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In Powell the Court focused on whether the trial court's admission of evidence of drug use by the defendant, without parallel testimony explaining the effect of the drug, was an error requiring reversal. Writing for a plurality, Justice Mary Fairhurst determined that because the defendant's attorney failed to raise this issue at the trial court and because there was no "manifest constitutional error," the trial court's guilty verdict should be upheld.

Jason Powell was convicted of attempted burglary in the first degree for trying to break into his girlfriend's home while carrying a loaded gun. The prosecution called Powell's roommate to testify that he had seen Powell take methamphetamine right before he went to his girlfriend's house. Testimony about past crimes or bad acts are generally inadmissible to directly prove that a person was likely to commit the crime in question, as they are highly likely to prejudice a jury against the defendant. But they can be used to show things like a person's state of mind or intent. In this case, the State was attempting to show Powell's state of mind at the time he went to his girlfriend's house. The Court found that Powell's attorney objected to the credibility of the witness, but didn't preserve on the record a concern about its prejudicial effect.

The Court of Appeals reversed the conviction, saying the State should have provided expert testimony to explain the likely effects of meth, but the Supreme Court disagreed because the need for such a procedure was not raised at the trial court. As it was an "uncontested issue." Fairhurst wrote that the Court therefore could not review it unless they determined it constituted a manifest error of constitutional magnitude. It did not, as there was no evidence showing the roommate's testimony had practical and identifiable consequences on the outcome of the trial.

Justice Stephens wrote a concurring opinion in which she agreed that the error was harmless, but disagreed that the objection had not been preserved at trial court. Justices Alexander and Chambers signed her concurrence.

Justice Sanders dissented, joined by Justice Charles Johnson. He argued that the objection to the prejudicial nature of the testimony was preserved at the trial court, and that the testimony should not have been allowed because it was prejudicial, misleading, and of no value to the jury.

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State v. Knippling, No. 80848-1.  The issue is whether a juvenile conviction for second degree robbery qualified as a “strike” under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). Writing for a unanimous court, Chief Justice Gerry Alexander concluded that the State has not met its burden of showing that Tucero Knippling is a persistent offender under the POAA.

Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed.

The 1999 judgment and sentence indicated on its face that Knippling was 16 years of age at the time of the conviction. According to the record, Knippling was in superior court because the State had initially charged him with first degree robbery, a crime over which the superior court has automatic jurisdiction. Although plea negotiations resulted in the first degree robbery charge being reduced to second degree robbery, a crime over which the juvenile court had exclusive jurisdiction, there had been no remand to juvenile court.

In order to establish Knippling's third strike, the State had to prove that Knippling was convicted as an offender on two prior and separate occasions. In persistent offender proceedings under the POAA, the State bears the burden of proving by a preponderance of the evidence the existence of prior convictions, whether used for determining an offender score or as predicate strike offenses for purposes of the POAA.

The Supreme Court said the State did not meet its burden of showing that Knippling was convicted as an "offender" in 1999 because there was no evidence in the record that the superior court had jurisdiction over Knippling. “This is critical because, as we noted above, to classify Knippling as an ‘offender,’ the State had to show that Knippling was convicted of an automatic decline charge or that the juvenile court declined jurisdiction. The State has shown neither.”

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The Supreme Court issued orders granting review in several cases on April 28, including a public records case, and a petition for restoration of the right to possess a firearm. Orders here.

• O’Neill v. City of Shoreline, No. 82397-9
• Hudson v. Hapner, No. 82409-6
• Rivard v. State, No. 82431-2
• Kelley v. Centennial Contractors, No. 82474-6

UPDATE: Case details after the jump.

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Today the Supreme Court will hold a memorial service for two former justices who passed away last year: Justice Robert F. Brachtenbach and Justice Keith Callow. The service will be in the Temple of Justice in Olympia, at 9:00 a.m. 

Justice Brachtenbach was a member of the Supreme Court for more than 22 years, serving as Chief Justice in 1981-1983.  Justice Callow was elected to the Washington State Supreme Court in 1984. His career included 21 years as a judge at three levels of Washington courts.

UPDATE: TVW has video of the service.

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The Supreme Court will issue opinions in at least two cases.

