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Lamtec Corp. v. Dep't of Revenue, No. 83579-9. The Department of Revenue ordered Lamtec, a New Jersey corporation that manufactures construction materials, to pay Business and Occupation (B&O) taxes. Lamtec paid under protest and initiated this challenge. Lamtec has no employees or operations based in Washington state, but it does sell to buyers in Washington and sends sales employees into the state. Lamtec argued that this did not create a sufficient nexus for Washington to impose business taxes on the corporation and thus alleged a violation of the Dormant Commerce Clause (link to PDF article). The trial court dismissed Lamtec's action; the court of appeals affirmed.

The State Supreme Court affirms the courts below, reaffirming its previous decision in Tyler Pipe Industries v. Department of Revenue (1986; affirmed by the Supreme Court of the United States). In that case, the Court held that Tyler's use of independent contractors to represent its interests in Washington state created sufficient nexus in the state to subject Tyler to B&O taxes. The Court explicitly refuses to create a bright line rule and holds that the use of sales representatives within the state to maintain its market created a sufficient nexus to tax Lamtec. Justice Chambers wrote for a six-member majority.

Justice Alexander, for himself and two other justice, dissents. He would distinguish Tyler Pipe because the contractors in that case were employed specifically within Washington state unlike Lamtec's employees who occasionally visited the state. (briefs, argument)

Rahman v. State, No. 83428-8. The Department of Ecology provided intern Mohammad Rahman with a state-owned car to drive from Olympia to Spokane so that he could accompany another department employee on an inspection. Against department rules, Rahman brought his wife, Rizwana Rahman, on the trip. During the drive, he lost control and crashed. Rahman's wife was seriously injured and she sued the State, alleging that the State is "vicariously liable under the doctrine of respondeat superior for her husband's negligence in causing the accident."

The trial court granted summary judgment to the State, but the Court of Appeals reversed and ordered partial summary judgment in favor of Rizwana Rahman. The Supreme Court sustains the court below, holding that the state is subject to the same vicarious liability as private employers. It further holds that an employer is liable for an employee's negligent acts done in the service of the employer even when, as here, the injured party's presence violated a command of the employer.

The doctrine [of respondeat superior] rests upon the relationship between an employer and employee, which is characterized by a right of control. The very fact that the employer is in a position to impose workplace rules and standards justifies vicarious liability, even where the employee acts in a forbidden way.

Justice Stevens wrote the majority opinion, which was signed by five other justices. Justice James Johnson, joined by the Chief Justice and Justice Alexander, dissents and accuses the majority of "extravagantly expand[ing] state liability." (briefs, argument)

State v. Barber, No. 83640-0. Danny Joe Barber pleaded guilty to felony DUI as part of a plea deal after a hit-and-run accident. The Kitsap County prosecutor recommended a minimum sentence of confinement to run concurrent with another sentence, but the prosecutor was either ignorant of or simply ignored a legal requirement of 9 to 18 months of community confinement as part of a felony DUI sentence. The Department of Corrections alerted the prosecutor's office to the error. Prosecutors moved to amend the sentence, but then agreed with Barber that he could demand specific performance of the original sentence. The trial judge disagreed and imposed an additional term of community custody to Barber's sentence. Barber appealed.

The Court holds that specific performance is not an available remedy for an illegal sentence. It overturns its previous decision in State v. Miller (1988) to the extent that it conflicts with this decision. Justice Stephens wrote for a unanimous 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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The Supreme Court today decisively ruled that sentencing enhancements for the possession of a weapon during the commission of a crime are not constitutionally prohibited. The case is State v. Aguirre, No. 82226-3 (briefs and argument).

Daniel Aguirre was convicted in Thurston County Superior Court of assault and rape. He unsuccessfully appealed to the Court of Appeals (Div. 2), arguing that a number of errors occurred at trial. Aguirre argues the trial court committed a number of errors, and argues that the deadly weapon enhancement to his sentence for assault with a deadly weapon violates double jeopardy. The double jeopardy clauses of both the federal and state constitutions protect defendants from being twice put in jeopardy for the same crime.

The Supreme Court, with Justice James Johnson writing the unanimous opinion, rejected all of Aguirre’s claims. On the double jeopardy issue the Court said: “Washington courts repeatedly have held that double jeopardy is not offended by weapon enhancements even when being armed with the weapon is an element of the underlying crime.”

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State v. Williams-Walker, No. 78611-9, consolidated with State v. Graham and State v. Ruth (briefs and arguments). Under the Sixth Amendment to the U.S. Constitution and article I, sections 21 and 22 of the Washington Constitution, the right to a jury trial requires that sentences be authorized by the jury’s verdict.

State law allows criminal sentences to be enhanced with additional incarceration if a firearm or deadly weapon is used in the commission of the crime. Where there is a finding that a deadly weapon was used, a two-year enhancement is authorized. Where the jury specifies that a firearm was used, a five-year enhancement is available.

In each of the three cases reviewed today, the juries were given special verdict forms for a deadly weapon enhancement, and they returned answers in the affirmative, but the trial courts each imposed the more severe five-year sentence enhancement.

The Supreme Court has previously stated that a defendant's right to a jury trial is violated if a firearm enhancement is imposed with the jury explicitly authorizing it. The cases today address a more nuanced question: whether a trial court can impose a firearm enhancement in the absence of a jury finding by special verdict that the defendant used a firearm, where the juries only authorized the less punitive deadly weapon enhancement.

