This episode we cover the month’s noteworthy cases and Chief Justice Gerry Alexander joins us to reflect on his nine year tenure as chief.
Supreme Court of Washington Podcast (RSS) - Interview with Chief Justice Alexander.
Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9. Both Scott Winebrenner and Jesus Quezada were arrested multiple times for driving under the influence. Each had a deferred prosecution agreement from one arrest which they violated with a subsequent arrest. The question is whether the subsequent offense constituted a "prior offense" at the time of sentencing. The Court holds that RCW 46.61.5055's use of "prior offense" is ambiguous because it is "subject to more than one reasonable interpretation." The rule of lenity requires "that an ambiguous criminal statute cannot be interpreted to increase the penalty imposed." The Court unanimously holds that offenses committed after the original offense are not "prior offenses" and cannot be considered at sentencing for the original offense. Justice Chambers wrote the lead opinion. Justice Madsen, joined by Justices Charles Johnson and Fairhurst, concurs in the result but believes the statute unambiguously requires it. (briefs and argument)
Kitsap County Deputy Sheriff's Guild, et al. v. Kitsap County, et al., No. 80720-5. Kitsap County Sheriff's Deputy Brian LaFrance was fired after he allegedly became unstable and dishonest with his superiors. The County had previously entered into a collective bargaining agreement with the Deputy Sheriff's Guild that allowed the Guild to file a grievance and put the matter into binding arbitration. The arbitrator found that the county had proven the 29 charges against LaFrance but had not shown that dismissal was the appropriate remedy and ordered his reinstatement. It did not order back pay, but did require that he be provided retroactively the benefits that he would have received if he had remained a deputy and unemployment benefits.
The Guild alleges that because the arbitrator ordered LaFrance's reinstatement, the County is obligated to pay LaFrance's back pay. The County challenges that the arbitrator's order is unenforceable because it "violate[s] an explicit, well defined, and dominant public policy." The Court today, in an opinion by Justice Owens, holds that even if "the arbitrator's decision was not good public policy," the County failed to show that it contravened a clear public policy. Collective bargaining agreements and arbitration clauses, the Court suggested, should be deferred to where possible to protect parties' freedom of contract. The Court also upholds the arbitrator's refusal to provide back pay to LaFrance.
Justice James Johnson dissents, finding a sufficient public policy interest exemplified in the law enforcement officer's "oath to truly, faithfully, and impartially perform his duties," that he would overturn the arbitrator's decision to reinstate LaFrance. He is joined by the Chief Justice and Justice Pro Tem. Teresa Kulik. (briefs and argument)
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State v. Webb, No. 81314-1 (briefs and argument). Seattle radio personality Mike Webb was convicted of filing a fraudulent insurance claim in 2007 and was ordered to pay certain financial penalties. He filed a timely notice of appeal. While the appeal was pending Mr. Webb was tragically murdered and his body was discovered in the crawl space under his home about two months after his death. Mr. Webb’s attorney filed a motion in the Court of Appeals to abate the appeal and the underlying conviction and financial obligations. The Court of Appeals denied the motion, relying on past cases that dealt with the death of a criminal defendant.
The Supreme Court reviewed the question to determine whether the deceased defendant’s right to appeal requires that the conviction be abated. The Court held that appellate rules allow for the substitution of parties on appeal, which would be the appropriate method for heirs to challenge any financial obligations imposed on the defendant. Consequently, the Court ruled that as Mr. Webb died during his appeal, his heirs could be substituted. If no motion for substitution is filed, the Court directed that the appeal be dismissed and the conviction and all financial obligations shall remain in effect.
The Court reversed the Court of Appeals and remanded the case to allow for a substitution of parties. Justice Barbara Madsen wrote the opinion of the Court. Justice Richard Sanders dissented, criticizing the practical difficulties the decision created. “Obviously the substituted heir would not be subject to the same criminal penalties of the deceased defendant, and therefore, it is a stretch to say that ‘the interest of a party in the subject matter of the review has been transferred.’”
Today the Court will hear argument in four cases (docket, briefs).
In the morning session, beginning at 9:00 a.m., the Court will hear:
In Re PRP of Rainey, No. 81244-6. Shawn Rainey was convicted of first degree kidnapping after kidnapping his daughter to inflict extreme emotional distress on his wife. A lifetime no-contact order with his child was imposed as part of his sentence. Rainey argues this order exceeds the standard sentencing range, which is not allowed without aggravating factors. The Court of Appeals disagreed, holding that “[c]rime related no-contact orders may last for the statutory maximum,” which is life for first degree kidnapping.
Lake v. Woodcreek Homeowners Association, No. 81873-8. Sandra Lake and Glen Clausing are neighbors at Woodcreek Condominiums. Clausing, with Woodcreek's approval, built a “bonus room” over his garage. This converted common area (the airspace over the garage) into apartment area. It also interfered with Lake's view. Lake sued Clausing and Woodcreek, claiming that the law requires unanimous consent by the condominium owners to convert common area to apartment. Woodcreek and Clausing argue that unanimous consent is only required if the condominium declaration is amended, which did not happen here.
