Supreme Court of Washington Blog : Supreme Court of Washington Blog : Washington Public Policy & Budget News : Freedom Foundation : WA State Tax & Labor Law Commentary & Updates

Briggs, et. al. v. Nova Services, et. al., No. 79615-7. A group of employees of Nova Services, including several managers, objected to their new executive director. They complained to the nonprofit's board of directors. The board investigated the objections, determined that the issues stemmed from "personal animosity," and three of the employees were fired. Six others refused to come to work and were considered as having quit their employment. Eight of the employees filed a complaint alleging several causes of action including violations of RCW 49.32.020, a Depression-era statute protecting workers in "concerted activities for the purpose of collective bargaining or other mutual aid or protections...." The trail court granted Nova Services' motion for summary judgment.

The Court of Appeals upheld the trial court, finding that RCW 49.32.020 did not apply "because the Employees' concerns did not relate to a term or condition of employment. It also held that the statute does not protect management-level employees. The Supreme Court today upholds the lower courts with a lead opinion by Justice Jim Johnson and concurrences by Justices Charles Johnson and Madsen. Justice Owens, joined by Justices Chambers, Fairhurst, and Stephens, dissent, arguing for a much broader exception to at-will employment, including protection for "employee protests over management personnel decisions ... when the decision relates to the employees' working conditions." Congratulations to the Pacific Legal Foundation, which filed an amicus brief explaining the importance of at-will employment. (Briefs, Argument)

In re Discipline of Hicks, No. 200,606-0. Attorney Richard S. Hicks appeals a recommendation of the Washington State Bar Association Disciplinary Board. The Board recommends that he be suspended from the practice of law for two years for failing to properly manage client funds. The Bar Association also challenges that the sanction here is too mild. The Court unanimously upholds the Board's recommendation. (Briefs, Argument)

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Morgan v. City of Federal Way, et al., No. 81556-9. The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report and Judge Michael Morgan, the subject of the complaint, sued to prevent its disclosure.

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 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. Judge Morgan argued the report should be exempted from disclosure by the work product, attorney-client privilege, and personal information exemptions to the Public Records Act.

The Supreme Court previously ordered the release of the Stephson report with an opinion to follow. Today’s opinion provides the rationale for releasing the document.

Justice Susan Owens, writing for a unanimous court, rejected all of Judge Morgan’s arguments and held the report was a public record and that no exemption would justify non-disclosure. First, the Court addressed whether the Stephson report was a public record, and held that the report was “prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.”

The Court noted that the work product exemption applies to records that relate to “completed, existing, or reasonably anticipated litigation.” The exemption does not shield records created during the ordinary course of business. As the Stephson investigation was conducted as a result of the city’s antidiscrimination policy, rather than in anticipation of litigation, the work product exemption does not apply.

Next, the Court held that communications between Morgan and Stephson were not protected by attorney-client privilege. Stephson was hired as an independent investigator, and the purpose of her investigation was to comply with the city’s antidiscrimination policy. No attorney-client relationship developed between Stephson and Judge Morgan, thus the investigation and report were not  privileged. (The Court also wrote that an email Judge Morgan sent to the city attorney was not protected as Morgan waived the privilege when he forwarded the email to a third party.)

Finally, the Court held that the personal information exemption did not apply. This exemption only extends to matters concerning a person’s private life that would be highly offensive to a reasonable person and are of no legitimate concern to the public. The Court noted the public’s substantial interest in the disclosure of information related to the performance of an elected official.

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In re Larry Botimer, No. 200,625-6. Attorneys should review this case before entertaining the thought of retaliating against a client.

Attorney Larry Botimer served for several years as a tax preparer and tax advisor to Ruth Reinking, as well as Ruth’s son and daughter-in-law Jan and Janet Reinking, and he assisted Ruth with decisions related to her ownership stake in a nursing home facility. Botimer also assisted Ruth with business matters related to another care facility run by her other son, James Reinking. A dispute arose when James refused to recognize that Ruth or Jan had an ownership stake in this care facility. Botimer assisted Jan and Ruth in negotiations with James, but did not obtain conflict waivers in the course of his assistance of the various members of the Reinking family.

In 2002, Botimer terminated his representation of Ruth, citing her failure to cooperate with him, refusal to follow his advice and failure to pay for his legal services. Botimer also informed Ruth that he was sending a letter to the IRS informing the agency of Ruth’s failure to, contrary to his advice, correctly state her income and pay gift tax.

To resolve disputes stemming from the sale of Ruth’s nursing home facility, Jan and Janet sued Ruth and James. Botimer cooperated with Jan and Janet’s attorney in the lawsuit, providing him with three declarations to use in pretrial proceedings.

The Washington State Bar Association accused Larry Botimer of several ethical violations, and brought a complaint against Botimer for the following violations of the Rules of Professional Conduct:

• Count 1: Former RPC 1.7(b) by representing Ruth, Jan, and Janet; thereby creating a conflict of interest without obtaining informed consent in the form of conflict waivers.
• Count 2: Former RPC 1.6 and 1.9(b) by disclosing private information without consent to Jan’s lawyer when Jan and Ruth were counterparties to a lawsuit.
• Count 3: Former RPC 1.6 and 1.9(b) by disclosing without consent private information regarding Ruth’s prior tax returns to the IRS.

Today the Supreme Court unanimously affirmed the suspension in an opinion written by Justice Susan Owens.

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In re Pers. Restraint of Mattson, No. 81324-8. In a 6-3 decision authored by Justice Madsen, the Court determined that the state law which allows criminals to be released early under an approved "community custody plan" does not create a due process liberty interest. Therefore, a Department of Corrections policy that no sexually violent predators can be released early under a community custody plan does not violate due process.

