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The Supreme Court will issue opinions in several cases tomorrow: 

Carlisle v. Columbia Irrigation District, No. 82035-0 (briefs and argument). The Columbia Irrigation District went through the process of adding property to its jurisdiction and imposing taxes on the owners. Some of the landowners opposed this claim. The Supreme Court reviews whether the proper procedures were followed in adding plaintiffs’ land to the Columbia Irrigation District and forming a local improvement district, and whether those procedures violate the Washington Constitution.

In re Parentage of M.F., No. 81043-5 (briefs and argument). The question before the court is whether a stepparent qualifies as a common law de facto parent, with the accompanying rights and responsibilities. The trial court ruled that the petitioner, a stepfather, could and did prove that he qualified as a de facto parent for his teenage stepdaughter, relying in part on precedent from In re Parentage of L.B. 155 Wash.2d 679 (2006). Court of Appeals reversed, finding that stepparents have other statutory remedies and cannot claim de facto parent status based on the Parentage of L.B. decision.

Renner v. City of Marysville, No. 81959-9 (briefs and argument). 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.

State v. Rhone, No. 80037-5 (briefs and argument). Whether using a peremptory challenge to remove the sole minority member of a jury is racially discriminatory on its face without any other evidence.

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The Supreme Court granted new petitions for review during its March 30 conference.

• Optimer Intl, Inc. v. RP Bellevue, LLC, No. 83807-1
• State v. Lui, No. 84045-8
• State v. Wilson, No. 83797-0
• Crown, Cork & Seal v. Smith & Dept of L&I, No. 83854-2
• Niccum v. Enquist, No. 83983-2
• State v. Williams, No.83992-1
• State v. Huwe, No. 82987-0

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At 9:00 a.m. this morning the Court will hear one argument on a Public Records Act case. Because it involves a sitting justice, the entire Court may be replaced by pro tem justices (judges drawn from a lower court to review just this case). (Docket, briefs) After today the Court will recess from arguments until May.

Richard Sanders v. State, No. 82849-1. Justice Sanders is asking the Court to find that the Attorney General's Office violated the Public Records Act by withholding hundreds of requested records under various exemptions claimed without explanation; and to determine whether the penalties and costs awarded to Sanders by the trial court were sufficient.

In 2004, Sanders sent a request to the Attorney General's Office for all documents related to his visit to the McNeil Island Special Corrections Center and the actions taken by the Commission on Judicial Conduct in response to his visit (which led to a different Sanders v. State). Over a hundred responsive documents were withheld or redacted, primarily under the "related to a current case or controversy" exemption to the PRA (RCW 42.56.290), with no explanation of why the documents fell under that exemption.

The trial court found that the AGO had violated the PRA by not providing the required "brief explanation" for how exemptions apply, and that some of the withheld records should have been disclosed. Sanders asked for a $70 per day penalty, the trial court fined the AGO $5 per day for withholding records and $3 per day for not explaining the exemptions; and awarded Sanders 37.5% of his attorney fees. He appeals both the ruling that some of the documents were exempt, and the amounts of the penalties and fees.

This is the case that led to the claim that Sanders was self-serving in his Yousoufian v. Sims majority opinion. Due to that controversy, the appellate court determined it didn't have the authority to review, and kicked the case up to the Supreme Court.

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The Supreme Court will consider new petitions for review on Tuesday, and will hear arguments in one case on Wednesday. Opinions may be released on Thursday.

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Parmelee v. O’Neel, No. 82128-3. The Court today unanimously holds that Allan Parmelee, a prisoner who successfully defended himself against an infraction based on Washington's criminal libel statute, is entitled to attorney fees.

