Supreme Court of Washington Blog : Supreme Court of Washington Blog : Washington Public Policy & Budget News : Freedom Foundation : WA State Tax & Labor Law Commentary & Updates

Lummi Indian Nation v. State, No. 81809-6. In 1998, the Court held in Dep't of Ecology v. Theodoratus that "new private water rights did not fully vest until the water was put to a beneficial use...." Five years later the legislature redefined "certain nongovernmental water suppliers as municipal," so that Theodoratus would not apply to them, and made the change retroactive. Various Indian tribes and environmentalist organizations sued, alleging that the legislature had violated the separation of powers by overruling the Court and alleging a facial violation of due process for making the change retroactive. The trial court found that the legislature had violated the separation of powers and either rejected or declined to reach the other claims; both sides appealed.

The Supreme Court, in a unanimous opinion authored by Justice Chambers, reverses the trial court on the separation of powers and sustains the rest of the lower court's decision, effectively finding for the state on all issues and upholding the legislative changes. The Court notes that this rejection of the facial challenge does not prevent parties from bringing "as applied challenges. (briefs, argument)

State v. S.S.Y., No. 83299-4. S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for a vicious attack that left the victim, another youth, with permanent injuries. The juvenile court determined that S.S.Y.'s sentences run consecutively, which S.S.Y. challenged. The Court of Appeals upheld the sentence. The Supreme Court agrees that the legislature intended to punish the crimes of first degree assault and first degree robbery separately and thus upholds the courts below. The Chief Justice writes for a unanimous court. (briefs, argument)

State v. Werner, No. 84388-1. Werner was convicted of first degree assault after an altercation with a neighbor. According to Werner, the neighbor had seven dogs, including pit bulls and a Rottweiler, that were menacing Werner when he pulled his handgun, which then accidentally discharged. Werner appealed on the grounds that the trial court refused to instruct the jury on self defense. The Court of Appeals affirmed. The Supreme Court, with a per curiam opinion, reverses the courts below and reverses Werner's conviction.

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In re Detention of Post, No. 83023-1. Charles Post was convicted in 1987 for first degree burglary and rape. Before his scheduled release from prison in 2003, King County petitioned for Post's civil commitment as a sexually violent predator (SVP). The first commitment trial led to a hung jury; after the second trial, the jury found that Post was an SVP. At the second trial, but not the first, prosecutors had introduced evidence about the treatment that would be available to Post if he was committed. Post objected, but the trial court denied his motions. The trial court also refused to allow Post to introduce evidence that, if he was released, he could be subject to a later SVP commitment petition for a "recent overt act."

Post appealed these determinations of the trial court and a divided Court of Appeals reversed his commitment and remanded for a new trial. Today, the Supreme Court in an opinion by Justice Owens agrees with the Court of Appeals and with Post. Evidence of possible future treatment was irrelevant and was not harmless error. Furthermore, evidence that Post could later be subject to an SVP commitment petition was relevant and should have been admitted. Six other justices signed the majority opinion.

Justice Stephens concurs with the outcome but offers a more limited rationale. The Chief Justice concurs in part and dissents in part. She would exclude the state's treatment program evidence, but would also exclude Post's evidence of the possibility of a later petition. (briefs, argument)

Tracfone Wireless, Inc. v. Dep't of Revenue, No. 82741-9. Tracfone, which sells prepaid wireless phone service, sued the Department for a refund of the enhanced 911 excise tax. A bare majority of the Court today upholds the trial court's grant of summary judgment for the Department, holding that RCW 82.14B.030 applies to prepaid wireless phone service as it does to any other wireless phone service.

In effect, TracFone is seeking a decision that whether the tax is owed depends upon how a company decides to market and charge for its service or, to put it another way, whether the tax must be paid depends entirely upon the individual company's business model.

