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The Supreme Court issued opinions in three cases today.

Tobin v. Department of Labor and Industries, No. 81946-7. Jim Tobin was permanently disabled after being hit by a crane boom at work. He began collecting worker’s compensation benefits and sued the crane operator, settling for $1.4 million in damages, with about half of that amount being designated for pain and suffering. Under RCW 51.24.060, an injured worker is required to distribute a portion of a third-party recovery to the Department of Labor and Industries to reimburse the agency for worker’s compensation benefits. L&I informed Tobin that it would include the pain and suffering award he received in its calculation of what was owed the agency. Tobin argues the statute was designed to reimburse L&I for benefits paid, and L&I does not pay benefits for pain and suffering.

The Supreme Court, with Chief Justice Barbara Madsen writing, agreed. The court held that chapter 51.24 RCW does not authorize L&I to seek reimbursement of damages awarded for pain and suffering. “[D]amages for ‘pain and suffering,’ like loss of consortium, constitute noneconomic damage that the workers’ compensation statutes do not compensate for. The Department did not pay out benefits for pain and suffering; therefore it cannot be ‘reimbursed’ from amounts recovered for pain and suffering. We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.” Justice Mary Fairhurst dissented, arguing that the majority ignored the plain language of the recovery statute.

In Re Personal Restraint Petition of Cruze, No. 82567-0. Schawn James Cruze was sentenced to life in prison without the possibility of parole under the “three strikes” provision of the Persistent Offender Accountability Act. Cruze filed a personal restraint petition arguing that the second conviction is not a most serious offense, or “strike.” However, Cruze filed his petition more than one year after his judgment and sentence became final, barring his claim unless the court could determine the sentencing was invalid on its face. The Supreme Court held that based on a plain reading of the statute, a deadly weapon verdict under the law includes a special verdict finding that a defendant was armed with a firearm. The court dismissed Cruze’s petition. Justice Susan Owens wrote the majority opinion. Justice Gerry Alexander wrote a dissent.

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 four-year-old 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. The Supreme Court unanimously disagreed with Mitchell’s argument and upheld her conviction. Justice Richard Sanders wrote the opinion of the court.

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Broom v. Morgan Stanley, No. 82311-1 (briefs and argument). The Supreme Court held that an arbitration panel erred by applying state statutes of limitations to bar the a claim. Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.” The Supreme Court, with Justice Charles Johnson writing, affirmed the Court of Appeals. Chief Justice Barbara Madsen dissented.

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). The Supreme Court held that under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, a landlord and tenant can lawfully agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. Writing for the majority, Justice Richard Sanders said that the MHLTA preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement and thus the provision does not violate the MHLTA. Justice Gerry Alexander wrote a dissenting opinion.

Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Supreme Court agreed, with Justice Susan Owens writing the majority opinion. The court held: (1) that the appraisal proceeding in RCW 23B.13.020 is a dissenting shareholder’s exclusive remedy unless a corporate action is procedurally defective or fraudulent and (2) that a divested shareholder does not have standing in a derivative suit. Justice Sanders wrote a dissenting opinion.

State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill 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. The Supreme Court unanimously ruled that the trial court abused its discretion by refusing to instruct the jury on the duress defense. The court reversed the conviction and remanded for a new trial. Justice Debra Stephens wrote the opinion.

State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges. The Supreme Court affirmed the decision below, with Justice Debra Stephens writing the unanimous opinion.

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The Washington State Bar News features Justice Susan Owens in its regular lawyer profile column Briefly About Me. It's a fascinating read: Justice Owens believes the future of the practice of law is "virtual," she'd like to have George Clooney over as a dinner guest, and she's listening to the new Hendrix CD.

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The Supreme Court issued rulings in four cases this morning.

McGuire v. Bates, No. 82659-5 (briefs and argument) – Read those settlement agreements carefully, folks. The Supreme Court rules that a settlement for “all claims” precluded the prevailing party from recovering attorneys fees in addition to the settlement payment. Julianne McGuire hired Robert Bates to remodel her kitchen. After it was done, she claimed that he had done the work improperly and sued him. The case went to mandatory arbitration, but before the arbitration the parties settled “all claims” for $2,180. RCW 18.27.040 allows the prevailing party in a suit by a homeowner against a contractor to recover attorney fees. McGuire moved for attorney fees based on this statute. The arbitrator denied the motion because the parties had agreed to settle “all claims.” However, the courts held that attorney fees are a cost, not a claim, and were thus not included in the settlement agreement. Bates appealed, and also argues that McGuire is not a “prevailing party” because the case was settled. The Court of Appeals held the attorneys fees could be added to the settlement total, but the Supreme Court reversed, with Justice Gerry Alexander writing the unanimous opinion. 

