Supreme Court Issues
January Term 2012
Adverse Possession—Assertion Against Government-Owned Property—Vested Title Acquired During Private Ownership
Whether RCW 4.26.160, which prohibits the assertion of claims of right against the government based on the passage of time, bars an adverse possession claim against a municipality even though the claimant satisfied the elements of adverse possession before the municipality acquired the disputed property.
No. 85962-1, Gorman (respondent) v. City of Woodinville (petitioner). (1/19/12)
160 Wn. App. 759 (2011)
Arrest—Misdemeanor—In Presence of Officer—Observation of Crime—Directing Fellow Officer to Make Arrest—Validity
Whether the defendant in a misdemeanor drug prosecution was lawfully arrested when the officer who witnessed the crime did not make the arrest but directed other officers who did not witness the crime to make the arrest.
No. 85788-1, State (respondent) v. Ortega aka Hernandez (petitioner). (3/15/12)
159 Wn. App. 889 (2011)
Bail and Recognizance—Bail Bonds—Recovery—By Independent Contractor—Injury to Fugitive—Vicarious Liability of Bail Bond Company—Inherently Dangerous Work—Assumption of Risk
Whether a fugitive criminal defendant injured while being apprehended by an independent contractor hired by a bail bond company is precluded from suing the company for personal injury because he assumed the risk of an inherently dangerous activity by absconding.
No. 85699-1, Stout (petitioner) v. Johnson d/b/a "CJ" Johnson Bail Bonds (respondents). (1/17/12)
159 Wn. App. 344 (2011)
Compromise and Settlement—Settlement Agreement—Reasonableness—Determination—Right to a Jury—Nonparty Insurer
Whether, in a proceeding to determine the reasonableness of a settlement between an insured person and the injured party in a tort action, the insurer has a right to a jury determination of reasonableness.
No. 86109-9, Bird (respondent) v. Farmers Ins. Exchange (petitioner) (see also Property—Injury to Property—Treble Damages—Statutory Provisions—Intent to Harm—Necessity). (1/26/12)
161 Wn. App. 510 (2011)
Criminal Law—Crimes—Elements—Harassment—Felony Offense—Threat to Kill—“True Threat”—Charging Language—Instructions—Sufficiency
Whether the existence of a “true threat” is an element of the crime of felony harassment that must be alleged in the information and included in the to-convict jury instruction.
No. 86119-6, State (respondent) v. Allen (see also Criminal Law—Evidence—Identification—Reliability—Racial Difference—Instruction—Necessity). (3/1/12)
161 Wn. App. 727 (2011)
Criminal Law—Custodial Interference—Elements—Court-Ordered Parenting Plan—What Constitutes—Domestic Violence—Protection Order
Whether a domestic violence protection order entered in connection with a marriage dissolution proceeding was a “court-ordered parenting plan,” violation of which constituted the crime of first degree custodial interference under RCW 9A.40.060(2).
No. 85860-8, State (respondent) v. Veliz (petitioner). STRICKEN – WILL BE RESET
160 Wn. App. 396 (2011)
Criminal Law—Evidence—Identification—Reliability—Racial Difference—Instruction—Necessity
Whether in a criminal prosecution involving a defendant and an eyewitness of different races the trial court should instruct the jury on the difficulty of cross-racial identification when identification is at issue and there is no other corroborating evidence.
No. 86119-6, State (respondent) v. Allen (petitioner) (see also Criminal Law—Crimes—Elements—Harassment—Felony Offense—Threat to Kill—“True Threat”—Charging Language—Instructions—Sufficiency). (3/1/12)
161 Wn. App. 727 (2011)
Criminal Law—Punishment—Sentence—Criminal History—Prior Convictions—Proof—Statutory Provisions—Validity
Whether RCW 9.94A.500(1) and .530(2), which provide that a prosecutor’s criminal history summary is prima facie evidence of a defendant’s prior convictions, and that a defendant’s “acknowledgment” of criminal history includes not objecting to the prosecutor’s summary, unconstitutionally relieves the State of its burden to prove prior convictions for sentencing purposes.
