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The court issued rulings in three cases today. Here is a brief summary of each case:

In Re the Honorable Judith Raub Eiler, No. 200,701-5. Judge Judith Eiler is a district court judge in King County. Based on a number of complaints, disciplinary proceedings were brought against her for treating litigants in an “angry, abusive, and condescending manner.” Eiler argues that there was not enough evidence, that the penalty is too high, and that punishing her for her demeanor violates her freedom of speech. Eiler appeals a disciplinary recommendation that she be suspended for 90 days without pay. The Supreme Court, with Justice Jim Johnson writing the lead opinion, found that Judge Eiler’s behavior only violated the judicial cannon requiring that a judge be “patient, dignified, and courteous.” The court reduced her suspension to a 5-day period.

Kelley v. Centennial Contractors, No. 82474-6. Phillip and Monica Blackshear sued Centennial Contractors Enterprises for injuries caused when a steel beam was dropped on Phillip. After they won the suit, they filed a complaint for loss of consortium on behalf of their three children. The complaint stated that it would have been impractical to include their claims with their parents’ suit. George Kelly was appointed guardian ad litem for the children. At trial, the children’s case was dismissed because the court said their claims should have been joined with their parents’ claims. The Court of Appeals (Div. 2) reversed, holding that since the children did not yet have a guardian ad litem it would have been impossible to join them to the suit, and that it would have been impractical for them to bring their claims until the results of their father’s surgery were known. The Supreme Court, with Justice Gerry Alexander writing the lead opinion, agreed, holding that there were general issues of material fact that precluded a summary dismissal of the claim.

State v. Tibbles, No. 80308-1. Micah Tibbles appealed his misdemeanor convictions for possession of marijuana and drug paraphernalia. During a traffic stop of Tibbles, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’ car. The trooper did not arrest Tibbles or seek a warrant, but conducted an warrantless search of the car, whereupon he discovered marijuana and drug paraphernalia. The district court, superior court, and Court of Appeals all upheld the search under the “exigent circumstances” exception to the warrant requirement, which allows law enforcement officers to conduct warrantless searches when obtaining a warrant is not practical because the delay would compromise officer safety, facilitate escape, or allow destruction of evidence. Justice Debra Stephens, writing for the Supreme Court, said that the exigent circumstances exception would not apply in this case and that the search of Tibbles’ vehicle was unconstitutional under article I, section 7 of the Washington Constitution.

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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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The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.

Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.

On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.

One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote. 

Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court. 

Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.

UPDATE: Additional thoughts on the case over at OG-Blog.

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In re Custody of E.A.T.W. and E.Y.W., No. 81945-9. Was the superior court right to grant a hearing for a custody petition based only on the fact that the children had lived with the petitioning grandparents for several years? The Court of Appeals had overturned the superior court, and the Supreme Court today upholds the Court of Appeals. The High Court holds that RCW 26.10.032 imposes on third party petitioners the duty of setting forth facts that would show “that the parent is unfit or placement with the parent would result in actual detriment to the child's growth and development.”

The unanimous opinion, written by Justice James Johnson, goes on to hold that this standard is in accord with the U.S. Supreme Court’s decision in Troxel v. Granville.

In Troxel, the United States Supreme Court affirmed this court's judgment in In re Custody of Smith that constitutionally protected parental rights were violated by a statute allowing a nonparent to wrest custody of a child from a parent based solely on the court's findings regarding the child's best interests. Something more is required than the court's judgment that it could make a better decision than parents concerning the upbringing of children.

(Briefs, Argument-May 28, 2009)

State v. Sibert, No. 79509-6. Richard Sibert was convicted by a jury in 2004 of four crimes related to the sale of methamphetamine. The Court of Appeals affirmed the lower court, and Sibert appeals on three alleged errs:  1) failure of the trial court to include the identity of the “controlled substance” on part of the jury instructions; 2) failure to prove the identity of the controlled substance; 3) an inappropriate jury instruction on “knowledge.”

Today the Court upholds Sibert’s conviction and sentencing. It finds that throughout the trial, everyone involved understood that the controlled substance was methamphetamine. Further, the jury instructions incorporated by reference the charging documents that identified the substance as methamphetamine. It also upholds the instruction on “knowledge,” which the trial court took directly from the Washington Practice.

