This month we discuss police squeeze searches, the defense of public officials, and public disclosure of government email headers, with a bonus conversation about Judge Sonia Sotomayor.
Supreme Court of Washington Podcast (RSS) - Empathy & Etta James.
State v. Garvin, No. 80941-1. His car had seen better days when, on October 21, 2005, Anthony Garvin was pulled over for a shattered windshield and inoperable brake lights. During the stop, Union Gap Police Officer Gregory Cobb noticed that the car's ignition was broken; Garvin had a knife on the passenger seat that he was using in place of a key. Officer Cobb and his partner removed Cobb from the car and performed a "pat-down" search, ostensibly a "Terry stop" according to Terry v. Ohio (a 1968 U.S. Supreme Court case permitting police to conduct a cursory, warantless search of a person who is believed to be "armed and presently dangerous.") During the search, a "dime bag" of methamphetamine was found in the coin pocket of Garvin's jeans. He was arrested and subsequently convicted for drug possession. Garvin appealed, challenging the legality of the search; the Court of Appeals held that the search was a legal Terry stop and affirmed the conviction. Justice Sanders, for a unanimous Court, holds that the search "exceeded the permissible scope of a limited Terry stop-and-frisk" and reverses the conviction. We hold it is unlawful for officers to continue squeezing -- whether in one slow motion or several -- after they have determined a suspect does not have a weapon, to find whether the suspect is carrying drugs or other contraband. If that were permissible, there would be little to distinguish a frisk incident to a Terry stop from a general search for contraband, and we strongly disapprove of such legal fiction. Indeed, one of the narrowly drawn exceptions to the warrant requirement would swallow the rule. (case briefs and argument)
The Supreme Court will hear arguments in four cases today. (Docket and briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Carlisle v. Columbia Irrigation District, No. 82035-0. The Columbia Irrigation District went through the process of adding property to its jurisdiction and imposing taxes on the owners. Some of the landowners opposed this claim. The Supreme Court reviews whether the proper procedures were followed in adding plaintiffs’ land to the Columbia Irrigation District and forming a local improvement district, and whether those procedures violate the Washington Constitution.
In re PRP of Brooks, No. 80704-3. Whether the trial court can deliver a sentence where the total time in prison and in community custody potentially exceeds the statutory maximum. Jeffrey Brooks was convicted of 3 counts of attempted first degree robbery and 1 count of residential burglary. These are all class B felonies, with a maximum sentence of ten years in prison. Brooks was sentenced to 10 years of imprisonment, followed by a period of community custody of 1.5 - 3 years, for each of the four felonies. Brooks claims that this sentence is unlawful because the total time of imprisonment and community custody exceeds the statutory maximum of ten years.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
Ducote v. DSHS, No. 81714-6. Whether a stepparent can bring an action against DSHS for negligent investigation of an allegation. Kent Ducote was accused of sexual abuse by his stepdaughter. Based on the accusation, DSHS investigated and separated Ducote from his family for eight months. The accusations were later dismissed. Ducote sued DSHS for negligent investigation, but his suit was dismissed for lack of standing. The statutes in RCW 26.44 upon which negligent investigation is based note the “paramount importance” of the “bond between a child and his or her parent, custodian, or guardian” in their purpose clause. The trial court ruled that since the statute does not specifically mention stepparents, Ducote lacked standing to bring suit. The Court of Appeals (Div. I) upheld the dismissal. The Washington Association of Sheriffs and Police Chiefs filed an amicus curiae brief in support of DSHS.
In re the custody of Wilson, No. 81945-9. This case involves a custody dispute between the father and grandparents of a child. JoAnn Grieco and Sachi Wilson had two sons. In 1995, Grieco was diagnosed with breast cancer. In 2002, the couple separated and Wilson moved out of the family home. He later moved to California and started a relationship with another woman. In 2003 Grieco’s illness became disabling, and her parents, Vito and Yasuko Grieco, moved in to help care for the children. Grieco died in 2004, and Vito and Yasuko Grieco continued to care for the boys in the family home.
In 2006, the grandparents filed a nonparental custody action under chapter 26.10 RCW. In order for such an action to proceed, the party bringing the action must show “adequate cause” for the case to proceed. This consists of “an affidavit declaring that the child is not in the physical custody of one of its parents or that neither parent is a suitable custodian and setting forth facts supporting the requested order.” The grandparents showed that the boys had been living with them for several years, and the court considered this sufficient to establish adequate cause. The Court of Appeals (Div. I) disagreed, holding that the grandparents should also have made a prima facie case that Wilson was unfit or that the boys would suffer detriment if placed with him. With no such argument, the appeals court held that adequate cause had not been shown.
