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The Supreme Court has accepted several new cases for review.

State v. Arreola, No. 86610-4. Gilberto Arreola was convicted of a felony driving under the influence in the first degree. The patrol officer that arrested Arreola followed him for over a half mile because his vehicle fit the description of a car reportedly driven by a suspected drunk driver. The officer noticed that Arreola’s car had a modified muffler. The muffler was in violation of state vehicle requirements. The officer pulled over Arreola with the primary motive of investigating whether or not he was driving under the influence. The officer testified that the muffler was an additional reason for the stop and it would have caused him to stop the defendant despite his suspicion of drunk driving.

Pretextual traffic stops are unconstitutional under Article I, § 7 of the Washington State Constitution. The Court of Appeals (Div. III) held that this traffic stop was unconstitutional because the stop for the muffler was pretext for the suspicion that the defendant was driving under the influence.

State v. Ollivier, No. 86633-3. Brandon Ollivier was convicted of possession of depictions of minors engaged in sexually explicit activity. Ollivier is a registered sex offender and his two roommates were sex offenders. One of his roommates told police that the defendant had showed him a video of a young girl having sexual relations with a young boy. He also said that the defendant showed him photographs of young girls provocatively posed. Ollivier was convicted of one count of possession of depictions of minors engage in sexually explicit conduct and sentenced to 30 months.

Ollivier appealed. He contended that he was denied his right to a speedy trial, the informant’s information was unreliable, and that the search warrant was overbroad, not supported by probable cause, and was improperly served.

The Court of Appeals (Div. I) affirmed the conviction. The Court held that the delay of 22 months between arrest and trial due to the defense counsel’s continuances did not violate the right to speedy trial. The court also held that the search warrant affidavit based on tip from the defendant’s roommate was adequate to establish probable cause and the search warrant described with sufficient particularity items to be seized and searched. The police officers’ failure to show defendant written copy of search warrant until after execution of search did not invalidate the search warrant or search.

WA Off-Highway Vehicle Alliance v. State, No 86602-3. Four off-road vehicle users and two organizations sued the Washington Parks and Recreation Commission, challenging the constitutionality of a legislative appropriation of motor vehicle fuel excise tax revenues for a park maintenance fund. 

The Court of Appeals (Div. II) held that the appropriation of excess funds in non-highway and off-road vehicle activities program account for funding park maintenance “was a ‘refund’ authorized by law, within meaning of state constitutional provision stating that refunds authorized by law for taxes paid on motor vehicle fuels are highway purposes for which such taxes may be expended.” The court held that the legislative appropriation should benefit non-highway users who paid motor vehicle fuel excise taxes.

Lowman v. Wilbur, No. 86584-1. Nathan Lowman met Jennifer Wilbur at the Country Corner Bar and Grill. Wilbur was intoxicated and invited Lowman to go home with her. She drove her vehicle with Lowman in the passenger seat, under the influence of alcohol. On the way home, she wrecked her car in to a utility pole. (Wilbur later pleaded guilty to vehicular assault.) Lowman sued Wilbur, Country Corner, Puget Sound Energy and Skagit County. Lowman’s complaint alleged that Puget Sound Energy and Skagit County negligently placed the utility pole in a location that could cause injury to travelers. His complaint stated that the pole was located four feet from the edge of the road past a sharp curve.

The Snohomish County Superior Court dismissing the negligence claims against Puget Sound Energy and Skagit County, holding that their actions were not the legal cause of the injury. The Court of Appeals (Div. I) affirmed the decision.

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In re: Bakary Fansu Conteh, an Attorney at Law, No. 200,915-8. Did the attorney violate the Rules of Professional Conduct and, if so, what sanction should be imposed?

In re the Detention of: Kevin Coe a/k/a Fredrick Harlan Coe, No. 85965-5. Kevin Coe challenges his designation as a sexually violent predator (SVP). The court must decide several issues, primarily whether the trial court improperly admitted evidence of unadjudicated sexual assaults, whether the State’s expert properly relied on that evidence, and whether counsel was ineffective for failing to request a jury instruction defining the term “personality disorder.”

