State v. KarasState v. Karas
- Reporters:
- ,
- Before:
- Seinfeld
Robert James Karas appeals convictions of residential burglary and violation of a domestic violence protection order. He argues that the Domestic Violence Prevention Act (the Act), chapter 26.50 RCW, is unconstitutional and, thus, the domestic violence order underlying the offenses was invalid. He also challenges the superior court commissioner’s authority to issue the protection order. Finding no merit in these contentions, we affirm.
FACTS
On June 12, 2000, Karen Gillespie, who had been living with Karas, petitioned for and received an ex parte temporary protection order against him. On that same day, a police officer served Karas with Gillespie’s petition and the order, which directed him to appear at a June 26 hearing.
On June 26, Gillespie and Karas appeared before a superior court commissioner and testified. Following the hearing, the commissioner entered a permanent protection order that restrained Karas from contacting Gillespie and that excluded him from entering a residence on 90th Avenue in Edgewood. Karas did not appeal that order.
Karas entered the 90th Avenue residence on June 29 and contacted Gillespie. Subsequently, the State charged him with one count of residential burglary (domestic violence),
At a pretrial proceeding, Karas sought to have the charges dismissed by arguing that the Act lacks procedural due process protections. The trial court
Karas then pleaded guilty to the two charged counts. On appeal, he again challenges the Act and further argues that the Act provides for criminal penalties and, hence, a superior court commissioner lacks authority to issue a permanent protection order.
The State contends that (1) Karas waived his right to appeal when he pleaded guilty, (2) the collateral attack doctrine bars the appeal, and (3) Karas cannot make a facial challenge to the Act. In an amicus brief, the Attorney General addresses the Act’s constitutionality.
DISCUSSION
I. Appealability
Karas challenges the validity of chapter 26.50 ROW in its entirety but he does not challenge the residential burglary statutes,
The State responds that Karas is actually challenging the sufficiency of the evidence and that his guilty plea precludes such a challenge. It argues that because the trial court relied on Karas’s factual admissions of guilt to convict him on the residential burglary charge, the validity of the protection order is irrelevant.
Generally, a defendant waives his right to appeal by pleading guilty. See State v. Majors, 94 Wn.2d 354, 356, 616 P.2d 1237 (1980). But “a plea of guilty does not
In this case, if the domestic violence prevention statute is invalid, the protection order also would be invalid and, hence, there would be no offense. Further, Karas’s challenge to the commissioner’s authority to issue the protection order is a challenge to the court’s jurisdiction. Thus, Karas’s guilty plea does not alone preclude this appeal.
Whether the collateral attack doctrine applies is a closer question. As the court indicated in State v. Noah, 103 Wn. App. 29, 46, 9 P.3d 858 (2000), review denied, 143 Wn.2d 1014 (2001), a defendant generally may not attack the underlying court order in a contempt action. But there is an exception for an allegedly void order. Further, a challenge to the constitutional validity of a predicate conviction is not a collateral attack when the State may use that conviction to establish an essential element of a charge. State v. Summers, 120 Wn.2d 801, 810, 846 P.2d 490 (1993).
Here, Karas argues that the collateral attack bar does not apply because the underlying order is based on an allegedly unconstitutional statute and because the commissioner lacked authority to issue the order. But even if Karas can hurdle the collateral attack bar, he fails to establish the protection order’s invalidity.
II. Constitutionality of Domestic Violence Prevention Act1
The Act creates “an action known as a petition for an order for protection in cases of domestic violence.”
Following the hearing, the court may order various forms of relief but “no order for protection shall grant relief to any party except upon notice to the respondent and hearing.”
As statutes carry a presumption of constitutionality, Karas must establish the Act’s unconstitutionality beyond a reasonable doubt. Wash. Fed’n of State Employees v. State, 127 Wn.2d 544, 558, 901 P.2d 1028 (1995). If we were to find the Act unconstitutional, Karas would be able to show that it operated to his prejudice based upon his subsequent convictions for violating an order issued under the Act. Thus, Karas satisfies the prevailing rule that states: “one who seeks to challenge the constitutionality of a law or other governmental action, either on
Karas contends that application of the Act violated his right to procedural due process because the Act’s procedures do not comply with the Civil Rules. He claims that the risk of erroneous deprivation of rights under the Act is great because it provides for only 14 days’ notice and it does not contain any provision for discovery. He further argues that it is difficult for a respondent to marshal witnesses on such short notice.
The State contends that cases under the Act are special proceedings that supersede the Civil Rules. CR 81(a). It also contends that given the emergency nature of these cases, 14 days’ notice is not constitutionally inadequate and that nothing in the Act prevents a party from presenting witnesses. Further, we note that the Act does not preclude a party from seeking discovery.
