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Argument recap: State v. Sieyes, No. 82154-2.

A fascinating gun rights case was argued today before the Supreme Court of Washington involving a tangle of state and federal issues. In 2007, Christopher Sieyes, a 17 year old, was charged and convicted with unlawful possession of a firearm. State law (RCW 9.41.040(2)(a)(iii)) prohibits minors from possessing firearms (with certain exceptions). While the case was on appeal to the Court of Appeals (Div. II), the U.S. Supreme Court issued its landmark ruling in District of Columbia v. Heller, striking down D.C.’s handgun prohibition. The Court of Appeals asked the litigants in Sieyes to supply additional briefing to address Heller, and then the court transferred the case to the state Supreme Court.

One of the major unanswered questions in Heller is relevant here—whether the Second Amendment applies to states. Since Heller, several federal circuits have ruled on this issue. The Second and Seventh Circuits have said the Second Amendment does not apply against individual states, while the Ninth Circuit says it does. This circuit split (plus the specific issue involved) all but guarantees that the U.S. Supreme Court will address this issue its next term.

Additionally, there’s the question of the Washington Constitution, which says, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired . . . .” (Art. I, Sec. 24). In the past the state Supreme Court has upheld “reasonable regulation” of this right, generally upholding restrictions that are necessary to uphold public safety, health, and general welfare. The question today is whether, in light of Heller’s endorsement of the individual right to bear arms, the Supreme Court should apply a stricter standard of review to any regulations that impair gun rights. (More after the jump.)

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Today the Court will hear just three opinions, two in the morning and one in the afternoon. Two of the cases involve criminal procedure questions, and one is about whether a juvenile has the constitutional right to keep and bear arms. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9.  These consolidated cases are up on appeal from Division One Court of Appeals, and concern the question of whether current law allows DUI sentences to be increased based on multiple offenses committed within seven years of the present offense, or just those committed in the prior seven years. Both Winebrenner and Quezada had multiple DUI incidents within a seven year period, and their level of sentencing depends on how the law requiring increased sentences for "prior offenses within seven years" is applied.

State v. Christopher Sieyes, No. 82154-2. This case is on appeal from Division Two Court of Appeals, and arose out of Kitsap County Superior Court. Argument will be on the question of whether the Washington law prohibiting minors from possessing guns (with various exceptions) is a violation of the state and federal constitutional rights to keep and bear arms.

Mr. Sieyes was pulled over for speeding, and found to have a gun under the front seat of his car. Being only 17-years-old at the time, Sieyes was charged and convicted of criminal possession of a firearm.

The Wa Association of Criminal Defense Lawyers filed an amicus brief in this case asking the Court to find that the Second Amendment to the U.S. Constitution applies to states via the Fourteenth Amendment.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

State v. Jacob 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.

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The Supreme Court will hear arguments in several cases on June 30, and may issue opinions on July 2. This week marks the close of the court's spring term; oral arugments will resume in the fall.

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Estate of Haselwood v. Bremerton Ice Arena, Inc, No. 80411-7. In 2002, the City entered into a concession agreement with Bremerton Ice Arena (BIA) to build and operate an ice arena on public land. The Haselwoods loaned $3,775,000 to BIA for the project, and BIA gave the Haselwoods a promissory note and a deed of trust. The project failed shortly after it began, and the excavation contractor, "RV" recorded a mechanics lien against BIA and the proposed facility in July 2003. A month later, BIA defaulted on the Haselwood loan and the Haselwoods brought a foreclosure action against BIA and its other creditors. The trial court granted partial summary judgment for RV, finding that the mechanics lien had attached only "to certain improvements to the facility," but not to the land or BIA itself. It eventually found that the Haselwood's deed of trust was superior to the claims of all of the other creditors.

