THE CITY OF SEATTLE, Respondent, v. ROBERT J. MAY, Petitioner.
No. 83677-9
Supreme Court of Washington
June 23, 2011
En Banc. Argued October 21, 2010.
¶13 “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.” Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Frankfurter, J., concurring)). The Court of Appeals has been elected by districts drawn along county lines for over 40 years. Washington history, case law, and logic suggest that these districts need not be numerically equal for our elections to be “free and equal” under
IV. CONCLUSION
¶14 We affirm the trial court‘s decision granting respondents’ CR 12(b)(6) motion to dismiss and denying Eugster‘s motion for partial summary judgment.
MADSEN, C.J., and C. JOHNSON, ALEXANDER, CHAMBERS, OWENS, J.M. JOHNSON, STEPHENS, and WIGGINS, JJ., concur.
Peter S. Holmes, City Attorney, and Richard E. Greene, Assistant, for respondent.
¶1 OWENS, J. — In 2005, Robert May violated a domestic violence protection order that prohibited him from contacting his ex-wife. As a result, May was convicted, under a city of Seattle ordinance, of violating the protection order. May contends that the order he is charged with violating is invalid and that he lacked notice that violating the no-contact provision of the order was a criminal offense. The superior court reversed the municipal court convictions, and the Court of Appeals reversed the superior court, reinstating the convictions. We affirm the Court of Appeals on different grounds, concluding that May‘s first challenge is precluded by the collateral bar rule and that his second challenge fails in light of State v. Bunker, 169 Wn.2d 571, 238 P.3d 487 (2010).
¶2 On December 30, 1996, the King County Superior Court issued an amended order for protection to Desiree Douglass, May‘s ex-wife.1 In that order, the court found that May had “committed domestic violence as defined in
THIS ORDER FOR PROTECTION IS PERMANENT
If the duration of this order exceeds one year, the court finds that an order of less than one year will be insufficient to prevent further acts of domestic violence.
Id. at 17. The check mark is handwritten. The order also plainly advised May that
[v]iolation of the provisions of this order with actual notice of its terms is [a] criminal offense under
chapter 26.50 RCW andRCW 10.31.100 and will subject a violator to arrest.....
... You have the sole responsibility to avoid or refrain from violation [of] the order‘s provisions. Only the court can change the order upon written application.
Id. May signed the order, indicating receipt of a copy.
¶3 In spite of the provisions of the domestic violence protection order clearly prohibiting “any contact whatsoever,” id. at 16, May nonetheless contacted Douglass several times in 2005 regarding nonemergency matters.2 As a result, May was charged in the Seattle Municipal Court with four counts of violating the domestic violence protection order. This prosecution was pursuant to former Seattle Municipal Code 12A.06.180(A) (2000). May was ultimately convicted of two counts of violating a domestic violence protection order, and the court imposed a deferred two-year sentence. The superior court subsequently reversed the municipal court, finding that “[t]he protection order was facially invalid because the language in the last paragraph of the order . . . is not the finding required by
ISSUES
¶4 1. Does the collateral bar rule prohibit May from challenging the validity of the domestic violence protection order in a prosecution for violation of that order?
¶5 2. Does the prosecution of May violate due process because the order failed to give May fair warning of what conduct is prohibited?
ANALYSIS
A. The Collateral Bar Rule Precludes May‘s Challenge to the Domestic Violence Protection Order3
¶6 The collateral bar rule prohibits a party from challenging the validity of a court order in a proceeding for violation of that order. State v. Noah, 103 Wn. App. 29, 46, 9 P.3d 858 (2000); State v. Wright, 273 Conn. 418, 426-28, 870 A.2d 1039 (2005). An exception exists for orders that are void.4
collateral bar rule precludes him from arguing that the order is merely erroneous.
¶7 May‘s order is not void. The superior court possessed jurisdiction “to issue the type of order,” id., that is, to issue a permanent domestic violence protection order.
