Supreme Court Issues
September Term 2005

• Civil Rights—Law Against Discrimination—Remedies—Damages—Adverse Federal Income Tax Consequences—Noneconomic Damages
• Constitutional Law—Due Process—Opportunity to be Heard—Sufficiency
• Constitutional Law—Freedom of Speech—Threat to Bomb Property—“True Threat”
• Counties—Land Use Controls—Growth Management Act—Agricultural Lands—Needs of Agricultural Industry
• Criminal Law—Assault—Multiple Definitions of “Assault”—Alternative Means Offense
• Criminal Law—Burglary—Residential Burglary—Intent to Commit Crime—Proof—Inference—Shifting Burdens of Proof
• Criminal Law—Driving Under the Influence—2004 Statutory Amendments—Constitutionality
• Criminal Law—Endangerment With a Controlled Substance—Relationship Between Defendant and Endangered Child
• Criminal Law—Judicial Comment on the Evidence—Harmless Error
• Criminal Law—Misconduct of Prosecutor—Opinion as to Defendant’s Guilt
• Criminal Law—Plea of Guilty—Plea Bargain—Exceptional Sentence—Stipulation—Indivisibility from Plea
• Criminal Law—Possession of Stolen Property—Access Devices—Unit of Prosecution
• Criminal Law—Postconviction Relief—Persistent Offender Accountability Act—Prior Convictions
• Criminal Law—Protection Order—Violation—Elements—Validity of Order
• Criminal Law—Punishment—Exceptional Sentence—Determination by Court—Effect of Stipulation & Waiver
• Criminal Law—Punishment—Exceptional Sentence—Determination by Court—Effect of Stipulation
• Criminal Law—Punishment—Sentence—Exceptional Minimum Sentence—Determination by Court—Validity
• Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Jury Determination
• Criminal Law—Punishment—Sentence—Pre-Reform Act Convictions—Board Review—Matters Considered—Failure to Complete Sex Offender Treatment—Offender’s Refusal to Admit Guilt
• Criminal Law—Sexual Offenses—Evidence—Statement of Child Victim—Reliability
• Criminal Law—Trial—Right to Public Trial—Closure
• Criminal Law—Weapons—Possession—Unlawful Firearms—Elements—Knowledge of Characteristics
• Discovery—Constitutional Rights—Right to Privacy—Information About Non-Parties
• Domestic Violence—Protection Order—Hearing—Right of Confrontation—Cross-Examination
• Elections—Ballots—Information Regarding Provisional Ballots—Public Disclosure
• Eminent Domain—Public Utility District—Condemnation—Sufficiency of Notice
• Employment—WISHA—Violation—Judicial Review—Attorney Fees
• Employment—WISHA—Violation—Penalty Assessment—Repeat Violation—What Constitutes
• Evidence—Hearsay—Excited Utterance—Startling Event—Requirement
• Government—Torts—Public Duty Doctrine—Rescue Exception—Promise to Third Persons
• Government—Torts—Public Duty Doctrine—Special Relationship—Emergency Call for Help—Express Assurance—Necessity
• Government—Torts—Public Duty Doctrine—Special Relationship—Nature of Assurance
• Government—Torts—Public Duty Doctrine—Special Relationship—Privity
• Juveniles—Custody—Nonparent Custody Statute—Validity
• Licenses—Regulation of Occupations—Professional Licenses—Discipline—Due Process—Standard of Proof
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Statutes—Supreme Court Construction—Effect
• Municipal Corporations—Land Use Controls—Comprehensive Plan—Amendment—Notice—Individualized Notice—Necessity
• Municipal Corporations—Regulatory Fees—Distinguished From Tax—Determination
• Municipal Corporations—Taxation—Validity
• Negligence—Contractor Liability—“Completion and Acceptance” Rule
• Parties—Indispensable Parties—Action Against Partner—Failure to Join Partnership—Effect
• Torts—Damages—Economic Loss—Contractual Allocation of Risk—Nature of Rule
• Torts—Interference With Business Expectation—Interference With Third-Party Business Relationships

Civil Rights—Law Against Discrimination—Remedies—Damages—Adverse Federal Income Tax Consequences—Noneconomic Damages

Whether a prevailing plaintiff who is awarded noneconomic damages in a discrimination suit is entitled to an amount that takes into account the adverse federal income tax consequences of the award.

