State Obligation To Enforce Protection Orders Issued By The Courts Of Other States Or Tribal Courts

INDIANS—COURTS, SUPERIOR—State Obligation To Enforce Protection Orders Issued By The Courts Of Other States Or Tribal Courts

Federal law requires that any protection order issued by the court of a state or Indian tribe be accorded full faith and credit and enforced by the court of another state or Indian tribe. Registration of the order in a state court is not a prerequisite to enforcement.

August 28, 2018

Dear Justices Owens and Madsen:

            By letter previously acknowledged, you have requested our opinion on two questions that I paraphrase as follows:

1.         Does Washington have an obligation to enforce protection orders issued by the courts of other states or by Indian tribal courts?

2.         If Washington has such an obligation, is registration of a protection order in a Washington state court a prerequisite to enforcement?

BRIEF ANSWERS

1.         Yes. Federal law, 18 U.S.C. § 2265, requires that any protection order issued by the court of a state or Indian tribe be accorded full faith and credit and enforced by the court of another state or Indian tribe, if the protection order is consistent with 18 U.S.C. § 2265(b). The Washington Foreign Protection Order Full Faith and Credit Act, RCW 26.52, implements this requirement in Washington.

2.         No. Under 18 U.S.C. § 2265(d)(2), a protection order issued by a state or Indian tribe must be accorded full faith and credit regardless of whether it is registered or filed in the court of the enforcing state or Indian tribe. Washington law permits protection orders to be filed without cost, but filing is not a prerequisite to enforcement. RCW 26.52.030.

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FACTUAL BACKGROUND

            Congress enacted the Violence Against Women Act in 1994 (VAWA) to provide “women the support and the assurance that their attackers will be prosecuted.” S. Rep. No. 103‑138, at 38 (1993). Among other things, VAWA requires states and Indian tribes to enforce a protection order issued by another state or Indian tribe as if it were the order of the enforcing state or tribe. Pub. L. No. 103‑322, § 40221(a), 108 Stat. 1796, 1930-31 (1994), codified as amended as 18 U.S.C. § 2265. Under VAWA, women who receive protection from any state or tribal court are entitled to protection from their abusers anywhere within the United States and its territories. See generally Catherine F. Klein, Full Faith and Credit: Interstate Enforcement of Protection Orders Under the Violence Against Women Act of 1994, 29 Family L.Q. 253 (Summer 1995).

            To implement the full faith and credit provision of VAWA, the Washington legislature adopted the Foreign Protection Order Full Faith and Credit Act in 1999. Laws of 1999, ch. 184 (codified in part as RCW 26.52); see generally State v. Esquivel, 132 Wn. App. 316, 321-26, 132 P.3d 751 (2006). Your questions ask about the process for enforcing out-of-state and tribal court protection orders in Washington.

ANALYSIS

A. Federal and State Law Require Washington State Courts and Law Enforcement Personnel to Enforce Protection Orders Issued by the Courts of Other States or by Indian Tribal Courts

  1. Federal Law: The Violence Against Women Act

            The full faith and credit clause of the United States Constitution, article IV, section 1, authorizes Congress to prescribe the manner in which states give effect to the judgments of other states. The Indian commerce clause, article I, section 8, clause 3, authorizes Congress to regulate commerce with Indian tribes. Congress exercised these powers in the context of protection orders by enacting VAWA, Pub. L. No. 103‑322, Title IV, 108 Stat. 1796, 1902 (1994). VAWA establishes that states must grant full faith and credit to protection orders issued in other states or tribal courts, and enforce them as though they were their own orders:

(a) Full faith and credit. Any protection order issued that is consistent with subsection (b) of this section by the court of one State, Indian tribe, or territory (the issuing State, Indian tribe, or territory) shall be accorded full faith and credit by the court of another State, Indian tribe, or territory (the enforcing State, Indian tribe, or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or Territory as if it were the order of the enforcing State or tribe.

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18 U.S.C. § 2265(a). The full faith and credit requirement extends to any protection order during the time in which the order remains valid in the issuing state or tribal court. The only prerequisites are that the order be a “protection order” as defined in 18 U.S.C. § 2266(5), and that the order meet the requirements of 18 U.S.C. § 2265(b).

            To qualify as a “protection order” under 18 U.S.C. § 2266(5)(A), the order must have been issued in response to a petition or other filing by or on behalf of a person seeking protection. It can be “any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to” the person seeking protection. 18 U.S.C. § 2266(5)(A). The order may include support, child custody, or visitation provisions. 18 U.S.C. § 2266(5)(B).

