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Lallas v. Skagit County, No. 81672. When a court security guard is injured by a fleeing prisoner, does judicial immunity shield the deputy sheriff and the county from negligence liability?

A Skagit County District Judge directed a deputy sheriff to take the prisoner from the court room to jail. On the way, the unrestrained prisoner fled, knocking down and injuring a private security guard. The guard sued the deputy, the county, and the prisoner; the trial court granted summary judgment for the deputy and the county on the theory that they were protected by judicial immunity. The Court of Appeals reversed.

In an opinion by Justice Fairhurst the Supreme Court unanimously holds that escorting a prisoner is a ministerial rather than a judicial duty and therefore judicial immunity does not protect the deputy or the county from negligence liability. (briefs, argument, previous post)

State v. Pugh, No. 80850-3. Bridgette Pugh called 911 and reported that her husband, defendant Timothy Pugh, "was beating me up really bad." Police responded and arrested Timothy Pugh. Mrs. Pugh failed to show up and testify, but the recording of her 911 call was allowed as evidence. Timothy Pugh was convicted of  felony violation of a court order, domestic violence. He challenges that the admission of the recorded 911 call violated his right to confront the witnesses against him according to the Sixth Amendment of the U.S. Constitution and Article I, section 22 of the State Constitution.

Today, the Court holds that Mrs. Pugh's statements on the 911 recording were admissible: that they were nontestimonial excited utterances not prohibited by the Sixth Amendment and that they "qualify as res gestae [and as such] do not implicate Article I, section 22." Justice Madsen wrote the majority opinion and was joined by all the other justices except for Justice Chambers, who concurs while expressing "serious reservations about the broadest applications of the excited utterance rule being made in the wake of Crawford v. Washington," and Justice Sanders, who dissents. (briefs, argument)

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Satomi Owners Ass'n v. Satomi, LLC, No. 80480-0 (consolidated with Blakely Commons Condominium Ass'n v. Blakely Commons, LLC, No. 80584-9 and The Pier at Leschi Condominium Owners Ass'n v. Leschi Corp., No. 81083-4). The issue common to these consolidated cases is "whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, preempts the judicial enforcement provision of the Washington Condominium Act (WCA), RCW 64.34.100(2)." The FAA is a federal law that requires federal and state courts to enforce arbitration agreements. The WCA is a state law that allows judicial review notwithstanding any "alternative methods of dispute resolution," including arbitration.

Each case began in 2005 or 2006 as a lawsuit by a condominium owners association alleging various construction defects and related claims. Most or all of the owners in each case had signed a warranty addendum containing an arbitration clause (either requiring arbitration for any construction defect claims or giving the seller the option of requiring arbitration).

In Satomi, the trial court quashed Satomi, LLC's motion to enforce the warranty addendum and compel arbitration, holding that (1) the FAA does not preempt the WCA, (2) all parties did not sign the warranty addendum, and (3) Satomi Association was not bound by the addendum. Satomi, LLC appealed, but then the parties settled. Nevertheless, the Court of Appeals denied Satomi Association's motion to terminate review and decided the case. The Court of Appeals upheld the trial court's preemption ruling, but reversed as to the non-WCA claims (thus requiring arbitration of those claims). Satomi, LLC appealed the preemption ruling to the State Supreme Court. The Blakely and Leschi cases were subsequently consolidated with Satomi.

While recognizing the mootness of Satomi, the Court here "choose[s] to review the preemption question" because "it is one of 'continuing and substantial public interest.'" The Court reviews de novo both a trial court's decision to compel or deny arbitration and its determination of whether a state statute is preempted by federal law.

The FAA "simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms" (Volt Info. Scis., Inc. v. Bd. of Trustees). It's scope extends to "the full reach of the Commerce Clause." Here, the questions are whether the sale and warranting of the condominiums were transactions reached by the Commerce Clause and, if so, whether the WCA conflicts with the FAA and is therefore preempted in these three cases.

The State Supreme Court holds, per Katzenbach v. McClung and Beneficial National Bank v. Anderson, "that the commerce clause necessarily reaches the warranting and sale of the condominiums in Satomi because 'such goods' [that came from out of state] amount to more than 70 percent of the component parts." Because the WCA would interfere with the arbitration agreements in these cases, it is preempted by the FAA. The Court upholds the Court of Appeals that the arbitration agreements signed by condominium purchasers applies to Blakeley Association because it only asserts claims on behalf of those purchasers. The Court finds that Blakeley Association has failed to prove that the arbitration clauses were either procedural or substantive unconscionable. The Court declines to decide a number of factual and other issues, and remands Blakeley and Leschi to the trial courts.

