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State v. Irby, No. 82665-0. Terrance Irby was convicted of aggravated first degree murder and other crimes and sentenced to life in prison. One of his grounds of appeal challenged the use of email at the beginning of voir dire. Several jurors were disqualified after an email exchange, outside of Irby's presence, between defense counsel, prosecutors, and the judge. The Court of Appeals threw out Irby's conviction and held "that the trial court 'violated Irby's right to be present and contribute to jury selection.'"

The right to be present at one's own trial is protected by the Fourteenth Amendment of the U.S. Constitution and article I, section 22, of the Washington Constitution. The latter "provides an explicit guaranty of the right to be present:

"In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel."

The Court sustains the Court of Appeals, holding that the trial court's use of email to begin the voir dire process and strike several jurors outside of the presence of Irby violated his due process rights and that the error was not harmless. Justice Alexander wrote for a bare majority. Chief Justice Madsen wrote a dissent, joined by three other justices, arguing that the trial court has discretion to remove jurors and that Irby's presence at the discussion in question would not "substantially relate to his ability to defend himself." (briefs, argument)

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Lamtec Corp. v. Dep't of Revenue, No. 83579-9. The Department of Revenue ordered Lamtec, a New Jersey corporation that manufactures construction materials, to pay Business and Occupation (B&O) taxes. Lamtec paid under protest and initiated this challenge. Lamtec has no employees or operations based in Washington state, but it does sell to buyers in Washington and sends sales employees into the state. Lamtec argued that this did not create a sufficient nexus for Washington to impose business taxes on the corporation and thus alleged a violation of the Dormant Commerce Clause (link to PDF article). The trial court dismissed Lamtec's action; the court of appeals affirmed.

The State Supreme Court affirms the courts below, reaffirming its previous decision in Tyler Pipe Industries v. Department of Revenue (1986; affirmed by the Supreme Court of the United States). In that case, the Court held that Tyler's use of independent contractors to represent its interests in Washington state created sufficient nexus in the state to subject Tyler to B&O taxes. The Court explicitly refuses to create a bright line rule and holds that the use of sales representatives within the state to maintain its market created a sufficient nexus to tax Lamtec. Justice Chambers wrote for a six-member majority.

Justice Alexander, for himself and two other justice, dissents. He would distinguish Tyler Pipe because the contractors in that case were employed specifically within Washington state unlike Lamtec's employees who occasionally visited the state. (briefs, argument)

Rahman v. State, No. 83428-8. The Department of Ecology provided intern Mohammad Rahman with a state-owned car to drive from Olympia to Spokane so that he could accompany another department employee on an inspection. Against department rules, Rahman brought his wife, Rizwana Rahman, on the trip. During the drive, he lost control and crashed. Rahman's wife was seriously injured and she sued the State, alleging that the State is "vicariously liable under the doctrine of respondeat superior for her husband's negligence in causing the accident."

The trial court granted summary judgment to the State, but the Court of Appeals reversed and ordered partial summary judgment in favor of Rizwana Rahman. The Supreme Court sustains the court below, holding that the state is subject to the same vicarious liability as private employers. It further holds that an employer is liable for an employee's negligent acts done in the service of the employer even when, as here, the injured party's presence violated a command of the employer.

The doctrine [of respondeat superior] rests upon the relationship between an employer and employee, which is characterized by a right of control. The very fact that the employer is in a position to impose workplace rules and standards justifies vicarious liability, even where the employee acts in a forbidden way.

Justice Stevens wrote the majority opinion, which was signed by five other justices. Justice James Johnson, joined by the Chief Justice and Justice Alexander, dissents and accuses the majority of "extravagantly expand[ing] state liability." (briefs, argument)

State v. Barber, No. 83640-0. Danny Joe Barber pleaded guilty to felony DUI as part of a plea deal after a hit-and-run accident. The Kitsap County prosecutor recommended a minimum sentence of confinement to run concurrent with another sentence, but the prosecutor was either ignorant of or simply ignored a legal requirement of 9 to 18 months of community confinement as part of a felony DUI sentence. The Department of Corrections alerted the prosecutor's office to the error. Prosecutors moved to amend the sentence, but then agreed with Barber that he could demand specific performance of the original sentence. The trial judge disagreed and imposed an additional term of community custody to Barber's sentence. Barber appealed.

