We recently sat down with former Justice Richard Sanders and discussed his judicial philosophy, his approach for interpreting the constitution, several memorable cases he worked on, and finally, the last days of his 2010 campaign.
Supreme Court of Washington Podcast - Interview with Justice Richard Sanders
Lynne Varner, the Seattle Times editorial writer who may have single-handedly defeated Justice Richard Sanders' re-election bid, has a fascinating column about the former state supreme court justice.
Sanders recently met with Varner. He mentioned that he may seek the bench again, which is not unexpected. But the story includes this bombshell: "Sanders says he won't try to unseat the man who beat him last fall, Justice Charlie Wiggins. That contest is too far away. But Justice Gerry Alexander retires at the end of the year and Sanders would like to be the governor-appointed successor."
Definitely worth following...
There’s a fascinating article in the Everett Herald by Diana Hefley addressing Justice Richard Sanders’ continued work on the Supreme Court.
Voters replaced Sanders with Justice Charlie Wiggins, who was sworn in last month, but there are nearly 70 cases where Sanders heard arguments and participated in deliberations. He will have a vote in those cases as a pro tem justice.
Snohomish County Prosecuting Attorney Mark Roe is loudly criticizing the court for retaining Justice Sanders. He has a pending case reviewing whether a Monroe woman cited for honking her horn outside her neighbor's house was engaged in constitutionally-protected speech. “Appointing him pro tem is a slap in the face to crime victims, prosecutors, law enforcement and the public that elected someone to replace him,” Roe said. “[He] was defeated in part because the public was made aware of his consistent pro-criminal votes, opinions and rulings. To see him appointed so he can cast a few more votes of the reversal of criminal convictions, after the public has already said ‘enough,’ is extremely disheartening, and, I think, arrogant.”
Others see nothing wrong with the process, such as Phil Talmadge, a former Supreme Court justice who now practices as an appellate attorney. “This is something done universally in the history of this court,” he said. “The court would be singling Sanders out if they did something different.”
I tend to agree with Talmadge. The Supreme Court is operating according to its internal rules for appointing a temporary judge. Retired Justices Faith Ireland and Bobbe Bridge both participated in numerous cases after they left the court.
It would be difficult to appoint a different pro tem to each of the 70 cases and then require that justice to play catch-up with the rest of the court. Now, it might be best to assign the responsibility of authoring opinions to members currently on the court, but a complete ban on Sanders' participation is going too far.
UPDATE: By my quick count, Justice Bobbe Bridge voted in 19 decisions after she left the court. Justice Faith Ireland participated in nine cases -- eight of which she wrote the majority opinion.
The Supreme Court issued opinions in one case today: Gregoire v. Oak Harbor, No. 81253-5.
This action for wrongful death was brought by the estate of an inmate who hung himself in the Oak Harbor jail. The question before the court is whether a city can use the defenses of contributory negligence and assumption of risk to defend against a wrongful death action for a jailhouse suicide.
Edward Gregoire, the deceased, exhibited erratic emotional behavior while he was being transported to jail, tried to run, and shortly after being placed in his cell hung himself. Tanya Gregoire, as the personal representative of Gregoire’s estate, sued Oak Harbor for negligence.
The jury found for Oak Harbor after being instructed on the defenses of contributory negligence and assumption of risk. The Court of Appeals affirmed the trial court.
Contributory negligence is a defense that while a defendant may have failed in its duty of care, the plaintiff contributed to his injury through his own negligence. Assumption of risk allows a defendant to assert that while a duty of care may have existed toward the plaintiff, the plaintiff assumed voluntarily and knowingly assumed the risks inherent in his behavior.
The Supreme Court issued a fractured decision today, reversing the Court of Appeals. The four-vote lead opinion, written by Justice Richard Sanders holds that jailors owe a special duty of care to their inmates, and that jury instructions regarding assumption of risk and contributory negligence are inappropriate in cases of inmate suicide—a new rule for Washington State.
The Court observed the long-standing principle that jailors owe a special duty to inmates, particularly to ensure their health, safety and welfare. Additionally, the legislature has subjected municipal jails to regulation and duties toward inmates. This special-relationship duty extends to self-inflicted harm. Given that Oak Harbor had a nondelegable duty to protect the inmate from himself, the Court determined that both contributory negligence and assumption of risk defenses were inappropriate and that the jury instructions in Gregoire’s case misinformed the jury. The Court sent the case back down for a new trial.
Justice Tom Chambers signed the lead opinion but wrote a separate concurrence clarifying the distinctions between express and implied assumption of risk.
Chief Justice Barbara Madsen concurred with the lead opinion’s assumption of risk analysis, but dissented on the comparative negligence question. “A jail has a duty to provide health screenings and health care if necessary, and to protect an inmate from injury by third parties and jail employees, but it has no freestanding duty to prevent inmate self-inflicted harm. That duty arises only when specifically articulated by law or if the jail affirmatively assumes the inmate’s duty of self-care. Even if this duty arises, it would not necessarily eliminate the inmate’s duty of self-care.”
Justice Gerry Alexander, meanwhile, wrote a separate dissent. “The lead opinion does not mention that the jury in this case never reached the questions of whether Edward Gregoire was contributorially negligent or assumed a risk of harm. In my view, it was unnecessary for the jury to do so because it found that the city of Oak Harbor’s negligence was not a proximate cause of Mr. Gregoire’s death. That being the case, even if we assume that the trial court’s instructions on contributory negligence and assumption of risk were erroneous, their submission to the jury was harmless error.”
After 14 years on the bench, Justice Richard Sanders will relinquish his seat to Justice-elect Charlie Wiggins—one of the most significant upsets at the Washington State Supreme Court.
So what does the court look like without Justice Sanders?
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Justice Richard Sanders certainly presented a strong libertarian viewpoint on the Supreme Court. Quoting the Washington Constitution, he frequently stressed that the role of government is to “protect and maintain individual rights.” He was a passionate advocate for the rights of individuals: the right to maintain oversight of government agencies, the freedom of expression, the freedom of religion, the right to enjoy private property, the freedom to bear arms, and the rights of the accused. He is perhaps best known for his colorful and frequent dissents. In 2009 he wrote more than twice as many dissenting opinions as any other justice. He is again the leading dissenter in 2010.
Of course, replacing a Sanders dissent with another vote wouldn’t necessarily change the outcome in any case. Perhaps the best way to measure the impact of his absence is to review recent 5-4 decisions where Sanders was in the majority.
Open Government & Public Records – Koenig v. City of Des Moines (2006)
David Koenig, the father of a child victim of sexual assault, requested records related to his daughter’s case, pursuant to the Public Records Act. The city denied the request, claiming the nondisclosure of the records was essential to law enforcement. Koenig sued to obtain the records. The Supreme Court, with Justice Sanders writing the majority, held that the city was not barred from disclosing records and had improperly denied Koenig’s request.
Same-Sex Marriage – Andersen v. King County (2006)
Several gay and lesbian couples were denied marriage licenses and sued King County, seeking to invalidate the state’s Defense of Marriage Act (DOMA) as unconstitutional. The Supreme Court held that DOMA did not violate the state constitution and was rationally related to state’s interests in procreation and children’s well-being.
Political Speech & Campaign Lies – Rickert v. Public Disclosure Commission (2007)
In 2002, Marilou Rickert challenged incumbent Senator Tim Sheldon in an election for state senate. Sen. Sheldon filed a complaint with the Public Disclosure Commission alleging that one of Ms. Rickert’s campaign mailings contained false information—a violation of a state law that prohibited false statements about a candidate in political advertisements. The PDC determined Ms. Rickert’s mailing contained two false statements and fined her. Rickert appealed, challenging the law as unconstitutional, and the Supreme Court agreed. The Court held that the constitution protects the right of free speech, and that the State could not constitutionally take upon itself the right to determine truth and falsity in political debate.
Free Speech – Resident Action Council v. Seattle Housing Authority (2008)
The Seattle Housing Authority operates 5,300 low-income public housing units in Seattle. The authority banned all signs, flyers, placards, advertisements “or similar material” from exterior walls, interior common area walls and doors, or unit doors facing common hallways or outside. The Supreme Court struck down the prohibition on placing messages on apartment doors, concluding that the rule violated the free speech rights of the tenants.
