The State of Washington requires that any individual arrested for vehicular assault must take a blood alcohol test. However, rules require that the individual must be given adequate warning regarding the test and informed that they have a right to select any qualified individual to perform further tests.

Jose Morales was arrested in 2004 following a vehicle collision in which he continued to drive for one mile after the wreck. The officer at the scene asked an interpreter to communicate the warning to Morales following discovery that he only spoke Spanish.

Morales contested his convictions for DUI and vehicular assault by means of driving a motor vehicle under the influence of intoxicating liquor and in a reckless manner. He did not contest the convictions for hit and run nor vehicular assault by means of disregard for the safety of others. He further argued that the State failed in proving that he had actually received the necessary warning regarding alcohol testing.

The court referenced State v. Turpin in explaining the important obligation the state has in preserving the “protection of the subject’s right to fundamental fairness” regarding implied consent. This case had a similar precedent in which a subject had not been informed of the blood testing until after the testing had been completed, nor was Turpin informed of her rights for additional testing per RCW 46.20.308.

The court found that the State was incapable of proving whether Morales had in fact been read the “308 rule.” The only proof in the affirmative was the Trooper’s testimony that the interpreter had told him he had informed Morales of the rule, which the court called “classic hearsay.”

The court reversed the convictions for DUI and vehicular assault by driving under the influence, while affirming the hit and run convictions, and put on remand further proceedings consistent with that opinion.

Justice Jim Johnson, in dissent, claimed that the state did meet the preponderance of evidence burden in proving that the 308 warning had been given. Further, he claimed that even if the burden was not met, admitting the test results was a “harmless error.”

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.

End of the trail

It looks like we're coming to the end of the campaign trail. After the latest numbers were released yesterday, I am now behind by about 4,500 votes out of nearly two millions votes cast, 49.9% to 50.1%. The campaign experts say that we are unlikely to make up that difference as the counties finish their tally over the next few days.

I want to particularly thank the many volunteers and more than a thousand donors who helped my campaign, not to mention the 930,000 voters who made good choices.

Charlie Wiggins and I had dozens of debates and on those occasions he showed the same intelligence and professionalism that I had seen before when he argued before the Court. I am sure he will be a good Justice, but of course he does not share my perspective on many issues. I have offered him my congratulations and promised him my 100% support for his new position.

I know that my supporters want someone on the Court who protects individual liberty, whether it's the right to privacy or the right to own and use property, or our dozens of other rights guaranteed in the Constitution. These are the things which make us free. They are essential to all of us -- defendant and judge -- liberal and conservative.

It has been a great honor to serve the people of Washington on their Supreme Court. I intend to stay involved, to participate in public life and to speak out on the issues that confront our justice system. I guess there’s some truth in the saying, “old lawyers never die, they just lose their appeal.”

God bless you all.

Twelve of Judge Wiggins’ opinions were appealed to the Washington Supreme Court. The Supreme Court denied review in six appeals, which in effect affirms the Court of Appeals ruling. Meanwhile, six of Wiggins’ opinions were accepted for review by the Supreme Court. Of those six, four opinions were overturned.

State v. Morris, 77 Wash.App. 948, 896 P.2d 81 (1995)
Joellen Eileen Morris purchased cocaine drugs from an undercover police informant. She was convicted of “delivery of a controlled substance.” The Court of Appeals held that purchasing drugs is not “delivery” and reversed the conviction.

Cary v. Allstate Insurance Company, 78 Wash.App. 434, 897 P.2d 409 (1995)
Aloha Cary’s husband Richard was stabbed and killed by a friend, Arnold Bennett, who was found not guilty by reason of insanity. Bennett’s homeowner’s insurance policy excluded criminal acts committed while insane. Thus, when Cary won a lawsuit against Bennett, his insurance company refused to indemnify him.

Cary sued the insurance company, arguing that the exclusion violated public policy, but the Court of Appeals held that it did not. The Supreme Court affirmed this decision on appeal.

In re Marriage of Maples, 78 Wash.App. 696, 899 P.2d 1 (1995)
James Maples received worker’s comp and social security disability payments, and his children (living under their mother’s custody) also received direct payments on account of his disability. During a child support modification, the Superior Court treated the children’s payments as income to the children. The Court of Appeals reversed, holding that the payments should have been counted as income to Maples.