No. 76595-2, Pham (respondent) v. City of Seattle (petitioner). (11/9/05)

124 Wn. App. 716 (2004)

Constitutional Law—Due Process—Opportunity to be Heard—Sufficiency

Whether RCW 94.20A.320, which permits the suspension or nonrenewal of a driver’s license for failure to pay child support, violates due process by limiting the inquiry at an adjudicative hearing to whether the parent is required by an order to pay child support and whether the parent is in compliance with that order.

No. 76590-1, Amunrud (petitioner) v. DSHS (respondent). (11/9/05)

124 Wn. App. 884 (2004)

Constitutional Law—Freedom of Speech—Threat to Bomb Property—“True Threat”

Whether RCW 9.61.160, which criminalizes threatening to bomb any public or private building, requires the State to prove that the threat was a “true threat” and thus is not protected by the First Amendment.

No. 76544-8, State (respondent) v. Johnston (petitioner). (10/11/05)

Counties—Land Use Controls—Growth Management Act—Agricultural Lands—Needs of Agricultural Industry

Whether, in planning under the Growth Management Act, a county need designate as “agricultural” only those lands it finds necessary to meet the projected needs of the county’s agricultural industry.

No. 76553-7, Lewis County (appellant) v. W. Wash. Growth Mgmt. Hearings Bd. (respondent). (11/10/05)

Criminal Law—Assault—Multiple Definitions of “Assault”—Alternative Means Offense

Whether the common law definition of “assault” describes alternative means of committing assault for purposes of the requirement of jury unanimity.

No. 76433-6, State (respondent) v. Smith (Sarah) (petitioner). (9/29/05)

124 Wn. App. 417 (2004)

Criminal Law—Burglary—Residential Burglary—Intent to Commit Crime—Proof—Inference—Shifting Burdens of Proof

Whether, in a prosecution for residential burglary, the State’s proof of unlawful entry shifted to the defendant the burden to rebut the statutory inference of intent to commit a crime. See RCW 9A.52.040.

No. 76198-1, State (respondent) v. Cantu (petitioner). (10/25/05)

123 Wn. App. 404 (2004)

Criminal Law—Driving Under the Influence—2004 Statutory Amendments—Constitutionality

Whether the 2004 amendments to the driving-under-the-influence statutes (enacted as SHB 3055) are invalid because the act violated the single subject or subject-in-title requirements of article II, section 19 of the Washington Constitution, or because the act violates the separation of powers doctrine, or because the act establishes a presumption that violates due process.

No. 76738-6, City of Fircrest (respondent) v. Jensen (appellant). (10/27/05)

Criminal Law—Endangerment With a Controlled Substance—Relationship Between Defendant and Endangered Child

Whether a person other than a child’s parent, custodian, or caregiver can be convicted of endangerment with a controlled substance pursuant to RCW 9A.42.100.

No. 76164-7, State (respondent) v. Cooper (petitioner). (10/25/05)

Criminal Law—Judicial Comment on the Evidence—Harmless Error

Whether a jury instruction that resolves a factual issue (and thus constitutes a comment on the evidence) can be considered harmless.

No. 75913-8, State (respondent) v. Levy (petitioner). (10/27/05)

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No. 76574-0, State (petitioner) v. Jackman (respondent). (10/27/05)

125 Wn. App. 552 (2004)

Criminal Law—Misconduct of Prosecutor—Opinion as to Defendant’s Guilt

Whether a prosecutor committed prejudicial misconduct in closing argument by referring to the victim’s lost innocence, or by offering a personal opinion as to the defendant’s guilt.

No. 76585-5, State (respondent) v. McKenzie (petitioner). (11/10/05)

Criminal Law—Plea of Guilty—Plea Bargain—Exceptional Sentence—Stipulation—Indivisibility from Plea

Whether a defendant who pleads guilty pursuant to a plea bargain and who for sentencing purposes stipulates to the court’s consideration of the “real facts” set forth in various documents may later challenge his exceptional sentence pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), without also challenging his guilty plea or plea bargain.

No. 76776-9 (cons. w/77138-3), State (respondent) v. Mehlhaff (petitioner); State (respondent) v. Hagar (petitioner). (11/15/05)

126 Wn. App. 320 (2005) — Hagar

Criminal Law—Possession of Stolen Property—Access Devices—Unit of Prosecution

Whether the simultaneous possession of multiple stolen credit cards constitutes only one unit of prosecution of second degree possession of stolen property.

No. 76425-5, State (petitioner) v. Ose (respondent). (10/25/05)

Criminal Law—Postconviction Relief—Persistent Offender Accountability Act—Prior Convictions

Whether the State may rebut a defendant’s postconviction argument that a predicate strike offense had washed out by introducing evidence of an intervening conviction it did not prove at sentencing.

