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State v. Ford, No. 83617-5. At the end of Tyrone Ford's trial on two counts of child rape, the jury returned with only one of the two verdict forms completed. The form for the second count indicated a guilty verdict, but the form for the first count was blank. The judge sent the jury back to the jury room with instructions to fill in the blank form, and within five minutes the jury returned with the form completed to indicate a guilty verdict for count one. Ford appealed, asserting that the judge's instruction was coercive, and a divided court of appeals threw out the conviction for count one.

Today, a splintered Supreme Court reverses the court of appeals and reinstates Ford's conviction. The lead opinion, written by Justice Charles Johnson and signed by Justices Alexander, Owens, and James Johnson, finds that Ford has not met the threshold requirement of "establish[ing] a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention" (quoting State v. Watkins (1983)). Because Ford first raised this issue on appeal and because the record suggests that the jury had already completed deliberations and reached a unanimous verdict as to count one before the judge's instruction, Ford cannot meet the threshold test to raise the constitutional issue.

The Chief Justice, joined by Justice Fairhurst, concurred. They would not rely on the assumption that the jury had finished deliberating, but find the jury's quick return and confirmed unanimity convincing that there was no improper influence on the jury. Justice Stephens authored a dissent, which was also signed by Justice Chambers and Justice Pro Tem. Sanders. Justice Wiggins did not participate. (briefs, argument)

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Very few cases make it to the U.S. Supreme Court, but every year thousands of cases reach their final resolution in state supreme courts. Among them, the Washington State Supreme Court has been singled out as one of the most influential in the country.

Today the Freedom Foundation launches a new publication: the Supreme Court Year in Review - 2010. The Year in Review highlights the most interesting and influential cases decided by the state Supreme Court and offers summaries in a dozen areas of law, including criminal law, immigration, wrongful death, and First Amendment rights. The Review also includes breakdowns of how each Justice voted, authored opinions statistics, rates of Justice-to-Justice agreement, and how long cases were considered. The Freedom Foundation will publish the Year in Review annually. 

The Year in Review is the latest tool offered by the Freedom Foundation aimed at enhancing knowledge of the Washington court system.

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Readers in the Spokane area should attend this upcoming event. 

Liberty, the Constitution and the Washington State Supreme Court

Please join us for a panel discussion assessing the Supreme Court's rulings on property rights, due process and individual liberty. The conversation is based on an article published in the Gonzaga Law Review: The Washington Supreme Court and the State Constitution: A 2010 Assessment.

PLEASE RSVP SO WE HAVE AN ACCURATE COUNT

• Online
• Phone: 800.769.6617
• Email: lmcnally@myfreedomfoundation.org

Thursday, March 31, 2011
Gonzaga University School of Law
Barbieri Moot Court Room

6:45 p.m. – Reception
7:15 p.m. – Program begins

Moderated by:

• Kristopher I. Tefft, General Counsel, Association of Washington Business

Panelists include:

• Michael Bindas, Senior Attorney, Institute for Justice WA Chapter
• Professor David K. DeWolf, Gonzaga Law School
• Michael J. Reitz, General Counsel, Freedom Foundation

The event is free. Be sure to register so we have an accurate head count.

Sponsored by the Freedom Foundation and the Federalist Society

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No opinions from the Supreme Court today, but the Ethics Advisory Committee has issued a new ethics opinion for judges.

The question: May a judicial officer compile humorous letters and/or pleadings sent to the court into a publication that could be sold with the proceeds going to a charitable cause?

The EAC says yes, a judge may compile and publish a book of humorous stories. However, the EAC notes a caution that universally applies to non-comics who attempt humor: "the judge should exercise caution in selecting the documents for inclusion and in drafting editorial observations so that it does not appear that the judicial officer is trivializing or in any way disparaging the persons who authored the letters or pleadings."

I look forward to the book.

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State v. Sandoval, No. 82175-5. Valentin Sandoval is a noncitizen resident alien who was charged with rape in the second degree. Prosecutor's offered to reduce the charge to rape in the third degree if Sandoval would plead guilty. Sandoval was concerned about deportation, but his attorney advised him to accept the plea agreement and assured him that "he would not be immediately deported" and that he could challenge "any potential immigration consequences of his guilty plea." Sandoval accepted the plea deal, served his jail sentence. When he was then held pending deportation proceedings, Sandoval appealed and filed a personal restrain petition (PRP), alleging a violation of his Sixth Amendment right to effective assistance of counsel and arguing that he would not have pleaded guilty if he had been properly advised by his attorney. The court of appeals consolidated the two actions and denied both. The Washington State Supreme Court accepted review and, subsequently, the Supreme Court of the United States decided a similar case, Padilla v. Kentucky.

