Supreme Court of Washington Blog : Supreme Court of Washington Blog : Washington Public Policy & Budget News : Freedom Foundation : WA State Tax & Labor Law Commentary & Updates

State v. Oppelt, No. 84573-5. David Oppelt was investigated in 2001 for child molestation, but somehow the report never reached prosecutors. The mistake was discovered in 2007, charges were filed, and Oppelt was convicted. He argued unsuccessfully at trial and again on appeal that his due process rights were violated by the preaccusatorial delay or that the trial court should have dismissed under CrR 8.3(b). The Court today explains that a negligent preaccusatorial delay may violate due process even within the statute of limitations. The court reaffirms its three-pronged test, explaining that the test "is best understood as an analytical tool to assist the court in answering the underlying question of whether a delay has resulted in a due process violation by violating fundamental conceptions of justice.

The "prongs" should be approached with this principle in mind. The test, simply stated, is that (1) the defendant must show actual prejudice from the delay; (2) if the defendant shows prejudice, the court must determine the reasons for the delay; (3) the court must then weigh the reasons and the prejudice to determine whether fundamental conceptions of justice would be violated by allowing prosecution.

The Court holds that Oppelt has not shown a due process violation and that the Criminal Rules did not require the trial judge to dismiss the case. All justices signed the opinion, which was written by Justice Chambers. (briefs, argument)

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Carlsen v. Global Client Solutions, LLC, No. 84855-6. Plaintiffs, in an attempt to avoid paying their debts, were customers of Freedom Debt Relief LLC. Freedom, like some other similar companies, hired Global Client Services (GCS) to manage special purpose accounts for each of their customers. The accounts were held in GCS's custodial account at Rocky Mountain Bank and Trust (RMBT). Plaintiffs subsequently brought a class action suit against GCS and RMBT in the United States District Court for the Eastern District of Washington, alleging violations of RCW 18.28, Washignton's debt adjusting statute. The federal district court stayed a motion to dismiss by the defendants and certified four questions of first impression related to the Washington statute to the Washington State Supreme Court.

The first question is whether a company like GCS is engaged in "debt adjusting" as defined in RCW 18.21.010. The Court holds that the statutory definition, which includes "receiving funds for the purposes of distributing said funds among creditors," unambiguously includes companies like GCS.

The second question is whether the exception for banks in RCW 18.21.010(2)(b) applies to GCS. The Court holds that it should construe the debt adjusting statute liberally in favor of consumers. It reads the exception narrowly and thus holds that it does not apply to GCS.

The district court's third question asks if the fee limits in RCW 18.28.080 apply to companies like Freedom, which do not operate as anticipated by the statute (for details on the business models involved, see the full opinion). The Court holds that the statute appears to apply to companies like Freedom, but recognizes that there are "factual questions the district court must resolve based on the exact nature of the debt settlement companies and the services they provide."

The final question is whether the statute provides an implied cause of action against an "aider and abettor" related to the misdemeanors created in RCW 18.28.190. However, the Court finds it unnecessary to create such an implied cause of action because RCW 18.28.185 makes all violations of the debt adjusting statute also violations of RCW 19.86, Washington's consumer protection law, which provides a civil remedy.

Justice Fairhurst wrote for a unanimous court. Justice Chambers signed that opinion, but also wrote an opinion-editorial about debt adjusting companies and business regulation that he issued as a concurrence. (briefs, argument)

Harris v. Charles, No. 83867-4. Petitioner Joshua Harris pleaded guilty to driving with a suspended license and driving without a required ignition interlock device, both misdemeanors. Prior to sentencing, Harris was required to wear an "electronic home monitoring" device. Harris wanted credit against his 90-day sentence for the time he wore the monitoring device, and the municipal court judge refused. Harris filed a writ of habeus corpus, alleging a violation of his right to equal protection because RCW 9.94A requires crediting felons, but not misdemeanants, for such time. The King County Superior Court agreed with Harris, but the Court of Appeals reversed the Superior Court's order.