State v. Aten, 79 Wash.App. 79, 900 P.2d 579 (1995)
Vicki Aten was convicted of second degree murder after a four-month old child she was babysitting died under her car. Aten confessed to causing a baby’s death, and was convicted of manslaughter based on her confessions and admissions. The Court of Appeals ruled that courts cannot consider a confession as evidence of guilt unless it is corroborated by independent proof. The court found that insufficient independent evidence corroborated Aten’s confessions and admissions, and reversed her conviction. The ruling was affirmed by the Supreme Court.

State v. Breedlove, 79 Wash.App. 101, 900 P.2d 586 (1995)
Before his murder trial, defendant moved to dismiss his appointed council and represent himself. The trial court denied the motion, and defendant was convicted at trial. The Court of Appeals held that since the motion was not designed to delay the trial and would not have “impaired the orderly administration of justice,” it should have been granted. Therefore, defendant’s conviction was reversed.

Tacoma Athletic Club, Inc. v. Indoor Comfort Systems, Inc., 79 Wash.App. 250, 902 P.2d 175 (1995)
Indoor Comfort Systems sold and installed a dehumidification system for Tacoma Athletic Club, but the system didn’t work properly and the Club sued. The trial court awarded damages to the Club for breach of warranty under the Uniform Commercial Code (UCC). Indoor Comfort Systems appealed, claiming that the UCC did not apply to its contract because the contract was primarily services (installing the system) rather than goods (the system itself).

The Court of Appeals held that the predominant factor in the contract was the sale of goods, so the UCC applies. However, the court also held that damages had been improperly measured. Thus, the court reversed the damage award and remanded for a proper determination of damages.

Malyon v. Pierce County, 79 Wash.App. 452, 903 P.2d 475 (1995)
Plaintiff sued Pierce County, claiming that the chaplaincy program of the Pierce County Sheriff’s Department violates both state and federal constitutions. The trial granted summary judgment for the County. The Court of Appeals reversed, holding that it was not clear from the record whether the program was constitutional, so summary judgment was improper. This holding was later reversed by the state Supreme Court.

State v. Avendano-Lopez, 79 Wash.App. 706, 904 P.2d 324 (1995)
Defendant was convicted of drug possession. During cross-examination, the prosecutor asked defendant whether he had sold heroin before and whether he was an illegal alien. Defendant moved unsuccessfully for a mistrial based on prosecutorial misconduct. The Court of Appeals held that the questions were misconduct, but that the misconduct was not prejudicial, and therefore affirmed the trial court.

State v. Rundquist, 79 Wash.App. 786, 905 P.2d 922 (1995)
An undercover government agent set up a company and began buying and selling illegal fish eggs. Defendant purchased eggs from the agent, and was charged with illegally purchasing salmon and steelhead. Partway through the trial, the judge dismissed the case due to outrageous government conduct. The Court of Appeals held that this was an abuse of the trial court’s discretion and reversed the dismissal.

State v. Kealey, 80 Wash.App. 162, 907 P.2d 319 (1995)
Defendant Carolyn Kealey left her purse at a department store, and store personnel found drugs in it and called the police. The police searched the purse to determine the owner. After determining Kealey’s name, police set up a sting operation resulting in her arrest.

Kealey moved to suppress all evidence gathered as a result of learning her identity, because her purse was searched without a warrant. The Court of Appeals held that defendant had a privacy interest in her purse, but that the search was proper because a warrantless search is justified to identify the owner of lost property.

State v. Berlin, 80 Wash.App. 734, 911 P.2d 414 (1996)
Defendant Leslie Berlin shot and killed a friend, and was charged with murder. The State charged intentional murder and felony murder as separate theories. At trial, the court also instructed the jury on manslaughter, a lesser included offense of the felony murder. The jury convicted defendant of manslaughter.

On appeal, the Court of Appeals held that the jury should not have been instructed on manslaughter because manslaughter is not a lesser included offense of intentional murder. Accordingly, the court reversed defendant’s conviction. This decision was itself reversed by the Supreme Court.

Dietz v. Doe, 80 Wash.App. 785, 911 P.2d 1025 (1996)
Plaintiff Melissa Dietz’s husband was killed by an unknown driver, and suit was filed against John Doe. Plaintiff discovered that the driver had contacted an attorney, and moved to compel the attorney to reveal the driver’s identity. The trial court denied the motion, and the Court of Appeals agreed, holding that the driver’s identity was protected under attorney-client privilege. This decision was reversed by the Supreme Court.

