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The Supreme Court is hearing arguments in three cases today.

Bird v. Best Plumbing Group, LLC v. Farmers Insurance Exchange, No. 86109-9. Does an insurer have a constitutional right to a jury trial on the reasonableness of a covenant judgment, under RCW 4.22.060, between an insured defendant and a plaintiff?

State v. Patrick Jimi Lyons, aka Jimi Luke Andring, No. 85746-6. The Fourth Amendment to the United States Constitution and the Washington Constitution, article I, section 7 require probable cause before a search warrant may be issued. The Court must decide if the affidavit for search warrant in this case provided sufficient information for the magistrate to find probable cause.

State v. Rowland, No. 86117-0. Rowland received an exceptional sentence above the standard range before Blakely v. Washington was decided. After Blakely, Roland was resentenced following a correction to his offender score. The Court must decide whether Blakely applied at Rowland’s resentencing.

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

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The Supreme Court will hear arguments in four cases today.

State v. Jasper, No. 85227-8. Whether the trial courts in these prosecutions for driving with a suspended license and unlicensed contracting violated the defendants’ right of confrontation by admitting letters from records custodians stating that the defendant’s license was suspended or that the no contractor’s license was found.

Estate of Bunch v. McGraw Residential Ctr., et al., No. 85679-6. Whether RCW 4.24.010 requires a parent of a deceased child to have regularly provided support to the child up to or near the time of the child’s death in order to bring a wrongful death action.

Bus. Servs. of Am., Inc. v. WaferTech LLC, No. 85654-1. Whether the trial court properly dismissed this action for want of prosecution under CR 41(b)(1) after the case had been noted for trial, on grounds that the plaintiff had taken actions suggesting that the case was closed.

In re Pers. Restraint of Heidari, No. 85653-2. Whether after reversal of a conviction for second degree child molestation based on insufficient evidence the trial court may enter a conviction for the lesser included offense of attempted second degree child molestation even though the jury was not instructed on that offense.

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The Supreme Court is hearing arguments in three cases today.

Clark v. Smith Bunday Berman Britton, PS, No. 84903-0. Does the public have a constitutional right to view documents filed in court even if the judge never reviews them?

State v. Johnson, No. 85765-2. Johnson was convicted of attempted promotion of commercial sexual abuse of a minor (child prostitution). He appeals on the basis that the victims were adult undercover police officers, not minors. The court must decide whether the State must prove an actual minor victim to prove attempted promotion of child prostitution.

In Re the Dependency of MSR and TSR, No. 85729-6. A Washington statute authorizes, but does not require, trial judges to appoint attorneys to represent children when a dependency or termination action is filed against their parents. Does due process require an attorney be appointed in every case? 

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

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The Supreme Court will hear arguments in four cases today.

Gendler v. Batiste, No. 85408-4. Whether traffic accident reports that the Washington State Patrol must collect and maintain are subject to disclosure by physical location under the Public Records Act and are not exempt from disclosure under 23 U.S.C. § 409 even though the Department of Transportation receives and maintains the reports for § 409 purposes and only the department can produce accident reports by location.

In Re PRP of Eastmond, No. 81939-4. Whether State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010), applies retroactively on collateral attack of a previously final judgment and sentence imposing a firearm enhancement based on the jury’s deadly weapon finding.

Tesoro Refining and Marketing Co. v. Department of Revenue, No. 85556-1. Whether former RCW 82.04.433 (1985) allowed an oil refinery to deduct from its manufacturing business and occupation tax the proceeds of sales of marine bunker fuel for consumption outside the United States by vessels used primarily in foreign commerce.

State v. Breitung, No. 84580-8. Whether a conviction for unlawful possession of a firearm is invalid if the trial court that entered judgment on the underlying conviction that made the defendant ineligible to possess firearms failed to provide the defendant notice of ineligibility under RCW 9.46.047(1).

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

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We're still a little behind--here are the argument summaries for last Tuesday. The Court heard three cases, two in the morning and one in the afternoon. There will be no further arguments until October 6.

Morning Session:

Schneider v. Almgren, No. 851123. Whether the Uniform Interstate Family Support Act should prevent a Washington court from altering a Nebraska divorce decree to add a requirement for supporting a child's college education.

Ms. Schneider and Mr. Almgren were divorced in Nebraska, and Ms. Schneider was awarded custody of their two children. Mr. Almgren was ordered to pay child support as long as the children were minors. But Ms. Schneider moved to Washington and petitioned a Washington court for a modification of the order, requesting that Mr. Almgren help pay for their daughter's college education, even though she would be past the age of majority in Nebraska. The court granted the request. Mr. Almgren is appealing on the grounds that the Uniform Interstate Family Support Act requires that the laws of the original state of issuance (Nebraska, in this case) must govern the duration of support.

Albice v. Dickinson, No. 852600. Whether procedural errors in a foreclosure sale should void the sale and revert title to the original owners.

Christa Albice and her sister Karen Tecca inherited ten acres of property from her parents. Later the Tecca's took out a loan against the value of the property. They got behind on their payments, and received a notice of a foreclosure sale. The Tecca's contacted the loan holder and worked out a payment plan, which they followed. But the loan holder went ahead with the foreclosure sale, selling the property at auction to Mr. Dickinson.

Ms. Albice argues that the sale was invalid because the loan trustee failed to follow the legal requirements for a foreclosure sale. Mr. Dickinson responds that those errors do not change his status as a bona fide purchaser of title to the property.

Afternoon session

Cedell v. Farmers Insurance Co., No. 853665. Whether attorney-client privilege applies in bad faith actions brought by an insured against an insurer, or if the insured must show fraud in order to defeat the privilege.

Bruce Cedell owned a home in Elma that had been insured by Farmers Insurance for twenty years for $100,000. While he was gone one day the house burned down. The local fire department found it to have been an accident. A Farmers adjustor estimated the damage at $105,000. Farmers hired an outside attorney, Ryan Hall, to investigate the matter. Seven months later, Mr. Hall sent Mr. Cedell a letter offering a $30,000 settlement with a ten-day acceptance period.

Mr. Cedell filed a lawsuit, claiming that Farmers owed him a fiduciary duty and had breached that duty by acting in bad faith. During discovery he requested his claims file, but major portions were redacted under the claim of attorney-client privilege. Mr. Cedell argues that the privilege should not apply because of the fiduciary duty owed him by Farmers. The trial court agreed, but Division Two reversed on appeal, ruling that the privilege applied, and that Mr. Cedell had not shown sufficient evidence of fraud to defeat the privilege.

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The Court began its fall session on September 15 with a full slate of arguments. It will hear arguments once more in September, on the 22nd, and then not again until October 6.

Arguments from the 15th:

Clausen v. Icicle Foods, No. 852006. Whether attorney fees and punitive damages were improperly awarded in a personal injury claim under maritime law.

Seaman Dana Clausen was injured while unloading an Icicle Foods barge, and sued for damages. He won and was awarded compensatory damages, attorney fees and punitive damages. Icicle appealed on two grounds. First, that under both state and federal law the attorney fees should have been decided by the jury, but they were awarded by the judge. Second, that maritime law prevents punitive damages from being more than the compensatory damages, and thus the large punitive damage award to Clausen was improper.

Vision One v. Philadelphia Indemnity Insurance, No. 853509. Contradictory decisions were made by appellate courts regarding the meaning of "resulting loss" exceptions in insurance policies. The Supreme Court is asked to clear up the dispute.

Philadelphia was the underwriter for a $12.5 million all-risk insurance policy on Vision One's construction project. Vision was building an elevated concrete walkway when a slab collapsed due to faulty shoring equipment. Philadelphia denied Vision's claim for the expenses related to cleanup and repairs of the site, based on exclusions in the policy for faulty workmanship and design. There is a "resulting loss" exception to these exclusions, however, but the Division One Court of Appeals ruled that the exception did not preserve Vision's coverage. But two weeks later Division Two ruled that such an exception did preserve coverage in a similar situation (Sprague v. Safeco Ins. No. 857946).

Lauer v. Pierce County, No. 851778. Whether a building permit application can fully vest if the application is incomplete or there are facts in dispute.

The Garrisons purchased waterfront property in Gig Harbor in 2002, and decided to build a new residence on the property in 2004. Their building permit application was granted. In 2005 the county's Critical Areas Ordinance was revised with stricter guidelines on buffers for streams. The Garrison's have a drainage stream on their property, and planned to build their new home close to the stream. They applied to the Department of Fish and Wildlife for a variance permit in 2007. At issue is whether their building permit fully vested in 2004, meaning the old CAO rules would still apply, or whether they must meet the new, more stringent requirements. The petitioners claim the Garrisons did not properly label the stream and a nearby trail on the original building permit application, so it shouldn't have vested.

State v. Pannell, No. 854378. Whether time spent in community custody (house arrest) should count as time in custody when calculating maximum sentence lengths.

Daniel Pannell was sentenced to 116 months of confinement and three years of community custody after pleading guilty to first degree incest and four counts of second degree child molestation. The court suspended the sentence and ordered Pannell to serve the equivalent time in community custody.

Later the state asked for the sentence to be reinstated because Pannell violated the terms of his community custody. The court agreed, ordering Pannell to serve his 116 months of custody plus 3 years of community custody. Pannel appealed, arguing that the combined total would violate the statutory maximum of 120 months in confinement. The Superior Court and Court of Appeals sided with the state, finding that community custody is not the equivalent of confinement.

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Today the Court will only hear three cases, one of which (McCleary v. Washington) deals with a major constitutional question about public education funding. (Docket, briefs)

Morning session (9 am)

In re the Personal Restraint Petition of Rhome, No. 837881. Whether the standard for mental competency to stand trial is lower than the standard for self-representation by a criminal defendant.

Demar Rhome was charged with murder. He was found competent to stand trial, although he has a history of mental illness. Rhome was allowed to represent himself at trial, and the jury convicted him.

Rhome argues that based on a recent Federal Supreme Court decision (Indiana v. Edwards) there is a higher standard for competency to represent oneself than for competency to stand trial. Rhome says that although the trial court considered his mental history when determining that he was competent to stand trial, it should also have considered the history when determining whether he could represent himself.

The state argues that while Edwards allows a higher standard it does not require one, that a new criminal procedure rule “may not be applied for the first time on collateral review," and that Rhome has not shown that he was prejudiced by his mental condition.

State v. Jim, No. 847169. Whether the state has criminal jurisdiction over the Maryhill Treaty Fishing Access Site.

Lester Jim, a Yakima Indian, caught some undersized sturgeon and was cited by the Department of Fish and Wildlife. Jim caught the fish at the Maryhill Treaty Fishing Access Site (MTFAS), a site acquired by the federal government to replace treaty fishing grounds which were destroyed by dam construction. The citation was dismissed in district court because the state does not have criminal jurisdiction over Indians on reservation land.

The state argues that it has criminal jurisdiction because the MTFAS is not actually on the reservation. The appellate court held that since the MTFAS is held for the benefit of the Indians, is limited to Indian fisherman, and is not subject to state regulation, it is considered reservation land for criminal jurisdiction purposes.

Afternoon session (1:30 pm)

Mccleary v. Washington, No. 843627. Whether Washington state adequately funds basic education as required by the state constitution.

A group of school districts, parents, and educational organizations filed a declaratory judgment action claiming that Washington does not adequately fund basic education as required by Article IX, Section 1 of the State Constitution. The trial court agreed, and ordered the state to determine the actual cost of providing education to all students and to identify “stable and dependable” state-only funding sources.

The state argues that the trial court erred by making up its own definition of “basic education,” by requiring the state to provide funding beyond basic education, by requiring the state to provide enough money to make all students learn instead of merely giving them the opportunity, by requiring “stable and dependable” funding to come from state-only sources, and by finding that the state does not adequately fund basic education.

The schools argue that the court should have set a deadline for the state instead of merely requiring it to make progress.

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The Court heard three arguments on Thursday.

Morning session (9 am)

Jackowski v. Hawkins Poe, No. 83660-4. Whether the economic loss rule applies to claims based on statutory and common law duties. Whether, and when the economic loss rule applies to professional negligence claims.

Eri and Tim Jackowski bought a water front home that was later damaged after the house slide causing cracked sheet rock and stuck doors. The Jackowski’s sued the former owners, the selling agent and their buying agent for fraud, fraudulent concealment, negligent misrepresentation and breach of common law and statutory duties. The realtors argued that the claims were barred by the economic loss rule which would limit the Jackowski’s recovery. The Court of Appeals (Div. II) held that the economic loss rule does not apply to statutory and common law duties or the professional negligence claims.

Five Corner Family Farmers v. Washington, No. 84632-4. Whether the stock-watering exemption to the ground water permit statute is limited to 5,000 gallons per day. When digging a well or withdrawing public ground water, RCW 90.040.050 requires a permit for drilling wells or withdrawing public ground water. If a well is drilled for stock watering the user is exempt from the permit requirement. Easterday Ranches built a 30,000 head feedlot, drilled a well and did not seek a permit. Neighbors and several environmental groups sued, claimed the exemption is limited to 5,000 gallons per day. The trial court dismissed, stating the plaintiffs’ injury was too speculative and the relevant statute was unambiguous.

Afternoon session (1:30 pm)

State v. Sublett, No. 84856-4. When a judge meets with counsel in chambers without the defendant to discuss a jury question, does this violate the defendant’s right to a public trial.

Michael Sublett and Christopher Olsen were charged with first-degree murder. Both men claimed mutually antagonistic defenses and Sublett moved to sever the trials. The Court of Appeals (Div. II) held that the trials would only be severed if the conflict between the two defenses was so prejudicial that the jury would infer from the conflict that both men were guilty. The trials were not severed.

During deliberation the jury asked for clarification on an instruction. The court met in chambers with counsel but without the defendants. Olsen and Sublett claim the meeting violated their rights to be present and to an open and public trial.

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My apologies for the lateness of this post. The Court heard four arguments on Tuesday, including two criminal cases, one on the validity of mechanics' liens, and one on the seizure of pension funds. (Docket, briefs)

Morning session (9 am)

State v. Franklin, No. 845450. Whether a trial court ordered an indeterminate prison sentence.

John Franklin was convicted of assault and drug possession. For each offense, the trial court sentenced him to the statutory maximum plus community custody, but ordered the total of incarceration and community custody could not exceed the statutory maximum.

Franklin argues that this is an indeterminate sentence because it puts the burden of ensuring that Franklin does not serve more than the maximum sentence on the Department of Corrections, rather than on the court. The appellate court held that the sentences are not indeterminate because they “establish a maximum amount of time that Franklin will serve in confinement and the maximum amount of time he will serve in totality.”

Williams v. Athletic Field, No. 845557. Whether a mechanics lien which matches the statutory "safe harbor" template is valid if it is not notarized in compliance with the more stringent general notarization statute.

Athletic Field, Inc. (AFI) was hired by Terry and Janis Williams to do site preparation for a metal warehouse. The parties had a disagreement after some of the work had been done and canceled the contract. AFI filed a mechanics lien, signed by an AFI agent, which the Williams challenged.

The mechanics lien statute includes a “safe harbor” sample and says that a lien “substantially in the form of the sample” is sufficient. It also requires a mechanics liens to “be acknowledged pursuant to chapter 64.08 RCW [the general notarization statute].” The safe harbor sample does not use the exact language from 64.08. AFI’s lien was based directly on the sample.

AFI argues that the lien is valid because it matches the safe harbor sample. The appellate court held that the lien is not valid because it did not comply with the acknowledgement statute.

Afternoon session (1:30 pm)

Anthis v. Copland, No. 852308. Whether public pension income is exempt from being garnished to pay for a court judgment.

Walter Copland, a former police officer, killed Harvey Anthis. He was convicted of manslaughter and went to prison. Bonnie Anthis, Harvey’s wife, brought a successful wrongful death action against Copland. Anthis wants to garnish the money Copland receives from his police pension when it is deposited into his account. Copland claims that the money is exempt from garnishment because it comes from his pension. Anthis argues that while the pension itself is exempt, Copland’s periodic payments from the pension are not.

State v. Budik, No. 847142. Whether stating "I don't know" is the equivalent of refusing to speak in a police investigation, or whether it's evidence of rendering criminal assistance.

Kenneth Budik was riding in a car driven by Adama Walton when both were shot and Walton was killed. Budik refused to identify his assailants. When police asked him who did it, he said he didn’t know. The police charged him with rendering criminal assistance.

Walton argues that he has the right to remain silent, and that saying “I don’t know” was the equivalent of refusing to speak. He also argues that since the police didn’t believe him, they neither relied on his statements nor were prevented from any action. The appellate court held that “if [Budik] chose to speak, he was not privileged to mislead police" and that the police need not rely on his statements. 

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The Supreme Court will hear arguments in three cases today.

Morning session (9:00 a.m.)

Knight v. City of Yelm, No. 84831-9. Mystic teacher and author JZ Knight is opposing several proposals to subdivide property into single-family residential lots in Yelm, near her own land. The hearing examiner granted preliminary subdivision approvals in five decisions. Knight later filed a Land Use Petition Act challenge, and the trial court ruled in her favor. On appeal, the Court of Appeals held that Knight could not show she would personally be harmed by land use decision, thus requiring dismissal of her LUPA petition. “[I]f we were to find that Knight had standing, we would first be required to presuppose a series of future events that may not ultimately occur.” The court affirmed the challenged preliminary subdivision approvals, reversed the trial court, and dismissed Knight’s LUPA petition for lack of standing.

Citizens for Rational Shoreline Planning, et al. v. Whatcom County, et al., No. 84675-8. The issue here is whether shoreline master programs (SMPs) adopted under the Shoreline Management Act are state or local regulations. Citizens for Rational Shoreline Planning, a citizens group, and the Building Industry Association of Washington brought action against Whatcom County to challenge newly-adopted SMPs developed pursuant to the Shoreline Management Act. The groups argued that SMPs are subject to RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development. The superior court granted the county’s motion to dismiss and the Court of Appeals affirmed, holding that SMPs were not subject to the statutory prohibition because of the pervasive and necessary involvement of the state Department of Ecology in the development of SMPs.

Afternoon session (1:30 p.m.)

Matsyuk v. State Farm Fire & Casualty Company, No. 84686-3. Olga Matsyuk was injured while a passenger in a car. She recovered from the at-fault driver’s insurance company, State Farm. She then sought a pro rata share of her attorney fees from State Farm. The Court of Appeals held Matsyuk was not entitled to a contribution of attorney fees from the insurer.

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

Morning session (9:00 am)

Mukilteo Citizens for Simple Government v. Mukilteo, No. 849218. Whether an initiative to repeal the use of red light cameras was within the scope of local initiative powers.

