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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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Yesterday's ruling that the state needs to provide more money for public education set off a chorus of responses. Here’s a round-up of several reactions.

Governor Chris Gregoire
“Along with the Legislature, I’ve worked hard to ensure that every student across our state is afforded a quality education. It’s what our children deserve, and what our economy requires. I’m pleased today’s ruling by the Supreme Court recognizes our significant work to improve our education system, and acknowledges the critical reforms now being implemented.

“With that said, the Court ruled we must do more – and I agree. The Court made it clear – the Legislature, and all of us as a state, must provide dependable funding to implement the reforms we have worked so hard to develop. This ruling reinforces my call for a half-penny sales tax increase to invest in education. If we don’t, we take a step backward and not only threaten a violation of the court’s ruling, but make it more difficult for students to gain the skills and knowledge needed to compete in today’s global economy.”

Attorney General Rob McKenna (who defended the State)
“The state appealed this case to the Supreme Court to receive clarification and direction to guide the Legislature in meeting its constitutional duty — and this decision is helpful. We’re pleased the Court continues to recognize the primary role of the Legislature in determining how to meet its constitutional duty and that the Court recognizes the Legislature’s progress in fulfilling the state’s obligation in passing its 2009 education reforms.”

Washington Education Association (one of the plaintiffs in the case)
"Today, the Supreme Court reaffirmed what WEA and its partners in the Network for Excellence in Washington Schools (NEWS) have argued for so long: Public education in Washington is woefully underfunded. And this means students and schools can no longer bear the impact of further cuts to public education funding.

"The decision by the Court, coming just days before the start of the 2012 legislative session, clearly puts the responsibility for correcting the underfunding where it belongs: The state legislature. The legislature can no longer punt on full funding for public education. The legislature needs to act immediately to remedy this injustice against our children and students."

Rep. Marko Liias (D)
"It is appropriate that I was reading to a class of second graders at the same time the Supreme Court announced the state is not meeting our commitment to fully fund education. I look forward to working with my colleagues to raise the revenue it will take to give our kids the education they deserve!"

Rep. Cathy Dahlquist (R)
“As a member of the Joint Legislative Audit and Review Committee, there is an ongoing discussion about how much the state is spending on certain agencies. Most recently, the Puget Sound Partnership was the subject of our review. We have spent millions on this agency since its inception in 2007, which has not outlined or achieved a single benchmark to improve the water quality in the Puget Sound. Meanwhile, the governor and majority party are all too quick to cut education funding, then tell taxpayers they can ‘buy back’ their kids’ schooling through a $500 million dollar tax increase. These budget games are irresponsible and indefensible."

Sen. Rosemary McAuliffe (D)
“The Supreme Court has affirmed what we already knew, that we must reform basic education and pay for it,” said McAuliffe. “Through HB 2261 and HB 2776 the Legislature recognized society is demanding more from our students, so we created an enhanced program of basic education to provide them with the opportunities they need to succeed. However, we can’t reach this goal alone. We now need the public’s support of new revenue to achieve full implementation of these reforms.”

Rep. Glenn Anderson (R)
“I have been advocating for several years now that the state should fund education first in the budget. This court ruling goes right to the heart of the matter: If we do not fund education first, it becomes a political football. This is evident in the governor’s current budget proposal in which she cuts education then comes out telling taxpayers they can only ‘buy back’ her education funding cuts if they approve a half billion dollar tax hike. This approach is clearly emotional extortion to hold our children’s future hostage so other tough decisions don’t have to be made. When times are so tough and so many personal sacrifices are being made, it’s offensive to suggest such an alternative."

Yakima Herald-Republic Editorial Board
"The decision, and court oversight, may reflect not so much judicial activism as judicial impatience with a Legislature that has identified problems and enacted reforms but has not backed up its action with adequate funding. The state's increasing reliance on federal grants and local levy dollars has to stop, the justices said. The court didn't spell out what the Legislature has to do, only that lawmakers have to do something."

League of Education Voters
"The decision validates what parents, students, teachers and principals have known for a long time: The state is not meeting its duty to fund the basic education every student in Washington is entitled to."

Washington State Republican Party Chairman Kirby Wibur
“The state Supreme Court ruled this morning that the state is failing in its paramount duty to adequately and uniformly fund our schools. This fiasco comes after Democrats have controlled the governor’s office for 27 straight years, while also controlling the Senate and House for 18 and 20 of those years, respectively. Their failure to prioritize state spending on our kids and our future economic health is exactly why we need fresh thinking in Olympia, starting with Rob McKenna as our next governor.” 

Freedom Foundation Education Reform Fellow Jami Lund
"The Court has clearly concluded that the state has 'transitioned from a seat-based education system to a performance-based education system' and needs to do the same with the funding formulas.

"The Court appears to want to see a funding system which provides enough for the student learning targets the legislature has set, but also a system which shows a relationship between the results and the mechanisms used to fund those results.

"For those of us who seek varieties of approaches to meeting students’ needs, this finding is promising. If the state were to find ways to fund student success independent of the measures of bureaucracy (hours, ratios, staffing levels), then these ways would not violate the ruling.

"This ruling affirms notions of funding student success more directly, evaluating programs and employees in terms of student success, and even focusing on teacher performance incentives rather than teacher education."

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Knight v. City of Yelm, No. 84831-9. The Supreme Court has ruled that mystic teacher and author JZ Knight has standing to oppose several proposals to subdivide property into single-family residential lots in Yelm. The hearing examiner granted preliminary subdivision approvals in five decisions. Knight later filed a Land Use Petition Act challenge, and the trial court ruled in her favor. On appeal, the Court of Appeals held that Knight could not show she would personally be harmed by land use decision, thus requiring dismissal of her LUPA petition.  In a 7-2 decision by Justice Charles Wiggins, the Supreme Court held that Knight established that the land use decision is likely to prejudice her water rights and satisfies the statutory standing requirement.

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The Supreme Court issued opinions in two cases today.

State v. Hecht, No. 86078-5. The Supreme Court rules that a former judge is entitled to public assistance in his appeal after he was convicted of patronizing a prostitute.

Shortly after being elected as a Pierce County Superior Court Judge, Michael Hecht was convicted of felony harassment and patronizing a prostitute. On appeal he requested an order of indigency in order to receive public funds for his representation on appeal. The trial court denied Hecht’s motion for an order of indigency. The Supreme Court, in an unsigned opinion, holds that Hecht is “presumptively indigent” because he receives food stamp benefits, and may be entitled to some assistance on appeal. RCW 10.101.010(1)(a). The court remanded the case to the trial court for further consideration.

In re the Detention of Danforth, No. 841527. 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 Court of Appeals held that his statements were a threat, irrespective of motive, and rejected his First Amendment argument.

In a three-vote lead opinion, the Supreme Court affirmed the Court of Appeals. Justice James Johnson wrote: “A reasonable jury could find that Danforth committed a threat when he gave explicit descriptions of his plans to molest boys at a bus stop and have intercourse with a child at a mall video arcade. Danforth repeatedly said that he would act on his plan if not committed as a sex offender. Former RCW 71.09.030(5), as defined by former RCW 71.09.020(10), is not unconstitutionally overbroad or vague. Former RCW 71.09.030(5) satisfies our due process requirement that the State show an offender is presently dangerousness before he or she is involuntarily committed. We affirm the summary judgment here.”

Justice Tom Chambers concurred in part and dissented in part, while Justice Charles Wiggins wrote a dissenting opinion.

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The Supreme Court issued one opinion today: a unanimous opinion in State v. Beadle, No. 84204-3.

Steven Beadle was convicted for child molestation in the first degree. At a pretrial child hearsay hearing, the alleged victim, four-year-old appeared to have an emotional breakdown and refused to testify.  The court nevertheless admitted the child's out-of-court disclosures to family members, mental health providers, a child protective services worker, and a law enforcement officer, pursuant to RCW 9A.44.120.

On appeal, Beadle argued the trial court erred in admitting the child hearsay statements, and that evidence of her breakdown was irrelevant and unduly prejudicial. The Supreme Court disagreed, upholding his conviction.

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The Supreme Court issued per curiam opinions in two criminal matters today. 

State v. McKague, No. 85657-5. The Supreme Court upholds a second degree assault conviction but clarifies the definition of “substantial bodily harm.” Jay McKague shoplifted a can of smoked oysters from Kee Ho Chang’s convenience store. Chang followed McKague out of the store and confronted him in the parking lot. A scuffle took place, during which McKague punched Chang in the head several times and pushed him to the ground, causing Chang’s head to strike the pavement. Chang was diagnosed with a concussion, a scalp contusion and lacerations, head and neck pain, and lacerations on his arm. Police photographs taken three days after the assault showed bruising around Chang’s eye.

McKague was eventually convicted of third degree theft and second degree assault. On appeal, a question was raised as to the sufficiency of the evidence of “substantial bodily harm” done to Chang. Second degree assault is defined as when the defendant intentionally assaults another and thereby recklessly causes “substantial bodily harm.” RCW 9A.36.021(1)(a). The Court of Appeal relied on to a dictionary definition of the term “substantial” as including “something having substance or actual existence.” The Supreme Court ruled that this definition would make practically any injury “substantial” no matter how minor. The Supreme Court indicated that substantial harm should be considerable. Nevertheless, the court upheld McKague’s conviction.

State v. Robinson, No. 83444-0. The Supreme Court allows a defendant to withdraw a guilty plea upon discovering that past offenses would count against his offender score. Chucco Robinson was charged with first degree attempted rape, burglary, and kidnapping. He erroneously believed that earlier juvenile convictions no longer counted toward his offender score. Based on this, he pleaded guilty. Later Robinson learned that his juvenile convictions would count toward his offender score and would increase the sentencing range. Robinson “immediately” sought to withdraw his plea. The trial court determined that Robinson’s plea was not made knowingly, voluntarily, and intelligently, given his reasonable misunderstanding. The State contended on appeal that the trial court based her discretion by allowing the plea withdrawal. The Supreme Court held that the ruling was within the discretion of the trial court, and remanded for further proceedings.

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The Supreme Court issued two new decisions on teacher terminations and public records law.

Federal Way Sch. Dist. No. 210 v. Vinson, No. 84243-4. The Supreme Court ruled favor of a former teacher who sought to overturn the district’s decision to terminate him. David Vinson, a teacher at Federal Way High School, was accused of verbally harassing a student. The school district terminated Vinson, citing his behavior and the dishonesty during the course of the investigation. A hearing officer ruled in Vinson’s favor, and a superior court affirmed the decision, ordering the district to pay Vinson’s attorneys fees.

The Supreme Court, in an 8-1 vote (Justice Charles Wiggins writing the majority), held that Federal Way School District did not have the right to appeal an adverse decision from a hearing officer. K&L Gates notes that this decision breaks new ground.

Significantly, the Supreme Court overruled several decisions in various divisions of the Court of Appeals that had determined sufficient cause could exist to discharge a teacher who had engaged in behavior that lacked any positive educational aspect or legitimate professional purpose, without regard to whether the conduct was remediable or adversely affected the teacher’s performance.

The Supreme Court expressly reinstated the original Clark test, which held that sufficient cause for a teacher's discharge exists as a matter of law where the teacher's deficiency is not remediable and (1) materially and substantially affects the teacher's performance; or (2) lacks any positive educational aspect or legitimate professional purpose.

Justice James Johnson dissented: “Today, this court’s majority makes it more difficult to discharge teachers and certificated employees than the legislature intended, even where clear cause for discharge exists.”

Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0. A nonprofit group, the Neighborhood Alliance of Spokane County, requested public records from Spokane County, suspecting illegal hiring practices in Spokane County’s Building and Planning Department. The trial judge granted summary judgment in favor of the county. On appeal, the Alliance argued that the County failed to conduct adequate searches for records responsive to both items, and that the trial court erred by limiting the scope of discovery. The case eventually reached the Supreme Court.

Justice Charles Johnson wrote the majority opinion in which the court held that discovery in a Public Records Act case is the same as in any other civil action and is therefore governed only by relevancy considerations. The court also adopted the standards for reasonableness regarding an adequate search from the federal Freedom of Information Act. Finally, the court held that harm to the requester occurs at the time the request is made and refused, and that a party may be entitled to recover costs and fees if the agency wrongfully fails to disclose documents in response to a request.

According to new reports, Spokane County’s violation of the public records law may cost more than $100,000 under the Supreme Court’s ruling.

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State v. Oppelt, No. 84573-5. David Oppelt was investigated in 2001 for child molestation, but somehow the report never reached prosecutors. The mistake was discovered in 2007, charges were filed, and Oppelt was convicted. He argued unsuccessfully at trial and again on appeal that his due process rights were violated by the preaccusatorial delay or that the trial court should have dismissed under CrR 8.3(b). The Court today explains that a negligent preaccusatorial delay may violate due process even within the statute of limitations. The court reaffirms its three-pronged test, explaining that the test "is best understood as an analytical tool to assist the court in answering the underlying question of whether a delay has resulted in a due process violation by violating fundamental conceptions of justice.

The "prongs" should be approached with this principle in mind. The test, simply stated, is that (1) the defendant must show actual prejudice from the delay; (2) if the defendant shows prejudice, the court must determine the reasons for the delay; (3) the court must then weigh the reasons and the prejudice to determine whether fundamental conceptions of justice would be violated by allowing prosecution.

The Court holds that Oppelt has not shown a due process violation and that the Criminal Rules did not require the trial judge to dismiss the case. All justices signed the opinion, which was written by Justice Chambers. (briefs, argument)

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Today the Supreme Court issued opinions in several cases.

In re the Dependency of K.N.J., No. 83516-1. Generally speaking, before a trial court terminates a parent-child relationship, the court must determine that the child has been found to be a dependent child.

K.N.J., a minor child, was placed in foster care after it was discovered that she severely abused by her mother. A dependency petition was filed by the state and ordered by a judge pro tempore. Michael Jenkins, the father of K.N.J., was not present at the hearing and the judge entered a default order despite his lack of consent.

Later the state filed for termination of Jenkins' parental rights, and he moved to vacate the original dependency order due to lack of his consent. The state argued the subsequent dependency review hearings cured any defect in the original order. The Court of Appeals found that the original dependency order was invalid, but that the subsequent hearings cured the defect.

The Supreme Court, with Justice Charlie Wiggins writing, affirmed the Court of Appeals by a 6-3 vote, and upheld termination of Jenkins' parent-child relationship with K.N.J., on the grounds that his dependency was proved at the termination trial.

Justice Gerry Alexander dissented: “Because family relationships are exalted, they should be nurtured. Therefore, this court should not promote or countenance shortcuts in the process of terminating the relationship between parent and child. Unfortunately, this is what the majority does here. Thus, I dissent.” Justice Debra Stephens filed a dissent as well.

Michaels v. CH2M Hill, Inc., No. 84168-3. A horrific accident at the Spokane wastewater treatment plant killed one man and injured two others. The survivors successfully sued CH2M, the engineering firm that was working with the city at the time. The question for the Supreme Court was whether CH2M enjoys immunity from suit under the Industrial Insurance Act. The Act immunizes a design professional performing professional services “on a construction project” or any employee of a design professional assisting or representing the design professional performing professional services on the “site of the construction project.” RCW 51.24.035.

The Supreme Court, with Justice Tom Chambers writing, concluded that the immunity clause did not apply to CH2M. The court further determined CH2M’s negligence caused the accident: “[H]ad CH2M not breached its duty, and had it performed the engineering analysis, the city employees would not have been confused and the collapse would not have occurred.” Chief Justice Barbara Madsen concurred separately.

Samantha A v. WA Dept. of Social & Health Services, No. 84325-2. The Supreme Court holds that a Department of Social and Health Services (DSHS) regulation that reduces the financial assistance payable for in-home personal care services violates federal Medicaid law.

As part of Medicaid, DSHS provides paid personal care for disabled individuals. The extent of the care is based on a variety of eligibility factors that are re-evaluated periodically. A “children’s personal care rule” reduces the amount of paid care a child can receive based on the child’s age or if the child is living with parents (who already have a duty to care for the child).

This rule was challenged on behalf of a child named Samantha A. Samantha is cared for by a single mother but is eligible for 24-hour institutional care. The challenge claims (and the trial court agreed) that the children’s personal care rule violates Federal Medicaid law “requiring comparability of amount, duration, and scope of services among all recipients.” In other words, the rule treats disabled children differently based on their ages and on their relation to their caregivers.

Writing for the majority, Justice Charles Johnson affirmed the trial court. Chief Justice Madsen and Justice Stephens each wrote dissents.

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State v. Martin, No. 83709-1. Timothy Martin appeals his convictions for kidnapping and robbery. During his trial, a prosecutor's questions implied that Martin, who had previously read the evidence against him, had tailored his testimony to be consistent with that evidence. Martin appealed, alleging a violation of his rights under article I, section 22, of the Washington State Constitution. The Court of Appeals held article I, section 22, to be coextensive with the Sixth Amendment as it applies here according to Gunwall and, based on the U.S. Supreme Court's decision in Portundo v. Agard (2000), affirmed the trial court.

The Washington Supreme Court disagrees with the Court of Appeals Gunwall analysis and thus with their reliance on Portundo. However, the Court agrees with the result reached by the Court of Appeals. When a defendant chooses to testify, prosecutors are free to challenge the defendant's credibility as with any other witness. Even Justice Ginsberg's dissent in Portundo indicated that she would allow such questions during cross examination (in Portundo, the suggestion that the defendant had tailored his testimony was made during the prosecution's closing argument).

The Court affirms the result reached by the Court of Appeals and embraces Justice Ginsberg's position in Portundo. Justice Alexander wrote for the Court, and the opinion was signed by four other Justices. Justice Stephens, with Justices Chambers and Fairhurst, concurs in the result, but only because she would find the prosecutor's questions here to have been harmless error. Justice Pro Tem. Sanders dissents and would put this area of the defendant's credibility beyond the reach of cross examination. (briefs, argument)

Washington Imaging Servs., LLC v. Dep't of Revenue, No. 84101-2. Washington Imaging is a medical imaging company that contracts with Overlake Imaging Associates, whose doctors interpret the images. Washington Imaging challenges a Department of Revenue decision that Washington Imaging owes Business and Occupation taxes on the money it receives from patients and then pays to Overlake Imaging Associates. The trial court granted summary judgment to the Department. It found that Washington Imaging was not acting as the agent of its patients in paying Overlake Imaging Associates, thus the payments in question were revenue subject to B&O tax. The Court of Appeals reversed that decision. The Supreme Court reinstates the trial court's grant of summary judgment. The Chief Justice wrote for a unanimous Court. (briefs, argument)

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In re Recall of Washam, No. 85460-2. In March, the Court entered an order allowing the recall of Pierce County Assessor-Treasurer Dale Washam to proceed. Today, the Court releases its opinion providing the rationale behind that decision. In addition to the statement of facts in the opinion, media accounts and editorials abound. The unanimous Court today reiterates that "[r]ecall statutes are construed in favor of the voter" and that

[t]echnical violations of the governing statutes are not fatal, so long as the charges, read as a whole, give the elected official enough information to respond to the charges and the voters enough information to evaluate them. (In re Recall of West (2005))

Considering the specific allegations against Washam, the Court notes that many of Washam's responses were conclusory.

Washam contends that he had "a legally cognizable justification for discretionary personnel decisions," Opening Br. at 30, but he does not further elaborate what that cognizable justification might have been. While our review is de novo, mere invocation of a legally cognizable justification is not enough.

 The Court unanimously affirms the trial court. Justice Chambers wrote the opinion.

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Carlsen v. Global Client Solutions, LLC, No. 84855-6. Plaintiffs, in an attempt to avoid paying their debts, were customers of Freedom Debt Relief LLC. Freedom, like some other similar companies, hired Global Client Services (GCS) to manage special purpose accounts for each of their customers. The accounts were held in GCS's custodial account at Rocky Mountain Bank and Trust (RMBT). Plaintiffs subsequently brought a class action suit against GCS and RMBT in the United States District Court for the Eastern District of Washington, alleging violations of RCW 18.28, Washignton's debt adjusting statute. The federal district court stayed a motion to dismiss by the defendants and certified four questions of first impression related to the Washington statute to the Washington State Supreme Court.

The first question is whether a company like GCS is engaged in "debt adjusting" as defined in RCW 18.21.010. The Court holds that the statutory definition, which includes "receiving funds for the purposes of distributing said funds among creditors," unambiguously includes companies like GCS.

The second question is whether the exception for banks in RCW 18.21.010(2)(b) applies to GCS. The Court holds that it should construe the debt adjusting statute liberally in favor of consumers. It reads the exception narrowly and thus holds that it does not apply to GCS.

The district court's third question asks if the fee limits in RCW 18.28.080 apply to companies like Freedom, which do not operate as anticipated by the statute (for details on the business models involved, see the full opinion). The Court holds that the statute appears to apply to companies like Freedom, but recognizes that there are "factual questions the district court must resolve based on the exact nature of the debt settlement companies and the services they provide."

The final question is whether the statute provides an implied cause of action against an "aider and abettor" related to the misdemeanors created in RCW 18.28.190. However, the Court finds it unnecessary to create such an implied cause of action because RCW 18.28.185 makes all violations of the debt adjusting statute also violations of RCW 19.86, Washington's consumer protection law, which provides a civil remedy.

Justice Fairhurst wrote for a unanimous court. Justice Chambers signed that opinion, but also wrote an opinion-editorial about debt adjusting companies and business regulation that he issued as a concurrence. (briefs, argument)

Harris v. Charles, No. 83867-4. Petitioner Joshua Harris pleaded guilty to driving with a suspended license and driving without a required ignition interlock device, both misdemeanors. Prior to sentencing, Harris was required to wear an "electronic home monitoring" device. Harris wanted credit against his 90-day sentence for the time he wore the monitoring device, and the municipal court judge refused. Harris filed a writ of habeus corpus, alleging a violation of his right to equal protection because RCW 9.94A requires crediting felons, but not misdemeanants, for such time. The King County Superior Court agreed with Harris, but the Court of Appeals reversed the Superior Court's order.

The State Supreme Court today affirms the court of appeals, finds that the City's appeal was timely and thus not moot, and holds that there is a rational basis for the different treatment of felons and misdemeanants in this case. Justice Wiggins wrote for a unanimous court. (briefs, argument)

State v. Williams, No. 83992-1. Michael Williams gave police his brother's name instead of his own while being investigated for theft. He was eventually convicted of first degree theft, making a false statement to law enforcement, and obstructing a law enforcement officer. He appeals the last of these, arguing based on precedent and the State Constitution that obstruction requires conduct and not just a false statement.

Today, Justice Chambers writes for a unanimous court, agreeing with Williams and case law that the crime of obstructing a law enforcement officer cannot be predicated on speech alone. The opinion describes several earlier cases and Washington's strong constitutional protections of personal privacy and autonomy. The Court vacates Williams's conviction for obstruction. (briefs, argument)

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Today the Supreme Court issued decisions in three cases.

In re Detention of Gale West, No. 82568-8. Gale West was found by a jury to be a sexually violent predator (SVP), and the trial court entered a civil commitment order which the Court of Appeals upheld. West challenges the ruling, saying he was prejudiced by the trial court’s rulings on evidence in the trial, and that he was entitled to discovery of the SVP evaluations done for other persons by the State’s expert witness. The Supreme Court (Justice Mary Fairhurst writing), upholds West’s conviction, rejecting his argument that witness testimony about the conditions and treatment phases at the Special Commitment Center was inadmissible. The court agrees in part that the court wrongfully denied West’s request for the State’s expert witness work product. But because this error was harmless, the Supreme Court upholds the decisions below. Justice Pro Tem Richard Sanders dissents.

State v. Sims, No. 83779-1. Jack Irvin Sims directly appealed to the Supreme Court to challenge only a particular condition of his sentence while not challenging his underlying conviction.
Sims pleaded guilty to one count of first degree molestation of a child.

The trial court imposed imposing a sentence of 60 months to life to be suspended after 180 days of confinement as long as Sims followed all the sentencing conditions. The judge imposed a lifetime no-contact order and, over Sims’ objection, ordered him not to reside in Cowlitz County and to not never enter the city limits of Castle Rock, where the incident took place and the victim continued to reside.

Sims appealed, challenging only the condition banning him from Cowlitz County and Castle Rock. The State conceded that the condition Sims challenged was unconstitutional and then argued that his entire sentence should be invalided and remanded to trial court for reconsideration. The Supreme Court (Justice Susan Owens writing) ruled on the proper scope of remand:

The proper remedy in this case is resentencing for the limited purpose of narrowly tailoring the geographic condition of Sims’s SSOSA sentence that currently banishes him from Cowlitz County. A broader remedy was not properly before the Court of Appeals because such a remedy is affirmative relief for the State, for which the State did not file a cross appeal and which is not demanded by the necessities of the case. We remand to the trial court for resentencing for the purpose of making the vacated banishment condition constitutionally sound.

Justice Debra Stephens dissents, arguing the majority decision “wholly discounts the trial court’s discretion” for resentencing.

Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6. Writing for the majority of the court, Justice Owens observed: “At bottom, this case is a dispute between two independent municipal corporations over whether completion of the proposed developments would reduce fire protection services below an adequate level of service.”

In 2006, Whatcom County approved three land use applications for development in the Birch Bay urban growth area. Whatcom County Fire District No. 211 filed a land use petition challenging the approvals. The fire district asserted that it was not equipped to provide adequate services with the arrival of additional structures.

The superior court granted the fire district’s petition. On appeal, the Court of Appeals reversed and held that the County’s comprehensive plan had established the adequacy and availability of fire protection. The appeals court reinstated the approvals.

The Supreme Court reversed the Court of Appeals and the approval of the land use applications. The court determined that had Whatcom County assigned responsibility for assessing the adequacy of fire protection services to the Fire District by adopting a county code prohibits approval of certain land uses without a letter of adequacy from the fire district. Justice Tom Chambers dissents.

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In re Pers. Restraint of Martinez, No. 83219-6. Raymond Martinez filed a personal restraint petition more than a year after his conviction for first degree burglary became final, challenging the sufficiency of the evidence. His petition was earlier dismissed by the court of appeals as both untimely and successive.

When Martinez was arrested after a foot chase, he was wearing an empty knife sheath. The knife was recovered along the route of the chase and Martinez acknowledged that it was his and had been in the sheath. Conviction for first degree burglary requires proof that the defendant either committed an accompanying assault or, as prosecutors alleged in Martinez's case, was "armed" with a "deadly weapon." The burglary statute, RCW 9A.04.110(6), defines a "deadline weapon" as

any explosive or loaded or unloaded firearm, and ... any other weapon, ... which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.

The Court unanimously reverses the court of appeals, holding first that Martinez's personal restraint petition challenging the sufficiency of the evidence is properly before the Court. The Court further holds that the statute is unambiguous as it applies to this case--it requires more than simply possessing a knife. The state failed to offer any evidence at trial to indicate how Martinez used or intended to use the knife, thus the Court vacates Martinez's conviction. The Chief Justice wrote for the Court. (briefs, argument)

In re Pers. Restraint of Nichols, No. 83742-2. A drug informant provided Seattle Police with evidence that cocaine was being sold out of room 56 at a particular Travelodge hotel. Police obtained Glenn Nichols's name from the hotel register. Using a patrol car computer, they determined that Nichols's driver's license was suspended. Soon thereafter, officers witnessed Nichols drive into the Travelodge complex, arrested him for driving on a suspended license, and found drugs and police "buy" money in Nichols's possession. Nichols was convicted on drug charges. During his appeal and for the first time, Nichols alleged that the search of the hotel register violated article I, section 7, of the Washington State Constitution. The court of appeals found that Nichols waived the issue by failing to raise it at trial and dismissed the petition.

A splintered Supreme Court partly reverses the court of appeals, holding that "a petitioner can raise an article I, section 7, claim for the first time in a PRP." The Court emphasizes its divergence from federal courts on the meaning of the exclusionary rule.

We have consistently rejected the sort of balancing test that federal courts apply in applying the exclusionary rule, and we have done so because we view our exclusionary rule as "constitutionally mandated, exist[ing] primarily to vindicate personal privacy rights," rather than simply as a "judicially-created prophylactic measure designed to deter police misconduct." State v. Chenoweth (2007).

Nevertheless, the Court holds that "because the questioning of the desk clerk at the Travelodge was not random and was conducted only because the police officers had individualized suspicion ... the examination of the registry that took place shortly thereafter did not violate article I, section 7 of our state constitution." Justice Alexander, joined by Justice Charles Johnson, James Johnson, and Stephens, wrote the lead opinion. The Chief Justice concurred separately and very briefly, incorporating her dissent in State v. Jorden (2007). Justice Fairhust, joined by Justices Chambers and Owens and Justice Pro Tem. Sanders, dissents and argues that "the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement." (briefs, argument)

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Blair v. TA-Seattle East No. 176, No. 83715-5. The plaintiff, Blair, failed timely to disclose her witness list according to the discovery schedule. The trial court twice sanctioned Blair by striking some of her witnesses and imposing monetary fines, though it did not enter into the record any findings to support these decisions. Eventually, the trial court granted a defense motion for summary judgment since Blair had no medical witness who could testify to causation. Blair appealed, and the court of appeals affirmed the trial court.

The Supreme Court reverses the courts below. It holds that the trial court abused its discretion when it struck the witnesses because it did not set forth its reasons for the sanctions in the record. And because those actions were improper, the summary judgment order must be reversed as well. Justice Stephens wrote for the Court. The holding was unanimous, but Justice James Johnson wrote a concurrence to emphasize that this decision does not limit the sanctions that can be imposed by trial courts. (briefs, argument)

Schnall v. AT&T Wireless Servs., Inc., No. 80572-5. The federal government, through the Federal Communications Commission, requires AT&T and other telecommunications companies to pay into the Universal Service Fund, which subsidizes telecommunications services in certain areas. The government expressly permits companies to recover these funds from customers, which AT&T does as a "Universal Connectivity Charge" line item on customers' bills. An AT&T Wireless customer, Martin Schnall, sued, alleging that this practice by AT&T violates the Washington Consumer Protection Act (CPA) and the terms of AT&T's customer contract. Schnall asked the trial court to certify a nationwide class; the trial court denied class certification; Schnall appealed. The court of appeals reversed the trial court and certified the class.

AT&T's customer contracts include a choice of law provision requiring customers to litigate contract issues in the jurisdiction where the contract was signed. The trial court found no reason to invalidate this contract term, thus it declined to certify a nationwide class on Schnall's contract claim. The Supreme Court agrees with the trial court and reverses the court of appeals. On the state CPA claim, the Court affirms the court of appeals, noting that the trial court's decision predated the Supreme Court's opinion in Indoor Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc. The case is remanded to the trial court.

