Supreme Court of Washington Podcast - Interview with Justice Richard Sanders

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...

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.

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.”

So what does the court look like without Justice Sanders?

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.

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.
 

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.

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.

City of Seattle v. Holifield, No. 83277-3

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.”

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.

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

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.

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.

Rating

• King County Bar Association: Well Qualified
• Municipal League of King County: Good
• Citizens' Alliance for Property Rights: Outstanding

Notable Endorsements

Individuals

• Justice Tom Chambers
• Former Justice Phil Talmdage
• Attorney General Rob McKenna
• Congressman Ron Paul

Newspapers

• Seattle Times
• Tacoma News Tribune
• Vancouver Columbian
• Spokane Spokesman-Review
• Centralia Chronicle
• Everett Herald
• Kitsap Sun

Organizations

• Association of Washington Business
• Washington State Farm Bureau
• Building Industry Association of Washington
• Gun Owners Action League
• Washington State Republican Party
• Washington State Libertarian Party

Websites

• Campaign Site
• Voter's Guide
• Facebook

In the last week, Justice Jim Johnson has been endorsed for re-election by the Seattle Times, the Olympian, the Tri-City Herald, and the Yakima Herald.

Justice Richard Sanders has been endorsed by the Spokesman-Review.

Sanders’ opponent Charlie Wiggins has been endorsed by the Tri-City Herald and the Yakima Herald.

Johnson has been a consistent protector of open government in his six years on the court and has earned the people’s confidence by defending our state’s superb primary system. He has a big advantage in experience; Rumbaugh has never served as a judge and is too closely tied to labor unions.

Sanders is another incumbent who has earned re-election, despite his maverick tendencies. He has both angered and drawn endorsements from Republicans and Democrats, proving his independence. He has served on the court since 1995. Controversial but brilliant and articulate, Sanders’ disregard for partisan influences, and his fierce defense of individual rights makes him a good fit for the court.

The Spokesman-Review also endorses Sanders. "We don’t always agree with him, but we know he is taking a principled stand."

Meanwhile, the Herald endorsed Johnson, but wants to see Sanders and challenger Charlie Wiggins advance to the general election for a more detailed debate.

We'd like to see the libertarian Sanders, a controversial but valuable member of the court, engage in a spirited contest with his strongest challenger, who we believe to be Bainbridge Island attorney Charlie Wiggins. An enlightening debate could ensue, spotlighting issues such as the rights of crime victims vs. the rights of the accused.

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.

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.