State v. Hecht, No. 86078-5. The Supreme Court rules that a former judge is entitled to public assistance in his appeal after he was convicted of patronizing a prostitute.

Shortly after being elected as a Pierce County Superior Court Judge, Michael Hecht was convicted of felony harassment and patronizing a prostitute. On appeal he requested an order of indigency in order to receive public funds for his representation on appeal. The trial court denied Hecht’s motion for an order of indigency. The Supreme Court, in an unsigned opinion, holds that Hecht is “presumptively indigent” because he receives food stamp benefits, and may be entitled to some assistance on appeal. RCW 10.101.010(1)(a). The court remanded the case to the trial court for further consideration.

In re the Detention of Danforth, No. 841527. Robert Danforth is a sex offender with a history of offenses against young boys, including rape. In 2006, he went to the King County Sheriff’s Office and said that he was going to reoffend unless he was taken into custody. He said that if he was not confined he would go to a bus stop and try to have sex with boys, and also that he would go to an arcade where young boys were and “rub up against them.” He was taken into custody and committed as a sexually violent predator. This required proof that he was currently dangerous “with evidence of a recent overt act.” Overt acts can include some threats.

Danforth argues that his statements were not “threats” because his motive was to prevent harm, not cause it, and that using his statements against him would violate his free speech rights under the First Amendment. The Court of Appeals held that his statements were a threat, irrespective of motive, and rejected his First Amendment argument.

In a three-vote lead opinion, the Supreme Court affirmed the Court of Appeals. Justice James Johnson wrote: “A reasonable jury could find that Danforth committed a threat when he gave explicit descriptions of his plans to molest boys at a bus stop and have intercourse with a child at a mall video arcade. Danforth repeatedly said that he would act on his plan if not committed as a sex offender. Former RCW 71.09.030(5), as defined by former RCW 71.09.020(10), is not unconstitutionally overbroad or vague. Former RCW 71.09.030(5) satisfies our due process requirement that the State show an offender is presently dangerousness before he or she is involuntarily committed. We affirm the summary judgment here.”

Justice Tom Chambers concurred in part and dissented in part, while Justice Charles Wiggins wrote a dissenting opinion.

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

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

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

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

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

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

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

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

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

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

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

Burton v. Twin Commander Aircraft

In re PRP of Carlos John Williams, No. 84711-8. Carlos Williams, an inmate at Monroe Correctional Center, filed two civil complaints for monetary damages against the Department of Corrections, claiming cruel and unusual punishment and racial discrimination. The superior court treated both actions as postconviction challenges and referred them to the Court of Appeals for consideration as personal restraint petitions. The Court of Appeals dismissed the petitions as improperly seeking monetary relief. The Supreme Court (in a per curiam decision) reversed the Court of Appeals and ordered the trial court to treat Williams’ actions as civil complaints.

State v. Simms, No. 83826-7. Daniel Simms was convicted (among other things) of robbery, with sentence enhancement for use of a firearm. Because Simms had a previous conviction of assault with a firearm enhancement in 2000, the court doubled the firearm enhancements, adding 22 years to his sentence. Simms challenged the enhancement on appeal—specifically whether the state, in seeking a double firearm enhancement based on the prior imposition of a firearm enhancement, is required to allege in the information that the defendant has previously been sentenced to a firearm enhancement. The Court of Appeals held that the prior conviction was not essential to prove the enhancement itself, and that there is no requirement to give notice of a prior conviction “for purposes of a sentencing enhancement.” The Supreme Court unanimously upheld the Court of Appeals. Justice James Johnson wrote the decision of the court.

State v. Weaver, No. 84982-0. The Supreme Court previously granted Oliver Weaver’s petition for review of a Court of Appeals decision that had affirmed his sentence for second degree child rape and second degree rape. The Supreme Court had ordered reconsideration by the Court of Appeals in light of State v. Mendoza (2009). On reconsideration, the Court of Appeals adhered to its original decision. Weaver again appealed to the Supreme Court. The Supreme Court holds today that Mendoza entitles Weaver to relief, reverses the Court of Appeals, and remand to the superior court for further proceedings.

