Supreme Court Issues
January Term 2008

• Arbitration—Contractual Agreement—Class Actions—Waiver—Unconscionability
• Counties—Land Use Controls—Growth Management Act—Administrative Review—Growth Management Hearings Board—Periodic Update of Plan and Regulations—Review of Unrevised Provisions
• Criminal Law—Appeal—Right to Appeal—Self-Representation—State Constitution
• Criminal Law—Evidence—Opinion Evidence—Guilt or Innocence—Possession of Pseudoephedrine with Intent to Manufacture Methamphetamine—Opinion on Intent
• Criminal Law—Former Jeopardy—Merger—Second Degree Taking Motor Vehicle without Permission and Second Degree Vehicle Prowling
• Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—Merger Doctrine—Assault and Robbery—Multiple Robbery Victims
• Criminal Law—Former Jeopardy—Same Offense—Felony Murder—Homicide by Abuse—Felony Murder based on Criminal Mistreatment—Implied Acquittal—Continuing Jeopardy
• Criminal Law—Homicide—First Degree Murder—Solicitation—Double Jeopardy—Unit of Prosecution
• Criminal Law—Punishment—Sentence—Community Custody—Conditions—Vagueness—Pre-Enforcement Challenge
• Criminal Law—Punishment—Sentence—Exceptional Minimum Term—Determination by Court—Validity—State Constitution
• Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Jury—Statutory Authority—Applicability to Exceptional Minimum Terms—Retroactivity
• Criminal Law—Right to Public Trial—Jury Selection—Waiver
• Criminal Law—Searches and Seizures—Consent—Validity—Leased Premises
• Criminal Law—Searches and Seizures—Incident to Arrest—Probable Cause—Odor of Marijuana
• Criminal Law—Searches and Seizures—Stop and Frisk—Protective Search or Seizure—Validity—Scope
• Criminal Law—Searches and Seizures—Warrantles Seizure—Validity
• Criminal Law—Trial—Misconduct of Prosecutor—Cross-Examination—Gestures and Facial Expressions—Argument—Witness Credibility
• Death—Organ and Tissue Donation—Unspecified Donee—Medical Examiner—Authority—Parents’ Cause of Action—Availability
• Divorce—Disposition of Property—Real Property—Property Located in Foreign Country—Jurisdicton
• Eminent Domain—Inverse Condemnation—Constitutional Taking—Execution of Search Warrant—Damage to Property
• Employment—Termination—Violation of Public Policy—“Concerted Activity”—What Constitues—Retaliatory Discharge—Statutorily Protected Activity
• Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Energy Reorganization Act—Whistleblower Procedures—Effect—Waiver
• Industrial Insurance—Permanent Partial Disability—Noise-Related Hearing Loss—Progressive or Separate and Distinct Diseases—Applicable Benefits Schedule
• Insurance—Assignments—Rights of Assignee—Late Tender of Claim to Nonsettling Insurer—Contribution Action
• Insurance—Good Faith—Insurer’s Bad Faith—Insured’s Right of Action
• Judgment—Duration—Equitable Tolling—Execution—Sale—Limited Partnership Interest—Validity
• Juveniles—Custody—Jurisdiction—Uniform Act—Home State
• Limitation of Actions—Tolling Statute—Disabled Person—Duration of Incapacity—Time to Appoint Guardian
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Appointment of Expert—Good Cause
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Enforcement—Contempt
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—What Constitutes
• Municipal Corporations—Fire Hydrants—Governmental or Proprietary Function—Costs—General Fund or Utililty Ratepayers
• Municipal Corporations—Limitation of Actions—State Exemption—Stadium Public Facilities District
• Municipal Corporations—Torts—Execution of Search Warrant—Damage to Property—Right of Action
• Open Government—Public Disclosure—Denial—Amount—Determination—Culpability
• Privacy—Privacy Act—Private Conversations—What Constitutes—Telephone Conversation Between Inmate and Outside Party—Notice of Recording
• Products Liability—Warnings—Manufacturer—Duty to Warn—Hazardous Condition—Asbestos
• Taxation—Excise Tax—Hazardous Substance Excise Tax—Products Derived from Crude Oil Refining—“Refinery Gas”
• Telecommunications—Taxation—Communications Services—Internet Data Transmission—Statutory Authority—State Moratorium—Federal Moratorium—Applicability
• Unemployment Compensation—Voluntary Termination—Employer Plan—Layoff or Reduction in Force
• Unemployment Compensation—Voluntary Termination—Good Cause—Statutory List—Amendment—Validity—Subject and Title of Act
• Vendor and Purchaser—Option to Purchase—Exercise of Option—Conditions—Contemporaneous with Last Payment—Equity