Then in the afternoon session, beginning at 1:30 p.m., the Court will hear:
State v. Kelly, No. 82111-9. Whether a firearm sentence enhancement is constitutional where use of a firearm is an element of the underlying crime. Dustin Kelly approached a couple, threatened to kill them both, and then shot at them, killing the man. In addition to murder, he was convicted of second degree assault (intentional assault with a deadly weapon). The court imposed firearm sentence enhancements on both crimes.
Kelly argues that since the use of the firearm is already an element of second degree assault, imposing the sentence enhancement on the assault essentially punishes him twice for using the firearm. He says that this violates the double jeopardy provisions of the state and federal constitutions.
State v. Aguirre, No. 82226-3. Daniel Aguirre was convicted in Thurston County Superior Court of assault and rape. He unsuccessfully appealed to the Court of Appeals (Div. 2), arguing that a number of errors occurred at trial, including a deadly weapon sentence enhancement (similar to the issue presented in State v. Kelly).
The Supreme Court will issue opinions in at least three cases tomorrow.
Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9 (briefs and argument). These consolidated cases are up on appeal from the Court of Appeals (Div. 1), and concern the question of whether current law allows DUI sentences to be increased based on multiple offenses committed within seven years of the present offense, or just those committed in the prior seven years. Both Winebrenner and Quezada had multiple DUI incidents within a seven year period, and their level of sentencing depends on how the law requiring increased sentences for “prior offenses within seven years” is applied.
Kitsap County Deputy Sheriff's Guild, et al. v. Kitsap County, et al, No. 80720-5 (briefs and argument). Whether an arbitrator’s award reinstating a police officer who was terminated for erratic conduct and acts of dishonesty is unenforceable as contrary to public policy.
State v. Webb, No. 81314-1 (briefs and argument). On appeal from the Court of Appeals (Div. 1), the question is how a criminal case on appeal should be reviewed when the defendant dies while the appeal is pending. Well-known KIRO-AM radio host Mike Webb was convicted of a fraudulent insurance claim, which he appealed. While the appeal was pending Webb was murdered in his home. When his body was finally two months later, his attorney asked the Court of Appeals to dismiss the conviction or at least review the appeal for meritorious issues. The Court disagreed, affirming the conviction and the accompanying fines, court costs and restitution. Webb’s counsel appealed.
Today the Court will hear argument in only two cases, both criminal matters. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
State v. Kintz, No. 81688-3. On appeal from Division One Court of Appeals, this case originated in Whatcom County Superior Court. It concerns whether multiple contacts with a person over a short period of time constitute "separate occasions" for the crime of stalking.
Kintz followed female pedestrians on several occasions, passing them in his van and then turning around to pass them again. He stopped one woman several times to ask for directions and whether she needed a ride. He was convicted for stalking in Superior Court, but argues that the multiple passes in his van constitute single occasions, not satisfying the requirement for "two or more separate occasions" of following or harassing. The Court of Appeals confirmed Kintz's conviction.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
State v. Erickson, No. 81594-1. This case originated in Snohomish County Superior Court, and went up to Division One Court of Appeals. Issuing an arrest warrant normally requires probable cause, and the issue in this case is whether a warrant for failure to appear at a probationary hearing requires probable cause that probation has been violated, or if it can rest on evidence of the underlying crime that led to incarceration/probation.
Erickson was convicted of fourth degree assault and released on probation, but his probation officer claimed that he violated the terms of his probation agreement. Erickson was summoned to a probation hearing, failed to appear, and an arrest warrant was issued. Upon arrest he was found with drugs on him and convicted of possession. He appealed, claiming the arrest warrant was invalid because there was no probable cause that he had violated probation (only the officer's word). But the Court of Appeals decided the warrant was valid because it was for failure to appear and related back to the original crime of assault, for which there was certainly probable cause.
In re Det. of Fair, No. 80498-2. David Tyler Fair was charged with molesting several young girls, plead guilty to one count of second degree child molestation, and was sentenced to 20 months in prison. The sentence was suspended as part of a Special Sex Offender Sentencing Alternative (SSOSA). Fair failed to meet the requirements of that sentence, committed a robbery, then fled the state. Eventually, after being imprisoned in New Mexico, Fair was returned to Washington to serve his original sentence and the robbery sentence. In a treatment program, he admitted numerous other sexual contacts with children between 2 and 12 years old. The State petitioned to have Fair committed as a sexually violent predator.
Fair challenged his commitment, arguing that the State was required to "plead and prove a recent overt act." The Court today holds that the Sexually Violent Predator Act (RCW 71.09) only requires the state to prove a recent act if the person is not incarcerated. The Court further holds that this interpretation of the Act does not violate Fair's right to due process, in part because "due process does not require that the absurd be done before the compelling state interest can be vindicated." Justice Jim Johnson wrote the lead opinion, joined by Justices Madsen and Owens. Justice Fairhurst, joined by Justice Charles Johnson, concurs, but offers a slightly different analysis.
Justice Sanders, joined by the Chief Justice, dissents, arguing that the statute plainly requires that a person must be in total and continuous confinement following the original sex offense. Because Fair was originally released and only later incarcerated, and because he was actually serving only the robbery sentence at the time of the commitment proceedings, the dissent would require the state to plead and prove a recent overt act. Justice Chambers joined the dissent, but only as to the result.