State v. Knippling, No. 80848-1. Defendant Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed. (case briefs and argument)

State v. Powell, No. 80535-1. Jason Powell was convicted of first degree burglary while armed with a firearm. He was arrested after a confrontation with the mother of his child. A friend of Powell’s testified at trial that he witnessed Powell using methamphetamine and had acted strangely just before the defendant went to his ex-girlfriend’s house. The Court of Appeals reversed the conviction and ordered a new trial, as the prosecutor failed to offer expert witness as to the possible effects methamphetamine could have had on the defendant. The prosecutor appealed. (case briefs and argument)

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This month we discuss jury misconduct, consumer protection claims, reversals of criminal convictions, and a potential romantic comedy.

Supreme Court of Washington Podcast (RSS) - Chick flicks & court budgets.

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Petitioners in SEIU Healthcare 775NW v. Gregoire, No. 82551-3, sought a writ of mandamus from the Supreme Court ordering Governor Gregoire to resubmit a budget to the legislature that included the union's pay increases, which were the result of an arbitrated award. The governor had declined to request funding for the increases ($100 million) in the December 2008 budget proposal.

SEIU 775NW was granted an expedited hearing on March 10, and  requested an expedited order, with an opinion to follow. The union hoped to win an order in time for the legislature to entertain the funding proposal.

It seems the union has run out of racetrack -- at least for the current session. The Washington Legislature adjurned on April 26. There are, however, two scenarios where the union could still get its award inserted into the 2009-11 budget, assuming the court rules in SEIU's favor. The court could order the governor to advance the contracts to the 2010 legislature when a supplemental budget is adopted. There is also talk of the legislature going into special session, and the court could order consideration of the union's arbitration award during the special session.

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The Supreme Court will consider several petitions for review on April 28, and may issue one or more opinions on April 30. No oral arguments are scheduled.

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The Washington Legislature passed SHB 2362, a bill that increases certain filing fees at district and superior court. We have a list of the fee increases here, and the bill can be viewed here. 

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Talking today to Venkat Balasubramani, who blogs at the very-readable Spam Notes, and he alerted me to the fact that Justice Tom Chambers has a blog. So using everyone's favorite research tool -- Google -- I looked it up. His website (www.tomchambers.com) has a biography, a slideshow, a categorized archive of his opinions, and yes, a blog.

Technically, the blog is more of a semi-monthly e-newsletter. Since July 2008 he's posted four entries, which is not exactly prolific. But the entries are very interesting: he writes about his thought process in specific cases (did the Supreme Court really say it's okay to lie?), his complaints about talk radio (pundits distort careful legal analysis), his political leanings (Libertarian). Did you know he likes to watch Bill O'Reilly on Fox News?

An interesting read, and definitely worth keeping an eye on. One of the complaints I often hear is the difficulty in deciding how to vote in a state that elects its judges -- especially for voters who don't continually monitor the court. Commentaries like Justice Chambers' blog help fill the gap.

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The Supreme Court has posted a list of the petitions for review to be considered on April 28, 2009. We will post a summary of each case granted review.

Two cases I'll be watching with particular interest involve claims based on the state's Public Records Act. O’Neill v. City of Shoreline, No. 82397-9, deals with whether an email's "metadata" (the To, From, Date, & Subject fields) attached to a public official's email are subject to disclosure. Also, West v. Port of Olympia, No. 82461-4, asks whether a port must disclose a lease agreement executed with a private company, or does the state's "deliberative process" exemption apply. (Note: my organization filed an amicus brief in support of West, et al., at the Court of Appeals stage.)

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No new opinions have been released by the Supreme Court. We will keep you updated if any are announced later today.  

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Yesterday the bill raising court fees cleared one chamber of the state legislature. SHB 2362 goes now to the Senate for approval. The bill report lists the current fee schedule for superior and district court filings:

SHB 2362 would impose the following temporary surcharges to be collected in addition to current fees.

• $30 for the filings listed in the superior court chart above, except for the filing of a first or initial paper in an appeal from a court of limited jurisdiction, which is subject to a $20 surcharge;
• $20 for the filings listed in the district court chart above, excluding small claims; and
• $10 for small claims filings.

The request to the Supreme Court to raise attorney licensing fees was stripped from the bill. If passed, the bill would take effect July 1, 2009. The surcharges are set to expire on July 1, 2011.

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The Supreme Court may issue one or more opinions on April 23. No oral arguments are scheduled while the court is in recess until May.