            To qualify for full faith and credit under VAWA, the protection order must also be consistent with 18 U.S.C. § 2265(b). The issuing court must have had both personal and subject matter jurisdiction, and the respondent must have received reasonable notice and an opportunity to be heard sufficient to protect the respondent’s right to due process. 18 U.S.C. § 2265(b); Esquivel, 132 Wn. App. at 322-23, 328 (enforcing Colville tribal court protection order); Tulalip Tribes v. Morris, 12 NICS App. 56, 59-60 (Tulalip Tribal Ct. App. 2014) (enforcing Lummi tribal court protection order); see Wiltse v. Hagreen, 13 NICS App. 61 (Kalispel Tribal Ct. App. 2015) (remanding for tribal court to make findings regarding its territorial jurisdiction to enter protection order).

            Protection orders that comply with the law of the issuing state or tribe are enforceable even if they do not contain all of the warnings that the law of the enforcing state or tribe requires for protection orders. Esquivel, 132 Wn. App. at 323, 327. They are enforceable even if they contain provisions that are not available in the enforcing state or tribe. Klein, 29 Family L.Q. at 256. The enforcing state or tribe applies its own law to determine whether a violation of the protection order has occurred, however. Commonwealth v. Shea, 467 Mass. 788, 792-93, 7 N.E.3d 1028 (2014).

            VAWA authorized a grant program to encourage states, tribes, and local governments to treat domestic violence as a serious violation of criminal law. Pub. L. No. 103‑322, § 40231, 108 Stat. 1796, 1932-34 (1994), codified as amended as 42 U.S.C. §§ 3796hh to 3796hh-4. The United States Attorney General may award grants “[t]o implement proarrest programs” for “enforcement of protection orders across State and tribal lines.” 42 U.S.C. § 3796hh(b)(1). Grant applicants must certify that their laws or official policies encourage or mandate arrest of domestic violence offenders who violate the terms of a valid and outstanding protection order. 42 U.S.C. § 3796hh(c)(1)(A)(ii); see 28 C.F.R. § 90.63(b).

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2. Washington State Law: The Foreign Protection Order Full Faith and Credit Act

            VAWA did not specify the procedures for enforcing protection orders, leaving those details to the states and tribes. In Washington, bills were introduced in the 1998 and 1999 legislative sessions, resulting in the passage of the Foreign Protection Order Full Faith and Credit Act in 1999. Laws of 1999, ch. 184 (codified as amended as RCW 26.52, RCW 10.31.100, RCW 26.50.110). The Act accords full faith and credit to “foreign protection orders,” which it defines as

an injunction or other order related to domestic or family violence, harassment, sexual abuse, or stalking, for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to another person issued by a court of another state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or any United States military tribunal, or a tribal court, in a civil or criminal action.

RCW 26.52.010(3). The legislature intended to remove barriers faced by persons entitled to protection under a foreign protection order by specifying the mechanisms for enforcement and criminal prosecution in Washington. RCW 26.52.005; Esquivel, 132 Wn. App. at 323.

            Washington statutes mirror VAWA and impose the same substantive requirements as 18 U.S.C. § 2265(b), discussed above. A foreign protection order is “valid” in Washington “if the issuing court had jurisdiction over the parties and matter under the law” of the place where the issuing court is located, and if the person under restraint had notice and opportunity to be heard consistent with due process. RCW 26.52.020; Esquivel, 132 Wn. App. at 322-23. These requirements mirror those of VAWA in 18 U.S.C. § 2265(b).

            Law enforcement officers are expected to take action upon a foreign protection order that appears to be “authentic on its face” and is therefore presumptively valid. RCW 26.52.020. An order will satisfy this requirement if the name of the court appears on the order, the order has a signature on the judge’s line, there is a cause number on the order, the order bears a clerk’s stamp or is certified, and the text of the order indicates that the court had the authority to enter the order. Many jurisdictions, including Washington, have developed court order templates that comport with these requirements and explain that the requirements of VAWA have been met. See Washington Pattern Form DV 3.105, http://www.courts.wa.gov/forms/documents/DV3_015_Order%20for%20Protecti…; Tribal Protection Order Resources, Tribal Protection Order Forms, http://tribalprotectionorder.org/forms/ (examples of forms used by some tribal courts in Washington and Oregon); Uniform Interstate Enforcement of Domestic-Violence Protection

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Orders Act § 3 cmt. (2002); Kelly Stoner & Richard A. Orona, Full Faith and Credit, Comity, or Federal Mandate? A Path That Leads to Recognition and Enforcement of Tribal Court Orders, Tribal Protection Orders, and Tribal Child Custody Orders, 34 N.M. L. Rev. 381, 394 (Spring 2004) (recommending that tribes “create their own coversheets since law enforcement officers may tend to enforce orders of protection that look familiar to them”).