Mukilteo Citizens for Simple Government brought a pre-election challenge to Mukilteo Initiative No. 2, which dealt with limiting the use of “traffic safety cameras.” The initiative would limit Mukilteo's red light camera ordinance and place restrictions on the use and placement of red light cameras.

The challenge claimed that the initiative exceeds the scope of the local initiative power, because the legislature “expressly enabled [the Mukilteo City Council] with the power to enact ordinances governing the use of Safety Cameras” and the initiative would limit that authority.

The Snohomish County Superior Court denied the plaintiff's motion for injunctive relief, so they made an emergency appeal directly to the Supreme Court. Initiative 2 passed by over 70% of the vote, but the city viewed it as advisory. But they decided to wait to act on implementing the red light camera ordinance until the Supreme Court made a decision on the case.

Popchoi v. Kiss, No. 846952. Whether a former owner defending a property claim under a warranty to defend duty can settle the case for purely economic reasons. (legalese alert - I tried to keep this simple, so I ask for forgiveness in advance from any property law attorneys. Feel free to expand on the case in the comments if I didn't do it justice)

Csaba Kiss sold a piece of property to Ivan Popchoi, using a deed that warrantied he had clear title to the land. After the sale some neighbors filed an adverse possession claim against the property. Kiss was thus obligated to defend against the lawsuit, but he conditioned this on Popchoi’s agreement to Kiss’s absolute right to settle the case and pay damages to Popchoi (meaning he would settle based on the cheapest option open to him, irregardless of whether the claim was valid or not). Popchoi did not consent. He defended the case at his own expense and sued Kiss for breach of warranty.

The King County Superior Court found that Kiss breached his duty to defend, because he made his decision solely on the basis of the cost of defense versus the cost of reimbursing Popchoi for the loss of part of the land. Any settlement must have some basis in a reasonable investigation of the adverse possession claims. The Division One Court of Appeals upheld the lower court's decision.

Afternoon session (1:30 pm)

City of Bothell v. Barnhart, No. 849072. Whether jurors must be selected from the county in which an offense was committed, and if that is not done, whether its a harmless error.

James Barnhart was charged in Bothell Municipal Court with the crime of stalking. Bothell is located in both King and Snohomish Counties, but the offense was committed in Snohomish. Barnhart objected to the impaneling of any jurors from King County, but two were impaneled. The court then asked Barnhart if he wished to use any of his three peremptory challenges, and he chose not to. Barnhart was convicted, and appeals his conviction because of the jurors.

Division One Court of Appeals held that impaneling the jurors violated Barnhart's right to a “jury of the county in which the offense is charged to have been committed” under article I, section 22 of the Washington Constitution. The state argues that the error was harmless error, but the appellate court held that it was a material departure giving rise to “presumptive prejudice.”

The state also argues that Barnhart should have used his peremptory challenges and that the framers of the constitution “did not foresee a city which rests in two counties.”

Erdman v. Chapel Hill Presbyterian Church, No. 849986. Whether a church employee's lawsuit for unlawful termination is barred by First Amendment and related religious rights.

Angela Erdman was an elder for Chapel Hill Presbyterian Church. She had a conflict with the pastor over his leading tours abroad. The conflict escalated, and was resolved in ecclesiastical courts in the pastor’s favor. Erdman sued in civil court based on negligent retention, negligent supervision, and sex discrimination.

The church argues that Erdman’s claims are barred by ecclesiastical abstention, ministerial exception, and the Church’s First Amendment rights. Division Two Court of Appeals disagreed, because the claims involved secular issues. 

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

Morning Session (9:00 am)

Dowler v. Clover Park School District, No. 84048-2. Whether students bringing state tort claims of abuse and educational neglect must first satisfy administrative remedies provided for by the federal Individuals with Disabilities Education Act.

Ten developmentally disabled students sued Clover Park School District for abuse and discrimination, including educational neglect. The education-related claims were later voluntarily dismissed. The District moved for summary judgment because plaintiffs had not exhausted their administrative remedies under the IDEA. The Pierce County Superior Court dismissed the case, and the plaintiffs are now appealing directly to the supreme court.

IDEA allows for claims and remedies related to getting a proper education. The plaintiffs argue that they do not have to exhaust their remedies under IDEA because they are no longer making education-related claims. And because they seek general money damages based on tort claims, not “compensatory educations or other educational remedies under the IDEA,” they cannot get relief administratively and exhaustion would be futile.

The District argues that the plaintiffs cannot avoid the exhaustion requirement “by withdrawing their educationally-related claims" and that exhaustion is not futile because there are remedies under IDEA for the issues underlying the plaintiffs’ tort claims.

Flight Options v. Dept. of Revenue, No. 84207-8. Whether an airline company must pay state taxes on jets that are fractionally owned by private parties and are not based in Washington state.

Flight Options is a company operating from Ohio that sells fractional ownership interests in private corporate jets. The company also manages, staffs and operates the jets. Part owners of a jet agree to use any available Flight Options jet, not necessarily the one they own an interest in. The Department of Revenue assessed property taxes on Flight Options’ jets as personal property.

Flight Options argues that it cannot be taxed on the jets because it does not own them, and under Washington law DOR can only tax the owner. It also argues that Washington cannot tax the jets without violating Due Process because they are not permanently located within Washington. The Division Two Court of Appeals disagreed, holding that Flight Options is an airplane company and its jets are taxable “operating property.” The court also held that taxing the jets does not violate Due Process because the taxes are fairly apportioned.

Afternoon session (1:30 pm)

Eugster v. Washington Court of Appeals, No. 84380-5. Whether the current election process for appellate court judges violates the state constitution because the districts do not have equal populations.

The divisions of the Court of Appeals, and the districts within them, are apportioned by geography rather than by population. Different divisions and districts have different populations. Stephen Eugster claims that this violates Article I, section 19 of the State Constitution (the “free and equal elections” clause). The state argues that the Constitution does not require judges to be elected from districts that are equal in population.

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

Morning Session (9:00 am)

State v. Bukovsky, No. 84240-0. Whether its a major error for a judge in a murder case to neglect to define aggravating factors like cruelty to a jury.

Charles Bukovsky and John Gordon were convicted of second degree murder for beating a man to death. The jury also found two aggravating factors: deliberate cruelty and particular vulnerability of the victim. The trial court instructed the jury that these factors must be found beyond a reasonable doubt, but did not define the elements of “deliberate cruelty” or “particular vulnerability.” The defense did not object.

The defendants argue that the aggravating factors are elements of the crime for sentencing, and failure to define them was constitutional error. The state argues that failure to define the the factors was not “manifest constitutional error,” and thus the defendants cannot raise the issue on appeal because they did not object at trial.

State v. Griffin, No. 84554-9. Whether a court must follow the rules of evidence on hearsay for purposes of sentencing.

James Griffin was convicted of residential burglary at a bench trial. The court gave him an exceptional sentence based on a finding that Griffin “committed the offense shortly after release from incarceration.” That finding was based on hearsay evidence. Griffin argues that the sentence was invalid because there was not valid evidence to support it. The appellate court disagreed, holding that “the rules of evidence do not prohibit the trial court’s admittance of hearsay for sentencing purposes.”

Afternoon Session (1:30 pm)

In re the Personal Restraint of Carter, No. 84606-5. Whether the federal doctrine of "actual innocence" allows a Washington state felon to file a personal restraint petition beyond the statutory one-year limit.

Ernest Carter was convicted of two counts of first degree robbery. He was sentenced as a persistent offender, but argues that one of the previous offenses was not comparable to a Washington “strike” offense (as in "three strikes, you're out"). Carter filed a personal restraint petition seven years after his sentencing.

Personal restraint petitions are generally only allowed within a year of sentencing. Division Two Court of Appeals allowed Carter’s petition under the “actual innocence doctrine,” a federal doctrine which applies to procedural bars in extraordinary cases “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” The court applied the doctrine to allow Carter’s petition after the time limit, holding that Carter was actually innocent of being a persistent offender.

The state argues that the actual innocence doctrine “is not a recognized exception to the one year time bar for collateral attacks in Washington State,” and that Carter is a persistent offender (and thus not actually innocent).

In re the Personal Restraint Petition of Glasmann, No. 84475-5. Whether a prosecutor committed misconduct during his closing argument when he used a PowerPoint slideshow that included questionable statements.

Edward Glasmann was charged with kidnapping, assault, attempted robbery, and obstruction. The prosecutor accompanied his closing argument with a PowerPoint presentation. Several of the slides included a booking photo of Glasmann. One had the words “Do you believe him?” with the photo, one had the words “Why should you believe anything he says about the assault?,” and three had the word “Guilty” in front of the photo.

Glasmann claims that slides were "inflammatory and unfair" and that the prosecutor was improperly commenting on Glasmann's credibility. The state says that the “guilty” slides were not presented to the jury and that none of the slides was improper.

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The Court returns to oral arguments today, hearing three criminal procedure cases. (Docket, briefs)

Morning Session (9 am)

State v. Wise, No. 82802-4. Whether the defendant's right to a public trial was violated due to the private questioning of jurors.

Eric Wise was charged with second degree burglary and first degree theft. During jury selection, eight jurors asked to be questioned privately. They were questioned in the judge’s chambers with both parties present. Wise argues that this violated his right to a public trial. The Division Two Court of Appeals disagreed, holding that the “closure, if any, was temporary and partial.”

The Washington Association of Criminal Defense Lawyers and the Washington Association of Prosecuting Attorneys each filed an amicus brief.

State v. Lormor, No. 84319-8. Whether the defendant's right to a public trial was violated when his daughter was barred from the courtroom.

Dean Lormor was charged with drug possession. At his trial, his three-year-old daughter was not allowed in the courtroom because the judge thought she might be a distraction. Lormor claims that this violated his right to a public trial.  Division Two Court of Appeals disagreed.

Afternoon Session (1:30 pm)

State v. Paumier, No. 84585-9. Whether the court violated Paumier's right to a public trial by questioning some of the jurors in private.

Rene Paumier was charged with residential burglary and third degree theft. During jury selection at his trial five jurors were questioned privately in the judge’s chambers, with both parties present. Paumier argues that conducting part of jury selection in private violated his right to a public trial.

After jury selection Paumier asked to represent himself, but the court denied his request as untimely. Division Two Court of Appeals disagreed, finding that there was “no evidence that the trial would have been delayed or that granting [Paumier’s] request would impair the orderly administration of justice.”

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

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

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

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

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

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

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

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

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

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

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

Morning session: (9:00 am)

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

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

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

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

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

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

Afternoon session: (1:30 pm)

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

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

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

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

Morning session (9:00 am)

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

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

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

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

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

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

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

Afternoon session (1:30 pm)

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

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

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

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

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

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

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

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

Morning session: (9:00 am)

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

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

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

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

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

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

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

Afternoon session: (1:00 pm)

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

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

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

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

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

Morning session (9:00 a.m.)

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

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

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

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

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

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

Afternoon session (1:30 pm)

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

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

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

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

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

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

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

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The Supreme Court will hear arguments in four cases today (briefs, docket).

Morning session (starting at 9 a.m.)

State v. Posey, No. 82957-8. The issue here is whether the superior court had jurisdiction to sentence an offender for a juvenile offense after the offender had turned twenty-one years old. Daniel Posey, a 16-year-old, was charged with three counts of second degree rape and one count of first degree assault with a firearm. Since the assault was a “serious violent offense,” the juvenile court was required to decline jurisdiction and Posey was tried in superior court. He was convicted of two rape charges, but not the assault, and sentenced as an adult.

Posey appealed the adult sentence, since he had not been convicted of the assault, which is the crime that put him in superior court in the first place. The Supreme Court agreed, and Posey’s case was remanded to juvenile court for sentencing. However, by the time he got back to juvenile court Posey had turned 21.

Posey claimed that the juvenile court no longer had jurisdiction to sentence him, and the trial court agreed. The trial judge adjourned juvenile court and reconvened as an adult court, sentenced Posey, and entered a protection order. Posey appeals, claiming that the adult court lacked jurisdiction to sentence him. The Court of Appeals disagreed, holding that the adult court had “residual jurisdiction” once the juvenile court’s jurisdiction ended.

In Re PRP of Flint, No. 83815-1. Whether the rule returning a criminal to prison after his third community custody violation hearing is ex post facto law when applied to a prisoner convicted before the law was passed. Eric Flint pleaded guilty to robbery, served time in prison, and was released to community custody. He was brought to three community custody violation hearings, at each of which he was found guilty of various community custody violations. The law at that time (RCW 9.94A.737) required him to be returned to prison after his third violation hearing, and he was.

The rule sending him back to prison had been passed into law after Flint’s conviction. Flint argues that the rule as applied to him is “ex post facto law” because it imposes a more severe punishment on him. The appellate court dismissed the petition as frivolous.

Afternoon session (starting at 1:30 p.m.)

State v. Simms, No. 83826-7. Whether the state must give notice of a prior firearm conviction in order to double the term for a firearm sentencing enhancement. Daniel Simms was convicted (among other things) of robbery with a firearm enhancement. The trial court doubled the length of confinement for the enhancement because Simms had a previous firearm conviction.

An information must include all the essential facts for the charged crime, including enhancements. The information with which Simms was charged did not mention his previous conviction. Simms claims that this conviction was an essential fact to the doubling of his firearm enhancement, and appeals. The Court of Appeals held that the prior conviction was not essential to prove the enhancement itself, and that there is no requirement to give notice of a prior conviction “for purposes of a sentencing enhancement.”

In Re PRP of Coats, No. 83544-6. Jeffrey Coats pleaded guilty to robbery, conspiracy to commit robbery, and conspiracy to commit murder. Both his judgment and his plea statement listed incorrect maximum penalties for the conspiracy to commit robbery charge; both were too high. Although Coats’ conviction has been final for more than a year, he argues that the incorrect maximum makes his judgment facially invalid, allowing him to bring a personal restraint petition after the normal time limit. He seeks to withdraw his guilty plea, claiming that it was involuntary because he did not know the actual maximum penalty.

The Court of Appeals held that since Coats received a standard range sentence, the incorrect maximum penalty was a “technical misstatement that had no actual effect on the rights of the petitioner.” Thus, the court held that the judgment was not facially invalid and Coats’ petition was time barred.

The Supreme Court will review the question of whether the judgment and sentence are facially invalid.

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My apologies for the delay in posting these. The Court heard four arguments, as normal on Tuesday. (Briefs, docket)

Morning session (9 am)

Whatcom County Fire District v. Whatcom County, No. 836116. The Court must decide who determines whether fire protection is adequate for new developments: the county via its growth management plan, or the fire district.

As part of its comprehensive plan under the Growth Management Act, Whatcom County set levels of service for fire districts. Four developers filed for permits to build residential developments in the Birch Bay area. The fire district serving that area didn't believe it could maintain the necessary levels of service for the new residential areas without additional funding, but the county issued permits to the developers anyway.

Whatcom County Code requires a written finding that there will be adequate fire protection services before a development permit is issued. The fire district refused to issue these “concurrency letters” for the new developments, and appealed the permits. But the Division One Court of Appeals held that the “availability and adequacy” of public services is determined by the comprehensive plan, not the fire district. Thus, the court held that the district was required to issue concurrency letters, and upheld the permits.

Roe v. Teletech Customer Care Management, No. 837686. Whether Washington's medical marijuana act creates a cause of action for an employee fired for failing a drug test.

Jane Roe is authorized to use marijuana under Washington's medical marijuana law. She was hired by Teletech Customer Care Management, a telemarketing company, but Teletech fired her after she failed a drug test. Roe sued Teletech for wrongful termination.

Roe argues that the medical marijuana law implies a cause of action against employers for firing people because of medical marijuana use, and that the law establishes a public policy against firing people for using medical marijuana. The Division Two Court of Appeals disagreed, holding that the law simply protects medical marijuana users from criminal prosecution, and does not impose any duty on employers.

Afternoon session (1:30 p.m.)

In re the Restraint Petition of Martinez, No. 832196. Whether there was sufficient evidence to prove first degree burglary, and whether the petition was properly filed.

Raymond Martinez was convicted of first degree burglary after he was caught leaving a store that had been broken into. A knife apparently fell out of his belt sheath as he fled. Martinez challenges his conviction, claiming that there was insufficient evidence that he used, attempted to use, or threatened to use the knife. The Court of Appeals rejected the petition on procedural grounds.

State v. Russell, No. 843074. Whether a court must give a limiting instruction to a jury regarding evidence of past crimes if the defendant does not ask for it.

Arthur Russell was convicted of first degree child rape for sexual abuse of his stepdaughter. Russell was in the Navy, and abused his stepdaughter in Hawaii, Washington, Florida, and Indiana. The state presented evidence of the abuse in all four states. But the court did not give the jury a limiting instruction telling them they could only convict Russell for the abuse that occurred in Washington. (Evidence of the other abuse was admitted to show the pattern of abuse and Russell's “lustful disposition.”)

Russell claims that allowing the evidence of out-of-state abuse without giving a limiting instruction violated his due process rights. The state claims that Russell cannot challenge the lack of a limiting instruction since he did not request one at trial, and that the error was non-prejudicial. 

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The Supreme Court will hear arguments in three cases today (briefs, docket).

Morning session (starting at 9 a.m.)

State v. Williams, No. 83992-1. A Les Schwab store in Federal Way installed new tires on a Jeep Cherokee. Michael Williams came to pick up the vehicle, but his check was not accepted. He left a key to the vehicle with the store clerk, and said he was going to get some cash. A Les Schwab employee later noticed the Jeep was gone. When police tracked him down, Williams gave them a false name and lied about not having ID. He was eventually charged and convicted of third-degree theft, making a false or misleading statement to a public servant, and obstructing a law enforcement officer.

The obstruction statute makes it illegal to “willfully hinder, delay or obstruct” a police officer in the discharge of his duties. Williams argues based on case law that the statute applies to conduct, not pure speech. The court disagreed, holding that the plain meaning of the statute includes speech that obstructs an officer. Williams also argues that his right to effective assistance of counsel was violated.

Union Elevator and Warehouse Co. v. Department of Transportation, No. 83771-6. Union Elevator was awarded relocation expenses as a result of the Department of Transportation’s exercise of eminent domain. The trial court, however, did not award Union Elevator prejudgment interest on its award. The Department of Transportation argues that it need not pay interest because of sovereign immunity, while Union Elevator claims that sovereign immunity is waived for eminent domain proceedings.

Afternoon session (starting at 1:30 p.m.)

Cary, et. al v. Mason County, No. 83937-9. Is an assessment enacted by Mason County to fund the activities of the Mason Conservation District a valid special assessment?

