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State v. Martin, No. 83709-1. Timothy Martin appeals his convictions for kidnapping and robbery. During his trial, a prosecutor's questions implied that Martin, who had previously read the evidence against him, had tailored his testimony to be consistent with that evidence. Martin appealed, alleging a violation of his rights under article I, section 22, of the Washington State Constitution. The Court of Appeals held article I, section 22, to be coextensive with the Sixth Amendment as it applies here according to Gunwall and, based on the U.S. Supreme Court's decision in Portundo v. Agard (2000), affirmed the trial court.

The Washington Supreme Court disagrees with the Court of Appeals Gunwall analysis and thus with their reliance on Portundo. However, the Court agrees with the result reached by the Court of Appeals. When a defendant chooses to testify, prosecutors are free to challenge the defendant's credibility as with any other witness. Even Justice Ginsberg's dissent in Portundo indicated that she would allow such questions during cross examination (in Portundo, the suggestion that the defendant had tailored his testimony was made during the prosecution's closing argument).

The Court affirms the result reached by the Court of Appeals and embraces Justice Ginsberg's position in Portundo. Justice Alexander wrote for the Court, and the opinion was signed by four other Justices. Justice Stephens, with Justices Chambers and Fairhurst, concurs in the result, but only because she would find the prosecutor's questions here to have been harmless error. Justice Pro Tem. Sanders dissents and would put this area of the defendant's credibility beyond the reach of cross examination. (briefs, argument)

Washington Imaging Servs., LLC v. Dep't of Revenue, No. 84101-2. Washington Imaging is a medical imaging company that contracts with Overlake Imaging Associates, whose doctors interpret the images. Washington Imaging challenges a Department of Revenue decision that Washington Imaging owes Business and Occupation taxes on the money it receives from patients and then pays to Overlake Imaging Associates. The trial court granted summary judgment to the Department. It found that Washington Imaging was not acting as the agent of its patients in paying Overlake Imaging Associates, thus the payments in question were revenue subject to B&O tax. The Court of Appeals reversed that decision. The Supreme Court reinstates the trial court's grant of summary judgment. The Chief Justice wrote for a unanimous Court. (briefs, argument)

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State v. Ish, No. 83308-7. Nathaniel Ish beat his girlfriend to death and was convicted of second degree felony murder. He challenged his conviction on multiple grounds; it was upheld by the Court of Appeals. The Supreme Court accepted review only to consider whether the prosecution's reference to a witnesses agreement to testify truthfully constituted improper "prosecutorial vouching."

Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)

The Court today issues a lead opinion for four justices, a concurring opinion for another four justices, and a dissent by Justice Sanders. The lead opinion, by Justice Chambers, holds that the trial court did abuse its discretion by allowing the prosecution to reference the witness agreement before the witness's credibility was challenged by the defense; the error, however, was harmless. Justice Stephens wrote the concurrence, finding no error. Justice Sanders agrees with the lead opinion that the trial court did err, but disagrees that the err was harmless and would have reversed the lower courts. (briefs, argument)

State v. Moeurn, No. 82995-1. Lauren Moeurn challenged his sentence for second degree assault with a deadly weapon enhancement, arguing that the trial court miscalculated his offender score. The trial court had treated an "attempt" offense as a completed offense, thus changing a class-C felony to a class-B felony and doubling the number of years (from 5 to 10) for it to "wash out" for the purposes of calculating Moeurn's offender score.

The state actually conceded the issue at the Court of Appeals, but the Court rejected the concession and upheld Moeurn's sentence. The Supreme Court today unanimously reverses the courts below, quoting at length from RCW 9.94A.525 to show that the rule for which offenses to include and the rule for how to score included offenses are different. While the latter requires treating attempt offenses as if completed, the former does not. Justice Alexander wrote for the Court; the case is remanded for resentencing.

State v. Stubbs, No. 81650-6. Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing most of Goodwin's body. Stubbs was convicted and given an exceptional sentence due to his victim's injuries. Stubbs challenges the sentence, arguing that no injury short of death can exceed "great bodily harm" in RCW 9.94A.535(c)(y). Eight members of the Court today agree with Stubbs. The majority opinion is written by Justice Alexander, and the case is remanded for resentencing. Justice James Johnson dissents. (briefs, argument)

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City of Aberdeen v. Regan, No. 82476-2. Francis Regan was convicted of fourth degree assault in Aberdeen Municipal Court. The Court sentenced him to 365 days in jail, but suspended 360 days of the sentence in favor of placing Regan on probation for 24 months. A condition of Regan's probation required that he have no "criminal violations of law...."

During his probation, Regan was charged, tried, and acquitted for fourth degree assault and criminal trespass. The city moved to revoke his probation; Regan argued that the city was collaterally estopped by the acquittal. The municipal court revoked 5 days of Regan's suspension. He appealed and the superior court reversed; the city appealed and the Court of Appeals reversed and reinstated the ruling of the municipal court.