Parmelee had written a letter making various accusations about the prison superintendant. Prison authorities refused to send the letter and found that Parmelee had committed a misdemeanor by violating the libel law. Parmelee defended and the Court of Appeals held the libel law unconstitutional, but refused to grant attorney fees. The Supreme Court holds that Parmelee is a prevailing party entitled to fees according to 42 U.S.C. § 1988. (briefs and argument)

State v. Eaton, No. 81348-5. Thomas Eaton was stopped by Vancouver police for driving with his headlights off (presumably at night). He was arrested for DUI and taken to jail, where a bag of methamphetamine was discovered in his sock. He was convicted of DUI and possession of a controlled substance. He received a sentence enhancement (RCW 9.94A.533(5)) for the latter conviction because the drugs were discovered within the jail. The Court of Appeals overturned the enhancement, finding that Eaton was taken to jail against his will and that the statute "was not intended to punish defendants for their involuntary acts."

The Supreme Court begins its analysis with an attempt to describe the fundamental principles of criminal culpability. The effort is made difficult by past high courts' failures to enforce traditional protections against overreaching legislatures. The original common law definition of a crime required both an actus reus--literally, a "bad act"--with a corresponding mens rea--a "bad mind." There might be recovery in tort for a harmful act accomplished without mens rea, but it was not a crime. Additionally, an involuntary act was not considered an act at all. Punishment was meted out only where defendants were culpable--where they caused harm by choice and so might have chosen differently.

Today, the Court rejects the state's argument that the sentencing enhancement should apply without regard to the common law (or, some might believe, common sense) requirement of intent or at least volition. Justice Chambers, writing for the majority, reminds the state that statutes are construed "in a way that is consistent with their underlying purpose." The Court holds that the sentencing enhancement statute includes "a volitional element that the state must prove beyond a reasonable doubt."

Justice Fairhurst, joined by Justices Madsen, Owens, and Johnson, dissent. They would accept the state's argument and refuse to construe the statute according to the common law protections. (briefs and argument)

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Two more decisions from the Supreme Court today:

State v. Madsen, No. 81450-3. The question in this case was whether the trial court properly denied a defendant's request to represent himself. Kurt Madsen was charged with three felony counts after he violated a no-contact order. At trial Madsen repeatedly requested to represent himself. The trial court denied his motion, stating he had been “extremely disruptive,” “repeatedly addressed the court at inopportune times,” and “consistently showed an inability to follow or respect the court’s directions.”

The Supreme Court, with Justice Jim Johnson writing the opinion, held that the Washington Constitution explicitly guarantees criminals the right to self-representation. The right is not absolute, however, and trial courts may determine whether a request for self-representation was made properly. The Court found that Madsen’s request had been “unequivocal, timely, voluntary, knowing, and intelligent” and Madsen had repeatedly cited article I, section 22 of the Washington Constitution. The Court held the trial court’s decision was in error, and remanded for further proceedings. 

Justice Mary Fairhurst concurred separately with the outcome, but expressed concerns about whether Madsen made a timely, knowing, and intelligent waiver of counsel.

State v. Osman, No. 82671-4. The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.

Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.On appeal, the Court of Appeals held the standard of review is abuse of discretion rather than reviewing the question of materiality.

Justice Richard Sanders, writing for a unanimous court, wrote that as the missing portion of the electronic record is significant and material to the appeal, Osman is entitled to a new trial.
 

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The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.

Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.

On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.

One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote. 

Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court. 

Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.

UPDATE: Additional thoughts on the case over at OG-Blog.

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The Supreme Court will issue opinions in several cases tomorrow.

Parmelee v. O’Neel, No. 82128-3 (briefs and argument). Whether an inmate is entitled to attorney fees if he gets an appellate court to vacate an infraction complaint against him and declare the underlying law unconstitutional.

State v. Eaton, No. 81348-5 (briefs and argument). The Supreme Court will determine whether a defendant’s sentence can be enhanced for an involuntary act under RCW 9.94A.533(5)(c).

State v. Madsen, No. 81450-3 (briefs and argument). Whether a trial court may deny a defendant’s request to represent himself.

State v. Osman, No. 82671-4 (briefs and argument). The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.