The Court of Appeals affirmed in part, but found that the mechanic's lien related back to RV's first delivery of equipment and was superior to the Haselwoods' deed of trust. It also reversed an award of attorney fees to the Haselwoods. In an opinion by Justice Sanders and signed by four other Justices, the Court today upholds the Court of Appeals. Justices Stephens and Madsen concur, but would not foreclose RV's request for attorney fees. Chief Justice Alexander, joined by Justice Charles Johnson, dissents and would find RV's lien inferior to the Haselwoods' deed of trust. (briefs and argument)

 Torgerson v. One Lincoln Tower, LLC, No. 80623-3. The Court of Appeals is affirmed in a unanimous opinion by Justice Sanders. Three real estate agents, Michael Miller, Vicki Ringer, and Joanne Faye Torgerson, were seller's agents for condominiums in One Lincoln Tower, then under construction. Each also contracted to purchase a unit, and their contracts included a provision limiting their remedies for sellers' breach. After some delays in the project and a change of ownership, the seller did breach and the agents sued, asking the court to strike down the remedy-limiting provision. The trial court entered summary judgment for the seller, which was affirmed by the Court of Appeals and is affirmed here as well, with attorneys fees also awarded to the seller. (briefs and argument)

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The Washington Supreme Court will hear four cases tomorrow.

During the morning session, starting at 9:00 a.m., the court will hear:

Hanson v. Thompson, No. 81311-6. Paul Hanson’s building company bought a number of lots for development, one of which was to be sold to Chad and Heather Thompson. The parties failed to close, however. After the failed sale, Hanson transferred two unrelated lots to himself and his wife, in order to get financing for a loan. The Thompsons sued Hanson under the Uniform Fraudulent Transfer Act (UFTA) for the value of the transferred lots. The King County Superior Court held that while there was no intent to defraud, there was “constructive fraud” under UFTA and Hanson was liable. Hanson lost an appeal, and now seeks a reversal from the Supreme Court.

Holden v. Farmers Insurance Company of Washington, No. 81487-2. Laura Holden had an insurance policy with Farmers Insurance Company. After a fire, she filed a claim for property loss. According to the policy, claims are to receive the “actual cash value” of the property. Farmers paid Holden the cash value of the property, but refused to pay the value of Washington sales tax on the property. (Farmers offered to pay the replacement cost, including tax, if Holden replaced the property.) Holden sued Farmers for the tax amount. The trial court found that the policy was ambiguous, and granted summary judgment for Holder. The Court of Appeals (Div. I) reversed.

During the afternoon session, starting at 1:30 p.m., the court will hear:

Drum v. State, No. 81498-8. Patrick Drum unlawfully entered a house while he was high on spray paint. Drum entered a drug program and signed a Drug Court Contract, under which he agreed that the court would determine his guilt on the burglary charge if he was terminated from the program. As part of this contract, he waived various rights including the right to testify and the right to a jury trial. Drum left the drug program, and the court found him guilty of burglary. Drum appealed, claiming that there was insufficient evidence to convict him and that the contract did not fulfill due process requirements for a guilty plea. The Jefferson County Superior Court found that Drum had stipulated that the evidence was sufficient, and that the contract did not violate due process because it was not a guilty plea. The Court of Appeals (Div. II) affirmed.

In re the Personal Restraint Petition of Cross, No. 79761-7. Dayva Cross was charged with multiple murders, and entered an Alford plea (a plea denying guilt, but agreeing that a jury would probably convict on the evidence). He was sentenced to death. Cross filed a personal restraint petition. Under common law, a nolo contendere plea is not acceptable in a capital case. Cross claims that an Alford plea is similar in that a defendant can accept sentencing without admitting guilt. Thus, he argues that an Alford plea cannot be entered in a capital case.

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The Washington Supreme Court will issue two rulings tomorrow.

Estate of Haselwood v. Bremerton Ice Arena, No. 80411-7 (case briefs and arguments). Whether a materialmen’s lien that did not attach to public land upon which improvements were made had priority over a deed of trust to the property filed after delivery of the materials giving rise to the lien.

Torgerson Family Trust v. One Lincoln Tower, LLC, No. 80623-3 (case briefs and arguments). Whether a clause in a real estate purchase and sale contract limiting the remedy for the seller’s breach to return of the buyer’s deposit money is unconscionable, fails of its essential purpose, or is contrary to public policy.

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Today the Court will be hearing argument in four cases, two in the morning and two in the afternoon. (Docket, case briefs)

During the morning session, starting at 9:00 a.m., the Court will hear:

In re Fredric Sanai, No. 200,578-1. This case concerns whether a hearing examiner abused his discretion in several of the decisions he made related to his disbarment of Mr. Sanai for frivolous legal actions. All three of the decisions were procedural, including whether Mr. Sanai's brother was properly admitted to represent him, the denial of a continuance he requested for health reasons, and the denial of his request to subpoena three federal judges to explain their reasoning behind adverse rulings.

