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The Supreme Court issued two new decisions on teacher terminations and public records law.

Federal Way Sch. Dist. No. 210 v. Vinson, No. 84243-4. The Supreme Court ruled favor of a former teacher who sought to overturn the district’s decision to terminate him. David Vinson, a teacher at Federal Way High School, was accused of verbally harassing a student. The school district terminated Vinson, citing his behavior and the dishonesty during the course of the investigation. A hearing officer ruled in Vinson’s favor, and a superior court affirmed the decision, ordering the district to pay Vinson’s attorneys fees.

The Supreme Court, in an 8-1 vote (Justice Charles Wiggins writing the majority), held that Federal Way School District did not have the right to appeal an adverse decision from a hearing officer. K&L Gates notes that this decision breaks new ground.

Significantly, the Supreme Court overruled several decisions in various divisions of the Court of Appeals that had determined sufficient cause could exist to discharge a teacher who had engaged in behavior that lacked any positive educational aspect or legitimate professional purpose, without regard to whether the conduct was remediable or adversely affected the teacher’s performance.

The Supreme Court expressly reinstated the original Clark test, which held that sufficient cause for a teacher's discharge exists as a matter of law where the teacher's deficiency is not remediable and (1) materially and substantially affects the teacher's performance; or (2) lacks any positive educational aspect or legitimate professional purpose.

Justice James Johnson dissented: “Today, this court’s majority makes it more difficult to discharge teachers and certificated employees than the legislature intended, even where clear cause for discharge exists.”

Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0. A nonprofit group, the Neighborhood Alliance of Spokane County, requested public records from Spokane County, suspecting illegal hiring practices in Spokane County’s Building and Planning Department. The trial judge granted summary judgment in favor of the county. On appeal, the Alliance argued that the County failed to conduct adequate searches for records responsive to both items, and that the trial court erred by limiting the scope of discovery. The case eventually reached the Supreme Court.

Justice Charles Johnson wrote the majority opinion in which the court held that discovery in a Public Records Act case is the same as in any other civil action and is therefore governed only by relevancy considerations. The court also adopted the standards for reasonableness regarding an adequate search from the federal Freedom of Information Act. Finally, the court held that harm to the requester occurs at the time the request is made and refused, and that a party may be entitled to recover costs and fees if the agency wrongfully fails to disclose documents in response to a request.

According to new reports, Spokane County’s violation of the public records law may cost more than $100,000 under the Supreme Court’s ruling.

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Today the Supreme Court issued opinions in several cases.

In re the Dependency of K.N.J., No. 83516-1. Generally speaking, before a trial court terminates a parent-child relationship, the court must determine that the child has been found to be a dependent child.

K.N.J., a minor child, was placed in foster care after it was discovered that she severely abused by her mother. A dependency petition was filed by the state and ordered by a judge pro tempore. Michael Jenkins, the father of K.N.J., was not present at the hearing and the judge entered a default order despite his lack of consent.

Later the state filed for termination of Jenkins' parental rights, and he moved to vacate the original dependency order due to lack of his consent. The state argued the subsequent dependency review hearings cured any defect in the original order. The Court of Appeals found that the original dependency order was invalid, but that the subsequent hearings cured the defect.

The Supreme Court, with Justice Charlie Wiggins writing, affirmed the Court of Appeals by a 6-3 vote, and upheld termination of Jenkins' parent-child relationship with K.N.J., on the grounds that his dependency was proved at the termination trial.

Justice Gerry Alexander dissented: “Because family relationships are exalted, they should be nurtured. Therefore, this court should not promote or countenance shortcuts in the process of terminating the relationship between parent and child. Unfortunately, this is what the majority does here. Thus, I dissent.” Justice Debra Stephens filed a dissent as well.

Michaels v. CH2M Hill, Inc., No. 84168-3. A horrific accident at the Spokane wastewater treatment plant killed one man and injured two others. The survivors successfully sued CH2M, the engineering firm that was working with the city at the time. The question for the Supreme Court was whether CH2M enjoys immunity from suit under the Industrial Insurance Act. The Act immunizes a design professional performing professional services “on a construction project” or any employee of a design professional assisting or representing the design professional performing professional services on the “site of the construction project.” RCW 51.24.035.

The Supreme Court, with Justice Tom Chambers writing, concluded that the immunity clause did not apply to CH2M. The court further determined CH2M’s negligence caused the accident: “[H]ad CH2M not breached its duty, and had it performed the engineering analysis, the city employees would not have been confused and the collapse would not have occurred.” Chief Justice Barbara Madsen concurred separately.

Samantha A v. WA Dept. of Social & Health Services, No. 84325-2. The Supreme Court holds that a Department of Social and Health Services (DSHS) regulation that reduces the financial assistance payable for in-home personal care services violates federal Medicaid law.

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

This rule was challenged on behalf of a child named Samantha A. Samantha is cared for by a single mother but is eligible for 24-hour institutional care. The challenge claims (and the trial court agreed) that the children’s personal care rule violates Federal Medicaid law “requiring comparability of amount, duration, and scope of services among all recipients.” In other words, the rule treats disabled children differently based on their ages and on their relation to their caregivers.

