Supreme Court Issues
May Term 2013

• Arbitration—Labor Relations—Collective Bargaining Agreement—Arbitration Provision—Scope—Class Arbitration—Necessity
• Automobiles—Hit and Run—Duty to Stop—Collision with Animal
• Civil Rights—Law Against Discrimination—Exemptions—Religious Organizations—Validity—Privileges and Immunities—Religious Freedom—Discrimination Unrelated to Religion
• Contracts—Breach—In-Home Care Providers—Duty of State to Act in Good Faith—Shared Living Rule—Invalidity of Rule
• Costs—Attorney Fees—Minor Action for Damages—Prevailing Party—Voluntary Dismissal
• Criminal Law—Evidence—Recording Private Conversation—Consent—Text Messages Sent to Another Person’s Smart Phone
• Criminal Law—False Insurance Claim—Elements—Contract of Insurance—Truck Rental Contract—Claim for Damages Submitted to Rental Company Insurer
• Criminal Law—First Degree Malicious Mischief—Elements—Property of Another—What Constitutes
• Criminal Law—Homicide—Controlled Substances Homicide—Elements—Identity of Specific Substance
• Criminal Law—Insanity—Competency to Stand Trial—Psychiatric Examinations—Written Report—Status as Court Record—Openness to Public View
• Criminal Law—Insanity—Conditional Release—Revocation—Validity—Current Dangerousness—Necessity—Hearsay Testimony—Right to Confront Witnesses
• Criminal Law—Punishment—Death Penalty—Notice—Matters Considered—Strength of Evidence of Guilt—Validity
• Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Filing Deadline—Extension—State’s Refusal to Consent—Validity
• Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Matters Considered—Circumstances of Crime
• Criminal Law—Right to Remain Silent—Invocation of Right—What Constitutes—Effect
• Criminal Law—Searches and Seizures—Constitutional Law—State and Federal Provisions--Expectation of Privacy—Right to Privacy—Text Messages Sent to Another Person’s Smart Phone
• Criminal Law—Sexual Offenses—Rape—Defenses—Consent—Burden of Proof
• Criminal Law—Witnesses—Developmentally Disabled Witness—Anixtey About Testifying—Presence of “Facility Dog”—Validity—Fair Trial
• Deed of Trust—Nonjudicial Foreclosure—Defect—Waiver—Failure to Successfully Enjoin Trustee’s Sale
• Discovery—Witnesses—Late Disclosure—Exclusion from Trial—Factors—Local Court Rule—Effect
• Divorce—Decree—Validity—Subject Matter Jurisdiction—Compliance With Statutory 90-Day Waiting Period—Necessity
• Electricity—Energy Facility—Siting—Certification—Statutory Provisions—Compliance
• Environment—SEPA—Impact Statement—Necessity—Threshold Determinaton—Significant Effects—Adequacy of Consideration—Exemptions—Energy Recovery Facility
• Juveniles—Paternity—Custodial Designation—Modification—Adequate Cause Threshold Hearing—Necessity
• Limitation of Actions—Minors—Tolling of Limitations Period During Minority—Exception for Medical Malpractice Actions—Validity—Access to Courts—Privileges and Immunities—Equal Protection
• Negligence—Duty—Instruction—Validity—Preservation for Review—Objection—Sufficiency—Law of the Case
• Open Government—Courts—Judicial Records—Unlawful Detainer—Redaction of Identifying Information—Private Interest—Sufficiency
• Open Government—Public Disclosure—Exemptions—Other Statutory Exemptions—Privacy Act—Restriction on Disclosure of Law Enforcement Vehicle Video Camera Recordings—Scope
• Personal Restraint—First Degree Robbery—First Degree Kidnapping—Elevation of Degree Based on First Degree Robbery—Jury Instructions—Uncharged Alternative Means of Committing First Degree Robbery—Effect
• Personal Restraint—Petition—Timeliness—Significant Change in Law—Retroactivity—Prosecutorial Misconduct—Racial Comments—Impropriety—Prejudice
• Personal Restraint—Petition—Timeliness—Vacation of Previously Final Judgment—Resentencing—Effect
• Taxation—Refund—Judicial Action—Exhaustion of Administrative Remedies—Necessity—Mandamus—Timeliness
• Torts—Conversion—Acts Constituting—Unauthorized Use of Property—Software Code
• Waters—Water Rights—Place of Use—Municipal Water Supply—Statutory Provisions—Validity—Due Process—Separation of Powers

