Washington State Courts - Supreme Court Issue Summaries
Supreme Court Issues
September Term 2001
Constitutional Law-Right to Privacy-Interests ProtectedWhether, based on a constitutional right not to procreate, a former husband should be awarded pre-embryos to which he provided genetic material, where the former wife did not contribute genetic material but was an intended parent under procreation agreements. No. 70413-9, David Litowitz (respondent) v. Becky Litowitz (petitioner). (9/11/01) 102 Wn. App. 934 (2000) Top
Consumer Protection-Title Insurance-Insurers Duty to DiscloseWhether a title insurance company can violate the Consumer Protection Act by failing to disclose to a lender that a parcel of land designated to provide security for a loan has never been legally separated from a larger tract. No. 70268-3, Barstad (respondent) v. Pacific NW Title Ins. Co., Inc. (petitioner). (10/23/01) Top
Criminal Law-Criminal Trespass-Housing Authority Property-Exclusion Orders-ValidityWhether a defendant charged with criminal trespass for entering a housing authority complex in violation of an exclusion order may challenge the constitutional validity of that order, and if so, whether the orders in this case, and the housing authority policy underlying them, were valid. No. 67451-5, City of Bremerton (respondent) v. Widell (petitioner). (Rehearing 11/27/01) Top
Criminal Law-Deadly Weapon Sentence Enhancement-Accessibility of WeaponWhether a gun was "easily accessible" and "readily available for use" for purposes of the deadly weapon sentence enhancement statute, RCW 9.94A.125, where the defendant was at the bottom of basement stairs when police entered his home with a warrant, but was handcuffed upstairs when they found the gun hanging on the wall near the bottom of the stairs. No. 70710-3, State (respondent) v. Schelin (petitioner). (9/25/01) 104 Wn. App. 48 (2000) - published in part Top
Criminal Law-Drive-By Shooting-ElementsWhether this prosecution under the drive-by shooting statute, RCW 9A.36.045, against defendants who shot at a home two blocks from where they had left their car, must be dismissed either for insufficient evidence or because the statute is unconstitutionally vague as applied to this conduct. No. 70735-9, State (respondent) v. Rodgers (petitioner); State (petitioner) v. Locklear (respondent/cross-petitioner). (10/25/01) 105 Wn. App. 555 (2001) - Locklear Top
Criminal Law-Evidence-Prior ActsWhether the prohibition in ER 404(b) on admitting evidence of "other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith" applies only to misconduct. No. 70700-6, State (respondent) v. Everybodytalksabout (petitioner). (10/18/01) Top
Criminal Law-Evidence-Videotaped Testimony-Review by JuryWhether the trial court abused its discretion in allowing the jury, during its deliberations, to review the videotaped testimony of three witnesses. No. 70861-4, State (respondent) v. Koontz (petitioner). (10/25/01) 102 Wn. App. 309 (2000) - published in part Top
Criminal Law-Former Jeopardy-Statutory Provisions-Prior Prosecution in Tribal CourtWhether the double jeopardy statute, RCW 10.43.040, precludes prosecution of a tribal member under state law for hunting crimes committed on private land off-reservation when the defendant was previously convicted in tribal court based on the same incident. No. 70742-1, State (respondent) v. Moses (petitioner). (10/18/01) 104 Wn. App. 153 (2001) Top
Criminal Law-Malicious Mischief-Elements-Property of Another-Community PropertyWhether community property of a defendant and his spouse can be considered "property of another" for purposes of the malicious mischief statute. No. 70879-7, State (petitioner) v. Coria (respondent). (11/29/01) 105 Wn. App. 51 (2001) - published in part Top
Criminal Law-Presentence Release-Conditions of Release-ViolationWhether "probable cause," as opposed to "a well-founded suspicion," is necessary for the issuance of a bench warrant for violation of the conditions of a defendant's release pending sentencing. No. 70760-0, State (respondent) v. Fisher (petitioner). (10/23/01) 104 Wn. App. 772 (2001) Top
Criminal Law-Punishment-Exceptional Sentence-Multiple Offenses-Same Criminal ConductWhether the commission of multiple offenses can justify an exceptional sentence under RCW 9.94A.390(2)(i) (permitting a court to impose an exceptional sentence if the multiple offender policy of RCW 9.94A.400 results in a sentence that is clearly too lenient) when the offenses constitute the same criminal conduct for determining the defendant's offender score. No. 70669-7, State (respondent) v. Borg (petitioner). (10/23/01) Top
