Justice Fairhurst treated for lung cancer
The Associated Press has this story about Justice Mary Fairhurst fighting lung cancer while still maintaining a full schedule on the bench. Our thoughts and prayers are with her.
Last week's opinions
The Supreme Court issued several opinions last week, but my schedule (not to mention the weather) prevented a timely write-up. Here are summaries of the cases.
Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hearings Bd., No. 84501-8. Advocates for Responsible Development, a nonprofit organization, challenged land use ordinances adopted by Mason County. The Court of Appeals held that the association’s president, John Diehl, did not have standing to appeal the ordinances to the Western Washington Growth Management Hearings Board and that as a nonattorney he could not represent the association before the courts. The Court of Appeals also awarded attorney fees against Diehl as a sanction for filing a frivolous appeal. The Supreme Court reversed the award of attorney fees, finding that the appeal was not “so totally devoid of merit as to be frivolous.”
In re Pers. Restraint of Adolph, No. 82868-7. In 2003 Vincent Adolph was driving under the influence of alcohol and struck the vehicle of Loretta Aguilar, killing Aguilar and injuring her passenger. Adolph was charged and convicted of vehicular homicide and vehicular assault. In vehicular homicide convictions involving alcohol, the law imposes two-year sentence enhancements for each prior DUI conviction (RCW 46.61.520(2)). The State presented evidence that Adolph had three prior DUIs. Two Okanogan County DUI convictions were supported by a certified docket. Adolph objected to the sufficiency of the record for the third DUI conviction from, which was supported by a certified copy of Adolph’s Department of Licensing (DOL) driving record abstract and a copy of a defendant case history from the District and Municipal Court Information System. The trial court concluded the State had met its burden and imposed three two-year sentence enhancements.
The Supreme Court (Justice Mary Fairhurst writing) held that Adolph’s personal restraint petition (PRP) was not procedurally barred and was properly before the court, but the Court determined that sufficient evidence supported the Lincoln County DUI conviction. Justice Richard Sanders dissented.
In re Pers. Restraint of Francis, No. 82619-6. The Supreme Court (Justice Richard Sanders writing) ruled that double jeopardy protections were violated in the prosecution of Shawn Francis. Francis pleaded guilty to felony murder of Jason Lucas, first degree attempted robbery of D’Ann Jacobsen, and the second degree assault of D’Ann Jacobsen, all arising from the same set of events. The State, however, relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes. The Court held that multiple convictions for the same offense violates double jeopardy. The Court vacated second degree assault charge and remanded for resentencing.
Seattle Times Co. v. Serko, No. 84691-0. The Seattle Times sought a writ of mandamus vacating two trial court orders—one that exempted documents gathered during a criminal investigation from production under the Public Records Act, and one that sealed trial exhibits in a subsequent hearing.
After the 2009 tragedy where Maurice Clemmons shot and killed four Lakewood police officers, the Seattle Times filed several public records requests seeking documents. The State filed charges against seven alleged accomplices of Maurice Clemmons. Several of these defendants sought to prohibit the Pierce County Sheriff’s Office from producing any documents in response to the Times’ request. Judge Susan Serko ruled that the rights of the accused to a fair trial would be compromised by the release of the records.
The Supreme Court unanimously held that a writ of mandamus, while an extraordinary remedy, would be appropriate in this case. The Court (Justice Debra Stephens writing) held that a “categorical” denial of records is not appropriate and that any nondisclosure requires a record-by-record analysis.
State v. Hirschfelder, No. 82744-3. Matthew Hirschfelder was a choir teacher at Hoquiam High School. He had sexual intercourse in his office with a student in 2006. Hirschfelder was 33 and the student was 18. Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).
Hirschfelder filed a motion to dismiss the charge. He argued the law criminalized sexual intercourse with “minors,” and that he had committed no crime as he had intercourse with an 18-year-old. He also argued the statute was unconstitutionally vague and violated equal protection. The trial judge denied the motion but allowed the case to go up on appeal. The Court of Appeals agreed with Hirschfelder, holding that the statute was ambiguous and that the legislature only meant to prohibit sexual intercourse between school employees and students who were 16 or 17.
Before the Supreme Court, Hirschfelder argued that the statute, entitled “[s]exual misconduct with a minor in the first degree,” was not intended to criminalize sexual intercourse between school employees and registered students age 18 or older because of the statute’s use of the term “minor.”
The Supreme Court (Justice Debra Stephens writing) disagreed. “In the end, a common sense reading of former RCW 9A.44.093(1)(b) must prevail. We hold that the former statute’s plain language unambiguously defines minor as a registered student and thus includes students up to the age of 21.” The court remanded the case to trial court for further proceedings. Justice Charles Johnson wrote a dissenting opinion.