State v. James Kenyon, No. 81374-4. This case is on appeal from Division Two Court of Appeals, and originated in Mason County Superior Court. The question before the Court is whether a defendant's constitutional right to a speedy trial is violated when his trial is long delayed due to court congestion, and no discussion of whether a pro tempore judge is available was recorded.

Soon after getting out of prison Kenyon was seen carrying a gun on several occasions, and was tried and convicted of seven counts of illegal possession of a firearm. But due to congestion in the court's docket he was made to wait beyond the time limits set in rule (CrR 3.3). Kenyon argues that under the precedent set in a 1978 case (State v. Mack) his case should have been dismissed as violating his right to a speedy trial unless the trial court attempted to determine, on the record, if any pro tempore judges were available to hurry the process along.

During the afternoon session, starting at 1:30 p.m., the Court will hear:

Michael Jones v. State, No. 80787-6. This case is on appeal from Division One Court of Appeals, and originated in Snohomish County Superior Court. The Court will hear argument on the issue of whether a pharmacist whose business has been shut down by the state must exhaust all administrative remedies before bringing a tort action against the state, and whether state officials have absolute or qualified immunity against such a tort action.

Michael Jones owned a pharmacy franchise called the Medicine Shoppe, but after failing two consecutive inspections by the Washington Board of Pharmacy his license was suspended, causing his business to fail. He sued the Board of Pharmacy's Executive Director and the two investigators that gave him the failing scores for negligent supervision and intentional interference with a business expectancy. The state moved for summary judgment, arguing that the Executive Director had prosecutorial immunity, all three defendants had qualified immunity, and that their actions were in accord with state law. The trial court denied the motion for summary judgment, but the Court of Appeals reversed on all three grounds.

Sarah Bradburn v. North Central Regional Library District, No. 82200-0. This case originated in the U.S. District Court for Eastern Washington, but that court certified a question to the Washington State Supreme Court. The question is whether a library's Internet filtering policy violates the free speech protections in Article 1, Section 5 of the Washington State Constitution.

The North Central Regional Library District maintains Internet filters on its computers to block web sites and images considered "harmful to children." Several adult library patrons were blocked from accessing sites on topics such as firearms, art, abuse, dating, and health. They asked the library to unfilter the sites, but were refused. The patrons and a nonprofit whose site was among those blocked sued the library for violating federal and state free speech protections. Since past cases have found that Washington's free speech protections are stronger than their federal counterparts, the U.S. District Court asked the state supreme court to rule before it procedes with the federal claims.

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The Supreme Court of Washington will hear arguments on June 23 and 25. The court may issue opinions on June 25.

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Cambridge Townhomes v. Pacific Star Roofing, No. 81003-6. Polygon Northwest Company, the general contractor for a condominium development, settled allegations of construction defects with the homeowners association and then sued various subcontractors for breach of contract and indemnification. One of these subcontractors, P.J. Interprise, had been owned by Gerald Utley and disolved in chapter 7 bankruptcy. Polygon had listed only P.J. Interprise and not Utley in its original complaint and the trial court refused to allow Polygon to amend the complaint and pursue a claim against Utley. In a unanimous opinion written by Justice Stephens, the Court upholds a decision of the Court of Appeals that had reversed the trial court's summary judgment in favor of defendants. (Briefs and argument)

Campbell v. Ticor Title Insurance Co., No. 80999-2. A parcel of land was subdivided into three, with a pedestrian easement across lot B. The easement allows owners of lot C to access a dock on Deer Lake. Lot C was sold and the new owner subsequently discovered that a home on lot B blocked the easement. The owner filed various suits, including one to force a new easement on lot A. The Campbells, owners of lot A, claim that their title insurance company, Ticor Title, has a duty to defend them in the suit. Here the Court, in another unanimous opinion by Justice Stephens, upholds the trial and appeals courts, holding that "[Ticor's] policy plainly excludes easements not disclosed by th epublic record or arising after the date the policy issues. Accordingly, there is no conceivable coverage of the Campbells's claims and Ticor owes no duty to defend." (Briefs and argument)

