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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.

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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.

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

Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3 (briefs and arguments). The question here is whether development rights vested on a condominium project when the owner filed an application for site plan review with the City of Bonney Lake.

In Re Detention of Strand, No. 80570-9 (briefs and arguments). Did the State have authority to conduct a psychological evaluation of an inmate as a sexually violent predator without first filing a petition to commit the inmate as a sexually violent predator.

In Re PRP of Pullman, No. 80834-1 (briefs and arguments). 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.

State v. Iniguez, No. 81750-2 (briefs and arguments). The issue before the court is 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 conflicts in schedules, a mistrial and the state's decision to combine Iniguez' trial with that of his partner in the robbery. None of these delays were Iniguez' fault, he objected to them, and the Court of Appeals overturned his conviction.

State v. Momah, No. 81096-6 (briefs and arguments). Dr. Charles Momah was convicted of rape and indecent liberties involving several of his medical patients. During jury selection prior to his trial, several potential members of the jury requested to be interviewed individually, due to the media attention surrounding this case. Their requests were granted, and they were interviewed by counsel in the judge’s chambers. The Washington Constitution guarantees the right to a speedy and public trial, and also requires that justice be administered “openly.” A court may close certain portions of a proceeding only if it has conducted a specific analysis dictated by State v. Bone-Club (1995). If a closure occurs improperly, the defendant is entitled to a new trial. Dr. Moman argues that the trial court’s individual interviews with potential jurors violated his right to a speedy, public trial. The Court of Appeals disagreed and upheld his convictions in 2007.

State v. Strode, No. 80849-0 (briefs and arguments). Similar to the case above, the question is whether the trial court violated a constitutional right to a public trial by conducting a portion of voir dire in chambers.

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State v. Kenyon, No. 81374-4. On February 15, 2006, James Ryan Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).

A defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed. Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.

Kenyon argues his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation. The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.

The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.

Justice Richard Sanders wrote the majority opinion. Justice Tom Chambers filed a separate opinion concurring with the result.

State v. O'Hara, No. 81062-1. Ryan O’Hara was charged with second degree assault after getting into a fight with an acquaintance, Jeffrey Loree. O’Hara argued that he acted in self defense. Loree had gained possession of the keys to O’Hara’s car. At trial, O’Hara argued he acted in self-defense. O’Hara testified that he repeatedly asked Loree for the keys to the car. He attempted to reach for the keys and Loree punched him in the forehead, at which point the two began exchanging blows.

At trial the court provided the jury with instructions regarding second degree assault, with additional details about the definition of “malice.” O’Hara was convicted as charged.

On appeal, O’Hara challenged his conviction, arguing that the trial court provided the jury with an incomplete definition of “malice.” O’Hara had failed to object to this instruction at trial and raised the issue for the first time on appeal. A party on appeal is permitted to raise new issues of “manifest error affecting a constitutional right.”

The Supreme Court, with Justice Mary Fairhurst writing the opinion, said that O’Hara could not demonstrate that the trial court’s alleged error was not of a constitutional magnitude or manifest. By failing to object to the instruction he failed to preserve the issue for review, and could not raise the issue for the first time on appeal. Justice Sanders filed a dissent. While he agreed that a “manifest error affecting a constitutional right" should be reviewed on a case-by-case basis, he argued that O’Hara’s constitutional rights were violated by the trial court’s jury instruction.

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In re Detention of Moore, No. 81201-2. The trial court granted a state petition for Moore to be declared a sexually violent predator and confined in a mental facility (civilly committed). The Supreme Court reviewed (1) whether the trial court erred in accepted the State's set of facts as accurate without checking to see if Moore knowingly waived his right to contest the facts, (2) whether Moore's attorney was ineffective for not contesting the State's facts and (3) if the State has to prove that Moore is likely to reoffend in order to prove he is currently dangerous.

In an 8-1 decision the Court affirmed the lower court. Justice Fairhurst wrote that courts do not have to ensure a party understands the impact of agreeing (stipulating) to facts, unless that agreement is tantamount to an admission of guilt. She also found nothing in the record to show that Moore was incompetent at the time of trial. In addition, Moore's attorney was not ineffective because there were tactical and strategic reasons for his actions. Finally, Fairhurst wrote that the elements which had to be proven to declare Moore a sexually violent predator were sufficient to show he is currently dangerous.

Justice Sanders filed the lone dissent, arguing that the State should have "to prove Moore will reoffend in the near future to establish he is currently dangerous," rather than the stated standard of reoffending at some point during the rest of his life.

In re Disciplinary Proceeding Against Marshall, No. 200577-2. The Court unanimously affirmed the State Bar's decision to disbar Marshall, due to a number of deceptive practices in his dealings with clients and his failure to change his practices after prior discipline by the Bar. Justice Jim Johnson wrote the opinion.

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

In re Detention of Moore, No. 81201-2. Paul Moore was committed as a sexually violent predator in Snohomish County Superior Court. During the hearing, the parties stipulated to much of the State's evidence. In the present case, Moore was judged marginally competent, but the doctor evaluating him said that his competence could change over time.

The trial court committed Moore as a sexually violent predator. At issue is (1) whether the trial court denied Moore due process by accepting a stipulation of certain fact without conducting an inquiry to determine if he knowingly waived his right to contest the State’s case, (2) whether trial counsel was constitutionally ineffective, and (3) whether due process requires the State to prove Moore would reoffend within the foreseeable future.

In re Discipline of Bradley Marshall, No. 200,577-2. The Washington State Bar Association is seeking disbarment of Bradley Marshall for multiple violations of the Rules of Professional Responsibility.

State v. Kenyon, No. 81374-4. This case is on appeal from Division Two Court of Appeals, and originated in Mason County Superior Court. The question before the Court is whether a defendant's constitutional right to a speedy trial is violated when his trial is long delayed due to court congestion, and no discussion of whether a pro tempore judge is available was recorded.

Soon after getting out of prison Kenyon was seen carrying a gun on several occasions, and was tried and convicted of seven counts of illegal possession of a firearm. But due to congestion in the court's docket he was made to wait beyond the time limits set in rule (CrR 3.3). Kenyon argues that under the precedent set in a 1978 case (State v. Mack) his case should have been dismissed as violating his right to a speedy trial unless the trial court attempted to determine, on the record, if any pro tempore judges were available to hurry the process along.

State v. O'Hara, No. 81062-1. The question for the Supreme Court is whether the trial court failed to provide the jury with the proper definition of “malice,” and whether this is a constitutional error that can be raised for the first time on appeal.

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Ambach v. French County, No. 81107-5. Teresa Ambach sued a doctor alleging, among other causes of action, that he performed an unnecessary surgery on her in violation of the Consumer Protection Act. The trial court granted summary judgment to the doctor and imposed sanctions against Ambach's attorneys related to the CPA claim. The Court of Appeals reversed, and is today overturned. Here, the Supreme Court holds that personal injury damages are not covered by the CPA because they "do not constitute injury to business or property" as required by the Act. Justice Madsen authored the majority opinion, which seven other justices signed. Justice Chambers concurred, stressing "that there is nothing in our jurisprudence that should prevent a patient from bringing a CPA claim against a doctor who falsely and deceptively prescribed unnecessary or unnecessarily expensive surgeries as part of a business strategy." (briefs and argument).

Noble v. Safe Harbor Family Preservation Trust, No. 80873-2. The Nobles own land on Hood Canal that is only accessible through land owned by others, including the Safe Harbor property and another parcel owned by Tillicum Beach, Inc. The Nobles sued Safe Harbor to condemn a private right of way of necessity. Safe Harbor defended that there were other possible routes, but did not name any other property owners. The Nobles amended their claim to add Tillicum as an alternate condemnee. The trial court granted the Nobles a right of way through the Safe Harbor land. The trial court also granted Tillicum's motion for attorney fees from Safe Harbor and the Noble's motion to decrease the attorney fee award from the Nobles to Safe Harbor. The Court of Appeals affirmed. The Supreme Court reverses the award of attorney fees to Tillicum but upholds the reduce the attorney fees due Safe Harbor from the Nobles. The Court holds that RCW 8.24.030 grants the trial court broad discretion in awarding attorney fees in condemnation actions, but does not permit a trial court to penalize a potential condemnee from raising the defense of a possible alternate route. Justice Charles Johnson authored the majority opinion and is joined by four other justices. The Chief Justice, joined by Justice Fairhurst, concur except that they would not remand to the trial court on the issue of whether the Nobles must pay attorney fees to Tillicum since the issue was not briefed. Justice Chambers dissents. (briefs and argument).

State v. Kilgore, No. 81020-6. Mark Kilgore was convicted by a jury of seven counts of sexual crimes against children. An "exceptional" sentence of 560 months was imposed. Two counts were reversed on appeal. After his direct appeal was over but before the trial court had corrected the judgment and sentence, the Supreme Court of the United States decided Blakely v. Washington. If Kilgore's case is considered final before that decision was issued, it does not apply retroactively to his sentence. He asserts that his case was not final and that he should be resentenced according to Blakely. Today, the Supreme Court upholds the lower courts and findes that Kilgore's case was final before Blakely. Justice Fairhurst authored the majority opinion. Justice Sanders, joined by Justice Madsen, dissent. (briefs and argument).

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The Supreme Court will issue opinions in several cases tomorrow.

Ambach v. French County, No. 81107-5 (briefs and argument). Patient Teresa Ambach brought an action against her surgeon and hospital when her shoulder became infected after a surgical procedure and had to be fused. Her complaint included claims against Dr. French for professional negligence and violations of the Consumer Protection Act (CPA). As part of her CPA claim, Ms. Ambach alleged that Dr. French performed medically unnecessary surgeries for financial gain. The trial court ruled in favor of Dr. French and imposed sanctions against Ms. Ambach’s attorneys. The Court of Appeals (Div. III) reversed the summary judgment and the attorney sanctions. The issue before the Supreme Court is whether a medical patient’s economic losses attributable to an allegedly unnecessary surgical procedure are recoverable under the Consumer Protection Act.

Noble v. Safe Harbor Family Preservation Trust, No. 80873-2 (briefs and argument). Whether, in an action to condemn a private way of necessity, the trial court may order the condemnee to pay the attorney fees of a third party who the condemnor joined in the suit.

State v. Kilgore, No. 81020-6 (briefs and argument). Whether, on remand after the reversal of two of seven convictions, defendant Kilgore was entitled to challenge reimposition of his original exceptional sentence.

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Kappelman v. Lutz, No. 80996-8. Theodore Lutz took Amber Kappleman for a ride on his motorcycle even though he had only an instructional permit which did not allow him to carry passengers. They crashed when a deer ran out in front of them on the highway. Kappleman was injured, sued Lutz, and lost at the trial court. She appealed, citing the judge's refusal to allow evidence that Lutz lacked a motorcycle endorsement and his instructions to the jury on the "sudden emergency doctrine" (which says that a person in danger cannot be expected to "act as prudently as one might have had there been time for deliberation"). The Court of Appeals upheld the trial court and today the Supreme Court unanimously affirms that decision in an opinion by Justice James Johnson. (briefs and arguments)

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1. Kimme Putman sued the Medical Center and several of its medical staff, alleging negligent failure to diagnose her ovarian cancer. The trial court dismissed because Putman failed to file a "certificate of merit" as required by RCW 7.70.150. Here, the Supreme Court reverses and holds that the statute violates the State Constitution because it "unduly burdens the right of access to courts" and violates the separation of powers. According to the majority opinion by Justice Owens, "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right to access to courts." Justice Madsen, joined by Justice James Johnson, concurs as to separation of powers, but disagrees that the statute unduly interferes with access to the courts. (briefs and arguments).

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The Supreme Court will issue several opinions tomorrow.

Kappelman v. Lutz, No. 80996-8, (briefs and arguments). Theodore Lutz was involved in a motorcycle crash and injured Amber Kappleman, who was his passenger. The question before the Supreme Court is whether Lutz’ lack of a motorcycle learner’s permit entitling him to carry passengers was admissible evidence of negligence in an action brought against him by Kappelman.

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1 (briefs and arguments). RCW 7.70.150 requires medical malpractice plaintiffs to file a certificate of merit from an expert along with the complaint. The question here is whether this requirement violates separation of powers principles and state constitutional provisions prohibiting special laws and ensuring open access to the courts and equal privileges and immunities.

State v. Eriksen, No. 80653-5 (briefs and arguments). Whether tribal law enforcement officers have authority to pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation. Ms. Eriksen was pursued by a tribal police officer for a suspected DUI while on Lummi Reservation in Whatcom County, but the officer didn't actually stop her until they were outside the boundaries of the reservation. Eriksen was convicted for a DUI, and challenged the legality of the stop by the tribal officer.

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Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. Eighteen-year-old Kristen Armantrout lived with her blind and diabetic mother. Kristen provided care and assistance to her mother and gave her Social Security check to the family. Kristen died due to a complication following ankle surgery. Her parents sued for wrongful death, claiming they were financially dependent on Kristen. The trial court agreed with the parents, but the Court of Appeals reversed and held that economically valuable services cannot be considered to assess a claim of financial dependence. Here, the Supreme Court unanimously reverses the Court of Appeals. The opinion by Justice Madsen distinguishes between "everyday services a child would routinely provide," and the kind of unique and potentially expensive services that had been provided by Kristen to her mother. (briefs and argument)

Seattle v. Robert St. John, No. 81992-1. After crashing his motorcycle in Seattle, Robert St. John was investigated for driving under the influence of alcohol. A police officer asked St. John to consent to a blood alcohol test, and when St. John refused, the officer obtained a warrant for the test. The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent law (RCW 46.20.308(1)) that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The Court today in an opinion by Justice Owens and joined by six other justices upholds the superior court and allows the blood test evidence. The Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer's statements about the Implied Consent law did not foreclose his obtaining the warrant. Justice Sanders, joined by Justice James Johnson, dissents. (briefs and argument).