In 2002 the company asked the Department of Revenue for guidance on how to classify their business, and were given a letter ruling saying they fell under the favorable “periodical” classification, with a tax rate of 0.484 percent, rather than the 1.5 percent that would otherwise apply. Valpak began filing under that status and claimed a refund for past taxes. The DOR later revoked its ruling stated that Valpak falls under a higher taxation rate. Valpak sued for a full refund.

Today the Supreme Court, with Justice Jim Johnson writing the unanimous opinion, held that Val-Pak envelopes are not periodicals or magazines and that the business is taxable under the general, higher rate of RCW 82.04.290(2).

State v. Grier, No. 83452-1. Kristina Grier and Gregory Owen were drinking with several other people at Grier’s house. During the evening Owen stole several items from Grier, including three guns, and got into several fights with Grier and her son. During the last fight a gun went off, killing Owen.

The state charged Grier with second degree murder. The defense requested jury instructions on lesser offenses included in the charge of murder, such as assault, but then withdrew the request, so the jury was not instructed on those offenses. The jury convicted Grier of murder. On appeal, the Court of Appeals held that the failure to request instructions on the lesser included offenses constituted ineffective assistance of counsel, and reversed the conviction.

The Supreme Court (Chief Justice Barbara Madsen writing) unanimously ruled that Grier’s agreement in the decision to withdraw the lesser included offense instructions did not bar her from raising an ineffective assistance claim. However, the court held that defense counsel’s “all or nothing” approach was a legitimate tactic and did not rise to the level of ineffective counsel. The court vacated the Court of Appeals decision that tossed Grier’s conviction and sent the case back for further consideration.

State v. Rodriguez Ramos, No. 84891-2. The Court of Appeals remanded a case to trial court to clarify the terms of community placement. The Supreme Court held in a per curiam opinion that this vested the trial court with discretion, triggering defendant Joel Ramos’s constitutional right to be present at sentencing.

State v. Tucker, No. 84952-8. The issue here was whether the State initiated a proceeding to revoke Natasha Tucker’s deferred disposition before the juvenile court’s jurisdiction over her expired. Tucker was 14 years old when she got into an argument over an iPod and threw a rock through a friend’s living room window. Tucker was charged with residential burglary and malicious mischief. Tucker agreed to plead guilty, and she received a deferred disposition.

Tucker largely complied with the terms of supervision, but had not fully paid restitution. The court extended the deferred period for a year. Eventually, Tucker argued that the State had failed to move to revoke her deferred disposition before the deferral period ended, depriving the court of jurisdiction and requiring dismissal of the charges. The trial court ruled that an earlier report filed by the probation revocation properly initiated revocation proceedings before the end of the supervision period.

In a per curiam opinion the Supreme Court agreed with Tucker. “We disagree with the courts below that the November 7 report by Tucker’s community supervision officer properly instituted revocation proceedings against her. The report was plainly not a motion to adjudicate compliance with Tucker’s restitution obligation; it stated only that ‘should Natasha be unable to provide verification of payment of her remaining financial obligations, probation recommends that this matter be set out for revocation.’” The court vacated Tucker’s convictions and dismissed the case.

In re Discipline of King, No. 200,761-9. In July 2008, Paul King was charged with five counts of mail fraud after helping an individual fraudulently obtain benefits from the Washington State Employment Security Department. King pled guilty and was sentenced to 10 months of imprisonment, and ordered to pay $44,858 in restitution.

The Washington State Bar Association Disciplinary Board recommended disbarment, noting that King had been suspended three times previous for acts of dishonesty. King appealed to the Supreme Court, challenging the fairness of the disciplinary proceedings, arguing that disciplinary counsel should have been disqualified, and that the hearing officer failed to follow hearing rules. The Supreme Court, with Justice Debra Stephens writing the unanimous opinion, concluded that King’s disbarment was appropriate.

In re Discipline of Smith, No. 200,748-1. Attorney J. David Smith was convicted of conspiracy to commit securities and wire fraud. Rule 10.14(c) of the Rules for Enforcement of Lawyer Conduct states that the court record of an attorney’s criminal conviction is conclusive evidence of his guilt at a disciplinary proceeding. After Smith’s federal conviction, a hearing officer concluded that Smith violated several provisions of the Rules of Professional Conduct (RPC) and recommended disbarment. The Washington State Bar Association Disciplinary Board agreed.