The State Supreme Court today affirms the court of appeals, finds that the City's appeal was timely and thus not moot, and holds that there is a rational basis for the different treatment of felons and misdemeanants in this case. Justice Wiggins wrote for a unanimous court. (briefs, argument)

State v. Williams, No. 83992-1. Michael Williams gave police his brother's name instead of his own while being investigated for theft. He was eventually convicted of first degree theft, making a false statement to law enforcement, and obstructing a law enforcement officer. He appeals the last of these, arguing based on precedent and the State Constitution that obstruction requires conduct and not just a false statement.

Today, Justice Chambers writes for a unanimous court, agreeing with Williams and case law that the crime of obstructing a law enforcement officer cannot be predicated on speech alone. The opinion describes several earlier cases and Washington's strong constitutional protections of personal privacy and autonomy. The Court vacates Williams's conviction for obstruction. (briefs, argument)

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Lummi Indian Nation v. State, No. 81809-6. In 1998, the Court held in Dep't of Ecology v. Theodoratus that "new private water rights did not fully vest until the water was put to a beneficial use...." Five years later the legislature redefined "certain nongovernmental water suppliers as municipal," so that Theodoratus would not apply to them, and made the change retroactive. Various Indian tribes and environmentalist organizations sued, alleging that the legislature had violated the separation of powers by overruling the Court and alleging a facial violation of due process for making the change retroactive. The trial court found that the legislature had violated the separation of powers and either rejected or declined to reach the other claims; both sides appealed.

The Supreme Court, in a unanimous opinion authored by Justice Chambers, reverses the trial court on the separation of powers and sustains the rest of the lower court's decision, effectively finding for the state on all issues and upholding the legislative changes. The Court notes that this rejection of the facial challenge does not prevent parties from bringing "as applied challenges. (briefs, argument)

State v. S.S.Y., No. 83299-4. S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for a vicious attack that left the victim, another youth, with permanent injuries. The juvenile court determined that S.S.Y.'s sentences run consecutively, which S.S.Y. challenged. The Court of Appeals upheld the sentence. The Supreme Court agrees that the legislature intended to punish the crimes of first degree assault and first degree robbery separately and thus upholds the courts below. The Chief Justice writes for a unanimous court. (briefs, argument)

State v. Werner, No. 84388-1. Werner was convicted of first degree assault after an altercation with a neighbor. According to Werner, the neighbor had seven dogs, including pit bulls and a Rottweiler, that were menacing Werner when he pulled his handgun, which then accidentally discharged. Werner appealed on the grounds that the trial court refused to instruct the jury on self defense. The Court of Appeals affirmed. The Supreme Court, with a per curiam opinion, reverses the courts below and reverses Werner's conviction.

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In re Detention of Post, No. 83023-1. Charles Post was convicted in 1987 for first degree burglary and rape. Before his scheduled release from prison in 2003, King County petitioned for Post's civil commitment as a sexually violent predator (SVP). The first commitment trial led to a hung jury; after the second trial, the jury found that Post was an SVP. At the second trial, but not the first, prosecutors had introduced evidence about the treatment that would be available to Post if he was committed. Post objected, but the trial court denied his motions. The trial court also refused to allow Post to introduce evidence that, if he was released, he could be subject to a later SVP commitment petition for a "recent overt act."

Post appealed these determinations of the trial court and a divided Court of Appeals reversed his commitment and remanded for a new trial. Today, the Supreme Court in an opinion by Justice Owens agrees with the Court of Appeals and with Post. Evidence of possible future treatment was irrelevant and was not harmless error. Furthermore, evidence that Post could later be subject to an SVP commitment petition was relevant and should have been admitted. Six other justices signed the majority opinion.

Justice Stephens concurs with the outcome but offers a more limited rationale. The Chief Justice concurs in part and dissents in part. She would exclude the state's treatment program evidence, but would also exclude Post's evidence of the possibility of a later petition. (briefs, argument)

Tracfone Wireless, Inc. v. Dep't of Revenue, No. 82741-9. Tracfone, which sells prepaid wireless phone service, sued the Department for a refund of the enhanced 911 excise tax. A bare majority of the Court today upholds the trial court's grant of summary judgment for the Department, holding that RCW 82.14B.030 applies to prepaid wireless phone service as it does to any other wireless phone service.

