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.

Burton v. Twin Commander Aircraft

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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

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)

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

Open government – Livingston v. Cedeno (2008)
Inmate Michael Livingston filed a request for the training records of a corrections officer with the Department of Corrections under the state’s Public Records Act. The Department copied and mailed the records to him at the Olympic Corrections Center where he was incarcerated. The corrections center intercepted the documents as “contraband” under its incoming mail policy. The inmate sued, arguing the Department’s action violated the Public Records Act. The Supreme Court (Madsen writing) ruled that correctional facilities are under no obligation to deliver documents to an inmate. “The Public Records Act does not limit the department’s discretion in prohibiting entry of public records that it reasonably deems inappropriate in a prison setting.”

Free speech – San Juan County v. No New Gas Tax (2007)
San Juan County brought an enforcement action against the political action committee which sought to repeal a gas tax increase passed by the legislature in 2005. The county claimed the No New Gas Tax PAC violated the state’s campaign finance law by failing to disclose as a contribution the on-air support of the initiative by radio talk-show hosts Kirby Wilbur and John Carlson. A Thurston County judge ruled that campaign finance law mandated the disclosure of the value of radio broadcasts. The Supreme Court (Madsen writing) disagreed, holding that the state Fair Campaign Practices Act contains a media exemption that allows “commentary,” including advocacy for or against an issue. The court said the radio hosts’ support for the initiative fell within the media exemption and was therefore not a political contribution.

Campaign speech and lies – Rickert v. Public Disclosure Com’n (2007)
In 2002, Marilou Rickert challenged incumbent Senator Tim Sheldon in an election for state senate. Sen. Sheldon filed a complaint with the Public Disclosure Commission alleging that one of Ms. Rickert's campaign mailings contained false information -- a violation of a state law that prohibited false statements about a candidate in political advertisements. The PDC determined Ms. Rickert’s mailing contained two false statements and fined her. Rickert appealed, challenging the law as unconstitutional, and the Supreme Court agreed.

Justice Madsen dissented: “The majority is wrong when it says that state government cannot constitutionally regulate truth or falsity of political speech. No such blanket rule exists under the First Amendment…. There is no question that the First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ But it is equally true that the use of calculated falsehood is not constitutionally protected” (citations omitted).

Gay marriage – Andersen v. King County (2006)
After being denied marriage licenses, several gay and lesbian couples sued, seeking to invalidate the state Defense of Marriage Act (DOMA) as unconstitutional for prohibiting same-sex marriage. Two separate trial court judges ruled in favor of the plaintiffs. The Supreme Court (Madsen writing) reversed, holding that DOMA is constitutional and does not violate the privileges and immunities clause, due process, privacy rights, or equal protection. “DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.”

Eminent domain – HTK Management, L.L.C. v. Seattle Popular Monorail Authority (2005)
A Seattle transportation authority condemned a parcel of private property to be used as the site of a Seattle Monorail station. While the station footprint would occupy only one-third of the parcel at most, the Monorail Authority argued the remaining portion was needed for a construction staging area. The Monorail adopted an internal plan to sell the remaining portion of the property to private developers after its use as a staging area was complete. The property owner filed a motion to dismiss but lost at trial. The Supreme Court (Madsen writing) upheld the taking, holding: the city’s condemnation powers could be transferred to the transportation authority, and the condemnation of the property owner’s entire property was necessary for construction, operation, and maintenance of the monorail station. “Washington courts have provided significant deference to legislative determinations of necessity in the context of eminent domain proceedings.”

Taxation – Larson v. Seattle Popular Monorail Authority (2006)
Several motor vehicle owners brought an action challenging a motor vehicle excise tax levied and collected by the city monorail authority—an unelected board. The Supreme Court (Madsen writing) upheld the Monorail Authority’s taxing authority, ruling the collection of the excise tax was not an unconstitutional delegation of local taxing authority and that the Monorail had the authority to impose the excise tax.

Privileges and immunities – Grant County Fire Protection Dist. No. 5 v. City of Moses Lake (2004)
Property owners and fire districts sought declaratory relief against several cities, alleging that the petition method of annexation was unconstitutional as it afforded an advantage to owners of highly-valued land. The Washington Constitution says: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” The Supreme Court (with Madsen joining the majority opinion) held that the state privileges and immunities clause requires independent analysis from the equal protection clause of United States Constitution, and that the petition method of annexation did not violate the state privileges and immunities clause.

Use of public funds for religious instruction – Gallwey v. Grimm (2002)
A taxpayer sought to terminate the state’s Educational Opportunity Grant (EOG) Program, which provided grants to “placebound” two-year community college students who could not travel to a State institution to finish their junior and senior years of college. The taxpayer claimed this violated the federal and State Constitutions by allowing the use of public funds for religious instruction. For example, Wash. Const. art. IX, sec. 4 states: “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence,” The Supreme Court (Madsen writing) held that colleges, universities, and other institutions of higher education are not “schools,” within meaning of State constitutional provision, and that the program did not violate the establishment clause. The ruling stopped short of overturning earlier rulings prohibiting religious options at the K-12 level.

Initiatives – Amalgamated Transit Union Local 587 v. State (2000)
A coalition of unions, community councils, cities, and other public entities challenged the constitutionality of Initiative 695 (sponsored by Tim Eyman), which limited license fees tabs to $30 and required voter approval of all future state and local tax increases. The Supreme Court (Madsen writing) invalidated I-695 on several constitutional grounds: violation of the single subject requirement; violation of the subject-in-title requirement; violation of the requirement that four percent of voters sign a referendum petition, by automatically subjecting to voter approval all state tax measures passed by the legislature; and violation of the requirement that legislation that revises or amends other acts must set them forth at full length.

Exotic dancing and free speech – Ino Ino, Inc. v. City of Bellevue (1997)
Several adult entertainment corporations and dancers challenged a Bellevue City ordinance that regulated adult cabarets. Specifically, the ordinance required nude or semi-nude dancers to perform on an elevated stage at least eight feet from patrons; dancers performing on the nonstage area of the adult cabaret were to be at least four feet from any member of the public; minimum lighting levels were established; and adult cabarets were to close from 2 a.m. to 10 a.m. The Supreme Court (Madsen writing) upheld the constitutionality of most of the provisions of the ordinance, specifically the distance regulations, minimum light levels, and closing-hour provisions.

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.

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)