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

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

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

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

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

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

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

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In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new commitment trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

UPDATE: Nina Shapiro at the Seattle Weekly has this article criticizing the Court's decision in Pouncy's case.

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In re Det. of Fair, No. 80498-2. David Tyler Fair was charged with molesting several young girls, plead guilty to one count of second degree child molestation, and was sentenced to 20 months in prison. The sentence was suspended as part of a Special Sex Offender Sentencing Alternative (SSOSA). Fair failed to meet the requirements of that sentence, committed a robbery, then fled the state. Eventually, after being imprisoned in New Mexico, Fair was returned to Washington to serve his original sentence and the robbery sentence. In a treatment program, he admitted numerous other sexual contacts with children between 2 and 12 years old. The State petitioned to have Fair committed as a sexually violent predator.

Fair challenged his commitment, arguing that the State was required to "plead and prove a recent overt act." The Court today holds that the Sexually Violent Predator Act (RCW 71.09) only requires the state to prove a recent act if the person is not incarcerated. The Court further holds that this interpretation of the Act does not violate Fair's right to due process, in part because "due process does not require that the absurd be done before the compelling state interest can be vindicated." Justice Jim Johnson wrote the lead opinion, joined by Justices Madsen and Owens. Justice Fairhurst, joined by Justice Charles Johnson, concurs, but offers a slightly different analysis.

Justice Sanders, joined by the Chief Justice, dissents, arguing that the statute plainly requires that a person must be in total and continuous confinement following the original sex offense. Because Fair was originally released and only later incarcerated, and because he was actually serving only the robbery sentence at the time of the commitment proceedings, the dissent would require the state to plead and prove a recent overt act. Justice Chambers joined the dissent, but only as to the result.

In re Pers. Restraint of Duncan, No. 81230-6. Bryan Duncan challenges his commitment as a sexually violent predator based on several evidentiary rulings of the trial court. Duncan was convicted of three counts of first degree child molestation in 1992 and 1993. The State moved to commit him in 1996 and he was finally committed in 2005 (the Court notes that the nine-year delay is troubling, but was mostly attributable to Duncan and was not raised as an issue). Duncan challenges the trial court's admission of evidence that he refused a psychological evaluation and its refusal to allow Duncan to present evidence about the treatment program at the Special Commitment Center and about his proposed roommate if he was released.

The Court today holds, in an opinion by Justice Chambers, that the trial court did not abuse its discretion in the evidentiary rulings. Justices Charles Johnson, Madsen, Owens, Fairhurst, and Jim Johnson and Justice Pro Tem. Philip Thompson joined the majority opinion.

Justice Sanders dissents, arguing that allowing the reference to Duncan's refusal to be reevaluated was "irrelevant and prejudicial." He would also find the refusal to allow Duncan's evidence about his proposed roommate after the state had introduce its evidence about the roommate to be reversible error. The Chief Justice, in a separate dissent, agrees with Sanders except that he would find the trial judge "impermissibly commented on the evidence by stating to the jury that Duncan 'did not wish' to be reevaluated."

State v. Patton, No. 80518-1. Randall Patton was wanted on a felony warrant when a Skamania County Sheriff Deputy spotted him. Patton was leaning into his own car through the window, rummaging with something on the seat. The Deputy told Patton he was under arrest and Patton fled, but was soon apprehended inside a trailer. Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals. Today, the Supreme Court unanimously sides with Patton and the trial court.

The Court first disagrees with the trial court, which had found that Patton was not arrested until he was taken into custody in the trailer. He was arrested when the officer "manifest[ed] an intent to take [him] into custody" while Patton was standing by his car. Nevertheless, "the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence."

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Justice Stephens wrote the majority opinion, joined by all other justices except for Justice Jim Johnson, who concurred but found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.

Thompson v. Hanson, No. 81311-6. The Court resolves a dispute between the Courts of Appeals over Washington's Uniform Fraudulent Transfer Act (UFTA). Division Three had held that a creditor can only enforce their rights against a transferee who has received fraudulently conveyed property from a debtor if the transferee had "intent to hinder or delay [the] creditors." Today, the Court unanimously eschews that position and upholds a Division One ruling that no proof of intent is required by the UFTA. Justice Owens writes the main opinion and Justice Madsen concurs, but would not have reached one of the issues (the "offset" provision) addressed by Owens.

