Last week's opinions: out of state tax, vicarious liability, and illegal sentences

Posted on January 26, 2011 by Trent England

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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New cases accepted for review

Posted on February 10, 2010 by Michael Reitz

The Supreme Court granted several petitions for review during its February 9 conference.

  • State v. Robinson, No. 83525-0
  • State v. Barber, No. 83640-0
  • State v. Coucil, No. 83654-0
  • Jackowski v. Hawkins Poe, Inc., No. 83660-4
  • Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6
  • State v. Millan, No. 83613-2
  • State v. Ford, No. 83617-5
  • City of Seattle v. May, No. 83677-9
  • State v. Martin, No. 83709-1
  • Blair v. TA-Seattle East #176, No. 83715-5
  • Hardee v. DSHS, No. 83728-7

State v. Robinson, No. 83525-0. Michael Robinson was convicted of residential burglary, theft of a firearm, first degree unlawful possession of a firearm, first degree theft, and unlawful possession of methamphetamine while armed with a firearm. He appealed, and the Court of Appeals (Div. 2) reversed his conviction for unlawful possession of methamphetamine while armed with a firearm conviction, while affirming the remaining convictions. The Supreme Court has agreed to review only the issue of whether police conducted a lawful search.

State v. Barber, No. 83640-0. Danny Barber pleaded guilty, pursuant to a plea agreement, to felony driving under the influence of intoxicants. The trial court sentenced him to 51 months of confinement, with no community custody. Subsequently, the Department of Corrections informed the court that a mandatory term of 9 to 18 months of community custody applied to Barber’s crime of felony DUI, but DOC recommended no community custody. The court stated it was not bound by a plea agreement and modified Barber’s judgment and sentence to add a term of 9 to 18 months of community custody. The Court of Appeals (Div. 2) held that the trial court had the authority to modify the sentence.

State v. Coucil, No. 83654-0. Nikeemia Coucil was arrested and charged with felony harassment after threatening to kill Paul Carlson. He failed to appear at a hearing on the charge. Eventually arrested and convicted of a lesser charge of misdemeanor harassment, Coucil was also convicted of bail jumping. Coucil argued that as he was convicted of a misdemeanor, his bail jumping conviction should have been sentenced as a misdemeanor. The Court of Appeals (Div. 1) disagreed, holding that for sentencing purposes bail jumping is classified according to the underlying charge at the time the defendant jumps bail—not according to the ultimate conviction.

Jackowski v. Hawkins Poe, Inc., No. 83660-4. Timothy and Eri Jackowski purchased a waterfront home in Mason County in 2004. Following landslide damages to the house, the Jackowskis sued the seller, the seller’s agent, and their own real estate agent, alleging fraud and misrepresentation. The trial court granted summary judgment in favor of the defendants. The Court of Appeal (Div. 2) affirmed in part and reversed in part, dismissing all claims against the seller’s real estate agency, reinstating the purchaser’s statutory and common law claims against their own agent, and reversomg dismissal of the breach of contract claims against the sellers as they were not properly before the trial court. The Supreme Court granted the petitions for review of both the sellers and the purchaser’s agent.

Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6. Although a fire district asserted it was not equipped to serve more new structures, the county’s comprehensive development plan stated the fire district was able to provide adequate services based on its current taxing abilities. As a result, a hearing officer determined the fire district was precluded from asserting a lack of ability to do so on a project by project basis. The superior court reversed. The Court of Appeals (Div. I) ruled against the fire district and reinstated the permit approvals, holding that the evidence was substantial and sufficient to support the examiner’s finding that fire district had capacity to provide services to new developments.

State v. Millan, No. 83613-2. Defendant Francisco Millan was convicted of first degree unlawful possession of a firearm. Police had responded to a report that a man and woman were fighting in a car. The police arrested Millan and seized the firearm they found during the search of the vehicle incident to his arrest. On appeal, Millian argued that under Arizona v. Gant the search of his vehicle was unlawful. The Court of Appeals (Div. 2) held that Millan had waived his right to appeal the adminssion of evidence seized during the search by failing to file a motion to suppress. The Supreme Court is consolidating this case with State v. Robinson, No. 83525-0.

State v. Ford, No. 83617-5. Tyrone Ford was convicted of second and third degree child rape. The different degrees reflected that the victim was 13 years old during the first incident and 14 years old during the second incident. The Court of Appeals (Div. 2) reversed the first count but upheld the conviction for third degree child rape. The Court held that sending the jury back to the jury room to fill in a blank verdict form relating to second degree rape charge was manifest error affecting defendant’s right to fair trial; the trial court did not err by allowing state to amend alleged dates of charged incidents in information to conform to proof at trial; statements by two prospective jurors about their experiences with sexual abuse did not violate defendant’s right to impartial jury; and defense counsel did not perform deficiently in connection with prospective jurors’ discussions of those experiences.

City of Seattle v. May, No. 83677-9. Robert May was convicted for violation of a permanent domestic violence protection order. The Court of Appeals (Div. 1) held the order was facially valid.

State v. Martin, No. 83709-1. Timothy Martin was convicted of kidnapping and robbery charges. On appeal, Martin argued that the prosecutor’s questions concerning his opportunity to tailor his testimony to the evidence introduced at trial infringed his rights under article I, section 22 of the Washington Constitution to be present at trial, to meet witnesses face to face, and to testify in his behalf. The Court of Appeals (Div. 1) disagreed, noting that the federal constitution permits a jury to consider a defendant’s opportunity to tailor testimony, and that the questions were allowable under the Washington Constitution.

Blair v. TA-Seattle East #176, No. 83715-5. Maureen Blair, a commercial truck driver, was injured when she slipped and fell in a puddle of spilled gasoline at truck stop. She sued the truck stop operator. The trial court struck several of Blair’s witnesses, including her expert medical witnesses, as a sanction for Blair’s willful violations of the trial court’s discovery orders. The Court of Appeals (Div. 1) held that the trial court acted within its discretion. As causation could not be established without expert medical testimony, the trial court properly dismissed the case in the truck stop’s favor.

Hardee v. DSHS, No. 83728-7. The Department of Early Learning revoked Kathleen Hardee’s license to operate a home daycare after the Department learned that Hardee’s 19-year-old son was accused of molesting a child he was babysitting. (The child did not attend the daycare and the incident did not take place at the daycare.) In revoking Hardee’s license, the Department cited a number of other incidents involving her son. The Court of Appeals (Div. 1) affirmed the revocation.
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