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Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2. Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which in turn use Dot products as ingredients for products that are later sold to grocery stores and other retail outlets.

For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot paid the tax and then filed suit against the Department to recover a refund.

The Department argued that Dot should not qualify for the B&O tax exemption because its sales included non-consumer products, and some products eventually ended up in permanent retail establishments. The trial court ruled in the Department’s favor. The Court of Appeals affirmed the trial court, holding that Department’s new interpretation of the statute was reasonable.

The questions before the Supreme Court are (1) whether an out-of-state seller qualifies for the B&O tax exemption when it sells some non-consumer products, and (2) if so, does such a seller qualify for the B&O tax exemption when some of its products ultimately end up in permanent retail establishments?

The Supreme Court, with Justice Charles Johnson writing the 5-vote majority, ruled in favor of Dot Foods. The court said that the law (RCW82.04.423(1)(d) requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed. Considering the foregoing, we reject the Department’s interpretation. To do otherwise would add words to and rewrite an unambiguous statute.”

Justice Johnson took the Department of Revenue to task for its argument that its interpretation of the statute is entitled to judicial deference. “The Department’s argument for deference is a difficult one to accept, considering the Department’s history interpreting the exemption. Initially, and shortly after the statutory enactment, the Department adopted an interpretation which is at odds with its current interpretation. One would think that the Department had some involvement or certainly awareness of the legislature’s plans to enact this type of statute.”

Justice Debra Stephens and three other justices dissented, writing that the out-of-state exemption from the B&O tax should be interpreted narrowly and that by allowing Dot Foods to claim the exemption the majority decision “expands the exemption well beyond its intended scope.”

State v. Heddrick, No. 80841-4. In 2004, Steven Ray Heddrick, Jr., was charged with felony harassment. While awaiting trial, Heddrick was allegedly involved in an altercation with jailhouse staff, which resulted in a subsequent charge of custodial assault. Concerns about Heddrick’s competency for trial arose several times. Eventually the trial court determined that Heddrick was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

The Supreme Court ruled that Heddrick, through his appointed counsel, waived completion of the statutory competency procedures. Additionally, the court ruled that Heddrick did not suffer a complete denial of counsel during a critical stage in the proceedings. Justice Susan Owens wrote the unanimous opinion.

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

Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4 (briefs and argument). Whether a child’s provision of economically valuable services to her parents can used to prove that the parents were financially dependent on the child. Eighteen-year-old Kristen Armantrout lived with her blind mother in Washington, and acted as her mother’s companion and aide in performing everyday activities. She also contributed her small Social Security check to the family budget, although the majority of the family’s money was provided by her father, who was working out-of-state. Kristen died due to a complication following ankle surgery, and her parents sued for wrongful death, claiming they were dependent on Kristen for support. The trial court found for Armantrout, but the Court of Appeals reversed, holding that economically valuable services cannot be considered when determining if there was financial dependence.

Seattle v. Robert St. John, No. 81992-1 (briefs and argument). St. John was injured in a motorcycle crash on the Alaskan Way viaduct, and was taken to Harborview Medical. While there he was arrested by a state patrol officer for driving under the influence, and was asked to consent to a blood alcohol test, without being told that a warrant would be sought if he refused. St. John did refuse, so the officer obtained a warrant to perform the test. The Implied Consent law (RCW 46.20.308(1)) indicates that once consent has been refused, the test may not be performed. But a competing statute (RCW 46.20.308) indicates that lack of consent does not prevent an officer from obtaining a warrant. The Court is being asked to reconcile these two statutes.

Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2 (briefs and argument). The question here is whether Dot Foods, an out-of-state seller doing business in Washington, should qualify for an exemption from the state business & occupation tax. The state Department of Revenue determined Dot Foods was not entitled to this exemption and the Court of Appeals agreed.

State v. Heddrick, No. 80841-4 (briefs and argument). A trial court determined that Steven Ray Heddrick, Jr., was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

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City of Spokane v. Rothwell, No. 81271-3. Two men convicted of DUI in the city of Spokane appeal and challenge that the judge who presided over their cases lacked jurisdiction. Although the city operated a municipal court, all of their judges were borrowed from Spokane County District Court. Defendants allege that RCW 3.46.050 and 070 (repealed in 2008) required that municipal court judges be elected from within the city limits. The Court of Appeals overturned the convictions. Here, the Court unanimously reverses the court below and reads the conflicting statutes to require that the election be limited to the city only for full-time and not part-time municipal court judges. The latter must be elected, but from what district is not specified by statute. Justice Jim Johnson wrote the Court's opinion. (briefs and argument)

In Re Forfeiture of One 1970 Chev. Chevelle and One 2004 Nissan Sentra, No. 81116-4. Thomas Roos was using both of his parents' cars for trafficking illegal drugs, presumably to cut overhead costs and pass the savings on to his customers. During one of four arrests in the summer of 2005, police seized the vehicles pursuant to RCW 69.50.505. His parents appeal the seizure based on the "innocent owner" exception. That provision allows a property owner to prevent seizure upon showing that the crime was done "without the owner's knowledge." The courts below rejected this argument, but the Court today reverses those decisions and sides with the parents. The majority opinion by Justice Charles Johnson and joined by four other justices notes that statutes often use language like "actual or constructive knowledge" or "knows or has reason to know." The Legislature did not extend "knowledge" in this statute, thus a property owner is not required to show that he had no reason to know of the illegal activity, only that he actually did not know.

Justice Madsen, joined by Justices Owens, Fairhurst, and Jim Johnson, concurs as to the Sentra and dissents on the Chevelle. "Because the Rooses did not take steps to prevent Thomas' use of the second car, the Chevelle, even after they knew of his arrest in the Nissan with a 110-gram brick of cocaine, I would uphold the hearing officer's forfeiture of the Chevelle."(briefs and argument).

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State v. Bobenhouse, No. 81413-9. Phillip Bobenhouse was convicted on multiple counts of first degree rape of a child and first degree incest based on evidence that he forced his two minor children (referred to as “John” and “Jane”) to have sexual intercourse with each other and that he committed sexual acts with his son. The trial court imposed a sentence of up to life with an exceptional minimum sentence of 600 months on each rape count, to run concurrently. The Court of Appeals affirmed the convictions and the exceptional minimum sentence imposed by the trial court.

A unanimous Supreme Court, with Justice Charles Johnson writing the opinion, rejected all of Bobenhouse’s claims.

Bobenhouse argued that no crime could have occurred by forcing his two children to have sexual intercourse with each other as both children were less than eight years old and incapable of committing a crime, under the statute. He argued that under the statute it is not a crime for a person to force (and watch) two children to have sexual intercourse with each other.

The Court rejected this argument, noting that a person can be convicted as a principal. The Court said that implied in the statute dealing with the rape of a child is that the perpetrator is defined as one who causes the other person to engage in the act amounting to rape of a child in the first degree. “Had Bobenhouse engaged in this conduct himself, it would have constituted the crimes of rape of a child in the first degree and incest in the first degree. Put otherwise, because of his legal accountability for John and Jane, Bobenhouse was the “perpetrator” in this case and, therefore, was acting as an accomplice in committing first degree rape of a child and incest against John and Jane.

Bobenhouse also argued that the trial court erred by failing to provide the jury with a unanimity instruction regarding the rape of John directly by Bobenhouse. (In order to convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act.) The Court determined that the trial court’s failure to instruct the jury on the unanimity was a harmless error that did not warrant reversal.

Bobenhouse finally argued the trial court erred by imposing an exceptional minimum sentence, and that it was error for the trial court, rather than the jury, to determine the aggravating factors. The Court noted that it previously held that case law “does not prohibit judicial fact finding when the trial court imposes either an indeterminate sentence of life or a minimum sentence within that life sentence.”

State v. Kyllo, No. 81164-4. This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense. Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal Kyllo asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion. The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured—“One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

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Tomorrow the Washington Supreme Court will issue rulings in the following cases.

City of Spokane v. Rothwell, No. 81271-3 (briefs and argument). The question in this case is whether a district court judge had jurisdiction over municipal court criminal trials. The City of Spokane had a system where, instead of electing separate municipal judges, they “borrowed” judges from Spokane County District Court. These judges were elected as district court judges, and citizens from the entire county voted on their elections. But under Washington law, only city voters may vote for municipal judges.

Henry Smith and Lawrence Rothwell were charged in municipal court with DUI-related offenses. They moved to dismiss for lack of jurisdiction, because Judge Patti Walker was elected in a county-wide election in violation of state law. Judge Walker denied these motions, and was upheld by the superior court. On appeal, the City argued that it “substantially complied” with the statute because a majority of city voters voted for Judge Walker. The Court of Appeals disagreed, stating that “RCW 3.46.070 is clear and unambiguous. Only city voters shall vote for municipal judges designated as such by the county auditor. We must read the statute literally.” The Court of Appeals overturned the lower court decisions and reversed the convictions.

In Re Forfeiture of One 1970 Chev. Chevelle and One 2004 Nissan Sentra, No. 81116-4 (briefs and argument). If the state discovers a car is used for the trafficking of drugs, the state can move for the forfeiture of the vehicle. If the actual owner of the vehicle was not aware the car was used for that purpose, or had not consented to such use, that person can avail himself of the “innocent owner” exemption to vehicle forfeiture. The question in this case is the meaning of “knowledge” and whether the innocent owner must prove lack of knowledge about the illegal use.

State v. Bobenhouse, No. 81413-9 (briefs and argument). This case concerns whether a person can be charged as an accomplice to a crime when the principle actors in the crime are children, and thus legally incapable of committing a crime. Bobenhouse also objects to the jury’s failure to specify which act in a sequence of acts was the basis for the charges against him.

Bobenhouse was convicted of three counts of first degree child rape and two counts of first degree incest for raping his son and forcing his son and daughter to commit sexual acts with each other while they were between the ages of 4 and 8. He is appealing his convictions on the grounds that the children were not capable of either criminal rape or incest, being close in age and under 8 years old, and so he cannot be liable as an accomplice. The Court of Appeals upheld his convictions, stating that his culpability is based on “forcing innocent people...to engage in conduct that would constitute a crime if [he] engaged in the same conduct.”

State v. Kyllo, No. 81164-4 (briefs and argument). This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.

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Briggs, et. al. v. Nova Services, et. al., No. 79615-7. A group of employees of Nova Services, including several managers, objected to their new executive director. They complained to the nonprofit's board of directors. The board investigated the objections, determined that the issues stemmed from "personal animosity," and three of the employees were fired. Six others refused to come to work and were considered as having quit their employment. Eight of the employees filed a complaint alleging several causes of action including violations of RCW 49.32.020, a Depression-era statute protecting workers in "concerted activities for the purpose of collective bargaining or other mutual aid or protections...." The trail court granted Nova Services' motion for summary judgment.

The Court of Appeals upheld the trial court, finding that RCW 49.32.020 did not apply "because the Employees' concerns did not relate to a term or condition of employment. It also held that the statute does not protect management-level employees. The Supreme Court today upholds the lower courts with a lead opinion by Justice Jim Johnson and concurrences by Justices Charles Johnson and Madsen. Justice Owens, joined by Justices Chambers, Fairhurst, and Stephens, dissent, arguing for a much broader exception to at-will employment, including protection for "employee protests over management personnel decisions ... when the decision relates to the employees' working conditions." Congratulations to the Pacific Legal Foundation, which filed an amicus brief explaining the importance of at-will employment. (Briefs, Argument)

In re Discipline of Hicks, No. 200,606-0. Attorney Richard S. Hicks appeals a recommendation of the Washington State Bar Association Disciplinary Board. The Board recommends that he be suspended from the practice of law for two years for failing to properly manage client funds. The Bar Association also challenges that the sanction here is too mild. The Court unanimously upholds the Board's recommendation. (Briefs, Argument)

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Morgan v. City of Federal Way, et al., No. 81556-9. The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report and Judge Michael Morgan, the subject of the complaint, sued to prevent its disclosure.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint. Judge Morgan argued the report should be exempted from disclosure by the work product, attorney-client privilege, and personal information exemptions to the Public Records Act.

The Supreme Court previously ordered the release of the Stephson report with an opinion to follow. Today’s opinion provides the rationale for releasing the document.

Justice Susan Owens, writing for a unanimous court, rejected all of Judge Morgan’s arguments and held the report was a public record and that no exemption would justify non-disclosure. First, the Court addressed whether the Stephson report was a public record, and held that the report was “prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.”

The Court noted that the work product exemption applies to records that relate to “completed, existing, or reasonably anticipated litigation.” The exemption does not shield records created during the ordinary course of business. As the Stephson investigation was conducted as a result of the city’s antidiscrimination policy, rather than in anticipation of litigation, the work product exemption does not apply.

Next, the Court held that communications between Morgan and Stephson were not protected by attorney-client privilege. Stephson was hired as an independent investigator, and the purpose of her investigation was to comply with the city’s antidiscrimination policy. No attorney-client relationship developed between Stephson and Judge Morgan, thus the investigation and report were not  privileged. (The Court also wrote that an email Judge Morgan sent to the city attorney was not protected as Morgan waived the privilege when he forwarded the email to a third party.)

Finally, the Court held that the personal information exemption did not apply. This exemption only extends to matters concerning a person’s private life that would be highly offensive to a reasonable person and are of no legitimate concern to the public. The Court noted the public’s substantial interest in the disclosure of information related to the performance of an elected official.

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In re Larry Botimer, No. 200,625-6. Attorneys should review this case before entertaining the thought of retaliating against a client.

