that the issues underlying that DVPO matter


       40 Olympic Pipe Line, 104 Wn. App. at 365.
       41 RCW 26.50.025(2); see also Juarez, 195 Wn. App. at 883-84, 887-88.
                                      -16-
No. 7 247-8-1/ 17


could be resolved in another proceeding. Thus, a court could reasonably decide

that he efficient use of judicial resources weighs in favor of not staying the

DVP    matter and proceeding as the legislature intended.

7. T e Interests ofPersons Not Parties to the Civil Litigation

       Olympic Pipe Line notes that the interests of persons not parties to the

civil Ii igation may be entitled to "real weight.'"42 The public and the courts have

a strong interest in the protection of minor children, particularly when they are the

victims of abuse.    Both have an interest in a protection order being issued

expeditiously. In her petition, Sandra contends that Joshua "slammed" their son

into the wall and spanked their daughter "to the point that she couldn't sit." The

       L reasonably noted that the children's interests in issuance of the order
trial curt

weigh against a stay.

8. The Interest of the Public in the Pending Civil and Criminal Litigation

       The public interest also includes an interest in the integrity of the judicial

systern.43 This case implicates that interest because of general concern about

how tle judicial system resolves DVPO matters. The legislative findings in RCW

26.50.030 provide instruction about how the DVPA serves the public interest and

expre s concerns about the need to improve the judicial response to domestic

viole ce. The legislature enacted the DVPA to provide "the easy, quick, and

        Olympic Pipe Line, 104 Wn. App. at 366 (quoting Golden Quality Ice
       42
Crea Co. v. Deerfield S ecialt Pa ers Inc., 87 F.R.D. 53, 58(E.D. Pa. 1980)).
     43 Olympic Pipe Line, 104 Wn. App. at 367-68.
                                    -17-
No. 7 247-8-1 / 18


effec1ive access to the court system envisioned at the time the protection order

process was first created."44 The legislature envisioned that the DVPA would

make protection orders more of a "valuable tool to increase safety for victims and

to hold batterers accountable."45 "[T]he legislature has sought to further [prevent

dome tic violence] by taking clear, concrete actions to encourage domestic

viole ce victims to end abuse, leave their abusers, protect their children, and

coop rate with law enforcement and prosecution efforts to hold the abuser

acco ntable."46

       The trial court found that when the court "does not afford prompt, efficient

relief, it to a degree becomes an obstacle to the significant public interest that the

legisl ture said it had in addressing the immense proportions of domestic

viole ce." Denying a full protection order because of the defendant's pending

parall I criminal proceedings neither honors the purpose of the DVPA nor serves

the p blic interest of ensuring victims of domestic violence have access to an

expe ited process for receiving a protection order. A court could reasonably

decid that the public interest weighs in strong favor of denying a stay.




        LAWS OF 1992, ch. 111,§ 1.
       44
        LAWS OF 1992, ch. 111, § 1.
       45
     46 Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 213, 193 P.3d
128(2008).
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No. 7 247-8-1/ 19


Conc usion on Olympic Pipe Line Factors

        On balance, a court could reasonably decide that the Olympic Pipe Line

facto    heavily weigh in favor of proceeding with the DVPO matter before

resol tion of Joshua's criminal case. Because of the special nature of DVPO

proceedings, there is minimal to nonexistent infringement on Joshua's Fifth

Ame dment privilege compared to the potentially heavy burden a stay would

impo e on Sandra. Also, staying DVPO proceedings frustrates the purpose of

the D PA—to provide quick and effective access to the judicial system to victims

of do estic violence. The superior court did not abuse its discretion by granting

the D PO while Joshua's criminal matter was pending.

        We note that in future cases, the parties could avoid many of the issues

prese ted in this case and reconcile the defendant's interest in protecting his

Fifth   mendment right with the plaintiffs interest in avoiding the hardship

asso iated with delay. They could accomplish this by stipulating to an order of

conti uance that remains in effect until after the resolution of the criminal case,

incore orates the defendant's voluntary agreement to surrender all firearms, and

grant the same protections as a full protection order.

                                 II. Due Process

        Joshua contends that the DVPO proceedings denied him an opportunity to

be h ard "at a meaningful time and in a meaningful manner" in violation of his

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No. 7 247-8-1/ 20


const tutional right to due process.47    We disagree.     Whether the DVPO

proce dings afforded Joshua due process is a question of law that this court

revievis de novo."

      Both the Washington Constitution and the federal constitution guarantee

due process before a court restricts a person's liberty."      Protection orders

implicate a respondent's liberty interests.50 The Washington Supreme Court

recen ly held that chapter 26.50 RCW, the DVPA, satisfies the respondent's

consttutional right to due process: "[The] guarantee that a person must be heard

at a meaningful time and in a meaningful manner is protected by the procedures

in ch pter 26.50 RCW."51 Because the DVPA did not deprive Joshua of any

const tutionally required procedural safeguards, the trial court did not deny

Josh a due process when it ultimately denied his request to stay the DVPO

proceedings.

                                CONCLUSION

      The trial court did not abuse its discretion by deciding that a balancing of

the    m ic Pi.e Line factors weighed in strong favor of proceeding with the


      47 Aiken, 187 Wn.2d at 501 (quoting Mathews v. Eldridge, 424 U.S. 319,
333, 6 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
       48 Aiken, 187 Wn.2d at 501.
       49 WASH. CONST. art. 1, § 3; U.S. CONST. amend. XIV, §1.
       58 Gourley, 158 Wn.2d at 467-68.
       51 Aiken, 187 Wn.2d at 503. The court cites Mathews, 424 U.S. at 335, in
whic the United States Supreme Court established the three-factor balancing
test t be used in evaluating the process due in a particular circumstance.
                                        -20-
No. 7 247-8-1/ 21


DVP    matter. Also, the court did not deny Joshua due process because the

DVP affords respondents due process.

      Affirmed.




WE CONCUR:




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