Supreme Court Issues
May Term 2009

• Constitutional Law—Freedom of Speech—Prior Restraint—Public Library—Internet Filter—Disabling Filter
• Courts of Limited Jurisdiction—Municipal Courts—Judges—Election of Judges—By City Voters—Necessity—De Facto Judge—What Constitutes
• Criminal Law—Confessions—Admission as Evidence—Trustworthy Statement—Victim Incompetent to Testify—Statutory Provisions—Validity
• Criminal Law—Controlled Substances—Drug Court Program—Agreement—Stipulation to Sufficiency of Evidence—Effect—Relationship to Guilty Plea
• Criminal Law—Driving While Intoxicated—Punishment—Sentence—Mandatory Jail Term—Prior Offense—“Within Seven Years”—What Constitutes
• Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—Second Degree Rape of a Child and Second Degree Rape of Physically Helpless or Mentally Incapacitated Person
• Criminal Law—Former Jeopardy—Previous Foreign Jeopardy—Statutory Provisions—Same Act or Omission—Driving Under the Influence
• Criminal Law—Homicide—Second Degree Felony Murder—Vacation of Conviction—Trial on Related Charge—Validity Under Mandatory Joinder Rule—“Ends of Justice”
• Criminal Law—Judgment—Vacation—Defendant’s Death—Appeal Pending—Effect
• Criminal Law—Plea of Guilty—Withdrawal—Manifest Injustice—Ineffective Assistance of Counsel
• Criminal Law—Punishment—Death Penalty—Plea of Guilty—Alford Plea
• Criminal Law—Punishment—Sentence—Community Custody—Exceeding Statutory Maximum—Remedy
• Criminal Law—Punishment—Sentence—Enhanced Penalty—Crime Committed in County Jail or State Correctional Facility—Possessory Offense—Voluntariness—Necessity
• Criminal Law—Punishment—Sentence—Exceptional Minimum Term—Determination by Court—Validity
• Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Court—Harmless Error—Resentencing—Applicable Law
• Criminal Law—Self-Defense—Instruction—Fear of Injury—“Great Bodily Harm”—Validity—Effective Assistance of Counsel
• Criminal Law—Sexual Offenses—Child Rape—Incest—Accomplice Liability—Parent Causing Children to Have Sexual Intercourse
• Criminal Law—Trial—Security—Courtroom in Jail—Due Process—Presumption of Innocence
• Criminal Law—Trial—Time for Trial—Continuance or Extension—Unavailability of Judge
• Criminal Law—Trial—Time of Trial—Constitutional Right—Reasonable Time—What Constitutes
• Criminal Law—Weapons—Possession—Right of Possession—Regulation
• Death—Wrongful Death—Adult Child—Dependent Parent—“Support”—What Constitutes
• Eminent Domain—Inverse Condemnation—Interference with Flood Channel—Construction, Maintenance, and Modification of Dike—Common Enemy Rule
• Eminent Domain—Public Use and Necessity—Contribution of Private Capital—Effect
• Fraud—Fraudulent Transfer—Intent—Intent to Defraud—Necessity
• Government—Torts—Pharmacist—Suspension of License—Exhaustion of Administrative Remedies—Necessity
• Indians—Automobiles—Arrest—Traffic Violation on Reservation—Stop of Non-Indian Off Reservation—Authority of Tribal Officer
• Insurance—Claim for Loss—Actual Cash Value—Scope—Sales Tax
• Intoxicating Liquors—Automobiles—Driving While Intoxicated—Breath or Blood Test—Refusal—Effect on Authority to Issue Search Warrant
• Intoxicating Liquors—Providing Liquor—Duty of Commercial Vendor—Standard for Civil Liability—Apparent Intoxication—Proof—Specific Point-in-Time Evidence—Necessity
• Juveniles—Child Abuse—Investigating—Government Liability—Duty Of Care—Beneficiaries Of Duty—Stepparent
• Juveniles—Custody—Nonparent Petition—Full Hearing—Adequate Cause—Test
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Trial—Evidence—Refusal to Submit to Psychological Evaluation—Offender’s Intention to Reside with Convicted Child Molester
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Incarcerated Offender—Dangerousness—Likelihood of Reoffense in Foreseeable Future—Proof—Necessity
• Negligence—Wrongful Death—Municipal Liability—Suicide of Jail Inmate—Assumption of Risk—Contributory Fault—Applicability
• Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court
• Pensions—Police and Firefighters—Calculation of Benefit—Membership in Prior Plan—Additional Compensatory Benefits—Law Applied
• Public Records—Exemptions to Disclosure—Municipal Court Judge—City Investigative Report—Court Records—Attorney Work Project—Attorney-Client Communications
• Schools—Funding—State Funding—Constitutional Mandate—General and Uniform School System—Salary Allocation Formula—Equal Protection
• Waters—Irrigation Districts—Adding Lands—Due Process—LID—Method of Approval—Constitutionality