Tomorrow the Washington Supreme Court will issue a ruling in at least one case.
State v. Garvin, No. 80941-1 (case briefs and argument). Are police officers limited to pat downs, or can they “squeeze” a defendant’s pockets to determine the nature of objects in the pocket? An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”
Garvin argues that the officer is not allowed to manipulate objects within the clothing, and squeeze method exceeds the scope of a valid frisk under the "stop and frisk" rule articulated in Terry v. Ohio, 392 U.S. 1 (1968). He moved to suppress the evidence seized, and the trial court denied the motion. Garvin was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.
Today the Court will be hearing argument in four cases, two in the morning, and two in the afternoon. (Docket, case briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Tanya Gregoire v. Oak Harbor, No. 81253-5. On appeal from Division One Court of Appeals, this action for wrongful death was brought by the estate of an inmate who hung himself in the Oak Harbor jail. The question before the court is whether a city can use the defenses of contributory negligence and assumption of risk to defend against a wrongful death action for a jailhouse suicide.
Edward Gregoire, the deceased, exhibited erratic emotional behavior while he was being transported to jail, tried to run, and ten minutes after being placed in his cell hung himself with a bedsheet. The jury found for the City after being instructed on the defenses of contributory negligence and assumption of risk; but Gregoire argues such defenses cannot be used due to the "special relationship" duties owed to an inmate by jail staff.
Fitzpatrick v. Okanogan County, No. 81257-8. This case is on appeal from Division Three Court of Appeals, and presents the Court with the question of whether a landowner may be compensated (via inverse condemnation) for damage caused to his property by a public project.
The damaged property was a log home built by the Fitzpatricks near the Methow River, which was washed away when the river abruptly changed course due to the construction of a dike upstream. The dike was a joint project of the state and county. The trial court granted summary judgment for the county, relying on the Common Enemy Doctrine (a rule allowing landowners to divert surface water, even to the detriment of neighoring landowners), but was reversed by the Court of Appeals.
In the afternoon session, starting at 1:30 p.m., the court will hear:
State v. Kyllo, No. 81164-4. This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.
In re the Personal Restraint Petition of Beito, No. 77973-2. This case arises out of Division Two Court of Appeals, and concerns whether it is a violation of due process for a trial court judge to set an exceptional sentence based on facts which were not proven beyond a reasonable doubt to a jury.
Beito pleaded guilty to first degree murder of a 14-year-old girl, with a maximum penalty of 374 months in prison. The trial court sentenced him to 504 months after finding aggravating circumstances demonstrating he also committed third degree "rape of a child" in connection with the murder. The finding was based on factual statements that were agreed to by Beito, but he did not agree there was a connection between the rape and murder. That was determined by the judge. He filed a Personal Restraint Petition alleging due process and double jeopardy violations. The Court of Appeals dismissed the petition.
Kris Tefft of the Association of Washington Business has offered his opinion on this morning's ruling, saying it makes Washington a corporate law outlier.
The issue involves the standard by which shareholders may commandeer control of a corporation to sue in its name in what is called a shareholder derivative lawsuit. Such suits are a limited and disfavored exception to the rule that corporate governance is vested in the business judgment of officers and directors. Before taking the reins of a company in a lawsuit, must a shareholder first make demand of the corporation to take action itself, and then only proceed if the corporate leaders refuse the demand? Or could shareholders excuse themselves from the requirement by claimint demand would be "futile"? Far from an esoteric journey through the business law textbook, the question has real consequences for current and potential Washington companies because shareholder derivative suits are very susceptible to a form of lawsuit abuse called the "strike suit."
. . .
Unfortunately, after recognizing the national trend against which it was deciding, and admitting it was adopting a pro-plaintiff standard, the court answered AWB's questions above with a resounding "No"
The court today released three opinions in two cases.