The Chief Justice wrote the majority opinion, joined by five other justices. Justice Chambers, joined by Justices Charles Johnson and Richard Sanders, dissents with a strong argument for federalism.

The majority incorrectly frames the issue, answers the wrong question, and ignores the nature of the homeowners' claims. The issue before us is whether a claim for breach of implied warranty, established by Washington statute after consultation with the stakeholders, imposed on Washington state builders, to protect condominium purchasers in Washington State, is preempted by federal laws because some of the materials used in building condominiums came from across the border. The answer is no....

(briefs, argument)

After the jump, search incident to arrest (State v. Buelna Valdez) and attorney discipline (In re Disciplinary Proceeding Against Sanai).

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State v. Boss and Pelts, No. 81897-5 (argument and briefs). Cynthia Boss was charged and convicted of first degree custodial interference pursuant to RCW 9A.40.060 for intentionally denying Child Protective Services (CPS) access to her daughter after an order awarding CPS legal custody of the child.

Boss appealed, arguing the trial court had committed reversible error because a jury instruction omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS’s right to custody of her daughter) of first degree custodial interference, and another jury instruction impermissibly commented on the evidence. The Court of Appeals affirmed Boss’s conviction.

The Supreme Court agreed, with Justice Charles Johnson writing the unanimous opinion. The Court concluded: (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court’s comment on the evidence.

State v. Powell, No. 80496-6 (argument and briefs). In 1997, Terrance Powell was charged with aggravated first degree murder. He was found guilty, but the conviction was reversed by the Court of Appeals and remanded for retrial. At the subsequent jury trial Powell was found Powell guilty of first degree murder, and the trial judge imposed an exceptional sentence of 720 months after finding a number of aggravating factors. Powell's conviction and sentence were upheld by the Court of Appeals.

After the U.S. Supreme Court’s 2004 decision in Blakely v. Washington (which held that the Sixth Amendment prohibits judges from enhancing sentences based on facts not found by the jury), Powell filed a new appeal. The Court of Appeals reversed the exceptional sentence and remanded for resentencing. The State informed Powell of its intent to seek an exceptional sentence based on statutory aggravating circumstances. Powell moved for a standard range sentence. The trial court impaneled a jury to determine whether there were aggravating circumstances to justify an exceptional sentence.

Powell challenges the trial court’s decision on remand to impanel a jury, arguing the court had no authority to do so as the State did not give notice of intent to seek an exceptional sentence before trial.

The Supreme Court granted discretionary review and affirmed the trial court. Chief Justice Gerry Alexander wrote the 4-vote lead opinion, with two justices joining a concurrence.

We disagree with Powell’s contention that the notice provision in RCW 9.94A.537(1) requires the State give notice of its intent to seek an exceptional sentence. The statute merely states that the State “may” give notice that it is seeking a sentence above the standard sentencing range prior to trial or entry of a guilty plea. The fact that Powell was not given notice prior to trial of the State’s intention to seek an exceptional sentence does not, therefore, run afoul of the plain language of the statute.

Justice Susan Owens and two others dissented.

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Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. Pursuant to the Growth Management Act (GMA), Whatcom County adopted a "comprehensive plan" in 1997. Two months after the plan was adopted, the legislature amended the GMA to include "limited areas of more intensive rural development" (LAMIRDs). The County revised its plan seven years later as required by the GMA. On March 25, 2005, the anti-growth organization Futurewise commenced this litigation by appealing the County's plan and related ordinances to the Western Washington Growth Management Hearings Board.

Futurewise challenged that the plan violated the GMA by protecting the rights of certain rural private property owners to develop their land.

[Futurewise] argued that the County failed to update its comprehensive plan to bring it into conformity with the GMA's LAMIRD amendments in three ways: (1) the County adopted comprehensive plan policies that allow and encourage expansion of areas of more intensive growth in rural areas; (2) the plan contains descriptors for areas of more intensive rural development that do not comply with the GMA; and (3) the County established zoning designations ... that improperly apply beyond the logical boundaries of valid LAMIRDs.

Gold Star Resorts intervened because Futurewise's challenge might diminish Gold Star's property rights on a parcel Gold Star owns in Whatcom County adjacent to Interstate 5. The Hearings Board upheld five of the County's policies, but overturned a sixth because it allowed designating town boundaries "based on 'existing development'" in 2004 rather than being "restricted to the built environment as of July 1990." The Hearings Board also found that the County's criteria and analysis for determining the boundaries of LAMIRDs failed to satisfy the mandates of the GMA.