The Court holds that specific performance is not an available remedy for an illegal sentence. It overturns its previous decision in State v. Miller (1988) to the extent that it conflicts with this decision. Justice Stephens wrote for a unanimous court. (briefs, argument)

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The Supreme Court agreed to review several new cases in January.

• In Re Personal Restraint Petition of James Eastmond, No. 81939-4
• Rondi Bennett, et al., v. Smith Bundy Berman Britton, PS, et al., 84903-0
• In Re the Dependency of Jayden Hyde, No. 84916-1
• David Koenig v. Thurston County & the Thurston County Prosecuting Attorney, No. 84940-4
• Mercer Island Citizens for Fair Process v. Tent City 4, No. 84975-7
• Clausen v. Icicle Seafoods, No. 85200-6

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The Supreme Court will hear arguments in several cases on Thursday, and may issue opinions that day as well.

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

Morning session (starting at 9 a.m.)

State v. Posey, No. 82957-8. The issue here is whether the superior court had jurisdiction to sentence an offender for a juvenile offense after the offender had turned twenty-one years old. Daniel Posey, a 16-year-old, was charged with three counts of second degree rape and one count of first degree assault with a firearm. Since the assault was a “serious violent offense,” the juvenile court was required to decline jurisdiction and Posey was tried in superior court. He was convicted of two rape charges, but not the assault, and sentenced as an adult.

Posey appealed the adult sentence, since he had not been convicted of the assault, which is the crime that put him in superior court in the first place. The Supreme Court agreed, and Posey’s case was remanded to juvenile court for sentencing. However, by the time he got back to juvenile court Posey had turned 21.

Posey claimed that the juvenile court no longer had jurisdiction to sentence him, and the trial court agreed. The trial judge adjourned juvenile court and reconvened as an adult court, sentenced Posey, and entered a protection order. Posey appeals, claiming that the adult court lacked jurisdiction to sentence him. The Court of Appeals disagreed, holding that the adult court had “residual jurisdiction” once the juvenile court’s jurisdiction ended.

In Re PRP of Flint, No. 83815-1. Whether the rule returning a criminal to prison after his third community custody violation hearing is ex post facto law when applied to a prisoner convicted before the law was passed. Eric Flint pleaded guilty to robbery, served time in prison, and was released to community custody. He was brought to three community custody violation hearings, at each of which he was found guilty of various community custody violations. The law at that time (RCW 9.94A.737) required him to be returned to prison after his third violation hearing, and he was.

The rule sending him back to prison had been passed into law after Flint’s conviction. Flint argues that the rule as applied to him is “ex post facto law” because it imposes a more severe punishment on him. The appellate court dismissed the petition as frivolous.

Afternoon session (starting at 1:30 p.m.)

State v. Simms, No. 83826-7. Whether the state must give notice of a prior firearm conviction in order to double the term for a firearm sentencing enhancement. Daniel Simms was convicted (among other things) of robbery with a firearm enhancement. The trial court doubled the length of confinement for the enhancement because Simms had a previous firearm conviction.

An information must include all the essential facts for the charged crime, including enhancements. The information with which Simms was charged did not mention his previous conviction. Simms claims that this conviction was an essential fact to the doubling of his firearm enhancement, and appeals. The Court of Appeals held that the prior conviction was not essential to prove the enhancement itself, and that there is no requirement to give notice of a prior conviction “for purposes of a sentencing enhancement.”

In Re PRP of Coats, No. 83544-6. Jeffrey Coats pleaded guilty to robbery, conspiracy to commit robbery, and conspiracy to commit murder. Both his judgment and his plea statement listed incorrect maximum penalties for the conspiracy to commit robbery charge; both were too high. Although Coats’ conviction has been final for more than a year, he argues that the incorrect maximum makes his judgment facially invalid, allowing him to bring a personal restraint petition after the normal time limit. He seeks to withdraw his guilty plea, claiming that it was involuntary because he did not know the actual maximum penalty.

