This week at the Supreme Court, July 27, 2009
The Supreme Court may issue opinions on July 30. No arguments are scheduled while the court is in summer recess.
Today's Opinions: sentencing and double jeopardy
In re Pers. Restraint of Brooks, No. 80704-3. Jeffrey Brooks, convicted of three counts of first-degree robbery and one count of residential burglary, was sentenced to 120 months in prison plus 18 to 36 months of community custody. He challenges the sentence as exceeding the maximum, which is 120 months for both imprisonment and community custody. In a unanimous opinion by Justice Chambers, the Court upholds the courts below and finds Brooks's sentence lawful. The Court reasons that Brooks will likely earn early release credits that reduce his sentence below the maximum and, if he does not, the sentence was already amended to note that Brooks total time in confinement and supervision may not exceed 120 months. "We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the apropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum." (briefs and argument)
State v. Hughes, No. 81270-5. Raymond Hughes admitted to sexual intercourse with a 12-year-old girl with cerebral palsy whom he had been hired to nurse. He was charged with both second-degree rape and second-degree rape of a child. Hughes challenges that the two charges amounted to double jeopardy and that his exceptional sentence of 102 months to life is an indeterminate exceptional minimum sentence that exceeds the trial court's authority. Here, in a unanimous opinion by Justice Charles Johnson, the Court holds that the two charges do amount to double jeopardy because they are based on the same single incident and the elements of each crime are essentially identical. The Court rejects Hughes's challenge to his sentence because he was convicted before the Sentencing Reform Act amendments that are essential to his argument. The case is remanded to the trial court to vacate one of the two convictions. (briefs and argument)
Tomorrow's opinions, July 23, 2009
The Supreme Court of Washington will issue opinions in two cases tomorrow:
In re PRP of Brooks, No. 80704-3 (briefs and argument). 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 three counts of attempted first-degree robbery and one count of residential burglary. These are all class B felonies, with a maximum sentence of 10 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 10 years.
State v. Hughes, No. 81270-5 (briefs and argument). Whether separate convictions (for second-degree rape and second-degree rape of a child) for the same act constitute double jeopardy. Defendant Raymond Hughes pled guilty to sexual intercourse 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 conviction.
This week at the Supreme Court, July 20, 2009
The Supreme Court is in recess in will not hear oral arguments this week. The court may issue opinions on July 23.
In other judicial news, the Vancouver Columbian has an editorial that says the state's mandatory retirement rule for judges (at age 75) should be lifted. For example, Chief Justice Gerry Alexander faces mandatory retirement in 2011.
Decision marks shift in State v. Gunwall analysis
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A note to practitioners: with yesterday’s ruling in Woodinville v. Northshore United Church of Christ, the Washington State Supreme Court has announced that it is relaxing the mandate that attorneys who are briefing claims under the state constitution follow a specific briefing format.
In the case of State v. Gunwall (1986) the Supreme Court provided guidelines to determine when and how the Washington Constitution provides greater protection of individual rights than the United States Constitution.
Litigants were encouraged to address six separate factors to assist the court in evaluating the state constitution: (1) the text of the state constitutional provision at issue, (2) textual differences between parallel state and federal constitutional provisions, (3) state constitutional and common law history, (4) preexisting state law, (5) structural differences between state and federal constitutions, and (6) whether the case involves matters of particular state or local concern.
A few years later, the court suggested that a party’s failure to discuss the six criteria mentioned in Gunwall would preclude the court from considering a constitutional claim. State v. Wethered (1988). Subsequently, the courts adopted a more rigid attitude toward state constitutional arguments. To some extent this barrier was justified; the courts wanted to keep litigants from vaguely invoking the state constitution without adequate argument. But as Hugh Spitzer noted in a law review article, in 11 years after Gunwall was decided, the court avoided state constitutional claims in 57% of cases.
In recent years the Supreme Court has moderated its approach. The court has said a Gunwall analysis is no longer necessary where case law recognizes the need for independent review of the state constitution in the context of a specific legal issue. State v. White (1998). Additionally, once the court has recognized broader rights in a state constitutional provision, a Gunwall analysis is not needed. State v. Jackson (2003). The court even excused a party’s failure to brief the Gunwall factors if the analysis was provided by an amicus party. Eggleston v. Pierce County (2003).