The Chief Justice writes for the majority. Justice Chambers, joined by three other justices, dissents. He argues that tax statutes must be narrowly construed and, where there is ambiguity, construed in favor of taxpayers. Looking beyond the statutory description of the tax to the statutory language that governs how the tax is collected, the dissent finds that the legislature did not anticipate the tax applying to pre-paid wireless services. (briefs, argument)

Summaries of today's three unanimous decisions will be posted soon.

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The Court will hear arguments in four cases today. (Docket, briefs)

Morning session (9:00 a.m.)

Mills v. Western Washington University, No. 83597-7. The question here is whether holding a closed disciplinary hearing violated the Administrative Procedures Act. Western Washington University brought disciplinary charges against a professor, Perry Mills, for verbally abusive behavior. Over Mills’ objection, the charges were heard in a closed session. On appeal, the appellate court held that the closed hearing violated the APA. The University argues that because its internal rules allow a closed hearing, the hearing was allowed to be closed under the APA.

Beggs v. Washington, No. 84098-9. Tyler DeLeon was starved to death by his adoptive mother. Several doctors were sued on behalf of Tyler and his surviving siblings based on the claim that they hadn’t reported signs of child abuse. The court dismissed claims based on the mandatory reporting statute, finding that the doctors’ actions related to child abuse reporting are “health care” governed by the medical malpractice statutes. The plaintiff claims that reporting is done for legal purposes, not to provide medical care, and so it is not health care under the statutes. The court also dismissed a wrongful death claim on behalf of Tyler’s siblings because they are not financially dependent on Tyler. The plaintiff argues that the adoption support payments made to Tyler’s adoptive mother could have been used for joint family expenses, thus making the siblings dependent on Tyler. The issues before the Supreme Court are: 1) Whether the adoptive siblings of a deceased adopted child were dependent on him for support under the wrongful death statute based on the parent’s receipt of adoption support payments for the child; and 2) Does the medical malpractice statute preclude a civil action against health care providers under the mandatory child abuse reporting statute.

Afternoon session (1:30 p.m.)

Hardee v. DSHS, No. 83728-7. The issue before the Supreme Court is whether a daycare license is a professional license requiring a higher burden of proof to revoke. Kathleen Hardee ran a daycare until DSHS revoked her license for various reasons. Hardee appealed the revocation, and the Administrative Law Judge overturned the revocation. DSHS then appealed to Superior Court, which found that the license revocation was proper by a preponderance of the evidence. Hardee argues that she has a constitutional interest in her license which requires the revocation to be supported by “clear, cogent, and convincing” evidence. The appellate court disagreed, finding that a daycare license is a site license rather than a professional license, and thus “preponderance of the evidence” was the proper burden of proof.

Dolan v. King County, No. 82842-3. Whether the members of King County’s public defender organizations are public employees under the Public Employees’ Retirement System (PERS). King County provides public defense services through contracts with four nonprofit organizations, over which the county has some oversight. Kevin Dolan filed suit against the county on behalf of these organizations’ members seeking benefits under PERS. Dolan claims that the organizations are public entities. The trial court decided that the organizations’ members should be considered public employees under PERS, but certified the issue for appeal before proceeding with the case.

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Leading up to the August primary election, the Seattle Times editorial board endorsed Justice Richard Sanders’ re-election to the state Supreme Court, over his challenger Charlie Wiggins.

In its endorsement, the Times said: “Justice Richard Sanders should be re-elected to the Washington Supreme Court. The court's most fundamental job is to push back against the other two branches of government — the executive and the legislative — when they step on the rights of the people. No member of the court does that more consistently, and with greater gusto, than Sanders.”

But in the wake of controversial comments Justice Sanders made about racial disparities in the criminal justice system, the Times has taken a self-admitted “unusual step” of withdrawing its endorsement of Sanders. “The Seattle Times now supports lawyer Charlie Wiggins, who was a close call in our primary endorsement. We said then that Wiggins was fully qualified to serve on the bench and be a strong voice pushing back against government.”

