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.

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.

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.

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.

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.

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.

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.

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.

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. 

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.

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. 

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.

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.

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.”

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.

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.

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.

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.

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.

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.