Supreme Court Issues
* Cases Not Yet Set

• Adjoining Landowners—Encroachment—Injunction—Oppression Exception—Remedy—Boundary Adjustment
• Arbitration—Award—Review—Grounds for Disturbing Award—Facial Legal Error—Limitation of Actions—Applicability
• Arbitration—Mandatory Arbitration—Trial De Novo—Notice—Unilateral Withdrawal—After Successful Appeal of Adverse Judgment—Validity
• Attorney and Client—Compensation—Contingency Fees—Settlement of Action—Actual Settlement Amount—Interest—Prejudgment Interest—Tolling—Deposit of Claimed Amount With Court
• *Aviation—Products Liability—Limitation of Actions—Aircraft-Related Injury or Loss—Federal Statute of Repose—Applicability—“Manufacturer of Aircraft”—Type Certificate Holder
• Computers—Gambling—Internet Gambling—State Regulation—Validity—Commerce Clause
• Controlled Substances—Forfeitures—Attorney Fees—Substantially Prevailing Claimants—What Constitutes
• Costs—Attorney Fees—Minor Action for Damages—Settlement Offer—“All Claims”—Scope—Prevailing Party—Acceptance of Offer
• Courts of Limited Jurisdiction—Trial—Electronic Record—Portions Lost or Damaged—Significance or Materiality—Determination by Limited Jurisdiction Court—Standard of Review
• Criminal Law—Arrest—Detention for Questioning—Validity—Early Morning Visit to Suspected Drug House
• Criminal Law—Arrest—Warrantless Arrest—Private Premises—Subsequent Confession—Exclusionary Rule—State Constitution
• *Criminal Law—Discovery—DNA Sample—Validity as Search or Seizure—Probable Cause—Necessity
• Criminal Law—Domestic Violence—Interfering with Reporting—Charge—Sufficiency—Identification of Underlying Domestic Violence Offense—Document as a Whole
• Criminal Law—Domestic Violence—Protection Order—Violation—Status as Criminal Offense—What Constitutes
• Criminal Law—Duress—Instructions—Proposed Instructions—Refusal—Prejudice
• Criminal Law—First Degree Assault—Sentence—Outside Standard Range—Aggravating Circumstances—Severity of Victim’s Injuries
• Criminal Law—Former Jeopardy—Multiple Convictions—Merger or Dismissal—Validity of Merged or Dismissed Conviction
• Criminal Law—Former Jeopardy—Witnesses—Tampering—Unit of Prosecution
• Criminal Law—Homicide—Vehicular Homicide—Punishment—Sentence—Previous DUI Offenses—Proof
• Criminal Law—Intimidating Public Servant—Elements—Threat—Attempt to Influence Behavior—Proof—Sufficiency
• Criminal Law—Plea of Guilty—Waiver of Rights—Former Jeopardy
• Criminal Law—Plea of Guilty—Withdrawal—Misadvice About Deportation Consequences
• Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection
• Criminal Law—Punishment—Probation and Parole—Conditions—Violation—No New Criminal Violations—Acquittal of Charges—Effect
• Criminal Law—Punishment—Sentence—Conditions—Community Custody—Prohibitions—Possession or Use of Drug Paraphernalia—Preenforcement Challenge—Ripeness for Review—Vagueness
• Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process
• Criminal Law—Punishment—Sentence—Criminal History—“Wash Out” of Convictions—“Wash Out” Period—Classification—Anticipatory Offenses
• Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served
• Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Factors—Notice—Remand After Reversal of Nonexceptional Sentence
• Criminal Law—Punishment—Sentence—Outside Standard Range—Consecutive Sentencing—Aggravating Circumstances—Determination by Jury—Necessity
• Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—“Most Serious Offense”—What Constitutes—Deadly Weapon—Firearm Finding
• Criminal Law—Punishment—Special Drug Offender Sentencing Alternative—Revocation—Failure to “Obey All Laws”—Due Process—Notice—Law Allegedly Violated
• Criminal Law—Search and Seizure—Seizure—What Constitutes—Contact with Passenger of Parked Motor Vehicle—Request for Identification—Warrantless Search of Car Incident to Arrest—Validity
• Criminal Law—Searches and Seizures—Automobiles—Warrantless Search—Incident to Arrest of Occupant—Vehicle Locked in Presence of Officers
• Criminal Law—Searches and Seizures—Fruit of Unlawful Search or Seizure—Attenuation—Use of Unlawfully Seized Cell Phone to Arrange Encounter
• Criminal Law—Searches and Seizures—Warrantless Entry—Emergency—Domestic Violence—Validity
• Criminal Law—Sexual Offenses—Child Rape—Attempt—Underage Victim—Actual Existence—Necessity
• Criminal Law—Sexual Offenses—Rape—Evidence—Prior Sexual Behavior—Rape Shield Statute—Scope