Yousoufian v. Ron Sims, No. 80081-2 (briefs and argument). An open records case that has gone up and down the court system for the past ten years, the final issue is the appropriate level of penalties for King County’s gross negligence in providing public records to Yousoufian.

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Among the opinions scheduled for tomorrow is a new ruling in Yousoufian v. Ron Sims, which was reargued after King County argued that Justice Richard Sanders shouldn't have participated in the case. The vacated opinion was considered one of the most significant open government rulings in recent memory.

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No arguments this week. The Supreme Court will likely issue opinions on Thursday.

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American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1. American Best Food owned the Federal Way dance club Café Arizona. Michael Dorsey was shot nine times in front of the club. Security guards carried him inside, but then carried him back out and "dumped him on the sidewalk." Dorsey sued the Café for failing to protect him from criminal conduct and for exacerbating his injuries after the assault. The Café's insurer, Alea London, refused to indemnify or defend the Café because the policy excluded "injuries or damages 'arising out of' assault or battery." The Café sued Alea for breach of contract, bad faith, and violation of the Consumer Protection Act. The trial court granted summary judgment for Alea, but the Court of Appeals reinstated the contract and bad faith claims and held that Alea had breached its duty to defend.

The Supreme Court today sustains the lower court, holding that "Alea's failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law." Justice Chambers wrote for the five-member majority. Justice Owens, with three other justices, dissented as to the finding of bad faith. (briefs, argument)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. Are physical therapists engaged in the practice of medicine? Benton Franklin Orthopedic Associates (BFOA) refers many of its patients to Benton Franklin Physical Therapy (BFPT), which it also controls through common ownership. Columbia, one of BFPT's competitors, sued alleging violations of the corporate practice of medicine doctrine (link to PDF), The Professional Services Corporation Act (PSCA) (RCW 18.100), the antirebate statute (RCW 19.68), and the Consumer Protection Act (RCW 19.86). The trial court granted BFOA summary judgment on the PSCA claim and certified the other issues to the Court of Appeals, which denied review.

The Court today holds that physical therapy is included in the definition of the practice of medicine. The Court upholds the grant of summary judgment on the PSCA claim and directs the trial court to enter summary judgment also in BFOA's favor on the corporate practice of medicine and antirebate statute claims. Because Columbia did assert facts that, if proven, would constitute breaches of the CPA, the Court upholds the trial court's refusal to grant summary judgment on the issue and remands for trial. Justice Owens wrote for the unanimous Court. (briefs--including 28 amicus briefs, argument)

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The Supreme Court is hearing arguments in the appeals of death row inmates Cal Coburn Brown, Jonathan Gentry, and Darold Stenson. The prisoners are challenging the state's lethal injection protocol as unconstitutional. Convicted murderer Brown had been scheduled for execution in March 2009 when the Supreme Court approved a last minute stay to allow his case to be consolidated with the challenge of the lethal injection practice.

The practice was upheld by Thurston County Superior Court judge Chris Wickham in July of last year. Earlier this month the State recently sought to have the appeal dismissed as moot as the Department of Corrections has changed its lethal injection protocol.

We've written about the state's policy on capital punishment -- it has long been upheld as constitutional.

Today's arguments can be seen here on TVW.

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The Supreme Court will issue opinions in two cases tomorrow.

American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1 (briefs and argument). The issue here, as summarized by TVW, is whether an insurer must defend its insured in a case involving its negligence that occurred after an assault when the contract excludes coverage for injuries “arising out of” assaults?)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1 (briefs and argument). Columbia sued Benton on several grounds, all related to whether a physician-owned company providing orthopedic services can employ physical therapists. Both parties agree on the facts of the case, but differ on the applicable laws and cases. The trial court issued summary judgment on some of the issues and certified them to the Court of Appeals, and the parties asked for discretionary review. The Court refused the review, stating that the parties disagreed on what issues they wanted the Court to review.

The parties appeal to the Supreme Court, arguing that the denial of review departed so far from the "accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction" by the high court.