Constitutional Law—Freedom of Speech—Prior Restraint—Public Library—Internet Filter—Disabling Filter

Whether, under article I, section 5 of the Washington Constitution, a public library that filters Internet access by its patrons must disable the filter as to sites containing constitutionally protected speech upon the request of an adult patron.

No. 82200-0, Bradburn, et al. (plaintiffs) v. North Cent. Reg’l Library Dist. (defendant). (6/23/09)

Certified Question from U.S. District Court for the Eastern District of Washington

Courts of Limited Jurisdiction—Municipal Courts—Judges—Election of Judges—By City Voters—Necessity—De Facto Judge—What Constitutes

Whether a Spokane County District Court judge lacked statutory authority to preside over Spokane Municipal Court criminal prosecutions because she was not elected exclusively by city of Spokane voters, and if so, whether she nonetheless had de facto authority to hear the cases.

No. 81271-3, City of Spokane (petitioner) v. Rothwell (respondent); City of Spokane (petitioner) v. Smith (respondent). (5/21/09)

141 Wn. App. 680 (2007)

Criminal Law—Confessions—Admission as Evidence—Trustworthy Statement—Victim Incompetent to Testify—Statutory Provisions—Validity

Whether, in a child molestation prosecution, a defendant’s statement may be admitted into evidence under RCW 10.58.035 where the alleged victim is incompetent to testify and there is no independent evidence of the corpus delicti of the crime.

No. 81243-8, State (respondent) v. Dow (petitioner). (5/14/09)

142 Wn. App. 971 (2008)

Criminal Law—Controlled Substances—Drug Court Program—Agreement—Stipulation to Sufficiency of Evidence—Effect—Relationship to Guilty Plea

Whether a drug court agreement in which the defendant stipulated that the evidence was sufficient to find him guilty of the drug offense precluded the defendant from challenging the sufficiency of the evidence on appeal, and if so, whether the agreement was subject to the rules and rights applicable to guilty pleas.

No. 81498-8, State (respondent) v. Drum (petitioner); In re Pers. Restraint of Drum, Patrick Drum a/k/a Tim Jones (petitioner). (6/25/09)

143 Wn. App. 608 (2008) — published in part

Criminal Law—Driving While Intoxicated—Punishment—Sentence—Mandatory Jail Term—Prior Offense—“Within Seven Years”—What Constitutes

Whether the sentence enhancement for driving while intoxicated based on “prior offenses” occurring “within seven years” of the defendant’s arrest on the current offense includes offenses committed within seven years before and seven years after the arrest on the current offense. See RCW 46.61.5055.

No. 81279-9 (consol. w/81280-2), City of Seattle (respondent) v. Winebrenner (petitioner); City of Seattle (respondent) v. Quezada (petitioner). (6/30/09)

142 Wn. App. 43 (2007)

Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—Second Degree Rape of a Child and Second Degree Rape of Physically Helpless or Mentally Incapacitated Person

Whether convictions for both rape of a child and second degree rape based on incapacity to consent, stemming from the same act of sexual intercourse, violates double jeopardy principles.