Today's opinions - Nov. 4, 2010
Affiliated FM Insurance Company v. LTK Consulting Services, No. 82738-9. Affiliated FM provides insurance for the Seattle Monorail Services (SMS), which operates the monorail under an agreement with the monorail’s owner, the City of Seattle. In May 2004 a fire broke out under a Blue Line train, allegedly caused by an electrical short that occurred because of improper wiring performed by LTK Consulting in 2002. Affiliated sued LTK for negligence.
This case originated in King County Superior Court, from where it was removed to federal district court, appealed to the Ninth Circuit Court of Appeals, and finally certified a question to the state supreme court: whether SMS, which does not own the Seattle Monorail, can bring a tort action against LTK.
In a two-vote lead opinion for the Supreme Court, Justice Mary Fairhurst wrote that that SMS may sue LTK for negligence. “LTK, by undertaking engineering services, assumed a duty of reasonable care. This obligation required LTK to use reasonable care, as we have defined it, with respect to risks of physical damage to the monorail. SMS enjoyed legally protected interests in the monorail, and LTK’s duty encompassed these interests.”
Justice Tom Chambers filed a concurrence agreeing with the lead opinion’s outcome. Chief Justice Barbara Madsen concurred in part and dissented in part.
Ameriquest Mortgage Co v. Washington Attorney General, No. 82690-1. This case presents the question of whether the federal Gramm-Leach-Bliley Act (GLBA), which requires banks to keep customer information private, preempts the state Public Records Act (PRA). During an investigation of the lending practices of the Ameriquest Mortgage Company, the Attorney General’s Office obtained a number of documents from Ameriquest, including loan files, e-mails, and other papers. A public records request was filed for the documents, and Ameriquest sued the AGO to keep the files secret.
The Court of Appeals held that the GLBA preempts the PRA, preventing disclosure of the loan files. Preemption doctrine requires that federal law will prevail when it conflicts with state law.
The Supreme Court (Justice Fairhurst writing the unanimous opinion) agreed that federal law prevented the AGO from releasing protected consumer information. However, the Supreme Court determined that the GLBA did not preempt the PRA, as the two could be reconciled—the PRA specifically recognizes that “other statutes” may protect records from disclosure.
Eastwood v. Horse Harbor Foundation, No. 81977-7. Linda Eastwood owns the Double KK Farm horse farm in Poulsbo, Washington. Horse Harbor is a nonprofit organization that cares for abused and abandoned horses. Eastwood and Horse Harbor agreed to a lease for a portion of the Double KK. Horse Harbor was obligated to maintain the farm and return it in good condition.
Horse Harbor neglected to maintain the farm. The Kitsap County Health District cited Horse Harbor for unlawful burning of solid waste and improper management of horse manure. The lack of maintenance resulted in pools of standing water and mud, broken fencing, a damaged riding arena floor, and horse-chewed wood surfaces. Eastwood complained to Horse Harbor’s board of directors but the board took no action. Eastwood sued for breach of lease, the commission of waste, and negligent breach of a duty to not cause physical damage to the leasehold.
The Court of Appeals characterized Eastwood’s claims as economic losses that resulted from Horse Harbor’s actions. The court held the economic loss rule applied and limited Eastwood to recovery only for breach of lease.
In a three-vote lead opinion, the Court (Justice Fairhurst writing) held that the Court of Appeals was mistaken to deny Eastwood tort damages for waste. “An injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract. Because the term ‘economic loss rule’ inadequately captures this principle, we adopt the more apt term ‘independent duty doctrine.’ The existence of an independent duty is a question of law for courts to decide. We hold the duty to not cause waste is an obligation that arises independently of the terms of a lease covenant, and sufficient evidence supported the trial court’s findings of a causal connection between Eastwood’s losses and a breach of this independent duty.”
Chief Justice Madsen concurred with the result but objected to the analysis. “The lead opinion’s lengthy discourse on the economic loss rule and its new approach for determining when the rule applies is unnecessary for two reasons. First, we cannot apply the common law economic loss rule to nullify the statutory cause of action for waste without violating separation of powers principles and encroaching on the legislature’s authority to establish a cause of action. The issue whether the plaintiff was entitled to bring an action for waste should be resolved entirely on statutory grounds. Second, the injury to property here does not constitute an economic loss within the rule.” Justice Chambers also wrote a concurring opinion.
Jones v. State, No. 80787-6. The question here is whether a pharmacist whose business has been shut down by the state must exhaust all administrative remedies before bringing a tort action against the state, and whether state officials have absolute or qualified immunity against such a tort action.
Michael Jones owned a pharmacy franchise called the Medicine Shoppe, but after failing two consecutive inspections by the Washington Board of Pharmacy his license was suspended, causing his business to fail. He sued the Board of Pharmacy’s Executive Director and the two investigators that gave him the failing scores for negligent supervision and intentional interference with a business expectancy. The state moved for summary judgment, arguing that the Executive Director had prosecutorial immunity, all three defendants had qualified immunity.