(Supreme Court judicial candidate Charlie Wiggins represented and argued for Columbia Physical Therapy.)

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The Court will hear four arguments today concerning gun possession, rental agreements, child rape and metadata in emails. (Docket, briefs)

Morning session, starting at 9:00 a.m.

Rivard v. State, No. 82431-2. This case concerns whether the current statutory prohibition on possessing firearms for felons who commit a "serious offense" can be applied retroactively.

James Rivard was convicted of vehicular homicide in 1994. At the time, vehicular homicide was a class B felony, and only class A felons permanently forfeited their right to possess firearms. But a judge mistakenly sentenced Rivard to forfeiture of this right.

The legislature subsequently amended the firearm statute to prohibit firearms to anyone convicted of a “serious offense,” including vehicular homicide.

After he was released from prison, Rivard petitioned for restoration of his firearm rights. The trial court granted the petition, applying the 1994 law and holding that the original forfeiture was invalid. Division Three Court of Appeals, however, held that the firearm regulations are regulatory rather than punitive, and so can be applied retroactively.

Little Mountain Estates Tenant Assoc. v. Little Mountain Estates, No. 82574-2. Argument in this case centers around whether the Manufactured/Mobile Home Tenant Act requires a 25-year fixed rate deal in a mobile home lease to be freely transferrable, or if it can be limited to the first signer.

Little Mountain Estates, a mobile home park, offered a 25-year fixed rate lease deal to attract tenants. The lease agreements provided that if a tenant assigned (transferred) his lease to someone else, it would convert to a one or two year lease.

Several tenants sued, claiming that the assignment clause violates the Manufactured/Mobile Home Landlord Tenant Act. The MHLTA requires all leases to be assignable, and the tenants claim that this means they must be able to transfer all their rights under the lease, including the “fixed rent for 25 years” provision.

Plaintiffs lost at Skagit County Superior Court, but successfully appealed to Division One Court of Appeals.

Afternoon session, starting at 1:30 p.m.

State v. Patel, No. 82649-8. Here the Court must decide whether a person can be convicted of attempted child rape when the victim was only posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of attempted rape of a child.

Child rape is a strict liability crime, meaning that the state must prove that the victim was underage, but not that the defendant knew she was underage. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The Spokane County Superior Court and Division Three Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

O'Neill v. City of Shoreline, No. 82397-9. This case revolves around whether email "metadata" is subject to disclosure under the Public Records Act.

During a public meeting, the mayor of Shoreline referred to an email alleging misconduct by council members, and claimed erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. The mayor provided O'Neill with a copy of the email without its header information (to, from, etc.), then deleted the original email. O'Neill filed several requests trying to get an electronic copy of the email, including all the metadata. Since the message had been deleted, the City never could produce the metadata.

The Division One Court of Appeals held that the metadata was a public record which the City was obligated to provide. But it also ruled that O'Neill's first request, which was simply for "a copy of the email," did not imply a request for the metadata. Only her subsequent requests, in which she was more specific about wanting an electronic copy of the email and its associated metadata, put the City in violation of the PRA when they did not provide those records. The City argues that at most, the metadata is “a public record with no retention value,” like an envelope. 

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This week the Supreme Court will hear arguments on Tuesday and Thursday, and may issue opinions on Thursday.

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This month we cover public access to criminal defense billing records, warrantless searches of locked vehicles, and the court’s opinion on whether minors have a constitutional right to possess guns.

Supreme Court of Washington Podcast - Does Sieyes matter?

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In re Pers. Restraint of Rainey, No. 81244-6. After convictions for first degree kidnapping and telephone harassment, Shawn Rainey's sentence included an order prohibiting him from any contact with his ex-wife and daughter for life. He appealed that order, challenging that it violates his rights under Apprendi v. New Jersey and Blakely v. Washington and his fundamental rights as a parent.

Justice Stephens writes for a unanimous Court, holding that RCW 9.94A.505(8) allows a sentence to include a no-contact order up to the statutory maximum "when the jury verdict reflects facts warranting the prohibition." Here, the judge found no facts beyond the jury verdict and so there is no violation of Apprendi or Blakely.

