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In re Detention of Post, No. 83023-1. Charles Post was convicted in 1987 for first degree burglary and rape. Before his scheduled release from prison in 2003, King County petitioned for Post's civil commitment as a sexually violent predator (SVP). The first commitment trial led to a hung jury; after the second trial, the jury found that Post was an SVP. At the second trial, but not the first, prosecutors had introduced evidence about the treatment that would be available to Post if he was committed. Post objected, but the trial court denied his motions. The trial court also refused to allow Post to introduce evidence that, if he was released, he could be subject to a later SVP commitment petition for a "recent overt act."

Post appealed these determinations of the trial court and a divided Court of Appeals reversed his commitment and remanded for a new trial. Today, the Supreme Court in an opinion by Justice Owens agrees with the Court of Appeals and with Post. Evidence of possible future treatment was irrelevant and was not harmless error. Furthermore, evidence that Post could later be subject to an SVP commitment petition was relevant and should have been admitted. Six other justices signed the majority opinion.

Justice Stephens concurs with the outcome but offers a more limited rationale. The Chief Justice concurs in part and dissents in part. She would exclude the state's treatment program evidence, but would also exclude Post's evidence of the possibility of a later petition. (briefs, argument)

Tracfone Wireless, Inc. v. Dep't of Revenue, No. 82741-9. Tracfone, which sells prepaid wireless phone service, sued the Department for a refund of the enhanced 911 excise tax. A bare majority of the Court today upholds the trial court's grant of summary judgment for the Department, holding that RCW 82.14B.030 applies to prepaid wireless phone service as it does to any other wireless phone service.

In effect, TracFone is seeking a decision that whether the tax is owed depends upon how a company decides to market and charge for its service or, to put it another way, whether the tax must be paid depends entirely upon the individual company's business model.

The Chief Justice writes for the majority. Justice Chambers, joined by three other justices, dissents. He argues that tax statutes must be narrowly construed and, where there is ambiguity, construed in favor of taxpayers. Looking beyond the statutory description of the tax to the statutory language that governs how the tax is collected, the dissent finds that the legislature did not anticipate the tax applying to pre-paid wireless services. (briefs, argument)

Summaries of today's three unanimous decisions will be posted soon.

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Update: links to briefs and argument videos are now included.

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)

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

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

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

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

). The jury convicted Jones and he appealed.

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

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

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

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American Best Food, Inc., et al. v. Alea London, LTD., No. 80753-1. American Best Food owned the Federal Way dance club Café Arizona. Michael Dorsey was shot nine times in front of the club. Security guards carried him inside, but then carried him back out and "dumped him on the sidewalk." Dorsey sued the Café for failing to protect him from criminal conduct and for exacerbating his injuries after the assault. The Café's insurer, Alea London, refused to indemnify or defend the Café because the policy excluded "injuries or damages 'arising out of' assault or battery." The Café sued Alea for breach of contract, bad faith, and violation of the Consumer Protection Act. The trial court granted summary judgment for Alea, but the Court of Appeals reinstated the contract and bad faith claims and held that Alea had breached its duty to defend.

The Supreme Court today sustains the lower court, holding that "Alea's failure to defend based upon a questionable interpretation of law was unreasonable and Alea acted in bad faith as a matter of law." Justice Chambers wrote for the five-member majority. Justice Owens, with three other justices, dissented as to the finding of bad faith. (briefs, argument)

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, No. 81734-1. Are physical therapists engaged in the practice of medicine? Benton Franklin Orthopedic Associates (BFOA) refers many of its patients to Benton Franklin Physical Therapy (BFPT), which it also controls through common ownership. Columbia, one of BFPT's competitors, sued alleging violations of the corporate practice of medicine doctrine (link to PDF), The Professional Services Corporation Act (PSCA) (RCW 18.100), the antirebate statute (RCW 19.68), and the Consumer Protection Act (RCW 19.86). The trial court granted BFOA summary judgment on the PSCA claim and certified the other issues to the Court of Appeals, which denied review.

The Court today holds that physical therapy is included in the definition of the practice of medicine. The Court upholds the grant of summary judgment on the PSCA claim and directs the trial court to enter summary judgment also in BFOA's favor on the corporate practice of medicine and antirebate statute claims. Because Columbia did assert facts that, if proven, would constitute breaches of the CPA, the Court upholds the trial court's refusal to grant summary judgment on the issue and remands for trial. Justice Owens wrote for the unanimous Court. (briefs--including 28 amicus briefs, argument)

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