Supreme Court Issues
January Term 2003

• Arbitration—Labor Relations—Review—Standard of Review
• Automobiles—Operator’s Licenses—Suspension—Due Process
• Automobiles—Physical Control While Intoxicated—Statutory Defense—Vehicle Safely Off Roadway
• Bills & Notes—Accommodation Party—Payment of Instrument—Effect
• Criminal Law—Aggravated First Degree Murder—Accomplice Liability—Instructions—Evidence—Hearsay—Statement Against Penal Interest—Actual & Substantial Prejudice
• Criminal Law—Burglary—Definition of “Building”—Fenced Back Yard
• Criminal Law—Burglary—Intent to Commit “Crime Against a Person”—Indecent Exposure
• Criminal Law—Dismissal of Charge—Delay—Prejudice
• Criminal Law—Former Jeopardy—Multiple Convictions—Felony Murder & Vehicular Homicide
• Criminal Law—Former Jeopardy—Multiple Convictions—Identity Theft & Forgery
• Criminal Law—Juvenile Sentencing—Restitution—Statutory Authority
• Criminal Law—Plea of Guilty—Advisement of Rights—Consequences of Plea
• Criminal Law—Postconviction Relief—Issues Raised on Appeal—Interests of Justice
• Criminal Law—Punishment—Persistent Offender Accountability Act—Standard of Proof—Right to Jury Trial
• Criminal Law—Record on Appeal—Reconstruction of Record
• Criminal Law—Search & Seizure—Automobiles—Traffic Infractions—Passengers
• Criminal Law—Search & Seizure—Consent—Entry Into Dwelling—Right to Refuse—Warning
• Criminal Law—Time for Trial—Arraignment—Incarceration in Different County
• Criminal Law—Time for Trial—Courts of Limited Jurisdiction—Defendant Incarcerated in Other County—Good Faith & Due Diligence
• Criminal Law—Time for Trial—Mandatory Joinder of Charges—Related Offenses
• Criminal Law—Time for Trial—“Time Elapsed in District Court”—Detention in Jail—Detention in Another County
• Criminal Law—Trial—Instructions—Omission of Element
• Deeds of Trust—Nonjudicial Foreclosure—Defect—Waiver—Failure to Pursue Presale Remedies
• Divorce—Child Custody—Visitation Rights—Enforcement—Recalcitrant Child—Parental Bad Faith
• Divorce—Disposition of Property—Characterization
• Easements—Express Easement—Scope
• Juveniles—Child Abuse—Investigating—Government Liability
• Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—Necessity
• Municipal Government—Cities & Towns—Annexation—“Direct Petition” Method—Constitutionality
• Negligence—Res Ipsa Loquitur—Application—Alternative Causes
• Property—Plats—Exemption—Boundary Line Adjustments
• Prosecuting Attorneys—Ethical Duties—Plea Bargaining
• Sales—Warranties—Implied Warranties—Privity
• Telecommunications—Regulation—Due Process—Judicial Review
• Torts—Outrage—Elements—Emotional Distress—Proof

Arbitration—Labor Relations—Review—Standard of Review

Whether a labor arbitrator’s legal conclusions are reviewed under the “arbitrary and capricious” standard generally applicable to constitutional writs of certiorari, or under the standard that provides that arbitrators are the final judges of both the law and the facts.

No. 72718-0, Clark County PUD 1 (respondent) v. Int’l Bhd. of Elec. Workers (petitioner). (2/25/03)

111 Wn. App. 690 (2002)

Automobiles—Operator’s Licenses—Suspension—Due Process

Whether the trial court properly dismissed this prosecution for driving with a suspended license on the ground that the predicate suspension violated due process because the Department of Licensing mailed its revocation order only to an address it obtained from a prior citation of the defendant. See RCW 46.20.205; WAC 308-104-018.

No. 72599-3, City of Redmond (petitioner) v. Arroyo-Murillo (respondent). (2/13/03)

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Whether the trial court properly dismissed these prosecutions for driving with a suspended license on the ground that the license suspension procedure of RCW 46.20.289 and .291 violates due process because it affords no opportunity for a hearing before the Department of Licensing.

No. 72614-1, City of Redmond (appellant) v. Moore (respondent); City of Redmond (appellant) v. Wilson (respondent). (2/13/03)

Automobiles—Physical Control While Intoxicated—Statutory Defense—Vehicle Safely Off Roadway

Whether a person charged with being in actual physical control of a vehicle while intoxicated can rely on the statutory defense of being “safely off the road” if another person moved the vehicle off the road.

