Supreme Court Issues
January Term 2002

• Appellate Procedure—Scope of Review—Order Not Designated in Notice
• Attorney and Client—Malpractice—Assignability of Claim
• Civil Commitment—Sexually Violent Predator—CR 35 Examination
• Civil Commitment—Sexually Violent Predator—Recent Overt Act
• Civil Procedure—Amending Complaint—Relation Back of Claims
• Civil Rights—Law Against Discrimination—Age Discrimination—Independent Contractor
• Community Property—Community Property Agreement—Rescission—Defunct Marriage
• Constitutional Law—Juvenile Curfew Ordinance
• Constitutional Law—Prison Inmate Labor—Prohibition of Private Contracts for Convict Labor
• Contracts—Remedies—Consequential Damages—Limitations of Liability
• Courts of Limited Jurisdiction—Misdemeanor Fines—Jurisdiction to Enforce—Time Limit
• Criminal Law—Domestic Violence—Violation of Protection Order—Validity of Order
• Criminal Law—Driving Under the Influence—Right to Counsel—Court Rules—Violation—Remedy
• Criminal Law—Due Process—Discovery Sanctions—Refusal to Submit to Psychological Evaluation—Justification
• Criminal Law—Harmless Constitutional Error—Trial by Court
• Criminal Law—Homicide—Felony Murder—Assault—Merger Rule
• Criminal Law—Postconviction Relief—Grounds—Miscalculated Offender Score—Criminal History—Acknowledgment by Defendant
• Criminal Law—Postconviction Relief—Parole Revocation—Procedural Violation—Prejudice—Necessity
• Criminal Law—Privacy Act—Private Conversations—Computer Communications
• Criminal Law—Punishment—Presentence Jail Time—Good Behavior Credits—Mandatory Deadly Weapon Enhancement
• Criminal Law—Second Degree Arson—Unit of Prosecution
• Criminal Law—Subject Matter Jurisdiction
• Criminal Law—Violation of Court Order—Elements—“To Convict” Instruction
• Employment—Wrongful Termination—Violation of Public Policy
• Energy Facilities—Siting Decisions—Judicial Review—State Environmental Policy Act
• Government—Torts—Nonclaim Statute—Sufficiency of Compliance
• Indians—Juveniles—Custody—Indian Child Welfare Act
• Insurance—Bad Faith—Damages—Measure—Settlement Between Insured and Third Party
• Insurance—Cancellation—Notice—Additional Named Insured
• Land Use—Land Use Petition Act—“Land Use Decision”—Ministerial or Quasi-Judicial Decision
• Land Use—Shorelines Management—Enforcement—Department of Ecology— Review of Local Agency Determination—Land Use Petition Act
• Mental Health—Involuntary Commitment—Detention by Hospital Professional Staff—Limitations
• Taxation—Municipal Taxation—Business & Occupation Tax—Deductions
• Torts—Claims Against Estate—Nonclaim Statute—Insured Claims
• Torts—Negligent Misrepresentation—Duty—Reliance
• Workers Compensation—Employer Premiums—Rates
• Workers Compensation—Employer’s Immunity—Third Person Action
• Workers Compensation—Permanent Partial Disability—Hearing Loss—Causation

Appellate Procedure—Scope of Review—Order Not Designated in Notice

Whether the Court of Appeals, having granted discretionary review of an order compelling discovery in this action for defamation and other torts, should also have reviewed a prior order denying a motion to dismiss.

No. 71099-6, Right-Price Recreation (respondent) v. Connells Prairie Cmty. Council (petitioner). (1/29/02)

105 Wn. App. 813 (2001)

Attorney and Client—Malpractice—Assignability of Claim

Whether a personal injury defendant whose attorneys negligently failed to move to vacate default judgments may assign his legal malpractice claim to the personal injury plaintiffs.

No. 71713-3, Kommavongsa (appellant) v. Haskell (respondent); Nammathao (appellant) v. Haskell (respondent). (continued to spring session)

Civil Commitment—Sexually Violent Predator—CR 35 Examination

Whether the State may employ CR 35 to obtain an expert examination of a person subject to sexually violent predator commitment proceedings, in addition to the evaluation required by RCW 71.09.040(4).

No. 71235-2 (cons. w/71199-2), In re Detention of Williams; Eddie Williams (petitioner); State (respondent), In re Detention of Strong, Darren Strong (petitioner); State (respondent), and In re Detention of McCuistion, David McCuistion (petitioner); State (respondent). (3/19/02)

106 Wn. App. 85 (2001) —Williams & Strong

Civil Commitment—Sexually Violent Predator—Recent Overt Act

Whether, in a sexually violent predator proceeding involving a person who was released from prison but then reincarcerated for violating a condition of release, the State must prove a recent overt act.