In re F5 Networks, Inc., No. 81817-7 Justice Chambers writes for a unanimous Court, answering two questions certified from the U.S. District Court for the Western District of Washington. Shareholders of F5, a Washington-based technology company, sued alleging improper backdating of stock options. The questions both revolve around the plaintiff's failure to first demand action by the corporate board. Does Washington law require such a demand before commencing litigation (a "universal demand" requirement), or does it allow plaintiff's to proceed in litigation if such a demand would have been futile (the "demand futility standard")? The Court today holds that, "until the legislature says otherwise, Washington follows Delaware's demand futility standard and the reasoning of Ryan [a similar case from Delaware where such a suit was allowed to proceed]." (case briefs, argument, "F5 Networks to restate financials back to 2001", "State Ruling Could Blunt Backdating Litigation Wave")
State v. Elmi, No. 80380-3 Justice Charles Johnson writes for a six-member majority, upholding Ali Elmi's convictions for first degree assault with a firearm. Elmi fired multiple gunshots into a house after he saw his estranged wife look out the window. The shots missed his wife and three young children who, unbeknownst to Elmi, were with her in the room. The question here was whether Elmi had the criminal intent necessary for the assault convictions against the three children. The Court holds that he did.
Where a defendant intends to shoot into and to hit someone occupying a house, a tavern, or a car, she or he certainly bears the risk of multiple convictions when several victims are present, regardless of whether the defendant knows of their presence. And, because the intent is the same, criminal culpability should be the same where a number of persons are present but physically unharmed.
Justice Madsen, joined by Justices Sanders and Fairhurst, dissent, arguing that the legislature's statutory doctrine of transfered intent was not intended to be and is not broader than the common law doctrine. At common law, the doctrine provides that "a defendant who shoots at B but misses and hits C instead" may be punished as he had intended to shoot C. The dissent challenges that "Using the transferred intent doctrine to hold a defendant liable for inchoate crimes like attempted battery criminalizes the unintended and unaccomplished potential consequences of a defendant's actions." (case briefs and argument).
The Washington Supreme Court will hear three cases today. (Docket, case briefs)
In the morning session, starting at 9:00 a.m., the court will hear:
In re the Detention of Moore, No. 81201-2. Paul Moore was committed as a sexually violent predator in Snohomish County Superior Court. During the hearing, the parties stipulated to much of the State's evidence. In the present case, Moore was judged marginally competent, but the doctor evaluating him said that his competence could change over time.
The trial court committed Moore as a sexually violent predator. At issue is (1) whether the trial court denied Moore due process by accepting a stipulation of certain fact without conducting an inquiry to determine if he knowingly waived his right to contest the State’s case, (2) whether trial counsel was constitutionally ineffective, and (3) whether due process requires the State to prove Moore would reoffend within the foreseeable future.
State v. Jones, 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.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
Spokane v. Rothwell, No. 81271-3. The question in this case is whether a district court judge had jurisdiction over municipal court criminal trials. The City of Spokane had a system where, instead of electing separate municipal judges, they “borrowed” judges from Spokane County District Court. These judges were elected as district court judges, and citizens from the entire county voted on their elections. But under Washington law, only city voters may vote for municipal judges.
Henry Smith and Lawrence Rothwell were charged in municipal court with DUI-related offenses. They moved to dismiss for lack of jurisdiction, because Judge Patti Walker was elected in a county-wide election in violation of state law. Judge Walker denied these motions, and was upheld by the superior court.
On appeal, the City argued that it “substantially complied” with the statute because a majority of city voters voted for Judge Walker. The Court of Appeals disagreed, stating that “RCW 3.46.070 is clear and unambiguous. Only city voters shall vote for municipal judges designated as such by the county auditor. We must read the statute literally.” The Court of Appeals overturned the lower court decisions and reversed the convictions. The City now appeals to the Supreme Court.
Tomorrow the Washington Supreme Court will issue rulings in at least two cases.
In re F5 Networks, Inc., No. 81817-7 (case briefs and argument). This case is a request for clarification from the U.S. District Court for the Western District of Washington. The District Court wants to know how to interpret Washington law for a situation where a group of shareholders brought a lawsuit (a derivative action) on behalf of a corporation against its officers for alleged backdating of stock options and insider trading. The shareholders did not first demand that the corporate board take action, so the question is (1) whether they were excused from making that normally required step if such a demand would have been futile, and (2) would futility be shown by board approval of the backdating?
State v. Elmi, No. 80380-3 (case briefs and argument). The question here is whether a defendant can be convicted of first degree assault for intending great bodily harm to one person but assaulting another, where the second person is not touched. Standing outside, Ali Elmi fired three bullets into a living room after his estranged wife, Fadumo Aden, looked out the window. The shots missed Aden and three young children. Elmi was charged and convicted of attempted first degree murder and four counts of first degree assault with a deadly weapon. Elmi argued he was not aware of the presence of the children, but he was convicted under the “transferred intent” doctrine. The Court of Appeals upheld the convictions, vacating only the conviction of assault against Aden.