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Today the Court will hear four arguments as usual. (Docket, briefs)

Morning session (9:30 a.m.)

Blair v. Travel Centers of America, No. 83715-5. Whether the trial court abused its discretion by not allowing medical witnesses to be called due to violation of a local procedural court rule.

Truck driver Maureen Blair slipped and fell on spilled oil at a gas station, and sued the station. The King County Local Court Rules require parties to disclose possible witnesses by certain deadlines before trial. Blair's counsel failed to submit a list on time. The court allowed a list to be submitted, but as a sanction only allowed 7 witnesses on the list (instead of 14).

Just before trial, Blair's counsel indicated an intent to call two medical witnesses who had not appeared on either possible witness list. The defense objected, and the court disallowed the new witnesses. The case was later dismissed for lack of necessary medical evidence. Blair argues that the trial court failed to make necessary findings and abused its discretion when it disallowed witnesses and dismissed the case. The Division One Court of Appeals disagreed with him.

State v. Wilson, No. 83797-0. Whether resentencing is appropriate if a court erroneously classifies a gross misdemeanor as a felony when calculating a criminal sentence.

Jason Wilson pleaded guilty to identity theft. The plea agreement incorrectly listed a prior conviction for an attempted drug crime as a felony instead of as a gross misdemeanor, and calculated Wilson's offender score accordingly. Wilson argues that he is entitled to resentencing because his offender score was miscalculated.

The Court of Appeals disagreed, since the law requires attempted felonies to be treated as felonies when calculating offender score. This means the gross misdemeanor would be counted as a point toward Wilson's offender score anyway, and the factual error would not invalidate the sentencing.

Afternoon session (1:30 p.m.)

State v. Robinson (consolidated w/State v. Millan), No. 83525-0. Whether the admissibility of evidence can be challenged on appeal based on a new constitutional interpretation, when that point was not raised at trial.

Michael Robinson and Francisco Millan were each convicted of crimes based on evidence obtained through warrantless searches of their cars. In both cases they were confined away from the car before the search took place.

While Millan's case was on appeal the U. S. Supreme Court decided Arizona v. Gant, holding that the search of a car incident to arrest is only valid if the defendant is still within reaching distance of the passenger compartment (or if there is reason to believe the search will uncover evidence). Millan challenged the search of his car based on Gant, but the Court of Appeals rejected his argument since he hadn't raised the issue at trial. Millan claims that he should be allowed to challenge the search on appeal because the law changed after the trial was over.

In re the Personal Restraint of Glenn Nichols, No. 83742-2. Whether an issue can be raised in a personal restraint petition that was not raised at the trial court, and whether a police search of a hotel registry was valid.

Glenn Nichols was convicted of drug crimes based on a police search of a motel registry. After he had appealed his conviction (but before the appeal had been denied) Nichols filed a personal restraint petition based on the claim that the registry search violated the state constitution. The Court of Appeals denied the petition, saying that since the issue had not been raised at trial and could not be raised for the first time on appeal, it also couldn't be raised for the first time in a personal restraint petition.

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The Supreme Court will hear oral arguments on October 26 and 28, and will likely issue opinions on Thursday.

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As readers know, Charlie Wiggins is running against Justice Richard Sanders for Position 6 on the Supreme Court. Wiggins briefly served as a judge on the Court of Appeals. In that capacity he authored 17 majority opinions. Below is a summary of each of his opinions.

Twelve of Judge Wiggins’ opinions were appealed to the Washington Supreme Court. The Supreme Court denied review in six appeals, which in effect affirms the Court of Appeals ruling. Meanwhile, six of Wiggins’ opinions were accepted for review by the Supreme Court. Of those six, four opinions were overturned.

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The Federalist Society has posted the video from a debate it recently hosted between Justice Richard Sanders and challenger Charlie Wiggins. 

