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Roake v. Delman

Supreme Court of Washington, En Banc

January 11, 2018

MEGAN ROAKE, Respondent,
v.
MAXWELL DELMAN, Petitioner.

          JOHNSON, J.

         This case involves interpretation of chapter 7.90 RCW, the Sexual Assault Protection Order (SAPO) Act (SAPO Act). The statute establishes a special proceeding for a victim of sexual assault to obtain a civil protection order. The procedure for a SAPO is as follows: A victim of sexual assault files a petition with the court. RCW 7.90.040(1). Under the statute, the petition contains two requirements: (1) an allegation of "the existence of nonconsensual sexual conduct or nonconsensual sexual penetration" and (2) an affidavit "stating the specific statements or actions made at the same time of the sexual assault or subsequently thereafter, which give rise to a reasonable fear of future dangerous acts." RCW 7.90.020(1). Based on the filing of the petition, a temporary protection order may be granted. RCW 7.90.050. The statute authorizes the issuance of a temporary order, ex parte, without prior notice to a respondent. RCW 7.90.110. The court must then order a full hearing to be held within 14 days. RCW 7.90.050.

         In this case, the commissioner granted the petitioner's, Megan Roake's, temporary SAPO, and it was served. The respondent, Maxwell Delman, filed a motion to dismiss, challenging both the assertion of nonconsensual assault and the claim of reasonable fear of future dangerous conduct. At the later hearing, the trial court dismissed the petition, holding that Roake's petition was legally insufficient because the petition failed to allege a reasonable fear of future dangerous acts. Roake appealed the dismissal, and the Court of Appeals reversed and remanded. The Court of Appeals held that the final order statute, RCW 7.90.090, does not require proof of a reasonable fear of future dangerous acts. Roake v. Delman, 194 Wn.App. 442, 377 P.3d 258 (2016), review granted, 187 Wn.2d 1008, 386 P.3d 1098 (2017). It further held that the SAPO Act provides no basis for considering the validity of the temporary order in determining whether to grant a final protection order. We reverse. We hold that RCW 7.90.130(2)(e) provides the procedure and opportunity to contest the sufficiency and validity of the petition and temporary order, and that the trial court correctly held that Roake's petition was legally insufficient under RCW 7.90.020(1).

         Facts and Procedural History

         In May 2014, Roake and Delman, both freshmen at the University of Washington (UW), met at a party. After the party, Roake and Delman returned to Roake's dorm, where Roake alleges a sexual assault occurred.

         In September 2014, when Roake returned to school for classes, she reported the incident to the Seattle Police Department (SPD). SPD investigated the claim, did not file charges, and closed the case. Roake then reported the incident to the university student conduct office, which issued a no contact order.[1] During the next several months, Roake occasionally saw Delman on campus and twice went to parties hosted by a student group she knew he belonged to. Delman never spoke to Roake, phoned her, or came to her residence hall or classes.

         In January 2015, Roake petitioned for a SAPO, seeking to restrain Delman from having any contact with her at her residence or workplace or on the UW campus. In her petition, she alleged that Delman had committed an act of nonconsensual sexual conduct or nonconsensual sexual penetration. Roake asserted that she had encountered Delman several times on campus, that she did not know Delman prior to the night of the alleged sexual assault, and that she did "not know what he [was] capable of." Clerk's Papers (CP) at 4. The court granted an ex parte temporary protection order and scheduled a full hearing on whether to issue a final order for two weeks later.

         The ex parte order was served on Delman, who responded by filing pleadings asserting that the sexual acts were consensual, and that since the incident eight months earlier, he had not tried to contact Roake and had complied with the university's protection order. Also, he argued that because the temporary order failed to specify the time or locations of Roake's classes or activities on campus, and because Roake had not provided that information, it was impossible for him to avoid inadvertent contact with her.

         In response, Roake filed affidavits of friends who attested to her good character, repeated her statements about Delman's alleged assault and how it had affected her, and stated that they believed her. At the February 15, 2015, hearing, Roake began to testify, but because Delman had not received the declarations on which she was relying, the hearing was continued. Shortly before the next hearing date, Delman filed a motion to dismiss Roake's petition generally, and specifically under CR 12(c).[2] He filed declarations of his family and friends attesting to his good character and disputing Roake's claims of assault.

