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State v. Russell, No. 84307-4. Arthur Russell was convicted of first degree rape of a child. The trial court admitted evidence of similar acts committed by Russell against the victim in other states for the limited purposes of corroboration and showing Russell's disposition toward the victim (as permitted by ER 404(b)). Russell's attorney did not request a limiting instruction from the trial judge and none was given. On appeal, Russell argued that the trial court was required to give a limiting instruction. The court of appeals accepted this argument and overturned the conviction.

The Supreme Court today unanimously reverses the court of appeals and affirms Russell's conviction. A trial court is not required to provide a limiting instruction sua sponte; ER 105 applies to evidence admitted under ER 404(b). Justice Fairhurst wrote for the Court. (briefs, argument)

Veit v. Burlington N. Santa Fe Corp., No. 83385-1. Alizon Veit was driving across railroad tracks in Bellingham when she was hit by a Burlington Northern Santa Fe freight train. She sued, alleging negligence. Veit claimed, among other things, that BNSF was negligent because the train was traveling faster than an internal speed limit of 30 miles per hour on the particular tracks. The trial court found this claim preempted by a federal speed limit of 40 miles per hour and granted partial summary judgment to BNSF. At trial, a jury found that BNSF was not liable.

Veit appealed the partial summary judgment and the trial court's refusal to allow evidence of her exercise of due care at the crossing. The court of appeals affirmed the trial court. The Supreme Court today unanimously upholds the decisions below. The opinion, by the Chief Justice, reiterates that the federal speed regulation preempts claims based on company speed limits and that because "Washington is a pure comparative negligence jurisdiction" and the jury was properly instructed, evidence of her lack of contributory negligence was irrelevant. (briefs, argument)

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Beggs v. Dep't of Soc. & Health Servs., No. 84098-9. The State of Washington, through the Department of Social and Health Services, paid Carole DeLeon more than $270,000 over five years to house and then adopt Tyler DeLeon. Carole tortured and starved Tyler until, at seven-years old, he died. (Carole spent three years in prison.) Representatives of Tyler's estate and his siblings filed wrongful death claims against multiple parties, including two of Tyler's physicians and a medical clinic. These parties were granted partial summary judgment on the grounds that Tyler's siblings were not dependent on him as required by RCW 4.20.020 and that any liability under the mandatory reporting statute is superseded by the state's medical malpractice laws.

The Court accepted certification from the Court of Appeals on those questions. Today, the Court upholds the partial summary judgment because Tyler's siblings were not dependent on him, but rejects the claim that the medical malpractice laws shield medical personnel from liability for failure to report child abuse. Justice Sanders, sitting pro tem., wrote for the majority. Justice Alexander dissents in part; he would find no implied cause of action in the reporting statute but would find that failure to report constitutes medical malpractice. Justice Wiggins did not participate. (briefs, argument)

Union Elevator & Warehouse Co. v. Dep't of Transp., No. 83771-6. In 1996, Union Elevator filed an inverse condemnation claim for damages caused when its grain elevator facility was rendered inaccessible due to the state Department of Transportation's reconstruction of SR 395. Five years later, Union Elevator won at trial and applied for relocation assistance as permitted by RCW 8.26. The DOT refused, but was finally ordered to pay the compensation in 2008. Union Elevator requested seven years of interest, which is the issue before the Court.

The Court today unanimously holds that the state has not waived its sovereign immunity against liability for interest on relocation payments and thus denies Union Elevator's request. (briefs, argument)

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Today the Court will hear three arguments, two in the morning and one in the afternoon. (Docket, briefs)

Morning session: (9:00 am)

Crown Cork & Seal v. Smith, No. 838542. Whether Smith's carpal tunnel condition counts as a "previous bodily disability," entitling Crown to some repayment of Smith's pension costs.

Sylvia Smith worked on an assembly line for Crown Cork & Seal putting bottle caps into bags. She was hit by a forklift and her leg was injured. Because she suffers from carpel tunnel syndrome, she could not be retrained and is considered totally disabled.