Criminal Law-Punishment-Probation-Courts of Limited JurisdictionWhether issuance of an arrest warrant for non-compliance with conditions of probation tolls the probationary period and thereby extends a municipal court's jurisdiction to execute on a suspended sentence beyond the two-year statutory limit. No. 70696-4, City of Spokane (petitioner) v. Marquette (respondent). (10/18/01) 103 Wn. App. 792 (2000) Top
Criminal Law-Right to Confront Witnesses-Limitations-Relevance-Surveillance LocationWhether the trial court's exclusion of evidence of a police officer's precise surveillance location violated the defendant's right to confrontation. No. 70586-1, State (respondent) v. Darden (petitioner). (9/13/01) 103 Wn. App. 368 (2000) Top
Criminal Law-Right to Testify-Disruptive Behavior-Removal from CourtroomWhether the trial court's exclusion of the defendant from the courtroom due to his disruptive and dangerous behavior violated the defendant's constitutional rights to be present at his trial and to testify. No. 70637-9, State (respondent) v. Chapple (petitioner). (9/13/01) 103 Wn. App. 299 (2000) - published in part Top
Criminal Law-Search & Seizure-Community Caretaking FunctionWhether police investigating a parked automobile at a closed convenience store went beyond their community caretaking function in questioning the vehicle's occupant and asking for identification. No. 70945-9, State (respondent) v. O'Neill (petitioner). (11/29/01) 104 Wn. App. 850 (2001) Top
Criminal Law-Search & Seizure-Detention Based on Civil InfractionWhether police could properly detain the defendant for violation of an "open container" ordinance, having observed him standing at a bus stop shelter near a cold, half-full beer bottle, with the smell of alcohol on his breath. No. 71111-9, State (respondent) v. Duncan (petitioner). (11/29/01) Top
Criminal Law-Search & Seizure-Open ViewWhether police officers searching for suspected robbers were justified in entering a motel room, without a warrant or an announcement of their purpose, based on observations made through a gap in the bottom of curtains covering the motel room window. No. 70855-0, State (respondent) v. Cardenas (petitioner). (10/25/01) Top
Criminal Law-Search & Seizure-Search Incident to Arrest-Automatic StandingWhether the defendant had standing to challenge the search of his girlfriend's purse, left in his car after he (but not the girlfriend) was arrested, and if so, whether the search was invalid. No. 70869-0, State (respondent) v. Jones (petitioner). (11/27/01) 104 Wn. App. 966 (2001) Top
Criminal Law-Search & Seizure-StandingWhether a juvenile who has escaped from confinement has standing to challenge the search of an apartment in which the juvenile was staying as a visitor. No. 70636-1, State (respondent) v. Thang (petitioner). (9/20/01) 103 Wn. App. 660 (2000) - published in part Top
Criminal Law-Sufficiency of Information-Attempted Offense-"Substantial Step"Whether an attempted murder information that does not expressly allege the "substantial step" element is insufficient and requires dismissal when challenged just after the State rests its case. No. 70746-4, State (respondent) v. Borrero (petitioner). (10/18/01) Top
Criminal Law-Trial-Shackling of Prosecution WitnessWhether the trial court erred in permitting a prosecution witness to testify in shackles and jail garb without first holding a hearing to determine that such security measures were necessary. No. 70666-2, State (respondent) v. Rodriguez (petitioner). (9/25/01) 103 Wn. App. 693 (2000) Top
Discovery-Violation of Discovery Order-Sanctions-DismissalWhether the trial court abused its discretion by dismissing this lawsuit because of discovery and local scheduling rule violations. No. 70893-2, Rivers (petitioner) v. Washington State Conference of Mason Contractors (respondent). (11/27/01) Top
Divorce-Decree-Construction-"Equity" in Real PropertyWhether a provision in a dissolution decree giving the former wife "one-half the equity" in real property awarded a money judgment (enforcement of which would now be barred by the statute of limitations) or an interest in the property. No. 70762-6, Stokes (petitioner) v. Polley (respondent). (10/25/01) Top
Employment-Compensation-Damages for Nonpayment of Wages-Attorney Fees-Award to Labor UnionWhether RCW 49.48.030 entitles a labor union to an award of attorney fees for obtaining a favorable wage recovery on behalf of its members in a grievance arbitration. No. 70344-2, International Ass'n of Firefighters, Local 46 (respondent) v. City of Everett (petitioner). (10/16/01) 101 Wn. App. 743 (2000) Top