Procedural due process constrains governmental decision making that deprives individuals of liberty or property interests within the meaning of the Due Process Clause. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Due process is a flexible concept; the particular situation determines its exact contours. Mathews, 424 U.S. at 334. But “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)).
Determining what process is due in a given situation generally requires consideration of (1) the private interest involved, (2) the risk that the current procedures will erroneously deprive a party of that interest, and (3) the governmental interest involved. Mathews, 424 U.S. at 335; Spence v. Kaminski, 103 Wn. App. 325, 335, 12 P.3d 1030 (2000). A protection order may implicate several private interests including exclusion from a dwelling and the interest in one’s children. See also Baker v. Baker, 494 N.W.2d 282, 287 (Minn. 1992); State ex rel. Williams v. Marsh, 626 S.W.2d 223, 230 n.8 (Mo. 1982).3
Here, the Act’s provisions satisfy the two fundamental requirements of due process — notice and a meaningful opportunity to be heard by a neutral decision maker. The procedural safeguards include: (1) a petition to the court setting forth facts under oath, (2) notice to the respondent, (3) a hearing before a judicial officer where the petitioner and respondent may testify, (4) the opportunity to file a motion to modify a protection order, (5) a requirement that a judicial officer issue any order, and (6) the right to appeal. See, e.g., Spence, 103 Wn. App. at 334 (noting in dicta that the “process for issuing a permanent protection order provides adequate notice and ability to be heard”). Karas was afforded each of these safeguards although he failed to exercise his right to appeal the protection order.
A protection order issued under chapter 26.50 RCW “does not protect merely the ‘private right’ of the person named as petitioner in the order.” State v. Dejarlais, 136 Wn.2d 939, 944, 969 P.2d 90 (1998). Rather, the Act reflects the legislative determination that the public has an interest in preventing domestic violence:
“Domestic violence is a problem of immense proportions affecting individuals as well as communities. Domestic violence has long been recognized as being at the core of other major social problems: Child abuse, other crimes of violence against person or property, juvenile delinquency, and alcohol and drug abuse. Domestic violence costs millions of dollars each year in the state of Washington for health care, absence from work, services to children, and more.”
Dejarlais, 136 Wn.2d at 944 (quoting Laws of 1992, ch. 111, § 1).
Considering the minor curtailment of Karas’s liberty imposed by the protection order and the significant public and governmental interest in reducing the potential for irreparable injury, the Act’s provision of notice and a hearing before a neutral magistrate satisfies the inherently flexible demands of procedural due process. See Spence, 103 Wn. App. at 332; State v. Lee, 82 Wn. App. 298, 313, 917 P.2d 159 (1996) (stalking statute does not violate procedural due process because there is strong State interest in curtailing stalking behavior; no substantial privacy interest is at stake; and there is only a minimal risk of erroneous deprivation of liberty because enforcement requires a showing that intentional stalking behavior provoked reasonable fear in victim), aff’d, 135 Wn.2d 369, 957 P.2d 741 (1998). Thus, Karas has not carried the heavy burden of establishing that the Act is unconstitutional beyond a reasonable doubt.
III. Authority of Superior Court Commissioners
Karas argues that
Although
There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.
Moreover, Karas’s reply brief argument regarding jury trials comes too late for this court’s consideration. RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Nor does the record indicate that Karas argued lack of authority when the commissioner issued the order. See State v. Wenatchee Valley Holding Co., 169 Wash. 535, 540-41, 14 P.2d 51 (1932) (parties waived objection to commissioner’s authority to preside over selection and swearing in of jury where all parties consented and defendant did not object until after jury rendered verdict).
As Karas’s challenge to the commissioner’s authority to issue the order also fails, we affirm.
Hunt, A.C.J., and Houghton, J., concur.
Notes
The State contends that Karas cannot facially challenge the Act, citing authority stating that “[ujnless First Amendment freedoms are involved, this court generally will only determine whether a statute is unconstitutional as applied to the facts of the case.” State v. Carver, 113 Wn.2d 591, 599, 781 P.2d 1308, 789 P.2d 306 (1989); see also City of Spokane v. Douglass, 115 Wn.2d 171, 182-83, 795 P.2d 693 (1990). But at oral argument, Karas contended that he is making an “as applied” challenge to the statute. We do not have a record of the domestic violence protection order proceeding and, thus, we review the Act’s application only as to those facts that the parties appear to concede in this case.
To receive a temporary order, the petitioner must allege that irreparable injury could result if an order is not issued immediately. The order may not exceed 14 or 24 days depending on the type of service and, unless otherwise allowed, the respondent must be personally served with the order, the petition and notice of the hearing date.
Karas delineates a number of rights that a protection order hypothetically could affect. But the protection order here simply restrained Karas from contacting Gillespie or her children and excluded him from the Edgewood residence and from Gillespie’s workplace.