In re Pers. Restraint of Duncan, No. 81230-6. Bryan Duncan challenges his commitment as a sexually violent predator based on several evidentiary rulings of the trial court. Duncan was convicted of three counts of first degree child molestation in 1992 and 1993. The State moved to commit him in 1996 and he was finally committed in 2005 (the Court notes that the nine-year delay is troubling, but was mostly attributable to Duncan and was not raised as an issue). Duncan challenges the trial court's admission of evidence that he refused a psychological evaluation and its refusal to allow Duncan to present evidence about the treatment program at the Special Commitment Center and about his proposed roommate if he was released.
The Court today holds, in an opinion by Justice Chambers, that the trial court did not abuse its discretion in the evidentiary rulings. Justices Charles Johnson, Madsen, Owens, Fairhurst, and Jim Johnson and Justice Pro Tem. Philip Thompson joined the majority opinion.
Justice Sanders dissents, arguing that allowing the reference to Duncan's refusal to be reevaluated was "irrelevant and prejudicial." He would also find the refusal to allow Duncan's evidence about his proposed roommate after the state had introduce its evidence about the roommate to be reversible error. The Chief Justice, in a separate dissent, agrees with Sanders except that he would find the trial judge "impermissibly commented on the evidence by stating to the jury that Duncan 'did not wish' to be reevaluated."
State v. Patton, No. 80518-1. Randall Patton was wanted on a felony warrant when a Skamania County Sheriff Deputy spotted him. Patton was leaning into his own car through the window, rummaging with something on the seat. The Deputy told Patton he was under arrest and Patton fled, but was soon apprehended inside a trailer. Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals. Today, the Supreme Court unanimously sides with Patton and the trial court.
The Court first disagrees with the trial court, which had found that Patton was not arrested until he was taken into custody in the trailer. He was arrested when the officer "manifest[ed] an intent to take [him] into custody" while Patton was standing by his car. Nevertheless, "the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence."
The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.
Justice Stephens wrote the majority opinion, joined by all other justices except for Justice Jim Johnson, who concurred but found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.
Thompson v. Hanson, No. 81311-6. The Court resolves a dispute between the Courts of Appeals over Washington's Uniform Fraudulent Transfer Act (UFTA). Division Three had held that a creditor can only enforce their rights against a transferee who has received fraudulently conveyed property from a debtor if the transferee had "intent to hinder or delay [the] creditors." Today, the Court unanimously eschews that position and upholds a Division One ruling that no proof of intent is required by the UFTA. Justice Owens writes the main opinion and Justice Madsen concurs, but would not have reached one of the issues (the "offset" provision) addressed by Owens.
Today the Court will hear oral argument in three cases, two in the morning and one in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Shoemake v. Ferrer, No. 81812-6. On appeal from Division One Court of Appeals, this case originated in King County Superior Court. It concerns whether damages in a legal malpractice claim should be reduced because of a contingency fee agreement, and whether attorney fees can be awarded for acts of bad faith that happen prior to the start of litigation.
Andrea Shoemake was hit by a drunk driver and retained Douglas Ferrer to file a lawsuit for her, agreeing to give him a 40% contingency fee (i.e. Ferrer would get 40% of any damages). Ferrer filed the complaint, failed to appear for trial, and the case was dismissed. For eight years he told Shoemake that the case was simply backlogged in court. She eventually discovered the truth and sued for malpractice.
The Superior Court awarded damages to Shoemake for malpractice, but reduced the award by the 40% she would have paid to Ferrer. She also received attorney fees for the malpractice suit costs because Ferrer had acted in bad faith. The Court of Appeals reversed these two decisions, finding that Shoemake was not fully compensated if she had to pay Ferrer's 40% plus the costs for her new attorney, and finding that attorney fees cannot be awarded for bad faith acts that occur prior to the start of litigation.
Clayton v. Wilson, No. 81920-3. On appeal from Division One Court of Appeals, this case also originated in King County Superior Court. It concerns whether a couple's community property is liable for the intentional wrongful sexual acts of one spouse perpetrated on someone employed to take care of the community property.
Without his wife's knowledge, Mr. Wilson repeatedly sexually abused a neighbor boy, Andrew Clayton, whom he was paying to do yard work at the Wilson's home. When Mrs. Wilson found out she obtained a divorce and 90% of the community property. Clayton sued, and the entire community was found liable because the assaults occurred while Clayton was working for the community.
The trial court also found evidence of fraud in the extremely lopsided division of marital property, and voided the transfer.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
Renner v. City of Marysville, No. 81959-9. On appeal from Division One Court of Appeals, this case originated in Snohomish County Superior Court. The primary issue is whether a lawsuit can be dismissed if the originating party failed to include in his claim all the information required by the filing statute.
Renner was fired for misconduct from his job as Network Administrator for the City of Marysville. He sued for wrongful termination, but failed to include 1) a specific damage amount, and 2) his address for the prior six months. The City successfully moved to dismiss the case for failure to comply with the filing requirements. The Court of Appeals reversed, finding the Renner had substantially complied with the rules.
Today the Court will hear arguments in four cases, two in the morning and two in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear:
Kustura v. Department of Labor, No. 81478-3. The appellants challenged several decisions by the Department of Labor & Industries, all of which were decided in the Department's favor by Division One Court of Appeals and consolidated on appeal to the Supreme Court. The question before the Court is whether L&I is constitutionally required to provide interpreters to persons with limited proficiency in English.
