Supreme Court Issues
January Term 2009
Appeal—Decisions Reviewable—Right of Appeal—Order Disallowing Citizen Criminal Complaint
Whether a citizen who attempted to initiate a criminal prosecution by citizen complaint pursuant to CrRLJ 2.1(c) may appeal a district court order disallowing the complaint on the ground that CrRLJ 2.1(c) violates separation of powers principles.
No. 81295-1, In re Anderlik, Chris Anderlik (petitioner); Ballard Bates; Duane Simmons; State of Washington (respondents). STRICKEN
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Automobiles—Motorcycles—Absence of Driver’s License Endorsement—Relevance to Negligence Action
Whether a motorcyclist’s lack of a license endorsement entitling him to carry passengers was admissible evidence of negligence in an action against the motorcyclist by a passenger injured in an accident.
No. 80996-8, Kappleman (petitioner) v. Lutz (respondent). (2/24/09)
141 Wn. App. 580 (2007)
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Building Regulations—Land Use Regulations—Judicial Review—Land Use Petition Act—“Land Use Decision”—Monetary Fines for Building Code Violations
Whether a city’s assessments of monetary penalties for building code violations constituted “land use decisions” subject to the Land Use Petition Act.
No. 80684-5, Post (petitioner) v. City of Tacoma (respondent). (1/15/09)
140 Wn. App. 155 (2007)
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Building Regulations—Land Use Regulations—Vested Rights—Filing of Site Development Plan Review Application
Whether development rights vested on a condominium project when the owner filed an application for site plan review with the city of Bonney Lake.
No. 80878-3, Abbey Road Group, LLC, et al. (petitioners) v. City of Bonney Lake (respondent). (2/10/09)
141 Wn. App. 184 (2007)
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Community Property—Status of Property—Real Property—Purchase Contract—Execution Before Marriage—Issuance of Fulfillment Deed After Marriage
Whether real property purchased by means of a real estate contract executed before marriage remained the separate property of the purchasing spouse even though the fulfillment deed issued after the marriage named both spouses.
No. 80925-9, In re the Estate of Jeanette L. Borghi; Gilroy (respondent) v. Montano-Guerrero (petitioner). (3/24/09)
141 Wn. App. 294 (2007)
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Condominiums—Condominium Act—Warranties—Dispute Resolution—Right to Judicial Forum—Preemption by Federal Arbitration Act
Whether a condominium purchase and sale agreement calling for binding arbitration of construction defect claims involves interstate commerce, making arbitration mandatory under the Federal Arbitration Act to the exclusion of the right under the Washington Condominium Act to enforce statutory warranties in court.
No. 81083-4 (consol. w/80480-0 & 80584-9), The Pier at Leschi Condo. Owners Ass’n (respondent) v. Leschi Corp. (appellant); Satomi Owners Ass’n (respondent) v. Satomi, LLC
(petitioner); Blakeley Commons Condo. Ass’n (respondent) v. Blakeley Commons LLC, et al.
(appellants). (2/24/09)
139 Wn. App. 175 (2007) (Satomi)
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Consumer Protection—Action for Damages—Injury to Business or Property—Surgical Procedure—Economic Loss
Whether a medical patient’s economic losses attributable to an allegedly unnecessary surgical procedure are recoverable under the Consumer Protection Act, chapter 19.86 RCW.
No. 81107-5, Ambach (respondent) v. French (petitioner). (3/24/09)
141 Wn. App. 782 (2007)
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Controlled Substances—Forfeitures—Vehicles—Innocent Owner Exception—Lack of Knowledge or Consent—“Knowledge”—What Constitutes
Whether, for purposes of the innocent owner exception to forfeiture of a vehicle involved in a controlled substance crime, the owner’s lack of “knowledge” of the vehicle’s illegal use is determined under an objective standard. See RCW 69.50.505(1)(d)(ii).
No. 81116-4, In re the forfeiture of one: 1970 Chevrolet Chevelle (WLN CV02849); In re the forfeiture of one: 2004 Nissan Sentra (WLN 937SRL) (petitioners) v. Snohomish County Reg’l Drug Task Force (respondent). (2/26/09)
140 Wn. App. 802 (2007)
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Corporations—Derivative Action—Shareholder—Demand on Board—Excuse
Whether a shareholder seeking to bring a derivative action on behalf of a corporation is excused under RCW 23B.07.400(2) from demanding that the board of directors bring an action if such a demand would have been futile, and whether board approval or acceptance of backdated options shows futility.