The Chief Justice wrote for the Court and was joined by four other justices. Justice chambers wrote a concurrence in part, but also agreed with Justice Pro Tem. Sanders's dissent that the majority failed to consider factors weighing in favor of certifying the national class. Justice Owens and Stephens also signed the dissent. (briefs, argument)

State v. Robinson, No. 83525-0. In these consolidated appeals, two criminal defendants challenged the admissibility of evidence used against them at trial. Both defendants first raised the issue on appeal after the decision of the Supreme Court of the United States in Arizona v. Gant. That case narrowed the exception to the warrant requirement for automobile searches incident to an arrest. The State Supreme Court holds for both defendants and remands their cases.

We hold that principles of issue preservation, as embodied in RAP 2.5(a), do not apply where (1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation. As these criteria are met in both Millan's and Robinson's cases, their raising the admissibility of evidence under Gant and Patton for the first time before the Court of Appeals and this court, respectively, are permissible.

Justice Owens wrote for the seven-member majority. The Chief Justice wrote a dissent, which was joined by Justice James Johnson. (briefs, argument)

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Freeman v. Gregoire, No. 83349-4. A coalition of taxpayers petitioned the Supreme Court to issue either a writ of prohibition or a writ of mandamus against Gov. Christine Gregoire and Secretary of Transportation Paula Hammond, prohibiting them from taking any further actions to convert traffic lanes of the I-90 Lake Washington Bridge to light rail.

The Washington State Constitution, article II, section 40, creates a special fund related to motor vehicle transportation.

All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.

In 2009, the Legislature passed and Gov. Gregoire signed a transportation budget that included an appropriation of $300,000 from the motor vehicle fund to pay for a study "methodologies to value the reversible lanes on Interstate 90 to be used for [light rail]." The legislation also stated the legislature's commitment to "construction of sound transit's east link." Pursuant to the appropriation, DOT spent $250,000 of motor vehicle fund money to begin the process of appraising the existing lanes so that the ownership of those lanes can be transfered from the DOT to Sound Transit.

The taxpayer petitioners argue that the appropriation and expenditure violate article II, section 40. Because the legislature's intent is to proceed with the transfer of the highway lanes in order to build light rail, the motor vehicle funds are not being used for highway purposes. The DOT counters that the valuation study falls within "administration of the public highways," which is part of the constitutional definition of "highway purposes."

The Court yesterday sided with the Department of Transportation and refused to view the legislature's intent to proceed with light rail as a mandate on the Department.

The valuation allows DOT to explore the feasibility of transferring or leasing the center lanes of I-90 to accommodate light rail mass transit. And as noted above, DOT has specific statutory authority to transfer highway lands, and the decision of whether to transfer or lease lands is inherently a function of the administration of highway property. Since the expenditure serves an administrative function, the expenditure "indirectly benefits" our public highways and is lawful under article II, section 40.

The Court further holds that petitioners requested writ is too broad and that, as such, it would be impossible for the Court to ensure that it was enforced. Justice Charles Johnson wrote for the Court and was joined by the Chief Justice; Justices Chambers, Owens, and Stephens; and Justice Pro Tem. Karen Seinfeld. 

Justice Alexander authored a concurrence, which Justice Pro Tem. Seinfeld also signed, noting that while the constitutional protection is clear, the funds have also already been expended. The concurrence also agrees with the majority that the requested writ is too broad.

Justice James Johnson dissents and is joined by Justice Pro Tem. Saunders. The dissent points out that the constitutional provision here, both on its face and as interpreted in previous cases, prohibits expending motor vehicle funds on mass transit projects. Regardless of which entity is actually spending the money, if the money comes from the motor vehicle fund, its uses are proscribed; even the promise of future reimbursement is irrelevant.

The people adopted a constitutional provision in article II, section 40, prohibiting the use of vehicle fees and excise taxes for anything other than highway purposes. In the wake of this constitutional provision, gas taxes have continued to rise and license fees, though limited by initiative, raise millions of dollars for the state. The people have tolerated or authorized such taxes in the past predicated on the constitutional promise that the revenues collected by the state through such taxes and fees will be used exclusively for highway purposes. Because the legislature has broken that constitutional promise and the majority declines to enforce it, I dissent.

Justice Fairhurst and Justice Wiggins did not participate. (briefs, argument)

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Burton v. Twin Commander Aircraft, No. 83030-4. The Supreme Court ruled that an action against Twin Commander, an airplane manufacturer, was time barred. A crash occurred in Mexico in May 2004, killing seven government agents on board. Kenneth Burton, personal representative of the decedents’ estates, filed a wrongful death action against Twin Commander. Twin Commander moved to a decision on the basis of the General Aviation Revitalization Act. The law bars actions against aircraft manufacturers if the accident occurs 18 years after delivery of the aircraft to the first purchaser. The trial court ruled in Twin Commander’s favor. On appeal, the Court of Appeals ruled that Twin Commander has failed to prove that it is a “manufacturer” of the aircraft, and was thus covered by the statute of limitations. The Supreme Court, with Chief Justice Barbara Madsen writing, reversed the Court of Appeals. Justice Debra Stephens and two others dissent.

In re PRP of Carlos John Williams, No. 84711-8. Carlos Williams, an inmate at Monroe Correctional Center, filed two civil complaints for monetary damages against the Department of Corrections, claiming cruel and unusual punishment and racial discrimination. The superior court treated both actions as postconviction challenges and referred them to the Court of Appeals for consideration as personal restraint petitions. The Court of Appeals dismissed the petitions as improperly seeking monetary relief. The Supreme Court (in a per curiam decision) reversed the Court of Appeals and ordered the trial court to treat Williams’ actions as civil complaints.

State v. Simms, No. 83826-7. Daniel Simms was convicted (among other things) of robbery, with sentence enhancement for use of a firearm. Because Simms had a previous conviction of assault with a firearm enhancement in 2000, the court doubled the firearm enhancements, adding 22 years to his sentence. Simms challenged the enhancement on appeal—specifically whether the state, in seeking a double firearm enhancement based on the prior imposition of a firearm enhancement, is required to allege in the information that the defendant has previously been sentenced to a firearm enhancement. 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.” The Supreme Court unanimously upheld the Court of Appeals. Justice James Johnson wrote the decision of the court.

State v. Weaver, No. 84982-0. The Supreme Court previously granted Oliver Weaver’s petition for review of a Court of Appeals decision that had affirmed his sentence for second degree child rape and second degree rape. The Supreme Court had ordered reconsideration by the Court of Appeals in light of State v. Mendoza (2009). On reconsideration, the Court of Appeals adhered to its original decision. Weaver again appealed to the Supreme Court. The Supreme Court holds today that Mendoza entitles Weaver to relief, reverses the Court of Appeals, and remand to the superior court for further proceedings.

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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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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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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 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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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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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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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 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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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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West v. Reed, No. 83612-4. Arthur West sued Secretary of State Sam Reed, challenging his certification of Referendum 71 for the 2009 general election ballot. West's action was dismissed by the Thurston County Superior Court. Today, the Supreme Court dismisses his appeal as moot because the election was held and the referendum defeated by the voters.

State v. Gudgel, No. 83821-6. Gerald Gudgel was convicted of several crimes in 2002. In 2009, he filed a motion alleging that the state withhold evidence in his trial and challenging his conviction. The superior court dismissed the motion as time-barred and today the Supreme Court upholds that dismissal. 

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School District Alliance for Adequate Funding of Special Education v. State, No. 82961-6. The School District Alliance for Adequate Funding of Special Education challenged the constitutionality of Washington’s special education funding system as inadequate to completely provide for the education of special needs students, forcing some districts to rely on levies for special education funding.

The court found several problems with the Alliance’s accounting, and ruled that their arguments “do not establish beyond a reasonable doubt” that special education is underfunded. Accordingly, both the Thurston County Superior Court and the Court of Appeals found the funding statute to be constitutional.

The Supreme Court (Justice Susan Owens writing) agreed with the lower courts.

The Washington Constitution provides that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders.” Special education in Washington is funded by three sources: 1) the Basic Education Allotment (BEA), which the State provides to school districts based on an enrollment average; 2) special education excess funding from the State if a school district cannot provide an appropriate education for special education students; and 3) “safety net” funds where the State provides additional funding to districts with demonstrated needs for special education funding.

The Alliance sued, arguing that the State was underfunding special education. However, in presenting evidence of underfunding, the Alliance omitted funding that came from the BEA, arguing that BEA funds for special education students goes toward basic education classrooms.

The Supreme Court first addressed the proper standard of review. Justice Owens wrote: “In Washington, it is well established that statutes are presumed constitutional and that a statute’s challenger has a heavy burden to overcome that presumption; the challenger must prove that the statute is unconstitutional beyond a reasonable doubt.” (The Alliance had argued a lower threshold of proof should apply.)

The Supreme Court also rejected the key argument that special education funding should be calculated without including the BEA. The Court noted that the Alliance’s own expert found that a special education student costs 190 percent of a basic education student. The State, when including the BEA and additional special education funding into the formula, allocates 193.09 percent of basic education costs for each special education student.

“For us to conclude that the BEA should not be included in calculations of how much funding goes to special education, we would have to agree with the Alliance’s contention that basic education and special education are in entirely separate realms. The Alliance attempts to differentiate between basic education and special education services, but the law does not support this distinction.”

“The legislature has consistently made it clear that special education students are also basic education students and that the additional special education funding is in addition to, and takes into account, the BEA. We therefore disagree with the Alliance’s contention that basic education and special education are entirely separate. We affirm the trial court and Court of Appeals and hold that the BEA must be included in the calculations when deciding if special education is adequately funded.”

Justice Debra Stephens concurred separately in the result. Justice Tom Chambers also wrote a concurring opinion, but dissented as to the requirement that a party arguing an statute is unconstitutional must prove the case “beyond a reasonable doubt.”

Justice Richard Sanders dissented entirely, also disagreeing with the “beyond a reasonable doubt” standard. He argued this placed too great a burden on any party challenging a legislative enactment. “The judiciary cannot protect against an overreaching legislature if every enactment is presumed constitutional unless proved otherwise ‘beyond a reasonable doubt,’ giving the legislature, simply because it is the legislature, an advantage against any challenger’s assertion to the contrary.” Justice Sanders also argued that the legislature was underfunding special education when basic and special education funding are analyzed separately.

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The Supreme Court issued several opinions last week, but my schedule (not to mention the weather) prevented a timely write-up. Here are summaries of the cases.

Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hearings Bd., No. 84501-8. Advocates for Responsible Development, a nonprofit organization, challenged land use ordinances adopted by Mason County. The Court of Appeals held that the association’s president, John Diehl, did not have standing to appeal the ordinances to the Western Washington Growth Management Hearings Board and that as a nonattorney he could not represent the association before the courts. The Court of Appeals also awarded attorney fees against Diehl as a sanction for filing a frivolous appeal. The Supreme Court reversed the award of attorney fees, finding that the appeal was not “so totally devoid of merit as to be frivolous.”

In re Pers. Restraint of Adolph, No. 82868-7. In 2003 Vincent Adolph was driving under the influence of alcohol and struck the vehicle of Loretta Aguilar, killing Aguilar and injuring her passenger. Adolph was charged and convicted of vehicular homicide and vehicular assault. In vehicular homicide convictions involving alcohol, the law imposes two-year sentence enhancements for each prior DUI conviction (RCW 46.61.520(2)). The State presented evidence that Adolph had three prior DUIs. Two Okanogan County DUI convictions were supported by a certified docket. Adolph objected to the sufficiency of the record for the third DUI conviction from, which was supported by a certified copy of Adolph’s Department of Licensing (DOL) driving record abstract and a copy of a defendant case history from the District and Municipal Court Information System. The trial court concluded the State had met its burden and imposed three two-year sentence enhancements.

The Supreme Court (Justice Mary Fairhurst writing) held that Adolph’s personal restraint petition (PRP) was not procedurally barred and was properly before the court, but the Court determined that sufficient evidence supported the Lincoln County DUI conviction. Justice Richard Sanders dissented.

In re Pers. Restraint of Francis, No. 82619-6. The Supreme Court (Justice Richard Sanders writing) ruled that double jeopardy protections were violated in the prosecution of Shawn Francis. Francis pleaded guilty to felony murder of Jason Lucas, first degree attempted robbery of D’Ann Jacobsen, and the second degree assault of D’Ann Jacobsen, all arising from the same set of events. The State, however, relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes. The Court held that multiple convictions for the same offense violates double jeopardy. The Court vacated second degree assault charge and remanded for resentencing.

Seattle Times Co. v. Serko, No. 84691-0. The Seattle Times sought a writ of mandamus vacating two trial court orders—one that exempted documents gathered during a criminal investigation from production under the Public Records Act, and one that sealed trial exhibits in a subsequent hearing.

After the 2009 tragedy where Maurice Clemmons shot and killed four Lakewood police officers, the Seattle Times filed several public records requests seeking documents. The State filed charges against seven alleged accomplices of Maurice Clemmons. Several of these defendants sought to prohibit the Pierce County Sheriff’s Office from producing any documents in response to the Times’ request. Judge Susan Serko ruled that the rights of the accused to a fair trial would be compromised by the release of the records.

The Supreme Court unanimously held that a writ of mandamus, while an extraordinary remedy, would be appropriate in this case. The Court (Justice Debra Stephens writing) held that a “categorical” denial of records is not appropriate and that any nondisclosure requires a record-by-record analysis.

State v. Hirschfelder, No. 82744-3. Matthew Hirschfelder was a choir teacher at Hoquiam High School. He had sexual intercourse in his office with a student in 2006. Hirschfelder was 33 and the student was 18. Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).

Hirschfelder filed a motion to dismiss the charge. He argued the law criminalized sexual intercourse with “minors,” and that he had committed no crime as he had intercourse with an 18-year-old. He also argued the statute was unconstitutionally vague and violated equal protection. The trial judge denied the motion but allowed the case to go up on appeal. The Court of Appeals agreed with Hirschfelder, holding that the statute was ambiguous and that the legislature only meant to prohibit sexual intercourse between school employees and students who were 16 or 17.

Before the Supreme Court, Hirschfelder argued that the statute, entitled “[s]exual misconduct with a minor in the first degree,” was not intended to criminalize sexual intercourse between school employees and registered students age 18 or older because of the statute’s use of the term “minor.”

The Supreme Court (Justice Debra Stephens writing) disagreed. “In the end, a common sense reading of former RCW 9A.44.093(1)(b) must prevail. We hold that the former statute’s plain language unambiguously defines minor as a registered student and thus includes students up to the age of 21.” The court remanded the case to trial court for further proceedings. Justice Charles Johnson wrote a dissenting opinion.

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The Supreme Court issued opinions in three cases today.

Humphrey Indus. LTD v. Clay St. Assocs. LLC, No. 82687-1. Humphrey Industries, Ltd. (through several business partners) created Clay Street Associates, LLC, to hold a single real estate asset located in Auburn, Washington. In order to break a deadlock with principal George Humphrey regarding the sale of the property, the other members of Clay Street agreed to merge the company into a new limited liability company to facilitate the sale. Humphrey dissented from the merger and demanded payment pursuant to the dissenters’ rights provisions of the Washington Limited Liability Company Act, chapter 25.15 RCW. Clay Street agreed to pay Humphrey the fair market value of his interest as of the merger date but did not pay until the property sold.

Humphrey rejected the value calculation and sued. The trial court found that the property was worth more than Clay Street had calculated, and awarded Humphrey the difference plus interest. However, the court awarded Clay Street attorneys fees, finding that the dissenting Humphrey had acted arbitrarily, vexatiously, or not in good faith. The Court of Appeals (Div. I) affirmed.

The Supreme Court (Justice Jim Johnson writing) reversed the Court of Appeals and remanded for reconsideration of the attorney fee award. The court held that the lower courts erred in finding that Clay Street “substantially complied” with the LLCA.

In re Custody of S.C.D.-L., No. 84186-1. In a per curiam decision, the Supreme Court reversed a trial court’s order awarding custody of S.C.D-L. to her grandmother, Edna Littell. The court wrote that Ms. Littell failed to allege or offer facts at the show cause hearing conducted under RCW 26.10.030 that S.C.D-L. was not in the physical custody of one of her parents or that neither parent was a suitable custodian.

“A nonparent may petition for custody of a child if the child is not in the physical custody of a parent or if the petitioner alleges that neither parent is a suitable custodian. RCW 26.10.030(1). The trial court must deny a hearing on the petition unless the nonparent submits an affidavit (1) declaring that the child is not in the physical custody of one of the child’s parents or that neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. S.C.D-L. was in [her father] Mr. Littell’s physical custody at the time Ms. Littell filed her petition, and the petition
does not allege that he is an unfit parent. Instead, the petition implies it would be in the child’s best interest to reside with Ms. Littell, but the ‘best interests of the child’ standard does not apply to nonparent custody actions."

State v. Patel, No. 82649-8. The Supreme Court upheld a conviction for attempted child rape where the “victim” was actually a police officer posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of second degree attempted rape of a child. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The trial court and Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

The Supreme Court (Justice Tom Chambers writing the four-vote lead opinion) agreed, holding that “a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police.” The court reasoned that unlike convictions for actual child rape, which require a showing that the child was underage, attempt crimes do not depend on the ultimate harm that would have resulted from commission of the crime. Rather, the person is guilty of an attempt “if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020(1).

Chief Justice Madsen and Justice Richard Sanders wrote separate concurring opinions.

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Affiliated FM Insurance Company v. LTK Consulting Services, No. 82738-9. Affiliated FM provides insurance for the Seattle Monorail Services (SMS), which operates the monorail under an agreement with the monorail’s owner, the City of Seattle. In May 2004 a fire broke out under a Blue Line train, allegedly caused by an electrical short that occurred because of improper wiring performed by LTK Consulting in 2002. Affiliated sued LTK for negligence.

This case originated in King County Superior Court, from where it was removed to federal district court, appealed to the Ninth Circuit Court of Appeals, and finally certified a question to the state supreme court: whether SMS, which does not own the Seattle Monorail, can bring a tort action against LTK.

In a two-vote lead opinion for the Supreme Court, Justice Mary Fairhurst wrote that that SMS may sue LTK for negligence. “LTK, by undertaking engineering services, assumed a duty of reasonable care. This obligation required LTK to use reasonable care, as we have defined it, with respect to risks of physical damage to the monorail. SMS enjoyed legally protected interests in the monorail, and LTK’s duty encompassed these interests.”

Justice Tom Chambers filed a concurrence agreeing with the lead opinion’s outcome. Chief Justice Barbara Madsen concurred in part and dissented in part.

Ameriquest Mortgage Co v. Washington Attorney General, No. 82690-1. This case presents the question of whether the federal Gramm-Leach-Bliley Act (GLBA), which requires banks to keep customer information private, preempts the state Public Records Act (PRA). During an investigation of the lending practices of the Ameriquest Mortgage Company, the Attorney General’s Office obtained a number of documents from Ameriquest, including loan files, e-mails, and other papers. A public records request was filed for the documents, and Ameriquest sued the AGO to keep the files secret.

The Court of Appeals held that the GLBA preempts the PRA, preventing disclosure of the loan files. Preemption doctrine requires that federal law will prevail when it conflicts with state law.

The Supreme Court (Justice Fairhurst writing the unanimous opinion) agreed that federal law prevented the AGO from releasing protected consumer information. However, the Supreme Court determined that the GLBA did not preempt the PRA, as the two could be reconciled—the PRA specifically recognizes that “other statutes” may protect records from disclosure.

Eastwood v. Horse Harbor Foundation, No. 81977-7. Linda Eastwood owns the Double KK Farm horse farm in Poulsbo, Washington. Horse Harbor is a nonprofit organization that cares for abused and abandoned horses. Eastwood and Horse Harbor agreed to a lease for a portion of the Double KK. Horse Harbor was obligated to maintain the farm and return it in good condition.

Horse Harbor neglected to maintain the farm. The Kitsap County Health District cited Horse Harbor for unlawful burning of solid waste and improper management of horse manure. The lack of maintenance resulted in pools of standing water and mud, broken fencing, a damaged riding arena floor, and horse-chewed wood surfaces. Eastwood complained to Horse Harbor’s board of directors but the board took no action. Eastwood sued for breach of lease, the commission of waste, and negligent breach of a duty to not cause physical damage to the leasehold.

The Court of Appeals characterized Eastwood’s claims as economic losses that resulted from Horse Harbor’s actions. The court held the economic loss rule applied and limited Eastwood to recovery only for breach of lease.

In a three-vote lead opinion, the Court (Justice Fairhurst writing) held that the Court of Appeals was mistaken to deny Eastwood tort damages for waste. “An injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract. Because the term ‘economic loss rule’ inadequately captures this principle, we adopt the more apt term ‘independent duty doctrine.’ The existence of an independent duty is a question of law for courts to decide. We hold the duty to not cause waste is an obligation that arises independently of the terms of a lease covenant, and sufficient evidence supported the trial court’s findings of a causal connection between Eastwood’s losses and a breach of this independent duty.”

Chief Justice Madsen concurred with the result but objected to the analysis. “The lead opinion’s lengthy discourse on the economic loss rule and its new approach for determining when the rule applies is unnecessary for two reasons. First, we cannot apply the common law economic loss rule to nullify the statutory cause of action for waste without violating separation of powers principles and encroaching on the legislature’s authority to establish a cause of action. The issue whether the plaintiff was entitled to bring an action for waste should be resolved entirely on statutory grounds. Second, the injury to property here does not constitute an economic loss within the rule.” Justice Chambers also wrote a concurring opinion.

Jones v. State, No. 80787-6. The question here is whether a pharmacist whose business has been shut down by the state must exhaust all administrative remedies before bringing a tort action against the state, and whether state officials have absolute or qualified immunity against such a tort action.

Michael Jones owned a pharmacy franchise called the Medicine Shoppe, but after failing two consecutive inspections by the Washington Board of Pharmacy his license was suspended, causing his business to fail. He sued the Board of Pharmacy’s Executive Director and the two investigators that gave him the failing scores for negligent supervision and intentional interference with a business expectancy. The state moved for summary judgment, arguing that the Executive Director had prosecutorial immunity, all three defendants had qualified immunity.

The Supreme Court (Justice Fairhurst writing) reversed the Court of Appeals’ holding that the pharmacy inspectors enjoyed immunity, and also reversed the Court of Appeals’ holding that Jones failed to exhaust the available administrative remedies.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

 (briefs, argument)

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The Supreme Court will issue opinions in several cases tomorrow.

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

O'Neill v. City of Shoreline, No. 82397-9. This case revolves around whether email "metadata" is subject to disclosure under the Public Records Act. During a public meeting, the mayor of Shoreline referred to an email alleging misconduct by council members, and claimed erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. The mayor provided O'Neill with a copy of the email without its header information (to, from, etc.), and the original email was apparently deleted. (briefs, argument)

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

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

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

State v. Stubbs, No. 81650-6. This case concerns whether a stabbing that results in partial paralysis satisfies the requirement for an exceptional sentence for first degree assault, and whether the requirement itself is unconstitutionally vague. Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing him from the waist down. Stubbs was convicted of first degree assault and given an exceptional sentence due to his victim's injuries. The court held that the jury could find that Goodwin's injuries substantially exceeded the great bodily harm element. (briefs, argument)

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City of Aberdeen v. Regan, No. 82476-2. Francis Regan was convicted of fourth degree assault in Aberdeen Municipal Court. The Court sentenced him to 365 days in jail, but suspended 360 days of the sentence in favor of placing Regan on probation for 24 months. A condition of Regan's probation required that he have no "criminal violations of law...."

During his probation, Regan was charged, tried, and acquitted for fourth degree assault and criminal trespass. The city moved to revoke his probation; Regan argued that the city was collaterally estopped by the acquittal. The municipal court revoked 5 days of Regan's suspension. He appealed and the superior court reversed; the city appealed and the Court of Appeals reversed and reinstated the ruling of the municipal court.

The Supreme Court accepted review of the case to consider whether a probation condition requiring no "criminal violations of law" requires a court

to find beyond a reasonable doubt that the defendant has committed a crime or find that the defendant has been convicted of a crime before the court may revoke the suspension?

The Court today affirms the Court of Appeals. Probation is "not a 'matter of right but is a matter of grace, privilege, or clemency granted to the deserving.'" In Regan's case, his probation included a condition that "unambiguously restrict[ed him] from engaging in conduct that is proscribed by the criminal law." Because the standard in probation hearings is "reasonable satisfaction," the acquittal (based on the higher "beyond a reasonable doubt" standard) did not estop the city from finding Regan in violation of his probation. The majority opinion is written by Justice Fairhurst and joined by four other justices.

Justice Alexander, joined by Justices Chambers and James Johnson, finds the majority's position in agreement with the Court's precedent and reluctantly concurrs.

My aversion to the result stems from my view that it is somewhat unfair for a city to seek revocation of Francis Regan's probation for noncompliance with a condition that he have "[n]o criminal violations of law" when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.

Justice Sanders dissents. He would find the language ambiguous, apply the rule of lenity, and reinstate the decision of the superior court. (briefs, argument)

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The Supreme Court will likely release opinions on Thursday. No oral arguments are scheduled for this week. Eventually I will post summaries of the cases accepted by the court in September ... hopefully.

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The Supreme Court issued opinions in several cases today.

Port Angeles v. Our Water-Our Choice, No. 82225-5. The question before the court is whether citizen initiatives to reverse a city council’s decision to fluoridate its water supply are valid. The Port Angeles City Council decided to fluoridate its city’s water supply, but two citizen groups filed local initiatives to repeal the fluoridation plan. A trial court reviewed the initiatives and determined they were invalid for three reasons: they were administrative rather than legislative, they interfered with the council’s legislatively-delegated authority to regulate the water supply, and they exceeded the council’s legislative authority. In a 5-4 ruling, with Justice Tom Chambers writing, the Supreme Court ruled against the citizen’s groups. Citing previous cases, the court held that local initiatives that are administrative in nature (that is, initiatives which carry out an existing law or policy rather than making a new law) go beyond the scope of local initiative authority. Justice Richard Sanders, dissenting, wrote that the majority diminished the state’s constitutional commitment to the people’s right to directly create law.

Hudson v. Hapner, No. 82409-6. At what point can a party withdraw a request for a civil trial? Clifford Hapner rear-ended Lea Hudson, and Hudson sued for damages. The case went to mandatory arbitration where Hudson was awarded $14,538. After mandatory arbitration Hapner requested a trial, and the jury awarded Hudson $292,298. Hapner appealed, won a reversal, and the case was remanded for a new trial. After discovery for the second trial, but before the trial took place, Hapner filed a notice of withdrawal of his motion for a trial. This would allow him to pay only the arbitration award, plus Hapner’s court costs. The trial court struck the withdrawal at Hudson’s request. Chief Justice Barbara Madsen, writing for the majority, agreed that court rules allow for a unilateral withdrawal, but held that this right must be exercised prior to the start of trial proceedings. Thus, Hapner was precluded from withdrawing his request for a trial and the trial will move forward unless the parties reach a settlement. Justice Sanders dissented, writing: “It is difficult to address the majority’s reasoning because, much like Frankenstein’s monster, the majority opinion is a sewn-together collection of partial arguments, each pilfered from a different cadaver and none lending any real support to its conclusion.”

Overlake Hosp. Ass’n v. Dep’t of Health, No. 82728-1. The legislature created the certificate of need program, which authorizes the Department of Health to control the number and types of health care services and facilities that are provided in a given area, in order to ensure that services and facilities are developed according to identified priorities and without unnecessary duplication. For certain health care providers to establish or expand health care facilities within this state they must obtain a certificate of need from the Department. The Department granted such a certificate to Swedish Health Services. Overlake Hospital Association and Evergreen Healthcare objected to the CN, and requested an adjudicative hearing. The hearing officer and later a superior court judge upheld the Department decision, but the Court of Appeals held the decision was based on an incorrect interpretation of governing statutes. The Supreme Court held that the appeals court failed to accord sufficient deference to the Department’s interpretation of the law, and affirmed the decision to issue a certificate of need. Justice Gerry Alexander wrote the unanimous opinion.

Rousso v. State, No. 83040-1. Lee Rousso, an attorney and amateur poker player, is challenging the state’s ban on Internet gambling, arguing it violates the Commerce Clause of the U.S. Constitution. The Supreme Court unanimously upheld the ban. Justice Sanders opened the court’s opinion with an emphatic statement:

The question before this court is not whether Internet gambling, including playing poker on-line, should be illegal. That determination is reserved to the legislature, and the legislature addressed the issue by enacting and amending RCW 9.46.240, which criminalizes the knowing transmission and reception of gambling information by various means, including use of the Internet. Since sending and receiving gambling information is illegal, Internet gambling in the state of Washington is effectively banned.

It is not the role of the judiciary to second-guess the wisdom of the legislature, which enacted this ban. The court has no authority to conduct its own balancing of the pros and cons stemming from banning, regulating, or openly permitting Internet gambling.

The court rejected the argument that the ban was unconstitutional under the Commerce Clause. The court reasoned that the language of the statute does not openly discriminate against out-of-state entities in favor of in-state ones, as the ban applies evenly in state and out of state. “Here, the legislature balanced public policy concerns and determined the interests of Washington are best served by banning Internet gambling. The legislature chose the advantages and disadvantages of a ban over the advantages and disadvantages of regulation. … Under the dormant commerce clause, the burden on interstate commerce is not ‘clearly excessive’ in light of the state interests. RCW 9.46.240 does not violate the dormant commerce clause.”

State v. Doughty, No. 82852-1. A police officer observed Walter Doughty drive up to a drug house at 3:20 a.m., stop for two minutes, and leave. The officer stopped Doughty, discovered that he was driving with a suspended license, and upon searching him found that he had, indeed, bought drugs. Doughty claims that the officer lacked reasonable suspicion to stop him. The issue in this case is whether Doughty’s actions created reasonable suspicion for the officer to conduct a Terry stop. Doughty was convicted in Spokane County Superior Court and the Court of Appeals upheld his conviction. The Supreme Court, with Justice Sanders writing the majority, held that the police officer lacked sufficient to stop Doughty. As a result, the court suppressed the evidence and vacated Doughty’s conviction. Justice Mary Fairhurst dissented. While the officer might lack grounds for an arrest, she wrote, he was certainly justified in stopping and questioning Doughty.

State v. S.J.W, No. 83177-7. This case presents the question of whether the burden of proving a child witness incompetent to testify is on the party calling the witness. S.J.W., a minor, was convicted of raping another minor. At trial, the court required S.J.W. to prove that the victim was incompetent to testify. S.J.W. failed to do so. S.J.W. appealed, claiming the burden should have been on the state to prove his victim’s competency. The Court of Appeals agreed, but found that the state met its burden and upheld the conviction. The Supreme Court, with Justice Charles Johnson writing the unanimous opinion, held that a party challenging the competency of a child witness has the burden of rebutting that presumption. The court affirmed the Court of Appeals but hold that trial courts should presume that 14-year-old children are competent to testify.