Gold Star petitioned for review and prevailed in superior court. The court determined that the Hearings Board had "improperly used a bright line rule of one residence per five acres" and that some of the issues had been litigated in a 1998 case. Futurewise appealed. The Court of Appeals overturned the lower court, holding that neither res judicata nor collateral estoppel applied and that the Hearings Board had not used an impermissible "bright line rule."

Today, the Supreme Court in an opinion by Justice Madsen unanimously reaffirms its earlier decision in Thurston County v. Western Washington Growth Management Hearings Board (2008).

First.... Futurewise could challenge the portions of the County's comprehensive plan affected by the GMA amendments pertaining to LAMIRDs but, contrary to Futurewise's argument, could not challenge any and all aspects of the plan alleged to be noncompliant with the GMA.

The second holding in Thurston County that applies here is that when differentiating between urban and rural densities, the Board cannot employ bright line rules. Thus, the Board improperly relied in this case on a "one residence per five acre" rule.

The Court remands the case to the Hearings Board to reconsider Futurewise's claims without applying a bright line rule. The Court also requires Whatcom County to update its rural development criteria based on the LAMIRD provisions of GMA and to revise its comprehensive plan. Congratulations to the Pacific Legal Foundation, which filed an amicus brief in this case against the Hearings Board's use of a bright line rule. (argument and briefs)

After the jump: Ducote v. DSHS, No. 81714-6.

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

Ducote v. DSHS, No. 81714-6 (argument and briefs). Whether a stepparent can bring an action against DSHS for negligent investigation of an allegation. Kent Ducote was accused of sexual abuse by his stepdaughter. Based on the accusation, DSHS investigated and separated Ducote from his family for eight months. The accusations were later dismissed. Ducote sued DSHS for negligent investigation, but his suit was dismissed for lack of standing. The statutes in RCW 26.44 upon which negligent investigation is based note the “paramount importance” of the “bond between a child and his or her parent, custodian, or guardian” in their purpose clause. The trial court ruled that since the statute does not specifically mention stepparents, Ducote lacked standing to bring suit. The Court of Appeals (Div. 1) upheld the dismissal. The Washington Association of Sheriffs and Police Chiefs filed an amicus curiae brief in support of DSHS.

Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4 (argument and briefs). 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.

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.

State v. Boss and Pelts, No. 81897-5 (argument and briefs). On appeal from the Court of Appeals (Div. 1), 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.

State v. Powell, No. 80496-6 (argument and briefs). Can the state impanel a jury for resentencing if it did not give the defendant pre-trial notice of intent to seek an exceptional sentence?

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The Court may issue opinions on Thursday, December 17. No oral arguments are scheduled this week.

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State v. Rafay and Burns, No. 80865-1. Petitioner Glen Sebastian Burns was convicted of aggravated first-degree murder in 2004. He appealed and requested to represent himself. The Court of Appeals denied this request. Appealing to the Supreme Court, Burns argues that article I, section 22 of the Washington Constitution guarantees the right of self-representation on appeal. The Supreme Court, with Justice Debra Stephens writing the unanimous opinion, agreed.

Previous decisions have noted that article I, section 22 provides the right of self-representation at trial, but never before had the Court considered whether this right extended to appeals. The relevant portions of the section state:

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases . . . . 

While there is no right to self-representation on appeal under the U.S. Constitution, the Court analyzed the text of the state constitution and noted that article I, section 22 provides greater protection than its federal counterpart. It guarantees the right to appeal -- the first state constitution to do so. The Court noted, however, that the right to self-representation is not absolute, and an appellate court has broad discretion to fashion an appropriate procedure for implementing this right.

The Court reversed the Court of Appeals and remanded Burns' case for further proceedings.

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State v. Harrington, No. 81719-7. With a unanimous opinion by Justice Richard Sanders, the Court today reverses the Court of Appeals, suppresses the evidence of methamphetamine used to convict Dustin Harrington, and dismiss the case.

Harrington was walking down a street around 11 p.m. when Richland Police Officer Scott Reiber stopped to talk with him. Reiber did not activate his lights or siren and did not block Harrington's path. During the contact, Reiber told Harrington to keep his hands out of his pockets and a State Patrol officer also stopped and stood nearby. Eventually Reiber asked to frisk Harrington and discovered a meth pipe and a baggy containing the drug.

The Court holds that Harrington was subjected to a "progressive intrusion" that eventually violated his state constitutional rights.

