BY JOSH SAUNDERS
When Washington state first passed legislation creating civil domestic violence protection orders in 1984, Ronald Reagan was campaigning for a second term and Tetris was dominating American computer screens. Non-criminal protection orders have proliferated in Washington since then, having grown to include vulnerable adult protection orders (1986), anti-harassment protection orders (1987), sexual assault protection orders (2006), stalking protection orders (2013), and extreme risk protection orders (enacted by public initiative in 2016).
Perhaps unsurprisingly for a body of law that spans over three decades, the rules governing civil protection orders can be inconsistent and hard to find. Indeed, they can be found in no fewer than six different Acts and over a hundred sections. Judges have discerned little clear guidance in the RCWs about the conduct of hearings, and practitioners found themselves dealing with disparate rules applied differently from one county to the next. In short, a fair argument could be made for the need to update this body of law.
Enter House Bill 1320. Passed in the 2021 legislative session and signed by Gov. Jay Inslee on May 10, 2021, the law pertains to “modernizing, harmonizing, and improving the efficacy and accessibility of laws concerning civil protections.” It amends nearly 100 sections and repeals over 100 more, and most of it went into effect on July 1.
This article summarizes salient parts of the 356-page bill and its corollary, House Bill 1901 (which represents the codification of the recommendations that the bill directed the Administrative Office of the Courts (AOC), through the Gender and Justice Commission, to make). It introduces practitioners to some of the most notable changes in the law that are germane to all six types of orders before highlighting new provisions specific to each type of order. Finally, it offers some advice to family and criminal law practitioners who find themselves representing a party in a protection order hearing.
CHANGES TO ALL OF THE ORDERS
Conduct of Hearings
Courts now have more explicit guidance about the conduct of civil protection order hearings, though they retain a high degree of flexibility. When considering the form of the hearing, courts must consider the totality of the circumstances, including disparities in the parties’ resources and access to counsel. Courts are now explicitly directed not to decline to issue an order on the grounds that a petitioner has requested the wrong type, and they are permitted to issue a temporary order for whatever kind of order they deem appropriate.
The basic structure of the process is largely unchanged. An action typically begins with an ex parte filing for a temporary protection order (TPO). Courts must prioritize hearings for temporary protection orders over less emergent proceedings. If a court finds that immediate serious harm, in addition to irreparable injury, could result without an order, it may issue one immediately. As before, the court then sets a full hearing on the matter no later than 14 days from the issue date.11 If the court permits service by mail or publication, the hearing must be set no later than 30 days from the date of the order authorizing such service. HB 1320 mandates that a full hearing be set even if the court denies the TPO, unless the petition is dismissed or continued.
Notably, the bill directs courts to now employ a rebuttable presumption against continuances based on ongoing criminal proceedings. Although it does provide a number of factors for the court to consider in evaluating such a continuance request—such as the status of the criminal case and similarities between the cases—it also maintains that protection order proceedings burden a defendant’s Fifth Amendment privilege “substantially less” than do other civil proceedings.22 The Washington Association of Criminal Defense Lawyers and the Washington Defender Association released a set of concerns about the bill in which they specifically criticized this statement, noting that there is no right to counsel in these hearings, and that no requirement exists that a respondent be informed of their rights in the proceedings.
Rules surrounding the conduct of the hearing itself appear designed to streamline the proceedings. Live testimony of witnesses other than the parties is permitted only if the court finds it to be “necessary and material.” Discovery is permitted only if authorized by the court on written motion. The rules of evidence are largely inapplicable, save rape shield and related laws or those relating to immigration status. In a kind nod to paralegals and pro se litigants, the bill prohibits courts from requiring parties to submit duplicate or working copies of papers unless the documents cannot be scanned or are illegible.
COVID-19 has changed legal practice profoundly, and the new law reflects some of the lessons learned from the pandemic. All hearings on protection orders—for temporary and full orders, compliance, reissuance, renewal, modification, or termination—can now be conducted remotely or in person. Parties and witnesses who wish to attend by telephone or video may request to do so no later than three judicial days before the hearing. Absent a finding of good cause, courts are directed to grant these requests. No fees may be charged.
The Court’s Powers of Relief
The forms of relief available to the court in protection order hearings remain vast. If anything, they have been expanded and give petitioners even more advantages in the proceedings. Courts continue to be able to exclude respondents from a common dwelling or a workplace, order respondents to engage in treatment or undergo a mental health or substance abuse evaluation, or submit to electronic monitoring. Indeed, all of the former forms of relief are still available.