Today, the State Supreme Court holds that the advice given to Sandoval by his attorney was objectively unreasonable in light of Padilla. In that case, a drug trafficking defendant had pleaded guilty after his attorney had downplayed the likelihood of deportation even though deportation was required by law. The Supreme Court of the United States held that, contrary to most previous case law, immigration consequences are so closely connected to the criminal process that advice about these consequences is within "the ambit of the Sixth Amendment right to counsel."

The State Supreme Court further holds that the advice prejudiced Sandoval because "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty...." The Court reverses the court of appeals, vacates Sandoval's conviction, and remands to the trial court. Justice Fairhurst writes for the Court, joined by Justices Charles Johnson, Alexander, and Owens, and Justice Pro Tem. Sanders.

Justice Stephens concurs in the result but writes a separate opinion, signed also by the Chief Justice and Justice Chambers, to emphasize that the appropriate test for the advice of counsel is "whether his advice, taken as a whole, was objectively reasonable under prevailing professional norms," and not simply whether on examination it was mistaken. Justice James Johnson also concurs but writes separately because he finds the immigration law in this case "not 'succinct or straightforward,'" and so he would apply a different standard even though the result would remain the same. (briefs, argument)

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

In the morning, beginning at 9:00 a.m.

Mellish v. Frog Mountain Pet Care, No. 84246-9. Whether the time limit for filing a land use petition is tolled by a motion for reconsideration. Martin Mellish and Frog Mountain Pet Care are neighbors. Mellish opposed Frog Mountain’'s application for a conditional use permit to expand their pet boarding facility. A Jefferson County hearing examiner granted the permit to Frog Mountain and Mellish filed a motion for reconsideration. The motion was denied.

Mellish filed a land use petition within 21 days after the denial. He argues that the time limit for filing started when his motion was denied. Frog Mountain argues the time limit began to run at the original decision.

State v. Gresham, No. 84148-9. Michael Gresham was convicted in Snohomish County Superior Court on multiple counts of first degree child molestation. Under RCW 10.58.090 the state can, and it did in Gresham's trial, present evidence of past sex offenses. Gresham argues the statute is unconstitutional as it conflicts with evidence rule 404(b). He also argues that the statute is ex post facto law, as it was passed after he had committed the offense. The appellate court recently held that the statue does not change the necessary facts or the burden of proof.

In the afternoon, beginning at 1:30 p.m.

State v. Anderson, No. 84066-1. The question here is whether statements from a child made during his medical investigation were testimonial.

Jeremy Anderson was convicted of child molestation in Mason County. During the trial, the state presented evidence of two earlier uncharged sex offenses. A nurse had given a medical exam to one of the victims and later testified at trial about statements made by the child during the exam. The child did not actually testify. Anderson argues that the child's statements are testimonial hearsay. The state argues that statements were made during a medical exam are not testimonial.

In re PRP Carrier, No. 83377-0. Whether a conviction dismissed after probation, before the Sentencing Reform Act (SRA), should be counted as part of a defendant's criminal history.

Henry Carrier was convicted of indecent liberties and successfully served out his probation after which his conviction was dismissed, this was allowed before the state adopted the SRA. Recently he was convicted of child molestation and the court counted his prior conviction in his criminal history. Carrier argues that as his conviction had been dismissed it should not be counted against him in his current sentencing. He is seeking relief from the Superior Court's sentencing.

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

Morning session: (9:00 am)

Carlsen v. Global Client Solutions, No. 848556. Whether the respondent company violated Washington's consumer protection and debt adjustment laws. 

Global Client Solutions (GCS) contracts with numerous debt settlement companies to provide services to the companies' clients. GCS establishes special bank accounts that receive periodic payments from a clients' main bank accounts. GCS then uses the money to pay negotiated settlements with creditors. Several clients have brought a class action suit against GCS in Federal District Court. The clients claim that GCS has violated Washington's consumer protection and debt adjusting statutes.

