Supreme Court Issues
September Term 2012
Arbitration—Contractual Agreement—Insurance Contract—Binding Arbitration—Validity
Whether binding arbitration provisions in “surplus line” liability insurance policies are unenforceable under RCW 48.18.200, which prohibits insurance contracts from depriving state courts of jurisdiction over actions against insurers, and under RCW 48.15.150(1), which requires actions against surplus line insurers to be brought in the superior court of the county where the cause of action arose.
No. 87644-4, State, Dep’t of Transp. (respondent) v. James River Ins. Co. (appellant). (10/25/12)Top
Arbitration—Contractual Agreement—Validity—Substantive Unconscionability—Specified Venue for Arbitration—Attorney Fee Provision
Whether an arbitration clause in a debt settlement agreement between a Washington consumer and a California business requiring arbitration to be conducted in Orange County, California, and allowing attorney fees to the prevailing party is unconscionable.
No. 87674-6, Gandee, et al. (respondents) v. LDL Freedom Enters., Inc., a/k/a LDL Freedom, Inc., d/b/a Financial Crossroads, et al. (appellants). (10/18/12)Top
Arbitration—Necessity—Determination—Review—Failure to Have Petitioned for Discretionary Review—Effect—Prejudice—Necessity
Whether a party who did not seek discretionary review of a trial court ruling ordering arbitration in Washington and invalidating a contractual choice of venue clause must demonstrate prejudice from arbitration in this state in order to challenge the ruling on appeal from a judgment confirming the arbitration award.
No. 87062-4, Saleemi, et al. (respondents) v. Doctor’s Assocs. (petitioner). (9/20/12)
166 Wn. App. 81 (2012)Top
Compromise and Settlement—Joint and Several Liability—Agreement Limiting One Defendant’s Liability in Multi-Defendant Case—Effect
Whether two defendants in a negligence action remained jointly and severally liable after one of the defendants entered into an undisclosed pretrial agreement with the plaintiff limiting that defendant’s liability should the plaintiff prevail at trial.
No. 86924-3, Barton (respondent) v. State, Dep’t of Transp., et al. (petitioner). (10/4/12)Top
Compromise and Settlement—Settlement Agreement—Enforcement—Stipulation to Dismiss Action—Deeming Release of Claims Signed—Authority of Trial Court
Whether, after the parties to a personal injury suit entered into a settlement agreement and stipulated to dismissal of the action, the trial court had authority under CR 2A to enforce the settlement and deem a release of claims to have been signed by the plaintiff.
No. 86130-7, Condon (appellant) v. Condon (respondent). (10/23/12)Top
Consumer Protection—Action for Damages—Unfair or Deceptive Conduct—Trustee of Deed of Trust—Breach of Fiduciary Duty—Predating Notice of Foreclosure Sale
Whether the trustee in a nonjudicial foreclosure violated the Consumer Protection Act by deferring to the lender on whether to grant the debtor’s request to postpone the foreclosure sale, and by predating the notarized notice of sale.
No. 87105-1, Klem (petitioner) v. Wash. Mut. Bank, et al. (respondents). (10/16/12)Top
Court Records—Criminal Prosecution—Vacated Conviction—Sealed Records—Motion to Unseal—Denial—Standard for Unsealing
Whether the superior court erred in denying a motion to unseal records of a vacated criminal conviction without making findings required by GR 15 or Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).
No. 85665-6, State & Richardson (respondents) v. Siegel (petitioner). (10/4/12)Top
Courts of Limited Jurisdiction—Deferred Prosecution of Misdemeanor DUI—Substance Abuse Treatment Program—Indigent Defendants—Availability of Public Funds
Whether RCW 10.05.130, which calls for the appropriation of public funds for the “investigation, examination, report and treatment plan” for indigent defendants granted deferred prosecution for misdemeanor driving under the influence, authorizes the expenditure of public funds for the treatment itself.
No. 85938-8 (consol. w/85950-7), Snohomish County Dist. Ct., Evergreen Dist., et al. (respondent) v. Velasquez (petitioner); Snohomish County Dist. Ct., Cascade Div., et al.
Courts of Limited Jurisdiction—Municipal Courts—State Crimes—Sentencing—Fines and Restitution
Whether the Seattle Municipal Court, in ordering a partially suspended sentence for a state crime, had authority to impose both a fine and restitution.