State v. Afana, No. 82600-5 (briefs and argument) – The Court rules that a police officer’s search of a vehicle after the arrest of the passenger was unconstitutional. Mark Afana was sitting in his legally-parked car with a friend, Jennifer Bergeron, watching a DVD on a portable player. A police officer approached them, asked what they were doing, and requested ID. The officer discovered a warrant against Bergeron and arrested her. In a search incident to the arrest the officer found drugs in the car. At Afana’s trial, the court held that the request for ID was an illegal stop and suppressed the drug evidence. The Court of Appeals reversed, holding that the request for ID was mere social contact. The Supreme Court, with Justice Alexander writing, held the warrantless search of the car was unconstitutional under Article I, Section 7 of the Washington Constitution: “a warrantless search of an automobile is permissible under the search incident to arrest exception only when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.”

State v. Bashaw, No. 81633-6 (briefs and argument) – Bertha Bashaw was convicted of three counts of delivery of a controlled substance. Because the offenses occurred within 1,000 feet of a school bus route stop, her maximum sentence was doubled by statute. Bashaw argues that distance measurements of a mechanical device were improperly admitted because the State failed to demonstrate that the device functioned reliably. She also contends that the jury instructions incorrectly required unanimity for a finding that her actions did not take place within 1,000 feet of the school bus route stop. The Supreme Court, with Justice Susan Owens writing, agreed, and held that the jury instruction error justified reversing the sentence enhancements. The case was remanded to trial court for further proceedings. Chief Justice Barbara Madsen dissented.

Waples v. Yi, No. 82142-9 (briefs and argument) (consolidated with Cunningham v. Nicol, No. 82973-0) – The Supreme Court invalidated the requirement that plaintiffs give a 90-day notice before suing health care providers for malpractice. Nancy Waples brought a negligence action against her dentist, Peter Yi, alleging the dentist's employee injured her by negligently injecting anesthetic. The Pierce County Superior Court, and the Court of Appeals (Div. II) affirmed the dismissal, ruling the patient failed to comply with a statutory notice requirement, which required a plaintiff to provide health care providers with 90 days’ notice of the plaintiff’s intention to file a medical malpractice suit. Waples argues the notice requirement is unconstitutional. The Supreme Court agreed, holding that the notice requirement of RCW 7.70.100(1) is unconstitutional because it violates the separation of powers. Justice Charles Johnson wrote the majority opinion, holding that court rules govern the commencement of a lawsuit. “If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters.” Justice James Johnson dissented, arguing that the 90-day rule did not modify court rules, but merely provided parties with an incentive to settle cases rather than going to court.

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The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.

Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.

On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.

One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote. 

Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court. 

Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.

UPDATE: Additional thoughts on the case over at OG-Blog.

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Seattle v. Winebrenner/Seattle v. Quezada, No. 81279-9. Both Scott Winebrenner and Jesus Quezada were arrested multiple times for driving under the influence. Each had a deferred prosecution agreement from one arrest which they violated with a subsequent arrest. The question is whether the subsequent offense constituted a "prior offense" at the time of sentencing. The Court holds that RCW 46.61.5055's use of "prior offense" is ambiguous because it is "subject to more than one reasonable interpretation." The rule of lenity requires "that an ambiguous criminal statute cannot be interpreted to increase the penalty imposed." The Court unanimously holds that offenses committed after the original offense are not "prior offenses" and cannot be considered at sentencing for the original offense. Justice Chambers wrote the lead opinion. Justice Madsen, joined by Justices Charles Johnson and Fairhurst, concurs in the result but believes the statute unambiguously requires it. (briefs and argument)

Kitsap County Deputy Sheriff's Guild, et al. v. Kitsap County, et al., No. 80720-5. Kitsap County Sheriff's Deputy Brian LaFrance was fired after he allegedly became unstable and dishonest with his superiors. The County had previously entered into a collective bargaining agreement with the Deputy Sheriff's Guild that allowed the Guild to file a grievance and put the matter into binding arbitration. The arbitrator found that the county had proven the 29 charges against LaFrance but had not shown that dismissal was the appropriate remedy and ordered his reinstatement. It did not order back pay, but did require that he be provided retroactively the benefits that he would have received if he had remained a deputy and unemployment benefits.