Continuing our theme of fiscal news, yesterday Governor Gregoire signed the 2010-2011 operations budget, and I took a moment to review whether the state supreme court was among the many who took an expenditure cut.
Sure enough, the Court got less than it asked for, but I was surprised to see that it received $1.2 million more than it spent in 2007-2009. That's an increase of nearly 9 percent despite the loss of three FTEs. (Figures are from the very useful fiscal.wa.gov website)
Full details after the jump...
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The Washington Citizens' Commission on Salaries for Elected Officials, which sets the pay for state officers, voted yesterday to freeze the pay for the state's judges, legislators, and state-wide officers. The pay for a state Supreme Court justice will remain at $164,221 for the next two years.
As Mike mentioned yesterday, the Court is hearing today's arguments at the University of Washington School of Law. Three cases will be heard. (Docket, case briefs)
In the morning session, starting at 9:00 a.m., the court will hear:
Seattle v. Robert St. John, No. 81992-1. This case is on appeal from Division One Court of Appeals, and originated in the Seattle Municipal Court. It concerns the question of whether it is a violation of Washington's Implied Consent law for a police officer to obtain a warrant to test a person's blood alcohol content after the person has refused to be tested.
St. John was injured in a motorcycle crash on the Alaskan Way viaduct, and was taken to Harborview Medical. While there he was arrested by a state patrol officer for driving under the influence, and was asked to consent to a blood alcohol test, without being told that a warrant would be sought if he refused. St. John did refuse, so the officer obtained a warrant to perform the test. The Implied Consent law (RCW 46.20.308(1)) indicates that once consent has been refused, the test may not be performed. But a competing statute (RCW 46.20.308) indicates that lack of consent does not prevent an officer from obtaining a warrant. The Court is being asked to reconcile these two statutes.
Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. This case is a wrongful death claim on appeal from Division One, and presents the Court with the question of whether a child's provision of economically valuable services to her parents can used to prove that the parents were financially dependent on the child.
Eighteen-year-old Kristen Armantrout lived with her blind mother in Washington, and acted as her mother's companion and aide in performing everyday activities. She also contributed her small Social Security check to the family budget, although the majority of the family's money was provided by her father, who was working out-of-state. Kristen died due to a complication following ankle surgery, and her parents sued for wrongful death, claiming they were dependent on Kristen for support. Cascade argued there were insufficient grounds for wrongful death damages, as the parents had not been substantially financially dependent on Kristen. The trial court found for the Armantrout's, but the Court of Appeals reversed, holding that economically valuable services cannot be considered when determining if there was financial dependence.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
In re Larry Botimer, No. 200,625-6. This case was originally schedule for argument on Thursday, May 21, but was moved to today's docket. It concerns a decision by the Washington State Bar to suspend Botimer's license to practice law. The suspension was based upon findings by the Bar that Botimer violated conflict of interest rules, disclosed client confidences and disclosed that a tax return he prepared for a client was discovered later to be fraudulent. (Case briefs)
This week the Supreme Court will hear arguments on May 19 and 21, and will likely issue opinions on May 21. The court is on the road this week; Tuesday's oral arguments will be heard at the Univeristy of Washington School of Law.
Sanders v. State, No. 80393-5. In a 5-4 decision by a panel of pro tem justices (judges drawn from lower appellate courts to act as State Supreme Court justices in this case only), the Court upholds an appeals court decision that the State is not obligated to pay for a judge's defense in an ethics case if the judge "knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act."
In 2003, Justice Richard Sanders visited the Special Commitment Center (SCC) on McNeil Island, a State facility where certain convicted sex offenders were being held. A complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders talked with SCC residents who had cases pending before the Washington State Supreme Court. In 2005, the Commission held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct.
During the Commission's investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general refused, and Justice Sanders filed suit. A superior court judge dismissed the action, was upheld on appeal, and is upheld today. One dissent challenges that the majority fails to enforce the plain meaning of the statute or to create a workable framework for deciding future cases; a second dissent faults the majority for "improperly rel[ying] on the outcome of the underlying case as the basis for its decision." (case briefs and argument)
Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). Can a Limited Liability Corporation sue or be sued after its certificate of formation is canceled? No, says the Supreme Court in an opinion by Justice Madsen, after cancellation an LLC ceases to exist as a legal entity and can neither sue nor be sued. These consolidated cases arose when homeowners associations sued the LLCs that had built their communities but had subsequently been canceled. While the LLCs no longer exist, however, the Court holds that the LLC members may be sued based on the same veil-piercing provisions that would apply while the LLC remained in existance. Justice Charles Johnson, joined by three other justices, dissents. (case briefs and argument)
We'll have a more detailed review up shortly, but the Supreme Court has ruled that the attorney general had no duty to defend Justice Richard Sanders, at public expense, before the Commission on Judicial Conduct. At issue is whether the State, under RCW 43.10.030(3) is required to defend a judge who is alleged to have committed an ethics violation while otherwise within the purview of his or her official duties.