Prosecution of an Accomplice – City of Auburn v. Hedlund (2009)
Teresa Hedlund, 28, hosted a party for a number of guests, including minors, where “the liquor flowed freely.” She and six others left the party in a car. The driver’s blood alcohol content was twice the legal limit. A crash killed all the occupants of the vehicle except Hedlund. She was charged with being accomplice to driving under the influence, and furnishing alcohol and tobacco to minors. The trial court dismissed the DUI and reckless driving charges because a victim may not be charged as an accomplice under RCW 9A.08.020. The Supreme Court agreed that based upon the plain language of the law, Hedlunch could not be prosecuted as an accomplice: “We resist the urge to rewrite a plainly written statute.”
Consumer Protection – Panag v. Farmers Ins. Co., of WA & Credit Control Services (2009)
The Supreme Court expanded the reach of the Consumer Protection Act to include “unfair or deceptive efforts to collect on an insurance subrogation claim....” Plaintiffs Panag and Stephens had each been involved in a car accident while uninsured. Farmers and Omni, insurers of the other parties in the accidents, hired Credit Control Services (CCS) to collect some or all of the “uninsured motorist benefits” paid to their customers. CCS sent several strident letters to Panag and Stephens, purporting to be debt collection notices. The majority holds that “a CPA claim may be predicated on the deceptive characterization of an unadjudicated insurance subrogation claim as a liquidated debt that must be immediately paid.” The dissent accused the majority of expanding the CPA “far beyond its express reach” as it is designed to protect consumers, not regulate tortuous conduct.
At-Will Termination – Briggs v. Nova Services (2009)
A group of employees of Nova Services complained to the nonprofit’s board of directors about their new executive director. The board investigated the objections and three of the employees were fired. Six others refused to come to work and were deemed to have quit. Eight of the employees filed a complaint alleging violations of RCW 49.32.020, protecting workers in “concerted activities for the purpose of collective bargaining or other mutual aid or protections....” The employees claimed their actions were concerted and thus protected. The Supreme Court upheld an employer’s right to terminate employees who disagree with management decisions. The plurality opinion noted that Washington allows employers and employees to terminate their employment relationship at any time for any reason (with narrow exceptions). The dissent argued for an significant restriction of at-will employment, including protections for “employee protests over management personnel decisions ... when the decision relates to the employees’ working conditions.”
Forfeiture of Property – In Re Forfeiture of One 1970 Chevrolet Chevelle (2009)
Thomas Roos was using his parents’ two cars to traffic illegal drugs. The police seized the vehicles pursuant to RCW 69.50.505. His parents challenged the seizure based on the “innocent owner” exception, which allows a property owner to prevent seizure upon showing that the crime was done “without the owner’s knowledge.” The Supreme Court sided with the partents. The majority reasonsed that the legislature uses different phrases to indicate degrees of knowledge, such as “actual or constructive knowledge” or “knows or has reason to know.” Relying on the language of the statute, the court held a property owner need only show that he or she actually did not know of the illegal activity. The dissenting justices argued that the parents should forfeit the second vehicle when they took no steps to prevent the son’s use after the arrest and seizure of the first vehicle.
Taxation – Dot Foods, Inc. v. WA Dep’t of Revenue (2009)
Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which use the products as ingredients for products later sold to retail outlets. For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot sued.
The Supreme Court ruled in favor of Dot Foods. The court said the law, RCW 82.04.423(1)(d), requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed.”
Privacy & Warrantless Searches – State v. Tibbles (2010)
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.
Open Government & Public Records – O’Neill v. City of Shoreline (2010)
The Supreme Court ruled that metadata associated with a public record, such as an e-mail, is a public record and is subject to disclosure under the Public Records Act.
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.
The following message was sent yesterday from Justice Richard Sanders' campaign.
End of the trail
It looks like we're coming to the end of the campaign trail. After the latest numbers were released yesterday, I am now behind by about 4,500 votes out of nearly two millions votes cast, 49.9% to 50.1%. The campaign experts say that we are unlikely to make up that difference as the counties finish their tally over the next few days.
I want to particularly thank the many volunteers and more than a thousand donors who helped my campaign, not to mention the 930,000 voters who made good choices.
Charlie Wiggins and I had dozens of debates and on those occasions he showed the same intelligence and professionalism that I had seen before when he argued before the Court. I am sure he will be a good Justice, but of course he does not share my perspective on many issues. I have offered him my congratulations and promised him my 100% support for his new position.
I know that my supporters want someone on the Court who protects individual liberty, whether it's the right to privacy or the right to own and use property, or our dozens of other rights guaranteed in the Constitution. These are the things which make us free. They are essential to all of us -- defendant and judge -- liberal and conservative.
It has been a great honor to serve the people of Washington on their Supreme Court. I intend to stay involved, to participate in public life and to speak out on the issues that confront our justice system. I guess there’s some truth in the saying, “old lawyers never die, they just lose their appeal.”
God bless you all.
As of 11:57 Tuesday evening, Justice Richard Sanders held a lead over challenger Charlie Wiggins - 51.27% to 48.73%, which is just under a 30,000 vote lead. Several counties will continue posting new vote totals today and tomorrow, so this race deserves a close eye.
The Federalist Society has posted the video from a debate it recently hosted between Justice Richard Sanders and challenger Charlie Wiggins.
City of Seattle v. Holifield, No. 83277-3. The City charged Matthew Jacob with DUI after he failed a Breathalyzer test. The Breathalyzer used had been calibrated using a control alcohol solution certified by Ann Marie Gordon, the former manager of the Washington State Toxicology Laboratory. Gordon resigned after it was publicized that she falsely certified alcohol solutions.
Jacob and the City of Seattle agreed to apply a ruling from a similar case (Seattle v. Kennedy) to this one. The Kennedy court found the Gordon misconduct resulted in actual prejudice to the defendant. But rather than dismissing the Kennedy case, the Breathalyzer evidence was merely suppressed.
The Breathalyzer evidence in Jacob’s case was also suppressed, but the City argued that only dismissal was available under applicable court rules (CrRLJ 8.3(b)).
The Supreme Court unanimously disagreed and held that suppression is an available remedy. Justice Richard Sanders wrote the opinion of the court.
State v. Eriksen, No. 80653-5. The Supreme Court said today that tribal police officers can pursue motorists beyond the limits of tribal lands on suspicion of driving under the influence until authorities with jurisdiction to arrest arrived.
A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. He began following the vehicle and activated his emergency lights. After traveling a quarter mile the car pulled into a gas station located off the reservation. The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat. The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.
Ms. Eriksen was convicted for DUI. The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation. The Supreme Court agreed to hear the case to resolve this issue of first impression.
The Supreme Court, with Justice Richard Sanders writing the majority, said that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws. Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in fresh pursuit of a violator. The court said this doctrine should apply to sovereign tribal nations as well.
Justice Mary Fairhust dissented, writing that the fresh pursuit doctrine is inapplicable. “I join that part of the majority's analysis that finds, pursuant to inherent tribal sovereignty, that Lummi Nation Tribal Police Officer Mike McSwain had authority to stop Loretta Eriksen outside the reservation to determine whether she was a tribal member over whom McSwain had jurisdiction. However, because I cannot find any applicable authority under which McSwain had the power to detain Eriksen once he determined she was not a tribal member, I am ultimately forced to dissent.”
The Supreme Court issued opinions in several cases today.
Port Angeles v. Our Water-Our Choice, No. 82225-5. The question before the court is whether citizen initiatives to reverse a city council’s decision to fluoridate its water supply are valid. The Port Angeles City Council decided to fluoridate its city’s water supply, but two citizen groups filed local initiatives to repeal the fluoridation plan. A trial court reviewed the initiatives and determined they were invalid for three reasons: they were administrative rather than legislative, they interfered with the council’s legislatively-delegated authority to regulate the water supply, and they exceeded the council’s legislative authority. In a 5-4 ruling, with Justice Tom Chambers writing, the Supreme Court ruled against the citizen’s groups. Citing previous cases, the court held that local initiatives that are administrative in nature (that is, initiatives which carry out an existing law or policy rather than making a new law) go beyond the scope of local initiative authority. Justice Richard Sanders, dissenting, wrote that the majority diminished the state’s constitutional commitment to the people’s right to directly create law.