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Homestreet, Inc. v. Dep’t of Revenue, No. 80544-0 (briefs and argument). HomeStreet, Inc., is a residential mortgage lender that services loans it sells or securitizes to secondary lenders. It received tax deductions for the interest retained from these loans under RCW 82.04.4292 until the Department of Revenue (DOR) issued an order requiring HomeStreet to pay business and occupation (B&O) taxes. HomeStreet paid the taxes but then sued DOR for a refund. The trial court ruled for DOR, which was affirmed by the Court of Appeals. The Supreme Court reversed the Court of Appeals and ordered DOR to refund the taxes to HomeStreet. Justice Richard Sanders wrote the majority with five other justices joining. Justices Madsen and Chambers dissent (Justice Fairhurst did not participate).

State v. Koslowski, No. 80427-3 (briefs and argument). Duane Koslowski was convicted of first degree robbery, first degree burglary, and first degree unlawful possession of a firearm as a result of the robbery at Ms. Violet Alvarez’s home. Ms. Alvarez died before trial from causes unrelated to this case, but at trial the prosecution introduced statements Ms. Alvarez made to police officers investigating the break-in. Mr. Koslowski argues that his right of confrontation under the Sixth Amendment is violated by the admission of Ms. Alvarez’s statements. The U.S. Supreme Court has said this “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36 (2004).

Statements to police are “testimonial” when there is no ongoing emergency, and the primary purpose of the interrogation is to establish past events related to a later criminal prosecution. “Nontestimonial” statements are made in the course of a police interrogation to enable the police to address an ongoing emergency—for example, attempting to apprehend a suspect in the immediate vicinity.

In this case, the Washington State Supreme Court reasoned that although the police responded to Alvarez’s 911 call immediately, and although she was clearly frightened, the immediate danger had passed. The crime had been completed, and the burglars had left the area. Accordingly, the court decided Alvarez’s statements were testimonial in nature.

Writing for the majority, Justice Barbara Madsen said: “The confrontation clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Because Mr. Koslowski had no prior opportunity for cross-examination, the admission of Ms. Alvarez’s statements was constitutional error. This error was not harmless because without admission of these statements, there is not overwhelming, untainted evidence that Koslowski was armed at the time he committed the offenses involving Ms. Alvarez.” Justice Richard Sanders filed an opinion concurring in the result, while Chief Justice Alexander dissented, along with both Justice Johnsons.

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The Washington Supreme Court will issue rulings in four cases tomorrow.

Cambridge Townhomes v. Pacific Star Roofing, No. 81003-6. Whether summary judgment was appropriate where a breach of contract and indemnification was claimed as a result of construction defects. (Briefs and argument.)

Campbell v. Ticor Title Insurance Co., No. 80999-2. Does the title company have a duty to defend an insured-landowner in a suit against the landowner to reform the landowner's deed? (Briefs and argument.)

Homestreet, Inc. v. Dep’t of Revenue, No. 80544-0. Can a taxpayer receive tax deductions for revenue received from interest payments? (Briefs and argument.)

State v. Koslowski, No. 80427-3. Whether the trial court in a prosecution for robbery and burglary violated the defendant’s right of confrontation by admitting into evidence statements by the unavailable victim in response to police questioning after the crimes were completed. The victim died prior to trial of causes unrelated to this case. (Briefs and argument.)

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The Washington Supreme Court has withdrawn its landmark public records ruling in Yousoufian v. Office of Ron Sims, after King County's motion that Justice Richard Sanders, who wrote the majority opinion, stood to benefit from the ruling.  (Court order here and Seattle Times story here.)

The court says it will schedule arguments “in due course.”

The Yousoufian ruling provided guidelines for assessing the severity of penalties when a public agency violates the state's Public Records Act. 

After the ruling issued, 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 asked the Supreme Court to vacate the Yousoufian ruling and provide for new argument.

In April we wrote about the outcome of a possible rehearing: 

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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No cases are scheduled for argument this week. The Supreme Court may issue one or more rulings on Thursday.

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As Trent notes below, the Supreme Court issued an order in Morgan v. City of Federal Way, with an opinion to follow. For the time being, we know the outcome, but not how the court reached it.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record—rather than belonging to the court—Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint, so the report should be covered by attorney-client privilege or the attorney work product privilege.