The Supreme Court (Justice Fairhurst writing) reversed the Court of Appeals’ holding that the pharmacy inspectors enjoyed immunity, and also reversed the Court of Appeals’ holding that Jones failed to exhaust the available administrative remedies.
Opinions: Attorney discipline, parental rights, and auto-jail provisions
Today the Supreme Court issued decisions in three cases.
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.”
Opinion: Evidence of undocumented worker's status too prejudicial at trial
The Supreme Court today ruled that a trial court judge was wrong to allow evidence of an undocumented worker’s illegal immigration status in a personal injury case. The case is Salas v. Hi-Tech Erectors, No. 81590-9 (briefs and argument).
Alex Salas, an immigrant from Mexico whose visa expired, fell off a scaffolding ladder and sued the company that set up the ladder. At trial, the court allowed evidence of his immigration status, in part to determine the value of Salas’ future earnings potential. The jury did not find Hi-Tech Erectors liable for Salas’ injury. On appeal Salas argues the trial court should not have allowed evidence of his immigration status.
The Supreme Court agreed. Justice Mary Fairhurst wrote that Salas’ immigration status was relevant information for determining the value of his future lost wages. Nevertheless, the court held that the value of this evidence was substantially outweighed by the danger of unfairly prejudicing the jury. The court remanded the case to the Court of Appeals to address additional issues.
Justice Gerry Alexander, a former trial court judge, dissented. He wrote that if the majority believed the evidence of Salas’ status was relevant for determining future lost wages then the trial court did not abuse its discretion and should not be reversed. “I cannot say that the trial court's decision to admit [the evidence] was manifestly unreasonable or based on untenable grounds. Neither can I say that it was a decision that no reasonable judge would have made.”
Opinion: Additional restitution does not violate double jeopardy
State v. Gonzalez, No. 26070-4 (briefs and argument). In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund, to which the trial court agreed.
Gonzalez sought to reverse the order modifying the total amount of his restitution, arguing the state violated RCW 9.94A.753, the restitution statute. He also argued the additional restitution constituted a second punishment in violation of double jeopardy. The Supreme Court, with Justice Mary Fairhurst writing, rejected both arguments and affirmed the trial court. Justice Richard Sanders dissented, writing that the second restitution violated the statute and double jeopardy.
Today's Opinions: No to judicial immunity, yes to res gestae
Lallas v. Skagit County, No. 81672. When a court security guard is injured by a fleeing prisoner, does judicial immunity shield the deputy sheriff and the county from negligence liability?
A Skagit County District Judge directed a deputy sheriff to take the prisoner from the court room to jail. On the way, the unrestrained prisoner fled, knocking down and injuring a private security guard. The guard sued the deputy, the county, and the prisoner; the trial court granted summary judgment for the deputy and the county on the theory that they were protected by judicial immunity. The Court of Appeals reversed.
In an opinion by Justice Fairhurst the Supreme Court unanimously holds that escorting a prisoner is a ministerial rather than a judicial duty and therefore judicial immunity does not protect the deputy or the county from negligence liability. (briefs, argument, previous post)
State v. Pugh, No. 80850-3. Bridgette Pugh called 911 and reported that her husband, defendant Timothy Pugh, "was beating me up really bad." Police responded and arrested Timothy Pugh. Mrs. Pugh failed to show up and testify, but the recording of her 911 call was allowed as evidence. Timothy Pugh was convicted of felony violation of a court order, domestic violence. He challenges that the admission of the recorded 911 call violated his right to confront the witnesses against him according to the Sixth Amendment of the U.S. Constitution and Article I, section 22 of the State Constitution.
Today, the Court holds that Mrs. Pugh's statements on the 911 recording were admissible: that they were nontestimonial excited utterances not prohibited by the Sixth Amendment and that they "qualify as res gestae [and as such] do not implicate Article I, section 22." Justice Madsen wrote the majority opinion and was joined by all the other justices except for Justice Chambers, who concurs while expressing "serious reservations about the broadest applications of the excited utterance rule being made in the wake of Crawford v. Washington," and Justice Sanders, who dissents. (briefs, argument)
Opinions: speedy trials and jury instructions
State v. Kenyon, No. 81374-4. On February 15, 2006, James Ryan Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).
A defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed. Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.
Kenyon argues his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation. The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.
The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.
Justice Richard Sanders wrote the majority opinion. Justice Tom Chambers filed a separate opinion concurring with the result.
State v. O'Hara, No. 81062-1. Ryan O’Hara was charged with second degree assault after getting into a fight with an acquaintance, Jeffrey Loree. O’Hara argued that he acted in self defense. Loree had gained possession of the keys to O’Hara’s car. At trial, O’Hara argued he acted in self-defense. O’Hara testified that he repeatedly asked Loree for the keys to the car. He attempted to reach for the keys and Loree punched him in the forehead, at which point the two began exchanging blows.