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Today the Court is hearing four oral arguments, two this morning and two this afternoon. (Docket, briefs)

Morning session

State v. Jones, No. 83451-2. (consolidated with State v. Donaghe). These cases concern the issue of whether excess time spent in prison can offset the "community custody" portion of a sentence.

Cliff Jones was sentenced to 130 months of incarceration and 36 months of community custody for child molestation. He was later re-sentenced to only 51 months of incarceration. At the time of his re-sentencing Jones had already spent 81 months in custody. The trial court credited this time to his new prison sentence, but did not credit the remaining 30 months to offset the community custody portion of his sentence.

Sam Donaghe was sentenced to prison and community custody for multiple counts of rape. After the prison portion of his sentence, Donaghe was committed as a sexually violent predator. The trial court refused to issue certificate of discharge after a year (necessary for Donaghe to regain his voting rights) because Donaghe hadn't served his community custody.

Both Jones and Donaghe argue that the time they have spent in custody beyond their prison sentences should count toward their community custody time. The Court of Appeals disagreed in both cases, holding that the offender must be "in the community" for his community custody to commence.

Kittitas County & Central Washington Home Builders Assoc. v. Eastern Washington Growth Management Hearings Board, No. 84187-0. This case concerns whether Kittitas County's comprehensive land use plan complies with the Growth Management Act.

Various environmental groups challenged Kittitas County’s Comprehensive Plan and the Hearings Board invalidated it on several grounds. It found that the county allowed rural densities of one unit per three acres and that it failed to provide for a variety of rural densities. The Central Washington Home Builders Association was joined as a party while the plan was still before the Hearings Board, and now both Kittitas County and the CWHBA are challenging the Board’s decision.

Afternoon session

State v. Robinson, No. 83444-0. Here the Court must determine whether changing the sentence for a conviction after uncovering previous past crimes invalidates a defendant's guilty plea, when that plea was made in reliance on the original sentencing terms.

Chucco Robinson pleaded guilty to rape and burglary charges as part of a plea agreement. Robinson's potential sentence was incorrectly calculated because the state was unaware of four juvenile convictions. Robinson did not reveal the convictions because he mistakenly believed that they would not affect his offender score.

When the state discovered the juvenile convictions, it modified Robinson's recommended sentence to take into account his actual offender score. Robinson argues that his plea was not knowing and voluntary, but the Court of Appeals held that he bore the risk of the prosecutor discovering his undisclosed criminal history.

Veit v. Burlington Northern Santa Fe Corp. No. 83385-1. Whether an excessive speed claim against a railroad company is preempted by federal law, or should be judged by internal speed limits.

Alizon Veit drove her car onto a railroad crossing, stopped on the track, and was hit by a train. She sued the railroad and the city, claiming that the crossing was improperly designed and that the train was going too fast. Before trial, the court held that the claims based on train speed were preempted by federal law, because under the Federal Railroad Safety Act (FRSA) the type of track in question has a speed limit of 40 mph. and the train was going slower than that.

Veit argues that the FRSA requires railroads to maintain track to certain standards based on their own internal speed limits, rather than setting speed limits based on the track. She claims that because of this, evidence of the railroad's internal speed limits is not preempted by the FRSA.

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City of Seattle v. Holifield, No. 83277-3. The City charged Matthew Jacob with DUI after he failed a Breathalyzer test. The Breathalyzer used had been calibrated using a control alcohol solution certified by Ann Marie Gordon, the former manager of the Washington State Toxicology Laboratory. Gordon resigned after it was publicized that she falsely certified alcohol solutions.

Jacob and the City of Seattle agreed to apply a ruling from a similar case (Seattle v. Kennedy) to this one. The Kennedy court found the Gordon misconduct resulted in actual prejudice to the defendant. But rather than dismissing the Kennedy case, the Breathalyzer evidence was merely suppressed.

The Breathalyzer evidence in Jacob’s case was also suppressed, but the City argued that only dismissal was available under applicable court rules (CrRLJ 8.3(b)).