No. 72238-2, State (respondent) v. Votava (petitioner). (1/16/03)

109 Wn. App. 529 (2001)

Bills & Notes—Accommodation Party—Payment of Instrument—Effect

Whether a corporate officer who guarantees a corporate note may, as an accommodation party, purchase the note and then enforce it against the corporation. See RCW 62A.3-419.

No. 72560-8, Plein (respondent) v. Lackey (petitioner) (see also Deeds of Trust—Nonjudicial Foreclosure—). (2/13/03)

111 Wn. App. 143 (2002)

Criminal Law—Aggravated First Degree Murder—Accomplice Liability—Instructions—Evidence—Hearsay—Statement Against Penal Interest—Actual & Substantial Prejudice

Whether, in this prosecution for aggravated first degree murder, the trial court erred in its accomplice liability instructions and in admitting a co-defendant’s “whole” statement against penal interest, and if so, whether the defendant, as a personal restraint petitioner, has established prejudice.

No. 72844-5, In re Personal Restraint Petition of Hankerson, Gerald Hankerson (petitioner); State (respondent). (3/11/03)

Criminal Law—Burglary—Definition of “Building”—Fenced Back Yard

Whether for purposes of the first degree burglary statute a fenced back yard qualifies as a “building” by virtue of being a “fenced area,” without regard to the uses of the area. See RCW 9A.04.110(5).

No. 72438-5, State (respondent) v. Wentz (petitioner). (2/13/03)

110 Wn. App. 70 (2002)

Criminal Law—Burglary—Intent to Commit “Crime Against a Person”—Indecent Exposure

Whether indecent exposure is a “crime against a person” that can support a charge of second degree burglary under RCW 9A.52.030(1).

No. 72896-8, State (respondent) v. Snedden (petitioner). (3/27/03)

112 Wn. App. 122 (2002)

Criminal Law—Dismissal of Charge—Delay—Prejudice

Whether the Court of Appeals properly upheld the dismissal of this child molestation prosecution pursuant to CrR 8.3(b), on the ground that the delay in bringing the charge may have allowed witnesses’ memories to fade and the defendant’s own recall of the incident to be compromised.

No. 72540-3, State (petitioner) v. Rohrich (respondent). (2/25/03)

110 Wn. App. 832 (2002)

Criminal Law—Former Jeopardy—Multiple Convictions—Felony Murder & Vehicular Homicide

Whether convictions for both vehicular homicide and second degree felony murder based on the same death violate the Double Jeopardy Clause, and if so, whether the felony murder conviction should be vacated because the defendant pleaded guilty to vehicular homicide before he was adjudicated guilty of the felony murder charge.

No. 72676-1, In re Personal Restraint Petition of Percer; Stephen Percer (petitioner), State (respondent) (see also Criminal Law—Postconviction Relief—Issues Raised on Appeal—). (2/11/03)

111 Wn. App. 843 (2002)

Criminal Law—Former Jeopardy—Multiple Convictions—Identity Theft & Forgery

Whether the defendant’s convictions for identity theft and two counts of forgery violate double jeopardy prohibitions.

No. 72710-4, State (respondent) v. Baldwin (petitioner). (3/27/03)

111 Wn. App. 631 (2002)

Criminal Law—Juvenile Sentencing—Restitution—Statutory Authority

Whether a juvenile court may order an offender to pay restitution for the costs of a victim’s crime-related counseling in a non-sex offense case. See RCW 13.40.190(1); RCW 13.40.020(22).

No. 72730-9, State (respondent) v. J.P. (petitioner). (3/25/03)

111 Wn. App. 105 (2002)

Criminal Law—Plea of Guilty—Advisement of Rights—Consequences of Plea

Whether the defendant should have been informed that the crime to which she was pleading guilty rendered her ineligible for early release credits for five years, and if so, whether, in seeking to withdraw her plea, she must show that failure to inform her of that consequence affected her plea decision.

No. 72763-5, In re Personal Restraint Petition of Ryan, Sabrina Ryan (petitioner); State (respondent). (3/25/03)

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Whether the defendant, who pleaded guilty to charges of escape and conspiracy without being informed that the conspiracy conviction required community placement upon release from prison, should be allowed to withdraw both pleas, on the theory that his plea bargain was a “package deal.”

No. 72362-1, State (respondent) v. Turley (petitioner). (3/25/03)

Criminal Law—Postconviction Relief—Issues Raised on Appeal—Interests of Justice

Whether the petitioner was procedurally barred from arguing in a personal restraint petition that his convictions for vehicular homicide and second degree felony murder violated the Double Jeopardy Clause, when that argument was raised and rejected on direct appeal.