The Guild alleges that because the arbitrator ordered LaFrance's reinstatement, the County is obligated to pay LaFrance's back pay. The County challenges that the arbitrator's order is unenforceable because it "violate[s] an explicit, well defined, and dominant public policy." The Court today, in an opinion by Justice Owens, holds that even if "the arbitrator's decision was not good public policy," the County failed to show that it contravened a clear public policy. Collective bargaining agreements and arbitration clauses, the Court suggested, should be deferred to where possible to protect parties' freedom of contract. The Court also upholds the arbitrator's refusal to provide back pay to LaFrance.

Justice James Johnson dissents, finding a sufficient public policy interest exemplified in the law enforcement officer's "oath to truly, faithfully, and impartially perform his duties," that he would overturn the arbitrator's decision to reinstate LaFrance. He is joined by the Chief Justice and Justice Pro Tem. Teresa Kulik. (briefs and argument)

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The Supreme Court has rejected a public records request for local court documents, ruling that the court system is not subject to the state's Public Records Act.

David Koenig requested records from the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hartl and correspondence to and from presiding Federal Way Municipal Court Judge Michael Morgan. The City of Federal Way provided 183 pages of documents but refused to provide Judge Morgan’s correspondence. The City asserted that the court was not subject to the Public Records Act, which gives the public access to documents held by government agencies. The trial court agreed, and Koenig appealed to the Supreme Court.

The Supreme Court today, with Justice Susan Owens writing the 6-3 majority, upheld the trial court. The court reaffirmed its ruling in Nast v. Michels (1986), in which the court held that the PRA does not apply to court case files because the judiciary is not included in the PRA's definition of “agency.” Koenig had argued that Nast only applied narrowly to internal case files, but should not be extended to administrative court records. The court disagreed. Justice Owens wrote: “This court has already ruled on the issue of whether the judiciary is subject to the PRA, and Koenig has not demonstrated that the established rule is incorrect and harmful. Therefore, we affirm the trial court’s holding that the PRA does not require the City to release the requested judicial records because the PRA does not apply to the judiciary.”

Justice Pro Tem Kevin M. Korsmo concurred in a separate opinion, writing that in his opinion Nast was decided improperly but the court was bound by its previous decisions until the legislature chooses to amend the PRA to extend to the judiciary.

Justice Debra Stephens, along with Chief Justice Alexander, dissented, arguing that court clearly fall under the statute. “In my view, Nast should be read narrowly as construing the Public Records Act (PRA) within the context of the records at issue there: court case files. Accordingly, it does not bind us to an interpretation of the current act, chapter 42.56 RCW, that categorically excludes the judicial branch of government from the mandate for open government. Because I believe our branch of government is an ‘agency’ subject to the strictures of the PRA, I respectfully dissent.”

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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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Kappelman v. Lutz, No. 80996-8. Theodore Lutz took Amber Kappleman for a ride on his motorcycle even though he had only an instructional permit which did not allow him to carry passengers. They crashed when a deer ran out in front of them on the highway. Kappleman was injured, sued Lutz, and lost at the trial court. She appealed, citing the judge's refusal to allow evidence that Lutz lacked a motorcycle endorsement and his instructions to the jury on the "sudden emergency doctrine" (which says that a person in danger cannot be expected to "act as prudently as one might have had there been time for deliberation"). The Court of Appeals upheld the trial court and today the Supreme Court unanimously affirms that decision in an opinion by Justice James Johnson. (briefs and arguments)

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1. Kimme Putman sued the Medical Center and several of its medical staff, alleging negligent failure to diagnose her ovarian cancer. The trial court dismissed because Putman failed to file a "certificate of merit" as required by RCW 7.70.150. Here, the Supreme Court reverses and holds that the statute violates the State Constitution because it "unduly burdens the right of access to courts" and violates the separation of powers. According to the majority opinion by Justice Owens, "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right to access to courts." Justice Madsen, joined by Justice James Johnson, concurs as to separation of powers, but disagrees that the statute unduly interferes with access to the courts. (briefs and arguments).