No. 81817-7, Hutton (plaintiff) v. McAdam & F5 Networks, Inc. (defendants). (3/24/09)
Certified Question from U.S. District Court, Western District of Wash.
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Criminal Law—Arrest—Extraterritorial Arrest—Emergency—Erratic Driving—What Constitutes
Whether an “emergency” existed justifying a police officer stopping a motorcyclist outside the officer’s jurisdiction when the officer observed the traveling motorcyclist stand momentarily on his foot pegs, look at a vehicle next to him, and accelerate away at high speed. See RCW 10.93.070(2).
No. 80948-8, State (respondent) v. King (petitioner) (see also Criminal Law—Evidence—Opinion Evidence—Guilt or Innocence—Review—Issues Not Raised in Trial Court—“Manifest” Constitutional Error). (1/13/09)
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Criminal Law—Burglary—“Building”—“Fenced Area”—What Constitutes
Whether an area fenced on one side and surrounded on the other three sides by natural terrain was a “fenced area” and therefore a “building” for purposes of the burglary statutes. See RCW 9A.04.110(5).
No. 81072-9, State (respondent) v. Engel (petitioner). (3/26/09)
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Criminal Law—Controlled Substances—Marijuana—Medical Use Act—Affirmative Defense—Qualifying Patient—Severe Anxiety, Anger, Depression
Whether a diagnosed condition of severe anxiety, anger, and depression qualified a defendant to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana.
No. 81210-1, State (respondent) v. Fry (petitioner) (see also Criminal Law—Controlled Substances—Marijuana—Medical Use Act—Negation of Probable Cause for Search). (3/12/09)
142 Wn. App. 456 (2008)
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Criminal Law—Controlled Substances—Marijuana—Medical Use Act—Negation of Probable Cause for Search
Whether documentation that the defendant provided to police purportedly authorizing him to use marijuana for medicinal purposes negated probable cause to search the defendant’s home for marijuana.
No. 81210-1, State (respondent) v. Fry (petitioner) (see also Criminal Law—Controlled Substances—Marijuana—Medical Use Act—Affirmative Defense—Qualifying Patient—Severe Anxiety or Anger). (3/12/09)
142 Wn. App. 456 (2008)
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Criminal Law—Controlled Substances—Punishment—Enhancement—Methamphetamine—Determination by Jury—Necessity—Harmless Error
Whether, in a controlled substance prosecution, the jury had to find that the substance was methamphetamine in order to increase the maximum sentence from five to 10 years, and if so, whether the trial court’s imposition of a sentence in excess of five years without the required jury finding may be harmless error.
No. 79509-6, State (respondent) v. Sibert (petitioner). (2/10/09)
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Criminal Law—Evidence—Hearsay—Right to Confront Witnesses—Testimonial or Nontestimonial Statement—911 Call—Excited Utterances
Whether statements in a 911 call constituted testimonial hearsay inadmissible under the federal and state constitutional right of confrontation, and if not, whether the Washington constitution requires the State to show the caller was unavailable as a witness before the caller’s statements can be admitted as excited utterances.
No. 80850-3, State (respondent) v. Pugh (petitioner). (2/12/09)
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Criminal Law—Evidence—Opinion Evidence—Guilt or Innocence—Review—Issues Not Raised in Trial Court—“Manifest” Constitutional Error
Whether in a prosecution for reckless driving the arresting officer improperly offered an opinion on the defendant’s guilt when he testified that the defendant’s driving was reckless and met the elements of the crime of reckless driving, and if so, whether the defendant could raise this issue for the first time on appeal.
No. 80948-8, State (respondent) v. King (petitioner) (see also Criminal Law—Arrest—Extraterritorial Arrest—Emergency—Erratic Driving—What Constitutes). (1/13/09)
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Criminal Law—Former Jeopardy—Increased Punishment—Additional Restitution
Whether the trial court violated double jeopardy by granting the State’s motion to amend the judgment and sentence to add restitution to the amount originally ordered.
No. 81525-9, State (respondent) v. Gonzalez (appellant). (3/24/09)
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Criminal Law—Insanity—Competency to Stand Trial—Due Process—Evidentiary Hearing—Written Competency Evaluation—Written Order—Right to Counsel
Whether the trial court committed reversible error when it found a criminal defendant competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, without entering a written competency order, and in defense counsel’s absence. See RCW 10.77.060.