Hudson v. Hapner, No. 82409-6. At what point can a party withdraw a request for a civil trial? Clifford Hapner rear-ended Lea Hudson, and Hudson sued for damages. The case went to mandatory arbitration where Hudson was awarded $14,538. After mandatory arbitration Hapner requested a trial, and the jury awarded Hudson $292,298. Hapner appealed, won a reversal, and the case was remanded for a new trial. After discovery for the second trial, but before the trial took place, Hapner filed a notice of withdrawal of his motion for a trial. This would allow him to pay only the arbitration award, plus Hapner’s court costs. The trial court struck the withdrawal at Hudson’s request. Chief Justice Barbara Madsen, writing for the majority, agreed that court rules allow for a unilateral withdrawal, but held that this right must be exercised prior to the start of trial proceedings. Thus, Hapner was precluded from withdrawing his request for a trial and the trial will move forward unless the parties reach a settlement. Justice Sanders dissented, writing: “It is difficult to address the majority’s reasoning because, much like Frankenstein’s monster, the majority opinion is a sewn-together collection of partial arguments, each pilfered from a different cadaver and none lending any real support to its conclusion.”
Overlake Hosp. Ass’n v. Dep’t of Health, No. 82728-1. The legislature created the certificate of need program, which authorizes the Department of Health to control the number and types of health care services and facilities that are provided in a given area, in order to ensure that services and facilities are developed according to identified priorities and without unnecessary duplication. For certain health care providers to establish or expand health care facilities within this state they must obtain a certificate of need from the Department. The Department granted such a certificate to Swedish Health Services. Overlake Hospital Association and Evergreen Healthcare objected to the CN, and requested an adjudicative hearing. The hearing officer and later a superior court judge upheld the Department decision, but the Court of Appeals held the decision was based on an incorrect interpretation of governing statutes. The Supreme Court held that the appeals court failed to accord sufficient deference to the Department’s interpretation of the law, and affirmed the decision to issue a certificate of need. Justice Gerry Alexander wrote the unanimous opinion.
Rousso v. State, No. 83040-1. Lee Rousso, an attorney and amateur poker player, is challenging the state’s ban on Internet gambling, arguing it violates the Commerce Clause of the U.S. Constitution. The Supreme Court unanimously upheld the ban. Justice Sanders opened the court’s opinion with an emphatic statement:
The question before this court is not whether Internet gambling, including playing poker on-line, should be illegal. That determination is reserved to the legislature, and the legislature addressed the issue by enacting and amending RCW 9.46.240, which criminalizes the knowing transmission and reception of gambling information by various means, including use of the Internet. Since sending and receiving gambling information is illegal, Internet gambling in the state of Washington is effectively banned.
It is not the role of the judiciary to second-guess the wisdom of the legislature, which enacted this ban. The court has no authority to conduct its own balancing of the pros and cons stemming from banning, regulating, or openly permitting Internet gambling.
The court rejected the argument that the ban was unconstitutional under the Commerce Clause. The court reasoned that the language of the statute does not openly discriminate against out-of-state entities in favor of in-state ones, as the ban applies evenly in state and out of state. “Here, the legislature balanced public policy concerns and determined the interests of Washington are best served by banning Internet gambling. The legislature chose the advantages and disadvantages of a ban over the advantages and disadvantages of regulation. … Under the dormant commerce clause, the burden on interstate commerce is not ‘clearly excessive’ in light of the state interests. RCW 9.46.240 does not violate the dormant commerce clause.”
State v. Doughty, No. 82852-1. A police officer observed Walter Doughty drive up to a drug house at 3:20 a.m., stop for two minutes, and leave. The officer stopped Doughty, discovered that he was driving with a suspended license, and upon searching him found that he had, indeed, bought drugs. Doughty claims that the officer lacked reasonable suspicion to stop him. The issue in this case is whether Doughty’s actions created reasonable suspicion for the officer to conduct a Terry stop. Doughty was convicted in Spokane County Superior Court and the Court of Appeals upheld his conviction. The Supreme Court, with Justice Sanders writing the majority, held that the police officer lacked sufficient to stop Doughty. As a result, the court suppressed the evidence and vacated Doughty’s conviction. Justice Mary Fairhurst dissented. While the officer might lack grounds for an arrest, she wrote, he was certainly justified in stopping and questioning Doughty.
State v. S.J.W, No. 83177-7. This case presents the question of whether the burden of proving a child witness incompetent to testify is on the party calling the witness. S.J.W., a minor, was convicted of raping another minor. At trial, the court required S.J.W. to prove that the victim was incompetent to testify. S.J.W. failed to do so. S.J.W. appealed, claiming the burden should have been on the state to prove his victim’s competency. The Court of Appeals agreed, but found that the state met its burden and upheld the conviction. The Supreme Court, with Justice Charles Johnson writing the unanimous opinion, held that a party challenging the competency of a child witness has the burden of rebutting that presumption. The court affirmed the Court of Appeals but hold that trial courts should presume that 14-year-old children are competent to testify.
Washington Supreme Court Position 6: A Debate Between Justice Richard Sanders and Challenger Charlie Wiggins
With questions from panel members
~Peter Callaghan, Columnist, Tacoma News Tribune
~David DeWolf, Professor, Gonzaga University School of Law
~Stewart Jay, Professor, University of Washington School of Law
Tuesday evening, September 28, 2010
Washington Athletic Club • 1325 Sixth Avenue, Seattle
Doors open at 6:30, debate begins at 7:00
Drinks and hors d’oeuvres will be served
Admission to this event is free and parking in the Washington Athletic Club garage (1409 Sixth Avenue) will be validated
RSVP to Michael Bindas by Friday, September 24, 2010
by email at mbindas@ij.org or phone at (206) 341-9300
Presented by
THE FEDERALIST SOCIETY
PUGET SOUND LAWYERS CHAPTER
Two races decided, one to go. As of 10:19 p.m.:
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.
The Supreme Court issued opinions in three cases today.
Tobin v. Department of Labor and Industries, No. 81946-7. Jim Tobin was permanently disabled after being hit by a crane boom at work. He began collecting worker’s compensation benefits and sued the crane operator, settling for $1.4 million in damages, with about half of that amount being designated for pain and suffering. Under RCW 51.24.060, an injured worker is required to distribute a portion of a third-party recovery to the Department of Labor and Industries to reimburse the agency for worker’s compensation benefits. L&I informed Tobin that it would include the pain and suffering award he received in its calculation of what was owed the agency. Tobin argues the statute was designed to reimburse L&I for benefits paid, and L&I does not pay benefits for pain and suffering.
The Supreme Court, with Chief Justice Barbara Madsen writing, agreed. The court held that chapter 51.24 RCW does not authorize L&I to seek reimbursement of damages awarded for pain and suffering. “[D]amages for ‘pain and suffering,’ like loss of consortium, constitute noneconomic damage that the workers’ compensation statutes do not compensate for. The Department did not pay out benefits for pain and suffering; therefore it cannot be ‘reimbursed’ from amounts recovered for pain and suffering. We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.” Justice Mary Fairhurst dissented, arguing that the majority ignored the plain language of the recovery statute.
In Re Personal Restraint Petition of Cruze, No. 82567-0. Schawn James Cruze was sentenced to life in prison without the possibility of parole under the “three strikes” provision of the Persistent Offender Accountability Act. Cruze filed a personal restraint petition arguing that the second conviction is not a most serious offense, or “strike.” However, Cruze filed his petition more than one year after his judgment and sentence became final, barring his claim unless the court could determine the sentencing was invalid on its face. The Supreme Court held that based on a plain reading of the statute, a deadly weapon verdict under the law includes a special verdict finding that a defendant was armed with a firearm. The court dismissed Cruze’s petition. Justice Susan Owens wrote the majority opinion. Justice Gerry Alexander wrote a dissent.