Writing for the majority, Justice Charles Johnson affirmed the trial court. Chief Justice Madsen and Justice Stephens each wrote dissents.

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Freeman v. Gregoire, No. 83349-4. A coalition of taxpayers petitioned the Supreme Court to issue either a writ of prohibition or a writ of mandamus against Gov. Christine Gregoire and Secretary of Transportation Paula Hammond, prohibiting them from taking any further actions to convert traffic lanes of the I-90 Lake Washington Bridge to light rail.

The Washington State Constitution, article II, section 40, creates a special fund related to motor vehicle transportation.

All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.

In 2009, the Legislature passed and Gov. Gregoire signed a transportation budget that included an appropriation of $300,000 from the motor vehicle fund to pay for a study "methodologies to value the reversible lanes on Interstate 90 to be used for [light rail]." The legislation also stated the legislature's commitment to "construction of sound transit's east link." Pursuant to the appropriation, DOT spent $250,000 of motor vehicle fund money to begin the process of appraising the existing lanes so that the ownership of those lanes can be transfered from the DOT to Sound Transit.

The taxpayer petitioners argue that the appropriation and expenditure violate article II, section 40. Because the legislature's intent is to proceed with the transfer of the highway lanes in order to build light rail, the motor vehicle funds are not being used for highway purposes. The DOT counters that the valuation study falls within "administration of the public highways," which is part of the constitutional definition of "highway purposes."

The Court yesterday sided with the Department of Transportation and refused to view the legislature's intent to proceed with light rail as a mandate on the Department.

The valuation allows DOT to explore the feasibility of transferring or leasing the center lanes of I-90 to accommodate light rail mass transit. And as noted above, DOT has specific statutory authority to transfer highway lands, and the decision of whether to transfer or lease lands is inherently a function of the administration of highway property. Since the expenditure serves an administrative function, the expenditure "indirectly benefits" our public highways and is lawful under article II, section 40.

The Court further holds that petitioners requested writ is too broad and that, as such, it would be impossible for the Court to ensure that it was enforced. Justice Charles Johnson wrote for the Court and was joined by the Chief Justice; Justices Chambers, Owens, and Stephens; and Justice Pro Tem. Karen Seinfeld. 

Justice Alexander authored a concurrence, which Justice Pro Tem. Seinfeld also signed, noting that while the constitutional protection is clear, the funds have also already been expended. The concurrence also agrees with the majority that the requested writ is too broad.

Justice James Johnson dissents and is joined by Justice Pro Tem. Saunders. The dissent points out that the constitutional provision here, both on its face and as interpreted in previous cases, prohibits expending motor vehicle funds on mass transit projects. Regardless of which entity is actually spending the money, if the money comes from the motor vehicle fund, its uses are proscribed; even the promise of future reimbursement is irrelevant.

The people adopted a constitutional provision in article II, section 40, prohibiting the use of vehicle fees and excise taxes for anything other than highway purposes. In the wake of this constitutional provision, gas taxes have continued to rise and license fees, though limited by initiative, raise millions of dollars for the state. The people have tolerated or authorized such taxes in the past predicated on the constitutional promise that the revenues collected by the state through such taxes and fees will be used exclusively for highway purposes. Because the legislature has broken that constitutional promise and the majority declines to enforce it, I dissent.

Justice Fairhurst and Justice Wiggins did not participate. (briefs, argument)

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

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). The Supreme Court held that under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, a landlord and tenant can lawfully agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. Writing for the majority, Justice Richard Sanders said that the MHLTA preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement and thus the provision does not violate the MHLTA. Justice Gerry Alexander wrote a dissenting opinion.

Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Supreme Court agreed, with Justice Susan Owens writing the majority opinion. The court held: (1) that the appraisal proceeding in RCW 23B.13.020 is a dissenting shareholder’s exclusive remedy unless a corporate action is procedurally defective or fraudulent and (2) that a divested shareholder does not have standing in a derivative suit. Justice Sanders wrote a dissenting opinion.

State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense. The Supreme Court unanimously ruled that the trial court abused its discretion by refusing to instruct the jury on the duress defense. The court reversed the conviction and remanded for a new trial. Justice Debra Stephens wrote the opinion.

State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges. The Supreme Court affirmed the decision below, with Justice Debra Stephens writing the unanimous opinion.

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The Supreme Court issued rulings in four cases this morning.

McGuire v. Bates, No. 82659-5 (briefs and argument) – Read those settlement agreements carefully, folks. The Supreme Court rules that a settlement for “all claims” precluded the prevailing party from recovering attorneys fees in addition to the settlement payment. Julianne McGuire hired Robert Bates to remodel her kitchen. After it was done, she claimed that he had done the work improperly and sued him. The case went to mandatory arbitration, but before the arbitration the parties settled “all claims” for $2,180. RCW 18.27.040 allows the prevailing party in a suit by a homeowner against a contractor to recover attorney fees. McGuire moved for attorney fees based on this statute. The arbitrator denied the motion because the parties had agreed to settle “all claims.” However, the courts held that attorney fees are a cost, not a claim, and were thus not included in the settlement agreement. Bates appealed, and also argues that McGuire is not a “prevailing party” because the case was settled. The Court of Appeals held the attorneys fees could be added to the settlement total, but the Supreme Court reversed, with Justice Gerry Alexander writing the unanimous opinion. 