The State argues that the firearm enhancement should be permitted in two of the cases as the juries found, through their guilty verdicts, that the defendants committed the crimes using a firearm. Ruth and Graham were both charged with first degree assault with a firearm, and a conviction requires the jury to find that a firearm was used.

The Court disagreed. “We decline to hold that guilty verdicts alone are sufficient to authorize sentence enhancements. If we adopted this logic, a sentencing court could disregard altogether the statutory requirement that the jury find the defendant's use of a deadly weapon or firearm by special verdict. Such a result violates both the statutory requirements and the defendant's constitutional right to a jury trial.”

In a 6-3 decision written by Justice Charles Johnson, the court vacated the enhanced sentences and remanded the cases for resentencing. Justice Mary Fairhurst and two others dissented.

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State v. McCormick, No. 81193-8. David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he "not frequent areas where minor children are known to congregate...." McCormick's community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick's first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argues that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence. The Court holds that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court's decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices. Justice Sanders dissents, asserting that "[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate." (briefs and argument)

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In re Pers. Restraint of Brooks, No. 80704-3. Jeffrey Brooks, convicted of three counts of first-degree robbery and one count of residential burglary, was sentenced to 120 months in prison plus 18 to 36 months of community custody. He challenges the sentence as exceeding the maximum, which is 120 months for both imprisonment and community custody. In a unanimous opinion by Justice Chambers, the Court upholds the courts below and finds Brooks's sentence lawful. The Court reasons that Brooks will likely earn early release credits that reduce his sentence below the maximum and, if he does not, the sentence was already amended to note that Brooks total time in confinement and supervision may not exceed 120 months. "We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the apropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum." (briefs and argument)

State v. Hughes, No. 81270-5. Raymond Hughes admitted to sexual intercourse with a 12-year-old girl with cerebral palsy whom he had been hired to nurse. He was charged with both second-degree rape and second-degree rape of a child. Hughes challenges that the two charges amounted to double jeopardy and that his exceptional sentence of 102 months to life is an indeterminate exceptional minimum sentence that exceeds the trial court's authority. Here, in a unanimous opinion by Justice Charles Johnson, the Court holds that the two charges do amount to double jeopardy because they are based on the same single incident and the elements of each crime are essentially identical. The Court rejects Hughes's challenge to his sentence because he was convicted before the Sentencing Reform Act amendments that are essential to his argument. The case is remanded to the trial court to vacate one of the two convictions. (briefs and argument)

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State v. Knippling, No. 80848-1.  The issue is whether a juvenile conviction for second degree robbery qualified as a “strike” under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). Writing for a unanimous court, Chief Justice Gerry Alexander concluded that the State has not met its burden of showing that Tucero Knippling is a persistent offender under the POAA.

Tucero Knippling was convicted on ten felony counts for several home invasion robberies. The prosecutor sought sentencing of Knippling as a persistent offender under the Persistent Offender Accountability Act (also known as the “Three Strikes You're Out Law”). The previous convictions included a 1999 second degree robbery conviction and a 2002 second degree assault conviction. Knippling’s defense attorney challenged the use of the 1999 conviction as the defendant had been tried as an adult at the age of 16. The trial court ruled that Knippling did not qualify as a persistent offender as his 1999 conviction was invalid, and the Court of Appeals affirmed.

The 1999 judgment and sentence indicated on its face that Knippling was 16 years of age at the time of the conviction. According to the record, Knippling was in superior court because the State had initially charged him with first degree robbery, a crime over which the superior court has automatic jurisdiction. Although plea negotiations resulted in the first degree robbery charge being reduced to second degree robbery, a crime over which the juvenile court had exclusive jurisdiction, there had been no remand to juvenile court.

In order to establish Knippling's third strike, the State had to prove that Knippling was convicted as an offender on two prior and separate occasions. In persistent offender proceedings under the POAA, the State bears the burden of proving by a preponderance of the evidence the existence of prior convictions, whether used for determining an offender score or as predicate strike offenses for purposes of the POAA.

The Supreme Court said the State did not meet its burden of showing that Knippling was convicted as an "offender" in 1999 because there was no evidence in the record that the superior court had jurisdiction over Knippling. “This is critical because, as we noted above, to classify Knippling as an ‘offender,’ the State had to show that Knippling was convicted of an automatic decline charge or that the juvenile court declined jurisdiction. The State has shown neither.”

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In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, Anthony Bradley was twice arrested for possession of cocaine with the intent to deliver. One charge was reduced to simple possession and Bradley pleaded guilty to both. He later discovered that his offender score on the lesser charge had been miscalculated, suggesting a longer standard sentence for that charge. The question here is whether his pleas were "part of an indivisible 'packaged deal,'" allowing Bradley to withdraw both. The Court holds that the pleas are indivisible and grants the petition with a majority opinion by Justice Stephens, joined by Justices Chambers, Fairhurst, C. Johnson, and Madsen. Justice Owens, joined by Justice Sanders, concurs but suggests the Court should have ordered "additional fact finding on remand...." Chief Justice Alexander, with Justice J. Johnson, dissent. (Case briefs and argument)

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