So how will the opinion read? My best guess is that the Supreme Court determined that the Stephson report was in the city’s possession, and was therefore a public record. Making this determination would allow the court to skirt the issue of whether court records should be disclosed. Having determined the report to be a public record, it wouldn’t difficult for the Supreme Court to dismiss the attorney-client claim. Judge Morgan did not hire Amy Stephson and did not want her to investigate. The report was ordered by the city, and the city retained it when the investigation concluded.

So, it’s likely we’ll see a ruling favoring the release of reports about official misconduct, but I doubt this will be a sweeping determination that internal court records are subject to the Public Records Act. (Note: The court record question is not dead. This is squarely at issue in Koenig.)

Congratulations to attorneys James Beck and Ramsey Ramerman on this win.

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The State Supreme Court today unanimously rejected Judge Michael Morgan's stay preventing the release of records from an investigation into his own alleged misconduct. A Federal Way Municipal Court employee complained that Judge Morgan was creating a hostile work environment, prompting the city to hire attorney Amy Stephson to investigate and produce a report. Judge Morgan sued the city to prevent the release of the report; The News Tribune intervened in the suit.

Today's order (PDF)

Argument coverage

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Argument recap: Federal Way School District 210, et. al, v. State of Washington, et. al., No. 80943-7.

The question in this case, argued before the state Supreme Court yesterday, is whether the Legislature is constitutionally compelled to equalize state allocations to school districts for school employee salaries. In 2006, the Federal Way School District, along with district employees and students, sued the state, arguing that funding disparities violate the duty of a “general and uniform” school system.

Education funding is a complex formula of federal, state, and local funds that are distributed to individual school districts. King County Superior Court Judge Michael Heavey ruled that the state’s funding model violates the “general and uniform” duty, and violated the state’s equal protection clause by paying similarly-situated school employees differently. Judge Heavey pointed out the disparities of state allocations among districts for the 2007-08 school year:

• Classified staff: $30,111 to $35,227
• Administrative staff: $54,405 to $80,807
• Teaching staff: $32,746 to $34,612

Federal Way is at the bottom classification in all three salary allocation ranges.

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In Re Stephen Eugster, No. 200,568-3. Attorney Stephen Eugster got caught up in a dispute between his elderly client and her son. The Washington State Bar Association filed a complaint against Eugster alleging multiple ethical violations, including failure to abide by his client's objectives, disclosure of confidential information, and wrongfully filing a petition for guardianship. A hearing officer determined that "Eugster acted knowingly and intentionally" and that his actions caused financial and other harm. The findings were unanimously approved by the Disciplinary Board, which recommended disbarment. In an opinion by Justice Chambers and joined by four other justices, the Court declines to disbar Eugster and instead suspends him for 18 months. Justice Fairhurst, with three other justices, filed a strong dissent arguing for disbarment. (Briefs, argument).

State v. Riofta, No. 79407-3. Ten people were gunned down, five of them killed, in Tacoma's "Trang Dai massacre" on July 5, 1998. One of the suspects, Veasna Sok, had agreed to testify against the other defendants. On January 27, 2000, Veasna's brother Ratthana was confronted near his home by a man he recognized as "Alex," someone he had known in the neighborhood for several years and who was associated with some of the Trang Dai defendants. Alex pulled out a revolver and fired multiple shots at close range at Ratthana, who escaped uninjured. Ratthana identified Alex Riofta from a photograph at the police station, and Riofta was convicted of first degree assault with a firearm. Riofta subsequently sought DNA testing of a white hat found at the crime scene.