At trial the court provided the jury with instructions regarding second degree assault, with additional details about the definition of “malice.” O’Hara was convicted as charged.
On appeal, O’Hara challenged his conviction, arguing that the trial court provided the jury with an incomplete definition of “malice.” O’Hara had failed to object to this instruction at trial and raised the issue for the first time on appeal. A party on appeal is permitted to raise new issues of “manifest error affecting a constitutional right.”
The Supreme Court, with Justice Mary Fairhurst writing the opinion, said that O’Hara could not demonstrate that the trial court’s alleged error was not of a constitutional magnitude or manifest. By failing to object to the instruction he failed to preserve the issue for review, and could not raise the issue for the first time on appeal. Justice Sanders filed a dissent. While he agreed that a “manifest error affecting a constitutional right" should be reviewed on a case-by-case basis, he argued that O’Hara’s constitutional rights were violated by the trial court’s jury instruction.
New opinions: Dention of Moore and Discipline of Marshall
In re Detention of Moore, No. 81201-2. The trial court granted a state petition for Moore to be declared a sexually violent predator and confined in a mental facility (civilly committed). The Supreme Court reviewed (1) whether the trial court erred in accepted the State's set of facts as accurate without checking to see if Moore knowingly waived his right to contest the facts, (2) whether Moore's attorney was ineffective for not contesting the State's facts and (3) if the State has to prove that Moore is likely to reoffend in order to prove he is currently dangerous.
In an 8-1 decision the Court affirmed the lower court. Justice Fairhurst wrote that courts do not have to ensure a party understands the impact of agreeing (stipulating) to facts, unless that agreement is tantamount to an admission of guilt. She also found nothing in the record to show that Moore was incompetent at the time of trial. In addition, Moore's attorney was not ineffective because there were tactical and strategic reasons for his actions. Finally, Fairhurst wrote that the elements which had to be proven to declare Moore a sexually violent predator were sufficient to show he is currently dangerous.
Justice Sanders filed the lone dissent, arguing that the State should have "to prove Moore will reoffend in the near future to establish he is currently dangerous," rather than the stated standard of reoffending at some point during the rest of his life.
In re Disciplinary Proceeding Against Marshall, No. 200577-2. The Court unanimously affirmed the State Bar's decision to disbar Marshall, due to a number of deceptive practices in his dealings with clients and his failure to change his practices after prior discipline by the Bar. Justice Jim Johnson wrote the opinion.
Today's Opinions: CPA, rights of way, and finality
Ambach v. French County, No. 81107-5. Teresa Ambach sued a doctor alleging, among other causes of action, that he performed an unnecessary surgery on her in violation of the Consumer Protection Act. The trial court granted summary judgment to the doctor and imposed sanctions against Ambach's attorneys related to the CPA claim. The Court of Appeals reversed, and is today overturned. Here, the Supreme Court holds that personal injury damages are not covered by the CPA because they "do not constitute injury to business or property" as required by the Act. Justice Madsen authored the majority opinion, which seven other justices signed. Justice Chambers concurred, stressing "that there is nothing in our jurisprudence that should prevent a patient from bringing a CPA claim against a doctor who falsely and deceptively prescribed unnecessary or unnecessarily expensive surgeries as part of a business strategy." (briefs and argument).
Noble v. Safe Harbor Family Preservation Trust, No. 80873-2. The Nobles own land on Hood Canal that is only accessible through land owned by others, including the Safe Harbor property and another parcel owned by Tillicum Beach, Inc. The Nobles sued Safe Harbor to condemn a private right of way of necessity. Safe Harbor defended that there were other possible routes, but did not name any other property owners. The Nobles amended their claim to add Tillicum as an alternate condemnee. The trial court granted the Nobles a right of way through the Safe Harbor land. The trial court also granted Tillicum's motion for attorney fees from Safe Harbor and the Noble's motion to decrease the attorney fee award from the Nobles to Safe Harbor. The Court of Appeals affirmed. The Supreme Court reverses the award of attorney fees to Tillicum but upholds the reduce the attorney fees due Safe Harbor from the Nobles. The Court holds that RCW 8.24.030 grants the trial court broad discretion in awarding attorney fees in condemnation actions, but does not permit a trial court to penalize a potential condemnee from raising the defense of a possible alternate route. Justice Charles Johnson authored the majority opinion and is joined by four other justices. The Chief Justice, joined by Justice Fairhurst, concur except that they would not remand to the trial court on the issue of whether the Nobles must pay attorney fees to Tillicum since the issue was not briefed. Justice Chambers dissents. (briefs and argument).