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The Supreme Court released opinions in three cases on Thursday.

Curtis v. Lein, No. 83307-9. Tambra Curtis lived on a farm owned by Jack and Claire Lein. Curtis was injured after falling through a wooden dock on the Lein property. The dock was subsequently destroyed. The trial court ruled in favor of the property owners, saying that Curtis failed to prove that the Leins knew or should have known about the dock’s allegedly dangerous condition, and that causes other than the Leins’ negligence could have contributed to the dock’s failure. The Court of Appeals (Div. 1) agreed. The Supreme Court reversed the lower courts, holding that Curtis could invoke the doctrine of res ipsa loquitur (“the thing speaks for itself”) to fill in the evidentiary gaps caused by the dock’s destruction. The court, with Justice Debra Stephens writing the opinion, remanded the case for trial.

Sanders v. State, No. 82849-1. Justice Richard Sanders sued the Attorney General's Office, alleging violations of the the Public Records Act by withholding hundreds of requested records under various exemptions claimed without explanation.

In 2004, Sanders sent a request to the Attorney General's Office for all documents related to his visit to the McNeil Island Special Corrections Center and the actions taken by the Commission on Judicial Conduct in response to his visit. Over a hundred responsive documents were withheld or redacted, with no explanation of why the documents fell under the cited statutory exemptions to disclosure.

The trial court found that the AGO had violated the PRA by not providing the required "brief explanation" for how exemptions apply, and that some of the withheld records should have been disclosed. Sanders asked for a $70 per day penalty, the trial court fined the AGO $5 per day for withholding records and $3 per day for not explaining the exemptions; and awarded Sanders 37.5% of his attorney fees. He appeals both the ruling that some of the documents were exempt, and the amounts of the penalties and fees.

The Supreme Court, with Justice Debra Stephens writing, held that the AGO's failure to provide a brief explanation of each exempt record violated the PRA and should be considered as an aggravating factor when setting penalties for withholding nonexempt documents. The court affirmed the trial court’s penalties, and awarded Justice Sanders 25 percent of his costs and attorneys fees.

State v. Montano, No. 82855-8. Jose Montano resisted arrest for assault and officers had to shock him twice before they could handcuff him. On the way to jail, Montano threatened the officer driving him with statements including “I know when you get off work, and I will be waiting for you,” “I'll kick your a**,” and “I know you are afraid, I can see it in your eyes.”

Montano was charged with fourth degree assault (domestic violence) and intimidating a public servant. The trial court dismissed the charge of intimidating a public servant, holding that the threats made did not necessarily show intent to influence a public servant’s actions. The Court of Appeals (Div. 3) reversed, reasoning that a jury could infer that Mr. Montano’s threats were designed to get the officer to change his course of action. The Supreme Court, with Justice Charles Johnson writing, disagreed, reversing the Court of Appeals, holding that Montano’s threats and taunts provided no evidence of any attempt to influence a police officer.

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Update: links to briefs and argument videos are now included.

Guillen v. Contreras, No. 82531-9. Jesus Jaime Torres was killed in a mysterious shootout in Sunyside, Washington, in 2005. From the bloody scene, police seized $57,990 "packaged to resemble a kilogram of cocaine" and Torres's car. They seized another $9,342 that was in Torres's possession when he was shot. Torres's infant son, through his mother, challenged the property seizures. The superior court overturned the seizures of the car and the $9,342. The family moved for attorney fees. The superior court, relying on "substantially prevailing party" analysis, declined to award fees. A divided Court of Appeals affirmed.

The Supreme Court today considers only "the meaning of the attorney fee provision of the forfeiture statute." The Court adopts the reasoning from the dissenting opinion by Chief Judge John Schultheis of the Court of Appeals and quotes from his opinion.

"[T]his forfeiture statute recognizes the success of only one party -- the claimant. What the seizing agency retains is not relevant. It will never be a substantially prevailing party or prevailing party under RCW 69.50.505(6)." Thus, he suggests, quantitative comparison is inappropriate as we are not balancing the comparative success of two parties with an equal statutory interest in attorney fees. We agree. This is an attorney fee provision designed to protect individuals against having their property wrongfully taken by the State. A bare mathematical approach is not appropriate. (citation removed; hyperlink inserted)

The case is remanded to the trial court to determine "the amount of attorney fees reasonably incurred by the respondents" for their successful claims. Justice Chambers wrote for the Court and was joined by seven other justices. Justice Sanders dissents because he believes the statute requires a recovery of all attorney fees rather than only those related to the successful claims. (briefs, argument)

Holden v. Farmers Ins. Co. of Wash., No. 81487-2.  A fire in Laura Holden's rented home damaged and destroyed some of her possessions. Her rental insurance carrier, Farmers Insurance, sent her a check for the "cost of repair and replacement," but did not include Washington state sales tax in its calculations. Holden eventually brought this suit, "seeking a declaration that sales tax should be accounted for in the [actual cash value] calculation...." The Court today holds for Holden, finding the term "fair market value" as used in the insurance policy to be ambiguous. The Court thus interprets the term in favor of the insured. Justice Stephens writes for the majority, joined by five other justices. Justice James Johnson dissents, contending that "fair market value" is not ambiguous and does not include "a (theoretical) sales tax...." His opinion is joined by Justices Alexander and Owens. (briefs, argument)

In re Det. of Hawkins, No. 82907-1. As part of proceedings to determine whether Jake Hawkins is a sexually violent predator according to RCW 71.09, the trial court ordered Hawkins to submit to a polygraph examination. Hawkins refused and appealed; the Court of Appeals affirmed the trial court. The Supreme Court accepted review to determine whether RCW 71.09.040(4) allows such an order.

The Supreme Court today reverses the lower courts, holding that the order requiring a polygraph examination was not permitted by the statute.

Because the legislature is undoubtedly aware of the inherent problems with polygraph examinations, it is fair to infer that the legislature intends to prohibit compulsory polygraph examinations unless it expressly allows for their use. ...

We are satisfied that professional evaluators will be able to reach conclusions without the use of such evidence.

Justice Owens writes for the six-member majority. Justice Stephens, joined by the Chief Justice and Justice Fairhurst, disagree with the majority's interpretation of legislative intent and dissent. (briefs, argument)

In re Disciplinary Proceeding Against Scannell, No. 200,744-9. The Washington State Bar Association (WSBA) initiated an investigation of attorney John Scannell for conflicts of interest and assisting a suspended attorney to practice law. Scannell repeatedly and frivolously delayed the investigation, drawing it out from 2005 until today. The WSBA hearing officer found that Scannell had "negligently violated the conflict of interest rules--meriting minor sanctions--but that he had knowingly violated the rules requiring cooperation with disciplinary proceedings--meriting suspension." The disciplinary rule modified those findings, determining that Scannell's actions during the investigation were intentional and thus increasing the presumptive sanction to disbarment. The Board voted to disbar Scannell.

The Supreme Court today, in an opinion by Justice Stephens, exhaustively reviews the facts of the investigation and upholds the decision of the board. Three justices dissent, arguing in an opinion by Justice Alexander that the hearing officer's recommendation of suspension was the appropriate sanction. (briefs, argument)

In re Disciplinary Proceeding Against Shepard, No. 200,720-1.  Tacoma attorney Richard Shepard was found to have violated several Rules of Professional Conduct when he assisted a "living trust mill" that targeted seniors with unnecessary or improper financial products. The hearing officer recomended a six-month suspension, but the disciplinary board increased the recommendation to a two-year suspension. The Court today agrees with the board and suspends Shepard for two years. Justice Chambers writes for an almost-unanimous court. Justice Sanders dissents and would suspend Shepard for six months. (briefs, argument)

State v. Ervin, No. 83244-7.  James Ervin was convicted in 2006 of felony violation of a protective order. This appeal considers whether two earlier felony convictions should count toward Ervin's offender score at his sentencing. According to RCW 9.94A.525(2)(c), the two earlier felony convictions "washed out" if Ervin had subsequently been at least "five consecutive years in the community without committing any crime that subsequently results in a conviction." During a five year period, Ervin had not been convicted of any crimes but did spend 17 days in jail for violating probation. The State argued that the 17 days in jail restarted the five-year window. Ervin disagreed, arguing that only a conviction would reset the five years. While the Court finds the RCW somewhat ambiguous, it finds Ervin's reading more convincing. The lower courts are reversed and the case is remanded for resentencing with the lower offender score. The decision was unanimous, and Justice Owens wrote the opinion. (briefs, argument)

State v. Sanchez Valencia, No. 82731-1. Isidro Sanchez Valencia and Eduardo Chavez Sanchez were convicted of drug charges. Their sentences included community custody on the condition that they not use "items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances." They appeal that provision as unconstitutionally vague, and the Court today unanimously agrees with the defendants. Justice Stephens wrote the Court's opinion. Justice James Johnson signed that opinion and added a concurrence pointing out that a simple change in language would allow a similar condition to stand. (briefs, argument)

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Fitzpatrick v. Okanogan County, No. 81257-8. Two couples, the Fitzpatricks and Sturgills, purchased property in 1980 along the Methow River. They built a log house and garage more than 80 feet back from the river and above the 100-year flood level. In 2002, flooding washed away the house "and a substantial amount of the real property on which it was situated."

The couples brought this action against the state and county, alleging that the flood damage was a result of the governments' improvements to a dike upriver. The couples presented evidence that the dike, which protects a state highway, irrigation projects, and private properties upriver, cut off the river from natural overflow channels. As a result, the mild 2002 flood event destroyed the couples' house and damaged their real property. The couples' complaint "contained claims for inverse condemnation, trespass, negligence, and wrongful injury or waste of property."

The trial court granted summary judgement for the governments based on the common enemy doctrine. The Court of Appeals reversed the trial court, "holding that the common enemy rule does not apply if a landowner obstructs a watercourse or natural drainway or prevents water from entering a flood channel." The Supreme Court granted review to consider "whether the owners' inverse condemnation claim may proceed ... in light of the common enemy rule."

The Court sustains the Court of Appeals and remands the case to the trial court.

Under the summary judgment standard, which requires us to view the facts and the inferences from those facts in the light most favorable to the nonmoving party (the owners), it is apparent that there is a factual issue about whether the water that caused damage to the owners' property was water that was diverted from the natural watercourse, and if so, whether liability for that damage flows from the County and State's construction of the dikes.

The Court also rejects the governments' claim that the owners have no recovery in inverse condemnation because the damage was not a necessary consequence of the dike improvements. There too, the Court finds an issue of material fact to be resolved at trial. Justice Alexander wrote for the majority and was joined by six other justices. The Chief Justice wrote a dissent, which Justice James Johnson also signed, arguing that the majority misconstrues earlier case law because it "misunderstands the nature of riparian rights...." (briefs, argument)

In re Marriage of Freeman, No. 82283-2. Rob and Robin Freemen were married when, in 1998, Robin moved for a protective order against Rob. The order was issued and subsequently made permanent, based on a physical confrontation between Rob and one of Robin's teenage children and Robin's fear of Rob's possession of firearms and his military training. The couple divorced and Rob left Washington state. In 2006, Rob moved to terminate the protective order, which was preventing him from receiving a security clearance and thus from pursuing certain job opportunities. The court commissioner denied Rob's motion, he appealed, and the Court of Appeals reversed the commissioner.

With an opinion by Justice Sanders and joined by five other justices, the Court affirms the court below and holds that the commissioner abused her discretion.

As much as it is possible to prove a negative, Rob has done so here. The likelihood that Rob will commit future acts of domestic violence on these facts is low. Hand in hand with that determination, the facts do not suggest Robin's fear of Rob is based on a reasonable threat of imminent harm.

Justice Fairhurst, joined by the Chief Justice and Justice Stephens, dissents. (briefs, argument)

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Internet Community & Entertainment Corp., d/b/a Betcha.com v. State, No. 82845-8. Internet Community & Entertainment Corporation launched a website called Betcha.com -- a person-to-person betting site that allowed users to post wagers on the outcomes of a wide variety of events. Betcha.com charged its customers a fee for user transactions. Losing bettors had up to 72 hours after a winning claim was made to choose not to pay the loss.

In 2007, the Washington State Gambling Commission informed the company that Betcha.com was engaged in illegal gambling. The company sued the state seeking a declaratory judgment that its social wagering site does not violate state law. Betcha.com lost at superior court. On appeal, the Court of Appeals held that Betcha.com had not “gambled” because bettors understood that the losing bettor might not honor the debt.

The Supreme Court, with Justice Tom Sanders writing the unanimous opinion, reversed the Court of Appeals. The state Gambling Act prohibits bookmaking, which is defined as “accepting bets, upon the outcome of future contingent events, as a business or in which the bettor is charged a fee or ‘vigorish’ for the opportunity to place a bet.” RCW 9.46.0213. The court concluded that Betcha.com’s entire business model was based on charging fees from users for the opportunity to place a bet. Based on the conclusion that Betcha.com was engaged in prohibited bookmaking, the court declined to address whether the site’s users are actually engaged in gambling.

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The Supreme Court will issue decisions in four cases tomorrow.

Fitzpatrick v. Okanogan County, No. 81257-8. This case is on appeal from Division Three Court of Appeals, and presents the Court with the question of whether a landowner may be compensated (via inverse condemnation) for damage caused to his property by a public project.

The damaged property was a log home built by the Fitzpatricks near the Methow River, which was washed away when the river abruptly changed course due to the construction of a dike upstream. The dike was a joint project of the state and county. The trial court granted summary judgment for the county, relying on the Common Enemy Doctrine (a rule allowing landowners to divert surface water, even to the detriment of neighoring landowners), but was reversed by the Court of Appeals.

Freeman v. Freeman, No. 82283-2. What must be proved for a trial court to terminate a permanent protection order? Robin Freeman got a permanent protection order against Rob Freeman due to domestic violence. Rob, a member of the military, has since moved away. He lost a hand in Iraq, and this made it necessary to retrain and change careers within the military. However, he needed a security clearance and could not get one because of the permanent protection order.

Rob moved to terminate the protection order. The trial court denied the motion, finding that Robin is currently in reasonable fear of Rob. The Court of Appeals reversed, finding that Rob had not been in Washington or had contact with Robin since 1998, that he had violated neither the protection order nor any law, and that “due to time and distance, there is no evidence to support a current fear” of physical harm.

Internet Community & Entertainment Corp., d/b/a Betcha.com v. State, No. 82845-8. In 2007, Internet Community & Entertainment Corp. was informed by agents of the Washington State Gambling Commission that its website Betcha.com was engaged in illegal gambling. The company sued the state seeking a declaratory judgment that its social wagering site does not violate state law. Betcha.com lost at the trial level. On appeal, the Court of Appeals held that because Betcha.com customers agreed in advance that participants were not required to pay their losses, Betcha.com was not engaged in “gambling” as defined in the Gambling Act.

State v. McCuistion, No. 81644-1. On appeal from Division Two Court of Appeals, this case originated in Pierce County Superior Court. It concerns whether a statute that prescribes the type of evidence sexually violent predators can use to show they qualify for a release hearing is constitutional.

McCuistion is a sexually violent predator who is committed indefinitely to a mental institution. State law permits him to have a release hearing (to determine if he is eligible for release) if he can clearly demonstrate (show prima facie evidence) that he is no longer a sexually violent predator. The types of evidence that can be used are limited, and the state is allowed to rely on annual psychiatric reviews. McCuistion appeals the evidence restrictions as unconstitutional.

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State v. Bunker, No. 81921-1. Three defendants, each convicted of violating a no-contact order, appeal those convictions. Looking to a "shall arrest" clause in the statute," defendants argue that the law (former RCW 26.50.110) "criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place."

The Court, in an opinion by Justice James Johnson and joined by seven other justices, holds that the plain language of the statute and the clear intent of the legislature is to criminalize all violations of a no-contact order. Justice Sanders dissents. (briefs, argument)

State v. Kintz, No. 81688-3. Clarence Kintz was convicted of two charges of misdemeanor stalking and appealed, challenging the trial court's interpretation of the statutory phrase "separate occasions" and the sufficiency of the evidence. In two incidents, one in December 2005 and the other in January 2006, Kintz frightened women by repeatedly and slowly driving past them and, in the latter case, offering the woman a ride and money. Both women called 911 and Kintz, who admitted some of the details of each incident, was eventually charged.

Kintz argues that "separate occasions" is ambiguous and that the Court should apply the rule of lenity to find that separate occasions must happen over a greater length of time than in these incidents. The Court of Appeals upheld the convictions and the Supreme Court sustains that decision, agreeing with the lower court that the plain meaning of "separate occasions" is "a distinct, individual, noncontinuous occurrence or incident." The Court also finds sufficient evidence to support the convictions. Justice Alexander authored the opinion for a majority of seven.

Justice Sanders dissents and would hold that the events leading to each of these stalking charges should be considered a single occasion, rather than "separate occasions," and thus do not meet the statutory definition of stalking. For related reasons, he would also find insufficient evidence to sustain the convictions. Justice Chambers dissents separately in order to agree with Justice Sanders only as to the ambiguity in the term "separate occasions." (briefs, argument)

State v. Meneses, No. 83172-6. Andre Toi Meneses fathered a child by his then-girlfriend Jamila Willis. After they broke up, the child remained with Willis. Meneses began repeatedly calling Willis and leaving voice mail messages for her using "incredibly vile language, including racial slurs and descriptive obscenities," and threatening to kill Willis, her new boyfriend, and the new couple's infant. Willis eventually called the police, who recorded ten messages left by Meneses that became the basis for ten charges against him: four counts of felony telephone harassment, four counts of gross misdemeanor telephone harassment, and two counts of intimidating a witness. He was convicted by a jury on all counts.

The Court of Appeals sustained the convictions. The Supreme Court considered three issues raised by Meneses. First, the jury instruction on telephone harassment did not fail to specify that the criminal intent must have been formed before the call was placed. The instruction used the statutory language, and the Court has previously held that the meaning of the statute is clear on its face. Second, it did not violate double jeopardy for a count of telephone harassment and a count of intimidating a witness to arise from the same message because "each [conviction] required proof of a fact the other did not." Finally, because [n]o affirmative evidence supported the idea that Meneses committed witness tampering but not intimidating a witness," the trial court was not obligated to instruct the jury on the lesser included offense.

The Court, with an opinion by Justice Stephens, unanimously upholds the courts below. (briefs, argument)

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Proctor v. Huntington, No. 82326-0. Dusty Moss subdivided his property into a 27-acre parcel purchased by the Huntingtons and an adjacent 30-acre parcel purchased by Proctor. Both parties were confused about their common boundary line, partly because they relied on the word of a surveyor who was apparently mistaken. The Huntingtons eventually built a house, garage, and well--all on Proctor's land. They have lived there since 1996.

In 2004, Proctor had his parcel surveyed because he was concerned that a different neighbor was encroaching on his land. Because of this survey, both Proctor and the Huntingtons came to realize that the Huntington improvements were on Proctor's side of their boundary line. After unsuccessful negotiations, Proctor sued to quiet title and to eject the Huntingtons. The Huntingtons counterclaimed for adverse possession and estoppel in pais. The trial court declined to decide for either party, instead crafting an equitable remedy that required Proctor to sell the one acre containing the Huntingtons' improvements to the Huntingtons for the fair market value of the land ($25,000). Both parties appealed.

The Court, with an opinion by Justice Stephens and joined by Justices Owens, Fairhurst, Chambers, and Charles Johnson, upholds the decision below.

The trial court's equitable approach in this case fits comfortably within the good-faith-mistake line of cases, including Arnold and Bufford, in which equity allows a court to apply a liability rule in lieu of rote application of a property rule. Because the trial court's chosen remedy was proper under Bufford and Arnold, the Court of Appeals was right to affirm it.
...
In upholding the equitable remedy imposed by the trial court, we recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach.

In a dissenting opinion, Justice Sanders, joined by the Chief Justice and Justices Alexander and James Johnson, accuses the majority of overruling Arnold and violating protections of private property rights. The dissent looks to the Arnold decision's five-part test and would find that the Huntingtons could not satisfy two of those elements and thus were not entitled to their equitable relief. (briefs, argument)

Segaline v. Dep't of Labor & Indus., No. 81931-9. The Court addresses whether a 42 U.S.C. § 1983 claim was time barred and whether a state agency is a "person" under RCW 4.24.510. While the Court unanimously determines that the 1983 claim was time barred, it fractures over the state law issue.

Michael Segaline is an electrician whose behavior shocked, offended, and possibly frightened staff at the L&I office where Segaline obtained electrical permits. L&I staff tried several times to reach an understanding with Segaline about his behavior, but finally told him that he was no longer allowed in the office. Segaline was subsequently arrested for criminal trespass when he refused to leave the office; the charge was later dropped. Segaline sued, alleging negligent and intentional infliction of emotional distress, malicious prosecution, negligent supervision, and civil rights violations. He later moved to add the 1983 claim.

The trial court dismissed all Segaline's claims. It held the 1983 claim untimely filed and and determined that RCW 4.24.510, which protects "persons" who report information to government agencies, provided immunity to L&I. The Court of Appeals affirmed.

The lead opinion, by Justice Sanders and joined by three other justices, finds the meaning of the word "person" ambiguous in the statute. However, because the purpose of the statute is to protect freedom of speech, and because government agencies have no such protection,

[i]t makes little sense to interpret "person" here so that an immunity, which the legislature enacted to protect one's free speech rights, extends to a government agency that has no such rights to protect.

The Chief Justice, in a written concurrence, disagrees with the lead opinion's rationale. She would instead reach the same result by looking to the history of anti-SLAPP (strategic lawsuits against public participation) statutes. Justice Charles Johnson, joined by three other justices, dissents and would hold that the immunity does extend to government agencies. (briefs, argument)

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State v. Adams, No. 82210-7. A King County Sheriff's Deputy stopped a vehicle because the registered owner had an arrest warrant for driving with a revoked license. Coryell Adams, the registered owner, was the driver and sole occupant in the car. When stopped, he got out of the car, locked it, and walked several steps away, all in violation of the officers orders to get back into the vehicle. After Adams was arrested, officers searched the car and found cocaine. Adams moved to suppress that evidence; the trial court denied the motion and was affirmed on appeal.

While awaiting review, the U.S. Supreme Court decided Gant, which limits searches incident to arrest. The State filed a supplemental brief conceding that Gant applies here, but arguing for the court to apply the "good faith" exception.

Today, in a unanimous opinion by the Chief Justice, the Court declines to apply the good faith exception. The Court puts itself in its place, reasoning that while reliance on statutes that are subsequently struck down may warrant a good faith exception, reliance on the Court's erstwhile case law does not. (briefs, argument)

State v. Turner, No. 81626-3 (consolidated with State v. Faagata, No. 82336-7). In these cases, each defendant was convicted of two charges stemming from a single event. The trial courts set aside the lesser conviction to avoid violating double jeopardy, but issued an order that if the remaining conviction was overturned on appeal, the lesser conviction could be reinstated. The trial courts were affirmed by the Court of Appeals.

In a unanimous opinion by Justice James Johnson, the Court first reviews federal case law, which holds that double jeopardy does allow trial and conviction on lesser included offenses and "does not require permanent, unconditional vacation of the lesser of two convictions for the same criminal conduct...." However, the Court today reverses the Court of Appeals, and holds that the trial courts conditional vacation of the lesser offenses violated double jeopardy.

... a trial court must avoid (i) entering judgment on a defendant's lesser conviction and (ii) referencing that conviction when sentencing a defendant convicted of multiple crimes for the same criminal conduct. This is precisely what Turner and Faagata demanded, but did not receive, at trial and on appeal -- vacation of their lesser convictions without reference to any validity attributable to those convictions.

The Court notes that convictions for lesser included offenses that have been vacated can later be revived.

However, the lesser conviction, once vacated, and prior to reinstatement, is not "a valid conviction" and is not "entitled to some weight," contrary to the trial courts' rulings in these cases. ... In the future, the better practice will be for trial courts to refrain from any reference to the possible reinstatement of a vacated lesser conviction.

(briefs, argument)

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The Supreme Court issued opinions in three cases today.

Tobin v. Department of Labor and Industries, No. 81946-7. Jim Tobin was permanently disabled after being hit by a crane boom at work. He began collecting worker’s compensation benefits and sued the crane operator, settling for $1.4 million in damages, with about half of that amount being designated for pain and suffering. Under RCW 51.24.060, an injured worker is required to distribute a portion of a third-party recovery to the Department of Labor and Industries to reimburse the agency for worker’s compensation benefits. L&I informed Tobin that it would include the pain and suffering award he received in its calculation of what was owed the agency. Tobin argues the statute was designed to reimburse L&I for benefits paid, and L&I does not pay benefits for pain and suffering.

The Supreme Court, with Chief Justice Barbara Madsen writing, agreed. The court held that chapter 51.24 RCW does not authorize L&I to seek reimbursement of damages awarded for pain and suffering. “[D]amages for ‘pain and suffering,’ like loss of consortium, constitute noneconomic damage that the workers’ compensation statutes do not compensate for. The Department did not pay out benefits for pain and suffering; therefore it cannot be ‘reimbursed’ from amounts recovered for pain and suffering. We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.” Justice Mary Fairhurst dissented, arguing that the majority ignored the plain language of the recovery statute.

In Re Personal Restraint Petition of Cruze, No. 82567-0. Schawn James Cruze was sentenced to life in prison without the possibility of parole under the “three strikes” provision of the Persistent Offender Accountability Act. Cruze filed a personal restraint petition arguing that the second conviction is not a most serious offense, or “strike.” However, Cruze filed his petition more than one year after his judgment and sentence became final, barring his claim unless the court could determine the sentencing was invalid on its face. The Supreme Court held that based on a plain reading of the statute, a deadly weapon verdict under the law includes a special verdict finding that a defendant was armed with a firearm. The court dismissed Cruze’s petition. Justice Susan Owens wrote the majority opinion. Justice Gerry Alexander wrote a dissent.

State v. Mitchell, No. 83169-6. This case hinges on the question of whether a child qualifies as a “dependent person” for purposes of the crime of criminal mistreatment. Marilea Mitchell and her boyfriend were charged with criminal mistreatment after starving the boyfriend’s four-year-old son almost to death. The statute refers to mistreatment of “a child or a dependent person,” and Mitchell was charged with mistreatment of a “dependent person.” Mitchell claims that the boy was a child, not a dependent person, and thus she was wrongly convicted. The Supreme Court unanimously disagreed with Mitchell’s argument and upheld her conviction. Justice Richard Sanders wrote the opinion of the court.

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The court issued rulings in three cases today. Here is a brief summary of each case:

In Re the Honorable Judith Raub Eiler, No. 200,701-5. Judge Judith Eiler is a district court judge in King County. Based on a number of complaints, disciplinary proceedings were brought against her for treating litigants in an “angry, abusive, and condescending manner.” Eiler argues that there was not enough evidence, that the penalty is too high, and that punishing her for her demeanor violates her freedom of speech. Eiler appeals a disciplinary recommendation that she be suspended for 90 days without pay. The Supreme Court, with Justice Jim Johnson writing the lead opinion, found that Judge Eiler’s behavior only violated the judicial cannon requiring that a judge be “patient, dignified, and courteous.” The court reduced her suspension to a 5-day period.

Kelley v. Centennial Contractors, No. 82474-6. Phillip and Monica Blackshear sued Centennial Contractors Enterprises for injuries caused when a steel beam was dropped on Phillip. After they won the suit, they filed a complaint for loss of consortium on behalf of their three children. The complaint stated that it would have been impractical to include their claims with their parents’ suit. George Kelly was appointed guardian ad litem for the children. At trial, the children’s case was dismissed because the court said their claims should have been joined with their parents’ claims. The Court of Appeals (Div. 2) reversed, holding that since the children did not yet have a guardian ad litem it would have been impossible to join them to the suit, and that it would have been impractical for them to bring their claims until the results of their father’s surgery were known. The Supreme Court, with Justice Gerry Alexander writing the lead opinion, agreed, holding that there were general issues of material fact that precluded a summary dismissal of the claim.

State v. Tibbles, No. 80308-1. Micah Tibbles appealed his misdemeanor convictions for possession of marijuana and drug paraphernalia. During a traffic stop of Tibbles, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’ car. The trooper did not arrest Tibbles or seek a warrant, but conducted an warrantless search of the car, whereupon he discovered marijuana and drug paraphernalia. The district court, superior court, and Court of Appeals all upheld the search under the “exigent circumstances” exception to the warrant requirement, which allows law enforcement officers to conduct warrantless searches when obtaining a warrant is not practical because the delay would compromise officer safety, facilitate escape, or allow destruction of evidence. Justice Debra Stephens, writing for the Supreme Court, said that the exigent circumstances exception would not apply in this case and that the search of Tibbles’ vehicle was unconstitutional under article I, section 7 of the Washington Constitution.

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G-P Gypsum Corp. v. Dep't of Revenue, No. 81995-5. The City of Tacoma imposes a tax on the use of natural gas. Gypsum operates a manufacturing plant in the City. Gypsum purchases natural gas outside the City and transports it to the plant. Gypsum claims that according to the statute, "use" occurs where the gas is delivered, which is outside Tacoma's taxing jurisdiction. The Court of Appeals agreed with Gypsum.

Today, the Supreme Court overturns the lower court and holds that Gypsum does "use" the natural gas within Tacoma. The majority opinion finds that "the local BNG [brokered natural gas] tax holds a special position within the universe of Washington's use tax provisions." Rather than the usual statutory definition of "use," the Court applies the more ordinary definition to find that Tacoma can tax Gypsum's consumption of natural gas.

Justice Stephens wrote the majority opinion and was joined by Chief Justice Madsen and Justices Owens, Chambers, and Fairhurst. Justice Sanders dissents, joined by Justices Alexander, Charles Johnson, and James Johnson, arguing that the statutory definition is "plain on its face." (briefs, argument)

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In an unanimous opinion written by Justice Debra Stephens, the Supreme Court has ruled against three death row inmates who sought to have the state's lethal injection protocol declared unconstitutional. The court declined to squarely address the constitutionality of the lethal injection procedure. From the opinion: 

This case began mainly as a constitutional challenge by three death row inmates . . . to Washington’s three-drug lethal injection protocol for carrying out a sentence of death. The Thurston County Superior Court dismissed some claims on summary judgment and held a five-day bench trial in May 2009 to consider whether the three-drug protocol violated the Eighth Amendment prohibition against “cruel and unusual punishment” or Washington’s constitutional ban on “cruel punishment” in article I, section 14. The trial court upheld the lethal injection protocol, and this appeal followed.