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A bill introduced today in the Washington Legislature would increase court filing fees and attorney licensing fees. HB 2362 would add a surcharge to the fees already collected by county clerks. The fee increase would include: 

• $50 for filing civil actions and other matters with the county clerk
• $93 for filing an unlawful detainer action
• $200 for filing a notice of appeal or notice of discretionary review

In a hearing this morning, Chief Justice Gerry Alexander urged a House committee to reject the fee increases.

The bill also asks the state Supreme Court to authorize increases in attorneys' licensing fees in order to support the operation of the state law library.

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In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, Anthony Bradley was twice arrested for possession of cocaine with the intent to deliver. One charge was reduced to simple possession and Bradley pleaded guilty to both. He later discovered that his offender score on the lesser charge had been miscalculated, suggesting a longer standard sentence for that charge. The question here is whether his pleas were "part of an indivisible 'packaged deal,'" allowing Bradley to withdraw both. The Court holds that the pleas are indivisible and grants the petition with a majority opinion by Justice Stephens, joined by Justices Chambers, Fairhurst, C. Johnson, and Madsen. Justice Owens, joined by Justice Sanders, concurs but suggests the Court should have ordered "additional fact finding on remand...." Chief Justice Alexander, with Justice J. Johnson, dissent. (Case briefs and argument)

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Ashmore v. Estate of Duff, No. 82052-0. Today in an unsigned per curiam opinion, the Supreme Court overturned a Court of Appeals ruling involving a real estate deal. The separate estates of a deceased couple disputed whether the husband's estate could sell real property that the wife might have an interest in. The purchaser of the property brought this action against both estates.

Elmer and Elsie Duff were married for 30 years. Elmer predeceased Elsie by a few months, specifically leaving nothing to Elsie in his will. After Elsie’s death, George Granberg, the personal representative of Elmer’s estate, entered into an agreement with Alan Ashmore to sell Ashmore the Duff home for $100,000. Carol Harting, Elsie’s daughter and personal representative of Elsie’s estate, sought to enjoin the sale, claiming that Elsie had a community property interest in the Duff residence. After a hearing the court granted this motion. Granberg then filed an action to determine Elmer’s and Elsie’s respective ownership rights. The trial court eventually ordered Elmer’s representative to convey the property to Elsie’s representative.

While that action was underway, but before the court’s order to convey the property, Ashmore’s attorney contacted the parties expressing the belief that Elsie had no claim to the property and demanding sale of the property to Ashmore. After the court’s order, Ashmore filed an action seeking specific performance of his purchase and sale agreement. Harting responded that the agreement expired in December 2005 and that Ashmore and Granberg did not extend it. The trial court ruled that Harting was judicially estopped from arguing that the agreement expired because she successfully enjoined the sale in November 2005. The court therefore ordered specific performance.

The Supreme Court noted that the theory of judicial estoppel “prevents a party from asserting one position in a judicial proceeding and later taking an inconsistent position to gain an advantage.”

The core factors are whether the later position is clearly inconsistent with the earlier position, whether judicial acceptance of the second position would create a perception that either the first or second court was misled by the party’s position, and whether the party asserting the inconsistent position would obtain an unfair advantage or imposes an unfair detriment on the opposing party if not estopped.

The Supreme Court ruled that Elsie’s personal representative did not take inconsistent positions, and that the trial court had not been misled. The court reversed the appeals court and remanded for further proceedings.

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The Supreme Court will issue opinions in at least three cases.

Ashmore v. Estate of Duff, No. 82052-0. Whether a real estate sale should proceed. Elmer Duff and his wife Elsie died in 2005 within a few months of each other. Mr. Duff’s personal representative executed a real estate purchase and sale agreement for $100,000 with Alan Ashmore for real property in Walla Walla. Ms. Duff’s personal representative moved to enjoin the sale, believing Ms. Duff had a community or lien interest in the property and that it had been undervalued. She offered to buy the house for $105,000. The court granted her motion to enjoin the sale while the estate's affairs were finalized. 

Over a year later, Mr. Ashmore sent a demand letter demanding to close the sale. Ms. Duff’s representative rejected his demand, stating that the sale agreement with Mr. Ashmore. Mr. Ashmore sued. The trial court ruled Mr. Ashmore was entitled to specific performance of the purchase and sale agreement, and that Ms. Duff’s representative was prevented from claiming expiration of the agreement, as closing was made legally impossible through no fault of Mr. Ashmore. The Court of Appeals agreed.