Arbitration—Contractual Agreement—Class Actions—Waiver—Unconscionability

Whether the superior court erred in applying Washington law to hold that the arbitration clause in the contract a telephone company sent its long distance customer was unenforceable, either because the Federal Communications Act preempts Washington law or because the contractual choice of New York law governs.

No. 81006-1, McKee (respondent) v. AT&T Corp. (appellant). (3/13/08)

Counties—Land Use Controls—Growth Management Act—Administrative Review—Growth Management Hearings Board—Periodic Update of Plan and Regulations—Review of Unrevised Provisions

Whether, in connection with a county’s periodic update of its comprehensive plan and development regulations, the growth management hearings board had authority to consider challenges to unchanged plan provisions and development regulations that were not challenged when originally enacted, and if so, whether the board properly invalidated provisions relating to agricultural land designations, the size or urban growth areas, and the variety of rural densities.

No. 80115-1, Thurston County, et al. (petitioners) v. W. Wash. Growth Mgmt. Hearing Bd. & Futurewise (respondents). (3/20/08)

137 Wn. App. 781 (2007)

Criminal Law—Appeal—Right to Appeal—Self-Representation—State Constitution

Whether a criminal defendant has a state constitutional right to self-representation on appeal.

No. 80865-1, State (respondent) v. Rafay; Glen Burns (petitioner). (3/18/08)

Criminal Law—Evidence—Opinion Evidence—Guilt or Innocence—Possession of Pseudoephedrine with Intent to Manufacture Methamphetamine—Opinion on Intent

Whether, in a prosecution for possession of pseudoephedrine with intent to manufacture methamphetamine, a detective and a forensic chemist improperly opined on the defendant’s guilt when they testified that the products the defendant had bought led them to believe he intended to use pseudoephedrine to make methamphetamine.

No. 79564-9, State (respondent) v. Montgomery (petitioner). (1/17/08)

Criminal Law—Former Jeopardy—Merger—Second Degree Taking Motor Vehicle without Permission and Second Degree Vehicle Prowling

Whether a defendant’s convictions for both second degree taking a motor vehicle without permission and second degree vehicle prowling based on the same car violated double jeopardy principles.

No. 80020-1, State (respondent) v. Unga (petitioner). (3/18/08)

137 Wn. App. 410 (2007)

Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—Merger Doctrine—Assault and Robbery—Multiple Robbery Victims

Whether a second degree assault conviction should merge with a first degree robbery conviction based on the taking of a car when the defendant accomplished the robbery by first pointing a gun at the driver, who fled, and then pointing a gun at the passenger, the named victim of the assault.

No. 81030-3, State (respondent) v. Kier (appellant). (2/14/08)

Criminal Law—Former Jeopardy—Same Offense—Felony Murder—Homicide by Abuse—Felony Murder based on Criminal Mistreatment—Implied Acquittal—Continuing Jeopardy

Whether double jeopardy principles bar the State from retrying the defendant for homicide by abuse or second degree felony murder predicated on criminal mistreatment after the defendant’s assault-based second degree felony murder conviction was vacated under In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002).

No. 76802-1, State (petitioner) v. Daniels (respondent). (3/20/08)

124 Wn. App. 830 (2004)

Criminal Law—Homicide—First Degree Murder—Solicitation—Double Jeopardy—Unit of Prosecution

Whether a defendant committed multiple acts of solicitation to commit murder when he met with a jailhouse informant three times to discuss three potential victims and then met with an undercover police officer to discuss the same three individuals and another potential victim.