Before this court heard oral argument, however, the Washington Department of Corrections (Department) abandoned the three-drug method of execution and adopted a new, one-drug protocol, effective March 8, 2010. The Department now moves to dismiss the Appellants’ constitutional challenge as moot, leaving for review only claims concerning the legislative delegation of authority to the Department to develop a lethal injection protocol, and the Department’s handling of the lethal injection substances under state and federal law governing controlled substances. In addition, the Department cross-appeals the trial court’s refusal to dismiss this case as time barred.

For the reasons that follow we affirm the trial court, both as to the statute of limitations question and its dismissal of the claims concerning legislative delegation and the state and federal controlled substances acts. With respect to the Appellants’ constitutional challenge and related claims, we grant the Department’s motion to dismiss these claims as moot.

The Supreme Court has lifted its stay of execution entered in Cal Coburn Brown's case, which was entered the day before he was scheduled to be executed last year. We expect the Attorney General's Office will announce its plan to seek a rescheduling of the execution shortly.

The case is Brown, Gentry and Stenson v. Vail, No. 83474-1.

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The Supreme Court is scheduled to release its decision tomorrow in the case of Brown, Gentry and Stenson v. Vail, No. 83474-1. Three death row inmates are challenging the constitutionality of Washington's lethal injection procedure. A Thurston County Superior Court ruled last year that the state's procedures were constitutional. Subsequently, the Department of Corrections changed its protocol from a three-drug cocktail (which the inmates objected to) to a one-drug system.

For more information on this case see this Associated Press article. Click here for more background on capital punishment in Washington state.

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Broom v. Morgan Stanley, No. 82311-1 (briefs and argument). The Supreme Court held that an arbitration panel erred by applying state statutes of limitations to bar the a claim. Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.” The Supreme Court, with Justice Charles Johnson writing, affirmed the Court of Appeals. Chief Justice Barbara Madsen dissented.

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). The Supreme Court held that under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, a landlord and tenant can lawfully agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. Writing for the majority, Justice Richard Sanders said that the MHLTA preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement and thus the provision does not violate the MHLTA. Justice Gerry Alexander wrote a dissenting opinion.

Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Supreme Court agreed, with Justice Susan Owens writing the majority opinion. The court held: (1) that the appraisal proceeding in RCW 23B.13.020 is a dissenting shareholder’s exclusive remedy unless a corporate action is procedurally defective or fraudulent and (2) that a divested shareholder does not have standing in a derivative suit. Justice Sanders wrote a dissenting opinion.

State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense. The Supreme Court unanimously ruled that the trial court abused its discretion by refusing to instruct the jury on the duress defense. The court reversed the conviction and remanded for a new trial. Justice Debra Stephens wrote the opinion.

State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges. The Supreme Court affirmed the decision below, with Justice Debra Stephens writing the unanimous opinion.

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The Supreme Court will issue opinions in several cases tomorrow.

Broom v. Morgan Stanley, No. 82311-1 (briefs and argument). Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.”

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. The Court of Appeals (Div. I) affirmed the ruling in part, and reversed in part, and remanded the case for further proceedings.

Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). This case concerns what remedies are available to a minority shareholder whose shares are taken away, and whether that shareholder can bring a derivative suit against the corporation after he has lost his shareholder status. Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Association of Washington Businesses filed an amicus brief supporting Snyder.

State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense. On appeal, the Court of Appeals (Div. 2) noted that if the elements of duress had been proved, then the contested elements of entrapment would also have been proved. Since the jury rejected entrapment, it would also have rejected duress even had the instruction been given. Thus, even if the lack of a duress instruction was in error, it did not prejudice Harvill.

State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges.

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State v. Brown, No. 84083-1. Maurice Brown was granted a 72-hour furlough from the Benton County Jail to attend a drug treatment program. He failed to return,and  was arrested, charged, and convicted of escape. On appeal, Brown challenged that the charging information had not alleged that he acted knowingly. The Court of Appeals found that the information had failed to allege knowledge, an essential element of the crime, but held also that Brown was not prejudiced and thus upheld the conviction.

In a per curiam opinion the Supreme Court today overturns the Court of Appeals. "Because the information did not adequately apprise Brown of the elements of the crime, the charge must be dismissed without prejudice."

State v. Willingham, No. 84036-9. Jesse Willingham was charged with indecent liberties with a child. The crime has a three-year statute of limitations. Prosecutors argued and the Court of Appeals agreed that the statute of limitations was tolled for a two-week period when Willingham was in Utah for job training. Today, in another per curiam reversal of the Court of Appeals, the Supreme Court holds that the temporary absence from Washington for job training did not toll the statute of limitations.

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The Supreme Court is scheduled to release decisions in two cases tomorrow.

State v. Brown, No. 84083-1. Whether evidence was sufficient to support Maurice Terrell Brown's conviction for second degree escape where he was being held in a county jail, was granted a 72-hour furlough for drug treatment, and failed to return within the 72-hour limitation of the furlough.

State v. Willingham, No. 84036-9. Whether defendant Jesse Willingham's absence from charging state for two weeks tolled the three year statute of limitations in prosecution for indecent liberties with a child, when evidence indicated that defendant was in another state for a period of two weeks.

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The Supreme Court issued rulings in four cases this morning.

McGuire v. Bates, No. 82659-5 (briefs and argument) – Read those settlement agreements carefully, folks. The Supreme Court rules that a settlement for “all claims” precluded the prevailing party from recovering attorneys fees in addition to the settlement payment. Julianne McGuire hired Robert Bates to remodel her kitchen. After it was done, she claimed that he had done the work improperly and sued him. The case went to mandatory arbitration, but before the arbitration the parties settled “all claims” for $2,180. RCW 18.27.040 allows the prevailing party in a suit by a homeowner against a contractor to recover attorney fees. McGuire moved for attorney fees based on this statute. The arbitrator denied the motion because the parties had agreed to settle “all claims.” However, the courts held that attorney fees are a cost, not a claim, and were thus not included in the settlement agreement. Bates appealed, and also argues that McGuire is not a “prevailing party” because the case was settled. The Court of Appeals held the attorneys fees could be added to the settlement total, but the Supreme Court reversed, with Justice Gerry Alexander writing the unanimous opinion. 

State v. Afana, No. 82600-5 (briefs and argument) – The Court rules that a police officer’s search of a vehicle after the arrest of the passenger was unconstitutional. Mark Afana was sitting in his legally-parked car with a friend, Jennifer Bergeron, watching a DVD on a portable player. A police officer approached them, asked what they were doing, and requested ID. The officer discovered a warrant against Bergeron and arrested her. In a search incident to the arrest the officer found drugs in the car. At Afana’s trial, the court held that the request for ID was an illegal stop and suppressed the drug evidence. The Court of Appeals reversed, holding that the request for ID was mere social contact. The Supreme Court, with Justice Alexander writing, held the warrantless search of the car was unconstitutional under Article I, Section 7 of the Washington Constitution: “a warrantless search of an automobile is permissible under the search incident to arrest exception only when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.”

State v. Bashaw, No. 81633-6 (briefs and argument) – Bertha Bashaw was convicted of three counts of delivery of a controlled substance. Because the offenses occurred within 1,000 feet of a school bus route stop, her maximum sentence was doubled by statute. Bashaw argues that distance measurements of a mechanical device were improperly admitted because the State failed to demonstrate that the device functioned reliably. She also contends that the jury instructions incorrectly required unanimity for a finding that her actions did not take place within 1,000 feet of the school bus route stop. The Supreme Court, with Justice Susan Owens writing, agreed, and held that the jury instruction error justified reversing the sentence enhancements. The case was remanded to trial court for further proceedings. Chief Justice Barbara Madsen dissented.

Waples v. Yi, No. 82142-9 (briefs and argument) (consolidated with Cunningham v. Nicol, No. 82973-0) – The Supreme Court invalidated the requirement that plaintiffs give a 90-day notice before suing health care providers for malpractice. Nancy Waples brought a negligence action against her dentist, Peter Yi, alleging the dentist's employee injured her by negligently injecting anesthetic. The Pierce County Superior Court, and the Court of Appeals (Div. II) affirmed the dismissal, ruling the patient failed to comply with a statutory notice requirement, which required a plaintiff to provide health care providers with 90 days’ notice of the plaintiff’s intention to file a medical malpractice suit. Waples argues the notice requirement is unconstitutional. The Supreme Court agreed, holding that the notice requirement of RCW 7.70.100(1) is unconstitutional because it violates the separation of powers. Justice Charles Johnson wrote the majority opinion, holding that court rules govern the commencement of a lawsuit. “If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters.” Justice James Johnson dissented, arguing that the 90-day rule did not modify court rules, but merely provided parties with an incentive to settle cases rather than going to court.

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McCurry v. Chevy Chase Bank, No. 81896-7. When Chris and Anne McCurry paid off their mortgage with Chevy Chase Bank, the total amount as itemized by the Bank included a $20 fax fee and a $2 notary fee. After paying the full amount, they filed this class action lawsuit. The McCurrys allege breach of the terms of the deed of trust, unjust enrichment, and violation of the Washington Consumer Protection Act. The Bank responded by arguing that federal regulations preempt these state law claims. The King County Superior Court agreed and dismissed the McCurry's complaint; the Court of Appeals affirmed.

The Court today first addresses the standard necessary to grant a motion to dismiss for failure to state a claim. While federal courts have recently made it more difficult for plaintiffs to survive motions to dismiss, the State Supreme Court refuses to follow that course here. The majority notes that "[t]he appropriate forum for revising the Washington rules is the rule-making process."

The Court holds that the McCurry's state contract law claims, including the unjust enrichment claim, are not preempted by federal lending laws or regulations.

State contract law does not purport to impose requirements on loan-related fees; state contract law instead requires parties to adhere to the terms of their contracts. Forcing Chevy Chase to adhere to the terms of its contract only incidentally affects the loan-related fees....

The Court further holds that the Consumer Protection Act claim survives to the extent that it relates to misrepresentation of the contract terms, but that it is preempted if the allegation is that the Act "regulates how or when fax or notary fees (loan-related fees) can be charged...."

The majority opinion is written by Justice Sanders and joined by five other justices. It strongly takes to task the dissent, authored by Justice James Johnson and joined by Justices Charles Johnson and Susan Owens, alleging that "the dissent's novel interpretation of preemption would prevent Washington consumers from enforcing contracts against federal savings associations."  (briefs and argument)

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South Tacoma Way v. State, No. 82212-3 (briefs and argument). The State Department of Transportation (DOT) owned an alley that was abutted by property owned by several different owners. DOT determined the alley was surplus property and sold it to Sustainable Urban Development #1, LLC (Sustainable). DOT mistakenly believed that Sustainable was the only abutting property owner, and no notice of the sale was given to the other abutting property owners, as is required with multiple abutters.

After this sale was complete, South Tacoma Way, LLC (South Tacoma) entered negotiations to purchase one of the abutting properties, and also expressed interest in the alley, only to find out DOT had sold it to Sustainable. South Tacoma purchased the abutting property and then filed this lawsuit objecting to the Sustainable purchase. The trial court ruled in favor of DOT and Sustainable, concluding that although DOT did not comply with the applicable statute, the sale was not ultra vires (i.e., outside DOT’s powers) and Sustainable was a bona fide purchaser. The Court of Appeals reversed the trial court in South Tacoma’s favor.

Today the Supreme Court, with Justice Charles Johnson writing the 8-vote majority, reversed the Court of Appeals and upheld the sale to Sustainable. The court said that while ultra vires acts are performed with no legal authority and are void on the basis that no power to act existed, there is a difference where an act is committed without an agency’s power, though without strict procedural or statutory compliance. The court determined that DOT had authority to sell the property and had mistakenly followed the wrong statutory process. Additionally, the court said that Sustainable was a bona fide purchaser and that this doctrine would apply. In other words, the law provides that a good faith purchaser for value who is without actual or constructive notice of another’s interest in purchased real property has superior interest in that property.

Justice Richard Sanders dissented, arguing that DOT was without authority to sell the property without giving proper statutory notice to all abutting owners, and that to ignore this requirement eviscerates the statute. “This interpretation erases the notice requirement from the statute. From now on DOT can simply sell to whomever it chooses without notice to other abutting landowners, in violation of RCW 47.12.063(2)(g). What other statutory limitations can the State ignore?”

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The Supreme Court will issue opinions in two cases tomorrow:

McCurry v. Chevy Chase Bank, No. 81896-7 (briefs and argument). Originating in King County Superior Court, this case concerns whether bank fees charged in relation to a Washington home loan are governed by the federal Home Owners Loan Act.

The McCurrys had a mortgage through Chevy Chase, which they fully paid off. When they did so, the bank charged them a $20 fax fee and a $2 notary fee before signing the house over to them. The McCurrys paid the fees and then filed a class action suit under state law against the bank for illegal fees. The trial court dismissed it because the state law is preempted by the federal Home Owners Loan Act. The McCurrys argue that the facts of the case don't fall under the federal law.

South Tacoma Way v. State, No. 82212-3 (briefs and argument).The State Department of Transportation (DOT) sold an alley to Sustainable Urban Development #1, LLC (Sustainable). DOT failed to notify other adjacent property owners as required by law. South Tacoma Way, LLC, which also owns property next to the alley, sued DOT and Sustainable to void the contract as an ultra vires act outside DOT's authority. The trial court held that DOT was authorized to sell the property and that the failure to give notice was merely a procedural error. The Court of Appeals (Div. 2) reversed, holding that DOT is only authorized to sell property after giving notice.

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In Re Discipline of Terry J. Preszler, No. 200,570-5. Attorney Terry Preszler represented a couple in a bankruptcy. He failed to navigate correctly some of the rules related to a personal injury settlement, and was not forthright when he discovered his mistakes. The Washington State Bar Association alleged 17 counts of misconduct by Preszler and the Association's Disciplinary Board found that he had violated five and recommended a three-year suspension from the practice of law. Preszler challenges the Board's determination on several issues.

The Court upholds the Board on most points and imposes the suspension. Justice Fairhurst writes for the majority and is joined by five other justices. Justice Sanders, joined by Justices Chambers and James Johnson, dissents and would give greater weight to the mitigating factors and reduce the suspension. (briefs and argument)

Kustura v. Department of Labor, No. 81478-3. Several persons with "limited English proficiency" appealed determinations by the Department of Labor and Industries, and included in their claims a demand that the Department provide them with interpreters for all interactions with the Department. RCW 2.43.040 grants persons with limited English proficiency the right to translation services paid for by taxpayers where the government has instituted a legal proceeding.

Here, the Court upholds the Court of Appeals, which determined that the Department did not initiate the proceedings. It further casts doubt on whether the Department's proceedings here qualify as legal proceedings under the RCW. Justice James Johnson authored the Court's opinion, in which six other justices concurred. Justice Chambers, joined by Justice Sanders, dissents. (briefs and argument)

State v. Grenning, No. 81449-0. Neil Grenning was charged with 72 sex crimes, including 20 counts of possession of child pornography related to pictures found on his computer hard drives. The trial judge, at the request of the prosecutors, issued a restrictive order preventing copies of the hard drives from being turned over to the defense, though the defense was provided with access to them. Potential defense expert witnesses apparently refused to investigate the hard drives without the ability to take them to their own computer laboratories, and the defense did not present an expert witness regarding the hard drives at trial.

Grenning was convicted on all but one of the charges, including all of the instances of child pornography, and sentenced to 117 years in prison. He appealed, challenging the limitations placed on the hard drive evidence. The Court of Appeals agreed with Grenning and ordered a new trial for the child pornography charges; the state appealed.

The Court here upholds the Court of Appeals. In an opinion by Justice Chambers and joined by five other justices, the Court finds that its decision in State v. Boyd, "which held that the defense was entitled to a mirror image copy of the defendant's computer hard drives," controls the outcome here. Justice Madsen, joined by Justices Alexander and James Johnson, dissent and "disagree with the majority's recitation of the facts, its legal analysis, and its result." (briefs and argument)

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The Supreme Court will issue opinions in the following cases tomorrow: 

In Re Discipline of Terry J. Preszler, No. 200,570-5 (briefs and argument). Whether the court should adopt or reject the Washington State Disciplinary Board’s recommendation that Terry J. Preszler be suspended from the practice of law for three years.

Kustura v. Department of Labor, No. 81478-3 (briefs and argument). The appellants challenged several decisions by the Department of Labor & Industries, all of which were decided in the Department’s favor by Division One Court of Appeals and consolidated on appeal to the Supreme Court. The question before the Court is whether L&I is constitutionally required to provide interpreters to persons with limited proficiency in English.

Kustura and the other appellants are all workers with limited English skills who had hearings before L&I. Interpreters were provided for some parts of the hearings, but not all, such as for communication with attorneys. Kustura claims this violated his due process rights. The Court of Appeals disagreed, determining that L&I is not required by statute to provide interpreters and finding no evidence of actual harm from the lack of interpreters.

State v. Grenning, No. 81449-0 (briefs and argument). This case concerns whether restricting the defense counsel’s access to hard drives that contained some of the evidence used against Neil Grenning meant that he was deprived of the “effective assistance of counsel.”

Grenning was charged with seventy-one counts of child rape, possession of child pornography and related crimes, including sexually abusing a child he babysat – “B.H.” Part of the state’s evidence against Grenning was content from his computer’s hard drives, which contained nearly 40,000 images of child pornography, including pictures of B.H.

Grenning’s counsel requested copies of the drives, but the court restricted him to accessing the drives in a secure location to prevent any spread of the pictures of B.H. The defense counsel argues that the restricted access prevented him from effectively representing Grenning. The Court of Appeals agreed, reversing twenty of the counts against Grenning.

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Today the Supreme Court issued decisions in three cases.

In Re Discipline of Paul H. King, No. 200,681-7 (briefs). The Supreme Court adopted a Disciplinary Board recommendation to disbar Paul H. King for violating the Rules of Professional Conduct by representing a client while suspended from the practice of law. Justice James Johnson wrote the opinion, while Justice Richard Sanders concurred separately.

In re the Welfare of A.B., No. 80759-1 (briefs and argument). The Supreme Court overturned a trial court decision to terminate the parent-child relationship between Rogelio Salas and his daughter, A.B. The child was born in 2001 with cocaine in her system. The Department of Social Health Services (DSHS) removed A.B. from the custody of the mother and placed her in a foster home. The mother’s parental rights were terminated and the child was eventually placed in a home with a distant cousin of the mother. Having never been married to the mother, Salas was living in Las Vegas when A.B. was born. His paternity was confirmed but because of his own substance abuse history he was only granted visitation rights. He later completed a recovery program. The State eventually filed a petition for termination of parental rights which a trial court granted, though the court never entered a finding that Salas was an unfit parent.

The Supreme Court today rules that a parent has a due process right not to have the State terminate his or her relationship with a natural child in the absence of a finding that he or she, at the time of trial, is currently unfit to parent the child. The Court directed the trial court to supervise the “prompt but orderly” transfer of A.B. to Salas’ home unless the parties agree otherwise. The majority was written by Judge J. Dean Morgan, who served as justice pro tempore. Chief Justice Barbara Madsen concurred separately.

Justice Tom Chambers wrote a strong dissent. “The court’s order today also confounds me. A.B. is living with her family. She has been raised by her mother’s cousin almost since birth. Her mother’s cousin has also adopted A.B.’s younger half brother, who has lived with his eldest sister his entire life. The ‘prompt but orderly transfer’ ordered by the court today will wrench this child out of the only home she has ever known and deprive a brother of his sister. Even if the trial judge did err by following this court’s well settled case law, the proper remedy would be remand for further proceedings.”

(Parenthetically, I am surprised at the delay between oral argument and this decision. The case was argued on June 24, 2008. Given the profound impact this decision will have on a child's life, a two-year delay is an inordinate amount of time.)

State v. Nason, No. 82333-2 (briefs and argument). Spokane County has a policy of imposing jail time on offenders who fail to pay court costs. James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. Nason argues this “auto-jail” provision violated his due process rights. The Supreme Court unanimously agreed, with Justice Mary Fairhurst writing the opinion. The Court held that before sanctions are imposed on an offender for failure to pay a legal financial obligation, the trial court must inquire into the offender’s ability to pay when sanctions are sought. “To the extent that an auto-jail provision calls for incarceration without a contemporaneous inquiry into the offender’s ability to pay, it is void. Because the trial court in this case sentenced Nason to 30 days in jail for failure to report to jail under the auto-jail provision, Nason needs to be resentenced.”

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Tomorrow the Supreme Court will issue opinions in several cases.

In Re Discipline of Paul H. King, No. 200,681-7 (briefs). King appeals a disciplinary recommendation that he be disbarred.

In re the Dependency of A.L.S.B., No. 80759-1 (briefs and argument). Whether a court unconstitutionally terminated a father’s parental rights without finding him unfit? This case has been pending since June 2008.

State v. Nason, No. 82333-2 (briefs and argument). Whether Spokane County’s policy of imposing jail time on offenders who fail to pay court costs violates due process. James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. Nason argues this violated his due process rights.

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In re Pers. Restraint of Blackburn, No. 82329-4. Douglas Blackburn pleaded guilty to two drug crimes. He was sentenced to a period of imprisonment followed by a period of community custody. To remain under community custody and not return to prison, Blackburn was required to "obey all laws." During his community custody, the Department of Corrections sent Blackburn a notice alleging that he had failed this requirement by "threatening to kill Shelly Blackburn." The only reference to a particular statute was as the sixth item on a list of "documents and witnesses that DOC intended to present at a violation hearing." Blackburn was found in violation, and an administrative appeals panel affirmed. He filed a personal restraint petition to the State Supreme Court.

Today the Court unanimously grants Blackburn's petition and overturns the DOC. The notice to Blackburn was deficient because it failed to specify which law he had violated.

We hold that for DOC to lawfully reclassify an offender for imprisonment for a violation of an "obey all laws" condition of community custody, the notice must allege the facts and legal elements that DOC would have to prove to show an offender did not obey all laws. ... Although a notice may state the elements, a citation to the statute suffices if the statute includes all of the elements. If the statute does not include all of the elements, the notice must indicate the nonstatutory elements that would render the offender's conduct unlawful.

Justice Fairhurst authored the Court's opinion. (briefs, argument)

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Skinner v. Civil Serv. Comm’n of City of Medina, No. 82306-5. Roger Skinner was fired from his job as a Medina Police lieutenant for insubordinate and offensive statements. The Medina Civil Service Commission upheld Skinner's firing and rejected his motion for reconsideration. He appealed, but the superior court granted summary judgment against him. The court found that he had filed too late because his motion for reconsideration did not toll the 30-day period for filing his appeal. The court also questioned whether Skinner properly served the Commission by giving his notice of appeal to the city clerk. The Court of Appeals overturned the lower court.

Today, the Supreme Court holds that the motion for reconsideration did toll the 30-day period for appealing to the superior court. Thus Skinner's appeal was timely filed. The Court further holds that Skinner's service on the city clerk, while not perfect, "was reasonably calculated to give notice to the Commission." The Court of Appeals is affirmed. The decision was unanimous, and Justice Owens wrote the opinion. (briefs and argument)

Burt, et al. v. Dept. of Corrections, et al., No. 80998-4. The Court splintered 4-1-4 today on a question of who is an indispensable party to an injunction filed against the release of public records. Both the ACLU and the Washington Coalition for Open Government filed amicus briefs with the Court.

Prisoner Allan Parmelee had filed a public records request for information about certain prison employees. The employees moved for an injunction against releasing the records, which was granted. Parmelee was not joined to the action and his subsequent motions to intervene and for reconsideration were denied. The Court of Appeals affirmed the trial court.

The Supreme Court reverses the lower courts. The lead opinion, written by Justice Charles Johnson and joined by Justices Chambers, Owens, and James Johnson, agrees with Parmelee that "[i]n essence ... the trial court proceedings were not adversarial in that no party represented his position as the records requester." Parmelee should have been joined as an indispensable party under CR 19. The case is remanded with instructions to join Parmelee and without an award of attorney fees.

Justice Sanders concurs separately, noting that the Parelee's status as a prisoner does not diminish his rights under the Public Records Act. "Although some might not view Mr. Parmelee as the poster child for rigorous enforcement of the Public Records Act," Justice Sanders writes, "we should not cut corners to allow bad facts to make bad law as well." Justice Alexander dissents, joined by the Chief and Justice Stephens and Justice Pro Tem. Elaine Houghton (Justice Fairhurst did not participate). (briefs and argument)

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The Supreme Court will issue opinions in at least two cases tomorrow.

Skinner v. Civil Serv. Comm’n of City of Medina, No. 82306-5 (briefs and argument). Whether the time limit for appealing a Commission’s decision ran from the initial appeal or the motion for reconsideration. Roger Skinner appealed his dismissal from the City of Medina police force to the Medina Civil Service Commission. The Commission upheld his dismissal, and denied his subsequent motion for reconsideration. Skinner filed an appeal in King County Superior Court, and the trial court dismissed, saying Skinner had failed file his appeal of the initial order within 30 days as required by law. The Court of Appeals (Div. 1) reversed.

Burt, et al. v. Dept. of Corrections, et al., No. 80998-4 (briefs and argument). Whether a person requesting documents under the Public Records Act must participate in a proceeding that could result in an injunction that prevents an agency from releasing the requested documents.

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State v. Lucero, No. 83777-5. David Lucero was convicted of second degree assault. At sentencing, he conceded that his offender score was six, which would include one of his two convictions from California. The Court included both convictions, sentencing Lucero based on an offender score of seven, and Lucero appealed.

The Supreme Court had already remanded this case for reconsideration based on their decision in State v. Mendoza (2009). The Court of Appeals then reissued their original decision upholding Lucero's sentence, adding a footnote claiming to distinguish Mendoza. Today the Supreme Court, in a short per curiam opinion, reverses the Court of Appeals and remands to the trial court.

State v. Peterson, No. 82089-9. Michael Peterson challenges his conviction for failing to register as a sex offender. On November 2, 2005, a police officer discovered that Peterson had moved out of the apartment where he had registered several months earlier. A month later, Peterson registered himself as homeless and was charged with failure to register. He challenged his conviction on two grounds, both related to the different deadlines set forth in the statute depending on whether an offender is becoming homeless, moving to a residence in the same county, or moving to a new county. He first contends that failure to register is an alternative means crime for which the state failed to bring forth "substantial evidence" for each alternative means. Secondly, Peterson argues that residential status is an element of the crime of failure to register and that the state failed to prove this element.

Today the Court holds that failure to register is not an alternative means crime. The Court further holds that "Peterson registered outside of any deadline contained in the statute. It was therefore unnecessary to show his particular residential status in order to prove a violation of the statute." Justice Stephens wrote the opinion for a unanimous Court. (briefs and argument)

State v. Vance, No. 81393-1. Robert Vance challenges his exceptional consecutive sentences for multiple counts of child molestation and communicating with a minor for immoral purposes. Citing Blakely v. Washington, Vance argues that his Sixth Amendment right to a jury trial was violated when the judge determined that allowing Vance to serve all of his sentences concurrently would be "clearly too lenient."

The Court had delayed hearing this case until the United States Supreme Court decided a similar case, Oregon v. Ice. Today, in another unanimous decision and with an opinion by Justice Sanders, the Court finds that Ice does control the application of Blakely and Apprendi v. New Jersey to these facts. The federal High Court was convinced by "considerations [of] historical practice and respect for state sovereignty" that "a sentencing judge does not run afould of the Sixth Amendment by finding facts necessary to impose consecutive, rather than concurrent, sentences for discrete crimes." Vance's sentence, which had been set aside by the Court of Appeals, is reinstated. (briefs and argument)

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Rivard v. State, No. 82431-2 (briefs and argument). The Supreme Court unanimously ruled that a legislative reclassification of a crime cannot apply retroactively for purposes of prohibiting a person from possessing a firearm. James Rivard was convicted of vehicular homicide in 1994. At the time, vehicular homicide was a class B felony, and only class A felons permanently forfeited their right to possess firearms. But a judge mistakenly sentenced Rivard to forfeiture of this right. The legislature subsequently amended the firearm statute to prohibit firearms to anyone convicted of a “serious offense,” including vehicular homicide.

After he was released from prison, Rivard petitioned for restoration of his firearm rights. The trial court, concluding that the reclassification had no retroactive effect, granted the petition. The Court of Appeals, however, held that the firearm regulations are regulatory rather than punitive, and so can be applied retroactively.

Today the Supreme Court, with Justice Charles Johnson writing, rules that Rivard is not barred from possessing a firearm. “Because Rivard’s conviction for vehicular homicide remains a class B felony, he was eligible under RCW 9.41.040 to petition to have his right to possess a firearm restored. The trial court thus correctly restored his rights. We reverse the Court of Appeals and reinstate the trial court’s decision.”

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The Supreme Court today ruled that a library’s Internet filter policy does not violate the free speech protections in the Washington State Constitution. The case is Bradburn v. North Central Regional Library District, No. 82200-0 (briefs and argument).

The North Central Regional Library District maintains Internet filters on its computers to block websites and images considered “harmful to children.” Library patrons were blocked from accessing numerous websites, including sites about drug and alcohol addiction, an art gallery website, health information websites, the “personals” section of Craigslist.org, the MySpace pages of presidential candidates, the Seattle Women’s Jazz Orchestra website, and womenandguns.com, a site maintained by the Second Amendment Foundation.

Several patrons and the Second Amendment Foundation sued the library in federal court for violating federal and state free speech protections. They claim the library’s filtering policy is overbroad and rises to the level of prior restraint of speech. They also argue that the filtering policy is an impermissible content-based restriction on speech. The U.S. District Court for Eastern Washington asked the Washington Supreme Court to address whether the library’s Internet filtering policy violates the free speech protections in Article 1, Section 5 of the Washington State Constitution.

The Supreme Court, with Chief Justice Barbara Madsen writing, concluded that a library can  filter Internet access for all patrons, including adults, without violating the Washington Constitution. The Court wrote that in many cases the Washington Constitution’s protection of free speech is no more expansive than the U.S. Constitution’s. In other contexts, the state constitution affords broader protections. For example,  time, place, and manner restrictions on free speech will be upheld only upon a showing of a “compelling state interest.” Additionally, unlike the First Amendment, the state constitution prohibits prior restraints on constitutionally-protected speech.

Analyzing whether the library’s filtering policies were overbroad, Chief Justice Madsen wrote:

The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons. “The Internet is simply another method for making information available in a . . . library’” and “is ‘no more than a technological extension of the book stack.’” A.L.A., 539 U.S. at 207 (quoting S. Rep. No. 106-141, at 7 (1999)). Just as it is entitled to exercise its acknowledged discretion in amassing a collection of printed materials physically placed on the shelves in order to carry out its mission, it is entitled to exercise discretion when it comes to Internet access involving its facilities and equipment.

The discretion that public libraries enjoy in selecting materials for their collections is not merely a function of what a library can afford in terms of costs and space . . . .  [R]egardless of its resources a library need not place pornographic materials on its shelves, although such materials are constitutionally protected. It need not place children’s comic books on its shelves, although these, too, are constitutionally protected. As another example, if a private collector offered a library a collection of books at an attractive set price for the entire collection and the library purchased the collection, it would not have to include all of the books in its own collection and would not have to make them all available to its patrons.