Still, with the numerous approaches articulated by the Supreme Court and Courts of Appeals, it has been difficult for lawyers to anticipate how a court will treat a state constitutional claim. The example from yesterday’s Woodinville ruling is a good example of how Gunwall has been used as an arbitrary barrier: When denied a permit to host a tent city, the Northshore church raised a state constitutional claim. The church briefed the issue, cited relevant case law, and noted that courts have long analyzed religious liberty claims independently under the Washington Constitution. But the Court of Appeals refused to address the church’s state constitutional claim because of its failure to follow a precise Gunwall format.
The NUCC and amicus ACLU of Washington asked the Supreme Court to provide a clear statement of its expectations for Gunwall briefing, and the court obliged. Justice James Johnson wrote for the majority:
A strict rule that courts will not consider state constitutional claims without a complete Gunwall analysis could return briefing into an antiquated writ system where parties may lose their constitutional rights by failing to incant correctly. Gunwall is better understood to prescribe appropriate arguments: if the parties provide argument on state constitutional provisions and citation, a court may consider the issue. This is especially true where, as in many areas, the special protections of our state constitution have been previously recognized by this court. Listing the Gunwall factors is a helpful approach when arguing how Washington’s constitution provides greater rights than its federal counterpart. But failing to subhead a brief with each factor does not foreclose constitutional argument.
I read this as a new, permissive standard: the court still expects appropriate briefing where constitutional claims are raised, but the court will not bar a claim where the party failed to employ Gunwall's exact format or factors. Hopefully, this decision will speed the development of state constitutional jurisprudence.
Opinion: Jury award reinstated for serving alcohol to drunk driver
Faust v. Albertson, No. 81356-6. Hawkeye Kinkaid was extremely drunk when his car crossed the center line and struck a car driven by Bianca Faust. Kinkaid died and Faust and her passengers were injured, including one who was rendered paraplegic. Faust sued the Moose Lodge where Kinkaid had been drinking and Alexis Chapman, Kinkaid's girlfriend who had also been serving him drinks. A jury found the Lodge and Chapman liable for negligent overservice according to RCW 66.44.200 and awarded Faust a $14 million judgment. The trial court denied defendants' motion for judgment as a matter of law.
The Division One Court of Appeals reversed and vacated the judgment, believing that the evidence presented at trial was insufficient to show that Kinkaid was "apparently under the influence of liquor" as required by the statute. Here, in an opinion by Justice Owens, the Court unanimously overturns the Court of Appeals decision and reinstates the jury verdict. The Court also rejects the arguments of amici Mothers Against Drunk Driving and the Washington State Association of Justice Foundation (trial lawyers) that the threshold for plaintiffs in these cases should be lowered. (briefs, argument, AP story)
Opinion: attorney disbarred for failure to report cash payment
A. Mark Vanderveen appealed the Washington State Bar Association Disciplinary Board’s recommendation that he be disbarred after his guilty plea for willful failure to file a currency report after receiving cash payments amounting to $20,000. The hearing officer determined disbarment was the presumptive sanction but found mitigating factors and recommended a three-year suspension. The Board modified several of the hearing officer’s findings, including two mitigating factors, and instead recommended disbarment. The Supreme Court, with Justice Charles Johnson writing, upheld the disbarment.
Justice Sanders dissented, arguing that the appropriate sanction for Vanderveen would be a suspension from practice as a willful failure to file does not constitute dishonesty for the purposes of an attorney disciplinary proceeding.
The Seattle Times has this summary of the case.
New opinion: tent cities at churches (Woodinville v. Northshore United)
In City of Woodinville v. Northshore United Church of Christ (No. 80588-1), the Court was asked whether a city violated a church's religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court of Appeals sided with the City.
In an opinion written by Justice Jim Johnson, the Court overturned the lower court, holding that the City's denial of the permit application violated Article I, Section 11 of the state constitution.
In the summer of 2006 the tent city organizers approached Northshore United about residing on church land. The church agreed, and submitted an application for a temporary permit to the City. At that time a short-term moratorium on temporary use permits was in place, which the City used to justify its refusal to process the church's application. The church allowed the tent city to come onto its property anyway, and the City sued for a restraining order and injunction.