Attorney Larry Botimer served for several years as a tax preparer and tax advisor to Ruth Reinking, as well as Ruth’s son and daughter-in-law Jan and Janet Reinking, and he assisted Ruth with decisions related to her ownership stake in a nursing home facility. Botimer also assisted Ruth with business matters related to another care facility run by her other son, James Reinking. A dispute arose when James refused to recognize that Ruth or Jan had an ownership stake in this care facility. Botimer assisted Jan and Ruth in negotiations with James, but did not obtain conflict waivers in the course of his assistance of the various members of the Reinking family.

In 2002, Botimer terminated his representation of Ruth, citing her failure to cooperate with him, refusal to follow his advice and failure to pay for his legal services. Botimer also informed Ruth that he was sending a letter to the IRS informing the agency of Ruth’s failure to, contrary to his advice, correctly state her income and pay gift tax.

To resolve disputes stemming from the sale of Ruth’s nursing home facility, Jan and Janet sued Ruth and James. Botimer cooperated with Jan and Janet’s attorney in the lawsuit, providing him with three declarations to use in pretrial proceedings.

The Washington State Bar Association accused Larry Botimer of several ethical violations, and brought a complaint against Botimer for the following violations of the Rules of Professional Conduct:

• Count 1: Former RPC 1.7(b) by representing Ruth, Jan, and Janet; thereby creating a conflict of interest without obtaining informed consent in the form of conflict waivers.
• Count 2: Former RPC 1.6 and 1.9(b) by disclosing private information without consent to Jan’s lawyer when Jan and Ruth were counterparties to a lawsuit.
• Count 3: Former RPC 1.6 and 1.9(b) by disclosing without consent private information regarding Ruth’s prior tax returns to the IRS.

Today the Supreme Court unanimously affirmed the suspension in an opinion written by Justice Susan Owens.

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In re Pers. Restraint of Mattson, No. 81324-8. In a 6-3 decision authored by Justice Madsen, the Court determined that the state law which allows criminals to be released early under an approved "community custody plan" does not create a due process liberty interest. Therefore, a Department of Corrections policy that no sexually violent predators can be released early under a community custody plan does not violate due process.

Mark Mattson had been convicted of multiple sexual crimes and sentenced to ten years in prison. During the latter half of his imprisonment, Mattson submitted six different community custody plans for his early release. The final such plan was denied by the Department of Corrections on the basis that there was simply no plan that could ensure the safety of the community against sexually violent predators. A DOC psychiatrist had concluded that Mattson fell into this category, so the DOC did not review the merits of his proposed plan.

The Court of Appeals ruled for Mattson, holding that the statute setting up the community plan option created a due process right, so his plan had to be reviewed on its merits. Madsen's decision reverses the Court of Appeals.

Chief Justice Alexander dissented, agreeing with the Court of Appeals that Mattson's plan should have been reviewed on its merits, and not rejected simply due to a broad policy directive. Justices Sanders and Chambers joined him.

The decision is one of public interest only, as Mattson has already served his maximum sentence, and therefore the case is moot as it relates to his incarceration.

State v. Rivera-Santos, No. 81445-7. In a unanimous opinion written by Justice Fairhurst, the Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent, and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime.

Fairhurst wrote that convicted Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime. He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

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In re Larry Botimer, No. 200,625-6 (briefs and argument). This case concerns a decision by the Washington State Bar to suspend Botimer's license to practice law. The suspension was based upon findings by the Bar that Botimer violated conflict of interest rules, disclosed client confidences and disclosed that a tax return he prepared for a client was discovered later to be fraudulent.

In re PRP of Mattson, No. 81324-8 (briefs and argument). The question is whether the Department of Corrections may refuse to consider the community custody transition plan of a sex offender who has been found, after an evaluation, to meet the criteria for commitment as a sexually violent predator. Mattson argues his right to release to community under terms of the early release statute, while DOC says Mattson’s plan was properly denied under statute.

Morgan v. Federal Way, et al., No. 81556-9 (briefs and argument). The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report under the Public Records Act, and Judge Michael Morgan, the subject of the complaint, filed a petition to prevent its disclosure. He argued that it was protected by the work product and attorney-client privilege exemptions to the Act, and by a general “separation of powers” that prevents the Act from being applied to judicial documents. The Supreme Court has already ordered the release of the Stephson report. The opinion issued tomorrow will provide the rationale for releasing the document.

State v. Rivera-Santos, No. 81445-7 (briefs and argument). This case arises from an appeal to a Clark County Superior Court decision. The defendant was observed driving under the influence of alcohol in Clark County, and a police chase ensued that didn't end until Oregon officers stopped him in Portland. Rivera-Santos was convicted of a DUI in Oregon, and the question before the court is whether the defendant's constitutional right against double jeopardy prevents him from being convicted for the same crime in Washington state. The trial court believed it was double jeopardy, and dismissed the case, the superior court disagreed. The defendant appealed directly to the Supreme Court, asking for review as a matter of great public interest.

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Shafer v. Dep’t of Labor & Indus., No. 81049-4. Kelly Shafer injured her back in 1998 while lifting a beer keg at the bowling alley where she worked. Shafer was eventually treated by Dr. Elizabeth Cook, and CAT scans revealed that Shafer had sustained broken bones in her vertebrae and a pinched nerve. Dr. Cook applied to the Department of Labor & Industries for reimbursement of the treatment costs. In July 2000, the Department arranged for an independent examination of Shafer, and the examiner determined Shafer could return to work. The final closing order issued by the Department awarded Shafer a permanent partial disability award of $6,773. A copy of the order was sent to Shafer but not Dr. Cook.

Three years later Shafer returned to Dr. Cook because of dehibilitating pain in her back. Dr. Cook determined Shafer's condition had worsened, and asked the Department to reopen Shafer's claim. The Department refused. Shafter then appealed to the Board of Industrial Insurance Appeals, arguing that her initial claim was never closed because Dr. Cook had not received a copy of the closing order. Dr. Cook stated that if she had received the order she would have appealed it because she believed Shafer needed additional treatment. The Board determined the claim had been terminated as the closing order had been communicated to Shafer. On appeal, the Court of Appeals reversed this determination, ruling that the revised closing order had not become final because it was not received by Dr. Cook.

The Supreme Court unanimously agreed, with Chief Justice Gerry Alexander writing the opinion. The court held that the Industrial Insurance Act requires that attending physicians receive closure orders, and that Shafer's claim would not close until 60 days after all affected parties received the order.

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The Supreme Court will issue opinions in at least one case tomorrow morning.

Shafer v. Dep’t of Labor & Indus., No. 81049-4 (briefs and arguments). This case is on appeal from Division One Court of Appeals, and originated from a decision by the Department of Labor and Industries to not re-open a disability claim from 2000. The Department's decision was upheld by the Board of Industrial Appeals and King County Superior Court, but reversed by the Court of Appeals. The question before the Court is whether an order closing an industrial insurance claim based on an independent medical examination must be communicated to the worker’s attending physician in order to trigger the time period for administratively appealing the order.

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State v. McCormick, No. 81193-8. David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he "not frequent areas where minor children are known to congregate...." McCormick's community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick's first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argues that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence. The Court holds that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court's decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices. Justice Sanders dissents, asserting that "[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate." (briefs and argument)

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

State v. McCormick, No. 81193-8 (briefs and argument). David McCormick, a 61-year-old indigent man confined to a wheelchair, regularly picked up food from the St. Vincent DePaul food bank in Everett. A trial court found that McCormick, by visiting this food bank which was located near a parochial grade school, had violated the conditions of his suspended sentence for first-degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program. McCormick denied knowing the food bank was near a grade school. Regardless, the trial court revoked his special sexual offender sentencing alternative, and ordered him to serve a 123-month sentence. The Court of Appeals (Div. I) affirmed. The question before the Supreme Court is whether the State must prove that a defendant willfully violated the conditions of his suspended sentence before the trial court can revoke the suspended sentence.

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In re Pers. Restraint of Brooks, No. 80704-3. Jeffrey Brooks, convicted of three counts of first-degree robbery and one count of residential burglary, was sentenced to 120 months in prison plus 18 to 36 months of community custody. He challenges the sentence as exceeding the maximum, which is 120 months for both imprisonment and community custody. In a unanimous opinion by Justice Chambers, the Court upholds the courts below and finds Brooks's sentence lawful. The Court reasons that Brooks will likely earn early release credits that reduce his sentence below the maximum and, if he does not, the sentence was already amended to note that Brooks total time in confinement and supervision may not exceed 120 months. "We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the apropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum." (briefs and argument)

State v. Hughes, No. 81270-5. Raymond Hughes admitted to sexual intercourse with a 12-year-old girl with cerebral palsy whom he had been hired to nurse. He was charged with both second-degree rape and second-degree rape of a child. Hughes challenges that the two charges amounted to double jeopardy and that his exceptional sentence of 102 months to life is an indeterminate exceptional minimum sentence that exceeds the trial court's authority. Here, in a unanimous opinion by Justice Charles Johnson, the Court holds that the two charges do amount to double jeopardy because they are based on the same single incident and the elements of each crime are essentially identical. The Court rejects Hughes's challenge to his sentence because he was convicted before the Sentencing Reform Act amendments that are essential to his argument. The case is remanded to the trial court to vacate one of the two convictions. (briefs and argument)

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The Supreme Court of Washington will issue opinions in two cases tomorrow: 

In re PRP of Brooks, No. 80704-3 (briefs and argument). Whether the trial court can deliver a sentence where the total time in prison and in community custody potentially exceeds the statutory maximum. Jeffrey Brooks was convicted of three counts of attempted first-degree robbery and one count of residential burglary. These are all class B felonies, with a maximum sentence of 10 years in prison. Brooks was sentenced to 10 years of imprisonment, followed by a period of community custody of 1.5 - 3 years, for each of the four felonies. Brooks claims that this sentence is unlawful because the total time of imprisonment and community custody exceeds the statutory maximum of 10 years.

State v. Hughes, No. 81270-5 (briefs and argument). Whether separate convictions (for second-degree rape and second-degree rape of a child) for the same act constitute double jeopardy. Defendant Raymond Hughes pled guilty to sexual intercourse with a 12-year-old girl he had been hired to nurse. The girl was dying of cerebral palsy. Hughes appealed on the grounds that the two convictions violated his constitutional right against double jeopardy, because both were based on one act of sexual intercourse, and both involve the same basic element (a victim’s incapacity to consent). The Court of Appeals upheld the conviction.

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A note to practitioners: with yesterday’s ruling in Woodinville v. Northshore United Church of Christ, the Washington State Supreme Court has announced that it is relaxing the mandate that attorneys who are briefing claims under the state constitution follow a specific briefing format.

In the case of State v. Gunwall (1986) the Supreme Court provided guidelines to determine when and how the Washington Constitution provides greater protection of individual rights than the United States Constitution.

Litigants were encouraged to address six separate factors to assist the court in evaluating the state constitution: (1) the text of the state constitutional provision at issue, (2) textual differences between parallel state and federal constitutional provisions, (3) state constitutional and common law history, (4) preexisting state law, (5) structural differences between state and federal constitutions, and (6) whether the case involves matters of particular state or local concern.

A few years later, the court suggested that a party’s failure to discuss the six criteria mentioned in Gunwall would preclude the court from considering a constitutional claim. State v. Wethered (1988). Subsequently, the courts adopted a more rigid attitude toward state constitutional arguments. To some extent this barrier was justified; the courts wanted to keep litigants from vaguely invoking the state constitution without adequate argument. But as Hugh Spitzer noted in a law review article, in 11 years after Gunwall was decided, the court avoided state constitutional claims in 57% of cases.

In recent years the Supreme Court has moderated its approach. The court has said a Gunwall analysis is no longer necessary where case law recognizes the need for independent review of the state constitution in the context of a specific legal issue. State v. White (1998). Additionally, once the court has recognized broader rights in a state constitutional provision, a Gunwall analysis is not needed. State v. Jackson (2003). The court even excused a party’s failure to brief the Gunwall factors if the analysis was provided by an amicus party. Eggleston v. Pierce County (2003).

Still, with the numerous approaches articulated by the Supreme Court and Courts of Appeals, it has been difficult for lawyers to anticipate how a court will treat a state constitutional claim. The example from yesterday’s Woodinville ruling is a good example of how Gunwall has been used as an arbitrary barrier: When denied a permit to host a tent city, the Northshore church raised a state constitutional claim. The church briefed the issue, cited relevant case law, and noted that courts have long analyzed religious liberty claims independently under the Washington Constitution. But the Court of Appeals refused to address the church’s state constitutional claim because of its failure to follow a precise Gunwall format.

The NUCC and amicus ACLU of Washington asked the Supreme Court to provide a clear statement of its expectations for Gunwall briefing, and the court obliged. Justice James Johnson wrote for the majority:

A strict rule that courts will not consider state constitutional claims without a complete Gunwall analysis could return briefing into an antiquated writ system where parties may lose their constitutional rights by failing to incant correctly. Gunwall is better understood to prescribe appropriate arguments: if the parties provide argument on state constitutional provisions and citation, a court may consider the issue. This is especially true where, as in many areas, the special protections of our state constitution have been previously recognized by this court. Listing the Gunwall factors is a helpful approach when arguing how Washington’s constitution provides greater rights than its federal counterpart. But failing to subhead a brief with each factor does not foreclose constitutional argument.

I read this as a new, permissive standard: the court still expects appropriate briefing where constitutional claims are raised, but the court will not bar a claim where the party failed to employ Gunwall's exact format or factors. Hopefully, this decision will speed the development of state constitutional jurisprudence. 