The plaintiffs also argued that irrespective of the library’s policies, the Internet filtering software used was too aggressive, resulting in overbroad filtering of Internet content. The Court disagreed.

Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block. The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers.

Because adults can request and obtain unblocking of erroneously blocked sites, we conclude that on this record no overbreadth problem exists under article I, section 5 as a result of overblocking.

Ultimately, the Court held that just as a library may exercise discretion in its literary acquisitions, it can also decide what Internet content to provide.

Most importantly, just as a public library has discretion to make content-based decisions about which magazines and books to include in its collection, it has discretion to make decisions about Internet content. A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results. It can make the same choices about Internet access.

A public library has traditionally and historically enjoyed broad discretion to select materials to add to its collection of printed materials for its patrons’ use. We conclude that the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons.

The Court concluded that the filtering policy did not run afoul of the free speech protections in article I, section 5 of the Washington Constitution.

Jim Johnson concurred with the result in a separate opinion, Justice Tom Chambers (joined by Justices Sanders and Stephens) dissented. He wrote:

North Central Regional Library’s Internet filters reach admittedly constitutionally protected speech, and, we are informed, it 'does not and will not disable the filter at the request of an adult person." Simply put, the State has no interest in protecting adults from constitutionally protected materials on the Internet. These policies do exactly that. The filter should be removed on the request of an adult patron. Concerns that a child might see something unfortunate on the screen must be dealt with in a less draconian manner.

 

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The Supreme Court will issue opinions in several cases tomorrow, including a case dealing with Internet filters in libraries.

Bradburn v. North Central Regional Library District, No. 82200-0 (briefs and argument). Whether library Internet filters violate the Washington Constitution’s free speech provision. The North Central Regional Library District maintains Internet filters on its computers to block web sites and images considered “harmful to children.” Several adult library patrons were blocked from accessing sites on topics such as firearms, art, abuse, dating, and health. They asked the library to unfilter the sites, but were refused. The patrons and a nonprofit whose site was among those blocked sued in federal court. As past cases have found that Washington’s free speech protections are stronger than their federal counterparts, the U.S. District Court asked the state Supreme Court to address the state constitutional issues before it proceeds with the federal claims.

Rivard v. State, No. 82431-2 (briefs and argument). Whether the statutory prohibition on possessing firearms for felons who commit a “serious offense” can be applied retroactively after the definition of “serious offense” was modified by the legislature.

State v. Lucero, No. 83777-5. Defendant appeals conviction of assault with a deadly weapon in the second degree and sentencing based on an offender score of 7.

State v. Peterson, No. 82089-9 (briefs and argument). Whether the state must prove the time limit requirement in order to convict a sex offender for failure to register.

State v. Vance, No. 81393-1 (briefs and argument). Whether the Sixth Amendment right to trial by jury requires that a jury, not a judge, make findings of fact to support an exceptional consecutive sentence?

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State v. Hall, No. 82558-1. In this week's only opinion, the Court unanimously decides that the defendant's multiple telephone calls trying to influence a witness constituted a single count of witness tampering.

In 2007, Isiah Hall pointed a gun at two people and threatened to kill them. While awaiting trial, Hall placed over 1,200 telephone calls to the woman who was his girlfriend at the time of the assaults and who would be a government witness at his trial. He tried to convince her either not to testify or to lie to the court. In addition to his other crimes, Hall was convicted of three counts of witness tampering. He challenges that his conduct amounted to a single unit--not three--of witness tampering.

The Court today agrees with Hall and remands the case for resentencing.

[T]he plain language of the statute reveals that the legislature intended to criminalize inducing 'a' witness not to testify or to testify falsely. We hold, under the facts of this case, Hall committed one crime of witness tampering, not three. ... We do not reach whether or when additional units of prosecution, consistent with this opinion, may be implicated if additional attempts to induce are interrupted by a substantial period of time, employ new and different methods of communications, involve intermediaries, or other facts that may demonstrate a different course of conduct.

(briefs, argument)

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Lawson v. City of Pasco, No. 81636-1. Paul Lawson owns and operates a mobile home park in the City of Pasco. The City issued Lawson a citation for permitting one of his tenants to live in an RV, which violated a city ordinance. Lawson challenged that the ordinance was preempted by state law, specifically the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA, RCW 59.20). The trial court found for Lawson, but was reversed by the Court of Appeals.

In today's five-to-four decision and with four opinions, the Supreme Court affirms the Court of Appeals. Justice Charles Johnson wrote the majority opinion, finding that the state has not preempted the field of mobile home park regulation and that Pasco's ordinance did not conflict with the MHLTA.

The Chief Justice signed the majority opinion and also wrote a short concurrence noting that both the state and local laws have been changed to allow tenants to live in RVs. Justice Sanders, joined by Justices Gerry Alexander and James Johnson, dissents and would hold that "the State has preempted the field of mobile home park regulation." Justice Fairhurst, in her own dissent, argues that "Pasco's ordinance ... conflicts with the MHLTA." (briefs and argument)

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Lake v. Woodcreek Homeowners Association, No. 81873-8. Woodcreek Condominiums feature units in both one- and two-story configurations. The Homeowners Association has over the years allowed some of the one-story owners to add a second story. When the Association allowed Glen Clausing to add a story to his one-story unit, his neighbor, Sandra Lake, sued both the Association and Clausing. She alleges violations of the Horizontal Property Regimes Act (HPRA) or Woodcreek's declaration (the legal  description of "the condominium properties and ... the covenants defining the property rights and legal obligations of the property owners").

Lake lost on summary judgment before the trial court, but the Court of Appeals reversed and held that the expansion of Clausing's unit encroached a common area (the air above his original unit) and thus required the unanimous consent of the condo owners. Today, the Supreme Court reverses the Court of Appeals and awards attorney fees to Clausing (the Association did not request attorney fees). The Court holds first that the HPRA does not require unanimous consent of the owners to allow part of a common area to be incorporated into a unit. It further holds that the HPRA does not require that the value of each unit stated in the declaration reflect fair market value, thus it was not necessary to amend the declaration when the size of Clausing's unit changed.

Justice Fairhurst wrote the opinion for a unanimous Court. (briefs and argument)

State v. Jones, No. 82613-7.

The Court today grants a new trial to Christopher L. Jones on a charge of second degree rape. His 17-year-old niece accused him of forcible rape. The jury failed to return a verdict in his first trial, and before his second trial Jones requested to present evidence that the act was consensual during an "alcohol- and cocaine-fueled sex party" involving several other persons. The trial court ruled that the evidence was an attack on the alleged victim's credibility and so was prohibited by Washington's rape shield statute (

RCW 9A.44.020(2)

). The jury convicted Jones and he appealed.

In a unanimous opinion written by Justice Owens, the Court holds that the trial court violated Jones's right to present his defense.

This is not marginally relevant evidence that a court should balance against the State's interest in excluding the evidence. Instead, it is evidence of extremely high probative value; it is Jones's entire defense. Jones's evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape. Since no State interest can possibly be compelling enough to preclude the introduction of evidence of high probative value, the trial court violated the Sixth Amendment when it barred such evidence.

The Court further holds that the rape shield statute applies only to past, not contemporary, acts and so does not apply here (though if it did, it still would not overcome Jones's Sixth Amendment rights). Because the error was not harmless, Jones must have a new trial. The Court also identifies two statements in the prosecutor's closing argument that violated Jones's Fifth Amendment rights. (briefs and argument)

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The Supreme Court today ruled that a trial court judge was wrong to allow evidence of an undocumented worker’s illegal immigration status in a personal injury case. The case is Salas v. Hi-Tech Erectors, No.  81590-9 (briefs and argument).

Alex Salas, an immigrant from Mexico whose visa expired, fell off a scaffolding ladder and sued the company that set up the ladder. At trial, the court allowed evidence of his immigration status, in part to determine the value of Salas’ future earnings potential. The jury did not find Hi-Tech Erectors liable for Salas’ injury. On appeal Salas argues the trial court should not have allowed evidence of his immigration status.

The Supreme Court agreed. Justice Mary Fairhurst wrote that Salas’ immigration status was relevant information for determining the value of his future lost wages. Nevertheless, the court held that the value of this evidence was substantially outweighed by the danger of unfairly prejudicing the jury. The court remanded the case to the Court of Appeals to address additional issues.

Justice Gerry Alexander, a former trial court judge, dissented. He wrote that if the majority believed the evidence of Salas’ status was relevant for determining future lost wages then the trial court did not abuse its discretion and should not be reversed. “I cannot say that the trial court's decision to admit [the evidence] was manifestly unreasonable or based on untenable grounds. Neither can I say that it was a decision that no reasonable judge would have made.”

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The Supreme Court is scheduled to issue opinions in several cases tomorrow morning: 

Lake v. Woodcreek Homeowners Association, No. 81873-8 (briefs and argument). Sandra Lake and Glen Clausing are neighbors at Woodcreek Condominiums. Clausing, with Woodcreek’s approval, built a “bonus room” over his garage. This converted common area (the airspace over the garage) into apartment area. It also interfered with Lake’s view. Lake sued Clausing and Woodcreek, claiming that the law requires unanimous consent by the condominium owners to convert common area to apartment. Woodcreek and Clausing argue that unanimous consent is only required if the condominium declaration is amended, which did not happen here.

Lawson v. City of Pasco, No. 81636-1 (briefs and argument). The question before the Court is whether the Manufactured/Mobile Home Landlord-Tenant Act preempts a city’s ordinance banning the use of recreational vehicles as permanent homes in mobile home parks. Lawson owns a mobile home park in Pasco, and has at least one tenant who uses a fifth-wheel as a permanent home. Pasco has an ordinance preventing this use of a recreational vehicle, and ordered Lawson to evict all such tenants. Lawson defends on the basis that the Landlord-Tenant Act allows the use, and that the Act preempts the City’s ordinance.

Salas v. Hi-Tech Erectors, No. 81590-9 (briefs and argument). Alex Salas, a construction worker, fell off a scaffolding ladder and sued the company that set up the scaffold. At trial, the court allowed evidence that Salas is an undocumented alien. The jury did not find Hi-Tech Erectors liable for the injury. On appeal Salas argues the trial court abused its discretion. The Court of Appeals held that the evidence about Salas’ immigration status was irrelevant and prejudicial, but affirmed the lower court.

State v. Jones, No. 82613-7 (briefs and argument). Whether the rape shield statute bars testimony about contemporaneous sexual behavior for the purpose of proving consent. Kashauna Dixon claimed that she was raped by her uncle, Christopher Jones. Jones admitted to having sex with her, but claimed that she consented. According to Jones, they were having a party with several others that included alcohol, sex, and drugs.

Based on Washington’s rape shield statute, the trial court barred Jones from testifying about the party. Jones appealed, arguing that the statute only prohibits testimony about “past sexual behavior,” and that he wanted to testify about sexual behavior contemporaneous with the alleged rape. The Court of Appeals held that past behavior can refer even to the very recent past, and that even if the rape shield statute didn’t apply the evidence would have been inadmissible because it would have unduly prejudiced the jury against Dixon.

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In re PRP of Steven Clark, No. 81522-4. Steven Clark agreed to plead guilty to two counts of second degree robbery in 1998 in exchange for the state dropping a third robbery charge (all involving bank robberies). Clark was sentenced to 25 months in prison. His plea agreement included at least one year in community placement after his release. Yet shortly after Clark's sentencing it was discovered that he did not meet the necessary statutory criteria for community placement and his sentence was amended to remove it.

Clark was released in 1999 and quickly robbed two more banks. He was convicted and sentenced as a "persistent offender" to life imprisonment. Clark challenges his 1998 plea bargain because he was wrongly informed that his sentence would include community placement. The Court does not reach that issue because it determines that Clark's petition is untimely. Justice Fairhurst, joined by seven other justices, determines that the one-year statute of limitations applies and so Clark's filing comes eight years too late. The test is whether the sentence is invalid on its face and the Court determines that Clark's sentence was not, even though there was confusion about his plea agreement.

Justice Sanders strongly dissents. He would find Clark's petition timely and indicates that he would hold that Clark could withdraw his earlier plea. (argument, briefs)

Merriman, et ux. v. Cokeley, et ux., No. 83700-7. The Court of Appeals had overturned a trial court's determination in a quiet title action that three boundary markers in an area overgrown with blackberries and ivy could not constitute a "clear and well-defined boundary." Here the Supreme Court in a per curiam opinion reverses the Court of Appeals and holds that the evidence supports the trial court's finding. (briefs)

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SEIU Healthcare 775NW v. Gregoire, No. 82551-3 (briefs and argument). In a 5-4 opinion written by Justice James Johnson, the Supreme Court has ruled against SEIU 775NW and declines to order the governor to insert a $87 million arbitration award in her budget proposal to the legislature.

SEIU 775NW represents approximately 25,000 individual health providers who negotiated with the state for wages and benefits. During 2008 negotiations, SEIU 775NW and the governor’s office were unable to reach an agreement for the 2009-11 budget, and an arbitrator awarded the workers a raise and fringe benefits amounting to $87 million. Gov. Gregoire, however, did not include the arbitrated award in the budget proposal that she sent to the legislature, arguing it was not financially feasible. SEIU 775NW argues that the law governing labor relations for these employees (RCW 74.39A.300) states that the governor must include arbitrated awards in her budget.

The question for the court has been whether “must” in the statute is a mandatory obligation upon the governor, or if it is a permissive suggestion. At argument the justices clearly wrestled with the real-world consequences of ruling for either party. A ruling for the workers sends the governor back to the budget planning stage and would result in other cuts to the budget. But a ruling for Gregoire seems to muddy the plain reading of a statute.

Justice Johnson wrote that writs of mandamus ordering a state official to take action are only appropriate when the ordered action is mandatory, rather than discretionary. “Deciding the allocation of limited state funds in order to achieve the statutorily required balanced budget necessarily involves the exercise of the governor’s discretion,” he wrote. “It is difficult to imagine an act more essentially a policy decision for the governor than the submission to the legislature of a budget during an economic downturn. The creation and submission of a budget proposal is clearly one of those discretionary acts that are ‘in their nature political, or which are, by the constitution and laws, submitted to the executive,’ and inappropriate for mandamus.”

The court said it would decline to order the governor to make budget changes even if mandamus were appropriate. “[T] the court may refuse to grant relief where private rights would be unwisely advanced at the expense of public interests. The recent severe economic difficulties faced by our state present circumstances dictating such judicial restraint.”

Alternatively, the court said it would rule against the union as the remedy it sought was no longer available. “Similarly, because the relief sought by the petitioner here—a change in a budget proposal long since submitted for a budget already adopted by the legislature—is no longer available, this case runs afoul of our mootness doctrine.”

Chief Justice Madsen dissented, arguing that the law mandates inclusion of arbitrated awards in the governor’s budget, regardless of the state’s economic picture. “There is, of course, a fixed amount of funding available to achieve a balanced budget and one budget request included in a proposed budget means that there is less money remaining for other proposed requests. But this fact does not turn a mandatory duty into a discretionary one. Pursuant to a state law duly enacted by the legislature, the governor had a mandatory duty to include in the proposed 2009-2010 budget a request to fund the arbitration award in this case.”

Justice Richard Sanders signed Madsen’s dissent and filed his own brief dissent, writing: “This case deserved swift action to protect the rights of these workers and their union. I have signed the dissent but would have preferred to initially decide this case by order with opinion to follow.”

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The Supreme Court will issue rulings in several cases tomorrow.

In re PRP of Steven Clark, No. 81522-4 (argument). Whether a judgment and sentence on a guilty plea may be collaterally challenged beyond the one-year time limit on collateral attack based on the erroneous imposition of community placement, even though the original judgment and sentence was soon corrected to remove the term of community placement.

Merriman, et ux. v. Cokeley, et ux., No. 83700-7. Neighbors brought an action against lot owners, seeking to quiet title to disputed triangle of land. The trial court quieted title in lot owners but denied their request for attorney’s fees and costs.

SEIU Healthcare 775NW v. Gregoire, No. 82551-3 (briefs and argument). The union representative for approximately 25,000 health care providers seeks a writ of mandamus to order Gov. Chris Gregoire to resubmit a budget to the legislature that includes the union's pay increases, which were the result of an arbitrated award. The governor had declined to request funding for the increases ($87 million) in the December 2008 budget proposal. As Justice Mary Fairhurst observed during arguments, the case could come down to how the court interprets the word "must." 

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Carlisle v. Columbia Irrigation District, No. 82035-0. The Court today unanimously upholds summary judgment in favor of the Columbia Irrigation District (CID).

In 2007 CID expanded, adding new lands and then establishing a local improvement district (LID) on them to allow future special assessment levies to pay for improvements. Thirty-four landowners sued, alleging that CID's expansion violated due process (article I, section 3) and failed to receive valid petitions representing at least one-half of the land area (RCW 87.03.560). They further alleged that the statute authorizing creation of the LID violates on its face the guarantee of equal elections (article I, section 19) and that notice of the hearing for formation of the LID also violated due process.

The Court first considers whether expansion of the irrigation district boundaries constituted a deprivation of property. The constitutional guaranty of due process only applies where a person is "deprived of life, liberty, or property...." The guaranty of due process does not apply to government decisions or actions that only create or increase the likelihood of a future deprivation. The Court holds that while CID's expansion made future assessments on plaintiffs' lands possible, "increased probability of an assessment was not a deprivation of property within the meaning of article I, section 3."

The Court further explains "that a democratically elected legislature has the prerogative to establish the procedures by which a local government entity is created or its boundaries expanded." This is because local governments are creations of the state government, receiving delegated state powers. Local governments have no authority not already present in state governments, thus there is no additional need for consent. "A person does not have the constitutional right to notice, a hearing, or the right to object." The Court adds in a footnote that "plaintiffs' real complaint is with the legislature," which has increased the notice requirements for road improvement districts, but not irrigation districts.

As to the question of the validity of certain petitions, the Court rejects the argument that petitions are invalid if the signer subsequently sold the property or if the petitions were submitted after an arbitrary, non-statutory deadline. Because including the petitions in those categories brings the total over the required threshold, the Court declines to address additional issues related to other challenged petitions.

The Court finds that the formation of an LID by implied-consent (RCW 87.03.485) is not an "election" and therefore cannot violate the article I, section 19, and does not violate article 1, section 3. Justice Fairhurst wrote the Court's opinion. Justice Alexander did not participate and was replaced by Justice Pro Tem. Karen Seinfeld. (briefs and argument)

In re Parentage of M.F., No. 81043-5. In the 2005 case In re Parentage of L.B., the Court created a new status of "de facto parent," "to correct a specific statutory shortcoming." The legislature had not created a legal framework for a person who was not a biological parent, was not married to a biological parent, and was not asserting that the biological parents were unfit, but who nevertheless wanted rights as a parent, so the Court "fill[ed] this statutory gap." Today, the Court refuses to extend that doctrine.

M.F.'s natural parents divorced a few years after she was born and thereafter shared custody of her. The mother's next marriage lasted for about seven years, and her husband from that marriage here asks the courts to declare him M.F.'s de facto (third) parent. The Court declines. The majority explains that there is no need for the Court to expand its earlier invention to these facts, presumably because L.B. involved two persons of the same sex whereas this case involves three people and includes both sexes. The Court also says that its de facto parent doctrine would too easily apply to step-parent relationships.

Justice Chambers, joined by Justics Owens and Fairhurst, dissent and contest two "assumptions" of the majority: "first, that a child can have no more than two parents; second, that both of M.F.'s parents are fit." All three dissenters were members of the In re Parentage of L.B. majority, while the majority here contains the other three members of that majority and the two justices who dissented. (briefs and argument)

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Among the opinions released by the Supreme Court today:

Renner v. City of Marysville, No. 81959-9 (briefs and argument). Marc Renner was fired from his job as Network Administrator for the City of Marysville. The city cited misconduct and insubordination for the termination; Renner claimed he was fired for joining a union. Renner sued for wrongful termination, but failed to include 1) a specific damage amount, and 2) all of his addresses for the prior six months. The City successfully moved to dismiss the case for failure to comply with the filing requirements.

The Supreme Court, with Justice Charles Johnson writing, ruled in Renner’s favor and held that Renner “substantially complied” with the claim filing statute. Chief Justice Barbara Madsen filed a separate concurrence finding that Renner substantially complied in this particular case, but she cautioned that “in a given case simply stating the name of the claim without much more does not serve the purpose of former RCW 4.96.020(3).”

Justice Mary Fairhust dissented. “In the name of liberal construction and substantial compliance, the majority distorts the amount requirement of the claim filing statute,” she wrote. “By holding that it is sufficient to merely list all the available classes of damages, the majority undermines the legislature’s intent to encourage settlement.”

State v. Rhone, No. 80037-5 (briefs and argument). Theodore Rhone, an African-American, was charged with robbery, possession of a controlled substance, unlawful possession of a firearm, and bailjumping. During jury selection there were two African-Americans in the 41-member pool, one of whom was dismissed for cause. The other, “juror 19,” was removed by the prosecutor’s peremptory challenge. The question in the case is whether a prosecutor’s peremptory challenge of the only African-American member in a trial of an African-American defendant amounts to a prima facie case of discrimination. The trial court concluded that Rhone had failed to establish a case of discrimination and did not require the prosecutor to provide a race-neutral explanation for his challenge of juror 19. Rhone was convicted on all counts.

The Supreme Court, with Justice Charles Johnson writing for a 4-vote lead opinion, upheld the conviction. The Court noted that under established case law, while a defendant has no right to a ‘jury composed in whole or in part of persons of his own race, the equal protection clause requires that a jury be composed of members who were selected by nondiscriminatory criteria.

The Court declined to recognize a bright line rule that a prima facie case of discriminatory purpose can be based on the mere dismissal of the only potential juror of the defendant’s race. The Court said Rhone could have presented a more complete argument to the trial court incorporating the totality of the circumstances involving the dismissal of juror 19, but that on appeal the Court will defer to the trial court’s ruling. Chief Justice Barbara Madsen filed a brief concurrence: “I agree with the lead opinion in this case. However, going forward, I agree with the rule advocated by the dissent.”

Justice Gerry Alexander, dissenting, wrote: “[W]e should adopt a bright line rule that a prima facie case of discrimination is established under [the U.S. Supreme Court’s decision in] Batson when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged. I recognize that we have previously held that “a trial court is ‘not required to find a prima facie case [of discriminatory purpose] based on the dismissal of the only venire person from a constitutionally cognizable group, but they may, in their discretion, recognize a prima facie case in such instances.’” State v. Thomas, 166 Wn.2d 380, 397, 208 P.3d 1107 (2009) (quoting Hicks, 163 Wn.2d at 490) (alteration in original). Nevertheless, I am convinced that it makes sense to adopt the bright line rule ….”

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The Supreme Court will issue opinions in several cases tomorrow: 

Carlisle v. Columbia Irrigation District, No. 82035-0 (briefs and argument). The Columbia Irrigation District went through the process of adding property to its jurisdiction and imposing taxes on the owners. Some of the landowners opposed this claim. The Supreme Court reviews whether the proper procedures were followed in adding plaintiffs’ land to the Columbia Irrigation District and forming a local improvement district, and whether those procedures violate the Washington Constitution.

In re Parentage of M.F., No. 81043-5 (briefs and argument). The question before the court is whether a stepparent qualifies as a common law de facto parent, with the accompanying rights and responsibilities. The trial court ruled that the petitioner, a stepfather, could and did prove that he qualified as a de facto parent for his teenage stepdaughter, relying in part on precedent from In re Parentage of L.B. 155 Wash.2d 679 (2006). Court of Appeals reversed, finding that stepparents have other statutory remedies and cannot claim de facto parent status based on the Parentage of L.B. decision.

Renner v. City of Marysville, No. 81959-9 (briefs and argument). Whether a lawsuit can be dismissed if the originating party failed to include in his claim all the information required by the filing statute. Renner was fired for misconduct from his job as Network Administrator for the City of Marysville. He sued for wrongful termination, but failed to include 1) a specific damage amount, and 2) his address for the prior six months. The City successfully moved to dismiss the case for failure to comply with the filing requirements. The Court of Appeals reversed, finding the Renner had substantially complied with the rules.

State v. Rhone, No. 80037-5 (briefs and argument). Whether using a peremptory challenge to remove the sole minority member of a jury is racially discriminatory on its face without any other evidence.

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Parmelee v. O’Neel, No. 82128-3. The Court today unanimously holds that Allan Parmelee, a prisoner who successfully defended himself against an infraction based on Washington's criminal libel statute, is entitled to attorney fees.

Parmelee had written a letter making various accusations about the prison superintendant. Prison authorities refused to send the letter and found that Parmelee had committed a misdemeanor by violating the libel law. Parmelee defended and the Court of Appeals held the libel law unconstitutional, but refused to grant attorney fees. The Supreme Court holds that Parmelee is a prevailing party entitled to fees according to 42 U.S.C. § 1988. (briefs and argument)

State v. Eaton, No. 81348-5. Thomas Eaton was stopped by Vancouver police for driving with his headlights off (presumably at night). He was arrested for DUI and taken to jail, where a bag of methamphetamine was discovered in his sock. He was convicted of DUI and possession of a controlled substance. He received a sentence enhancement (RCW 9.94A.533(5)) for the latter conviction because the drugs were discovered within the jail. The Court of Appeals overturned the enhancement, finding that Eaton was taken to jail against his will and that the statute "was not intended to punish defendants for their involuntary acts."

The Supreme Court begins its analysis with an attempt to describe the fundamental principles of criminal culpability. The effort is made difficult by past high courts' failures to enforce traditional protections against overreaching legislatures. The original common law definition of a crime required both an actus reus--literally, a "bad act"--with a corresponding mens rea--a "bad mind." There might be recovery in tort for a harmful act accomplished without mens rea, but it was not a crime. Additionally, an involuntary act was not considered an act at all. Punishment was meted out only where defendants were culpable--where they caused harm by choice and so might have chosen differently.

Today, the Court rejects the state's argument that the sentencing enhancement should apply without regard to the common law (or, some might believe, common sense) requirement of intent or at least volition. Justice Chambers, writing for the majority, reminds the state that statutes are construed "in a way that is consistent with their underlying purpose." The Court holds that the sentencing enhancement statute includes "a volitional element that the state must prove beyond a reasonable doubt."

Justice Fairhurst, joined by Justices Madsen, Owens, and Johnson, dissent. They would accept the state's argument and refuse to construe the statute according to the common law protections. (briefs and argument)

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Two more decisions from the Supreme Court today:

State v. Madsen, No. 81450-3. The question in this case was whether the trial court properly denied a defendant's request to represent himself. Kurt Madsen was charged with three felony counts after he violated a no-contact order. At trial Madsen repeatedly requested to represent himself. The trial court denied his motion, stating he had been “extremely disruptive,” “repeatedly addressed the court at inopportune times,” and “consistently showed an inability to follow or respect the court’s directions.”

The Supreme Court, with Justice Jim Johnson writing the opinion, held that the Washington Constitution explicitly guarantees criminals the right to self-representation. The right is not absolute, however, and trial courts may determine whether a request for self-representation was made properly. The Court found that Madsen’s request had been “unequivocal, timely, voluntary, knowing, and intelligent” and Madsen had repeatedly cited article I, section 22 of the Washington Constitution. The Court held the trial court’s decision was in error, and remanded for further proceedings. 

Justice Mary Fairhurst concurred separately with the outcome, but expressed concerns about whether Madsen made a timely, knowing, and intelligent waiver of counsel.

State v. Osman, No. 82671-4. The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.

Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.On appeal, the Court of Appeals held the standard of review is abuse of discretion rather than reviewing the question of materiality.

Justice Richard Sanders, writing for a unanimous court, wrote that as the missing portion of the electronic record is significant and material to the appeal, Osman is entitled to a new trial.
 

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The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.

Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.

On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.

One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote. 

Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court. 

Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.

UPDATE: Additional thoughts on the case over at OG-Blog.

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The Supreme Court will issue opinions in several cases tomorrow.

Parmelee v. O’Neel, No. 82128-3 (briefs and argument). Whether an inmate is entitled to attorney fees if he gets an appellate court to vacate an infraction complaint against him and declare the underlying law unconstitutional.

State v. Eaton, No. 81348-5 (briefs and argument). The Supreme Court will determine whether a defendant’s sentence can be enhanced for an involuntary act under RCW 9.94A.533(5)(c).

State v. Madsen, No. 81450-3 (briefs and argument). Whether a trial court may deny a defendant’s request to represent himself.

State v. Osman, No. 82671-4 (briefs and argument). The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.

Yousoufian v. Ron Sims, No. 80081-2 (briefs and argument). An open records case that has gone up and down the court system for the past ten years, the final issue is the appropriate level of penalties for King County’s gross negligence in providing public records to Yousoufian.

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Among the opinions scheduled for tomorrow is a new ruling in Yousoufian v. Ron Sims, which was reargued after King County argued that Justice Richard Sanders shouldn't have participated in the case. The vacated opinion was considered one of the most significant open government rulings in recent memory.

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American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1. American Best Food owned the Federal Way dance club Café Arizona. Michael Dorsey was shot nine times in front of the club. Security guards carried him inside, but then carried him back out and "dumped him on the sidewalk." Dorsey sued the Café for failing to protect him from criminal conduct and for exacerbating his injuries after the assault. The Café's insurer, Alea London, refused to indemnify or defend the Café because the policy excluded "injuries or damages 'arising out of' assault or battery." The Café sued Alea for breach of contract, bad faith, and violation of the Consumer Protection Act. The trial court granted summary judgment for Alea, but the Court of Appeals reinstated the contract and bad faith claims and held that Alea had breached its duty to defend.

The Supreme Court today sustains the lower court, holding that "Alea's failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law." Justice Chambers wrote for the five-member majority. Justice Owens, with three other justices, dissented as to the finding of bad faith. (briefs, argument)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. Are physical therapists engaged in the practice of medicine? Benton Franklin Orthopedic Associates (BFOA) refers many of its patients to Benton Franklin Physical Therapy (BFPT), which it also controls through common ownership. Columbia, one of BFPT's competitors, sued alleging violations of the corporate practice of medicine doctrine (link to PDF), The Professional Services Corporation Act (PSCA) (RCW 18.100), the antirebate statute (RCW 19.68), and the Consumer Protection Act (RCW 19.86). The trial court granted BFOA summary judgment on the PSCA claim and certified the other issues to the Court of Appeals, which denied review.