Mark Mattson had been convicted of multiple sexual crimes and sentenced to ten years in prison. During the latter half of his imprisonment, Mattson submitted six different community custody plans for his early release. The final such plan was denied by the Department of Corrections on the basis that there was simply no plan that could ensure the safety of the community against sexually violent predators. A DOC psychiatrist had concluded that Mattson fell into this category, so the DOC did not review the merits of his proposed plan.

The Court of Appeals ruled for Mattson, holding that the statute setting up the community plan option created a due process right, so his plan had to be reviewed on its merits. Madsen's decision reverses the Court of Appeals.

Chief Justice Alexander dissented, agreeing with the Court of Appeals that Mattson's plan should have been reviewed on its merits, and not rejected simply due to a broad policy directive. Justices Sanders and Chambers joined him.

The decision is one of public interest only, as Mattson has already served his maximum sentence, and therefore the case is moot as it relates to his incarceration.

State v. Rivera-Santos, No. 81445-7. In a unanimous opinion written by Justice Fairhurst, the Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent, and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime.

Fairhurst wrote that convicted Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime. He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

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In re Larry Botimer, No. 200,625-6 (briefs and argument). This case 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.

In re PRP of Mattson, No. 81324-8 (briefs and argument). The question is whether the Department of Corrections may refuse to consider the community custody transition plan of a sex offender who has been found, after an evaluation, to meet the criteria for commitment as a sexually violent predator. Mattson argues his right to release to community under terms of the early release statute, while DOC says Mattson’s plan was properly denied under statute.

Morgan v. Federal Way, et al., No. 81556-9 (briefs and argument). The City of Federal Way hired attorney Amy Stephson 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 Michael Morgan, the subject of the complaint, 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 Supreme Court has already ordered the release of the Stephson report. The opinion issued tomorrow will provide the rationale for releasing the document.

State v. Rivera-Santos, No. 81445-7 (briefs and argument). 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.

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The Supreme Court may issue opinions on August 20. No oral arguments are scheduled this week.

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Shafer v. Dep’t of Labor & Indus., No. 81049-4. Kelly Shafer injured her back in 1998 while lifting a beer keg at the bowling alley where she worked. Shafer was eventually treated by Dr. Elizabeth Cook, and CAT scans revealed that Shafer had sustained broken bones in her vertebrae and a pinched nerve. Dr. Cook applied to the Department of Labor & Industries for reimbursement of the treatment costs. In July 2000, the Department arranged for an independent examination of Shafer, and the examiner determined Shafer could return to work. The final closing order issued by the Department awarded Shafer a permanent partial disability award of $6,773. A copy of the order was sent to Shafer but not Dr. Cook.

Three years later Shafer returned to Dr. Cook because of dehibilitating pain in her back. Dr. Cook determined Shafer's condition had worsened, and asked the Department to reopen Shafer's claim. The Department refused. Shafter then appealed to the Board of Industrial Insurance Appeals, arguing that her initial claim was never closed because Dr. Cook had not received a copy of the closing order. Dr. Cook stated that if she had received the order she would have appealed it because she believed Shafer needed additional treatment. The Board determined the claim had been terminated as the closing order had been communicated to Shafer. On appeal, the Court of Appeals reversed this determination, ruling that the revised closing order had not become final because it was not received by Dr. Cook.

The Supreme Court unanimously agreed, with Chief Justice Gerry Alexander writing the opinion. The court held that the Industrial Insurance Act requires that attending physicians receive closure orders, and that Shafer's claim would not close until 60 days after all affected parties received the order.

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The Supreme Court will issue opinions in at least one case tomorrow morning.

Shafer v. Dep’t of Labor & Indus., No. 81049-4 (briefs and arguments). This case is on appeal from Division One Court of Appeals, and originated from a decision by the Department of Labor and Industries to not re-open a disability claim from 2000. The Department's decision was upheld by the Board of Industrial Appeals and King County Superior Court, but reversed by the Court of Appeals. The question before the Court is whether an order closing an industrial insurance claim based on an independent medical examination must be communicated to the worker’s attending physician in order to trigger the time period for administratively appealing the order.

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The Supreme Court may issue opinions on August 13. No oral arguments this week.

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In this podcast we discuss constitutional interpretation, judicial statistics and trends, religious liberty, and teacher-student sexual contact.

Supreme Court of Washington Podcast (RSS) -Tent cities & the Gunwall analysis

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State v. McCormick, No. 81193-8. David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he "not frequent areas where minor children are known to congregate...." McCormick's community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick's first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argues that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence. The Court holds that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court's decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices. Justice Sanders dissents, asserting that "[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate." (briefs and argument)

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Tomorrow the Supreme Court will issue opinions in at least one case.

State v. McCormick, No. 81193-8 (briefs and argument). David McCormick, a 61-year-old indigent man confined to a wheelchair, regularly picked up food from the St. Vincent DePaul food bank in Everett. A trial court found that McCormick, by visiting this food bank which was located near a parochial grade school, had violated the conditions of his suspended sentence for first-degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program. McCormick denied knowing the food bank was near a grade school. Regardless, the trial court revoked his special sexual offender sentencing alternative, and ordered him to serve a 123-month sentence. The Court of Appeals (Div. I) affirmed. The question before the Supreme Court is whether the State must prove that a defendant willfully violated the conditions of his suspended sentence before the trial court can revoke the suspended sentence.

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The Supreme Court may issue opinions on August 6. No arguments are scheduled while the court is in summer recess.

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