Requesting to frisk is inconsistent with a mere social contact. If Reiber felt jittery about the bulges in Harrington's pockets, he should have terminated the encounter--which Reiber initiated--and walked back to his patrol car. Instead Reiber requested a frisk.

When Reiber requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize Harrington. A reasonable person would not have felt free to leave due to the officers' display of authority.

We note this progressive intrusion, culminating in seizure, runs afoul of the language, purpose, and protections of article I, section 7. Our constitution protects against disturbance of private affairs -- a broad concept that encapsulates searches and seizures. Article I, section 7 demands a different approach than does the Fourth Amendment; we look for the forest amongst the trees. ...

Because Harrington's consent to the search was obtained through exploitation of a prior illegal seizure, suppression of the evidence is required.

(briefs, argument)

State v. League, No. 82991-8. Tony League was convicted of robbery and unlawful imprisonment. The Court of Appeals found the two crimes merged but failed to vacate the lesser conviction and only remanded the case for resentencing. In a per curiam opinion, the Court grants League's petition for review, reverses in part the Court of Appeals, and remands to the trial court to vacate the unlawful imprisonment conviction and resentence League for his remaining conviction.

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State v. Winterstein, No. 80755-8 (briefs and argument). Terry Lee Winterstein was convicted of unlawful manufacture of methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search, and the probation officer had searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The Supreme Court, Justice Debra Stephens writing, overturned Winterstein’s conviction and remanded the case for a new suppression hearing. The Court categorically rejected the inevitable discovery doctrine.

The Court first addressed whether the probation officer’s search of the Winterstein’s former residence was proper. It’s generally recognized that individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation. But the Court said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search. “In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Turning to the inevitable discovery argument, the Court noted that it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy. As Justice Stephens wrote, admitting evidence under the inevitable discovery doctrine would leave no incentive for the State to comply with the constitution's requirement that arrests precede searches.

Justice James Johnson, joined by Justices Owens and Fairhurst, concurred with the decision to remand the case, but objected to the majority’s analysis of the inevitable discovery issue. Johnson wrote that it wasn’t necessary to address the issue and that the Washington Constitution allows inevitable discovery in some limited circumstances.

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In a brief opinion, the Supreme Court overturned a traffic conviction as the police officer had insufficient authority to issue a citation. State v. Magee, No. 81746-4.

Andrew Magee was cited for second degree negligent driving when the state patrol received reports from other drivers that a vehicle was traveling the wrong direction on the highway. A trooper was dispatched, and she found Magee parked nose-to-nose with a friend’s car, facing the wrong direction on the shoulder of the SR 512 on-ramp. The trooper assumed Magee had driven against traffic in order to get in this position, and cited him for negligent driving. Magee challenged the infraction. He contending the officer did not have the authority to issue a citation when she had not witnessed an infraction.

RCW 46.63.030 lists the instances where a law enforcement officer has the authority to issue a notice of traffic infraction:

(a) When the infraction is committed in the officer’s presence;

(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;

(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident has committed a traffic infraction;

(d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or

(e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170.

The Supreme Court, with Justice Tom Chambers writing, overturned Magee’s conviction. “RCW 46.63.030 plainly requires us to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. There is no contention subsections (b) through (e) apply in this case. Instead, the State argues that the trooper actually witnessed the citable offense because the negligent behavior was "ongoing." But negligent driving in the second degree is a moving violation. For the infraction to be valid, the movement must have been made in the officer’s presence.

Justice Barbara Madsen filed a concurring opinion, agreeing with the result, but pointing out that the infraction could have been initiated by a prosecuting authority, in which case the limitations of RCW 46.63.030 would not apply. (Briefs and Argument)

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The Supreme Court will issue opinions in at least two cases.

State v. Magee, No. 81746-4 (briefs and argument). This case addresses 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.

State v. Winterstein, No. 80755-8 (briefs and argument). Can a probation officer conduct a warrantless search of a home if facts support the officer’s belief that the probationer lives in the home?

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The Supreme Court accepted several new cases for review during its December 1 conference.

• State v. S.S.Y., No. 83299-4
• Bowie v. Wash. Dep’t of Revenue, No. 83426-1
• Rahman v. State of Wash., No. 83428-8
• Puget Sound Energy, Inc. v. Lee, No. 83433-4
• Veit v. Burlington N. Santa Fe Corp., No. 83385-1

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This episode we review soon-to-be Chief Justice Madsen’s noteworthy opinions, discuss whether judges should be allowed to blog, and cover several decisions from the month of November.

Supreme Court of Washington Podcast (RSS) - A new chief justice

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