State v. Kilgore, No. 81020-6. Mark Kilgore was convicted by a jury of seven counts of sexual crimes against children. An "exceptional" sentence of 560 months was imposed. Two counts were reversed on appeal. After his direct appeal was over but before the trial court had corrected the judgment and sentence, the Supreme Court of the United States decided Blakely v. Washington. If Kilgore's case is considered final before that decision was issued, it does not apply retroactively to his sentence. He asserts that his case was not final and that he should be resentenced according to Blakely. Today, the Supreme Court upholds the lower courts and findes that Kilgore's case was final before Blakely. Justice Fairhurst authored the majority opinion. Justice Sanders, joined by Justice Madsen, dissent. (briefs and argument).
New opinions: Releasing sex offenders and crossing state lines
In re Pers. Restraint of Mattson, No. 81324-8. In a 6-3 decision authored by Justice Madsen, the Court determined that the state law which allows criminals to be released early under an approved "community custody plan" does not create a due process liberty interest. Therefore, a Department of Corrections policy that no sexually violent predators can be released early under a community custody plan does not violate due process.
Mark Mattson had been convicted of multiple sexual crimes and sentenced to ten years in prison. During the latter half of his imprisonment, Mattson submitted six different community custody plans for his early release. The final such plan was denied by the Department of Corrections on the basis that there was simply no plan that could ensure the safety of the community against sexually violent predators. A DOC psychiatrist had concluded that Mattson fell into this category, so the DOC did not review the merits of his proposed plan.
The Court of Appeals ruled for Mattson, holding that the statute setting up the community plan option created a due process right, so his plan had to be reviewed on its merits. Madsen's decision reverses the Court of Appeals.
Chief Justice Alexander dissented, agreeing with the Court of Appeals that Mattson's plan should have been reviewed on its merits, and not rejected simply due to a broad policy directive. Justices Sanders and Chambers joined him.
The decision is one of public interest only, as Mattson has already served his maximum sentence, and therefore the case is moot as it relates to his incarceration.
State v. Rivera-Santos, No. 81445-7. In a unanimous opinion written by Justice Fairhurst, the Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.
Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent, and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime.
Fairhurst wrote that convicted Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime. He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.
Today's Opinion: Sex offender's suspended sentence remains revoked
State v. McCormick, No. 81193-8. David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he "not frequent areas where minor children are known to congregate...." McCormick's community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick's first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.
McCormick argues that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence. The Court holds that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court's decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices. Justice Sanders dissents, asserting that "[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate." (briefs and argument)
Today's Opinions, June 11, 2009
In Re Stephen Eugster, No. 200,568-3. Attorney Stephen Eugster got caught up in a dispute between his elderly client and her son. The Washington State Bar Association filed a complaint against Eugster alleging multiple ethical violations, including failure to abide by his client's objectives, disclosure of confidential information, and wrongfully filing a petition for guardianship. A hearing officer determined that "Eugster acted knowingly and intentionally" and that his actions caused financial and other harm. The findings were unanimously approved by the Disciplinary Board, which recommended disbarment. In an opinion by Justice Chambers and joined by four other justices, the Court declines to disbar Eugster and instead suspends him for 18 months. Justice Fairhurst, with three other justices, filed a strong dissent arguing for disbarment. (Briefs, argument).
State v. Riofta, No. 79407-3. Ten people were gunned down, five of them killed, in Tacoma's "Trang Dai massacre" on July 5, 1998. One of the suspects, Veasna Sok, had agreed to testify against the other defendants. On January 27, 2000, Veasna's brother Ratthana was confronted near his home by a man he recognized as "Alex," someone he had known in the neighborhood for several years and who was associated with some of the Trang Dai defendants. Alex pulled out a revolver and fired multiple shots at close range at Ratthana, who escaped uninjured. Ratthana identified Alex Riofta from a photograph at the police station, and Riofta was convicted of first degree assault with a firearm. Riofta subsequently sought DNA testing of a white hat found at the crime scene.