The District Court certified four questions to the Washington Supreme Court: whether a company like GCS is engaged in “debt adjusting” under the statute; whether a “banking exclusion” applies; whether the statute's fee limitations apply, and whether there is a civil action for “aiding and abetting” a violation of the debt adjusting statute.

Phoenix Development, Inc. v. City of Woodinville, No. 842965. Whether the City of Woodinville properly denied a rezoning request.

Phoenix Development owned two pieces of property in Woodenville. The company requested a site-specific rezone of the properties from R-1 (allowing one dwelling per acre) to R-4 (allowing four dwellings per acre). The City Council denied the requested rezone.

Phoenix appealed the denial because it was not consistent with the City's comprehensive plan and zoning code. The City argues that the courts do not have jurisdiction to review the decision, and that a site-specific rezone decision does not need to comply with the Growth Management Act.

Afternoon session: (1:30 pm)

State v. Morales, No. 841977. Whether a blood test could be admitted as evidence if consent for it was obtained through an interpreter.

Jose Morales was stopped after a hit-and-run accident with another vehicle. He was arrested and blood-tested for alcohol. Before doing a blood test, police must inform a suspect of his right to an independent test. The officer was communicating through an interpreter, so he had the interpreter read a special notice form in Spanish. Morales signed the form.

At his trial, Morales moved to suppress evidence of the blood test. He argued that since the officer did not understand Spanish, and the interpreter was not called to testify, the State had not proven that Morales was informed of his right to an independent test. The appellate court ruled that the State had proven that Morales had been informed by a preponderance of the evidence, holding that the special notice “does not impose as demanding a burden of proof on the State as do the constitutional Miranda warnings.” The court also held that if there was an error, it was not prejudicial.

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

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Readers in the Spokane area might be interested in an upcoming event. 

Liberty, the Constitution and the Washington State Supreme Court

Sponsored by the Freedom Foundation and the Federalist Society

Please join us for a panel discussion assessing the Supreme Court's rulings on property rights, due process and individual liberty. The conversation is based on an article published in the Gonzaga Law Review: The Washington Supreme Court and the State Constitution: A 2010 Assessment.

Register online or call 800.769.6617.

Thursday, March 31, 2011
Gonzaga University School of Law
Barbieri Moot Court Room

6:45 p.m. – Reception
7:15 p.m. – Program begins

Moderated by:

• Kristopher I. Tefft, General Counsel, Association of Washington Business

Panelists include:

• Michael Bindas, Senior Attorney, Institute for Justice WA Chapter
• Professor David K. DeWolf, Gonzaga Law School
• Michael J. Reitz, General Counsel, Freedom Foundation

The event is free. Be sure to register so we have an accurate head count.

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Qualcomm, Inc. v. Dept of Revenue, No. 83673-6. Qualcomm Inc. is seeking a refund of retail sales taxes it paid after a Department of Revenue ruling. Qualcomm sells communications system OmniTRACS to trucking companies to assist them with tracking and managing vehicles. After an audit, the Department of Revenue determined that Qualcomm was improperly paying the lower business and occupations (B & O) internet service tax rate, and DOR assessed Qualcomm $900,573 based on its assumption that the tracking portion of Qualcomm’s system is a “network telephone service,” which is taxed at a higher rate. The Court of Appeals (Div. 2) upheld the Department of Revenue assessment.

The Supreme Court (Justice Tom Chambers writing the majority) adopted the "“primary purpose of the purchaser” rule" when a service involves both the collection and processing of data and the transmission of data to determine which rate should apply. The court determined that the primary purpose of the purchasers of the OmniTRACS system is to obtain the data generated by the system. Thus, the court held that the lower “information services” tax rate applies, and overturned the Court of Appeals.

Justice Mary Fairhurst dissented. While she agreed with the majority on its articulation of the “primary purpose” test, she disagreed with its application in this case.

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State v. Hager, No. 83717-1. Before the trial of Timothy Hager on the charge of first degree rape of a child, the trial court issued an order at the request of defense counsel instructing the police officer witnesses not to give their opinions or draw conclusions about Hager. Nevertheless, one of the officers giving testimony characterized Hager as "evasive." The defense immediately objected and moved for a mistrial. The trial judge instructed the jury to disregard the testimony but did not grant the motion for a mistrial. Hager appealed and the court of appeals found that Hager's right against self incrimination had been violated and that the trial court erred in denying the motion for a mistrial.