Arbitration—Labor Relations—Collective Bargaining Agreement—Arbitration Provision—Scope—Class Arbitration—Necessity

Whether an arbitration provision in a collective bargaining agreement precluded employees from bringing a class action in court asserting statutory employment claims, and if so, whether the members of the class must arbitrate individually.

No. 87877-3, Hill, et al. (petitioners) v. Garda CL Nw., Inc. (respondent). (5/21/13)

169 Wn. App. 685 (2012)

Automobiles—Hit and Run—Duty to Stop—Collision with Animal

Whether a driver who struck a horse on a highway had a duty under RCW 46.52.020 to stop and remain at the scene.

No. 87915-0, Aurdal, et al. (respondents) v. United Tel. Co., et al. (petitioners). (5/14/13)

Civil Rights—Law Against Discrimination—Exemptions—Religious Organizations—Validity—Privileges and Immunities—Religious Freedom—Discrimination Unrelated to Religion

Whether the exclusion of religious nonprofit organizations from the definition of “employer” in the Washington Law Against Discrimination violates Washington Constitution article I, section 11 or 12, and if not, whether the exemption is unconstitutional as applied to an employee claiming that a religious nonprofit organization discriminated against him for reasons unrelated to any religious purpose, practice, or activity.

No. 88218-5, Ockletree (plaintiff) v. Franciscan Health Sys., et al. (defendants). (5/9/13)

Certified Question from U.S. District Court for the Western District of Washington at Tacoma

Contracts—Breach—In-Home Care Providers—Duty of State to Act in Good Faith—Shared Living Rule—Invalidity of Rule

Whether the Department of Social and Health Services breached its contractual duty of good faith and fair dealing with in-home care providers when it reduced the number of care hours it would pay the providers for on the basis of the “shared living rule,” which was later invalidated for violating federal comparability requirements.

No. 86822-1, Rekhter, et al. (respondents/cross-appellants) v. Dep’t of Soc. & Health Servs., et al. (appellants/cross-respondents). (5/14/13)

Costs—Attorney Fees—Minor Action for Damages—Prevailing Party—Voluntary Dismissal

Whether the defendant in an action for less than $10,000 was a “prevailing party” entitled to attorney fees under RCW 4.24.250 when the plaintiff voluntarily dismissed the action.

No. 87445-0, Allianceone Receivables Mgmt., Inc. (respondent) v. Lewis (appellants). (6/11/13)

Criminal Law—Evidence—Recording Private Conversation—Consent—Text Messages Sent to Another Person’s Smart Phone

Whether police violated the Washington Privacy Act, chapter 9.73 RCW, when they viewed incoming text messages from the defendant on a confiscated smart phone and used the phone to set up a sham illegal drug transaction with the defendant.

No. 87669-0, State (respondent) v. Roden (petitioner). (5/7/13)

169 Wn. App. 59 (2012)

Criminal Law—False Insurance Claim—Elements—Contract of Insurance—Truck Rental Contract—Claim for Damages Submitted to Rental Company Insurer

Whether defendants committed the crime of presenting a false claim under a “contract of insurance” when they submitted a false claim of property damage to the insurer of the company from which they rented a truck to haul the property.

No. 87697-5, State (respondent) v. Mau (petitioner); State (respondent) v. Eden (defendant). (5/9/13)

Criminal Law—First Degree Malicious Mischief—Elements—Property of Another—What Constitutes

Whether damage inflicted by a defendant to a house that he was buying under a contract constituted damage to “property of another” for purposes of the crime of first degree malicious mischief.

No. 87855-2, State (respondent) v. Wooten (petitioner). (5/21/13)

Criminal Law—Homicide—Controlled Substances Homicide—Elements—Identity of Specific Substance

Whether in charging controlled substance homicide the State must specify in the information the controlled substance involved in the crime.

