    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HANNAH NITKEY,
                                                 No. 79332-2-I
                      Respondent,
                                                 DIVISION ONE
             V.
                                                 UNPUBLISHED OPINION
STEPHEN MYERS,

                    Appellant.                   FILED: March 9, 2020



       MANN, A.C.J.   —   Stephen Meyers appeals the superior court’s order denying

revision of a domestic violence protection order entered against him. At the hearing on

the petition, a commissioner denied Myers’s request to present live testimony and to

cross-examine the petitioner based solely on the rationale that such procedural

safeguards are unavailable in protective order hearings, without individualized

consideration of the competing interests at stake. The superior court recognized the

error, and yet denied revision because the commissioner considered documentary

evidence from both sides. The court thereby abused its discretion and deprived Myers

of his right to a meaningful opportunity to be heard. We reverse.
No. 79332-2-1/2



       On September 25, 2018, Hannah Nitkey petitioned for a domestic violence

protection order against Stephen Myers, with whom she had a dating relationship.

Nitkey alleged that, the previous evening while Myers was intoxicated and asleep, she

looked though messages and other private information on his cell phone. When Myers

awoke to find Nitkey holding his phone, he became irate and pinned her on the bed

“with full force,” while screaming at her. Nitkey alleged that Myers then choked her until

she was unable to breathe and her vision became blurry. Nitkey was “scared for [her]

life.” She stated that Myers tried to prevent her from leaving by taking her car keys and

threatening her, but she was eventually able to drive away with her two-year-old

daughter. Nitkey also described a previous incident in which Myers sexually assaulted

her while holding a taser to her throat and provided other examples of Myers’s

threatening behavior during the course of the relationship.

       The trial court issued a temporary protection order and set the matter for a

hearing on October 9, 2018. At the hearing, Myers appeared with counsel and Nitkey

appeared pro se before a Snohomish County Superior Court Commissioner. The

commissioner asked Nitkey whether there was anything she wished to “add to her

declaration.” Nitkey spoke briefly about the taser incident.

       Myers’s counsel requested leave to cross-examine Nitkey and to present Myers’s

testimony. The commissioner denied the request, stating, “I’m not going to take

testimony at these hearings. Under Gourley v. Gourley, [158 Wn.2d 460, 145 P.3d

1185 (2006) (plurality opinion)] it’s by declaration only.” Myers’s counsel disputed the

commissioner’s interpretation of Gourley. He argued that Gourley did not stand for the



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No. 79332-2-113

position that cross-examination was inappropriate in all cases involving protection

orders; but merely upheld the decision not to allow cross-examination under the specific

facts of that case. The commissioner responded, “[w}e don’t allow testimony at these

hearings.” Myers’s counsel continued to object, arguing that there was a constitutional

right to testify and cross-examine the petitioner, especially when the proposed

witnesses are not minors. The commissioner responded, “[t]he court handles these

hearings by declaration only. So if he wishes to testify, he’s going to have to submit a

sworn declaration to the Court for the Court’s review.” Myers agreed to reissuance of

the temporary order and a continuance of the hearing so he could submit documentary

evidence.

       Myers submitted a declaration, conceding that he and Nitkey argued, but

otherwise stating that, “[a]lmost every statement in the petition for an order of protection

is false.” Myers claimed that, on the night in question, Nitkey woke him up by hitting him

in the face with his cell phone. He asserted that Nitkey was upset and “out of control”

because she believed he was “cheating on her.” Myers demanded that Nitkey leave,

but denied assaulting her “in any manner.” He alleged that Nitkey tampered with his cell

phone without permission and stole passwords to various accounts. Both Myers and

Nitkey submitted additional documentary and photographic evidence.

      The parties appeared for a hearing on the petition on October 25, 2018. The

commissioner again began by asking Nitkey, without swearing her in as a witness, to

describe her relationship with Myers and the events that led up to the September 24

incident. Nitkey provided more details about the assault. The commissioner did not

elicit any statements from Myers, but reviewed his written materials. Myers’s counsel



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No. 79332-2-114

reiterated his objection to the commissioner’s previous ruling. He argued that the

inability to cross-examine the petitioner impeded his ability to fully explore the

inconsistencies in her allegations. The commissioner allowed Myers to respond to a

few factual allegations raised by Nitkey in her unsworn statements at the hearing.

        The commissioner determined that Myers committed an act of domestic violence

and granted the petition. The court entered a one-year protection order.