The Court of Appeals held that since Coats received a standard range sentence, the incorrect maximum penalty was a “technical misstatement that had no actual effect on the rights of the petitioner.” Thus, the court held that the judgment was not facially invalid and Coats’ petition was time barred.

The Supreme Court will review the question of whether the judgment and sentence are facially invalid.

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My apologies for the delay in posting these. The Court heard four arguments, as normal on Tuesday. (Briefs, docket)

Morning session (9 am)

Whatcom County Fire District v. Whatcom County, No. 836116. The Court must decide who determines whether fire protection is adequate for new developments: the county via its growth management plan, or the fire district.

As part of its comprehensive plan under the Growth Management Act, Whatcom County set levels of service for fire districts. Four developers filed for permits to build residential developments in the Birch Bay area. The fire district serving that area didn't believe it could maintain the necessary levels of service for the new residential areas without additional funding, but the county issued permits to the developers anyway.

Whatcom County Code requires a written finding that there will be adequate fire protection services before a development permit is issued. The fire district refused to issue these “concurrency letters” for the new developments, and appealed the permits. But the Division One Court of Appeals held that the “availability and adequacy” of public services is determined by the comprehensive plan, not the fire district. Thus, the court held that the district was required to issue concurrency letters, and upheld the permits.

Roe v. Teletech Customer Care Management, No. 837686. Whether Washington's medical marijuana act creates a cause of action for an employee fired for failing a drug test.

Jane Roe is authorized to use marijuana under Washington's medical marijuana law. She was hired by Teletech Customer Care Management, a telemarketing company, but Teletech fired her after she failed a drug test. Roe sued Teletech for wrongful termination.

Roe argues that the medical marijuana law implies a cause of action against employers for firing people because of medical marijuana use, and that the law establishes a public policy against firing people for using medical marijuana. The Division Two Court of Appeals disagreed, holding that the law simply protects medical marijuana users from criminal prosecution, and does not impose any duty on employers.

Afternoon session (1:30 p.m.)

In re the Restraint Petition of Martinez, No. 832196. Whether there was sufficient evidence to prove first degree burglary, and whether the petition was properly filed.

Raymond Martinez was convicted of first degree burglary after he was caught leaving a store that had been broken into. A knife apparently fell out of his belt sheath as he fled. Martinez challenges his conviction, claiming that there was insufficient evidence that he used, attempted to use, or threatened to use the knife. The Court of Appeals rejected the petition on procedural grounds.

State v. Russell, No. 843074. Whether a court must give a limiting instruction to a jury regarding evidence of past crimes if the defendant does not ask for it.

Arthur Russell was convicted of first degree child rape for sexual abuse of his stepdaughter. Russell was in the Navy, and abused his stepdaughter in Hawaii, Washington, Florida, and Indiana. The state presented evidence of the abuse in all four states. But the court did not give the jury a limiting instruction telling them they could only convict Russell for the abuse that occurred in Washington. (Evidence of the other abuse was admitted to show the pattern of abuse and Russell's “lustful disposition.”)

Russell claims that allowing the evidence of out-of-state abuse without giving a limiting instruction violated his due process rights. The state claims that Russell cannot challenge the lack of a limiting instruction since he did not request one at trial, and that the error was non-prejudicial. 

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

Chief Justice Barbara Madsen gave her State of Judiciary Address last week. You can watch the address here. 

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The court issued two lawyer discipline rulings on Thursday.

In re Discipline of King, No. 200,761-9. In July 2008, Paul King was charged with five counts of mail fraud after helping an individual fraudulently obtain benefits from the Washington State Employment Security Department. King pled guilty and was sentenced to 10 months of imprisonment, and ordered to pay $44,858 in restitution.

The Washington State Bar Association Disciplinary Board recommended disbarment, noting that King had been suspended three times previous for acts of dishonesty. King appealed to the Supreme Court, challenging the fairness of the disciplinary proceedings, arguing that disciplinary counsel should have been disqualified, and that the hearing officer failed to follow hearing rules. The Supreme Court, with Justice Debra Stephens writing the unanimous opinion, concluded that King’s disbarment was appropriate.

