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The Supreme Court will release opinions in at least four cases tomorrow.

In re Detention of Moore, No. 81201-2. Paul Moore was committed as a sexually violent predator in Snohomish County Superior Court. During the hearing, the parties stipulated to much of the State's evidence. In the present case, Moore was judged marginally competent, but the doctor evaluating him said that his competence could change over time.

The trial court committed Moore as a sexually violent predator. At issue is (1) whether the trial court denied Moore due process by accepting a stipulation of certain fact without conducting an inquiry to determine if he knowingly waived his right to contest the State’s case, (2) whether trial counsel was constitutionally ineffective, and (3) whether due process requires the State to prove Moore would reoffend within the foreseeable future.

In re Discipline of Bradley Marshall, No. 200,577-2. The Washington State Bar Association is seeking disbarment of Bradley Marshall for multiple violations of the Rules of Professional Responsibility.

State v. 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.

State v. O'Hara, No. 81062-1. The question for the Supreme Court is whether the trial court failed to provide the jury with the proper definition of “malice,” and whether this is a constitutional error that can be raised for the first time on appeal.

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Retired Supreme Court Justice Sandra Day O'Connor recently criticized Washington’s process of electing judges. The speech set off a rash of editorials and opinion pieces. Here are several:

• Washington state should change the way it selects judges, Kate Riley, Seattle Times
• Judicial elections continue to serve Washington state citizens well, Deborah D. Fleck and Gerry Alexander, Seattle Times
• Time to change how Washington state selects its judges, William W. Baker and John McKay, Seattle Times
• Editorial, Politics shouldn’t skew judicial selection, The News Tribune
• Editorial, In Our View, Elections Preferred, The Columbian
• Editorial, Let's not rush to change judicial elections, Yakima Herald-Republic

UPDATE: WSBA Bar News Editor Michael Heatherly reminded me that Bar News covered the topic of judicial elections last year in a series of articles.

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Chief Justice Gerry Alexander is stepping down from the role he has held for nine years, opening the way for a new chief to be selected. (His long and distinguished legal career is detailed here.)

Alexander says he'll use his remaining time on the bench to assist the new chief, in addition to continuing to perform his duties as an associate justice of the court. This move will allow for a seamless transition when Alexander retires from the bench in 2011 when he reaches mandatory retirement age. 

The Supreme Court Administrative Rules describe the process for selecting a new chief. The justices will meet in November and make verbal nominations. The justices will then vote by secret ballot and the individual who receives a majority of votes will begin his or her four-term as chief the following January.

No word on who will replace Alexander, though Justice Charles Johnson already holds the position of associate chief justice -- a role that goes to the justice who has served on the court the longest. Justice Johnson is well-respected, a constitutional scholar, and is already deeply involved in the court's administrative functions, so it wouldn't be a surprise to see him selected.

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King5 is reporting that Chief Justice Gerry Alexander will step down from his leadership seat in 2010, serving out his term as an Associate Justice (his term ends in 2011). The story quotes Alexander as saying: 

“It has been an incredible privilege and an honor to serve as the state’s Chief Justice for the past nine years,” said Alexander. “I am immensely proud of our Court, and I feel this is the perfect time to turn this position over to one of my able colleagues.”

His replacement will be chosen by the other Justices later this fall.

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The Supreme Court may issue opinions on Thursday. No oral arguments are scheduled for this week.

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Ambach v. French County, No. 81107-5. Teresa Ambach sued a doctor alleging, among other causes of action, that he performed an unnecessary surgery on her in violation of the Consumer Protection Act. The trial court granted summary judgment to the doctor and imposed sanctions against Ambach's attorneys related to the CPA claim. The Court of Appeals reversed, and is today overturned. Here, the Supreme Court holds that personal injury damages are not covered by the CPA because they "do not constitute injury to business or property" as required by the Act. Justice Madsen authored the majority opinion, which seven other justices signed. Justice Chambers concurred, stressing "that there is nothing in our jurisprudence that should prevent a patient from bringing a CPA claim against a doctor who falsely and deceptively prescribed unnecessary or unnecessarily expensive surgeries as part of a business strategy." (briefs and argument).