No. 86148-0, City of Seattle (respondent) v. Fuller (petitioner). (9/25/12)Top
Criminal Law—Arrest—Probable Cause—Arrest Made for Misdemeanor Offense—Violation of Municipal Ordinance—Conflict With State Law—Effect—Searches and Seizures—Automobiles—Warrantless Search—Incident to Arrest of Occupant—Validity
Whether the defendant in a prosecution for unlawful possession of a controlled substance was unlawfully arrested without a warrant for violating a city ordinance criminalizing simple possession of drug paraphernalia because the ordinance conflicts with State law, and if not, whether the defendant’s automobile was unlawfully searched incident to his arrest.
No. 85608-7, State (respondent) v. Louthan (petitioner). ORAL ARGUMENT STRICKEN
158 Wn. App. 732 (2010)Top
Criminal Law—Former Jeopardy—Acquittal—Poll of Jury—Mistrial—Validity
Whether a second trial of a defendant on criminal charges violated double jeopardy principles when in the first trial the jury announced it had found the defendant not guilty but the court declared a mistrial after polling the jurors and finding they were not unanimous.
No. 87618-5, State (respondent) v. Strine (petitioner). (10/25/12)Top
Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—First Degree Rape and Second Degree Rape of Child
Whether convictions for first degree rape and second degree child rape based on a single act violate double jeopardy principles.
No. 86951-1, State (respondent) v. Smith (petitioner) (see also Criminal Law—Searches and Seizures—Exclusionary Rule—Exceptions—Independent Source—Attenuation). (9/27/12)
165 Wn. App. 296 (2011)Top
Criminal Law—Identity Theft—“Person”—Scope—Corporations
Whether a corporation is a “person” that can be a victim of identity theft.
No. 86772-1, State (respondent) v. Evans (petitioner). (9/11/12)
164 Wn. App. 629 (2011)Top
Criminal Law—Jury Selection—Peremptory Challenges—Race Based—Prima Facie Case—Challenge to Sole Member of Class—Different Class than Defendant
Whether in a criminal prosecution of a Caucasian defendant the trial court erred in allowing the State to use a peremptory challenge to exclude the sole African-American potential juror from the jury panel.
No. 86825-5, State (respondent) v. Meredith (petitioner). (9/13/12)
163 Wn. App. 75 (2011)Top
Criminal Law—Necessity—Medical Necessity—Marijuana Use—Common Law—Superseded by Medical Use of Marijuana Act
Whether a person who lacks authority to possess or manufacture marijuana under the Medical Use of Marijuana Act, chapter 69.51A RCW, may assert a common law medical necessity defense in a prosecution for unlawful manufacture and possession of marijuana.
No. 87078-1, State (respondent) v. Kurtz (petitioner). (10/16/12)Top
Criminal Law—Punishment—Sentence—Criminal History—Foreign Offenses—Deferred Adjudication
Whether a deferred adjudication under Texas law, which is not treated as a conviction unless supervision is revoked and the defendant has is then adjudicated guilty, counts as a prior conviction in calculating a Washington offender score.
No. 86733-0, State (respondent) v. Cooper (petitioner). (9/11/12)
164 Wn. App. 407 (2011)Top
Criminal Law—Punishment—Sentence—Outside Standard Range—Justification—Second Degree Assault—Seriousness of Victim’s Injuries—Great Bodily Harm—Instruction—Necessity
Whether in order to impose an exceptional sentence for second degree assault on the ground that the defendant inflicted bodily harm that “substantially exceeds” the level necessary for the crime, the jury must find that the defendant inflicted the “great bodily harm” necessary for first degree assault, and if so, whether the jury must be so instructed.
No. 86853-1, State (respondent) v. Duncalf (petitioner) (see also Criminal Law—Punishment—Sentence—Outside Standard Range—Statutory Provisions—Vagueness—Applicability). (9/13/12)
164 Wn. App. 900 (2011)Top
Criminal Law—Punishment—Sentence—Outside Standard Range—Statutory Provisions—Vagueness—Applicability
Whether in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), sentence aggravating factors may be challenged as unconstitutionally vague, and if so, whether the factor based on the infliction of bodily harm that “substantially exceeds” the level necessary to satisfy the elements of the crime is unconstitutionally vague.
No. 86853-1, State (respondent) v. Duncalf (petitioner) (see also Criminal Law—Punishment—Sentence—Outside Standard Range—Justification—Second Degree Assault—Seriousness of Victim’s Injuries—Great Bodily Harm—Instruction—Necessity). (9/13/12)
164 Wn. App. 900 (2011)Top
Criminal Law—Right to Confront Witnesses—Scope—Expert Testimony—Reliance on Data Compiled by Others—Independent Opinions and Conclusions
Whether a criminal defendant’s right to confront witnesses is violated when an expert witness for the State testifies based on a nontestifying expert’s report.