To those it adds the ability to restrain a respondent from coming within a certain distance of a petitioner’s vehicle, possessing or distributing intimate images of a petitioner, or engaging in abusive litigation—including making false reports to investigative agencies. It can order financial relief and restrain transfer of jointly held assets. The law makes explicit that the court cannot order a petitioner to obtain services or pay respondent’s costs.
Definitions and Names
The law changes the definition of “family or household member” to include all persons related by blood, marriage, or cohabitation—not just adults. “Intimate partners” can now be as young as 13, rather than 16 as formerly codified. “Consent” is newly defined, as are several other terms.
SHB 1901, which represents the recommendations from the Gender and Justice Commission of the AOC, removes the requirement that minor children in petitions or orders be identified only by their initials and ages.
Electronic Service
Thankfully, electronic service is now allowed in all cases with only a few exceptions, and court authorization is generally not required. Electronic service must be prioritized at the time of issuance of a TPO, and it must be done by law enforcement unless a petitioner elects to use a third party. It may be through email, text, social media, or by other electronic means, and receipt must be verified. Service by mail is permitted only when electronic service is not possible and there have been two unsuccessful attempts at personal service, and service by publication is acceptable only when all other means are unsuccessful or impossible.
Personal service remains mandatory in some cases, however. Any order that includes a surrender of weapons—so all Extreme Risk Protection Orders—must be effected by personal service. That’s also true of any case involving the transfer of custody of a child, as well as one where a respondent is being vacated from a shared residence. Any incarcerated respondent cannot be served electronically.
CHANGES TO SPECIFIC ORDERS
Domestic Violence Protection Orders, or DVPOs, are the most common type of civil protection order. They are also perhaps the most expansive of the orders, and the law directs any parties who meet the definition of a “family or household member” to apply for a DVPO if at all possible. The definition of “domestic violence” has been modified by SHB 1901 to include “coercive control,” which is a pattern of behavior that is used to cause physical, emotional, or psychological harm. In purpose or effect, such control must “unreasonably [interfere] with a person’s free will or liberty.” Courts are directed to consider the impact of the behavior from the perspective of a similarly situated person to determine if the conduct is unreasonable. The law gives a number of examples, including damaging or threatening to damage property or items of special value, using technology to humiliate or abuse, exhibiting a firearm or other weapon in an intimidating manner, or driving recklessly with the party or children in the vehicle. Communicating an intent to contact immigration authorities, harm a party’s career, expose a gender or sexual identity, or attempt an act of self-harm can also qualify.
The law further criminalizes violations of a DVPO (as well as most of the other civil protection orders), by making even a first violation a Class C felony if the act includes an assault or the offender has at least two previous convictions for violating a protection order. This is true even if those violations involved different parties.
Vulnerable Adult Protection Orders, or VAPOs, are designed to prevent “abuse, neglect, exploitation, or abandonment” of an adult who is at least age 60 and unable to care for themselves. It also protects anyone subject to guardianship or conservatorship, and anyone who has a developmental disability, has been admitted to a facility, or is receiving health care at home. HB 1320 expands the definitions of the order to include inaction as well as action. It also changes the criteria for abuse, widening it to include intentional and reckless action, rather than just willful. VAPOs can be brought by other parties, including the Department of Social and Health Services, on behalf of a vulnerable adult.
An Anti-Harassment Protection Order is one that seeks to protect a party from a course of conduct that annoys or alarms them and serves no legitimate or lawful purpose. It must be such that a reasonable person would suffer “substantial emotional distress,” and it must actually cause that distress. The orders are shorter in duration than others—only up to one year—and violation of the order can only be a misdemeanor, and only then if it is willfully committed by a person over 18. This order is largely unchanged in the new law, although it does expand the definition of unlawful harassment to include a single act of violence or threat of violence if it is a hate crime or involves a firearm.33 Advocates from TeamChild and defense attorneys expressed concern about the expansion of anti-harassment orders, noting that they have often been misused by schools against minors, especially youth of color. Their imposition can result in exclusion of students from school, with no clear path to return.
Sexual Assault Protection Orders are designed to protect petitioners who do not qualify for a DVPO from sexual violence. They are largely unchanged in the new law, although the law changes the name of criminal sexual assault protection orders to sexual assault no-contact orders to avoid confusion. Stalking protection orders seek to protect parties from intentional and repeated harassment or “repeated following.” A stalking order petition must allege that the petitioner is in reasonable fear and that the respondent intended that fear. These orders have been modified only in that they now explicitly include cyberstalking and surveillance.