In effect, TracFone is seeking a decision that whether the tax is owed depends upon how a company decides to market and charge for its service or, to put it another way, whether the tax must be paid depends entirely upon the individual company's business model.

The Chief Justice writes for the majority. Justice Chambers, joined by three other justices, dissents. He argues that tax statutes must be narrowly construed and, where there is ambiguity, construed in favor of taxpayers. Looking beyond the statutory description of the tax to the statutory language that governs how the tax is collected, the dissent finds that the legislature did not anticipate the tax applying to pre-paid wireless services. (briefs, argument)

Summaries of today's three unanimous decisions will be posted soon.

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State v. Ish, No. 83308-7. Nathaniel Ish beat his girlfriend to death and was convicted of second degree felony murder. He challenged his conviction on multiple grounds; it was upheld by the Court of Appeals. The Supreme Court accepted review only to consider whether the prosecution's reference to a witnesses agreement to testify truthfully constituted improper "prosecutorial vouching."

Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)

The Court today issues a lead opinion for four justices, a concurring opinion for another four justices, and a dissent by Justice Sanders. The lead opinion, by Justice Chambers, holds that the trial court did abuse its discretion by allowing the prosecution to reference the witness agreement before the witness's credibility was challenged by the defense; the error, however, was harmless. Justice Stephens wrote the concurrence, finding no error. Justice Sanders agrees with the lead opinion that the trial court did err, but disagrees that the err was harmless and would have reversed the lower courts. (briefs, argument)

State v. Moeurn, No. 82995-1. Lauren Moeurn challenged his sentence for second degree assault with a deadly weapon enhancement, arguing that the trial court miscalculated his offender score. The trial court had treated an "attempt" offense as a completed offense, thus changing a class-C felony to a class-B felony and doubling the number of years (from 5 to 10) for it to "wash out" for the purposes of calculating Moeurn's offender score.

The state actually conceded the issue at the Court of Appeals, but the Court rejected the concession and upheld Moeurn's sentence. The Supreme Court today unanimously reverses the courts below, quoting at length from RCW 9.94A.525 to show that the rule for which offenses to include and the rule for how to score included offenses are different. While the latter requires treating attempt offenses as if completed, the former does not. Justice Alexander wrote for the Court; the case is remanded for resentencing.

State v. Stubbs, No. 81650-6. Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing most of Goodwin's body. Stubbs was convicted and given an exceptional sentence due to his victim's injuries. Stubbs challenges the sentence, arguing that no injury short of death can exceed "great bodily harm" in RCW 9.94A.535(c)(y). Eight members of the Court today agree with Stubbs. The majority opinion is written by Justice Alexander, and the case is remanded for resentencing. Justice James Johnson dissents. (briefs, argument)

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Update: links to briefs and argument videos are now included.

Guillen v. Contreras, No. 82531-9. Jesus Jaime Torres was killed in a mysterious shootout in Sunyside, Washington, in 2005. From the bloody scene, police seized $57,990 "packaged to resemble a kilogram of cocaine" and Torres's car. They seized another $9,342 that was in Torres's possession when he was shot. Torres's infant son, through his mother, challenged the property seizures. The superior court overturned the seizures of the car and the $9,342. The family moved for attorney fees. The superior court, relying on "substantially prevailing party" analysis, declined to award fees. A divided Court of Appeals affirmed.

The Supreme Court today considers only "the meaning of the attorney fee provision of the forfeiture statute." The Court adopts the reasoning from the dissenting opinion by Chief Judge John Schultheis of the Court of Appeals and quotes from his opinion.