Today the Court will hear argument in three cases. (Docket and case briefs)
During the morning session, starting at 9:00 a.m., the Court will hear:
State v. Jaime, No. 82008-2. James Jaime and Ignacio Ornales got into an argument over a drug deal. Jaime shot Ornales, who later died of his injury. Jaime was convicted of second degree murder and unlawful possession of a firearm. Because of his violent history, threats against witnesses, and previous escape attempts, the trial was held in a courtroom within the jail building. The jury was only told that the use of the jail courtroom was due to scheduling issues. The defense claims that this is the equivalent of making Jaime stand trial in chains or prison clothing, violating his right to a fair trial. The Supreme Court will address (1) whether holding trial in a jail courtroom violates the defendant's right to a fair trial; and (2) whether the judge had the discretion to exclude expert testimony on eyewitness reliability.
State v. Dow, No. 81243-8. Keith Dow was charged with raping a three-year-old girl, but the charge was reduced to first degree child molestation when the girl was deemed incompetent to testify. Without her testimony, the state needed to use statements made by Dow to support its case. A hearing took place to determine whether defendant’s statements could be used pursuant to RCW 10.58.35, which requires a court to consider a number of factors when deciding whether a confession is sufficiently trustworthy. The trial court ruled the state statute violated the 14th Amendment of the U.S. Constitution, and as the state had no other evidence, charges were dismissed. The state appealed to the Court of Appeals (Div. II), where the trial court was reversed. Defendant now appeals to the Supreme Court.
During the afternoon session, the Court will hear:
In re Bradley Marshall, No. 200,577-2. The Washington State Bar Association is seeking disbarment of Bradley Marshall for multiple violations of the Rules of Professional Responsibility. This is not the first disciplinary issue Bradley Marshall has faced, having been reprimanded and suspended for unrelated actions.
The Supreme Court will issue rulings in two cases tomorrow.
Sanders v. State, No. 80393-5 (case briefs and argument). It’s not often that a seated Supreme Court justice has his own case before the court, but tomorrow the court will rule in a case brought by Justice Richard Sanders. The question here is whether the State has a duty to defend a judge in disciplinary proceedings.
On January 27, 2003, Justice Sanders visited the Special Commitment Center (SCC) on McNeil Island. Following that visit, a complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders had had contact with SCC residents who had cases pending before the Washington State Supreme Court. The Commission investigated the complaint and in 2005 held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct. (The state Supreme Court eventually upheld this ruling. In re Disciplinary Proceeding Against Sanders, 159 Wash.2d 517 (2006).)
During the Commission investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general declined. Justice Sanders sued, and a superior court judge dismissed the action. On appeal, the Court of Appeals held that the attorney general acted within its discretion.
This case was heard by an panel of pro tem justices.
Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). The question addressed in these cases is whether limited liability companies can continue to sue and to be sued after they are cancelled in accordance with the Washington Limited Liability Companies Act. (case briefs and argument)
Today the Court will hear argument on four cases on the topics of... (Docket, case briefs)
During the morning session, starting at 9:00 a.m., the Court will hear:
In re the Detention of Bryan Duncan, No. 81230-6. This case is on appeal from Division Three Court of Appeals, and originated in Benton County Superior Court when the state filed a request to civilly commit Duncan as a sexually violent predator. Three questions are on appeal to the Supreme Court.
First, did the trial court err when it allowed evidence to be presented that Duncan had refused a pre-trial mental examination? Second, did it err by allowing into evidence Duncan's plan to live with a convicted sex offender after being released from prison, but not allowing Duncan to explain that the potential roommate hadn't re-offended since getting out of detention? Third, did the court err by refusing to allow Duncan to provide evidence about the effectiveness of the sex offender treatment program at the Special Commitment Center on McNeil Island?
Bianca Faust, et al. v. Mark Albertson, et al. No. 81356-6. Faust appealed this case after the Division One Court of Appeals overturned a jury award of $14 million for the injuries she and her family sustained after being hit by a drunk driver. She had sued the bar the driver had been drinking at before the crash for "negligent overservice" of alcohol to the driver after he was already drunk. The dispute in the case is over the type and level of evidence needed to establish that the establishment's bartenders negligently continued to serve drinks to someone who was visibly intoxicated. Both the WA Association for Justice Foundation (formerly the Trial Lawyers Association) and Mothers Against Drunk Driving filed amicus briefs in the case.