State v. Afana, No. 82600-5 (briefs and argument) – The Court rules that a police officer’s search of a vehicle after the arrest of the passenger was unconstitutional. Mark Afana was sitting in his legally-parked car with a friend, Jennifer Bergeron, watching a DVD on a portable player. A police officer approached them, asked what they were doing, and requested ID. The officer discovered a warrant against Bergeron and arrested her. In a search incident to the arrest the officer found drugs in the car. At Afana’s trial, the court held that the request for ID was an illegal stop and suppressed the drug evidence. The Court of Appeals reversed, holding that the request for ID was mere social contact. The Supreme Court, with Justice Alexander writing, held the warrantless search of the car was unconstitutional under Article I, Section 7 of the Washington Constitution: “a warrantless search of an automobile is permissible under the search incident to arrest exception only when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.”

State v. Bashaw, No. 81633-6 (briefs and argument) – Bertha Bashaw was convicted of three counts of delivery of a controlled substance. Because the offenses occurred within 1,000 feet of a school bus route stop, her maximum sentence was doubled by statute. Bashaw argues that distance measurements of a mechanical device were improperly admitted because the State failed to demonstrate that the device functioned reliably. She also contends that the jury instructions incorrectly required unanimity for a finding that her actions did not take place within 1,000 feet of the school bus route stop. The Supreme Court, with Justice Susan Owens writing, agreed, and held that the jury instruction error justified reversing the sentence enhancements. The case was remanded to trial court for further proceedings. Chief Justice Barbara Madsen dissented.

Waples v. Yi, No. 82142-9 (briefs and argument) (consolidated with Cunningham v. Nicol, No. 82973-0) – The Supreme Court invalidated the requirement that plaintiffs give a 90-day notice before suing health care providers for malpractice. Nancy Waples brought a negligence action against her dentist, Peter Yi, alleging the dentist's employee injured her by negligently injecting anesthetic. The Pierce County Superior Court, and the Court of Appeals (Div. II) affirmed the dismissal, ruling the patient failed to comply with a statutory notice requirement, which required a plaintiff to provide health care providers with 90 days’ notice of the plaintiff’s intention to file a medical malpractice suit. Waples argues the notice requirement is unconstitutional. The Supreme Court agreed, holding that the notice requirement of RCW 7.70.100(1) is unconstitutional because it violates the separation of powers. Justice Charles Johnson wrote the majority opinion, holding that court rules govern the commencement of a lawsuit. “If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters.” Justice James Johnson dissented, arguing that the 90-day rule did not modify court rules, but merely provided parties with an incentive to settle cases rather than going to court.

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South Tacoma Way v. State, No. 82212-3 (briefs and argument). The State Department of Transportation (DOT) owned an alley that was abutted by property owned by several different owners. DOT determined the alley was surplus property and sold it to Sustainable Urban Development #1, LLC (Sustainable). DOT mistakenly believed that Sustainable was the only abutting property owner, and no notice of the sale was given to the other abutting property owners, as is required with multiple abutters.

After this sale was complete, South Tacoma Way, LLC (South Tacoma) entered negotiations to purchase one of the abutting properties, and also expressed interest in the alley, only to find out DOT had sold it to Sustainable. South Tacoma purchased the abutting property and then filed this lawsuit objecting to the Sustainable purchase. The trial court ruled in favor of DOT and Sustainable, concluding that although DOT did not comply with the applicable statute, the sale was not ultra vires (i.e., outside DOT’s powers) and Sustainable was a bona fide purchaser. The Court of Appeals reversed the trial court in South Tacoma’s favor.

Today the Supreme Court, with Justice Charles Johnson writing the 8-vote majority, reversed the Court of Appeals and upheld the sale to Sustainable. The court said that while ultra vires acts are performed with no legal authority and are void on the basis that no power to act existed, there is a difference where an act is committed without an agency’s power, though without strict procedural or statutory compliance. The court determined that DOT had authority to sell the property and had mistakenly followed the wrong statutory process. Additionally, the court said that Sustainable was a bona fide purchaser and that this doctrine would apply. In other words, the law provides that a good faith purchaser for value who is without actual or constructive notice of another’s interest in purchased real property has superior interest in that property.

Justice Richard Sanders dissented, arguing that DOT was without authority to sell the property without giving proper statutory notice to all abutting owners, and that to ignore this requirement eviscerates the statute. “This interpretation erases the notice requirement from the statute. From now on DOT can simply sell to whomever it chooses without notice to other abutting landowners, in violation of RCW 47.12.063(2)(g). What other statutory limitations can the State ignore?”