Extreme Risk Protection Orders (ERPOs) allow people to obtain a court order preventing individuals who “pose a significant danger of causing personal injury to self or others” from possessing firearms. They are available to family or household members and law enforcement. The law expands the powers of law enforcement in seeking ERPOs. Courts are directed to prioritize law enforcement petitions, and law enforcement can now file petitions after-hours in the same way that they might seek a warrant.
A court’s ability to gather information in an ERPO hearing is far-reaching. It can consider any recent act or threat of violence, whether it involved a firearm or not. It can consider a violation of any previous protection order, a domestic violence conviction, a hate crime conviction, ownership of firearms, any prior arrest for a felony or violent crime, corroborated evidence of abuse of drugs or alcohol, and much more. The law does add some new protections for respondents—a voluntary surrender of firearms cannot be used in any prosecution for unlawful possession or possession of a stolen weapon. It also adds the ability for a respondent who was under 18 or whose ERPO finding was based solely on threats of self-harm to petition for sealing.
Practicing Under HB 1320
It’s not hard to see that it’s much better to be a petitioner than a respondent under the new law. The court’s powers over respondents have grown substantially, and protections are few. The law itself suggests one way that practitioners might help a respondent client—they can move to realign the parties.
Realignment of the parties means simply to make the respondent into the petitioner, and vice versa. It’s a process that is already contemplated by RCW 26.50.060, but HB 1320 makes it available for anti-harassment orders as well. It is seldom used, but it may be a useful tool for attorneys. Even unsuccessful motions are a good vehicle to get some of your client’s best facts before the judge. Motions to realign are so rare that there is virtually no case law surrounding them, so an enterprising attorney might chart a useful path for a client.
The new rules on discovery and the conduct of hearings necessitate planning. Attorneys should seek a briefing schedule if they anticipate legal argument or a complicated case, and they should file written motions for discovery as soon as possible.
HB 1320 went into effect July 1, offering a more standardized and accessible body of law for civil protection orders. In the coming months, family and criminal law practitioners will have the opportunity to help define how it evolves in practice.
NEED TO KNOW
Non-Criminal Protection Orders
- Domestic Violence Protection Order (DVPO): May be filed by someone who is experiencing physical harm, bodily injury, assault, stalking, sexual assault, or who fears imminent physical harm or bodily injury by a family or household member.
- Stalking Protection Order (SPO): May be filed by someone who is experiencing stalking conduct by someone who is not a family or household member.
- Anti-Harassment Protection Order: May be filed against someone who has engaged in a willful course of conduct that is unlawful or harassing and that seriously alarms, annoys, or causes emotional distress and that serves no lawful purpose.
- Sexual Assault Protection Order (SAPO): May be filed by someone who is experiencing nonconsensual sexual conduct or nonconsensual sexual penetration by someone who is not a family or household member. A single incident is sufficient to pursue a SAPO.
- Vulnerable Adult Protection Order (VAPO): May be filed by a vulnerable adult, a guardian, or “interested third party” against someone who is accused of abandonment, abuse, financial exploitation, or neglect or against someone who threatens to commit abandonment, abuse, financial exploitation, or neglect.
- Extreme Risk Protection Order (ERPO): May be filed by a family or household member or law enforcement against someone they believe poses a significant danger to self or others by having access to, the ability to purchase or receive, or actual possession of a firearm.
- Restraining Order: Must be filed as part of a family law case (e.g. dissolution/divorce, legal separation, parenting plan, etc.). If you do not have an open family law case refer back to the types of orders listed above to determine which type of order to file.
Source: http://protectionorder.org/
NOTES
1. If the court permits service by mail or publication, the hearing must be set no later than 30 days from the date of the order authorizing such service.
2. The Washington Association of Criminal Defense Lawyers and the Washington Defender Association released a set of concerns about the bill in which they specifically criticized this statement, noting that there is no right to counsel in these hearings, and that no requirement exists that a respondent be informed of their rights in the proceedings.
3. Advocates from TeamChild and defense attorneys expressed concern about the expansion of anti-harassment orders, noting that they have often been misused by schools against minors, especially youth of color. Their imposition can result in exclusion of students from school, with no clear path to return.