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One of our podcast listeners sent us a copy of a very interesting speech given by Justice Sanders back when he first joined the Court. In the podcast (Lies, Damn Lies & Statistics) Mike, Trent and I discussed the long wait times on court opinions. Sander's speech helps explain the time lag with a detailed behind-the-scenes look at the journey a case goes through from start to finish. It includes such salient tidbits as:

Who the assignment judge is [for a particular case], is a closely guarded secret of the court. To make attorney guesswork more difficult, law clerks in addition to the assignment justice’s law clerks typically attend the oral argument.

So clerk-counting is apparently pointless.

The speech is from 1996, so some procedures have likely changed. But I'm betting that much of the path a case takes is still the same today.

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In re Custody of E.A.T.W. and E.Y.W., No. 81945-9. Was the superior court right to grant a hearing for a custody petition based only on the fact that the children had lived with the petitioning grandparents for several years? The Court of Appeals had overturned the superior court, and the Supreme Court today upholds the Court of Appeals. The High Court holds that RCW 26.10.032 imposes on third party petitioners the duty of setting forth facts that would show “that the parent is unfit or placement with the parent would result in actual detriment to the child's growth and development.”

The unanimous opinion, written by Justice James Johnson, goes on to hold that this standard is in accord with the U.S. Supreme Court’s decision in Troxel v. Granville.

In Troxel, the United States Supreme Court affirmed this court's judgment in In re Custody of Smith that constitutionally protected parental rights were violated by a statute allowing a nonparent to wrest custody of a child from a parent based solely on the court's findings regarding the child's best interests. Something more is required than the court's judgment that it could make a better decision than parents concerning the upbringing of children.

(Briefs, Argument-May 28, 2009)

State v. Sibert, No. 79509-6. Richard Sibert was convicted by a jury in 2004 of four crimes related to the sale of methamphetamine. The Court of Appeals affirmed the lower court, and Sibert appeals on three alleged errs:  1) failure of the trial court to include the identity of the “controlled substance” on part of the jury instructions; 2) failure to prove the identity of the controlled substance; 3) an inappropriate jury instruction on “knowledge.”

Today the Court upholds Sibert’s conviction and sentencing. It finds that throughout the trial, everyone involved understood that the controlled substance was methamphetamine. Further, the jury instructions incorporated by reference the charging documents that identified the substance as methamphetamine. It also upholds the instruction on “knowledge,” which the trial court took directly from the Washington Practice.

Justice James Johnson also wrote this majority opinion, but Justices Sanders and Alexander both authored dissents, the latter joined by Justices Charles Johnson and Debra Stephens. The Chief concurred with the majority, but as to the result only. The four dissenting justices would hold prosecutors to a higher standard, in this case requiring a more explicit and precise description of the controlled substance.

(Briefs, Argument-February 10, 2009)

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The court is back in session today to hear three oral arguments, two this morning and one this afternoon. (Docket, briefs)

Morning session (starting at 9:00 a.m.)

State v. Adams, No. 822107. Another in a recent line of cases concerning warrantless automobile searches, this case presents the specific issue of whether police can make a warrantless search of a locked car in connection with an arrest.

Coryell Adams had just pulled into a Taco Bell parking lot when a sheriff's deputy pulled in behind him with her flashing lights on. Adams got out of the car and started yelling at the deputy, who told him to get back in the car. Instead of doing so, Adams slammed the car door, locked it, and moved several feet away. After backup arrived the deputy arrested Adams and placed him in handcuffs in the back of her car. She then took Adams' keys, unlocked his car, and searched it, finding cocaine.

Adams challenged the search as unlawful, since the car was locked and there was little danger of him getting a weapon or destroying evidence. The court disagreed, holding that Adams was close enough to be in “immediate control” of the car, and that this justified a search "incident to arrest."

The case is on appeal from Division One Court of Appeals, and originated in King County Superior Court.

Port Angeles v. Our Water-Our Choice, No. 822255. The question before the court is whether citizen initiatives to reverse a city council's decision to fluoridate its water supply are valid.