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Rivard v. State, No. 82431-2 (briefs and argument). The Supreme Court unanimously ruled that a legislative reclassification of a crime cannot apply retroactively for purposes of prohibiting a person from possessing a firearm. James Rivard was convicted of vehicular homicide in 1994. At the time, vehicular homicide was a class B felony, and only class A felons permanently forfeited their right to possess firearms. But a judge mistakenly sentenced Rivard to forfeiture of this right. The legislature subsequently amended the firearm statute to prohibit firearms to anyone convicted of a “serious offense,” including vehicular homicide.

After he was released from prison, Rivard petitioned for restoration of his firearm rights. The trial court, concluding that the reclassification had no retroactive effect, granted the petition. The Court of Appeals, however, held that the firearm regulations are regulatory rather than punitive, and so can be applied retroactively.

Today the Supreme Court, with Justice Charles Johnson writing, rules that Rivard is not barred from possessing a firearm. “Because Rivard’s conviction for vehicular homicide remains a class B felony, he was eligible under RCW 9.41.040 to petition to have his right to possess a firearm restored. The trial court thus correctly restored his rights. We reverse the Court of Appeals and reinstate the trial court’s decision.”

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Lawson v. City of Pasco, No. 81636-1. Paul Lawson owns and operates a mobile home park in the City of Pasco. The City issued Lawson a citation for permitting one of his tenants to live in an RV, which violated a city ordinance. Lawson challenged that the ordinance was preempted by state law, specifically the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA, RCW 59.20). The trial court found for Lawson, but was reversed by the Court of Appeals.

In today's five-to-four decision and with four opinions, the Supreme Court affirms the Court of Appeals. Justice Charles Johnson wrote the majority opinion, finding that the state has not preempted the field of mobile home park regulation and that Pasco's ordinance did not conflict with the MHLTA.

The Chief Justice signed the majority opinion and also wrote a short concurrence noting that both the state and local laws have been changed to allow tenants to live in RVs. Justice Sanders, joined by Justices Gerry Alexander and James Johnson, dissents and would hold that "the State has preempted the field of mobile home park regulation." Justice Fairhurst, in her own dissent, argues that "Pasco's ordinance ... conflicts with the MHLTA." (briefs and argument)

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Among the opinions released by the Supreme Court today:

Renner v. City of Marysville, No. 81959-9 (briefs and argument). Marc Renner was fired from his job as Network Administrator for the City of Marysville. The city cited misconduct and insubordination for the termination; Renner claimed he was fired for joining a union. Renner sued for wrongful termination, but failed to include 1) a specific damage amount, and 2) all of his addresses for the prior six months. The City successfully moved to dismiss the case for failure to comply with the filing requirements.

The Supreme Court, with Justice Charles Johnson writing, ruled in Renner’s favor and held that Renner “substantially complied” with the claim filing statute. Chief Justice Barbara Madsen filed a separate concurrence finding that Renner substantially complied in this particular case, but she cautioned that “in a given case simply stating the name of the claim without much more does not serve the purpose of former RCW 4.96.020(3).”

Justice Mary Fairhust dissented. “In the name of liberal construction and substantial compliance, the majority distorts the amount requirement of the claim filing statute,” she wrote. “By holding that it is sufficient to merely list all the available classes of damages, the majority undermines the legislature’s intent to encourage settlement.”

State v. Rhone, No. 80037-5 (briefs and argument). Theodore Rhone, an African-American, was charged with robbery, possession of a controlled substance, unlawful possession of a firearm, and bailjumping. During jury selection there were two African-Americans in the 41-member pool, one of whom was dismissed for cause. The other, “juror 19,” was removed by the prosecutor’s peremptory challenge. The question in the case is whether a prosecutor’s peremptory challenge of the only African-American member in a trial of an African-American defendant amounts to a prima facie case of discrimination. The trial court concluded that Rhone had failed to establish a case of discrimination and did not require the prosecutor to provide a race-neutral explanation for his challenge of juror 19. Rhone was convicted on all counts.

The Supreme Court, with Justice Charles Johnson writing for a 4-vote lead opinion, upheld the conviction. The Court noted that under established case law, while a defendant has no right to a ‘jury composed in whole or in part of persons of his own race, the equal protection clause requires that a jury be composed of members who were selected by nondiscriminatory criteria.

The Court declined to recognize a bright line rule that a prima facie case of discriminatory purpose can be based on the mere dismissal of the only potential juror of the defendant’s race. The Court said Rhone could have presented a more complete argument to the trial court incorporating the totality of the circumstances involving the dismissal of juror 19, but that on appeal the Court will defer to the trial court’s ruling. Chief Justice Barbara Madsen filed a brief concurrence: “I agree with the lead opinion in this case. However, going forward, I agree with the rule advocated by the dissent.”

Justice Gerry Alexander, dissenting, wrote: “[W]e should adopt a bright line rule that a prima facie case of discrimination is established under [the U.S. Supreme Court’s decision in] Batson when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged. I recognize that we have previously held that “a trial court is ‘not required to find a prima facie case [of discriminatory purpose] based on the dismissal of the only venire person from a constitutionally cognizable group, but they may, in their discretion, recognize a prima facie case in such instances.’” State v. Thomas, 166 Wn.2d 380, 397, 208 P.3d 1107 (2009) (quoting Hicks, 163 Wn.2d at 490) (alteration in original). Nevertheless, I am convinced that it makes sense to adopt the bright line rule ….”

