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

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

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

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

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

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

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In re Pers. Restraint of Martinez, No. 83219-6. Raymond Martinez filed a personal restraint petition more than a year after his conviction for first degree burglary became final, challenging the sufficiency of the evidence. His petition was earlier dismissed by the court of appeals as both untimely and successive.

When Martinez was arrested after a foot chase, he was wearing an empty knife sheath. The knife was recovered along the route of the chase and Martinez acknowledged that it was his and had been in the sheath. Conviction for first degree burglary requires proof that the defendant either committed an accompanying assault or, as prosecutors alleged in Martinez's case, was "armed" with a "deadly weapon." The burglary statute, RCW 9A.04.110(6), defines a "deadline weapon" as

any explosive or loaded or unloaded firearm, and ... any other weapon, ... which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.

The Court unanimously reverses the court of appeals, holding first that Martinez's personal restraint petition challenging the sufficiency of the evidence is properly before the Court. The Court further holds that the statute is unambiguous as it applies to this case--it requires more than simply possessing a knife. The state failed to offer any evidence at trial to indicate how Martinez used or intended to use the knife, thus the Court vacates Martinez's conviction. The Chief Justice wrote for the Court. (briefs, argument)

In re Pers. Restraint of Nichols, No. 83742-2. A drug informant provided Seattle Police with evidence that cocaine was being sold out of room 56 at a particular Travelodge hotel. Police obtained Glenn Nichols's name from the hotel register. Using a patrol car computer, they determined that Nichols's driver's license was suspended. Soon thereafter, officers witnessed Nichols drive into the Travelodge complex, arrested him for driving on a suspended license, and found drugs and police "buy" money in Nichols's possession. Nichols was convicted on drug charges. During his appeal and for the first time, Nichols alleged that the search of the hotel register violated article I, section 7, of the Washington State Constitution. The court of appeals found that Nichols waived the issue by failing to raise it at trial and dismissed the petition.

A splintered Supreme Court partly reverses the court of appeals, holding that "a petitioner can raise an article I, section 7, claim for the first time in a PRP." The Court emphasizes its divergence from federal courts on the meaning of the exclusionary rule.

We have consistently rejected the sort of balancing test that federal courts apply in applying the exclusionary rule, and we have done so because we view our exclusionary rule as "constitutionally mandated, exist[ing] primarily to vindicate personal privacy rights," rather than simply as a "judicially-created prophylactic measure designed to deter police misconduct." State v. Chenoweth (2007).

Nevertheless, the Court holds that "because the questioning of the desk clerk at the Travelodge was not random and was conducted only because the police officers had individualized suspicion ... the examination of the registry that took place shortly thereafter did not violate article I, section 7 of our state constitution." Justice Alexander, joined by Justice Charles Johnson, James Johnson, and Stephens, wrote the lead opinion. The Chief Justice concurred separately and very briefly, incorporating her dissent in State v. Jorden (2007). Justice Fairhust, joined by Justices Chambers and Owens and Justice Pro Tem. Sanders, dissents and argues that "the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement." (briefs, argument)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

City of Aberdeen v. Regan, No. 82476-2. Francis Regan was convicted of fourth degree assault in Aberdeen Municipal Court. The Court sentenced him to 365 days in jail, but suspended 360 days of the sentence in favor of placing Regan on probation for 24 months. A condition of Regan's probation required that he have no "criminal violations of law...."

During his probation, Regan was charged, tried, and acquitted for fourth degree assault and criminal trespass. The city moved to revoke his probation; Regan argued that the city was collaterally estopped by the acquittal. The municipal court revoked 5 days of Regan's suspension. He appealed and the superior court reversed; the city appealed and the Court of Appeals reversed and reinstated the ruling of the municipal court.

The Supreme Court accepted review of the case to consider whether a probation condition requiring no "criminal violations of law" requires a court

to find beyond a reasonable doubt that the defendant has committed a crime or find that the defendant has been convicted of a crime before the court may revoke the suspension?

The Court today affirms the Court of Appeals. Probation is "not a 'matter of right but is a matter of grace, privilege, or clemency granted to the deserving.'" In Regan's case, his probation included a condition that "unambiguously restrict[ed him] from engaging in conduct that is proscribed by the criminal law." Because the standard in probation hearings is "reasonable satisfaction," the acquittal (based on the higher "beyond a reasonable doubt" standard) did not estop the city from finding Regan in violation of his probation. The majority opinion is written by Justice Fairhurst and joined by four other justices.

Justice Alexander, joined by Justices Chambers and James Johnson, finds the majority's position in agreement with the Court's precedent and reluctantly concurrs.

My aversion to the result stems from my view that it is somewhat unfair for a city to seek revocation of Francis Regan's probation for noncompliance with a condition that he have "[n]o criminal violations of law" when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.

Justice Sanders dissents. He would find the language ambiguous, apply the rule of lenity, and reinstate the decision of the superior court. (briefs, argument)

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Fitzpatrick v. Okanogan County, No. 81257-8. Two couples, the Fitzpatricks and Sturgills, purchased property in 1980 along the Methow River. They built a log house and garage more than 80 feet back from the river and above the 100-year flood level. In 2002, flooding washed away the house "and a substantial amount of the real property on which it was situated."

