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

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

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

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

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

State v. Simms, No. 83826-7. Daniel Simms was convicted (among other things) of robbery, with sentence enhancement for use of a firearm. Because Simms had a previous conviction of assault with a firearm enhancement in 2000, the court doubled the firearm enhancements, adding 22 years to his sentence. Simms challenged the enhancement on appeal—specifically whether the state, in seeking a double firearm enhancement based on the prior imposition of a firearm enhancement, is required to allege in the information that the defendant has previously been sentenced to a firearm enhancement. The Court of Appeals held that the prior conviction was not essential to prove the enhancement itself, and that there is no requirement to give notice of a prior conviction “for purposes of a sentencing enhancement.” The Supreme Court unanimously upheld the Court of Appeals. Justice James Johnson wrote the decision of the court.

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

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Bowie v. Wa Dept. of Revenue, No. 83426-1. Richard and Annette Bowie operate Val-Pak of Western Washington, which regularly distributes a pack of advertisements to homeowners in the region. This case involves the question of whether Val-Pak advertisement mailings should be considered a periodical under the B&O tax classifications.

In 2002 the company asked the Department of Revenue for guidance on how to classify their business, and were given a letter ruling saying they fell under the favorable “periodical” classification, with a tax rate of 0.484 percent, rather than the 1.5 percent that would otherwise apply. Valpak began filing under that status and claimed a refund for past taxes. The DOR later revoked its ruling stated that Valpak falls under a higher taxation rate. Valpak sued for a full refund.

Today the Supreme Court, with Justice Jim Johnson writing the unanimous opinion, held that Val-Pak envelopes are not periodicals or magazines and that the business is taxable under the general, higher rate of RCW 82.04.290(2).

State v. Grier, No. 83452-1. Kristina Grier and Gregory Owen were drinking with several other people at Grier’s house. During the evening Owen stole several items from Grier, including three guns, and got into several fights with Grier and her son. During the last fight a gun went off, killing Owen.

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

The Supreme Court (Chief Justice Barbara Madsen writing) unanimously ruled that Grier’s agreement in the decision to withdraw the lesser included offense instructions did not bar her from raising an ineffective assistance claim. However, the court held that defense counsel’s “all or nothing” approach was a legitimate tactic and did not rise to the level of ineffective counsel. The court vacated the Court of Appeals decision that tossed Grier’s conviction and sent the case back for further consideration.

State v. Rodriguez Ramos, No. 84891-2. The Court of Appeals remanded a case to trial court to clarify the terms of community placement. The Supreme Court held in a per curiam opinion that this vested the trial court with discretion, triggering defendant Joel Ramos’s constitutional right to be present at sentencing.

State v. Tucker, No. 84952-8. The issue here was whether the State initiated a proceeding to revoke Natasha Tucker’s deferred disposition before the juvenile court’s jurisdiction over her expired. Tucker was 14 years old when she got into an argument over an iPod and threw a rock through a friend’s living room window. Tucker was charged with residential burglary and malicious mischief. Tucker agreed to plead guilty, and she received a deferred disposition.

Tucker largely complied with the terms of supervision, but had not fully paid restitution. The court extended the deferred period for a year. Eventually, Tucker argued that the State had failed to move to revoke her deferred disposition before the deferral period ended, depriving the court of jurisdiction and requiring dismissal of the charges. The trial court ruled that an earlier report filed by the probation revocation properly initiated revocation proceedings before the end of the supervision period.

In a per curiam opinion the Supreme Court agreed with Tucker. “We disagree with the courts below that the November 7 report by Tucker’s community supervision officer properly instituted revocation proceedings against her. The report was plainly not a motion to adjudicate compliance with Tucker’s restitution obligation; it stated only that ‘should Natasha be unable to provide verification of payment of her remaining financial obligations, probation recommends that this matter be set out for revocation.’” The court vacated Tucker’s convictions and dismissed the case.

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Chief Justice Barbara Madsen recently sat down with Austin Jenkins on TVW's Inside Olympia program. They discussed the state of the courts, the funding crisis facing trial courts, judicial elections, and diversity in the profession. 

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The inauguration ceremony for Chief Justice Barbara Madsen, Justice Jim Johnson, and Justice Charlie Wiggins is now available on TVW. 

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The Supreme Court issued opinions in several cases today.

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

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

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

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

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

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

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

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

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

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Two races decided, one to go. As of 10:19 p.m.:

Chief Justice Barbara Madsen (unopposed) and Justice Jim Johnson (running against Stan Rumbaugh) have won their races and will advance to the general election without an opponent.

Meanwhile, Justice Richard Sanders and Charlie Wiggins are both under the 50 percent vote threshold required to advance unopposed, with Sanders enjoying an 8-point lead. Judge Bryan Chushcoff trails with only 12 percent of the vote.

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The Supreme Court issued opinions in three cases today.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Chief Justice Barbara Madsen filed her candidate registration form yesterday, formalizing her plans to run for reelection. She has yet to draw any opponents.

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Today the Supreme Court released three decisions.

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

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

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

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

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

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

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

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

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

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

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

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This week the Court commences its winter term. Barbara Madsen will be sworn in as the state's next chief justice on Monday morning. The event can be watched here on TVW. The Court will hear arguments in cases on January 12 and 14, and may issue opinions on January 14.

UPDATE: The video of Chief Justice Madsen's swearing-in ceremony is now available.

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

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

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

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

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

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This episode we review soon-to-be Chief Justice Madsen’s noteworthy opinions, discuss whether judges should be allowed to blog, and cover several decisions from the month of November.

Supreme Court of Washington Podcast (RSS) - A new chief justice

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

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Today Justice Barbara Madsen was elected by her colleagues to be Washington's next Chief Justice, according to the Seattle PI and the Associated Press.

Madsen, who before becoming a judge served as both a public defender and a prosecutor, will become Chief in January. She will replace Chief Justice Gerry Alexander, who decided to step down from the position prior to his mandated retirement from the bench at the end of 2011. He will turn 75 that year, the mandatory retirement age for Washington Judges, as we discussed with him in our most recent podcast.

UPDATE: Here is the Court's press release.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opinions

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

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

Oral Arguments (briefs)

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

Opinions

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

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

Oral Argument

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

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