         At the hearing, Delman challenged the ex parte temporary protection order arguing that it should not have issued because the petition and affidavits Roake submitted, and the transcript of the ex parte hearing, did not establish the existence of a reasonable fear of future dangerous acts, as the statute required, and that the petition should be dismissed. His attorney argued that Delman's 10 months of avoiding contact with Roake and complying with the university's no contact order made a final protection order unnecessary. Roake responded that her statement in her petition that she "did not know what Delman was capable of was sufficient to demonstrate her reasonable fear of future dangerous acts under the act, and that she did not have to prove the existence of acts giving rise to reasonable fear of future dangerous acts to support issuance of a final S APO. No other assertions or statements, threats, or subsequent actions by Delman were asserted.

         The trial court granted the motion to dismiss, holding that the petition failed to establish Roake had any reasonable fear of future dangerous acts from Delman, and that on that same basis, the temporary order that was issued was invalid. The trial court entered an order of dismissal. Roake appealed the dismissal, and the Court of Appeals reversed.

         The Court of Appeals, in its statutory interpretation analysis, determined that the SAPO petition has two elements: "(1) an allegation that a sexual assault occurred and (2) the specific statements or actions, other than the assault itself, that cause the petitioner to reasonably fear future dangerous acts from the respondent." Roake, 194 Wn.App. at 450 (emphasis added). It noted that while Roake's petition failed to establish the reasonable fear element, any initial pleading requirements of a SAPO petition do not control the determination of whether to grant a final protection order. Roake, 194 Wn.App. at 456 ("[T]he SAPO Act provides no basis for considering the validity of the temporary order in determining whether to grant a final protection order.") It held that to obtain a final protection order under RCW 7.90.090, the petitioner is not required to prove the existence of statements or acts giving rise to a reasonable fear of future dangerous acts. The Court of Appeals noted the inconsistency in the statutes but dismissed this by focusing on the language of the final order statute, RCW 7.90.090, which, under that section's language (read in isolation from the petition statute, RCW 7.90.020), does not reference "a reasonable fear of future dangerous acts."[3] It also held that procedurally, Delman's motion was not properly before the trial court.[4]Delman then sought discretionary review, which we granted.

         Analysis

         The Court of Appeals addressed three statutory issues: (1) if or when a respondent may challenge the validity of a petition or ex parte temporary order, (2) what a SAPO petition requires before a court issues an ex parte temporary order, and (3) what the final order statute requires before a court issues a final protection order.

         Before resolving the statutory issues, it is necessary to understand the procedural posture under which the trial court based its order of dismissal. As noted earlier, this action was instituted when Roake filed a petition for a SAPO. Delman appeared and filed a motion to dismiss. The motion included a general request for dismissal and, more specifically, dismissal under CR 12(c). Both sides filed declarations, although nothing from the trial court's order indicates whether they were considered. In our review of the declarations, Roake does not assert that Delman violated the university's protection order. There are no allegations that threats, actions, or incidents occurred after the initial incident. The trial court, after reviewing the pleadings and perhaps considering the declarations to determine whether later incidents or facts were necessary to rule on the motion, dismissed the petition, providing in the denial order, "The petitioner failed to establish that she had any reasonable fear of future dangerous acts from the respondent and therefore the temporary order was invalid." CP at 98. That constitutes the basis of the trial court's decision.[5]

         On appeal, the Court of Appeals held that the trial court's denial rested on an incorrect interpretation of the SAPO Act because the SAPO Act provides no basis for considering the validity of the temporary order. Roake and amicus Legal Voice argue that this is appropriate because the statutes are unambiguous, and because Delman had notice and the opportunity to be heard. We disagree.

         Essentially, as Delman argues, a commissioner could enter a temporary order even where a petition fails to allege a statutorily required element, and no procedure exists for a respondent to challenge the deficiency in the petition because the requirements for the issuance of a final order differ from those needed initially. In the briefing before us, Delman argues that the Court of Appeals' interpretation implicates Delman's due process right to challenge a deficient SAPO petition.[6] See CONST, art. I, § 3.

         We disagree with the Court of Appeals that the SAPO Act provides no basis for considering the validity of the temporary order. If a respondent alleges a meritorious defense to the sufficiency of a temporary SAPO, under the statute he or she may petition the court to reopen the order under RCW 7.90.130, which states:

(2) A sexual assault protection order shall further state the following:
(e) For ex parte temporary sexual assault protection orders, that the respondent may petition the court, to reopen the order if he or she did not receive actual prior notice of the hearing and if the respondent alleges that he or she had a meritorious defense to the order or that the order or its remedy is not authorized by this chapter.

(Emphasis added.)