Mason County enacted an annual assessment of $5.00 per parcel on “non forested” land in the county. The requirements for public entities to collect money from property owners differ depending on whether the charge is a special assessment, a tax, or a fee. Several landowners challenged the Mason County assessment, and the trial court ruled that it was an invalid tax. The Court of Appeals disagreed, finding that the assessment is a regulatory fee rather than a tax and that it meets the statutory requirements for a regulatory fee.

This case has attracted the attention of numerous public entities and organizations who have filed amicus curiae briefs discussing whether the court should analyze whether the county's assessment was proper. (Note: The publisher of this blog filed a brief in support of the property owners.)

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On its first day back from the holiday break the Court will hear only three arguments, two in the morning and one in the afternoon. (Docket, briefs for first two cases, briefs for third case)

Morning session: (starting at 9:00 a.m.)

In re the Marriage of Daniel & Teresa Farmer, No. 83960-3. How to determine damages for wrongful sale of stock options by one spouse during a divorce.

Teresa and Daniel Farmer dissolved their marriage. Daniel had received some stock options through work, and half of these options were awarded to Teresa. However, Daniel exercised all of the options, both his and Teresa's.

Teresa was awarded damages based on expert testimony about the probable future value of the stock options. Daniel argues that the damages should be based on the value of the options at the time he exercised them, or within a reasonable time thereafter. Daniel lost at Division One Court of Appeals.

 Bank of America v. Owens, No. 84044-0. Whether a supplemental decree giving one spouse partial title to real estate in a divorce decree gives that spouse's claim priority over a bank lien.

J'Amy Owens and Kenneth Treiger purchased a piece of property while married, which later became Owens' separate property. Owens used the property as collateral for a loan from Bank of America.

Owens and Treiger divorced. The court issued a supplemental decree dividing the parties’ assets, ordering that the property be sold and half of the money given to Treiger. The court issued several other decrees awarding money to Treiger.

Then the bank attached the property because Owens had defaulted on the loan. Later, the bank filed a declaratory judgment action to determine who had first claim to the property. The bank argued the supplemental decree was not a final judgment, and so did not give Treiger a judgment lien, thus giving the bank's lien first priority. The Division One Court of Appeals disagreed, but did hold that two other orders were not judgments (and thus did not have priority).

Afternoon session: (starting at 1:30 p.m.)

In re the Dependency of Jenkins, No. 83516-1. Whether a defect in a dependency order can be cured at subsequent hearings.

K.N.J., a minor child, was taken to an Oregon hospital after relatives discovered that she had been severely abused by her parents. A dependency petition was filed by the state and ordered by a judge pro tempore. Normally both parties have to consent to the appointment of a judge pro tempore, but Michael Jenkins, the father of K.N.J., was not present at the hearing and his consent was entered by default. 

Later the state filed for termination of Michael's parental rights, and he moved to vacate the original dependency order due to lack of his consent. The state argued that one parent's consent was sufficient, and that the several subsequent dependency review hearings cured any jurisdictional defect in the first hearing. Division One Court of Appeals found that the original hearing was invalid, but that the subsequent hearings cured the defect.

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Today the Court will hear four arguments, as normal. (Docket, briefs)

Morning session (9:00 a.m.)

Bainbridge Island Police Guild v. Puyallup, No. 82374-0 (consolidated w/82803-2). Whether a person can claim a privacy exemption to disclosure of records under the Public Records Act after not disputing an earlier disclosure of the same records to a media outlet.

Bainbridge Island police officer Steven Cain was accused of sexual misconduct after stopping a suspected DUI. The Puyallup and Mercer Island police departments investigated, and the accusation was found to be unsubstantiated.

The Kitsap Sun requested and received documents related to the investigation from the City of Puyallup. Later, Kim Koenig (the alleged victim) and Lawrence Koss also requested the documents. Officer Cain sued successfully to prevent Puyallup from releasing them based on his right to privacy. On appeal, Koenig and Koss argue that releasing the documents would not violate Cain's privacy since the information has already been made public, and that Cain waived his privacy interest by not objecting when Puyallup gave the documents to the Sun.

In re the Personal Restraint of Joshua Dean Scott, No. 82951-9.  Whether a judge changing a sentence enhancement from a jury verdict of "armed with a deadly weapon" to "possessing a firearm" invalidates the sentence.

Joshua Scott was convicted of robbery and possession of stolen property. At trial, the jury was instructed on deadly weapon enhancements and returned special verdicts finding that Scott was armed with a deadly weapon (a rifle). In its ruling, the trial court indicated that the jury had found firearm enhancements (which increase the possible sentence) and sentenced accordingly. The court of appeals held that since the sentence misstated the jury's verdict, it was “facially invalid,” and sent it back to the trial court for resentencing.

The state argues that Scott was not entitled to relief (because Blakely v. Washington, a decision that requires enhancements to be submitted to the jury, had not been decided until after Scott's case), that the sentence was not facially invalid, and that the error was harmless.

Afternoon session (1:30 pm)

State v. Coucil, No. 83654-0. If a defendant jumps bail when he's charged with a felony, but that charge is later reduced to a misdemeanor, should he be charged with felony bail jumping?

Nikeemia Coucil was charged with felony harassment. When he failed to appear at his hearing, the state added a count of bail jumping. Coucil was eventually convicted of the lesser-included offense of misdemeanor harassment, and of felony bail jumping.

The classification of bail jumping is based on the classification of the offense the defendant was “held for, charged with, or convicted of” when he jumped bail. Coucil argued on appeal that since he was convicted of misdemeanor harassment, the bail jumping should have been a misdemeanor as well. The appellate court disagreed, holding that bail jumping is classified “according to the nature of the underlying charge at the time the defendant jumps bail.” So since the underlying charge was a felony when Coucil jumped bail, it was proper to treat the bail jumping as a felony.

Coucil argues on appeal that the statute is ambiguous about whether bail jumping is classified based on the underlying charge or conviction.

ZDI Gaming, Inc., v. Washington Gambling Commission, No. 83745-7. Are cash cards a cash equivalent for purposes of pull tab gambling machines? And is Thurston County the proper venue for all cases involving the state gambling commission?

Washington State bans most forms of gambling, including slot machines, but allows pull-tabs. ZDI makes a pull-tab dispenser designed to mimic the sounds and display of a slot machine. They designed an updated version of the dispenser using special cash cards; players can use the cards to purchase pull tabs, and any winnings under $20 are automatically credited to the cards.

State law requires pull-tabs to be purchased with cash, check, or bank transfer, and prizes must be “cash or merchandise.” When ZDI sought approval from the Gambling Commission to sell the updated dispensers, the Commission denied approval because the cash cards don't count as “cash” or a “cash equivalent.” The superior and appellate courts disagreed, holding that the cash cards are a cash equivalent.

In addition to the cash equivalent issue, the Commission argues that the appellate court should be reversed on procedural grounds, regarding which is the proper superior court to hear the case.

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

Morning session (9:00 a.m.)

Samantha A v. WA Dept. of Social & Health Services, No. 84325-2. Whether it violates Federal Medicaid laws to reduce a disabled child's paid care due to the child's age or if the child lives with parents.

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

This rule was challenged on behalf of a child named Samantha A. The challenge claims (and the Superior Court agreed) that the children's personal care rule violates Federal Medicaid law “requiring comparability of amount, duration, and scope of services among all recipients.” This is because the rule treats disabled children differently based on their ages and on their relation to their caregivers.

News Tribune v. Honorable James Cayce, No. 83645-1. Whether the public has a right to view a deposition taken in a courtroom and presided over by a judge.

Pierce County Superior Court judge Michael Hecht was charged with harassment and patronizing a prostitute. James Cayce, a visiting judge from King County, presided over the case. One of the key witnesses was in custody, so the prosecution received permission to conduct his deposition in an available courtroom. (The courtrooms have secure access to the jail.) Judge Cayce was present at the parties' request to rule on objections.

A reporter from the News Tribune was denied access to the deposition proceedings. The Tribune filed for a writ of mandamus directing Judge Cayce to order the prosecution to produce a transcript and video recording of the deposition. The Tribune argues that since the deposition was presided over by a judge in court, they had a constitutional right to be present. Judge Cayce argues that the deposition was not a court proceeding.

Afternoon session (1:30 p.m.)

State v. Sims, No. 83779-1. Whether an appellate court striking down an element of a special sex offender sentencing agreement should ask the trial court to rehear just that section, or the entire agreement.

Jack Sims was convicted of child molestation and sentenced to life in prison. His sentence was suspended under a Sex Offender Special Sentencing Alternative (SOSSA) sentence. One condition of the SOSSA sentence was that Sims stay out of Cowlitz County and the City of Castle Rock.

Sims appealed this condition. The appellate court found the condition unconstitutional and vacated his sentence, remanding for resentencing. Sims argues that the appellate court should not have vacated the entire sentence because only the “banishment” condition was appealed, and allowing the trial court to reconsider the SOSSA sentence harms his right to appeal (since the trial court could refuse to grant Sims a SOSSA sentence on remand).

Community Transit v. First Transit, No. 83795-1. Concerns which public transport agency is responsible for tort claims from a traffic accident.

Community Transit contracted with First Transit to provide commuter bus service between King and Snohomish Counties. Part of the contract required First Transit to indemnify (pay) Community Transit for tort claims, except for those “resulting solely from the negligence of Community Transit.”

A Community Transit bus and a First Transit bus were involved in a multiple-car accident on I-5. The accident was caused by the negligence of the Community Transit driver and a third party driver; both parties agree that First Transit was not negligent. Community Transit settled several negligence claims by passengers, and filed indemnity claims against First Transit.

Community Transit argues that since the accident was not solely its fault, First Transit must indemnify them under the contract. But the appellate court ruled that the contract does not clearly state that First Transit must indemnify Community Transit even if First Transit did not cause or contribute to the accident. The court found that such a statement would be required to make one party indemnify another for the other party's own negligence, and ruled against Community Transit.

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

Morning session (9:00 a.m.)

Mills v. Western Washington University, No. 83597-7. The question here is whether holding a closed disciplinary hearing violated the Administrative Procedures Act. Western Washington University brought disciplinary charges against a professor, Perry Mills, for verbally abusive behavior. Over Mills’ objection, the charges were heard in a closed session. On appeal, the appellate court held that the closed hearing violated the APA. The University argues that because its internal rules allow a closed hearing, the hearing was allowed to be closed under the APA.

Beggs v. Washington, No. 84098-9. Tyler DeLeon was starved to death by his adoptive mother. Several doctors were sued on behalf of Tyler and his surviving siblings based on the claim that they hadn’t reported signs of child abuse. The court dismissed claims based on the mandatory reporting statute, finding that the doctors’ actions related to child abuse reporting are “health care” governed by the medical malpractice statutes. The plaintiff claims that reporting is done for legal purposes, not to provide medical care, and so it is not health care under the statutes. The court also dismissed a wrongful death claim on behalf of Tyler’s siblings because they are not financially dependent on Tyler. The plaintiff argues that the adoption support payments made to Tyler’s adoptive mother could have been used for joint family expenses, thus making the siblings dependent on Tyler. The issues before the Supreme Court are: 1) Whether the adoptive siblings of a deceased adopted child were dependent on him for support under the wrongful death statute based on the parent’s receipt of adoption support payments for the child; and 2) Does the medical malpractice statute preclude a civil action against health care providers under the mandatory child abuse reporting statute.

Afternoon session (1:30 p.m.)

Hardee v. DSHS, No. 83728-7. The issue before the Supreme Court is whether a daycare license is a professional license requiring a higher burden of proof to revoke. Kathleen Hardee ran a daycare until DSHS revoked her license for various reasons. Hardee appealed the revocation, and the Administrative Law Judge overturned the revocation. DSHS then appealed to Superior Court, which found that the license revocation was proper by a preponderance of the evidence. Hardee argues that she has a constitutional interest in her license which requires the revocation to be supported by “clear, cogent, and convincing” evidence. The appellate court disagreed, finding that a daycare license is a site license rather than a professional license, and thus “preponderance of the evidence” was the proper burden of proof.

Dolan v. King County, No. 82842-3. Whether the members of King County’s public defender organizations are public employees under the Public Employees’ Retirement System (PERS). King County provides public defense services through contracts with four nonprofit organizations, over which the county has some oversight. Kevin Dolan filed suit against the county on behalf of these organizations’ members seeking benefits under PERS. Dolan claims that the organizations are public entities. The trial court decided that the organizations’ members should be considered public employees under PERS, but certified the issue for appeal before proceeding with the case.

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Today the Court will hear four arguments as usual. (Docket, briefs)

Morning session (9:30 a.m.)

Blair v. Travel Centers of America, No. 83715-5. Whether the trial court abused its discretion by not allowing medical witnesses to be called due to violation of a local procedural court rule.

Truck driver Maureen Blair slipped and fell on spilled oil at a gas station, and sued the station. The King County Local Court Rules require parties to disclose possible witnesses by certain deadlines before trial. Blair's counsel failed to submit a list on time. The court allowed a list to be submitted, but as a sanction only allowed 7 witnesses on the list (instead of 14).

Just before trial, Blair's counsel indicated an intent to call two medical witnesses who had not appeared on either possible witness list. The defense objected, and the court disallowed the new witnesses. The case was later dismissed for lack of necessary medical evidence. Blair argues that the trial court failed to make necessary findings and abused its discretion when it disallowed witnesses and dismissed the case. The Division One Court of Appeals disagreed with him.

State v. Wilson, No. 83797-0. Whether resentencing is appropriate if a court erroneously classifies a gross misdemeanor as a felony when calculating a criminal sentence.

Jason Wilson pleaded guilty to identity theft. The plea agreement incorrectly listed a prior conviction for an attempted drug crime as a felony instead of as a gross misdemeanor, and calculated Wilson's offender score accordingly. Wilson argues that he is entitled to resentencing because his offender score was miscalculated.

The Court of Appeals disagreed, since the law requires attempted felonies to be treated as felonies when calculating offender score. This means the gross misdemeanor would be counted as a point toward Wilson's offender score anyway, and the factual error would not invalidate the sentencing.

Afternoon session (1:30 p.m.)

State v. Robinson (consolidated w/State v. Millan), No. 83525-0. Whether the admissibility of evidence can be challenged on appeal based on a new constitutional interpretation, when that point was not raised at trial.

Michael Robinson and Francisco Millan were each convicted of crimes based on evidence obtained through warrantless searches of their cars. In both cases they were confined away from the car before the search took place.

While Millan's case was on appeal the U. S. Supreme Court decided Arizona v. Gant, holding that the search of a car incident to arrest is only valid if the defendant is still within reaching distance of the passenger compartment (or if there is reason to believe the search will uncover evidence). Millan challenged the search of his car based on Gant, but the Court of Appeals rejected his argument since he hadn't raised the issue at trial. Millan claims that he should be allowed to challenge the search on appeal because the law changed after the trial was over.

In re the Personal Restraint of Glenn Nichols, No. 83742-2. Whether an issue can be raised in a personal restraint petition that was not raised at the trial court, and whether a police search of a hotel registry was valid.

Glenn Nichols was convicted of drug crimes based on a police search of a motel registry. After he had appealed his conviction (but before the appeal had been denied) Nichols filed a personal restraint petition based on the claim that the registry search violated the state constitution. The Court of Appeals denied the petition, saying that since the issue had not been raised at trial and could not be raised for the first time on appeal, it also couldn't be raised for the first time in a personal restraint petition.

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Today the Court is hearing four oral arguments, two this morning and two this afternoon. (Docket, briefs)

Morning session

State v. Jones, No. 83451-2. (consolidated with State v. Donaghe). These cases concern the issue of whether excess time spent in prison can offset the "community custody" portion of a sentence.

Cliff Jones was sentenced to 130 months of incarceration and 36 months of community custody for child molestation. He was later re-sentenced to only 51 months of incarceration. At the time of his re-sentencing Jones had already spent 81 months in custody. The trial court credited this time to his new prison sentence, but did not credit the remaining 30 months to offset the community custody portion of his sentence.

Sam Donaghe was sentenced to prison and community custody for multiple counts of rape. After the prison portion of his sentence, Donaghe was committed as a sexually violent predator. The trial court refused to issue certificate of discharge after a year (necessary for Donaghe to regain his voting rights) because Donaghe hadn't served his community custody.

Both Jones and Donaghe argue that the time they have spent in custody beyond their prison sentences should count toward their community custody time. The Court of Appeals disagreed in both cases, holding that the offender must be "in the community" for his community custody to commence.

Kittitas County & Central Washington Home Builders Assoc. v. Eastern Washington Growth Management Hearings Board, No. 84187-0. This case concerns whether Kittitas County's comprehensive land use plan complies with the Growth Management Act.

Various environmental groups challenged Kittitas County’s Comprehensive Plan and the Hearings Board invalidated it on several grounds. It found that the county allowed rural densities of one unit per three acres and that it failed to provide for a variety of rural densities. The Central Washington Home Builders Association was joined as a party while the plan was still before the Hearings Board, and now both Kittitas County and the CWHBA are challenging the Board’s decision.

Afternoon session

State v. Robinson, No. 83444-0. Here the Court must determine whether changing the sentence for a conviction after uncovering previous past crimes invalidates a defendant's guilty plea, when that plea was made in reliance on the original sentencing terms.

Chucco Robinson pleaded guilty to rape and burglary charges as part of a plea agreement. Robinson's potential sentence was incorrectly calculated because the state was unaware of four juvenile convictions. Robinson did not reveal the convictions because he mistakenly believed that they would not affect his offender score.

When the state discovered the juvenile convictions, it modified Robinson's recommended sentence to take into account his actual offender score. Robinson argues that his plea was not knowing and voluntary, but the Court of Appeals held that he bore the risk of the prosecutor discovering his undisclosed criminal history.

Veit v. Burlington Northern Santa Fe Corp. No. 83385-1. Whether an excessive speed claim against a railroad company is preempted by federal law, or should be judged by internal speed limits.

Alizon Veit drove her car onto a railroad crossing, stopped on the track, and was hit by a train. She sued the railroad and the city, claiming that the crossing was improperly designed and that the train was going too fast. Before trial, the court held that the claims based on train speed were preempted by federal law, because under the Federal Railroad Safety Act (FRSA) the type of track in question has a speed limit of 40 mph. and the train was going slower than that.

Veit argues that the FRSA requires railroads to maintain track to certain standards based on their own internal speed limits, rather than setting speed limits based on the track. She claims that because of this, evidence of the railroad's internal speed limits is not preempted by the FRSA.

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

Morning session (9:00 a.m.)