No. 84045-8, State (respondent) v. Lui (petitioner). (10/16/12)
153 Wn. App. 304 (2009)Top
Criminal Law—Searches and Seizures—Automobiles—Impoundment—Inventory Search—Consent—Necessity—Pretext for Unlawful Search Incident to Arrest
Whether consent is required to conduct an inventory search of a vehicle prior to impoundment, and if not, whether the purported inventory search here was a pretext for a search for evidence otherwise unlawful under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
No. 87104-3, State (respondent) v. Tyler (petitioner). (10/4/12)
166 Wn. App. 202 (2012)Top
Criminal Law—Searches and Seizures—Exclusionary Rule—Exceptions—Independent Source—Attenuation
Whether evidence of crimes discovered as a result of an inquiry that began with an unlawful search of a motel registry was derived from an independent source or was attenuated from the unlawful search, so as to allow the evidence to be admitted to trial.
No. 86951-1, State (respondent) v. Smith (petitioner) (see also Criminal Law—Former Jeopardy—Multiple Convictions—Same Offense—First Degree Rape and Second Degree Rape of Child). (9/27/12)
165 Wn. App. 296 (2011)Top
Criminal Law—Vehicular Assault—Sentence—Outside Standard Range—Justification—Seriousness of Victim’s Injuries—Applicability
Whether in a prosecution for vehicular assault, which requires proof that the defendant inflicted “substantial bodily harm,” the trial court may impose an exceptional sentence on the basis that the defendant inflicted bodily harm that “substantially exceeds” the level necessary to satisfy the elements of the crime.
No. 86859-0, State (respondent) v. Pappas (petitioner). (9/13/12)
164 Wn. App. 917 (2011)Top
Dismissal and Nonsuit—Judgment on Pleadings—Conversion to Summary Judgment—Necessity—Matters Considered—Documentary Evidence—Remedy for Trial Court Error—Entry of Judgment for Nonmoving Party—Validity
Whether a trial court erroneously dismissed a breach of contract claim on the pleadings without converting the motion to dismiss to a summary judgment proceeding when the court considered the disputed agreement, and if so, whether the Court of Appeals in reversing the dismissal order erroneously directed the trial court to enter judgment in favor of the plaintiff.
No. 86936-7, P.E. Sys., LLC (respondent) v. CPI Corp. (petitioner). (9/27/12)
164 Wn. App. 358 (2011)Top
Elections—Candidate Qualifications—Superior Court Judge—Constitutional Provisions—Exclusivity
Whether superior court judges, who under the Washington Constitution must be admitted to practice in the courts of record in this state, are also subject to the statutory requirement that candidates for county offices be electors of the county in which they seek office.
No. 87823-4, Parker, et al.(appellants) v. Wyman, et al.(respondents) and Clarke (appellant) v. Wyman, et al. (respondents). (10/18/12)Top
Eminent Domain—Inverse Condemnation—Regulatory Taking—Diminished Property Value—Land Use Petition—Necessity—Nuisance—Damages—Electromagnetic Fields—Scientific Evidence—Acceptance in Scientific Community
Whether residential neighbors of a new Puget Sound Energy substation may bring an inverse condemnation action against the city of Kirkland to recover compensation for reduced property values without having challenged the city’s approval of the substation by land use petition, and whether the neighbors presented valid scientific evidence of the adverse health effects of electromagnetic fields enabling their nuisance suit against Puget Sound Energy to proceed.
No. 87679-7, Lakey, et al. (appellants) v. Puget Sound Energy Inc., et al. (respondents). (10/18/12)Top
Employment—Leave—Family and Medical Leave Act—Return to Work—Certification by Physician—Sufficiency
Whether a form filled out by the physician of an employee on medical leave, stating that the employee could return to work as soon as the employer allowed, constituted a valid fitness-for-duty certification obligating the employer to reinstate the employee under the federal Family and Medical Leave Act.
No. 87056-0, Chaney (respondent) v. Providence Health Care d/b/a Sacred Heart Med. Ctr. & Children’s Hosp. (petitioner). (10/23/12)
165 Wn. App. 578 (2011)Top
Employment—Termination—Violation of Public Policy—Right of Action—Elements—Jeopardy—Public Employees’ Collective Bargaining Act—Effect
Whether a public employee who claims he was terminated for engaging in union organizing activity may maintain a tort action for wrongful termination in violation of public policy on the basis of the policy expressed in the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW.
