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

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

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

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

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State v. Irby, No. 82665-0. Terrance Irby was convicted of aggravated first degree murder and other crimes and sentenced to life in prison. One of his grounds of appeal challenged the use of email at the beginning of voir dire. Several jurors were disqualified after an email exchange, outside of Irby's presence, between defense counsel, prosecutors, and the judge. The Court of Appeals threw out Irby's conviction and held "that the trial court 'violated Irby's right to be present and contribute to jury selection.'"

The right to be present at one's own trial is protected by the Fourteenth Amendment of the U.S. Constitution and article I, section 22, of the Washington Constitution. The latter "provides an explicit guaranty of the right to be present:

"In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel."

The Court sustains the Court of Appeals, holding that the trial court's use of email to begin the voir dire process and strike several jurors outside of the presence of Irby violated his due process rights and that the error was not harmless. Justice Alexander wrote for a bare majority. Chief Justice Madsen wrote a dissent, joined by three other justices, arguing that the trial court has discretion to remove jurors and that Irby's presence at the discussion in question would not "substantially relate to his ability to defend himself." (briefs, argument)

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In re Pers. Restraint of Blackburn, No. 82329-4. Douglas Blackburn pleaded guilty to two drug crimes. He was sentenced to a period of imprisonment followed by a period of community custody. To remain under community custody and not return to prison, Blackburn was required to "obey all laws." During his community custody, the Department of Corrections sent Blackburn a notice alleging that he had failed this requirement by "threatening to kill Shelly Blackburn." The only reference to a particular statute was as the sixth item on a list of "documents and witnesses that DOC intended to present at a violation hearing." Blackburn was found in violation, and an administrative appeals panel affirmed. He filed a personal restraint petition to the State Supreme Court.

Today the Court unanimously grants Blackburn's petition and overturns the DOC. The notice to Blackburn was deficient because it failed to specify which law he had violated.

We hold that for DOC to lawfully reclassify an offender for imprisonment for a violation of an "obey all laws" condition of community custody, the notice must allege the facts and legal elements that DOC would have to prove to show an offender did not obey all laws. ... Although a notice may state the elements, a citation to the statute suffices if the statute includes all of the elements. If the statute does not include all of the elements, the notice must indicate the nonstatutory elements that would render the offender's conduct unlawful.

Justice Fairhurst authored the Court's opinion. (briefs, argument)

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Carlisle v. Columbia Irrigation District, No. 82035-0. The Court today unanimously upholds summary judgment in favor of the Columbia Irrigation District (CID).

In 2007 CID expanded, adding new lands and then establishing a local improvement district (LID) on them to allow future special assessment levies to pay for improvements. Thirty-four landowners sued, alleging that CID's expansion violated due process (article I, section 3) and failed to receive valid petitions representing at least one-half of the land area (RCW 87.03.560). They further alleged that the statute authorizing creation of the LID violates on its face the guarantee of equal elections (article I, section 19) and that notice of the hearing for formation of the LID also violated due process.

The Court first considers whether expansion of the irrigation district boundaries constituted a deprivation of property. The constitutional guaranty of due process only applies where a person is "deprived of life, liberty, or property...." The guaranty of due process does not apply to government decisions or actions that only create or increase the likelihood of a future deprivation. The Court holds that while CID's expansion made future assessments on plaintiffs' lands possible, "increased probability of an assessment was not a deprivation of property within the meaning of article I, section 3."

The Court further explains "that a democratically elected legislature has the prerogative to establish the procedures by which a local government entity is created or its boundaries expanded." This is because local governments are creations of the state government, receiving delegated state powers. Local governments have no authority not already present in state governments, thus there is no additional need for consent. "A person does not have the constitutional right to notice, a hearing, or the right to object." The Court adds in a footnote that "plaintiffs' real complaint is with the legislature," which has increased the notice requirements for road improvement districts, but not irrigation districts.