In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, petitioner Anthony Bradley pled guilty to possessing cocaine with the intent to deliver. In agreeing to the plea deal, Mr. Bradley had been misinformed about the standard penalty range for the possession charge. The question before the court is whether his plea was voluntary and whether it can be withdrawn. (Case briefs and argument)

State v. Mendoza, No. 80477-0 & State v. Henderson, No. 80553-9 (consolidated).  The issue in these consolidated appeals is whether criminal defendants acknowledge their prior criminal convictions as asserted by the state when they fail to object at sentencing.

Frank Mendoza was convicted of second degree robbery and unlawful imprisonment. At trial, Mr. Mendoza’s attorney inadvertently elicited information from a witness about Mr. Mendoza’s prior criminal history. At the sentencing phase of the trial, the prosecuting attorney submitted a statement of the defendant’s criminal history, and the prosecutor referred to the criminal history in his remarks to the court. Defense counsel made no objection to the criminal history and accepted it as presented. Mr. Mendoza appealed his conviction on the basis of ineffective counsel and trial court errors. The Court of Appeals upheld the conviction, but remanded the case for resentencing, requiring the State to prove Mendoza’s criminal history by a preponderance of the evidence. The State of Washington appealed to the Supreme Court. (Case briefs and argument)

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Justice Richard Sanders has proposed new court rules for appointing counsel for indigent defendants. 

The proposed rules provide minimal standards to be satisfied before a judicial officer may appoint an attorney to render services to an indigent person. These standards are contained in the Standards for Indigent Defense Services as endorsed by the Washington State Bar Association.

In a Seattle Times opinion column, Justice Sanders argues that a public defender's high caseload, minimal support staff, low compensation and other factors can result in a violation of a defendant's constitutional right to effective counsel.

Although this is a national problem, here in Washington it is particularly acute since our state constitution in Article I, Section I, plainly states it is the very purpose of our government to "protect and maintain individual rights."

When judges appoint lawyers who can't get the job done, the fundamental purpose of our government is defeated. Unfortunately, our Supreme Court has set no standards to guide the trial court in making these appointments other than he or she be a lawyer.

The comment period for the proposed rules is open until April 30, 2009.

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The Supreme Court may issue one or more opinions on April 16. No oral arguments are scheduled while the court is in recess until May.

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A coalition of Washington school districts say the state is shortchanging them on special education funding, and is asking the Supreme Court to review a Court of Appeals ruling in the state's favor. The coalition claims Washington's special education funding does not satisfy the state's constitutional obligation to “make ample provision for the education of all children.”  Wash. Const. art. IX, § 1.

Todd Sorensen at the Northwest Education Law Blog has details about the appellate ruling.

In order to overturn the special education funding legislation, the Alliance needed to prove “beyond a reasonable doubt” that the legislation is “facially” unconstitutional—meaning absolutely incapable of being applied in a constitutional fashion—or that the legislation is unconstitutional “as applied”—meaning that in practice the legislature failed to adequately fund special education to the extent required by the Washington Constitution. ... The Court of Appeals concluded: “[A]s our Supreme Court has often held, ‘it is not this court’s role to micromanage education in Washington.’” The court then stated that the legislature, not the courts, has “the general authority to select the means of discharging [the] duty to fund education.”

The case is School Districts' Alliance for Adequate Funding of Special Educ. v. State.

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State v. Sutherby, No. 80169-0 (case briefs and arguments). The Supreme Court threw out a child rape conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter ("L.K.") stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Randy Sutherby was arrested and charged with first degree rape of a child and first degree child molestation. A subsequent search of his personal computer found child pornography, and he was charged with “10 counts of possession of depictions of minors engaged in sexually explicit conduct.” He was convicted by a jury on all counts and appealed.

The Court here considers two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?” Justice Stephens, joined by five other justices, reversed the multiple charges of possession, and reversed the rape and molestation convictions and ordered a retrial.

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.” The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition. The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

Justices Fairhurst and Madsen agreed with the majority on the child pornography issue, but dissented on the severance issue. Justice James Johnson dissented on all issues, arguing that Sutherby received a fair trial and was properly convicted. Johnson opened and closed his opinion with, “Poor little L.K.”

UPDATE: The Seattle PI took note of Justice Johnson's emotional dissent here.