In re J. David Smith, No. 200748-1. Whether a court rule that presumes an attorney who has pled guilty to a crime has actually committed the crime is constitutional.

As part of a plea bargain, J. David Smith pleaded guilty to conspiracy to commit securities fraud. Enforcement of Lawyer Conduct Rule 10.14(c) provides that a lawyer's conviction for a crime creates a conclusive presumption that the lawyer committed the crime. Based on this, the disciplinary board found that Smith had violated various professional rules and recommended that he be disbarred.

Smith argues that ELC 10.14(c) is unconstitutional when it assumes that he is guilty because he pleaded guilty. He says that it violates his due process rights because it keeps him from presenting a defense.

State v. Grier, No. 83452-1. Whether an attorney's failure to ask the judge to instruct the jury on less serious offenses the defendant could be found guilty of constitutes ineffective assistance of counsel.

Kristina Grier and Gregory Owen were drinking with several other people at Grier's house. During the evening Owen stole several items from Grier, including three guns, and got into several fights with Grier and her son. During the last fight a gun went off, killing Owen.

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

Afternoon session (1:30 p.m.) 

Qualcomm Inc. v. Washington Department of Revenue, No. 83673-6. Whether the primary purpose of Qualcomm's OmniTRACS system is information or telecommunications.

Qualcomm provides a service called OmniTRACS to truck companies. The service uses satellites to track the location of trucks and sensors to track data like engine condition and fuel use. OmniTRACS also allows truckers to communicate with their dispatch office through the system.

The Department of Revenue reclassified OmniTRACS from an information service to a telecommunication service, with tax ramifications. Qualcomm argues that this was wrong because the primary purpose of the system is providing “processed data or information.” The Division Two Court of Appeals disagreed, holding that the primary purpose of the system is data transmission.

State v. Marohl, No. 83570-5. This is a case we discussed when it first was accepted for review, since it seemed like such a great bar exam question. It concerns whether a casino floor can be considered an "instrument or thing likely to produce bodily harm."

James Marohl, a martial artist, got into a fight in a casino. He put his opponent into a choke hold and then threw him to the ground. Marohl was convicted of third degree assault based on causing bodily harm using an “instrument or thing likely to produce bodily harm.” In this case the instrument or thing is the casino floor. Marohl argues on appeal that the floor is not an “instrument or thing” within the meaning of the statute. He lost at both the trial and appellate court levels.

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Today the Court resumes oral arguments, with two in the morning and one in the afternoon. (Docket, briefs)

Morning session (9:00 a.m.)

Seattle Times v. Serko, No. 84691-0. This writ of mandamus action concerns whether fear over future prejudicial news coverage provides adequate grounds to withhold police investigation records and seal trial exhibits.

After Maurice Clemmons shot and killed four police officers in Lakewood, the Seattle Times requested various documents related to the investigation from the Pierce County Sheriff's Office. The Sheriff's Office prepared to release the documents, but seven people charged as alleged accomplices of Clemmons intervened, asking the court to withhold the documents on the grounds that release would impair their rights to a fair trial because of increased publicity. Judge Serko agreed.

Judge Chushcoff, presiding over the trial of one of the alleged accomplices, subsequently sealed all trial exhibits based on Judge Serko's order. The Times argues that both actions were in error.

UPDATE: Judge Chushcoff sent me a note clarifying that he did not actually preside over the trial of the accomplices, but merely signed the order restricting access to the trial exhibits until such as it could be determined which of those exhibits were covered by Judge Serko's order. Judge Arend actually presided over the trials but was unavailable when the sealing issue arose.

Bowie v. Wa Dept. of Revenue, No. 83426-1. This case involves the question of whether Valpak advertisement mailings should be considered a periodical under the B&O tax classifications, specifically whether Valpak provides its intended audience with its publication schedule.

Valpak is a group of franchises that regularly send ad mailings to homeowners. In 2002 the company asked the Department of Revenue for guidance on how to classify their business, and were given a letter ruling saying they fell under the favorable "periodical" classification. Valpak began filing under that status and claimed a refund for past taxes. The DOR later revoked its ruling and Valpak sued for a full refund. The trial court found for DOR, but the Court of Appeals rejected its reasoning and remanded for factual findings on whether Valpak provides its audience with a publication schedule--and thus should be defined as a periodical.

Afternoon session (1:30 p.m.)

State v. Lui, No. 84045-8. Here the Court must determine whether a defendant's constitutional right to confront an accuser is violated when an expert witness testifies about work performed by a different expert on evidence prepared for the trial.

Sione Lui was charged with murder after police found his fiancee, Elaina Boussiacos, strangled and stuffed into the trunk of her car. During the trial the state used a medical examiner to testify as an expert witness on the autopsy report, although the report was prepared by a different examiner. The state also used a lab supervisor to testify about DNA tests performed by other lab workers. Lui argued that the use of these witnesses violated his Confrontation Clause rights. The Court of Appeals ruled against Lui.

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The Court will hear four arguments today, as usual. (Docket, briefs)

Morning session (9:00 a.m.)

State v. Mitchell, No. 83169-6. This case hinges on the question of whether a child qualifies as a "dependent person" for purposes of the crime of criminal mistreatment.

Marilea Mitchell and her boyfriend were charged with criminal mistreatment after starving the boyfriend's son almost to death. The statute refers to mistreatment of “a child or a dependent person,” and Mitchell was charged with mistreatment of a “dependent person.” Mitchell claims that the boy was a child, not a dependent person, and thus she was wrongly convicted.

But Division One Court of Appeals held that the boy was both a child and a dependent person, and upheld the conviction.

State v. Ervin, No. 83244-7. Under the Sentencing Reform Act, Class C felonies can be scrubbed from an individual's offender score if the person lives crime-free in society for five years. The question in this case is whether incarceration during the five-year period interrupts the countdown.

James Ervin was convicted of felony violation of a no-contact order in 2006. He had committed two previous felonies in 1991 and 1994, as well as other crimes between 1994 and 2006. During one five-year stretch he was not convicted of any crimes, but he was incarcerated during that time for a parole violation.

Ervin argues the five-year stretch without any crimes should cause his previous felony convictions to be scrubbed. But the King County Superior Court and Division One Court of Appeals held that while Ervin was in prison he was not “in the community,” and his imprisonment interrupted the five-year period.

Afternoon session (1:30 p.m.)

Forbes v. American Building Maintenance Company West, No. 82950-1. Whether the plaintiff has to pay prejudgment interest on attorney fees to her attorney, and whether a settlement was properly modified.

Attorney Mary Schultz represented Cheryl Forbes in an employment discrimination suit against American Building Maintenance. Schultz won the trial and the first appeal. Schultz and Forbes had a falling out, and while the case was on appeal to the Supreme Court Forbes fired Schultz and accepted a settlement offer by ABM. ABM deposited the settlement money in the court registry until the court could decide how much Schultz was entitled to.

The trial court awarded prejudgment interest on the attorney's fees, and Forbes challenges this award on two grounds.

First, she argues the claim for fees was unliquidated because there was disagreement over which terms of the fee agreement applied. Division Three Court of Appeals held that the amount “could be calculated with precision” even though there was disagreement on which terms to use, and thus the claim was liquidated.

Second, Forbes argues that the money was not under her control because it was in the court registry. The appellate court held that since Forbes instructed the court clerk to invest the money for her benefit, she still had “use of” the money, and thus prejudgment interest is appropriate.

In addition to the interest issue, the appellate court modified the settlement amount to match the satisfaction of judgment document. Forbes claims that the satisfaction of judgment was incorrect.

State v. Ish, No. 83308-7. Generally speaking, prosecutors are not allowed to vouch for the credibility of a witness. This case concerns whether informing the jury that a witness agreed to a plea bargain requiring truthful testimony constitutes vouching for his credibility.

Nathaniel Ish murdered his girlfriend and was arrested and imprisoned prior to trial. While in prison he talked to David Otterson, his cell mate, about the murder. The state made a plea agreement with Otterson which, in part, required him to testify truthfully at Ish's trial.

While examining Otterson at trial, the prosecutor brought out the information that the plea agreement required Otterson to testify truthfully and that it could be revoked if Otterson breached it. Ish claims this was vouching for the witness, but Division Two Court of Appeals disagreed, since the prosecutor did not express a personal opinion about Otterson's credibility.

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

Morning session (9:00 a.m.)

Anderson v. Akzo Nobel Coatings, Inc. No. 822646. This case concerns whether a defense of comparative negligence based on the way a woman worked while pregnant is impermissibly discriminatory, and whether the Frye test for expert witnesses is still appropriate.

Julie Anderson worked for the auto paint company Akzo Nobel Coatings, where she mixed paint as part of her job. Anderson continued her job after becoming pregnant, and gave birth to a son with brain damage. She believes the damage was caused by exposure to paint fumes, and sued Akzo for inadequate safety procedures.

At trial, Akzo raised a comparative fault defense based on the fact that Anderson continued to mix paint during her pregnancy, contrary to the advice of her supervisor. Anderson moved for summary judgment to dismiss the defense as discriminatory against her for working while pregnant. But the King County Superior Court allowed Akzo to present the defense.

Testimony by Anderson's expert witness was excluded under Frye v. United States (293 F. 1013), which requires scientific theories and methodologies to be “generally accepted in the scientific community” in order to be admissible. Anderson wants Washington to stop using the Frye test, and says that it was incorrectly applied.

Finally, the court dismissed a wrongful discharge claim by Anderson because she failed to pursue a statutory remedy.

State v. Meneses, No. 831726. Whether charging someone with both harassment and intimidation of a witness due to the same phone call is double jeopardy.

As part of a visiting dispute, Andre Meneses called his ex-girlfriend several times, cursing her and threatening to kill her. He was charged and convicted of multiple counts of telephone harassment and intimidating a witness.

The court instructed the jury that the defendant commits telephone harassment if he makes a telephone call with intent to harass someone. Meneses claims that this did not inform the jury that the intent to harass must be formed before the call is made, but the court disagreed.

The harassment and intimidation charges are based on the same phone call, which Meneses claims is double-jeopardy. But the court held the two crimes are different because each requires the state to prove a different purpose for the threat.

Meneses also asks the court to review the trial court's refusal to instruct the jury on the lesser included offenses of attempted intimidating a witness and witness tampering.

Afternoon session (1:30 p.m.)

School District Alliance for Adequate Funding of Special Education v. State, No. 829616. Whether the state's funding mechanism for special education violates the state constitution.

Article 9, Section 1 of the state constitution says, “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders.” The School District Alliance for Adequate Funding of Special Education challenged the constitutionality of Washington's special education funding system under Article 9 as inadequate to completely provide for the education of special needs students, requiring some districts to rely on levies for special education funding.

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

State v. Webb, No. 831777. This case presents the question of whether the burden of proving a child witness incompetent to testify is on the party calling the witness.

Samuel Webb, a minor, was convicted of raping another minor. At trial, the court required Webb to prove that the victim was incompetent to testify. Webb failed to do so.

Webb appealed, claiming the burden should have been on the state to prove his victim's competency. Division One Court of Appeals agreed, but found that the state met its burden and upheld the conviction.

The state now appeals the appellate court's finding that the burden of proof as to a child witness's competency is on the party calling the witness.

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Today the Supreme Court will hear arguments in three cases (docket and briefs).

In the morning session:

State v. Sandoval, No. 82175-5. Valentin Sandoval was pled guilty to a third-degree rape conviction. He seeks to vacate this conviction by challenging his trial counsel's effectiveness, who misadvised him of the deportation consequences of pleading guilty. The Court of Appeals (Div. III) affirmed Sandoval's conviction and guilty plea.

State v. Eserjose, No. 82491-6. On direct review from Kitsap County Superior Court, James Eserjose argues he was illegally arrested in his home and transported to the police station, where he subsequently made incriminating statements. He argues that evidence obtained through an illegal arrest should be suppressed.

In the afternoon session: 

City of Seattle v. The Hon. George W. Holifield, No. 83277-3. Respondents Matthew Jacob and Jacob Culley were each charged with driving while under the influence of alcohol. Each moved to suppress their breath test results because of alleged misconduct by Ann Marie Gordon, the former manager of the Washington State Toxicology Laboratory. The municipal court suppressed the breath test results and the city sought writ of review. The superior court denied the writ. On appeal, the Court of Appeals held the suppression of evidence was not proper and the city was entitled to a writ of review.

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Today the Court will hear four arguments. (Docket, briefs)

Morning session

In re Sandra Ferguson, No. 200719-8. This disciplinary hearing concerns an attorney who violated the Rules of Professional Conduct.

According to the findings of the disciplinary board, Sandra Ferguson appeared before a court ex parte and filed a motion for injunctive relief and an order of contempt, which was granted. She did not notify the opposing party, however, but misled the judge into believing she had. Her license was suspended for ninety days.

State v. Montano, No. 82855-8. The Court will hear argument on whether general threats to a police officer constitute an attempt to influence the officer's actions, an element in the crime of intimidating a public servant.

Jose Montano resisted arrest for assault and officers had to shock him twice before they could handcuff him. On the way to jail, Montano threatened the officer driving him with statements including “I know when you get off work, and I will be waiting for you,” “I'll kick your a**,” and “I know you are afraid, I can see it in your eyes.” Montano was charged with intimidating a public servant.

One element of the crime involves proving that the defendant intended to influence the servant's official actions. The trial court dismissed the charge against Montano because there was no evidence that he wanted to influence the officer's actions. The Division Three Court of Appeals reversed, however, holding that the jury could infer an intent to influence from Montano's statements.

Afternoon session

State v. Immelt, No. 83343-5. Is honking your car horn repeatedly in a neighborhood a protected form of speech?

Snohomish County Code prohibits horn honking for purposes other than public safety. Helen Immelt, angry at a neighbor, honked her horn in front of his house for about ten minutes just before 6:00 a.m. Police came and warned Immelt to stop honking. She claimed her horn was broken, but then honked several times as she drove away. The police caught and arrested her.

Snohomish County Code prohibits horn honking for purposes other than public safety. Immelt challenges this ordinance as a free speech violation. The court held that her honking was not “speech,” and thus not protected.

Burton v. Twin Commander Aircraft, No. 83030-4. Here the Court must determine whether Twin Commander is an airplane manufacturer under federal law. If so, then Burton's claim is likely barred by a federal statute of limitations.

Twin Commander Aircraft bought the “type certificate” for a particular model of aircraft from Gulfstream. The type certificate authorizes the owner to manufacture a particular model of aircraft, and requires them to support the aircraft. Twin Commander has never actually manufactured the aircraft in question, but does manufacture spare parts, issues safety bulletins and provides other support services

Twenty years ago one of the aircraft in question crashed. Kenneth Burton, personal representative of the victims, sued Twin Commander for damages resulting from the crash. The federal General Aviation Revitalization Act puts an 18-year statute of limitations on suits against the manufacturer of an aircraft. Twin Commander argues that this bars the plaintiffs' claim. Division One Court of Appeals ruled that Twin Commander has failed to prove that it is a “manufacturer” of the aircraft, however, and thus covered by the statute of limitations.

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The Supreme Court will hear arguments in four cases today (briefs and docket).

In the morning session:

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

Rousso v. State, No. 83040-1. Lee Rousso, an amateur poker player, is challenging the state’s ban on internet gambling, arguing it violates the Commerce Clause of the U.S. Constitution. The Poker Players Alliance filed an amicus brief in support of Rousso's case.

In the afternoon session:

In re Detention of Gale West, No. 82568-8. In a civil commitment trial for an alleged sexually violent predator (SVP), does the respondent have a right to discover an expert witness’s prior evaluations of other suspected SVPs? Is it permissible for a witness to testify about the conditions and treatment phases at the Special Commitment Center?

In re Detention of Charles W. Post, No. 83023-1. In a civil commitment trial for an alleged sexually violent predator, is evidence about the treatment available at the Special Commitment Center admissible? Is evidence that a respondent, if released, could later be subject to another commitment proceeding upon commission of a “recent overt act” admissible?

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The court hears four cases today. (Docket, briefs)

Morning session

In re PRP of Shawn Dominique Francis, No. 82619-6. Whether the defendant waived his double jeopardy challenge to multiple convictions by pleading guilty to the crimes.

State v. Irby, No. 82665-0. Whether the trial court in a criminal prosecution violated the defendant’s constitutional right to be present when it dismissed some potential jurors outside the defendant’s presence after conferring with defense counsel and the State by email.

Afternoon session

In re W. Russell Van Camp, No. 200,799-6. Whether an attorney can avoid suspension while the bar association’s recommendation for disbarment is heard on appeal.

Guillen, City of Sunnyside v. Contreras, No. 82531-9. A man was killed in a drug deal and the police seized his car and money. The family of the man asked the judge to return the seized property, which the court did at one-quarter of its value. The question is whether the claimant in an action to recover property seized in a controlled substances investigation “substantially prevailed,” and thus was entitled to an award of attorney fees, even though she recovered in value less than one-quarter of the assets she sought.

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On the second argument day of the new session, the Court's docket includes cases on racism, teacher-student sex and the Public Records Act. The Justices will hear four cases, two in the morning and two in the afternoon. (Docket, briefs)

Morning session (9:00 a.m.)

State v. Sanchez, No. 82731-1. This case concerns the constitutionality of a specific condition of community custody, and what showing of harm from the condition is required to make the case ripe for a constitutional challenge.

Isidoro Valencia and Eduardo Sanchez were convicted of drug crimes, and their sentences included "community custody." One condition of the community custody was a ban on possessing “any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances.”

Valencia and Sanchez appealed this condition as being unconstitutionally vague. The Court of Appeals (Division Two) held that the appeal was not yet ripe because the defendants had not yet been harmed by the condition, and that they must wait to appeal until they are charged with violating the condition. Petitioners argue they are harmed by the hardship of complying with a vague condition.

State v. Monday, No. 82736-2. The Court will hear arguments regarding whether allegedly racist and disparaging comments made by the prosecutor prejudiced the jury, and whether a firearm enhancement can be imposed if "firearm" is not defined for the jury.

Kevin Monday was convicted of murder. During the trial, the prosecutor told the jury, “The code is black folk don't testify against black folk. You don't snitch to the police.” Monday claims this was racist. He also made other claims of prosecutorial misconduct, including the prosecutor improperly using the prestige of his office and making fun of witnesses' accents.

In addition, Monday claims that the imposition of a firearm enhancement (meaning the sentence was increased because a firearm was used in the crime) was improper because the court did not define “firearm” for the jury.

The Division One Court of Appeals held that if there were errors, they were not prejudicial.

Afternoon session (starting at 1:30 p.m.)