Noble v. Safe Harbor Family Preservation Trust, No. 80873-2. The Nobles own land on Hood Canal that is only accessible through land owned by others, including the Safe Harbor property and another parcel owned by Tillicum Beach, Inc. The Nobles sued Safe Harbor to condemn a private right of way of necessity. Safe Harbor defended that there were other possible routes, but did not name any other property owners. The Nobles amended their claim to add Tillicum as an alternate condemnee. The trial court granted the Nobles a right of way through the Safe Harbor land. The trial court also granted Tillicum's motion for attorney fees from Safe Harbor and the Noble's motion to decrease the attorney fee award from the Nobles to Safe Harbor. The Court of Appeals affirmed. The Supreme Court reverses the award of attorney fees to Tillicum but upholds the reduce the attorney fees due Safe Harbor from the Nobles. The Court holds that RCW 8.24.030 grants the trial court broad discretion in awarding attorney fees in condemnation actions, but does not permit a trial court to penalize a potential condemnee from raising the defense of a possible alternate route. Justice Charles Johnson authored the majority opinion and is joined by four other justices. The Chief Justice, joined by Justice Fairhurst, concur except that they would not remand to the trial court on the issue of whether the Nobles must pay attorney fees to Tillicum since the issue was not briefed. Justice Chambers dissents. (briefs and argument).

State v. Kilgore, No. 81020-6. Mark Kilgore was convicted by a jury of seven counts of sexual crimes against children. An "exceptional" sentence of 560 months was imposed. Two counts were reversed on appeal. After his direct appeal was over but before the trial court had corrected the judgment and sentence, the Supreme Court of the United States decided Blakely v. Washington. If Kilgore's case is considered final before that decision was issued, it does not apply retroactively to his sentence. He asserts that his case was not final and that he should be resentenced according to Blakely. Today, the Supreme Court upholds the lower courts and findes that Kilgore's case was final before Blakely. Justice Fairhurst authored the majority opinion. Justice Sanders, joined by Justice Madsen, dissent. (briefs and argument).

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The Supreme Court will issue opinions in several cases tomorrow.

Ambach v. French County, No. 81107-5 (briefs and argument). Patient Teresa Ambach brought an action against her surgeon and hospital when her shoulder became infected after a surgical procedure and had to be fused. Her complaint included claims against Dr. French for professional negligence and violations of the Consumer Protection Act (CPA). As part of her CPA claim, Ms. Ambach alleged that Dr. French performed medically unnecessary surgeries for financial gain. The trial court ruled in favor of Dr. French and imposed sanctions against Ms. Ambach’s attorneys. The Court of Appeals (Div. III) reversed the summary judgment and the attorney sanctions. The issue before the Supreme Court is whether a medical patient’s economic losses attributable to an allegedly unnecessary surgical procedure are recoverable under the Consumer Protection Act.

Noble v. Safe Harbor Family Preservation Trust, No. 80873-2 (briefs and argument). Whether, in an action to condemn a private way of necessity, the trial court may order the condemnee to pay the attorney fees of a third party who the condemnor joined in the suit.

State v. Kilgore, No. 81020-6 (briefs and argument). Whether, on remand after the reversal of two of seven convictions, defendant Kilgore was entitled to challenge reimposition of his original exceptional sentence.

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Today the Court will hear arguments in four cases dealing with criminal procedure, public records, preemption, and the Growth Management Act. (docket, case briefs)

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

State v. Magee, No. 81746-4. On appeal from the Division Two Court of Appeals, this case originated in Pierce County Superior Court. The case concerns whether a police officer had authority to issue a ticket for a traffic infraction that was not committed in the officer's presence.

In driving to help a friend whose car had stalled on a freeway, Andrew Magee made a U-turn on an on-ramp, parking his car backwards on the shoulder to be nose-to-nose with the other car. A state trooper responded to a report of a car driving backwards, and upon seeing Magee's car she assumed it was him, issuing him a traffic citation. Magee argued there was insufficient evidence to prove the infraction, and that the trooper had no authority to issue the ticket because she didn't see him driving backwards. Both the Superior Court and Appeals Court upheld the conviction.

Yousoufian v. Ron Sims, No. 80081-2. An open records case that has gone up and down the court system for the past ten years, the final issue in Yousoufian was settled by the Court in January. But Justice Sanders, who wrote the majority opinion, was determined to have a conflict of interest and King County asked for this rehearing. Both Sanders and Justice Stephens are recused from the argument.

