State Of Washington, Respondent V. Diane Renee Scholten, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DIANE R. SCHOLTEN,
Appellant.
No. 83622-6-I
DIVISION ONE
UNPUBLISHED OPINION
DÍAZ, J. — 	Diane Scholten challenges the entry of an order that directed
her to surrender her firearm, arguing that compliance with that order would have
required her to violate the terms of a separate no contact order which prohibited
her from entering the home where the firearm was kept. Because the underlying
charges have been dismissed, the no contact order was terminated, and Scholten
was never charged with violating any pre-trial order, this appeal is moot, as
Scholten concedes. We further hold that there is no reason to consider the appeal
despite its mootness. Accordingly, we dismiss the appeal.
I. 	FACTS
On 	November 	13, 	2021, 	Jack 	Scholten, 	Diane 	Scholten’s 	husband,
reported to police that Diane1 had assaulted and threatened him, and that she had
1 For clarity, we refer to the parties by their first names. We intend no disrespect.

No. 83622-6-I/2
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access to a gun. Diane was arrested. On November 15, 2021, the court issued a
temporary domestic violence no contact order, which prohibited Diane from
contacting Jack (or coming within 1,000 feet of their shared home) and required
her immediately to surrender any firearms or dangerous weapons belonging to her.
On November 19, 2021, the State charged Diane with felony harassment
and fourth degree assault. When Diane was arraigned on December 3, 2021, the
court renewed the domestic violence no contact order. This order again required
Diane to surrender any firearms or dangerous weapons and again avoid contact
with Jack.
On December 17, 2021, Diane filed a “Declaration of Non-Surrender,” in
which she declared that she lawfully owned a firearm which was located at the
couple’s shared home. She attested that “it is literally impossible for [her] to access
the aforementioned handgun” because doing so would subject her to criminal
liability for violation of the no contact order. Based on this objection, Diane sought
to appeal the order to surrender her firearm.
After Diane filed her notice of appeal, she entered into an agreement with
the State which amended the charge against her to misdemeanor harassment and
deferred the prosecution for one year. 	If Diane abided by the terms of the
continuance and was not charged with any additional crimes between March 2022
and March 2023, the charge against her would be dismissed with prejudice.
No motion for contempt or criminal charges were filed against Diane for her
failure to comply with the weapons surrender order and, on March 17, 2023, the

No. 83622-6-I/3
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trial court dismissed the harassment charge with prejudice. Further, the trial court
terminated the no contact order.
II. 	ANALYSIS
Diane argues that the entry of both a pretrial no contact order and an order
directing her to surrender any weapons violated her constitutional right to due
process because, under the factual circumstances of this case, compliance with
one order would necessarily mean violating the other. Because this issue is now
moot, we dismiss the appeal.
An issue is moot if we can no longer provide effective relief for the claimed
legal error. State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (citing State
v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). 	As a general rule, this
court will dismiss an appeal that raises only moot issues. State v. Booker, 22 Wn.
App. 2d 80, 83, 509 P.3d 854 (2022) (citing Sorenson v. City of Bellingham, 80
Wn.2d 547, 558, 496 P.2d 512 (1972)). 	However, this court may review a moot
case if it presents an issue of continuing and substantial public interest. 	Hunley,
175 Wn.2d at 907.
Washington courts consider three factors when determining whether a case
presents an issue of continuing and substantial public interest: (1) whether the
issue is of a public or private nature; (2) whether an authoritative determination is
desirable to provide future guidance to public officers; and (3) whether the issue is
likely to recur. State v. Beaver, 184 Wn.2d 321, 330, 358 P.3d 385 (2015) (citing
Hunley, 175 Wn.2d at 907).

No. 83622-6-I/4
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Diane was never charged with violating the no contact order or failing to
comply with the order to surrender weapons. 	Because of this and because the
harassment charge was dismissed with prejudice and the no contact order was
terminated, this court cannot offer any effective relief. 	Diane concedes that the
issue is now moot. 	She nonetheless argues that we should address the merits
because it concerns an issue of continuing and substantial public interest. 	We
disagree.
While the constitutionality of an order to surrender firearms and other
dangerous weapons may be a 	question of 	public 	interest, an authoritative
determination will provide little guidance for public officers or anyone else precisely
because the issue presented is unlikely to recur.
Diane argues that retrieving a firearm for the purpose of surrendering it
would require her — and other defendants — to unlawfully possess that firearm,
even if momentarily, in violation of RCW 9.41.040(2)(a)(iii). 	But in 2021, our
legislature amended the law to include an immunity provision which provides that
An order to surrender and prohibit weapons issued pursuant to RCW
9.41.800 must state that the act of voluntarily surrendering firearms
or weapons, or providing testimony relating to the surrender of
firearms or weapons, pursuant to such an order, may not be used
against 	the 	respondent 	in 	any 	criminal 	prosecution 	under 	this
chapter, chapter 7.105 RCW, or RCW 9A.56.310.
RCW 9.41.801(9)(a); see also L AWS OF 2021, ch. 215, § 75. 	This provision
precludes exactly the criminal liability Diane argues that she faces if she complies
by securing and surrendering her firearms.2
2 Even without the change in the law, the no contact order at issue here provided
Diane with a civil standby procedure that permitted her to return to her home and

No. 83622-6-I/5
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Because of the procedural safeguards available to defendants, resolution
of the issues raised here would not provide future guidance to public officers and
these issues are unlikely to recur. 	Beaver, 184 Wn.2d at 330 (citing Hunley, 175
Wn.2d at 907). Therefore, we conclude that this appeal does not present an issue
of substantial public interest.
III. 	CONCLUSION
The appeal is dismissed.
WE CONCUR:
gather her personal belongings — including firearms — with the assistance of law
enforcement, to whom she could have immediately surrendered her firearm. This
provision defeats the notion that an order to surrender firearms requires that
defendant to violate a no contact order.