Justice James Johnson also wrote this majority opinion, but Justices Sanders and Alexander both authored dissents, the latter joined by Justices Charles Johnson and Debra Stephens. The Chief concurred with the majority, but as to the result only. The four dissenting justices would hold prosecutors to a higher standard, in this case requiring a more explicit and precise description of the controlled substance.

(Briefs, Argument-February 10, 2009)

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Today the Supreme Court released three decisions.

State v. A.N.J., No. 81236-5. In 2004, when Defendant A.N.J. was 12 years old, he pleaded guilty to first degree child molestation. Shortly thereafter, after realizing the consequences of his juvenile sex offense criminal history, he attempted to withdraw his guilty plea. A.N.J. contends his court appointed counsel was ineffective and as a result his plea was not knowing, voluntary and intelligent. According to testimony, the defending attorney spent something between 35 to 90 minutes total with A.N.J. before the plea hearing, did not adequately explain the consequences of the plea, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts. The Supreme Court, with Justice Tom Chambers writing the opinion, agreed that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced. The Court remanded to the trial court with directions to allow A.N.J. to withdraw his plea. Justices Sanders and James Johnson each wrote separate concurring opinions.

State v. Gamble, No. 80131-2. The Supreme Court, with Chief Justice Madsen writing the 8-1 majority opinion, concluded that the mandatory joinder rule does not bar the homicide charges brought against the defendants. In four consolidated appeals, each of the defendants was originally convicted of second degree felony murder with assault as the underlying felony. After their convictions, the Supreme Court held in another case (Andress) that a conviction of second degree felony murder could not be based on assault as the predicate felony. Each of the defendants challenged their convictions, which were vacated. The defendants were then retried on new charges. Each contended that under the mandatory joinder rule the new charges would have to have been joined with the original second degree felony murder charge. The trial courts each ruled that the Andress decision was an extraordinary, unforeseeable event, and the “ends of justice” exception to the mandatory joinder rule applied. The Supreme Court agrees today. Justice Richard Sanders dissented.

State v. Mandanas, No. 80441-9. May a sentencing court impose multiple firearm enhancements when the defendant's underlying crimes constitute the same criminal conduct? Bayani John Mandanas was convicted of felony assault and felony harassment, both while armed with a firearm. The trial court ruled that the offenses were not the same criminal conduct for purposes of sentencing, and that the firearm enhancements were to run consecutively. The Court of Appeals agreed in part, but held that the offenses were the same criminal conduct and that the enhancements were to run consecutively. Mandanas argues that multiple enhancements for the same conduct should not be imposed. Reviewing the sentencing statute (RCW 9.94A.589), the Supreme Court (Justice Alexander writing) says “a sentencing court must impose multiple firearm enhancements where a defendant is convicted of multiple enhancement-eligible offenses that amount to the same criminal conduct under the sentencing statute.”

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Satomi Owners Ass'n v. Satomi, LLC, No. 80480-0 (consolidated with Blakely Commons Condominium Ass'n v. Blakely Commons, LLC, No. 80584-9 and The Pier at Leschi Condominium Owners Ass'n v. Leschi Corp., No. 81083-4). The issue common to these consolidated cases is "whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, preempts the judicial enforcement provision of the Washington Condominium Act (WCA), RCW 64.34.100(2)." The FAA is a federal law that requires federal and state courts to enforce arbitration agreements. The WCA is a state law that allows judicial review notwithstanding any "alternative methods of dispute resolution," including arbitration.

Each case began in 2005 or 2006 as a lawsuit by a condominium owners association alleging various construction defects and related claims. Most or all of the owners in each case had signed a warranty addendum containing an arbitration clause (either requiring arbitration for any construction defect claims or giving the seller the option of requiring arbitration).

In Satomi, the trial court quashed Satomi, LLC's motion to enforce the warranty addendum and compel arbitration, holding that (1) the FAA does not preempt the WCA, (2) all parties did not sign the warranty addendum, and (3) Satomi Association was not bound by the addendum. Satomi, LLC appealed, but then the parties settled. Nevertheless, the Court of Appeals denied Satomi Association's motion to terminate review and decided the case. The Court of Appeals upheld the trial court's preemption ruling, but reversed as to the non-WCA claims (thus requiring arbitration of those claims). Satomi, LLC appealed the preemption ruling to the State Supreme Court. The Blakely and Leschi cases were subsequently consolidated with Satomi.