The right to parent, however, is a fundamental right. A sentence that infringes such a right must be "reasonably necessary to accomplish the essential needs of the State and public order." The Court finds the state interest here compelling, but notes that "the interplay of sentencing conditions to fundamental rights is delicate and fact-specific, not lending itself to broad statements and bright line rules." The Court expresses dissatisfaction with the sentencing court's failure to provide a rationale for the extreme duration of the no-contact order and on that basis strikes the order and remands for resentencing.

(Briefs, argument)

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In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new commitment trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

UPDATE: Nina Shapiro at the Seattle Weekly has this article criticizing the Court's decision in Pouncy's case.

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In case you have a fetish for following open government law, like we do, here's the video from yesterday's oral argument in Yakima County v. Yakima Herald Republic.

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Today the Court will hear four arguments concerning criminal evidence, public records and due process. (Docket, briefs)

Morning session, starting at 9:00 a.m.

State v. Ibarra-Cizneros, No. 82219-1. The question before the Court is whether prosecutors can use criminal evidence uncovered via a cell phone seized illegally by police.

Gilberto Ibarra-Cisneros called his brother's cell phone, not knowing that his brother had been arrested and the phone seized by police. The police answered the phone and arranged to meet with Gilberto. At the meeting, undercover officers found drugs on him and arrested him.

Later a court determined that the search leading to the brother's arrest (and thus the seizure of the cell phone) was illegal. Gilberto argues that since the police only turned their attention to him because of the cell phone, all the evidence from their meeting is “fruit of the poisonous tree” barred by the exclusionary rule. The Walla Walla Superior Court disagreed, holding that the link between the phone and the evidence was “too attenuated” to impact Gilberto’s conviction.

The Division Three Court of Appeals upheld the conviction.

Yakima County v. Yakima Herald-Republic, No. 82229-8. This case concerns whether the Public Records Act compels disclosure of sealed billing records concerning fees paid by Yakima County to public defense attorneys.

Yakima County appointed lawyers to represent two indigent murder defendants, paying them approximately $2 million. As part of the payment process, a judge who was not otherwise involved in the case reviewed the lawyers' bills to decide whether they should be paid.

The Yakima Herald-Republic filed a request under the Public Records Act for spreadsheets and other files related to the bills. The County withheld the records, claiming that they were exempt from the Public Records Act under Nast v. Michels because they are judicial records. The Herald-Republic argues that Nast only exempts “court case files,” not administrative records.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming Nast and finding that administrative court records were not subject to the PRA, so it will be interesting to see what differentiation the Court makes in this case.

Afternoon session, starting at 1:30 p.m.

State v. Nason, No. 82333-2. The issue before the Court is whether Spokane County's policy of imposing jail time on offenders who fail to pay court costs violates due process.

James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. (Spokane County has a policy allowing the courts to order jail time when a defendant refuses to pay his obligations.) Nason argues on appeal that this violated his due process rights in various ways, including the lack of a separate hearing and the fact that he was not given credit against his financial obligations for the time served in jail.

The Division Three Court of Appeals upheld his sentence.

State v. Stubbs, No. 81650-6. This case concerns whether a stabbing that results in partial paralysis satisfies the requirement for an exceptional sentence for first degree assault, and whether the requirement itself is unconstitutionally vague.

Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing him from the waist down. Stubbs was convicted of first degree assault and given an exceptional sentence due to his victim's injuries. Such sentences are allowed where the injuries “substantially exceed the level of bodily harm necessary to satisfy the elements” of a crime.

Stubbs argues that since one element of first degree assault is the infliction of “great bodily harm,” Goodwin's extreme injuries are an element of the crime. The court disagreed, holding that the jury could find that Goodwin's injuries substantially exceeded the great bodily harm element.

Stubbs also argues that the test for an exceptional sentence, found in RCW 9.94A.535(3)(y), is unconstitutionally vague. 