"[T]his forfeiture statute recognizes the success of only one party -- the claimant. What the seizing agency retains is not relevant. It will never be a substantially prevailing party or prevailing party under RCW 69.50.505(6)." Thus, he suggests, quantitative comparison is inappropriate as we are not balancing the comparative success of two parties with an equal statutory interest in attorney fees. We agree. This is an attorney fee provision designed to protect individuals against having their property wrongfully taken by the State. A bare mathematical approach is not appropriate. (citation removed; hyperlink inserted)

The case is remanded to the trial court to determine "the amount of attorney fees reasonably incurred by the respondents" for their successful claims. Justice Chambers wrote for the Court and was joined by seven other justices. Justice Sanders dissents because he believes the statute requires a recovery of all attorney fees rather than only those related to the successful claims. (briefs, argument)

Holden v. Farmers Ins. Co. of Wash., No. 81487-2.  A fire in Laura Holden's rented home damaged and destroyed some of her possessions. Her rental insurance carrier, Farmers Insurance, sent her a check for the "cost of repair and replacement," but did not include Washington state sales tax in its calculations. Holden eventually brought this suit, "seeking a declaration that sales tax should be accounted for in the [actual cash value] calculation...." The Court today holds for Holden, finding the term "fair market value" as used in the insurance policy to be ambiguous. The Court thus interprets the term in favor of the insured. Justice Stephens writes for the majority, joined by five other justices. Justice James Johnson dissents, contending that "fair market value" is not ambiguous and does not include "a (theoretical) sales tax...." His opinion is joined by Justices Alexander and Owens. (briefs, argument)

In re Det. of Hawkins, No. 82907-1. As part of proceedings to determine whether Jake Hawkins is a sexually violent predator according to RCW 71.09, the trial court ordered Hawkins to submit to a polygraph examination. Hawkins refused and appealed; the Court of Appeals affirmed the trial court. The Supreme Court accepted review to determine whether RCW 71.09.040(4) allows such an order.

The Supreme Court today reverses the lower courts, holding that the order requiring a polygraph examination was not permitted by the statute.

Because the legislature is undoubtedly aware of the inherent problems with polygraph examinations, it is fair to infer that the legislature intends to prohibit compulsory polygraph examinations unless it expressly allows for their use. ...

We are satisfied that professional evaluators will be able to reach conclusions without the use of such evidence.

Justice Owens writes for the six-member majority. Justice Stephens, joined by the Chief Justice and Justice Fairhurst, disagree with the majority's interpretation of legislative intent and dissent. (briefs, argument)

In re Disciplinary Proceeding Against Scannell, No. 200,744-9. The Washington State Bar Association (WSBA) initiated an investigation of attorney John Scannell for conflicts of interest and assisting a suspended attorney to practice law. Scannell repeatedly and frivolously delayed the investigation, drawing it out from 2005 until today. The WSBA hearing officer found that Scannell had "negligently violated the conflict of interest rules--meriting minor sanctions--but that he had knowingly violated the rules requiring cooperation with disciplinary proceedings--meriting suspension." The disciplinary rule modified those findings, determining that Scannell's actions during the investigation were intentional and thus increasing the presumptive sanction to disbarment. The Board voted to disbar Scannell.

The Supreme Court today, in an opinion by Justice Stephens, exhaustively reviews the facts of the investigation and upholds the decision of the board. Three justices dissent, arguing in an opinion by Justice Alexander that the hearing officer's recommendation of suspension was the appropriate sanction. (briefs, argument)

In re Disciplinary Proceeding Against Shepard, No. 200,720-1.  Tacoma attorney Richard Shepard was found to have violated several Rules of Professional Conduct when he assisted a "living trust mill" that targeted seniors with unnecessary or improper financial products. The hearing officer recomended a six-month suspension, but the disciplinary board increased the recommendation to a two-year suspension. The Court today agrees with the board and suspends Shepard for two years. Justice Chambers writes for an almost-unanimous court. Justice Sanders dissents and would suspend Shepard for six months. (briefs, argument)

State v. Ervin, No. 83244-7.  James Ervin was convicted in 2006 of felony violation of a protective order. This appeal considers whether two earlier felony convictions should count toward Ervin's offender score at his sentencing. According to RCW 9.94A.525(2)(c), the two earlier felony convictions "washed out" if Ervin had subsequently been at least "five consecutive years in the community without committing any crime that subsequently results in a conviction." During a five year period, Ervin had not been convicted of any crimes but did spend 17 days in jail for violating probation. The State argued that the 17 days in jail restarted the five-year window. Ervin disagreed, arguing that only a conviction would reset the five years. While the Court finds the RCW somewhat ambiguous, it finds Ervin's reading more convincing. The lower courts are reversed and the case is remanded for resentencing with the lower offender score. The decision was unanimous, and Justice Owens wrote the opinion. (briefs, argument)