No. 79384-1, State (respondent) v. Jensen (petitioner). (STRICKEN; WILL BE RESET SPRING 2008 TERM)

Criminal Law—Punishment—Sentence—Community Custody—Conditions—Vagueness—Pre-Enforcement Challenge

Whether a convicted offender subject to conditions of community custody may challenge the conditions as unconstitutionally vague without first being accused of violating the conditions.

No. 79988-1, State (respondent) v. Bahl (petitioner). (2/28/08)

137 Wn. App. 709 (2007)

Criminal Law—Punishment—Sentence—Exceptional Minimum Term—Determination by Court—Validity—State Constitution

Whether the Washington Constitution requires a jury to find the existence of aggravating factors justifying an exceptional minimum sentence under RCW 9.94A.712.

No. 80587-3, State (respondent) v. Mines (appellant) (see also Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Jury—Statutory Authority—Applicability to Exceptional Minimum Terms—Retroactivity).
(2/14/08)

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Jury—Statutory Authority—Applicability to Exceptional Minimum Terms—Retroactivity

Whether 2005 statutory amendments requiring a jury to find the existence of aggravating factors justifying exceptional sentences apply to exceptional minimum sentences under RCW 9.94A.712, and if so, whether by virtue of 2007 legislation the amendments apply retroactively. See Laws of 2007, ch. 205.

No. 80587-3, State (respondent) v. Mines (appellant) (see also Criminal Law—Punishment—Sentence—Exceptional Minimum Term—Determination by Court—Validity—State Constitution). (2/14/08)

Criminal Law—Right to Public Trial—Jury Selection—Waiver

Whether the trial court violated the right to a public trial by conducting voir dire of individual potential jurors in chambers, and whether the defendant waived his right to challenge this action on appeal by participating without objection in the in chambers voir dire.

No. 80849-0, State (respondent) v. Strode (appellant). STRICKEN; WILL BE RESET SPRING 2008 TERM

Criminal Law—Searches and Seizures—Consent—Validity—Leased Premises

Whether a contractor hired by a landlord to repair residential premises currently leased to a tenant had authority to allow police to enter a garage where the contractor had found suspected marijuana.

No. 79947-4, State (respondent) v. Eisfeldt (petitioner). (1/24/08)

Criminal Law—Searches and Seizures—Incident to Arrest—Probable Cause—Odor of Marijuana

Whether the moderate smell of marijuana in a stopped car gave a police officer probable cause to arrest (and search) all of the the occupants.

No. 81068-1, State (respondent) v. Grande (petitioner). (3/18/08)

Criminal Law—Searches and Seizures—Stop and Frisk—Protective Search or Seizure—Validity—Scope

Whether a police officer’s belief that the defendant was under the influence of methamphetamine justified frisking the defendant for weapons, and if so, whether the officer exceeded the scope of the frisk when he removed everything from one of the defendant’s pockets, including a baggie of white powder.

No. 79690-4, State (respondent) v. Setterstrom (petitioner). (1/22/08)

Criminal Law—Searches and Seizures—Warrantles Seizure—Validity

Whether police lawfully stopped the defendant to investigate when they observed him make a furtive gesture inside a bus kiosk and then cross the street illegally when they approached.

No. 79992-0, State (respondent) v. Gatewood (petitioner). (3/13/08)

Criminal Law—Trial—Misconduct of Prosecutor—Cross-Examination—Gestures and Facial Expressions—Argument—Witness Credibility

Whether the prosecution in a criminal trial committed reversible misconduct by cross-examining the defendant about the consequences of conviction, making purportedly unprofessional gestures and facial expressions behind defense counsel’s back, and asserting in closing argument that the victim was telling the truth.

No. 79801-0, State (respondent) v. Fisher (petitioner). (2/12/08)

Death—Organ and Tissue Donation—Unspecified Donee—Medical Examiner—Authority—Parents’ Cause of Action—Availability

Whether the Uniform Anatomical Gift Act, RCW 68.50.520-.630, authorized the King County Medical Examiner to collect an adult deceased’s brain and other organs for medical research pursuant to a general organ donation that specified no donee, and if not, whether the deceased’s parents, who claim the medical examiner exceeded their consent, have a right of action against the medical examiner under the act or the common law.