Here, the Court upholds the decisions below and declines to order a DNA hat test per RCW 10.73.170. The majority holds that Riofta failed to show that the results of a DNA test on the hat (which had been stolen the day before Ratthana was shot at) "would demonstrated innocence on a more probable than not basis." Justice Madsen penned the opinion and was joined by five other justices. Justice Charles Johnson authored a dissent joined by Justices Sanders and Chambers, and Justice Chambers wrote a separate dissent calling on the legislature to provide greater clarity. (2003 appeal, 2006 appeal, briefs, argument)
State v. Thomas, No. 80643-8. Covell Paul Thomas robbed and murdered Richard Geist, gunning the small business owner down at close range in order to steal about $5000 in cash. Thomas was originally sentenced to die; that sentence was overturned due to an improper jury instruction on the aggravating factors. On remand, the state sought only life imprisonment. A jury found that Thomas had committed four aggravating factors and the trial judge sentenced Thomas to life without the possibility of parole. Thomas again challenges the jury instructions and also brings due process, Double Jeopardy, Batson v. Kentucky, and other claims. The Court rejects them all, with Justice Madsen writing for a majority of seven. Justice Sanders, joined by Justice Stephens, dissents. (Earlier opinion, briefs, argument)
Today's Opinions, June 4, 2009
Ames v. Dep't of Health, No. 80644-6. Dr. Geoffry Ames operated a "purported holistic medical practice in Richland, Washington," where he told a patient he could diagnose and treat allergies using a galvanic skin response machine called "LISTEN" (Life Information System Ten). The machine has not been approved by the FDA for those purposes. Additionally, Ames claimed that "he was able to replicate what the machine could do telepathically...." After the patient filed a complaint with the Department of Health, Ames was determined to have committed acts of professional misconduct under Washington law and sanctioned. Ames challenged that insufficient expert witness testimony was presented at the administrative hearing. Here Justice Owens writes for a unanimous court upholding the decisions below, finding that the "evidence presented demonstrated by clear and convincing evidence to a layperson that [Ames] was using a machine for purposes for which it was not designed and for which he was not specifically trained." (Briefs and oral argument)
Lundsford v. Saberhagen Holdings, Inc., No. 80728-1. Ronald and Esther Lunsford brought an action for negligence and strict product liability against Saberhagen Holdings. Saberhagen is the successor in interest to The Brower Company, which provided asbestos insulation products that Ronald Lunsford's father worked with in 1958. Those fibers apparently contributed to Ronald Lunsford's mesothelioma. Until 1992, there was an exception to the retrospective application of court decisions to pre-existing claims. This "selective prospectivity" exception was eliminated in Robinson v. City of Seattle. Saberhagen argues that Robinson has been subsequently overturned and that selective prospectivity applies in this case against the strict product liability claim. Justice Fairhurst, joined by five justices, holds that Robinson has not been overturned and that "strict product liability applies retroactively to all cases not barred by procedural requirements or goverend by the tort reform act, including Lunsford's ... claims...." Justice Madsen authored a concurrence signed by Chief Justice Alexander and Justice Jim Johnson disagreeing with the Court's strict interpretation of Robinson. (Briefs and oral argument)
State v. Powell, No. 80535-1
In Powell the Court focused on whether the trial court's admission of evidence of drug use by the defendant, without parallel testimony explaining the effect of the drug, was an error requiring reversal. Writing for a plurality, Justice Mary Fairhurst determined that because the defendant's attorney failed to raise this issue at the trial court and because there was no "manifest constitutional error," the trial court's guilty verdict should be upheld.
Jason Powell was convicted of attempted burglary in the first degree for trying to break into his girlfriend's home while carrying a loaded gun. The prosecution called Powell's roommate to testify that he had seen Powell take methamphetamine right before he went to his girlfriend's house. Testimony about past crimes or bad acts are generally inadmissible to directly prove that a person was likely to commit the crime in question, as they are highly likely to prejudice a jury against the defendant. But they can be used to show things like a person's state of mind or intent. In this case, the State was attempting to show Powell's state of mind at the time he went to his girlfriend's house. The Court found that Powell's attorney objected to the credibility of the witness, but didn't preserve on the record a concern about its prejudicial effect.
The Court of Appeals reversed the conviction, saying the State should have provided expert testimony to explain the likely effects of meth, but the Supreme Court disagreed because the need for such a procedure was not raised at the trial court. As it was an "uncontested issue." Fairhurst wrote that the Court therefore could not review it unless they determined it constituted a manifest error of constitutional magnitude. It did not, as there was no evidence showing the roommate's testimony had practical and identifiable consequences on the outcome of the trial.
Justice Stephens wrote a concurring opinion in which she agreed that the error was harmless, but disagreed that the objection had not been preserved at trial court. Justices Alexander and Chambers signed her concurrence.
Justice Sanders dissented, joined by Justice Charles Johnson. He argued that the objection to the prejudicial nature of the testimony was preserved at the trial court, and that the testimony should not have been allowed because it was prejudicial, misleading, and of no value to the jury.
Today at the Court, March 26, 2009
The Court today issued opinions in two criminal cases and will hear argument in two cases.
Opinions
State v. Kirwin, No. 80113-4. Police arrested Dennis Kirwin for littering (he tossed a beer can out his truck window), then searched Kirwin's truck and found meth. State law makes littering only a civil infraction, which cannot result in an arrest, but Olympia deems it a misdemeanor. Kirwin challenged the city littering ordinance, arguing that it was unconstitutionally in conflict with the state statute. In a majority opinion by Justice Fairhurst and signed by Justices Alexander, C. Johnson, Chambers, Owens, and J. Johnson, the court upholds the ordinance and hence the arrest and the search. In a concurrence, Justice Madsen suggests that the ordinance may well be invalid under Article I, section 12, of the Washington State Constitution, but would not reach the question because it was not raised by Kirwin. Justice Sanders dissents, agreeing in part with Justice Madsen and disagreeing that the search was a lawful search incident to arrest. (Case briefs and argument.)