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Armantrout v. Carlson & Cascade Orthopaedics, No. 81195-4. Eighteen-year-old Kristen Armantrout lived with her blind and diabetic mother. Kristen provided care and assistance to her mother and gave her Social Security check to the family. Kristen died due to a complication following ankle surgery. Her parents sued for wrongful death, claiming they were financially dependent on Kristen. The trial court agreed with the parents, but the Court of Appeals reversed and held that economically valuable services cannot be considered to assess a claim of financial dependence. Here, the Supreme Court unanimously reverses the Court of Appeals. The opinion by Justice Madsen distinguishes between "everyday services a child would routinely provide," and the kind of unique and potentially expensive services that had been provided by Kristen to her mother. (briefs and argument)

Seattle v. Robert St. John, No. 81992-1. After crashing his motorcycle in Seattle, Robert St. John was investigated for driving under the influence of alcohol. A police officer asked St. John to consent to a blood alcohol test, and when St. John refused, the officer obtained a warrant for the test. The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent law (RCW 46.20.308(1)) that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The Court today in an opinion by Justice Owens and joined by six other justices upholds the superior court and allows the blood test evidence. The Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer's statements about the Implied Consent law did not foreclose his obtaining the warrant. Justice Sanders, joined by Justice James Johnson, dissents. (briefs and argument).

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Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2. Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which in turn use Dot products as ingredients for products that are later sold to grocery stores and other retail outlets.

For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot paid the tax and then filed suit against the Department to recover a refund.

The Department argued that Dot should not qualify for the B&O tax exemption because its sales included non-consumer products, and some products eventually ended up in permanent retail establishments. The trial court ruled in the Department’s favor. The Court of Appeals affirmed the trial court, holding that Department’s new interpretation of the statute was reasonable.

The questions before the Supreme Court are (1) whether an out-of-state seller qualifies for the B&O tax exemption when it sells some non-consumer products, and (2) if so, does such a seller qualify for the B&O tax exemption when some of its products ultimately end up in permanent retail establishments?

The Supreme Court, with Justice Charles Johnson writing the 5-vote majority, ruled in favor of Dot Foods. The court said that the law (RCW82.04.423(1)(d) requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed. Considering the foregoing, we reject the Department’s interpretation. To do otherwise would add words to and rewrite an unambiguous statute.”

Justice Johnson took the Department of Revenue to task for its argument that its interpretation of the statute is entitled to judicial deference. “The Department’s argument for deference is a difficult one to accept, considering the Department’s history interpreting the exemption. Initially, and shortly after the statutory enactment, the Department adopted an interpretation which is at odds with its current interpretation. One would think that the Department had some involvement or certainly awareness of the legislature’s plans to enact this type of statute.”

Justice Debra Stephens and three other justices dissented, writing that the out-of-state exemption from the B&O tax should be interpreted narrowly and that by allowing Dot Foods to claim the exemption the majority decision “expands the exemption well beyond its intended scope.”

State v. Heddrick, No. 80841-4. In 2004, Steven Ray Heddrick, Jr., was charged with felony harassment. While awaiting trial, Heddrick was allegedly involved in an altercation with jailhouse staff, which resulted in a subsequent charge of custodial assault. Concerns about Heddrick’s competency for trial arose several times. Eventually the trial court determined that Heddrick was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

The Supreme Court ruled that Heddrick, through his appointed counsel, waived completion of the statutory competency procedures. Additionally, the court ruled that Heddrick did not suffer a complete denial of counsel during a critical stage in the proceedings. Justice Susan Owens wrote the unanimous opinion.

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Briggs, et. al. v. Nova Services, et. al., No. 79615-7. A group of employees of Nova Services, including several managers, objected to their new executive director. They complained to the nonprofit's board of directors. The board investigated the objections, determined that the issues stemmed from "personal animosity," and three of the employees were fired. Six others refused to come to work and were considered as having quit their employment. Eight of the employees filed a complaint alleging several causes of action including violations of RCW 49.32.020, a Depression-era statute protecting workers in "concerted activities for the purpose of collective bargaining or other mutual aid or protections...." The trail court granted Nova Services' motion for summary judgment.