¶8 State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005), is entirely consistent with the collateral bar rule. In Miller, the defendant in a prosecution for violation of a domestic violence no-contact order, Clay Jason Miller, contended that the validity of the underlying no-contact order was an element of the crime that the State had to prove beyond a reasonable doubt to the jury. Id. at 25. We held that the validity of the order, as opposed to its existence, was neither a statutory nor an implied element of the crime. Id. at 31. Instead, we held that “[t]he court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged.” Id. We then expressly noted that “[w]e do not suggest that orders may be collaterally attacked after the alleged violations of the orders. Such challenges should go to the issuing court, not some other judge.” Id. at 31 n.4.
¶9 Our discussion of the applicability of orders in Miller was an effort to harmonize that case with the results in City of Seattle v. Edwards, 87 Wn. App. 305, 941 P.2d 697 (1997), and State v. Marking, 100 Wn. App. 506, 997 P.2d 461 (2000), both of which were overruled in part by Miller. Miller, 156 Wn.2d at 30-31. In Edwards, the language in a no-contact order regarding its date of expiration was ambiguous, and the Court of Appeals construed it to mean that the order expired one year after its issuance unless the trial court extended the order. 87 Wn. App. at 309. Because Edwards‘s charged violation occurred more than one year after issuance of the no-contact order and no further order extending the order‘s duration had been issued, id. at 307, 309, Miller holds that the trial court should have excluded the order as inapplicable to the charged violation. Similarly, in Marking, the Court of Appeals confronted a situation in which a no-contact order lacked statutorily required notice that the no-contact provisions applied even if the contact occurred at the request of the protected party. 100 Wn. App. at 508 (citing former
¶10 Today, we clarify that, in a proceeding for violation of a court order, the trial court‘s gate-keeping role includes excluding orders that are void, orders that are inapplicable to the crime charged (i.e., the order either does not apply to the defendant or does not apply to the charged conduct), and orders that cannot be constitutionally applied to the charged conduct (e.g., orders that fail to give the restrained party fair warning of the relevant prohibited conduct). Though some language in Miller may be capable of being read more broadly when viewed in isolation, Miller specifically stated that no-contact orders issued pursuant to
the alleged violations of the orders.” 156 Wn.2d at 31 n.4. We see no reason this should apply differently to orders issued pursuant to
¶11 In the present case, the court issuing the permanent domestic violence protection order against May had jurisdiction to issue such orders, and its subject matter and personal jurisdiction are unchallenged. As such, the order was not void. The collateral bar rule therefore prohibits May‘s challenge to the validity of the underlying protection order.6 If May believes the domestic violence protection order against him is invalid,
B. May‘s Prosecution Does Not Violate Due Process
¶12 May next contends that the protection order failed to give him fair notice of what conduct the order criminalized and, as such, was unconstitutionally vague. Cf. State v. Watson, 160 Wn.2d 1, 6, 154 P.3d 909 (2007) (“The due process clause of the Fourteenth Amendment to the United States Constitution requires statutes to provide fair notice of the conduct they proscribe.“). The essence of May‘s argument is that he lacked notice that violation of the no-contact provisions of the protection order could result in criminal, rather than contempt, penalties. This is so, May argues, because the notification of criminal penalties in the
order of protection cites only
¶13 The protection order against May states, “Violation of the provisions of this order with actual notice of its terms is [a] criminal offense under
CONCLUSION
¶14 May made a choice to violate the plain and unambiguous terms of the domestic violence protection order that prohibited him from contacting his ex-wife. May might earnestly believe that the order is invalid, but his remedy is to seek modification of the order by the court that issued it; he is not free to violate the order with impunity. The collateral bar rule precludes May‘s challenge to the validity of the domestic violence protection order. In addition, because May had fair notice that violation of the no-contact provision of the domestic violence protection order would result in criminal penalties, his prosecution for such conduct does not violate due process. We affirm the Court of Appeals.
MADSEN, C.J., and C. JOHNSON, ALEXANDER, CHAMBERS, and FAIRHURST, JJ., concur.