No. 87614-2, State (respondent) v. Zillyette (petitioner). (5/23/13)

169 Wn. App. 24 (2012)

Criminal Law—Insanity—Competency to Stand Trial—Psychiatric Examinations—Written Report—Status as Court Record—Openness to Public View

Whether in a prosecution for aggravated first degree murder the superior court erroneously denied a motion to seal the defendant’s competency evaluation, which the court considered in finding the defendant competent to stand trial.

No. 87350-0, State (respondent) v. Chen (petitioner). (5/14/13)

Criminal Law—Insanity—Conditional Release—Revocation—Validity—Current Dangerousness—Necessity—Hearsay Testimony—Right to Confront Witnesses

Whether the trial court in considering whether to revoke conditional release of a defendant acquitted by reason of insanity must find that the defendant is currently dangerous in order to revoke release, and whether the admission of hearsay testimony at the hearing to revoke conditional release violated the defendant’s right to confront witnesses.

No. 87726-2, State (respondent) v. Dang (petitioner). (6/11/13)

168 Wn. App. 480 (2012)

Criminal Law—Punishment—Death Penalty—Notice—Matters Considered—Strength of Evidence of Guilt—Validity

Whether in an aggravated first degree murder prosecution the State may consider the strength of evidence of guilt in deciding whether to seek the death penalty.

No. 88410-2 (consol. w/88411-1), State (petitioner) v. McEnroe (respondent); State (petitioner) v. Anderson (respondent). (5/9/13)

Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Filing Deadline—Extension—State’s Refusal to Consent—Validity

Whether the prosecutor in an aggravated first degree murder prosecution abused his discretion by refusing to agree to further extend the deadline for filing a notice of intent to seek the death penalty when the defendant sought additional time to collect mitigation evidence.

No. 88522-2, State (petitioner) v. Monfort (respondent) (see also Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Matters Considered—Circumstances of Crime). (6/27/13)

Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Matters Considered—Circumstances of Crime

Whether a prosecutor in deciding whether to seek the death penalty may consider the circumstances of the crime in evaluating whether sufficient mitigating circumstances merit leniency.

No. 88522-2, State (petitioner) v. Monfort (respondent) (see also Criminal Law—Punishment—Death Penalty—Special Sentencing Procedure—Notice—Filing Deadline—Extension—State’s Refusal to Consent—Validity). (6/27/13)

Criminal Law—Right to Remain Silent—Invocation of Right—What Constitutes—Effect

Whether police violated a defendant’s right to remain silent when, after the defendant said that he would write down a statement but did not want to talk, an officer wrote down the defendant’s verbal statements while continuing to ask him questions.

No. 87904-4, State (respondent) v. Piatnitsky (petitioner). (6/25/13)

170 Wn. App. 195 (2012)

Criminal Law—Searches and Seizures—Constitutional Law—State and Federal Provisions--Expectation of Privacy—Right to Privacy—Text Messages Sent to Another Person’s Smart Phone

Whether police conducted a search in violation of the United States and Washington Constitutions when they viewed incoming text messages from the defendant on a confiscated smart phone and used the phone to set up a sham illegal drug transaction with the defendant.

No. 87663-1, State (respondent) v. Hinton (petitioner). (5/7/13)

169 Wn. App. 28 (2012)

Criminal Law—Sexual Offenses—Rape—Defenses—Consent—Burden of Proof

Whether requiring the defendant in a rape prosecution to prove consent as an affirmative defense impermissibly shifts to the defendant the State’s burden to prove forcible compulsion.

No. 87882-0, State (respondent) v. Lynch (petitioner). (5/7/13)

Criminal Law—Witnesses—Developmentally Disabled Witness—Anixtey About Testifying—Presence of “Facility Dog”—Validity—Fair Trial

Whether in a criminal prosecution the defendant’s right to a fair trial was violated when the court allowed a developmentally disabled witness to be accompanied by a dog belonging to the prosecutor’s office in order to comfort the witness while testifying.