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Faust v. Albertson, No. 81356-6. Hawkeye Kinkaid was extremely drunk when his car crossed the center line and struck a car driven by Bianca Faust. Kinkaid died and Faust and her passengers were injured, including one who was rendered paraplegic. Faust sued the Moose Lodge where Kinkaid had been drinking and Alexis Chapman, Kinkaid's girlfriend who had also been serving him drinks. A jury found the Lodge and Chapman liable for negligent overservice according to RCW 66.44.200 and awarded Faust a $14 million judgment. The trial court denied defendants' motion for judgment as a matter of law.

The Division One Court of Appeals reversed and vacated the judgment, believing that the evidence presented at trial was insufficient to show that Kinkaid was "apparently under the influence of liquor" as required by the statute. Here, in an opinion by Justice Owens, the Court unanimously overturns the Court of Appeals decision and reinstates the jury verdict. The Court also rejects the arguments of amici Mothers Against Drunk Driving and the Washington State Association of Justice Foundation (trial lawyers) that the threshold for plaintiffs in these cases should be lowered. (briefs, argument, AP story)

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A. Mark Vanderveen appealed the Washington State Bar Association Disciplinary Board’s recommendation that he be disbarred after his guilty plea for willful failure to file a currency report after receiving cash payments amounting to $20,000. The hearing officer determined disbarment was the presumptive sanction but found mitigating factors and recommended a three-year suspension. The Board modified several of the hearing officer’s findings, including two mitigating factors, and instead recommended disbarment. The Supreme Court, with Justice Charles Johnson writing, upheld the disbarment.

Justice Sanders dissented, arguing that the appropriate sanction for Vanderveen would be a suspension from practice as a willful failure to file does not constitute dishonesty for the purposes of an attorney disciplinary proceeding.

The Seattle Times has this summary of the case.

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In City of Woodinville v. Northshore United Church of Christ (No. 80588-1), the Court was asked whether a city violated a church's religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court of Appeals sided with the City.

In an opinion written by Justice Jim Johnson, the Court overturned the lower court, holding that the City's denial of the permit application violated Article I, Section 11 of the state constitution.

In the summer of 2006 the tent city organizers approached Northshore United about residing on church land. The church agreed, and submitted an application for a temporary permit to the City. At that time a short-term moratorium on temporary use permits was in place, which the City used to justify its refusal to process the church's application. The church allowed the tent city to come onto its property anyway, and the City sued for a restraining order and injunction.

Justice Johnson, joined by six other justices, held that the city's use of a moratorium to deny the church's permit application violated the state constitutional guarantee to "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship." (Article I, Section 11) There was no question of the City's sincere religious beliefs or that the moratorium was not in place to further a "compelling interest" of the City. So the primary question for the Court was "whether the City's actions substantially burden the free exercise of the Church's religious...worship."

The Court held that while incidental burdens on religion, such as requiring a permit, are not unconstitutional, refusing to process the church's permit application entirely was a substantial burden on religion. Since it reached this conclusion based on the state constitution, which the Court found to have greater protection than the federal bill of rights, the opinion did not address  federal claims.

The majority opinion also addressed the question of the tent city being a possible nuisance to the church's neighbors, but found that while the city might have the ability to regulate the manner in which this type of activity is conducted, it cannot simply deny any consideration of the permit.

Justice Sanders, joined by Justice Chambers, filed a concurring opinion in which he agreed with the result but took issue with the majority's holding that general permitting requirements for churches are an incidental (i.e. constitutional) burden. Sanders focused on the constitution's "absolute freedom" language, and argued that allowing the "licensing of religion" is inconsistent with this broad constitutional protection.

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The Supreme Court of Washington will issue rulings in three cases tomorrow, involving religious freedom, overservice of alcohol, and attorney misconduct.

City of Woodinville v. Northshore United Church of Christ, No. 80588-1 (briefs and arguments). This case reviews whether a city violated a church’s religious freedoms when it forbade the church from hosting a tent city for the homeless without a permit. The Court of Appeals held that such a moratorium was constitutional. Also at issue is a question of constitutional significance: whether the Court of Appeals properly refused to address the church’s claims under the state constitution when the church did not provide analysis patterned upon the factors in with the factors State v. Gunwall, 106 Wn.2d 54 (1996). In Gunwall the Supreme Court provided specific factors to analyze to determine whether the Washington Constitution guarantees broader protections for fundamental rights than the U.S. Constitution.

Faust v. Albertson, No. 81356-6 (briefs and argument). Faust appealed this case after the Division One Court of Appeals overturned a jury award of $14 million for the injuries she and her family sustained after being hit by a drunk driver. She had sued the bar the driver had been drinking at before the crash for "negligent overservice" of alcohol to the driver after he was already drunk. The dispute in the case is over the type and level of evidence needed to establish that the establishment's bartenders negligently continued to serve drinks to someone who was visibly intoxicated. Both the WA Association for Justice Foundation (formerly the Trial Lawyers Association) and Mothers Against Drunk Driving filed amicus briefs in the case.

In re Discipline of Vanderveen, No. 200,569-1 (briefs and argument). Attorney Mark Vanderveen was convicted of a felony for accepting $20,000 cash that he believed to be proceeds of an illegal drug ring and failed to properly report the cash to federal authorities. He argues that the Supreme Court should reject the Washington State Disciplinary Board’s recommendation that he be disbarred for his felony conviction.

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The Supreme Court is in recess and will not hear oral arguments this week. The court may issue opinions on July 16.

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City of Bellevue v. Lee, et al., No. 81473-2. The nine respondents in this case each had his or her drivers license suspended after failing to pay a traffic citation fine. The Department of Licencing notified each person of the pending suspension and offered each an administrative review. This current process for license suspensions is the result of the Court's 2004 decision in City of Redmond v. Moore, where it invalidated an earlier drivers license suspension procedure for failing to satisfy due process requirements. Applying the three-pronged test from Mathews v. Eldridge, the Court today holds that Washington's current process for suspending drivers licenses does provide due process and upholds these license suspensions. Susan Owens writes the majority opinion and is joined by all of the other justices except Justice Sanders, who dissents. (briefs and argument)

In re Detention of Anderson, No. 79111-2. As a teenager, John Charles Anderson raped two two-year-old boys and a 13-year-old boy and then sexually abused his roommated in a juvenile rehabilitation center. He was voluntarily committed to Western State Hospital, where he had sexual relationships with at least eight patients; four of these patients were considered particularly vulnerable persons. Anderson decided to leave Western State and the State petitioned to commit him as a sexually violent predator. Anderson refused to use the expert witness provided to him by the state and requested a different expert, Dr. Richard Wollert. The State objected and the trial court denied Anderson's request. At the conclusion of the trial, the court ordered Anderson's commitment and Anderson appealed. He argued that the State had not proved the requisite "recent overt act" and that it wrongly denied his request for a different expert witness. The Court of Appeals sided with the state on the first of these and with Anderson on the second.

Here the Court of Appeals is upheld and the matter remanded for a new trial. Justice James Johnson writes for five members of the Court. Justice Sanders dissents and would dismiss. Justice Fairhurst, joined by Justices Chambers and Stephens, dissents. Both dissenting opinions would find insufficient evidence of a "recent overt act" to justify civil committment. (briefs and argument)

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McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3.  David and Ken McAllister were firefighters for the City of Bellevue. Both made pension contributions for many years under the Firefighters’ Relief and Pensions Act of 1955. When the men retired, the 1955 Act had been replaced by the Law Enforcement Officers’ and Fire Fighters’ System Pension Plan of 1970. Under the more recent 1970 plan, the city is required to pay the McAllisters the difference, if any, between their benefits under LEOFF and what their benefits would have been had they retired under the 1955 Act. The City later determined it had made an excess payment to the McAllisters of approximately $500,000 by relying on definitions contained in LEOFF, rather than the 1955 Act. Upon discovering this, the City began paying a reduced excess payment, but did not seek a reimbursement. The McAllisters challenged the reduced payment. The Supreme Court unanimously upheld the City’s action, with Justice Debra Stephens writing the opinion. “The plain language of RCW 41.26.040(2) further requires that an excess payment be calculated under the prior retirement system, not under LEOFF,” she wrote. (briefs and argument).

State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).

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City of Bellevue v. Lee, et al., No. 81473-2 (briefs and argument). In this case Shin Lee and others respondents had their drivers license suspended for failure to respond, appear, pay or comply with the terms of a traffic citation. Each person was given a notice of suspension with an opportunity to appeal. The respondents challenged the appeal procedure, arguing it does not comply with due process procedures. King County Superior Court ruled the administrative review and appeal of a license suspension is unconstitutional. The question before the Supreme Court is whether the appeals statutes provide adequate safeguards to ensure against the erroneous suspension of a license, so as to meet due process requirements. The Office of the Attorney General filed an amicus curiae brief in support of the City of Bellevue.

In re Detention of Anderson, No. 79111-2 (briefs and argument). John Charles Anderson was committed as a sexually violent predator based on his conduct while at Western State Hospital, and he appealed, arguing that the trial court erred when it (1) admitted statements he made during his treatment at Western State Hospital; (2) found he committed a recent "overt act"; and (3) refused to allow his chosen expert's testimony. The Court of Appeals (Div. II) reversed the commitment and ordered a new trial.

McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3 (briefs and argument). David and Ken McAllister were firefighters in Bellevue, and contributed to a city pension plan. Under this plan, pension benefits were based on firefighters’ salaries, but when calculating benefits, the salaries were considered to be capped at the battalion chief level. David and Ken were Chief and Deputy Chief when they retired, so the pension cap would have applied to them. In 1969, Washington State replaced local pension plans with a single state plan for all firefighters and police. Under this plan salaries are not capped. The state plan provided that if a firefighter would have received higher benefits under a local plan, the local government was responsible to make up the difference. In accordance with this provision, the City of Bellevue made additional payments to the McAllisters. But in calculating the McAllister’s benefits under the city plan, the city did not cap their salaries as the city plan required. When this was discovered, the city reduced its payments to match what the McAllisters should been receiving, but did not require back payments. The McAllisters sued, and lost at trial and on appeal.

State v. Engel, No. 81072-9 (briefs and argument). Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).

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The Supreme Court is in recess and will not hear oral arguments until September. The court may issue opinions on July 9.

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Morgan, Pitchford & McGillivray v. Kingen, 81202-1. Funsters Grand Casino, which was actually a minicasino, opened its doors in SeaTac, Washington, in August 2001. A year later, it filed for Chapter 11 bankruptcy protection, which was converted to Chapter 7 liquidation on April 7, 2003. The bankruptcy court seized Funsters' assets. By that time, Funsters had already failed to pay over $179,000 in wages to over 180 employees. The bankruptcy court did not allow Funsters to use its $85,823 in remaining cash to pay any of the back wages. Plaintiffs here sued on behalf of the class of unpaid Funsters employees, seeking to hold personally liable Funsters CEO and president Gerald Kingen and CFO and general manager Scott Switzer, who were both also part owners in the minicasino enterprise.

The trial court entered summary judgment for plaintiffs and granted them attorney fees, but without a multiplier. Both parties appealed. Today, the Court upholds the trial court and court of appeals, holding that the non-payment of wages here was "willful," thus Kingen and Switzer can be held personally liable under state law. The Court also upholds the lack of a multiplier in the award of attorney fees. Justice Charles Johnson wrote the majority opinion, joined in full by four Justices and joined as to the result only by Justice Chambers. Justice Sanders, joined by Justice Jim Johnson and Justice Pro Tem Dennis Sweeney (sitting in place of Justice Fairhurst), dissented. (briefs and arguments)

The Casino formerly known as Funsters, via Google Maps

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Tomorrow the Supreme Court of Washington will issue at least one ruling: 

Morgan, Pitchford & McGillivray v. Kingen, 81202-1 (briefs and arguments). The question in this case is whether corporate insolvency is a sufficient defense to avoid personal liability when the responsible party otherwise willfully failed to pay wages owed to its employees.

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Estate of Haselwood v. Bremerton Ice Arena, Inc, No. 80411-7. In 2002, the City entered into a concession agreement with Bremerton Ice Arena (BIA) to build and operate an ice arena on public land. The Haselwoods loaned $3,775,000 to BIA for the project, and BIA gave the Haselwoods a promissory note and a deed of trust. The project failed shortly after it began, and the excavation contractor, "RV" recorded a mechanics lien against BIA and the proposed facility in July 2003. A month later, BIA defaulted on the Haselwood loan and the Haselwoods brought a foreclosure action against BIA and its other creditors. The trial court granted partial summary judgment for RV, finding that the mechanics lien had attached only "to certain improvements to the facility," but not to the land or BIA itself. It eventually found that the Haselwood's deed of trust was superior to the claims of all of the other creditors.

The Court of Appeals affirmed in part, but found that the mechanic's lien related back to RV's first delivery of equipment and was superior to the Haselwoods' deed of trust. It also reversed an award of attorney fees to the Haselwoods. In an opinion by Justice Sanders and signed by four other Justices, the Court today upholds the Court of Appeals. Justices Stephens and Madsen concur, but would not foreclose RV's request for attorney fees. Chief Justice Alexander, joined by Justice Charles Johnson, dissents and would find RV's lien inferior to the Haselwoods' deed of trust. (briefs and argument)

 Torgerson v. One Lincoln Tower, LLC, No. 80623-3. The Court of Appeals is affirmed in a unanimous opinion by Justice Sanders. Three real estate agents, Michael Miller, Vicki Ringer, and Joanne Faye Torgerson, were seller's agents for condominiums in One Lincoln Tower, then under construction. Each also contracted to purchase a unit, and their contracts included a provision limiting their remedies for sellers' breach. After some delays in the project and a change of ownership, the seller did breach and the agents sued, asking the court to strike down the remedy-limiting provision. The trial court entered summary judgment for the seller, which was affirmed by the Court of Appeals and is affirmed here as well, with attorneys fees also awarded to the seller. (briefs and argument)

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The Washington Supreme Court will issue two rulings tomorrow.