No. 71214-0, State (petitioner) v. Albrecht (respondent). (1/15/02)

106 Wn. App. 163 (2001)

Civil Procedure—Amending Complaint—Relation Back of Claims

Whether a plaintiff who moves to amend a complaint under CR 15(c) to add new claims (but not new parties) must show excusable neglect in order to have the amendment relate back to the date of the original complaint.

No. 71240-9, Stansfield (respondent) v. Douglas County (petitioner). (2/14/02)

107 Wn. App. 20 (2001)

Civil Rights—Law Against Discrimination—Age Discrimination—Independent Contractor

Whether an independent contractor may pursue a claim for age discrimination under RCW 49.60.030.

No. 71569-6, Kilian (plaintiff) v. Atkinson (defendant). (1/31/02)

Certification from U.S. District Court, Eastern District of Wash.

Community Property—Community Property Agreement—Rescission—Defunct Marriage

Whether the testamentary provision of a community property agreement terminates as a matter of law when a marriage becomes defunct.

No. 71491-6, In the Matter of the Estate of Bachmeier, John Bachmeier (petitioner); Sandra Johnson (respondent). (3/14/02)

106 Wn. App. 862 (2001)

Constitutional Law—Juvenile Curfew Ordinance

Whether the City of Sumner’s juvenile curfew ordinance, chapter 9.28 SMC, is unconstitutionally vague or unconstitutionally restricts juveniles’ freedom of movement or freedom of speech or parents’ rights regarding their children.

No. 71451-7, City of Sumner (respondent) v. Walsh (petitioner). (3/14/02)

Constitutional Law—Prison Inmate Labor—Prohibition of Private Contracts for Convict Labor

Whether RCW 72.09.100(1), which authorizes the State to contract with for-profit organizations to employ prison inmates in the production of goods and services for sale, violates Const. art. II, § 29.

No. 70814-2, Washington Water Jet Workers Ass’n (appellant) v. Yarbrough (respondent). (1/31/02)

Contracts—Remedies—Consequential Damages—Limitations of Liability

Whether, in the context of repeated commercial transactions between businesses, limitations on consequential damages printed on regular service invoices are enforceable.

No. 71222-1, Puget Sound Fin., L.L.C. (respondent) v. Unisearch, Inc. (petitioner). (1/31/02)

Courts of Limited Jurisdiction—Misdemeanor Fines—Jurisdiction to Enforce—Time Limit

Whether a district court has jurisdiction to enforce a misdemeanor fine more than two years after the fine was imposed.

No. 70817-7, Smith (respondent) v. Whatcom County Dist. Court (appellant). (3/12/02)

Criminal Law—Domestic Violence—Violation of Protection Order—Validity of Order

Whether a pretrial no-contact order entered pursuant to RCW 10.99.040 remains in effect after the defendant’s conviction, based on a provision so specifying in the findings and sentence, but without entry of a post-conviction no-contact order under RCW 10.99.050.

No. 71221-2, State (respondent) v. Schultz (petitioner). (1/31/02)

106 Wn. App. 328 (2001)

Criminal Law—Driving Under the Influence—Right to Counsel—Court Rules—Violation—Remedy

Whether the results of these DUI defendants’ breath tests must be suppressed because State Patrol officers advised them that they had a right to counsel before questioning, rather than “as soon as feasible,” as required by CrRLJ 3.1.

No. 71502-5 (cons. w/71529-7), State (petitioner) v. Templeton (respondent); State (respondent) v. Dunn, et al. (petitioners). (3/21/02)

107 Wn. App. 141 (2001) —Templeton
108 Wn. App. 490 (2001) —Dunn, et al.

Criminal Law—Due Process—Discovery Sanctions—Refusal to Submit to Psychological Evaluation—Justification

Whether a criminal defendant claiming diminished capacity was deprived of due process when discovery sanctions were imposed for refusing to submit to a state psychological evaluation after earlier court decisions suggested that he could assert his Fifth Amendment privilege against self-incrimination. See State v. Hutchinson, 111 Wn.2d 872, 766 P.2d 447 (1989).

No. 71353-7, In re Personal Restraint Petition of Hutchinson, Darrin Hutchinson (petitioner); State (respondent). (2/14/02)

Criminal Law—Harmless Constitutional Error—Trial by Court

Whether the constitutional standard for harmless error applies to a constitutional evidentiary error made in a criminal bench trial.