Smith appealed, arguing that the rule unconstitutionally denied him due process. The Supreme Court, with Justice Jim Johnson writing, disagreed and disbarred Smith.

Humphrey Indus. LTD v. Clay St. Assocs. LLC, No. 82687-1. Humphrey Industries, Ltd. (through several business partners) created Clay Street Associates, LLC, to hold a single real estate asset located in Auburn, Washington. In order to break a deadlock with principal George Humphrey regarding the sale of the property, the other members of Clay Street agreed to merge the company into a new limited liability company to facilitate the sale. Humphrey dissented from the merger and demanded payment pursuant to the dissenters’ rights provisions of the Washington Limited Liability Company Act, chapter 25.15 RCW. Clay Street agreed to pay Humphrey the fair market value of his interest as of the merger date but did not pay until the property sold.

Humphrey rejected the value calculation and sued. The trial court found that the property was worth more than Clay Street had calculated, and awarded Humphrey the difference plus interest. However, the court awarded Clay Street attorneys fees, finding that the dissenting Humphrey had acted arbitrarily, vexatiously, or not in good faith. The Court of Appeals (Div. I) affirmed.

The Supreme Court (Justice Jim Johnson writing) reversed the Court of Appeals and remanded for reconsideration of the attorney fee award. The court held that the lower courts erred in finding that Clay Street “substantially complied” with the LLCA.

In re Custody of S.C.D.-L., No. 84186-1. In a per curiam decision, the Supreme Court reversed a trial court’s order awarding custody of S.C.D-L. to her grandmother, Edna Littell. The court wrote that Ms. Littell failed to allege or offer facts at the show cause hearing conducted under RCW 26.10.030 that S.C.D-L. was not in the physical custody of one of her parents or that neither parent was a suitable custodian.

“A nonparent may petition for custody of a child if the child is not in the physical custody of a parent or if the petitioner alleges that neither parent is a suitable custodian. RCW 26.10.030(1). The trial court must deny a hearing on the petition unless the nonparent submits an affidavit (1) declaring that the child is not in the physical custody of one of the child’s parents or that neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. S.C.D-L. was in [her father] Mr. Littell’s physical custody at the time Ms. Littell filed her petition, and the petition
does not allege that he is an unfit parent. Instead, the petition implies it would be in the child’s best interest to reside with Ms. Littell, but the ‘best interests of the child’ standard does not apply to nonparent custody actions."

State v. Patel, No. 82649-8. The Supreme Court upheld a conviction for attempted child rape where the “victim” was actually a police officer posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of second degree attempted rape of a child. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The trial court and Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

The Supreme Court (Justice Tom Chambers writing the four-vote lead opinion) agreed, holding that “a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police.” The court reasoned that unlike convictions for actual child rape, which require a showing that the child was underage, attempt crimes do not depend on the ultimate harm that would have resulted from commission of the crime. Rather, the person is guilty of an attempt “if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020(1).

Chief Justice Madsen and Justice Richard Sanders wrote separate concurring opinions.

Guillen v. Contreras, No. 82531-9. Jesus Jaime Torres was killed in a mysterious shootout in Sunyside, Washington, in 2005. From the bloody scene, police seized $57,990 "packaged to resemble a kilogram of cocaine" and Torres's car. They seized another $9,342 that was in Torres's possession when he was shot. Torres's infant son, through his mother, challenged the property seizures. The superior court overturned the seizures of the car and the $9,342. The family moved for attorney fees. The superior court, relying on "substantially prevailing party" analysis, declined to award fees. A divided Court of Appeals affirmed.

The Supreme Court today considers only "the meaning of the attorney fee provision of the forfeiture statute." The Court adopts the reasoning from the dissenting opinion by Chief Judge John Schultheis of the Court of Appeals and quotes from his opinion.