Estate of Haselwood v. Bremerton Ice Arena, No. 80411-7 (case briefs and arguments). Whether a materialmen’s lien that did not attach to public land upon which improvements were made had priority over a deed of trust to the property filed after delivery of the materials giving rise to the lien.

Torgerson Family Trust v. One Lincoln Tower, LLC, No. 80623-3 (case briefs and arguments). Whether a clause in a real estate purchase and sale contract limiting the remedy for the seller’s breach to return of the buyer’s deposit money is unconscionable, fails of its essential purpose, or is contrary to public policy.

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Cambridge Townhomes v. Pacific Star Roofing, No. 81003-6. Polygon Northwest Company, the general contractor for a condominium development, settled allegations of construction defects with the homeowners association and then sued various subcontractors for breach of contract and indemnification. One of these subcontractors, P.J. Interprise, had been owned by Gerald Utley and disolved in chapter 7 bankruptcy. Polygon had listed only P.J. Interprise and not Utley in its original complaint and the trial court refused to allow Polygon to amend the complaint and pursue a claim against Utley. In a unanimous opinion written by Justice Stephens, the Court upholds a decision of the Court of Appeals that had reversed the trial court's summary judgment in favor of defendants. (Briefs and argument)

Campbell v. Ticor Title Insurance Co., No. 80999-2. A parcel of land was subdivided into three, with a pedestrian easement across lot B. The easement allows owners of lot C to access a dock on Deer Lake. Lot C was sold and the new owner subsequently discovered that a home on lot B blocked the easement. The owner filed various suits, including one to force a new easement on lot A. The Campbells, owners of lot A, claim that their title insurance company, Ticor Title, has a duty to defend them in the suit. Here the Court, in another unanimous opinion by Justice Stephens, upholds the trial and appeals courts, holding that "[Ticor's] policy plainly excludes easements not disclosed by th epublic record or arising after the date the policy issues. Accordingly, there is no conceivable coverage of the Campbells's claims and Ticor owes no duty to defend." (Briefs and argument)

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Homestreet, Inc. v. Dep’t of Revenue, No. 80544-0 (briefs and argument). HomeStreet, Inc., is a residential mortgage lender that services loans it sells or securitizes to secondary lenders. It received tax deductions for the interest retained from these loans under RCW 82.04.4292 until the Department of Revenue (DOR) issued an order requiring HomeStreet to pay business and occupation (B&O) taxes. HomeStreet paid the taxes but then sued DOR for a refund. The trial court ruled for DOR, which was affirmed by the Court of Appeals. The Supreme Court reversed the Court of Appeals and ordered DOR to refund the taxes to HomeStreet. Justice Richard Sanders wrote the majority with five other justices joining. Justices Madsen and Chambers dissent (Justice Fairhurst did not participate).

State v. Koslowski, No. 80427-3 (briefs and argument). Duane Koslowski was convicted of first degree robbery, first degree burglary, and first degree unlawful possession of a firearm as a result of the robbery at Ms. Violet Alvarez’s home. Ms. Alvarez died before trial from causes unrelated to this case, but at trial the prosecution introduced statements Ms. Alvarez made to police officers investigating the break-in. Mr. Koslowski argues that his right of confrontation under the Sixth Amendment is violated by the admission of Ms. Alvarez’s statements. The U.S. Supreme Court has said this “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36 (2004).

Statements to police are “testimonial” when there is no ongoing emergency, and the primary purpose of the interrogation is to establish past events related to a later criminal prosecution. “Nontestimonial” statements are made in the course of a police interrogation to enable the police to address an ongoing emergency—for example, attempting to apprehend a suspect in the immediate vicinity.

In this case, the Washington State Supreme Court reasoned that although the police responded to Alvarez’s 911 call immediately, and although she was clearly frightened, the immediate danger had passed. The crime had been completed, and the burglars had left the area. Accordingly, the court decided Alvarez’s statements were testimonial in nature.

Writing for the majority, Justice Barbara Madsen said: “The confrontation clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Because Mr. Koslowski had no prior opportunity for cross-examination, the admission of Ms. Alvarez’s statements was constitutional error. This error was not harmless because without admission of these statements, there is not overwhelming, untainted evidence that Koslowski was armed at the time he committed the offenses involving Ms. Alvarez.” Justice Richard Sanders filed an opinion concurring in the result, while Chief Justice Alexander dissented, along with both Justice Johnsons.

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The Washington Supreme Court will issue rulings in four cases tomorrow.

Cambridge Townhomes v. Pacific Star Roofing, No. 81003-6. Whether summary judgment was appropriate where a breach of contract and indemnification was claimed as a result of construction defects. (Briefs and argument.)

Campbell v. Ticor Title Insurance Co., No. 80999-2. Does the title company have a duty to defend an insured-landowner in a suit against the landowner to reform the landowner's deed? (Briefs and argument.)

Homestreet, Inc. v. Dep’t of Revenue, No. 80544-0. Can a taxpayer receive tax deductions for revenue received from interest payments? (Briefs and argument.)

State v. Koslowski, No. 80427-3. Whether the trial court in a prosecution for robbery and burglary violated the defendant’s right of confrontation by admitting into evidence statements by the unavailable victim in response to police questioning after the crimes were completed. The victim died prior to trial of causes unrelated to this case. (Briefs and argument.)

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No cases are scheduled for argument this week. The Supreme Court may issue one or more rulings on Thursday.

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In Re Stephen Eugster, No. 200,568-3. Attorney Stephen Eugster got caught up in a dispute between his elderly client and her son. The Washington State Bar Association filed a complaint against Eugster alleging multiple ethical violations, including failure to abide by his client's objectives, disclosure of confidential information, and wrongfully filing a petition for guardianship. A hearing officer determined that "Eugster acted knowingly and intentionally" and that his actions caused financial and other harm. The findings were unanimously approved by the Disciplinary Board, which recommended disbarment. In an opinion by Justice Chambers and joined by four other justices, the Court declines to disbar Eugster and instead suspends him for 18 months. Justice Fairhurst, with three other justices, filed a strong dissent arguing for disbarment. (Briefs, argument).

State v. Riofta, No. 79407-3. Ten people were gunned down, five of them killed, in Tacoma's "Trang Dai massacre" on July 5, 1998. One of the suspects, Veasna Sok, had agreed to testify against the other defendants. On January 27, 2000, Veasna's brother Ratthana was confronted near his home by a man he recognized as "Alex," someone he had known in the neighborhood for several years and who was associated with some of the Trang Dai defendants. Alex pulled out a revolver and fired multiple shots at close range at Ratthana, who escaped uninjured. Ratthana identified Alex Riofta from a photograph at the police station, and Riofta was convicted of first degree assault with a firearm. Riofta subsequently sought DNA testing of a white hat found at the crime scene.

Here, the Court upholds the decisions below and declines to order a DNA hat test per RCW 10.73.170. The majority holds that Riofta failed to show that the results of a DNA test on the hat (which had been stolen the day before Ratthana was shot at) "would demonstrated innocence on a more probable than not basis." Justice Madsen penned the opinion and was joined by five other justices. Justice Charles Johnson authored a dissent joined by Justices Sanders and Chambers, and Justice Chambers wrote a separate dissent calling on the legislature to provide greater clarity. (2003 appeal, 2006 appeal, briefs, argument)

State v. Thomas, No. 80643-8. Covell Paul Thomas robbed and murdered Richard Geist, gunning the small business owner down at close range in order to steal about $5000 in cash. Thomas was originally sentenced to die; that sentence was overturned due to an improper jury instruction on the aggravating factors. On remand, the state sought only life imprisonment. A jury found that Thomas had committed four aggravating factors and the trial judge sentenced Thomas to life without the possibility of parole. Thomas again challenges the jury instructions and also brings due process, Double Jeopardy, Batson v. Kentucky, and other claims. The Court rejects them all, with Justice Madsen writing for a majority of seven. Justice Sanders, joined by Justice Stephens, dissents. (Earlier opinion, briefs, argument)

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The Supreme Court of Washington will issue at least three decisions tomorrow.

In Re Stephen Eugster, No. 200,568-3 (argument). The court will determine whether it should reject the Washington State Bar Association Disciplinary Board's recommendation that attorney Stephen Eugster should be disbarred.

State v. Riofta, No. 79407-3 (argument). The issue here is whether a convicted felon can request post-conviction DNA testing of evidence presented at trial when this evidence was available for testing, but not requested at the time of trial.

State v. Thomas, No. 80643-8 (argument). Mr. Thomas was convicted of first degree murder. The question here is whether, in an aggravated first degree murder trial, the trial court’s failure to instruct the jury that it had to find that the aggravating factors applied personally to the defendant was harmless error.

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The Washington Supreme Court will hear oral arguments on June 9 and June 11. The court may issue rulings on June 11.

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Ames v. Dep't of Health, No. 80644-6. Dr. Geoffry Ames operated a "purported holistic medical practice in Richland, Washington," where he told a patient he could diagnose and treat allergies using a galvanic skin response machine called "LISTEN" (Life Information System Ten). The machine has not been approved by the FDA for those purposes. Additionally, Ames claimed that "he was able to replicate what the machine could do telepathically...." After the patient filed a complaint with the Department of Health, Ames was determined to have committed acts of professional misconduct under Washington law and sanctioned. Ames challenged that insufficient expert witness testimony was presented at the administrative hearing. Here Justice Owens writes for a unanimous court upholding the decisions below, finding that the "evidence presented demonstrated by clear and convincing evidence to a layperson that [Ames] was using a machine for purposes for which it was not designed and for which he was not specifically trained." (Briefs and oral argument)

Lundsford v. Saberhagen Holdings, Inc., No. 80728-1. Ronald and Esther Lunsford brought an action for negligence and strict product liability against Saberhagen Holdings. Saberhagen is the successor in interest to The Brower Company, which provided asbestos insulation products that Ronald Lunsford's father worked with in 1958. Those fibers apparently contributed to Ronald Lunsford's mesothelioma. Until 1992, there was an exception to the retrospective application of court decisions to pre-existing claims. This "selective prospectivity" exception was eliminated in Robinson v. City of Seattle. Saberhagen argues that Robinson has been subsequently overturned and that selective prospectivity applies in this case against the strict product liability claim. Justice Fairhurst, joined by five justices, holds that Robinson has not been overturned and that "strict product liability applies retroactively to all cases not barred by procedural requirements or goverend by the tort reform act, including Lunsford's ... claims...." Justice Madsen authored a concurrence signed by Chief Justice Alexander and Justice Jim Johnson disagreeing with the Court's strict interpretation of Robinson. (Briefs and oral argument)

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State v. Garvin, No. 80941-1. His car had seen better days when, on October 21, 2005, Anthony Garvin was pulled over for a shattered windshield and inoperable brake lights. During the stop, Union Gap Police Officer Gregory Cobb noticed that the car's ignition was broken; Garvin had a knife on the passenger seat that he was using in place of a key. Officer Cobb and his partner removed Cobb from the car and performed a "pat-down" search, ostensibly a "Terry stop" according to Terry v. Ohio (a 1968 U.S. Supreme Court case permitting police to conduct a cursory, warantless search of a person who is believed to be "armed and presently dangerous.")

During the search, a "dime bag" of methamphetamine was found in the coin pocket of Garvin's jeans. He was arrested and subsequently convicted for drug possession. Garvin appealed, challenging the legality of the search; the Court of Appeals held that the search was a legal Terry stop and affirmed the conviction.

Justice Sanders, for a unanimous Court, holds that the search "exceeded the permissible scope of a limited Terry stop-and-frisk" and reverses the conviction.

We hold it is unlawful for officers to continue squeezing -- whether in one slow motion or several -- after they have determined a suspect does not have a weapon, to find whether the suspect is carrying drugs or other contraband. If that were permissible, there would be little to distinguish a frisk incident to a Terry stop from a general search for contraband, and we strongly disapprove of such legal fiction. Indeed, one of the narrowly drawn exceptions to the warrant requirement would swallow the rule.

(case briefs and argument)

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Tomorrow the Washington Supreme Court will issue a ruling in at least one case.

State v. Garvin, No. 80941-1 (case briefs and argument). Are police officers limited to pat downs, or can they “squeeze” a defendant’s pockets to determine the nature of objects in the pocket? An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin argues that the officer is not allowed to manipulate objects within the clothing, and squeeze method exceeds the scope of a valid frisk under the "stop and frisk" rule articulated in Terry v. Ohio, 392 U.S. 1 (1968). He moved to suppress the evidence seized, and the trial court denied the motion. Garvin was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.

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The court today released three opinions in two cases.

In re F5 Networks, Inc., No. 81817-7 Justice Chambers writes for a unanimous Court, answering two questions certified from the U.S. District Court for the Western District of Washington. Shareholders of F5, a Washington-based technology company, sued alleging improper backdating of stock options. The questions both revolve around the plaintiff's failure to first demand action by the corporate board. Does Washington law require such a demand before commencing litigation (a "universal demand" requirement), or does it allow plaintiff's to proceed in litigation if such a demand would have been futile (the "demand futility standard")? The Court today holds that, "until the legislature says otherwise, Washington follows Delaware's demand futility standard and the reasoning of Ryan [a similar case from Delaware where such a suit was allowed to proceed]." (case briefs, argument, "F5 Networks to restate financials back to 2001", "State Ruling Could Blunt Backdating Litigation Wave")

State v. Elmi, No. 80380-3 Justice Charles Johnson writes for a six-member majority, upholding Ali Elmi's convictions for first degree assault with a firearm. Elmi fired multiple gunshots into a house after he saw his estranged wife look out the window. The shots missed his wife and three young children who, unbeknownst to Elmi, were with her in the room. The question here was whether Elmi had the criminal intent necessary for the assault convictions against the three children. The Court holds that he did.