The Court today holds that physical therapy is included in the definition of the practice of medicine. The Court upholds the grant of summary judgment on the PSCA claim and directs the trial court to enter summary judgment also in BFOA's favor on the corporate practice of medicine and antirebate statute claims. Because Columbia did assert facts that, if proven, would constitute breaches of the CPA, the Court upholds the trial court's refusal to grant summary judgment on the issue and remands for trial. Justice Owens wrote for the unanimous Court. (briefs--including 28 amicus briefs, argument)

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The Supreme Court will issue opinions in two cases tomorrow.

American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1 (briefs and argument). The issue here, as summarized by TVW, is whether an insurer must defend its insured in a case involving its negligence that occurred after an assault when the contract excludes coverage for injuries “arising out of” assaults?)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1 (briefs and argument). Columbia sued Benton on several grounds, all related to whether a physician-owned company providing orthopedic services can employ physical therapists. Both parties agree on the facts of the case, but differ on the applicable laws and cases. The trial court issued summary judgment on some of the issues and certified them to the Court of Appeals, and the parties asked for discretionary review. The Court refused the review, stating that the parties disagreed on what issues they wanted the Court to review.

The parties appeal to the Supreme Court, arguing that the denial of review departed so far from the "accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction" by the high court.

(Supreme Court judicial candidate Charlie Wiggins represented and argued for Columbia Physical Therapy.)

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In re Pers. Restraint of Rainey, No. 81244-6. After convictions for first degree kidnapping and telephone harassment, Shawn Rainey's sentence included an order prohibiting him from any contact with his ex-wife and daughter for life. He appealed that order, challenging that it violates his rights under Apprendi v. New Jersey and Blakely v. Washington and his fundamental rights as a parent.

Justice Stephens writes for a unanimous Court, holding that RCW 9.94A.505(8) allows a sentence to include a no-contact order up to the statutory maximum "when the jury verdict reflects facts warranting the prohibition." Here, the judge found no facts beyond the jury verdict and so there is no violation of Apprendi or Blakely.

The right to parent, however, is a fundamental right. A sentence that infringes such a right must be "reasonably necessary to accomplish the essential needs of the State and public order." The Court finds the state interest here compelling, but notes that "the interplay of sentencing conditions to fundamental rights is delicate and fact-specific, not lending itself to broad statements and bright line rules." The Court expresses dissatisfaction with the sentencing court's failure to provide a rationale for the extreme duration of the no-contact order and on that basis strikes the order and remands for resentencing.

(Briefs, argument)

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In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new commitment trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

UPDATE: Nina Shapiro at the Seattle Weekly has this article criticizing the Court's decision in Pouncy's case.

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The Supreme Court today decisively ruled that sentencing enhancements for the possession of a weapon during the commission of a crime are not constitutionally prohibited. The case is State v. Aguirre, No. 82226-3 (briefs and argument).

Daniel Aguirre was convicted in Thurston County Superior Court of assault and rape. He unsuccessfully appealed to the Court of Appeals (Div. 2), arguing that a number of errors occurred at trial. Aguirre argues the trial court committed a number of errors, and argues that the deadly weapon enhancement to his sentence for assault with a deadly weapon violates double jeopardy. The double jeopardy clauses of both the federal and state constitutions protect defendants from being twice put in jeopardy for the same crime.

The Supreme Court, with Justice James Johnson writing the unanimous opinion, rejected all of Aguirre’s claims. On the double jeopardy issue the Court said: “Washington courts repeatedly have held that double jeopardy is not offended by weapon enhancements even when being armed with the weapon is an element of the underlying crime.”

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In re Custody of E.A.T.W. and E.Y.W., No. 81945-9. Was the superior court right to grant a hearing for a custody petition based only on the fact that the children had lived with the petitioning grandparents for several years? The Court of Appeals had overturned the superior court, and the Supreme Court today upholds the Court of Appeals. The High Court holds that RCW 26.10.032 imposes on third party petitioners the duty of setting forth facts that would show “that the parent is unfit or placement with the parent would result in actual detriment to the child's growth and development.”

The unanimous opinion, written by Justice James Johnson, goes on to hold that this standard is in accord with the U.S. Supreme Court’s decision in Troxel v. Granville.

In Troxel, the United States Supreme Court affirmed this court's judgment in In re Custody of Smith that constitutionally protected parental rights were violated by a statute allowing a nonparent to wrest custody of a child from a parent based solely on the court's findings regarding the child's best interests. Something more is required than the court's judgment that it could make a better decision than parents concerning the upbringing of children.

(Briefs, Argument-May 28, 2009)

State v. Sibert, No. 79509-6. Richard Sibert was convicted by a jury in 2004 of four crimes related to the sale of methamphetamine. The Court of Appeals affirmed the lower court, and Sibert appeals on three alleged errs:  1) failure of the trial court to include the identity of the “controlled substance” on part of the jury instructions; 2) failure to prove the identity of the controlled substance; 3) an inappropriate jury instruction on “knowledge.”

Today the Court upholds Sibert’s conviction and sentencing. It finds that throughout the trial, everyone involved understood that the controlled substance was methamphetamine. Further, the jury instructions incorporated by reference the charging documents that identified the substance as methamphetamine. It also upholds the instruction on “knowledge,” which the trial court took directly from the Washington Practice.

Justice James Johnson also wrote this majority opinion, but Justices Sanders and Alexander both authored dissents, the latter joined by Justices Charles Johnson and Debra Stephens. The Chief concurred with the majority, but as to the result only. The four dissenting justices would hold prosecutors to a higher standard, in this case requiring a more explicit and precise description of the controlled substance.

(Briefs, Argument-February 10, 2009)

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An interesting little subplot played out in today’s Sieyes opinions. As discussed below, the basic question was whether the state law that prohibits minors from possessing guns is unconstitutional.

Justice Jim Johnson, in his one-vote dissent, wrote that the gun possession statute should be subjected to strict scrutiny—the highest standard of judicial review. In other words, the State would be required to show that the statute restricting a 17-year-old from possessing a gun is narrowly tailored to achieve a compelling governmental interest. He stressed the “fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people.” Using this analysis, Justice Johnson would have invalidated the law.

Justice Sanders’ majority opinion, however, does not go so far. Writing for the Court, he held that the Second Amendment is incorporated against the states via the Fourteenth Amendment, and the Washington Constitution explicitly protects the individual right to bear arms. Justice Sanders also discussed the appropriate standard of review, and declined to apply strict scrutiny or a less stringent analysis. But Justice Sanders noted that the Mr. Sieyes provided no argument or authority for finding the state’s gun restriction unconstitutional. Without adequate briefing from the parties, the Court declined to address the issue. Justice Sanders seemed to chide Justice Johnson for a lack of restraint: “The argument put forth by the dissent is no substitute for an argument briefed by opposing parties.”

Justice Debra Stephens takes the restraint refrain even further. While agreeing with the case's outcome, she wrote separately to criticize the majority opinion’s lengthy analysis of the constitutional issues at stake. “I would refrain from engaging in an extended exploration of the unsettled question of federal incorporation of the Second Amendment. Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court.”

But Chief Justice Barbara Madsen plays the restraint trump card. She signed the majority opinion and added the notation “result only” to her vote. So while we see her position we have no clue as to her rationale.

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The Supreme Court has issued its opinion in the thorny case of State v. Sieyes, No. 82154-2.

17-year-old Christopher Sieyes was charged and convicted for unlawfully possessing a loaded .380 semiautomatic handgun – a violation of RCW 9.41.040(2)(a)(iii), which generally prohibits children under age 18 from possessing firearms. The questions in this case were whether the Second Amendment to the United States Constitution applies to the states, and if so, whether the state law banning possession by minors unconstitutionally infringes on the right to bear arms protected under the U.S. and Washington Constitutions.

In 2007, in Heller v. D.C., the U.S. Supreme Court struck down the District of Columbia’s handgun ban, holding that the Second Amendment guarantees the individual right to bear arms, rather than a collective militia right, as argued by D.C. The Court left for another day the question of whether the Second Amendment applies to the states. That question will be addressed later this year, as there has been some disagreement between federal circuits, but the Washington Supreme Court beat SCOTUS to the punch.

The Washington Supreme Court, with Justice Richard Sanders writing the majority, held that the Second Amendment applies to the states. “[T]he Second Amendment protects an individual right to bear arms from state interference through the due process clause of the Fourteenth Amendment. This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.” Justice Sanders also noted that the Washington Constitution explicitly guarantees the right to bear arms, though the Court has not determined the reach of Article I, Sec. 24 since the Heller ruling.

Turning to the question of whether RCW 9.41.040(2)(a)(iii) is constitutional, the Court declined to apply the traditional levels of scrutiny to firearm regulation. The Court voiced agreement with Heller -- that strict scrutiny would invalidate most infringements on the Second Amendment, while a rational basis test would set too low a standard to protect the right to bear arms. “We follow Heller in declining to analyze RCW 9.41.040(2)(a)(iii) under any level of scrutiny. Instead we look to the Second Amendment's original meaning, the traditional understanding of the right, and the burden imposed on children by upholding the statute.” Justice Sanders acknowledged the Court's "occasional rhetoric" about the "reasonable regulation" of firearms, but argued the Court has never settled on a precise standard of review.

However, the Court found that Christopher Sieyes made inadequate arguments on whether the law was unconstitutional. “In sum appellant offers no convincing authority supporting his argument that Washington's limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day.” The Supreme Court held that Sieyes failed to demonstrate that the statute was an unconstitutional violation of his right to possess a gun. The case was remanded for consideration of additional issues.

Gun rights advocates will see this as a partial missed opportunity. After the landmark ruling in Heller, the Washington Supreme Court asked the parties in Sieyes to address whether the Second Amendment applies to the states and the appropriate standard of scrutiny for evaluating firearm regulations. Justice Sanders has long railed against the Court’s reliance on “reasonable regulation” of gun rights, and no doubt wanted to go further in clarifying the court’s jurisprudence. Thus his criticisms of the appellant for inadequately briefing some of these constitutional issues. Even so, the Court firmly holds that the Washington Constitution protects the individual right to bear arms.

Justice Debra Stephens concurred in the result, but wrote that as Sieyes failed to analyze how the state statute violated the constitution the court could stop there and should not have conducted an  "extended exploration of the unsettled question of federal incorporation of the Second Amendment." Meanwhile, Justice James Johnson dissented, writing that "the majority disregards our long-standing national tradition allowing younger citizens to bear arms," and he argued strict scrutiny is the appropriate standard of review for a challenge to a statute restricting one's constitutional rights.

(briefs and argument).

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State v. Gonzalez, No. 26070-4 (briefs and argument). In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund, to which the trial court agreed.

Gonzalez sought to reverse the order modifying the total amount of his restitution, arguing the state violated RCW 9.94A.753, the restitution statute. He also argued the additional restitution constituted a second punishment in violation of double jeopardy. The Supreme Court, with Justice Mary Fairhurst writing, rejected both arguments and affirmed the trial court. Justice Richard Sanders dissented, writing that the second restitution violated the statute and double jeopardy.

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The Supreme Court will issue opinions in two cases tomorrow, including a case that addresses whether minors have a constitutional right to possess firearms.

State v. Sieyes, No. 82154-2 (briefs and argument). Christopher Sieyes, a 17-year-old, was pulled over for speeding, and a gun was found under the front seat of his car. State law prohibits minors from possessing guns (with limited exceptions) and Sieyes was charged and convicted of criminal possession of a firearm. The question before the Supreme Court is whether the state statute prohibiting minors from possessing guns is a violation of the constitutional right to keep and bear arms guaranteed in the Washington and U.S. Constitutions. More broadly, the Court may consider the proper test for analyzing a violation of the right to bear arms, and whether the Second Amendment to the U.S. Constitution applies to states.

State v. Gonzalez, No. 26070-4 (briefs and argument). In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund. The question before the Court is whether state statutes allow a restitution order to be amended beyond the statutory period, whether under the state and federal constitutions a restitution order is by nature a criminal "punishment," and if it is, whether the amended order constitutes two separate punishments.

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The Supreme Court will issue opinions in at least two cases tomorrow.

In re Stephen Cramer, No. 200,674-4 (briefs and argument). This is an appeal of a recommendation by the Washington State Bar that Cramer be disbarred. According to the Bar, Cramer failed to pay taxes and had his business license revoked. So he formed a new company, transferred the assets from the old company to the new, and continued doing business without registering the new company with the Washington Department of Revenue.

State v. Dow, No. 81243-8 (briefs and argument). Keith Dow was charged with raping a three-year-old girl, but the charge was reduced to first degree child molestation when the girl was deemed incompetent to testify. Without her testimony, the state needed to use statements made by Dow to support its case. A hearing took place to determine whether defendant’s statements could be used pursuant to RCW 10.58.035, which requires a court to consider a number of factors when deciding whether a confession is admissible. The trial court ruled the state statute violated the 14th Amendment of the U.S. Constitution, and as the state had no other evidence, charges were dismissed. The Court of Appeals (Div. II) reversed the trial court.

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Shoemake v. Ferrer, No. 81812-6. Attorney Douglas Ferrer badly mishandled Andrea and Keith Shoemake's lawsuit related to Andrea Shoemake's serious injuries from a 1992 automobile accident. As a result of his legal malpractice, the case was dismissed in 1996. Ferrer mislead the Shoemake's about this until 2005. The Shoemake's retained another attorney and eventually recovered a $100,000 insurance settlement and then prevailed in a legal malpractice suit against Ferrer. The trial court awarded the Shoemake's ten years of interest on $60,000, which was the amount of the insurance settlement minus the 40% contingency fee that Ferrer would have received.

The Shoemake's appealed and the Court of Appeals found that the interest should have been based on the full $100,000. Today, in an opinion written by Justice Stephens, the Supreme Court unanimously upholds that decision.

We affirm the Court of Appeals and follow the approach favored by the majority of jurisdictions. In this case, calculating damages without deducting a negligent attorney's hypothetical contingency fee is an appropriate measure of damages. The Shoemakes had to expend fees on a second lawyer in order to finish the job the first lawyer neglected to do. The majority approach makes the plaintiffs whole without conferring a windfall.

(briefs and argument)

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In re PRP of Grantham, No. 82194-1 (briefs and argument). James Grantham is an inmate at McNeil Island prison. A correctional officer was caught smuggling tobacco and marijuana to him, and Grantham was charged with violating prison rules regarding controlled substances. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. A recording of the phone call, however, was not played at the hearing. Based on the investigative report, a hearing officer found Grantham guilty of both counts. He was sanctioned with 25 days disciplinary segregation and a loss of both 90 days good time credit and 7 days of yard privileges.

Grantham filed a personal restraint petition, arguing that the investigator acknowledged that he and his brother never explicitly discussed marijuana or tobacco. He also argued that the disciplinary hearing notice failed to specify the time and place of his conversation with his brother. The Court of Appeals dismissed Grantham’s petition.

On appeal to the Supreme Court, the issue is the applicable standard of review for prisoners challenging disciplinary decisions. The Supreme Court, with Justice Tom Chambers writing the 7-2 majority, held that inmates challenging prison discipline need not make out a prima facie case of prejudice in order to obtain review (known as the Isadore standard). However, the Court said prisoners facing discipline are not entitled to the same range of constitutional protections afforded defendants facing criminal charges, but are only entitled to minimum due process protections. The Court stated that inmates challenging prison discipline must show that the disciplinary hearing was so arbitrary and capricious as to deny them a fundamentally fair proceeding. The Court held that Grantham has not met this standard, and dismissed his petition. Justice Gerry Alexander dissented. While he agreed with the Court’s explanation of the applicable law and standard of review, he argued that Grantham was denied a fair proceeding.

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The Supreme Court will issue decisions in at least two cases tomorrow.

Shoemake v. Ferrer, No. 81812-6 (briefs and argument). Whether damages in a legal malpractice claim should be reduced because of a contingency fee agreement, and whether attorney fees can be awarded for acts of bad faith that happen prior to the start of litigation. Andrea Shoemake was hit by a drunk driver and retained Douglas Ferrer to file a lawsuit for her, agreeing to give him a 40% contingency fee (i.e. Ferrer would get 40% of any damages). Ferrer filed the complaint, failed to appear for trial, and the case was dismissed. For eight years he told Shoemake that the case was simply backlogged in court. She eventually discovered the truth and sued for malpractice.

The trial court awarded damages to Shoemake for malpractice, but reduced the award by the 40% she would have paid to Ferrer. She also received attorney fees for the malpractice suit costs because Ferrer had acted in bad faith. The Court of Appeals reversed these two decisions, finding that Shoemake was not fully compensated if she had to pay Ferrer’s 40% plus the costs for her new attorney, and finding that attorney fees cannot be awarded for bad faith acts that occur prior to the start of litigation.

In re PRP of Grantham, No. 82194-1 (briefs and argument). Did the Department of Corrections violate James Grantham’s due process rights by refusing to give him access to evidence used against him in a prison disciplinary hearing? Grantham is an inmate at McNeil Island prison, and was charged with violating rules when a correctional officer was caught smuggling tobacco and marijuana to him. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. Grantham was given notice of the disciplinary hearing where he was charged, but the notice didn’t contain the dates and times of his alleged violations. He also requested a copy of the phone record on which the charges were based, which was refused. He appeals for violation of due process due to this lack of evidence. The Court of Appeals denied Grantham’s petition, but the Supreme Court granted discretionary review.

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Today the Supreme Court released three decisions.

State v. A.N.J., No. 81236-5. In 2004, when Defendant A.N.J. was 12 years old, he pleaded guilty to first degree child molestation. Shortly thereafter, after realizing the consequences of his juvenile sex offense criminal history, he attempted to withdraw his guilty plea. A.N.J. contends his court appointed counsel was ineffective and as a result his plea was not knowing, voluntary and intelligent. According to testimony, the defending attorney spent something between 35 to 90 minutes total with A.N.J. before the plea hearing, did not adequately explain the consequences of the plea, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts. The Supreme Court, with Justice Tom Chambers writing the opinion, agreed that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced. The Court remanded to the trial court with directions to allow A.N.J. to withdraw his plea. Justices Sanders and James Johnson each wrote separate concurring opinions.

State v. Gamble, No. 80131-2. The Supreme Court, with Chief Justice Madsen writing the 8-1 majority opinion, concluded that the mandatory joinder rule does not bar the homicide charges brought against the defendants. In four consolidated appeals, each of the defendants was originally convicted of second degree felony murder with assault as the underlying felony. After their convictions, the Supreme Court held in another case (Andress) that a conviction of second degree felony murder could not be based on assault as the predicate felony. Each of the defendants challenged their convictions, which were vacated. The defendants were then retried on new charges. Each contended that under the mandatory joinder rule the new charges would have to have been joined with the original second degree felony murder charge. The trial courts each ruled that the Andress decision was an extraordinary, unforeseeable event, and the “ends of justice” exception to the mandatory joinder rule applied. The Supreme Court agrees today. Justice Richard Sanders dissented.

State v. Mandanas, No. 80441-9. May a sentencing court impose multiple firearm enhancements when the defendant's underlying crimes constitute the same criminal conduct? Bayani John Mandanas was convicted of felony assault and felony harassment, both while armed with a firearm. The trial court ruled that the offenses were not the same criminal conduct for purposes of sentencing, and that the firearm enhancements were to run consecutively. The Court of Appeals agreed in part, but held that the offenses were the same criminal conduct and that the enhancements were to run consecutively. Mandanas argues that multiple enhancements for the same conduct should not be imposed. Reviewing the sentencing statute (RCW 9.94A.589), the Supreme Court (Justice Alexander writing) says “a sentencing court must impose multiple firearm enhancements where a defendant is convicted of multiple enhancement-eligible offenses that amount to the same criminal conduct under the sentencing statute.”

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Tomorrow the Supreme Court will issue opinions in at least three cases.

State v. A.N.J., No. 81236-5. Defendant, a twelve-year-old boy, was convicted of first degree child molestation. He pleaded guilty after telling the court that his attorney had read the plea statement to him, he understood it, and he had no questions about it. He is now attempting to withdraw his plea.

Defendant’s appeals team argues he was deprived of effective assistance of counsel. Prior to the trial, his public defender spent less than two hours with him. The lawyer allowed the boy’s parents to be present at the meetings, potentially interfering with a confidential attorney-client relationship. Finally, the lawyer failed to investigate the case and inadequately advised the boy of the consequences of a plea bargain.

State v. Gamble, No. 80131-2. This case is on appeal from Second Division Court of Appeals, and was consolidated with four other cases with a similar question. Defendant Gamble hosted a party for his high school friends, during which a fight broke out. During the fight Gamble struck one of the other kids, who later died as a result of his injuries. Gamble was convicted of first degree felony murder and second degree murder, both of which were later reversed. The state then filed a charge against Gamble for first degree manslaughter.

The question before the Court is whether allowing the state to file manslaughter charges after the murder convictions had been reversed violates the mandatory joinder rule (which requires that related offenses be tried together) and/or Gamble's double jeopardy rights.

State v. Mandanas, No. 80441-9. Is double jeopardy violated when a sentencing court imposes multiple firearm enhancements when the defendant's underlying crimes constitute the same criminal conduct?

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The Supreme Court issued rulings in seven cases this morning, including two highly-anticipated decisions dealing with whether an authorization to use medical marijuana is a defense to criminal possession, and whether the state's Consumer Protection Act allows out-of-state litigants to join a Washington class action lawsuit.

Clayton v. Wilson, No. 81920-3. Justice Richard Sanders wrote the unanimous ruling holding that a couple’s marital community is liable for the intentional wrongful sexual acts of one spouse. Without his wife’s knowledge, Mr. Wilson repeatedly sexually abused a neighbor boy, Andrew Clayton, whom he was paying to do yard work at the Wilson’s home. After Mr. Wilson was arrested the couple began dissolving the marriage and executed a property settlement transferring 90 percent of community assets to Mrs. Wilson (and theoretically insulating the funds from any potential lawsuit). Clayton sued, and the entire marital community was found liable because the assaults occurred while Clayton was working for the community. The trial court also found fraud in the extremely lopsided division of marital property, and voided the transfer. The Court of Appeals agreed and the Supreme Court upheld the decision.

In re the Dependency of C.S., No. 81720-1. Justice Richard Sanders wrote the unanimous opinion holding that Amy Singleton’s parental rights had been improperly terminated. Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. The Supreme Court reversed this order as the State had not offered Singleton required training that would allow her to rehabilitate.

Schnall, et al. v. AT&T Wireless Services, Inc., No. 80572-5. Should AT&T Wireless customers nationwide be allowed to pursue a class action under the WA Consumer Protection Act? Chief Justice Barbara Madsen, writing for a 5-4 majority, declined to make Washington “a locus of nationwide class action litigation.” The Court said the trial court was correct in declining to certify a nationwide class.

Drum v. State, No. 81498-8. Justice Debra Stephens, writing for a 5-4 majority, affirmed Patrick Drum’s conviction for burglary after he entered a house while high on spray paint. Drum entered a drug program and signed a Drug Court Contract, under which he agreed that the court would determine his guilt on the burglary charge if he was terminated from the program. As part of this contract, he waived various rights including the right to testify and the right to a jury trial. Drum left the drug program, and the court found him guilty of burglary. Drum appealed, claiming that there was insufficient evidence to convict him and that the contract did not fulfill due process requirements for a guilty plea. The Jefferson County Superior Court found that Drum had stipulated that the evidence was sufficient, and that the contract did not violate due process because it was not a guilty plea.

State v. Erickson, No. 81594-1. The Supreme Court unanimously upheld an assault conviction, with Justice Tom Chambers writing the opinion. Anthony Erickson was convicted of fourth degree assault and released on probation, but his probation officer claimed that he violated the terms of his probation agreement. Erickson was summoned to a probation hearing, failed to appear, and an arrest warrant was issued. Upon arrest he was found with drugs on him and convicted of possession. He appealed, claiming the arrest warrant was invalid because there was no probable cause that he had violated probation (only the officer’s word). The Court wrote: “We conclude that the warrant was valid because it was supported by a well-founded suspicion that Erickson had violated the terms of his release.”

State v. Fry, No. 81210-1. Justice James Johnson writes a 4-vote lead opinion, with four other justices agreeing in a separate opinion, that rejected a defendant’s claim that he was qualified to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana. Two police officers were informed of a marijuana growing operation at the residence of Jason and Tina Fry. The officers smelled marijuana when they approached. Fry did not consent to a search, and presented a document purporting to be authorization for medical marijuana. The officers obtained a warrant and seized over two pounds of marijuana. At trial, Fry argued to suppress the marijuana because of his medical marijuana authorization. The judge denied the motion. The Court of Appeals upheld the trial court’s decision to allow the evidence seized at the Frys’ home, and the Supreme Court affirmed.

State v. Kelly, No. 82111-9. Dustin Kelly approached a couple, threatened to kill them both, and then shot at them, killing the man. In addition to murder, he was convicted of second degree assault (intentional assault with a deadly weapon). The court imposed firearm sentence enhancements on both crimes. Kelly argues that since the use of the firearm is already an element of second degree assault, imposing the sentence enhancement on the assault essentially punishes him twice for using the firearm—a claimed violation of double jeopardy. The Supreme Court unanimously rejected this argument, with Chief Justice Madsen writing the opinion.

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The following opinions may be filed by the Washington Supreme Court:

Clayton v. Wilson, No. 81920-3. Whether a couple's community property is liable for the intentional wrongful sexual acts of one spouse perpetrated on someone employed to take care of the community property. Without his wife's knowledge, Mr. Wilson repeatedly sexually abused a neighbor boy, Andrew Clayton, whom he was paying to do yard work at the Wilson's home. When Mrs. Wilson found out she obtained a divorce and 90% of the community property. Clayton sued, and the entire community was found liable because the assaults occurred while Clayton was working for the community. The trial court also found evidence of fraud in the extremely lopsided division of marital property, and voided the transfer.

In re the Dependency of C.S., No. 81720-1. Whether sufficient evidence exists to terminate parental rights. Amy Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. She argues that the evidence is insufficient to justify the court's determination.

Schnall, et al. v. AT&T Wireless Services, Inc., No. 80572-5. Should AT&T Wireless customers nation-wide be allowed to pursue a class action under the WA Consumer Protection Act?

Drum v. State, No. 81498-8. Patrick Drum unlawfully entered a house while he was high on spray paint. Drum entered a drug program and signed a Drug Court Contract, under which he agreed that the court would determine his guilt on the burglary charge if he was terminated from the program. As part of this contract, he waived various rights including the right to testify and the right to a jury trial. Drum left the drug program, and the court found him guilty of burglary. Drum appealed, claiming that there was insufficient evidence to convict him and that the contract did not fulfill due process requirements for a guilty plea. The Jefferson County Superior Court found that Drum had stipulated that the evidence was sufficient, and that the contract did not violate due process because it was not a guilty plea. The Court of Appeals (Div. II) affirmed.

State v. Erickson, No. 81594-1. The issue in this case is whether a warrant for failure to appear at a probationary hearing requires probable cause that probation has been violated, or if it can rest on evidence of the underlying crime that led to incarceration/probation. Erickson was convicted of fourth degree assault and released on probation, but his probation officer claimed that he violated the terms of his probation agreement. Erickson was summoned to a probation hearing, failed to appear, and an arrest warrant was issued. Upon arrest he was found with drugs on him and convicted of possession. He appealed, claiming the arrest warrant was invalid because there was no probable cause that he had violated probation (only the officer's word). But the Court of Appeals decided the warrant was valid because it was for failure to appear and related back to the original crime of assault, for which there was certainly probable cause.

State v. Fry, No. 81210-1. Whether a diagnosed condition of severe anxiety, anger, and depression qualified a defendant to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana.

State v. Kelly, No. 82111-9. Whether a firearm sentence enhancement is constitutional where use of a firearm is an element of the underlying crime. Dustin Kelly approached a couple, threatened to kill them both, and then shot at them, killing the man. In addition to murder, he was convicted of second degree assault (intentional assault with a deadly weapon). The court imposed firearm sentence enhancements on both crimes. Kelly argues that since the use of the firearm is already an element of second degree assault, imposing the sentence enhancement on the assault essentially punishes him twice for using the firearm. He says that this violates the double jeopardy provisions of the state and federal constitutions.

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Here are some of the notable decisions of the Washington State Supreme Court, selected by our writers.

Community Care Coalition of Washington v. Reed – Supreme Court lacked constitutional power to prohibit Secretary of State from certifying an initiative measure as an initiative to the people (rather than to the legislature) for placement on general election ballot.

Majority Author: Gerry Alexander
Dissent Author: Mary Fairhurst
Vote: 6-3

 

 

 

 

Brown v. Owen – Senate Majority Leader Lisa Brown challenged the constitutionality of Initiative 601’s requirement that tax increases be approved by two-thirds of the legislature. The Supreme Court declined to interfere with the legislature’s parliamentary process and suggested the legislature change the law if it dislikes it.

Majority Author: Mary Fairhurst
Vote: 9-0

In re Estate of Kissinger – A man was convicted of killing his mother, but was held not guilty by reason of insanity. The Court ruled he could not later inherit a portion of the wrongful death settlement obtained by his mother’s estate.

Majority Author: Tom Chambers
Vote: 9-0

In re F5 Networks, Inc. – In a ruling that disappointed business advocates, the Court adopted the “demand futility standard,” allowing shareholders to commence litigation in the name of the corporation without first demanding action from the corporate board.

Majority Author: Tom Chambers
Vote: 9-0

State v. Garvin – The Court ruled that the Fourth Amendment prohibits police officers from conducting “squeeze searches” of objects under a suspect’s clothing when a “pat-down” is the appropriate frisking method.

Majority Author: Richard Sanders
Vote: 9-0

City of Woodinville v. Northshore United Church of Christ – The Court ruled that Woodinville violated a church’s religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court also noted that the state constitution protects religious liberty more expansively than the U.S. Constitution.

Majority Author: James Johnson
Vote: 9-0

Morgan v. City of Federal Way – An investigative report concerning the municipal court’s hostile work environment and an elected official’s wrongdoing is a public record and is subject to disclosure.

Majority Author: Susan Owens
Vote: 9-0

Briggs v. Nova Services – Upholding the state’s at-will employment policy, the Court ruled that an employer did not violate state law by terminating employees and managers who protested their executive director’s managerial decisions.

Majority Author: James Johnson
Dissent Author: Susan Owens
Vote: 5-4

 

 

 

City of Federal Way v. Koenig – A court’s administrative records are not subject to disclosure under the Public Records Act. (Madsen and Sanders did not participate.)

Majority Author: Susan Owens
Dissent Author: Debra Stephens
Vote: 7-2

 

 

 

Federal Way Sch. Dist. No. 210 v. State – The Court declined to micromanage education policy, and ruled that salary disparities between employees in different school districts do not violate the state constitution’s directive to provide “general and uniform” system of education.

Majority Author: James Johnson
Vote: 9-0

State v. Rafay – The Washington Constitution guarantees a defendant’s right to self-representation on appeal.