During the afternoon session, starting at 1:30 p.m., the Court will hear:
State v. Eriksen, No. 80653-5.This case originated in Whatcom County District Court, and concerns whether tribal law enforcement officers have authority to pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation. Ms. Eriksen was pursued by a tribal police officer for a suspected DUI while on Lummi Reservation in Whatcom County, but the officer didn't actually stop her until they were outside the boundaries of the reservation. Eriksen was convicted for a DUI, and challenged the legality of the stop by the tribal officer.
State v. Rivera-Santos, No. 81445-7. This case arises from an appeal to a Clark County Superior Court decision. The defendant was observed driving under the influence of alcohol in Clark County, and a police chase ensued that didn't end until Oregon officers stopped him in Portland. Rivera-Santos was convicted of a DUI in Oregon, and the question before the court is whether the defendant's constitutional right against double jeopardy prevents him from being convicted for the same crime in Washington state. The trial court believed it was double jeopardy, and dismissed the case, the superior court disagreed. The defendant appealed directly to the Supreme Court, asking for review as a matter of great public interest.
The Washington Supreme Court will hear arguments on May 12 and 14, and will likely issue rulings on May 14.
The Supreme Court was largely in agreement today, issuing opinions in five cases, with no dissents.
In re the Estate of Kissinger, No. 81328-1. The Supreme Court unanimously held Joshua Hoge “willfully and unlawfully” killed his mother and cannot collect a portion of the wrongful death settlement obtained by his mother’s estate, under the state’s “Slayer Statute.” Justice Tom Chambers wrote the opinion.
In re Recall of Telford and McGreggor, No. 81865-7. The Supreme Court unanimously dismissed a recall petition against two Port of Olympia Commissioners. The petitioner presented a constitutional challenge to the requirement that a recall petition be reviewed by a superior court for factual and legal sufficiency, arguing this is an unconstitutional limit on citizens' right to recall public officials. The Supreme Court rejected this challenge, with Justice Barbara Madsen writing the opinion.
In re Interest of Silva, No. 81573-9. This case involves the judicial authority to incarcerate a child for contempt of court for failing to comply with court orders entered in at-risk youth (ARY) proceedings. The Supreme Court held that a juvenile court in an ARY proceeding must find all statutory contempt sanctions inadequate before it may exercise its inherent contempt power to sanction a youth. In this case, the juvenile court failed to do so, and the Supreme Court vacated the contempt order. Justice Charles Johnson wrote the opinion of the court, with Justices Madsen and Fairhurst concurring in the result.
Tomlinson v. Puget Sound Freight Lines, No. 80811-2. James Tomlinson fell down a flight of stairs and injured his arthritic left knee while working for Puget Sound Freight Lines. After total knee replacement surgery, he filed a claim for permanent partial disability compensation under the Industrial Insurance Act. The Department of Labor & Industries awarded Tomlinson a permanent partial disability payment of 75 percent of the amputation value of his left leg above the knee, less the preexisting 50 percent attributable to his arthritis. Tomlinson challenged the finding of preexisting condition, arguing that he had no functional impairment that required modification of his work activities. The Supreme Court upheld the L&I award in favor of the employer, with Justice Tom Chambers writing the opinion.
Weber v. Associated Surgeons, No. 82163-1. At issue is whether a plaintiff properly served the defendant with his complaint for medical malpractice. The Supreme Court (in an unsigned opinion) held that service upon the registered agent's office manager satisfied service of process requirements. Charles Weber suffered an injury and was treated by Dr. Michael Moore, of Associated Surgeons. Dr. Gregory Luna was Associated Surgeons' registered agent. Associated Surgeons stopped doing business in 2004, but remained a registered corporation as of February 2007. In 2007, Dr. Luna worked for Inland Vascular Institute in Spokane, Washington. Weber sued Associated Surgeons for malpractice, and a process server attempted to serve Associated Surgeons at Inland Vascular, where Dr. Luna then worked. Associated Surgeons moved to dismiss the suit because the Webers failed to properly serve it.
In re the Estate of Kissinger, No. 81328-1. Can Joshua Hoge, who killed his mother and was ruled not guilty by reason of insanity, inherit a portion of the wrongful death settlement obtained by his mother’s estate? The Supreme Court of Washington unanimously said “no,” with Justice Tom Chambers writing the opinion.