In re Discipline of Smith, No. 200,748-1. Attorney J. David Smith was convicted of conspiracy to commit securities and wire fraud. Rule 10.14(c) of the Rules for Enforcement of Lawyer Conduct states that the court record of an attorney’s criminal conviction is conclusive evidence of his guilt at a disciplinary proceeding. After Smith’s federal conviction, a hearing officer concluded that Smith violated several provisions of the Rules of Professional Conduct (RPC) and recommended disbarment. The Washington State Bar Association Disciplinary Board agreed.

Smith appealed, arguing that the rule unconstitutionally denied him due process. The Supreme Court, with Justice Jim Johnson writing, disagreed and disbarred Smith.

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Optimer Int'l, Inc. v. RP Bellevue, LLC, No. 83807-1. Optimer leases space in the Bellevue Galleria, which is owned by RP Bellevue. The lease requires the parties to resolve disputes by arbitration and makes the arbitrator's decision "final and non-appealable ...." Optimer alleged RP Bellevue violated the lease and the parties went to arbitration. The arbitrator agreed with Optimer.

RP Bellevue challenged the arbitrator's decision in King County Superior Court. The court found that the lease constituted "a voluntary and knowing waiver of judicial review" and denied RP Bellevue's motion to vacate the arbitrated award. RP Bellevue appealed and, after supplemental briefing, the court of appeals decided that the Revised Uniform Arbitration Act "prohibits parties from waiving the limited review provided for in the act," and that this does not conflict with the State Constitution's contract clause (article I, section 23).

Today, the Supreme Court affirms the court of appeals and remands the case to superior court. The Court clarifies that Harvey v. University of Washington is overturned "insofar as it suggests that parties may waive judicial review of arbitration awards under the [Washington arbitration act]." Justice Susan Owens writes for the Court, joined by all other justices except new Justice Wiggins, who did not participate. Former Justice Sanders also signed the opinion as Justice Pro Tem. (briefs, argument)

State v. Schultz, No. 82238-7. Officers responding to a complaint about a man and woman yelling at each other in an apartment eventually entered the apartment and found a marijuana pipe there before they obtained a warrant, which lead to the discovery of methamphetamine. Was the search valid under article I, section 7, of the Washington State Constitution and the Fourth Amendment of the Constitution of the United States?

The facts most favorable to the State are as follows. The police received a phone call from a resident of an apartment complex about a yelling man and woman. The responding officers stood outside and overheard a man and woman talking loudly. The officers heard a man say that he wanted to be left alone and needed his space. The officers knocked on the door. Schultz opened it, appearing agitated and flustered. Officer Malone asked Schultz about the male occupant of the apartment. Schultz told her no one was there, but when confronted with the fact the officers heard voices, summoned Robertson from a nearby bedroom. When Robertson appeared, the officers entered Schultz's apartment based upon her acquiescence only.

The Court holds that while the officers acted in good faith, there is no "reasonableness" exception in the Washington Constitution's protection against warrantless searches. The Court will not create a "good faith" exception to Washington's protection of privacy within the home; the evidence does not establish that an existing exception to the warrant requirement applies. The Court holds that the search was without authority of law and suppresses the evidence according to the exclusionary rule.

Justice Chambers wrote for a five-member majority. Justice Fairhurst, joined by four other justices, dissents and would find the officers' entry justified according to the emergency aid exception. (briefs, argument)

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Yakima County v. Yakima Herald-Republic, No. 82229-8. Jose Sanchez and Mario Mendez were each charged with two counts of aggravated first-degree murder in Yakima County. Defendants were found indigent and were provided attorneys at public expense. Two judges were assigned: one for the trial and the other, Judge C. James Lust, to rule on motions concerning public funding for the defense. All of these motions and related records were sealed, and the orders sealing them were also sealed. Mendez eventually pleaded guilty; Sanchez was convicted and appealed.

On March 7, 2008, the Herald-Republic made a motion to intervene in the two criminal actions for the limited purpose of challenging the continued orders sealing the pleadings and other financial documents related to the court-appointed defense costs .... The paper reasoned: "The criminal proceedings have concluded; the defendants' right to a fair trial has been preserved. The public now deserves to know how much the preservation of those rights cost."