While recognizing the mootness of Satomi, the Court here "choose[s] to review the preemption question" because "it is one of 'continuing and substantial public interest.'" The Court reviews de novo both a trial court's decision to compel or deny arbitration and its determination of whether a state statute is preempted by federal law.

The FAA "simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms" (Volt Info. Scis., Inc. v. Bd. of Trustees). It's scope extends to "the full reach of the Commerce Clause." Here, the questions are whether the sale and warranting of the condominiums were transactions reached by the Commerce Clause and, if so, whether the WCA conflicts with the FAA and is therefore preempted in these three cases.

The State Supreme Court holds, per Katzenbach v. McClung and Beneficial National Bank v. Anderson, "that the commerce clause necessarily reaches the warranting and sale of the condominiums in Satomi because 'such goods' [that came from out of state] amount to more than 70 percent of the component parts." Because the WCA would interfere with the arbitration agreements in these cases, it is preempted by the FAA. The Court upholds the Court of Appeals that the arbitration agreements signed by condominium purchasers applies to Blakeley Association because it only asserts claims on behalf of those purchasers. The Court finds that Blakeley Association has failed to prove that the arbitration clauses were either procedural or substantive unconscionable. The Court declines to decide a number of factual and other issues, and remands Blakeley and Leschi to the trial courts.

The Chief Justice wrote the majority opinion, joined by five other justices. Justice Chambers, joined by Justices Charles Johnson and Richard Sanders, dissents with a strong argument for federalism.

The majority incorrectly frames the issue, answers the wrong question, and ignores the nature of the homeowners' claims. The issue before us is whether a claim for breach of implied warranty, established by Washington statute after consultation with the stakeholders, imposed on Washington state builders, to protect condominium purchasers in Washington State, is preempted by federal laws because some of the materials used in building condominiums came from across the border. The answer is no....

(briefs, argument)

After the jump, search incident to arrest (State v. Buelna Valdez) and attorney discipline (In re Disciplinary Proceeding Against Sanai).

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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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Justice Debra ("Gangsta") Stephens and Chief Justice Gerry ("Big Dawg") Alexander at the court's annual Halloween party.

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Today Justice Barbara Madsen was elected by her colleagues to be Washington's next Chief Justice, according to the Seattle PI and the Associated Press.

Madsen, who before becoming a judge served as both a public defender and a prosecutor, will become Chief in January. She will replace Chief Justice Gerry Alexander, who decided to step down from the position prior to his mandated retirement from the bench at the end of 2011. He will turn 75 that year, the mandatory retirement age for Washington Judges, as we discussed with him in our most recent podcast.

UPDATE: Here is the Court's press release.

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This episode we cover the month’s noteworthy cases and Chief Justice Gerry Alexander joins us to reflect on his nine year tenure as chief.

Supreme Court of Washington Podcast (RSS) - Interview with Chief Justice Alexander.

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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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Chief Justice Gerry Alexander is stepping down from the role he has held for nine years, opening the way for a new chief to be selected. (His long and distinguished legal career is detailed here.)

Alexander says he'll use his remaining time on the bench to assist the new chief, in addition to continuing to perform his duties as an associate justice of the court. This move will allow for a seamless transition when Alexander retires from the bench in 2011 when he reaches mandatory retirement age. 

The Supreme Court Administrative Rules describe the process for selecting a new chief. The justices will meet in November and make verbal nominations. The justices will then vote by secret ballot and the individual who receives a majority of votes will begin his or her four-term as chief the following January.

No word on who will replace Alexander, though Justice Charles Johnson already holds the position of associate chief justice -- a role that goes to the justice who has served on the court the longest. Justice Johnson is well-respected, a constitutional scholar, and is already deeply involved in the court's administrative functions, so it wouldn't be a surprise to see him selected.

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King5 is reporting that Chief Justice Gerry Alexander will step down from his leadership seat in 2010, serving out his term as an Associate Justice (his term ends in 2011). The story quotes Alexander as saying: 

“It has been an incredible privilege and an honor to serve as the state’s Chief Justice for the past nine years,” said Alexander. “I am immensely proud of our Court, and I feel this is the perfect time to turn this position over to one of my able colleagues.”

His replacement will be chosen by the other Justices later this fall.