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In re Marriage of Bernard, No. 80348-0 (case briefs and argument). How good is your prenup? Just don’t sign it at the last minute. Today by a 6-3 vote, with Justice Stephens writing the majority, the court invalidated a prenuptial agreement after finding it both substantively and procedurally unfair.

Thomas Bernard hired Gloria as an operations manager for his company. Three years later, the two began dating. Thomas proposed to Gloria but said he would require a prenuptial agreement – he was 55 and worth $25 million; she was 49 and had a net worth of $8,000. In January 2000 Thomas and his attorney began working on the prenup, but did not provide Gloria with a copy. Despite several suggestions to Gloria that she obtain independent counsel, she never hired a lawyer. Then 18 days before the wedding, Gloria received a draft of the prenup. A few weeks later Gloria met with an attorney, but the two received a new draft of the agreement that was substantially different than the previous version. The day before the wedding, Gloria’s lawyer identified major concerns with the agreement, and outlined these concerns in a letter. Concerned that Thomas would call off the wedding, Gloria signed the prenup, and the two signed a “side letter” agreeing to renegotiate the areas addressed by Gloria’s lawyer. This amendment was finalized a year after the wedding. In 2005, Gloria filed for divorce, and challenged the enforceability of the prenuptial agreement.

The Supreme Court used the long-standing two part analysis. First, the court determined that the agreement was substantively fair—that is, where the agreement makes fair and reasonable provision for the spouse not seeking enforcement. The court determined that the amended prenup made inadequate provisions for Gloria relative to Thomas’ means. Second, the court reviewed the procedural fairness of the agreement—whether the spouses fully disclosed the value of their property and whether the agreement was entered into voluntarily. The court took note fo several factors: that Gloria never saw a draft until days before the wedding; and changes to the draft agreement at the last minute; and the pressure Gloria felt to sign an agreement in order to avoid the embarrassment of delaying the wedding. The court determined that the “side letter” amendment did not cure the defects of the prenup, and invalidated it.

Justices Sanders, Fairhurst, and J. Johnson dissented, saying that while the prenuptial may have been substantively unfair, Gloria entered the agreement voluntarily and intelligently.

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The afterlife of Yousoufian v. Office of Ron Sims continues. In January the Supreme Court ruled in favor of Armen Yousoufian, who sought to obtain records about taxpayer funding used to build the Seahawks’ Qwest Field. Justice Richard Sanders, writing for the majority, said, “The unchallenged findings of fact demonstrate King County repeatedly deceived and misinformed Yousoufian for years.”

Last week, King County asked the Supreme Court to vacate the ruling, arguing that Justice Sanders has his own public records case, and should not have participated.

Now the ruling comes up in the context of a presidential nomination. Critics are asking why President Obama, who pledged “a new era of openness” in his Administration, would tap King County Executive Ron Sims as deputy of HUD with a case like Yousoufian on his record.

The Associated Press ran a lengthy article, local and national transparency advocates had sharp words, and conservative columnist Michelle Malkin blasted Sims as “disastrous” – all because of his role in Yousoufian.

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The Washington Supreme Court publishes the rules necessary for governance of court procedure. An April 2, 2009 conference ordered several rule amendments published for comment.

Proposed Rules Published for Comment in May 2009

Admission to Practice Rules (APR)

• 15 - Lawyers' Fund for Client Protection

• 15 Procedural Rules - Lawyers' Fund for Client Protection Procedural Rules

Rules for Enforcement of Lawyer Conduct (ELC)

• 15.4 - Trust Account Overdraft Notification

• 15.7 - Trust Accounts And The Legal Foundation Of Washington

(ELPOC)

• 15.4 - Trust Account Overdraft Notification

Rules of Professional Conduct (RPC)

• 1.15A - Safeguarding Property

Rules for Enforcement of Lawyer Conduct (ELC)

• Title15 - ELC Title15

Proposed Rules Published for Comment in January 2010

General Rules (GR)

• 34 - Waiver of Court and Clerk's Fees and Charges in Civil Matters on the Basis of Indigency

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The Supreme Court may issue one or more opinions on April 9. No oral arguments are scheduled while the court is in recess until May.

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Faced with the state’s current budget crisis, lawmakers have raised the possibility of an income tax. The idea has been debated for years, but this discussion is more than a mild flirtation. Senate Majority Leader Lisa Brown and House Speaker Frank Chopp have both signaled a willingness to test the voters’ appetite for a new tax structure.