State v. Emeray, et al, No. 86033-5. Emeray and Olson were convicted at a joint trial of kidnapping, robbery, and rape. They raise four issues on appeal, including the trial court’s denial of Olson’s motions to sever and the prosecutor’s explanation of reasonable doubt.

In re: Rosaura Del Carmen Rodriguez, an Attorney at Law, No. 200,960-3. The Court will decide whether the evidence supports a finding that attorney Rosaura Del Carmen Rodriguez violated the Rules of Professional Conduct and impose an appropriate sanction.
 

*Summaries prepared by the Washington Supreme Court Commissioner’s Office.

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Today the Washington State Supreme Court ruled in favor of four Mason County residents who disputed a special assessment that Mason County had levied on nonforest lands.

In 2003, Mason County imposed an annual assessment of $5.00 on certain parcels to “create a fund dedicated to addressing water resource protection issues within Mason County.” By 2007 the county had collected more than $1.1 million from the assessment. A group of property owners (James R. Cary, Mary Alice Cary, John E. Diehl and William D. Fox Sr.) challenged the validity of the assessment. The trial court ruled that the county had levied an unconstitutional tax, but the Court of Appeals upheld the assessment in 2009.

The Supreme Court ruled unanimously for the property owners, with Justice Gerry Alexander writing the opinion. The decision turned on Mason County’s failure to comply with statutory requirements when imposing special assessments for natural resource conservation under RCW 89.08.400(3). The assessment rate can be imposed either as a uniform rate per acre or a flat rate per parcel plus a uniform rate per acre. Mason County assessed $5 per parcel but failed to set a per acre rate. The residents who challenged the assessment will be entitled to refunds.

The case is Cary, et al. v. Mason County, No. 83937-9.

(Full disclosure: The publisher of this blog filed an amicus curiae brief in support of the residents challenging the assessment.)

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Afoa v. Port of Seattle, No. 85784-9. Brandon Afoa worked at Sea-Tac Airport and got hurt on the job; should the Port of Seattle have to pay for his injuries?

State v. Tarhan, No. 85737-7. The trial court sealed juror questionnaires without conducting a Bone-Club analysis, which is required before a courtroom is closed or records are sealed to the public. The court must determine whether this violated the defendant’s constitutional right to a public trial, and if so, whether a new trial is required.

Diaz v. Medical Center Laboratory, Inc., P.S., et al, No. 86049-1. In a medical malpractice case, can the defendant tell the jury that the plaintiff settled with a codefendant?

*Summaries prepared by the Washington Supreme Court Commissioner’s Office

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In re: Thomas R. Kamb, No. 200,926-3. The Court must determine whether attorney Thomas R. Kamb violated the Rules of Professional Conduct and impose appropriate sanctions for any violations.

Anfinson, et al. v. Fedex Ground Package System, Inc., No. 85949-3. Did the trial court correctly instruct the jury on how to distinguish between employees and independent contractors?  Did the trial court correctly instruct the jury on proof of class members’ employee status?  If the trial court’s instructions were erroneous, was the class prejudiced?  Also, does judicial estoppel apply to Anfinson’s legal argument?

Gorman v. City of Woodinville, No. n/a, RCW 4.16.160 prohibits claims “predicated on the lapse of time” from being asserted against the government.  Does this statute bar a claim of title brought against a city when the plaintiff claims to have acquired title by adverse possession before the land was dedicated to the government?

*Summaries prepared by the Washington Supreme Court Commissioner’s Office

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In State v. Jim, No. 84716-9, the Supreme Court held that the Maryhill Treaty Fishing Access Site, created for Columbia River tribes to fish under provision of treaty, was not within the criminal jurisdiction of Washington State.

Lester Ray Jim, a member of the Yakama Nation, was fishing on the Columbia River at the Maryhill site. Washington Fish and Wildlife officers cited Jim for taking ashore five undersized sturgeon.  Jim had argued that it was common practice in the Yakama Nation to release the sturgeon when returning to shore. Under state statute he was in violation for not “immediately” releasing the fish whereas under tribal regulation he is allowed a “reasonable opportunity” to release the sturgeon.