         Here, Delman effectively did that by filing the motion to dismiss. Based on the motion, the trial court heard argument on the motion on the date the final hearing was scheduled. This was proper procedure established under RCW 7.90.130, which provides that a respondent may petition the court to reopen the ex parte temporary order where the respondent alleges that he or she had a meritorious defense to the order. Delman argued that Roake's petition was legally insufficient, which is such meritorious defense.

         Reviewing the trial court's denial order discloses the procedural posture supporting the decision. While the order reflects that the court hearing is pursuant to the petitioner's request, as mentioned, Delman had filed a motion to dismiss, asserting the allegations of the petition were legally insufficient. The trial court denial order expressly provided, "For a temporary sexual assault protection order, reasons for denial of the order are: The Petitioner failed to establish that she had any reasonable fear of future dangerous acts from the Respondent and therefore the temporary order was invalid." CP at 98.

         Furthermore, although the denial order appears to be a preprinted form order, no indication appears on that order that the trial court considered testimony or other supplemental declarations in resolving any disputed facts, nor did the trial court enter any findings of fact as would typically be included to resolve disputed facts. The denial order can be characterized only as granting the motion to dismiss.

         The Court of Appeals misunderstood the procedural posture and focused its analysis on RCW 7.90.090(1)(a), which establishes the requirements necessary for issuance of a final protection order. That statute provides:

If the court finds by a preponderance of the evidence that the petitioner has been a victim of nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent, the court shall issue a sexual assault protection order; provided that the petitioner must also satisfy the requirements of RCW 7.90.110 for ex parte temporary orders or RCW 7.90.120 for final orders.

         The Court of Appeals held that under this section, no express requirement exists that a petitioner establish (or reestablish) specific statements or actions that give rise to a reasonable fear of future dangerous acts. While this conclusion may be supportable, it misses the point. As established earlier, the trial court denial order in granting the motion to dismiss the petition did not reach or resolve any issues required for issuance of a final order.

         Moreover, the statutory analysis, from a practical standpoint, will always focus on what issues are in dispute. Where, as here, a respondent brings a challenge to the sufficiency of the initial petition, either under RCW 7.90.130 or by way of a motion to dismiss as filed here, a trial court resolves that claim on the pleadings. In a different situation where a respondent disputes the claim of sexual assault, the trial court will conduct a further fact finding hearing and resolve that issue based on the testimony or evidence submitted. That further hearing will necessarily depend on how the issue is presented procedurally and what, if anything, is contested by a respondent, and will proceed to resolve the claims at issue.

          We reverse the Court of Appeals and reinstate the trial court's dismissal.

         WE CONCUR

          GORDON McCLOUD, J. (concurring)

         I agree with the lead opinion that RCW 7.90.020(1) requires a petitioner seeking a sexual assault protection order to allege and prove, with specific statements or actions, a reasonable fear of future dangerous acts by the alleged attacker. That statute makes such allegations and proof mandatory prerequisites to the issuance of a temporary protection order. I write separately to explain why that is so, and why that statute also makes such allegations and proof mandatory prerequisites to issuance of a final protection order.

         FACTUAL BACKGROUND

         Megan Roake and Maxwell Delman, who were both students at the University of Washington (UW), met at a party on May 9, 2014, and exchanged phone numbers. Clerk's Papers (CP) at 4. Around 1:00 a.m. that night, Roake invited Delman to her dormitory, where they proceeded to a private bathroom. Roake and Delman agree that they engaged in consensual kissing, but they dispute whether subsequent sexual acts were consensual. Roake states that Delman digitally penetrated her, bit her and slammed her head into the wall during oral sex, attempted to penetrate her with his penis, and disregarded her order to stop and her act of pushing him away. Roake states there was a significant amount of blood on the floor and on her clothing as a result.

         After this single encounter between Roake and Delman, classes ended and Roake returned home for the summer. She and Delman had no further contact during this time. Roake did not report the event to campus authorities or to the police. Over the summer, Roake began attending counseling sessions, including EMDR (eye movement desensitization and reprocessing) therapy, several times per week. She asserts that EMDR therapy helped her recall the event.

         In September 2014, Roake returned to campus for fall classes. At this point, she reported the May 9th incident to the Seattle Police Department. The police conducted a one-month investigation. As a result, they declined to prosecute. Roake then reported the incident to the UW's office of Community Standards and Student Conduct (CSSC). CP at 35-36. The CSSC began an investigation process into the May 2014 incident. Roake obtained a no-contact order against Delman from this campus office.

