Supreme Court of Washington Blog : Supreme Court of Washington Blog : Washington Public Policy & Budget News : Freedom Foundation : WA State Tax & Labor Law Commentary & Updates

McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3.  David and Ken McAllister were firefighters for the City of Bellevue. Both made pension contributions for many years under the Firefighters’ Relief and Pensions Act of 1955. When the men retired, the 1955 Act had been replaced by the Law Enforcement Officers’ and Fire Fighters’ System Pension Plan of 1970. Under the more recent 1970 plan, the city is required to pay the McAllisters the difference, if any, between their benefits under LEOFF and what their benefits would have been had they retired under the 1955 Act. The City later determined it had made an excess payment to the McAllisters of approximately $500,000 by relying on definitions contained in LEOFF, rather than the 1955 Act. Upon discovering this, the City began paying a reduced excess payment, but did not seek a reimbursement. The McAllisters challenged the reduced payment. The Supreme Court unanimously upheld the City’s action, with Justice Debra Stephens writing the opinion. “The plain language of RCW 41.26.040(2) further requires that an excess payment be calculated under the prior retirement system, not under LEOFF,” she wrote. (briefs and argument).

State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

City of Bellevue v. Lee, et al., No. 81473-2 (briefs and argument). In this case Shin Lee and others respondents had their drivers license suspended for failure to respond, appear, pay or comply with the terms of a traffic citation. Each person was given a notice of suspension with an opportunity to appeal. The respondents challenged the appeal procedure, arguing it does not comply with due process procedures. King County Superior Court ruled the administrative review and appeal of a license suspension is unconstitutional. The question before the Supreme Court is whether the appeals statutes provide adequate safeguards to ensure against the erroneous suspension of a license, so as to meet due process requirements. The Office of the Attorney General filed an amicus curiae brief in support of the City of Bellevue.

In re Detention of Anderson, No. 79111-2 (briefs and argument). John Charles Anderson was committed as a sexually violent predator based on his conduct while at Western State Hospital, and he appealed, arguing that the trial court erred when it (1) admitted statements he made during his treatment at Western State Hospital; (2) found he committed a recent "overt act"; and (3) refused to allow his chosen expert's testimony. The Court of Appeals (Div. II) reversed the commitment and ordered a new trial.

McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3 (briefs and argument). David and Ken McAllister were firefighters in Bellevue, and contributed to a city pension plan. Under this plan, pension benefits were based on firefighters’ salaries, but when calculating benefits, the salaries were considered to be capped at the battalion chief level. David and Ken were Chief and Deputy Chief when they retired, so the pension cap would have applied to them. In 1969, Washington State replaced local pension plans with a single state plan for all firefighters and police. Under this plan salaries are not capped. The state plan provided that if a firefighter would have received higher benefits under a local plan, the local government was responsible to make up the difference. In accordance with this provision, the City of Bellevue made additional payments to the McAllisters. But in calculating the McAllister’s benefits under the city plan, the city did not cap their salaries as the city plan required. When this was discovered, the city reduced its payments to match what the McAllisters should been receiving, but did not require back payments. The McAllisters sued, and lost at trial and on appeal.

State v. Engel, No. 81072-9 (briefs and argument). Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Court today issued opinions in two criminal cases and will hear argument in two cases.

Opinions

State v. Kirwin, No. 80113-4. Police arrested Dennis Kirwin for littering (he tossed a beer can out his truck window), then searched Kirwin's truck and found meth. State law makes littering only a civil infraction, which cannot result in an arrest, but Olympia deems it a misdemeanor. Kirwin challenged the city littering ordinance, arguing that it was unconstitutionally in conflict with the state statute. In a majority opinion by Justice Fairhurst and signed by Justices Alexander, C. Johnson, Chambers, Owens, and J. Johnson, the court upholds the ordinance and hence the arrest and the search. In a concurrence, Justice Madsen suggests that the ordinance may well be invalid under Article I, section 12, of the Washington State Constitution, but would not reach the question because it was not raised by Kirwin. Justice Sanders dissents, agreeing in part with Justice Madsen and disagreeing that the search was a lawful search incident to arrest. (Case briefs and argument.)