Where a defendant intends to shoot into and to hit someone occupying a house, a tavern, or a car, she or he certainly bears the risk of multiple convictions when several victims are present, regardless of whether the defendant knows of their presence. And, because the intent is the same, criminal culpability should be the same where a number of persons are present but physically unharmed.

Justice Madsen, joined by Justices Sanders and Fairhurst, dissent, arguing that the legislature's statutory doctrine of transfered intent was not intended to be and is not broader than the common law doctrine. At common law, the doctrine provides that "a defendant who shoots at B but misses and hits C instead" may be punished as he had intended to shoot C. The dissent challenges that "Using the transferred intent doctrine to hold a defendant liable for inchoate crimes like attempted battery criminalizes the unintended and unaccomplished potential consequences of a defendant's actions." (case briefs and argument).

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Tomorrow the Washington Supreme Court will issue rulings in at least two cases.

In re F5 Networks, Inc., No. 81817-7 (case briefs and argument). This case is a request for clarification from the U.S. District Court for the Western District of Washington. The District Court wants to know how to interpret Washington law for a situation where a group of shareholders brought a lawsuit (a derivative action) on behalf of a corporation against its officers for alleged backdating of stock options and insider trading. The shareholders did not first demand that the corporate board take action, so the question is (1) whether they were excused from making that normally required step if such a demand would have been futile, and (2) would futility be shown by board approval of the backdating?

State v. Elmi, No. 80380-3 (case briefs and argument). The question here is whether a defendant can be convicted of first degree assault for intending great bodily harm to one person but assaulting another, where the second person is not touched. Standing outside, Ali Elmi fired three bullets into a living room after his estranged wife, Fadumo Aden, looked out the window. The shots missed Aden and three young children. Elmi was charged and convicted of attempted first degree murder and four counts of first degree assault with a deadly weapon. Elmi argued he was not aware of the presence of the children, but he was convicted under the “transferred intent” doctrine. The Court of Appeals upheld the convictions, vacating only the conviction of assault against Aden.

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Sanders v. State, No. 80393-5. In a 5-4 decision by a panel of pro tem justices (judges drawn from lower appellate courts to act as State Supreme Court justices in this case only), the Court upholds an appeals court decision that the State is not obligated to pay for a judge's defense in an ethics case if the judge "knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act."

In 2003, Justice Richard Sanders visited the Special Commitment Center (SCC) on McNeil Island, a State facility where certain convicted sex offenders were being held. A complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders talked with SCC residents who had cases pending before the Washington State Supreme Court. In 2005, the Commission held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct.

During the Commission's investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general refused, and Justice Sanders filed suit. A superior court judge dismissed the action, was upheld on appeal, and is upheld today. One dissent challenges that the majority fails to enforce the plain meaning of the statute or to create a workable framework for deciding future cases; a second dissent faults the majority for "improperly rel[ying] on the outcome of the underlying case as the basis for its decision." (case briefs and argument)

Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). Can a Limited Liability Corporation sue or be sued after its certificate of formation is canceled? No, says the Supreme Court in an opinion by Justice Madsen, after cancellation an LLC ceases to exist as a legal entity and can neither sue nor be sued. These consolidated cases arose when homeowners associations sued the LLCs that had built their communities but had subsequently been canceled. While the LLCs no longer exist, however, the Court holds that the LLC members may be sued based on the same veil-piercing provisions that would apply while the LLC remained in existance. Justice Charles Johnson, joined by three other justices, dissents. (case briefs and argument)

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The Supreme Court will issue rulings in two cases tomorrow.

Sanders v. State, No. 80393-5 (case briefs and argument). It’s not often that a seated Supreme Court justice has his own case before the court, but tomorrow the court will rule in a case brought by Justice Richard Sanders. The question here is whether the State has a duty to defend a judge in disciplinary proceedings.

On January 27, 2003, Justice Sanders visited the Special Commitment Center (SCC) on McNeil Island. Following that visit, a complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders had had contact with SCC residents who had cases pending before the Washington State Supreme Court. The Commission investigated the complaint and in 2005 held  that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct. (The state Supreme Court eventually upheld this ruling. In re Disciplinary Proceeding Against Sanders, 159 Wash.2d 517 (2006).)

During the Commission investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general declined. Justice Sanders sued, and a superior court judge dismissed the action. On appeal, the Court of Appeals held that the attorney general acted within its discretion.

This case was heard by an panel of pro tem justices.

Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). The question addressed in these cases is whether limited liability companies can continue to sue and to be sued after they are cancelled in accordance with the Washington Limited Liability Companies Act. (case briefs and argument)

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The Supreme Court was largely in agreement today, issuing opinions in five cases, with no dissents.

In re the Estate of Kissinger, No. 81328-1. The Supreme Court unanimously held Joshua Hoge “willfully and unlawfully” killed his mother and cannot collect a portion of the wrongful death settlement obtained by his mother’s estate, under the state’s “Slayer Statute.” Justice Tom Chambers wrote the opinion.

In re Recall of Telford and McGreggor, No. 81865-7. The Supreme Court unanimously dismissed a recall petition against two Port of Olympia Commissioners. The petitioner presented a constitutional challenge to the requirement that a recall petition be reviewed by a superior court for factual and legal sufficiency, arguing this is an unconstitutional limit on citizens' right to recall public officials. The Supreme Court rejected this challenge, with Justice Barbara Madsen writing the opinion.

In re Interest of Silva, No. 81573-9. This case involves the judicial authority to incarcerate a child for contempt of court for failing to comply with court orders entered in at-risk youth (ARY) proceedings. The Supreme Court held that a juvenile court in an ARY proceeding must find all statutory contempt sanctions inadequate before it may exercise its inherent contempt power to sanction a youth. In this case, the juvenile court failed to do so, and the Supreme Court vacated the contempt order. Justice Charles Johnson wrote the opinion of the court, with Justices Madsen and Fairhurst concurring in the result.

Tomlinson v. Puget Sound Freight Lines, No. 80811-2. James Tomlinson fell down a flight of stairs and injured his arthritic left knee while working for Puget Sound Freight Lines. After total knee replacement surgery, he filed a claim for permanent partial disability compensation under the Industrial Insurance Act. The Department of Labor & Industries awarded Tomlinson a permanent partial disability payment of 75 percent of the amputation value of his left leg above the knee, less the preexisting 50 percent attributable to his arthritis. Tomlinson challenged the finding of preexisting condition, arguing that he had no functional impairment that required modification of his work activities. The Supreme Court upheld the L&I award in favor of the employer, with Justice Tom Chambers writing the opinion.

Weber v. Associated Surgeons, No. 82163-1. At issue is whether a plaintiff properly served the defendant with his complaint for medical malpractice. The Supreme Court (in an unsigned opinion) held that service upon the registered agent's office manager satisfied service of process requirements. Charles Weber suffered an injury and was treated by Dr. Michael Moore, of Associated Surgeons. Dr. Gregory Luna was Associated Surgeons' registered agent. Associated Surgeons stopped doing business in 2004, but remained a registered corporation as of February 2007. In 2007, Dr. Luna worked for Inland Vascular Institute in Spokane, Washington. Weber sued Associated Surgeons for malpractice, and a process server attempted to serve Associated Surgeons at Inland Vascular, where Dr. Luna then worked. Associated Surgeons moved to dismiss the suit because the Webers failed to properly serve it.

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In re the Estate of Kissinger, No. 81328-1. Can Joshua Hoge, who killed his mother and was ruled not guilty by reason of insanity, inherit a portion of the wrongful death settlement obtained by his mother’s estate? The Supreme Court of Washington unanimously said “no,” with Justice Tom Chambers writing the opinion.

The question before the court was whether Hoge was a “slayer” as defined by the state’s “Slayer Statute” (RCW 11.84) and was therefore barred from benefiting from his mother’s death. Washington’s slayer statute prohibits individuals who have participated in the “willful and unlawful” killing of another person from receiving any benefit as a result of their acts. But when a person is held not guilty by reason of insanity, can his act be characterized as willful and unlawful?

Hoge has a long history of mental illness. On June 23, 1999, Hoge entered his mother’s house and stabbed her and his stepbrother to death. Hoge also attempted to kill his mother’s boyfriend with an ax. At the time, Hoge was not taking his antipsychotic medication. Hoge pleaded not guilty by reason of insanity, and stipulated that he had committed the acts. On January 13, 2000, Hoge was acquitted by reason of insanity and the court entered an order committing him to treatment at a state mental hospital.

The estate of Pamela Kissiner, Hoge’s mother, filed a wrongful death lawsuit against the state mental health agency, claiming it was liable for Kissinger’s death for not timely providing the medications necessary to control Hoge’s mental illness. The lawsuit was settled, and the personal representative of the estate then filed a petition, arguing that Hoge was prohibited from sharing in the proceeds of the settlement.

Hoge argued that because he was found “not guilty” by reason of insanity, he was absolved of any wrongdoing. (The insanity defense says a defendant, as a result of a mental disease or defect, was unable to perceive the nature and quality of the act or that he was unable to tell right from wrong with reference to the particular act charged.)

The Supreme Court looked at the meanings of “willful and unlawful.” Justice Chambers wrote: “The insanity statute does not make homicide lawful; it simply declines to punish a defendant who has committed an unlawful act but is found legally insane.” Therefore, the court held “not guilty by reason of insanity does not make an otherwise unlawful act lawful for application of the slayer statute.”

The court has previously interpreted the meaning of “willful” in the context of the slayer statute in the Jones case, holding that “willful” was to be given its ordinary, everyday meaning – whether an act was committed “intentionally and designedly.” Justice Chambers held that Jones applied in this case. The Supreme Court departed from the Court of Appeals, which had sent the case back to trial court to evaluate whether the act was committed willfully. Justice Chambers wrote that the evidence clearly shows that Hoge intentionally and designedly, and therefore remanding the case was unnecessary. (More background on the case in this Seattle Times story.)

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The Supreme Court will issue opinions in several cases tomorrow.

In re the Estate of Kissinger, No. 81328-1. In this case, Joshua Hoge seeks the estate of the mother he killed. Hoge killed his mother and brother with a butcher knife in 1999, but was found not guilty by reason of insanity (Seattle Times story here). The question before the Supreme Court now is whether Hoge is prevented from inheriting a portion of his mother’s estate under the “Slayer Statute” (RCW 11.84.020), which prevents killers from profiting from the deaths of their victims. After the murder of Pamela Kissinger, Hoge’s mother, her family was awarded $800,000 for Kissinger’s wrongful death when it was determined a public-health clinic was partially responsible for the deaths after it failed to give Hoge required medication.

The law defines a slayer as someone who participates in the willing and unlawful killing of another. The question, therefore, is whether one who was held not guilty by reason of insanity can be said to have acted unlawfully. The trial court held that Joshua Hoge killed his mother willfully and unlawfully, and was therefore prevented from sharing in the proceeds. The Court of Appeals held that while the killings were unlawful, the trial court applied the incorrect standard to determine whether the killings were willful. (Case briefs and argument.)

In re Interest of Silva, No. 81573-9. In 2007, Estevan Silva’s mother filed an At Risk Youth petition, arguing that Estevan had not attended school most of the school year and was using alcohol and illegal drugs, and other allegations. Estevan admitted to the allegations, and agreed to the entry of an ARY disposition order. The juvenile court explained to him that the order required him to not run away from home, to attend school, and to avoid alcohol and drugs. Within two weeks, Estevan’s mother asked the court to find him in contempt. After several contempt hearings, the court imposed a 45 day sentence, with 43 days suspended pending certain conditions were met. Estevan’s attorney argues that the juvenile court imposed criminal sanctions without following the proper procedure for such sanctions. The question is whether the juvenile court properly exercised its inherent contempt authority in the At-Risk-Youth proceeding. (Case briefs and argument.)

Tomlinson v. Puget Sound Freight Lines, No. 80811-2. James Tomlinson is seeking benefits under the Industrial Insurance Act. Tomlinson had arthritis in his knee, and the question is whether this qualifies as a preexisting condition to a workplace injury. Tomlinson fell down a flight of stairs and injured his arthritic left knee while working for Puget Sound Freight Lines. After total knee replacement surgery, he filed a claim for permanent partial disability compensation under the Industrial Insurance Act. The Department of Labor & Industries awarded Tomlinson a permanent partial disability payment of 75 percent of the amputation value of his left leg above the knee, less the preexisting 50 percent attributable to his arthritis. Tomlinson challenged the finding of preexisting condition, arguing that he had no functional impairment that required modification of his work activities. The Pierce County Superior Court ruled in favor of Puget Sound Freight Lines, affirming L&I’s decision allowing the 50 percent credit. The Court of Appeals upheld this ruling. (Case briefs and argument.)

Weber v. Associated Surgeons, No. 82163-1. This case involves the sufficiency of service of process. Charles Weber suffered leg injuries in November 2002, and was treated by Dr. Michael Moore, of Associated Surgeons. Dr. Gregory Luna was Associated Surgeons' registered agent. Associated Surgeons stopped doing business in 2004, but remained a registered corporation as of February 2007. In 2007, Dr. Luna worked for Inland Vascular Institute in Spokane, Washington. Charles and Brenda Weber sued Associated Surgeons in 2006 for malpractice. A process server attempted to serve process on Associated Surgeons by delivering a summons and complaint to a woman at Inland Vascular was not authorized to accept service on Inland Vascular's behalf, and who had never worked for Associated Surgeons. Associated Surgeons moved to dismiss the suit because the Webers failed to properly serve it. The trial court granted the motion. The Court of Appeals affirmed, ruling that the Webers did not serve the summons and complaint on Associated Surgeons as required by law.