Port Angeles' City Council decided to put flouride in the city water supply, but two citizen groups filed local initiatives to restrict their ability to carry out the plan. A trial court reviewed the initiatives and determined they were invalid for three reasons: they were administrative rather than legislative, they interfered with the council's legislatively-delegated authority to regulate the water supply, and because they exceeded the council's legislative authority.

Division Two Court of Appeals upheld the trial court ruling on appeal.

Afternoon session (starting at 1:15 p.m.)

State v. Bunker (consolidated with State v. Williams), No. 819211. This case concerns the interpretation of an old version of the statute criminalizing violations of domestic violence no-contact orders.

Leo Bunker and Donald Williams were both convicted of violating domestic violence no-contact orders. They appealed, claiming that RCW 26.50.110 only criminalized certain types of violations and did not apply to theirs.

The statue as then written was somewhat ambiguous- the court stated that “the statute at issue... is unfortunately not a virtuosic specimen of legislative drafting.” But after analyzing it, the court held that it applied to all domestic violence no-contact order violations, including those of Bunker and Williams.

Both cases arose out of King County, and the convictions were upheld in Division One Court of Appeals.

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The Supreme Court will resume hearing arguments this week, on Feb. 23 and 25. The Court may issue opinions on Thursday.

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Steve Miletich of the Seattle Times has an article about the campaign between Justice Richard Sanders and attorney Charlie Wiggins.

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Justice Tom Chambers – the only Washington justice with a blog – has offered his opinion on the debate over how we select judges.

He discusses the issue in a very thoughtful post that acknowledges the flaws in each system. Elections, appointments, selection committees ... they all have their shortcomings.

He discounts the concern that judges up for re-election would pander to popular opinion. “[I]n my 40 years in the law, the judges of Washington State have consistently done the courageous thing and are not swayed by fear of being unelected.” But Chambers cites problems in other states and says the election process can potentially threaten judicial independence.

Lifetime appointments, he says, are also problematic. “Some judges appointed for life have become tyrants and do not treat lawyers, parties, or jurors with respect. On the other hand, it was my experience that state court judges faced with periodic elections see every lawyer, party, and witness as a future potential vote and almost always treated all with respect.”

Appointment committees that screen potential judges? “In the past, such blue ribbon panels have been perceived as a good old boy network; clubbish and difficult for women and minorities to break into.”

Justice Chambers offers an interesting Solomon compromise: elect trial judges, who are closer to their communities, and appoint appellate judges, who are ultimately responsible for interpreting the law. He recommends using a diverse appointment committee and requiring appellate judges to stand for retention elections.

Chambers concludes by showing he is a pragmatist. “Although interesting, this discussion is likely academic as I think it highly unlikely that the people of Washington State are ever going to relinquish their constitutional right to elect judges.”

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An interesting little subplot played out in today’s Sieyes opinions. As discussed below, the basic question was whether the state law that prohibits minors from possessing guns is unconstitutional.

Justice Jim Johnson, in his one-vote dissent, wrote that the gun possession statute should be subjected to strict scrutiny—the highest standard of judicial review. In other words, the State would be required to show that the statute restricting a 17-year-old from possessing a gun is narrowly tailored to achieve a compelling governmental interest. He stressed the “fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people.” Using this analysis, Justice Johnson would have invalidated the law.

Justice Sanders’ majority opinion, however, does not go so far. Writing for the Court, he held that the Second Amendment is incorporated against the states via the Fourteenth Amendment, and the Washington Constitution explicitly protects the individual right to bear arms. Justice Sanders also discussed the appropriate standard of review, and declined to apply strict scrutiny or a less stringent analysis. But Justice Sanders noted that the Mr. Sieyes provided no argument or authority for finding the state’s gun restriction unconstitutional. Without adequate briefing from the parties, the Court declined to address the issue. Justice Sanders seemed to chide Justice Johnson for a lack of restraint: “The argument put forth by the dissent is no substitute for an argument briefed by opposing parties.”

Justice Debra Stephens takes the restraint refrain even further. While agreeing with the case's outcome, she wrote separately to criticize the majority opinion’s lengthy analysis of the constitutional issues at stake. “I would refrain from engaging in an extended exploration of the unsettled question of federal incorporation of the Second Amendment. Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court.”

