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Smith v. Smith

Court of Appeals of Washington, Division 1

October 30, 2017

SANDRA LYNN SMITH, Respondent,
v.
JOSHUA THADDEUS SMITH, Appellant.

          Leach, J.

         The mere pendency of parallel civil and criminal cases does not entitle the defendant to a stay of the civil case. Instead, a trial court considering a stay request must consider and balance the eight factors identified by this court in King v. Olympic Pipe Line Co.[1]

         Joshua Smith appeals a one-year domestic violence protection order (DVPO). Joshua[2] contends that the trial court abused its discretion and violated his due process rights by entering the protection order before his parallel criminal case was resolved. Because the trial court reasonably concluded that the Olympic Pipe Line factors weighed against granting a stay, it did not abuse its discretion by entering the order. Following controlling precedent, we reject Joshua's due process claims and affirm.

         FACTS

         On November 16, 2015, the State charged Joshua Thaddeus Smith with multiple counts of rape of a child involving his wife's daughter. In March 2016, Sandra Lynn Smith, Joshua's wife, reported to the police that Joshua had asked her tc give false testimony in his criminal case. The police arrested Joshua for tampering with a witness. Sandra, acting pro se, filed a petition seeking a DVPO against him, stating that she was "scared he will retaliate against me." The trial court issued a temporary protection order and notice of hearing the same day.

         In her petition, Sandra explains that Joshua has an "explosive temper" and has "slammed" their son into the wall and spanked their daughter "to the point that she 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 describes the extent of control Joshua exercised over her: Joshua monitored her Facebook 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, Joshua 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 granted this request over Sandra's objection. In September 2016, after the 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 report 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 about the abuse, Joshua warned her that if she told anyone he would "get his gun, shoot the whole family, and then he would kill himself." Sandra claimed that Joshua 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 Amendment rights outweighed Sandra's interests in proceeding expeditiously. She c ranted a continuance two weeks beyond the trial date for Joshua's criminal matter. But the commissioner explained that if Joshua asked for another continuance in his criminal case, the prejudice to Sandra caused by more delay would outweigh any infringement on his Fifth Amendment privilege. She stated, "I can'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 rationale, finding of facts, and conclusions of law. He scheduled a hearing on the merits 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 continuance in the criminal matter over Joshua's objection.

         On November 21, 2016, Joshua requested a fifth continuance in the DVPO matter because his trial had been continued to March of 2017. A commissioner found that the revision order was binding. He decided that although Joshua's trial date had been continued, the conditions established in the revision order for any further continuances had not been met and denied Joshia's request. The commissioner then held a hearing on the protection order request. He considered Sandra's evidence supporting the order. Joshua declined to present any evidence. The commissioner found that Sandra had established by a preponderance of the evidence that Joshua had committed domestic violence and issued a one-year protection order protecting Sandra and her children. Joshua appeals.

         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 Amerdment privilege.[4]

         I. The Olympic Pipe Line Test

         Joshua contends that the trial court abused its discretion in granting a one-year protection order while his parallel criminal matter was pending. We disagree. 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 abuses its discretion only if its ruling is manifestly unreasonable or is based upon untenable grounds or reasons."[7]

         In Olympic Pipe Line, this court held that the trial court must conduct an on-the-record balancing of eight nonexclusive factors before granting or denying a mo Jon to stay the civil proceeding when parallel criminal proceedings are pending.[8] We will overturn the trial court's decision only if it has abused its discretion. The eight factors are (1) the extent to which a defendant's Fifth Amendment rights are implicated, (2) the similarities between the civil and criminal cases, (3) the status of the criminal case, (4) the interest of the plaintiffs in proceeding expeditiously and the potential prejudice to plaintiffs of delay, (5) the burden 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 evil 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 against self-incrimination is implicated weighs heavily in favor of granting a stay and outweighs any countervailing factors. Once a witness in a civil suit has invoked his Fifth Amendment privilege, the trier of fact is entitled to draw an adverse inference from his refusal to testify.[10] The extent to which a party's right against self-incrimination is implicated in civil proceedings is not determinative, but it must be given "'serious consideration' in the balancing of interests."[11]

         Here, the State criminally charged Joshua with conduct similar to that alleged in Sandra's petition. The allegations in both proceedings involve domestic violence. He therefore asserts that his Fifth Amendment rights are direct y at issue. Joshua contends that he must choose between waiving his Fifth Amendment privilege and being unable to defend himself in the DVPO proceedings. The extent to which his Fifth Amendment rights are seemingly implicated would therefore weigh in strong favor of a stay. In granting a fourth continuance 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 Prevention Act (DVPA).[12] The process created by the DVPA burdens the defendant's Fifth Amendment privilege substantially less than do other civil proceedings. DVPO proceedings are "special proceedings, " which means that rules of civil procedure established by the legislature for DVPOs supersede inconsistent civil court rules.[13] For example, the rules of evidence do not apply in DVPO proceedings.[14]

         Also, in DVPO proceedings parties do not have a right to a jury trial, [15] to discovery, [16] to compel live testimony, or to cross-examine witnesses.[17] Although the trial court has the discretion to allow discovery, [18] live testimony, and cross-exam nation, [19] DVPO hearings are "equitable in nature and may be properly determined by a court on documentary evidence alone."[20]

         Thus, the plaintiff cannot compel evidence or testimony, which means DVPC) 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 without providing incriminating testimony. The defendant does not need to testify in the 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 therefore unable to infer prejudice, and the defendant need not necessarily choose between waiving his Fifth Amendment right and defending himself in the civil proceedings. Thus, a court could reasonably decide that the extent to which these DVPO proceedings implicate Joshua's Fifth Amendment privilege does not provide a persuasive justification for a stay.

         2. Similarities between the Civil and Criminal Cases

         Joshua maintains that the fact he is being criminally charged with conduct that is either the same or similar to that alleged in Sandra's petition weighs in favor of 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.[22]

         Joshua was criminally charged with raping his stepdaughter. By contrast, in Sandra's petition for a DVPO, she claimed that Joshua physically abused their children and threatened her with physical violence as well as threatened suicide. The court found that although the two cases do not involve identical behavior, they are "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 proceedings and pose substantially less danger of self-incrimination than do other civil proceedings, a court could reasonably decide that the similarities provide minimal weight, if any, for a stay.

         3. Status of the Criminal Case

         Joshua contends that the pending status of his criminal case weighs in favor of a stay due to Fifth Amendment concerns. A stronger argument exists for deferring 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 status of his criminal case does not weigh in strong favor of a stay.

         4. The Interest of the Plaintiffs in Proceeding Expeditiously and the Potential Prejudice to Plaintiffs of a Delay

         Joshua asserts that his Fifth Amendment rights trump Sandra's interest in expeditious resolution of the DVPO matter. "Civil plaintiffs have a substantial interest in expeditious conduct of their litigation."[24] But Olympic Pipe Line notes that "while stale memories pose a risk, . . . under settled authority the Fifth Amendment is the more important consideration.'"[25] Here, however, Joshua's Fifth Amendment rights are not substantially infringed, and delay poses hardship to Sandra 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 effective 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 hearing 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 Washington Supreme Court recognized that "[b]ecause many victims are unable to retain 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 develop instructions, informational brochures, and a handbook on the domestic violence process and procedures, and are required to provide other services to make it easier for pro se litigants to access the courts.[30] When a court repeatedly continues DVPO proceedings, the system becomes too challenging to navigate and pro se litigants are forced either to abandon their claims or seek pro bono or hired counsel if they are able. Sandra appeared ...


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