No. 81270-5, State (respondent) v. Hughes (petitioner). (5/7/09)

142 Wn. App. 213 (2007)

Criminal Law—Former Jeopardy—Previous Foreign Jeopardy—Statutory Provisions—Same Act or Omission—Driving Under the Influence

Whether, under RCW 10.43.040, a driver who entered Oregon from Washington and was arrested and prosecuted in Oregon for driving under the influence may also be prosecuted in Washington for driving under the influence.

No. 81445-7, State (respondent) v. Rivera-Santos (petitioner). (5/12/09)

Criminal Law—Homicide—Second Degree Felony Murder—Vacation of Conviction—Trial on Related Charge—Validity Under Mandatory Joinder Rule—“Ends of Justice”

Whether the “ends of justice” exception to the mandatory joinder rule, CrR 4.3.1(b)(3), permits the State to recharge the defendant for a homicide offense after vacation of the defendant’s second degree felony murder conviction under In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002).

No. 80131-2 (cons. w/81389-2; 80405-2; 80469-9; 80536-9), State (respondent) v. Gamble (petitioner); State (respondent) v. Alexander (petitioner); State (respondent) v. Harris (petitioner); State (respondent) v. Mathews (petitioner); State (respondent) v. Ford (petitioner). (6/30/09)

Criminal Law—Judgment—Vacation—Defendant’s Death—Appeal Pending—Effect

Whether, on the defendant’s death pending appeal of his criminal conviction, the Court of Appeals erroneously dismissed the defendant’s appeal and denied his attorney’s motion to abate the defendant’s conviction and legal financial obligations without first allowing briefing on the merits of the appeal.

No. 81314-1, State (respondent) v. Webb (petitioner). (5/7/09)

Criminal Law—Plea of Guilty—Withdrawal—Manifest Injustice—Ineffective Assistance of Counsel

Whether a juvenile defendant in a child molestation prosecution should have been permitted to withdraw his guilty plea based on ineffective assistance of counsel where he claimed that counsel never met privately with him before the plea hearing and did not fully and accurately inform him of the collateral consequences of his plea, and where counsel testified at the hearing on the defendant’s motion to withdraw his plea that the defendant had confessed to him.

No. 81236-5, State (respondent) v. Jones (petitioner). (5/21/09)

Criminal Law—Punishment—Death Penalty—Plea of Guilty—Alford Plea

Whether the State may seek the death penalty when the defendant pleads guilty without admitting guilt under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

No. 79761-7, In re Pers. Restraint of Cross, Dayva M. Cross (petitioner); State (respondent). (6/25/09) (CORRECTED CASE TITLE & CAUSE NO.)

Criminal Law—Punishment—Sentence—Community Custody—Exceeding Statutory Maximum—Remedy

Whether a sentence that includes a term of community custody that may cause the total term of confinement and community custody to exceed the statutory maximum for the crime must be vacated and remanded for resentencing.

No. 80704-3, In re Pers. Restraint of Brooks, Jeffrey Brooks (petitioner); State (respondent). (5/28/09)

Criminal Law—Punishment—Sentence—Enhanced Penalty—Crime Committed in County Jail or State Correctional Facility—Possessory Offense—Voluntariness—Necessity

Whether, in a controlled substance prosecution, a sentence enhancement for possessing the substance while in a county jail may be imposed when the substance was found during a booking search following the defendant’s arrest for an unrelated offense.

No. 81348-5, State (petitioner) v. Eaton (respondent). (6/11/09)

143 Wn. App. 155 (2008)

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

Whether the statutory requirement that juries find aggravating sentencing factors listed in RCW 9.94A.535(3) applies to exceptional minimum sentences imposed under RCW 9.94A.712.