No. 80841-4, State (respondent) v. Heddrick (petitioner). (1/20/09)
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Criminal Law—Punishment—Sentence—Review—Multiple Convictions—Affirmed in Part and Reversed in Part—Remand “For Further Proceedings”—Finality of Original Sentence
Whether, on remand after the reversal of two of seven convictions, the defendant was entitled to challenge reimposition of the original exceptional sentence in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), when Blakely was decided before entry of the amended judgment and sentence.
No. 81020-6, State (respondent) v. Kilgore (petitioner). (3/12/09)
141 Wn. App. 817 (2007)
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Criminal Law—Punishment—Sentence—Sex Offender—Community Custody—Categorical Denial—Offender Determined to Meet Criteria for Civil Commitment—Validity
Whether the Department of Corrections may refuse to consider the community custody transition plan of a sex offender who has been found after an evaluation to meet the criteria for commitment as a sexually violent predator.
No. 81324-8, In re Pers. Restraint of Mattson, Mark Mattson (respondent); Dep’t of Corrs. (petitioner). (1/13/09)
142 Wn. App. 130 (2007)
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Criminal Law—Search and Seizure—Warrantless Search—Probationer—Validity—“Well Founded Suspicion”
Whether a probation officer may conduct a warrantless search of a home if specific and articulable facts support the officer’s belief that the probationer lives in the home.
No. 80755-8, State (respondent) v. Winterstein (petitioner). (2/26/09)
140 Wn. App. 676 (2007) — published in part
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Criminal Law—Searches and Seizures—Stop and Frisk—Protective Search—Scope—Squeezing Pockets—Plain Feel
Whether a police officer exceeded the permissible scope of a frisk for weapons pursuant to an investigative stop when he squeezed the defendant’s pocket to determine the nature of objects inside the pocket, discovering a baggie of narcotics.
No. 80941-1, State (respondent) v. Garvin (petitioner). (2/12/09)
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Criminal Law—Self-Defense—Defense of Property—Instruction—Error—Nature—“Malice” “Maliciousness”—Sufficiency
Whether an incomplete definition of “malice” as used in relation to defense of property in a prosecution for assault was a manifest constitutional error that could be raised for the first time on appeal, and if so, whether the error requires reversal.
No. 81062-1, State (petitioner) v. O’Hara (respondent). (1/15/09)
141 Wn. App. 900 (2007)
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Criminal Law—Sexual Offenses—Special Sex Offender Alternative—Suspended Sentence—Revocation—Violation of Condition—Wilfulness—Necessity
Whether the State had to prove that a defendant wilfully violated the conditions of his suspended sentence under the special sex offender alternative before the trial court could revoke the suspended sentence.
No. 81193-8, State (respondent) v. McCormick (petitioner). (3/26/09)
141 Wn. App. 256 (2007) – published in part
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Criminal Law—Weapon—Enhanced Punishment—Determination—By Jury—Deadly Weapon Finding—Harmless Error
Whether the trial court’s imposition of a charged firearm sentence enhancement when the jury was instructed on and found only a deadly weapon enhancement may be harmless error under Washington law.
No. 78611-9 (consol. w/78876-6 & 79074-4), State (petitioner) v. Williams-Walker (respondent); State (respondent) v. Graham (petitioner); State (respondent) v. Ruth (petitioner). (2/10/09)
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Death—Organ and Tissue Donation—Nonconsensual Donation—Anatomical Gift Act—Private Right of Action—Availability
Whether the Washington Anatomical Gift Act, former RCW 68.50.520 et seq., created an implied private right of action for nonconsensual organ donations.
No. 82041-4, Amaker (plaintiff) v. King County, Stanley Med. Research Inst., et al. (defendants)
(see also Torts—Interference with a Corpse—Standing—Right to Control Disposition of Remains). STRICKEN
Certified Question from U.S. Court of Appeals, Ninth Circuit
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Descent and Distribution—Slayer—Unlawful Killing—Willful Killing—What Constitutes—Acquittal by Reason of Insanity—Effect
Whether, under the “slayer statute,” which prohibits a person from receiving any property or benefit from someone he “willfully” and “unlawfully” killed, a killing is “unlawful” if the perpetrator is found not guilty of murder by reason of insanity, and whether “willfulness” requires intent and design or only knowledge.