"[T]his forfeiture statute recognizes the success of only one party -- the claimant. What the seizing agency retains is not relevant. It will never be a substantially prevailing party or prevailing party under RCW 69.50.505(6)." Thus, he suggests, quantitative comparison is inappropriate as we are not balancing the comparative success of two parties with an equal statutory interest in attorney fees. We agree. This is an attorney fee provision designed to protect individuals against having their property wrongfully taken by the State. A bare mathematical approach is not appropriate. (citation removed; hyperlink inserted)

The case is remanded to the trial court to determine "the amount of attorney fees reasonably incurred by the respondents" for their successful claims. Justice Chambers wrote for the Court and was joined by seven other justices. Justice Sanders dissents because he believes the statute requires a recovery of all attorney fees rather than only those related to the successful claims. (briefs, argument)

Holden v. Farmers Ins. Co. of Wash., No. 81487-2.  A fire in Laura Holden's rented home damaged and destroyed some of her possessions. Her rental insurance carrier, Farmers Insurance, sent her a check for the "cost of repair and replacement," but did not include Washington state sales tax in its calculations. Holden eventually brought this suit, "seeking a declaration that sales tax should be accounted for in the [actual cash value] calculation...." The Court today holds for Holden, finding the term "fair market value" as used in the insurance policy to be ambiguous. The Court thus interprets the term in favor of the insured. Justice Stephens writes for the majority, joined by five other justices. Justice James Johnson dissents, contending that "fair market value" is not ambiguous and does not include "a (theoretical) sales tax...." His opinion is joined by Justices Alexander and Owens. (briefs, argument)

In re Det. of Hawkins, No. 82907-1. As part of proceedings to determine whether Jake Hawkins is a sexually violent predator according to RCW 71.09, the trial court ordered Hawkins to submit to a polygraph examination. Hawkins refused and appealed; the Court of Appeals affirmed the trial court. The Supreme Court accepted review to determine whether RCW 71.09.040(4) allows such an order.

The Supreme Court today reverses the lower courts, holding that the order requiring a polygraph examination was not permitted by the statute.

Because the legislature is undoubtedly aware of the inherent problems with polygraph examinations, it is fair to infer that the legislature intends to prohibit compulsory polygraph examinations unless it expressly allows for their use. ...

We are satisfied that professional evaluators will be able to reach conclusions without the use of such evidence.

Justice Owens writes for the six-member majority. Justice Stephens, joined by the Chief Justice and Justice Fairhurst, disagree with the majority's interpretation of legislative intent and dissent. (briefs, argument)

In re Disciplinary Proceeding Against Scannell, No. 200,744-9. The Washington State Bar Association (WSBA) initiated an investigation of attorney John Scannell for conflicts of interest and assisting a suspended attorney to practice law. Scannell repeatedly and frivolously delayed the investigation, drawing it out from 2005 until today. The WSBA hearing officer found that Scannell had "negligently violated the conflict of interest rules--meriting minor sanctions--but that he had knowingly violated the rules requiring cooperation with disciplinary proceedings--meriting suspension." The disciplinary rule modified those findings, determining that Scannell's actions during the investigation were intentional and thus increasing the presumptive sanction to disbarment. The Board voted to disbar Scannell.

The Supreme Court today, in an opinion by Justice Stephens, exhaustively reviews the facts of the investigation and upholds the decision of the board. Three justices dissent, arguing in an opinion by Justice Alexander that the hearing officer's recommendation of suspension was the appropriate sanction. (briefs, argument)

In re Disciplinary Proceeding Against Shepard, No. 200,720-1.  Tacoma attorney Richard Shepard was found to have violated several Rules of Professional Conduct when he assisted a "living trust mill" that targeted seniors with unnecessary or improper financial products. The hearing officer recomended a six-month suspension, but the disciplinary board increased the recommendation to a two-year suspension. The Court today agrees with the board and suspends Shepard for two years. Justice Chambers writes for an almost-unanimous court. Justice Sanders dissents and would suspend Shepard for six months. (briefs, argument)

State v. Ervin, No. 83244-7.  James Ervin was convicted in 2006 of felony violation of a protective order. This appeal considers whether two earlier felony convictions should count toward Ervin's offender score at his sentencing. According to RCW 9.94A.525(2)(c), the two earlier felony convictions "washed out" if Ervin had subsequently been at least "five consecutive years in the community without committing any crime that subsequently results in a conviction." During a five year period, Ervin had not been convicted of any crimes but did spend 17 days in jail for violating probation. The State argued that the 17 days in jail restarted the five-year window. Ervin disagreed, arguing that only a conviction would reset the five years. While the Court finds the RCW somewhat ambiguous, it finds Ervin's reading more convincing. The lower courts are reversed and the case is remanded for resentencing with the lower offender score. The decision was unanimous, and Justice Owens wrote the opinion. (briefs, argument)