No. 83882-8, Piel (appellants) v. City of Federal Way (respondents). (9/13/12)Top
Environment—Water Pollution—Statutory Provisions—Nonpoint Pollution Sources—Livestock—Regulatory Authority—Eminent Domain—Inverse Condemntation—Regulatory Taking
Whether RCW 90.48.120, which authorizes the Department of Ecology to order corrective action against the discharge of pollutants into state waters, allowed the department to issue an order regulating cattle grazing on ranch land so as to prevent pollution of a creek, and if so, whether the order in this case constituted a taking of property for public use entitling the landowner to compensation.
No. 87703-3, Lemire (respondent) v. The Pollution Control Hr’gs Bd. & State of Wash. Dep’t of Ecology (appellants). (11/13/12)Top
Insurance—Brokers—Insurance Agent—Violation of Regulatory Provisions—Vicarious Liability of Underwriter—Control or Oversight by Underwriter—Actual or Apparent Authority
Whether a statewide title insurance company that underwrote policies for a local title insurance company may be held vicariously liable for the local company’s violations of insurance regulations.
No. 87215-5, Chicago Title Ins. Co. (respondent) v. State, Office of the Ins. Comm’r (petitioner). (10/25/12)Top
Juveniles—Parental Relationship—Determination—DeFacto Parent—Former Stepparent—Right of Action—Only One Living Biological Parent—Nonparent Petition—Full Hearing—Adequate Cause
Whether a former stepparent may acquire the status of defacto parent of a child with only one living biological parent, and whether the former stepparent in this case made an adequate showing that relocation of the child to a different city would be detrimental to the child’s growth and development, justifying a show cause hearing on a nonparent custody petition.
No. 86895-6, In re Custody of B.M.H., Michael J. Holt (respondent); Laurie L. Holt (petitioner). (9/27/12)
165 Wn. App. 361 (2011)Top
Labor Relations—Arbitration—Judicial Review—Vacation of Award—Violation of Public Policy—Washington Law Against Discrimination
Whether the superior court properly vacated an arbitration award reinstating an employee on the ground that it violated a clear public policy embodied in Washington’s Law Against Discrimination.
No. 86739-9, Int’l Union of Operating Eng’rs Local 286 (petitioner) v. Port of Seattle (respondent). (11/13/12)
164 Wn. App. 307 (2011)Top
Municipal Corporations—Public Hospital Districts—Powers and Limitations—Service Within Boundaries of Another District—Permission—Necessity
Whether a public hospital district may operate a medical clinic within another district’s territorial boundaries without the other district’s permission.
No. 86796-8, Skagit County Pub. Hosp. Dist. No. 304 (respondent) v. Skagit County Pub. Hosp. Dist. No. 1, et al. (appellants). (10/16/12)Top
Negligence—Engineers—Duty of Care—Independent Duty Doctrine—Applicability
Whether in an action arising out of a contract for engineering services the independent duty doctrine permits the client’s tort claims against the engineering firm for negligence and negligent misrepresentation.
No. 86590-6, Donatelli (respondent) v. D.R. Strong Consulting Eng’rs, Inc. (petitioner). (9/11/12)
163 Wn. App. 436 (2011)Top
Open Government—Public Disclosure—Exemptions—Executive Privilege—Validity
Whether the governor may invoke executive privilege to decline a request for disclosure under the Public Records Act.
No. 86150-1, Freedom Found. (appellant) v. Gregoire (respondent). (9/20/12)Top
Open Government—Public Disclosure—Exemptions—Investigative Records—Other Statutory Exemptions—Protection of Nonpublic Personal Information of Financial Institution Customers—Federal Law—Internal Emails—Consumer Protection Act—Civil Investigative Demand
Whether in relation to a public disclosure request for records supplied to the Washington attorney general by a mortgage company in an investigation of its lending practices, the attorney general is prohibited by the federal Gramm-Leach-Bliley Act from releasing emails generated by company employees during the processing of consumer loans, whether the materials are exempt from disclosure under the Public Records Act as investigative records, and whether the Consumer Protection Act prohibits disclosure of the records because they are the result of a civil investigative demand.
No. 87661-4, Ameriquest Mortg. Co. (appellant) v. Office of the Attorney Gen. of Wash. (respondent). (11/13/12)Top
Open Government—Public Disclosure—Municipal Housing Agency—Tenant Records Exempt From Disclosure Under Federal Law—Disclosure of Previously Redacted Records—Validity—Creation of New Records with Fewer Redactions—Electronic Version—Promulgation of Disclosure Rules and Regulations—Necessity
Whether the Seattle Housing Authority violated the Public Records Act when it disclosed previously redacted copies of public housing assistance tenant grievance decisions, and if so, whether the trial court properly ordered the Authority to create new records with fewer redactions, to provide them in electronic format, and to promulgate procedures relating to such record requests.