No. 81328-1, In re Estate of Pamela L. Kissinger, Leonard Hoss (respondent); Joshua Hoge (petitioner). (2/12/09)
142 Wn. App. 76 (2007)
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Discovery—Failure to Disclose—Sanctions—Dismissal or Default
Whether the trial court abused its discretion by entering a default judgment in a product liability action as a sanction for the defendant’s willful failure during discovery to disclose similar claims against it.
No. 80922-4, Magana (petitioner) v. Hyundai Motor Am. (respondent). (1/22/09)
141 Wn. App. 495 (2007)
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Eminent Domain—Private Condemnation—Attorney Fees—Potential Condemnee—Joined as Third Party—Obligation of Condemnee
Whether, in an action to condemn a private way of necessity, the trial court may order the condemnee to pay the attorney fees of a potential alternative condemnee who the condemnor joined in the suit as a result of the condemnee’s allegation that a feasible alternative route existed.
No. 80873-2, Noble (respondents) v. Safe Harbor Family Pres. Trust (petitioner). (3/12/09)
141 Wn. App. 168 (2007)
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Employment—Compensation—Damages for Nonpayment of Wages—Wilfulness—Bankruptcy Proceedings—Effect
Whether an employer wilfully intended to deprive its employees of their wages when, while the employer was in bankruptcy, the bankruptcy court prohibited the bankruptcy trustee from paying wages.
No. 81202-1, Morgan (respondent) v. Kingen (petitioner). (1/20/09)
141 Wn. App. 143 (2007)
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Industrial Insurance—Award—Finality—“Communication”—Parties Entitled to Notice—Attending Physician
Whether an order closing an industrial insurance claim based on an independent medical examination must be communicated to the worker’s attending physician in order to trigger the time period for administratively appealing the order.
No. 81049-4, Shafer (respondent) v. Dep’t of Labor & Indus. (petitioner). (3/10/09)
140 Wn. App. 1 (2007)
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Industrial Insurance—Disability—Permanent Partial Disability—Preexisting Injury
Whether a worker’s preexisting nonwork-related arthritis constituted a permanent partial disability that the Department of Labor & Industries properly offset against an award for a work-related permanent partial disability.
No. 80811-2, Tomlinson (petitioner) v. Puget Sound Freight Lines, Inc. (respondent). (1/22/09)
140 Wn. App. 845 (2007)
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Insurance—Exclusions—“Professional Services”—What Constitutes
Whether a “professional services” exclusion in a liability policy relieved the insurer of its duty to defend claims against the insured for breath of contract, misrepresentation, fraud, trademark infringement, and unfair competition arising from an advertising and public relations contract.
No. 78287-3, Planet Earth Found. (petitioner) v. Gulf Underwriters Ins. Co. (respondent). (2/26/09)
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Insurance—Exclusions—Work of “Named Insured”—“Faulty Workmanship”—Scope—Subcontractors
Whether exclusions in a building contractor’s insurance policy for claims arising from work of the “named insured” and from “faulty workmanship” extend to claims arising from the work of subcontractors.
No. 80937-2, Red Oaks Condo. Owners Ass’n (petitioner) v. Mut. of Enumclaw Ins. Co. (respondent). DISMISSED 12/5/08
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Insurance—Title Insurance—Exclusions—Easements—Duty to Defend
Whether a title insurance policy exclusion for easements not disclosed in the public record relieved an insurer of its duty to defend a lawsuit brought to reform the insured’s deed to include an easement formerly recorded in a neighbor’s title.
No. 80999-2, Campbell (petitioner) v. Ticor Title Ins. Co. (respondent). (3/12/09)
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Juveniles—Parental Relationship—Determination—Stepparent—Right of Action—Common Law
Whether a stepparent can be a common law de facto parent with the rights and responsibilities attendant to parentage. See In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005).
No. 81043-5, In re Parentage of Frazier, John Corbin (petitioner); Patricia Reimen & Edward Frazier (respondents). (3/10/09)
141 Wn. App. 558 (2007)
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Labor Relations—Collective Bargaining Agreement—Arbitration Provision—Judicial Review—Vacation of Award—Interpretation Contrary to Public Policy
Whether an arbitrator’s award reinstating a police officer who was terminated for erratic conduct and acts of dishonesty is unenforceable as contrary to public policy.
