Should a clerk's dismissal be pursued if:
a) The respondent does not retain an attorney or fails to file a notice of appearance after being served; and
b) The respondent fails to appear at a hearing on a protection order, and a protection order is entered; and
c) The protection order is active at the time that the dismissal eligibility report is run (i.e., the protection order was the last docket entry and it was over 1 year ago)?
A clerk's dismissal should not be pursued in this scenario.
In a protection order case, the petitioner can receive a default protection order. A petitioner may receive an ex parte order that lasts only until the hearing: RCW 26.50.070. The court may issue a final order for protection only when the petitioner has filed and served the petition and notice of hearing on the respondent and the court has held a hearing: RCW 26.50.060(5). At the hearing, if the respondent does not appear or retain counsel to appear on his or her behalf; but if the file contains proof that the respondent was served, then the court can enter the full order for protection, which is the final order in the case. Usually, the final Order for Protection lasts for 1 year or up to a date far enough in the future to make it "permanent:" RCW 26.50.060(2).
If the active order is a final Order for Protection issued after a hearing, then it is reasonable to include in the documentation that the case should not be included in the clerk's dismissal for want of prosecution.
Caveat. This legal analysis is intended to assist the Administrative Office of the Courts (AOC) in making policy decisions. The legal analysis is not intended to be relied upon by those outside of the AOC. Further, it is not intended as, nor should it be construed as, a legal opinion in the nature of an Attorney General's Opinion. The official legal advisor for individual courts is the county prosecutor or city attorney, not the Administrative Office of the Courts.
RN id: 2300