State v. Sanchez Valencia, No. 82731-1. Isidro Sanchez Valencia and Eduardo Chavez Sanchez were convicted of drug charges. Their sentences included community custody on the condition that they not use "items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances." They appeal that provision as unconstitutionally vague, and the Court today unanimously agrees with the defendants. Justice Stephens wrote the Court's opinion. Justice James Johnson signed that opinion and added a concurrence pointing out that a simple change in language would allow a similar condition to stand. (briefs, argument)

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State v. Bunker, No. 81921-1. Three defendants, each convicted of violating a no-contact order, appeal those convictions. Looking to a "shall arrest" clause in the statute," defendants argue that the law (former RCW 26.50.110) "criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place."

The Court, in an opinion by Justice James Johnson and joined by seven other justices, holds that the plain language of the statute and the clear intent of the legislature is to criminalize all violations of a no-contact order. Justice Sanders dissents. (briefs, argument)

State v. Kintz, No. 81688-3. Clarence Kintz was convicted of two charges of misdemeanor stalking and appealed, challenging the trial court's interpretation of the statutory phrase "separate occasions" and the sufficiency of the evidence. In two incidents, one in December 2005 and the other in January 2006, Kintz frightened women by repeatedly and slowly driving past them and, in the latter case, offering the woman a ride and money. Both women called 911 and Kintz, who admitted some of the details of each incident, was eventually charged.

Kintz argues that "separate occasions" is ambiguous and that the Court should apply the rule of lenity to find that separate occasions must happen over a greater length of time than in these incidents. The Court of Appeals upheld the convictions and the Supreme Court sustains that decision, agreeing with the lower court that the plain meaning of "separate occasions" is "a distinct, individual, noncontinuous occurrence or incident." The Court also finds sufficient evidence to support the convictions. Justice Alexander authored the opinion for a majority of seven.

Justice Sanders dissents and would hold that the events leading to each of these stalking charges should be considered a single occasion, rather than "separate occasions," and thus do not meet the statutory definition of stalking. For related reasons, he would also find insufficient evidence to sustain the convictions. Justice Chambers dissents separately in order to agree with Justice Sanders only as to the ambiguity in the term "separate occasions." (briefs, argument)

State v. Meneses, No. 83172-6. Andre Toi Meneses fathered a child by his then-girlfriend Jamila Willis. After they broke up, the child remained with Willis. Meneses began repeatedly calling Willis and leaving voice mail messages for her using "incredibly vile language, including racial slurs and descriptive obscenities," and threatening to kill Willis, her new boyfriend, and the new couple's infant. Willis eventually called the police, who recorded ten messages left by Meneses that became the basis for ten charges against him: four counts of felony telephone harassment, four counts of gross misdemeanor telephone harassment, and two counts of intimidating a witness. He was convicted by a jury on all counts.

The Court of Appeals sustained the convictions. The Supreme Court considered three issues raised by Meneses. First, the jury instruction on telephone harassment did not fail to specify that the criminal intent must have been formed before the call was placed. The instruction used the statutory language, and the Court has previously held that the meaning of the statute is clear on its face. Second, it did not violate double jeopardy for a count of telephone harassment and a count of intimidating a witness to arise from the same message because "each [conviction] required proof of a fact the other did not." Finally, because [n]o affirmative evidence supported the idea that Meneses committed witness tampering but not intimidating a witness," the trial court was not obligated to instruct the jury on the lesser included offense.

The Court, with an opinion by Justice Stephens, unanimously upholds the courts below. (briefs, argument)

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In Re Discipline of Terry J. Preszler, No. 200,570-5. Attorney Terry Preszler represented a couple in a bankruptcy. He failed to navigate correctly some of the rules related to a personal injury settlement, and was not forthright when he discovered his mistakes. The Washington State Bar Association alleged 17 counts of misconduct by Preszler and the Association's Disciplinary Board found that he had violated five and recommended a three-year suspension from the practice of law. Preszler challenges the Board's determination on several issues.