Kustura and the other appellants are all workers with limited English skills who had hearings before L&I. Interpreters were provided for some parts of the hearings, but not all, such as for communication with attorneys. Kustura claims this violated his due process rights. The Court of Appeals disagreed, determining that L&I is not required by statute to provide interpreters and finding no evidence of actual harm from the lack of interpreters.
This case attracted lots of attention, with amicus briefs filed by the ACLU, Washington State Assoc. for Justice, Washington State Court Interpreter and Translator Society, Washington Self-Insurer Association, Washington State Trial Lawyers Association Foundation, and the Northwest Justice Project.
Affiliated FM Insurance Company v. LTK Consulting Services, No. 82738-9. This case originated in King County Superior Court, from where it was removed to federal district court, appealed to the Ninth Circuit Court of Appeals, and finally certified to the state supreme court. It concerns whether the monorail operating agreement between the City of Seattle and Seattle Monorail Services made the latter enough of an "owner" of the monorail to sue a third party for damages caused to the monorail in a fire.
Affiliated FM provides insurance for the Seattle Monorail Services, which operates the monorail under an agreement with the monorail's owner, the City of Seattle. In May 2004 a fire broke out under a "Blue Line" train, allegedly caused by an electrical short that occurred because of improper wiring performed by LTK Consulting in 2002. Affiliated sued LTK for negligence.
The federal district court dismissed the claim for two reasons. First, because the agreement between the City and the Monorail Services did not make Monorail Services enough of an owner of the monorail to have legal standing to sue a third party for damages to it. Second, because the court found that the economic loss doctrine applied to the case, meaning that Affiliated cannot sue for a tort like negligence, but only for a contractual breach.
In the afternoon session, starting at 1:30 p.m., the Court will hear:
State v. McCuistion, No. 81644-1. On appeal from Division Two Court of Appeals, this case originated in Pierce County Superior Court. It concerns whether a statute that prescribes the type of evidence sexually violent predators can use to show they qualify for a release hearing is constitutional.
McCuistion is a sexually violent predator who is committed indefinitely to a mental institution. State law permits him to have a release hearing (to determine if he is eligible for release) if he can clearly demonstrate (show prima facie evidence) that he is no longer a sexually violent predator. The types of evidence that can be used are limited, and the state is allowed to rely on annual psychiatric reviews. McCuistion appeals the evidence restrictions as unconstitutional.
John Lallas v. Skagit County, No. 81672-7. On appeal from Division One Court of Appeals, this case arose in Skagit County Superior Court. It concerns whether a sheriff's deputy has immunity from being sued for damages caused by a prisoner in her charge.
Lallas worked as a security guard at the Skagit County Courthouse. Sheriff's Deputy Deanna Randall was escorting a prisoner at the courthouse who ran away after she failed to handcuff him. Lallas tried to block the prisoner and got injured in the process. He sued the county, who claimed quasi-judicial immunity for Randall because she was carrying out a judge's orders to escort the prisoner. The Court of Appeals reversed, holding that immunity did not apply because Lallas was suing Randall for how she carried out the order, not for the order itself.
The Supreme Court will hear arguments this week on Tuesday and Thursday, and will likely issue opinions on Thursday (Oct. 22).
The good folks over at Real Lawyers Have Blogs profiled our Supreme Court of Washington Blog yesterday. Read the Q&A for details about our experience so far. And thanks to all our readers who give us the motivation to keep writing.
State v. King, No. 80948-8. Tyler King was riding his motorcycle southbound on Interstate 5 north of Vancouver city limits when he was stopped and issued a criminal citation for reckless driving by Vancouver police officer Jeff Starks. King had stood up on the pegs of his motorcycle, looked at the vehicle he was approaching, and accelerated to pass the vehicle. King and Starks both testified at the trial, offering different interpretations of the facts. Starks offered opinion testimony that King's driving had been reckless, which King's attorney did not object to at trial but then raised on appeal. King also challenged that the officer was outside of his jurisdiction without an interlocal agreement and without satisfying the statutory emergency exception.
Yesterday, the Supreme Court sided with King and held that Starks did not have jurisdiction to issue the criminal citation. The Court, in an opinion by Justice Sanders and joined by four other justices, determines that Stark's interpretation of King's actions would not have constituted "an emergency involving an immediate threat to human life or property."
King did not nearly hit another car, nor run a light, nor weave across traffic lanes. He did not pop a wheelie, cut off another car, nor, for that matter, drive in reverse along the shoulder. At most, King glared at the driver of the large truck, stood on his foot pegs for three to five seconds, and accelerated at high speed past the truck. As aforementioned, Starks could not verify that King accelerated away at what he thought was 100 m.p.h. Even so, the officer testified King slowed down as he approached other traffic and pulled over immediately when Starks signaled him to do so.
The majority concludes that the trial court was wrong to simply take the definition of reckless driving and assume that it "automatically fit within the emergency exception." The majority also suggests that the Court of Appeals erred in concluding that the opinion testimony issue was foreclosed by the lack of an objection at trial. Justice Chambers, who signed the majority opinion, wrote separately to respond to the dissent. Justice Fairhurst, joined by Justice Madsen, concurrs while arguing that "it is unnecessary to discuss, even as dicta, the officer's opinion testimony."
The Chief Justice, joined by Justice Owens, dissents.