Baker v. Schatz, 80 Wash.App. 775, 912 P.2d 501 (1996)
Plaintiffs were injured because of exposure to chemicals while working for defendant company, and sued the company. The company moved for summary judgment based on immunity under the Industrial Insurance Act. Plaintiffs argued that their injuries resulted from “deliberate intention” by the company, so that the immunity would not apply. The trial court denied the company’s motion. The Court of Appeals affirmed this decision, finding that plaintiffs had presented enough evidence to raise a genuine issue of whether there was deliberate intent.

Martinez v. City of Tacoma, 81 Wash.App. 228, 914 P.2d 86 (1996)
Marvin Martinez sued the City of Tacoma under Washington’s Law Against Discrimination, and won his claim. The trial court limited his attorney fee award to fifty percent of the damages, as Martinez had agreed to this contingency fee with his lawyer. The Court of Appeals held that limiting the attorney’s fees violated the intent of the Law Against Discrimination, and ordered the trial court to compute reasonable attorney’s fees.

Seizer v. Sessions, 82 Wash.App. 87, 915 P.2d 553 (1996)
Don Sessions married his first wife and then left her in Texas without officially divorcing her. He married again and was divorced, and then married a third time. Sessions purchased a winning lottery ticket before dying in Washington. His first and third wives dispute who should get the money. The trial court granted summary judgment in favor of the third wife.

Washington and Texas treat marriage differently, which affects who has rights to the money. The Court of Appeals reversed the trial court, finding that since Texas has the “most significant relationship to the determination of ownership” of the money, Texas law should be applied. This decision was reversed by the Supreme Court.

State v. Squally, 81 Wash.App. 685, 915 P.2d 1151 (1996)
The Nisqually Indians consented to State criminal jurisdiction over their reservation in 1957. Defendants committed crimes on “after-acquired reservation land” (land added to the reservation after 1957) and were convicted in state courts. The Court of Appeals held that state courts do not have jurisdiction over the after-acquired land and reversed the convictions. This decision was reversed by the Supreme Court.

With questions from panel members
~Peter Callaghan, Columnist, Tacoma News Tribune
~David DeWolf, Professor, Gonzaga University School of Law
~Stewart Jay, Professor, University of Washington School of Law

Tuesday evening, September 28, 2010
Washington Athletic Club • 1325 Sixth Avenue, Seattle
Doors open at 6:30, debate begins at 7:00

Drinks and hors d’oeuvres will be served

Admission to this event is free and parking in the Washington Athletic Club garage (1409 Sixth Avenue) will be validated

RSVP to Michael Bindas by Friday, September 24, 2010
by email at mbindas@ij.org or phone at (206) 341-9300

Presented by

THE FEDERALIST SOCIETY
PUGET SOUND LAWYERS CHAPTER

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

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

Click here a summary of the majority opinions written by Wiggins when he served on the Court of Appeals. 

Ratings

• King County Bar Association: Exceptionally Well Qualified
• Tacoma-Pierce County Bar Association: Exceptionally Well Qualified
• Washington Association of Prosecuting Attorneys: Well Qualified
• Municipal League of King County: Outstanding
• Loren Miller Bar Association: Exceptionally Well Qualified
• Latina/o Bar Association of Washington: Exceptionally Well Qualified
• Joint Asian Judicial Evaluations Committee: Well Qualified

Notable Endorsements

Individuals

• Skagit County Commissioner Ted Anderson (Ret.)
• State Representative Sherry Appleton
• Kitsap County Commissioner Josh Brown
• State Representative Maralyn Chase
• State Representative Frank Chopp
• 24th Legislative District Representative Lynn Kessler

Newspapers

• Tacoma News Tribune
• Everett Herald
• Tri-City Herald
• Yakima Herald

Organizations

• Washington Conservation Voters
• Planned Parenthood Votes! Washington
• NARAL
• Washington Council of Police & Sheriffs
• AFT Washington
• Washington State Labor Council
• Equal Rights Washington
• Washington State Democrats

Website

• Campaign Site
• Voter's Guide
• Facebook

In the last week, Justice Jim Johnson has been endorsed for re-election by the Seattle Times, the Olympian, the Tri-City Herald, and the Yakima Herald.

Justice Richard Sanders has been endorsed by the Spokesman-Review.

Sanders’ opponent Charlie Wiggins has been endorsed by the Tri-City Herald and the Yakima Herald.