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Tomorrow the Court will hear Yakima County v. Yakima Herald-Republic, which concerns whether the Public Records Act applies to administrative court records, specifically billing records explaining fees paid by Yakima County to public defense attorneys.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming the twenty-year precedent in Nast v. Michels and finding that administrative court records were not subject to the PRA, so it will be interesting to see if the Court will try to differentiate this case, or merely affirm Koenig.

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The Supreme Court will hear arguments in several cases on Tuesday, and will likely issue opinions on Thursday.

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One of the unique features of Washington's 2010 judicial elections will be the role of social media in helping candidates get out their message. Three state Supreme Court justices are up for reelection – Madsen, Sanders, and Jim Johnson – and already candidates are employing social media in ways never before used in Washington Supreme Court elections. Justice Jim Johnson announced his reelection bid on his Facebook page and attracted dozens of fans within a few hours. Justice Sanders also has a Facebook page which announces campaign events. Attorney Charlie Wiggins, who is challenging Sanders, is on both Facebook and Twitter.

Last November the Washington Ethics Advisory Committee issued an opinion that stated judicial blogging is permitted under the Code of Judicial Conduct, provided the judge can do so in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Presumably the same guidance would apply to newer forms of social marketing as well.

This trend is not unique to Washington. Attorney and blogger Don Cruse (@doncruse) covers the state Supreme Court in Texas, where voters just completed a primary for open Supreme Court seats. Don created a feed of the Twitter accounts of each candidate -- a fascinating stream-of-consciousness resource for voters. 

LexBlog CEO Kevin O’Keefe is the Aristotle of legal bloggers – he spends his time wandering around the country training lawyers how to blog. (Read, for example, his blog post “Focus on the possibilities of blogging and social media, not the challenges.”) The legal profession is embracing the potential of social media, so it's logical that the judiciary would eventually follow.

Judicial candidates are no longer speaking through intermediaries like campaign literature or editorial boards. They’re appealing directly to the members of the public who will vote for them. What impact will social media have in these races? Is this a good development? 

What do you think?

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The Supreme Court today decisively ruled that sentencing enhancements for the possession of a weapon during the commission of a crime are not constitutionally prohibited. The case is State v. Aguirre, No. 82226-3 (briefs and argument).

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. Aguirre argues the trial court committed a number of errors, and argues that the deadly weapon enhancement to his sentence for assault with a deadly weapon violates double jeopardy. The double jeopardy clauses of both the federal and state constitutions protect defendants from being twice put in jeopardy for the same crime.

The Supreme Court, with Justice James Johnson writing the unanimous opinion, rejected all of Aguirre’s claims. On the double jeopardy issue the Court said: “Washington courts repeatedly have held that double jeopardy is not offended by weapon enhancements even when being armed with the weapon is an element of the underlying crime.”

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Chief Justice Barbara Madsen filed her candidate registration form yesterday, formalizing her plans to run for reelection. She has yet to draw any opponents.

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Justice Jim Johnson announced his plan to seek a second term on the Supreme Court. Check out his campaign Facebook page here. The page describes Justice Johnson as "the state Supreme Court’s most ardent supporter of liberty and judicial restraint." At this time there are no challengers for his position.

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The Supreme Court granted several petitions for review during its March 2 conference.

• Qualcomm, Inc. v. Dept of Revenue, No. 83673-6
• State v. Sims, No. 83779-1
• Snohomish County Pub. Transp. Benefit Area Corp. v. Firstgroup Am., Inc., No. 83795-3
• ZDI Gaming, Inc. v. Wash. State Gambling Comm'n., No. 83745-7
• State v. Simms, No. 83826-7
• State v. Donaghe, No. 83738-4

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The Washington Supreme Court will consider new petitions for review on Tuesday, and may issue opinions on Thursday. No arguments are scheduled this week.

In other news, Supreme Court hopeful Charlie Wiggins in now on Twitter.

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