• Criminal Law—Sexual Offenses—Registration of Sex Offenders—Failure to Register—Single or Alternative Means Offense—Time Lines—Residential Status
• Criminal Law—Sexual Offenses—Sexual Misconduct with Minor—School Employee and Student—“Student”—Qualifying Age
• Criminal Law—Trial—Misconduct of Prosecutor—Examination—Argument—Appeal to Racial Prejudice
• Criminal Law—Trial—Presence of Defendant—Right to Be Present—Scope—Jury Voir Dire—Dismissal of Potential Jurors After Email Communication Between Court and Counsel
• Criminal Law—Weapon—Enhanced Punishment—Firearm—Deadly Weapon Finding—Reversal of Firearm Enhancement—Resentencing—Remedy
• Criminal Law—Witnesses—Child Witness—Competency—Determination—Procedure—Due Process
• Criminal Law—Witnesses—Competency—Juveniles—Burden of Proof
• Divorce—Domestic Violence—Protection Order—Termination—Objection—Basis—Historical Abuse and Current Fear
• Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Adequacy of Alternative Remedy
• Equity—Restitution—Unjust Enrichment—What Constitutes
• Evidence—Opinion Evidence—Expert Testimony—Scientific Evidence—Acceptance in Scientific Community—Causal Relationship
• Gambling—Statutory Prohibitions—Definitional Provisions—“Gambling”—“Bookmaking”—Internet Website Providing for Nonbinding Betting
• Juveniles—Juvenile Justice—Jurisdiction of Adult Court—Automatic Transfer—Acquittal of Transfer Charge—Return to Juvenile Court for Remaining Charges—Defendant Currently Over Age of 21
• Landlord and Tenant—Mobile Homes—Assignment or Transfer of Lease—Contractual Limitation—Validity
• Landlord and Tenant—Unlawful Detainer—Jurisdictional Requirements—Notice—Statutory Provisions—Degree of Compliance
• Medical Treatment—Hospitals—Certificate of Need—Ambulatory Surgical Facilities—Determination of Need—Department of Health Formula—Validity
• Medical Treatment—Malpractice—Notice of Claim—Statutory Requirement—Validity—Equal Protection
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Petition—Initial Evaluation—Polygraph Examination
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Evidence—Potential Treatment Available
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Discovery—State Expert Reports—Offenders Found Not to be Sexually Violent Predators
• *Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Evidence—Potential Treatment Available
• Municipal Corporations—Waters—Public Water Supply—Operation and Management—Local Initiatives—Validity
• *Open Government—Criminal Law—Trial—Public Access—Preservation Testimony
• Open Government—Public Disclosure—“Agency”—What Constitutes—Superior Court
• Open Government—Public Disclosure—Financial Institutions—Protection of Nonpublic Information—Federal Statutes—Preemption of State Law
• Open Government—Public Disclosure—Public Records—What Constitutes—E-Mail—Associated Metadata
• Partnership—Lease of Assets—Lessee’s Breach of Obligation to Third Party—Liability of Partnership—Unjust Enrichment
• Partnership—Limited Liability Company—Merger—Dissenting Member’s Interest—Tender of Payment—Timeliness
• Pensions—Public Employment—Eligibility—Employees of Nonprofit Corporation Affiliated with Governmental Agency
• Property—State—Department of Transportation—Surplus Property Program—Sale of Property—Failure to Notify Abutting Property Owners—Ultra Vires Act—Bona Fide Purchaser
• Public Employment—Civil Service—Commission—Judicial Review—Timeliness—Commencement of Period—Ruling on Reconsideration—Notice of Appeal—Service—Sufficiency
• Schools—Special Education—Funding—Sufficiency—Constitutional Sufficiency—Funding Sources—Basic Education Allocation
• Schools—Students—Attendance—Truancy—Initial Hearing—Right to Counsel
• Statutes—Amendment—Retroactivity—Separation of Powers—Due Process
• Torts—Immunity—Communication to Government Agency—“Person”—State Agencies
• Torts—Juveniles—Loss of Parental Consortium—Feasibility of Joinder With Parents’ Personal Injury Action—Infeasibility—No Guardian ad Litem Representing Child
• *Vendor and Purchaser—Fraud—Home Buyer—Economic Loss—Applicability
• *Vendor and Purchaser—Warranties—Habitability—Applicability—Subsequent Homeowners
• Weapons—Possession—By Felon—Prior Conviction—Class B Felony—Reclassification as Class A Felony—Ex Post Facto Law
• Witness—Fact Witness—Nonparty Treating Physician—Ex Parte Contact by Defense Counsel—What Constitutes—Provision of Court Records and Attorney Notes Prior to Testifying