Where a worker who is totally disabled by an injury had a preexisting disability, his employer can be reimbursed for that portion of the employee’s pension attributable to the preexisting disability. Crown argues that Smith’s carpel tunnel was a preexisting disability, since she would not be totally disabled by her leg injury if she did not have it. L&I argues that the carpel tunnel was not disabling because it did not impact Smith’s “daily functioning and efficiency.”

Smith successfully appealed a Board of Industrial Appeals ruling to Thurston County Superior Court, but the decision was overturned by Division Two Court of Appeals.

State v. Beadle, No. 842043. Whether the court erred in declaring the child victim of molestation unavailable to testify and allowing evidence about her to be introduced from other sources.

Steven Beadle was convicted on two counts of first degree child molestation of “BA.” At pre-trial hearings BA cried and screamed when people tried to bring her into the courtroom to answer questions. The court found that she was unavailable as a witness, and allowed others to testify about what she had told them. The court also allowed the state to testify about BA’s behavior at the pre-trial hearings.

Beadle argues that the court abused its discretion by finding BA unavailable, by admitting some of BA’s statements made to a deputy, and by allowing the state to testify about BA’s behavior. Division Two Court of Appeals held that BA was properly found unavailable, that the statements in question were non-testimonial, and that allowing the behavior testimony was harmless error.

Afternoon session: (1:00 pm)

Niccum v. Enquist, No. 839832. Whether the trial court should have subtracted attorney fees from a settlement offer when comparing it to a trial award to determine who won.

Jeffery Niccum and Ryan Enquist were involved in an auto accident. Niccum sued Enquist and was awarded $24,000 in mandatory arbitration. Enquist requested a trial. Before trial Niccum made two offers of compromise, the lower of which was for $17,000, and Enquist rejected both. At trial, Niccum was awarded $16,000.

Niccum was awarded attorneys fees because Enquist had not improved his position at trial. To determine this, the trial court subtracted attorney fees from Niccum’s offer of $17,000 to determine the part of the offer “comparable to damages.” The result was slightly less than the jury’s award, so the court determined that Enquist paid more in damages than if he had accepted Niccum’s offer.

Enquist argues that the court should not have subtracted attorney fees from Niccum’s offer before comparing it to the jury award.

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The Supreme Court accepted several new cases during its February 1 conference.

• Schneider v. Almgren, No. 85112-3
• State v. Jasper, No. 85227-8
• State v. Clifton, No. 82622-6
• State v. Brown, No. 83211-1
• Albice v. Dickinson, No. 85260-0
• Elcon Constr., Inc. v. Eastern Wash. Univ., No. 83690-6
• State v. Cook, No. 84133-1

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Bowie v. Wa Dept. of Revenue, No. 83426-1. Richard and Annette Bowie operate Val-Pak of Western Washington, which regularly distributes a pack of advertisements to homeowners in the region. This case involves the question of whether Val-Pak advertisement mailings should be considered a periodical under the B&O tax classifications.

In 2002 the company asked the Department of Revenue for guidance on how to classify their business, and were given a letter ruling saying they fell under the favorable “periodical” classification, with a tax rate of 0.484 percent, rather than the 1.5 percent that would otherwise apply. Valpak began filing under that status and claimed a refund for past taxes. The DOR later revoked its ruling stated that Valpak falls under a higher taxation rate. Valpak sued for a full refund.

Today the Supreme Court, with Justice Jim Johnson writing the unanimous opinion, held that Val-Pak envelopes are not periodicals or magazines and that the business is taxable under the general, higher rate of RCW 82.04.290(2).

State v. Grier, No. 83452-1. Kristina Grier and Gregory Owen were drinking with several other people at Grier’s house. During the evening Owen stole several items from Grier, including three guns, and got into several fights with Grier and her son. During the last fight a gun went off, killing Owen.