The issue in this case turned on whether Maryhill was an established reservation for issues of jurisdiction; the court used State v. Sohappy for guidance. In Sohappy the court held that a fishing site similar to Maryhill, Cooks Landing, was a reservation so far as defining criminal jurisdiction. Notably persuasive was the fact that Maryhill is used exclusively for members of the tribes and not other common citizens. The Supreme Court, with Justice Susan Owens writing, held that the State lacked jurisdiction to cite Jim.

Justice Charles Wiggins and two others dissented in a lengthy opinion explaining their view that Maryhill was not, in fact, a reservation and therefore within the purview of state criminal jurisdiction.

This blog assumes that one cannot brag about the "big one that got away" when cited by Fish and Wildlife for catching undersized fish.

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In re Personal Restraint of Eastmond, No. 81939-4. The Supreme Court found that a recently established rule regarding sentencing enhancements can not be retroactively applied to cases heard before the rule was created in Williams-Walker.

The rule holds that when a firearm sentence enhancement is imposed in a conviction, if the jury did not actually determine the use of a firearm then prejudice must be presumed as a constitutional error on collateral review. Previously, as the trial court required in in Eastmond, actual prejudice by the jury had to be demonstrated. Following the Recuenco opinion from the U.S. Supreme Court in 2006, the courts had recognized that “without an explicit firearm finding by the jury” the imposition of a firearm sentence enhancement violates a defendant’s right to a fair trial per the 6th amendment.

Eastmond, who had been convicted to 36 months imprisonment for burglary and robbery in 2000, had had 120 months added to his sentence for the firearm enhancement.

The Supreme Court, with Justice Susan Owens writing, admitted that the firearm sentence was a constitutional error. However, Eastmond was bound to demonstrate actual prejudice arising from the error, he did not enjoy the benefit of presumed prejudice established in Williams-Walker after the hearing. The standard of “actual prejudice” requires Eastmond to prove that the jury would not have returned the same verdict without the constitutional error. This standard was not satisfied according to the majority opinion.

This ruling was briefly rebuffed by Justices Gerry Alexander and Charles Johnson in dissent, best summarized with an excerpt from the opinion:

“The defendant in this case was sentenced for something the jury did not convict him of. If being sentenced and serving time for something the jury did not find does not amount to actual prejudice, it is hard to imagine what would.”

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State v. Morales, 84197-7. The Supreme Court, with Justice Charles Wiggins writing the majority, reversed a DUI conviction due to an inadequate test warning from the trooper.

The State of Washington requires that any individual arrested for vehicular assault must take a blood alcohol test. However, rules require that the individual must be given adequate warning regarding the test and informed that they have a right to select any qualified individual to perform further tests.

Jose Morales was arrested in 2004 following a vehicle collision in which he continued to drive for one mile after the wreck. The officer at the scene asked an interpreter to communicate the warning to Morales following discovery that he only spoke Spanish.

Morales contested his convictions for DUI and vehicular assault by means of driving a motor vehicle under the influence of intoxicating liquor and in a reckless manner. He did not contest the convictions for hit and run nor vehicular assault by means of disregard for the safety of others. He further argued that the State failed in proving that he had actually received the necessary warning regarding alcohol testing.

The court referenced State v. Turpin in explaining the important obligation the state has in preserving the “protection of the subject’s right to fundamental fairness” regarding implied consent. This case had a similar precedent in which a subject had not been informed of the blood testing until after the testing had been completed, nor was Turpin informed of her rights for additional testing per RCW 46.20.308.

The court found that the State was incapable of proving whether Morales had in fact been read the “308 rule.” The only proof in the affirmative was the Trooper’s testimony that the interpreter had told him he had informed Morales of the rule, which the court called “classic hearsay.”

The court reversed the convictions for DUI and vehicular assault by driving under the influence, while affirming the hit and run convictions, and put on remand further proceedings consistent with that opinion.