The question before the court was whether Hoge was a “slayer” as defined by the state’s “Slayer Statute” (RCW 11.84) and was therefore barred from benefiting from his mother’s death. Washington’s slayer statute prohibits individuals who have participated in the “willful and unlawful” killing of another person from receiving any benefit as a result of their acts. But when a person is held not guilty by reason of insanity, can his act be characterized as willful and unlawful?
Hoge has a long history of mental illness. On June 23, 1999, Hoge entered his mother’s house and stabbed her and his stepbrother to death. Hoge also attempted to kill his mother’s boyfriend with an ax. At the time, Hoge was not taking his antipsychotic medication. Hoge pleaded not guilty by reason of insanity, and stipulated that he had committed the acts. On January 13, 2000, Hoge was acquitted by reason of insanity and the court entered an order committing him to treatment at a state mental hospital.
The estate of Pamela Kissiner, Hoge’s mother, filed a wrongful death lawsuit against the state mental health agency, claiming it was liable for Kissinger’s death for not timely providing the medications necessary to control Hoge’s mental illness. The lawsuit was settled, and the personal representative of the estate then filed a petition, arguing that Hoge was prohibited from sharing in the proceeds of the settlement.
Hoge argued that because he was found “not guilty” by reason of insanity, he was absolved of any wrongdoing. (The insanity defense says a defendant, as a result of a mental disease or defect, was unable to perceive the nature and quality of the act or that he was unable to tell right from wrong with reference to the particular act charged.)
The Supreme Court looked at the meanings of “willful and unlawful.” Justice Chambers wrote: “The insanity statute does not make homicide lawful; it simply declines to punish a defendant who has committed an unlawful act but is found legally insane.” Therefore, the court held “not guilty by reason of insanity does not make an otherwise unlawful act lawful for application of the slayer statute.”
The court has previously interpreted the meaning of “willful” in the context of the slayer statute in the Jones case, holding that “willful” was to be given its ordinary, everyday meaning – whether an act was committed “intentionally and designedly.” Justice Chambers held that Jones applied in this case. The Supreme Court departed from the Court of Appeals, which had sent the case back to trial court to evaluate whether the act was committed willfully. Justice Chambers wrote that the evidence clearly shows that Hoge intentionally and designedly, and therefore remanding the case was unnecessary. (More background on the case in this Seattle Times story.)
Today is the first day of the Court's spring term, and three criminal law cases are scheduled for oral argument. The cases involve questions on double jeopardy, speedy trials, and the death of a defendant. Two will be argued this morning, and one this afternoon. (Docket, case briefs)
During the morning session, starting at 9:00 a.m., the Court will hear:
State v. Hughes, No. 81270-5. This case is on appeal from Division Three Court of Appeals, and originated in Spokane County Superior Court. It concerns whether separate convictions for second degree rape of a child and second degree rape constitute double jeopardy. In the sad facts of this case, defendant Raymond Hughes was found guilty of having had sex with a 12-year-old girl he had been hired to nurse. The girl was dying of cerebral palsy.
Hughes appealed on the grounds that the two convictions violated his constitutional right against double jeopardy, because both were based on one act of sexual intercourse, and both involve the same basic element (a victim's incapacity to consent). The Court of Appeals upheld the trial court's decision, determining the two crimes are different in that one required proof of age, the other one required proof of mental incapacity.
The Court may also review a second issue on appeal, which concerns whether the trial court judge had the authority to impose an exceptional minimum sentence based on aggravating circumstances. Hughes argues that some type of judicial fact-finding of these circumstances is necessary.
State v. Iniguez, No. 81750-2. This case is also on appeal from the Third Division Court of Appeals, originating in Franklin County Superior Court. The issue before the court is whether an eight-month delay in the defendant's trial violated his constitutional right to a speedy trial. Iniguez was convicted of robbery, but only after his trial was delayed multiple times due to conflicts in schedules, a mistrial and the state's decision to combine Iniguez' trial with that of his partner in the robbery. None of these delays were Iniguez' fault, he objected to them, and the Court of Appeals overturned his conviction.
While the defendant asserts that his Sixth Amendment right has been violated, he also asserts a violation of the speedy trial right in Article 1, Section 22 of the Washington Constitution, and uses a Gunwall analysis to argue for a finding that state constitutional protections are even greater than the federal. The State argues that it would be extraordinary and counter to the present trend to find a violation of the speedy trial right after a delay of only eight months.