State v. Mitchell, No. 83169-6. This case hinges on the question of whether a child qualifies as a “dependent person” for purposes of the crime of criminal mistreatment. Marilea Mitchell and her boyfriend were charged with criminal mistreatment after starving the boyfriend’s four-year-old son almost to death. The statute refers to mistreatment of “a child or a dependent person,” and Mitchell was charged with mistreatment of a “dependent person.” Mitchell claims that the boy was a child, not a dependent person, and thus she was wrongly convicted. The Supreme Court unanimously disagreed with Mitchell’s argument and upheld her conviction. Justice Richard Sanders wrote the opinion of the court.
Richard Sanders earned a BA from the University of Washington and a JD from the University of Washington School of Law. He then entered private practice and continued to practice for 26 years, until he was elected to the Supreme Court in 1995. In addition to serving on the Supreme Court, Sanders teaches appellate advocacy at the University of Washington School of Law.
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Newspaper endorsements are coming in fast now.
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.
More newspaper endorsements were released this morning. The Columbian endorses both Supreme Court incumbents Justice Jim Johnson and Justice Richard Sanders over their opponents.
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.
Broom v. Morgan Stanley, No. 82311-1 (briefs and argument). The Supreme Court held that an arbitration panel erred by applying state statutes of limitations to bar the a claim. Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.” The Supreme Court, with Justice Charles Johnson writing, affirmed the Court of Appeals. Chief Justice Barbara Madsen dissented.
Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). The Supreme Court held that under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, a landlord and tenant can lawfully agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. Writing for the majority, Justice Richard Sanders said that the MHLTA preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement and thus the provision does not violate the MHLTA. Justice Gerry Alexander wrote a dissenting opinion.
Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Supreme Court agreed, with Justice Susan Owens writing the majority opinion. The court held: (1) that the appraisal proceeding in RCW 23B.13.020 is a dissenting shareholder’s exclusive remedy unless a corporate action is procedurally defective or fraudulent and (2) that a divested shareholder does not have standing in a derivative suit. Justice Sanders wrote a dissenting opinion.
State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense. The Supreme Court unanimously ruled that the trial court abused its discretion by refusing to instruct the jury on the duress defense. The court reversed the conviction and remanded for a new trial. Justice Debra Stephens wrote the opinion.
State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges. The Supreme Court affirmed the decision below, with Justice Debra Stephens writing the unanimous opinion.
The Washington State Association for Justice recorded a debate between Washington State Supreme Court Justice Sanders and attorney Charlie Wiggins. The debate is in five parts so click "continue reading" to see the remaining videos.
With candidate filing week over, we now have a complete picture of this year’s races for seats on the Supreme Court of Washington.
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.
At 9:00 a.m. this morning the Court will hear one argument on a Public Records Act case. Because it involves a sitting justice, the entire Court may be replaced by pro tem justices (judges drawn from a lower court to review just this case). (Docket, briefs) After today the Court will recess from arguments until May.
Richard Sanders v. State, No. 82849-1. Justice Sanders is asking the Court to find that the Attorney General's Office violated the Public Records Act by withholding hundreds of requested records under various exemptions claimed without explanation; and to determine whether the penalties and costs awarded to Sanders by the trial court were sufficient.
In 2004, Sanders sent a request to the Attorney General's Office for all documents related to his visit to the McNeil Island Special Corrections Center and the actions taken by the Commission on Judicial Conduct in response to his visit (which led to a different Sanders v. State). Over a hundred responsive documents were withheld or redacted, primarily under the "related to a current case or controversy" exemption to the PRA (RCW 42.56.290), with no explanation of why the documents fell under that exemption.
The trial court found that the AGO had violated the PRA by not providing the required "brief explanation" for how exemptions apply, and that some of the withheld records should have been disclosed. Sanders asked for a $70 per day penalty, the trial court fined the AGO $5 per day for withholding records and $3 per day for not explaining the exemptions; and awarded Sanders 37.5% of his attorney fees. He appeals both the ruling that some of the documents were exempt, and the amounts of the penalties and fees.
This is the case that led to the claim that Sanders was self-serving in his Yousoufian v. Sims majority opinion. Due to that controversy, the appellate court determined it didn't have the authority to review, and kicked the case up to the Supreme Court.
Two more decisions from the Supreme Court today:
State v. Madsen, No. 81450-3. The question in this case was whether the trial court properly denied a defendant's request to represent himself. Kurt Madsen was charged with three felony counts after he violated a no-contact order. At trial Madsen repeatedly requested to represent himself. The trial court denied his motion, stating he had been “extremely disruptive,” “repeatedly addressed the court at inopportune times,” and “consistently showed an inability to follow or respect the court’s directions.”
The Supreme Court, with Justice Jim Johnson writing the opinion, held that the Washington Constitution explicitly guarantees criminals the right to self-representation. The right is not absolute, however, and trial courts may determine whether a request for self-representation was made properly. The Court found that Madsen’s request had been “unequivocal, timely, voluntary, knowing, and intelligent” and Madsen had repeatedly cited article I, section 22 of the Washington Constitution. The Court held the trial court’s decision was in error, and remanded for further proceedings.
Justice Mary Fairhurst concurred separately with the outcome, but expressed concerns about whether Madsen made a timely, knowing, and intelligent waiver of counsel.
State v. Osman, No. 82671-4. The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.
Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.On appeal, the Court of Appeals held the standard of review is abuse of discretion rather than reviewing the question of materiality.
Justice Richard Sanders, writing for a unanimous court, wrote that as the missing portion of the electronic record is significant and material to the appeal, Osman is entitled to a new trial.
The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.
Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.
On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.
One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote.
Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court.
Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.
UPDATE: Additional thoughts on the case over at OG-Blog.
One of our podcast listeners sent us a copy of a very interesting speech given by Justice Sanders back when he first joined the Court. In the podcast (Lies, Damn Lies & Statistics) Mike, Trent and I discussed the long wait times on court opinions. Sander's speech helps explain the time lag with a detailed behind-the-scenes look at the journey a case goes through from start to finish. It includes such salient tidbits as:
Who the assignment judge is [for a particular case], is a closely guarded secret of the court. To make attorney guesswork more difficult, law clerks in addition to the assignment justice’s law clerks typically attend the oral argument.
So clerk-counting is apparently pointless.
The speech is from 1996, so some procedures have likely changed. But I'm betting that much of the path a case takes is still the same today.
In re Custody of E.A.T.W. and E.Y.W., No. 81945-9. Was the superior court right to grant a hearing for a custody petition based only on the fact that the children had lived with the petitioning grandparents for several years? 
The Court of Appeals had overturned the superior court, and the Supreme Court today upholds the Court of Appeals. The High Court holds that RCW 26.10.032 imposes on third party petitioners the duty of setting forth facts that would show “that the parent is unfit or placement with the parent would result in actual detriment to the child's growth and development.”
The unanimous opinion, written by Justice James Johnson, goes on to hold that this standard is in accord with the U.S. Supreme Court’s decision in Troxel v. Granville.
In Troxel, the United States Supreme Court affirmed this court's judgment in In re Custody of Smith that constitutionally protected parental rights were violated by a statute allowing a nonparent to wrest custody of a child from a parent based solely on the court's findings regarding the child's best interests. Something more is required than the court's judgment that it could make a better decision than parents concerning the upbringing of children.
(Briefs, Argument-May 28, 2009)
State v. Sibert, No. 79509-6. Richard Sibert was convicted by a jury in 2004 of four crimes related to the sale of methamphetamine. The Court of Appeals affirmed the lower court, and Sibert appeals on three alleged errs: 1) failure of the trial court to include the identity of the “controlled substance” on part of the jury instructions; 2) failure to prove the identity of the controlled substance; 3) an inappropriate jury instruction on “knowledge.”
Today the Court upholds Sibert’s conviction and sentencing. It finds that throughout the trial, everyone involved understood that the controlled substance was methamphetamine. Further, the jury instructions incorporated by reference the charging documents that identified the substance as methamphetamine. It also upholds the instruction on “knowledge,” which the trial court took directly from the Washington Practice.
Justice James Johnson also wrote this majority opinion, but Justices Sanders and Alexander both authored dissents, the latter joined by Justices Charles Johnson and Debra Stephens. The Chief concurred with the majority, but as to the result only. The four dissenting justices would hold prosecutors to a higher standard, in this case requiring a more explicit and precise description of the controlled substance.