But Chief Justice Barbara Madsen plays the restraint trump card. She signed the majority opinion and added the notation “result only” to her vote. So while we see her position we have no clue as to her rationale.

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The Supreme Court has issued its opinion in the thorny case of State v. Sieyes, No. 82154-2.

17-year-old Christopher Sieyes was charged and convicted for unlawfully possessing a loaded .380 semiautomatic handgun – a violation of RCW 9.41.040(2)(a)(iii), which generally prohibits children under age 18 from possessing firearms. The questions in this case were whether the Second Amendment to the United States Constitution applies to the states, and if so, whether the state law banning possession by minors unconstitutionally infringes on the right to bear arms protected under the U.S. and Washington Constitutions.

In 2007, in Heller v. D.C., the U.S. Supreme Court struck down the District of Columbia’s handgun ban, holding that the Second Amendment guarantees the individual right to bear arms, rather than a collective militia right, as argued by D.C. The Court left for another day the question of whether the Second Amendment applies to the states. That question will be addressed later this year, as there has been some disagreement between federal circuits, but the Washington Supreme Court beat SCOTUS to the punch.

The Washington Supreme Court, with Justice Richard Sanders writing the majority, held that the Second Amendment applies to the states. “[T]he Second Amendment protects an individual right to bear arms from state interference through the due process clause of the Fourteenth Amendment. This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.” Justice Sanders also noted that the Washington Constitution explicitly guarantees the right to bear arms, though the Court has not determined the reach of Article I, Sec. 24 since the Heller ruling.

Turning to the question of whether RCW 9.41.040(2)(a)(iii) is constitutional, the Court declined to apply the traditional levels of scrutiny to firearm regulation. The Court voiced agreement with Heller -- that strict scrutiny would invalidate most infringements on the Second Amendment, while a rational basis test would set too low a standard to protect the right to bear arms. “We follow Heller in declining to analyze RCW 9.41.040(2)(a)(iii) under any level of scrutiny. Instead we look to the Second Amendment's original meaning, the traditional understanding of the right, and the burden imposed on children by upholding the statute.” Justice Sanders acknowledged the Court's "occasional rhetoric" about the "reasonable regulation" of firearms, but argued the Court has never settled on a precise standard of review.

However, the Court found that Christopher Sieyes made inadequate arguments on whether the law was unconstitutional. “In sum appellant offers no convincing authority supporting his argument that Washington's limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day.” The Supreme Court held that Sieyes failed to demonstrate that the statute was an unconstitutional violation of his right to possess a gun. The case was remanded for consideration of additional issues.

Gun rights advocates will see this as a partial missed opportunity. After the landmark ruling in Heller, the Washington Supreme Court asked the parties in Sieyes to address whether the Second Amendment applies to the states and the appropriate standard of scrutiny for evaluating firearm regulations. Justice Sanders has long railed against the Court’s reliance on “reasonable regulation” of gun rights, and no doubt wanted to go further in clarifying the court’s jurisprudence. Thus his criticisms of the appellant for inadequately briefing some of these constitutional issues. Even so, the Court firmly holds that the Washington Constitution protects the individual right to bear arms.

Justice Debra Stephens concurred in the result, but wrote that as Sieyes failed to analyze how the state statute violated the constitution the court could stop there and should not have conducted an  "extended exploration of the unsettled question of federal incorporation of the Second Amendment." Meanwhile, Justice James Johnson dissented, writing that "the majority disregards our long-standing national tradition allowing younger citizens to bear arms," and he argued strict scrutiny is the appropriate standard of review for a challenge to a statute restricting one's constitutional rights.

(briefs and argument).

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State v. Gonzalez, No. 26070-4 (briefs and argument). In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund, to which the trial court agreed.

Gonzalez sought to reverse the order modifying the total amount of his restitution, arguing the state violated RCW 9.94A.753, the restitution statute. He also argued the additional restitution constituted a second punishment in violation of double jeopardy. The Supreme Court, with Justice Mary Fairhurst writing, rejected both arguments and affirmed the trial court. Justice Richard Sanders dissented, writing that the second restitution violated the statute and double jeopardy.

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The Supreme Court will issue opinions in two cases tomorrow, including a case that addresses whether minors have a constitutional right to possess firearms.