No. 87929-0, State (respondent) v. Dye (petitioner). (5/16/13)

170 Wn. App. 340 (2012)

Deed of Trust—Nonjudicial Foreclosure—Defect—Waiver—Failure to Successfully Enjoin Trustee’s Sale

Whether the grantor of a deed of trust waived the right to assert postsale challenges to a trustee’s foreclosure sale when the grantor obtained a conditional order restraining the sale but failed to comply with conditions of the order which required payment of the amount owed to the court registry and posting bond.

No. 87927-3, Frizzell (respondent) v. Murray, et al. (petitioners). (5/21/13)

170 Wn. App. 420 (2012)

Discovery—Witnesses—Late Disclosure—Exclusion from Trial—Factors—Local Court Rule—Effect

Whether in a personal injury action the trial court erred by excluding witnesses as a discovery sanction under King County Local Rule 26 without expressly considering the factors set forth in Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).

No. 87343-7, Jones (respondent) v. City of Seattle (petitioner). (6/13/13)

Divorce—Decree—Validity—Subject Matter Jurisdiction—Compliance With Statutory 90-Day Waiting Period—Necessity

Whether RCW 26.09.030, which states that a court shall enter a dissolution decree 90 days after a dissolution petition is filed if the other party joins in the petition or does not dispute that the marriage is irrevocably broken, is jurisdictional, precluding the court from entering a decree before expiration of the period.

No. 87680-1, In re Marriage of Buecking, Amy Buecking (respondent); Tim Buecking (petitioner). (6/13/13)

167 Wn. App. 555 (2012) Published in Part

Electricity—Energy Facility—Siting—Certification—Statutory Provisions—Compliance

Whether in approving the location of a wind turbine project in the Columbia River Gorge, the governor and the Energy Site Evaluation Council failed to comply with requirements relating to wildlife protection; mitigation of aesthetic, heritage, and recreation resources; and evaluation and enforcement of forest practices actions.

No. 88089-1, Friends of the Columbia Gorge, Inc., et al. (petitioners) v. State Energy Facility Site Evaluation Council, et al. (respondents). (6/27/13)

Environment—SEPA—Impact Statement—Necessity—Threshold Determinaton—Significant Effects—Adequacy of Consideration—Exemptions—Energy Recovery Facility

Whether the Department of Ecology, in determining that no environmental impact statement was necessary for a proposed energy cogeneration project fueled by the burning of woody biomass, failed to adequately consider the effects of carbon dioxide emissions and demand for woody biomass from the state’s forests, and whether the project is exempt from impact statement requirements as part of an energy recovery facility that existed before January 1, 1989.

No. 88208-8, PT Air Watchers, et al. (appellants) v. State, et al. (respondents). (5/23/13)

Juveniles—Paternity—Custodial Designation—Modification—Adequate Cause Threshold Hearing—Necessity

Whether a party seeking to modify the custody designation in a parentage order issued under the Uniform Parentage Act must satisfy the requirements of chapter 26.09 RCW by showing a substantial change in circumstances and that modification is in the child’s best interest.

No. 88029-8, In re the Parentage of CMF, Fairfax (respondent) v. Simpson (petitioner) (6/25/13)

170 Wn. App. 757 (2012)

Limitation of Actions—Minors—Tolling of Limitations Period During Minority—Exception for Medical Malpractice Actions—Validity—Access to Courts—Privileges and Immunities—Equal Protection

Whether RCW 4.16.190(2), which excepts medical malpractice actions from the provision tolling the statute of limitations for actions by minors during the period of minority, violates the right of access to courts and the privileges and immunities clause under article I, sections 10 and 12, of the Washington Constitution, and equal protection principles under the United States Constitution.

No. 87207-4, Schroeder (appellant) v. Weighall, M.D., et al. (respondents). (5/16/13)

Negligence—Duty—Instruction—Validity—Preservation for Review—Objection—Sufficiency—Law of the Case

Whether in an action against the city of Federal Way for wrongful death for not enforcing a protection order, the city failed to adequately object to a jury instruction on the duty of care on the basis of the public duty doctrine, precluding the city from raising the public duty doctrine on appeal from a judgment for the plaintiffs.