State v. Sanchez Valencia, No. 82731-1. Isidro Sanchez Valencia and Eduardo Chavez Sanchez were convicted of drug charges. Their sentences included community custody on the condition that they not use "items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances." They appeal that provision as unconstitutionally vague, and the Court today unanimously agrees with the defendants. Justice Stephens wrote the Court's opinion. Justice James Johnson signed that opinion and added a concurrence pointing out that a simple change in language would allow a similar condition to stand. (briefs, argument)

The Court, in an opinion by Justice James Johnson and joined by seven other justices, holds that the plain language of the statute and the clear intent of the legislature is to criminalize all violations of a no-contact order. Justice Sanders dissents. (briefs, argument)

State v. Kintz, No. 81688-3. Clarence Kintz was convicted of two charges of misdemeanor stalking and appealed, challenging the trial court's interpretation of the statutory phrase "separate occasions" and the sufficiency of the evidence. In two incidents, one in December 2005 and the other in January 2006, Kintz frightened women by repeatedly and slowly driving past them and, in the latter case, offering the woman a ride and money. Both women called 911 and Kintz, who admitted some of the details of each incident, was eventually charged.

Kintz argues that "separate occasions" is ambiguous and that the Court should apply the rule of lenity to find that separate occasions must happen over a greater length of time than in these incidents. The Court of Appeals upheld the convictions and the Supreme Court sustains that decision, agreeing with the lower court that the plain meaning of "separate occasions" is "a distinct, individual, noncontinuous occurrence or incident." The Court also finds sufficient evidence to support the convictions. Justice Alexander authored the opinion for a majority of seven.

Justice Sanders dissents and would hold that the events leading to each of these stalking charges should be considered a single occasion, rather than "separate occasions," and thus do not meet the statutory definition of stalking. For related reasons, he would also find insufficient evidence to sustain the convictions. Justice Chambers dissents separately in order to agree with Justice Sanders only as to the ambiguity in the term "separate occasions." (briefs, argument)

State v. Meneses, No. 83172-6. Andre Toi Meneses fathered a child by his then-girlfriend Jamila Willis. After they broke up, the child remained with Willis. Meneses began repeatedly calling Willis and leaving voice mail messages for her using "incredibly vile language, including racial slurs and descriptive obscenities," and threatening to kill Willis, her new boyfriend, and the new couple's infant. Willis eventually called the police, who recorded ten messages left by Meneses that became the basis for ten charges against him: four counts of felony telephone harassment, four counts of gross misdemeanor telephone harassment, and two counts of intimidating a witness. He was convicted by a jury on all counts.

The Court of Appeals sustained the convictions. The Supreme Court considered three issues raised by Meneses. First, the jury instruction on telephone harassment did not fail to specify that the criminal intent must have been formed before the call was placed. The instruction used the statutory language, and the Court has previously held that the meaning of the statute is clear on its face. Second, it did not violate double jeopardy for a count of telephone harassment and a count of intimidating a witness to arise from the same message because "each [conviction] required proof of a fact the other did not." Finally, because [n]o affirmative evidence supported the idea that Meneses committed witness tampering but not intimidating a witness," the trial court was not obligated to instruct the jury on the lesser included offense.

The Court, with an opinion by Justice Stephens, unanimously upholds the courts below. (briefs, argument)

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.

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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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.

Before he was on the court, Johnson was a skilled lawyer, highly visible, helping to write initiatives and battling for them in court. He was an ally of anti-tax crusader Tim Eyman and the Washington State Grange. Now as then, his reading of the constitutions reveals strong recognition of private property rights, open government and the First Amendment.

We never expect to agree with every opinion handed down by any Supreme Court justice, but we appreciate the guidance such decisions provide for elected legislators whose proper job it is to enact laws that can survive judicial inspection.

In his six years on the job, Johnson has won the trust of fellow justices Tom Chambers, Susan Owens, Charles Johnson and Gerry Alexander – all now endorsing him from their positions to his political left. Republican Attorney General Rob McKenna and Democratic state Auditor Brian Sontag, both strong defenders of the state’s open public records law, have endorsed him, too.

