State v. Esquivel

132 P.3d 751
Court of Appeals of Washington·Decided March 30, 2006·No. 23938-1-III·Published·Cited by 4 cases

Opinion

132 P.3d 751 (2006)
132 Wash.App. 316

STATE of Washington, Appellant,
v.
Richard Charles ESQUIVEL, Respondent.

No. 23938-1-III.

Court of Appeals of Washington, Division 3.

March 30, 2006.

*752 Karl F. Sloan, Okanogan County Prosecuting Attorney, Okanogan, Pamela B. Loginsky, Washington Association of Prosecuting Attorneys, Olympia, for Appellants.

Dennis W. Morgan, Attorney at Law, Ritzville, for Respondents.

THOMPSON, J.[*]

¶ 1 Lisa Orr obtained a series of restraining orders against Richard Esquivel in the Tribal Court of the Confederated Tribes *753 of Colville Reservation (tribal court). None of these orders contained a warning that the violation of the order could be punishable as a crime. In August 2004, Mr. Esquivel was charged in superior court with six felony counts for violating the tribal order. Mr. Esquivel moved to dismiss the charges, arguing that the tribal restraining order did not contain the warning required under RCW 26.50.035(1)(c). The trial court agreed and dismissed the charges. The State appeals, contending the tribal order should have been afforded full faith and credit. We agree, and reverse.

FACTS

¶ 2 Richard Esquivel and Lisa Orr have two minor children. Mr. Esquivel was charged with assaulting Ms. Orr in July 2003. Later, Ms. Orr filed an action in tribal court to establish a parenting plan for the two children.

¶ 3 During the pendency of the action, several orders were entered placing restrictions on Mr. Esquivel's conduct. On November 24, 2003, the tribal court entered a permanent parenting plan. The parenting plan contains a warning that the violation of the residential provisions of the parenting plan with actual knowledge of its terms is punishable by contempt of court and may be a criminal offense under tribal law.

¶ 4 That same day, the tribal court also entered its "Order Regarding Motions, Judgment, Restraining Order, [a]nd Parenting Plan." Clerk's Papers (CP) at 15. This order contains the following provisions:

2. Respondent, Richard Esquivel, shall not contact Petitioner, Lisa Orr, or Rheanna Marchand, at any time or location or by any method, including third-party contact. Respondent, Richard Esquivel, is further restrained from contacting the work place of Petitioner, Lisa Orr, or Ms. Orr's residence by any means, at any time, whether in person or through a third party. As specific and agreed-to exceptions to this Restraining Order, Respondent, Richard Esquivel, may contact Petitioner, Lisa Orr, in the event of an emergency involving the children during their visitations with Respondent or in the event of an emergency involving the transportation of the children for visitation;
3. The above and foregoing Restraining Order shall be in effect for a period of ten (10) years, expiring on November 19, 2013.

CP at 16.

¶ 5 The tribal order states that Mr. Esquivel appeared pro se and indicates that a copy of the order was served on him. The tribal order contains no warning that the violation of the restraining order may be punishable as a crime under tribal law, Washington law or any other penal code.

¶ 6 The following December, an order was entered that modified the provisions of the November 26 restraining order. This order allowed for telephonic contact between 4:30 P.M. and 8:00 P.M. each Wednesday, and during the two hours prior to, and during, scheduled visits provided this contact is limited to discussions about visitation. This order also does not include any warning that the violation of the order may be punishable as a crime.

¶ 7 One year later, the State filed charges alleging six violations of the tribal court's restraining order. The charges arose from conduct by Mr. Esquivel that took place on or about August 28, 2004 and August 29, 2004.

¶ 8 Mr. Esquivel moved to dismiss the charges. He maintained that the tribal court's failure to include the warning in its order violated due process notice requirements rendering the tribal restraining order invalid. The court granted the motion to dismiss. The State appeals.

ANALYSIS

¶ 9 RCW 26.50.035(1)(c) provides that an order for protection must contain notice of the criminal penalties arising from a violation of the order, and must include the following language: "You can be arrested even if the person or persons who obtained the order invite or allow you to violate the order's prohibitions. The respondent has the sole responsibility to avoid or refrain from violating *754 the order's provisions. Only the court can change the order upon written application." RCW 26.50.035(1)(c).

¶ 10 Here the trial court dismissed the charges against Mr. Esquivel because the tribal restraining order did not contain the warning required under RCW 26.50.035(1)(c). Specifically, the court concluded that: "Defendant had inadequate notice of possible sanctions for violation of the foreign restraining order, as required by due process and the provisions of RCW 26.50.035(1)(c)." CP at 91. In contrast, the State contends that RCW 26.50.035(1)(c) does not apply to foreign orders and that Washington must enforce the tribal order under full faith and credit principles.

Does RCW 26.50.035(1)(c) apply to foreign orders?

¶ 11 Several statutes address the problem of domestic violence in Washington by authorizing courts to issue orders that preclude the aggressor from contacting the victim. See RCW 10.99.040; RCW 26.50.020; RCW 26.09.060, .300; RCW 26.26.130, .138. The contents of each order are determined by the underlying statutory authority. Warnings required in orders issued under one chapter are not required in orders issued under a different statute. For example, the warnings required under RCW 26.50.035(1)(c), are not required in orders issued under RCW 10.99.040 or RCW 26.09.060. See State v. Turner, 118 Wash. App. 135, 14

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