State v. Sieyes, No. 82154-2 (briefs and argument). Christopher Sieyes, a 17-year-old, was pulled over for speeding, and a gun was found under the front seat of his car. State law prohibits minors from possessing guns (with limited exceptions) and Sieyes was charged and convicted of criminal possession of a firearm. The question before the Supreme Court is whether the state statute prohibiting minors from possessing guns is a violation of the constitutional right to keep and bear arms guaranteed in the Washington and U.S. Constitutions. More broadly, the Court may consider the proper test for analyzing a violation of the right to bear arms, and whether the Second Amendment to the U.S. Constitution applies to states.

State v. Gonzalez, No. 26070-4 (briefs and argument). In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund. The question before the Court is whether state statutes allow a restitution order to be amended beyond the statutory period, whether under the state and federal constitutions a restitution order is by nature a criminal "punishment," and if it is, whether the amended order constitutes two separate punishments.

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A bill that would have created a pilot program for publicly-financed state Supreme Court races died in the Washington Senate yesterday. The proposal has been introduced annually since the state's hotly-contested judicial elections of 2006. Brad Shannon of The Olympian has the story here.

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The Supreme Court will hit the road again, this time hearing arguments on three cases at Skagit Valley College’s Mount Vernon Campus on February 22-23. Students will also have an opportunity to interact with justices over lunch and in class.

UPDATE: The Skagit Valley Herald has a story about the arguments conducted on the road.

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This episode we review the numbers from the Supreme Court’s 2009 activity, and discuss the upcoming judicial elections.

Supreme Court of Washington Podcast (RSS) - Lies, damn lies & statistics

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

In re Stephen Cramer, No. 200,674-4 (briefs and argument). 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. Dow, No. 81243-8 (briefs and argument). Keith Dow was charged with raping a three-year-old girl, but the charge was reduced to first degree child molestation when the girl was deemed incompetent to testify. Without her testimony, the state needed to use statements made by Dow to support its case. A hearing took place to determine whether defendant’s statements could be used pursuant to RCW 10.58.035, which requires a court to consider a number of factors when deciding whether a confession is admissible. The trial court ruled the state statute violated the 14th Amendment of the U.S. Constitution, and as the state had no other evidence, charges were dismissed. The Court of Appeals (Div. II) reversed the trial court.

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The Supreme Court granted several petitions for review during its February 9 conference.

• State v. Robinson, No. 83525-0
• State v. Barber, No. 83640-0
• State v. Coucil, No. 83654-0
• Jackowski v. Hawkins Poe, Inc., No. 83660-4
• Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6
• State v. Millan, No. 83613-2
• State v. Ford, No. 83617-5
• City of Seattle v. May, No. 83677-9
• State v. Martin, No. 83709-1
• Blair v. TA-Seattle East #176, No. 83715-5
• Hardee v. DSHS, No. 83728-7

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We've updated the case-by-case spreadsheet for the Supreme Court's 2009 opinions to include the number of days between argument and the court's opinion. The rule of thumb is the court takes about six months to issue a decision after hearing arguments.

On average, the court took 223 days (31 weeks) to issue opinions in the cases where arguments were heard. Fifteen decisions in 2009 were pending for over a year, while 20 cases were disposed of in less than three months. One case, State v. Wright, which dealt with double jeopardy, sat for 674 days (96 weeks) before being resolved.

UPDATE: More numbers inspired by the comments below. Here is the average time from argument to decision based on who authored the majority opinion.

Also, the average wait based on the case's vote split.

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As we reported last week, attorney Charlie Wiggins announced his candidacy for Position 6 of the Washington Supreme Court, currently held by Justice Richard Sanders.

Justice Sanders was expected to run for another term on the court, and he recently filed the necessary candidate registration form with the Public Disclosure Commission. Justice Sanders won a special election in 1995 and was re-elected for two six-year terms in 1998 and 2004. He describes his understanding of the job on his campaign website: 

These have been good years on the court. It is a great privilege and joy to attempt to protect and maintain the individual legal rights of every single individual who comes to court. That, in my opinion, is the job description of a judge, and, as it says in Article 1, Section 1 of our state constitution, the purpose of state government as well.