Majority Author: Debra Stephens
Vote: 9-0

Gold Star Resorts v. Futurewise – In a victory for property owners, the Court said the state growth board lacks authority to issue “bright-line” rules limiting rural development to a maximum of one home per five acres.

Majority Author: Barbara Madsen
Vote 9-0

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State v. Williams-Walker, No. 78611-9, consolidated with State v. Graham and State v. Ruth (briefs and arguments). Under the Sixth Amendment to the U.S. Constitution and article I, sections 21 and 22 of the Washington Constitution, the right to a jury trial requires that sentences be authorized by the jury’s verdict.

State law allows criminal sentences to be enhanced with additional incarceration if a firearm or deadly weapon is used in the commission of the crime. Where there is a finding that a deadly weapon was used, a two-year enhancement is authorized. Where the jury specifies that a firearm was used, a five-year enhancement is available.

In each of the three cases reviewed today, the juries were given special verdict forms for a deadly weapon enhancement, and they returned answers in the affirmative, but the trial courts each imposed the more severe five-year sentence enhancement.

The Supreme Court has previously stated that a defendant's right to a jury trial is violated if a firearm enhancement is imposed with the jury explicitly authorizing it. The cases today address a more nuanced question: whether a trial court can impose a firearm enhancement in the absence of a jury finding by special verdict that the defendant used a firearm, where the juries only authorized the less punitive deadly weapon enhancement.

The State argues that the firearm enhancement should be permitted in two of the cases as the juries found, through their guilty verdicts, that the defendants committed the crimes using a firearm. Ruth and Graham were both charged with first degree assault with a firearm, and a conviction requires the jury to find that a firearm was used.

The Court disagreed. “We decline to hold that guilty verdicts alone are sufficient to authorize sentence enhancements. If we adopted this logic, a sentencing court could disregard altogether the statutory requirement that the jury find the defendant's use of a deadly weapon or firearm by special verdict. Such a result violates both the statutory requirements and the defendant's constitutional right to a jury trial.”

In a 6-3 decision written by Justice Charles Johnson, the court vacated the enhanced sentences and remanded the cases for resentencing. Justice Mary Fairhurst and two others dissented.

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Tomorrow the Supreme Court will issue opinions in at least one case: 

State v. Williams-Walker, No. 78611-9. Whether the trial court’s imposition of a charged firearm sentence enhancement when the jury was instructed on and found only a deadly weapon enhancement may be harmless error under Washington law. (briefs and arguments)

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Endicott v. Icicle Seafoods, Inc., No. 82635-8. The Jones Act is a federal law that allows an injured seaman to sue his employer for negligence. Here, Justin Endicott's arm was crushed by a fish cart aboard Icicle Seafood's ship "Bering Star." He sued in King County Superior Court under the Jones Act and the doctrine of unseaworthiness. The Superior Court allowed Endicott to opt for a bench trial (no jury) and ruled for him on both claims. Icicle appeals on four grounds; the Court today addresses two: the bench trial and an award of prejudgment interest.

The decision is unanimous, and the opinion, written by Justice Stephens, includes a summary of the history of the Jones Act. On the jury trial question, the Ninth Circuit and California have held that the Jones Act grants plaintiffs "a substantive federal right to elect the mode of trial," while the Fifth and Seventh Circuits, Louisiana, and California, have found that while the plaintiff can choose "the jurisdictional basis of trial (in admiralty vs. at law) ... jury trial rights flow from this election as procedural incidents." While the trial court adopted the Ninth Circuit position, the State Supreme Court today sides with the Fifth and Seventh Circuits.

The Court holds that while the Jones Act grants Endicott the right to bring his case in state court, once he has made that decision, Washington's constitutional right to a jury trial applies. The prejudgment interest award is upheld, but only because it is permitted in a bench trial. The case is remanded for a new trial. (briefs and argument)

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Kelly, et al. v. County of Chelan, et al., No. 81855-0 (briefs and argument).The question in this case is whether after a trial court revokes a permit granted to developers, do the stay provisions of the Land Use Petition Act (LUPA) require the developers to seek a stay in order to perverse their rights on appeal. Petitioner Robert Culp, for Munson Engineers, submitted an application for Anton Roeckl for a conditional use permit to develop Roeckl’s shoreline property on Lake Chelan. In August 2005 a hearing examiner issued a conditional use permit, requiring the developers to obtain all necessary approvals within two years.

Roeckl’s neighbors, Respondents Jeff Kelly and Nancy Dorsey, opposed the project and challenged the examiner’s decision in Chelan County Superior Court. In May 2006, the trial court reversed the examiner’s decision and revoked the permit.

The developers filed an appeal, but did not seek a stay of the trial court decision or the permit time limit. The appeal proceeded beyond the two year window set by the examiners. The neighbors argued the permit had expired as the developers failed to fulfill the permit requirements within the two year limit. The Court of Appeals agreed and dismissed the case.

The Supreme Court, with Justice Charles Johnson writing, today unanimously reversed the Court of Appeals, holding that when a trial court denies a permit previously granted, that permit’s time limit is terminated unless the permit is reinstated. The Court wrote that the developers had no right to proceed with the project. The trial court order revoked the permit and in doing so terminated any applicable time limit. Thus, the stay provisions of LUPA did not apply.

The Court sent the case to the Court of Appeals to resolve other issues not yet addressed.

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The Supreme Court will issue opinions in at least two cases tomorrow.

Endicott v. Icicle Seafoods, Inc., No. 82635-8 (briefs and argument). Whether a defendant in a Jones Act, which enables maritime workers who are hurt on the job to sue their employers, is entitled to a jury trial in an action filed in state court.

Kelly, et al. v. County of Chelan, et al., No. 81855-0 (briefs and argument). Whether time limits on fulfilling the requirements of a conditional use permit continue to run pending appeal of a trial court order vacating the permit when the developer failed to request a stay of the order.

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Lallas v. Skagit County, No. 81672. When a court security guard is injured by a fleeing prisoner, does judicial immunity shield the deputy sheriff and the county from negligence liability?

A Skagit County District Judge directed a deputy sheriff to take the prisoner from the court room to jail. On the way, the unrestrained prisoner fled, knocking down and injuring a private security guard. The guard sued the deputy, the county, and the prisoner; the trial court granted summary judgment for the deputy and the county on the theory that they were protected by judicial immunity. The Court of Appeals reversed.

In an opinion by Justice Fairhurst the Supreme Court unanimously holds that escorting a prisoner is a ministerial rather than a judicial duty and therefore judicial immunity does not protect the deputy or the county from negligence liability. (briefs, argument, previous post)

State v. Pugh, No. 80850-3. Bridgette Pugh called 911 and reported that her husband, defendant Timothy Pugh, "was beating me up really bad." Police responded and arrested Timothy Pugh. Mrs. Pugh failed to show up and testify, but the recording of her 911 call was allowed as evidence. Timothy Pugh was convicted of  felony violation of a court order, domestic violence. He challenges that the admission of the recorded 911 call violated his right to confront the witnesses against him according to the Sixth Amendment of the U.S. Constitution and Article I, section 22 of the State Constitution.

Today, the Court holds that Mrs. Pugh's statements on the 911 recording were admissible: that they were nontestimonial excited utterances not prohibited by the Sixth Amendment and that they "qualify as res gestae [and as such] do not implicate Article I, section 22." Justice Madsen wrote the majority opinion and was joined by all the other justices except for Justice Chambers, who concurs while expressing "serious reservations about the broadest applications of the excited utterance rule being made in the wake of Crawford v. Washington," and Justice Sanders, who dissents. (briefs, argument)

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Satomi Owners Ass'n v. Satomi, LLC, No. 80480-0 (consolidated with Blakely Commons Condominium Ass'n v. Blakely Commons, LLC, No. 80584-9 and The Pier at Leschi Condominium Owners Ass'n v. Leschi Corp., No. 81083-4). The issue common to these consolidated cases is "whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, preempts the judicial enforcement provision of the Washington Condominium Act (WCA), RCW 64.34.100(2)." The FAA is a federal law that requires federal and state courts to enforce arbitration agreements. The WCA is a state law that allows judicial review notwithstanding any "alternative methods of dispute resolution," including arbitration.

Each case began in 2005 or 2006 as a lawsuit by a condominium owners association alleging various construction defects and related claims. Most or all of the owners in each case had signed a warranty addendum containing an arbitration clause (either requiring arbitration for any construction defect claims or giving the seller the option of requiring arbitration).

In Satomi, the trial court quashed Satomi, LLC's motion to enforce the warranty addendum and compel arbitration, holding that (1) the FAA does not preempt the WCA, (2) all parties did not sign the warranty addendum, and (3) Satomi Association was not bound by the addendum. Satomi, LLC appealed, but then the parties settled. Nevertheless, the Court of Appeals denied Satomi Association's motion to terminate review and decided the case. The Court of Appeals upheld the trial court's preemption ruling, but reversed as to the non-WCA claims (thus requiring arbitration of those claims). Satomi, LLC appealed the preemption ruling to the State Supreme Court. The Blakely and Leschi cases were subsequently consolidated with Satomi.

While recognizing the mootness of Satomi, the Court here "choose[s] to review the preemption question" because "it is one of 'continuing and substantial public interest.'" The Court reviews de novo both a trial court's decision to compel or deny arbitration and its determination of whether a state statute is preempted by federal law.

The FAA "simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms" (Volt Info. Scis., Inc. v. Bd. of Trustees). It's scope extends to "the full reach of the Commerce Clause." Here, the questions are whether the sale and warranting of the condominiums were transactions reached by the Commerce Clause and, if so, whether the WCA conflicts with the FAA and is therefore preempted in these three cases.

The State Supreme Court holds, per Katzenbach v. McClung and Beneficial National Bank v. Anderson, "that the commerce clause necessarily reaches the warranting and sale of the condominiums in Satomi because 'such goods' [that came from out of state] amount to more than 70 percent of the component parts." Because the WCA would interfere with the arbitration agreements in these cases, it is preempted by the FAA. The Court upholds the Court of Appeals that the arbitration agreements signed by condominium purchasers applies to Blakeley Association because it only asserts claims on behalf of those purchasers. The Court finds that Blakeley Association has failed to prove that the arbitration clauses were either procedural or substantive unconscionable. The Court declines to decide a number of factual and other issues, and remands Blakeley and Leschi to the trial courts.

The Chief Justice wrote the majority opinion, joined by five other justices. Justice Chambers, joined by Justices Charles Johnson and Richard Sanders, dissents with a strong argument for federalism.

The majority incorrectly frames the issue, answers the wrong question, and ignores the nature of the homeowners' claims. The issue before us is whether a claim for breach of implied warranty, established by Washington statute after consultation with the stakeholders, imposed on Washington state builders, to protect condominium purchasers in Washington State, is preempted by federal laws because some of the materials used in building condominiums came from across the border. The answer is no....

(briefs, argument)

After the jump, search incident to arrest (State v. Buelna Valdez) and attorney discipline (In re Disciplinary Proceeding Against Sanai).

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State v. Boss and Pelts, No. 81897-5 (argument and briefs). Cynthia Boss was charged and convicted of first degree custodial interference pursuant to RCW 9A.40.060 for intentionally denying Child Protective Services (CPS) access to her daughter after an order awarding CPS legal custody of the child.

Boss appealed, arguing the trial court had committed reversible error because a jury instruction omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS’s right to custody of her daughter) of first degree custodial interference, and another jury instruction impermissibly commented on the evidence. The Court of Appeals affirmed Boss’s conviction.

The Supreme Court agreed, with Justice Charles Johnson writing the unanimous opinion. The Court concluded: (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court’s comment on the evidence.

State v. Powell, No. 80496-6 (argument and briefs). In 1997, Terrance Powell was charged with aggravated first degree murder. He was found guilty, but the conviction was reversed by the Court of Appeals and remanded for retrial. At the subsequent jury trial Powell was found Powell guilty of first degree murder, and the trial judge imposed an exceptional sentence of 720 months after finding a number of aggravating factors. Powell's conviction and sentence were upheld by the Court of Appeals.

After the U.S. Supreme Court’s 2004 decision in Blakely v. Washington (which held that the Sixth Amendment prohibits judges from enhancing sentences based on facts not found by the jury), Powell filed a new appeal. The Court of Appeals reversed the exceptional sentence and remanded for resentencing. The State informed Powell of its intent to seek an exceptional sentence based on statutory aggravating circumstances. Powell moved for a standard range sentence. The trial court impaneled a jury to determine whether there were aggravating circumstances to justify an exceptional sentence.

Powell challenges the trial court’s decision on remand to impanel a jury, arguing the court had no authority to do so as the State did not give notice of intent to seek an exceptional sentence before trial.

The Supreme Court granted discretionary review and affirmed the trial court. Chief Justice Gerry Alexander wrote the 4-vote lead opinion, with two justices joining a concurrence.

We disagree with Powell’s contention that the notice provision in RCW 9.94A.537(1) requires the State give notice of its intent to seek an exceptional sentence. The statute merely states that the State “may” give notice that it is seeking a sentence above the standard sentencing range prior to trial or entry of a guilty plea. The fact that Powell was not given notice prior to trial of the State’s intention to seek an exceptional sentence does not, therefore, run afoul of the plain language of the statute.

Justice Susan Owens and two others dissented.

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Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. Pursuant to the Growth Management Act (GMA), Whatcom County adopted a "comprehensive plan" in 1997. Two months after the plan was adopted, the legislature amended the GMA to include "limited areas of more intensive rural development" (LAMIRDs). The County revised its plan seven years later as required by the GMA. On March 25, 2005, the anti-growth organization Futurewise commenced this litigation by appealing the County's plan and related ordinances to the Western Washington Growth Management Hearings Board.

Futurewise challenged that the plan violated the GMA by protecting the rights of certain rural private property owners to develop their land.

[Futurewise] argued that the County failed to update its comprehensive plan to bring it into conformity with the GMA's LAMIRD amendments in three ways: (1) the County adopted comprehensive plan policies that allow and encourage expansion of areas of more intensive growth in rural areas; (2) the plan contains descriptors for areas of more intensive rural development that do not comply with the GMA; and (3) the County established zoning designations ... that improperly apply beyond the logical boundaries of valid LAMIRDs.

Gold Star Resorts intervened because Futurewise's challenge might diminish Gold Star's property rights on a parcel Gold Star owns in Whatcom County adjacent to Interstate 5. The Hearings Board upheld five of the County's policies, but overturned a sixth because it allowed designating town boundaries "based on 'existing development'" in 2004 rather than being "restricted to the built environment as of July 1990." The Hearings Board also found that the County's criteria and analysis for determining the boundaries of LAMIRDs failed to satisfy the mandates of the GMA.

Gold Star petitioned for review and prevailed in superior court. The court determined that the Hearings Board had "improperly used a bright line rule of one residence per five acres" and that some of the issues had been litigated in a 1998 case. Futurewise appealed. The Court of Appeals overturned the lower court, holding that neither res judicata nor collateral estoppel applied and that the Hearings Board had not used an impermissible "bright line rule."

Today, the Supreme Court in an opinion by Justice Madsen unanimously reaffirms its earlier decision in Thurston County v. Western Washington Growth Management Hearings Board (2008).

First.... Futurewise could challenge the portions of the County's comprehensive plan affected by the GMA amendments pertaining to LAMIRDs but, contrary to Futurewise's argument, could not challenge any and all aspects of the plan alleged to be noncompliant with the GMA.

The second holding in Thurston County that applies here is that when differentiating between urban and rural densities, the Board cannot employ bright line rules. Thus, the Board improperly relied in this case on a "one residence per five acre" rule.

The Court remands the case to the Hearings Board to reconsider Futurewise's claims without applying a bright line rule. The Court also requires Whatcom County to update its rural development criteria based on the LAMIRD provisions of GMA and to revise its comprehensive plan. Congratulations to the Pacific Legal Foundation, which filed an amicus brief in this case against the Hearings Board's use of a bright line rule. (argument and briefs)

After the jump: Ducote v. DSHS, No. 81714-6.

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The Supreme Court will issue opinions in at least four cases tomorrow.

Ducote v. DSHS, No. 81714-6 (argument and briefs). Whether a stepparent can bring an action against DSHS for negligent investigation of an allegation. Kent Ducote was accused of sexual abuse by his stepdaughter. Based on the accusation, DSHS investigated and separated Ducote from his family for eight months. The accusations were later dismissed. Ducote sued DSHS for negligent investigation, but his suit was dismissed for lack of standing. The statutes in RCW 26.44 upon which negligent investigation is based note the “paramount importance” of the “bond between a child and his or her parent, custodian, or guardian” in their purpose clause. The trial court ruled that since the statute does not specifically mention stepparents, Ducote lacked standing to bring suit. The Court of Appeals (Div. 1) upheld the dismissal. The Washington Association of Sheriffs and Police Chiefs filed an amicus curiae brief in support of DSHS.

Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4 (argument and briefs). This case is on appeal from Division One Court of Appeals, originating from a Growth Management Hearings Board decision reviewed by the Whatcom County Superior Court. The questions before the Court concern whether the doctrines of res judicata and collateral estoppel (preventing litigation of the same question twice) apply in land use cases, and whether the Growth Management Board improperly established a bright-line rule about the density of homes allowed in rural residential areas.

Futurewise challenged Whatcom’s land use plan as noncompliant with the Growth Management Act, arguing that the rural density levels were too high and that some limited areas of “intensive rural development” were too large. Gold Star would have been harmed if Futurewise won, so it intervened in the case, arguing that the “intensive rural development” issue had already been found to comply with the Growth Management Act in a prior Futurewise case, and that Futurewise was barred from re-litigating the same issue again.

Gold Star also argues that the Growth Management Board cannot impose a bright-line standard for permissible rural densities, since local governments are given broad discretion in the Growth Management Act to tailor their plans to the particular needs of their communities.

State v. Boss and Pelts, No. 81897-5 (argument and briefs). On appeal from the Court of Appeals (Div. 1), this case originated in King County Superior Court. It concerns whether the defendant was prejudiced by two errors made by the judge in his instructions to the jury.

Child Protective Services obtained an order to take custody of Cynthia Boss’s daughter due to “imminent risk of harm,” but Boss refused to cooperate and moved to Texas. She was eventually found and charged with custodial interference. One element of this crime is that the other party (CPS in this case) has a legal right to the child, which CPS showed by offering the original order giving them custody of the child. The judge told the jury that CPS had a legal right to the girl, but Boss argued this was in error because the validity of the order had not been proven. The Court of Appeals agreed with Boss, but held it was a harmless error.

Boss also argues that her knowledge of CPS’ legal right to custody is an element of the crime, but the judge did not include that in his instruction to the jury.

State v. Powell, No. 80496-6 (argument and briefs). Can the state impanel a jury for resentencing if it did not give the defendant pre-trial notice of intent to seek an exceptional sentence?

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State v. Rafay and Burns, No. 80865-1. Petitioner Glen Sebastian Burns was convicted of aggravated first-degree murder in 2004. He appealed and requested to represent himself. The Court of Appeals denied this request. Appealing to the Supreme Court, Burns argues that article I, section 22 of the Washington Constitution guarantees the right of self-representation on appeal. The Supreme Court, with Justice Debra Stephens writing the unanimous opinion, agreed.

Previous decisions have noted that article I, section 22 provides the right of self-representation at trial, but never before had the Court considered whether this right extended to appeals. The relevant portions of the section state:

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases . . . . 

While there is no right to self-representation on appeal under the U.S. Constitution, the Court analyzed the text of the state constitution and noted that article I, section 22 provides greater protection than its federal counterpart. It guarantees the right to appeal -- the first state constitution to do so. The Court noted, however, that the right to self-representation is not absolute, and an appellate court has broad discretion to fashion an appropriate procedure for implementing this right.

The Court reversed the Court of Appeals and remanded Burns' case for further proceedings.

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State v. Harrington, No. 81719-7. With a unanimous opinion by Justice Richard Sanders, the Court today reverses the Court of Appeals, suppresses the evidence of methamphetamine used to convict Dustin Harrington, and dismiss the case.

Harrington was walking down a street around 11 p.m. when Richland Police Officer Scott Reiber stopped to talk with him. Reiber did not activate his lights or siren and did not block Harrington's path. During the contact, Reiber told Harrington to keep his hands out of his pockets and a State Patrol officer also stopped and stood nearby. Eventually Reiber asked to frisk Harrington and discovered a meth pipe and a baggy containing the drug.

The Court holds that Harrington was subjected to a "progressive intrusion" that eventually violated his state constitutional rights.

Requesting to frisk is inconsistent with a mere social contact. If Reiber felt jittery about the bulges in Harrington's pockets, he should have terminated the encounter--which Reiber initiated--and walked back to his patrol car. Instead Reiber requested a frisk.

When Reiber requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize Harrington. A reasonable person would not have felt free to leave due to the officers' display of authority.

We note this progressive intrusion, culminating in seizure, runs afoul of the language, purpose, and protections of article I, section 7. Our constitution protects against disturbance of private affairs -- a broad concept that encapsulates searches and seizures. Article I, section 7 demands a different approach than does the Fourth Amendment; we look for the forest amongst the trees. ...

Because Harrington's consent to the search was obtained through exploitation of a prior illegal seizure, suppression of the evidence is required.

(briefs, argument)

State v. League, No. 82991-8. Tony League was convicted of robbery and unlawful imprisonment. The Court of Appeals found the two crimes merged but failed to vacate the lesser conviction and only remanded the case for resentencing. In a per curiam opinion, the Court grants League's petition for review, reverses in part the Court of Appeals, and remands to the trial court to vacate the unlawful imprisonment conviction and resentence League for his remaining conviction.

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State v. Winterstein, No. 80755-8 (briefs and argument). Terry Lee Winterstein was convicted of unlawful manufacture of methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search, and the probation officer had searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The Supreme Court, Justice Debra Stephens writing, overturned Winterstein’s conviction and remanded the case for a new suppression hearing. The Court categorically rejected the inevitable discovery doctrine.

The Court first addressed whether the probation officer’s search of the Winterstein’s former residence was proper. It’s generally recognized that individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation. But the Court said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search. “In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Turning to the inevitable discovery argument, the Court noted that it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy. As Justice Stephens wrote, admitting evidence under the inevitable discovery doctrine would leave no incentive for the State to comply with the constitution's requirement that arrests precede searches.

Justice James Johnson, joined by Justices Owens and Fairhurst, concurred with the decision to remand the case, but objected to the majority’s analysis of the inevitable discovery issue. Johnson wrote that it wasn’t necessary to address the issue and that the Washington Constitution allows inevitable discovery in some limited circumstances.

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In a brief opinion, the Supreme Court overturned a traffic conviction as the police officer had insufficient authority to issue a citation. State v. Magee, No. 81746-4.

Andrew Magee was cited for second degree negligent driving when the state patrol received reports from other drivers that a vehicle was traveling the wrong direction on the highway. A trooper was dispatched, and she found Magee parked nose-to-nose with a friend’s car, facing the wrong direction on the shoulder of the SR 512 on-ramp. The trooper assumed Magee had driven against traffic in order to get in this position, and cited him for negligent driving. Magee challenged the infraction. He contending the officer did not have the authority to issue a citation when she had not witnessed an infraction.

RCW 46.63.030 lists the instances where a law enforcement officer has the authority to issue a notice of traffic infraction:

(a) When the infraction is committed in the officer’s presence;

(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;

(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident has committed a traffic infraction;

(d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or

(e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170.

The Supreme Court, with Justice Tom Chambers writing, overturned Magee’s conviction. “RCW 46.63.030 plainly requires us to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. There is no contention subsections (b) through (e) apply in this case. Instead, the State argues that the trooper actually witnessed the citable offense because the negligent behavior was "ongoing." But negligent driving in the second degree is a moving violation. For the infraction to be valid, the movement must have been made in the officer’s presence.

Justice Barbara Madsen filed a concurring opinion, agreeing with the result, but pointing out that the infraction could have been initiated by a prosecuting authority, in which case the limitations of RCW 46.63.030 would not apply. (Briefs and Argument)

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The Supreme Court will issue opinions in at least two cases.

State v. Magee, No. 81746-4 (briefs and argument). This case addresses whether a police officer had authority to issue a ticket for a traffic infraction that was not committed in the officer’s presence. In driving to help a friend whose car had stalled on a freeway, Andrew Magee made a U-turn on an on-ramp, parking his car backwards on the shoulder to be nose-to-nose with the other car. A state trooper responded to a report of a car driving backwards, and upon seeing Magee’s car she assumed it was him, issuing him a traffic citation. Magee argued there was insufficient evidence to prove the infraction, and that the trooper had no authority to issue the ticket because she didn’t see him driving backwards. Both the Superior Court and Appeals Court upheld the conviction.

State v. Winterstein, No. 80755-8 (briefs and argument). Can a probation officer conduct a warrantless search of a home if facts support the officer’s belief that the probationer lives in the home?

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Alhadeff v. Kitsap Cmty. Fed. Credit Union d/b/a Kitsap Credit Union, No. 81833-9. A swanky condominium project, "The Meridian on Bainbridge [Island]," flopped, leaving the courts to sort through a letter of credit (LOC) controversy that the Supreme Court today deems "significantly more complex than a typical LOC transaction." 

Developer Meridian received a construction loan from Kitsap Credit Union for $4,500,000. The Credit Union required that Meridian contribute equity in the form of a $1,000,000 LOC. Meridian arranged for the LOC from investor Jack Alhadeff, who authorized his bank, Wells Fargo, to issue the LOC to Kitsap Credit Union. The terms of the LOC required the Credit Union to certify that Meridian was not in default before drawing on the LOC.

Kitsap Credit Union drew on the letter three times, in May, June, and July of 2004, exhausting the full $1,000,000. Despite the Credit Union's certification each time that Meridian was not in default, two "events of default" had already occurred: a tax deficiency and the imposition of a construction lien by a contractor. The Credit Union was also aware that Meridian was exceeding its budget. In September 2004, Meridian asked the Credit Union for a further loan. The Credit Union eventually declared Meridian in default in November 2006.

In August 2006, Alhadeff sued Kitsap Credit Union alleging eight causes of action related to the LOC. The trial court granted the Credit Union's motion for summary judgment, finding the situation covered by U.C.C. Article 5 and the claims thus barred by the one-year statute of limitations. Alhadeff appealed, the Court of Appeals reversed the trial court, and Kitsap Credit Union appealed.

Today, the Supreme Court unanimously reverses the Court of Appeals, holding that the U.C.C. Article 5 statute of limitations does apply and that none of Alhadeff's claims survive summary judgment. Justice James Johnson wrote the opinion, which includes a helpful Diagram of Letter of Credit Transaction. And somewhere in there, reversed Court of Appeals Judge Theodore Spearman administered this author's oath of attorney. (briefs and argument)

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Magana v. Hyundai Motor Am., No. 80922-4. In a 7-2 vote, the Washington Supreme Court  reinstated an $8 million default judgment against the Hyundai Motor Company for its “willful efforts” to undermine pretrial discovery in a personal injury lawsuit brought against the company.

Jesse Magaña was riding in a 1996 Hyundai Accent, driven by Ricky Smith. They saw an oncoming truck driven by Dennis Nylander that appeared to be in their lane. Smith swerved, driving the car off the road. Magaña was thrown out of the rear window and was rendered a paraplegic due to his injuries.

Magaña filed suit against Hyundai Motor America and Hyundai Motor Company, the Smiths, and the Nylanders. At trial one of Magaña’s expert witnesses testified that a different seat belt design would have prevented Magaña’s injuries. Magaña prevailed at trial and was awarded over $8,000,000 in damages. On appeal the Court of Appeals reversed the ruling as it applied to Hyundai, and remanded for a retrial to address the issue of liability.

Prior to the retrial, Magaña moved for a default judgment against Hyundai. He argued it was impossible to prepare a case based on Hyundai’s responses to discovery in the original trial and in preparation for the retrial. The trial court agreed, and imposed a default judgment against Hyundai. The court found there was no agreement between the parties to limit discovery, that Hyundai falsely responded to Magaña’s interrogatories, that Magaña was substantially prejudiced in preparing for trial, and that evidence was spoiled and forever lost. The trial court decided the only suitable remedy was a default judgment.

The Court of Appeals reversed this ruling, writing that there was “no prejudice to Magaña’s ability to retry his case resulting from Hyundai’s discovery violations” and that lesser sanctions would have been appropriate.

Today the Supreme Court, with Justice Richard Sanders writing for the majority, overturns the Court of Appeals and reinstates the $8 million default judgment. Court rules authorize a trial court to impose sanctions when a party fails to satisfy discovery requests, which can range from exclusion of evidence to default judgment. Harsh sanctions are justified when: “(1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed.”

The Supreme Court ruled that the trial court had correctly found Hyundai’s responses to Magaña’s request for production and interrogatory “false, misleading, and evasive,” and that these actions substantially prejudiced Magaña’s ability to prepare for trial. The Court reinstated the default judgment, and awarded Magaña reasonable attorney fees and costs.

Justice James Johnson (joined by Chief Justice Gerry Alexander) dissents, writing that while Hyundai willfully violated discovery rules, the record did support the “substantial prejudice” and “lesser sanctions” prongs are not established on this record.

(Briefs & Argument)

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The Supreme Court will issue opinions in two cases tomorrow: 

Alhadeff v. Kitsap Cmty. Fed. Credit Union d/b/a Kitsap Credit Union, No. 81833-9. Whether a financier who authorized his bank to issue a letter of credit to a credit union on behalf of a developer could sue the credit union for damages and equitable relief after the developer defaulted on the letter of credit agreement.

Magana v. Hyundai Motor Am., No. 80922-4. Whether the trial court abused its discretion by entering a default judgment in a product liability action as a sanction for the defendant's willful failure during discovery to disclose similar claims against it.

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State v. William Joseph Kramer, No. 81071-1. All City Bail Bonds posted a $20,000 appearance bond for William Kramer, who subsequently failed to show up for his court hearing. The bond was ruled forfeited. All City attempted to persuade Kramer to turn himself in, and seven days after the missed hearing Kramer was re-arrested. All City requested that the order forfeiting the bond be vacated, but the state opposed and the trial court "found it was 'equitable to forfeit the bond because All City Bail Bonds did not take action to secure the defendant's presence in court.'" The Court of Appeals agreed.

The Court today reverses the courts below and holds that RCW 10.19.105 requires the bond be repaid minus any costs from recapturing Kramer. The opinion by Justice Madsen, joined by four other justices, quotes State v. Jackschitz, 76 Wash. 253, 136 P. 132 (1913).

Bail is not taken on forfeiture as money is taken for a debt due upon a valid consideration. The object of bail is to insure the attendance of the principal and his obedience to the orders and judgment of the court. There should be no suggestion of bounty or revenue to the state or of punishment to the surety.