Here, the Court upholds the decisions below and declines to order a DNA hat test per RCW 10.73.170. The majority holds that Riofta failed to show that the results of a DNA test on the hat (which had been stolen the day before Ratthana was shot at) "would demonstrated innocence on a more probable than not basis." Justice Madsen penned the opinion and was joined by five other justices. Justice Charles Johnson authored a dissent joined by Justices Sanders and Chambers, and Justice Chambers wrote a separate dissent calling on the legislature to provide greater clarity. (2003 appeal, 2006 appeal, briefs, argument)

State v. Thomas, No. 80643-8. Covell Paul Thomas robbed and murdered Richard Geist, gunning the small business owner down at close range in order to steal about $5000 in cash. Thomas was originally sentenced to die; that sentence was overturned due to an improper jury instruction on the aggravating factors. On remand, the state sought only life imprisonment. A jury found that Thomas had committed four aggravating factors and the trial judge sentenced Thomas to life without the possibility of parole. Thomas again challenges the jury instructions and also brings due process, Double Jeopardy, Batson v. Kentucky, and other claims. The Court rejects them all, with Justice Madsen writing for a majority of seven. Justice Sanders, joined by Justice Stephens, dissents. (Earlier opinion, briefs, argument)

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Today the Supreme Court of Washington will hear four cases: two in the morning session and two in the afternoon. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3. Whether the City of Bellevue properly calculated retiree’s pension benefits. David and Ken McAllister were firefighters in Bellevue, and contributed to a city pension plan. Under this plan, pension benefits were based on firefighters’ salaries, but when calculating benefits, the salaries were considered to be capped at the battalion chief level. David and Ken were Chief and Deputy Chief when they retired, so the pension cap would have applied to them. In 1969, Washington State replaced local pension plans with a single state plan for all firefighters and police. Under this plan salaries are not capped. The state plan provided that if a firefighter would have received higher benefits under a local plan, the local government was responsible to make up the difference.

In accordance with this provision, the City of Bellevue made additional payments to the McAllisters. But in calculating the McAllister’s benefits under the city plan, the city did not cap their salaries as the city plan required. When this was discovered, the city reduced its payments to match what the McAllisters should been receiving, but did not require back payments. The McAllisters sued, and lost at trial and on appeal.

Federal Way School District 210 v. State, No. 80943-7. Whether the Legislature is constitutionally compelled to equalize state allocations to school districts for school employee salaries. The Washington Constitution states that “The legislature shall provide for a general and uniform system of public schools.” Art. IX, § 2. Historically, the state pays different amounts per teacher to different school districts, based in part on the salary levels of those districts when the system was initiated. The Federal Way School District, individual teachers, and students sued the state, claiming that this unequal funding violates the constitution because it is not “general and uniform.” The King County Superior Court agreed, finding that the differences in funding had no relation to differences in education costs. The state counters that its constitutional duty is to create a common education system, not to guarantee precisely equal funding to every district. This case is on direct appeal from superior court.

In the afternoon session, starting at 1:00 p.m., the Court will hear:

In re Fiona A. Crinks Kennedy, No. 200,682-5. The Washington State Bar Association requests an interim suspension of attorney Fiona A. Crinks Kennedy pending cooperation with the Bar’s disciplinary investigation.

State v. Eaton, No. 81348-5. Thomas Eaton was arrested for DUI and taken to the Clark County jail. When he was searched at the jail, the officers found a bag of meth taped to his sock. At trial, Eaton was convicted of DUI and drug possession. The trial court gave him an enhanced sentence based on possession of drugs within a correctional facility. Eaton disputed this enhancement because he had not chosen to take the drugs to jail, but the trial court held that the statute does not require that the possession within prison be voluntary.

The Court of Appeals disagreed, holding that an “element of volition” is required for crimes, and that punishing Eaton for involuntary possession within a prison would be absurd. The state counters that the statute should be read literally, and that volition is not necessary for a sentence enhancement. The state now appeals, and the Supreme Court will determine whether a defendant’s sentence can be enhanced for an involuntary act under RCW 9.94A.533(5)(c).

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The Supreme Court of Washington will issue at least three decisions tomorrow.

In Re Stephen Eugster, No. 200,568-3 (argument). The court will determine whether it should reject the Washington State Bar Association Disciplinary Board's recommendation that attorney Stephen Eugster should be disbarred.

State v. Riofta, No. 79407-3 (argument). The issue here is whether a convicted felon can request post-conviction DNA testing of evidence presented at trial when this evidence was available for testing, but not requested at the time of trial.

State v. Thomas, No. 80643-8 (argument). Mr. Thomas was convicted of first degree murder. The question here is whether, in an aggravated first degree murder trial, the trial court’s failure to instruct the jury that it had to find that the aggravating factors applied personally to the defendant was harmless error.