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In Powell the Court focused on whether the trial court's admission of evidence of drug use by the defendant, without parallel testimony explaining the effect of the drug, was an error requiring reversal. Writing for a plurality, Justice Mary Fairhurst determined that because the defendant's attorney failed to raise this issue at the trial court and because there was no "manifest constitutional error," the trial court's guilty verdict should be upheld.

Jason Powell was convicted of attempted burglary in the first degree for trying to break into his girlfriend's home while carrying a loaded gun. The prosecution called Powell's roommate to testify that he had seen Powell take methamphetamine right before he went to his girlfriend's house. Testimony about past crimes or bad acts are generally inadmissible to directly prove that a person was likely to commit the crime in question, as they are highly likely to prejudice a jury against the defendant. But they can be used to show things like a person's state of mind or intent. In this case, the State was attempting to show Powell's state of mind at the time he went to his girlfriend's house. The Court found that Powell's attorney objected to the credibility of the witness, but didn't preserve on the record a concern about its prejudicial effect.

The Court of Appeals reversed the conviction, saying the State should have provided expert testimony to explain the likely effects of meth, but the Supreme Court disagreed because the need for such a procedure was not raised at the trial court. As it was an "uncontested issue." Fairhurst wrote that the Court therefore could not review it unless they determined it constituted a manifest error of constitutional magnitude. It did not, as there was no evidence showing the roommate's testimony had practical and identifiable consequences on the outcome of the trial.

Justice Stephens wrote a concurring opinion in which she agreed that the error was harmless, but disagreed that the objection had not been preserved at trial court. Justices Alexander and Chambers signed her concurrence.

Justice Sanders dissented, joined by Justice Charles Johnson. He argued that the objection to the prejudicial nature of the testimony was preserved at the trial court, and that the testimony should not have been allowed because it was prejudicial, misleading, and of no value to the jury.

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State v. Knippling, No. 80848-1.  The issue is whether a juvenile conviction for second degree robbery qualified as a “strike” under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). Writing for a unanimous court, Chief Justice Gerry Alexander concluded that the State has not met its burden of showing that Tucero Knippling is a persistent offender under the POAA.

Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed.

The 1999 judgment and sentence indicated on its face that Knippling was 16 years of age at the time of the conviction. According to the record, Knippling was in superior court because the State had initially charged him with first degree robbery, a crime over which the superior court has automatic jurisdiction. Although plea negotiations resulted in the first degree robbery charge being reduced to second degree robbery, a crime over which the juvenile court had exclusive jurisdiction, there had been no remand to juvenile court.

In order to establish Knippling's third strike, the State had to prove that Knippling was convicted as an offender on two prior and separate occasions. In persistent offender proceedings under the POAA, the State bears the burden of proving by a preponderance of the evidence the existence of prior convictions, whether used for determining an offender score or as predicate strike offenses for purposes of the POAA.

The Supreme Court said the State did not meet its burden of showing that Knippling was convicted as an "offender" in 1999 because there was no evidence in the record that the superior court had jurisdiction over Knippling. “This is critical because, as we noted above, to classify Knippling as an ‘offender,’ the State had to show that Knippling was convicted of an automatic decline charge or that the juvenile court declined jurisdiction. The State has shown neither.”

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

State v. Knippling, No. 80848-1. Defendant Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed. (case briefs and argument)

State v. Powell, No. 80535-1. Jason Powell was convicted of first degree burglary while armed with a firearm. He was arrested after a confrontation with the mother of his child. A friend of Powell’s testified at trial that he witnessed Powell using methamphetamine and had acted strangely just before the defendant went to his ex-girlfriend’s house. The Court of Appeals reversed the conviction and ordered a new trial, as the prosecutor failed to offer expert witness as to the possible effects methamphetamine could have had on the defendant. The prosecutor appealed. (case briefs and argument)

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The Supreme Court will consider several petitions for review on April 28, and may issue one or more opinions on April 30. No oral arguments are scheduled.

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No new opinions have been released by the Supreme Court. We will keep you updated if any are announced later today.  

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The Supreme Court may issue one or more opinions on April 23. No oral arguments are scheduled while the court is in recess until May.

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In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, Anthony Bradley was twice arrested for possession of cocaine with the intent to deliver. One charge was reduced to simple possession and Bradley pleaded guilty to both. He later discovered that his offender score on the lesser charge had been miscalculated, suggesting a longer standard sentence for that charge. The question here is whether his pleas were "part of an indivisible 'packaged deal,'" allowing Bradley to withdraw both. The Court holds that the pleas are indivisible and grants the petition with a majority opinion by Justice Stephens, joined by Justices Chambers, Fairhurst, C. Johnson, and Madsen. Justice Owens, joined by Justice Sanders, concurs but suggests the Court should have ordered "additional fact finding on remand...." Chief Justice Alexander, with Justice J. Johnson, dissent. (Case briefs and argument)

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Ashmore v. Estate of Duff, No. 82052-0. Today in an unsigned per curiam opinion, the Supreme Court overturned a Court of Appeals ruling involving a real estate deal. The separate estates of a deceased couple disputed whether the husband's estate could sell real property that the wife might have an interest in. The purchaser of the property brought this action against both estates.

Elmer and Elsie Duff were married for 30 years. Elmer predeceased Elsie by a few months, specifically leaving nothing to Elsie in his will. After Elsie’s death, George Granberg, the personal representative of Elmer’s estate, entered into an agreement with Alan Ashmore to sell Ashmore the Duff home for $100,000. Carol Harting, Elsie’s daughter and personal representative of Elsie’s estate, sought to enjoin the sale, claiming that Elsie had a community property interest in the Duff residence. After a hearing the court granted this motion. Granberg then filed an action to determine Elmer’s and Elsie’s respective ownership rights. The trial court eventually ordered Elmer’s representative to convey the property to Elsie’s representative.

While that action was underway, but before the court’s order to convey the property, Ashmore’s attorney contacted the parties expressing the belief that Elsie had no claim to the property and demanding sale of the property to Ashmore. After the court’s order, Ashmore filed an action seeking specific performance of his purchase and sale agreement. Harting responded that the agreement expired in December 2005 and that Ashmore and Granberg did not extend it. The trial court ruled that Harting was judicially estopped from arguing that the agreement expired because she successfully enjoined the sale in November 2005. The court therefore ordered specific performance.

The Supreme Court noted that the theory of judicial estoppel “prevents a party from asserting one position in a judicial proceeding and later taking an inconsistent position to gain an advantage.”

The core factors are whether the later position is clearly inconsistent with the earlier position, whether judicial acceptance of the second position would create a perception that either the first or second court was misled by the party’s position, and whether the party asserting the inconsistent position would obtain an unfair advantage or imposes an unfair detriment on the opposing party if not estopped.

The Supreme Court ruled that Elsie’s personal representative did not take inconsistent positions, and that the trial court had not been misled. The court reversed the appeals court and remanded for further proceedings.

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

Ashmore v. Estate of Duff, No. 82052-0. Whether a real estate sale should proceed. Elmer Duff and his wife Elsie died in 2005 within a few months of each other. Mr. Duff’s personal representative executed a real estate purchase and sale agreement for $100,000 with Alan Ashmore for real property in Walla Walla. Ms. Duff’s personal representative moved to enjoin the sale, believing Ms. Duff had a community or lien interest in the property and that it had been undervalued. She offered to buy the house for $105,000. The court granted her motion to enjoin the sale while the estate's affairs were finalized. 

Over a year later, Mr. Ashmore sent a demand letter demanding to close the sale. Ms. Duff’s representative rejected his demand, stating that the sale agreement with Mr. Ashmore. Mr. Ashmore sued. The trial court ruled Mr. Ashmore was entitled to specific performance of the purchase and sale agreement, and that Ms. Duff’s representative was prevented from claiming expiration of the agreement, as closing was made legally impossible through no fault of Mr. Ashmore. The Court of Appeals agreed.

In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, petitioner Anthony Bradley pled guilty to possessing cocaine with the intent to deliver. In agreeing to the plea deal, Mr. Bradley had been misinformed about the standard penalty range for the possession charge. The question before the court is whether his plea was voluntary and whether it can be withdrawn. (Case briefs and argument)

State v. Mendoza, No. 80477-0 & State v. Henderson, No. 80553-9 (consolidated).  The issue in these consolidated appeals is whether criminal defendants acknowledge their prior criminal convictions as asserted by the state when they fail to object at sentencing.

Frank Mendoza was convicted of second degree robbery and unlawful imprisonment. At trial, Mr. Mendoza’s attorney inadvertently elicited information from a witness about Mr. Mendoza’s prior criminal history. At the sentencing phase of the trial, the prosecuting attorney submitted a statement of the defendant’s criminal history, and the prosecutor referred to the criminal history in his remarks to the court. Defense counsel made no objection to the criminal history and accepted it as presented. Mr. Mendoza appealed his conviction on the basis of ineffective counsel and trial court errors. The Court of Appeals upheld the conviction, but remanded the case for resentencing, requiring the State to prove Mendoza’s criminal history by a preponderance of the evidence. The State of Washington appealed to the Supreme Court. (Case briefs and argument)

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The Supreme Court may issue one or more opinions on April 16. No oral arguments are scheduled while the court is in recess until May.

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State v. Sutherby, No. 80169-0 (case briefs and arguments). The Supreme Court threw out a child rape conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter ("L.K.") stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Randy Sutherby was arrested and charged with first degree rape of a child and first degree child molestation. A subsequent search of his personal computer found child pornography, and he was charged with “10 counts of possession of depictions of minors engaged in sexually explicit conduct.” He was convicted by a jury on all counts and appealed.

The Court here considers two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?” Justice Stephens, joined by five other justices, reversed the multiple charges of possession, and reversed the rape and molestation convictions and ordered a retrial.

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.” The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition. The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

Justices Fairhurst and Madsen agreed with the majority on the child pornography issue, but dissented on the severance issue. Justice James Johnson dissented on all issues, arguing that Sutherby received a fair trial and was properly convicted. Johnson opened and closed his opinion with, “Poor little L.K.”

UPDATE: The Seattle PI took note of Justice Johnson's emotional dissent here.

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In re Marriage of Bernard, No. 80348-0 (case briefs and argument). How good is your prenup? Just don’t sign it at the last minute. Today by a 6-3 vote, with Justice Stephens writing the majority, the court invalidated a prenuptial agreement after finding it both substantively and procedurally unfair.

Thomas Bernard hired Gloria as an operations manager for his company. Three years later, the two began dating. Thomas proposed to Gloria but said he would require a prenuptial agreement – he was 55 and worth $25 million; she was 49 and had a net worth of $8,000. In January 2000 Thomas and his attorney began working on the prenup, but did not provide Gloria with a copy. Despite several suggestions to Gloria that she obtain independent counsel, she never hired a lawyer. Then 18 days before the wedding, Gloria received a draft of the prenup. A few weeks later Gloria met with an attorney, but the two received a new draft of the agreement that was substantially different than the previous version. The day before the wedding, Gloria’s lawyer identified major concerns with the agreement, and outlined these concerns in a letter. Concerned that Thomas would call off the wedding, Gloria signed the prenup, and the two signed a “side letter” agreeing to renegotiate the areas addressed by Gloria’s lawyer. This amendment was finalized a year after the wedding. In 2005, Gloria filed for divorce, and challenged the enforceability of the prenuptial agreement.

The Supreme Court used the long-standing two part analysis. First, the court determined that the agreement was substantively fair—that is, where the agreement makes fair and reasonable provision for the spouse not seeking enforcement. The court determined that the amended prenup made inadequate provisions for Gloria relative to Thomas’ means. Second, the court reviewed the procedural fairness of the agreement—whether the spouses fully disclosed the value of their property and whether the agreement was entered into voluntarily. The court took note fo several factors: that Gloria never saw a draft until days before the wedding; and changes to the draft agreement at the last minute; and the pressure Gloria felt to sign an agreement in order to avoid the embarrassment of delaying the wedding. The court determined that the “side letter” amendment did not cure the defects of the prenup, and invalidated it.

Justices Sanders, Fairhurst, and J. Johnson dissented, saying that while the prenuptial may have been substantively unfair, Gloria entered the agreement voluntarily and intelligently.

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The Supreme Court may issue one or more opinions on April 9. No oral arguments are scheduled while the court is in recess until May.

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The Court today issued opinions in a Consumer Protection Act case and a criminal case.

Panag v. Farmers Ins. Co., of WA & Credit Control Servs., Inc., No. 80357-9 (consolidated with Stephens v. Omni Ins. Co. & Credit Control Servs., Inc., No. 80366-8). Justice Madsen writes for a five-member majority, expanding the reach of the Consumer Protection Act to "unfair or deceptive efforts to collect on an insurance subrogation claim...." Plaintiffs Panag and Stephens had each been involved in a car accident while uninsured. Farmers and Omni, insurers of the other parties in the accidents, hired Credit Control Services (CCS) to collect some or all of the "uninsured motorist benefits" paid to their customers. CCS sent several strident letters to Panag and Stephens, purporting to be debt collection notices. The majority holds that "a CPA claim may be predicated on the deceptive characterization of an unadjudicated insurance subrogation claim as a liquidated debt that must be immediately paid."

Justice Charles Johnson, joined by Justices Alexander, Owens, and James Johnson, dissents, accusing the majority of rewriting the CPA "far beyond its express reach." The dissenters point out that the CPA is about consumer protection. "The CPA was not designed to nor should it be rewritten to regulate relationships arising out of tortious conduct." (Case briefs and arguments.)