No. 81413-9, State (respondent) v. Bobenhouse (petitioner) (see also Criminal Law—Sexual Offenses—Child Rape—Incest—Accomplice Liability—Parent Causing Children to Have Sexual Intercourse). (6/9/09)

143 Wn. App. 315 (2008)

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Court—Harmless Error—Resentencing—Applicable Law

Whether the imposition of an exceptional sentence without a jury determination of aggravating factors was harmless error when the defendant pleaded guilty and stipulated that the trial court could consider the statement of probable cause at sentencing, and if not, whether the State may seek an exceptional sentence on remand under the 2007 amendment to the exceptional sentencing statute. See RCW 9.94A.537(2).

No. 77973-2, In re Pers. Restraint of Beito, Corey Beito (petitioner); State (respondent). (5/26/09)

Criminal Law—Self-Defense—Instruction—Fear of Injury—“Great Bodily Harm”—Validity—Effective Assistance of Counsel

Whether, in a second degree assault prosecution in which the defendant claimed self-defense, the trial court erroneously instructed the jury that the defendant could use force if he reasonably believed he was in danger of “great bodily harm” without defining “great bodily harm,” and if so, whether defense counsel was ineffective in proposing the instruction.

No. 81164-4, State (respondent) v. Kyllo (petitioner). (5/26/09)

Criminal Law—Sexual Offenses—Child Rape—Incest—Accomplice Liability—Parent Causing Children to Have Sexual Intercourse

Whether a defendant who allegedly caused his minor children to engage in sex acts with each other can be found guilty of incest and child rape under principles of criminal accountability.

No. 81413-9, State (respondent) v. Bobenhouse (petitioner) (see also Criminal Law—Punishment—Sentence—Exceptional Minimum Term—Determination by Court—Validity). (6/9/09)

143 Wn. App. 315 (2008)

Criminal Law—Trial—Security—Courtroom in Jail—Due Process—Presumption of Innocence

Whether the defendant’s jury trial violated federal and state constitutional rights to due process and the presumption of innocence because it took place in a courtroom in the county jail.

No. 82008-2, State (respondent) v. Jaime (appellant). (5/14/09)

Criminal Law—Trial—Time for Trial—Continuance or Extension—Unavailability of Judge

Whether, under CrR 3.3, the trial court properly continued a criminal trial beyond the rule-based speedy trial period because one of the county’s two elected superior court judges was presiding over another trial and the other judge was unavailable.

No. 81374-4, State (respondent) v. Kenyon (petitioner). (6/23/09)

143 Wn. App. 304 (2008) – published in part

Criminal Law—Trial—Time of Trial—Constitutional Right—Reasonable Time—What Constitutes

Whether a nine-month delay in bringing a criminal defendant to trial violated the defendant’s constitutional right to a speedy trial.

No. 81750-2, State (respondent) v. Iniguez (petitioner). (5/7/09)

143 Wn. App. 845 (2008)

Criminal Law—Weapons—Possession—Right of Possession—Regulation

Whether RCW 9.41.040(2)(a)(iii), which makes it a crime for persons under the age of eighteen to possess a firearm (with listed exceptions), constitutes an unconstitutional infringement of the right to bear arms.

No. 82154-2, State (respondent) v. Sieyes (appellant). (6/30/09)

Death—Wrongful Death—Adult Child—Dependent Parent—“Support”—What Constitutes

Whether, for purposes of an action under RCW 4.20.020 for the wrongful death of an adult child on whom the parents claimed to be financially dependent, financial “support” includes the provision of services that have economic value.

No. 81195-4, Armantrout (petitioner) v. Carlson, et al. (respondents). (5/19/09)

141 Wn. App. 716 (2007)

Eminent Domain—Inverse Condemnation—Interference with Flood Channel—Construction, Maintenance, and Modification of Dike—Common Enemy Rule

Whether the common enemy rule precludes holding Okanogon County liable in inverse condemnation for damage to private property allegedly caused by a dike that blocked natural side channels that would have diverted the flow of flood waters from the Methow River.