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State v. Williams-Walker, No. 78611-9, consolidated with State v. Graham and State v. Ruth (briefs and arguments). Under the Sixth Amendment to the U.S. Constitution and article I, sections 21 and 22 of the Washington Constitution, the right to a jury trial requires that sentences be authorized by the jury’s verdict.

State law allows criminal sentences to be enhanced with additional incarceration if a firearm or deadly weapon is used in the commission of the crime. Where there is a finding that a deadly weapon was used, a two-year enhancement is authorized. Where the jury specifies that a firearm was used, a five-year enhancement is available.

In each of the three cases reviewed today, the juries were given special verdict forms for a deadly weapon enhancement, and they returned answers in the affirmative, but the trial courts each imposed the more severe five-year sentence enhancement.

The Supreme Court has previously stated that a defendant's right to a jury trial is violated if a firearm enhancement is imposed with the jury explicitly authorizing it. The cases today address a more nuanced question: whether a trial court can impose a firearm enhancement in the absence of a jury finding by special verdict that the defendant used a firearm, where the juries only authorized the less punitive deadly weapon enhancement.

The State argues that the firearm enhancement should be permitted in two of the cases as the juries found, through their guilty verdicts, that the defendants committed the crimes using a firearm. Ruth and Graham were both charged with first degree assault with a firearm, and a conviction requires the jury to find that a firearm was used.

The Court disagreed. “We decline to hold that guilty verdicts alone are sufficient to authorize sentence enhancements. If we adopted this logic, a sentencing court could disregard altogether the statutory requirement that the jury find the defendant's use of a deadly weapon or firearm by special verdict. Such a result violates both the statutory requirements and the defendant's constitutional right to a jury trial.”

In a 6-3 decision written by Justice Charles Johnson, the court vacated the enhanced sentences and remanded the cases for resentencing. Justice Mary Fairhurst and two others dissented.

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State v. Boss and Pelts, No. 81897-5 (argument and briefs). Cynthia Boss was charged and convicted of first degree custodial interference pursuant to RCW 9A.40.060 for intentionally denying Child Protective Services (CPS) access to her daughter after an order awarding CPS legal custody of the child.

Boss appealed, arguing the trial court had committed reversible error because a jury instruction omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS’s right to custody of her daughter) of first degree custodial interference, and another jury instruction impermissibly commented on the evidence. The Court of Appeals affirmed Boss’s conviction.

The Supreme Court agreed, with Justice Charles Johnson writing the unanimous opinion. The Court concluded: (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court’s comment on the evidence.

State v. Powell, No. 80496-6 (argument and briefs). In 1997, Terrance Powell was charged with aggravated first degree murder. He was found guilty, but the conviction was reversed by the Court of Appeals and remanded for retrial. At the subsequent jury trial Powell was found Powell guilty of first degree murder, and the trial judge imposed an exceptional sentence of 720 months after finding a number of aggravating factors. Powell's conviction and sentence were upheld by the Court of Appeals.

After the U.S. Supreme Court’s 2004 decision in Blakely v. Washington (which held that the Sixth Amendment prohibits judges from enhancing sentences based on facts not found by the jury), Powell filed a new appeal. The Court of Appeals reversed the exceptional sentence and remanded for resentencing. The State informed Powell of its intent to seek an exceptional sentence based on statutory aggravating circumstances. Powell moved for a standard range sentence. The trial court impaneled a jury to determine whether there were aggravating circumstances to justify an exceptional sentence.

Powell challenges the trial court’s decision on remand to impanel a jury, arguing the court had no authority to do so as the State did not give notice of intent to seek an exceptional sentence before trial.

The Supreme Court granted discretionary review and affirmed the trial court. Chief Justice Gerry Alexander wrote the 4-vote lead opinion, with two justices joining a concurrence.

We disagree with Powell’s contention that the notice provision in RCW 9.94A.537(1) requires the State give notice of its intent to seek an exceptional sentence. The statute merely states that the State “may” give notice that it is seeking a sentence above the standard sentencing range prior to trial or entry of a guilty plea. The fact that Powell was not given notice prior to trial of the State’s intention to seek an exceptional sentence does not, therefore, run afoul of the plain language of the statute.

Justice Susan Owens and two others dissented.

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In re the Personal Restraint Petition of Beito, No. 77973-2. Jessica Dawn Seim was 14 when she was raped and murdered by Corey Beito, who was arrested and charged with aggravated murder in the first degree. Beito eventually pleaded guilty to murder in the first degree and was given an "exceptional sentence" above the standard range of 291 to 388 months in prison. Beito had admitted to both the rape and the murder; the connection between them was the grounds for the above-range sentence. Beito challenges that sentence in light of Blakely, which was decided before Beito's sentence became final. The Court today, in an opinion by Justice Charles Johnson and joined by six other justices, reverses Beito's sentence and remands for sentencing within the standard range.