The Supreme Court unanimously disagreed and held that suppression is an available remedy. Justice Richard Sanders wrote the opinion of the court.

State v. Eriksen, No. 80653-5. The Supreme Court said today that tribal police officers can pursue motorists beyond the limits of tribal lands on suspicion of driving under the influence until authorities with jurisdiction to arrest arrived.

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

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

The Supreme Court, with Justice Richard Sanders writing the majority, said that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws. Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in fresh pursuit of a violator. The court said this doctrine should apply to sovereign tribal nations as well.

Justice Mary Fairhust dissented, writing that the fresh pursuit doctrine is inapplicable. “I join that part of the majority's analysis that finds, pursuant to inherent tribal sovereignty, that Lummi Nation Tribal Police Officer Mike McSwain had authority to stop Loretta Eriksen outside the reservation to determine whether she was a tribal member over whom McSwain had jurisdiction. However, because I cannot find any applicable authority under which McSwain had the power to detain Eriksen once he determined she was not a tribal member, I am ultimately forced to dissent.”

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State v. Ish, No. 83308-7. Nathaniel Ish beat his girlfriend to death and was convicted of second degree felony murder. He challenged his conviction on multiple grounds; it was upheld by the Court of Appeals. The Supreme Court accepted review only to consider whether the prosecution's reference to a witnesses agreement to testify truthfully constituted improper "prosecutorial vouching."

Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)

The Court today issues a lead opinion for four justices, a concurring opinion for another four justices, and a dissent by Justice Sanders. The lead opinion, by Justice Chambers, holds that the trial court did abuse its discretion by allowing the prosecution to reference the witness agreement before the witness's credibility was challenged by the defense; the error, however, was harmless. Justice Stephens wrote the concurrence, finding no error. Justice Sanders agrees with the lead opinion that the trial court did err, but disagrees that the err was harmless and would have reversed the lower courts. (briefs, argument)

State v. Moeurn, No. 82995-1. Lauren Moeurn challenged his sentence for second degree assault with a deadly weapon enhancement, arguing that the trial court miscalculated his offender score. The trial court had treated an "attempt" offense as a completed offense, thus changing a class-C felony to a class-B felony and doubling the number of years (from 5 to 10) for it to "wash out" for the purposes of calculating Moeurn's offender score.

The state actually conceded the issue at the Court of Appeals, but the Court rejected the concession and upheld Moeurn's sentence. The Supreme Court today unanimously reverses the courts below, quoting at length from RCW 9.94A.525 to show that the rule for which offenses to include and the rule for how to score included offenses are different. While the latter requires treating attempt offenses as if completed, the former does not. Justice Alexander wrote for the Court; the case is remanded for resentencing.

State v. Stubbs, No. 81650-6. Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing most of Goodwin's body. Stubbs was convicted and given an exceptional sentence due to his victim's injuries. Stubbs challenges the sentence, arguing that no injury short of death can exceed "great bodily harm" in RCW 9.94A.535(c)(y). Eight members of the Court today agree with Stubbs. The majority opinion is written by Justice Alexander, and the case is remanded for resentencing. Justice James Johnson dissents. (briefs, argument)

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O'Neill v. City of Shoreline, No. 82397-9. In a case of first impression, the Supreme Court ruled this morning that metadata associated with public records such as email is a public record, subject to disclosure under the Public Records Act. Justice Susan Owens wrote the majority opinion (signed by Sanders, Chambers, Fairhurst, and Stephens). Justice Gerry Alexander wrote a dissent (signed by Madsen, C.Johnson, and J.Johnson).

During a public meeting, Shoreline Deputy Mayor Maggie Fimia referred to an email she had received that alleged misconduct by council members. Fimia mentioned erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. Fimia forwarded O'Neill a copy of the email without the “to” and “from” lines.” O’Neill then requested all information surrounding the email. An original, unaltered copy of the email string was provided. After the second disclosure, O’Neill requested the metadata (hidden information about electronic documents) from the email chain. Apparently, however, the original email in electronic form was deleted.