The Court will review the appropriate level of penalties for King County's gross negligence in providing public records to Yousoufian. Justice Sanders' original decision also provided a long-desired framework for how judges should set penalties in public records cases. He was joined by five other justices in this part of his decision.

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

Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. This case is on appeal from Division One Court of Appeals, originating from a Growth Management Hearings Board decision reviewed by the Whatcom County Superior Court. The questions before the Court concern whether the doctrines of res judicata and collateral estoppel (preventing litigation of the same question twice) apply in land use cases, and whether the Growth Management Board improperly established a bright-line rule about the density of homes allowed in rural residential areas.

Futurewise challenged Whatcom's land use plan as noncompliant with the Growth Management Act, arguing that the rural density levels were too high and that some limited areas of "intensive rural development" were too large. Gold Star would have been harmed if Futurewise won, so it intervened in the case, arguing that the "intensive rural development" issue had already been found to comply with the Growth Management Act in a prior Futurewise case, and that Futurewise was barred from re-litigating the same issue again (violating res judicata).

Gold Star also argues that the Growth Management Board cannot impose a bright-line standard for permissible rural densities, since local governments are given broad discretion in the Growth Management Act to tailor their plans to the particular needs of their communities.

Lawson v. City of Pasco, No. 81636-1. This case is on appeal from Division Three Court of Appeals, and arose in Franklin County Superior Court. The question before the Court is whether the Manufactured/Mobile Home Landlord-Tenant Act preempts a city's ordinance banning the use of recreational vehicles as permanent homes in mobile home parks.

Paul Lawson owns a mobile home park in Pasco, and has at least one tenant who uses a fifth-wheel as a permanent home. Pasco has an ordinance preventing this use of a recreational vehicle, and ordered Lawson to evict all such tenants. Lawson defends on the basis that the Landlord-Tenant Act allows the use, and that the Act preempts the City's ordinance.

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The Supreme Court will hear arguments this week on Tuesday and Thursday (including a re-argument of public records case Yousoufian v. Ron Sims) and may issue opinions on Thursday.

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Kappelman v. Lutz, No. 80996-8. Theodore Lutz took Amber Kappleman for a ride on his motorcycle even though he had only an instructional permit which did not allow him to carry passengers. They crashed when a deer ran out in front of them on the highway. Kappleman was injured, sued Lutz, and lost at the trial court. She appealed, citing the judge's refusal to allow evidence that Lutz lacked a motorcycle endorsement and his instructions to the jury on the "sudden emergency doctrine" (which says that a person in danger cannot be expected to "act as prudently as one might have had there been time for deliberation"). The Court of Appeals upheld the trial court and today the Supreme Court unanimously affirms that decision in an opinion by Justice James Johnson. (briefs and arguments)

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1. Kimme Putman sued the Medical Center and several of its medical staff, alleging negligent failure to diagnose her ovarian cancer. The trial court dismissed because Putman failed to file a "certificate of merit" as required by RCW 7.70.150. Here, the Supreme Court reverses and holds that the statute violates the State Constitution because it "unduly burdens the right of access to courts" and violates the separation of powers. According to the majority opinion by Justice Owens, "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right to access to courts." Justice Madsen, joined by Justice James Johnson, concurs as to separation of powers, but disagrees that the statute unduly interferes with access to the courts. (briefs and arguments).

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State v. Eriksen, No. 80653-5 (briefs and arguments). The state Supreme Court says that tribal police officers can pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation.

A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. He began following the vehicle and activated his emergency lights. After traveling a quarter mile the car pulled into a gas station located off the reservation. The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat. The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.

Ms. Eriksen was convicted for DUI. The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation. The Supreme Court agreed to hear the case to resolve this issue of first impression.

The Supreme Court said that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws. Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in hot pursuit of a violator. The court said this doctrine should apply to sovereign tribal nations as well. “The Lummi Nation Police Department has authority under the Lummi Nation’s sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, to enforce its laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”

Justice Richard Sanders wrote the unanimous opinion of the court.

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The Supreme Court will issue several opinions tomorrow.

Kappelman v. Lutz, No. 80996-8, (briefs and arguments). Theodore Lutz was involved in a motorcycle crash and injured Amber Kappleman, who was his passenger. The question before the Supreme Court is whether Lutz’ lack of a motorcycle learner’s permit entitling him to carry passengers was admissible evidence of negligence in an action brought against him by Kappelman.