No. 72676-1, In re Personal Restraint Petition of Percer; Stephen Percer (petitioner), State (respondent) (see also Criminal Law—Former Jeopardy—Multiple Convictions—). (2/11/03)

111 Wn. App. 843 (2002)

Criminal Law—Punishment—Persistent Offender Accountability Act—Standard of Proof—Right to Jury Trial

Whether Wash. Const. art. I, § 21 requires a jury (rather than the sentencing judge) to determine whether the state has proven the prior convictions necessary to sentence the defendant to a life term under the Persistent Offender Accountability Act.

No. 73113-6, State (respondent) v. Russell Smith (petitioner). (3/11/03)

Criminal Law—Record on Appeal—Reconstruction of Record

Whether this juvenile’s conviction must be overturned because his trial testimony was not recorded, when the trial judge and the prosecutor have filed affidavits setting forth their memory of his testimony, but the parties did not follow the procedures set forth in RAP 9.3-9.5 for narrative or agreed reports of proceedings and objection thereto.

No. 72688-4, State (respondent) v. Tilton (petitioner). (2/11/03)

111 Wn. App. 423 (2002)

Criminal Law—Search & Seizure—Automobiles—Traffic Infractions—Passengers

Whether evidence should have been suppressed because it was obtained when police conducting routine traffic stops asked passengers for identification.

No. 72509-8, State (respondent) v. Rankin (petitioner); State (respondent) v. Staab (petitioner). (1/23/03)

108 Wn. App. 948 (2001)

Criminal Law—Search & Seizure—Consent—Entry Into Dwelling—Right to Refuse—Warning

Whether evidence of the defendant’s drug possession, found in his home, should have been suppressed because police officers who went to his home to talk with him about an unrelated crime failed to inform his grandmother, who answered the door, that she did not have to let them in and could revoke her consent at any time.

No. 72412-1, State (respondent) v. Khounvichai (petitioner). (1/22/03)

110 Wn. App. 722 (2002)

Criminal Law—Time for Trial—Arraignment—Incarceration in Different County

Whether the defendant was timely arraigned, where he was in custody in another county when charged and was not arraigned until 149 days after pleading guilty to the other county’s charges.

No. 73192-6, State (respondent) v. Swenson (petitioner). (3/11/03)

Criminal Law—Time for Trial—Courts of Limited Jurisdiction—Defendant Incarcerated in Other County—Good Faith & Due Diligence

Whether, for purposes of meeting rule-based speedy trial deadlines, authorities bringing criminal charges in courts of limited jurisdiction must attempt to secure the presence of defendants who are incarcerated in other counties.

No. 72872-1 (cons. w/72875-5), City of Seattle (respondent) v. Guay (petitioner); State (respondent) v. Ackerman (petitioner). (2/27/03)

Criminal Law—Time for Trial—Mandatory Joinder of Charges—Related Offenses

Whether the defendant’s conviction for manufacturing marijuana must be overturned pursuant to CrR 4.3.1, the joinder of charges rule, because the state had earlier prosecuted him for domestic violence, after his wife told a police officer that he had assaulted her and also was growing marijuana.

No. 72541-1, State (petitioner) v. Kindsvogel (respondent). (2/27/03)

110 Wn. App. 750 (2002)

Criminal Law—Time for Trial—“Time Elapsed in District Court”—Detention in Jail—Detention in Another County

Whether, when a criminal charge is first filed in district court and later filed in superior court, the “time elapsed in district court” for purposes of the speedy trial period includes time spent in jail in another county on an unrelated matter.

No. 72633-7, State (petitioner) v. Hardesty (respondent). (2/27/03)

110 Wn. App. 702 (2002)

Criminal Law—Trial—Instructions—Omission of Element

Whether the “to convict” instruction on a charge of attempted first degree rape was inadequate because it failed to specify the degree of rape allegedly attempted.

No. 72629-9, State (respondent) v. DeRyke (petitioner). (3/27/03)

110 Wn. App. 815 (2002)

Deeds of Trust—Nonjudicial Foreclosure—Defect—Waiver—Failure to Pursue Presale Remedies

Whether a party who fails to enjoin a trustee’s sale following nonjudicial foreclosure thereby waives any right to later contest the validity of the foreclosure.

No. 72560-8, Plein (respondent) v. Lackey (petitioner) (see also Bills & Notes—Accommodation Party—). (2/13/03)

111 Wn. App. 143 (2002)

Divorce—Child Custody—Visitation Rights—Enforcement—Recalcitrant Child—Parental Bad Faith

Whether a divorced parent may be held in contempt for bad faith violation of a parenting plan when a child refuses visitation with the noncustodial parent.