Adjoining Landowners—Encroachment—Injunction—Oppression Exception—Remedy—Boundary Adjustment

Whether, in an action to eject an adjoining landowner who mistakenly built improvements on the plaintiff’s property, the trial court properly quieted title in the adjoining landowner and ordered him to pay the plaintiff for a boundary adjustment.

No. 82326-0, Proctor (petitioner) v. Huntington (respondents).

146 Wn. App. 836 (2008)

Arbitration—Award—Review—Grounds for Disturbing Award—Facial Legal Error—Limitation of Actions—Applicability

Whether the superior court may vacate a private arbitration award for legal error appearing on the face of the award, and if so, whether the arbitration panel in this case committed facial error in dismissing claims under the statute of limitations.

No. 82311-1, Broom (respondents) v. Morgan Stanley DW Inc. (petitioners).

Arbitration—Mandatory Arbitration—Trial De Novo—Notice—Unilateral Withdrawal—After Successful Appeal of Adverse Judgment—Validity

Whether a personal injury defendant who requested a trial de novo following arbitration, failed to improve his position at trial, and successfully appealed the trial court judgment, could withdraw his request for trial de novo before a second trial and have judgment entered on the arbitration award.

No. 82409-6, Hudson (petitioner) v. Hapner (respondent).

146 Wn. App. 280 (2008)

Attorney and Client—Compensation—Contingency Fees—Settlement of Action—Actual Settlement Amount—Interest—Prejudgment Interest—Tolling—Deposit of Claimed Amount With Court

Whether, in a dispute over attorney fees owed by a former client, the trial court erroneously awarded the former attorney prejudgment interest even though the former client had deposited the amount of claimed fees in the trial court registry, and whether on appeal the Court of Appeals erroneously altered the settlement amount on which the former attorney’s contingency fee was based.

No. 82950-1, Forbes (petitioner) v. Schultz (respondent).

148 Wn. App. 273 (2009)

*Aviation—Products Liability—Limitation of Actions—Aircraft-Related Injury or Loss—Federal Statute of Repose—Applicability—“Manufacturer of Aircraft”—Type Certificate Holder

Whether the current holder of a aircraft type certificate issued by the Federal Aviation Administration is a “manufacturer” of the aircraft under the federal General Aviation Revitalization Act of 1994, entitling the holder to assert the act’s statute of repose in defense to a product liability action.

No. 83030-4, Burton (respondent) v. Twin Commander Aircraft LLC (petitioner).

148 Wn. App. 606 (2009)

Computers—Gambling—Internet Gambling—State Regulation—Validity—Commerce Clause

Whether a 2006 amendment to RCW 9.46.240 that effectively banned Internet gambling in Washington violates the commerce clause of the United States Constitution.

No. 83040-1, Rousso (petitioner) v. State (respondent).

149 Wn. App. 344 (2009)

Controlled Substances—Forfeitures—Attorney Fees—Substantially Prevailing Claimants—What Constitutes

Whether the claimant in an action to recover property seized in a controlled substances investigation “substantially prevailed,” and thus was entitled to an award of attorney fees, even though she recovered in value less than one-quarter of the assets she sought.

No. 82531-9, Guillen, City of Sunnyside (respondents) v. Contreras (petitioner).

147 Wn. App. 326 (2008)

Costs—Attorney Fees—Minor Action for Damages—Settlement Offer—“All Claims”—Scope—Prevailing Party—Acceptance of Offer

Whether an offer by a defendant to settle “all claims” in a minor action for damages included attorney fees, thus precluding the plaintiff who accepted the offer from seeking additional sums as attorney fees when the settlement was reduced to judgment, and if not, whether the plaintiff was a “prevailing party” entitled to attorney fees.

No. 82659-5, McGuire (respondent) v. Bates (petitioner).

147 Wn. App. 751 (2008)

Courts of Limited Jurisdiction—Trial—Electronic Record—Portions Lost or Damaged—Significance or Materiality—Determination by Limited Jurisdiction Court—Standard of Review

Whether a district court decision on whether a significant or material portion of the electronic record of a district court trial has been lost or damaged, thus entitling an appellant to a new trial pursuant to RALJ 5.4, is reviewed by the superior court de novo or only for abuse of discretion.

No. 82671-4, State (respondent) v. Osman (petitioner).

147 Wn. App. 867 (2008)

Criminal Law—Arrest—Detention for Questioning—Validity—Early Morning Visit to Suspected Drug House

Whether police lawfully stopped a motorist for investigation after observing him in the early morning briefly visit a house where police suspected drugs were being sold based on neighbor complaints.

No. 82852-1, State (respondent) v. Doughty (petitioner).

148 Wn. App. 585 (2009)

Criminal Law—Arrest—Warrantless Arrest—Private Premises—Subsequent Confession—Exclusionary Rule—State Constitution

Whether under the Washington Constitution a criminal defendant’s confession, made at the police station after the defendant waived his right to remain silent, should have been suppressed because the defendant was arrested in his home on probable cause but without a warrant.

No. 82491-6, State (respondent) v. Eserjose (petitioner).

*Criminal Law—Discovery—DNA Sample—Validity as Search or Seizure—Probable Cause—Necessity

Whether a discovery order under CrR 4.7(b)(2)(vi) requiring a criminal defendant to supply a DNA sample had to meet constitutional requirements for the issuance of a warrant, and if so, whether those requirements were not met because the trial court failed to expressly find probable cause.

No. 83156-4, State (respondent) v. Garcia-Salgado (petitioner).

149 Wn. App. 702 (2009)

Criminal Law—Domestic Violence—Interfering with Reporting—Charge—Sufficiency—Identification of Underlying Domestic Violence Offense—Document as a Whole

Whether an information that charged the offense of interfering with the reporting of domestic violence without specifying the predicate domestic violence crime was constitutionally sufficient if the predicate crime could be derived from other counts charged in the information.

No. 82094-5, State (respondent) v. Nonog (petitioner).

145 Wn. App. 802 (2008)

Criminal Law—Domestic Violence—Protection Order—Violation—Status as Criminal Offense—What Constitutes

Whether under former RCW 26.50.110 (2006), violation of a domestic violence no-contact order constituted a criminal offense only if the violation was one for which arrest was required under RCW 10.31.100(a) or (b).

No. 81921-1 (consol w/81940-8), State (respondent) v. Bunker (petitioner); State (respondent) v. Williams (respondent); State (petitioner) v. Vincent (respondent).

144 Wn. App. 407 (2008) (Bunker & Williams)

Criminal Law—Duress—Instructions—Proposed Instructions—Refusal—Prejudice

Whether in a criminal prosecution the trial court erred in failing to give the defendant’s requested duress instruction, and if so, whether the error was automatically reversible.