No. 76070-5, Personal Restraint Petition of Cadwallader, Richard Cadwallader (petitioner); State (respondent), State (respondent) v. Cadwallader (petitioner). (9/13/05)

Criminal Law—Protection Order—Violation—Elements—Validity of Order

Whether, in a prosecution for violation of a protection order, the fact-finder must decide the validity of the protection order.

No. 76156-6, State (respondent) v. Miller (petitioner). (9/15/05)

123 Wn. App. 92 (2004)

Criminal Law—Punishment—Exceptional Sentence—Determination by Court—Effect of Stipulation & Waiver

Whether the defendant’s exceptional sentence should be reversed pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), where the defendant pleaded guilty, and as part of a plea bargain said that he did not agree that an exceptional sentence should be imposed, but stipulated that there was a basis for and sufficient evidence to impose an exceptional sentence, and “knowingly, voluntarily, and intelligently” waived his right to appeal the basis for and propriety of the exceptional sentence.

No. 76665-7, State (respondent) v. Ermels (petitioner). (11/15/05)

125 Wn. App. 195 (2005)

Criminal Law—Punishment—Exceptional Sentence—Determination by Court—Effect of Stipulation

Whether the defendant’s exceptional sentence should be reversed pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), where the defendant pleaded guilty, and as part of a plea bargain stipulated “to real and material facts as written in the certification for determination of probable cause and the prosecutor’s summary without stipulating that those facts are a legal basis for an exceptional sentence.”

No. 76807-2, State (respondent) v. Suleiman (petitioner). (11/15/05)

Criminal Law—Punishment—Sentence—Exceptional Minimum Sentence—Determination by Court—Validity

Whether, pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), facts supporting an exceptional minimum sentence under RCW 9.94A.712 must be proven to a jury beyond a reasonable doubt.

No. 76547-2, State (respondent) v. Borboa (petitioner) (see also Criminal Law—Sexual Offenses—Evidence—Statement of Child Victim—Reliability). (10/18/05)

124 Wn. App. 779 (2004) — published in part

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No. 76602-9, State (petitioner) v. Clarke (respondent). (10/18/05)

124 Wn. App. 893 (2004) — published in part

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Jury Determination

Whether, for purposes of considering an exceptional sentence, the trial court may convene a jury to determine whether aggravating circumstances exist.

No. 75984-7 (cons. w/75989-8; 76081-1; 76077-2), State (petitioner) v. Pillatos (respondent); State (petitioner) v. Butters (respondent); State (respondent) v. Base (petitioner); State (petitioner) v. Metcalf (respondent). (Rehearing 10/25/05)

Criminal Law—Punishment—Sentence—Pre-Reform Act Convictions—Board Review—Matters Considered—Failure to Complete Sex Offender Treatment—Offender’s Refusal to Admit Guilt

Whether the Indeterminate Sentence Review Board erroneously denied an offender parole because he failed to complete a sex offender treatment program that was unavailable to him due to his denial of guilt.

No. 76730-1, Personal Restraint Petition of Dyer, Richard Dyer (petitioner); State (respondent). (11/10/05)

Criminal Law—Sexual Offenses—Evidence—Statement of Child Victim—Reliability

Whether the trial court in this child sex offense case erroneously admitted child hearsay statements without finding that the child, at the time the statements were made, was capable of receiving accurate impressions of facts and relating them truthfully.

No. 76547-2, State (respondent) v. Borboa (petitioner) (see also Criminal Law—Punishment—Sentence—Exceptional Minimum Sentence—Determination by Court—Validity). (10/18/05)

124 Wn. App. 779 (2004) — published in part

Criminal Law—Trial—Right to Public Trial—Closure

Whether a criminal defendant is entitled to a new trial on the ground that the trial court improperly closed the courtroom during pre-trial motions of a co-defendant.

No. 76458-1, State (respondent) v. Easterling (petitioner). (11/9/05)

Criminal Law—Weapons—Possession—Unlawful Firearms—Elements—Knowledge of Characteristics

Whether knowledge of the physical characteristics that make a weapon illegal to possess under RCW 9.41.190 is an element of the crime described by that statute.

No. 76625-8, State (respondent) v. Williams (petitioner). (10/27/05)

125 Wn. App. 335 (2005) — published in part

Discovery—Constitutional Rights—Right to Privacy—Information About Non-Parties

Whether a party in a civil case may, based on article I, section 7 of the Washington Constitution, preclude discovery of records that contain confidential information regarding non-parties.