No. 81257-8, Fitzpatrick (respondent) v. Okanogan County (petitioner). (5/26/09)

143 Wn. App. 288 (2008)

Eminent Domain—Public Use and Necessity—Contribution of Private Capital—Effect

Whether the trial court in a condemnation action properly found a city of Seattle street widening project to be a public use even though the city intends to seeks private funding for a portion of the project’s cost.

No. 82192-5, City of Seattle (respondent) v. Heglund (petitioner). STRICKEN

Fraud—Fraudulent Transfer—Intent—Intent to Defraud—Necessity

Whether, in an action for damages against a first transferee under the Uniform Fraudulent Transfer Act, chapter 19.40 RCW, the plaintiff must prove the transferee actually intended to defraud the plaintiff.

No. 81311-6, Thompson (respondent) v. Hanson (petitioner). (6/25/09)

142 Wn. App. 53 (2007)

Government—Torts—Pharmacist—Suspension of License—Exhaustion of Administrative Remedies—Necessity

Whether a pharmacist whose state professional license was suspended had to exhaust his administrative remedies before filing an action for damages against the State for negligent supervision and tortious interference with a business expectancy.

No. 80787-6, Jones (petitioner) v. State (respondent). (6/23/09)

140 Wn. App. 476 (2007)

Indians—Automobiles—Arrest—Traffic Violation on Reservation—Stop of Non-Indian Off Reservation—Authority of Tribal Officer

Whether a Lummi tribal police officer who witnessed a traffic violation by a non-Indian within reservation boundaries had authority to pursue and stop the driver outside reservation boundaries.

No. 80653-5, State (respondent) v. Eriksen (petitioner). (5/12/09)

Insurance—Claim for Loss—Actual Cash Value—Scope—Sales Tax

Whether coverage of the “actual cash value” of damaged property in a renter’s insurance policy includes sales tax on the replacement value of the property.

No. 81487-2, Holden (petitioner) v. Farmers Ins. Co. of Wash. (respondent). (6/25/09)

142 Wn. App. 745 (2008)

Intoxicating Liquors—Automobiles—Driving While Intoxicated—Breath or Blood Test—Refusal—Effect on Authority to Issue Search Warrant

Whether a law enforcement officer may procure a warrant to obtain a nonconsensual blood alcohol test after a driver has refused consent to a breath test under Washington’s implied consent law.

No. 81992-1, City of Seattle (respondent) v. St. John (appellant). (5/19/09)

Intoxicating Liquors—Providing Liquor—Duty of Commercial Vendor—Standard for Civil Liability—Apparent Intoxication—Proof—Specific Point-in-Time Evidence—Necessity

Whether, in an action for damages for overservice of alcohol to an apparently intoxicated person, there must be specific point-in-time evidence establishing the drinker’s appearance at the time of service.

No. 81356-6, Faust (petitioner) v. Albertson (respondent). (5/12/09)

143 Wn. App. 272 (2008)

Juveniles—Child Abuse—Investigating—Government Liability—Duty Of Care—Beneficiaries Of Duty—Stepparent

Whether a stepparent has standing to sue the Department of Social and Health Services for negligent investigation of a report that the stepparent abused a stepchild.

No. 81714-6, Ducote (petitioner) v. Dep’t of Soc. & Health Servs. (respondent). (5/28/09)

144 Wn. App. 531 (2008) – published in part

Juveniles—Custody—Nonparent Petition—Full Hearing—Adequate Cause—Test

Whether, under RCW 26.10.032, the grandparents of children whose mother had died asserted adequate cause for a hearing on their petition for nonparental custody by alleging that the children were not in their father’s physical custody.