No. 82358-8, State (respondent) v. Harvill (petitioner).

Criminal Law—First Degree Assault—Sentence—Outside Standard Range—Aggravating Circumstances—Severity of Victim’s Injuries

Whether a defendant convicted of first degree assault based on the infliction of “great bodily harm” was properly given an exceptional sentence based on the infliction of injuries that “substantially exceed the level of bodily harm necessary to satisfy the elements of the offense.” See RCW 9.94A.535(3)(y).

No. 81650-6, State (respondent) v. Stubbs (petitioner).

144 Wn. App. 644 (2008)

Criminal Law—Former Jeopardy—Multiple Convictions—Merger or Dismissal—Validity of Merged or Dismissed Conviction

Whether a trial court violates double jeopardy principles when it merges or dismisses one of two criminal convictions on double jeopardy grounds with the condition that the conviction may be reinstated if the companion conviction is reversed or vacated.

No. 81626-3 (consol. w/82336-7), State (respondent) v. Turner (petitioner); State (respondent) v. Faagata (petitioner).

144 Wn. App. 279 (2008) (Turner)
147 Wn. App. 236 (2008) (Faagata)

Criminal Law—Former Jeopardy—Witnesses—Tampering—Unit of Prosecution

Whether several telephone calls to a witness allegedly asking her to absent herself from a pending criminal trial or to testify falsely constituted a single unit of prosecution of the crime of witness tempering, rendering the defendant’s multiple convictions for that crime contrary to double jeopardy principles.

No. 82558-1, State (respondent) v. Hall (petitioner).

147 Wn. App. 485 (2008) — Published in Part

Criminal Law—Homicide—Vehicular Homicide—Punishment—Sentence—Previous DUI Offenses—Proof

Whether in a prosecution for vehicular homicide the State sufficiently proved prior DUI convictions for purposes of a sentence enhancement by providing a certified copy of the defendant’s driver’s license abstract, an uncertified copy of an online case history, and a copy of a district court docket, and if not, whether the State should be allowed to present additional evidence at resentencing.

No. 82868-7, In re Pers. Restraint of Adolph, Vincent R. Adolph (petitioner); State (respondent).

Criminal Law—Intimidating Public Servant—Elements—Threat—Attempt to Influence Behavior—Proof—Sufficiency

Whether the defendant intended to influence an arresting officer’s actions, and therefore committed the crime of intimidating a public servant, when he made threatening remarks to the officer following his arrest.

No. 82855-5, State (respondent) v. Montano (petitioner).

147 Wn. App. 543 (2008)

Criminal Law—Plea of Guilty—Waiver of Rights—Former Jeopardy

Whether the defendant waived his double jeopardy challenge to multiple convictions by pleading guilty to the crimes.

No. 82619-6, In re Pers. Restraint of Francis, Sean D. Francis (petitioner); State (respondent).

Criminal Law—Plea of Guilty—Withdrawal—Misadvice About Deportation Consequences

Whether a non-citizen defendant who pleaded guilty to a criminal charge should be allowed to withdraw his plea because his attorney misadvised him about the potential deportation consequences of his conviction.

No. 82175-5, State (respondent) v. Sandoval (petitioner); In re Pers. Restraint of Sandoval, Valentin Sandoval (petitioner); State (respondent).

Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection

Whether Washington’s lethal injection procedure for offenders sentenced to death constitutes cruel and unusual punishment.

No. 83474-1, Stenson, Brown & Gentry (appellants) v. Vail (respondent).

Criminal Law—Punishment—Probation and Parole—Conditions—Violation—No New Criminal Violations—Acquittal of Charges—Effect

Whether acquittal of an offender on a criminal charge stemming from conduct committed while on probation precludes a court from subsequently finding that the same conduct constituted a “criminal violation” justifying the revocation of probation.

No. 82476-2, City of Aberdeen (respondent) v. Regan (petitioner).

147 Wn. App. 538 (2008)

Criminal Law—Punishment—Sentence—Conditions—Community Custody—Prohibitions—Possession or Use of Drug Paraphernalia—Preenforcement Challenge—Ripeness for Review—Vagueness

Whether offenders still in prison for drug offenses may challenge a community custody condition prohibiting possession of “hand held electronic scheduling and data storage devices,” and if so, whether the prohibition is unconstitutionally vague.

No. 82731-1, State (respondent) v. Eduardo Sanchez; Isidro Valencia Sanchez (petitioners).

148 Wn. App. 302 (2009)

Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process

Whether the trial court violated an offender’s due process rights when it ordered him to report to jail and serve a period of incarceration if he failed to pay his legal financial obligations by a certain future date.

No. 82333-2, State (respondent) v. Nason (petitioner) (see also Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served).

146 Wn. App. 744 (2008)

Criminal Law—Punishment—Sentence—Criminal History—“Wash Out” of Convictions—“Wash Out” Period—Classification—Anticipatory Offenses

Whether RCW 9.94A.525(4), which directs that prior anticipatory felonies be scored the same as completed felonies in calculating a defendant’s offender score, requires a prior conviction for attempted second degree assault, a class C felony, to be treated as a class B felony (the class of the completed crime) for purposes of determining whether the conviction “washed out” of the defendant’s criminal history.

No. 82995-1, State (respondent) v. Moeurn (petitioner).

Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served

Whether an offender jailed under RCW 9.94A.634 for failing to pay legal financial obligations is entitled to have his jail time credited against his outstanding financial obligations.

No. 82333-2, State (respondent) v. Nason (petitioner) (see also Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process).

146 Wn. App. 744 (2008)

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Factors—Notice—Remand After Reversal of Nonexceptional Sentence

Whether, on remand after vacation of a life sentence without the possibility of early release, the State may seek an exceptional sentence without having provided notice under RCW 9.94A.537(2).

No. 82029-5, State (respondent) v. Mutch (petitioner).

Criminal Law—Punishment—Sentence—Outside Standard Range—Consecutive Sentencing—Aggravating Circumstances—Determination by Jury—Necessity

Whether Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), requires a jury to find aggravating factors supporting an exceptional sentence consisting of consecutive standard range prison terms. See Oregon v. Ice, __ U.S. __, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009).

No. 81393-1, State (petitioner) v. Vance (respondent).

142 Wn. App. 398 (2008)

Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—“Most Serious Offense”—What Constitutes—Deadly Weapon—Firearm Finding

Whether a finding in a prior criminal conviction that the defendant was armed with a “firearm” rendered the conviction a “most serious offense” under the Persistent Offender Accountability Act, which makes any felony a “most serious offense” if it was accompanied by a “deadly weapon” verdict. See former RCW 9.94A.030(23) (1996).

No. 82567-0, In re Pers. Restraint of Cruze, Schawn Cruze (petitioner); State (respondent).

Criminal Law—Punishment—Special Drug Offender Sentencing Alternative—Revocation—Failure to “Obey All Laws”—Due Process—Notice—Law Allegedly Violated

Whether revocation of an alternative sentence for a drug offender for failure to “obey all laws” violated due process because the offender was not given adequate notice of the law he was accused of failing to obey.

No. 82329-4, In re Pers. Restraint of Blackburn, Douglas Blackburn (petitioner); State (respondent).

Criminal Law—Search and Seizure—Seizure—What Constitutes—Contact with Passenger of Parked Motor Vehicle—Request for Identification—Warrantless Search of Car Incident to Arrest—Validity

Whether police unlawfully seized the occupant of a car parked in a public place by requesting her identification, and whether police unlawfully searched the car incident to the occupant’s arrest.

No. 82600-5, State (respondent) v. Afana (petitioner).

147 Wn. App. 843 (2008)

Criminal Law—Searches and Seizures—Automobiles—Warrantless Search—Incident to Arrest of Occupant—Vehicle Locked in Presence of Officers

Whether police lawfully searched a car incident to the driver’s arrest when the arrest took place after the driver got out of the car and locked it.

No. 82210-7, State (respondent) v. Adams (petitioner).

146 Wn. App. 595 (2008)

Criminal Law—Searches and Seizures—Fruit of Unlawful Search or Seizure—Attenuation—Use of Unlawfully Seized Cell Phone to Arrange Encounter

Whether, in a prosecution for possession of cocaine, drugs found near the defendant during an encounter with police should have been suppressed because the police arranged the meeting using an illegally seized cell phone.

No. 82219-1, State (respondent) v. Ibarra-Cizneros (petitioner).

145 Wn. App. 516 (2008)

Criminal Law—Searches and Seizures—Warrantless Entry—Emergency—Domestic Violence—Validity

Whether police officers’ warrantless entry into an apartment to investigate a domestic violence call was justified by the emergency exception to the warrant requirement.

No. 82238-7, State (respondent) v. Schultz, aka Peterson, aka Robertson (petitioner).

Criminal Law—Sexual Offenses—Child Rape—Attempt—Underage Victim—Actual Existence—Necessity

Whether the defendant was properly convicted of attempted child rape when the purported victim was a police officer posing as a child on the Internet.

No. 82649-8, State (respondent) v. Patel (petitioner).

Criminal Law—Sexual Offenses—Rape—Evidence—Prior Sexual Behavior—Rape Shield Statute—Scope

Whether the rape shield statute precluded the defendant in a rape prosecution from testifying that the complaining witness had consensual sex with two other men at the same party where she was allegedly raped.

No. 82613-7, State (respondent) v. Jones (petitioner).

Criminal Law—Sexual Offenses—Registration of Sex Offenders—Failure to Register—Single or Alternative Means Offense—Time Lines—Residential Status

Whether the former sex offender registration statute established alternative means of committing the crime of failure to report to the county sheriff by specifying different reporting time lines for change of residence within a county, change of residence to a different county, and ceasing to have a fixed residence. See former RCW 9A.44.130 (2004).

No. 82089-9, State (respondent) v. Peterson (petitioner).

145 Wn. App. 672 (2008)

Criminal Law—Sexual Offenses—Sexual Misconduct with Minor—School Employee and Student—“Student”—Qualifying Age

Whether a high school employee who had sexual intercourse with an 18-year-old student committed the crime of sexual misconduct with a minor under RCW 9A.44.093(1)(b), which prohibits sexual intercourse between a school employee and a registered student at least 16 years old.

No. 82744-3, State (petitioner) v. Hirschfelder (respondent).

148 Wn. App. 328 (2009)

Criminal Law—Trial—Misconduct of Prosecutor—Examination—Argument—Appeal to Racial Prejudice

Whether the prosecutor in a criminal trial committed reversible misconduct by asking an African-American witness about her interactions with “po-leese” and by asserting in closing argument that “black folk don’t testify against black folk.”