            Washington law provides that peace officers “shall arrest” a person when the officer has probable cause to believe that the person has violated a provision in a foreign protection order that prohibits certain conduct, such as contacting another person. RCW 10.31.100(2)(b); RCW 26.52.070(2). Probable cause will depend upon verification that the order exists, that the order has not expired, that the suspect knows about the order, and that the suspect knowingly had contact with a protected person. See Pamela B. Loginsky, Confessions, Search, Seizure, and Arrest: A Guide for Police Officers and Prosecutors 170-73 (May 2015), http://70.89.120.146/wapa/materials/May%202015%20Final%20Search%20and%2…. Presence of the order in the law enforcement computer-based criminal intelligence information system is not the only means of establishing the suspect’s knowledge of the order. RCW 26.52.070(2).

            Violation of a valid foreign protection order is a crime in Washington, even if the protection order does not specifically say that violation is a crime. RCW 26.50.110(1); RCW 26.52.070(1); see Esquivel, 132 Wn. App. at 324-26. Though RCW 26.52.020 states a presumption of validity “where an order appears authentic on its face,” that presumption does not eliminate the state’s duty to prove the validity in a criminal prosecution. 11 Washington Practice Pattern Jury Instructions Criminal 36.51 cmt. (4th ed. 2016). The validity of an order is a question of law for the court. State v. Miller, 156 Wn.2d 23, 30, 123 P.3d 827 (2005).

            Only the issuing court may amend or modify a foreign protection order, with one exception. A Washington superior court may modify a provision that deals with child custody, residential placement of children, or visitation with children under the procedures of RCW 26.52.080 if the court has jurisdiction under RCW 26.27.

            Finally, we note that while this opinion has been pending before us, the highest court of a sister state amended one of its court rules to specifically address the enforcement of tribal court orders in state court. Minn. Gen. R. Prac. 10.01-.02.[1] We call this to your attention for such consideration as may be appropriate.

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B. Federal and State Law Require Full Faith and Credit for Protection Orders Issued by the Courts of Other States or by Indian Tribal Courts Regardless of Whether the Order is Registered in a Washington Court

1. Federal Law: The Violence Against Women Act

            VAWA expressly preempts state laws that require registration of foreign protection orders as a prerequisite to their enforcement:

Any protection order that is otherwise consistent with [18 U.S.C. § 2265] shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State, tribal, or territorial jurisdiction.

18 U.S.C. § 2265(d)(2). This ensures that “a victim with a valid protection order receives continuous protection until the expiration of that order, regardless of which state she has entered,” because “requiring registration could leave victims unprotected and vulnerable from the time they enter a new state until the time they become aware of and satisfy registration requirements.” Klein, 29 Family L.Q. at 257.

            If a victim does choose to register a protection order in a new jurisdiction, VAWA protects the confidentiality of the victim’s whereabouts. The new jurisdiction must not notify a party against whom a protection order has been issued that the order has been registered, unless the victim requests it. 18 U.S.C. § 2265(d)(2).

            VAWA authorized a grant program to assist states, tribes, and local governments in strengthening effective law enforcement to combat violent crimes against women. Pub. L. No. 103‑322, § 40121(a), 108 Stat. 1796, 1910-15 (1994), codified as amended as 42 U.S.C. §§ 3796gg to 3796gg-5. Grant applicants must certify to the United States Attorney General that their laws, policies, and practices do not require victims to bear the costs associated with the registration of a protection order. 42 U.S.C. §§ 3796gg‑5(a)(1), 28 C.F.R. § 90.15; see 81 Fed. Reg. 85877, 85878, 85884, 85888 (Nov. 29, 2016). Grant funds from this program are used to support training of law enforcement officers and prosecutors in Washington.[2]

2. Washington State Law: The Foreign Protection Order Full Faith and Credit Act

            Washington law implements this provision of VAWA by providing that registration or filing “are not prerequisites for enforcement of the foreign protection

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order.” RCW 26.52.030(2). Registration can be beneficial, however, because it supplies law enforcement officers more accurate information, more quickly, about both the existence and status of foreign protection orders and their terms and conditions. Washington offers an optional registration process that allows for the benefits of registration without making it a condition for protection. RCW 26.52.030(1).

            A person entitled to protection who has a valid foreign protection order may file it in a Washington state court without cost. RCW 26.52.030(1), (3). Court clerks are required to assist the person entitled to protection in completing an information form. RCW 26.52.030(5). Washington courts have developed a Foreign Protection Order Information form for clerks to use that is available online at http://www.courts.wa.gov/forms/documents/dv1_050.doc. The clerk must provide the person entitled to protection with a copy bearing proof of filing with the court, at no cost to the person. RCW 26.52.030(6), .060.

            After filing a foreign protection order, the court clerk must forward a copy to the county sheriff. RCW 26.52.040(1). The sheriff must immediately enter the foreign protection order into a computer-based criminal intelligence information system. Entry into the system constitutes notice to all law enforcement agencies of the existence of the foreign protection order. RCW 26.52.040(1).

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

FRONDA WOODS
Assistant Attorney General

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