Post v. City of Tacoma, No. 80684-5. The City of Tacoma levied hundreds of thousands of dollars in fines against Paul Post for multiple building code violations. Tacoma's procedures only allowed Post to appeal the initial fine for a particular violation and not subsequent fines issued for the same violation. He appealed many of the fines, losing at every level. The Court of Appeals held "that all Post's claims were barred because he failed to follow the procedures in the Land Use Petition Act (LUPA)."
Today, the Supreme Court overturns the Court of Appeals and holds that LUPA does not apply to the use of "civil infractions" that levy fines to enforce a building code. Further, the Court agrees with Post that due process requires that he "must have an opportunity to be heard on each separate infraction, even if they are issued (i.e., penalties are being assessed) daily for the same violation." Tacoma's process at issue here is held facially unconstitutional. Justice James Johnson wrote the majority opinion, joined by Justices Sanders, Chambers, Owens, and Stephens.
The Chief Justice concurs as to the result, arguing that the court should have avoided the constitutional question and struck down Tacoma's process as a regulation "in conflict with general laws." Justice Sanders, who joins the lead opinion, also writes separately to concur with the Chief. Justice Madsen writes a vigorous dissent, joined by Justices Fairhurst and Charles Johnson, arguing that LUPA does apply.
The Supreme Court has rejected a public records request for local court documents, ruling that the court system is not subject to the state's Public Records Act.
David Koenig requested records from the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hartl and correspondence to and from presiding Federal Way Municipal Court Judge Michael Morgan. The City of Federal Way provided 183 pages of documents but refused to provide Judge Morgan’s correspondence. The City asserted that the court was not subject to the Public Records Act, which gives the public access to documents held by government agencies. The trial court agreed, and Koenig appealed to the Supreme Court.
The Supreme Court today, with Justice Susan Owens writing the 6-3 majority, upheld the trial court. The court reaffirmed its ruling in Nast v. Michels (1986), in which the court held that the PRA does not apply to court case files because the judiciary is not included in the PRA's definition of “agency.” Koenig had argued that Nast only applied narrowly to internal case files, but should not be extended to administrative court records. The court disagreed. Justice Owens wrote: “This court has already ruled on the issue of whether the judiciary is subject to the PRA, and Koenig has not demonstrated that the established rule is incorrect and harmful. Therefore, we affirm the trial court’s holding that the PRA does not require the City to release the requested judicial records because the PRA does not apply to the judiciary.”
Justice Pro Tem Kevin M. Korsmo concurred in a separate opinion, writing that in his opinion Nast was decided improperly but the court was bound by its previous decisions until the legislature chooses to amend the PRA to extend to the judiciary.
Justice Debra Stephens, along with Chief Justice Alexander, dissented, arguing that court clearly fall under the statute. “In my view, Nast should be read narrowly as construing the Public Records Act (PRA) within the context of the records at issue there: court case files. Accordingly, it does not bind us to an interpretation of the current act, chapter 42.56 RCW, that categorically excludes the judicial branch of government from the mandate for open government. Because I believe our branch of government is an ‘agency’ subject to the strictures of the PRA, I respectfully dissent.”
Tomorrow the Supreme Court will issue a ruling that could result in the most significant expansion of the state’s Public Records Act since the act was adopted in 1973. The issue in City of Federal Way v. Koenig, No. 82288-3, is whether some or all court records are subject to disclosure under the Public Records Act.
David Koenig requested records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl and correspondence of Judge Michael Morgan. The city determined that several court records were not disclosable. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels (1986), where the Supreme Court held that courts are not “agencies” under the Public Records Act. Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.
Also up for tomorrow: Post v. City of Tacoma, No. 80684-5 (whether a city’s assessments of monetary penalties for building code violations constituted “land use decisions” subject to the Land Use Petition Act) and State v. King, No. 80948-8 (whether a policy officer was justified in stopping a motorcyclist outside the officer’s jurisdiction when the officer observed the traveling motorcyclist stand momentarily on his foot pegs, look at a vehicle next to him, and accelerate away at high speed).
The Court will hear four cases today, two in the morning and two in the afternoon. (Docket, briefs)
In the morning session, starting at 9:00 a.m., the Court will hear arguments for:
In re the Personal Restraint Petition of James Grantham, No. 82194-1. This case is up from Division Two Court of Appeals, and concerns whether the Department of Corrections violated Grantham's due process rights by refusing to give him access to evidence used against him in a prison disciplinary hearing.
Grantham is an inmate at McNeil Island prison, and was charged with violating rules when a correctional officer was caught smuggling tobacco and marijuana to him. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. Grantham was given notice of the disciplinary hearing where he was charged, but the notice didn't contain the dates and times of his alleged violations. He also requested a copy of the phone record on which the charges were based, which was refused. He appeals for violation of due process due to this lack of evidence.
The Court of Appeals denied Grantham's petition, but the Supreme Court granted discretionary review.
State v. Rhone, No. 80037-5. This case is on appeal from Division Two Court of Appeals and originated in Pierce County Superior Court. It concerns whether using a peremptory challenge to remove the sole minority member of a jury is racially discriminatory on its face without any other evidence.