No. 87656-8, Resident Action Council (respondent) v. Seattle Hous. Auth. (appellant). (10/18/12)Top
Partnership—Limited Liability Company—Action Against—Attorney Fees—Evidence
Whether the trial court in a dissenter’s right suit erred on remand in reinstating an attorney fees award against the dissenter on the basis of arbitrary, vexatious, or bad faith action after this court held that there was no basis in the record for the award. See Humphrey Indus., Ltd. v. Clay Street Assocs., LLC, 170 Wn.2d 495, 242 P.3d 846 (2010).
No. 86643-1, Humphrey Indus., Ltd. (petitioner) v. Clay St. Assocs., LLC, et al. (respondents). (9/20/12)Top
Personal Restraint—Petition—Timeliness—Statutory Limits—Equitable Tolling—Alien Defendant—Ignorance of Deportation Consequences—Plea of Guilty—Withdrawal
Whether an attorney’s misadvice to a criminal defendant about the possible deportation consequences of pleading guilty should equitably toll the one-year time limit on collateral challenges to the judgment and sentence, and if so, whether the defendant should be allowed to withdraw his plea.
No. 87297-1, State (respondent) v. Bueno (petitioner). REVIEW DISMISSED – ORAL ARGUMENT STRICKENTop
Personal Restraint—Timeliness—Facial Invalidity—Guilty Plea—Consecutive Sentences—Aggravating Circumstances—Absence of Findings—Absence of Stipulation—Remedy
Whether a judgment and sentence based on a plea of guilty is facially invalid, and thus subject to collateral attack more than one year after the judgment became final, because it imposed consecutive standard range sentences on nonviolent offenses without findings on aggravating circumstances and without a stipulation by the petitioner to an exceptional sentence, and if so, whether the petitioner is entitled to be resentenced.
No. 86018-1, In re Pers. Restraint of Finstad, Lowell Finstad (petitioner); State (respondent). (9/25/12)Top
Personal Restraint—Timeliness—Facial Invalidity—Misstatement of Seriousness Level and Sentencing Range—Remedy—Scope—Withdrawal of Guilty Plea
Whether a judgment and sentence that misstates the seriousness level and standard sentencing range for the crime is facially invalid for purposes of exempting a personal restraint petition from the one-year time limit on collateral attack, and if so, whether the petitioner may challenge the validity of his plea of guilty to the crime on the ground that he was misinformed of sentencing consequences.
No. 85377-1, In re Pers. Restraint of Toledo-Sotelo, Jose Toledo-Sotelo (petitioner); State (respondent). (9/11/12)Top
Statutes—Initiatives—Standing to Challenge—Declaratory Judgment—Justiciable Controversy—Constitutional Law—Tax Increases—Supermajority and Referendum Requirements—Validity
Whether plaintiffs challenging the constitutionality of RCW 43.135.034, which requires supermajority legislative approval of tax increases and voter approval of tax increases that result in spending above the state limit, have standing and present a justiciable controversy, and if so, whether the statute conflicts with state constitutional provisions governing referenda and requiring a simple majority to pass most legislative measures.
No. 87425-5, League of Education Voters, et al. (respondents) v. State (appellant) and Gregoire (respondent). (9/25/12)Top
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. (appellants/cross-respondents). (9/18/12)Top
Waters—Water Rights—Priority—Minimum Instream Flow—Amendment to Permit Other Uses—Validity
Whether the Department of Ecology exceeded its authority and acted arbitrarily and capriciously in amending the Skagit River Instream Flow Rule to authorize new appropriations of water from Skagit River tributary subbasins for domestic, commercial, municipal, and agricultural uses.
No. 87672-0, Swinomish Indian Tribal Cmty. (appellant) v. Wash. State Dep’t of Ecology (respondent). (11/13/12)Top
Weapons—Possession—Second Degree Unlawful Possession—By Accused Free on Bond or Personal Recognizance—Serious Offense—Validity
Whether RCW 9.41.040(2)(a)(iv) is unconstitutional in criminalizing the possession of firearms by a person charged with a serious offense and free on bond or personal recognizance pending trial.
No. 87448-4, State (respondent) v. Jorgenson (petitioner). (10/4/12)
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