Steve Miletich of the Seattle Times has an article about the campaign between Justice Richard Sanders and attorney Charlie Wiggins.
The Supreme Court has issued its opinion in the thorny case of State v. Sieyes, No. 82154-2.
17-year-old Christopher Sieyes was charged and convicted for unlawfully possessing a loaded .380 semiautomatic handgun – a violation of RCW 9.41.040(2)(a)(iii), which generally prohibits children under age 18 from possessing firearms. The questions in this case were whether the Second Amendment to the United States Constitution applies to the states, and if so, whether the state law banning possession by minors unconstitutionally infringes on the right to bear arms protected under the U.S. and Washington Constitutions.
In 2007, in Heller v. D.C., the U.S. Supreme Court struck down the District of Columbia’s handgun ban, holding that the Second Amendment guarantees the individual right to bear arms, rather than a collective militia right, as argued by D.C. The Court left for another day the question of whether the Second Amendment applies to the states. That question will be addressed later this year, as there has been some disagreement between federal circuits, but the Washington Supreme Court beat SCOTUS to the punch.
The Washington Supreme Court, with Justice Richard Sanders writing the majority, held that the Second Amendment applies to the states. “[T]he Second Amendment protects an individual right to bear arms from state interference through the due process clause of the Fourteenth Amendment. This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.” Justice Sanders also noted that the Washington Constitution explicitly guarantees the right to bear arms, though the Court has not determined the reach of Article I, Sec. 24 since the Heller ruling.
Turning to the question of whether RCW 9.41.040(2)(a)(iii) is constitutional, the Court declined to apply the traditional levels of scrutiny to firearm regulation. The Court voiced agreement with Heller -- that strict scrutiny would invalidate most infringements on the Second Amendment, while a rational basis test would set too low a standard to protect the right to bear arms. “We follow Heller in declining to analyze RCW 9.41.040(2)(a)(iii) under any level of scrutiny. Instead we look to the Second Amendment's original meaning, the traditional understanding of the right, and the burden imposed on children by upholding the statute.” Justice Sanders acknowledged the Court's "occasional rhetoric" about the "reasonable regulation" of firearms, but argued the Court has never settled on a precise standard of review.
However, the Court found that Christopher Sieyes made inadequate arguments on whether the law was unconstitutional. “In sum appellant offers no convincing authority supporting his argument that Washington's limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day.” The Supreme Court held that Sieyes failed to demonstrate that the statute was an unconstitutional violation of his right to possess a gun. The case was remanded for consideration of additional issues.
Gun rights advocates will see this as a partial missed opportunity. After the landmark ruling in Heller, the Washington Supreme Court asked the parties in Sieyes to address whether the Second Amendment applies to the states and the appropriate standard of scrutiny for evaluating firearm regulations. Justice Sanders has long railed against the Court’s reliance on “reasonable regulation” of gun rights, and no doubt wanted to go further in clarifying the court’s jurisprudence. Thus his criticisms of the appellant for inadequately briefing some of these constitutional issues. Even so, the Court firmly holds that the Washington Constitution protects the individual right to bear arms.
Justice Debra Stephens concurred in the result, but wrote that as Sieyes failed to analyze how the state statute violated the constitution the court could stop there and should not have conducted an "extended exploration of the unsettled question of federal incorporation of the Second Amendment." Meanwhile, Justice James Johnson dissented, writing that "the majority disregards our long-standing national tradition allowing younger citizens to bear arms," and he argued strict scrutiny is the appropriate standard of review for a challenge to a statute restricting one's constitutional rights.
As we reported last week, attorney Charlie Wiggins announced his candidacy for Position 6 of the Washington Supreme Court, currently held by Justice Richard Sanders.
Justice Sanders was expected to run for another term on the court, and he recently filed the necessary candidate registration form with the Public Disclosure Commission. Justice Sanders won a special election in 1995 and was re-elected for two six-year terms in 1998 and 2004. He describes his understanding of the job on his campaign website:
These have been good years on the court. It is a great privilege and joy to attempt to protect and maintain the individual legal rights of every single individual who comes to court. That, in my opinion, is the job description of a judge, and, as it says in Article 1, Section 1 of our state constitution, the purpose of state government as well.
Stay tuned. We'll continue to bring news and information about the various candidates for the Supreme Court.
We have our first challenger in a state Supreme Court race.
Bainbridge Island attorney Charlie Wiggins has officially thrown his hat into the ring, filing a candidate registration form with the Public Disclosure Commission. He is running against Justice Richard Sanders.
Wiggins’ campaign website can be found here, where Wiggins states he is running against Sanders because of violations of the Code of Judicial Conduct and because "his decisions are not fair and impartial, and he opposes positive reforms to improve the process of electing judges." Should be a colorful campaign.
Chief Justice Barbara Madsen and Justice James Johnson are also up for re-election this year.
As election season approaches, this blog will provide information about candidates for the Supreme Court, including links to the evaluations and endorsements of other organizations.
UPDATE: The race is covered by the Olympian, Seattlepi.com, and the Kitsap Sun.
Note: The Supreme Court of Washington Blog neither endorses nor supports any candidate for judicial office.
The Supreme Court issued rulings in seven cases this morning, including two highly-anticipated decisions dealing with whether an authorization to use medical marijuana is a defense to criminal possession, and whether the state's Consumer Protection Act allows out-of-state litigants to join a Washington class action lawsuit.
Clayton v. Wilson, No. 81920-3. Justice Richard Sanders wrote the unanimous ruling holding that a couple’s marital community is liable for the intentional wrongful sexual acts of one spouse. Without his wife’s knowledge, Mr. Wilson repeatedly sexually abused a neighbor boy, Andrew Clayton, whom he was paying to do yard work at the Wilson’s home. After Mr. Wilson was arrested the couple began dissolving the marriage and executed a property settlement transferring 90 percent of community assets to Mrs. Wilson (and theoretically insulating the funds from any potential lawsuit). Clayton sued, and the entire marital community was found liable because the assaults occurred while Clayton was working for the community. The trial court also found fraud in the extremely lopsided division of marital property, and voided the transfer. The Court of Appeals agreed and the Supreme Court upheld the decision.
In re the Dependency of C.S., No. 81720-1. Justice Richard Sanders wrote the unanimous opinion holding that Amy Singleton’s parental rights had been improperly terminated. Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. The Supreme Court reversed this order as the State had not offered Singleton required training that would allow her to rehabilitate.
Schnall, et al. v. AT&T Wireless Services, Inc., No. 80572-5. Should AT&T Wireless customers nationwide be allowed to pursue a class action under the WA Consumer Protection Act? Chief Justice Barbara Madsen, writing for a 5-4 majority, declined to make Washington “a locus of nationwide class action litigation.” The Court said the trial court was correct in declining to certify a nationwide class.
Drum v. State, No. 81498-8. Justice Debra Stephens, writing for a 5-4 majority, affirmed Patrick Drum’s conviction for burglary after he entered a house while high on spray paint. Drum entered a drug program and signed a Drug Court Contract, under which he agreed that the court would determine his guilt on the burglary charge if he was terminated from the program. As part of this contract, he waived various rights including the right to testify and the right to a jury trial. Drum left the drug program, and the court found him guilty of burglary. Drum appealed, claiming that there was insufficient evidence to convict him and that the contract did not fulfill due process requirements for a guilty plea. The Jefferson County Superior Court found that Drum had stipulated that the evidence was sufficient, and that the contract did not violate due process because it was not a guilty plea.
State v. Erickson, No. 81594-1. The Supreme Court unanimously upheld an assault conviction, with Justice Tom Chambers writing the opinion. Anthony Erickson was convicted of fourth degree assault and released on probation, but his probation officer claimed that he violated the terms of his probation agreement. Erickson was summoned to a probation hearing, failed to appear, and an arrest warrant was issued. Upon arrest he was found with drugs on him and convicted of possession. He appealed, claiming the arrest warrant was invalid because there was no probable cause that he had violated probation (only the officer’s word). The Court wrote: “We conclude that the warrant was valid because it was supported by a well-founded suspicion that Erickson had violated the terms of his release.”