Rhone, a black man, was charged with robbery and drug possession. The jury selected to hear his trial contained only two black members. One was dismissed "for cause" with the agreement of both parties, but the second was excused with a peremptory (without cause) challenge by the State. Rhone challenged the panel, arguing that the peremptory challenge showed racial discrimination on its face. The trial court disagreed based on the lack of other evidence of intent to discriminate. The appeals court also disagreed with Rhone.
In the afternoon session, starting at 1:30 p.m., the Court will hear arguments in:
State v. Boss and Pelts, No. 81897-5. On appeal from Division One Court of Appeals, this case originated in King County Superior Court. It concerns whether the defendant was prejudiced by two errors made by the judge in his instructions to the jury.
Child Protective Services obtained an order to take custody of Cynthia Boss's daughter due to "imminent risk of harm," but Boss refused to cooperate and moved to Texas. She was eventually found and charged with custodial interference. One element of this crime is that the other party (CPS in this case) has a legal right to the child, which CPS showed by offering the original order giving them custody of the child. The judge told the jury that CPS had a legal right to the girl, but Boss argued this was in error because the validity of the order had not been proven. The Court of Appeals agreed with Boss, but held it was a harmless error.
Boss also argues that her knowledge of CPS' legal right to custody is an element of the crime, but the judge did not include that in his instruction to the jury.
In re the Dependency of Colton Singleton, No. 81720-1. On appeal from Division Three Court of Appeals, this case originated in Ferry County Superior Court. It concerns whether there is sufficient evidence to terminate parental rights.
Amy Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. She argues that the evidence is insufficient to justify the court's determination.
Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3. Abbey Road Group intended to build a 575-unit condominium complex in Bonney Lake. On October 12, 2005, Abbey Road filed a site plan application ("Commercial or Multi-family Site Plan Review Application Form Type 3 Permit").
Later that day, the City passed an ordinance down-zoning Abbey Road's property from commercial to "Residential/Conservation District." Abbey Road appealed, alleging that their development rights had vested with the filing of the site plan application. The hearing examiner disagreed, finding that development rights could not vest until the filing of a building permit application (RCW 19.27.095). The Superior Court reversed and then the Court of Appeals reinstated the hearing examiner's ruling in favor of Bonney Lake.
The Court today upholds the Court of Appeals with a lead opinion by Justice Charles Johnson, joined by Justices Owens and Stephens. The opinion upholds the statutory rule and refuses to allow development rights to vest before the filing of a building permit. A concurrence by Justice Madsen, joined by Justice Fairhurst, suggests that Abbey Road should have prevailed if it had filed a building permit application at the same time it filed the site plan application, even though Bonney Lake indicates that a building permit application is only complete if it includes an approved site plan.
Justice Sanders dissents, joined by the Chief Justice and Justices Chambers and James Johnson.
The problem with the lead and concurring opinions is not only that they come to the wrong conclusion, but they muddle and finesse an area of the law where certainty is critical. The State and localities have a great deal of discretion to determine by ordinance what the rules shall be. But the property owner has a constitutional right to proceed under current ordinances by submitting a complete building permit application to vest its rights at any time of its choosing. When the government prevents him from doing this, it deprives the developer of his property without due process of law.
(briefs and arguments, LibertyLive.org: Is land development really against the "public interest"?)
In Re Detention of Strand, No. 80570-9. In 1992, John Strand was convicted of first degree child molestation and resisting arrest and sentenced to 150 months imprisonment and 36 months in community placement. Prior to his release, the state conducted a mental health evaluation that was subsequently used as evidence to commit Strand under the State's sexually violent predator statute (RCW 71.09.025). Strand challenged the use of the mental health evaluation, alleging violations of the statute, violations of his right to counsel, and that the State failed to prove his statements were voluntary. The Court, in an opinion by Owens and joined by four other justices, rejects all of Strand's claims and upholds his commitment. Sanders, joined by three other justices, strongly dissents. (briefs and arguments).
In re Personal Restraint Petition of Pullman, No. 80834-1. (majority, concurrence)
Issue: Whether the Department of Corrections violated Pullman’s due process rights by raising the inmate’s risk classification level without providing advance notice and an opportunity to challenge the proposed reclassification.
Court ruled: Unanimously against Pullman, denying his petition. Decision was written by Justice Madsen, joined by seven other justices. Justice Sanders wrote a concurrence.
Court's reasoning: Department of Correction's decision to raise Pullman's risk classification, thus denying him the possibility of a 50% reduction in his prison sentence, was not a violation of due process. The statute allowing the reduction does not create a right ("liberty interest") which must be protected by due process. Prisoners cannot count on receiving the reduction. Pullman could only expect that DOC would follow its establish procedure in reviewing his eligibility for the reduction, including an opportunity for him to appeal the decision, which the Department did.
In his concurrence, Justice Sanders writes that the statute does create a liberty interest, but that the resulting due process rights are minimal and were satisfied by DOC's appeal procedure.
State v. Iniguez, No. 81750-2. (majority, dissent)
Issue: Whether an eight-month delay in the defendant's trial violated his constitutional right to a speedy trial. Iniguez was convicted of robbery, but only after his trial was delayed multiple times due to scheduling conflicts, a mistrial and the combining of Iniguez' trial with that of his partner in the robbery.
Court ruled: Five to four against Iniguez, holding there was no constitutional violation of his right to a speedy trial. Justice Stephens wrote the majority opinion, joined by four Justices. Justice Chambers wrote the dissent, joined by three Justices.