State v. Wright, No. 78465-5, & State v. Bryant, No. 78788-3 (consolidated). Justice Madsen writes for a six-member majority and holds that retrying defendants Wright and Bryant for murder is not barred by double jeopardy. "Because the defendants' convictions were reversed on grounds other than insufficient evidence, and because they have not been expressly or impliedly acquitted of intentional murder, they remain in the same jeopardy as attached at the first trial." Justice Sanders dissents, joined by Alexander and Chambers, arguing for a stronger interpretation of the double jeopardy clause. (Case briefs and arguments.)
Oral Arguments (briefs)
State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).
State v. McCormick, No. 81193-8. David McCormick, a 61-year-old indigent man confined to a wheelchair, regularly picked up food from the St. Vincent DePaul food bank in Everett. A trial court found that McCormick, by visiting this food bank which was located near a parochial grade school, had violated the conditions of his suspended sentence for first-degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program. McCormick denied knowing the food bank was near a grade school. Regardless, the trial court revoked his special sexual offender sentencing alternative, and ordered him to serve a 123 month sentence. The Court of Appeals (Div. I) affirmed. The question before the Supreme Court is whether the State must prove that a defendant willfully violated the conditions of his suspended sentence before the trial court can revoke the suspended sentence.
Today at the Court
The Court released opinions in two cases this morning and will hear oral argument today in four others.
Opinions
State v. Fisher, No. 79801-0. A unanimous Court reverses the Court of Appeals and grants criminal defendant Fisher a new trial. The opinion by Justice Fairhurst determines that "prosecutorial misconduct denied Fisher a fair trial." The prosecutor introduced evidence without providing proper notice to the defense and introduced evidence in violation of a pretrial ruling. Fisher had been convicted on four counts of child molestation. Justice Madsen writes a concurrence, sugesting that the real problem with Fisher's trial was the trial court's decision to allow testimony about allegations not directly related to the criminal charges. (State v. Fisher briefs, oral argument)
Brogan & Anensen LLC v. Lamphiea, No. 81825-8. Beware of forms with unchecked boxes. In a per curiam opinion, the Court reverses and remands to the trial court. In a real estate transaction, buyer Brogan & Anensen had orally promised to allow the seller, Lamphiea, to retain posession of the property for a year. The contract form had three options for "possession date," each with a box beside it, but none were checked. Thus, the Court finds the contract ambiguous as to the possession date and holds that the lower court's application of the parol evidence rule to preclude evidence of the oral argreement was improper.
Oral Argument
Noble v. Safe Harbor Family Pres. Trust, No. 80873-2. Whether, in an action to condemn a private way of necessity, the trial court may order the condemnee to pay the attorney fees of a third party who the condemnor joined in the suit.
Campbell v. Ticor Title Insurance Company, No. 80999-2. Whether a title insurance policy exclusion for easements not disclosed in the public record relieved an insurer of its duty to defend a lawsuit brought to reform the insured’s deed to include an easement formerly recorded in a neighbor’s title.
State v. Kilgore, No. 81020-6. Whether, on remand after the reversal of two of seven convictions, the defendant was entitled to challenge reimposition of the original exceptional sentence.
State v. Fry, No. 81210-1. Whether a diagnosed condition of severe anxiety, anger, and depression qualified a defendant to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana.
More on Brown v. Owen
The third time’s not a charm for opponents of Initiative 601. Today’s ruling in Brown v. Owen, No. 81287-0, is the latest in a series of challenges against the measure, but the Washington State Supreme Court has declined to review its constitutionality three separate times.
Initiative 601 (the Taxpayer Protection Act) was approved by voters in 1993. The measure limited the rate of growth of state spending, required tax increases to be approved by a two-thirds vote of each house, and required any tax increase that would exceed the established spending limit to be sent to the voters for approval.
Before I-601 took effect, a coalition of advocacy groups, legislators, and citizens filed a writ of mandamus to prevent implementation. Walker v. Munro, 124 Wn.2d 402 (1994). The Supreme Court declined, holding that mandamus was inappropriate, and the petitioners’ claim was premature, as Initiative 601 had not taken effect. The Court suggested the legislature could amend the initiative to prevent any anticipated harms. More after the jump…
(Of the Court’s currently-seated members, only Justices Charles Johnson and Barbara Madsen were on the Court when it heard Walker. Justice Madsen voted with the majority, and Justice Johnson dissented, protesting the majority’s failure to address the merits of the case. Justice James Johnson, in private practice at the time, represented the sponsor of I-601, who intervened to defend the act.)