State v. Fry, No. 81210-1. Justice James Johnson writes a 4-vote lead opinion, with four other justices agreeing in a separate opinion, that rejected a defendant’s claim that he was qualified to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana. Two police officers were informed of a marijuana growing operation at the residence of Jason and Tina Fry. The officers smelled marijuana when they approached. Fry did not consent to a search, and presented a document purporting to be authorization for medical marijuana. The officers obtained a warrant and seized over two pounds of marijuana. At trial, Fry argued to suppress the marijuana because of his medical marijuana authorization. The judge denied the motion. The Court of Appeals upheld the trial court’s decision to allow the evidence seized at the Frys’ home, and the Supreme Court affirmed.
State v. Kelly, No. 82111-9. Dustin Kelly approached a couple, threatened to kill them both, and then shot at them, killing the man. In addition to murder, he was convicted of second degree assault (intentional assault with a deadly weapon). The court imposed firearm sentence enhancements on both crimes. Kelly argues that since the use of the firearm is already an element of second degree assault, imposing the sentence enhancement on the assault essentially punishes him twice for using the firearm—a claimed violation of double jeopardy. The Supreme Court unanimously rejected this argument, with Chief Justice Madsen writing the opinion.
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)
Magana v. Hyundai Motor Am., No. 80922-4. In a 7-2 vote, the Washington Supreme Court reinstated an $8 million default judgment against the Hyundai Motor Company for its “willful efforts” to undermine pretrial discovery in a personal injury lawsuit brought against the company.
Jesse Magaña was riding in a 1996 Hyundai Accent, driven by Ricky Smith. They saw an oncoming truck driven by Dennis Nylander that appeared to be in their lane. Smith swerved, driving the car off the road. Magaña was thrown out of the rear window and was rendered a paraplegic due to his injuries.
Magaña filed suit against Hyundai Motor America and Hyundai Motor Company, the Smiths, and the Nylanders. At trial one of Magaña’s expert witnesses testified that a different seat belt design would have prevented Magaña’s injuries. Magaña prevailed at trial and was awarded over $8,000,000 in damages. On appeal the Court of Appeals reversed the ruling as it applied to Hyundai, and remanded for a retrial to address the issue of liability.
Prior to the retrial, Magaña moved for a default judgment against Hyundai. He argued it was impossible to prepare a case based on Hyundai’s responses to discovery in the original trial and in preparation for the retrial. The trial court agreed, and imposed a default judgment against Hyundai. The court found there was no agreement between the parties to limit discovery, that Hyundai falsely responded to Magaña’s interrogatories, that Magaña was substantially prejudiced in preparing for trial, and that evidence was spoiled and forever lost. The trial court decided the only suitable remedy was a default judgment.
The Court of Appeals reversed this ruling, writing that there was “no prejudice to Magaña’s ability to retry his case resulting from Hyundai’s discovery violations” and that lesser sanctions would have been appropriate.
Today the Supreme Court, with Justice Richard Sanders writing for the majority, overturns the Court of Appeals and reinstates the $8 million default judgment. Court rules authorize a trial court to impose sanctions when a party fails to satisfy discovery requests, which can range from exclusion of evidence to default judgment. Harsh sanctions are justified when: “(1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed.”
The Supreme Court ruled that the trial court had correctly found Hyundai’s responses to Magaña’s request for production and interrogatory “false, misleading, and evasive,” and that these actions substantially prejudiced Magaña’s ability to prepare for trial. The Court reinstated the default judgment, and awarded Magaña reasonable attorney fees and costs.
Justice James Johnson (joined by Chief Justice Gerry Alexander) dissents, writing that while Hyundai willfully violated discovery rules, the record did support the “substantial prejudice” and “lesser sanctions” prongs are not established on this record.
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State v. Webb, No. 81314-1 (briefs and argument). Seattle radio personality Mike Webb was convicted of filing a fraudulent insurance claim in 2007 and was ordered to pay certain financial penalties. He filed a timely notice of appeal. While the appeal was pending Mr. Webb was tragically murdered and his body was discovered in the crawl space under his home about two months after his death. Mr. Webb’s attorney filed a motion in the Court of Appeals to abate the appeal and the underlying conviction and financial obligations. The Court of Appeals denied the motion, relying on past cases that dealt with the death of a criminal defendant.
The Supreme Court reviewed the question to determine whether the deceased defendant’s right to appeal requires that the conviction be abated. The Court held that appellate rules allow for the substitution of parties on appeal, which would be the appropriate method for heirs to challenge any financial obligations imposed on the defendant. Consequently, the Court ruled that as Mr. Webb died during his appeal, his heirs could be substituted. If no motion for substitution is filed, the Court directed that the appeal be dismissed and the conviction and all financial obligations shall remain in effect.
The Court reversed the Court of Appeals and remanded the case to allow for a substitution of parties. Justice Barbara Madsen wrote the opinion of the Court. Justice Richard Sanders dissented, criticizing the practical difficulties the decision created. “Obviously the substituted heir would not be subject to the same criminal penalties of the deceased defendant, and therefore, it is a stretch to say that ‘the interest of a party in the subject matter of the review has been transferred.’”
State v. King, No. 80948-8. Tyler King was riding his motorcycle southbound on Interstate 5 north of Vancouver city limits when he was stopped and issued a criminal citation for reckless driving by Vancouver police officer Jeff Starks. King had stood up on the pegs of his motorcycle, looked at the vehicle he was approaching, and accelerated to pass the vehicle. King and Starks both testified at the trial, offering different interpretations of the facts. Starks offered opinion testimony that King's driving had been reckless, which King's attorney did not object to at trial but then raised on appeal. King also challenged that the officer was outside of his jurisdiction without an interlocal agreement and without satisfying the statutory emergency exception.
Yesterday, the Supreme Court sided with King and held that Starks did not have jurisdiction to issue the criminal citation. The Court, in an opinion by Justice Sanders and joined by four other justices, determines that Stark's interpretation of King's actions would not have constituted "an emergency involving an immediate threat to human life or property."
King did not nearly hit another car, nor run a light, nor weave across traffic lanes. He did not pop a wheelie, cut off another car, nor, for that matter, drive in reverse along the shoulder. At most, King glared at the driver of the large truck, stood on his foot pegs for three to five seconds, and accelerated at high speed past the truck. As aforementioned, Starks could not verify that King accelerated away at what he thought was 100 m.p.h. Even so, the officer testified King slowed down as he approached other traffic and pulled over immediately when Starks signaled him to do so.
The majority concludes that the trial court was wrong to simply take the definition of reckless driving and assume that it "automatically fit within the emergency exception." The majority also suggests that the Court of Appeals erred in concluding that the opinion testimony issue was foreclosed by the lack of an objection at trial. Justice Chambers, who signed the majority opinion, wrote separately to respond to the dissent. Justice Fairhurst, joined by Justice Madsen, concurrs while arguing that "it is unnecessary to discuss, even as dicta, the officer's opinion testimony."
The Chief Justice, joined by Justice Owens, dissents.
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.
State v. Eriksen, No. 80653-5 (briefs and arguments). The state Supreme Court says that tribal police officers can pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation.
A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. He began following the vehicle and activated his emergency lights. After traveling a quarter mile the car pulled into a gas station located off the reservation. The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat. The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.
Ms. Eriksen was convicted for DUI. The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation. The Supreme Court agreed to hear the case to resolve this issue of first impression.
The Supreme Court said that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws. Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in hot pursuit of a violator. The court said this doctrine should apply to sovereign tribal nations as well. “The Lummi Nation Police Department has authority under the Lummi Nation’s sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, to enforce its laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”
Justice Richard Sanders wrote the unanimous opinion of the court.
Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. Eighteen-year-old Kristen Armantrout lived with her blind and diabetic mother. Kristen provided care and assistance to her mother and gave her Social Security check to the family. Kristen died due to a complication following ankle surgery. Her parents sued for wrongful death, claiming they were financially dependent on Kristen. The trial court agreed with the parents, but the Court of Appeals reversed and held that economically valuable services cannot be considered to assess a claim of financial dependence. Here, the Supreme Court unanimously reverses the Court of Appeals. The opinion by Justice Madsen distinguishes between "everyday services a child would routinely provide," and the kind of unique and potentially expensive services that had been provided by Kristen to her mother. (briefs and argument)
Seattle v. Robert St. John, No. 81992-1. After crashing his motorcycle in Seattle, Robert St. John was investigated for driving under the influence of alcohol. A police officer asked St. John to consent to a blood alcohol test, and when St. John refused, the officer obtained a warrant for the test. The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent law (RCW 46.20.308(1)) that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court
1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?