Johnson has also been endorsed by The News Tribune.

The Court today first addresses the standard necessary to grant a motion to dismiss for failure to state a claim. While federal courts have recently made it more difficult for plaintiffs to survive motions to dismiss, the State Supreme Court refuses to follow that course here. The majority notes that "[t]he appropriate forum for revising the Washington rules is the rule-making process."

The Court holds that the McCurry's state contract law claims, including the unjust enrichment claim, are not preempted by federal lending laws or regulations.

State contract law does not purport to impose requirements on loan-related fees; state contract law instead requires parties to adhere to the terms of their contracts. Forcing Chevy Chase to adhere to the terms of its contract only incidentally affects the loan-related fees....

The Court further holds that the Consumer Protection Act claim survives to the extent that it relates to misrepresentation of the contract terms, but that it is preempted if the allegation is that the Act "regulates how or when fax or notary fees (loan-related fees) can be charged...."

The majority opinion is written by Justice Sanders and joined by five other justices. It strongly takes to task the dissent, authored by Justice James Johnson and joined by Justices Charles Johnson and Susan Owens, alleging that "the dissent's novel interpretation of preemption would prevent Washington consumers from enforcing contracts against federal savings associations."  (briefs and argument)

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)

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.

In Re Discipline of Paul H. King, No. 200,681-7 (briefs). The Supreme Court adopted a Disciplinary Board recommendation to disbar Paul H. King for violating the Rules of Professional Conduct by representing a client while suspended from the practice of law. Justice James Johnson wrote the opinion, while Justice Richard Sanders concurred separately.

In re the Welfare of A.B., No. 80759-1 (briefs and argument). The Supreme Court overturned a trial court decision to terminate the parent-child relationship between Rogelio Salas and his daughter, A.B. The child was born in 2001 with cocaine in her system. The Department of Social Health Services (DSHS) removed A.B. from the custody of the mother and placed her in a foster home. The mother’s parental rights were terminated and the child was eventually placed in a home with a distant cousin of the mother. Having never been married to the mother, Salas was living in Las Vegas when A.B. was born. His paternity was confirmed but because of his own substance abuse history he was only granted visitation rights. He later completed a recovery program. The State eventually filed a petition for termination of parental rights which a trial court granted, though the court never entered a finding that Salas was an unfit parent.

The Supreme Court today rules that a parent has a due process right not to have the State terminate his or her relationship with a natural child in the absence of a finding that he or she, at the time of trial, is currently unfit to parent the child. The Court directed the trial court to supervise the “prompt but orderly” transfer of A.B. to Salas’ home unless the parties agree otherwise. The majority was written by Judge J. Dean Morgan, who served as justice pro tempore. Chief Justice Barbara Madsen concurred separately.

Justice Tom Chambers wrote a strong dissent. “The court’s order today also confounds me. A.B. is living with her family. She has been raised by her mother’s cousin almost since birth. Her mother’s cousin has also adopted A.B.’s younger half brother, who has lived with his eldest sister his entire life. The ‘prompt but orderly transfer’ ordered by the court today will wrench this child out of the only home she has ever known and deprive a brother of his sister. Even if the trial judge did err by following this court’s well settled case law, the proper remedy would be remand for further proceedings.”

(Parenthetically, I am surprised at the delay between oral argument and this decision. The case was argued on June 24, 2008. Given the profound impact this decision will have on a child's life, a two-year delay is an inordinate amount of time.)

State v. Nason, No. 82333-2 (briefs and argument). Spokane County has a policy of imposing jail time on offenders who fail to pay court costs. James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. Nason argues this “auto-jail” provision violated his due process rights. The Supreme Court unanimously agreed, with Justice Mary Fairhurst writing the opinion. The Court held that before sanctions are imposed on an offender for failure to pay a legal financial obligation, the trial court must inquire into the offender’s ability to pay when sanctions are sought. “To the extent that an auto-jail provision calls for incarceration without a contemporaneous inquiry into the offender’s ability to pay, it is void. Because the trial court in this case sentenced Nason to 30 days in jail for failure to report to jail under the auto-jail provision, Nason needs to be resentenced.”