1

9 Superior Court of Washington

10
For XXXXXXXXXX County
11
XXXXXXXXXXXXXXXXXXXXXXX, NO. 20-XXXXXXXXXXXXXX
12 (DOB: XXXXXXXXXXXXXX),
13
Petitioner, MOTION FOR STAY OF TEMPORARY
14
DVPO BASED UPON King v. Olympic
15
Pipeline Co., 104 Wn.App. 338, 16 P.3d 45
v.
16
(Div. 1 2000), AND FOR REISSUANCE OF
17
xxxxxxxxxxxxxxxxxxxxxxxxxxx, TEMPORARY DVPO
18 (DOB: XXXXXXXXXXXXXX),
19 NEXT HEARING: XXXXXXXXXXX @ 01:00
Respondent. PM in Dept. C, which will again be sought to be
20 stayed due to a parallel criminal proceeding based
on the same identical incident and set of alleged
21 facts, to wit: Snoh. County. Sup. Court PA
22 Investigation linked to or under SCSC Case No.
xxxxxxxxxxxx (Telephone Harassment Threats to
23 Kill;
Alleged Violation Date XXXXXXXXXXX),
24 pursuant to 104 Wn. App. 338, KING v. OLYMPIC
PIPELINE, 104 Wn.App 338 (2000).
25

26
I. MOTION AND STATEMENT OF RELIEF SOUGHT
27
COMES NOW the above-named Respondent, XXXXXXXXXXXXXXXX, by and
28

29 through his undersigned attorney of record herein, and moves the court to please stay and
30
reissue the instant DV Protection Order first entered herein on XXXXXXXXXXX and
31

32

MOTION FOR STAY AND REISSUANCE OF TEMP. DVPO 14241

PHILLIP
Woodinville-Duvall
L. WEINBERG Road, #385
Attorney
Woodinville, WAat98072-8564
Law
Tel.: (425) 806-7200; Fax: (425) 742-1200
Page 1
 1
reissued on 06/11/2020 by The Honorable Patricia Nelson; and to please reset it for ORAL

2 ARGUMENT ON SPECIAL SETTING, because:

3
1. Special Setting Request: There are many subissues to consider and extensive
4

5 factual disagreements to adjudicate for the court to make more than a arbitrary
6
decision whether to grant the Petitioner’s request for a permanent DVPO inasmuch
7
as Respondent will show that there are numerous irregularities here and that an
8

9 Order should not issue merely based upon the Petitioner’s allegations especially
10
where they are not proved by a preponderance of the evidence. This will not be a
11

12 short hearing if it is fairly conducted so both sides can address the numerous and
13 voluminous materials needed to be scrutinized here by the court
14
2. Stay Request: Respondent is /ay be currently the subject of a Snohomish County
15

16 Superior Court criminal charge/case/investigation/possible investigation based upon

17
allegations made to law enforcement for an alleged XXXXXXXXX/2020 incident
18

19
for which there was a PC filing on XXXXXXXXX/2020; yet it was not charged

20 until 07/13/2020, only 3 weeks ago. Moreover, in that criminal case the discovery
21
provided thus far to defense counsel is not yet complete, with the following items of
22

23 discovery still outstanding or ‘missing’: (a) the recording of the 911 call made on
24
02/02/2020 by the Petitioner Ms. XXXXXXXXXXXX; (b) the Call Service Detail
25
Report (911 CADLOG); (c) all on-scene/involved XXXXXXXX PD Law
26

27 Enforcement Officers’ narrative reports; and, (d) a complete witness list which it is
28
believed to include involved parties from this instant DVPO matter; and (e) other
29

30 additional information and evidence still being uncovered as a result of investigation.

31

32

MOTION FOR STAY AND REISSUANCE OF TEMP. DVPO 14241

PHILLIP
Woodinville-Duvall
L. WEINBERG Road, #385
Attorney
Woodinville, WAat98072-8564
Law
Tel.: (425) 806-7200; Fax: (425) 742-1200
Page 2
 1
3. This new charge has potentially serious felony consequences for the Respondent and

2 is based upon the same factually inaccurate allegations and fact issues. Any
3
premature discussion of those fact issues common with the criminal case in the
4

5 instant DVPO proceeding or otherwise would be prejudicial to Mr.