Justice Johnson, joined by six other justices, held that the city's use of a moratorium to deny the church's permit application violated the state constitutional guarantee to "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship." (Article I, Section 11) There was no question of the City's sincere religious beliefs or that the moratorium was not in place to further a "compelling interest" of the City. So the primary question for the Court was "whether the City's actions substantially burden the free exercise of the Church's religious...worship."
The Court held that while incidental burdens on religion, such as requiring a permit, are not unconstitutional, refusing to process the church's permit application entirely was a substantial burden on religion. Since it reached this conclusion based on the state constitution, which the Court found to have greater protection than the federal bill of rights, the opinion did not address federal claims.
The majority opinion also addressed the question of the tent city being a possible nuisance to the church's neighbors, but found that while the city might have the ability to regulate the manner in which this type of activity is conducted, it cannot simply deny any consideration of the permit.
Justice Sanders, joined by Justice Chambers, filed a concurring opinion in which he agreed with the result but took issue with the majority's holding that general permitting requirements for churches are an incidental (i.e. constitutional) burden. Sanders focused on the constitution's "absolute freedom" language, and argued that allowing the "licensing of religion" is inconsistent with this broad constitutional protection.
Tomorrow's opinions, July 16, 2009
The Supreme Court of Washington will issue rulings in three cases tomorrow, involving religious freedom, overservice of alcohol, and attorney misconduct.
City of Woodinville v. Northshore United Church of Christ, No. 80588-1 (briefs and arguments). This case reviews whether a city violated a church’s religious freedoms when it forbade the church from hosting a tent city for the homeless without a permit. The Court of Appeals held that such a moratorium was constitutional. Also at issue is a question of constitutional significance: whether the Court of Appeals properly refused to address the church’s claims under the state constitution when the church did not provide analysis patterned upon the factors in with the factors State v. Gunwall, 106 Wn.2d 54 (1996). In Gunwall the Supreme Court provided specific factors to analyze to determine whether the Washington Constitution guarantees broader protections for fundamental rights than the U.S. Constitution.
Faust v. Albertson, No. 81356-6 (briefs and argument). 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.
In re Discipline of Vanderveen, No. 200,569-1 (briefs and argument). Attorney Mark Vanderveen was convicted of a felony for accepting $20,000 cash that he believed to be proceeds of an illegal drug ring and failed to properly report the cash to federal authorities. He argues that the Supreme Court should reject the Washington State Disciplinary Board’s recommendation that he be disbarred for his felony conviction.
San Juan voters sue Sam Reed over ballot secrecy
This morning a group of voters and the Green Party of San Juan filed a writ of mandamus with the supreme court against Secretary of State Sam Reed and San Juan County.
The plaintiff's attorneys (Smith & Lowney) sent out a press release describing the cause of action:
The suit alleges that actions of Secretary of State Sam Reed required approximately one million voters to vote on ballots that contained unique bar code identifiers, in violation of the State Constitution’s guarantee of “absolute secrecy” of the ballot and statutes requiring uniform ballots within a precinct.
The suit also claims that Reed has encouraged and subsidized an uncertified ballot tracking “audit” system that links the ballot identifiers to voters’ identities, further undermining ballot secrecy by potentially permitting vendors and officials to inspect how a citizen voted.
The case name is White v. Reed. The petition is available on the firm website.
(hat tip: Rick Hasen)
This week at the Supreme Court, July 13, 2009
The Supreme Court is in recess and will not hear oral arguments this week. The court may issue opinions on July 16.
State will seek execution of Cal Coburn Brown
In March, the Washington Supreme Court issued an 11th hour stay in the scheduled execution of convicted murderer Cal Coburn Brown. Brown's case had been consolidated with another case before Thurston County Superior Court Judge Chris Wickham where inmates were challenging the constitutionality of Washington state's method of lethal injection.
Today Judge Wickham affirmed the state's practice. With this ruling, the Attorney General's Office says it will once again seek Brown's execution.
It is possible, however, that the Supreme Court will not lift the stay of execution until Judge Wickham's order comes up on appeal, giving the Supreme Court an opportunity to review the constitutionality of lethal injection.
Click here for more information about capital punishment in Washington state.
New cases before the Supreme Court
The Supreme Court of Washington has agreed to review several new cases after its July 7 conference.