Ameriquest Mortgage Co v. Washington Attorney General, No. 82690-1. This case presents the question of whether the federal Gramm-Leach-Bliley Act, which requires banks to keep customer information private, preempts the state Public Records Act.

During an investigation by the Attorney General's Office, Ameriquest Mortgage Company turned a number of documents over to the AGO, including many consumer loan files. A public records request was filed for the documents, and Ameriquest sued the AGO to keep the files secret.

Division Two Court of Appeals held that the Gramm-Leach-Bliley Act, which requires banks to keep customer information private, preempts the PRA, preventing disclosure of the loan files. The AGO argues that the statutes are not in conflict, and thus there is no preemption. The AGO also challenges the Court of Appeals' holding that any party simply affected by the disclosure of public records has standing to challenge an agency's decision to waive public records exemptions.

The Washington Coalition for Open Government and the ACLU filed amicus briefs in this case.

State v. Hirschfelder, No. 82744-3. This case is about whether an 18-year-old student is a minor for purposes of the crime of "sexual misconduct with a minor."

Matthew Hirschfelder, a choir teacher at Hoquiam High School, was charged with having had sex with an eighteen-year-old member of the choir. The charge was based on the crime of He was convicted of "sexual misconduct with a minor," which (among other things) prohibits teachers from having sex with students. Hirschfelder argued, and the Division Two Court of Appeals agreed, that the statute only applies to students who are under 18. The state says it applies to all students.

UPDATE: As noted by Robert Hill in the comment threat, Hirschfelder has not been convicted of any crime, nor have the allegations of sexual conduct been proven.

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The Supreme Court will hear oral arguments in three cases today.

In the morning session, starting at 9:00 a.m.:

In re Richard Dale Shepard, No. 200,720-1. Was Shepard appropriately suspended from the practice of law for two years after violating various Rules of Professional Conduct?

State v. Doughty, No. 82852-1 (briefs). A police officer observed Walter Doughty drive up to a drug house at 3:20 a.m., stop for two minutes, and leave. The officer stopped Doughty, discovered that he was driving with a suspended license, and upon searching him found that he had, indeed, bought drugs. Doughty claims that the officer lacked reasonable suspicion to stop him. The issue in this case is whether Doughty's actions created reasonable suspicion for the officer to conduct a Terry stop. Doughty was convicted in Spokane County Superior Court and the Court of Appeals upheld his conviction.

In the afternoon session, starting at 1:30 p.m.:

In re Hawkins, No. 82907-1 (briefs). The issue here is whether RCW 71.90 authorizes pretrial polygraph tests. The state filed a petition to commit Jake Hawkins, who was reaching the end of his sentence for rape, as a sexually violent predator. Pursuant to RCW 71.90, the trial court ordered Hawkins to submit to a sexual history polygraph test prior to the hearing. Hawkins appealed the order, claiming that RCW 71.90 does not authorize pretrial polygraph tests. The court of appeals interpreted RCW 71.90 to allow such tests, and thus affirmed the order.

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At 9:00 a.m. this morning the Court will hear one argument on a Public Records Act case. Because it involves a sitting justice, the entire Court may be replaced by pro tem justices (judges drawn from a lower court to review just this case). (Docket, briefs) After today the Court will recess from arguments until May.

Richard Sanders v. State, No. 82849-1. Justice Sanders is asking the Court to find that the Attorney General's Office violated the Public Records Act by withholding hundreds of requested records under various exemptions claimed without explanation; and to determine whether the penalties and costs awarded to Sanders by the trial court were sufficient.

In 2004, Sanders sent a request to the Attorney General's Office for all documents related to his visit to the McNeil Island Special Corrections Center and the actions taken by the Commission on Judicial Conduct in response to his visit (which led to a different Sanders v. State). Over a hundred responsive documents were withheld or redacted, primarily under the "related to a current case or controversy" exemption to the PRA (RCW 42.56.290), with no explanation of why the documents fell under that exemption.

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

This is the case that led to the claim that Sanders was self-serving in his Yousoufian v. Sims majority opinion. Due to that controversy, the appellate court determined it didn't have the authority to review, and kicked the case up to the Supreme Court.

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The Supreme Court is hearing arguments in the appeals of death row inmates Cal Coburn Brown, Jonathan Gentry, and Darold Stenson. The prisoners are challenging the state's lethal injection protocol as unconstitutional. Convicted murderer Brown had been scheduled for execution in March 2009 when the Supreme Court approved a last minute stay to allow his case to be consolidated with the challenge of the lethal injection practice.

The practice was upheld by Thurston County Superior Court judge Chris Wickham in July of last year. Earlier this month the State recently sought to have the appeal dismissed as moot as the Department of Corrections has changed its lethal injection protocol.

We've written about the state's policy on capital punishment -- it has long been upheld as constitutional.

Today's arguments can be seen here on TVW.

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The Court will hear four arguments today concerning gun possession, rental agreements, child rape and metadata in emails. (Docket, briefs)

Morning session, starting at 9:00 a.m.

Rivard v. State, No. 82431-2. This case concerns whether the current statutory prohibition on possessing firearms for felons who commit a "serious offense" can be applied retroactively.

James Rivard was convicted of vehicular homicide in 1994. At the time, vehicular homicide was a class B felony, and only class A felons permanently forfeited their right to possess firearms. But a judge mistakenly sentenced Rivard to forfeiture of this right.

The legislature subsequently amended the firearm statute to prohibit firearms to anyone convicted of a “serious offense,” including vehicular homicide.

After he was released from prison, Rivard petitioned for restoration of his firearm rights. The trial court granted the petition, applying the 1994 law and holding that the original forfeiture was invalid. Division Three Court of Appeals, however, held that the firearm regulations are regulatory rather than punitive, and so can be applied retroactively.

Little Mountain Estates Tenant Assoc. v. Little Mountain Estates, No. 82574-2. Argument in this case centers around whether the Manufactured/Mobile Home Tenant Act requires a 25-year fixed rate deal in a mobile home lease to be freely transferrable, or if it can be limited to the first signer.

Little Mountain Estates, a mobile home park, offered a 25-year fixed rate lease deal to attract tenants. The lease agreements provided that if a tenant assigned (transferred) his lease to someone else, it would convert to a one or two year lease.

Several tenants sued, claiming that the assignment clause violates the Manufactured/Mobile Home Landlord Tenant Act. The MHLTA requires all leases to be assignable, and the tenants claim that this means they must be able to transfer all their rights under the lease, including the “fixed rent for 25 years” provision.

Plaintiffs lost at Skagit County Superior Court, but successfully appealed to Division One Court of Appeals.

Afternoon session, starting at 1:30 p.m.

State v. Patel, No. 82649-8. Here the Court must decide whether a person can be convicted of attempted child rape when the victim was only posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of attempted rape of a child.

Child rape is a strict liability crime, meaning that the state must prove that the victim was underage, but not that the defendant knew she was underage. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The Spokane County Superior Court and Division Three Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

O'Neill v. City of Shoreline, No. 82397-9. This case revolves around whether email "metadata" is subject to disclosure under the Public Records Act.

During a public meeting, the mayor of Shoreline referred to an email alleging misconduct by council members, and claimed erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. The mayor provided O'Neill with a copy of the email without its header information (to, from, etc.), then deleted the original email. O'Neill filed several requests trying to get an electronic copy of the email, including all the metadata. Since the message had been deleted, the City never could produce the metadata.

The Division One Court of Appeals held that the metadata was a public record which the City was obligated to provide. But it also ruled that O'Neill's first request, which was simply for "a copy of the email," did not imply a request for the metadata. Only her subsequent requests, in which she was more specific about wanting an electronic copy of the email and its associated metadata, put the City in violation of the PRA when they did not provide those records. The City argues that at most, the metadata is “a public record with no retention value,” like an envelope. 

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In case you have a fetish for following open government law, like we do, here's the video from yesterday's oral argument in Yakima County v. Yakima Herald Republic.

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Today the Court will hear four arguments concerning criminal evidence, public records and due process. (Docket, briefs)

Morning session, starting at 9:00 a.m.

State v. Ibarra-Cizneros, No. 82219-1. The question before the Court is whether prosecutors can use criminal evidence uncovered via a cell phone seized illegally by police.

Gilberto Ibarra-Cisneros called his brother's cell phone, not knowing that his brother had been arrested and the phone seized by police. The police answered the phone and arranged to meet with Gilberto. At the meeting, undercover officers found drugs on him and arrested him.

Later a court determined that the search leading to the brother's arrest (and thus the seizure of the cell phone) was illegal. Gilberto argues that since the police only turned their attention to him because of the cell phone, all the evidence from their meeting is “fruit of the poisonous tree” barred by the exclusionary rule. The Walla Walla Superior Court disagreed, holding that the link between the phone and the evidence was “too attenuated” to impact Gilberto’s conviction.

The Division Three Court of Appeals upheld the conviction.

Yakima County v. Yakima Herald-Republic, No. 82229-8. This case concerns whether the Public Records Act compels disclosure of sealed billing records concerning fees paid by Yakima County to public defense attorneys.

Yakima County appointed lawyers to represent two indigent murder defendants, paying them approximately $2 million. As part of the payment process, a judge who was not otherwise involved in the case reviewed the lawyers' bills to decide whether they should be paid.

The Yakima Herald-Republic filed a request under the Public Records Act for spreadsheets and other files related to the bills. The County withheld the records, claiming that they were exempt from the Public Records Act under Nast v. Michels because they are judicial records. The Herald-Republic argues that Nast only exempts “court case files,” not administrative records.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming Nast and finding that administrative court records were not subject to the PRA, so it will be interesting to see what differentiation the Court makes in this case.

Afternoon session, starting at 1:30 p.m.

State v. Nason, No. 82333-2. The issue before the Court is whether Spokane County's policy of imposing jail time on offenders who fail to pay court costs violates due process.

James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. (Spokane County has a policy allowing the courts to order jail time when a defendant refuses to pay his obligations.) Nason argues on appeal that this violated his due process rights in various ways, including the lack of a separate hearing and the fact that he was not given credit against his financial obligations for the time served in jail.

The Division Three Court of Appeals upheld his sentence.

State v. Stubbs, No. 81650-6. This case concerns whether a stabbing that results in partial paralysis satisfies the requirement for an exceptional sentence for first degree assault, and whether the requirement itself is unconstitutionally vague.

Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing him from the waist down. Stubbs was convicted of first degree assault and given an exceptional sentence due to his victim's injuries. Such sentences are allowed where the injuries “substantially exceed the level of bodily harm necessary to satisfy the elements” of a crime.

Stubbs argues that since one element of first degree assault is the infliction of “great bodily harm,” Goodwin's extreme injuries are an element of the crime. The court disagreed, holding that the jury could find that Goodwin's injuries substantially exceeded the great bodily harm element.

Stubbs also argues that the test for an exceptional sentence, found in RCW 9.94A.535(3)(y), is unconstitutionally vague. 

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The court is back in session today to hear three oral arguments, two this morning and one this afternoon. (Docket, briefs)

Morning session (starting at 9:00 a.m.)

State v. Adams, No. 822107. Another in a recent line of cases concerning warrantless automobile searches, this case presents the specific issue of whether police can make a warrantless search of a locked car in connection with an arrest.

Coryell Adams had just pulled into a Taco Bell parking lot when a sheriff's deputy pulled in behind him with her flashing lights on. Adams got out of the car and started yelling at the deputy, who told him to get back in the car. Instead of doing so, Adams slammed the car door, locked it, and moved several feet away. After backup arrived the deputy arrested Adams and placed him in handcuffs in the back of her car. She then took Adams' keys, unlocked his car, and searched it, finding cocaine.

Adams challenged the search as unlawful, since the car was locked and there was little danger of him getting a weapon or destroying evidence. The court disagreed, holding that Adams was close enough to be in “immediate control” of the car, and that this justified a search "incident to arrest."

The case is on appeal from Division One Court of Appeals, and originated in King County Superior Court.

Port Angeles v. Our Water-Our Choice, No. 822255. The question before the court is whether citizen initiatives to reverse a city council's decision to fluoridate its water supply are valid.

Port Angeles' City Council decided to put flouride in the city water supply, but two citizen groups filed local initiatives to restrict their ability to carry out the plan. A trial court reviewed the initiatives and determined they were invalid for three reasons: they were administrative rather than legislative, they interfered with the council's legislatively-delegated authority to regulate the water supply, and because they exceeded the council's legislative authority.

Division Two Court of Appeals upheld the trial court ruling on appeal.

Afternoon session (starting at 1:15 p.m.)

State v. Bunker (consolidated with State v. Williams), No. 819211. This case concerns the interpretation of an old version of the statute criminalizing violations of domestic violence no-contact orders.

Leo Bunker and Donald Williams were both convicted of violating domestic violence no-contact orders. They appealed, claiming that RCW 26.50.110 only criminalized certain types of violations and did not apply to theirs.

The statue as then written was somewhat ambiguous- the court stated that “the statute at issue... is unfortunately not a virtuosic specimen of legislative drafting.” But after analyzing it, the court held that it applied to all domestic violence no-contact order violations, including those of Bunker and Williams.

Both cases arose out of King County, and the convictions were upheld in Division One Court of Appeals.

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The Supreme Court will hear arguments in three cases today (docket, briefs):

In the morning session: 

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

State v. Regan, No. 82476-2. Francis Regan was convicted of fourth degree assault. Most of his sentence was suspended and he received 24 months of probation. One of the conditions of probation was that he commit “no criminal violations of the law.” During the probationary period, Regan was accused of another assault. He was brought to court for trial and a probation hearing. A jury acquitted him, but the judge at the probation hearing believed that Regan had committed the assault and revoked Regan’s probation.

Probation violations normally have a lower burden of proof than criminal trials. But Regan argues that the term “no criminal violations of the law” requires criminal conduct, and that criminal conduct must be proven beyond a reasonable doubt. Since he was not found guilty beyond a reasonable doubt, he says his probation should not have been revoked. The Grays Harbor Superior Court reversed the probation ruling, but the Court of Appeals (Div. 1) reversed the superior court. Defendant now appeals to the Supreme Court.

Then in the afternoon session: 

McGuire v. Bates, No. 82659-5. Whether a settlement for “all claims” includes attorney fees. Julianne McGuire hired Robert Bates to remodel her kitchen. After it was done, she claimed that he had done the work improperly and sued him. The case went to mandatory arbitration, but before the arbitration the parties settled “all claims” for $2180.

RCW 18.27.040 allows the prevailing party in a suit by a homeowner against a contractor to recover attorney fees. McGuire moved for attorney fees based on this statute. The arbitrator denied the motion because the parties had agreed to settle “all claims.” However, the courts held that attorney fees are a cost, not a claim, and were thus not included in the settlement agreement. Bates appealed, and also argues that McGuire is not a “prevailing party” because the case was settled.

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

Morning session

Hudson v. Hapner, No. 82409-6. At what point can a party withdraw a request for a civil trial? That's the procedural question before the Court in this case.

Clifford Hapner rear-ended Lea Hudson, and Hudson sued for damages. The case went to mandatory arbitration where Hudson was awarded $14,538. After mandatory arbitration a party can request a trial before the superior court, which Hapner did. But the jury awarded Hudson $292,298. Hapner appealed, and the appellate court remanded the case for a new trial.

After discovery for the second trial, but before the trial took place, Hapner filed a notice of withdrawal of his motion for a trial. This would allow him to pay only the arbitration award, plus Hapner's court costs. The trial court struck the withdrawal at Hudson's request, but the Division Two Court of Appeals reversed, disagreeing with Hudson's argument that court rules include a time limit for withdrawal after a trial takes place.

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

Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions.

A party in a district court is entitled to a new trial if a “significant or material portion” of the electronic recording is lost. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.

The superior court fully reviewed the district court's decision, concluded that the missing portion was material, and ordered a new trial. The state appealed, and the Division One Court of Appeals reversed the superior court, concluding that the superior court should only have looked at whether the district court overstepped its bounds in making the decision (abuse of discretion), rather than taking a whole new look at the question of materiality.

Afternoon session

State v. Hall, No. 82558-1. This case concerns whether multiple attempts to tamper with a witness can be prosecuted as multiple crimes.

Isiah Hall was charged with burglary, and Desirae Aquiningoc was called as a witness. Before the trial, Hall called Aquiningoc several times from prison and tried to get her to lie at the trial or to go into hiding. Hall was convicted of multiple counts of witness tampering.

Hall argues on appeal that all of his calls were part of a single case of witness tampering, and that convicting him multiple times violates double jeopardy. The Division One Court of Appeals disagreed, holding that each attempt to get Aquiningoc to lie or hide was a separate case of tampering.

State v. Jones, No. 82613-7. In this case, the Court will consider whether the rape shield statute bars testimony about contemporaneous sexual behavior for the purpose of proving consent.

Kashauna Dixon claimed that she was raped by her uncle, Christopher Jones. Jones admitted to having sex with her, but claimed that she consented. According to Jones, they were having a party with several others that included alcohol, sex, and drugs.

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

Jones also appealed on other due process grounds, including the prosecutor's statement to the jury that Jones refused to submit to warrantless DNA testing.

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Today the Court is hearing three arguments, two in the morning and one this afternoon. (Docket, briefs)

Morning session

State v. Turner/Faagata, No. 81626-3. These consolidated cases present the question of whether two crimes can be merged for sentencing without completely wiping out any potential future sentencing on the lesser crime.

Both defendants are charged with two crimes (Turner for assault and robbery, Faagata for two murders) that arose out of the same facts, so it would be a violation of double jeopardy if a court convicted them of each crime separately. In both cases, the trial court merged the two crimes for sentencing, but stated that the lesser of the two crimes was still valid (i.e. separate) for future sentencing if the conviction for the greater crime was invalidated on appeal.

The cases originated in Pierce County Superior Court, and were appealed to Division Two Court of Appeals. The defendants lost at the appellate level.

Seglaine v. Washington Department of Labor & Industries, No. 81931-9. This case concerns whether L&I has statutory immunity from charges of malicious prosecution for complaints to the police about an individual.

Due to arguments between Seglaine and East Wenatchee L&I employees, the department staff served Seglaine with a "no trespass" notice, ordering him to not enter the building. Seglaine later tried to come back, staff called the police and Seglaine was arrested. Charges were later dropped, but Seglaine sued L&I for malicious prosecution, among other things.

Under RCW 4.24.510, a person who complains to a government agency, like the police, is immune to prosecution for the complaint. The trial court ruled for L&I based on this statue. Seglaine argues that L&I is not a "person," that it doesn't apply to malicious prosecution claims, and that L&I must prove it acted in good faith.