No. 86135-8, State (petitioner) v. Hunley (respondent). (3/13/12)
161 Wn. App. 919 (2011)
Criminal Law—Punishment—Sentence—Outside Standard Range—Review—Personal Restraint Petition—Remand for Recalculation of Offender Score—Reimposition of Exceptional Sentence—Intervening Blakely Decision—Effect
Whether on resentencing of a 1991 criminal conviction because of offender score error, the trial court may reimpose the exceptional sentence it originally imposed on the basis of the same aggravating factor it had originally found unaffected by the Supreme Court’s intervening decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
No. 86117-0, State (respondent) v. Rowland (petitioner). (1/26/12)
160 Wn. App. 316 (2011)
Criminal Law—Review—Issues Not Raised in Trial Court—Instructions—Enhanced Penalty—Special Verdict—Unanimity—Negative Finding—“Manifest” Error
Whether a criminal defendant may first challenge on appeal a unanimity jury instruction that is erroneous under State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010).
No. 85789-0 (consol. w/85947-7), State (petitioner) v. Ryan (respondent); State (respondent) v. Guzman Nunez (petitioner). (1/12/12)
160 Wn. App. 944 (2011)
Published in Part
160 Wn. App. 150 (2011)
Published in Part
Criminal Law—Right to Counsel—Effective Assistance of Counsel—Failure to Request Instruction—Lesser Included Offense
Whether in a prosecution for second degree assault resulting in a mandatory life sentence defense counsel was ineffective in not requesting a jury instruction on the lesser included offense of unlawful display of a weapon where evidence supported an instruction on that offense.
No. 85131-0, In re Pers. Restraint of Crace, Hoyt Crace (respondent); State (petitioner) (see also Personal Restraint—Grounds—Ineffective Assistance of Counsel—Actual and Substantial Prejudice—Necessity). (1/24/12)
157 Wn. App. 81 (2010)
Criminal Law—Searches and Seizures—Schools—Student Search—Warrantless Search—“School Search” Exception—School Official—What Constitutes—Police Officer Assigned as School Resource Officer
Whether, a police officer assigned to a high school as a school resource officer was acting as a “school official” when he searched a student’s backpack without a warrant, making the search lawful under the “school search” exception to the warrant requirement.
No. 86203-6, State (respondent) v. Meneese (petitioner). (1/24/12)
162 Wn. App. 27 (2011)
Criminal Law—Searches and Seizures—Warrant—Affidavit—Sufficiency—Specificity—Age of Information
Whether an affidavit in support of a search warrant sufficiently specified the time that a confidential informant had observed a marijuana growing operation when it related that the informant had contacted the affiant within the previous 48 hours and reported that he or she had seen marijuana “being grown” at the place to be searched.
No. 85746-6, State (respondent) v. Lyons (petitioner). (1/26/12)
160 Wn. App. 100 (2011)
Criminal Law—Sexual Offenses—Charging Discretion—Sexual Motivation—Predatory Act Special Allegation—Youthful Victim Special Allegation—Validity—Separation of Powers
Whether statutes that require the prosecutor to allege certain sentence enhancing factors (that the crime was sexually motivated, that the sex offense was predatory, that the sex offense victim was less than 15 years old) when the evidence supports those factors violates the separation of powers doctrine.
No. 85893-4, State (respondent) v. Rice (petitioner). (1/17/12)
159 Wn. App. 545 (2011)
Criminal Law—Sexual Offenses—Rape—Second Degree Rape—Inability to Consent—Physical Helplessness or Mental Incapacity—Reasonable Belief Person not Physically Helpless or Mentally Incapacitated—Instruction—Validity
Whether, in a prosecution for second degree rape by means of intercourse with a person unable to consent due to mental incapacity or physical helplessness, the trial court properly instructed the jury on the affirmative defense of reasonable belief that the victim was capable of consent, even though the defendant objected to the instruction and asserted only the defense that the State could not prove that the victim was incapacitated.
No. 86145-5, State (respondent) v. Coristine (petitioner). (3/1/12)
161 Wn. App. 945 (2011)
Criminal Law—Theft—Possession of Stolen Property—Access Devices—What Constitutes—Unactivated Credit Card Received in Mailed Solicitation
Whether for purposes of the crime of possession of stolen property consisting of an access device, an unactivated credit card received in a mail solicitation constitutes an “access device.”
No. 85791-1, State (respondent) v. Rose (petitioner). (3/13/12)
160 Wn. App. 29 (2011) Published in Part
Criminal Law—Trial—Joinder or Severance—Defendants—Prejudice—Antagonistic Defenses
Whether in a joint prosecution of two defendants for rape, kidnapping, and robbery, the court erred in not severing the defendants’ trials when one asserted an alibi defense while the other claimed that both were present but that the sexual encounter was consensual.
