This week at the Supreme Court, Feb. 8, 2010
This week the Supreme Court will consider new petitions for review on Tuesday, and may issue opinions on Thursday.
Opinion: Legal Malpractice Damages
Shoemake v. Ferrer, No. 81812-6. Attorney Douglas Ferrer badly mishandled Andrea and Keith Shoemake's lawsuit related to Andrea Shoemake's serious injuries from a 1992 automobile accident. As a result of his legal malpractice, the case was dismissed in 1996. Ferrer mislead the Shoemake's about this until 2005. The Shoemake's retained another attorney and eventually recovered a $100,000 insurance settlement and then prevailed in a legal 
malpractice suit against Ferrer. The trial court awarded the Shoemake's ten years of interest on $60,000, which was the amount of the insurance settlement minus the 40% contingency fee that Ferrer would have received.
The Shoemake's appealed and the Court of Appeals found that the interest should have been based on the full $100,000. Today, in an opinion written by Justice Stephens, the Supreme Court unanimously upholds that decision.
We affirm the Court of Appeals and follow the approach favored by the majority of jurisdictions. In this case, calculating damages without deducting a negligent attorney's hypothetical contingency fee is an appropriate measure of damages. The Shoemakes had to expend fees on a second lawyer in order to finish the job the first lawyer neglected to do. The majority approach makes the plaintiffs whole without conferring a windfall.
New opinion: inmate challenge of disciplinary hearing
In re PRP of Grantham, No. 82194-1 (briefs and argument). James Grantham is an inmate at McNeil Island prison. A correctional officer was caught smuggling tobacco and marijuana to him, and Grantham was charged with violating prison rules regarding controlled substances. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. A recording of the phone call, however, was not played at the hearing. Based on the investigative report, a hearing officer found Grantham guilty of both counts. He was sanctioned with 25 days disciplinary segregation and a loss of both 90 days good time credit and 7 days of yard privileges.
Grantham filed a personal restraint petition, arguing that the investigator acknowledged that he and his brother never explicitly discussed marijuana or tobacco. He also argued that the disciplinary hearing notice failed to specify the time and place of his conversation with his brother. The Court of Appeals dismissed Grantham’s petition.
On appeal to the Supreme Court, the issue is the applicable standard of review for prisoners challenging disciplinary decisions. The Supreme Court, with Justice Tom Chambers writing the 7-2 majority, held that inmates challenging prison discipline need not make out a prima facie case of prejudice in order to obtain review (known as the Isadore standard). However, the Court said prisoners facing discipline are not entitled to the same range of constitutional protections afforded defendants facing criminal charges, but are only entitled to minimum due process protections. The Court stated that inmates challenging prison discipline must show that the disciplinary hearing was so arbitrary and capricious as to deny them a fundamentally fair proceeding. The Court held that Grantham has not met this standard, and dismissed his petition. Justice Gerry Alexander dissented. While he agreed with the Court’s explanation of the applicable law and standard of review, he argued that Grantham was denied a fair proceeding.
Tomorrow's opinions, Feb. 4, 2010
The Supreme Court will issue decisions in at least two cases tomorrow.
Shoemake v. Ferrer, No. 81812-6 (briefs and argument). Whether damages in a legal malpractice claim should be reduced because of a contingency fee agreement, and whether attorney fees can be awarded for acts of bad faith that happen prior to the start of litigation. Andrea Shoemake was hit by a drunk driver and retained Douglas Ferrer to file a lawsuit for her, agreeing to give him a 40% contingency fee (i.e. Ferrer would get 40% of any damages). Ferrer filed the complaint, failed to appear for trial, and the case was dismissed. For eight years he told Shoemake that the case was simply backlogged in court. She eventually discovered the truth and sued for malpractice.
The trial court awarded damages to Shoemake for malpractice, but reduced the award by the 40% she would have paid to Ferrer. She also received attorney fees for the malpractice suit costs because Ferrer had acted in bad faith. The Court of Appeals reversed these two decisions, finding that Shoemake was not fully compensated if she had to pay Ferrer’s 40% plus the costs for her new attorney, and finding that attorney fees cannot be awarded for bad faith acts that occur prior to the start of litigation.
In re PRP of Grantham, No. 82194-1 (briefs and argument). Did the Department of Corrections violate James Grantham’s due process rights by refusing to give him access to evidence used against him in a prison disciplinary hearing? Grantham is an inmate at McNeil Island prison, and was charged with violating rules when a correctional officer was caught smuggling tobacco and marijuana to him. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. Grantham was given notice of the disciplinary hearing where he was charged, but the notice didn’t contain the dates and times of his alleged violations. He also requested a copy of the phone record on which the charges were based, which was refused. He appeals for violation of due process due to this lack of evidence. The Court of Appeals denied Grantham’s petition, but the Supreme Court granted discretionary review.
Charlie Wiggins declares candidacy for Supreme Court
We have our first challenger in a state Supreme Court race.