        Myers filed a motion to revise. Nitkey, now represented by counsel, opposed the

motion. The superior court denied the motion stating:

        While a rule always prohibiting, e.g. cross examination or live testimony
        would be inappropriate under Aiken vs. Aiken, 187 Wash.2d 491 (2017),
        the record in this case shows that the commissioner received and
        considered a substantial body of information from both sides, and e.g.
        sought to examine and consider possible inconsistencies by the Petitioner.
        The motion for revision is respectfully denied.[’)
        Myers appeals.2



        A court commissioner’s decision is subject to revision by the superior court.

RCW 2.24.050. On a revision motion, the superior court reviews a commissioner’s

ruling de novo based on the evidence and issues presented to the commissioner. RCW

2.24.050; In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). If

the superior court denies the motion to revise, the superior court has then adopted the

commissioner’s findings of fact and conclusions of law as its own. Maldonado v.

Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017).


         1 According to the parties’ briefing, the superior court held a hearing on the motion for revision

which was neither recorded nor otherwise preserved by the court reporter’s notes.
        2 We note that the respondent withdrew appendices to her brief comprised of documents not

considered below. We do not consider any remaining references in the briefing to factual matters that are
outside the record on appeal.


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No. 79332-2-1/5


           On appeal, we review the superior court’s ruling, not the commissioner’s order.

In re Matter of Knight, 178 Wn. App. 929, 936, 317 P.3d 1068 (2014). And we review a

superior court’s decision to grant or deny a protective order for abuse of discretion.

Rodriguezv. Zavala, 188 Wn.2d 586, 590-91, 398 P.3d 1071 (2017).



         Myers challenges the denial of his request to present live testimony and cross-

examine the petitioner, based on a blanket prohibition, rather than a case-specific

inquiry.

        The,provisions of the Domestic Violence Prevention Act, chapter 26.50 RCW, do

not require a court “to allow live testimony or cross-examination in every protective

order proceeding.”3 Aiken v. Aiken, 187 Wn.2d 491, 499, 387 P.3d 680 (2017);

Gourley, 158 Wn.2d at 469-70. The determination of whether, in an individual case,

due process principles warrant cross-examination and live testimony before a court

issues a protection order is governed by the balancing test4 set forth in Mathews v.

Eldridge, 424    u.s. 319,    333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Aiken, 187 Wn.2d at

499. And, “as part of the Matthews balancing test, trial court judges and commissioners

should specifically weigh the likely value of cross-examination against the potential

damage” to the witness involved. Aiken, 187 Wn.2d at 505. “A bright line rule

         ~ Chapter 26.50 RCW provides the following procedural protections: (1) a petition to the court,
accompanied by an affidavit setting forth facts under oath; (2) notice to the respondent within five days of
the hearing; (3) a hearing before a judicial officer where the petitioner and respondent may testify; (4) a
written order; (5) the opportunity to move for revision in superior court; (6) the opportunity to appeal; and
(7) a one-year limitation on the protection order if it restrains the respondent from contacting minor
children.” Gourley, 158 Wn.2d at 468-69.
         ~ Evaluating the process due under the Matthews test requires balancing three factors: (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’s interest, including the additional burden that added procedural
safeguards would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).


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No. 79332-2-1/6


prohibiting cross-examination or live testimony in protective order hearings is

inappropriate, as it is the province of the trial judge or commissioner to grant or deny

cross-examination based on individualized inquiries into the facts of the instant case.”

Aiken, 187 Wn.2d at 505-06.

        Both Aiken and its predecessor, Gourley, involved protection orders that

prohibited contact between parents and their minor children, who raised allegations of

abuse. Aiken, 187 Wn.2d at 494-95; Gourley, 158 Wn.2d at 464. In Gourley, a mother

sought a protection order on behalf of herself and her children against her husband,

based on her daughter’s allegations of sexual abuse. Gourley, 158 Wn.2d at 464. The

petition was supported by the mother’s declaration, and the declarations of the daughter

who made the allegation, the daughter’s counselor, and an investigating law

enforcement officer. Gourley, 158 Wn.2d at 465. The court also granted Gourley’s

request to depose the mother. Gourley, 158 Wn.2d at 465. Gourley argued that his

daughter’s hearsay statements were an insufficient evidentiary basis to support the

order and asserted a right to cross-examine his daughter at the hearing on the petition.

Gourley, 158 Wn.2d at 465. The commissioner rejected his argument and denied the

request. Gourley, 158 Wn.2d at 465.

        Our Supreme Court affirmed, in a plurality opinion, concluding that the

commissioner properly exercised his discretion in denying the request.5 Gourley, 158

Wn.2d at 470. The court explained that the commissioner had “ample evidence” before

it, including Gourley’s own admissions, to make the determination that cross-


        ~ Six justices agreed that “due process may require cross-examination but that Gourley had not
shown it was necessary in his case.” Aiken, 187 Wn.2d at 498.