Both defense attorneys opposed the motion. Sanchez's attorney argued that it was premature since his client's case was still on appeal and that such disclosure would at least require the permission of the court of appeals. Mendez's counsel challenged the paper's right to intervene at all. Judge Lust agreed with Sanchez's attorney that the motion would require approval from the appeals court.

The newspaper then filed requests pursuant to the Public Records Act with the Yakima County court administrator, clerk of Yakima County Superior Court, and Yakima County's public records officer. When the requests were denied, the paper and the County each sued the other. The trial court found that the PRA did not apply because the records sought were court records.

The State Supreme Court today reaffirms its earlier holding in Koenig, that documents actually held by the judiciary are not subject to the Public Records Act. However, the Court also finds that Judge Lust was free to unseal the records that he had previously sealed because they had no bearing on the decision being reviewed by the court of appeals. The Court modifies its 1979 holding in State v. Bianchi, clarifying that the newspaper does have standing in this case. The Court further holds that all documents held by the County were covered by the PRA and were not sealed by Judge Lust. The Court remands to the trial court and awards costs and attorney fees, but not penalties, to the newspaper.

The Chief Justice wrote the Court's opinion, joined by all the justices save new Justice Wiggins, who did not participate. Former Justice Sanders signed the opinion as Justice Pro Tem. and as to the result only. (briefs, argument)

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The Supreme Court will hear arguments in three cases today (briefs, docket).

Morning session (starting at 9 a.m.)

State v. Williams, No. 83992-1. A Les Schwab store in Federal Way installed new tires on a Jeep Cherokee. Michael Williams came to pick up the vehicle, but his check was not accepted. He left a key to the vehicle with the store clerk, and said he was going to get some cash. A Les Schwab employee later noticed the Jeep was gone. When police tracked him down, Williams gave them a false name and lied about not having ID. He was eventually charged and convicted of third-degree theft, making a false or misleading statement to a public servant, and obstructing a law enforcement officer.

The obstruction statute makes it illegal to “willfully hinder, delay or obstruct” a police officer in the discharge of his duties. Williams argues based on case law that the statute applies to conduct, not pure speech. The court disagreed, holding that the plain meaning of the statute includes speech that obstructs an officer. Williams also argues that his right to effective assistance of counsel was violated.

Union Elevator and Warehouse Co. v. Department of Transportation, No. 83771-6. Union Elevator was awarded relocation expenses as a result of the Department of Transportation’s exercise of eminent domain. The trial court, however, did not award Union Elevator prejudgment interest on its award. The Department of Transportation argues that it need not pay interest because of sovereign immunity, while Union Elevator claims that sovereign immunity is waived for eminent domain proceedings.

Afternoon session (starting at 1:30 p.m.)

Cary, et. al v. Mason County, No. 83937-9. Is an assessment enacted by Mason County to fund the activities of the Mason Conservation District a valid special assessment?

Mason County enacted an annual assessment of $5.00 per parcel on “non forested” land in the county. The requirements for public entities to collect money from property owners differ depending on whether the charge is a special assessment, a tax, or a fee. Several landowners challenged the Mason County assessment, and the trial court ruled that it was an invalid tax. The Court of Appeals disagreed, finding that the assessment is a regulatory fee rather than a tax and that it meets the statutory requirements for a regulatory fee.

This case has attracted the attention of numerous public entities and organizations who have filed amicus curiae briefs discussing whether the court should analyze whether the county's assessment was proper. (Note: The publisher of this blog filed a brief in support of the property owners.)

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Who wrote the most opinions in 2010? Which justices disagree with each other most often? Who is this "curiam" guy? This episode we break down 2010 numbers and announce the justice who had the most influence this year.

Supreme Court of Washington Podcast (RSS) - Reviewing the 2010 docket

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On its first day back from the holiday break the Court will hear only three arguments, two in the morning and one in the afternoon. (Docket, briefs for first two cases, briefs for third case)

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

In re the Marriage of Daniel & Teresa Farmer, No. 83960-3. How to determine damages for wrongful sale of stock options by one spouse during a divorce.