Justice Fairhurst, joined by the Chief Justice and Justices Stephens and James Johnson, dissent.

Under the majority's decision, a surety is now free to ignore, or even be complicit in, a defendant's failure to show up for court-ordered appearances for a 60-day period without concern that its bond moneys will not be returned. The majority's decision rewrites Washington's bail bond statutes and dangerously undercuts the financial incentive for sureties to ensure defendants comply with the terms of bail. In doing so, the majority's decision fails to respect the balance of incentives for sureties spelled out by the legislature in chapter 10.19 RCW and undermines the equitable role of the trial court.

(Briefs, Argument)

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In re the Personal Restraint Petition of Beito, No. 77973-2. Jessica Dawn Seim was 14 when she was raped and murdered by Corey Beito, who was arrested and charged with aggravated murder in the first degree. Beito eventually pleaded guilty to murder in the first degree and was given an "exceptional sentence" above the standard range of 291 to 388 months in prison. Beito had admitted to both the rape and the murder; the connection between them was the grounds for the above-range sentence. Beito challenges that sentence in light of Blakely, which was decided before Beito's sentence became final. The Court today, in an opinion by Justice Charles Johnson and joined by six other justices, reverses Beito's sentence and remands for sentencing within the standard range.

A review of the record shows Beito did not stipulate to the exceptional sentence or the fact that the rape was motive for and closely connected to the murder. Under Apprendi, without such an admission by Beito, a jury and not the trial court should have determined whether aggravating factors that support an exceptional sentence (if any) existed. We hold that, without more, the trial court violated Beito's Apprendi/Blakely Sixth Amendment right to a jury trial.

Justice James Johnson, joined by Justice Fairhurst, dissents and argues that Beito stipulated to all the relevant facts and avoided a jury trial and that any remaining error was harmless. (briefs and argument)

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The Supreme Court today says that education salary disparities between school districts do not violate the Washington Constitution. The case is Federal Way School District 210 v. State, No. 80943-7 (briefs and argument).

In 2006, the Federal Way School District, along with district employees, parents and students, sued the state, arguing that funding disparities violate the duty of a “general and uniform” school system. Education funding is a complex formula of federal, state, and local funds that are distributed to individual school districts, and employees in different districts are often paid different amounts. For example, the State allocation to districts for the 2007-08 school year ranged from $32,746 to $34,612 among teachers and from $54,405 to $80,807 for administrators.

King County Superior Court Judge Michael Heavey ruled that the state’s funding model violates the “general and uniform” duty, and violated the state’s equal protection clause by paying similarly-situated school employees differently.

There are two educational sections of the state constitution at play here. One requires the state to make “ample provision” for the education of all children (Art. IX, Sec. 1), while the other section mandates a “general and uniform system of public schools” (Art. IX, Sec. 2).

The plaintiffs argued that the “general and uniform” provision is violated when school employees are paid different amounts. They argue the state’s obligation is not just ample funding, but ample funding within a general and uniform system. In response, the state argued that where the “ample provision” for basic education is met, variances in school funding allocations are of no constitutional significance. The constitutional duty is to create a common education system (uniform academic learning requirements, graduation standards, teacher licensing standards, uniform discipline standards), not to guarantee precisely equal funding to every district.

The Supreme Court, with Justice Jim Johnson writing the unanimous decision, soundly rejected the school district’s case—ruling to uphold the existing funding allocation system.

The Court wrote that education funding has historically varied statewide, and that the legislature has attempted to shrink disparities over time. The uniformity requirement, according to the Court, means that every child has the same educational advantages. “Our cases discussing article IX, section 2 make it clear that the provision requires uniformity in the educational program provided, not the minutiae of funding.” The Court also ruled that the individuals parents, students, and teachers challenging the funding allocation model are unable to show any direct harm and therefore are not able to challenge the funding model.

The legislature’s use of the staff unit allocation system to fund education with differing salary allocations to school districts with historically disparate average salaries does not violate article IX, section 2, although there remains a slight gap between the highest and lowest salary funding statewide. There is no showing that the legislature’s funding allocations, including those for Federal Way School District, do not constitute “ample provision for the education of all children” as required under article IX, section 1. The legislature has acted well within its constitutional authority and its duty to make ample provision for the education of children and to provide for a general and uniform system of education under article IX. The individual respondents’ claims do not meet requirements for justiciability and should be dismissed. Accordingly, we reverse.

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The Supreme Court will issue opinions in at least two cases tomorrow.

Federal Way School District 210 v. State, No. 80943-7 (briefs and argument). Whether salary disparities between school districts are unconstitutional. The Washington Constitution states that “The legislature shall provide for a general and uniform system of public schools.” Art. IX, § 2. Historically, the state pays different amounts per teacher to different school districts, based in part on the salary levels of those districts when the system was initiated. The Federal Way School District, individual teachers, and students sued the state, claiming that this unequal funding violates the constitution because it is not “general and uniform.” The King County Superior Court agreed, finding that the differences in funding had no relation to differences in education costs. The state counters that its constitutional duty is to create a common education system, not to guarantee precisely equal funding to every district. This case is on direct appeal from superior court.

This case has the potential of significantly altering school funding allocations. A ruling for the school district favor would have no immediate impact—the ruling would be declaratory in nature, and it would be up to the state legislature to respond and design a general and uniform education funding model within the guidelines of the ruling. During argument the justices seemed reluctant to meddle in the educational decisions of the legislature.

In re the Personal Restraint Petition of Beito, No. 77973-2 (briefs and argument). This case arises out of the Court of Appeals (Div. 2), and concerns whether it is a violation of due process for a trial court judge to set an exceptional sentence based on facts which were not proven beyond a reasonable doubt to a jury.

Beito pleaded guilty to first degree murder of a 14-year-old girl, with a maximum penalty of 374 months in prison. The trial court sentenced him to 504 months after finding aggravating circumstances demonstrating he also committed third degree “rape of a child” in connection with the murder. The finding was based on factual statements that were agreed to by Beito, but he did not agree there was a connection between the rape and murder. That was determined by the judge. He filed a Personal Restraint Petition alleging due process and double jeopardy violations. The Court of Appeals dismissed the petition.

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With the news that Justice Barbara Madsen will be the Washington Supreme Court’s next chief justice, we thought this would be a good opportunity to review some of her noteworthy opinions. Since her election to the court in 1992, Justice Madsen has written a number of significant opinions in areas such as campaign finance, gay marriage, property rights, nude dancing ordinances, and constitutional interpretation.

Continue Reading...

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In re the Estate of Borghi, No. 80925-9. Jeanette Borghi purchased a parcel of property in 1966 subject to a real estate contract. Nine years later she was married and a few months after that, a special warranty deed was issued to her and her new husband in both their names. She died intestate (without a vawill) in 2005, leaving her husband, Robert, and her son from a previous marriage, Arthur Gilroy, as heirs.

If the land was Jeanette Borghi's separate property, Gilroy is entitled to a half-interest in it. If it was community property, it passes to the husband's estate (he followed his wife in death). The character of the property is the question before the Court. Four justices join a lead opinion by Justice Stephens, holding that the property was and remained Jeanette Borghi's separate property.

The lead opinion reiterates that the character of property is established at the time of acquisition. In this case, the property was acquired by Borghi in 1966. Thus it was brought into her second marriage as her separate property, with a presumption that it remained her separate property. That presumption can only be overcome by "clear and convincing evidence." The lead opinion holds that the inclusion of both names on the title was insufficient to change the character of the property and goes on to discuss what kind of evidence might meet that standard.

Justice Madsen writes a short concurrence, providing the tie-breaking fifth vote but narrowing the holding. She argues that the discussion of what sort of evidence in addition to the deed is necessary to achieve the "clear and convincing" standard is unnecessary since no such evidence was presented in this case.

Four justices dissent in an opinion by Justice Owens that argues for a stronger "community titling presumption." (Briefs and argument)

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Tomorrow the court will release opinions in at least one case.

In re the Estate of Borghi, No. 80925-9. This case is on appeal from the Court of Appeals (Div. 1), and concerns a probate dispute over whether a parcel of real property is community or separate property. The Court must decide whether real property contracted for before marriage remains the separate property of the purchasing spouse, even though the property deed was issued after the marriage and names both spouses. (Briefs and argument.)

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Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9. Both Scott Winebrenner and Jesus Quezada were arrested multiple times for driving under the influence. Each had a deferred prosecution agreement from one arrest which they violated with a subsequent arrest. The question is whether the subsequent offense constituted a "prior offense" at the time of sentencing. The Court holds that RCW 46.61.5055's use of "prior offense" is ambiguous because it is "subject to more than one reasonable interpretation." The rule of lenity requires "that an ambiguous criminal statute cannot be interpreted to increase the penalty imposed." The Court unanimously holds that offenses committed after the original offense are not "prior offenses" and cannot be considered at sentencing for the original offense. Justice Chambers wrote the lead opinion. Justice Madsen, joined by Justices Charles Johnson and Fairhurst, concurs in the result but believes the statute unambiguously requires it. (briefs and argument)

Kitsap County Deputy Sheriff's Guild, et al. v. Kitsap County, et al., No. 80720-5. Kitsap County Sheriff's Deputy Brian LaFrance was fired after he allegedly became unstable and dishonest with his superiors. The County had previously entered into a collective bargaining agreement with the Deputy Sheriff's Guild that allowed the Guild to file a grievance and put the matter into binding arbitration. The arbitrator found that the county had proven the 29 charges against LaFrance but had not shown that dismissal was the appropriate remedy and ordered his reinstatement. It did not order back pay, but did require that he be provided retroactively the benefits that he would have received if he had remained a deputy and unemployment benefits.

The Guild alleges that because the arbitrator ordered LaFrance's reinstatement, the County is obligated to pay LaFrance's back pay. The County challenges that the arbitrator's order is unenforceable because it "violate[s] an explicit, well defined, and dominant public policy." The Court today, in an opinion by Justice Owens, holds that even if "the arbitrator's decision was not good public policy," the County failed to show that it contravened a clear public policy. Collective bargaining agreements and arbitration clauses, the Court suggested, should be deferred to where possible to protect parties' freedom of contract. The Court also upholds the arbitrator's refusal to provide back pay to LaFrance.

Justice James Johnson dissents, finding a sufficient public policy interest exemplified in the law enforcement officer's "oath to truly, faithfully, and impartially perform his duties," that he would overturn the arbitrator's decision to reinstate LaFrance. He is joined by the Chief Justice and Justice Pro Tem. Teresa Kulik. (briefs and argument)

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State v. Webb, No. 81314-1 (briefs and argument). Seattle radio personality Mike Webb was convicted of filing a fraudulent insurance claim in 2007 and was ordered to pay certain financial penalties. He filed a timely notice of appeal. While the appeal was pending Mr. Webb was tragically murdered and his body was discovered in the crawl space under his home about two months after his death. Mr. Webb’s attorney filed a motion in the Court of Appeals to abate the appeal and the underlying conviction and financial obligations. The Court of Appeals denied the motion, relying on past cases that dealt with the death of a criminal defendant.

The Supreme Court reviewed the question to determine whether the deceased defendant’s right to appeal requires that the conviction be abated. The Court held that appellate rules allow for the substitution of parties on appeal, which would be the appropriate method for heirs to challenge any financial obligations imposed on the defendant. Consequently, the Court ruled that as Mr. Webb died during his appeal, his heirs could be substituted. If no motion for substitution is filed, the Court directed that the appeal be dismissed and the conviction and all financial obligations shall remain in effect. 

The Court reversed the Court of Appeals and remanded the case to allow for a substitution of parties. Justice Barbara Madsen wrote the opinion of the Court. Justice Richard Sanders dissented, criticizing the practical difficulties the decision created. “Obviously the substituted heir would not be subject to the same criminal penalties of the deceased defendant, and therefore, it is a stretch to say that ‘the interest of a party in the subject matter of the review has been transferred.’”

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The Supreme Court will issue opinions in at least three cases tomorrow.

Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9 (briefs and argument). These consolidated cases are up on appeal from the Court of Appeals (Div. 1), and concern the question of whether current law allows DUI sentences to be increased based on multiple offenses committed within seven years of the present offense, or just those committed in the prior seven years. Both Winebrenner and Quezada had multiple DUI incidents within a seven year period, and their level of sentencing depends on how the law requiring increased sentences for “prior offenses within seven years” is applied.

Kitsap County Deputy Sheriff's Guild, et al. v. Kitsap County, et al, No. 80720-5 (briefs and argument). Whether an arbitrator’s award reinstating a police officer who was terminated for erratic conduct and acts of dishonesty is unenforceable as contrary to public policy.

State v. Webb, No. 81314-1 (briefs and argument). On appeal from the Court of Appeals (Div. 1), the question is how a criminal case on appeal should be reviewed when the defendant dies while the appeal is pending. Well-known KIRO-AM radio host Mike Webb was convicted of a fraudulent insurance claim, which he appealed. While the appeal was pending Webb was murdered in his home. When his body was finally two months later, his attorney asked the Court of Appeals to dismiss the conviction or at least review the appeal for meritorious issues. The Court disagreed, affirming the conviction and the accompanying fines, court costs and restitution. Webb’s counsel appealed.

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In re Det. of Fair, No. 80498-2. David Tyler Fair was charged with molesting several young girls, plead guilty to one count of second degree child molestation, and was sentenced to 20 months in prison. The sentence was suspended as part of a Special Sex Offender Sentencing Alternative (SSOSA). Fair failed to meet the requirements of that sentence, committed a robbery, then fled the state. Eventually, after being imprisoned in New Mexico, Fair was returned to Washington to serve his original sentence and the robbery sentence. In a treatment program, he admitted numerous other sexual contacts with children between 2 and 12 years old. The State petitioned to have Fair committed as a sexually violent predator.

Fair challenged his commitment, arguing that the State was required to "plead and prove a recent overt act." The Court today holds that the Sexually Violent Predator Act (RCW 71.09) only requires the state to prove a recent act if the person is not incarcerated. The Court further holds that this interpretation of the Act does not violate Fair's right to due process, in part because "due process does not require that the absurd be done before the compelling state interest can be vindicated." Justice Jim Johnson wrote the lead opinion, joined by Justices Madsen and Owens. Justice Fairhurst, joined by Justice Charles Johnson, concurs, but offers a slightly different analysis.

Justice Sanders, joined by the Chief Justice, dissents, arguing that the statute plainly requires that a person must be in total and continuous confinement following the original sex offense. Because Fair was originally released and only later incarcerated, and because he was actually serving only the robbery sentence at the time of the commitment proceedings, the dissent would require the state to plead and prove a recent overt act. Justice Chambers joined the dissent, but only as to the result.

In re Pers. Restraint of Duncan, No. 81230-6. Bryan Duncan challenges his commitment as a sexually violent predator based on several evidentiary rulings of the trial court. Duncan was convicted of three counts of first degree child molestation in 1992 and 1993. The State moved to commit him in 1996 and he was finally committed in 2005 (the Court notes that the nine-year delay is troubling, but was mostly attributable to Duncan and was not raised as an issue). Duncan challenges the trial court's admission of evidence that he refused a psychological evaluation and its refusal to allow Duncan to present evidence about the treatment program at the Special Commitment Center and about his proposed roommate if he was released.

The Court today holds, in an opinion by Justice Chambers, that the trial court did not abuse its discretion in the evidentiary rulings. Justices Charles Johnson, Madsen, Owens, Fairhurst, and Jim Johnson and Justice Pro Tem. Philip Thompson joined the majority opinion.

Justice Sanders dissents, arguing that allowing the reference to Duncan's refusal to be reevaluated was "irrelevant and prejudicial." He would also find the refusal to allow Duncan's evidence about his proposed roommate after the state had introduce its evidence about the roommate to be reversible error. The Chief Justice, in a separate dissent, agrees with Sanders except that he would find the trial judge "impermissibly commented on the evidence by stating to the jury that Duncan 'did not wish' to be reevaluated."

State v. Patton, No. 80518-1. Randall Patton was wanted on a felony warrant when a Skamania County Sheriff Deputy spotted him. Patton was leaning into his own car through the window, rummaging with something on the seat. The Deputy told Patton he was under arrest and Patton fled, but was soon apprehended inside a trailer. Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals. Today, the Supreme Court unanimously sides with Patton and the trial court.

The Court first disagrees with the trial court, which had found that Patton was not arrested until he was taken into custody in the trailer. He was arrested when the officer "manifest[ed] an intent to take [him] into custody" while Patton was standing by his car. Nevertheless, "the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence."

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Justice Stephens wrote the majority opinion, joined by all other justices except for Justice Jim Johnson, who concurred but found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.

Thompson v. Hanson, No. 81311-6. The Court resolves a dispute between the Courts of Appeals over Washington's Uniform Fraudulent Transfer Act (UFTA). Division Three had held that a creditor can only enforce their rights against a transferee who has received fraudulently conveyed property from a debtor if the transferee had "intent to hinder or delay [the] creditors." Today, the Court unanimously eschews that position and upholds a Division One ruling that no proof of intent is required by the UFTA. Justice Owens writes the main opinion and Justice Madsen concurs, but would not have reached one of the issues (the "offset" provision) addressed by Owens.

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State v. King, No. 80948-8. Tyler King was riding his motorcycle southbound on Interstate 5 north of Vancouver city limits when he was stopped and issued a criminal citation for reckless driving by Vancouver police officer Jeff Starks. King had stood up on the pegs of his motorcycle, looked at the vehicle he was approaching, and  accelerated to pass the vehicle. King and Starks both testified at the trial, offering different interpretations of the facts. Starks offered opinion testimony that King's driving had been reckless, which King's attorney did not object to at trial but then raised on appeal. King also challenged that the officer was outside of his jurisdiction without an interlocal agreement and without satisfying the statutory emergency exception.

Yesterday, the Supreme Court sided with King and held that Starks did not have jurisdiction to issue the criminal citation. The Court, in an opinion by Justice Sanders and joined by four other justices, determines that Stark's  interpretation of King's actions would not have constituted "an emergency involving an immediate threat to human life or property."

King did not nearly hit another car, nor run a light, nor weave across traffic lanes. He did not pop a wheelie, cut off another car, nor, for that matter, drive in reverse along the shoulder. At most, King glared at the driver of the large truck, stood on his foot pegs for three to five seconds, and accelerated at high speed past the truck. As aforementioned, Starks could not verify that King accelerated away at what he thought was 100 m.p.h. Even so, the officer testified King slowed down as he approached other traffic and pulled over immediately when Starks signaled him to do so.

The majority concludes that the trial court was wrong to simply take the definition of reckless driving and assume that it "automatically fit within the emergency exception." The majority also suggests that the Court of Appeals erred in concluding that the opinion testimony issue was foreclosed by the lack of an objection at trial. Justice Chambers, who signed the majority opinion, wrote separately to respond to the dissent. Justice Fairhurst, joined by Justice Madsen, concurrs while arguing that "it is unnecessary to discuss, even as dicta, the officer's opinion testimony."

The Chief Justice, joined by Justice Owens, dissents.

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Post v. City of Tacoma, No. 80684-5. The City of Tacoma levied hundreds of thousands of dollars in fines against Paul Post for multiple building code violations. Tacoma's procedures only allowed Post to appeal the initial fine for a particular violation and not subsequent fines issued for the same violation. He appealed many of the fines, losing at every level. The Court of Appeals held "that all Post's claims were barred because he failed to follow the procedures in the Land Use Petition Act (LUPA)."

Today, the Supreme Court overturns the Court of Appeals and holds that LUPA does not apply to the use of "civil infractions" that levy fines to enforce a building code. Further, the Court agrees with Post that due process requires that he "must have an opportunity to be heard on each separate infraction, even if they are issued (i.e., penalties are being assessed) daily for the same violation." Tacoma's process at issue here is held facially unconstitutional. Justice James Johnson wrote the majority opinion, joined by Justices Sanders, Chambers, Owens, and Stephens.

The Chief Justice concurs as to the result, arguing that the court should have avoided the constitutional question and struck down Tacoma's process as a regulation "in conflict with general laws." Justice Sanders, who joins the lead opinion, also writes separately to concur with the Chief. Justice Madsen writes a vigorous dissent, joined by Justices Fairhurst and Charles Johnson, arguing that LUPA does apply.

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The Supreme Court has rejected a public records request for local court documents, ruling that the court system is not subject to the state's Public Records Act.

David Koenig requested records from the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hartl and correspondence to and from presiding Federal Way Municipal Court Judge Michael Morgan. The City of Federal Way provided 183 pages of documents but refused to provide Judge Morgan’s correspondence. The City asserted that the court was not subject to the Public Records Act, which gives the public access to documents held by government agencies. The trial court agreed, and Koenig appealed to the Supreme Court.

The Supreme Court today, with Justice Susan Owens writing the 6-3 majority, upheld the trial court. The court reaffirmed its ruling in Nast v. Michels (1986), in which the court held that the PRA does not apply to court case files because the judiciary is not included in the PRA's definition of “agency.” Koenig had argued that Nast only applied narrowly to internal case files, but should not be extended to administrative court records. The court disagreed. Justice Owens wrote: “This court has already ruled on the issue of whether the judiciary is subject to the PRA, and Koenig has not demonstrated that the established rule is incorrect and harmful. Therefore, we affirm the trial court’s holding that the PRA does not require the City to release the requested judicial records because the PRA does not apply to the judiciary.”

Justice Pro Tem Kevin M. Korsmo concurred in a separate opinion, writing that in his opinion Nast was decided improperly but the court was bound by its previous decisions until the legislature chooses to amend the PRA to extend to the judiciary.

Justice Debra Stephens, along with Chief Justice Alexander, dissented, arguing that court clearly fall under the statute. “In my view, Nast should be read narrowly as construing the Public Records Act (PRA) within the context of the records at issue there: court case files. Accordingly, it does not bind us to an interpretation of the current act, chapter 42.56 RCW, that categorically excludes the judicial branch of government from the mandate for open government. Because I believe our branch of government is an ‘agency’ subject to the strictures of the PRA, I respectfully dissent.”

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Tomorrow the Supreme Court will issue a ruling that could result in the most significant expansion of the state’s Public Records Act since the act was adopted in 1973. The issue in City of Federal Way v. Koenig, No. 82288-3, is whether some or all court records are subject to disclosure under the Public Records Act.

David Koenig requested records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl and correspondence of Judge Michael Morgan. The city determined that several court records were not disclosable. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels (1986), where the Supreme Court held that courts are not “agencies” under the Public Records Act. Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.

Also up for tomorrow: Post v. City of Tacoma, No. 80684-5 (whether a city’s assessments of monetary penalties for building code violations constituted “land use decisions” subject to the Land Use Petition Act) and State v. King, No. 80948-8 (whether a policy officer was justified in stopping a motorcyclist outside the officer’s jurisdiction when the officer observed the traveling motorcyclist stand momentarily on his foot pegs, look at a vehicle next to him, and accelerate away at high speed).

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Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3. Abbey Road Group intended to build a 575-unit condominium complex in Bonney Lake. On October 12, 2005, Abbey Road filed a site plan application ("Commercial or Multi-family Site Plan Review Application Form Type 3 Permit"). Later that day, the City passed an ordinance down-zoning Abbey Road's property from commercial to "Residential/Conservation District." Abbey Road appealed, alleging that their development rights had vested with the filing of the site plan application. The hearing examiner disagreed, finding that development rights could not vest until the filing of a building permit application (RCW 19.27.095). The Superior Court reversed and then the Court of Appeals reinstated the hearing examiner's ruling in favor of Bonney Lake.

The Court today upholds the Court of Appeals with a lead opinion by Justice Charles Johnson, joined by Justices Owens and Stephens. The opinion upholds the statutory rule and refuses to allow development rights to vest before the filing of a building permit. A concurrence by Justice Madsen, joined by Justice Fairhurst, suggests that Abbey Road should have prevailed if it had filed a building permit application at the same time it filed the site plan application, even though Bonney Lake indicates that a building permit application is only complete if it includes an approved site plan.

Justice Sanders dissents, joined by the Chief Justice and Justices Chambers and James Johnson.

The problem with the lead and concurring opinions is not only that they come to the wrong conclusion, but they muddle and finesse an area of the law where certainty is critical. The State and localities have a great deal of discretion to determine by ordinance what the rules shall be. But the property owner has a constitutional right to proceed under current ordinances by submitting a complete building permit application to vest its rights at any time of its choosing. When the government prevents him from doing this, it deprives the developer of his property without due process of law.

(briefs and arguments, LibertyLive.org: Is land development really against the "public interest"?)

In Re Detention of Strand, No. 80570-9. In 1992, John Strand was convicted of first degree child molestation and resisting arrest and sentenced to 150 months imprisonment and 36 months in community placement. Prior to his release, the state conducted a mental health evaluation that was subsequently used as evidence to commit Strand under the State's sexually violent predator statute (RCW 71.09.025). Strand challenged the use of the mental health evaluation, alleging violations of the statute, violations of his right to counsel, and that the State failed to prove his statements were voluntary. The Court, in an opinion by Owens and joined by four other justices, rejects all of Strand's claims and upholds his commitment. Sanders, joined by three other justices, strongly dissents. (briefs and arguments).

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In re Personal Restraint Petition of Pullman, No. 80834-1. (majority, concurrence)

Issue: Whether the Department of Corrections violated Pullman’s due process rights by raising the inmate’s risk classification level without providing advance notice and an opportunity to challenge the proposed reclassification.

Court ruled: Unanimously against Pullman, denying his petition. Decision was written by Justice Madsen, joined by seven other justices. Justice Sanders wrote a concurrence.

Court's reasoning: Department of Correction's decision to raise Pullman's risk classification, thus denying him the possibility of a 50% reduction in his prison sentence, was not a violation of due process. The statute allowing the reduction does not create a right ("liberty interest") which must be protected by due process. Prisoners cannot count on receiving the reduction. Pullman could only expect that DOC would follow its establish procedure in reviewing his eligibility for the reduction, including an opportunity for him to appeal the decision, which the Department did.

In his concurrence, Justice Sanders writes that the statute does create a liberty interest, but that the resulting due process rights are minimal and were satisfied by DOC's appeal procedure. 

State v. Iniguez, No. 81750-2. (majority, dissent)

Issue: Whether an eight-month delay in the defendant's trial violated his constitutional right to a speedy trial. Iniguez was convicted of robbery, but only after his trial was delayed multiple times due to scheduling conflicts, a mistrial and the combining of Iniguez' trial with that of his partner in the robbery. 

Court ruled: Five to four against Iniguez, holding there was no constitutional violation of his right to a speedy trial. Justice Stephens wrote the majority opinion, joined by four Justices. Justice Chambers wrote the dissent, joined by three Justices.

Court's reasoning: The Court dealt first with the question of whether the speedy trial rights in Article I, Section 22 of the state constitution offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, Justice Stephens determined that there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.

While rejecting the use of a strict time period analysis to determine if a defendant's rights are presumed to have been harmed (e.g. if delay of more than 8 months), Justice Stephens found the circumstances of the delay substantial enough to presume harm to Iniguez. But upon reviewing the reasons for the delay and whether it actually harmed Iniguez, Stephens determined that the level of violation of Iniguez' speedy trial rights wasn't enough to justify dismissing his case.

In his dissent, Justice Chambers writes that the Gunwall analysis should be left for another day because it was not fully briefed or argued by the parties (only mentioned in one page of one brief). On the merits, Chambers disagrees with the weighting of the facts of the case, finding that the State hadn't justified the delay and the case should be dismissed.

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The Supreme Court dealt with two cases that involved alleged violations of the constitutional right to a public trial.

State v. Momah, No. 81096-6. In 2005, Dr. Charles Momah, a gynecologist, was charged with multiple counts of rape and indecent liberties related to allegations that he had sexually violated several patients while conducting physical exams. Because of the intense media publicity surrounding the case, over 100 potential jurors were summoned. While conducting jury selection, the judge, prosecutor, and defense counsel decided to privately question several jurors in chambers. Momah was convicted as charged and sentenced to 245 months in prison.

On appeal, Momah claimed the private interviews violated his constitutional rights to a speedy and public trial. The Washington Constitution provides that an accused has the right to “a speedy public trial by an impartial jury.” Const. art. I, § 22. Additionally, Article I, section 10 provides that “[j]ustice in all cases shall be administered openly.”

Because of the overriding interest in open, public trials, a trial judge may only close a courtroom in limited circumstances. Under State v. Bone-Club (1995), five guidelines must be followed: 1) The party arguing for closure must show a compelling need to close the courtroom; 2) those present in the courtroom must be given an opportunity to object; 3) the proposed method for closing the court must be the least restrictive means available; 4) the court weighs the competing interests of closure and the public; and 5) the order must be no broader than necessary. If an improper closure occurs the case must be sent down for retrial.

Reviewing Momah’s claim, the Supreme Court determined there was no improper closure. “Applying these principles to this case, we find the facts distinguishable from our previous closure cases. Here, Momah affirmatively assented to the closure argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it. Moreover, the trial judge in this case not only sought input from the defendant, but he closed the courtroom after consultation with the defense and the prosecution. Finally, and perhaps most importantly, the trial judge closed the courtroom to safeguard Momah’s constitutional right to a fair trial by an impartial jury, not to protect any other interests.”

The Supreme Court, with Justice Charles Johnson writing the opinion, held that there was no improper closure of the courtroom, and affirmed the jury’s determination of guilt. Justice Pro Tem Joel Penoyar filed a concurring opinion, while Chief Justice Alexander dissented, joined by Justices Sanders and Chambers.

State v. Strode, No. 80849-0. In another case involving a similar jury interview question, the Supreme Court found the defendant’s right to a public trial had been violated. Tony L. Strode was charged and convicted of child rape and molestation. During jury selection, prospective jurors were given a questionnaire which asked whether they, or anyone close to them, had either been the victim of sexual abuse or accused of committing a sexual offense. Those who answered “yes” to either question were called into the judge’s chambers for individual questioning on whether their past experience would preclude them from acting fairly and impartially.

As mentioned above, any closure of a court proceeding must be justified using a Bone-Club analysis, and there was no indication this occurred in the Strode case. Strode was convicted on all counts and appealed, arguing that his right to a public trial had been violated.

The State argued that jury selection falls prior to the commencement of trial and is not subject to the public trial requirement. The State also argued that Strode was present for questioning and waived his right to a public trial. Even if there was an unjustified closure, argued the State, it was insignificant and did not infringe on Strode’s constitutional rights.

The Supreme Court determined that factual circumstances in this case required a Bone-Club analysis. The Supreme Court rejected the State’s arguments and ruled that Strode’s right to a public trial had been violated, resulting in a reversal of his conviction and an order for a new trial. Chief Justice Alexander wrote a 4-vote lead opinion, and Justice Fairhurst and Madsen filed a concurring opinion. Justice Charles Johnson and two others dissented, arguing that the right to a public trial must be balanced against a juror’s right to privacy.

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