The Supreme Court accepted review of the case to consider whether a probation condition requiring no "criminal violations of law" requires a court

to find beyond a reasonable doubt that the defendant has committed a crime or find that the defendant has been convicted of a crime before the court may revoke the suspension?

The Court today affirms the Court of Appeals. Probation is "not a 'matter of right but is a matter of grace, privilege, or clemency granted to the deserving.'" In Regan's case, his probation included a condition that "unambiguously restrict[ed him] from engaging in conduct that is proscribed by the criminal law." Because the standard in probation hearings is "reasonable satisfaction," the acquittal (based on the higher "beyond a reasonable doubt" standard) did not estop the city from finding Regan in violation of his probation. The majority opinion is written by Justice Fairhurst and joined by four other justices.

Justice Alexander, joined by Justices Chambers and James Johnson, finds the majority's position in agreement with the Court's precedent and reluctantly concurrs.

My aversion to the result stems from my view that it is somewhat unfair for a city to seek revocation of Francis Regan's probation for noncompliance with a condition that he have "[n]o criminal violations of law" when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.

Justice Sanders dissents. He would find the language ambiguous, apply the rule of lenity, and reinstate the decision of the superior court. (briefs, argument)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Fitzpatrick v. Okanogan County, No. 81257-8. Two couples, the Fitzpatricks and Sturgills, purchased property in 1980 along the Methow River. They built a log house and garage more than 80 feet back from the river and above the 100-year flood level. In 2002, flooding washed away the house "and a substantial amount of the real property on which it was situated."

The couples brought this action against the state and county, alleging that the flood damage was a result of the governments' improvements to a dike upriver. The couples presented evidence that the dike, which protects a state highway, irrigation projects, and private properties upriver, cut off the river from natural overflow channels. As a result, the mild 2002 flood event destroyed the couples' house and damaged their real property. The couples' complaint "contained claims for inverse condemnation, trespass, negligence, and wrongful injury or waste of property."

The trial court granted summary judgement for the governments based on the common enemy doctrine. The Court of Appeals reversed the trial court, "holding that the common enemy rule does not apply if a landowner obstructs a watercourse or natural drainway or prevents water from entering a flood channel." The Supreme Court granted review to consider "whether the owners' inverse condemnation claim may proceed ... in light of the common enemy rule."

The Court sustains the Court of Appeals and remands the case to the trial court.

Under the summary judgment standard, which requires us to view the facts and the inferences from those facts in the light most favorable to the nonmoving party (the owners), it is apparent that there is a factual issue about whether the water that caused damage to the owners' property was water that was diverted from the natural watercourse, and if so, whether liability for that damage flows from the County and State's construction of the dikes.

The Court also rejects the governments' claim that the owners have no recovery in inverse condemnation because the damage was not a necessary consequence of the dike improvements. There too, the Court finds an issue of material fact to be resolved at trial. Justice Alexander wrote for the majority and was joined by six other justices. The Chief Justice wrote a dissent, which Justice James Johnson also signed, arguing that the majority misconstrues earlier case law because it "misunderstands the nature of riparian rights...." (briefs, argument)

In re Marriage of Freeman, No. 82283-2. Rob and Robin Freemen were married when, in 1998, Robin moved for a protective order against Rob. The order was issued and subsequently made permanent, based on a physical confrontation between Rob and one of Robin's teenage children and Robin's fear of Rob's possession of firearms and his military training. The couple divorced and Rob left Washington state. In 2006, Rob moved to terminate the protective order, which was preventing him from receiving a security clearance and thus from pursuing certain job opportunities. The court commissioner denied Rob's motion, he appealed, and the Court of Appeals reversed the commissioner.

With an opinion by Justice Sanders and joined by five other justices, the Court affirms the court below and holds that the commissioner abused her discretion.

As much as it is possible to prove a negative, Rob has done so here. The likelihood that Rob will commit future acts of domestic violence on these facts is low. Hand in hand with that determination, the facts do not suggest Robin's fear of Rob is based on a reasonable threat of imminent harm.

Justice Fairhurst, joined by the Chief Justice and Justice Stephens, dissents. (briefs, argument)

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State v. Bunker, No. 81921-1. Three defendants, each convicted of violating a no-contact order, appeal those convictions. Looking to a "shall arrest" clause in the statute," defendants argue that the law (former RCW 26.50.110) "criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place."

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

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

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

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

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

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

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

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G-P Gypsum Corp. v. Dep't of Revenue, No. 81995-5. The City of Tacoma imposes a tax on the use of natural gas. Gypsum operates a manufacturing plant in the City. Gypsum purchases natural gas outside the City and transports it to the plant. Gypsum claims that according to the statute, "use" occurs where the gas is delivered, which is outside Tacoma's taxing jurisdiction. The Court of Appeals agreed with Gypsum.