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No. 79332-2-1/7


examination was unnecessary, and therefore, the decision did not violate Gourley’s right

to due process. Gourley, 158 Wn.2d at 470. The court expressly limited its analysis to

the facts of the case, indicating that “[w]hile the facts of this case did not require

testimony or cross-examination, Hve testimony and cross-examination might be

appropriate in other cases.” Gourley, 158 Wn.2d at 470.

       A decade later, the Supreme Court considered a similar argument in Aiken,

where the father challenged a protection order that was based solely on documentary

evidence. Aiken, 187 Wn.2d at 501. The court accepted review in order to “clarify the

ultimate holding of Gourley.” Aiken, 187 Wn.2d at 497. As in Gourley, the mother in

Aiken sought a protection order on behalf of herself and her children, based on an

allegation by one of the children of physical and emotional abuse by the father. Aiken,

187 Wn.2d at 495. The father requested a full testimonial hearing on the petition and an

opportunity to cross-examine his daughter. Aiken, 187 Wn.2d at 495-96. The mother

objected, maintaining that the process would be traumatizing for the daughter. Aiken,

187 Wn.2d at 496. The commissioner denied the request. Aiken, 187 Wn.2d at 496.

The commissioner granted the petition and imposed the order based on documentary

evidence that included the mother’s declaration and deposition, a guardian ad litem

report, and some of the daughter’s health care records. Aiken, 187 Wn.2d at 496, 504.

      Applying Gourley and the Matthews balancing test, the court held that it was “well

within the sound discretion of the commissioner to decide that cross-examination in this

case was unnecessary and would likely have harmed [his daughter].” Aiken, 187 Wn.2d

at 504. While recognizing cross-examination as a “powerful instrument in eliciting truth

or discovering error,” based on the evidence in the record, it was reasonable to


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No. 79332-2-1/8


conclude that cross-examination would have produced only “fearful responses” and no

additional information beyond what was already in the evidence. Aiken, 187 Wn.2d

505. The court went on to clarify that trial courts must conduct “individual inquiries” into

the facts of the case in order to evaluate requests for live testimony or cross-

examination, and may not impose a “bright line rule” prohibiting these safeguards in

protective order hearings. Aiken, 187 Wn.2d at 505-06.

       Nitkey contends that the analysis of Gourley and Aiken does not apply here,

where the witness sought to be cross-examined is an adult who is “capable of executing

affidavits under the penalty of perjury.” This argument is unpersuasive. Both Gourley

and Aiken involved teenagers who were fully capable of writing statements. There is

nothing in these cases to suggest, nor any logical basis to conclude, that a blanket

prohibition on live testimony and cross-examination is incompatible with principles of

due process only in cases involving minors.

       In both Gourley and Aiken, judicial officers exercised discretion based on the

facts and arguments before them in deciding whether or not to allow cross-examination

and in-court testimony. Here, the commissioner expressly refused to exercise his

discretion and denied Myers’s request based on a rule that the procedural safeguards

are never available in protection order proceedings. On revision, the superior court

acknowledged that “a rule always prohibiting” cross-examination and live testimony in

protective order hearings is impermissible underAiken. See Aiken, 187 Wn.2d at 505.

Yet, the superior court denied revision based on a “substantial body of information”

submitted by both parties and because the commissioner “sought to examine and

consider possible inconsistencies.” The superior court did not specifically weigh the


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No. 79332-2-1/9


likely value of live testimony and cross-examination against the potential negative

impact on the petitioner. In Aiken, there was substantial evidence of the witness’s

extreme fear and a tenable basis to conclude that in-court testimony and cross-

examination would have added little value. See Aiken, 187 Wn.2d at 505. Here, on the

other hand, although the petitioner was apparently emotional, the record suggests that

she would have been able to testify in court about the incident and respond to counsel’s

questions. The court did not apply the correct standard in ruling on the motion for

revision.6 We reverse.7




WE CONCUR:




  ~,
        A/



               ‘



          6 Myers also challenges the order based on the commissioner’s consideration of Nitkey’s

unsworn statements. Contrary to Myers’s claim, this did not implicate the sufficiency of Nitkey’s petition
which was supported by her statements made under penalty of perjury and satisfied the requirements of
RCW 26.50.030(1) (“petition for relief shall allege the existence of domestic violence, and shall be
accompanied by an affidavit made under oath stating the specific facts and circumstances from which
relief is sought.’). Based on our decision that it was an abuse of discretion to deny Myers’s requests to
present testimony and cross-examine the petitioner, we need not reach the issue of whether the decision
to elicit and consider unsworn statements from only the petitioner deprived Myers of his right to
meaningful opportunity to be heard.
          ~ Because Nitkey does not prevail on appeal, we deny her request for an award of fees under
RCW 26.50.060(73).


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