Johnson has been a consistent protector of open government in his six years on the court and has earned the people’s confidence by defending our state’s superb primary system. He has a big advantage in experience; Rumbaugh has never served as a judge and is too closely tied to labor unions.

Sanders is another incumbent who has earned re-election, despite his maverick tendencies. He has both angered and drawn endorsements from Republicans and Democrats, proving his independence. He has served on the court since 1995. Controversial but brilliant and articulate, Sanders’ disregard for partisan influences, and his fierce defense of individual rights makes him a good fit for the court.

The Spokesman-Review also endorses Sanders. "We don’t always agree with him, but we know he is taking a principled stand."

Meanwhile, the Herald endorsed Johnson, but wants to see Sanders and challenger Charlie Wiggins advance to the general election for a more detailed debate.

We'd like to see the libertarian Sanders, a controversial but valuable member of the court, engage in a spirited contest with his strongest challenger, who we believe to be Bainbridge Island attorney Charlie Wiggins. An enlightening debate could ensue, spotlighting issues such as the rights of crime victims vs. the rights of the accused.

Running for Position 1 are Justice Jim Johnson and challenger Stan Rumbaugh. Chief Justice Barbara Madsen is running unchallenged for Position 5. We previously reported that Justice Richard Sanders and Charlie Wiggins are running for Position 6, and another candidate has jumped into this race: Pierce County Superior Court Judge Bryan Chushcoff.

Because judicial offices are nonpartisan, the August 19 primary is a key date for judicial elections. If any candidate receives 50 percent of the primary vote, that candidate advances unchallenged to the general election.

Here at the Supreme Court of Washington Blog we will be reporting on each of these contested judicial races. Voting for judges is often difficult as candidates refrain from taking positions on specific public policy issues. The Supreme Court of Washington Blog will not endorse any candidate; our goal is to provide information about each candidate’s background, qualifications, and previous rulings (if available).

Just click on the “Judicial Elections” category to the left to read each article we’ve written about the various judicial races. You can also sort articles by individual candidate using the tags below.

American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1 (briefs and argument). The issue here, as summarized by TVW, is whether an insurer must defend its insured in a case involving its negligence that occurred after an assault when the contract excludes coverage for injuries “arising out of” assaults?)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1 (briefs and argument). Columbia sued Benton on several grounds, all related to whether a physician-owned company providing orthopedic services can employ physical therapists. Both parties agree on the facts of the case, but differ on the applicable laws and cases. The trial court issued summary judgment on some of the issues and certified them to the Court of Appeals, and the parties asked for discretionary review. The Court refused the review, stating that the parties disagreed on what issues they wanted the Court to review.

The parties appeal to the Supreme Court, arguing that the denial of review departed so far from the "accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction" by the high court.

(Supreme Court judicial candidate Charlie Wiggins represented and argued for Columbia Physical Therapy.)

In other news, Supreme Court hopeful Charlie Wiggins in now on Twitter.

Justice Sanders was expected to run for another term on the court, and he recently filed the necessary candidate registration form with the Public Disclosure Commission. Justice Sanders won a special election in 1995 and was re-elected for two six-year terms in 1998 and 2004. He describes his understanding of the job on his campaign website: 

These have been good years on the court. It is a great privilege and joy to attempt to protect and maintain the individual legal rights of every single individual who comes to court. That, in my opinion, is the job description of a judge, and, as it says in Article 1, Section 1 of our state constitution, the purpose of state government as well.

Stay tuned. We'll continue to bring news and information about the various candidates for the Supreme Court.

Bainbridge Island attorney Charlie Wiggins has officially thrown his hat into the ring, filing a candidate registration form with the Public Disclosure Commission. He is running against Justice Richard Sanders.

Wiggins’ campaign website can be found here, where Wiggins states he is running against Sanders because of violations of the Code of Judicial Conduct  and because "his decisions are not fair and impartial, and he opposes positive reforms to improve the process of electing judges." Should be a colorful campaign.

Chief Justice Barbara Madsen and Justice James Johnson are also up for re-election this year.

As election season approaches, this blog will provide information about candidates for the Supreme Court, including links to the evaluations and endorsements of other organizations.

UPDATE: The race is covered by the Olympian, Seattlepi.com, and the Kitsap Sun.

Note: The Supreme Court of Washington Blog neither endorses nor supports any candidate for judicial office.