During the afternoon session, starting at 1:30 p.m., the court will hear:
State v. Webb, No. 81314-1. On appeal from Division One Court of Appeals and King County Superior Court, the question before the justices is how a criminal case on appeal should be reviewed when the defendant dies while the appeal is pending.
Webb was an internet radio talk show host who was convicted of a false insurance claim, which he appealed. While the appeal was pending Webb was brutally murdered in his home. When his body was finally two months later, his attorney asked the Court of Appeals to abate the conviction or at least review the appeal for meritorious issues. The Court disagreed, affirming the conviction and the accompanying fines, court costs and restitution. Webb's counsel appealed.
The Supreme Court will issue opinions in several cases tomorrow.
In re the Estate of Kissinger, No. 81328-1. In this case, Joshua Hoge seeks the estate of the mother he killed. Hoge killed his mother and brother with a butcher knife in 1999, but was found not guilty by reason of insanity (Seattle Times story here). The question before the Supreme Court now is whether Hoge is prevented from inheriting a portion of his mother’s estate under the “Slayer Statute” (RCW 11.84.020), which prevents killers from profiting from the deaths of their victims. After the murder of Pamela Kissinger, Hoge’s mother, her family was awarded $800,000 for Kissinger’s wrongful death when it was determined a public-health clinic was partially responsible for the deaths after it failed to give Hoge required medication.
The law defines a slayer as someone who participates in the willing and unlawful killing of another. The question, therefore, is whether one who was held not guilty by reason of insanity can be said to have acted unlawfully. The trial court held that Joshua Hoge killed his mother willfully and unlawfully, and was therefore prevented from sharing in the proceeds. The Court of Appeals held that while the killings were unlawful, the trial court applied the incorrect standard to determine whether the killings were willful. (Case briefs and argument.)
In re Interest of Silva, No. 81573-9. In 2007, Estevan Silva’s mother filed an At Risk Youth petition, arguing that Estevan had not attended school most of the school year and was using alcohol and illegal drugs, and other allegations. Estevan admitted to the allegations, and agreed to the entry of an ARY disposition order. The juvenile court explained to him that the order required him to not run away from home, to attend school, and to avoid alcohol and drugs. Within two weeks, Estevan’s mother asked the court to find him in contempt. After several contempt hearings, the court imposed a 45 day sentence, with 43 days suspended pending certain conditions were met. Estevan’s attorney argues that the juvenile court imposed criminal sanctions without following the proper procedure for such sanctions. The question is whether the juvenile court properly exercised its inherent contempt authority in the At-Risk-Youth proceeding. (Case briefs and argument.)
Tomlinson v. Puget Sound Freight Lines, No. 80811-2. James Tomlinson is seeking benefits under the Industrial Insurance Act. Tomlinson had arthritis in his knee, and the question is whether this qualifies as a preexisting condition to a workplace injury. Tomlinson fell down a flight of stairs and injured his arthritic left knee while working for Puget Sound Freight Lines. After total knee replacement surgery, he filed a claim for permanent partial disability compensation under the Industrial Insurance Act. The Department of Labor & Industries awarded Tomlinson a permanent partial disability payment of 75 percent of the amputation value of his left leg above the knee, less the preexisting 50 percent attributable to his arthritis. Tomlinson challenged the finding of preexisting condition, arguing that he had no functional impairment that required modification of his work activities. The Pierce County Superior Court ruled in favor of Puget Sound Freight Lines, affirming L&I’s decision allowing the 50 percent credit. The Court of Appeals upheld this ruling. (Case briefs and argument.)
Weber v. Associated Surgeons, No. 82163-1. This case involves the sufficiency of service of process. Charles Weber suffered leg injuries in November 2002, and was treated by Dr. Michael Moore, of Associated Surgeons. Dr. Gregory Luna was Associated Surgeons' registered agent. Associated Surgeons stopped doing business in 2004, but remained a registered corporation as of February 2007. In 2007, Dr. Luna worked for Inland Vascular Institute in Spokane, Washington. Charles and Brenda Weber sued Associated Surgeons in 2006 for malpractice. A process server attempted to serve process on Associated Surgeons by delivering a summons and complaint to a woman at Inland Vascular was not authorized to accept service on Inland Vascular's behalf, and who had never worked for Associated Surgeons. Associated Surgeons moved to dismiss the suit because the Webers failed to properly serve it. The trial court granted the motion. The Court of Appeals affirmed, ruling that the Webers did not serve the summons and complaint on Associated Surgeons as required by law.
The Supreme Court's Spring Term opens on May 7 with oral arguments in three cases. The court may also issue opinions on May 7.
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