No. 81028-1, Adams (appellant) v. King County (respondent). (3/13/08)

Divorce—Disposition of Property—Real Property—Property Located in Foreign Country—Jurisdicton

Whether the superior court in a marriage dissolution proceeding had jurisdiction to distribute the former spouses’ ownership interests in real property sitatued in Poland.

No. 79662-9, In re Marriage of Kowalewski; Mariusz Kowalewski (petitioner); Barbara Kowalewska (respondent). (1/24/08)

Eminent Domain—Inverse Condemnation—Constitutional Taking—Execution of Search Warrant—Damage to Property

Whether property damage inflicted in the execution of a search warrant constituted a compensable taking.

No. 79252-6, Brutsche (petitioner) v. City of Kent, et al. (respondents) (see also Municipal Corporations—Torts—Execution of Search Warrant—Damage to Property—Right of Action). (1/17/08)

Employment—Termination—Violation of Public Policy—“Concerted Activity”—What Constitues—Retaliatory Discharge—Statutorily Protected Activity

Whether employees who were terminated after complaining about their supervisor to the employer’s board of directors were wrongfully terminated in violation of public policy and in retaliation for engaging in protected activity.

No. 79615-7, Briggs (petitioners) v. Nova Servs. (respondents). (2/12/08)

135 Wn. App. 955 (2006)

Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Energy Reorganization Act—Whistleblower Procedures—Effect—Waiver

Whether the defendant in this action for wrongful discharge in violation of public policy waived its challenge to the “jeopardy” element of the plaintiffs’ claim, and if not, whether the plaintiffs’ jury verdict must be reversed because the whistleblower procedures of the federal Energy Reorganization Act provided adequate protection as a matter of law, such that the plaintiffs failed to provide the “jeopardy” element. See Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 125 P.3d 119 (2005).

No. 80735-3, Brundridge, et al. (respondents/cross-appellants) v. Fluor Fed. Servs., Inc. (appellant/cross respondent). (1/17/08)

Industrial Insurance—Permanent Partial Disability—Noise-Related Hearing Loss—Progressive or Separate and Distinct Diseases—Applicable Benefits Schedule

Whether a worker whose noise related hearing loss worsened over time is entitled to workers’ compensation benefits based on the benefits schedule in effect at the time of each measured hearing loss, or only to benefits based on the schedule in effect at the time of the initial measured hearing loss.

No. 79613-1, Harry (respondent) v. Buse Timber & Sales, Inc. & Dep’t of L&I (petitioners). (1/22/08)

134 Wn. App. 739 (2006)

Insurance—Assignments—Rights of Assignee—Late Tender of Claim to Nonsettling Insurer—Contribution Action

Whether insurers who settled with an insured on a liability claim and were assigned the insured’s rights may make a late tender of the claim to a nonsettling coinsurer and receive the benefit of the late tender rule to maintain an action for contribution against the nonsettling insurer.

No. 80199-1, Mut. of Enumclaw & Commercial Underwriters Ins. Co. (respondents) v. USF Ins. Co. (petitioner). (3/20/08)

137 Wn. App. 352 (2007)

Insurance—Good Faith—Insurer’s Bad Faith—Insured’s Right of Action

Whether an insured has a cause of action against its liability insurer for bad faith for violation of claims handling regulations or the Consumer Protection Act even though a court has held that the insurer has no contractural duty to defend, settle, or indemnify the insured.

No. 80359-5, St. Paul Fire & Marine Ins. Co. (plaintiff) v. Onvia, Inc., Onvia.Com, & Responsive Mgmt. Sys. (defendants). (2/28/08)

Certified Question from U.S. District Court, Western District of Wash.