The state charged Grier with second degree murder. The defense requested jury instructions on lesser offenses included in the charge of murder, such as assault, but then withdrew the request, so the jury was not instructed on those offenses. The jury convicted Grier of murder. On appeal, the Court of Appeals held that the failure to request instructions on the lesser included offenses constituted ineffective assistance of counsel, and reversed the conviction.

The Supreme Court (Chief Justice Barbara Madsen writing) unanimously ruled that Grier’s agreement in the decision to withdraw the lesser included offense instructions did not bar her from raising an ineffective assistance claim. However, the court held that defense counsel’s “all or nothing” approach was a legitimate tactic and did not rise to the level of ineffective counsel. The court vacated the Court of Appeals decision that tossed Grier’s conviction and sent the case back for further consideration.

State v. Rodriguez Ramos, No. 84891-2. The Court of Appeals remanded a case to trial court to clarify the terms of community placement. The Supreme Court held in a per curiam opinion that this vested the trial court with discretion, triggering defendant Joel Ramos’s constitutional right to be present at sentencing.

State v. Tucker, No. 84952-8. The issue here was whether the State initiated a proceeding to revoke Natasha Tucker’s deferred disposition before the juvenile court’s jurisdiction over her expired. Tucker was 14 years old when she got into an argument over an iPod and threw a rock through a friend’s living room window. Tucker was charged with residential burglary and malicious mischief. Tucker agreed to plead guilty, and she received a deferred disposition.

Tucker largely complied with the terms of supervision, but had not fully paid restitution. The court extended the deferred period for a year. Eventually, Tucker argued that the State had failed to move to revoke her deferred disposition before the deferral period ended, depriving the court of jurisdiction and requiring dismissal of the charges. The trial court ruled that an earlier report filed by the probation revocation properly initiated revocation proceedings before the end of the supervision period.

In a per curiam opinion the Supreme Court agreed with Tucker. “We disagree with the courts below that the November 7 report by Tucker’s community supervision officer properly instituted revocation proceedings against her. The report was plainly not a motion to adjudicate compliance with Tucker’s restitution obligation; it stated only that ‘should Natasha be unable to provide verification of payment of her remaining financial obligations, probation recommends that this matter be set out for revocation.’” The court vacated Tucker’s convictions and dismissed the case.

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Chief Justice Barbara Madsen recently sat down with Austin Jenkins on TVW's Inside Olympia program. They discussed the state of the courts, the funding crisis facing trial courts, judicial elections, and diversity in the profession. 

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Today the Court will hear four arguments, two criminal cases in the morning and two malpractice cases in the afternoon. (Docket, briefs)

Morning session (9:00 a.m.)

State v. Kosewicz, No. 83682-5. Whether the reversal of a kidnapping charge also requires reversal of murder charges based on the same circumstances.

Sebastian Esquibel was involved in a drug deal that went bad. He was tied up, tortured, driven to a field and shot. Robert Brown and Theodore Kosewicz were both involved, and both were convicted of first degree kidnapping. Brown was also convicted of felony murder and Kosewicz was convicted of aggravated first degree murder aggravated by the kidnapping.

The trial court instructed the jury on alternative means of committing kidnapping even though the defendant was not charged with an alternative means. As a result, both kidnapping convictions were reversed on appeal. The defendants argue that Brown’s felony murder conviction and the aggravation of Kosewicz’ murder conviction should be reversed, since both were based on the kidnapping convictions. The state argues that there is sufficient evidence to support both, and that the elements of the kidnapping are not elements of the felony murder (and thus, Brown did not need to be informed of them for the felony murder conviction to be valid).

In re the Detention of Danforth, No. 841527. Whether a sex offender who tells police that he will commit a sex crime if not detained has committed a "recent overt act" allowing him to be committed as a sexually violent predator.

Robert Danforth is a sex offender with a history of offenses against young boys, including rape. In 2006 he went to the King County Sheriff's Office and said that he was going to reoffend unless he was taken into custody. He said that if he was not confined he would go to a bus stop and try to have sex with boys, and also that he would go to an arcade where young boys were and “rub up against them.” He was taken into custody and committed as a sexually violent predator. This required proof that he was currently dangerous “with evidence of a recent overt act.” Overt acts can include some threats.