No. 76726-2, T.S. (respondent) v. Boy Scouts of America (petitioner). (10/11/05)

Domestic Violence—Protection Order—Hearing—Right of Confrontation—Cross-Examination

Whether due process requires that a respondent to a petition for a protection order under chapter 26.50 RCW be afforded an opportunity to confront and cross-examine witnesses.

No. 76270-8, In re Gourley, Kimberly Gourley (respondent); Clifford Gourley (petitioner). (9/15/05)

124 Wn. App. 52 (2004)

Elections—Ballots—Information Regarding Provisional Ballots—Public Disclosure

Whether the federal Help America Vote Act, 42 U.S.C. § 15482(a), prohibits the disclosure under the Washington Public Disclosure Act of information relating to the disposition of provisional ballots.

No. 77298-3, State Democratic Cent. Comm. (respondent) v. King County Records, Elections & Licensing Servs. Div. (appellant). (Stricken)

Eminent Domain—Public Utility District—Condemnation—Sufficiency of Notice

Whether a public utility district provided statutorily adequate notice of its meeting to consider a resolution condemning property to site power generators, and if not, whether a later resolution ratifying the original resolution cured the inadequacy.

No. 76755-6, PUD 2 of Grant County (respondent) v. N. Am. Foreign Trade Zone Indus. (petitioner). (9/29/05)

125 Wn. App. 622 (2005)

Employment—WISHA—Violation—Judicial Review—Attorney Fees

Whether the attorney fees provision of RCW 4.84.350(1) applies to judicial review of administrative decisions under the Washington Industrial Safety and Health Act.

No. 76064-1, Cobra Roofing Servs., Inc. (respondent) v. Dep’t of L&I (petitioner) (see also Employment—WISHA—Violation—Penalty Assessment—). (10/18/05)

122 Wn. App. 402 (2004)

Employment—WISHA—Violation—Penalty Assessment—Repeat Violation—What Constitutes

Whether, for purposes of enhanced penalties under the Washington Industrial Safety and Health Act, a “repeat violation” consists of a subsequent occurrence of a similar hazard or a repeat occurrence of a problem involving the same specific equipment or practice.

No. 76064-1, Cobra Roofing Servs., Inc. (respondent) v. Dep’t of L&I (petitioner) (see also Employment—WISHA—Violation—Judicial Review—). (10/18/05)

122 Wn. App. 402 (2004)

Evidence—Hearsay—Excited Utterance—Startling Event—Requirement

Whether admission of a statement under the “excited utterance” exception to the hearsay rule requires independent evidence of the predicate startling event or condition.

No. 76533-2, State (respondent) v. Young (petitioner). (10/11/05)

123 Wn. App. 854 (2004) — published in part

Government—Torts—Public Duty Doctrine—Rescue Exception—Promise to Third Persons

Whether a plaintiff may invoke the “rescue” exception to the public duty doctrine based upon a county employee’s representations to third parties that he would distribute warnings about the release of a sex offender into the community.

No. 76101-9, Osborn (respondent) v. Mason County (petitioner). (9/13/05)

122 Wn. App. 823 (2004)

Government—Torts—Public Duty Doctrine—Special Relationship—Emergency Call for Help—Express Assurance—Necessity

Whether a 911 call for medical aid gave rise to the “special relationship” exception to the public duty doctrine, even though the caller did not remain on the line long enough to receive express assurance that aid would be sent.

No. 76249-0, Cummins (petitioner) v. Lewis County (respondent). (9/13/05)

124 Wn. App. 247 (2004)

Government—Torts—Public Duty Doctrine—Special Relationship—Nature of Assurance

Whether a material question of fact exists as to whether a 911 operator made express assurances to the plaintiff, potentially giving rise to liability under the special relationship exception to the public duty doctrine.

No. 76575-8, Harvey (respondent) v. Snohomish County (petitioner) (see also Government—Torts—Public Duty Doctrine—Special Relationship—Privity). (11/17/05)

124 Wn. App. 806 (2004)

Government—Torts—Public Duty Doctrine—Special Relationship—Privity

Whether Snohomish County should be held liable for the claimed negligence of a 911 operator employed by SNOPAC, an entity providing 911 services to various public agencies pursuant to an interlocal agreement. See RCW 39.34.030(5) (no interlocal agreement made pursuant to chapter 39.34 RCW relieves any public agency of any obligation or responsibility imposed upon it by law).