No. 82736-2, State (respondent) v. Monday (petitioner).

Criminal Law—Trial—Presence of Defendant—Right to Be Present—Scope—Jury Voir Dire—Dismissal of Potential Jurors After Email Communication Between Court and Counsel

Whether the trial court in a criminal prosecution violated the defendant’s constitutional right to be present when it dismissed some potential jurors outside the defendant’s presence after conferring with defense counsel and the State by email.

No. 82665-0, State (petitioner) v. Irby (respondent).

Criminal Law—Weapon—Enhanced Punishment—Firearm—Deadly Weapon Finding—Reversal of Firearm Enhancement—Resentencing—Remedy

Whether after reversal of a firearm enhancement in light of State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008), the trial court can impose a deadly weapon enhancement even though the only weapon involved in the crime was a firearm. See RCW 9.94A.533(4).

No. 82699-4, State (respondent) v. Bainard (petitioner).

148 Wn. App. 93 (2009)

Criminal Law—Witnesses—Child Witness—Competency—Determination—Procedure—Due Process

Whether the trial court violated a criminal defendant’s due process rights at a hearing concerning the competency of a child witness by declining to require the child’s presence for questioning.

No. 83415-6, State (respondent) v. Brousseau (appellant).

Criminal Law—Witnesses—Competency—Juveniles—Burden of Proof

Whether in a prosecution for third degree rape the burden of proving that the child victim was competent to testify rested on the State as the party that called the child as a witness.

No. 83177-7, State (petitioner) v. Webb (respondent).

149 Wn. App. 912 (2009)

Divorce—Domestic Violence—Protection Order—Termination—Objection—Basis—Historical Abuse and Current Fear

Whether the trial court should have granted a petition to terminate an eight-year-old domestic violence protection order that prevented the petitioner from obtaining a security clearance necessary to transfer to a different job within the military.

No. 82283-2, In re Marriage of Freeman, Robin Freeman (petitioner); Robert Freeman (respondent).

Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Adequacy of Alternative Remedy

Whether the Washington Industrial Safety and Health Act (particularly RCW 49.17.160 and accompanying regulations) or the statutes prohibiting drunk driving (particularly RCW 9.91.020, RCW 46.61.502, and RCW 46.61.504) adequately promote the public policy of protecting the public from drunk drivers so as to preclude an action by a terminated employee for wrongful discharge in violation of public policy based on a claim that the employee was discharged after reporting a management employee who drove a company vehicle while intoxicated.

No. 83124-6, Cudney (plaintiff) v. Alsco, Inc. (defendant).

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

Equity—Restitution—Unjust Enrichment—What Constitutes

Whether teachers who are not members of the Washington Education Association can sue in unjust enrichment to recover non-member agency shop fees that were improperly spent on political activities even though the association had offered the teachers rebates of fees expended on political activities.

No. 82615-3, Davenport (respondent) v. Wash. Educ. Ass’n (petitioner).

147 Wn. App. 704 (2008)

Evidence—Opinion Evidence—Expert Testimony—Scientific Evidence—Acceptance in Scientific Community—Causal Relationship

Whether, pursuant to Fry v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial court in a personal injury action properly excluded expert testimony that exposure to organic solvents during pregnancy can cause neuronal birth defects.

No. 82264-6, Anderson (appellant) v. Akzo Nobel Coatings, Inc. (respondent).

Gambling—Statutory Prohibitions—Definitional Provisions—“Gambling”—“Bookmaking”—Internet Website Providing for Nonbinding Betting

Whether participants in an internet betting site, who are not obligated to pay off their losing bets but whose “honor ratings” are lowered when they refuse to pay, engage in unlawful “gambling” under the Washington gambling act, chapter 9.46 RCW, and whether the operator of the site engages in unlawful “bookmaking” even though it takes no position on the bets.

No. 82845-8, Internet Cmty. & Entm’t Corp., d/b/a Betcha.com (respondents) v. State (petitioners).

148 Wn. App. 795 (2009)

Juveniles—Juvenile Justice—Jurisdiction of Adult Court—Automatic Transfer—Acquittal of Transfer Charge—Return to Juvenile Court for Remaining Charges—Defendant Currently Over Age of 21

Whether a defendant sentenced to an adult conviction for fourth degree assault after the trial court erroneously denied his request to transfer his case to juvenile court is entitled to a new declination hearing in juvenile court even though the defendant is now over the age of 21 and has completed his sentence.

No. 81600-0, In re Pers. Restraint of Manro, Montgomery Manro (petitioner); State (respondent).

Landlord and Tenant—Mobile Homes—Assignment or Transfer of Lease—Contractual Limitation—Validity

Whether a provision in a 25-year mobile home lease that reduces the lease to a term of one year if it is assigned violated the requirement of the Manufactured/Mobile Home Landlord-Tenant Act that mobile home leases be assignable.

No. 82574-2, Little Mtn. Estates Tenants Ass’n (respondents) v. Little Mtn. Estates MHC LLC (petitioners).

146 Wn. App. 546 (2008)

Landlord and Tenant—Unlawful Detainer—Jurisdictional Requirements—Notice—Statutory Provisions—Degree of Compliance

Whether the trial court in an unlawful detainer action lacked subject matter jurisdiction because the landlord’s statutory notice to the tenants failed to inform the tenants they could respond by mail or facsimile. See RCW 59.18.365.