A review of the record shows Beito did not stipulate to the exceptional sentence or the fact that the rape was motive for and closely connected to the murder. Under Apprendi, without such an admission by Beito, a jury and not the trial court should have determined whether aggravating factors that support an exceptional sentence (if any) existed. We hold that, without more, the trial court violated Beito's Apprendi/Blakely Sixth Amendment right to a jury trial.

Justice James Johnson, joined by Justice Fairhurst, dissents and argues that Beito stipulated to all the relevant facts and avoided a jury trial and that any remaining error was harmless. (briefs and argument)

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Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3. Abbey Road Group intended to build a 575-unit condominium complex in Bonney Lake. On October 12, 2005, Abbey Road filed a site plan application ("Commercial or Multi-family Site Plan Review Application Form Type 3 Permit"). Later that day, the City passed an ordinance down-zoning Abbey Road's property from commercial to "Residential/Conservation District." Abbey Road appealed, alleging that their development rights had vested with the filing of the site plan application. The hearing examiner disagreed, finding that development rights could not vest until the filing of a building permit application (RCW 19.27.095). The Superior Court reversed and then the Court of Appeals reinstated the hearing examiner's ruling in favor of Bonney Lake.

The Court today upholds the Court of Appeals with a lead opinion by Justice Charles Johnson, joined by Justices Owens and Stephens. The opinion upholds the statutory rule and refuses to allow development rights to vest before the filing of a building permit. A concurrence by Justice Madsen, joined by Justice Fairhurst, suggests that Abbey Road should have prevailed if it had filed a building permit application at the same time it filed the site plan application, even though Bonney Lake indicates that a building permit application is only complete if it includes an approved site plan.

Justice Sanders dissents, joined by the Chief Justice and Justices Chambers and James Johnson.

The problem with the lead and concurring opinions is not only that they come to the wrong conclusion, but they muddle and finesse an area of the law where certainty is critical. The State and localities have a great deal of discretion to determine by ordinance what the rules shall be. But the property owner has a constitutional right to proceed under current ordinances by submitting a complete building permit application to vest its rights at any time of its choosing. When the government prevents him from doing this, it deprives the developer of his property without due process of law.

(briefs and arguments, LibertyLive.org: Is land development really against the "public interest"?)

In Re Detention of Strand, No. 80570-9. In 1992, John Strand was convicted of first degree child molestation and resisting arrest and sentenced to 150 months imprisonment and 36 months in community placement. Prior to his release, the state conducted a mental health evaluation that was subsequently used as evidence to commit Strand under the State's sexually violent predator statute (RCW 71.09.025). Strand challenged the use of the mental health evaluation, alleging violations of the statute, violations of his right to counsel, and that the State failed to prove his statements were voluntary. The Court, in an opinion by Owens and joined by four other justices, rejects all of Strand's claims and upholds his commitment. Sanders, joined by three other justices, strongly dissents. (briefs and arguments).

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The Supreme Court dealt with two cases that involved alleged violations of the constitutional right to a public trial.

State v. Momah, No. 81096-6. In 2005, Dr. Charles Momah, a gynecologist, was charged with multiple counts of rape and indecent liberties related to allegations that he had sexually violated several patients while conducting physical exams. Because of the intense media publicity surrounding the case, over 100 potential jurors were summoned. While conducting jury selection, the judge, prosecutor, and defense counsel decided to privately question several jurors in chambers. Momah was convicted as charged and sentenced to 245 months in prison.

On appeal, Momah claimed the private interviews violated his constitutional rights to a speedy and public trial. The Washington Constitution provides that an accused has the right to “a speedy public trial by an impartial jury.” Const. art. I, § 22. Additionally, Article I, section 10 provides that “[j]ustice in all cases shall be administered openly.”

Because of the overriding interest in open, public trials, a trial judge may only close a courtroom in limited circumstances. Under State v. Bone-Club (1995), five guidelines must be followed: 1) The party arguing for closure must show a compelling need to close the courtroom; 2) those present in the courtroom must be given an opportunity to object; 3) the proposed method for closing the court must be the least restrictive means available; 4) the court weighs the competing interests of closure and the public; and 5) the order must be no broader than necessary. If an improper closure occurs the case must be sent down for retrial.

Reviewing Momah’s claim, the Supreme Court determined there was no improper closure. “Applying these principles to this case, we find the facts distinguishable from our previous closure cases. Here, Momah affirmatively assented to the closure argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it. Moreover, the trial judge in this case not only sought input from the defendant, but he closed the courtroom after consultation with the defense and the prosecution. Finally, and perhaps most importantly, the trial judge closed the courtroom to safeguard Momah’s constitutional right to a fair trial by an impartial jury, not to protect any other interests.”

The Supreme Court, with Justice Charles Johnson writing the opinion, held that there was no improper closure of the courtroom, and affirmed the jury’s determination of guilt. Justice Pro Tem Joel Penoyar filed a concurring opinion, while Chief Justice Alexander dissented, joined by Justices Sanders and Chambers.