No. 87906-1, Washburn, et al. (respondents) v. City of Federal Way (petitioner). (6/25/13)

169 Wn. App. 588 (2012)

Open Government—Courts—Judicial Records—Unlawful Detainer—Redaction of Identifying Information—Private Interest—Sufficiency

Whether after settlement of an unlawful detainer action that did not result in the tenants’ eviction, the tenants’ interest in preserving their ability to obtain rental housing in the future justified the trial court in redacting the records of the unlawful detainer action to replace the tenants’ names with their initials.

No. 88036-1, v. Hundtofte, et al. (respondents) v. Encarnación, et al. (petitioners). (6/13/13)

169 Wn. App. 498 (2012)

Open Government—Public Disclosure—Exemptions—Other Statutory Exemptions—Privacy Act—Restriction on Disclosure of Law Enforcement Vehicle Video Camera Recordings—Scope

Whether the Washington Privacy Act’s prohibition on disclosure of police dashcam videos until final disposition of any litigation involving the recorded events permits the Seattle Police Department to delay disclosure under the Public Records Act for three years, the length of the statute of limitations on litigation.

No. 87271-6, Fisher Broadcasting-Seattle TV LLC d/b/a KOMO 4 (appellant) v. City of Seattle, et al. (respondents). (5/14/13)

Personal Restraint—First Degree Robbery—First Degree Kidnapping—Elevation of Degree Based on First Degree Robbery—Jury Instructions—Uncharged Alternative Means of Committing First Degree Robbery—Effect

Whether in a prosecution for first degree robbery and first degree kidnapping predicated on the charged robbery, it was reversible error as to both charges to instruct the jury on an uncharged alternative means of committing first degree robbery.

No. 86241-9, In re Pers. Restraint of Brockie, Benjamin Brockie (petitioner); State (respondent). (6/11/13)

Personal Restraint—Petition—Timeliness—Significant Change in Law—Retroactivity—Prosecutorial Misconduct—Racial Comments—Impropriety—Prejudice

Whether State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), is retroactively applicable to a previously final criminal judgment, and if so, whether a prosecutor’s statements concerning the defendant’s race constituted misconduct requiring reversal of the defendant’s aggravated first degree murder conviction.

No. 86585-0, Pers. Restraint Petition of Gentry, Jonathan Lee Gentry (petitioner); State (respondent). (6/25/13)

Personal Restraint—Petition—Timeliness—Vacation of Previously Final Judgment—Resentencing—Effect

Whether vacation of a personal restraint petitioner’s previously final judgment and sentence and entry of a new judgment and sentence after resentencing restarted the one-year limit on collateral challenge to the conviction.

No. 87501-4, In re Pers. Restraint of Adams, Devon Adams (petitioner); State (respondent). (5/7/13)

Taxation—Refund—Judicial Action—Exhaustion of Administrative Remedies—Necessity—Mandamus—Timeliness

Whether a taxpayer’s action for a refund of city natural gas utility taxes was barred because the taxpayer did not administratively appeal a notice of taxes due, and whether the trial court properly issued a writ of mandamus compelling the city to act on the taxpayer’s refund request.

No. 87964-8, Cost Mgmt. Servs. (respondent) v. City of Lakewood, et al. (petitioners). (5/16/13)

Torts—Conversion—Acts Constituting—Unauthorized Use of Property—Software Code

Whether the owner of computer software code may assert a claim of conversion against another for unauthorized use of the code.

No. 87555-3, Corbis Corp. (petitioner) v. Stone, et al. (respondents). (5/23/13)

Waters—Water Rights—Place of Use—Municipal Water Supply—Statutory Provisions—Validity—Due Process—Separation of Powers

Whether the Department of Ecology unconstitutionally applied the Municipal Water Law, RCW 90.03.330(3), to revive or expand Washington State University’s relinquished nonmunicipal groundwater rights when it allowed the university to withdraw all of the water allotted under its separate rights from any of its several well locations.

No. 88317-3, Cornelius, et al. (appellants) v. Wash. Dep’t of Ecology, et al. (respondents). (5/21/13)