The Court of Appeals upheld the trial court, finding that RCW 49.32.020 did not apply "because the Employees' concerns did not relate to a term or condition of employment. It also held that the statute does not protect management-level employees. The Supreme Court today upholds the lower courts with a lead opinion by Justice Jim Johnson and concurrences by Justices Charles Johnson and Madsen. Justice Owens, joined by Justices Chambers, Fairhurst, and Stephens, dissent, arguing for a much broader exception to at-will employment, including protection for "employee protests over management personnel decisions ... when the decision relates to the employees' working conditions." Congratulations to the Pacific Legal Foundation, which filed an amicus brief explaining the importance of at-will employment. (Briefs, Argument)

In re Discipline of Hicks, No. 200,606-0. Attorney Richard S. Hicks appeals a recommendation of the Washington State Bar Association Disciplinary Board. The Board recommends that he be suspended from the practice of law for two years for failing to properly manage client funds. The Bar Association also challenges that the sanction here is too mild. The Court unanimously upholds the Board's recommendation. (Briefs, Argument)

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Morgan v. City of Federal Way, et al., No. 81556-9. The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report and Judge Michael Morgan, the subject of the complaint, sued to prevent its disclosure.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint. Judge Morgan argued the report should be exempted from disclosure by the work product, attorney-client privilege, and personal information exemptions to the Public Records Act.

The Supreme Court previously ordered the release of the Stephson report with an opinion to follow. Today’s opinion provides the rationale for releasing the document.

Justice Susan Owens, writing for a unanimous court, rejected all of Judge Morgan’s arguments and held the report was a public record and that no exemption would justify non-disclosure. First, the Court addressed whether the Stephson report was a public record, and held that the report was “prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.”

The Court noted that the work product exemption applies to records that relate to “completed, existing, or reasonably anticipated litigation.” The exemption does not shield records created during the ordinary course of business. As the Stephson investigation was conducted as a result of the city’s antidiscrimination policy, rather than in anticipation of litigation, the work product exemption does not apply.

Next, the Court held that communications between Morgan and Stephson were not protected by attorney-client privilege. Stephson was hired as an independent investigator, and the purpose of her investigation was to comply with the city’s antidiscrimination policy. No attorney-client relationship developed between Stephson and Judge Morgan, thus the investigation and report were not  privileged. (The Court also wrote that an email Judge Morgan sent to the city attorney was not protected as Morgan waived the privilege when he forwarded the email to a third party.)

Finally, the Court held that the personal information exemption did not apply. This exemption only extends to matters concerning a person’s private life that would be highly offensive to a reasonable person and are of no legitimate concern to the public. The Court noted the public’s substantial interest in the disclosure of information related to the performance of an elected official.

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In re Larry Botimer, No. 200,625-6. Attorneys should review this case before entertaining the thought of retaliating against a client.

Attorney Larry Botimer served for several years as a tax preparer and tax advisor to Ruth Reinking, as well as Ruth’s son and daughter-in-law Jan and Janet Reinking, and he assisted Ruth with decisions related to her ownership stake in a nursing home facility. Botimer also assisted Ruth with business matters related to another care facility run by her other son, James Reinking. A dispute arose when James refused to recognize that Ruth or Jan had an ownership stake in this care facility. Botimer assisted Jan and Ruth in negotiations with James, but did not obtain conflict waivers in the course of his assistance of the various members of the Reinking family.

In 2002, Botimer terminated his representation of Ruth, citing her failure to cooperate with him, refusal to follow his advice and failure to pay for his legal services. Botimer also informed Ruth that he was sending a letter to the IRS informing the agency of Ruth’s failure to, contrary to his advice, correctly state her income and pay gift tax.

To resolve disputes stemming from the sale of Ruth’s nursing home facility, Jan and Janet sued Ruth and James. Botimer cooperated with Jan and Janet’s attorney in the lawsuit, providing him with three declarations to use in pretrial proceedings.

The Washington State Bar Association accused Larry Botimer of several ethical violations, and brought a complaint against Botimer for the following violations of the Rules of Professional Conduct:

• Count 1: Former RPC 1.7(b) by representing Ruth, Jan, and Janet; thereby creating a conflict of interest without obtaining informed consent in the form of conflict waivers.
• Count 2: Former RPC 1.6 and 1.9(b) by disclosing private information without consent to Jan’s lawyer when Jan and Ruth were counterparties to a lawsuit.
• Count 3: Former RPC 1.6 and 1.9(b) by disclosing without consent private information regarding Ruth’s prior tax returns to the IRS.

Today the Supreme Court unanimously affirmed the suspension in an opinion written by Justice Susan Owens.

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Faust v. Albertson, No. 81356-6. Hawkeye Kinkaid was extremely drunk when his car crossed the center line and struck a car driven by Bianca Faust. Kinkaid died and Faust and her passengers were injured, including one who was rendered paraplegic. Faust sued the Moose Lodge where Kinkaid had been drinking and Alexis Chapman, Kinkaid's girlfriend who had also been serving him drinks. A jury found the Lodge and Chapman liable for negligent overservice according to RCW 66.44.200 and awarded Faust a $14 million judgment. The trial court denied defendants' motion for judgment as a matter of law.