O’Neill sued, alleging a violation of the Public Records Act. The trial dismissed the case, but the Court of Appeals ruled that metadata must be disclosed under the PRA. The city and deputy mayor appealed.

The Supreme Court resolved four questions: 1) Is e-mail metadata a public record that must be disclosed under the PRA? 2) Does a request to see an e-mail inherently include a request to see metadata? 3) Did the Court of Appeals err by granting attorney fees? 4) Can a public records request be decided on affidavits alone?

On the first issue, the Supreme Court noted the broad definitions in the PRA that are intended to give the public control over their government. Therefore, “an electronic version of a record, including its embedded metadata, is a public record subject to disclosure. There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed.”

Second, the court held that metadata must be explicitly requested in order to trigger an agency’s obligation to provide it.

Third, the court remanded the case to trial court to determine whether a violation of the PRA actually occurred, and denied attorneys fees until such a determination is made.

Finally, the court held that the PRA allows a hearing to be conducted based solely on affidavits.

 (briefs, argument)

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The Supreme Court will issue opinions in several cases tomorrow.

Forbes v. American Building Maintenance Company West, No. 82950-1. Whether the plaintiff has to pay prejudgment interest on attorney fees to her attorney, and whether a settlement was properly modified. Attorney Mary Schultz represented Cheryl Forbes in an employment discrimination suit against American Building Maintenance. Schultz won the trial and the first appeal. Schultz and Forbes had a falling out, and while the case was on appeal to the Supreme Court Forbes fired Schultz and accepted a settlement offer by ABM. ABM deposited the settlement money in the court registry until the court could decide how much Schultz was entitled to. The trial court awarded prejudgment interest on the attorney's fees, and Forbes challenges this award. (briefs, argument)

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.), and the original email was apparently deleted. (briefs, argument)

State v. Garcia-Salgado, No. 83156-4. Did the State violate the U.S. or Washington Constitutions when it procured Garcia-Salgado’s DNA pursuant to a court order? (briefs, argument)

State v. Ish, No. 83308-7. Whether a prosecutor informing the jury that a witness agreed to a plea bargain requiring truthful testimony constitutes vouching for his credibility. Nathaniel Ish murdered his girlfriend and was arrested and imprisoned prior to trial. While in prison he talked to David Otterson, his cell mate, about the murder. The state made a plea agreement with Otterson which, in part, required him to testify truthfully at Ish's trial. While examining Otterson at trial, the prosecutor brought out the information that the plea agreement required Otterson to testify truthfully and that it could be revoked if Otterson breached it. Ish claims this was improperly vouching for the witness. (briefs, argument)

State v. Moeurn, No. 82995-1. Lauren Moeurn appeals his conviction and sentence for second degree assault with a deadly weapon enhancement. He argued that (1) the evidence was insufficient to prove he was the person who hit the victim; (2) prosecutorial misconduct in closing arguments deprived him of his right to a fair trial; and (3) the trial court miscalculated his offender score. The Supreme Court accepted the petition for review only on the offender score issue.

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. The court held that the jury could find that Goodwin's injuries substantially exceeded the great bodily harm element. (briefs, argument)

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The Supreme Court agreed to hear several new cases during its September conference.

• State v. Oppelt, No. 84573-5. Whether the state’s six year delay in bringing child molestation charges violated due process.
• Williams v. Athletic Field, Inc., No. 84555-7. Whether a trial court properly released a mechanics’ lien.
• Michael Grassmueck, Inc. v. McShane, No. 84568-9. Whether the trial court erred in vacating a default judgment.
• State v. Griffin, No. 84554-9. Whether the trial court abused its discretion in admitting hearsay testimony during sentencing proceedings in a conviction of residential burglary.
• State v. Franklin, No. 84545-0. Granted only on issue of term of community custody.

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