State v. Depaz, No. 80574-1. Justice Owens writes for five members of the Court; Justice Madsen, joined by the balance of the Justices, concurrs with the result but not the analysis. Depaz challenged his conviction for first degree rape of a child based on the trial court's removal of juror #3, the lone holdout. The juror had briefly talked with her husband about the case, apparently because their grandson was undergoing surgery and they were concerned about how long the deliberations would last. Juror #3's husband had told her to "stick to her guns," and for this she was excused. While the Court agrees with the trial court that the juror's actions constituted misconduct, the Court finds that the misconduct was not prejudicial and so removing Juror #3 was an abuse of discretion. (Case briefs and arguments.)

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

Panag v. Farmers Ins. Co., of WA & Credit Control Servs., Inc., No. 80357-9 (consolidated with Stephens v. Omni Ins. Co. & Credit Control Servs., Inc., No. 80366-8). At issue is a credit collection agency's practice of sending aggressive notices on behalf of insurance companies in an attempt to recover subrogation interests from uninsured drivers. Notices styled as “formal collection notices” demanded immediate payment of an “amount due.” The Court of Appeals (Div. I) concluded the notices were deceptive and held that the practice of sending them violated the Consumer Protection Act. This case has generated significant attention, with a number of amicus curiae briefs filed in support of petitioners and respondents. (Case briefs and arguments.)

State v. Depaz, No. 80574-1. Vasquez Depaz was charged with rape of a 11-year-old child. After trial, the case was submitted to a jury, which deadlocked. One of the jurors who was holding out was overheard making a comment about the case to her husband. Over defense counsel’s objection, the court dismissed this juror on the grounds she had violated the court’s instruction to not discuss the case. The Court of Appeals (Div. I) affirmed, holding the trial court did not abuse its discretion. The question before the Supreme Court is whether the trial court erroneously dismissed a juror who the court knew to be a holdout based on the juror’s improper discussion of the case. (Case briefs and arguments.)

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The Supreme Court will consider several petitions for review on March 31. One or more rulings may be issued April 2. Last week the court concluded its Winter Term; oral arguments will resume in May.

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The Court today issued opinions in two criminal cases and will hear argument in two cases.

Opinions

State v. Kirwin, No. 80113-4. Police arrested Dennis Kirwin for littering (he tossed a beer can out his truck window), then searched Kirwin's truck and found meth. State law makes littering only a civil infraction, which cannot result in an arrest, but Olympia deems it a misdemeanor. Kirwin challenged the city littering ordinance, arguing that it was unconstitutionally in conflict with the state statute. In a majority opinion by Justice Fairhurst and signed by Justices Alexander, C. Johnson, Chambers, Owens, and J. Johnson, the court upholds the ordinance and hence the arrest and the search. In a concurrence, Justice Madsen suggests that the ordinance may well be invalid under Article I, section 12, of the Washington State Constitution, but would not reach the question because it was not raised by Kirwin. Justice Sanders dissents, agreeing in part with Justice Madsen and disagreeing that the search was a lawful search incident to arrest. (Case briefs and argument.)

State v. Wright, No. 78465-5, & State v. Bryant, No. 78788-3 (consolidated). Justice Madsen writes for a six-member majority and holds that retrying defendants Wright and Bryant for murder is not barred by double jeopardy. "Because the defendants' convictions were reversed on grounds other than insufficient evidence, and because they have not been expressly or impliedly acquitted of intentional murder, they remain in the same jeopardy as attached at the first trial." Justice Sanders dissents, joined by Alexander and Chambers, arguing for a stronger interpretation of the double jeopardy clause. (Case briefs and arguments.)

Oral Arguments (briefs)

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The Supreme Court will issue at least two rulings tomorrow.

State v. Kirwin, No. 80113-4. The petitioner Dennis Kirwin was arrested after a police officer observed him littering. After arresting Kirwin, the officer searched his car and discovered methamphetamine. Under state law, littering is a civil infraction, punishable by fine, and cannot result in an arrest. Olympia Municipal Code, however, makes littering a misdemeanor. Kirwin argues that his arrest and subsequent search were unlawful, and that any evidence obtained following the arrest is inadmissible against him. (Case briefs and argument.)

State v. Wright, No. 78465-5, & State v. Bryant, No. 78788-3 (consolidated). Whether the double jeopardy clause applies. In this case, Oliver Wright was originally charged with both second-degree intentional murder and second-degree felony murder, but was convicted only of felony murder. More than ten years after the jury found him guilty, Wright's murder conviction was vacated by the Washington Supreme Court. In re Personal Restraint of Hinton, 152 Wn.2d 853 (2004). On remand, the trial court dismissed a new charge of second-degree intentional murder, ruling that the charge violated double jeopardy. State v. Bryant presents a similar legal question. (Case briefs and arguments.)

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The Court released one unanimous opinion this morning. There are no oral arguments today.

In re Pers. Restraint of McKiearnan, 81102-4. Justice Chambers writes for a unanimous Court, rejecting Michael McKiearnan's attempt to overturn his 1987 plea agreement for first degree robbery. McKiearnan had thumbed a ride and robbed and punched the driver. When he plead guilty, both the plea agreement and the judgment form had misstated the maximum sentence as "twenty (20) years to life" instead of simply, and correctly, "life." McKiearnan was sentenced to three years. The Supreme Court holds that "he was not substantively misinformed as to the maximum sentence, his judgment and sentence is not invalid on its face, and his petition is time barred." (briefs, oral argument)

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Tomorrow the Supreme Court will issue at least one opinion.

In re Pers. Restraint of McKiearnan, No. 81102-4. Case briefs and oral argument.

Michael McKiearnan pled guilty to first-degree robbery in 1987 after robbing a 70-year-old of his car at knife-point. At the time, the maximum sentence for first degree robbery was life and/or a $50,000 fine. Michael McKiearnan’s guilty plea and judgment both set the maximum sentence at “20 years to life.”

State law establishes a one-year limit for bringing a collateral attack on a judgment. McKiearnan argues that his judgment was invalid because it stated an incorrect maximum sentence, and that his guilty plea was involuntary because of the misinformation. McKiearnan is asking the Supreme Court to vacate the judgment and permit him to withdraw his guilty plea. He is appealing a Court of Appeals ruling that rejected his argument.

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The Court released opinions in two cases this morning and will hear oral argument today in four others.

Opinions

State v. Fisher, No. 79801-0. A unanimous Court reverses the Court of Appeals and grants criminal defendant Fisher a new trial. The opinion by Justice Fairhurst determines that "prosecutorial misconduct denied Fisher a fair trial." The prosecutor introduced evidence without providing proper notice to the defense and introduced evidence in violation of a pretrial ruling. Fisher had been convicted on four counts of child molestation. Justice Madsen writes a concurrence, sugesting that the real problem with Fisher's trial was the trial court's decision to allow testimony about allegations not directly related to the criminal charges. (State v. Fisher briefs, oral argument)

Brogan & Anensen LLC v. Lamphiea, No. 81825-8. Beware of forms with unchecked boxes. In a per curiam opinion, the Court reverses and remands to the trial court. In a real estate transaction, buyer Brogan & Anensen had orally promised to allow the seller, Lamphiea, to retain posession of the property for a year. The contract form had three options for "possession date," each with a box beside it, but none were checked. Thus, the Court finds the contract ambiguous as to the possession date and holds that the lower court's application of the parol evidence rule to preclude evidence of the oral argreement was improper.

Oral Argument

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The Supreme Court will issue at least two opinions tomorrow.

State v. Fisher, No. 79801-0. Timothy Scott Fisher, a criminal defendant, argues he was denied a fair trial due to incomplete jury instruction, improper admission of past misconduct, denial of Confrontation Clause rights, and prosecutorial misconduct.

Brogan & Anensen LLC v. Lamphiea, No. 81825-8. Brogan & Anensen purchased a piece of land from Wayne Lamphiear. More than six months after the sale closed, Lamphiear was still living on the property. Brogan & Anensen filed a lawsuit for breach of contract.

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The Supreme Court thinks so. Zack Lowe at The Am Law Daily has a good summary of yesterday's Safeco field ruling.

For more on that question, check out CLEAN v. State, 130 Wash.2d 782 (1996). The Stadium Act provided public financing for the construction of Safeco Field, and included an "emergency clause" which shields legislation from referendum. Emergency clauses declare an act "necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions." The Supreme Court upheld that particular emergency declaration.

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The third time’s not a charm for opponents of Initiative 601. Today’s ruling in Brown v. Owen, No. 81287-0, is the latest in a series of challenges against the measure, but the Washington State Supreme Court has declined to review its constitutionality three separate times.

Initiative 601 (the Taxpayer Protection Act) was approved by voters in 1993. The measure limited the rate of growth of state spending, required tax increases to be approved by a two-thirds vote of each house, and required any tax increase that would exceed the established spending limit to be sent to the voters for approval.

Before I-601 took effect, a coalition of advocacy groups, legislators, and citizens filed a writ of mandamus to prevent implementation. Walker v. Munro, 124 Wn.2d 402 (1994). The Supreme Court declined, holding that mandamus was inappropriate, and the petitioners’ claim was premature, as Initiative 601 had not taken effect. The Court suggested the legislature could amend the initiative to prevent any anticipated harms.  More after the jump…

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Sen. Lisa Brown brought a lawsuit to invalidate the state's two-thirds vote requirement for tax increases, which was adopted by Initiative 601 in 1993. The case started in 2008 when Sen. Brown filed a writ of mandamus against Lt. Gov. Brad Owen after he declined to approve a tax increase bill that did not receive the required two-thirds vote. Sen. Brown argued the supermajority vote requirement was unconstitutional under Art. II, Sec. 22 of the Washington Constitution.

The Supreme Court unanimously ruled against Sen. Brown today in an opinion by Justice Mary Fairhurst, saying that the judiciary cannot interfere in an internal legislative process. The court declined to address the constitutionality of the supermajority vote requirement.

The unanimous decision is especially significant considering previous statements by Chief Justice Alexander and Justice Chambers (he of the "elephant in the court" opinion) that revealed their dislike of I-601. I would have expected at least a dissent or concurring opinion in the Brown case.

Case documents and timeline can be found here.

(Note: Publishers of this blog filed an amicus brief in support of the state in this action.)

UPDATE: Kris Tefft at AWB applauds the ruling, Jason Mercier at WPC wishes he had put down money on his predicted outcome, and Andrew Villeneuve at NPI suggests that the legislature and Gov. Gregoire could force the constitutionality issue with an act of "cooperative civil disobedience." The Amateur Law Prof calls it a "stunning punt." My own analysis can be found here.

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The Supreme Court has issued a ruling in WA State Major League Baseball Stadium Public Facilities District v. Huber, Hunt & Nichols-Kiewit Construction, No. 81029-0. The Public Facilities District initiated the action to recover damages for SAFECO Field construction defects. The construction company ("HK") claimed the action was barred by the 6-year statute of limitations, and the trial court awarded summary judgment in the company's favor.

The Supreme Court reversed the trial court's order and remanded the case for further proceedings. Justice Debra Stephens, writing the 6-3 majority decision, said that construction of Safeco Field by the PFD involves the exercise of sovereign power, and claims based on its construction fall within the "for the benefit of the state" exemption to the statute of limitations. Justice Richard Sanders dissented, protesting that "[c]onstruction of a professional baseball stadium for private profit is certainly not 'for the benefit of the state' as that phrase is understood in our case law." Justices Tom Chambers and James Johnson joined Sanders' dissent.

UPDATE: The Washington Construction Law Blog, published by Davis Wright Tremaine, has more information about the case here.

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Tomorrow the Supreme Court will issue a ruling in WA State Major League Baseball Stadium Public Facilities District v. Huber, Hunt & Nichols-Kiewit Construction, No. 81029-0. The Public Facilities District initiated the action to recover damages for SAFECO Field construction defects. 

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The Supreme Court released one case today, Harry v. Buse Timber & Sales, Inc. (79613-1), determining how benefits are computed for a claim based on progressive occupational noise related to hearing loss. Justice Madsen authored the lead opinion, and Justice Fairhurst wrote a dissent.

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The Supreme Court of Washington released four decisions this morning.

• Community Care Coalition of Wash. v. Reed, No. 81857-6, regarding the Secretary of State's discretion in certifying an initiative.
• In re Custody of A.C., No. 79938-5, regarding out-of-state foster parents seeking custody.
• Michael v. Mosquera-Lacy, No. 80665-9, regarding a consumer protection claim against a dentist.
• Otis Housing Association v. Ha, No. 80626-8, regarding a real estate dispute.

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The Supreme Court of Washington ruled this morning on a salary dispute involving teachers from the Washington State School of the Blind (WSSB). The case is Delyria v. State.

State law requires that WSSB teacher salaries "conform to and be contemporary with" salaries of local school district teachers. The state sets a salary schedule, but local districts can provide supplemental pay to teachers for "additional time, additional responsibilities, or incentives" -- known as TRI pay.

Cheryl Delyria and Judy Koch are certificated teachers at the WSSB in Vancouver. They are paid a base salary according to the state salary schedule. Under their collective bargaining agreement, they can earn additional pay if allowed by the WSSB's financial resources, but the WSSB teachers do not receive TRI pay. These teachers argued they are entitled to TRI payments similar to the payments made by the Vancouver School District to its teachers.

Justice Charles Johnson, writing the majority opinion, says the legislature enacted two separate provisions regarding supplemental pay: one for local district teachers, and other for WSSB. Because of this, the court held today that a school district's TRI pay is not part of the teacher's salary, and WSSB teachers are not entitled to an similar supplement.

Chief Justice Alexander and Justice Madsen and Fairhurst filed a concurring opinion.

Obviously this is a loss for WSSB teachers, but what do other education folks think about the ruling? School districts often face incredible pressure during contract negotiations to boost teacher income through TRI payments. The ruling clarifies that TRI is merely supplemental and not part of a teacher's salary. What impact will that have on teacher/district negotiations?

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