Court's reasoning: The Court dealt first with the question of whether the speedy trial rights in Article I, Section 22 of the state constitution offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, Justice Stephens determined that there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.
While rejecting the use of a strict time period analysis to determine if a defendant's rights are presumed to have been harmed (e.g. if delay of more than 8 months), Justice Stephens found the circumstances of the delay substantial enough to presume harm to Iniguez. But upon reviewing the reasons for the delay and whether it actually harmed Iniguez, Stephens determined that the level of violation of Iniguez' speedy trial rights wasn't enough to justify dismissing his case.
In his dissent, Justice Chambers writes that the Gunwall analysis should be left for another day because it was not fully briefed or argued by the parties (only mentioned in one page of one brief). On the merits, Chambers disagrees with the weighting of the facts of the case, finding that the State hadn't justified the delay and the case should be dismissed.
The Supreme Court dealt with two cases that involved alleged violations of the constitutional right to a public trial.
State v. Momah, No. 81096-6. In 2005, Dr. Charles Momah, a gynecologist, was charged with multiple counts of rape and indecent liberties related to allegations that he had sexually violated several patients while conducting physical exams. Because of the intense media publicity surrounding the case, over 100 potential jurors were summoned. While conducting jury selection, the judge, prosecutor, and defense counsel decided to privately question several jurors in chambers. Momah was convicted as charged and sentenced to 245 months in prison.
On appeal, Momah claimed the private interviews violated his constitutional rights to a speedy and public trial. The Washington Constitution provides that an accused has the right to “a speedy public trial by an impartial jury.” Const. art. I, § 22. Additionally, Article I, section 10 provides that “[j]ustice in all cases shall be administered openly.”
Because of the overriding interest in open, public trials, a trial judge may only close a courtroom in limited circumstances. Under State v. Bone-Club (1995), five guidelines must be followed: 1) The party arguing for closure must show a compelling need to close the courtroom; 2) those present in the courtroom must be given an opportunity to object; 3) the proposed method for closing the court must be the least restrictive means available; 4) the court weighs the competing interests of closure and the public; and 5) the order must be no broader than necessary. If an improper closure occurs the case must be sent down for retrial.
Reviewing Momah’s claim, the Supreme Court determined there was no improper closure. “Applying these principles to this case, we find the facts distinguishable from our previous closure cases. Here, Momah affirmatively assented to the closure argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it. Moreover, the trial judge in this case not only sought input from the defendant, but he closed the courtroom after consultation with the defense and the prosecution. Finally, and perhaps most importantly, the trial judge closed the courtroom to safeguard Momah’s constitutional right to a fair trial by an impartial jury, not to protect any other interests.”
The Supreme Court, with Justice Charles Johnson writing the opinion, held that there was no improper closure of the courtroom, and affirmed the jury’s determination of guilt. Justice Pro Tem Joel Penoyar filed a concurring opinion, while Chief Justice Alexander dissented, joined by Justices Sanders and Chambers.
State v. Strode, No. 80849-0. In another case involving a similar jury interview question, the Supreme Court found the defendant’s right to a public trial had been violated. Tony L. Strode was charged and convicted of child rape and molestation. During jury selection, prospective jurors were given a questionnaire which asked whether they, or anyone close to them, had either been the victim of sexual abuse or accused of committing a sexual offense. Those who answered “yes” to either question were called into the judge’s chambers for individual questioning on whether their past experience would preclude them from acting fairly and impartially.
As mentioned above, any closure of a court proceeding must be justified using a Bone-Club analysis, and there was no indication this occurred in the Strode case. Strode was convicted on all counts and appealed, arguing that his right to a public trial had been violated.
The State argued that jury selection falls prior to the commencement of trial and is not subject to the public trial requirement. The State also argued that Strode was present for questioning and waived his right to a public trial. Even if there was an unjustified closure, argued the State, it was insignificant and did not infringe on Strode’s constitutional rights.
The Supreme Court determined that factual circumstances in this case required a Bone-Club analysis. The Supreme Court rejected the State’s arguments and ruled that Strode’s right to a public trial had been violated, resulting in a reversal of his conviction and an order for a new trial. Chief Justice Alexander wrote a 4-vote lead opinion, and Justice Fairhurst and Madsen filed a concurring opinion. Justice Charles Johnson and two others dissented, arguing that the right to a public trial must be balanced against a juror’s right to privacy.
The Supreme Court will issue opinions in at least six cases tomorrow.
Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3 (briefs and arguments). The question here is whether development rights vested on a condominium project when the owner filed an application for site plan review with the City of Bonney Lake.
In Re Detention of Strand, No. 80570-9 (briefs and arguments). Did the State have authority to conduct a psychological evaluation of an inmate as a sexually violent predator without first filing a petition to commit the inmate as a sexually violent predator.
In Re PRP of Pullman, No. 80834-1 (briefs and arguments). Whether the Department of Corrections violated Pullman’s due process rights by raising the inmate’s risk classification level without providing advance notice and an opportunity to challenge the proposed reclassification.
