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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 Court will hear four arguments today, as usual. (Docket, briefs)

Morning session (9:00 a.m.)

State v. Mitchell, No. 83169-6. This case hinges on the question of whether a child qualifies as a "dependent person" for purposes of the crime of criminal mistreatment.

Marilea Mitchell and her boyfriend were charged with criminal mistreatment after starving the boyfriend's son almost to death. The statute refers to mistreatment of “a child or a dependent person,” and Mitchell was charged with mistreatment of a “dependent person.” Mitchell claims that the boy was a child, not a dependent person, and thus she was wrongly convicted.

But Division One Court of Appeals held that the boy was both a child and a dependent person, and upheld the conviction.

State v. Ervin, No. 83244-7. Under the Sentencing Reform Act, Class C felonies can be scrubbed from an individual's offender score if the person lives crime-free in society for five years. The question in this case is whether incarceration during the five-year period interrupts the countdown.

James Ervin was convicted of felony violation of a no-contact order in 2006. He had committed two previous felonies in 1991 and 1994, as well as other crimes between 1994 and 2006. During one five-year stretch he was not convicted of any crimes, but he was incarcerated during that time for a parole violation.

Ervin argues the five-year stretch without any crimes should cause his previous felony convictions to be scrubbed. But the King County Superior Court and Division One Court of Appeals held that while Ervin was in prison he was not “in the community,” and his imprisonment interrupted the five-year period.

Afternoon session (1:30 p.m.)

Forbes v. American Building Maintenance Company West, No. 82950-1. Whether the plaintiff has to pay prejudgment interest on attorney fees to her attorney, and whether a settlement was properly modified.

Attorney Mary Schultz represented Cheryl Forbes in an employment discrimination suit against American Building Maintenance. Schultz won the trial and the first appeal. Schultz and Forbes had a falling out, and while the case was on appeal to the Supreme Court Forbes fired Schultz and accepted a settlement offer by ABM. ABM deposited the settlement money in the court registry until the court could decide how much Schultz was entitled to.

The trial court awarded prejudgment interest on the attorney's fees, and Forbes challenges this award on two grounds.

First, she argues the claim for fees was unliquidated because there was disagreement over which terms of the fee agreement applied. Division Three Court of Appeals held that the amount “could be calculated with precision” even though there was disagreement on which terms to use, and thus the claim was liquidated.

Second, Forbes argues that the money was not under her control because it was in the court registry. The appellate court held that since Forbes instructed the court clerk to invest the money for her benefit, she still had “use of” the money, and thus prejudgment interest is appropriate.

In addition to the interest issue, the appellate court modified the settlement amount to match the satisfaction of judgment document. Forbes claims that the satisfaction of judgment was incorrect.

State v. Ish, No. 83308-7. Generally speaking, prosecutors are not allowed to vouch for the credibility of a witness. This case concerns whether informing the jury that a witness agreed to a plea bargain requiring truthful testimony constitutes vouching for his credibility.

Nathaniel Ish murdered his girlfriend and was arrested and imprisoned prior to trial. While in prison he talked to David Otterson, his cell mate, about the murder. The state made a plea agreement with Otterson which, in part, required him to testify truthfully at Ish's trial.

While examining Otterson at trial, the prosecutor brought out the information that the plea agreement required Otterson to testify truthfully and that it could be revoked if Otterson breached it. Ish claims this was vouching for the witness, but Division Two Court of Appeals disagreed, since the prosecutor did not express a personal opinion about Otterson's credibility.

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