State v. Wright, No. 78465-5, & State v. Bryant, No. 78788-3 (consolidated). Justice Madsen writes for a six-member majority and holds that retrying defendants Wright and Bryant for murder is not barred by double jeopardy. "Because the defendants' convictions were reversed on grounds other than insufficient evidence, and because they have not been expressly or impliedly acquitted of intentional murder, they remain in the same jeopardy as attached at the first trial." Justice Sanders dissents, joined by Alexander and Chambers, arguing for a stronger interpretation of the double jeopardy clause. (Case briefs and arguments.)

Oral Arguments (briefs)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Supreme Court may release one or more opinions on March 26.

Oral arguments are scheduled for the following cases.

March 24, 2009 (case briefs)

In re the Estate Borghi, No. 80925-9. Does real property purchased by a contract executed before marriage remained the separate property of the purchasing spouse even though the fulfillment deed, issued after the marriage, named both spouses? Robert and Jeannette Borghi were married in March 1975. Prior to her marriage to Mr. Borghi, Jeannette Borghi entered into a real estate contract to purchase property. After their marriage, a statutory warranty deed was issued to both Mr. and Mrs. Borghi, who lived on the property as their primary residence until 1990, and paid off the mortgage in 1999.

Jeannette Borghi died without a will in 2005. Under intestate succession, if the property were classified as “community property,” it would pass to Mr. Borghi. Arthur Gilroy, Mrs. Borghi’s son from a previous marriage, contended that the property was his mother's separate property, and should not pass to Mr. Borghi. The Court of Appeals (Div. I) held that early Washington Supreme Court precedent required a finding that the property was the separate property of Mrs. Borghi, as it was purchased prior to marriage. The court “reluctantly” ruled for Mr. Gilroy.

State v. Gonzalez, No. 81525-9. Does a second order of restitution constitute double jeopardy? This case is a direct appeal from Grant County Superior Court. In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund.

Mr. Gonzalez objected to the second order of restitution, arguing it was beyond the 180 day statutory limit to seek restitution. The State argues that statute allows for modifications to the amount previously ordered by the trial court. Gonzalez also argues that the second order of restitution results in double jeopardy, and violates the Washington Constitution (Art. I, sec. 9) and the Fifth Amendment of U.S. Constitution. The State says a modification of an original judgment does not amount to a multiple punishment.

Ambach v. French County, No. 81107-5. Patient Teresa Ambach brought an action against her surgeon and hospital when her shoulder became infected after a surgical procedure and had to be fused. Her complaint included claims against Dr. French for professional negligence and violations of the Consumer Protection Act (CPA). As part of her CPA claim, Ms. Ambach alleged that Dr. French performed medically unnecessary surgeries for financial gain. The trial court ruled in favor of Dr. French and imposed sanctions against Ms. Ambach's attorneys. The Court of Appeals (Div. III) reversed the summary judgment and the attorney sanctions. The issue before the Supreme Court is whether a medical patient’s economic losses attributable to an allegedly unnecessary surgical procedure are recoverable under the Consumer Protection Act.

Justice Stephens has been excused from this case as she sat on the Court of Appeals when the case was heard.

In re F5 Networks, Inc., No. 81817-7. This case comes from the U.S. District Court for the Western District of Washington, which seeks clarification on a question of Washington law: Whether a shareholder seeking to bring a derivative action on behalf of a corporation is excused from demanding that the board of directors bring an action if such a demand would have been futile, and whether board approval or acceptance of backdated options shows futility.

March 26, 2009 (case briefs)

State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).

State v. McCormick, No. 81193-8. David McCormick, a 61-year-old indigent man confined to a wheelchair, regularly picked up food from the St. Vincent DePaul food bank in Everett. A trial court found that McCormick, by visiting this food bank which was located near a parochial grade school, had violated the conditions of his suspended sentence for first-degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program. McCormick denied knowing the food bank was near a grade school. Regardless, the trial court revoked his special sexual offender sentencing alternative, and ordered him to serve a 123 month sentence. The Court of Appeals (Div. I) affirmed. The question before the Supreme Court is whether the State must prove that a defendant willfully violated the conditions of his suspended sentence before the trial court can revoke the suspended sentence.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link