No. 86033-5, State (respondent) v. Emery (petitioner); State (respondent) v. Olson (petitioner)
(see also Criminal Law—Trial—Misconduct of Prosecutor—Argument—Denial of Presumption of Innocence—“Declare the Truth”). (2/28/12)
161 Wn. App. 172 (2011)
Criminal Law—Trial—Misconduct of Prosecutor—Argument—Denial of Presumption of Innocence—“Declare the Truth”
Whether in a criminal prosecution the State erred in arguing to the jury that to have reasonable doubt it had to be able to articulate a specific reason for its doubt, and in urging the jury that its verdict should “speak the truth.”
No. 86033-5, State (respondent) v. Emery (petitioner); State (respondent) v. Olson (petitioner)
(see also Criminal Law—Trial—Joinder or Severance—Defendants—Prejudice—Antagonistic Defenses). (2/28/12)
161 Wn. App. 172 (2011)
Criminal Law—Trial—Misconduct of Prosecutor—Conduct of Litigation—Sanctions—Amendment of Information on Day of Trial to Change Offense Date—Bad Faith—Necessity
Whether in this criminal prosecution the trial court properly sanctioned the State for delay in amending the information without explicitly finding bad faith.
No. 85801-2, State (petitioner) v. Gassman (defendant). STRICKEN – WILL BE RESET
160 Wn. App. 12 (2011)
Criminal—Trial—Right to Public Trial—Scope—Jury Selection—Jury Questionnaire—Sealing Court Records—Improper Sealing—Remedy
Whether sealing juror questionnaires following jury selection without conducting the analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), constitutes structural error requiring reversal of a criminal conviction.
No. 85737-7, State (respondent) v. Tarhan (petitioner). (2/16/12)
159 Wn. App. 819 (2011) Published in Part
Death—Wrongful Death—Right of Action—Children—Children of Former Spouse—Status as “Stepchildren”
Whether the children of a decedent’s predeceased former spouse are the decedent’s “stepchildren” under RCW 4.20.020, making them potential beneficiaries in the decedent’s wrongful death lawsuit.
No. 85944-2, In re the Matter of the Estate of: Audrey P. Blessing, Deceased. Hagensen, Cynthia L. (respondent) v. Blaschka, Carla; Blaschka, John; Estep, Diana M.; Frank, Julie A. (petitioners). (1/17/12)
160 Wn. App. 847 (2011)
Deeds of Trust—Nonjudicial Foreclosure—Beneficiary—Nonholder of Promissory Note as Lender’s Nominee
Whether Mortgage Electronic Registration Systems, Inc., a corporation formed to provide a national electronic registry to track the transfer of ownership interests and servicing rights in mortgage loans, and nominated by many lenders as mortgagee of record and beneficiary under deeds of trust, may lawfully serve as beneficiary under the Washington Deed of Trust Act where it never held the underlying promissory note.
No. 86206-1 (consol. w/86207-9), Bain (plaintiff) v. Mortg. Elec. Registration Sys., et al. (defendants); Selkowitz (plaintiff) v. Litton Loan Servicing, LP, et al. (defendants).(3/15/12)
Certified Question from U.S. District Court, for the Western District of Washington
Discovery—Hospitals—Quality Assurance Records—Statutory Immunity—Scope
Whether RCW 70.41.200 prohibits the trial court in a medical malpractice action from issuing a discovery order requiring a hospital to search incident reports in its quality assurance database for the purpose of identifying specific patients and providing those patients’ medical files to the plaintiff.
No. 85697-4, Lowy (respondent) v. PeaceHealth; St. Joseph Hosp. (petitioners). (1/10/12)
159 Wn. App. 715 (2011)
Eminent Domain—Private Condemnation—Necessity—Creation of Landlocked Status—Effect—Statute of Limitations—Laches—Applicability
Whether a landowner who causes his property to become landlocked may seek to condemn a private way of necessity under RCW 8.24.010, and if so, whether such an action may be barred by the statute of limitations or laches.
No. 85732-6, Ruvalcaba (respondents) v. Baek, et al. (petitioners). (3/13/12)
Employment—Compensation—Minimum Wage—Overtime—“Employee” or “Independent Contractor”—Determination—Economic Realities Test—Applicability—Instructions—Sufficiency
Whether the federal “economic realities” test for determining whether a worker is an independent contractor or an employee under the Fair Labor Standards Act applies to the Washington Minimum Wage Act, and if so, whether the trial court correctly articulated that test in its jury instructions.