Today, the State Supreme Court reverses the court of appeals and holds that Hager's right against self incrimination was not violated. Hager had not refused to answer the police officers' questions, but had rather given answers in an apparently evasive way. The officer's testimony rather infringed on the jury's role as the sole determiner of fact and thus violated Hager's right to a jury trial. However, the curative instruction, made orally following the officer's comment and reiterated in writing in the final jury instructions, were sufficient to cure the violation. Justice Alexander wrote for an eight-member majority. Justice Pro Tem. Richard Sanders wrote the lone dissent, contending that the majority's decision corrodes the important role of juries in our tripartite system of government by relying on them to follow the judge's curative instruction. (briefs, argument)

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The Supreme Court granted review in several new cases during its March 1 conference.

• Vision One, LLC v. Philadelphia Indem. Ins. Co., No. 85350-9
• Gendler v. Batiste, No. 85408-4
• Cedell v. Farmers Ins. Co. of Wash., No. 85366-5

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

Morning session (9:00 am)

In re Van Camp, No. 200811. Whether an attorney's misconduct was sufficient for disbarment.

The disciplinary board found that W. Russell Van Camp agreed to represent a client, but did not follow the client's instructions to try to settle the case quickly. He did not respond to settlement offers by the other side and misled his client about the nature of a settlement offer. According to the board, he charged $25,000 for relatively little work and failed for years to refund unearned fees. 

Feil v. Eastern Wa Growth Management Hearings Board, No. 843694. Whether a zoning permit issued for the construction of a bike trail through agrarian land was a violation of the Growth Management Act.

In the 1950s the state condemned a right-of-way for building a highway along the Columbia River, through land owned by some farmers. The highway was never built, and the state leased the land back to the farmers.

The State later decided to build a bike trail through some of the farmers’ orchards, on the land now leased to the farmers. Since the land was zoned agricultural the State applied for a “recreational overlay district permit,” which allows for recreational activities in areas not zoned for recreation. The permit was granted.

The farmers challenged the overlay permit, arguing that it violated the County’s comprehensive land use plan (under the Growth Management Act). The Douglas County Superior Court held that it lacked jurisdiction to hear the case because the permit was a “site specific rezone.” The farmers argue that the overlay permit is a “zoning amendment” which must be reviewed for compliance with the GMA.

The farmers further claim that the overlay permit violates the GMA by failing to conserve agricultural lands, but the court held that the bike trail is “not inconsistent with the use of this land for agriculture.” An appeal to Division Three Court of Appeals was unsuccessful.

Afternoon session (1:30 pm)

State v. Perez-Valdez, No. 840032. Whether the trail court abused its discretion by its rulings on admission of evidence and mistrial.

Alberto Perez-Valdez was accused of raping his foster daughters. The court excluded evidence that one of the daughters had burned down the home of another foster parent because the evidence might prejudice the jury. The court also excluded general evidence about Perez-Valdez’s good character from closing argument.

A CPS investigator testified during cross-examination that the girls were telling the truth. The defense objected to this as improper vouching by an expert witness. The court instructed the jury to disregard this comment, but denied Perez-Valdez’s motion for mistrial.

Perez-Valdez claims that all three rulings were abuses of the court’s discretion.

Moeller v. Farmers Insurance, No. 845000. Whether an auto insurance company should compensate a vehicle owner for the reduction in value of his car after an accident, and whether a class certification was appropriate.

David Moeller was involved in an auto accident. He notified his insurer, Farmers Insurance Company, who paid for repairs to the car. Moeller sued Farmers because he was not compensated for the “diminished value” of his car. (A vehicle suffers “diminished value” when some damage, such as weakened metal, cannot be fully repaired.) The trial court held that the insurance policy did not cover diminished value and granted summary judgment, but the appellate court reversed.

The trial court also issued a class certification order, including people who received collision insurance payments from Farmers (with some exceptions). Farmers challenges this order because Moeller cannot prove that Farmers is liable to every class member.

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The Supreme Court issued an order today that paves the way for a recall of Pierce County Assessor/Treasurer Dale Washam. As it does occasionally with expedited matters, the court issued only an order and will supply an opinion "in due course." The News Tribune has more on this recall effort.

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Contact buzz from marijuana policies, state liability for an employee’s violation of agency rules, and Valpak coupons.

Supreme Court of Washington Podcast - The marijuana episode

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