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1 (briefs and arguments). RCW 7.70.150 requires medical malpractice plaintiffs to file a certificate of merit from an expert along with the complaint. The question here is whether this requirement violates separation of powers principles and state constitutional provisions prohibiting special laws and ensuring open access to the courts and equal privileges and immunities.

State v. Eriksen, No. 80653-5 (briefs and arguments). Whether tribal law enforcement officers have authority to pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation. Ms. Eriksen was pursued by a tribal police officer for a suspected DUI while on Lummi Reservation in Whatcom County, but the officer didn't actually stop her until they were outside the boundaries of the reservation. Eriksen was convicted for a DUI, and challenged the legality of the stop by the tribal officer.

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Retired Supreme Court Justice Sandra Day O'Connor recently spoke at Seattle University Law School, and she had some advice for Washingtonians. As the AP reports: "The first woman to serve on the U.S. Supreme Court says there's a serious problem with the government in Washington and many other states: They elect their judges." Justice O'Connor says judicial independence is threatened with the amount of money that is poured into judicial races. She questioned whether cases such as Brown v. Board of Education would have had the same ruling if those justices had to face an upcoming election.

Interestingly, Washington State Supreme Court Chief Justice Gerry Alexander, who won a hotly-contested reelection in 2006, disagreed. He said that while the process is not perfect, it has worked well in the past. Alexander said it is beneficial ("humbling") for judges to go through an election.

UPDATE: And speaking of judicial elections...the topic will be discussed today on The Conversation (KUOW 94.9 FM) at noon.

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The Supreme Court commences oral arguments today with four cases, two in the morning and two in the afternoon. (Docket, case briefs)

During this morning's session, starting at 9:00 a.m., the Court is hearing:

State v. Grenning, No. 81449-0. This case is on appeal from Division Two Court of Appeals, and originated in Pierce County Superior Court. It concerns whether restricting the defense counsel's access to hard drives that contained some of the evidence used against Mr. Grenning meant that he was deprived of the "effective assistance of counsel."

Neil Grenning was charged with seventy-one counts of child rape, possession of child pornography and related crimes, including sexually abusing a child he babysat named B.H. Part of the state's evidence against Grenning was content from his computer's hard drives, which contained nearly 40,000 images of child pornography, including pictures of B.H.

Grenning's counsel requested copies of the drives, but the court restricted him to accessing the drives in a secure location to prevent any spread of the pictures of B.H. The defense counsel argues that the restricted access prevented him from effectively representing Grenning. The Court of Appeals agreed, reversing twenty of the counts against Grenning.

In re Detention of D.F.F., No. 81687-5. This case arises out of Division One Court of Appeals, and concerns the constitutionality of Mental Proceedings Rule 1.3, which requires psychiatric commitment proceedings to be closed to the public.

D.F.F. was committed to a psychiatric facility for 90 days by a Whatcom County Superior Court, and pursuant to MPR 1.3, the proceeding was closed to the public. She appealed, arguing that the rule violates Article I, Section 10 of the Washington State Constitution, which requires justice to be administered openly.

The Court of Appeals agreed, finding MPR 1.3 unconstitutional because it included no requirement to examine the situation to determine if shutting out the public was necessary.

Briefs for this case are not available on the court's website, but the citation for the appellate court decision is 183 P.3d 302 (2008).

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

In re Stephen Cramer, No. 200,674-4. This is an appeal of a recommendation by the Washington State Bar that Cramer be disbarred. According to the Bar, Cramer failed to pay taxes and had his business license revoked. So he formed a new company, transferred the assets from the old company to the new, and continued doing business without registering the new company with the Washington Department of Revenue.

State v. Madsen, No. 81450-3. This case is on appeal from Court of Appeals Division One, and arose in King County Superior Court. The question before the Court is whether a trial court may deny a defendant's request to represent himself ("pro se").

Madsen was charged with three felony counts after he violated a no-contact order by calling his former girlfriend three times in one night. During the trial Madsen repeatedly complained about his attorney, acted disruptively, and demanded that the court listen to his motions and allow him to represent himself. But it wasn't clear to the court if he was unequivocally asking to represent himself or if he was just upset with his attorney, so the court appointed a series of new attorneys in an attempt to address his concerns.

After being convicted, Madsen's latest attorney asked for a new trial on grounds this his request for self-representation was denied. The court said no, on grounds that Madsen had never actually made an "explicit, unequivocal request to proceed pro se."