Summary judgment for the defendant was granted by Thurston County Superior Court and upheld by Division Two Court of Appeals.

Afternoon session

State v. Peterson, No. 82089-9. The question before the court is whether the state has to prove which time limit requirement a sex offender falls under in order to convict them of failing to register.

Sex offenders are required to register with the county sheriff when they change addresses. The statute requiring this registration gives different time limits depending on where the offender is moving: 72 hours for a fixed address, 42 hours for homeless, 10 days for out of county. Sex offender Michael Peterson left his residence and failed to register with the state for over a month.

Peterson was convicted of failure to register. On appeal, he argues that the time limit is an element of the crime, and that the differing time limits create alternative methods of committing the crime. Since the state doesn't know where he was during the time he failed to register, it can't prove which time limit applies, and thus can't convict Peterson of any form of failure to register.

The Division One Court of Appeals disagreed, holding that the time limits “do not define the elements or create alternative means of committing the crime of failure to register as a sex offender. For a sex offender, like Peterson, there is only one means of committing a crime--knowingly failing to register[.]”

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The Supreme Court will hear arguments in four cases today.

In the morning session:

Bellevue School District v. E.S., No. 83024-0 (briefs). Whether a child has the right to be represented by counsel at an initial truancy hearing. A student in the Bellevue School District, “E.S.,” missed 73 of the first 100 days of school, and the District filed a truancy petition. E.S., who was not represented by counsel at the truancy hearing, was found truant. E.S.’s lawyer moved to dismiss because E.S. had not been represented at the truancy hearing.

The school district argues that E.S. had no right to appointed counsel because she couldn’t actually be sanctioned at the initial truancy hearing. King County Superior Court ruled for the school district, but on appeal the Court of Appeals (Div. 1) held that “[a] child’s interests in her liberty, privacy, and education are in jeopardy at an initial truancy hearing, and she is unable to protect these interests herself. Due process demands she be represented in the initial truancy hearing.”

Kelley v. Centennial Contractors, No. 82474-6 (briefs). Phillip and Monica Blackshear sued Centennial Contractors Enterprises for injuries caused when a steel beam was dropped on Phillip. After they won the suit, they filed a complaint for loss of consortium on behalf of their three children. The complaint stated that it would have been impractical to include their claims with their parents’ suit. George Kelly was appointed guardian ad litem for the children.

At trial, the children’s case was dismissed because the court said their claims should have been joined with their parents’ claims. The Court of Appeals (Div. 2) reversed, holding that since the children did not yet have a guardian ad litem it would have been impossible to join them to the suit, and that it would have been impractical for them to bring their claims until the results of their father’s surgery were known. (For financial reasons, the parents’ suit was brought while the results of the surgery were still unknown.)

In the afternoon session:

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

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

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

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The Supreme Court will hear arguments in four cases today.

In the morning session:

In Re the Honorable Judith Raub Eiler, No. 200,701-5 (briefs). Judge Judith Eiler is a district court judge in King County. Based on a number of complaints, disciplinary proceedings were brought against her for treating litigants in an “angry, abusive, and condescending manner.” Eiler argues that there was not enough evidence, that the penalty is too high, and that punishing her for her demeanor violates her freedom of speech. Eiler appeals a disciplinary recommendation that she be suspended for 90 days without pay.

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

In the afternoon session:

State v. Shultz, No. 80653-5 (briefs). Whether the warrantless search was justified as an “emergency.” Officers Malone and Hill went to an apartment to investigate a possible domestic disturbance. Outside, they heard a man and a woman speaking loudly. When they knocked on the door, Patricia Schultz answered. She initially told the officers that there was no one else in the apartment, but when pressed she called Sam Robertson to the door. Officer Hill took Robertson outside to question him, and Officer Malone went inside to question Shultz. Shultz did not give Malone permission to enter, but did not object either.

Shultz was moving around inside the apartment, and Malone threatened to handcuff her if she did not “sit still.” Shortly afterward, Officer Hill entered the apartment. Shultz moved something, uncovering a gun and a marijuana pipe, and Hill saw them. The officers searched the apartment, found drugs, and arrested Shultz.

Shultz unsuccessfully moved to suppress the evidence as the fruit of an illegal search. In upholding the trial court, the Court of Appeals found that the “emergency exception” to the warrant requirement applied based on the argument, Shultz's appearance, and the fact that Shultz lied about Robertson's presence.

State v. Harvill, No. 82358-8 (briefs). Whether the trial court should have instructed the jury on duress. Joshua Harvill was caught selling drugs to an informer. At trial, he claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense.

On appeal, the Court of Appeals (Div. 2) noted that if the elements of duress had been proved, then the contested elements of entrapment would also have been proved. Since the jury rejected entrapment, it would also have rejected duress even had the instruction been given. Thus, even if the lack of a duress instruction was in error, it did not prejudice Harvill.

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We're jumping back in the saddle today, with the first oral arguments of the new year. The Court is starting off with a full load, two arguments in the morning and two this afternoon. (Docket, briefs)

Morning Session

Cudney v. ALSCO Inc., No. 83124-6. The Supreme Court is being asked to answer two questions by the U.S. District Court for Eastern Washington, concerning the impact of state public safety laws on a wrongful termination dispute.

Matthew Cudney worked for ALSCO's Spokane branch. He saw one of his superiors drunk while at work and while driving a company vehicle, so he made an internal report. He was fired shortly thereafter. Cudney sued ALSCO for wrongful termination, claiming he was fired for the report, which ALSCO denied.

Wrongful termination is designed to protect public policies (like promoting workplace safety) by preventing employer retaliation for employee reports. A required element of the claim is that there is no alternative means of protecting the public policy in question. ALSCO argues that the Washington Industrial Safety and Health Act and Washington's DUI laws are adequate to protect the public policies of promoting workplace safety and protecting the public from drunk drivers.

Lummi Indian Nation v. State, No. 81809-6. This case concerns the constitutionality of parts of the Municipal Water Law of 2003, which the plaintiffs claim violates the separation of powers doctrine and due process.

In 1988 the Supreme Court ruled In Department of Ecology v. Theodoratus that it was improper to issue a water rights certificate to a private developer based on system capacity rather than on actual use. In response to uncertainty resulting from the decision, the legislature passed the Municipal Water Law.

Certain MWL definitions differ from the Supreme Court's interpretation in Theodoratus, and since the definitions are applied retroactively the tribes argue that the MWL is essentially overruling Theodoratus. They argue the legislature was taking a judicial action by saying that the law means something different from what the high court found it to mean. The trial court agreed that portions of the MWL violated separation of powers.

The MWL also allows municipal water suppliers to change the “place of use” of their water rights. Plaintiffs argue this allows municipalities to expand their water rights at the expense of third party rights, without giving the third parties any say in the matter, violating due process.

Lummi originated in King County Superior Court, and was appealed directly to the Supreme Court.

Afternoon session

Proctor v. Huntington, No. 82326-0. This case is likely to become required reading in land surveyor courses, as part of the class on "Why Mixing up Property Lines is Bad." The Court is being asked in what circumstances a landowner can order the removal of a structure mistakenly built on his property.

The Proctors and the Huntington's purchased adjacent undeveloped parcels of land, and the Huntington's built a house. Unfortunately, when they asked their surveyor to point out the property line, he indicated the wrong marker, and the Huntington's ended up building their house entirely on the Proctor's land.

Proctor sued to eject the Huntington's and remove their house. The trial court disagreed, finding that the Huntington's acted in good faith, and that removal would cause unnecessary hardship. Instead the court ordered the Huntington's to pay the Proctors for the value of the land under the house.

The case originated in Skamania County, and was appealed to District Two Court of Appeals.

State v. Afana, No. 82600-5. This case concerns whether a police officer's warrantless request for the ID of a passenger in a parked car constituted an unlawful seizure, and whether his subsequent search of the car was an unlawful search.

Mark Afana was parked with a friend, Jennifer Bergeron, in his car. A police officer approached them, asked what they were doing, and requested ID. Upon checking the ID the officer discovered a warrant against Bergeron and arrested her. In a search incident to the arrest the officer found drugs in the car.

At Afana's trial, the court held that the request for ID was an illegal stop and suppressed the drug evidence. The court of appeals reversed, holding that the request for ID was mere social contact.

The case originated in Spokane County and was appealed to Division Three Court of Appeals. The Appeals Court upheld the search, but since then the allowable scope of vehicle searches was changed by the U.S. Supreme Court in Arizona v. Gant, and by the state Supreme Court in State v. Patton.

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Today is the last day of arguments in the Fall 2009 session. Arguments will resume in the Winter 2010 session on January 12. The Court will hear three cases today, two in the morning and one in the afternoon. (Docket, briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

Sound Infiniti v. Snyder, No. 81923-8. On appeal from Division One Court of Appeals, this case originated in King County Superior Court. It concerns what remedies are available to a minority shareholder who's shares are taken away, and whether that shareholder can bring a derivative suit against the corporation after he has lost his shareholder status.

Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder.

The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Association of Washington Businesses filed an amicus brief supporting Snyder.

G-P Gypsum Corp. v. WA Dept. of Revenue, No. 81995-5. This case originated in Thurston County Superior Court, and was appealed through Division Two Court of Appeals. It concerns whether Tacoma may levy a natural gas tax on anyone who consumes it inside the city limits.

G-P manufactures wallboard in the city of Tacoma, a process that requires large volumes of natural gas. The company pipes the gas in from Sumas or Sumner. Tacoma taxed G-P for use of the gas in the city, but G-P argues that the tax should not apply because of how the word "use" is defined by statute. The relevant definition states that the term has its "ordinary meaning, and shall mean the first act within this state by which the taxpayer takes or assumes dominion or control." Because the gas first comes under G-P's control in Sumas or Sumner, the Tacoma tax shouldn't apply. But the Department of Revenue argues that the "ordinary meaning" of "use" is consumption, and thus the tax applies because G-P is consuming it within the city limits.

The trial court agreed with the Department of Revenue, but the Court of Appeals reversed.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. This case originated in Benton County Superior Court, and was certified on appeal to Division Three Court of Appeals. Both parties also moved for discretionary review, but the review was denied by the appellate court. The question before the Court is whether that denial of review was in error.

Columbia sued Benton on several grounds, all related to whether a physician-owned company providing orthopedic services can employ physical therapists. Both parties agree on the facts of the case, but differ on the applicable laws and cases. The trial court issued summary judgment on some of the issues and certified them to the Court of Appeals, and the parties asked for discretionary review. The Court refused the review, stating that the parties disagreed on what issues they wanted the Court to review. 

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

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

In the morning session, starting at 9:00 a.m., the Court will hear:

Tobin v. Department of Labor and Industries, No. 81946-7. Jim Tobin was permanently disabled after being hit by a crane boom at work. He began collecting worker’s compensation benefits and sued the crane operator, settling for $1.4 million in damages. The majority of the damages were for pain and suffering. Under RCW 51.24.060, an injured worker is required to distribute a portion of a third-party recovery to the Department of Labor and Industries to reimburse the agency for worker’s compensation benefits. L&I claims that this includes a percentage of pain and suffering damages, since the statute says that “‘recovery’ includes all damages except loss of consortium.” Tobin argues statute was designed to reimburse L&I for benefits paid, and L&I does not pay benefits for pain and suffering.

Salas v. Hi-Tech Erectors, No. 81590-9. Alex Salas, a construction worker, fell off a scaffolding ladder and sued the company that set up the scaffold. At trial, the court allowed evidence that Salas is an illegal alien as he sought damages for lost future wages. On appeal Salas argues the trial court abused its discretion. The Court of Appeals affirmed the lower court decision.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

State v. Schaler, No. 81864-9. Glen Schaler called Okanogan Behavioral Health Care after having a nightmare, stating that he thought he had killed his neighbor. He continued to talk with OBHC staff, at one point stating that he hoped he hadn't killed his neighbor with a knife because he wanted to do it with his bare hands. He was eventually taken in to the hospital. He continued to state his intention to kill his neighbors, and was later charged with two counts of felony harassment. Crimes like harassment that regulate pure speech must comply with the First Amendment by showing that the defendant's speech was unprotected. In the case of harassment, this can be done by showing that the speech was a “true threat”—a threat a reasonable person would take seriously. At trial, the judge instructed the jury on the definition of “threat,” but not “true threat.” Schaler appealed, claiming that this violated his First Amendment rights. The Court of Appeals held that it was harmless error.

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

In the morning session, starting at 9:00 a.m., the Court will hear:

Parmelee v. O'Neel, No. 82128-3. This case arises out of Division Two Court of Appeals, and originated in Clallam County. It concerns whether a prisoner is entitled to attorney fees if he gets an appellate court to vacate an infraction complaint against him and declare the underlying law unconstitutional.

Allan Parmelee, who is currently incarcerated, wrote a letter to the Department of Corrections calling the superintendent of the Clallam Bay Corrections Center a "man-hater lesbian." The DOC issued a serious infraction order against Parmalee for violating the state's libel law. Parmalee sued the department for free speech violations and retaliation. The trial court dismissed his suit.

But the Court of Appeals ruled for Parmalee, finding the libel statute unconstitutional and vacating the infraction order. The Court also reversed the dismissal of Parmalee's suit, and sent it back down to the trial court for further proceedings. Parmalee claims attorney fees, but the Department argues that only one of many issues has been decided, and therefore the elements for an award of attorney fees are not yet satisfied.

McCurry v. Chevy Chase Bank, No. 81896-7. Originating in King County Superior Court, this case is on appeal from Division One Court of Appeals. It concerns whether bank fees charged in relation to a Washington home loan are governed by the federal Home Owners Loan Act.

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

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Kelly v. Culp, No. 81855-0. This is a land-use case from Chelan County, in which the Court must determine whether the time limit for using a building permit is extended if the permit is terminated by a trial court and then appealed.

A developer (Culp) obtained a two-year conditional use permit in Chelan County for a development project, but several neighbors, including Jeff Kelly, filed a land use petition against him. The trial court sided with Kelly and terminated the permit. During the proceedings the two-year time limit ran out. When Culp appealed the decision, Kelly moved for dismissal on grounds of mootness because the permit was invalid. Culp argues that the time limit was paused automatically during the court challenge, but the Court of Appeals found that he could have asked for a stay. By not doing so he allowed the time to expire.

Tracfone Wireless, Inc. v. WA Department of Revenue, No. 82741-9. This case originated in Thurston County and was appealed to Division Two Court of Appeals. It concerns whether pre-paid wireless providers must pay the E-911 tax.

Tracfone sells prepaid wireless cards and phones. They paid the Department of Revenue the appropriate E-911 tax for the phone services, but then determined that was an error, claiming that the tax does not apply to prepaid wireless. Even if it does, Tracfone argues that because it does not sell service directly to consumers it has no duty to collect the tax. Tracfone is suing for a refund of the tax paid to the department. T-Mobile and CTIA-The Wireless Association filed an amicus brief supporting Tracfone's position.

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Today the Court will hear argument in four cases (docket, briefs).

In the morning session, beginning at 9:00 a.m., the Court will hear:

In Re PRP of Rainey, No. 81244-6. Shawn Rainey was convicted of first degree kidnapping after kidnapping his daughter to inflict extreme emotional distress on his wife. A lifetime no-contact order with his child was imposed as part of his sentence. Rainey argues this order exceeds the standard sentencing range, which is not allowed without aggravating factors. The Court of Appeals disagreed, holding that “[c]rime related no-contact orders may last for the statutory maximum,” which is life for first degree kidnapping.

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

Then in the afternoon session, beginning at 1:30 p.m., the Court will hear:

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.

State v. Aguirre, No. 82226-3. 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, including a deadly weapon sentence enhancement (similar to the issue presented in State v. Kelly).

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Today the Court will hear argument in only two cases, both criminal matters. (Docket, briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Kintz, No. 81688-3. On appeal from Division One Court of Appeals, this case originated in Whatcom County Superior Court. It concerns whether multiple contacts with a person over a short period of time constitute "separate occasions" for the crime of stalking.

Kintz followed female pedestrians on several occasions, passing them in his van and then turning around to pass them again. He stopped one woman several times to ask for directions and whether she needed a ride. He was convicted for stalking in Superior Court, but argues that the multiple passes in his van constitute single occasions, not satisfying the requirement for "two or more separate occasions" of following or harassing. The Court of Appeals confirmed Kintz's conviction.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

State v. Erickson, No. 81594-1. This case originated in Snohomish County Superior Court, and went up to Division One Court of Appeals. Issuing an arrest warrant normally requires probable cause, and 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.

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

In the morning session, starting at 9:00 a.m., the Court will hear:

Shoemake v. Ferrer, No. 81812-6. On appeal from Division One Court of Appeals, this case originated in King County Superior Court. It concerns 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 Superior 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.

Clayton v. Wilson, No. 81920-3. On appeal from Division One Court of Appeals, this case also originated in King County Superior Court. It concerns 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 the afternoon session, starting at 1:30 p.m., the Court will hear:

Renner v. City of Marysville, No. 81959-9. On appeal from Division One Court of Appeals, this case originated in Snohomish County Superior Court. The primary issue is whether a lawsuit can be dismissed if the originating party failed to include in his claim all the information required by the filing statute.

Renner was fired for misconduct from his job as Network Administrator for the City of Marysville. He sued for wrongful termination, but failed to include 1) a specific damage amount, and 2) his address for the prior six months. The City successfully moved to dismiss the case for failure to comply with the filing requirements. The Court of Appeals reversed, finding the Renner had substantially complied with the rules.

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

In the morning session, starting at 9:00 a.m., the Court will hear:

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

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

This case attracted lots of attention, with amicus briefs filed by the ACLU, Washington State Assoc. for Justice, Washington State Court Interpreter and Translator Society, Washington Self-Insurer Association, Washington State Trial Lawyers Association Foundation, and the Northwest Justice Project.

Affiliated FM Insurance Company v. LTK Consulting Services, No. 82738-9. This case originated in King County Superior Court, from where it was removed to federal district court, appealed to the Ninth Circuit Court of Appeals, and finally certified to the state supreme court. It concerns whether the monorail operating agreement between the City of Seattle and Seattle Monorail Services made the latter enough of an "owner" of the monorail to sue a third party for damages caused to the monorail in a fire.

Affiliated FM provides insurance for the Seattle Monorail Services, which operates the monorail under an agreement with the monorail's owner, the City of Seattle. In May 2004 a fire broke out under a "Blue Line" train, allegedly caused by an electrical short that occurred because of improper wiring performed by LTK Consulting in 2002. Affiliated sued LTK for negligence.