No. 81813-4, Torkild (respondent) v. Johnston (petitioner).

Medical Treatment—Hospitals—Certificate of Need—Ambulatory Surgical Facilities—Determination of Need—Department of Health Formula—Validity

Whether the Department of Health employed a flawed methodology to determine the need for additional ambulatory surgical facilities in Bellevue by including surgical procedures exempt from the certificate of need requirement in calculating demand but excluding facilities where exempt procedures are performed in calculating existing capacity.

No. 82728-1, Overlake Hosp. Ass’n & Overlake Hosp. Med. Ctr., et al. (respondents) v. Dep’t of Health of the State of Wash., et al. (petitioners).

148 Wn. App. 1 (2008)

Medical Treatment—Malpractice—Notice of Claim—Statutory Requirement—Validity—Equal Protection

Whether RCW 7.70.100(1), which requires medical malpractice plaintiffs to notify the defendant of the claim 90 days before filing suit, violates equal protection principles.

No. 82142-9, Waples (petitioner) v. Yi (respondent).

146 Wn. App. 54 (2008)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Petition—Initial Evaluation—Polygraph Examination

Whether under chapter 71.09 RCW a person alleged to be a sexually violent predator may be required to submit to a polygraph examination as part of his initial evaluation.

No. 82907-1, In re Det. of Hawkins, Jake Hawkins (petitioner); State (respondent).

Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Evidence—Potential Treatment Available

Whether at trial on a petition to commit a sex offender as a sexually violent predator the State may present evidence of the treatment available to the offender should he be committed.

No. 82568-8, In re Det. of West, Gale West (petitioner); State (respondent) (see also Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Discovery—State Expert Reports—Offenders Found Not to be Sexually Violent Predators).

Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Discovery—State Expert Reports—Offenders Found Not to be Sexually Violent Predators

Whether a sex offender in a sexually violent predator proceeding is entitled to discovery of past reports by the State’s expert on offenders that the expert found not to be sexually violent predators.

No. 82568-8, In re Det. of West, Gale West (petitioner); State (respondent) (see also Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Evidence—Potential Treatment Available).

*Mental Health—Involuntary Commitment—Sexually Violent Predators—Trial—Evidence—Potential Treatment Available

Whether at trial on a petition to commit a sex offender as a sexually violent predator the State may present evidence of the treatment available to the offender should he be committed.

No. 83023-1, In re Det. of Post; Charles W. Post (respondent); State (petitioner).

145 Wn. App. 728 (2008)

Municipal Corporations—Waters—Public Water Supply—Operation and Management—Local Initiatives—Validity

Whether proposed local initiatives seeking to prohibit the city of Port Angeles from adding fluoride to its public water system are within the local initiative power.

No. 82225-5, City of Port Angeles (respondent) v. Our Water-Our Choice (petitioner).

145 Wn. App. 869 (2008)

*Open Government—Criminal Law—Trial—Public Access—Preservation Testimony

Whether the trial judge in a pending criminal prosecution violated article I, section 10 of the Washington Constitution (requiring justice to be administered openly) when, while presiding over the taking of a witness’s testimony for the purpose of preserving the testimony for trial, the judge closed the courtroom to the press and public without following the guidelines set forth in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).

No. 83645-1, Tacoma News, Inc. d/b/a The News Tribune (petitioner) v. The Honorable James D. Cayce (respondent).

Open Government—Public Disclosure—“Agency”—What Constitutes—Superior Court

Whether a superior court is an “agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.

No. 82229-8, Yakima County (respondent) v. The Yakima Herald Republic (appellant).

Open Government—Public Disclosure—Financial Institutions—Protection of Nonpublic Information—Federal Statutes—Preemption of State Law

Whether the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, prohibits the state Attorney General from disclosing under the state Public Records Act certain loan files acquired by the Attorney General in a civil action against a financial institution.

No. 82690-1, Ameriquest Mortgage Co. (respondent) v. Wash. State Office of the Att’y General (petitioner).

148 Wn. App. 145 (2009)

Open Government—Public Disclosure—Public Records—What Constitutes—E-Mail—Associated Metadata

Whether metadata associated with agency e-mail is a public record disclosable under the Public Records Act.

No. 82397-9, O’Neill (respondent) v. City of Shoreline (petitioner).

145 Wn. App. 913 (2008)

Partnership—Lease of Assets—Lessee’s Breach of Obligation to Third Party—Liability of Partnership—Unjust Enrichment

Whether a partnership that leased cattle to a dairy farm under an agreement in which the farm retained all profits from milk production was unjustly enriched when the farm breached its obligation to pay for feed hay supplied by a third party.

No. 82827-0, Washington Trust Bank (respondent) v. River Gorge (petitioners).

Partnership—Limited Liability Company—Merger—Dissenting Member’s Interest—Tender of Payment—Timeliness

Whether a limited liability company that agreed to merge with another company violated the Washington Limited Liability Company Act by failing to tender payment for a dissenting member’s interest within 30 days after the member’s initial demand for payment.

No. 82687-1, Humphrey Indus., Ltd. (petitioner) v. Clay St. Assocs., LLC, et al. (respondents).

Pensions—Public Employment—Eligibility—Employees of Nonprofit Corporation Affiliated with Governmental Agency

Whether employees of King County’s four nonprofit public defender corporations are public employees eligible for membership in the Public Employee Retirement System.

No. 82842-3, Dolan (respondent) v. King County (petitioner).