State v. Strode, No. 80849-0. In another case involving a similar jury interview question, the Supreme Court found the defendant’s right to a public trial had been violated. Tony L. Strode was charged and convicted of child rape and molestation. During jury selection, prospective jurors were given a questionnaire which asked whether they, or anyone close to them, had either been the victim of sexual abuse or accused of committing a sexual offense. Those who answered “yes” to either question were called into the judge’s chambers for individual questioning on whether their past experience would preclude them from acting fairly and impartially.

As mentioned above, any closure of a court proceeding must be justified using a Bone-Club analysis, and there was no indication this occurred in the Strode case. Strode was convicted on all counts and appealed, arguing that his right to a public trial had been violated.

The State argued that jury selection falls prior to the commencement of trial and is not subject to the public trial requirement. The State also argued that Strode was present for questioning and waived his right to a public trial. Even if there was an unjustified closure, argued the State, it was insignificant and did not infringe on Strode’s constitutional rights.

The Supreme Court determined that factual circumstances in this case required a Bone-Club analysis. The Supreme Court rejected the State’s arguments and ruled that Strode’s right to a public trial had been violated, resulting in a reversal of his conviction and an order for a new trial. Chief Justice Alexander wrote a 4-vote lead opinion, and Justice Fairhurst and Madsen filed a concurring opinion. Justice Charles Johnson and two others dissented, arguing that the right to a public trial must be balanced against a juror’s right to privacy.

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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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Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2. Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which in turn use Dot products as ingredients for products that are later sold to grocery stores and other retail outlets.

For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot paid the tax and then filed suit against the Department to recover a refund.

The Department argued that Dot should not qualify for the B&O tax exemption because its sales included non-consumer products, and some products eventually ended up in permanent retail establishments. The trial court ruled in the Department’s favor. The Court of Appeals affirmed the trial court, holding that Department’s new interpretation of the statute was reasonable.

The questions before the Supreme Court are (1) whether an out-of-state seller qualifies for the B&O tax exemption when it sells some non-consumer products, and (2) if so, does such a seller qualify for the B&O tax exemption when some of its products ultimately end up in permanent retail establishments?

The Supreme Court, with Justice Charles Johnson writing the 5-vote majority, ruled in favor of Dot Foods. The court said that the law (RCW82.04.423(1)(d) requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed. Considering the foregoing, we reject the Department’s interpretation. To do otherwise would add words to and rewrite an unambiguous statute.”

Justice Johnson took the Department of Revenue to task for its argument that its interpretation of the statute is entitled to judicial deference. “The Department’s argument for deference is a difficult one to accept, considering the Department’s history interpreting the exemption. Initially, and shortly after the statutory enactment, the Department adopted an interpretation which is at odds with its current interpretation. One would think that the Department had some involvement or certainly awareness of the legislature’s plans to enact this type of statute.”

Justice Debra Stephens and three other justices dissented, writing that the out-of-state exemption from the B&O tax should be interpreted narrowly and that by allowing Dot Foods to claim the exemption the majority decision “expands the exemption well beyond its intended scope.”

State v. Heddrick, No. 80841-4. In 2004, Steven Ray Heddrick, Jr., was charged with felony harassment. While awaiting trial, Heddrick was allegedly involved in an altercation with jailhouse staff, which resulted in a subsequent charge of custodial assault. Concerns about Heddrick’s competency for trial arose several times. Eventually the trial court determined that Heddrick was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

The Supreme Court ruled that Heddrick, through his appointed counsel, waived completion of the statutory competency procedures. Additionally, the court ruled that Heddrick did not suffer a complete denial of counsel during a critical stage in the proceedings. Justice Susan Owens wrote the unanimous opinion.

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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 Brooks, No. 80704-3. Jeffrey Brooks, convicted of three counts of first-degree robbery and one count of residential burglary, was sentenced to 120 months in prison plus 18 to 36 months of community custody. He challenges the sentence as exceeding the maximum, which is 120 months for both imprisonment and community custody. In a unanimous opinion by Justice Chambers, the Court upholds the courts below and finds Brooks's sentence lawful. The Court reasons that Brooks will likely earn early release credits that reduce his sentence below the maximum and, if he does not, the sentence was already amended to note that Brooks total time in confinement and supervision may not exceed 120 months. "We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the apropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum." (briefs and argument)

State v. Hughes, No. 81270-5. Raymond Hughes admitted to sexual intercourse with a 12-year-old girl with cerebral palsy whom he had been hired to nurse. He was charged with both second-degree rape and second-degree rape of a child. Hughes challenges that the two charges amounted to double jeopardy and that his exceptional sentence of 102 months to life is an indeterminate exceptional minimum sentence that exceeds the trial court's authority. Here, in a unanimous opinion by Justice Charles Johnson, the Court holds that the two charges do amount to double jeopardy because they are based on the same single incident and the elements of each crime are essentially identical. The Court rejects Hughes's challenge to his sentence because he was convicted before the Sentencing Reform Act amendments that are essential to his argument. The case is remanded to the trial court to vacate one of the two convictions. (briefs and argument)