The Court upholds the Board on most points and imposes the suspension. Justice Fairhurst writes for the majority and is joined by five other justices. Justice Sanders, joined by Justices Chambers and James Johnson, dissents and would give greater weight to the mitigating factors and reduce the suspension. (briefs and argument)

Kustura v. Department of Labor, No. 81478-3. Several persons with "limited English proficiency" appealed determinations by the Department of Labor and Industries, and included in their claims a demand that the Department provide them with interpreters for all interactions with the Department. RCW 2.43.040 grants persons with limited English proficiency the right to translation services paid for by taxpayers where the government has instituted a legal proceeding.

Here, the Court upholds the Court of Appeals, which determined that the Department did not initiate the proceedings. It further casts doubt on whether the Department's proceedings here qualify as legal proceedings under the RCW. Justice James Johnson authored the Court's opinion, in which six other justices concurred. Justice Chambers, joined by Justice Sanders, dissents. (briefs and argument)

State v. Grenning, No. 81449-0. Neil Grenning was charged with 72 sex crimes, including 20 counts of possession of child pornography related to pictures found on his computer hard drives. The trial judge, at the request of the prosecutors, issued a restrictive order preventing copies of the hard drives from being turned over to the defense, though the defense was provided with access to them. Potential defense expert witnesses apparently refused to investigate the hard drives without the ability to take them to their own computer laboratories, and the defense did not present an expert witness regarding the hard drives at trial.

Grenning was convicted on all but one of the charges, including all of the instances of child pornography, and sentenced to 117 years in prison. He appealed, challenging the limitations placed on the hard drive evidence. The Court of Appeals agreed with Grenning and ordered a new trial for the child pornography charges; the state appealed.

The Court here upholds the Court of Appeals. In an opinion by Justice Chambers and joined by five other justices, the Court finds that its decision in State v. Boyd, "which held that the defense was entitled to a mirror image copy of the defendant's computer hard drives," controls the outcome here. Justice Madsen, joined by Justices Alexander and James Johnson, dissent and "disagree with the majority's recitation of the facts, its legal analysis, and its result." (briefs and argument)

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American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1. American Best Food owned the Federal Way dance club Café Arizona. Michael Dorsey was shot nine times in front of the club. Security guards carried him inside, but then carried him back out and "dumped him on the sidewalk." Dorsey sued the Café for failing to protect him from criminal conduct and for exacerbating his injuries after the assault. The Café's insurer, Alea London, refused to indemnify or defend the Café because the policy excluded "injuries or damages 'arising out of' assault or battery." The Café sued Alea for breach of contract, bad faith, and violation of the Consumer Protection Act. The trial court granted summary judgment for Alea, but the Court of Appeals reinstated the contract and bad faith claims and held that Alea had breached its duty to defend.

The Supreme Court today sustains the lower court, holding that "Alea's failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law." Justice Chambers wrote for the five-member majority. Justice Owens, with three other justices, dissented as to the finding of bad faith. (briefs, argument)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. Are physical therapists engaged in the practice of medicine? Benton Franklin Orthopedic Associates (BFOA) refers many of its patients to Benton Franklin Physical Therapy (BFPT), which it also controls through common ownership. Columbia, one of BFPT's competitors, sued alleging violations of the corporate practice of medicine doctrine (link to PDF), The Professional Services Corporation Act (PSCA) (RCW 18.100), the antirebate statute (RCW 19.68), and the Consumer Protection Act (RCW 19.86). The trial court granted BFOA summary judgment on the PSCA claim and certified the other issues to the Court of Appeals, which denied review.

The Court today holds that physical therapy is included in the definition of the practice of medicine. The Court upholds the grant of summary judgment on the PSCA claim and directs the trial court to enter summary judgment also in BFOA's favor on the corporate practice of medicine and antirebate statute claims. Because Columbia did assert facts that, if proven, would constitute breaches of the CPA, the Court upholds the trial court's refusal to grant summary judgment on the issue and remands for trial. Justice Owens wrote for the unanimous Court. (briefs--including 28 amicus briefs, argument)

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