No. 76575-8, Harvey (respondent) v. Snohomish County (petitioner) (see also Government—Torts—Public Duty Doctrine—Special Relationship—Nature of Assurance). (11/17/05)

124 Wn. App. 806 (2004)

Juveniles—Custody—Nonparent Custody Statute—Validity

Whether the nonparent child custody statute, chapter 26.10 RCW, is constitutional in allowing a nonparent to petition for custody upon showing that placement with a parent would be detrimental to the child.

No. 75263-0, In re Custody of Shields, Jenny Shields (respondent); Susan Harwood (petitioner). (11/15/05)

120 Wn. App. 108 (2004)

Licenses—Regulation of Occupations—Professional Licenses—Discipline—Due Process—Standard of Proof

Whether the standard of proof in nursing assistant disciplinary proceedings is a preponderance of the evidence or clear and convincing evidence.

No. 76618-5, Ongom (petitioner) v. Dep’t of Health (respondent). (11/17/05)

124 Wn. App. 935 (2005)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Statutes—Supreme Court Construction—Effect

Whether the detainee in this sex predator commitment proceeding was improperly required to submit to a mental health examination by the State’s expert, given this court’s later holding regarding examinations in such proceedings. See In re Detention of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002).

No. 76161-2, In re Detention of Halgren, Michael Halgren (petitioner); State (respondent). (9/15/05)

124 Wn. App. 206 (2004)

Municipal Corporations—Land Use Controls—Comprehensive Plan—Amendment—Notice—Individualized Notice—Necessity

Whether a municipality provided a landowner with adequate notice of a hearing to consider a comprehensive plan amendment designating the landowner’s property as a potential annexation area, where only that landowner’s property was potentially affected, and notice was provided in a newspaper of general circulation.

No. 75879-4, Chevron U.S.A., Inc. (petitioner) v. Cent. Puget Sound Growth Mgmt. Hearings Bd. (respondent); Snohomish County (respondent) v. City of Shoreline (respondent) Chevron U.S.A., Inc. (petitioner) Cent. Puget Sound Growth Mgmt. Hearings Bd. (respondent). (9/27/05)

123 Wn. App. 161 (2004)

Municipal Corporations—Regulatory Fees—Distinguished From Tax—Determination

Whether a monthly charge by a local sewer district to unimproved lots is a permissible regulatory fee or an unconstitutional tax.

No. 76062-4, Holmes Harbor Sewer Dist. (respondent) v. Frontier Bank (defendant) Holmes Harbor Home Bldg. (petitioner). (9/13/05)

123 Wn. App. 45 (2004)

Municipal Corporations—Taxation—Validity

Whether the Seattle Popular Monorail Authority’s delegated power to levy a local motor vehicle excise tax is unconstitutional, and whether the tax is an invalid property tax or conflicts with the terms of the voter-approved measure authorizing the tax.

No. 77073-5, Larson (appellant) v. Seattle Popular Monorail Auth. (respondent). (9/27/05)

Negligence—Contractor Liability—“Completion and Acceptance” Rule

Whether the trial court erred in granting summary judgment in favor of the defendant contractors under the “completion and acceptance” rule, which generally provides that a contractor’s liability to third parties is extinguished when the contractor’s work is complete and accepted by the owner.

No. 76696-7, Davis (appellant) v. Baugh Indus. Contractors, Inc. (respondent). (11/9/05)

Parties—Indispensable Parties—Action Against Partner—Failure to Join Partnership—Effect

Whether this personal injury action against a general partner of a partnership must be dismissed because the plaintiff did not timely join the partnership as a party.

No. 76292-9, Gildon (respondent) v. Simon Prop. Group, Inc. (petitioner). (9/27/05)

Torts—Damages—Economic Loss—Contractual Allocation of Risk—Nature of Rule

Whether the economic loss rule, which bars tort claims for purely economic damages arising from a contractual agreement, requires that the contract expressly allocate the specific risk giving rise to the tort claims.

No. 76274-1, Alejandre (respondent) v. Bull (petitioner). (9/29/05)

123 Wn. App. 611 (2004)

Torts—Interference With Business Expectation—Interference With Third-Party Business Relationships

Whether a city may be liable for interfering with the business expectations of a gun show promoter, when it rents a facility to the promoter and then imposes licensing restrictions on prospective gun sellers.

No. 76109-4, Pac. NW Shooting Park Ass’n (petitioner) v. City of Sequim (respondent). (9/27/05)