Teresa and Daniel Farmer dissolved their marriage. Daniel had received some stock options through work, and half of these options were awarded to Teresa. However, Daniel exercised all of the options, both his and Teresa's.

Teresa was awarded damages based on expert testimony about the probable future value of the stock options. Daniel argues that the damages should be based on the value of the options at the time he exercised them, or within a reasonable time thereafter. Daniel lost at Division One Court of Appeals.

 Bank of America v. Owens, No. 84044-0. Whether a supplemental decree giving one spouse partial title to real estate in a divorce decree gives that spouse's claim priority over a bank lien.

J'Amy Owens and Kenneth Treiger purchased a piece of property while married, which later became Owens' separate property. Owens used the property as collateral for a loan from Bank of America.

Owens and Treiger divorced. The court issued a supplemental decree dividing the parties’ assets, ordering that the property be sold and half of the money given to Treiger. The court issued several other decrees awarding money to Treiger.

Then the bank attached the property because Owens had defaulted on the loan. Later, the bank filed a declaratory judgment action to determine who had first claim to the property. The bank argued the supplemental decree was not a final judgment, and so did not give Treiger a judgment lien, thus giving the bank's lien first priority. The Division One Court of Appeals disagreed, but did hold that two other orders were not judgments (and thus did not have priority).

Afternoon session: (starting at 1:30 p.m.)

In re the Dependency of Jenkins, No. 83516-1. Whether a defect in a dependency order can be cured at subsequent hearings.

K.N.J., a minor child, was taken to an Oregon hospital after relatives discovered that she had been severely abused by her parents. A dependency petition was filed by the state and ordered by a judge pro tempore. Normally both parties have to consent to the appointment of a judge pro tempore, but Michael Jenkins, the father of K.N.J., was not present at the hearing and his consent was entered by default. 

Later the state filed for termination of Michael's parental rights, and he moved to vacate the original dependency order due to lack of his consent. The state argued that one parent's consent was sufficient, and that the several subsequent dependency review hearings cured any jurisdictional defect in the first hearing. Division One Court of Appeals found that the original hearing was invalid, but that the subsequent hearings cured the defect.

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The Supreme Court begins a new term this week, with newly-seated Justice Charles K. Wiggins. Oral arguments will be held on Tuesday and Thursday. On Wednesday Chief Justice Madsen will deliver the State of the Judiciary Address before the Washington Legislature. Opinions may be issued on Thursday.

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The inauguration ceremony for Chief Justice Barbara Madsen, Justice Jim Johnson, and Justice Charlie Wiggins is now available on TVW. 

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The Supreme Court of Washington Blog is rolling out a new feature this year: we are identifying the justice that we believe has had the greatest impact on the court this year. Now, I’ll be the first to admit this is not an exact science. I am not a statistician, and we cannot account for relational influences, case assignments, or administrative duties that take away from a judge’s case work.

Nevertheless, as we analyzed several key factors from 2010, one justice clearly left an imprint. Relying on our 2010 court roundup, we reviewed majority decisions written, frequency of appearing in the majority, rate of agreement with other members, number of votes received in support of opinions authored, and other criteria. The members of the Washington Supreme Court are a respectable bunch, but this year presented a runaway winner.

So with no further fanfare, the Supreme Court of Washington Blog’s choice for the most influential justice in 2010 is Justice Debra L. Stephens. Justice Stephens was appointed to the Supreme Court by Gov. Gregoire in 2008 after serving on the Court of Appeals (Div. 3). Her biography can be found here.

In just three years, Stephens has proven to be a prolific author and a frequent representative of the court’s thinking. In 2010, she wrote more majority decisions (23) than any other justice. Stephens also wrote the most unanimous opinions last year (13). She voted in the majority in 91.9% of cases decided, second only to Justice Charles Johnson, who was in the majority 92.4% of the time. Stephens enjoyed a high rate of agreement with her colleagues, with other justices voting with her position in 81% of cases—just a fraction behind Charles Johnson (81.5%).