As to the question of the validity of certain petitions, the Court rejects the argument that petitions are invalid if the signer subsequently sold the property or if the petitions were submitted after an arbitrary, non-statutory deadline. Because including the petitions in those categories brings the total over the required threshold, the Court declines to address additional issues related to other challenged petitions.

The Court finds that the formation of an LID by implied-consent (RCW 87.03.485) is not an "election" and therefore cannot violate the article I, section 19, and does not violate article 1, section 3. Justice Fairhurst wrote the Court's opinion. Justice Alexander did not participate and was replaced by Justice Pro Tem. Karen Seinfeld. (briefs and argument)

In re Parentage of M.F., No. 81043-5. In the 2005 case In re Parentage of L.B., the Court created a new status of "de facto parent," "to correct a specific statutory shortcoming." The legislature had not created a legal framework for a person who was not a biological parent, was not married to a biological parent, and was not asserting that the biological parents were unfit, but who nevertheless wanted rights as a parent, so the Court "fill[ed] this statutory gap." Today, the Court refuses to extend that doctrine.

M.F.'s natural parents divorced a few years after she was born and thereafter shared custody of her. The mother's next marriage lasted for about seven years, and her husband from that marriage here asks the courts to declare him M.F.'s de facto (third) parent. The Court declines. The majority explains that there is no need for the Court to expand its earlier invention to these facts, presumably because L.B. involved two persons of the same sex whereas this case involves three people and includes both sexes. The Court also says that its de facto parent doctrine would too easily apply to step-parent relationships.

Justice Chambers, joined by Justics Owens and Fairhurst, dissent and contest two "assumptions" of the majority: "first, that a child can have no more than two parents; second, that both of M.F.'s parents are fit." All three dissenters were members of the In re Parentage of L.B. majority, while the majority here contains the other three members of that majority and the two justices who dissented. (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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State v. McCormick, No. 81193-8. David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he "not frequent areas where minor children are known to congregate...." McCormick's community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick's first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argues that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence. The Court holds that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court's decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices. Justice Sanders dissents, asserting that "[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate." (briefs and argument)

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City of Bellevue v. Lee, et al., No. 81473-2. The nine respondents in this case each had his or her drivers license suspended after failing to pay a traffic citation fine. The Department of Licencing notified each person of the pending suspension and offered each an administrative review. This current process for license suspensions is the result of the Court's 2004 decision in City of Redmond v. Moore, where it invalidated an earlier drivers license suspension procedure for failing to satisfy due process requirements. Applying the three-pronged test from Mathews v. Eldridge, the Court today holds that Washington's current process for suspending drivers licenses does provide due process and upholds these license suspensions. Susan Owens writes the majority opinion and is joined by all of the other justices except Justice Sanders, who dissents. (briefs and argument)

In re Detention of Anderson, No. 79111-2. As a teenager, John Charles Anderson raped two two-year-old boys and a 13-year-old boy and then sexually abused his roommated in a juvenile rehabilitation center. He was voluntarily committed to Western State Hospital, where he had sexual relationships with at least eight patients; four of these patients were considered particularly vulnerable persons. Anderson decided to leave Western State and the State petitioned to commit him as a sexually violent predator. Anderson refused to use the expert witness provided to him by the state and requested a different expert, Dr. Richard Wollert. The State objected and the trial court denied Anderson's request. At the conclusion of the trial, the court ordered Anderson's commitment and Anderson appealed. He argued that the State had not proved the requisite "recent overt act" and that it wrongly denied his request for a different expert witness. The Court of Appeals sided with the state on the first of these and with Anderson on the second.

Here the Court of Appeals is upheld and the matter remanded for a new trial. Justice James Johnson writes for five members of the Court. Justice Sanders dissents and would dismiss. Justice Fairhurst, joined by Justices Chambers and Stephens, dissents. Both dissenting opinions would find insufficient evidence of a "recent overt act" to justify civil committment. (briefs and argument)

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