¶15 STEPHENS, J. (concurring in dissent) — I agree with the dissent‘s conclusion that the order here does not satisfy the statutory requirements for a permanent protection order under
¶16 SANDERS, J.* (dissenting) — We are asked whether a permanent protection order requires an unambiguous statutory finding for it to extend beyond one year. To issue a permanent protection order,
FACTS AND PROCEDURAL HISTORY
¶17 Though the majority‘s limited recitation of the facts is accurate, several key details have been omitted. Robert May and Desiree L. Douglass dissolved their marriage in 1995 in a “high-conflict” divorce proceeding. Douglass requested an order of protection against May in September 1996 in King County Superior Court; this request was denied by Judge Johnson because of insufficient factual basis. Again on October 3, 1996, Douglass appeared before the King County Superior Court; Commissioner Shlesser issued a default domestic violence protection order against May pursuant to
¶18 The order prohibited May from physically harming Douglass or their son, from coming near or contacting Douglass “except by telephone regarding child for emergency purposes only,”9 from entering Douglass’ residence or workplace, and from interfering with Douglass’ “physical or legal custody” of their son. Clerk‘s Papers (CP) at 132. The order also stated that any violation of the order was a “criminal offense under
¶19 Nine years later, on March 11, 2005, May left a message on Douglass’ voice mail inquiring about contact with their son. Thirteen days after that, May sent an e-mail to Douglass seeking visitation. As a result May was charged in Seattle Municipal Court with two counts of violating the protection order. May challenged the admissibility of the predicate protection order, arguing the permanent order was facially invalid because it did not contain a finding May was likely to resume acts of domestic violence after a one-
year period, as required by
¶20 The municipal court rejected May‘s argument, concluding the issuing court could have found likelihood of future domestic violence absent the order, based on the allegations and various petitions by Douglass. Over objection, the protection order was admitted into evidence; May was found guilty on stipulated facts.
¶21 On appeal, the King County Superior Court reversed, reasoning the order was facially defective because it lacked the factual finding required by statute. Division One of the Court of Appeals accepted discretionary review and reversed. City of Seattle v. May, 151 Wn. App. 694, 695, 699, 213 P.3d 945 (2009). Misfortune seemed his lot, but May again sought review of this decision, arguing the trial court erred by admitting an inapplicable order. We granted review. 168 Wn.2d 1006, 226 P.3d 781 (2010).
ANALYSIS
¶22 May argues the trial court should not have admitted the permanent domestic violence protection order into evidence because
tion order satisfies statutory requirements is a question of law. We review questions of law de novo. Labriola v. Pollard Grp., Inc., 152 Wn.2d 828, 100 P.3d 791 (2004).
Challenge to the Facial Validity of an Order Is Not a Collateral Attack
¶23 The collateral bar rule generally states judicial orders may not be collaterally attacked in a subsequent proceeding to enforce that order. State v. Noah, 103 Wn. App. 29, 46, 9 P.3d 858 (2000); State v. Miller, 156 Wn.2d 23, 31 n.4, 123 P.3d 827 (2005). A collateral attack challenges “the sufficiency of the evidence supporting the protection order.” State v. Joy, 128 Wn. App. 160, 161, 114 P.3d 1228 (2005). Essentially, the collateral bar rule precludes a challenge to the underlying factual basis of an order that a respondent is charged with violating. It does not bar a challenge to the facial validity of an order: a “defendant may question the order which he is charged with refusing to obey only in so far as he can show it to be absolutely void.” State ex rel. Ewing v. Morris, 120 Wash. 146, 158, 207 P. 18 (1922); Joy, 128 Wn. App. at 164 (recognizing a right to challenge the facial validity of a protection order). “A judgment is void only where the court lacks jurisdiction of the parties or the subject matter or lacks the inherent power to enter the particular order involved.” Bresolin v. Morris, 86 Wn.2d 241, 245, 543 P.2d 325 (1975).