6
XXXXXXXXXXXXXXery.
7
4. Clearly, Respondent XXXXXXXXXXXXXXery cannot have due process pursuant
8

9 to the 14th Amendment, state or federal in the instant civil DVPO case by utilizing
10
herein his right to present his side of the story directly or through counsel so as to be
11

12 afforded a meaningful opportunity to be heard, and not thereby be simultaneously

13 deprived of his 5th Amendment constitutional rights vis-à-vis the said criminal
14
felony charges pending the final disposition of any such criminal charge(s).
15

16 5. We thus ask the court to apply and carefully balance the factors announced in King
17
v. Olympic Pipeline Co., 104 Wn.App. 338, 16 P.3d 45 (Div. 1 2000), which said:
18

19
“Whether to stay civil proceedings to protect a party's Fifth Amendment rights when

20 parallel criminal proceedings are pending is a matter within the sound discretion of
21
the trial court.” Id., 104 Wn.App. 345.
22

23 6. The court should not impose an unacceptable Hobson’s Choice of Respondent’s

24
Fundamental Constitutional Rights. My client, Respondent
25
XXXXXXXXXXXXXXery, should not be forced to choose between his
26

27 fundamental 5th and 14th Amendment constitutional right, which a plethora of

28
caselaw has held would deprive him of all such rights. The court must balance the
29

30 interests and rights of both parties under Olympic Pipeline. Respondent

31 XXXXXXXXXXXXXX has the right to a meaningful opportunity to be heard
32

MOTION FOR STAY AND REISSUANCE OF TEMP. DVPO 14241

PHILLIP
Woodinville-Duvall
L. WEINBERG Road, #385
Attorney
Woodinville, WAat98072-8564
Law
Tel.: (425) 806-7200; Fax: (425) 742-1200
Page 3
 1
herein based upon his due process rights. He honestly contends and at all times has

2 steadfastly maintained that he is innocent of the acts alleged herein by the Petitioner,
3
which are overwhelmingly and nearly identically the same ‘facts’ alleged in the
4

5 criminal case; however, as stated, he absolutely cannot at this hearing say anything
6
in this own defense to this court in response to the Petitioner’s declaration(s) or
7
address the Petitioner’s alleged bases for a permanent DVPO due to the said pending
8

9 felony only recently filed a mere three weeks ago.

10
7. Additionally, if this hearing is allowed to proceed now, my client would likely suffer
11

12 irreparable harm to his military career, from the mere entry of a fully adjudicated
13 permanent DVPO against him and from its inevitable restrictions upon his firearm
14
rights in order to continue serving in full capacity in the National Guard, which is his
15

16 passion, area of expertise and his livelihood.

17
8. Moreover, Respondent has a child with Petitioner and the entry of a permanent
18

19
DVPO will obviously carry with it a substantial risk of a family law court fixing a

20 parenting plan in a subsequent and anticipated parentage proceeding that restricts his
21
access to his and the Petitioner’s daughter “XXXXXX” with professionally
22

23 supervised visitation, and a concomitant final hardship that will entail or the like.
24
9. Therefore, Respondent cannot have his ‘day in court’ at this time on this matter so that
25
the court can adequately hear both sides of this dispute and enter a fair and informed
26
decision on the merits herein.
27
DATED this XXXXday of XXXXX, 2020.
28
Respectfully submitted,
29

30
_______________________________________
31 Phillip L. Weinberg, WSBA #18622
32

MOTION FOR STAY AND REISSUANCE OF TEMP. DVPO 14241

PHILLIP
Woodinville-Duvall
L. WEINBERG Road, #385
Attorney
Woodinville, WAat98072-8564
Law
Tel.: (425) 806-7200; Fax: (425) 742-1200
Page 4
 Attorney for Respondent
1

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

MOTION FOR STAY AND REISSUANCE OF TEMP. DVPO 14241

PHILLIP
Woodinville-Duvall
L. WEINBERG Road, #385
Attorney
Woodinville, WAat98072-8564
Law
Tel.: (425) 806-7200; Fax: (425) 742-1200
Page 5