Employment-Compensation-Rest PeriodsWhether a collective bargaining agreement can modify the requirements of State regulations regarding employee rest periods and, if not, whether employees have an actionable wage claim for an employer's violation of such regulations. No. 70972-6, Wingert (respondent) v. Yellow Freight Sys., Inc. (petitioner). (11/29/01) 104 Wn. App. 583 (2000) Top
Employment-Safe Workplace-Employee of Independent Contractor-"Retained Control"Whether the Space Needle Corporation can be held liable to a fireworks company employee who was injured setting up fireworks on the Space Needle. No. 70966-1, Kamla (petitioner) v. Space Needle Corp. (respondent). (11/27/01) 105 Wn. App. 123 (2001) Top
Employment-Termination-At-Will Employment-Employment Contract-Damages-Future EarningsWhether an at-will employee may recover future lost wages for an employer's breach of a re-employment contract. No. 70699-9, Trendwest Resorts, Inc. (petitioner) v. Ford (respondent). (9/20/01) 103 Wn. App. 380 (2000) Top
Employment-Wrongful Termination-Violation of Public PolicyWhether a former county employee may maintain an action for wrongful termination in violation of public policy based on allegations that he was discharged for attempting to insure that his supervisor correctly applied zoning codes. No. 70975-1, Hubbard (petitioner) v. Spokane County (respondent). [hearing date stricken; to be reset in winter 2002 term] 103 Wn. App. 671 (2000) Top
Insurance-Commercial General Liability Coverage-Duty to DefendWhether a commercial general liability insurer had a duty to defend its insured, a construction consulting firm, when clients sued the firm over its failure to perform contracted services. No. 70747-2, Truck Ins. Exch. (petitioner) v. Vanport Homes, Inc. (respondent). (11/8/01) Top
Insurance-Liability Insurance-Intentional Torts-Public Policy-Conflict of LawsWhether it is contrary to Washington public policy to insure against liability for intentional torts, and if not, whether Washington or California law governs this dispute over coverage of liability (including punitive damages) for malicious prosecution. No. 70519-4, Fluke Corp. (respondent) v. Hartford Accident & Indem. Co. (petitioner). (9/11/01) 102 Wn. App. 237 (2000) Top
Land Use-Plats-Condition of Approval-Financing Public Improvements-Validity-Constitutional TakingWhether a city's condition for approval of a subdivision, requiring the developer to finance street improvements on an adjacent right-of-way, is subject to the takings analysis of Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). No. 70659-0, City of Battle Ground (petitioner) v. Benchmark Land Co. (respondent). (9/13/01) 103 Wn. App. 721 (2000) Top
Municipal Government-Land Use-Liability Waiver-ValidityWhether a county may enforce a waiver, imposed as a condition of plat approval, by which a developer waived any damage claims of its successors-in-interest based on the construction and maintenance of storm drainage facilities that the developer transferred to the county. No. 70572-1, Howe (petitioner) v. Douglas County (respondent). (10/16/01) 102 Wn. App. 559 (2000) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Whether a covenant waiving liability against a city for claims arising from soil movement, filed as a condition of issuance of a building permit, bars a damage claim brought by a successor homeowner. No. 70704-9, 1515-1519 Lakeview Blvd. Condo. Ass'n (respondent) v. Apartment Sales Corp. (defendant) City of Seattle (petitioner). (10/16/01) 102 Wn. App. 599 (2000) Top
Municipal Government-Streets-Maintenance & Repair-DutyWhether a city's duty to design and maintain its streets with ordinary care is owed only to persons who use its streets in a proper manner and exercising due care for their own safety, or, by virtue of the adoption of comparative negligence principles, to all who use its streets. No. 70866-5, Keller (respondent) v. City of Spokane (petitioner). (11/8/01) 104 Wn. App. 545 (2001) Top
Parties-Standing-Organizational Standing-Claim for DamagesWhether, after firefighters opted out of the social security system, the firefighters' union had standing to bring suit to recover social security contributions that the employer had previously paid. * * * * * * * * * * * * * * * * * * * * * * * * Top