The federal district court dismissed the claim for two reasons. First, because the agreement between the City and the Monorail Services did not make Monorail Services enough of an owner of the monorail to have legal standing to sue a third party for damages to it. Second, because the court found that the economic loss doctrine applied to the case, meaning that Affiliated cannot sue for a tort like negligence, but only for a contractual breach.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

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

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

John Lallas v. Skagit County, No. 81672-7. On appeal from Division One Court of Appeals, this case arose in Skagit County Superior Court. It concerns whether a sheriff's deputy has immunity from being sued for damages caused by a prisoner in her charge.

Lallas worked as a security guard at the Skagit County Courthouse. Sheriff's Deputy Deanna Randall was escorting a prisoner at the courthouse who ran away after she failed to handcuff him. Lallas tried to block the prisoner and got injured in the process. He sued the county, who claimed quasi-judicial immunity for Randall because she was carrying out a judge's orders to escort the prisoner. The Court of Appeals reversed, holding that immunity did not apply because Lallas was suing Randall for how she carried out the order, not for the order itself.

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The Court will hear four cases today, two in the morning and two in the afternoon. (Docket, briefs)

In the morning session, starting at 9:00 a.m., the Court will hear arguments for:

In re the Personal Restraint Petition of James Grantham, No. 82194-1. This case is up from Division Two Court of Appeals, and concerns whether the Department of Corrections violated 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.

State v. Rhone, No. 80037-5. This case is on appeal from Division Two Court of Appeals and originated in Pierce County Superior Court. It concerns whether using a peremptory challenge to remove the sole minority member of a jury is racially discriminatory on its face without any other evidence.

Rhone, a black man, was charged with robbery and drug possession. The jury selected to hear his trial contained only two black members. One was dismissed "for cause" with the agreement of both parties, but the second was excused with a peremptory (without cause) challenge by the State. Rhone challenged the panel, arguing that the peremptory challenge showed racial discrimination on its face. The trial court disagreed based on the lack of other evidence of intent to discriminate. The appeals court also disagreed with Rhone.

In the afternoon session, starting at 1:30 p.m., the Court will hear arguments in:

State v. Boss and Pelts, No. 81897-5. On appeal from Division One Court of Appeals, 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.

In re the Dependency of Colton Singleton, No. 81720-1. On appeal from Division Three Court of Appeals, this case originated in Ferry County Superior Court. It concerns whether there is sufficient evidence 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.

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Today the Court will hear arguments in four cases dealing with criminal procedure, public records, preemption, and the Growth Management Act. (docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Magee, No. 81746-4. On appeal from the Division Two Court of Appeals, this case originated in Pierce County Superior Court. The case concerns 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.

Yousoufian v. Ron Sims, No. 80081-2. An open records case that has gone up and down the court system for the past ten years, the final issue in Yousoufian was settled by the Court in January. But Justice Sanders, who wrote the majority opinion, was determined to have a conflict of interest and King County asked for this rehearing. Both Sanders and Justice Stephens are recused from the argument.

The Court will review the appropriate level of penalties for King County's gross negligence in providing public records to Yousoufian. Justice Sanders' original decision also provided a long-desired framework for how judges should set penalties in public records cases. He was joined by five other justices in this part of his decision.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. 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 (violating res judicata).

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.

Lawson v. City of Pasco, No. 81636-1. This case is on appeal from Division Three Court of Appeals, and arose in Franklin County Superior Court. The question before the Court is whether the Manufactured/Mobile Home Landlord-Tenant Act preempts a city's ordinance banning the use of recreational vehicles as permanent homes in mobile home parks.

Paul Lawson owns a mobile home park in Pasco, and has at least one tenant who uses a fifth-wheel as a permanent home. Pasco has an ordinance preventing this use of a recreational vehicle, and ordered Lawson to evict all such tenants. Lawson defends on the basis that the Landlord-Tenant Act allows the use, and that the Act preempts the City's ordinance.

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The Supreme Court commences oral arguments today with four cases, two in the morning and two in the afternoon. (Docket, case briefs)

During this morning's session, starting at 9:00 a.m., the Court is hearing:

State v. Grenning, No. 81449-0. This case is on appeal from Division Two Court of Appeals, and originated in Pierce County Superior Court. It concerns whether restricting the defense counsel's access to hard drives that contained some of the evidence used against Mr. Grenning meant that he was deprived of the "effective assistance of counsel."

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

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

In re Detention of D.F.F., No. 81687-5. This case arises out of Division One Court of Appeals, and concerns the constitutionality of Mental Proceedings Rule 1.3, which requires psychiatric commitment proceedings to be closed to the public.

D.F.F. was committed to a psychiatric facility for 90 days by a Whatcom County Superior Court, and pursuant to MPR 1.3, the proceeding was closed to the public. She appealed, arguing that the rule violates Article I, Section 10 of the Washington State Constitution, which requires justice to be administered openly.

The Court of Appeals agreed, finding MPR 1.3 unconstitutional because it included no requirement to examine the situation to determine if shutting out the public was necessary.

Briefs for this case are not available on the court's website, but the citation for the appellate court decision is 183 P.3d 302 (2008).

During the afternoon session, starting at 1:30 p.m., the Court will hear:

In re Stephen Cramer, No. 200,674-4. 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. Madsen, No. 81450-3. This case is on appeal from Court of Appeals Division One, and arose in King County Superior Court. The question before the Court is whether a trial court may deny a defendant's request to represent himself ("pro se").

Madsen was charged with three felony counts after he violated a no-contact order by calling his former girlfriend three times in one night. During the trial Madsen repeatedly complained about his attorney, acted disruptively, and demanded that the court listen to his motions and allow him to represent himself. But it wasn't clear to the court if he was unequivocally asking to represent himself or if he was just upset with his attorney, so the court appointed a series of new attorneys in an attempt to address his concerns.

After being convicted, Madsen's latest attorney asked for a new trial on grounds this his request for self-representation was denied. The court said no, on grounds that Madsen had never actually made an "explicit, unequivocal request to proceed pro se."

The Court will also review whether it was an abuse of discretion for the trial court to treat each of Madsen's phone calls as a separate felony for sentencing purposes. Madsen argues that the calls were all part of one act of criminal conduct.

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Argument recap: State v. Sieyes, No. 82154-2.

A fascinating gun rights case was argued today before the Supreme Court of Washington involving a tangle of state and federal issues. In 2007, Christopher Sieyes, a 17 year old, was charged and convicted with unlawful possession of a firearm. State law (RCW 9.41.040(2)(a)(iii)) prohibits minors from possessing firearms (with certain exceptions). While the case was on appeal to the Court of Appeals (Div. II), the U.S. Supreme Court issued its landmark ruling in District of Columbia v. Heller, striking down D.C.’s handgun prohibition. The Court of Appeals asked the litigants in Sieyes to supply additional briefing to address Heller, and then the court transferred the case to the state Supreme Court.

One of the major unanswered questions in Heller is relevant here—whether the Second Amendment applies to states. Since Heller, several federal circuits have ruled on this issue. The Second and Seventh Circuits have said the Second Amendment does not apply against individual states, while the Ninth Circuit says it does. This circuit split (plus the specific issue involved) all but guarantees that the U.S. Supreme Court will address this issue its next term.

Additionally, there’s the question of the Washington Constitution, which says, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired . . . .” (Art. I, Sec. 24). In the past the state Supreme Court has upheld “reasonable regulation” of this right, generally upholding restrictions that are necessary to uphold public safety, health, and general welfare. The question today is whether, in light of Heller’s endorsement of the individual right to bear arms, the Supreme Court should apply a stricter standard of review to any regulations that impair gun rights. (More after the jump.)

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Today the Court will hear just three opinions, two in the morning and one in the afternoon. Two of the cases involve criminal procedure questions, and one is about whether a juvenile has the constitutional right to keep and bear arms. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9.  These consolidated cases are up on appeal from Division One Court of Appeals, 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.

State v. Christopher Sieyes, No. 82154-2. This case is on appeal from Division Two Court of Appeals, and arose out of Kitsap County Superior Court. Argument will be on the question of whether the Washington law prohibiting minors from possessing guns (with various exceptions) is a violation of the state and federal constitutional rights to keep and bear arms.

Mr. Sieyes was pulled over for speeding, and found to have a gun under the front seat of his car. Being only 17-years-old at the time, Sieyes was charged and convicted of criminal possession of a firearm.

The Wa Association of Criminal Defense Lawyers filed an amicus brief in this case asking the Court to find that the Second Amendment to the U.S. Constitution applies to states via the Fourteenth Amendment.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

State v. Jacob 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.

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The Washington Supreme Court will hear four cases tomorrow.

During the morning session, starting at 9:00 a.m., the court will hear:

Hanson v. Thompson, No. 81311-6. Paul Hanson’s building company bought a number of lots for development, one of which was to be sold to Chad and Heather Thompson. The parties failed to close, however. After the failed sale, Hanson transferred two unrelated lots to himself and his wife, in order to get financing for a loan. The Thompsons sued Hanson under the Uniform Fraudulent Transfer Act (UFTA) for the value of the transferred lots. The King County Superior Court held that while there was no intent to defraud, there was “constructive fraud” under UFTA and Hanson was liable. Hanson lost an appeal, and now seeks a reversal from the Supreme Court.

Holden v. Farmers Insurance Company of Washington, No. 81487-2. Laura Holden had an insurance policy with Farmers Insurance Company. After a fire, she filed a claim for property loss. According to the policy, claims are to receive the “actual cash value” of the property. Farmers paid Holden the cash value of the property, but refused to pay the value of Washington sales tax on the property. (Farmers offered to pay the replacement cost, including tax, if Holden replaced the property.) Holden sued Farmers for the tax amount. The trial court found that the policy was ambiguous, and granted summary judgment for Holder. The Court of Appeals (Div. I) reversed.

During the afternoon session, starting at 1:30 p.m., the court will hear:

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.

In re the Personal Restraint Petition of Cross, No. 79761-7. Dayva Cross was charged with multiple murders, and entered an Alford plea (a plea denying guilt, but agreeing that a jury would probably convict on the evidence). He was sentenced to death. Cross filed a personal restraint petition. Under common law, a nolo contendere plea is not acceptable in a capital case. Cross claims that an Alford plea is similar in that a defendant can accept sentencing without admitting guilt. Thus, he argues that an Alford plea cannot be entered in a capital case.

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Today the Court will be hearing argument in four cases, two in the morning and two in the afternoon. (Docket, case briefs)

During the morning session, starting at 9:00 a.m., the Court will hear:

In re Fredric Sanai, No. 200,578-1. This case concerns whether a hearing examiner abused his discretion in several of the decisions he made related to his disbarment of Mr. Sanai for frivolous legal actions. All three of the decisions were procedural, including whether Mr. Sanai's brother was properly admitted to represent him, the denial of a continuance he requested for health reasons, and the denial of his request to subpoena three federal judges to explain their reasoning behind adverse rulings.

State v. James 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.

During the afternoon session, starting at 1:30 p.m., the Court will hear:

Michael Jones v. State, No. 80787-6. This case is on appeal from Division One Court of Appeals, and originated in Snohomish County Superior Court. The Court will hear argument on the issue of whether a pharmacist whose business has been shut down by the state must exhaust all administrative remedies before bringing a tort action against the state, and whether state officials have absolute or qualified immunity against such a tort action.

Michael Jones owned a pharmacy franchise called the Medicine Shoppe, but after failing two consecutive inspections by the Washington Board of Pharmacy his license was suspended, causing his business to fail. He sued the Board of Pharmacy's Executive Director and the two investigators that gave him the failing scores for negligent supervision and intentional interference with a business expectancy. The state moved for summary judgment, arguing that the Executive Director had prosecutorial immunity, all three defendants had qualified immunity, and that their actions were in accord with state law. The trial court denied the motion for summary judgment, but the Court of Appeals reversed on all three grounds.

Sarah Bradburn v. North Central Regional Library District, No. 82200-0. This case originated in the U.S. District Court for Eastern Washington, but that court certified a question to the Washington State Supreme Court. The question is whether a library's Internet filtering policy violates the free speech protections in Article 1, Section 5 of the Washington State Constitution.

The North Central Regional Library District maintains Internet filters on its computers to block web sites and images considered "harmful to children." Several adult library patrons were blocked from accessing sites on topics such as firearms, art, abuse, dating, and health. They asked the library to unfilter the sites, but were refused. The patrons and a nonprofit whose site was among those blocked sued the library for violating federal and state free speech protections. Since past cases have found that Washington's free speech protections are stronger than their federal counterparts, the U.S. District Court asked the state supreme court to rule before it procedes with the federal claims.

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Argument recap: Federal Way School District 210, et. al, v. State of Washington, et. al., No. 80943-7.

The question in this case, argued before the state Supreme Court yesterday, is whether the Legislature is constitutionally compelled to equalize state allocations to school districts for school employee salaries. In 2006, the Federal Way School District, along with district employees 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. 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. Judge Heavey pointed out the disparities of state allocations among districts for the 2007-08 school year:

• Classified staff: $30,111 to $35,227
• Administrative staff: $54,405 to $80,807
• Teaching staff: $32,746 to $34,612

Federal Way is at the bottom classification in all three salary allocation ranges.

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Today the Supreme Court of Washington will hear four cases: two in the morning session and two in the afternoon. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3. Whether the City of Bellevue properly calculated retiree’s pension benefits. 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.

Federal Way School District 210 v. State, No. 80943-7. Whether the Legislature is constitutionally compelled to equalize state allocations to school districts for school employee salaries. 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.

In the afternoon session, starting at 1:00 p.m., the Court will hear:

In re Fiona A. Crinks Kennedy, No. 200,682-5. The Washington State Bar Association requests an interim suspension of attorney Fiona A. Crinks Kennedy pending cooperation with the Bar’s disciplinary investigation.

State v. Eaton, No. 81348-5. Thomas Eaton was arrested for DUI and taken to the Clark County jail. When he was searched at the jail, the officers found a bag of meth taped to his sock. At trial, Eaton was convicted of DUI and drug possession. The trial court gave him an enhanced sentence based on possession of drugs within a correctional facility. Eaton disputed this enhancement because he had not chosen to take the drugs to jail, but the trial court held that the statute does not require that the possession within prison be voluntary.

The Court of Appeals disagreed, holding that an “element of volition” is required for crimes, and that punishing Eaton for involuntary possession within a prison would be absurd. The state counters that the statute should be read literally, and that volition is not necessary for a sentence enhancement. The state now appeals, and the Supreme Court will determine whether a defendant’s sentence can be enhanced for an involuntary act under RCW 9.94A.533(5)(c).

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Argument recap of Morgan v. Federal Way & Tacoma News, Inc., No. 81556-9 & Koenig v. Federal Way, No. 82288-3.

Two cases argued today before the Supreme Court of Washington present a significant question about public access to court records and could result in a major expansion of the state’s Public Records Act (chap. 42.56 RCW).

The Morgan case involves a complaint filed by an employee of the Federal Way Municipal Court alleging a hostile workplace environment. The City of Federal Way hired attorney Amy Stephson to investigate the allegation. Judge Michael Morgan was the focus of the investigation. The News Tribune filed a public record request for Stephson’s report of investigation. Federal Way determined that the report should be released, and Judge Morgan filed suit against the city, seeking to bar disclosure of the report. The News Tribune also intervened. In March 2008, a trial court determined that the document was subject to the Public Records Act, and could be released to The News Tribune.

In a separate case, David Koenig filed a request for records, including records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl, and correspondence of Judge Morgan. The city determined that several court records were not disclosable, asserting that the municipal court is not subject to the Public Records Act. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels, 107 Wn.2d 300 (1986).

The Public Records Act question in both Morgan and Koenig is whether courts fall under the Act’s broad mandate for disclosure of public records. Generally, a “public record” is a writing related to the conduct of government, which is prepared, owned, used, or retained by any state or local agency. In Nast, the Supreme Court held that courts are not “agencies” under the Public Records Act, and that court case files are not subject to disclosure under the PRA.

Judge Morgan argues that the Stephson report is a court record concerning a municipal court judge and is thereby not subject to the PRA. In the other case, Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.

The Office of the Attorney General filed amicus curiae briefs in both cases. In Morgan, the Attorney General argued that the Stephson report falls under the PRA, and disputed Morgan’s claim that the report would be exempt from disclosure under attorney-client privilege or work product. In Koenig, the Attorney General took a more moderate approach, cautioning against a blanket rule on whether courts are “public agencies” under the PRA, and suggesting that the court should offer guidance for when administrative records might be available.

Another wild card in these cases: Justices Sanders and Madsen were both recused, with Judge Joel Penoyar and Judge Kevin Korsmo sitting in as Justices Pro Tem. Justice Sanders has been a consistent vote for open government, and Justice Madsen frequently rules for disclosure, though usually approaching public records cases contextually. I won’t venture a guess on the impact of the two pro tem justices.

The Supreme Court’s ruling in these cases will likely be the final word for some time, considering the fact that the Washington Legislature has not offered any significant clarification on issue in the twenty-two years since the Nast decision.

Video of the arguments after the jump.

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Today the Court will hear four cases, two in the morning session and two in the afternoon. Public records are the big topic of the day, with two cases on the docket about the applicability of the Public Records Act to court records. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Bobenhouse, No. 81413-9. This case is on appeal from Division Three Court of Appeals, and originated in Asotin County. It 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."

In re S. Richard Hicks, No. 200,606-0. This case is an appeal of a recommendation by the Washington State Bar Association to discipline Attorney Richard Hicks with a two-year suspension for misconduct. The misconduct included making an "inaccurate and incomplete" statement to the Bar about his commingling of client funds. The questions before the Court are whether Hicks was ethically obligated to reveal his handling of the funds, and whether the two-year suspension levied by the Bar was excessive.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Morgan v. Federal Way, et al., No. 81556-9. This case arose when Judge Michael Morgan (Federal Way Municipal Court) filed a petition with the King County Superior Court to prevent the City of Federal Way from releasing an internal investigation report to The News Tribune. The issue before the court is whether such a report is exempt from the Public Records Act because it is attorney work product or protected by an attorney-client relationship.

The report was prepared by an attorney, Amy Stephson, hired by the city 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 Morgan 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 Superior Court disagreed, finding that the Act was applicable because the report was commissioned by and in the possession of the City (a non-judicial entity), and that the report did not fall under any of the claimed exemptions.

Federal Way v. David Koenig, No. 82288-3. This case is a direct appeal from a King County Superior Court order finding that the Public Records Act does not apply to the Federal Way Municipal Court. The issue before the court is whether some or all court records are subject to the Public Records Act. 