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Morgan, Pitchford & McGillivray v. Kingen, 81202-1. Funsters Grand Casino, which was actually a minicasino, opened its doors in SeaTac, Washington, in August 2001. A year later, it filed for Chapter 11 bankruptcy protection, which was converted to Chapter 7 liquidation on April 7, 2003. The bankruptcy court seized Funsters' assets. By that time, Funsters had already failed to pay over $179,000 in wages to over 180 employees. The bankruptcy court did not allow Funsters to use its $85,823 in remaining cash to pay any of the back wages. Plaintiffs here sued on behalf of the class of unpaid Funsters employees, seeking to hold personally liable Funsters CEO and president Gerald Kingen and CFO and general manager Scott Switzer, who were both also part owners in the minicasino enterprise.

The trial court entered summary judgment for plaintiffs and granted them attorney fees, but without a multiplier. Both parties appealed. Today, the Court upholds the trial court and court of appeals, holding that the non-payment of wages here was "willful," thus Kingen and Switzer can be held personally liable under state law. The Court also upholds the lack of a multiplier in the award of attorney fees. Justice Charles Johnson wrote the majority opinion, joined in full by four Justices and joined as to the result only by Justice Chambers. Justice Sanders, joined by Justice Jim Johnson and Justice Pro Tem Dennis Sweeney (sitting in place of Justice Fairhurst), dissented. (briefs and arguments)

The Casino formerly known as Funsters, via Google Maps

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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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The court today released three opinions in two cases.

In re F5 Networks, Inc., No. 81817-7 Justice Chambers writes for a unanimous Court, answering two questions certified from the U.S. District Court for the Western District of Washington. Shareholders of F5, a Washington-based technology company, sued alleging improper backdating of stock options. The questions both revolve around the plaintiff's failure to first demand action by the corporate board. Does Washington law require such a demand before commencing litigation (a "universal demand" requirement), or does it allow plaintiff's to proceed in litigation if such a demand would have been futile (the "demand futility standard")? The Court today holds that, "until the legislature says otherwise, Washington follows Delaware's demand futility standard and the reasoning of Ryan [a similar case from Delaware where such a suit was allowed to proceed]." (case briefs, argument, "F5 Networks to restate financials back to 2001", "State Ruling Could Blunt Backdating Litigation Wave")

State v. Elmi, No. 80380-3 Justice Charles Johnson writes for a six-member majority, upholding Ali Elmi's convictions for first degree assault with a firearm. Elmi fired multiple gunshots into a house after he saw his estranged wife look out the window. The shots missed his wife and three young children who, unbeknownst to Elmi, were with her in the room. The question here was whether Elmi had the criminal intent necessary for the assault convictions against the three children. The Court holds that he did.

Where a defendant intends to shoot into and to hit someone occupying a house, a tavern, or a car, she or he certainly bears the risk of multiple convictions when several victims are present, regardless of whether the defendant knows of their presence. And, because the intent is the same, criminal culpability should be the same where a number of persons are present but physically unharmed.

Justice Madsen, joined by Justices Sanders and Fairhurst, dissent, arguing that the legislature's statutory doctrine of transfered intent was not intended to be and is not broader than the common law doctrine. At common law, the doctrine provides that "a defendant who shoots at B but misses and hits C instead" may be punished as he had intended to shoot C. The dissent challenges that "Using the transferred intent doctrine to hold a defendant liable for inchoate crimes like attempted battery criminalizes the unintended and unaccomplished potential consequences of a defendant's actions." (case briefs and 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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TVW's legal affairs program The Docket features an interview with Supreme Court Justice Charles Johnson, the court's senior member.  

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The Supreme Court of Washington ruled this morning on a salary dispute involving teachers from the Washington State School of the Blind (WSSB). The case is Delyria v. State.

State law requires that WSSB teacher salaries "conform to and be contemporary with" salaries of local school district teachers. The state sets a salary schedule, but local districts can provide supplemental pay to teachers for "additional time, additional responsibilities, or incentives" -- known as TRI pay.

Cheryl Delyria and Judy Koch are certificated teachers at the WSSB in Vancouver. They are paid a base salary according to the state salary schedule. Under their collective bargaining agreement, they can earn additional pay if allowed by the WSSB's financial resources, but the WSSB teachers do not receive TRI pay. These teachers argued they are entitled to TRI payments similar to the payments made by the Vancouver School District to its teachers.

Justice Charles Johnson, writing the majority opinion, says the legislature enacted two separate provisions regarding supplemental pay: one for local district teachers, and other for WSSB. Because of this, the court held today that a school district's TRI pay is not part of the teacher's salary, and WSSB teachers are not entitled to an similar supplement.

Chief Justice Alexander and Justice Madsen and Fairhurst filed a concurring opinion.

Obviously this is a loss for WSSB teachers, but what do other education folks think about the ruling? School districts often face incredible pressure during contract negotiations to boost teacher income through TRI payments. The ruling clarifies that TRI is merely supplemental and not part of a teacher's salary. What impact will that have on teacher/district negotiations?

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