Cases of note include Ameriquest Mortgage Co. v. Attorney General (whether a federal law preempts the state Public Records Act), State v. Bainard (whether a defendant who shot his parents and allegedly burned down the home can be charged with first-degree arson), and State v. Hirschfelder (whether the law criminalizes sexual intercourse between a teacher and an 18-year-old student).
Case details after the jump.
Continue Reading...Today's Opinions: City of Bellevue and Detention of Anderson
City of Bellevue v. Lee, et al., No. 81473-2. The nine respondents in this case each had his or her drivers license suspended after failing to pay a traffic citation fine. The Department of Licencing notified each person of the pending suspension and offered each an administrative review. This current process for license suspensions is the result of the Court's 2004 decision in City of Redmond v. Moore, where it invalidated an earlier drivers license suspension procedure for failing to satisfy due process requirements. Applying the three-pronged test from Mathews v. Eldridge, the Court today holds that Washington's current process for suspending drivers licenses does provide due process and upholds these license suspensions. Susan Owens writes the majority opinion and is joined by all of the other justices except Justice Sanders, who dissents. (briefs and argument)
In re Detention of Anderson, No. 79111-2. As a teenager, John Charles Anderson raped two two-year-old boys and a 13-year-old boy and then sexually abused his roommated in a juvenile rehabilitation center. He was voluntarily committed to Western State Hospital, where he had sexual relationships with at least eight patients; four of these patients were considered particularly vulnerable persons. Anderson decided to leave Western State and the State petitioned to commit him as a sexually violent predator. Anderson refused to use the expert witness provided to him by the state and requested a different expert, Dr. Richard Wollert. The State objected and the trial court denied Anderson's request. At the conclusion of the trial, the court ordered Anderson's commitment and Anderson appealed. He argued that the State had not proved the requisite "recent overt act" and that it wrongly denied his request for a different expert witness. The Court of Appeals sided with the state on the first of these and with Anderson on the second.
Here the Court of Appeals is upheld and the matter remanded for a new trial. Justice James Johnson writes for five members of the Court. Justice Sanders dissents and would dismiss. Justice Fairhurst, joined by Justices Chambers and Stephens, dissents. Both dissenting opinions would find insufficient evidence of a "recent overt act" to justify civil committment. (briefs and argument)
Today's opinions: pensions and fences
McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3. David and Ken McAllister were firefighters for the City of Bellevue. Both made pension contributions for many years under the Firefighters’ Relief and Pensions Act of 1955. When the men retired, the 1955 Act had been replaced by the Law Enforcement Officers’ and Fire Fighters’ System Pension Plan of 1970. Under the more recent 1970 plan, the city is required to pay the McAllisters the difference, if any, between their benefits under LEOFF and what their benefits would have been had they retired under the 1955 Act. The City later determined it had made an excess payment to the McAllisters of approximately $500,000 by relying on definitions contained in LEOFF, rather than the 1955 Act. Upon discovering this, the City began paying a reduced excess payment, but did not seek a reimbursement. The McAllisters challenged the reduced payment. The Supreme Court unanimously upheld the City’s action, with Justice Debra Stephens writing the opinion. “The plain language of RCW 41.26.040(2) further requires that an excess payment be calculated under the prior retirement system, not under LEOFF,” she wrote. (briefs and argument).
State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.
The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).
Tomorrow's opinions, July 9, 2009
City of Bellevue v. Lee, et al., No. 81473-2 (briefs and argument). In this case Shin Lee and others respondents had their drivers license suspended for failure to respond, appear, pay or comply with the terms of a traffic citation. Each person was given a notice of suspension with an opportunity to appeal. The respondents challenged the appeal procedure, arguing it does not comply with due process procedures. King County Superior Court ruled the administrative review and appeal of a license suspension is unconstitutional. The question before the Supreme Court is whether the appeals statutes provide adequate safeguards to ensure against the erroneous suspension of a license, so as to meet due process requirements. The Office of the Attorney General filed an amicus curiae brief in support of the City of Bellevue.
In re Detention of Anderson, No. 79111-2 (briefs and argument). John Charles Anderson was committed as a sexually violent predator based on his conduct while at Western State Hospital, and he appealed, arguing that the trial court erred when it (1) admitted statements he made during his treatment at Western State Hospital; (2) found he committed a recent "overt act"; and (3) refused to allow his chosen expert's testimony. The Court of Appeals (Div. II) reversed the commitment and ordered a new trial.
McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3 (briefs and argument). 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.
State v. Engel, No. 81072-9 (briefs and argument). Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).
The court's 2009 statistics (YTD)
Last week the Supreme Court of Washington concluded its Spring Term. With that milestone, we are introducing a new feature here at the blog. Every term we will track the opinions and votes of each justice, and will provide a spreadsheet with a case-by-case breakout. Here are the raw numbers for January - June 2009.
A few trends are worth noting in the charts below.
Number of Opinions by Justice
|
Justice |
Majority Opinions |
Concurring Opinions |
Dissents |
Total Opinions |
|
Alexander |
2 |
1 |
3 |
6 |
|
C.Johnson |
4 |
0 |
3 |
7 |
|
Madsen |
8 |
9 |
5 |
22 |
|
Sanders |
5 |
1 |
8 |
14 |
|
Chambers |
10 |
0 |
1 |
11 |
|
Owens |
3 |
1 |
1 |
5 |
|
Fairhurst |
5 |
2 |
4 |
11 |
|
J.Johnson |
0 |
1 |
1 |
2 |
|
Stephens |
10 |
2 |
1 |
13 |
(more after the jump)
Continue Reading...This week at the Supreme Court, July 6, 2009
The Supreme Court is in recess and will not hear oral arguments until September. The court may issue opinions on July 9.
Baliff Steve Englehorn retires
The voice you hear opening and closing sessions of the state Supreme Court will be changing. This week Chief Justice Gerry Alexander took a moment to recognize Steve Englehorn, who has served as the court bailiff. Mr. Englehorn is retiring after twelve years of service in that position, and thirty years with the Washington State Patrol.
Gavel-bangers, get your resumes in quickly!
Today's Opinion: Chapter 7 is no protection from personal liability for unpaid wages
Morgan, Pitchford & McGillivray v. Kingen, 81202-1. Funsters Grand Casino, which was actually a minicasino, opened its doors in SeaTac, Washington, in August 2001. A year later, it filed for Chapter 11 bankruptcy protection, which was converted to Chapter 7 liquidation on April 7, 2003. The bankruptcy court seized Funsters' assets. By that time, Funsters had already failed to pay over $179,000 in wages to over 180 employees. The bankruptcy court did not allow Funsters to use its $85,823 in remaining cash to pay any of the back wages. Plaintiffs here sued on behalf of the class of unpaid Funsters employees, seeking to hold personally liable Funsters CEO and president Gerald Kingen and CFO and general manager Scott Switzer, who were both also part owners in the minicasino enterprise.
The trial court entered summary judgment for plaintiffs and granted them attorney fees, but without a multiplier. Both parties appealed. Today, the Court upholds the trial court and court of appeals, holding that the non-payment of wages here was "willful," thus Kingen and Switzer can be held personally liable under state law. The Court also upholds the lack of a multiplier in the award of attorney fees. Justice Charles Johnson wrote the majority opinion, joined in full by four Justices and joined as to the result only by Justice Chambers. Justice Sanders, joined by Justice Jim Johnson and Justice Pro Tem Dennis Sweeney (sitting in place of Justice Fairhurst), dissented. (briefs and arguments)
Tomorrow's opinions, July 2, 2009
Tomorrow the Supreme Court of Washington will issue at least one ruling:
Morgan, Pitchford & McGillivray v. Kingen, 81202-1 (briefs and arguments). The question in this case is whether corporate insolvency is a sufficient defense to avoid personal liability when the responsible party otherwise willfully failed to pay wages owed to its employees.
Court records & minors with guns
On this podcast we discuss education funding litigation, whether court administrative records should be public, and gun-toting minors.
Supreme Court of Washington Podcast (RSS) - Court records & minors with guns.
Observations on law blogs
The Washington State Bar Association has printed an article by yours truly about the value (both for individual lawyers and the profession) of legal blogging. Many thanks to Greg Overstreet, D. Jill Pugh, Venkat Balasubramani, Kevin O'Keefe, Kristin Alexander, and Rita Kaiser for their input!
Read it here: Washington lawyers find blogs a valuable tool