Judgment—Duration—Equitable Tolling—Execution—Sale—Limited Partnership Interest—Validity

Whether the plaintiff to a Texas civil judgment timely sought to enforce a judgment lien against the defendant’s interest in a Washington limited partnership, and if so, whether the lien may be enforced by foreclosure on the defendant’s entire partnership interest.

No. 81005-2, TCAP Corp. f/k/a Transamerican Capital Corp. (respondent) v. George Gervin and Joyce Gervin (appellants). (3/11/08)

Juveniles—Custody—Jurisdiction—Uniform Act—Home State

Whether Washington was the “home state” of a child, and thus had jurisdiction over a petition for nonparental custody by former foster parents, where the child was born in Montana, placed in foster care there after two years, lived three years with the foster parents, and moved with his mother to Washington about four months before the custody petition was filed.

No. 79938-5, In re Custody of Angelo; Holly Cork (petitioner); Anita Bangert; David Nagle (respondents). (2/12/08)

137 Wn. App. 245 (2007)

Limitation of Actions—Tolling Statute—Disabled Person—Duration of Incapacity—Time to Appoint Guardian

Whether a medical malpractice plaintiff’s four days in intensive care following the alleged act of malpractice rendered her “incompetent or disabled” so as to toll the statute of limitations for that period of time under RCW 4.16.190, even though in that period a guardian could not have been appointed for the plaintiff.

No. 79506-1, Rivas (petitioner) v. Overlake Hosp. Med. Ctr., et al. (respondents). (1/15/08)

134 Wn. App. 921 (2006)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Appointment of Expert—Good Cause

Whether the trial court erred by refusing to appoint a second expert for a person the State sought to commit as a sexually violent predator.

No. 79111-2, In re Detention of Anderson; John Anderson (petitioner); State (respondent) (see also Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—What Constitutes). (1/15/08)

134 Wn. App. 309 (2006)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Enforcement—Contempt

Whether a court in a sexually violent predator proceeding is prohibited by CR 37 from imposing contempt as a sanction for refusing to obey an order to submit to a psychiatric examination.

No. 79747-1, In re the Detention of Young; Andre B. Young (petitioner); State (respondent). (1/15/08)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—What Constitutes

Whether engaging in consensual sexual acts with adults while voluntarily committed to a state hospital constituted “recent overt acts” sufficient to commit as a sexually violent predator a person who suffered from pedophilia and sexual sadism and had previously committed non-consensual acts with children.

No. 79111-2, In re Detention of Anderson; John Anderson (petitioner); State (respondent) (see also Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Appointment of Expert—Good Cause). (1/15/08)

134 Wn. App. 309 (2006)

Municipal Corporations—Fire Hydrants—Governmental or Proprietary Function—Costs—General Fund or Utililty Ratepayers

Whether the provision of fire hydrants is a governmental function chargeable to the general fund of local governments or a proprietary function chargeable to water utility ratepayers.

No. 80204-1, Lane, et al. (respondents/cross-appellants) v. City of Seattle (respondent) v. City of Burien & City of Lake Forest Park (appellants). (2/28/08)

Municipal Corporations—Limitation of Actions—State Exemption—Stadium Public Facilities District

Whether a lawsuit brought by the State Major League Baseball Stadium Public Facilities District and the Seattle Mariners for alleged construction defects in Safeco Field is an action “for the benefit of the State” and therefore exempt from the statute of limitations. See RCW 4.16.160.

No. 81029-0, Wash. State Major League Baseball Stadium Pub. Facilities Dist. (appellant) v. Huber, Hunt & Nichols-Kiewitt Const. (respondent). (3/13/08)

Municipal Corporations—Torts—Execution of Search Warrant—Damage to Property—Right of Action

Whether injury to property inflicted by police in the execution of a search warrant may give rise to an action for damages against the municipality.

No. 79252-6, Brutsche (petitioner) v. City of Kent, et al. (respondents) (see also Eminent Domain—Inverse Condemnation—Constitutional Taking—Execution of Search Warrant—Damage to Property). (1/17/08)

Open Government—Public Disclosure—Denial—Amount—Determination—Culpability

Whether the amount of the penalty imposed on an agency for violating the Public Records Act should depend on the degree of culpability under principles of tort liability.