Bainbridge Island attorney Charlie Wiggins has officially thrown his hat into the ring, filing a candidate registration form with the Public Disclosure Commission. He is running against Justice Richard Sanders.
Wiggins’ campaign website can be found here, where Wiggins states he is running against Sanders because of violations of the Code of Judicial Conduct and because "his decisions are not fair and impartial, and he opposes positive reforms to improve the process of electing judges." Should be a colorful campaign.
Chief Justice Barbara Madsen and Justice James Johnson are also up for re-election this year.
As election season approaches, this blog will provide information about candidates for the Supreme Court, including links to the evaluations and endorsements of other organizations.
UPDATE: The race is covered by the Olympian, Seattlepi.com, and the Kitsap Sun.
Note: The Supreme Court of Washington Blog neither endorses nor supports any candidate for judicial office.
This week at the Supreme Court, Feb. 1, 2010
The Supreme Court may issue opinions on Thursday. No arguments are scheduled for this week.
Today's opinions: ineffective counsel,mandatory joinder, and firearm enhancements
Today the Supreme Court released three decisions.
State v. A.N.J., No. 81236-5. In 2004, when Defendant A.N.J. was 12 years old, he pleaded guilty to first degree child molestation. Shortly thereafter, after realizing the consequences of his juvenile sex offense criminal history, he attempted to withdraw his guilty plea. A.N.J. contends his court appointed counsel was ineffective and as a result his plea was not knowing, voluntary and intelligent. According to testimony, the defending attorney spent something between 35 to 90 minutes total with A.N.J. before the plea hearing, did not adequately explain the consequences of the plea, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts. The Supreme Court, with Justice Tom Chambers writing the opinion, agreed that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced. The Court remanded to the trial court with directions to allow A.N.J. to withdraw his plea. Justices Sanders and James Johnson each wrote separate concurring opinions.
State v. Gamble, No. 80131-2. The Supreme Court, with Chief Justice Madsen writing the 8-1 majority opinion, concluded that the mandatory joinder rule does not bar the homicide charges brought against the defendants. In four consolidated appeals, each of the defendants was originally convicted of second degree felony murder with assault as the underlying felony. After their convictions, the Supreme Court held in another case (Andress) that a conviction of second degree felony murder could not be based on assault as the predicate felony. Each of the defendants challenged their convictions, which were vacated. The defendants were then retried on new charges. Each contended that under the mandatory joinder rule the new charges would have to have been joined with the original second degree felony murder charge. The trial courts each ruled that the Andress decision was an extraordinary, unforeseeable event, and the “ends of justice” exception to the mandatory joinder rule applied. The Supreme Court agrees today. Justice Richard Sanders dissented.
State v. Mandanas, No. 80441-9. May a sentencing court impose multiple firearm enhancements when the defendant's underlying crimes constitute the same criminal conduct? Bayani John Mandanas was convicted of felony assault and felony harassment, both while armed with a firearm. The trial court ruled that the offenses were not the same criminal conduct for purposes of sentencing, and that the firearm enhancements were to run consecutively. The Court of Appeals agreed in part, but held that the offenses were the same criminal conduct and that the enhancements were to run consecutively. Mandanas argues that multiple enhancements for the same conduct should not be imposed. Reviewing the sentencing statute (RCW 9.94A.589), the Supreme Court (Justice Alexander writing) says “a sentencing court must impose multiple firearm enhancements where a defendant is convicted of multiple enhancement-eligible offenses that amount to the same criminal conduct under the sentencing statute.”
Today's arguments, Jan. 28, 2010
The Supreme Court will hear arguments in three cases today (docket, briefs):
In the morning session:
Broom v. Morgan Stanley, No. 82311-1. Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.”
State v. Regan, No. 82476-2. Francis Regan was convicted of fourth degree assault. Most of his sentence was suspended and he received 24 months of probation. One of the conditions of probation was that he commit “no criminal violations of the law.” During the probationary period, Regan was accused of another assault. He was brought to court for trial and a probation hearing. A jury acquitted him, but the judge at the probation hearing believed that Regan had committed the assault and revoked Regan’s probation.
Probation violations normally have a lower burden of proof than criminal trials. But Regan argues that the term “no criminal violations of the law” requires criminal conduct, and that criminal conduct must be proven beyond a reasonable doubt. Since he was not found guilty beyond a reasonable doubt, he says his probation should not have been revoked. The Grays Harbor Superior Court reversed the probation ruling, but the Court of Appeals (Div. 1) reversed the superior court. Defendant now appeals to the Supreme Court.
Then in the afternoon session:
McGuire v. Bates, No. 82659-5. Whether a settlement for “all claims” includes attorney fees. Julianne McGuire hired Robert Bates to remodel her kitchen. After it was done, she claimed that he had done the work improperly and sued him. The case went to mandatory arbitration, but before the arbitration the parties settled “all claims” for $2180.