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Retired Supreme Court Justice Sandra Day O'Connor recently spoke at Seattle University Law School, and she had some advice for Washingtonians. As the AP reports: "The first woman to serve on the U.S. Supreme Court says there's a serious problem with the government in Washington and many other states: They elect their judges." Justice O'Connor says judicial independence is threatened with the amount of money that is poured into judicial races. She questioned whether cases such as Brown v. Board of Education would have had the same ruling if those justices had to face an upcoming election.

Interestingly, Washington State Supreme Court Chief Justice Gerry Alexander, who won a hotly-contested reelection in 2006, disagreed. He said that while the process is not perfect, it has worked well in the past. Alexander said it is beneficial ("humbling") for judges to go through an election.

UPDATE: And speaking of judicial elections...the topic will be discussed today on The Conversation (KUOW 94.9 FM) at noon.

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Shafer v. Dep’t of Labor & Indus., No. 81049-4. Kelly Shafer injured her back in 1998 while lifting a beer keg at the bowling alley where she worked. Shafer was eventually treated by Dr. Elizabeth Cook, and CAT scans revealed that Shafer had sustained broken bones in her vertebrae and a pinched nerve. Dr. Cook applied to the Department of Labor & Industries for reimbursement of the treatment costs. In July 2000, the Department arranged for an independent examination of Shafer, and the examiner determined Shafer could return to work. The final closing order issued by the Department awarded Shafer a permanent partial disability award of $6,773. A copy of the order was sent to Shafer but not Dr. Cook.

Three years later Shafer returned to Dr. Cook because of dehibilitating pain in her back. Dr. Cook determined Shafer's condition had worsened, and asked the Department to reopen Shafer's claim. The Department refused. Shafter then appealed to the Board of Industrial Insurance Appeals, arguing that her initial claim was never closed because Dr. Cook had not received a copy of the closing order. Dr. Cook stated that if she had received the order she would have appealed it because she believed Shafer needed additional treatment. The Board determined the claim had been terminated as the closing order had been communicated to Shafer. On appeal, the Court of Appeals reversed this determination, ruling that the revised closing order had not become final because it was not received by Dr. Cook.

The Supreme Court unanimously agreed, with Chief Justice Gerry Alexander writing the opinion. The court held that the Industrial Insurance Act requires that attending physicians receive closure orders, and that Shafer's claim would not close until 60 days after all affected parties received the order.

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State v. Knippling, No. 80848-1.  The issue is whether a juvenile conviction for second degree robbery qualified as a “strike” under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). Writing for a unanimous court, Chief Justice Gerry Alexander concluded that the State has not met its burden of showing that Tucero Knippling is a persistent offender under the POAA.

Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed.

The 1999 judgment and sentence indicated on its face that Knippling was 16 years of age at the time of the conviction. According to the record, Knippling was in superior court because the State had initially charged him with first degree robbery, a crime over which the superior court has automatic jurisdiction. Although plea negotiations resulted in the first degree robbery charge being reduced to second degree robbery, a crime over which the juvenile court had exclusive jurisdiction, there had been no remand to juvenile court.

In order to establish Knippling's third strike, the State had to prove that Knippling was convicted as an offender on two prior and separate occasions. In persistent offender proceedings under the POAA, the State bears the burden of proving by a preponderance of the evidence the existence of prior convictions, whether used for determining an offender score or as predicate strike offenses for purposes of the POAA.

The Supreme Court said the State did not meet its burden of showing that Knippling was convicted as an "offender" in 1999 because there was no evidence in the record that the superior court had jurisdiction over Knippling. “This is critical because, as we noted above, to classify Knippling as an ‘offender,’ the State had to show that Knippling was convicted of an automatic decline charge or that the juvenile court declined jurisdiction. The State has shown neither.”

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A bill introduced today in the Washington Legislature would increase court filing fees and attorney licensing fees. HB 2362 would add a surcharge to the fees already collected by county clerks. The fee increase would include: 

• $50 for filing civil actions and other matters with the county clerk
• $93 for filing an unlawful detainer action
• $200 for filing a notice of appeal or notice of discretionary review

In a hearing this morning, Chief Justice Gerry Alexander urged a House committee to reject the fee increases.

The bill also asks the state Supreme Court to authorize increases in attorneys' licensing fees in order to support the operation of the state law library.

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