But is an income tax constitutional? Would the law require a constitutional amendment? These are questions lawmakers are now wrestling with. The state income tax has had a troubled history in Washington, and any new proposals would have to clear the exceedingly-high hurdles of constitutional review and voter approval. The Washington Supreme Court has struck down numerous income tax laws, and voters have rejected eight measures in the last 75 years.

• 1932 – Voters adopt a graduated income tax. Initiative No. 69.
• 1933 – Supreme Court strikes down the income tax as unconstitutional. Culliton v. Chase.
• 1934 – Voters reject constitutional amendment allowing for income tax.
• 1935 – Legislature adopts a 3% net income tax. Personal Net Income Tax Act of 1935.
• 1936 – Supreme Court strikes down Personal Net Income Tax Act. Jensen v. Henneford.
• 1936 – Supreme Court strikes down corporate net income tax. Petroleum Nav. Co. v. Henneford.
• 1936 – Voters reject constitutional amendment SJR 7 allowing for income tax.
• 1938 – Voters reject constitutional amendment SJR 5 allowing for income tax.
• 1942 – Voters reject another income tax measure. 
• 1951 – Legislature adopts a 4% corporate excise tax. Laws of 1951, Extraordinary Session, chapter 10.
• 1951 – Supreme Court rejects the corporate excise tax. Power, Inc. v. Huntley.
• 1970 – Voters reject constitutional amendment HJR 42 allowing for income tax.
• 1973 – Voters reject a HJR 37, providing for corporate and personal income tax, by a 3-to-1 margin.
• 1975 – Voters reject Initiative 314, a 12% corporate income tax proposal.
• 1982 – Voters reject Initiative 435, a corporate income tax proposal.

If the Legislature adopts an income tax, only one thing is certain: the issue will come before the Washington Supreme Court. Public finance attorney Hugh D. Spitzer of Foster Pepper has suggested that the common perception that an income tax is unconstitutional may not be accurate, as the case law guiding the Supreme Court in Culliton has since been overturned. But will that reassure lawmakers who have to sell the idea to the voters of Washington?

(Note: Phil Roberts has written an exhaustive review of the income tax in Washington state: A Penny for the Governor, a Dollar for Uncle Sam, 2002.)

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Apparently fearing their identities would be revealed, four individuals who administered lethal injections to death-row inmates at the Washington State Penitentiary in Walla Walla have resigned.

The resignations were precipitated by an ongoing court battle, where three inmates are challenging the constitutionality of Washington's lethal injection policy.

Convicted murderer Cal Coburn Brown was scheduled to die by lethal injection on March 13, 2009. Responding to an 11th hour appeal, the Washington State Supreme Court stayed Brown’s execution while the constitutionality of lethal injection is resolved in Brown's case and two other related matters.

According to the Seattle Times, Thurston County Superior Court Judge Chris Wickham had set April 2 as the deadline for the execution team to release records detailing the members' experience and qualifications.

The state is now without a team to administer lethal injections, although there are no scheduled executions, and the last one occurred in 2001.

The three death row inmates are challenging the state's lethal injection practices, arguing that the procedure can result in extreme pain for the condemned, and thus violates the state and federal prohibitions. Thurston County Superior Court is scheduled to hear arguments in this matter May 2009.

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The Court today issued opinions in a Consumer Protection Act case and a criminal case.

Panag v. Farmers Ins. Co., of WA & Credit Control Servs., Inc., No. 80357-9 (consolidated with Stephens v. Omni Ins. Co. & Credit Control Servs., Inc., No. 80366-8). Justice Madsen writes for a five-member majority, expanding the reach of the Consumer Protection Act to "unfair or deceptive efforts to collect on an insurance subrogation claim...." Plaintiffs Panag and Stephens had each been involved in a car accident while uninsured. Farmers and Omni, insurers of the other parties in the accidents, hired Credit Control Services (CCS) to collect some or all of the "uninsured motorist benefits" paid to their customers. CCS sent several strident letters to Panag and Stephens, purporting to be debt collection notices. The majority holds that "a CPA claim may be predicated on the deceptive characterization of an unadjudicated insurance subrogation claim as a liquidated debt that must be immediately paid."