         After the CSSC no-contact order issued, Roake occasionally saw Delman in passing on campus. According to declarations that Roake filed, she twice attended parties hosted by a student group that she knew Delman belonged to, and once she chose not to leave when she saw him at that party. According to those same declarations, Roake stated that Delman did not attempt to contact her; instead, he acted like he did not recognize her. Both parties agree Delman has complied with the CSSC no-contact order. And it is also undisputed on this record that Roake's friends began following Delman to his own campus activities, not the other way around, and that at least once Roake's friend engaged Delman in a conversation at a party while Roake was present.

         PROCEDURAL HISTORY

         On January 14, 2015, Roake filed a petition for a SAPO (sexual assault protection order) against Delman in connection with the May 2014 incident. CP at 1-5. Roake stated that she sought the SAPO because "I have reported the incident to UW authorities and a no[]-contact order was entered but since the holidays, I have encountered the respondent several times on campus. We also have mutual friends and can end up in the same places and similar areas on campus." CP at 4. Roake sought to restrain Delman from having any contact with her at her residence, at her workplace, or on the UW campus. In her petition, she stated that Delman had committed a single act of nonconsensual sexual conduct or nonconsensual sexual penetration. CP at 3. The petition-filed on a form-also contained the standard form language: that that act "g[a]ve rise to a reasonable fear of future dangerous acts." Id. Roake then described the alleged assault itself as the specific conduct that caused her to fear Delman. Instead of describing "specific" facts that could support an allegation of reasonable fear of future harm (as RCW 7.90.020(1) requires), her statement, contained within the petition itself, stated that she knew Delman only from that night eight months earlier and that she did "not know what he was capable of." CP at 4 (emphasis added).

         On January 14, 2015, a King County court commissioner issued an ex parte temporary SAPO restraining Delman from contacting Roake, and set a later date for a full hearing on the final order.

         Delman did not receive notice of the ex parte temporary SAPO hearing and thus did not appear. Report of Proceedings (RP) (Jan. 14, 2015) at 4-11. He was served with the petition and temporary SAPO in the middle of a class the next day, January 15, 2015. CP at 12.

         Delman then filed a response, stating that since the May 2014 incident eight months earlier, he had not attempted to contact Roake and he had fully complied with the CSSC no-contact order. He also sought clarification of Roake's campus schedule and activities, along with identities of their mutual friends, so that he could better comply with the temporary order, since that order did not specify the time or location of Roake's classes. Roake refused to provide this information. Delman stated it was therefore impossible for him to avoid inadvertent contact with Roake. CP at 10. Delman also argued that Roake's claims were insufficient to support a final protection order. CP at 11.

         Roake responded with material to support her petition for a final protection order. She filed declarations from several friends who attested to her good character, explained that Roake had a reputation for not allowing sexual activity "below [the] waist, " relayed their eyewitness impressions of Roake (but not of the disputed acts) from the night of May 9, 2014, restated what Roake had told them about what happened on that night, gave their impressions of how the encounter appeared to affect Roake, and stated that they believed her. CP at 17. Some of the declarations also stated that Roake had recalled additional details about her encounter with Delman only after engaging in EMDR therapy, and that the therapy allowed Roake to understand the encounter with Delman had been a nonconsensual assault.

         At the hearing on whether to issue the final SAPO order, on February 15, 2015, Delman's counsel realized that it had not received the declarations on which Roake was relying. The judge therefore granted his motion to continue the hearing five days, until February 20, 2015.

         Delman then moved to dismiss. CP at 33-70. He argued that the petition failed to allege, and Roake failed to prove, what the statute requires: "specific statements or actions made at the same time of the sexual assault or subsequently thereafter, which give rise to a reasonable fear of future dangerous acts, for which relief is sought." RCW 7.90.020(1); CP at 33-43. Delman pointed to the eight months that had passed since the initial encounter, during which time he had avoided contact with Roake and complied with the university's no-contact order, which he believed undercut Roake's claim of reasonable fear of future harm. CP at 42-43. Delman added that he was transferring to an out-of-state school and was moving at the end of the month which made Roake's fear of future harm even more unreasonable. CP at 43. Lastly, Delman argued that Roake's fear was unreasonable because the sexual acts were consensual. CP at 2. Delman filed several declarations from family, friends, and others, attesting to his good character and reliability. CP at 44-68. Delman challenged Roake's recalled memories of nonconsent as not credible because they were retrieved through questionable EMDR therapy. CP at 40-41. For these reasons, Delman argued that ...


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