No. 72366-4, In re Marriage of Rideout; John Christopher Rideout (respondent), Sara Rideout (petitioner). (1/22/03)

110 Wn. App. 370 (2002)

Divorce—Disposition of Property—Characterization

Whether stock purchased during marriage by exercising a community option using separate funds should at dissolution be characterized as community property, separate property, or a mixture of both, and whether the increased value of the stock should be apportioned based on the ownership interests when it was purchased.

No. 72539-0, In re Marriage of Chumbley & Beckmann, Gerald Chumbley (respondent); Patricia Beckmann (petitioner). (2/25/03)

110 Wn. App. 871 (2002)

Easements—Express Easement—Scope

Whether this irrigation canal easement, which gives the grantee the right to enlarge and maintain the canals and laterals, permits expansion of the easement to accommodate modern maintenance equipment.

No. 72635-3, Sunnyside Valley Irrigation Dist. (respondent) v. Dickie (petitioner). (2/25/03)

111 Wn. App. 209 (2002)

Juveniles—Child Abuse—Investigating—Government Liability

Whether a tort claim for negligent investigation of child abuse may be based upon an assertion that state personnel negligently performed a physical examination on a child in response to sexual abuse allegations.

No. 72529-2, M.W. (respondent) v. DSHS (petitioner). (1/23/03)

110 Wn. App. 233 (2002)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—Necessity

Whether, in this proceeding to commit the petitioner as a sexually violent predator, instituted after his 18-month parole for a sex crime had recently been revoked, the State was required to plead and prove a “recent overt act.”

No. 73255-8, In re the Personal Restraint Petition of Turay, Richard Turay (petitioner); State (respondent). (3/13/03)

Municipal Government—Cities & Towns—Annexation—“Direct Petition” Method—Constitutionality

Whether the “direct petition” method of annexing territory by a city (see RCW 35.13.125-.160 and RCW 35A.14.120-.150) is unconstitutional because it forecloses any election by voters within the area being annexed.

No. 70090-7 (cons. w/70499-6), Grant County Fire Prot. Dist. 5 (appellant) v. City of Moses Lake (respondent) ; Yakima County Fire Prot. Dist. 12 (appellant) v. City of Yakima (respondent). (reset 3/25/03)

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Whether the “direct petition” method of annexing territory by a city (see RCW 35.13.125-.160 and RCW 35A.14.120-.150) is unconstitutional even when the area to be annexed has a single owner and no voters or residents.

No. 73589-1, City of Snoqualmie (appellant) v. Boundary Rev. Bd. (respondent). (3/25/03)

Negligence—Res Ipsa Loquitur—Application—Alternative Causes

Whether, in this action for dental malpractice, the trial court erred in giving a res ipsa loquitur instruction when there was evidence that the injury could have occurred without negligence on the defendant’s part.

No. 72554-3, Pacheco (petitioner) v. Ames (respondent). (2/27/03)

110 Wn. App. 912 (2002)

Property—Plats—Exemption—Boundary Line Adjustments

Whether the division of land that created a lot qualified as a boundary line adjustment for purposes of the exemption from the platting/subdivision statutes set forth in RCW 58.17.040(6).

No. 72515-2, City of Seattle (respondent) v. Crispin (petitioner). (3/13/03)

Prosecuting Attorneys—Ethical Duties—Plea Bargaining

Whether a prosecutor may condition plea bargaining on a defendant’s waiver of the right to request the identity of a confidential informant in a related civil action seeking return of forfeited property.

No. 72435-1, State (respondent) v. Moen (petitioner). (1/22/03)

110 Wn. App. 125 (2002)

Sales—Warranties—Implied Warranties—Privity

Whether a manufacturer’s representations about its product to a commercial buyer can create an implied warranty to the buyer, where the buyer purchases the product from a third party distributor and there is no contract between the manufacturer and the buyer.

No. 72513-6, Tex Enters., Inc. (respondent) v. Brockway Standard, Inc. (petitioner). (2/11/03)

110 Wn. App. 197 (2002)

Telecommunications—Regulation—Due Process—Judicial Review

Whether the Washington State Utilities and Transportation Commission, by designating a telecommunications company as eligible for federal funding to support universal services, violated any interest of other eligible carriers protected by the Due Process Clause, or acted arbitrarily or capriciously.

No. 72428-8, Washington Indep. Tel. Ass’n (petitioner) v. Utilities & Transp. Comm’n (respondent). (1/16/03)

110 Wn. App. 498 (2002)

Torts—Outrage—Elements—Emotional Distress—Proof

Whether a plaintiff must present medical evidence of objective physical symptoms or manifestations of severe emotional injury in order to prevail on a claim for intentional infliction of emotional distress.

No. 72436-9, Kloepfel (respondent) v. Bokor (petitioner). (1/22/03)