No. 81945-9, In re the Custody of Wilson, Vito & Yasuko Grieco (petitioners); Sachi Wilson (respondent). (5/28/09)

144 Wn. App. 865 (2008)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Evaluation—Trial—Evidence—Refusal to Submit to Psychological Evaluation—Offender’s Intention to Reside with Convicted Child Molester

Whether in a sexually violent predator commitment proceeding the trial court erroneously admitted evidence that the detainee refused to submit to a pretrial psychological examination, and whether the court erroneously admitted evidence that the detainee intended to reside with anther sex offender upon his release from juvenile detention while excluding evidence that the intended roommate had not reoffended since his own release from detention.

No. 81230-6, In re Det. of Duncan, Bryan Duncan (petitioner); State (respondent). (5/12/09)

142 Wn. App. 97 (2007)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Incarcerated Offender—Dangerousness—Likelihood of Reoffense in Foreseeable Future—Proof—Necessity

Whether, in a sexually violent predator proceeding where the State need not prove a recent overt act due to the detainee’s incarceration on the date the commitment petition was filed, the State still must show present dangerousness by proving that the detainee will likely commit sexually violent acts in the near future if not committed.

No. 81201-2, In re Det. of Moore, Paul Moore (petitioner); State (respondent). (5/21/09)

Negligence—Wrongful Death—Municipal Liability—Suicide of Jail Inmate—Assumption of Risk—Contributory Fault—Applicability

Whether a city may assert defenses of contributory negligence and assumption of the risk in a wrongful death action arising from the suicide of a jail inmate.

No. 81253-5, Gregoire (petitioner) v. City of Oak Harbor (respondent). (5/26/09)

Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court

Whether the Federal Way Municipal Court is a “local agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.

No. 82288-3, City of Federal Way (respondent) v. Koenig (petitioner). (6/9/09)

Pensions—Police and Firefighters—Calculation of Benefit—Membership in Prior Plan—Additional Compensatory Benefits—Law Applied

Whether, for purposes of calculating excess benefits payable to retired firefighters who began employment before the enactment of the Law Enforcement Officers’ and Firefighters’ Retirement System, a city firemen’s pension board properly employed the definition of “base salary” under the pre-LEOFF pension plan.

No. 81187-3, McAllister (petitioner) v. City of Bellevue Firemen’s Pension Bd. (respondent). (6/11/09)

142 Wn. App. 250 (2007)

Public Records—Exemptions to Disclosure—Municipal Court Judge—City Investigative Report—Court Records—Attorney Work Project—Attorney-Client Communications

Whether a City of Federal Way investigative report concerning a municipal court judge is a court record, attorney work product, or attorney-client communication exempt from disclosure pursuant to Public Records Act, chapter 42.56 RCW.

No. 81556-9, Morgan (appellant) v. City of Federal Way (respondent). (6/9/09)

Schools—Funding—State Funding—Constitutional Mandate—General and Uniform School System—Salary Allocation Formula—Equal Protection

Whether the State’s formula for allocating funds to public school districts for salaries violates its duty under article IX, section 2 of the Washington Constitution to provide for a “general and uniform” public school system, and, if individual employee plaintiffs have standing to assert equal protection claims, whether the formula violates equal protection principles.

No. 80943-7, Fed. Way Sch. Dist. No. 210 (respondent) v. State (appellant). (6/11/09)

Waters—Irrigation Districts—Adding Lands—Due Process—LID—Method of Approval—Constitutionality

Whether the Columbia Irrigation District violated landowners’ due process rights when it added lands to the district and formed a local improvement district, and whether RCW 87.03.485 violates article I, section 19 of the Washington Constitution (requiring all elections to be “free and equal”) by providing that consent to an improvement district will be implied unless a majority of affected landowners file written protest at or before the hearing on the improvement district.

No. 82035-0, Carlisle, et al. (appellants) v. Columbia Irrigation Dist. (respondent). (5/28/09)