¶24 Domestic violence protection orders are creatures of statute. The courts have no inherent authority to issue such orders; they have no power to issue protection orders that do not strictly comply with the governing statute. Here, May raises a question of statutory authority to issue a permanent domestic violence protection order lacking a statutorily required finding. As correctly recognized by the Court of Appeals, May‘s challenge to the applicability of the order is not a collateral attack. May, 151 Wn. App. at 698 n.9. May has a right to challenge the facial validity of the permanent protection order in an enforcement action. See Miller, 156 Wn.2d at 31 (issues relating to whether the order complied
with the underlying statute are part of the court‘s gate-keeping function). However a challenge to the sufficiency of the evidence supporting the order may be brought only on direct appeal. Id. at 32; Joy, 128 Wn. App. at 164.
Threshold Finding of Validity Required by Miller
¶25 In Miller this court held the validity of a no-contact order was not an implied element of a violation of a no-contact order. Miller, 156 Wn.2d at 24. “[T]he ‘validity’ of the no-contact order is a question of law appropriately within the province of the trial court to decide as part of the court‘s gate-keeping function.” Id. “The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged.” Id. at 31. Issues relating to “applicability” of the order to the crime charged include whether the court granting the order was authorized to do so, whether the order was adequate on its face, and whether the order complied with the underlying statute. Id. Inapplicable orders should not be admitted into evidence. Id. “If no order is admissible, the charge should be dismissed.” Id.
¶26
¶27 A permanent protection order “does not require any particular wording.” Edwards, 87 Wn. App. at 310; see
¶28 Here the only evidence of such finding was the “boilerplate” language on the face of the order. Consequently, the boilerplate language, the only indication of a finding, must satisfy the statutory mandate.
Permanent Order Lacked a Finding of Likelihood of Future Domestic Violence
¶29 The order states,
THE ORDER FOR PROTECTION IS PERMANENT
If the duration of this order exceeds one year, the court finds that an order of less than one year will be insufficient to prevent further acts of domestic violence.
CP at 133. This language merely states an order of less than one year is insufficient to prevent further acts of violence; it does not, however, address whether domestic violence is likely to resume after one year. This abbreviated “finding” does no more than state why the order is being issued in the first place: to prevent future acts of domestic violence for a period of one year. It does not establish the need for an order that exceeds one year. Moreover, this “finding” is conditional; it is not an affirmative statement the court has entered a finding. Rather, the “finding” is effective only if the duration of the order exceeds one year; the court did not actually find upon expiration of the order acts of domestic
violence were likely to resume. At best, this language glosses over the threshold requirement and treats it like a formality. At worst, this boilerplate language appears to be an anticipatory attempt to justify every order that exceeds one year.
¶30 The Court of Appeals, relying on Spence, held this “boilerplate” language, though not a positive statement that domestic violence would likely resume after one year, was sufficient to show the trial court had made the required finding. May, 151 Wn. App. at 695. That reliance is misplaced. Spence was a direct appeal challenging an order issued pursuant to
¶31 But the order here is ambiguous and so does not satisfy statutory requirements: the boilerplate language is not an adequate finding that a permanent order was necessary
¶32 The jurisdiction of courts in cases involving domestic violence protection orders is derived from the statute,
CONCLUSION
¶33 A clear and explicit statutory finding that “respondent is likely to resume acts of domestic violence against petitioner” is required for a valid permanent protection order.
¶34 I dissent.
J.M. JOHNSON, J., concurs with SANDERS, J. PRO TEM.
Notes
If a protection order restrains the respondent from contacting the respondent‘s minor children the restraint shall be for a fixed period not to exceed one year. This limitation is not applicable to orders for protection issued under
If the petitioner has petitioned for relief on behalf of the respondent‘s minor children, the court shall advise the petitioner that if the petitioner wants to continue protection for a period beyond one year the petitioner may either petition for renewal pursuant to the provisions of this chapter or may seek relief pursuant to the provisions of