Those numbers alone might simply indicate an agreeable judge who is not willing to stick out her neck. But Stephens is a strong coalition builder, frequently joined by her colleagues when authoring an opinion. When she writes an opinion—whether a majority, concurrence or dissent—she pulls votes to her position, more than any other justice by a wide margin. Stephens led the court in votes concurring in her majority opinions (144), as well as total votes when her concurrences and dissents are included (154).

Perhaps the most significant factor is that Stephens is a key vote in close decisions. In 2010, the Supreme Court issued 22 decisions that were decided by a 5-4 vote. Stephens wrote the most 5-4 majority opinions (6), and had the most majority votes (15) in 5-4 cases. She was in the majority a whopping 75% in 5-4 cases (Justices Tom Chambers and Charles Johnson were both a distant second at 64%).

Lawyers and other court watchers love to identify the key judges who must be persuaded in order for a party to win the case. Justice Stephens appears to be that vote at the Temple of Justice.

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Every year we track the opinions and votes of each justice and provide a case-by-case breakout, along with some analysis. Here are the raw numbers for 2010. For comparison purposes, 2009 numbers can be found here.

This year we try to crack the question: Which justice was the most influential in 2010? We’ll announce our pick later today on Wednesday.

First, some general observations. In 2010 the Supreme Court of Washington issued opinions in 140 cases. Nine opinions were per curiam (opinions without an attributed author), a significant increase from last year, which had none. The Court enjoys a high level of agreement: 75 opinions (54% of all cases) were unanimous (including unanimous-in-result-only opinions and per curiam opinions).

Justice Richard Sanders was the most prolific writer this year, with 48 total opinions. Despite her new chief justice duties, Barbara Madsen came in second with 32 total opinions. Justice Debra Stephens wrote the most majority opinions (23). As was the case in 2009, Sanders wrote the most dissents (24) but he also contributed the second-most majorities (17).

Which justices are most likely to agree or disagree with each other? A chart below shows the percentage of cases in which justices voted together (majority and concurring opinions are treated as equivalent). The justices with the highest rates of agreement were Charles Johnson and Owens (89.1%), Chambers and Stephens (87%), and Charles Johnson and Stephens (85.8%). The justices with the lowest rates of agreement were Madsen and Sanders (62.8%), Sanders and Jim Johnson (64.3%), and Sanders and Fairhurst (65.1%).

We also look at the number of days between argument and the court's opinion, broken out by vote count. The rule of thumb is the court takes about six months to issue a decision after hearing arguments. On average, the court took 203 days (down from last year's 223) to issue opinions in the cases where arguments were heard. Fifteen decisions in 2010 were pending for over a year, while 18 cases were disposed of in less than three months. One case, In re Welfare of A.B., which dealt with the restoration of parental rights, sat for 716 days (nearly 24 months) before being resolved.

Finally, we have a chart showing how often each justice was joined by his or her colleagues when authoring an opinion. In other words, when a justice wrote a majority opinion, how many others joined that opinion? Was the dissenter able to pull others to the dissent, or was it a lone dissent? 

<Click to see the charts and tables>

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In re Pers. Restraint Petition of Gentry, No. 84039-3. Jonathan Lee Gentry was convicted of murder and sentenced to death in 1991. He challenges his conditions of confinement, essentially solitary confinement, as unconstitutional ex post facto punishment.

Per Department of Correction regulations at the time of his conviction, Gentry served his first 12 months in the Washington State Penitentiary's highly restrictive intensive management unit (IMU) and was then granted a housing placement review. Based on good behavior, he was transferred to the special housing unit (SHU). There he enjoyed many more privileges, including contact with other inmates, employment, and family visits. Due to state budget cuts, the SHU was shut down and Gentry was transferred back to the IMU in December 2008. He challenges that increase in the severity of his confinement as he awaits execution.

The Supreme Court dismisses his petition, holding that prisoners do not have a liberty interest in "good behavior" benefits.

[A] prisoner's participation in good behavior incentive programs, which confer benefits over which the DOC has discretion, can be discontinued by ex post facto changes to prison regulations for valid administrative reasons having nothing to do with an individual prisoner's conduct.

The Chief Justice wrote for the majority. Justice Stephens, joined by Justice Sanders, dissents and would remand to superior court for additional fact finding.