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Argument recap of Morgan v. Federal Way & Tacoma News, Inc., No. 81556-9 & Koenig v. Federal Way, No. 82288-3.

Two cases argued today before the Supreme Court of Washington present a significant question about public access to court records and could result in a major expansion of the state’s Public Records Act (chap. 42.56 RCW).

The Morgan case involves a complaint filed by an employee of the Federal Way Municipal Court alleging a hostile workplace environment. The City of Federal Way hired attorney Amy Stephson to investigate the allegation. Judge Michael Morgan was the focus of the investigation. The News Tribune filed a public record request for Stephson’s report of investigation. Federal Way determined that the report should be released, and Judge Morgan filed suit against the city, seeking to bar disclosure of the report. The News Tribune also intervened. In March 2008, a trial court determined that the document was subject to the Public Records Act, and could be released to The News Tribune.

In a separate case, David Koenig filed a request for records, including records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl, and correspondence of Judge Morgan. The city determined that several court records were not disclosable, asserting that the municipal court is not subject to the Public Records Act. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels, 107 Wn.2d 300 (1986).

The Public Records Act question in both Morgan and Koenig is whether courts fall under the Act’s broad mandate for disclosure of public records. Generally, a “public record” is a writing related to the conduct of government, which is prepared, owned, used, or retained by any state or local agency. In Nast, the Supreme Court held that courts are not “agencies” under the Public Records Act, and that court case files are not subject to disclosure under the PRA.

Judge Morgan argues that the Stephson report is a court record concerning a municipal court judge and is thereby not subject to the PRA. In the other case, Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.

The Office of the Attorney General filed amicus curiae briefs in both cases. In Morgan, the Attorney General argued that the Stephson report falls under the PRA, and disputed Morgan’s claim that the report would be exempt from disclosure under attorney-client privilege or work product. In Koenig, the Attorney General took a more moderate approach, cautioning against a blanket rule on whether courts are “public agencies” under the PRA, and suggesting that the court should offer guidance for when administrative records might be available.

Another wild card in these cases: Justices Sanders and Madsen were both recused, with Judge Joel Penoyar and Judge Kevin Korsmo sitting in as Justices Pro Tem. Justice Sanders has been a consistent vote for open government, and Justice Madsen frequently rules for disclosure, though usually approaching public records cases contextually. I won’t venture a guess on the impact of the two pro tem justices.

The Supreme Court’s ruling in these cases will likely be the final word for some time, considering the fact that the Washington Legislature has not offered any significant clarification on issue in the twenty-two years since the Nast decision.

Video of the arguments after the jump.

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Today the Court will hear four cases, two in the morning session and two in the afternoon. Public records are the big topic of the day, with two cases on the docket about the applicability of the Public Records Act to court records. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Bobenhouse, No. 81413-9. This case is on appeal from Division Three Court of Appeals, and originated in Asotin County. It concerns whether a person can be charged as an accomplice to a crime when the principle actors in the crime are children, and thus legally incapable of committing a crime. Bobenhouse also objects to the jury's failure to specify which act in a sequence of acts was the basis for the charges against him.

Bobenhouse was convicted of three counts of first degree child rape and two counts of first degree incest for raping his son and forcing his son and daughter to commit sexual acts with each other while they were between the ages of 4 and 8. He is appealing his convictions on the grounds that the children were not capable of either criminal rape or incest, being close in age and under 8 years old, and so he cannot be liable as an accomplice. The Court of Appeals upheld his convictions, stating that his culpability is based on "forcing innocent people...to engage in conduct that would constitute a crime if [he] engaged in the same conduct."

In re S. Richard Hicks, No. 200,606-0. This case is an appeal of a recommendation by the Washington State Bar Association to discipline Attorney Richard Hicks with a two-year suspension for misconduct. The misconduct included making an "inaccurate and incomplete" statement to the Bar about his commingling of client funds. The questions before the Court are whether Hicks was ethically obligated to reveal his handling of the funds, and whether the two-year suspension levied by the Bar was excessive.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Morgan v. Federal Way, et al., No. 81556-9. This case arose when Judge Michael Morgan (Federal Way Municipal Court) filed a petition with the King County Superior Court to prevent the City of Federal Way from releasing an internal investigation report to The News Tribune. The issue before the court is whether such a report is exempt from the Public Records Act because it is attorney work product or protected by an attorney-client relationship.