The couples brought this action against the state and county, alleging that the flood damage was a result of the governments' improvements to a dike upriver. The couples presented evidence that the dike, which protects a state highway, irrigation projects, and private properties upriver, cut off the river from natural overflow channels. As a result, the mild 2002 flood event destroyed the couples' house and damaged their real property. The couples' complaint "contained claims for inverse condemnation, trespass, negligence, and wrongful injury or waste of property."

The trial court granted summary judgement for the governments based on the common enemy doctrine. The Court of Appeals reversed the trial court, "holding that the common enemy rule does not apply if a landowner obstructs a watercourse or natural drainway or prevents water from entering a flood channel." The Supreme Court granted review to consider "whether the owners' inverse condemnation claim may proceed ... in light of the common enemy rule."

The Court sustains the Court of Appeals and remands the case to the trial court.

Under the summary judgment standard, which requires us to view the facts and the inferences from those facts in the light most favorable to the nonmoving party (the owners), it is apparent that there is a factual issue about whether the water that caused damage to the owners' property was water that was diverted from the natural watercourse, and if so, whether liability for that damage flows from the County and State's construction of the dikes.

The Court also rejects the governments' claim that the owners have no recovery in inverse condemnation because the damage was not a necessary consequence of the dike improvements. There too, the Court finds an issue of material fact to be resolved at trial. Justice Alexander wrote for the majority and was joined by six other justices. The Chief Justice wrote a dissent, which Justice James Johnson also signed, arguing that the majority misconstrues earlier case law because it "misunderstands the nature of riparian rights...." (briefs, argument)

In re Marriage of Freeman, No. 82283-2. Rob and Robin Freemen were married when, in 1998, Robin moved for a protective order against Rob. The order was issued and subsequently made permanent, based on a physical confrontation between Rob and one of Robin's teenage children and Robin's fear of Rob's possession of firearms and his military training. The couple divorced and Rob left Washington state. In 2006, Rob moved to terminate the protective order, which was preventing him from receiving a security clearance and thus from pursuing certain job opportunities. The court commissioner denied Rob's motion, he appealed, and the Court of Appeals reversed the commissioner.

With an opinion by Justice Sanders and joined by five other justices, the Court affirms the court below and holds that the commissioner abused her discretion.

As much as it is possible to prove a negative, Rob has done so here. The likelihood that Rob will commit future acts of domestic violence on these facts is low. Hand in hand with that determination, the facts do not suggest Robin's fear of Rob is based on a reasonable threat of imminent harm.

Justice Fairhurst, joined by the Chief Justice and Justice Stephens, dissents. (briefs, argument)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

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

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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)

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Lake v. Woodcreek Homeowners Association, No. 81873-8. Woodcreek Condominiums feature units in both one- and two-story configurations. The Homeowners Association has over the years allowed some of the one-story owners to add a second story. When the Association allowed Glen Clausing to add a story to his one-story unit, his neighbor, Sandra Lake, sued both the Association and Clausing. She alleges violations of the Horizontal Property Regimes Act (HPRA) or Woodcreek's declaration (the legal  description of "the condominium properties and ... the covenants defining the property rights and legal obligations of the property owners").

Lake lost on summary judgment before the trial court, but the Court of Appeals reversed and held that the expansion of Clausing's unit encroached a common area (the air above his original unit) and thus required the unanimous consent of the condo owners. Today, the Supreme Court reverses the Court of Appeals and awards attorney fees to Clausing (the Association did not request attorney fees). The Court holds first that the HPRA does not require unanimous consent of the owners to allow part of a common area to be incorporated into a unit. It further holds that the HPRA does not require that the value of each unit stated in the declaration reflect fair market value, thus it was not necessary to amend the declaration when the size of Clausing's unit changed.

Justice Fairhurst wrote the opinion for a unanimous Court. (briefs and argument)

The Court today grants a new trial to Christopher L. Jones on a charge of second degree rape. His 17-year-old niece accused him of forcible rape. The jury failed to return a verdict in his first trial, and before his second trial Jones requested to present evidence that the act was consensual during an "alcohol- and cocaine-fueled sex party" involving several other persons. The trial court ruled that the evidence was an attack on the alleged victim's credibility and so was prohibited by Washington's rape shield statute (

). The jury convicted Jones and he appealed.

In a unanimous opinion written by Justice Owens, the Court holds that the trial court violated Jones's right to present his defense.

This is not marginally relevant evidence that a court should balance against the State's interest in excluding the evidence. Instead, it is evidence of extremely high probative value; it is Jones's entire defense. Jones's evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape. Since no State interest can possibly be compelling enough to preclude the introduction of evidence of high probative value, the trial court violated the Sixth Amendment when it barred such evidence.

The Court further holds that the rape shield statute applies only to past, not contemporary, acts and so does not apply here (though if it did, it still would not overcome Jones's Sixth Amendment rights). Because the error was not harmless, Jones must have a new trial. The Court also identifies two statements in the prosecutor's closing argument that violated Jones's Fifth Amendment rights. (briefs and argument)

• Email This
• Print
• Comments
• Trackbacks
• Share Link