Justice Charles Johnson, joined by Justices Alexander, Owens, and James Johnson, dissents, accusing the majority of rewriting the CPA "far beyond its express reach." The dissenters point out that the CPA is about consumer protection. "The CPA was not designed to nor should it be rewritten to regulate relationships arising out of tortious conduct." (Case briefs and arguments.)

State v. Depaz, No. 80574-1. Justice Owens writes for five members of the Court; Justice Madsen, joined by the balance of the Justices, concurrs with the result but not the analysis. Depaz challenged his conviction for first degree rape of a child based on the trial court's removal of juror #3, the lone holdout. The juror had briefly talked with her husband about the case, apparently because their grandson was undergoing surgery and they were concerned about how long the deliberations would last. Juror #3's husband had told her to "stick to her guns," and for this she was excused. While the Court agrees with the trial court that the juror's actions constituted misconduct, the Court finds that the misconduct was not prejudicial and so removing Juror #3 was an abuse of discretion. (Case briefs and arguments.)

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The Supreme Court will issue opinions in at least two cases.

Panag v. Farmers Ins. Co., of WA & Credit Control Servs., Inc., No. 80357-9 (consolidated with Stephens v. Omni Ins. Co. & Credit Control Servs., Inc., No. 80366-8). At issue is a credit collection agency's practice of sending aggressive notices on behalf of insurance companies in an attempt to recover subrogation interests from uninsured drivers. Notices styled as “formal collection notices” demanded immediate payment of an “amount due.” The Court of Appeals (Div. I) concluded the notices were deceptive and held that the practice of sending them violated the Consumer Protection Act. This case has generated significant attention, with a number of amicus curiae briefs filed in support of petitioners and respondents. (Case briefs and arguments.)

State v. Depaz, No. 80574-1. Vasquez Depaz was charged with rape of a 11-year-old child. After trial, the case was submitted to a jury, which deadlocked. One of the jurors who was holding out was overheard making a comment about the case to her husband. Over defense counsel’s objection, the court dismissed this juror on the grounds she had violated the court’s instruction to not discuss the case. The Court of Appeals (Div. I) affirmed, holding the trial court did not abuse its discretion. The question before the Supreme Court is whether the trial court erroneously dismissed a juror who the court knew to be a holdout based on the juror’s improper discussion of the case. (Case briefs and arguments.)

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In January the Supreme Court issued an opinion in Yousoufian v. Office of Ron Sims, in which Justice Richard Sanders chastized King County for its failure to comply with the Public Records Act, and provided guidelines for assessing the severity of penalties when a violation occurs.

Last month the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation.

King County lawyers are now asking the Supreme Court to vacate the Yousoufian ruling. In a motion filed this morning, King County alleges that Justice Sanders “stood to personally gain” from that decision, and asks the court to replace Justice Sanders with a temporary justice to rehear the case.

We hope Yousoufian does not become an unfortunate casualty. The ruling has been hailed by open government experts for providing a much-needed analytical framework for reviewing government responses to citizen records requests. Mr. Yousoufian has been battling King County since the late 1990's, with two Supreme Court rulings to his name already. (Note: We filed an amicus brief in support of Mr. Yousoufian at an earlier stage of the case.)

What would happen if the court grants King County’s motion for a rehearing?

Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.

Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.

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A new episode of our podcast is up. This month we discuss specific cases precipitated by the budget crisis, the separation of powers doctrine, the debate over judicial recusal, and Trent confuses the podcast with a WWF Smackdown.

Supreme Court of Washington Podcast - Trent England versus Ron Sims.

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The Supreme Court issued orders granting review in several cases on March 31. Orders here.

• State v. Adams, No. 82210-7
• South Tacoma Way, LLC v. State, No. 82212-3
• State v. Ibarra-Cizneros, No. 82219-1
• State v. Aguirre, No. 82226-3
• State v. Schultz, No. 82238-7
• State v. Vance, 553640-I
• Anderson v. Asbestos Corp., Ltd., No. 82278-6
• In re Marriage of Freeman, No. 82283-2
• Skinner v. Civil Serv. Comm’n of City of Medina, No. 82306-5
• Broom v. Morgan Stanley DW Inc., No. 82311-1
• Proctor v. Huntington, No. 82326-0
• State v. Nason, No. 82333-2
• State v. Faagata, No. 82336-7

Case details after the jump.

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