No. 71188-7, State (respondent) v. Read (petitioner). (1/29/02)

106 Wn. App. 138 (2001)

Criminal Law—Homicide—Felony Murder—Assault—Merger Rule

Whether an assault which causes death may constitute the predicate felony for second degree felony murder.

No. 71170-4, In re Personal Restraint Petition of Andress, Shawn Andress (petitioner); State (respondent). (3/12/02)

Criminal Law—Postconviction Relief—Grounds—Miscalculated Offender Score—Criminal History—Acknowledgment by Defendant

Whether the defendant waived his challenge to the inclusion of “washed out” juvenile convictions in his offender score because he “agreed” in his plea statement that the criminal history set forth in statement (which included the juvenile convictions) was accurate.

No. 70916-5, In re Personal Restraint Petition of Goodwin, Jerry Goodwin (petitioner); State (respondent). (3/14/02)

Criminal Law—Postconviction Relief—Parole Revocation—Procedural Violation—Prejudice—Necessity

Whether a parolee claiming a procedural violation in the conduct of a parole revocation hearing must show prejudice in order to obtain a new hearing.

No. 71387-1, In re Personal Restraint Petition of Mines, Kenneth Mines (petitioner); State (respondent). (3/12/02)

Criminal Law—Privacy Act—Private Conversations—Computer Communications

Whether the Privacy Act, chapter 9.73 RCW, applies to e-mail and real-time computer communications, and if so, whether the defendant in this criminal prosecution impliedly consented to the recording of his communications.

No. 71070-8, State (respondent) v. Townsend (petitioner). (1/29/02)

105 Wn. App. 622 (2001)

Criminal Law—Punishment—Presentence Jail Time—Good Behavior Credits—Mandatory Deadly Weapon Enhancement

Whether an offender is entitled to early release credits earned in jail prior to sentencing, when the Department of Corrections later structures the offender’s prison sentence to begin with a mandatory deadly weapon enhancement term.

No. 70595-0, In re Personal Restraint Petition of King, David King (petitioner); State (respondent). (2/26/02)

Criminal Law—Second Degree Arson—Unit of Prosecution

Whether the unit of prosecution for second degree arson is each fire set by an arsonist, or each person suffering loss by fire, or each place or thing damaged by fire.

No. 71417-7, State (respondent) v. Westling (petitioner). (2/12/02)

106 Wn. App. 884 (2001)

Criminal Law—Subject Matter Jurisdiction

Whether the superior court had subject matter jurisdiction over a criminal action, when the State never filed an amended information charging the defendant with the crime for which he was ultimately convicted.

No. 71329-4, State (respondent) v. Barnes (petitioner). (2/14/02)

Criminal Law—Violation of Court Order—Elements—“To Convict” Instruction

Whether, when the State seeks a felony conviction for willful violation of a court order, the existence of the two similar prior convictions making this crime a felony must be included as an element of the “to convict” instruction, rather than in a separate instruction and verdict form.

No. 71509-2, State (respondent) v. Oster (petitioner). (3/19/02)

Employment—Wrongful Termination—Violation of Public Policy

Whether 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). (reset 1/15/02)

103 Wn. App. 671 (2000)

Energy Facilities—Siting Decisions—Judicial Review—State Environmental Policy Act

Whether these petitioners have properly invoked judicial review of an energy facility siting decision made under chapter 80.50 RCW, and if so, whether the Energy Facility Site Evaluation Council violated the State Environmental Policy Act by failing to perform supplemental environmental analyses for the challenged project.

No. 71446-1, Rebound (petitioner) v. Energy Facility Site Evaluation Council (respondent). (case dismissed; oral argument stricken)

Government—Torts—Nonclaim Statute—Sufficiency of Compliance

Whether the filing of a personal injury complaint against a public utility district 57 days after a claim was submitted to the district, and 51 days after the district denied the claim, sufficiently complied with the 60-day waiting period requirement of RCW 4.96.020(4).

No. 70978-5, Medina (petitioner) v. PUD 1 of Benton County (respondent). (1/17/02)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Whether this damages action against a county should have been dismissed for failure to comply with the County’s claim filing ordinance, where the plaintiff had submitted her claim to the county prosecutor (rather than to the clerk of the county council) and her claim had been processed and denied.

No. 70986-6, King (petitioner) v. Snohomish County (respondent). (1/17/02)

105 Wn. App. 857 (2001)

Indians—Juveniles—Custody—Indian Child Welfare Act

Whether the trial court’s denial of an Indian mother’s motion for return of her children from the custody of a grandparent violated the Indian Child Welfare Act.