David Koenig filed a number of public records requests with the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hart. The city attorney asked for a ruling that the Municipal Court is not subject to the Public Records Act. The Superior Court granted the motion, relying on Nast v. Michels. (107 Wn.2d 300) But the trial court judge acknowledged that the issue of the PRA"s applicability to court records is generally in doubt, and encouraged Koenig to appeal directly to the supreme court.

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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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The Court will not be hearing oral arguments this week, so the next scheduled argument day is Tuesday, June 9. Today the Justices are considering petitions for review, and we will post the outcome when the results are released in the next couple of days. We'll also update you on whatever opinions the Court releases this week (opinions will likely be out on June 4).

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The Supreme Court will hear arguments in four cases today. (Docket and briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

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

In re PRP of Brooks, No. 80704-3. 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 3 counts of attempted first degree robbery and 1 count of residential burglary. These are all class B felonies, with a maximum sentence of ten 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 ten years.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Ducote v. DSHS, No. 81714-6. 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. I) upheld the dismissal. The Washington Association of Sheriffs and Police Chiefs filed an amicus curiae brief in support of DSHS.

In re the custody of Wilson, No. 81945-9. This case involves a custody dispute between the father and grandparents of a child. JoAnn Grieco and Sachi Wilson had two sons. In 1995, Grieco was diagnosed with breast cancer. In 2002, the couple separated and Wilson moved out of the family home. He later moved to California and started a relationship with another woman. In 2003 Grieco’s illness became disabling, and her parents, Vito and Yasuko Grieco, moved in to help care for the children. Grieco died in 2004, and Vito and Yasuko Grieco continued to care for the boys in the family home.

In 2006, the grandparents filed a nonparental custody action under chapter 26.10 RCW. In order for such an action to proceed, the party bringing the action must show “adequate cause” for the case to proceed. This consists of “an affidavit declaring that the child is not in the physical custody of one of its parents or that neither parent is a suitable custodian and setting forth facts supporting the requested order.” The grandparents showed that the boys had been living with them for several years, and the court considered this sufficient to establish adequate cause. The Court of Appeals (Div. I) disagreed, holding that the grandparents should also have made a prima facie case that Wilson was unfit or that the boys would suffer detriment if placed with him. With no such argument, the appeals court held that adequate cause had not been shown.

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Today the Court will be hearing argument in four cases, two in the morning, and two in the afternoon. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

Tanya Gregoire v. Oak Harbor, No. 81253-5. On appeal from Division One Court of Appeals, this action for wrongful death was brought by the estate of an inmate who hung himself in the Oak Harbor jail. The question before the court is whether a city can use the defenses of contributory negligence and assumption of risk to defend against a wrongful death action for a jailhouse suicide.

Edward Gregoire, the deceased, exhibited erratic emotional behavior while he was being transported to jail, tried to run, and ten minutes after being placed in his cell hung himself with a bedsheet. The jury found for the City after being instructed on the defenses of contributory negligence and assumption of risk; but Gregoire argues such defenses cannot be used due to the "special relationship" duties owed to an inmate by jail staff.

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

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

In the afternoon session, starting at 1:30 p.m., the court will hear:

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.

In re the Personal Restraint Petition of Beito, No. 77973-2. This case arises out of Division Two Court of Appeals, 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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The Washington Supreme Court will hear three cases today. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the court will hear:

In re the 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.

State v. Jones, 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.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Spokane v. Rothwell, No. 81271-3. 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. The City now appeals to the Supreme Court.

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As Mike mentioned yesterday, the Court is hearing today's arguments at the University of Washington School of Law. Three cases will be heard. (Docket, case briefs)

In the morning session, starting at 9:00 a.m., the court will hear:

Seattle v. Robert St. John, No. 81992-1. This case is on appeal from Division One Court of Appeals, and originated in the Seattle Municipal Court. It concerns the question of whether it is a violation of Washington's Implied Consent law for a police officer to obtain a warrant to test a person's blood alcohol content after the person has refused to be tested.

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.

Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. This case is a wrongful death claim on appeal from Division One, and presents the Court with the question of 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. Cascade argued there were insufficient grounds for wrongful death damages, as the parents had not been substantially financially dependent on Kristen. The trial court found for the Armantrout's, but the Court of Appeals reversed, holding that economically valuable services cannot be considered when determining if there was financial dependence.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

In re Larry Botimer, No. 200,625-6. This case was originally schedule for argument on Thursday, May 21, but was moved to today's docket. It 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. (Case briefs)

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This week the Supreme Court will hear arguments on May 19 and 21, and will likely issue opinions on May 21. The court is on the road this week; Tuesday's oral arguments will be heard at the Univeristy of Washington School of Law.

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Today the Court will hear argument in three cases. (Docket and case briefs)

During the morning session, starting at 9:00 a.m., the Court will hear:

State v. Jaime, No. 82008-2. James Jaime and Ignacio Ornales got into an argument over a drug deal. Jaime shot Ornales, who later died of his injury. Jaime was convicted of second degree murder and unlawful possession of a firearm. Because of his violent history, threats against witnesses, and previous escape attempts, the trial was held in a courtroom within the jail building. The jury was only told that the use of the jail courtroom was due to scheduling issues. The defense claims that this is the equivalent of making Jaime stand trial in chains or prison clothing, violating his right to a fair trial. The Supreme Court will address (1) whether holding trial in a jail courtroom violates the defendant's right to a fair trial; and (2) whether the judge had the discretion to exclude expert testimony on eyewitness reliability.

State v. Dow, No. 81243-8. 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 10.58.35, which requires a court to consider a number of factors when deciding whether a confession is sufficiently trustworthy. 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 state appealed to the Court of Appeals (Div. II), where the trial court was reversed. Defendant now appeals to the Supreme Court.

During the afternoon session, the Court will hear:

In re 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. This is not the first disciplinary issue Bradley Marshall has faced, having been reprimanded and suspended for unrelated actions. 

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Today the Court will hear argument on four cases on the topics of... (Docket, case briefs)

During the morning session, starting at 9:00 a.m., the Court will hear:

In re the Detention of Bryan Duncan, No. 81230-6. This case is on appeal from Division Three Court of Appeals, and originated in Benton County Superior Court when the state filed a request to civilly commit Duncan as a sexually violent predator. Three questions are on appeal to the Supreme Court.

First, did the trial court err when it allowed evidence to be presented that Duncan had refused a pre-trial mental examination? Second, did it err by allowing into evidence Duncan's plan to live with a convicted sex offender after being released from prison, but not allowing Duncan to explain that the potential roommate hadn't re-offended since getting out of detention? Third, did the court err by refusing to allow Duncan to provide evidence about the effectiveness of the sex offender treatment program at the Special Commitment Center on McNeil Island?

Bianca Faust, et al. v. Mark Albertson, et al. No. 81356-6. 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.

During the afternoon session, starting at 1:30 p.m., the Court will hear:

State v. Eriksen, No. 80653-5.This case originated in Whatcom County District Court, and concerns 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.

State v. Rivera-Santos, No. 81445-7. 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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The Washington Supreme Court will hear arguments on May 12 and 14, and will likely issue rulings on May 14.

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Today is the first day of the Court's spring term, and three criminal law cases are scheduled for oral argument. The cases involve questions on double jeopardy, speedy trials, and the death of a defendant. Two will be argued this morning, and one this afternoon. (Docket, case briefs)

During the morning session, starting at 9:00 a.m., the Court will hear:

State v. Hughes, No. 81270-5. This case is on appeal from Division Three Court of Appeals, and originated in Spokane County Superior Court. It concerns whether separate convictions for second degree rape of a child and second degree rape constitute double jeopardy. In the sad facts of this case, defendant Raymond Hughes was found guilty of having had sex 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 trial court's decision, determining the two crimes are different in that one required proof of age, the other one required proof of mental incapacity.

The Court may also review a second issue on appeal, which concerns whether the trial court judge had the authority to impose an exceptional minimum sentence based on aggravating circumstances. Hughes argues that some type of judicial fact-finding of these circumstances is necessary.

State v. Iniguez, No. 81750-2. This case is also on appeal from the Third Division Court of Appeals, originating in Franklin County Superior Court. 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.

While the defendant asserts that his Sixth Amendment right has been violated, he also asserts a violation of the speedy trial right in Article 1, Section 22 of the Washington Constitution, and uses a Gunwall analysis to argue for a finding that state constitutional protections are even greater than the federal. The State argues that it would be extraordinary and counter to the present trend to find a violation of the speedy trial right after a delay of only eight months.

During the afternoon session, starting at 1:30 p.m., the court will hear:

State v. Webb, No. 81314-1. On appeal from Division One Court of Appeals and King County Superior Court, the question before the justices is how a criminal case on appeal should be reviewed when the defendant dies while the appeal is pending.

Webb was an internet radio talk show host who was convicted of a false insurance claim, which he appealed. While the appeal was pending Webb was brutally murdered in his home. When his body was finally two months later, his attorney asked the Court of Appeals to abate 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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The Supreme Court's Spring Term opens on May 7 with oral arguments in three cases. The court may also issue opinions on May 7.

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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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Video of the March 24 oral arguments are now available on TVW.

State v. Gonzalez, No. 26070-4. Jeff Goldstein argued for the appellant, Theresa Chen argued for the state. 

Links to the other arguments after the jump.

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Today the Supreme Court is scheduled to hear oral arguments in four cases. The issues in the cases include community versus separate property, double jeopardy, a Consumer Protection Act claim, and shareholder lawsuits. (Docket schedule, case briefs)

During the morning session, starting at 9:00 a.m., argument will be heard in:

In re the Estate of Borghi, No. 80925-9. This case is on appeal from Division One Court of Appeals, 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.

State v. Gonzalez, No. 26070-4. On appeal from Division Three Court of Appeals, this case originated in Grant County Superior Court. It concerns a question of double jeopardy, i.e. punishing a person twice for the same crime. The Court must decide 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. (More information on the double jeopardy clause in Article I, Section 9 of the state constitution, from our Constitution Guide.)

During the afternoon session, starting at 1:30 p.m., argument will be heard in:

Ambach v. French County, No. 81107-5. This case is on appeal from Division Three Court of Appeals. It concerns a complaint filed under Washington's Consumer Protection Act for a surgery that went bad. The plaintiff seeks recovery of economic damages, and the question before the Court is whether her damages constitute injury to "business or property" under the Act.

In re F5 Networks, Inc., No. 81817-7. 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?

You can read Mike's "This week at the Court" post from yesterday for further details about these cases.

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The Supreme Court may release one or more opinions on March 26.

Oral arguments are scheduled for the following cases.

March 24, 2009 (case briefs)

In re the Estate Borghi, No. 80925-9. Does real property purchased by a contract executed before marriage remained the separate property of the purchasing spouse even though the fulfillment deed, issued after the marriage, named both spouses? Robert and Jeannette Borghi were married in March 1975. Prior to her marriage to Mr. Borghi, Jeannette Borghi entered into a real estate contract to purchase property. After their marriage, a statutory warranty deed was issued to both Mr. and Mrs. Borghi, who lived on the property as their primary residence until 1990, and paid off the mortgage in 1999.

Jeannette Borghi died without a will in 2005. Under intestate succession, if the property were classified as “community property,” it would pass to Mr. Borghi. Arthur Gilroy, Mrs. Borghi’s son from a previous marriage, contended that the property was his mother's separate property, and should not pass to Mr. Borghi. The Court of Appeals (Div. I) held that early Washington Supreme Court precedent required a finding that the property was the separate property of Mrs. Borghi, as it was purchased prior to marriage. The court “reluctantly” ruled for Mr. Gilroy.

State v. Gonzalez, No. 81525-9. Does a second order of restitution constitute double jeopardy? This case is a direct appeal from Grant County Superior Court. 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.

Mr. Gonzalez objected to the second order of restitution, arguing it was beyond the 180 day statutory limit to seek restitution. The State argues that statute allows for modifications to the amount previously ordered by the trial court. Gonzalez also argues that the second order of restitution results in double jeopardy, and violates the Washington Constitution (Art. I, sec. 9) and the Fifth Amendment of U.S. Constitution. The State says a modification of an original judgment does not amount to a multiple punishment.

Ambach v. French County, No. 81107-5. 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.

Justice Stephens has been excused from this case as she sat on the Court of Appeals when the case was heard.

In re F5 Networks, Inc., No. 81817-7. This case comes from the U.S. District Court for the Western District of Washington, which seeks clarification on a question of Washington law: Whether a shareholder seeking to bring a derivative action on behalf of a corporation is excused from demanding that the board of directors bring an action if such a demand would have been futile, and whether board approval or acceptance of backdated options shows futility.

March 26, 2009 (case briefs)

State v. Engel, No. 81072-9. 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).

State v. McCormick, No. 81193-8. 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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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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“Counsel, in this case, isn’t the focus really on what does ‘must’ mean?” Justice Mary Fairhurst’s question gets to the heart of SEIU 775NW v. Gregoire.

Petitioners SEIU 775NW claims that state law requires the governor to include in her budget a request for funds any negotiated union contract (if certified as financially feasible) or any award resulting from interest arbitration. SEIU 775NW and the governor’s office were unable to reach an agreement for the 2009-11 budget, and an arbitrator awarded the union’s workers a raise and fringe benefits amounting to $87 million. The governor failed to include the amount in her budget, something the union says the governor “must” do. Arguments yesterday focused on whether “must” in the statute is a mandatory obligation upon the governor, or if it is a permissive suggestion, subject to the governor’s discretion.

The justices are wrestling with the real-world consequences of ruling for either party. If the court rules for SEIU, the court is ordering the governor to return to the drawing board and make significant cuts to her budget. Not only that, but such an order seems to invade the governor’s duties and could be a violation of separation of power. But if the court rules for Gregoire, the plain reading of a statute is muddied.

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Oral arguments are scheduled today in four cases. (Docket schedule here, briefs for the cases here)

During the morning session (starting at 9:00 a.m.), the Court will hear:

In re Parentage of Frazier, No. 81043-5 This case is on appeal from Division One Court of Appeals, and originated in Snohomish County Superior Court. The question before the court is whether a stepparent qualifies as a common law de facto parent, with the accompanying rights and responsibilities.

The trial court ruled that the petitioner, a stepfather, could and did prove that he qualified as a de facto parent for his teenage stepdaughter, relying in part on precedent from In re Parentage of L.B. 155 Wash.2d 679 (2006), in which cohabiting lesbians who had parented since their child's birth were found to be de facto parents. Court of Appeals reversed, finding that stepparents have other statutory remedies and cannot claim de facto parent status based on the Parentage of L.B. decision.

Ames v. Wash. State Health Dep’t Med. Quality Assurance Comm’n, No. 80644-6. This case is on appeal from Division Three Court of Appeals, and originated from a Department of Health administrative hearing order, later upheld by the Benton County Superior Court. The question before the court is whether expert testimony is necessary in a disciplinary proceeding before the Medical Quality Assurance Commission when the commission panel is not comprised solely of licensed physicians.

The commission in question, comprised of a physician, a physician’s assistant and a member of the public, found the petitioner to have violated several laws by his use of a medical instrument to identify food allergies.

During the afternoon session (starting at 1:30 p.m.), the Court will hear:

Shafer v. Dep’t of Labor & Indus., No. 81049-4. 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.

SEIU Healthcare 775NW v. Gregoire, No. 82551-3. This case originates from a writ of mandamus filed with the Supreme Court. The question before the court is whether the governor violated collective bargaining law by failing to include a request for funding for negotiated union contracts in her budget proposal. The petitioner wants the Court to order Governor Gregoire to withdraw her budget and submit a new one that includes a request for funds necessary to fulfill the negotiated contracts.

Check back at 2:15 today for a live blog of the oral arguments in the SEIU case.
 

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(Scheduling note: be sure to return today at 2:15, when we will live blog today's argument.)

The underlying reality in this case is that Washington state currently faces a major budget crisis, with a projected $8 billion deficit. As a result, Governor Gregoire declined to include in her budget proposal pay increases for several classes of public employees.

SEIU 775NW says the governor violated state law by failing to include the union’s arbitrated agreement in her budget (for a cost of more than $87 million). Gov. Gregoire argues she has discretion to table public employee raises when they are not financially feasible.

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Tomorrow we are live blogging oral arguments in the case of SEIU Healthcare 775NW v. Gregoire, No. 82551-3. The case deals with the question of whether the governor violated state law by refusing to fund union contracts in her budget proposal.This case could significantly impact state budget discussions.

Arguments will begin between 2:15 p.m. and 2:30. We'll be here covering it for you.

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Opinions may be released in one or more cases on March 12.

Oral arguments are scheduled for the following cases.

March 10 (briefs for the cases here)

In re Parentage of Frazier, No. 81043-5. Whether a stepparent can be a common law de facto parent with the rights and responsibilities attendant to parentage.

Ames v. Wash. State Health Dep’t Med. Quality Assurance Comm’n, No. 80644-6. Whether expert testimony is necessary in a disciplinary proceeding before the Medical Quality Assurance Commission when the commission panel is not comprised solely of licensed physicians.

Shafer v. Dep’t of Labor & Indus., No. 81049-4. 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.

SEIU Healthcare 775NW v. Gregoire, No. 82551-3. Whether the governor violated collective bargaining law by failing to include a request for funding for negotiated union contracts in her budget proposal.

March 12 (briefs for the cases here)

Noble v. Safe Harbor Family Pres. Trust, No. 80873-2. 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.

Campbell v. Ticor Title Insurance Company, No. 80999-2. Whether a title insurance policy exclusion for easements not disclosed in the public record relieved an insurer of its duty to defend a lawsuit brought to reform the insured’s deed to include an easement formerly recorded in a neighbor’s title.

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

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.

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The Supreme Court of Washington is hitting the road. The Court hears cases away from the Temple of Justice in Olympia three times a year to allow citizens to see justice in action. Three cases will be argued before the Court at the Pierce College in Puyallup on Feb. 12.

• State v. Pugh: Whether statements in a 911 call constituted testimonial hearsay inadmissible under the federal and state constitutional right of confrontation, and if not, whether the Washington constitution requires the State to show the caller was unavailable as a witness before the caller’s statements can be admitted as excited utterances.
• State v. Garvin: Whether a police officer exceeded the permissible scope of a frisk for weapons pursuant to an investigative stop when he squeezed the defendant’s pocket to determine the nature of objects inside the pocket, discovering narcotics.
• In re Estate of Pamela L. Kissinger: Whether, under the “slayer statute,” which prohibits a person from receiving any property or benefit from someone he “willfully” and “unlawfully” killed, a killing is “unlawful” if the perpetrator is found not guilty of murder by reason of insanity, and whether “willfulness” requires intent and design or only knowledge.

More details here.

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