No. 80081-2, Yousoufian (respondent) v. The Office of Ron Sims (petitioners). (2/26/08)

137 Wn. App. 69 (2007)

Privacy—Privacy Act—Private Conversations—What Constitutes—Telephone Conversation Between Inmate and Outside Party—Notice of Recording

Whether telephone calls between a jail inmate and an outside party, preceded by recorded warnings that the calls were being recorded and may be monitored, constituted “private” conversations under the privacy act, and if so, whether the parties consented to the recordings by proceeding with the calls following the warnings.

No. 79767-6, State (respondent) v. Modica (petitioner). (2/12/08)

136 Wn. App. 434 (2006)

Products Liability—Warnings—Manufacturer—Duty to Warn—Hazardous Condition—Asbestos

Whether manufacturers of mechanical devices that were insulated with asbestos insulation by third parties had a common law duty to warn workers servicing the devices of the hazard of asbestos exposure.

No. 80076-6, Simonetta (respondent) v. Viad Corp. (petitioner). (3/11/08)

137 Wn. App. 15 (2007)

No. 80251-3, Braaten (respondent) v. Saberhagen Holdings, Inc. (petitioner). (3/11/08)

137 Wn. App. 32 (2007)

Taxation—Excise Tax—Hazardous Substance Excise Tax—Products Derived from Crude Oil Refining—“Refinery Gas”

Whether refinery gas, a byproduct of crude oil refining that is either used as a heating source in the refining process or burned off, is subject to Washington’s hazardous substance excise tax. See chapter 82.21 RCW.

No. 79661-1, Tesoro Refining & Mktg. Co. (petitioner) v. Dep’t of Revenue (respondent). (1/24/08)

135 Wn. App. 411 (2006)

Telecommunications—Taxation—Communications Services—Internet Data Transmission—Statutory Authority—State Moratorium—Federal Moratorium—Applicability

Whether the city of Seattle is prohibited from imposing its telephone utility tax on Comcast’s cable Internet service by RCW 35.21.714 (prohibiting imposition of local telephone utility taxes on interstate service), by RCW 35.21.717 (moratorium on new taxes or fees specific to Internet service providers), or by the federal Internet Tax Freedom Act.

No. 79702-1, Cmty. Telecable of Seattle, Inc. (petitioners) v. City of Seattle (respondent). (1/22/08)

136 Wn. App. 169 (2006)

Unemployment Compensation—Voluntary Termination—Employer Plan—Layoff or Reduction in Force

Whether a Verizon early retirement plan for management employees constituted an employer-initiated reduction in force, entitling employees who accepted the plan to unemployment compensation benefits.

No. 81024-9, Verizon Nw., Inc. (appellant) v. Wash. Employment Sec. Dep’t (respondent). (2/26/08)

Unemployment Compensation—Voluntary Termination—Good Cause—Statutory List—Amendment—Validity—Subject and Title of Act

Whether 2006 legislation purporting to remedy a subject-in-title defect in 2003 legislation establishing exclusive “good cause” reasons to voluntarily quit without being disqualified from unemployment compensation also violates the subject-in-title requirement of article II, section 19 of the Washington Constitution. See Laws of 2006, ch. 12, § 1.

No. 79878-8 (consol. w/80309-9), Spain (respondent) v. Dep’t of Employment Sec. (petitioner); Batey (respondent) v. Dep’t of Employment Sec. (petitioner). (2/26/08)

137 Wn. App. 506 (2007)

Vendor and Purchaser—Option to Purchase—Exercise of Option—Conditions—Contemporaneous with Last Payment—Equity

Whether the holder of an option to buy real property satisfied a condition requiring him to exercise his option “at the same time” he made his last payment when, two months after tendering his last payment, he exercised his option soon after assisting the owner in cashing a check for a prior payment that the owner had held for several months, and if not, whether the holder’s occupation and improvement of the property justified an equitable grace period.

No. 80066-9, Pardee (petitioner) v. Jolly (respondent). (2/28/08)