2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?
3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?
The Court today in an opinion by Justice Owens and joined by six other justices upholds the superior court and allows the blood test evidence. The Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer's statements about the Implied Consent law did not foreclose his obtaining the warrant. Justice Sanders, joined by Justice James Johnson, dissents. (briefs and argument).
In City of Woodinville v. Northshore United Church of Christ (No. 80588-1), the Court was asked whether a city violated a church's religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court of Appeals sided with the City.
In an opinion written by Justice Jim Johnson, the Court overturned the lower court, holding that the City's denial of the permit application violated Article I, Section 11 of the state constitution.
In the summer of 2006 the tent city organizers approached Northshore United about residing on church land. The church agreed, and submitted an application for a temporary permit to the City. At that time a short-term moratorium on temporary use permits was in place, which the City used to justify its refusal to process the church's application. The church allowed the tent city to come onto its property anyway, and the City sued for a restraining order and injunction.
Justice Johnson, joined by six other justices, held that the city's use of a moratorium to deny the church's permit application violated the state constitutional guarantee to "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship." (Article I, Section 11) There was no question of the City's sincere religious beliefs or that the moratorium was not in place to further a "compelling interest" of the City. So the primary question for the Court was "whether the City's actions substantially burden the free exercise of the Church's religious...worship."
The Court held that while incidental burdens on religion, such as requiring a permit, are not unconstitutional, refusing to process the church's permit application entirely was a substantial burden on religion. Since it reached this conclusion based on the state constitution, which the Court found to have greater protection than the federal bill of rights, the opinion did not address federal claims.
The majority opinion also addressed the question of the tent city being a possible nuisance to the church's neighbors, but found that while the city might have the ability to regulate the manner in which this type of activity is conducted, it cannot simply deny any consideration of the permit.
Justice Sanders, joined by Justice Chambers, filed a concurring opinion in which he agreed with the result but took issue with the majority's holding that general permitting requirements for churches are an incidental (i.e. constitutional) burden. Sanders focused on the constitution's "absolute freedom" language, and argued that allowing the "licensing of religion" is inconsistent with this broad constitutional protection.
Estate of Haselwood v. Bremerton Ice Arena, Inc, No. 80411-7. In 2002, the City entered into a concession agreement with Bremerton Ice Arena (BIA) to build and operate an ice arena on public land. The Haselwoods loaned $3,775,000 to BIA for the project, and BIA gave the Haselwoods a promissory note and a deed of trust. The project failed shortly after it began, and the excavation contractor, "RV" recorded a mechanics lien against BIA and the proposed facility in July 2003. A month later, BIA defaulted on the Haselwood loan and the Haselwoods brought a foreclosure action against BIA and its other creditors. The trial court granted partial summary judgment for RV, finding that the mechanics lien had attached only "to certain improvements to the facility," but not to the land or BIA itself. It eventually found that the Haselwood's deed of trust was superior to the claims of all of the other creditors.
The Court of Appeals affirmed in part, but found that the mechanic's lien related back to RV's first delivery of equipment and was superior to the Haselwoods' deed of trust. It also reversed an award of attorney fees to the Haselwoods. In an opinion by Justice Sanders and signed by four other Justices, the Court today upholds the Court of Appeals. Justices Stephens and Madsen concur, but would not foreclose RV's request for attorney fees. Chief Justice Alexander, joined by Justice Charles Johnson, dissents and would find RV's lien inferior to the Haselwoods' deed of trust. (briefs and argument)
Torgerson v. One Lincoln Tower, LLC, No. 80623-3. The Court of Appeals is affirmed in a unanimous opinion by Justice Sanders. Three real estate agents, Michael Miller, Vicki Ringer, and Joanne Faye Torgerson, were seller's agents for condominiums in One Lincoln Tower, then under construction. Each also contracted to purchase a unit, and their contracts included a provision limiting their remedies for sellers' breach. After some delays in the project and a change of ownership, the seller did breach and the agents sued, asking the court to strike down the remedy-limiting provision. The trial court entered summary judgment for the seller, which was affirmed by the Court of Appeals and is affirmed here as well, with attorneys fees also awarded to the seller. (briefs and argument)
Homestreet, Inc. v. Dep’t of Revenue, No. 80544-0 (briefs and argument). HomeStreet, Inc., is a residential mortgage lender that services loans it sells or securitizes to secondary lenders. It received tax deductions for the interest retained from these loans under RCW 82.04.4292 until the Department of Revenue (DOR) issued an order requiring HomeStreet to pay business and occupation (B&O) taxes. HomeStreet paid the taxes but then sued DOR for a refund. The trial court ruled for DOR, which was affirmed by the Court of Appeals. The Supreme Court reversed the Court of Appeals and ordered DOR to refund the taxes to HomeStreet. Justice Richard Sanders wrote the majority with five other justices joining. Justices Madsen and Chambers dissent (Justice Fairhurst did not participate).
State v. Koslowski, No. 80427-3 (briefs and argument). Duane Koslowski was convicted of first degree robbery, first degree burglary, and first degree unlawful possession of a firearm as a result of the robbery at Ms. Violet Alvarez’s home. Ms. Alvarez died before trial from causes unrelated to this case, but at trial the prosecution introduced statements Ms. Alvarez made to police officers investigating the break-in. Mr. Koslowski argues that his right of confrontation under the Sixth Amendment is violated by the admission of Ms. Alvarez’s statements. The U.S. Supreme Court has said this “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36 (2004).
Statements to police are “testimonial” when there is no ongoing emergency, and the primary purpose of the interrogation is to establish past events related to a later criminal prosecution. “Nontestimonial” statements are made in the course of a police interrogation to enable the police to address an ongoing emergency—for example, attempting to apprehend a suspect in the immediate vicinity.
In this case, the Washington State Supreme Court reasoned that although the police responded to Alvarez’s 911 call immediately, and although she was clearly frightened, the immediate danger had passed. The crime had been completed, and the burglars had left the area. Accordingly, the court decided Alvarez’s statements were testimonial in nature.
Writing for the majority, Justice Barbara Madsen said: “The confrontation clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Because Mr. Koslowski had no prior opportunity for cross-examination, the admission of Ms. Alvarez’s statements was constitutional error. This error was not harmless because without admission of these statements, there is not overwhelming, untainted evidence that Koslowski was armed at the time he committed the offenses involving Ms. Alvarez.” Justice Richard Sanders filed an opinion concurring in the result, while Chief Justice Alexander dissented, along with both Justice Johnsons.
The Washington Supreme Court has withdrawn its landmark public records ruling in Yousoufian v. Office of Ron Sims, after King County's motion that Justice Richard Sanders, who wrote the majority opinion, stood to benefit from the ruling. (Court order here and Seattle Times story here.)
The court says it will schedule arguments “in due course.”
The Yousoufian ruling provided guidelines for assessing the severity of penalties when a public agency violates the state's Public Records Act.
After the ruling issued, the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation. King County lawyers asked the Supreme Court to vacate the Yousoufian ruling and provide for new argument.
In April we wrote about the outcome of a possible rehearing:
What would happen if the court grants King County’s motion for a rehearing?
Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.
Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.