Danforth argues that his statements were not “threats” because his motive was to prevent harm, not cause it, and that using his statements against him would violate his free speech rights under the First Amendment. The appellate court held that his statements were a threat, irrespective of motive. The court also found not First Amendment violation “because the threats must be evaluated in the context of the offender's conduct... the statute does not regulate pure speech.”

Afternoon session (1:30 pm)

Mohr v. Grantham, No. 847126. Whether a plaintiff can sue for medical malpractice based on a claim of "lost chance for a better outcome."

Linda Mohr was taken to the emergency room with a developing stroke. Mohr claims that the doctors were negligent in diagnosing and treating her. She also claims that, had the negligence not occurred, there is a 50-60% chance that the stroke would have harmed her less severely.

The trial court granted summary judgment to the defendants because Mohr did not prove that without the alleged negligence her injuries would have been less bad. Mohr claims that she can sue for “lost chance of a better outcome.”

Unruh v. Cacchiotti, No. 847070. Whether a dental malpractice lawsuit was filed too late, after the statute of limitations had run.

Lisa Unruh was treated with braces by orthodontist Dino Cacchiotti, beginning when she was nine years old. Lisa alleges that because of the braces she lost all of her adult teeth disputes that he breached a proper standard of care). Unruh claims that Dr. Cacchiotti was negligent in treating her and filed a lawsuit against him in 2007.

A dental malpractice suit must be filed within a year of the plaintiff discovering the cause of action. Dr. Cacchiotti claims that Unruh knew of her cause of action long before she filed, and her claim is thus barred by the statute of limitations. Unruh argues that she thought her teeth fell out due to physiological reasons, and did not learn until 2006 that Dr. Cacchiotti could be to blame. She also argues that the one-year limit was paused for a year when she requested mediation.

UPDATE: Changed first paragraph to note that Unruh alleges that the braces caused her teeth to fall out. No court has ruled that Dr. Cacchiotti actually breached the proper standard of care, and that issue is not up on appeal.

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There’s a fascinating article in the Everett Herald by Diana Hefley addressing Justice Richard Sanders’ continued work on the Supreme Court.

Voters replaced Sanders with Justice Charlie Wiggins, who was sworn in last month, but there are nearly 70 cases where Sanders heard arguments and participated in deliberations. He will have a vote in those cases as a pro tem justice.

Snohomish County Prosecuting Attorney Mark Roe is loudly criticizing the court for retaining Justice Sanders. He has a pending case reviewing whether a Monroe woman cited for honking her horn outside her neighbor's house was engaged in constitutionally-protected speech. “Appointing him pro tem is a slap in the face to crime victims, prosecutors, law enforcement and the public that elected someone to replace him,” Roe said. “[He] was defeated in part because the public was made aware of his consistent pro-criminal votes, opinions and rulings. To see him appointed so he can cast a few more votes of the reversal of criminal convictions, after the public has already said ‘enough,’ is extremely disheartening, and, I think, arrogant.”

Others see nothing wrong with the process, such as Phil Talmadge, a former Supreme Court justice who now practices as an appellate attorney. “This is something done universally in the history of this court,” he said. “The court would be singling Sanders out if they did something different.”

I tend to agree with Talmadge. The Supreme Court is operating according to its internal rules for appointing a temporary judge. Retired Justices Faith Ireland and Bobbe Bridge both participated in numerous cases after they left the court.

It would be difficult to appoint a different pro tem to each of the 70 cases and then require that justice to play catch-up with the rest of the court. Now, it might be best to assign the responsibility of authoring opinions to members currently on the court, but a complete ban on Sanders' participation is going too far. 

UPDATE: By my quick count, Justice Bobbe Bridge voted in 19 decisions after she left the court. Justice Faith Ireland participated in nine cases -- eight of which she wrote the majority opinion.

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