No. 71022-8, In re Mahaney, Erika Mahaney (petitioner); Rebecca Johnston (respondent). (1/15/02)

105 Wn. App. 391 (2001)

Insurance—Bad Faith—Damages—Measure—Settlement Between Insured and Third Party

Whether a settlement between an insured tortfeasor and his injured victim, approved by a trial court as reasonable under the factors enumerated in Chaussee v. Maryland Cas. Co., 60 Wn. App. 504, 803 P.2d 1339, 812 P.2d 487 (1991), binds the insurer in a subsequent suit brought by the victim (as assignee of the insured) alleging insurer bad faith.

No. 71071-6, Besel (petitioner) v. Viking Ins. Co. (respondent). (1/29/02)

105 Wn. App. 463 (2001)

Insurance—Cancellation—Notice—Additional Named Insured

Whether a premium finance company, when it cancelled the insurance policy of an incinerator owner for failure to reimburse for the premiums paid, should have notified the owner of the land on which the incinerator was operated, who was an additional named insured.

No. 71095-3, Olivine Corp. (respondent) v. United Capitol Ins. Co. (petitioner). (2/12/02)

105 Wn. App. 194 (2001)

Land Use—Land Use Petition Act—“Land Use Decision”—Ministerial or Quasi-Judicial Decision

Whether the Land Use Petition Act, chapter 36.70C RCW, applies to ministerial land use decisions, such as the county’s boundary line adjustment decision in this case.

No. 71067-8, Chelan County (respondent) v. Nykreim (petitioner). (1/17/02)

105 Wn. App. 339 (2001)

Land Use—Shorelines Management—Enforcement—Department of Ecology— Review of Local Agency Determination—Land Use Petition Act

Whether the Department of Ecology, in enforcing the Shorelines Management Act, must seek review of local government decisions by means of the Land Use Petition Act.

No. 71181-0, Samuel’s Furniture, Inc. (petitioner) v. State, Dep’t of Ecology (respondent). (1/17/02)

105 Wn. App. 278 (2001)

Mental Health—Involuntary Commitment—Detention by Hospital Professional Staff—Limitations

Whether the initial detentions of several individuals by hospital staff, prior to notifying the county designated mental health professional that the individuals needed emergency mental health commitment evaluations, violated RCW 71.05.050 or due process.

No. 71311-1, In re Detention of C.W., C.W. (petitioner); State (respondent). (2/14/02)

105 Wn. App. 718 (2001)

Taxation—Municipal Taxation—Business & Occupation Tax—Deductions

Whether a temporary employment agency may deduct wages paid to temporary workers from its taxable gross income for purposes of Tacoma’s Business and Occupation Tax Rule 111.

No. 71050-3, City of Tacoma (appellant) v. William Rogers Co. (respondent). (3/12/02)

Torts—Claims Against Estate—Nonclaim Statute—Insured Claims

Whether a personal injury suit against an estate may proceed, to the extent plaintiff’s claims may be covered by the decedent’s insurance, even though the plaintiff did not first file a creditor’s claim with the estate within the statute of limitations period.

No. 71238-7, Wagg (respondent) v. Estate of Dunham (petitioner). (2/12/02)

107 Wn. App. 35 (2001)

Torts—Negligent Misrepresentation—Duty—Reliance

Whether a title insurance company could have justifiably relied on an estate attorney’s letter regarding estate taxes, so as to preclude summary judgment dismissal of its lawsuit against the attorney for negligent misrepresentation.

No. 71525-4, Lawyers Title Ins. Corp. (petitioner) v. Baik (respondent). (3/21/02)

Workers Compensation—Employer Premiums—Rates

Whether the Department of Labor and Industries’ method for setting industrial insurance premiums, which first considers the solvency of the accident and medical aid funds as a whole before setting the rate for each class of employers, is consistent with the Department’s statutory authority.

No. 70377-9, WR Enterprises, Inc. (appellant) v. Department of Labor & Indus. (respondent). (2/26/02)

Workers Compensation—Employer’s Immunity—Third Person Action

Whether a worker injured by defective workplace equipment installed by a prior corporate owner of the business may bring a “third person” action under RCW 51.24.030 against his employer, as corporate successor to the prior owner, or against the former corporate parent of the prior owner.

No. 71115-1, Minton (respondent) v. Ralston Purina Co. (petitioner). (3/19/02)

Workers Compensation—Permanent Partial Disability—Hearing Loss—Causation

Whether a worker’s permanent partial disability award for hearing loss should be reduced to reflect that in addition to occupational causes some hearing loss naturally occurs with age.

No. 71694-3, Boeing Co. (appellant) v. Heidy (respondent). (3/21/02)