No. 85949-3, Anfinson, et al. (respondents) v. FedEx Ground Package Sys., Inc. (petitioner). (2/14/12)
159 Wn. App. 35 (2010)
Indians—Parties—Joinder—Indispensable Parties—Indian Tribe—Sovereign Immunity—Indian Officials
Whether Indian tribes that have entered into fuel tax agreements with the State are indispensable parties to a lawsuit challenging the constitutionality of the agreements, and if so, whether tribal officials who signed the agreements are exempt from tribal sovereign immunity and therefore may be added as defendants in the suit.
No. 85661-3, Auto. United Trades Org. (appellant) v. State of Wash., et al. (respondents). (1/12/12)
Juveniles—Parental Relationship—Determination—De Facto Parent—Right of Action—Foster Parent
Whether a foster parent who is also the former intimate partner of the child’s biological mother may seek the status of a de facto parent.
No. 86188-9, In re Custody of A.F.J., Mary Franklin (respondent); Jackie Johnston (petitioner). (3/15/12)
161 Wn. App. 803 (2011)
Whether in a proceeding under chapter 13.34 RCW to terminate parental rights, the court may accept a parent’s stipulation to termination without complying with the procedures for relinquishment and adoption under chapter 26.33 RCW.
No. 86048-3, In re Dependency of Rousseau, John Rousseau (petitioner); State (respondent). DISMISSED – ORAL ARGUMENT STRICKEN
160 Wn. App. 929 (2011) Published in Part
Libel and Slander—False Statement of Fact—Actionable Defamation—Public Figure—Actual Malice
Whether statements accusing a Vietnamese immigrant and public figure of being a communist and an agent of the government of the Socialist Republic of Vietnam were defamatory assertions of purported fact, and if so, whether they were made with actual malice.
No. 86021-1, Tan & Vietnamese Cmty. of Thurston County (petitioners) v. Le, et al. (respondents). (3/1/12)
161 Wn. App. 340 (2011)
Medical Treatment—Malpractice—Claims Against Government Entities—Notice of Claims—Statutory Provisions—Validity
Whether the medical malpractice claim notice requirements of RCW 7.70.100(1), found unconstitutional in Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), remain applicable to malpractice suits against the State.
No. 85367-3, McDevitt (respondent) v. Harborview Med. Ctr., et al. (petitioners). (1/12/12)
Medical Treatment—Malpractice—Damages—Collateral Sources—Settlement With Codefendants—Admissibility
Whether evidence that a codefendant in a medical malpractice action settled with the plaintiff is admissible under RCW 7.70.080.
No. 86049-1, Diaz (petitioner) v. State of Wash., et al. (respondents). (2/16/12)
161 Wn. App. 500 (2011)
Mental Health—Involuntary Commitment—Sexually Violent Predators—Future Dangerousness—Proof—Prior Unadjudicated Sex Offenses—Modus Operandi—Database of Offenses
Whether the trial court in a sexually violent predator commitment proceeding properly admitted expert testimony that the detainee probably committed several unsolved sex offenses based on a comparison of the detainee’s adjudicated offenses with the characteristics of the unsolved offenses identified in a criminal acts database.
No. 85965-5, In re the Det. of Coe, Kevin Coe (petitioner); State (respondent). (2/28/12)
160 Wn. App. 809 (2011)
Municipal Corporations—Courts of Limited Jurisdiction—Municipal Courts—Criminal Jurisdictions—Enforcement of State Criminal Statutes—Misdemeanor Offenses—Authority
Whether the city of Auburn municipal court had jurisdiction over state law misdemeanor drug charges even though the city had never incorporated the state offense into the city code.
No. 85892-6, City of Auburn (petitioner) v. Gauntt (respondent). (1/17/12)
160 Wn. App. 567 (2011)
Municipal Corporations—Debt Limitation—“Debt”—What Constitutes—City Loans to Public Facilities District to Secure District Bonds
Whether the city of Wenatchee’s agreement to make loans to a public facilities district to cover shortfalls in the district’s ability to make debt service payments on district-issued bonds is a “debt” of the city for purposes of the constitutional and statutory limit on municipal indebtedness, and if so, whether the amount of the debt is the total amount to be loaned over the lifetime of the agreement.