The Court will also review whether it was an abuse of discretion for the trial court to treat each of Madsen's phone calls as a separate felony for sentencing purposes. Madsen argues that the calls were all part of one act of criminal conduct.

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The Supreme Court's fall term begins this week, with oral arguments on September 15 and 17. The court may issue opinions on Thursday. As always, we'll preview arguments and review each of the court's decisions.

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Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. Eighteen-year-old Kristen Armantrout lived with her blind and diabetic mother. Kristen provided care and assistance to her mother and gave her Social Security check to the family. Kristen died due to a complication following ankle surgery. Her parents sued for wrongful death, claiming they were financially dependent on Kristen. The trial court agreed with the parents, but the Court of Appeals reversed and held that economically valuable services cannot be considered to assess a claim of financial dependence. Here, the Supreme Court unanimously reverses the Court of Appeals. The opinion by Justice Madsen distinguishes between "everyday services a child would routinely provide," and the kind of unique and potentially expensive services that had been provided by Kristen to her mother. (briefs and argument)

Seattle v. Robert St. John, No. 81992-1. After crashing his motorcycle in Seattle, Robert St. John was investigated for driving under the influence of alcohol. A police officer asked St. John to consent to a blood alcohol test, and when St. John refused, the officer obtained a warrant for the test. The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent law (RCW 46.20.308(1)) that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The Court today in an opinion by Justice Owens and joined by six other justices upholds the superior court and allows the blood test evidence. The Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer's statements about the Implied Consent law did not foreclose his obtaining the warrant. Justice Sanders, joined by Justice James Johnson, dissents. (briefs and argument).

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Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2. Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which in turn use Dot products as ingredients for products that are later sold to grocery stores and other retail outlets.

For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot paid the tax and then filed suit against the Department to recover a refund.

The Department argued that Dot should not qualify for the B&O tax exemption because its sales included non-consumer products, and some products eventually ended up in permanent retail establishments. The trial court ruled in the Department’s favor. The Court of Appeals affirmed the trial court, holding that Department’s new interpretation of the statute was reasonable.

The questions before the Supreme Court are (1) whether an out-of-state seller qualifies for the B&O tax exemption when it sells some non-consumer products, and (2) if so, does such a seller qualify for the B&O tax exemption when some of its products ultimately end up in permanent retail establishments?

The Supreme Court, with Justice Charles Johnson writing the 5-vote majority, ruled in favor of Dot Foods. The court said that the law (RCW82.04.423(1)(d) requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed. Considering the foregoing, we reject the Department’s interpretation. To do otherwise would add words to and rewrite an unambiguous statute.”

Justice Johnson took the Department of Revenue to task for its argument that its interpretation of the statute is entitled to judicial deference. “The Department’s argument for deference is a difficult one to accept, considering the Department’s history interpreting the exemption. Initially, and shortly after the statutory enactment, the Department adopted an interpretation which is at odds with its current interpretation. One would think that the Department had some involvement or certainly awareness of the legislature’s plans to enact this type of statute.”

Justice Debra Stephens and three other justices dissented, writing that the out-of-state exemption from the B&O tax should be interpreted narrowly and that by allowing Dot Foods to claim the exemption the majority decision “expands the exemption well beyond its intended scope.”

State v. Heddrick, No. 80841-4. In 2004, Steven Ray Heddrick, Jr., was charged with felony harassment. While awaiting trial, Heddrick was allegedly involved in an altercation with jailhouse staff, which resulted in a subsequent charge of custodial assault. Concerns about Heddrick’s competency for trial arose several times. Eventually the trial court determined that Heddrick was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

The Supreme Court ruled that Heddrick, through his appointed counsel, waived completion of the statutory competency procedures. Additionally, the court ruled that Heddrick did not suffer a complete denial of counsel during a critical stage in the proceedings. Justice Susan Owens wrote the unanimous opinion.

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The Supreme Court will issue opinions in at least four cases tomorrow.

Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4 (briefs and argument). Whether a child’s provision of economically valuable services to her parents can used to prove that the parents were financially dependent on the child. Eighteen-year-old Kristen Armantrout lived with her blind mother in Washington, and acted as her mother’s companion and aide in performing everyday activities. She also contributed her small Social Security check to the family budget, although the majority of the family’s money was provided by her father, who was working out-of-state. Kristen died due to a complication following ankle surgery, and her parents sued for wrongful death, claiming they were dependent on Kristen for support. The trial court found for Armantrout, but the Court of Appeals reversed, holding that economically valuable services cannot be considered when determining if there was financial dependence.