Stay tuned. We'll continue to bring news and information about the various candidates for the Supreme Court.

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This week the Supreme Court will consider new petitions for review on Tuesday, and may issue opinions on Thursday.

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Shoemake v. Ferrer, No. 81812-6. Attorney Douglas Ferrer badly mishandled Andrea and Keith Shoemake's lawsuit related to Andrea Shoemake's serious injuries from a 1992 automobile accident. As a result of his legal malpractice, the case was dismissed in 1996. Ferrer mislead the Shoemake's about this until 2005. The Shoemake's retained another attorney and eventually recovered a $100,000 insurance settlement and then prevailed in a legal malpractice suit against Ferrer. The trial court awarded the Shoemake's ten years of interest on $60,000, which was the amount of the insurance settlement minus the 40% contingency fee that Ferrer would have received.

The Shoemake's appealed and the Court of Appeals found that the interest should have been based on the full $100,000. Today, in an opinion written by Justice Stephens, the Supreme Court unanimously upholds that decision.

We affirm the Court of Appeals and follow the approach favored by the majority of jurisdictions. In this case, calculating damages without deducting a negligent attorney's hypothetical contingency fee is an appropriate measure of damages. The Shoemakes had to expend fees on a second lawyer in order to finish the job the first lawyer neglected to do. The majority approach makes the plaintiffs whole without conferring a windfall.

(briefs and argument)

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In re PRP of Grantham, No. 82194-1 (briefs and argument). James Grantham is an inmate at McNeil Island prison. A correctional officer was caught smuggling tobacco and marijuana to him, and Grantham was charged with violating prison rules regarding controlled substances. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. A recording of the phone call, however, was not played at the hearing. Based on the investigative report, a hearing officer found Grantham guilty of both counts. He was sanctioned with 25 days disciplinary segregation and a loss of both 90 days good time credit and 7 days of yard privileges.

Grantham filed a personal restraint petition, arguing that the investigator acknowledged that he and his brother never explicitly discussed marijuana or tobacco. He also argued that the disciplinary hearing notice failed to specify the time and place of his conversation with his brother. The Court of Appeals dismissed Grantham’s petition.

On appeal to the Supreme Court, the issue is the applicable standard of review for prisoners challenging disciplinary decisions. The Supreme Court, with Justice Tom Chambers writing the 7-2 majority, held that inmates challenging prison discipline need not make out a prima facie case of prejudice in order to obtain review (known as the Isadore standard). However, the Court said prisoners facing discipline are not entitled to the same range of constitutional protections afforded defendants facing criminal charges, but are only entitled to minimum due process protections. The Court stated that inmates challenging prison discipline must show that the disciplinary hearing was so arbitrary and capricious as to deny them a fundamentally fair proceeding. The Court held that Grantham has not met this standard, and dismissed his petition. Justice Gerry Alexander dissented. While he agreed with the Court’s explanation of the applicable law and standard of review, he argued that Grantham was denied a fair proceeding.

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The Supreme Court will issue decisions in at least two cases tomorrow.

Shoemake v. Ferrer, No. 81812-6 (briefs and argument). 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 trial 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.

In re PRP of Grantham, No. 82194-1 (briefs and argument). Did the Department of Corrections violate James 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.

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We have our first challenger in a state Supreme Court race.

Bainbridge Island attorney Charlie Wiggins has officially thrown his hat into the ring, filing a candidate registration form with the Public Disclosure Commission. He is running against Justice Richard Sanders.

Wiggins’ campaign website can be found here, where Wiggins states he is running against Sanders because of violations of the Code of Judicial Conduct  and because "his decisions are not fair and impartial, and he opposes positive reforms to improve the process of electing judges." Should be a colorful campaign.

Chief Justice Barbara Madsen and Justice James Johnson are also up for re-election this year.

As election season approaches, this blog will provide information about candidates for the Supreme Court, including links to the evaluations and endorsements of other organizations.

UPDATE: The race is covered by the Olympian, Seattlepi.com, and the Kitsap Sun.

Note: The Supreme Court of Washington Blog neither endorses nor supports any candidate for judicial office.

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

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