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Abbey Road Group, LLC, et al. v. City of Bonney Lake, No. 80878-3. Abbey Road Group intended to build a 575-unit condominium complex in Bonney Lake. On October 12, 2005, Abbey Road filed a site plan application ("Commercial or Multi-family Site Plan Review Application Form Type 3 Permit"). Later that day, the City passed an ordinance down-zoning Abbey Road's property from commercial to "Residential/Conservation District." Abbey Road appealed, alleging that their development rights had vested with the filing of the site plan application. The hearing examiner disagreed, finding that development rights could not vest until the filing of a building permit application (RCW 19.27.095). The Superior Court reversed and then the Court of Appeals reinstated the hearing examiner's ruling in favor of Bonney Lake.

The Court today upholds the Court of Appeals with a lead opinion by Justice Charles Johnson, joined by Justices Owens and Stephens. The opinion upholds the statutory rule and refuses to allow development rights to vest before the filing of a building permit. A concurrence by Justice Madsen, joined by Justice Fairhurst, suggests that Abbey Road should have prevailed if it had filed a building permit application at the same time it filed the site plan application, even though Bonney Lake indicates that a building permit application is only complete if it includes an approved site plan.

Justice Sanders dissents, joined by the Chief Justice and Justices Chambers and James Johnson.

The problem with the lead and concurring opinions is not only that they come to the wrong conclusion, but they muddle and finesse an area of the law where certainty is critical. The State and localities have a great deal of discretion to determine by ordinance what the rules shall be. But the property owner has a constitutional right to proceed under current ordinances by submitting a complete building permit application to vest its rights at any time of its choosing. When the government prevents him from doing this, it deprives the developer of his property without due process of law.

(briefs and arguments, LibertyLive.org: Is land development really against the "public interest"?)

In Re Detention of Strand, No. 80570-9. In 1992, John Strand was convicted of first degree child molestation and resisting arrest and sentenced to 150 months imprisonment and 36 months in community placement. Prior to his release, the state conducted a mental health evaluation that was subsequently used as evidence to commit Strand under the State's sexually violent predator statute (RCW 71.09.025). Strand challenged the use of the mental health evaluation, alleging violations of the statute, violations of his right to counsel, and that the State failed to prove his statements were voluntary. The Court, in an opinion by Owens and joined by four other justices, rejects all of Strand's claims and upholds his commitment. Sanders, joined by three other justices, strongly dissents. (briefs and arguments).

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City of Bellevue v. Lee, et al., No. 81473-2. The nine respondents in this case each had his or her drivers license suspended after failing to pay a traffic citation fine. The Department of Licencing notified each person of the pending suspension and offered each an administrative review. This current process for license suspensions is the result of the Court's 2004 decision in City of Redmond v. Moore, where it invalidated an earlier drivers license suspension procedure for failing to satisfy due process requirements. Applying the three-pronged test from Mathews v. Eldridge, the Court today holds that Washington's current process for suspending drivers licenses does provide due process and upholds these license suspensions. Susan Owens writes the majority opinion and is joined by all of the other justices except Justice Sanders, who dissents. (briefs and argument)

In re Detention of Anderson, No. 79111-2. As a teenager, John Charles Anderson raped two two-year-old boys and a 13-year-old boy and then sexually abused his roommated in a juvenile rehabilitation center. He was voluntarily committed to Western State Hospital, where he had sexual relationships with at least eight patients; four of these patients were considered particularly vulnerable persons. Anderson decided to leave Western State and the State petitioned to commit him as a sexually violent predator. Anderson refused to use the expert witness provided to him by the state and requested a different expert, Dr. Richard Wollert. The State objected and the trial court denied Anderson's request. At the conclusion of the trial, the court ordered Anderson's commitment and Anderson appealed. He argued that the State had not proved the requisite "recent overt act" and that it wrongly denied his request for a different expert witness. The Court of Appeals sided with the state on the first of these and with Anderson on the second.

Here the Court of Appeals is upheld and the matter remanded for a new trial. Justice James Johnson writes for five members of the Court. Justice Sanders dissents and would dismiss. Justice Fairhurst, joined by Justices Chambers and Stephens, dissents. Both dissenting opinions would find insufficient evidence of a "recent overt act" to justify civil committment. (briefs and argument)

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