The second challenge to the Taxpayer Protection Act occurred In 2007. Initiative 960, was placed on the ballot for approval, amended several provisions of I-601, including the two-thirds vote requirement for tax increases. Futurewise and SEIU 775 brought a pre-election challenge against I-960. Futurewise v. Reed, 161 Wn.2d 407 (2007). The challengers sought a declaratory judgment holding the voter approval and two-thirds requirements for tax increases unconstitutional. The Supreme Court unanimously rejected this challenge, holding that the constitutionality of a ballot measure is not subject to review before an election.
Two months later, two justices openly stated their willingness to overturn I-601 in an unrelated case where the constitutionality of the measure was discussed, but not directly at issue. Farm Bureau v. Gregoire, 162 Wn.2d 284 (2007). In a colorful concurring opinion, Justice Tom Chambers chastised his colleagues for not addressing the constitutional question:
There is an elephant in the courthouse. The majority knows the elephant is there. The majority maps out a course around the elephant. The majority never acknowledges the presence of the elephant. … It is time we recognized the elephant and confront the constitutional question.
Chief Justice Alexander voiced agreement in a separate concurrence. “Essentially, I agree with Justice Chambers that the [Taxpayer Protection Act] is an unconstitutional intrusion into the legislature's plenary power to pass laws.”
These opinions no doubt prompted the latest challenge brought in Brown v. Owen.
During the 2008 legislative session, Sen. Lisa Brown (D-Spokane) led a carefully-choreographed effort against the two-thirds vote requirement. Brown proposed a $10 million liquor tax, and while the bill passed with a simple majority, it failed to get the requisite two-thirds vote. Sen. Brown asked Lt. Gov. Brad Owen, who serves as president of the Senate, to rule the two-thirds requirement unconstitutional. While expressing agreement with Brown’s argument, Lt. Gov. Owen ruled that the legal question could not be resolved in a parliamentary setting. This happened on a Friday.
The next Monday, Sen. Brown filed a writ of mandamus, asking the Supreme Court to order Owen to pronounce the bill passed and invalidate the two-thirds requirement as violating Art. II, sec. 22 of the Washington Constitution, which states: “No bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.”
Today the Supreme Court unanimously held that Brown’s requested writ of mandamus would violate the separation of powers doctrine. “A ruling by this court overturning the president of the senate’s ruling on a point of order would undermine the constitutional authority of the senate to govern its own proceedings and the lieutenant governor’s duty to preside over those proceedings.”
The Court pointed out that Brown could have appealed to her colleagues and overturned Owen’s ruling with a simple majority.
Brown appeared to urge Owen to declare [the law] unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so.
Justice Fairhurst, writing for the Court, concluded with this:
This original action is improperly before this court on application for a writ of mandamus and is a nonjusticiable political question. Intervention of this court into an intrahouse dispute over a parliamentary ruling to compel the president of the senate to perform a discretionary duty would be a grave violation of separation of powers. We dismiss the action.
Given the state's projected $8 billion deficit, and the possibility of tax increases, this latest challenge was especially urgent for legislators who dislike the two-thirds restriction. The legislature could repeal the two-thirds requirement with a simple majority next year, but this move is seen as political suicide for Democrats who currently control both chambers.
BREAKING: Supreme Court rules against Sen. Lisa Brown in I-601 challenge
Sen. Lisa Brown brought a lawsuit to invalidate the state's two-thirds vote requirement for tax increases, which was adopted by Initiative 601 in 1993. The case started in 2008 when Sen. Brown filed a writ of mandamus against Lt. Gov. Brad Owen after he declined to approve a tax increase bill that did not receive the required two-thirds vote. Sen. Brown argued the supermajority vote requirement was unconstitutional under Art. II, Sec. 22 of the Washington Constitution.
The Supreme Court unanimously ruled against Sen. Brown today in an opinion by Justice Mary Fairhurst, saying that the judiciary cannot interfere in an internal legislative process. The court declined to address the constitutionality of the supermajority vote requirement.
The unanimous decision is especially significant considering previous statements by Chief Justice Alexander and Justice Chambers (he of the "elephant in the court" opinion) that revealed their dislike of I-601. I would have expected at least a dissent or concurring opinion in the Brown case.
Case documents and timeline can be found here.
(Note: Publishers of this blog filed an amicus brief in support of the state in this action.)
UPDATE: Kris Tefft at AWB applauds the ruling, Jason Mercier at WPC wishes he had put down money on his predicted outcome, and Andrew Villeneuve at NPI suggests that the legislature and Gov. Gregoire could force the constitutionality issue with an act of "cooperative civil disobedience." The Amateur Law Prof calls it a "stunning punt." My own analysis can be found here.
