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South Tacoma Way v. State, No. 82212-3 (briefs and argument). The State Department of Transportation (DOT) owned an alley that was abutted by property owned by several different owners. DOT determined the alley was surplus property and sold it to Sustainable Urban Development #1, LLC (Sustainable). DOT mistakenly believed that Sustainable was the only abutting property owner, and no notice of the sale was given to the other abutting property owners, as is required with multiple abutters.

After this sale was complete, South Tacoma Way, LLC (South Tacoma) entered negotiations to purchase one of the abutting properties, and also expressed interest in the alley, only to find out DOT had sold it to Sustainable. South Tacoma purchased the abutting property and then filed this lawsuit objecting to the Sustainable purchase. The trial court ruled in favor of DOT and Sustainable, concluding that although DOT did not comply with the applicable statute, the sale was not ultra vires (i.e., outside DOT’s powers) and Sustainable was a bona fide purchaser. The Court of Appeals reversed the trial court in South Tacoma’s favor.

Today the Supreme Court, with Justice Charles Johnson writing the 8-vote majority, reversed the Court of Appeals and upheld the sale to Sustainable. The court said that while ultra vires acts are performed with no legal authority and are void on the basis that no power to act existed, there is a difference where an act is committed without an agency’s power, though without strict procedural or statutory compliance. The court determined that DOT had authority to sell the property and had mistakenly followed the wrong statutory process. Additionally, the court said that Sustainable was a bona fide purchaser and that this doctrine would apply. In other words, the law provides that a good faith purchaser for value who is without actual or constructive notice of another’s interest in purchased real property has superior interest in that property.

Justice Richard Sanders dissented, arguing that DOT was without authority to sell the property without giving proper statutory notice to all abutting owners, and that to ignore this requirement eviscerates the statute. “This interpretation erases the notice requirement from the statute. From now on DOT can simply sell to whomever it chooses without notice to other abutting landowners, in violation of RCW 47.12.063(2)(g). What other statutory limitations can the State ignore?”

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The Supreme Court will issue opinions in two cases tomorrow:

McCurry v. Chevy Chase Bank, No. 81896-7 (briefs and argument). Originating in King County Superior Court, this case concerns whether bank fees charged in relation to a Washington home loan are governed by the federal Home Owners Loan Act.

The McCurrys had a mortgage through Chevy Chase, which they fully paid off. When they did so, the bank charged them a $20 fax fee and a $2 notary fee before signing the house over to them. The McCurrys paid the fees and then filed a class action suit under state law against the bank for illegal fees. The trial court dismissed it because the state law is preempted by the federal Home Owners Loan Act. The McCurrys argue that the facts of the case don't fall under the federal law.

South Tacoma Way v. State, No. 82212-3 (briefs and argument).The State Department of Transportation (DOT) sold an alley to Sustainable Urban Development #1, LLC (Sustainable). DOT failed to notify other adjacent property owners as required by law. South Tacoma Way, LLC, which also owns property next to the alley, sued DOT and Sustainable to void the contract as an ultra vires act outside DOT's authority. The trial court held that DOT was authorized to sell the property and that the failure to give notice was merely a procedural error. The Court of Appeals (Div. 2) reversed, holding that DOT is only authorized to sell property after giving notice.

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The Supreme Court will hear arguments in four cases today.

In the morning session:

In Re the Honorable Judith Raub Eiler, No. 200,701-5 (briefs). Judge Judith Eiler is a district court judge in King County. Based on a number of complaints, disciplinary proceedings were brought against her for treating litigants in an “angry, abusive, and condescending manner.” Eiler argues that there was not enough evidence, that the penalty is too high, and that punishing her for her demeanor violates her freedom of speech. Eiler appeals a disciplinary recommendation that she be suspended for 90 days without pay.

South Tacoma Way v. State, No. 82212-3 (briefs).The State Department of Transportation (DOT) sold an alley to Sustainable Urban Development #1, LLC (Sustainable). DOT failed to notify other adjacent property owners as required by law. South Tacoma Way, LLC, which also owns property next to the alley, sued DOT and Sustainable to void the contract as an ultra vires act outside DOT's authority. The trial court held that DOT was authorized to sell the property and that the failure to give notice was merely a procedural error. The Court of Appeals (Div. 2) reversed, holding that DOT is only authorized to sell property after giving notice.

In the afternoon session:

State v. Shultz, No. 80653-5 (briefs). Whether the warrantless search was justified as an “emergency.” Officers Malone and Hill went to an apartment to investigate a possible domestic disturbance. Outside, they heard a man and a woman speaking loudly. When they knocked on the door, Patricia Schultz answered. She initially told the officers that there was no one else in the apartment, but when pressed she called Sam Robertson to the door. Officer Hill took Robertson outside to question him, and Officer Malone went inside to question Shultz. Shultz did not give Malone permission to enter, but did not object either.

Shultz was moving around inside the apartment, and Malone threatened to handcuff her if she did not “sit still.” Shortly afterward, Officer Hill entered the apartment. Shultz moved something, uncovering a gun and a marijuana pipe, and Hill saw them. The officers searched the apartment, found drugs, and arrested Shultz.

Shultz unsuccessfully moved to suppress the evidence as the fruit of an illegal search. In upholding the trial court, the Court of Appeals found that the “emergency exception” to the warrant requirement applied based on the argument, Shultz's appearance, and the fact that Shultz lied about Robertson's presence.

State v. Harvill, No. 82358-8 (briefs). Whether the trial court should have instructed the jury on duress. Joshua Harvill was caught selling drugs to an informer. At trial, he 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.

On appeal, the Court of Appeals (Div. 2) noted that if the elements of duress had been proved, then the contested elements of entrapment would also have been proved. Since the jury rejected entrapment, it would also have rejected duress even had the instruction been given. Thus, even if the lack of a duress instruction was in error, it did not prejudice Harvill.

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