No. 86552-3, In re: Bond Issuance of Greater Wenatchee Reg’l Events Ctr. (appellants); City of Wenatchee and Taxpayer Representative (respondents). (1/10/12)
Municipal Corporations—Limitation of Actions—State Exemption—Statute of Repose—Judicial Estoppel—Waiver—Law of the Case
Whether the defendant contractor in an action for damages for construction defects in Safeco Field is precluded by principles of judicial estoppel, waiver, and law of the case from asserting that the action is barred by the statute of repose. See Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 165 Wn.2d 679, 202 P.3d 924 (2009).
No. 86210-9, Wash. State Major League Baseball Stadium Pub. Facilities Dist., et al. (appellants) v. Huber, Hunt & Nicholas-Kiewit Constr. Co., et al. (respondents). (1/10/12)
Negligence—Employment—Safe Workplace—Employee of Independent Contractor—Jobsite Owner—Retained Control
Whether a license agreement between the port of Seattle and a vendor who provided airport ground services to airlines gave the port such control over the vendor’s work as to render it potentially liable for injuries to a vendor employee allegedly caused by workplace safety violations, and if so, whether the employee held the status of “business invitee” for purposes of the duty owed.
No. 85784-9, Afoa (respondent) v. Port of Seattle (petitioner). (2/16/12)
160 Wn. App. 234 (2011)
Negligence—Law Enforcement—Civil Liability—Protection of Others—Criminal Acts of Third Persons—Affirmative Act
Whether the city of Seattle may be liable in an action for wrongful death brought by the survivor of a murder victim based on the failure of police to confiscate ammunition while detaining the murderer for questioning just before the murder occurred.
No. 85658-3, Robb (respondent) v. City of Seattle (petitioner). (3/15/12)
159 Wn. App. 133 (2010)
Personal Restraint—Firearm Enhancement Based on Deadly Weapon Finding—Subsequent Caselaw—Retroactivity—Cases Already Final
Whether State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010), applies retroactively on collateral attack of a firearm sentence enhancement imposed by a judgment that was final before the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
No. 82363-4 (consol. w/83923-9), In re Pers. Restraint of Jackson, Ronnie Jackson, Jr. (petitioner); In re Pers. Restraint of Rivera, Salvador Rivera (petitioner); State (respondent). (1/24/12)
Personal Restraint—Grounds—Ineffective Assistance of Counsel—Actual and Substantial Prejudice—Necessity
Whether a personal restraint petitioner claiming ineffective assistance of trial counsel must show a greater degree of prejudice to establish the claim than if the claim were made on direct appeal.
No. 85131-0, In re Pers. Restraint of Crace, Hoyt Crace (respondent); State (petitioner) (see also Criminal Law—Right to Counsel—Effective Assistance of Counsel—Failure to Request Instruction—Lesser Included Offense). (1/24/12)
157 Wn. App. 81 (2010)
Personal Restraint—Petition—Timeliness—Facial Invalidity—Second Degree Felony Murder—Predicate Offense—Validity—First or Second Degree Robbery
Whether a personal restraint petitioner whose judgment and sentence has been final for more than one year may challenge as facially invalid a plea-based conviction for second degree felony murder improperly predicated on the felonies of first and second degree robbery.
No. 85358-4, In re Pers. Restraint of Pursley,William Pursley (petitioner); State (respondent). STRICKEN—JOINT MOTION FOR STAY GRANTED 12/16/11
Property—Injury to Property—Treble Damages—Statutory Provisions—Intent to Harm—Necessity
Whether a plaintiff seeking treble damages for civil trespass pursuant to RCW 4.24.630 must prove that the trespasser intended to damage the invaded property.
No. 86109-9, Bird (respondent) v. Farmers Ins. Exchange (see also Compromise and Settlement—Settlement Agreement—Reasonableness—Determination—Right to a Jury—Nonparty Insurer). (1/26/12)
161 Wn. App. 510 (2011)
Waters—Water Rights—General Adjudication—Indian and Non-Indian Users—Ahtanum Creek
Whether the trial court properly determined the existence, scope, and priority of Yakama Indian Nation and non-Indian parties’ water rights in the Ahtanum Creek sub-basin of the Yakima River Basin.
No. 86211-7, Dep’t of Ecology (respondent/cross-appellant) v. Acquavella, et al. (appellant/cross-respondents). STRICKEN—WILL BE RESET