The report was prepared by an attorney, Amy Stephson, hired by the city to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report under the Public Records Act, and Judge Morgan filed a petition to prevent its disclosure. He argued that it was protected by the work product and attorney-client privilege exemptions to the Act, and by a general "separation of powers" that prevents the Act from being applied to judicial documents. The Superior Court disagreed, finding that the Act was applicable because the report was commissioned by and in the possession of the City (a non-judicial entity), and that the report did not fall under any of the claimed exemptions.

Federal Way v. David Koenig, No. 82288-3. This case is a direct appeal from a King County Superior Court order finding that the Public Records Act does not apply to the Federal Way Municipal Court. The issue before the court is whether some or all court records are subject to the Public Records Act. 

David Koenig filed a number of public records requests with the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hart. The city attorney asked for a ruling that the Municipal Court is not subject to the Public Records Act. The Superior Court granted the motion, relying on Nast v. Michels. (107 Wn.2d 300) But the trial court judge acknowledged that the issue of the PRA"s applicability to court records is generally in doubt, and encouraged Koenig to appeal directly to the supreme court.

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The Washington Supreme Court will hear oral arguments on June 9 and June 11. The court may issue rulings on June 11.

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Ames v. Dep't of Health, No. 80644-6. Dr. Geoffry Ames operated a "purported holistic medical practice in Richland, Washington," where he told a patient he could diagnose and treat allergies using a galvanic skin response machine called "LISTEN" (Life Information System Ten). The machine has not been approved by the FDA for those purposes. Additionally, Ames claimed that "he was able to replicate what the machine could do telepathically...." After the patient filed a complaint with the Department of Health, Ames was determined to have committed acts of professional misconduct under Washington law and sanctioned. Ames challenged that insufficient expert witness testimony was presented at the administrative hearing. Here Justice Owens writes for a unanimous court upholding the decisions below, finding that the "evidence presented demonstrated by clear and convincing evidence to a layperson that [Ames] was using a machine for purposes for which it was not designed and for which he was not specifically trained." (Briefs and oral argument)

Lundsford v. Saberhagen Holdings, Inc., No. 80728-1. Ronald and Esther Lunsford brought an action for negligence and strict product liability against Saberhagen Holdings. Saberhagen is the successor in interest to The Brower Company, which provided asbestos insulation products that Ronald Lunsford's father worked with in 1958. Those fibers apparently contributed to Ronald Lunsford's mesothelioma. Until 1992, there was an exception to the retrospective application of court decisions to pre-existing claims. This "selective prospectivity" exception was eliminated in Robinson v. City of Seattle. Saberhagen argues that Robinson has been subsequently overturned and that selective prospectivity applies in this case against the strict product liability claim. Justice Fairhurst, joined by five justices, holds that Robinson has not been overturned and that "strict product liability applies retroactively to all cases not barred by procedural requirements or goverend by the tort reform act, including Lunsford's ... claims...." Justice Madsen authored a concurrence signed by Chief Justice Alexander and Justice Jim Johnson disagreeing with the Court's strict interpretation of Robinson. (Briefs and oral argument)

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The Washington Supreme Court has agreed to review several new cases.

• Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2
• State v. Afana, No. 82600-5
• State v. Osman, No. 82671-4
• State v. Hall, No. 82558-1
• State v. Jones, No. 82613-7
• State v. Patel, No. 82649-8
• McGuire v. Bates, No. 82659-5

Case details after the jump:

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The Court will not be hearing oral arguments this week, so the next scheduled argument day is Tuesday, June 9. Today the Justices are considering petitions for review, and we will post the outcome when the results are released in the next couple of days. We'll also update you on whatever opinions the Court releases this week (opinions will likely be out on June 4).

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There is a good piece in Law & Politics Magazine profiling Washington's newest justice. Her career is well-document in her court biography, but the L&P article includes some previously unpublished tidbits. She almost drowned in the Snake River at the age of 8, she nearly pursued a Ph.D. in philosophy, and she plays golf. (There's a picture of Justice Stephens using a 3 or 5 wood on the fairway, which I've always found difficult.)

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