Seattle v. Robert St. John, No. 81992-1 (briefs and argument). St. John was injured in a motorcycle crash on the Alaskan Way viaduct, and was taken to Harborview Medical. While there he was arrested by a state patrol officer for driving under the influence, and was asked to consent to a blood alcohol test, without being told that a warrant would be sought if he refused. St. John did refuse, so the officer obtained a warrant to perform the test. The Implied Consent law (RCW 46.20.308(1)) indicates that once consent has been refused, the test may not be performed. But a competing statute (RCW 46.20.308) indicates that lack of consent does not prevent an officer from obtaining a warrant. The Court is being asked to reconcile these two statutes.

Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2 (briefs and argument). The question here is whether Dot Foods, an out-of-state seller doing business in Washington, should qualify for an exemption from the state business & occupation tax. The state Department of Revenue determined Dot Foods was not entitled to this exemption and the Court of Appeals agreed.

State v. Heddrick, No. 80841-4 (briefs and argument). A trial court determined that Steven Ray Heddrick, Jr., was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

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The Supreme Court has agreed to review several new cases.

• Guillen v. Contreras, No. 82531-9
• Washington Trust Bank v. River Gorge, No. 82827-0
• Internet Cmty. & Entm’t Corp. v. State, No. 82845-8
• State v. Doughty, No. 82852-1
• State v. Montano, No. 82855-5
• In re Det. of Hawkins, No. 82907-1
• State v. Moeurn, No. 82995-1
• James v. Momah, No. 82998-5
• State v. Linerud, No. 83022-3

(Additional cases have been accepted and will be added to this list when the information becomes available.)

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The Washington Supreme Court has agreed to review a Court of Appeals ruling in a case that tests whether the Washington State Gambling Act (chapter 9.46 RCW) applies to an Internet gambling site. The case is Internet Community & Entertainment Corp., d/b/a Betcha.com v. State.

In 2007, the company was informed by agents of the Washington State Gambling Commission that Betcha.com was engaged in illegal professional gambling. The company sued the state seeking a  declaratory judgment that its social wagering site does not violate state law. Betcha.com lost at the trial level. On appeal, the Court of Appeals held that because Betcha.com customers agreed in advance that participants were not required to pay their losses, Betcha.com was not engaged in "gambling" as defined in the Gambling Act. The state appealed, and the case now goes to the Supreme Court.

The court agreed to hear several other cases which we'll post shortly.

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This episode we plan an employee coup d'etat and debunk myths about double jeopardy.

Supreme Court of Washington Podcast (RSS) - Don't do it, Ashley Judd!

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City of Spokane v. Rothwell, No. 81271-3. Two men convicted of DUI in the city of Spokane appeal and challenge that the judge who presided over their cases lacked jurisdiction. Although the city operated a municipal court, all of their judges were borrowed from Spokane County District Court. Defendants allege that RCW 3.46.050 and 070 (repealed in 2008) required that municipal court judges be elected from within the city limits. The Court of Appeals overturned the convictions. Here, the Court unanimously reverses the court below and reads the conflicting statutes to require that the election be limited to the city only for full-time and not part-time municipal court judges. The latter must be elected, but from what district is not specified by statute. Justice Jim Johnson wrote the Court's opinion. (briefs and argument)

In Re Forfeiture of One 1970 Chev. Chevelle and One 2004 Nissan Sentra, No. 81116-4. Thomas Roos was using both of his parents' cars for trafficking illegal drugs, presumably to cut overhead costs and pass the savings on to his customers. During one of four arrests in the summer of 2005, police seized the vehicles pursuant to RCW 69.50.505. His parents appeal the seizure based on the "innocent owner" exception. That provision allows a property owner to prevent seizure upon showing that the crime was done "without the owner's knowledge." The courts below rejected this argument, but the Court today reverses those decisions and sides with the parents. The majority opinion by Justice Charles Johnson and joined by four other justices notes that statutes often use language like "actual or constructive knowledge" or "knows or has reason to know." The Legislature did not extend "knowledge" in this statute, thus a property owner is not required to show that he had no reason to know of the illegal activity, only that he actually did not know.