Property—State—Department of Transportation—Surplus Property Program—Sale of Property—Failure to Notify Abutting Property Owners—Ultra Vires Act—Bona Fide Purchaser

Whether the Department of Transportation’s sale of surplus property was ultra vires and void for failure to provide statutorily required notice of the proposed sale to all abutting property owners, and if so, whether the buyer’s deed is nonetheless valid because the buyer was a bona fide purchaser.

No. 82212-3, South Tacoma Way, LLC (respondent) v. State (defendant) and Sustainable Urban Dev. #1, LLC (petitioner).

146 Wn. App. 639 (2008)

Public Employment—Civil Service—Commission—Judicial Review—Timeliness—Commencement of Period—Ruling on Reconsideration—Notice of Appeal—Service—Sufficiency

Whether the 30-day period for appealing a city civil service commission’s decision upholding a police officer’s termination was tolled pending the officer’s motion for reconsideration of the commission’s decision, and whether the officer properly served the commission with his notice of appeal by leaving a copy with the city clerk.

No. 82306-5, Skinner (respondent) v. Civil Serv. Comm’n of City of Medina (petitioner).

146 Wn. App. 171 (2008)

Schools—Special Education—Funding—Sufficiency—Constitutional Sufficiency—Funding Sources—Basic Education Allocation

Whether Washington’s special education funding mechanisms unconstitutionally underfund special education, and whether basic education funds can be applied to meet the State’s obligation to fully fund special education.

No. 82961-6, Sch. Dists. Alliance for Adequate Funding of Spec. Educ. (petitioners) v. State (respondents).

149 Wn. App. 241 (2009)

Schools—Students—Attendance—Truancy—Initial Hearing—Right to Counsel

Whether a juvenile has a constitutional right to appointed counsel at the initial hearing on a truancy petition filed under chapter 28.225 RCW.

No. 83024-0, Bellevue Sch. Dist. (petitioner) v. E.S. (respondent).

148 Wn. App. 205 (2009)

Statutes—Amendment—Retroactivity—Separation of Powers—Due Process

Whether amendments to chapter 90.03 RCW modifying the definition of “municipal water supplier” and providing that any party meeting the amended definition had a retroactive right to any water right based on the “pumps and pipes” measure violates the separation of powers doctrine and due process principles.

No. 81809-6, Lummi Indian Nation (respondents/cross-appellants) v. State (appellants/cross-appellants).

Torts—Immunity—Communication to Government Agency—“Person”—State Agencies

Whether RCW 4.24.510, which protects any “person” from civil liability for communicating a complaint to a government agency on a matter of concern to that agency, immunizes the Department of Labor and Industries from liability for reporting to police the plaintiff’s claimed violation of a no trespass order.

No. 81931-9, Segaline (petitioner) v. Dep’t of Labor & Indus. (respondent).

144 Wn. App. 312 (2008)

Torts—Juveniles—Loss of Parental Consortium—Feasibility of Joinder With Parents’ Personal Injury Action—Infeasibility—No Guardian ad Litem Representing Child

Whether it was infeasible to join a loss of parental consortium action with the parents’ earlier personal injury action because the children were not then represented by a guardian ad litem, thus allowing the children’s action to proceed independently of the parents’ action.

No. 82474-6, Kelley (respondent) v. Centennial Contractors (petitioner).

147 Wn. App. 290 (2008)

*Vendor and Purchaser—Fraud—Home Buyer—Economic Loss—Applicability

Whether the economic loss rule bars tort claims for intentional misrepresentation in the sale of residential real property.

No. 82812-1, Carlile, et al. (petitioners) v. Harbour Homes, Inc., f/k/a Geonerco, Inc. (respondent) (see also Vendor and Purchaser—Warranties—Habitability—Applicability—Subsequent Homeowners). (STIPULATED MOTION TO DISMISS APPEAL 9/30/09)

147 Wn. App. 193 (2008)

*Vendor and Purchaser—Warranties—Habitability—Applicability—Subsequent Homeowners

Whether original homeowners may assign to subsequent homeowners their claims against a builder for breach of the implied warranty of habitability.

No. 82812-1, Carlile, et al. (petitioners) v. Harbour Homes, Inc., f/k/a Geonerco, Inc. (respondent) (see also Vendor and Purchaser—Fraud—Home Buyer—Economic Loss—Applicability). (STIPULATED MOTION TO DISMISS APPEAL 9/30/09)

147 Wn. App. 193 (2008)

Weapons—Possession—By Felon—Prior Conviction—Class B Felony—Reclassification as Class A Felony—Ex Post Facto Law

Whether a person previously convicted of vehicular homicide when that crime was a class B felony may be prohibited from possessing firearms based on the current classification of the crime as a class A felony.

No. 82431-2, Rivard (petitioner) v. State (respondent).

146 Wn. App. 891 (2008)

Witness—Fact Witness—Nonparty Treating Physician—Ex Parte Contact by Defense Counsel—What Constitutes—Provision of Court Records and Attorney Notes Prior to Testifying

Whether in a medical malpractice action defense counsel’s transmittal of court documents and attorney notes to the plaintiff’s nonparty treating physician prior to the physician’s testimony for the defense constituted improper ex parte contact.

No. 83038-0, Smith (petitioners) v. Orthopedics Int’l, Ltd., P.S. (respondents).

149 Wn. App. 337 (2009)