RCW 18.27.040 allows the prevailing party in a suit by a homeowner against a contractor to recover attorney fees. McGuire moved for attorney fees based on this statute. The arbitrator denied the motion because the parties had agreed to settle “all claims.” However, the courts held that attorney fees are a cost, not a claim, and were thus not included in the settlement agreement. Bates appealed, and also argues that McGuire is not a “prevailing party” because the case was settled.
Tomorrow's opinions, Jan. 28, 2010
Tomorrow the Supreme Court will issue opinions in at least three cases.
State v. A.N.J., No. 81236-5. Defendant, a twelve-year-old boy, was convicted of first degree child molestation. He pleaded guilty after telling the court that his attorney had read the plea statement to him, he understood it, and he had no questions about it. He is now attempting to withdraw his plea.
Defendant’s appeals team argues he was deprived of effective assistance of counsel. Prior to the trial, his public defender spent less than two hours with him. The lawyer allowed the boy’s parents to be present at the meetings, potentially interfering with a confidential attorney-client relationship. Finally, the lawyer failed to investigate the case and inadequately advised the boy of the consequences of a plea bargain.
State v. Gamble, No. 80131-2. This case is on appeal from Second Division Court of Appeals, and was consolidated with four other cases with a similar question. Defendant Gamble hosted a party for his high school friends, during which a fight broke out. During the fight Gamble struck one of the other kids, who later died as a result of his injuries. Gamble was convicted of first degree felony murder and second degree murder, both of which were later reversed. The state then filed a charge against Gamble for first degree manslaughter.
The question before the Court is whether allowing the state to file manslaughter charges after the murder convictions had been reversed violates the mandatory joinder rule (which requires that related offenses be tried together) and/or Gamble's double jeopardy rights.
State v. Mandanas, No. 80441-9. Is double jeopardy violated when a sentencing court imposes multiple firearm enhancements when the defendant's underlying crimes constitute the same criminal conduct?
Today's oral arguments - January 26, 2010
Today the Court will hear its normal four arguments, two in the morning and two in the afternoon. (Docket, briefs)
Morning session
Hudson v. Hapner, No. 82409-6. At what point can a party withdraw a request for a civil trial? That's the procedural question before the Court in this case.
Clifford Hapner rear-ended Lea Hudson, and Hudson sued for damages. T
he case went to mandatory arbitration where Hudson was awarded $14,538. After mandatory arbitration a party can request a trial before the superior court, which Hapner did. But the jury awarded Hudson $292,298. Hapner appealed, and the appellate court remanded the case for a new trial.
After discovery for the second trial, but before the trial took place, Hapner filed a notice of withdrawal of his motion for a trial. This would allow him to pay only the arbitration award, plus Hapner's court costs. The trial court struck the withdrawal at Hudson's request, but the Division Two Court of Appeals reversed, disagreeing with Hudson's argument that court rules include a time limit for withdrawal after a trial takes place.
State v. Osman, No. 82671-4. The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.
Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions.
A party in a district court is entitled to a new trial if a “significant or material portion” of the electronic recording is lost. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.
The superior court fully reviewed the district court's decision, concluded that the missing portion was material, and ordered a new trial. The state appealed, and the Division One Court of Appeals reversed the superior court, concluding that the superior court should only have looked at whether the district court overstepped its bounds in making the decision (abuse of discretion), rather than taking a whole new look at the question of materiality.
Afternoon session
State v. Hall, No. 82558-1. This case concerns whether multiple attempts to tamper with a witness can be prosecuted as multiple crimes.
Isiah Hall was charged with burglary, and Desirae Aquiningoc was called as a witness. Before the trial, Hall called Aquiningoc several times from prison and tried to get her to lie at the trial or to go into hiding. Hall was convicted of multiple counts of witness tampering.
Hall argues on appeal that all of his calls were part of a single case of witness tampering, and that convicting him multiple times violates double jeopardy. The Division One Court of Appeals disagreed, holding that each attempt to get Aquiningoc to lie or hide was a separate case of tampering.
State v. Jones, No. 82613-7. In this case, the Court will consider whether the rape shield statute bars testimony about contemporaneous sexual behavior for the purpose of proving consent.
Kashauna Dixon claimed that she was raped by her uncle, Christopher Jones. Jones admitted to having sex with her, but claimed that she consented. According to Jones, they were having a party with several others that included alcohol, sex, and drugs.
Based on Washington's rape shield statute, the trial court barred Jones from testifying about the party. Jones appealed, arguing that the statute only prohibits testimony about “past sexual behavior,” and that he wanted to testify about sexual behavior contemporaneous with the alleged rape. The Division Three Court of Appeals held that past behavior can refer even to the very recent past, and that even if the rape shield statute didn't apply the evidence would have been inadmissible because it would have unduly prejudiced the jury against Dixon.
Jones also appealed on other due process grounds, including the prosecutor's statement to the jury that Jones refused to submit to warrantless DNA testing.