Justice Madsen, joined by Justices Owens, Fairhurst, and Jim Johnson, concurs as to the Sentra and dissents on the Chevelle. "Because the Rooses did not take steps to prevent Thomas' use of the second car, the Chevelle, even after they knew of his arrest in the Nissan with a 110-gram brick of cocaine, I would uphold the hearing officer's forfeiture of the Chevelle."(briefs and argument).

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State v. Bobenhouse, No. 81413-9. Phillip Bobenhouse was convicted on multiple counts of first degree rape of a child and first degree incest based on evidence that he forced his two minor children (referred to as “John” and “Jane”) to have sexual intercourse with each other and that he committed sexual acts with his son. The trial court imposed a sentence of up to life with an exceptional minimum sentence of 600 months on each rape count, to run concurrently. The Court of Appeals affirmed the convictions and the exceptional minimum sentence imposed by the trial court.

A unanimous Supreme Court, with Justice Charles Johnson writing the opinion, rejected all of Bobenhouse’s claims.

Bobenhouse argued that no crime could have occurred by forcing his two children to have sexual intercourse with each other as both children were less than eight years old and incapable of committing a crime, under the statute. He argued that under the statute it is not a crime for a person to force (and watch) two children to have sexual intercourse with each other.

The Court rejected this argument, noting that a person can be convicted as a principal. The Court said that implied in the statute dealing with the rape of a child is that the perpetrator is defined as one who causes the other person to engage in the act amounting to rape of a child in the first degree. “Had Bobenhouse engaged in this conduct himself, it would have constituted the crimes of rape of a child in the first degree and incest in the first degree. Put otherwise, because of his legal accountability for John and Jane, Bobenhouse was the “perpetrator” in this case and, therefore, was acting as an accomplice in committing first degree rape of a child and incest against John and Jane.

Bobenhouse also argued that the trial court erred by failing to provide the jury with a unanimity instruction regarding the rape of John directly by Bobenhouse. (In order to convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act.) The Court determined that the trial court’s failure to instruct the jury on the unanimity was a harmless error that did not warrant reversal.

Bobenhouse finally argued the trial court erred by imposing an exceptional minimum sentence, and that it was error for the trial court, rather than the jury, to determine the aggravating factors. The Court noted that it previously held that case law “does not prohibit judicial fact finding when the trial court imposes either an indeterminate sentence of life or a minimum sentence within that life sentence.”

State v. Kyllo, No. 81164-4. This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense. Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal Kyllo asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion. The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured—“One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

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Tomorrow the Washington Supreme Court will issue rulings in the following cases.

City of Spokane v. Rothwell, No. 81271-3 (briefs and argument). The question in this case is whether a district court judge had jurisdiction over municipal court criminal trials. The City of Spokane had a system where, instead of electing separate municipal judges, they “borrowed” judges from Spokane County District Court. These judges were elected as district court judges, and citizens from the entire county voted on their elections. But under Washington law, only city voters may vote for municipal judges.

Henry Smith and Lawrence Rothwell were charged in municipal court with DUI-related offenses. They moved to dismiss for lack of jurisdiction, because Judge Patti Walker was elected in a county-wide election in violation of state law. Judge Walker denied these motions, and was upheld by the superior court. On appeal, the City argued that it “substantially complied” with the statute because a majority of city voters voted for Judge Walker. The Court of Appeals disagreed, stating that “RCW 3.46.070 is clear and unambiguous. Only city voters shall vote for municipal judges designated as such by the county auditor. We must read the statute literally.” The Court of Appeals overturned the lower court decisions and reversed the convictions.

In Re Forfeiture of One 1970 Chev. Chevelle and One 2004 Nissan Sentra, No. 81116-4 (briefs and argument). If the state discovers a car is used for the trafficking of drugs, the state can move for the forfeiture of the vehicle. If the actual owner of the vehicle was not aware the car was used for that purpose, or had not consented to such use, that person can avail himself of the “innocent owner” exemption to vehicle forfeiture. The question in this case is the meaning of “knowledge” and whether the innocent owner must prove lack of knowledge about the illegal use.

State v. Bobenhouse, No. 81413-9 (briefs and argument). This case 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.”

State v. Kyllo, No. 81164-4 (briefs and argument). This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.

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