State v. Iniguez, No. 81750-2 (briefs and arguments). The issue before the court is whether an eight-month delay in the defendant's trial violated his constitutional right to a speedy trial. Iniguez was convicted of robbery, but only after his trial was delayed multiple times due to conflicts in schedules, a mistrial and the state's decision to combine Iniguez' trial with that of his partner in the robbery. None of these delays were Iniguez' fault, he objected to them, and the Court of Appeals overturned his conviction.
State v. Momah, No. 81096-6 (briefs and arguments). Dr. Charles Momah was convicted of rape and indecent liberties involving several of his medical patients. During jury selection prior to his trial, several potential members of the jury requested to be interviewed individually, due to the media attention surrounding this case. Their requests were granted, and they were interviewed by counsel in the judge’s chambers. The Washington Constitution guarantees the right to a speedy and public trial, and also requires that justice be administered “openly.” A court may close certain portions of a proceeding only if it has conducted a specific analysis dictated by State v. Bone-Club (1995). If a closure occurs improperly, the defendant is entitled to a new trial. Dr. Moman argues that the trial court’s individual interviews with potential jurors violated his right to a speedy, public trial. The Court of Appeals disagreed and upheld his convictions in 2007.
State v. Strode, No. 80849-0 (briefs and arguments). Similar to the case above, the question is whether the trial court violated a constitutional right to a public trial by conducting a portion of voir dire in chambers.
This episode we discuss judicial elections, selecting a new chief justice, medical malpractice lawsuits, and whether you should try to outrun tribal police.
Supreme Court of Washington Podcast (RSS) - Drug runners & motorcycle wrecks
The Supreme Court may issue opinions on Thursday. No oral arguments are scheduled this week.
Prompted by the news that Chief Justice Gerry Alexander is positioning himself for mandatory retirement in 2011, the Spokesman-Review has an editorial today that says we should re-think the judicial retirement issue.
The state constitution was amended in 1951 to require judges to step down when they turn 75. The Spokesman-Review points out that life expectancy has gone from 66 years to 78 since the 1950s. Another problem with the mandatory retirement is that the governor appoints a replacement rather than allowing voters to select a judge.
The piece pays a backhanded compliment: “Alexander shows no signs of cognitive failings” – picture the Chief in his office – “Gee, thanks!” At the very least, says the editorial, judges who turn 75 should be permitted to serve out the remainder of their term.
State v. Kenyon, No. 81374-4. On February 15, 2006, James Ryan Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).
A defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed. Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.
Kenyon argues his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation. The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.
The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.
Justice Richard Sanders wrote the majority opinion. Justice Tom Chambers filed a separate opinion concurring with the result.
State v. O'Hara, No. 81062-1. Ryan O’Hara was charged with second degree assault after getting into a fight with an acquaintance, Jeffrey Loree. O’Hara argued that he acted in self defense. Loree had gained possession of the keys to O’Hara’s car. At trial, O’Hara argued he acted in self-defense. O’Hara testified that he repeatedly asked Loree for the keys to the car. He attempted to reach for the keys and Loree punched him in the forehead, at which point the two began exchanging blows.
At trial the court provided the jury with instructions regarding second degree assault, with additional details about the definition of “malice.” O’Hara was convicted as charged.
On appeal, O’Hara challenged his conviction, arguing that the trial court provided the jury with an incomplete definition of “malice.” O’Hara had failed to object to this instruction at trial and raised the issue for the first time on appeal. A party on appeal is permitted to raise new issues of “manifest error affecting a constitutional right.”
The Supreme Court, with Justice Mary Fairhurst writing the opinion, said that O’Hara could not demonstrate that the trial court’s alleged error was not of a constitutional magnitude or manifest. By failing to object to the instruction he failed to preserve the issue for review, and could not raise the issue for the first time on appeal. Justice Sanders filed a dissent. While he agreed that a “manifest error affecting a constitutional right" should be reviewed on a case-by-case basis, he argued that O’Hara’s constitutional rights were violated by the trial court’s jury instruction.
In re Detention of Moore, No. 81201-2. The trial court granted a state petition for Moore to be declared a sexually violent predator and confined in a mental facility (civilly committed). The Supreme Court reviewed (1) whether the trial court erred in accepted the State's set of facts as accurate without checking to see if Moore knowingly waived his right to contest the facts, (2) whether Moore's attorney was ineffective for not contesting the State's facts and (3) if the State has to prove that Moore is likely to reoffend in order to prove he is currently dangerous.
In an 8-1 decision the Court affirmed the lower court. Justice Fairhurst wrote that courts do not have to ensure a party understands the impact of agreeing (stipulating) to facts, unless that agreement is tantamount to an admission of guilt. She also found nothing in the record to show that Moore was incompetent at the time of trial. In addition, Moore's attorney was not ineffective because there were tactical and strategic reasons for his actions. Finally, Fairhurst wrote that the elements which had to be proven to declare Moore a sexually violent predator were sufficient to show he is currently dangerous.
Justice Sanders filed the lone dissent, arguing that the State should have "to prove Moore will reoffend in the near future to establish he is currently dangerous," rather than the stated standard of reoffending at some point during the rest of his life.
In re Disciplinary Proceeding Against Marshall, No. 200577-2. The Court unanimously affirmed the State Bar's decision to disbar Marshall, due to a number of deceptive practices in his dealings with clients and his failure to change his practices after prior discipline by the Bar. Justice Jim Johnson wrote the opinion.
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