Today, the Supreme Court overturns the lower court and holds that Gypsum does "use" the natural gas within Tacoma. The majority opinion finds that "the local BNG [brokered natural gas] tax holds a special position within the universe of Washington's use tax provisions." Rather than the usual statutory definition of "use," the Court applies the more ordinary definition to find that Tacoma can tax Gypsum's consumption of natural gas.

Justice Stephens wrote the majority opinion and was joined by Chief Justice Madsen and Justices Owens, Chambers, and Fairhurst. Justice Sanders dissents, joined by Justices Alexander, Charles Johnson, and James Johnson, arguing that the statutory definition is "plain on its face." (briefs, argument)

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McCurry v. Chevy Chase Bank, No. 81896-7. When Chris and Anne McCurry paid off their mortgage with Chevy Chase Bank, the total amount as itemized by the Bank included a $20 fax fee and a $2 notary fee. After paying the full amount, they filed this class action lawsuit. The McCurrys allege breach of the terms of the deed of trust, unjust enrichment, and violation of the Washington Consumer Protection Act. The Bank responded by arguing that federal regulations preempt these state law claims. The King County Superior Court agreed and dismissed the McCurry's complaint; the Court of Appeals affirmed.

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

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

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

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

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

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In Re Discipline of Terry J. Preszler, No. 200,570-5. Attorney Terry Preszler represented a couple in a bankruptcy. He failed to navigate correctly some of the rules related to a personal injury settlement, and was not forthright when he discovered his mistakes. The Washington State Bar Association alleged 17 counts of misconduct by Preszler and the Association's Disciplinary Board found that he had violated five and recommended a three-year suspension from the practice of law. Preszler challenges the Board's determination on several issues.

The Court upholds the Board on most points and imposes the suspension. Justice Fairhurst writes for the majority and is joined by five other justices. Justice Sanders, joined by Justices Chambers and James Johnson, dissents and would give greater weight to the mitigating factors and reduce the suspension. (briefs and argument)

Kustura v. Department of Labor, No. 81478-3. Several persons with "limited English proficiency" appealed determinations by the Department of Labor and Industries, and included in their claims a demand that the Department provide them with interpreters for all interactions with the Department. RCW 2.43.040 grants persons with limited English proficiency the right to translation services paid for by taxpayers where the government has instituted a legal proceeding.

Here, the Court upholds the Court of Appeals, which determined that the Department did not initiate the proceedings. It further casts doubt on whether the Department's proceedings here qualify as legal proceedings under the RCW. Justice James Johnson authored the Court's opinion, in which six other justices concurred. Justice Chambers, joined by Justice Sanders, dissents. (briefs and argument)

State v. Grenning, No. 81449-0. Neil Grenning was charged with 72 sex crimes, including 20 counts of possession of child pornography related to pictures found on his computer hard drives. The trial judge, at the request of the prosecutors, issued a restrictive order preventing copies of the hard drives from being turned over to the defense, though the defense was provided with access to them. Potential defense expert witnesses apparently refused to investigate the hard drives without the ability to take them to their own computer laboratories, and the defense did not present an expert witness regarding the hard drives at trial.

Grenning was convicted on all but one of the charges, including all of the instances of child pornography, and sentenced to 117 years in prison. He appealed, challenging the limitations placed on the hard drive evidence. The Court of Appeals agreed with Grenning and ordered a new trial for the child pornography charges; the state appealed.

The Court here upholds the Court of Appeals. In an opinion by Justice Chambers and joined by five other justices, the Court finds that its decision in State v. Boyd, "which held that the defense was entitled to a mirror image copy of the defendant's computer hard drives," controls the outcome here. Justice Madsen, joined by Justices Alexander and James Johnson, dissent and "disagree with the majority's recitation of the facts, its legal analysis, and its result." (briefs and argument)

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Lawson v. City of Pasco, No. 81636-1. Paul Lawson owns and operates a mobile home park in the City of Pasco. The City issued Lawson a citation for permitting one of his tenants to live in an RV, which violated a city ordinance. Lawson challenged that the ordinance was preempted by state law, specifically the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA, RCW 59.20). The trial court found for Lawson, but was reversed by the Court of Appeals.

In today's five-to-four decision and with four opinions, the Supreme Court affirms the Court of Appeals. Justice Charles Johnson wrote the majority opinion, finding that the state has not preempted the field of mobile home park regulation and that Pasco's ordinance did not conflict with the MHLTA.

The Chief Justice signed the majority opinion and also wrote a short concurrence noting that both the state and local laws have been changed to allow tenants to live in RVs. Justice Sanders, joined by Justices Gerry Alexander and James Johnson, dissents and would hold that "the State has preempted the field of mobile home park regulation." Justice Fairhurst, in her own dissent, argues that "Pasco's ordinance ... conflicts with the MHLTA." (briefs and argument)

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