Pensions-Public Employees-Social Security Contribution-"Opt Out" by Employees-Alternative Pension Plan-Continuing Contractual ObligationWhether, after firefighters opted out of the social security system, their employer was obligated to pay into the firefighters' pension plan amounts equal to the matching social security contributions it had previously paid. No. 70667-1, International Ass'n of Firefighters, Local 1789 (respondent) v. Spokane Airports (petitioner). (9/13/01) 103 Wn. App. 764 (2000) Top
Railroads-Operation-Municipal Ordinances-Federal PreemptionWhether Seattle ordinances regulating the switching activities of trains at railroad crossings are preempted by the Interstate Commerce Commission Termination Act or the Federal Railroad Safety Act. No. 70884-3, City of Seattle (petitioner) v. Burlington N. R.R. Co. (respondent). (11/8/01) 105 Wn. App. 832 (2001) Top
Securities Regulation-Civil Remedies-State Securities Act-Consumer Protection Act(1) Whether purchasers of securities in an established secondary stock market may assert a cause of action under the Washington State Securities Act, RCW 21.20.430(1), against the original issuer of the securities, based on public statements that allegedly were materially false or misleading and resulted in inflation of the securities' price on the secondary market. (2) Whether persons suing under the WSSA may satisfy the element of reliance by using the "fraud-on-the-market" theory adopted by federal courts in Rule 10b-5 actions. (3) Whether the Consumer Protection Act, RCW chapter 19.86, applies to conduct that is already subject to separate federal and state securities regulations and statutes, and if so, whether securities purchasers can establish the causal link between an alleged misstatement and harm allegedly suffered by using the "fraud-on-the-market" theory. No. 71284-1, In re Boeing Securities Litigation, Werbowsky (plaintiff); Boeing Co. (defendant). (Settled-Stricken) Certification from U.S. District Court, Western District of Wash. Top
State Boundary-Northern Boundary-Forty-Ninth Parallel-Location by Global Positioning Systems-Discrepancy Between Location of Parallel and Marked U.S.-Canada BoundaryWhether this state's courts have jurisdiction over crimes committed south of the established border between the United States and Canada, but north of the 49th parallel as recently located using global positioning systems. No. 69417-6, State (respondent) v. Norman (appellant). (9/11/01) Top
Statute of Frauds-Cooperative Apartment-Transfer of InterestWhether an agreement to purchase a cooperative apartment unit falls within the statute of frauds and thus must contain a full legal description of the property. No. 70702-2, Firth (petitioner) v. Lu (respondent). (11/8/01) 103 Wn. App. 267 (2000) Top
Statutes-Repeal by Implication-State Motor Vehicle Excise Tax-Local Motor Vehicle TaxesWhether the Legislature, when it repealed the state motor vehicle excise tax, also impliedly repealed RCW 35.58.273, the statute authorizing special local motor vehicle excise taxes. No. 70829-1, ATU Legislative Council of Washington (respondent) v. State (appellant). (9/20/01) Top
Taxation-Public Utilities-Sewer SystemsWhether the Department of Revenue erroneously classified the large "interceptor" pipes in Spokane's sewer system as collection lines, rather than transfer lines, for purposes of apportioning income between different excise taxes. No. 70765-1, City of Spokane (petitioner) v. State, Dep't of Revenue (respondent). (10/23/01) 104 Wn. App. 253 (2000) Top
Waters-Water Rights-Abandonment for Nonuse-Water Quality Certificates-Conditions-Streamflow RequirementsWhether a public utility district abandoned certain state water rights by nonuse, and if not, whether the Department of Ecology, in issuing the district a water quality certificate under the Federal Clean Water Act, lawfully required in-stream flows that reduced the amount of water available to the district under its water rights. No. 70372-8, PUD 1 of Pend Oreille County (respondent) v. State, Dep't of Ecology (petitioner) Center for Environmental Law & Policy (respondent). (9/25/01) Top
Waters-Water Rights-Groundwater-Permit Requirements-Exemption for Small Domestic Wells-Applicability to Multiple-Well SubdivisionWhether the statutory exemption from groundwater permit requirements for domestic wells drawing no more than 5,000 gallons per day applies to a subdivision developer proposing multiple wells that will collectively (but not individually) draw more than 5,000 gallons per day. No. 70279-9, State, Dep't of Ecology (appellant) v. Campbell & Gwinn, L.L.C. (respondent). (10/16/01)
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