Justice Jim Johnson, in dissent, claimed that the state did meet the preponderance of evidence burden in proving that the 308 warning had been given. Further, he claimed that even if the burden was not met, admitting the test results was a “harmless error.”

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State v. Hurst, No. 85549-8. The Supreme Court addressed what standard of proof is required to commit an incompetent criminal defendant charged with a felony to a mental health treatment and restoration period. John Hurst was charged with a class C third degree felony assault in 2008, following allegedly punching and throwing a shoe at a nurse while receiving treatment in an emergency room.

Hurst was found not competent to stand trial after a medical evaluation, resulting in two 90-day periods of “restoration” and “mental health treatment.” The issue in his case developed when the State pursued a third period of up to 180 days for treatment.

Hurst alleged that the State violated his right to due process under the 14th Amendment to the U.S. Constitution, that the standard of proof required to be forced into treatment be “clear, cogent and convincing evidence.” He contested that the state’s standard of “preponderance of the evidence” was not satisfactory, that the Due Process Clause required “proof of a substantial probability of restoration of competency or dangerousness by clear, cogent and convincing evidence.”

In consulting case law, the court found that the U.S. Supreme Court case of Medina v. California was the most relevant authority on due process with a specific focus on competency hearings. In Medina, the court had found that placing the burden of proof on the defendant to demonstrate his incompetence was not a violation of the Due Process Clause. The court then applied the framework to 10.77 RCW to determine if the legislative standards for committing individuals not competent to stand trial are constitutional.

The Supreme Court affirmed the Court of Appeals and held that the burden of proof was on Hurst to advance argument demonstrating in what manner the “preponderance of the evidence” standard violates the constitution. Further, they found that the current standard sufficed and that a “substantial probability” standard was not necessary to be constitutional. Justice Susan Owens wrote the unanimous opinion.
 

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City of Tacoma v. City of Bonney Lake, No. 84824-6. The Supreme Court unanimously ruled that Tacoma must provide and maintain the fire hydrants for Fircrest, University Place, and Federal Way. The opinion was written by Justice Susan Owens.

In 2008, the Supreme Court held that the Seattle Public Utility (SPU) could no longer charge the city’s ratepayers a fee for providing hydrants and that payment must come from the city’s general fund if at all. Lane v. City of Seattle. Following this decision, the city of Tacoma ended its policy of charging hydrant fees for ratepayers in Pierce County and the cities of Fircrest, University Place and Federal Way (whom Tacoma have franchise agreements with). To pay for the hydrant costs Tacoma sent the ensuing bill to the municipalities, who refused to pay. The core issue the court had to decide was whether the city of Tacoma was obliged to provide and maintain the hydrants under the franchise agreements.

The nature of Tacoma’s franchise agreements with the aforementioned communities obliges the Tacoma Public Utility (TPU) to provide them with a water system. In exchange, Tacoma enjoyed a larger base for utility payments.

The court held that the term “water system” under the contractual agreement did include providing and maintaining of fire hydrants, although the term “hydrant” was never mentioned in the agreement. The court also noted:

• The statutory term “water system” in public utilities fixtures and appliances per RCW 80.04.010;
• Municipalities must have fire hydrants, and hydrants need to have a water supply to be effective; and
• Most importantly, the course of dealings between the parties for several years saw that TPU provided fire hydrants, but contested the obligation following the Lane decision and the other municipality’s refusal to pay for the hydrants.

In the Lane decision, the municipality in question was forced to pay for the services rendered by SPU, however this was not governed by a franchise agreement. In this case the franchise agreement acted as a contract giving Tacoma the powers of right of way, planning and an expanded ratepayer base in exchange for providing a water system. The court upheld the trial judge’s opinion that Tacoma is obliged to bear the cost of fire hydrants. Interestingly, the court held that the Lane precedent does not apply to this case and refused to offer an opinion regarding whether Tacoma may charge the ratepayers for providing hydrants.

The Supreme Court reversed the earlier judge’s ruling that indemnification provisions in the contract precluded Tacoma from suing the municipalities. Owens wrote: “Concluding otherwise would produce the absurd result of precluding a party to a contract from disputing its obligations under that contract.”

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