No. 80720-5, Kitsap County Deputy Sheriff’s Guild (petitioner) v. Kitsap County (respondent). (1/22/09)
140 Wn. App. 516 (2007)
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Limitation of Actions—Construction Contracts—Indemnity—Accrual of Cause—Settlement of Third Party Action
Whether an indemnity claim by a developer and general contractor against a subcontractor accrued when the developer and general contractor settled a suit for construction defects by condominium owners.
No. 81003-6, Cambridge Townhomes, LLC; Polygon Northwest Co. (respondents) v. Pac. Star Roofing, Inc. (petitioner) (see also Successor Liability—Successor Corporation—Sole Proprietorship—Bankruptcy of Sole Proprietorship—Effect). (2/10/09)
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Medical Treatment—Discipline—Evidence—Expert Testimony—Necessity—Composition of Disciplinary Panel
Whether expert testimony is necessary in a medical disciplinary proceeding before the Medical Quality Assurance Commission when the commission panel is not comprised solely of licensed physicians.
No. 80644-6, Ames (petitioner) v. Wash. State Health Dep’t Med. Quality Assurance Comm’n (respondent). (3/10/09)
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Medical Treatment—Malpractice—Commencement of Action—Certificate of Merit—Constitutionality
Whether RCW 7.70.150, which requires medical malpractice plaintiffs to file a certificate of merit from an expert along with the complaint, violates separation of powers principles and state constitutional provisions prohibiting special laws and ensuring open access to the courts and equal privileges and immunities.
No. 80888-1, Putman (appellant) v. Wenatchee Valley Med. Ctr. (respondent). (2/24/09)
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Open Government—Public Disclosure—Enjoining Release—Parties—Intervention—Joinder—Party Requesting Disclosure
Whether an inmate who requested personnel records of prison employees under the Public Records Act should have been allowed to join or intervene in an action by the employees to enjoin the release of the records after the trial court issued an injunction.
No. 80998-4, Burt (petitioner) v. Dep’t of Corrs. (respondent). (1/20/09)
141 Wn. App. 573 (2007)
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Personal Restraint—Petition—Timeliness—Statutory Limits—Exceptions—Facial Invalidity—Erroneous Maximum Sentence
Whether a defendant may collaterally challenge a guilty plea as involuntary beyond the one-year time limit on collateral attack when both the judgment and sentence and the written plea statement misstate the maximum sentence.
No. 81102-4, In re Pers. Restraint of McKiearnan, Michael McKiearnan (petitioner); State (respondent). (1/13/09)
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Successor Liability—Successor Corporation—Sole Proprietorship— Bankruptcy of Sole Proprietorship—Effect
Whether a corporate subcontractor was a successor to a sole proprietor subcontractor, and if so, whether the bankruptcy of the sole proprietorship precluded a developer and general contractor from seeking indemnity and damages against the corporation and its insurer for the allegedly defective work of the sole proprietor.
No. 81003-6, Cambridge Townhomes, LLC; Polygon Northwest Co. (respondents) v. Pac. Star Roofing, Inc. (petitioner) (see also Limitation of Actions—Construction Contracts—Indemnity—Accrual of Cause—Settlement of Third Party Action). (2/10/09)
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Taxation—Business and Occupation Tax—Exemptions—Direct Seller’s Representative—Out-of-State Manufacturer—Sales Limited to Consumer Products—Necessity—Resale in Permanent Retail Establishment
Whether an out-of-state seller who makes sales in Washington through a direct seller’s representative must exclusively sell consumer products to qualify for a B&O tax exemption under RCW 82.04.423(1)(d), and whether the seller is disqualified from the exemption if at any time its product is sold in a retail establishment.
No. 81022-2, DOT Foods, Inc. (petitioner) v. Wash. Dep’t of Revenue (respondent). (1/20/09)
141 Wn. App. 874 (2007)
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Torts—Interference with a Corpse—Standing—Right to Control Disposition of Remains
Whether only those individuals who had the right to control the disposition of a decedent’s remains under RCW 68.50.160 at the time of death have standing to sue for tortious interference with a corpse, and if not, whether the decedent’s sister, who did not have a right to control the disposition of the remains, may bring a claim for tortious interference.
No. 82041-4, Amaker (plaintiff) v. King County, Stanley Med. Research Inst., et al. (defendants)
(see also Death—Organ and Tissue Donation—Nonconsensual Donation—Anatomical Gift Act—Private Right of Action—Availability). STRICKEN
Certified Question from U.S. Court of Appeals, Ninth Circuit |