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)
State v. Garvin, No. 80941-1. His car had seen better days when, on October 21, 2005, Anthony Garvin was pulled over for a shattered windshield and inoperable brake lights. During the stop, Union Gap Police Officer Gregory Cobb noticed that the car's ignition was broken; Garvin had a knife on the passenger seat that he was using in place of a key. Officer Cobb and his partner removed Cobb from the car and performed a "pat-down" search, ostensibly a "Terry stop" according to Terry v. Ohio (a 1968 U.S. Supreme Court case permitting police to conduct a cursory, warantless search of a person who is believed to be "armed and presently dangerous.") During the search, a "dime bag" of methamphetamine was found in the coin pocket of Garvin's jeans. He was arrested and subsequently convicted for drug possession. Garvin appealed, challenging the legality of the search; the Court of Appeals held that the search was a legal Terry stop and affirmed the conviction. Justice Sanders, for a unanimous Court, holds that the search "exceeded the permissible scope of a limited Terry stop-and-frisk" and reverses the conviction. We hold it is unlawful for officers to continue squeezing -- whether in one slow motion or several -- after they have determined a suspect does not have a weapon, to find whether the suspect is carrying drugs or other contraband. If that were permissible, there would be little to distinguish a frisk incident to a Terry stop from a general search for contraband, and we strongly disapprove of such legal fiction. Indeed, one of the narrowly drawn exceptions to the warrant requirement would swallow the rule. (case briefs and argument)
Sanders v. State, No. 80393-5. In a 5-4 decision by a panel of pro tem justices (judges drawn from lower appellate courts to act as State Supreme Court justices in this case only), the Court upholds an appeals court decision that the State is not obligated to pay for a judge's defense in an ethics case if the judge "knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act."
In 2003, Justice Richard Sanders visited the Special Commitment Center (SCC) on McNeil Island, a State facility where certain convicted sex offenders were being held. A complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders talked with SCC residents who had cases pending before the Washington State Supreme Court. In 2005, the Commission held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct.
During the Commission's investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general refused, and Justice Sanders filed suit. A superior court judge dismissed the action, was upheld on appeal, and is upheld today. One dissent challenges that the majority fails to enforce the plain meaning of the statute or to create a workable framework for deciding future cases; a second dissent faults the majority for "improperly rel[ying] on the outcome of the underlying case as the basis for its decision." (case briefs and argument)
Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). Can a Limited Liability Corporation sue or be sued after its certificate of formation is canceled? No, says the Supreme Court in an opinion by Justice Madsen, after cancellation an LLC ceases to exist as a legal entity and can neither sue nor be sued. These consolidated cases arose when homeowners associations sued the LLCs that had built their communities but had subsequently been canceled. While the LLCs no longer exist, however, the Court holds that the LLC members may be sued based on the same veil-piercing provisions that would apply while the LLC remained in existance. Justice Charles Johnson, joined by three other justices, dissents. (case briefs and argument)
We'll have a more detailed review up shortly, but the Supreme Court has ruled that the attorney general had no duty to defend Justice Richard Sanders, at public expense, before the Commission on Judicial Conduct. At issue is whether the State, under RCW 43.10.030(3) is required to defend a judge who is alleged to have committed an ethics violation while otherwise within the purview of his or her official duties.
The Supreme Court will issue rulings in two cases tomorrow.
Sanders v. State, No. 80393-5 (case briefs and argument). It’s not often that a seated Supreme Court justice has his own case before the court, but tomorrow the court will rule in a case brought by Justice Richard Sanders. The question here is whether the State has a duty to defend a judge in disciplinary proceedings.
On January 27, 2003, Justice Sanders visited the Special Commitment Center (SCC) on McNeil Island. Following that visit, a complaint was filed with the Commission on Judicial Conduct alleging that Justice Sanders had had contact with SCC residents who had cases pending before the Washington State Supreme Court. The Commission investigated the complaint and in 2005 held that Justice Sanders had violated Canons 1 and 2(A) of the Code of Judicial Conduct. (The state Supreme Court eventually upheld this ruling. In re Disciplinary Proceeding Against Sanders, 159 Wash.2d 517 (2006).)
During the Commission investigation, Justice Sanders asked the attorney general to provide him with a defense at public expense, citing RCW 43.10.030 and .040, which charges the attorney general with the duty to defend state officers in their official capacity. The attorney general declined. Justice Sanders sued, and a superior court judge dismissed the action. On appeal, the Court of Appeals held that the attorney general acted within its discretion.
This case was heard by an panel of pro tem justices.
Chadwick Farms Owners Association v. FHC, LLC, No. 80450-8 and Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, No. 80459-1 (consolidated). The question addressed in these cases is whether limited liability companies can continue to sue and to be sued after they are cancelled in accordance with the Washington Limited Liability Companies Act. (case briefs and argument)
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.
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Justice Richard Sanders has proposed new court rules for appointing counsel for indigent defendants.
The proposed rules provide minimal standards to be satisfied before a judicial officer may appoint an attorney to render services to an indigent person. These standards are contained in the Standards for Indigent Defense Services as endorsed by the Washington State Bar Association.
In a Seattle Times opinion column, Justice Sanders argues that a public defender's high caseload, minimal support staff, low compensation and other factors can result in a violation of a defendant's constitutional right to effective counsel.
Although this is a national problem, here in Washington it is particularly acute since our state constitution in Article I, Section I, plainly states it is the very purpose of our government to "protect and maintain individual rights."
When judges appoint lawyers who can't get the job done, the fundamental purpose of our government is defeated. Unfortunately, our Supreme Court has set no standards to guide the trial court in making these appointments other than he or she be a lawyer.
The comment period for the proposed rules is open until April 30, 2009.
In January the Supreme Court issued an opinion in Yousoufian v. Office of Ron Sims, in which Justice Richard Sanders chastized King County for its failure to comply with the Public Records Act, and provided guidelines for assessing the severity of penalties when a violation occurs.
Last month the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation.
King County lawyers are now asking the Supreme Court to vacate the Yousoufian ruling. In a motion filed this morning, King County alleges that Justice Sanders “stood to personally gain” from that decision, and asks the court to replace Justice Sanders with a temporary justice to rehear the case.
We hope Yousoufian does not become an unfortunate casualty. The ruling has been hailed by open government experts for providing a much-needed analytical framework for reviewing government responses to citizen records requests. Mr. Yousoufian has been battling King County since the late 1990's, with two Supreme Court rulings to his name already. (Note: We filed an amicus brief in support of Mr. Yousoufian at an earlier stage of the case.)
What would happen if the court grants King County’s motion for a rehearing?
Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.
Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.
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.
Washington Supreme Court Justice Richard Sanders has responded to the Seattle Post-Intelligencer's article that said he could benefit from his ruling in Yousoufian v. Sims. Justice Sanders disputes the article's implications.
The truth, however, is another matter. I will not gain from the decision; the Court’s own ethics advisor advised I need not recuse myself on public record act cases and my vote was not determinative.
. . . As the court’s ethics advisor told me, just because a judge is getting a divorce is no reason for him to be disqualified on all divorce cases. And there is another ethical provision not mentioned which states it is the ethical duty of the judge to hear cases properly before him when disqualification is not required. In general recusals are discouraged except in clear instances where recusal is required. I have recused in many cases where I thought the rules required it, but didn’t need to here.
UPDATE: I'm a day late posting this, but the Court of Appeals hearing Justice Sanders' case says it does not have the authority to apply the Yousoufian ruling to his own case.
In January, Justice Richard B. Sanders authored an opinion that provided trial courts guidelines for assessing the severity of penalties when public agencies violate the Public Records Act. Yousoufian v. Office of Sims, 200 P.3d 232 (2009).
The Seattle Post-Intelligencer reports today that Justice Sanders could benefit from the ruling in his own public records lawsuit. Experts are mixed on whether this is appropriate. Several law professors say Sanders should not have participated in the Yousoufian case. Sanders says the law applies equally to all people, even judges. Sanders also said the Supreme Court’s ethics expert told him in May 2006 it was not necessary to recuse himself from public records cases.
I’ll let other folks comment on the ethical implications, but it’s worth noting that Sanders has been a consistent advocate for open, transparent government, so it’s hard to say his opinion in Yousoufian was a departure motivated out of personal gain. For example:
UPDATE: Justice Sanders has responded to the P-I.
Washington Supreme Court Justice Richard B. Sanders has an opinion piece in today's Seattle Times where he offers some words of advice to Attorney General Eric Holder. He urges Mr. Holder to respect the rule of law, and has some harsh words for the Bush Administration.
If the rule of law means anything, it must mean at least this: Those who act or are in positions of authority in our government are subject to the same laws as everyone else. This has been the American tradition, the crown jewel of a free society, a government of laws, not of men.
The Times editor notes that Justice Sanders made national headlines last year when he yelled "Tyrant!" at then-U.S. Attorney General Michael Mukasey during a dinner in Washington, D.C.
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