The Division One Court of Appeals reversed and vacated the judgment, believing that the evidence presented at trial was insufficient to show that Kinkaid was "apparently under the influence of liquor" as required by the statute. Here, in an opinion by Justice Owens, the Court unanimously overturns the Court of Appeals decision and reinstates the jury verdict. The Court also rejects the arguments of amici Mothers Against Drunk Driving and the Washington State Association of Justice Foundation (trial lawyers) that the threshold for plaintiffs in these cases should be lowered. (briefs, argument, AP story)

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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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Ames v. Dep't of Health, No. 80644-6. Dr. Geoffry Ames operated a "purported holistic medical practice in Richland, Washington," where he told a patient he could diagnose and treat allergies using a galvanic skin response machine called "LISTEN" (Life Information System Ten). The machine has not been approved by the FDA for those purposes. Additionally, Ames claimed that "he was able to replicate what the machine could do telepathically...." After the patient filed a complaint with the Department of Health, Ames was determined to have committed acts of professional misconduct under Washington law and sanctioned. Ames challenged that insufficient expert witness testimony was presented at the administrative hearing. Here Justice Owens writes for a unanimous court upholding the decisions below, finding that the "evidence presented demonstrated by clear and convincing evidence to a layperson that [Ames] was using a machine for purposes for which it was not designed and for which he was not specifically trained." (Briefs and oral argument)

Lundsford v. Saberhagen Holdings, Inc., No. 80728-1. Ronald and Esther Lunsford brought an action for negligence and strict product liability against Saberhagen Holdings. Saberhagen is the successor in interest to The Brower Company, which provided asbestos insulation products that Ronald Lunsford's father worked with in 1958. Those fibers apparently contributed to Ronald Lunsford's mesothelioma. Until 1992, there was an exception to the retrospective application of court decisions to pre-existing claims. This "selective prospectivity" exception was eliminated in Robinson v. City of Seattle. Saberhagen argues that Robinson has been subsequently overturned and that selective prospectivity applies in this case against the strict product liability claim. Justice Fairhurst, joined by five justices, holds that Robinson has not been overturned and that "strict product liability applies retroactively to all cases not barred by procedural requirements or goverend by the tort reform act, including Lunsford's ... claims...." Justice Madsen authored a concurrence signed by Chief Justice Alexander and Justice Jim Johnson disagreeing with the Court's strict interpretation of Robinson. (Briefs and oral argument)

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The Court today issued opinions in a Consumer Protection Act case and a criminal case.

Panag v. Farmers Ins. Co., of WA & Credit Control Servs., Inc., No. 80357-9 (consolidated with Stephens v. Omni Ins. Co. & Credit Control Servs., Inc., No. 80366-8). Justice Madsen writes for a five-member majority, expanding the reach of the Consumer Protection Act to "unfair or deceptive efforts to collect on an insurance subrogation claim...." Plaintiffs Panag and Stephens had each been involved in a car accident while uninsured. Farmers and Omni, insurers of the other parties in the accidents, hired Credit Control Services (CCS) to collect some or all of the "uninsured motorist benefits" paid to their customers. CCS sent several strident letters to Panag and Stephens, purporting to be debt collection notices. The majority holds that "a CPA claim may be predicated on the deceptive characterization of an unadjudicated insurance subrogation claim as a liquidated debt that must be immediately paid."

Justice Charles Johnson, joined by Justices Alexander, Owens, and James Johnson, dissents, accusing the majority of rewriting the CPA "far beyond its express reach." The dissenters point out that the CPA is about consumer protection. "The CPA was not designed to nor should it be rewritten to regulate relationships arising out of tortious conduct." (Case briefs and arguments.)

State v. Depaz, No. 80574-1. Justice Owens writes for five members of the Court; Justice Madsen, joined by the balance of the Justices, concurrs with the result but not the analysis. Depaz challenged his conviction for first degree rape of a child based on the trial court's removal of juror #3, the lone holdout. The juror had briefly talked with her husband about the case, apparently because their grandson was undergoing surgery and they were concerned about how long the deliberations would last. Juror #3's husband had told her to "stick to her guns," and for this she was excused. While the Court agrees with the trial court that the juror's actions constituted misconduct, the Court finds that the misconduct was not prejudicial and so removing Juror #3 was an abuse of discretion. (Case briefs and arguments.)

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