State v. Coucil, No. 83654-0. Nikeemia Coucil failed to appear after being charged with felony harassment and released on bail. Coucil was eventually arrested and convicted of a lesser included offense of misdemeanor harassment and also convicted of felony bail jumping. He challenges the latter conviction, arguing that the bail jumping charge should be a misdemeanor because the underlying conviction was for a misdemeanor rather than the originally charged felony. The court of appeals sustained Coucil's conviction, finding that the bail jumping statute (RCW 9A.76.170) unambiguously relates to the original charge rather than the final conviction. A unanimous Supreme Court agrees, with an opinion written by Justice Alexander. (briefs, argument)

State v. Marohl, No. 83570-5. Mixed martial arts fighter James Michael Marohl appeals his conviction for third degree assault, arguing that a casino floor is not an "instrument or thing likely to produce bodily harm" as required for a third degree assault conviction per RCW 9A.36.031(1)(d).

Joseph Rex Peterson, drunk inside the Little Creek Casino, knocked over a chair. Sean McFadden pointed out to Peterson that the chair had nearly hit McFadden's wife and asked Peterson to be more careful. Petersen put his arm around Sean McFadden and began to apologize, but would not release his hold on McFadden. And then along cam Marohl, a friend of the McFaddens. He separated the two men, put Peterson in a choke hold, and began maneuvering him toward the door. The two men went down, either because Peterson tripped or because Marohl intended to slam him to the floor. Peterson was briefly unconscious and suffered bruises and scrapes to his face. Marohl was charged with second degree assault or, in the alternative, with third degree assault. He was convicted of the latter, appealed, and the court of appeals sustained his conviction.

The Supreme Court unanimously reverses Marohl's conviction. The Court holds that the phrase "instrument or thing likely to produce bodily harm"

... does not include the casino floor within the meaning of instrument or thing because, under the circumstances of this case, it was not likely to produce harm and it was not used as a weapon.

The Court's opinion was authored by Justice Sanders. (briefs, argument)

State v. Wilson, No. 83797-0. When Jason Wilson was sentenced after pleading guilty to two charges of identity theft, his offender score was calculated based on seven prior felony convictions. After the sentencing, Wilson pointed out that one of the seven convictions was actually a gross misdemeanor attempt charge. He appealed his sentence, but prosecutor's argued--and the trial court agreed--that Wilson's only remedy was to withdraw his plea deal. The court of appeals upheld the sentence, but did so by adopting a novel, grammar-straining interpretation of the offender score statute (RCW 9.94A.525(4)) that would require the gross misdemeanor attempt conviction to be scored as a felony. The Supreme Court unanimously reverses the court of appeals and remands the case for resentencing. (briefs, argument)

Smith v. Orthopedics Int'l, Ltd., No. 83038-0. In the previous case of Loudon v. Mhyre, the Court held that "in a personal injury action, 'defense counsel may not engage in ex parte contacts with a plaintiff's physicians.'" In this case, defense counsel emailed documents to the attorney representing one of the plaintiff's non-party physicians, including the plaintiff's brief and the transcript of the physician's own deposition and that of plaintiff's expert witness, which the attorney passed on to the physician. The plaintiff learned of these facts during the physician's testimony and eventually asked for a new trial. The trial court refused and, after a decision for the defendants, plaintiff appealed. The court of appeals affirmed the trial court.

A splintered Supreme Court sustains the courts below, holding that while the contact did violate the prohibition established in Loudon, it was non-prejudicial. The lead opinion was written by Justice Alexander and joined by Justices Owens and James Johnson. Justice Fairhurst, with the Chief Justice, concurs in the result. They would not, however, find a Loudon violation at all because the contact was a one-way communication to the physician. Justice Charles Johnson, joined by Justices Sanders, Chambers, and Stephens, dissents and would find a Loudon violation and grant a new trial. (briefs, argument)

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The Supreme Court has no arguments scheduled this week. Opinions may be released on Thursday. On Friday, the court will hold an inauguration ceremony for newly-elected Justice Charlie Wiggins, Chief Justice Barbara Madsen, and Justice Jim Johnson. This event is open to the public.

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