Washington State Courts - Supreme Court Issue Summaries
Supreme Court Issues
May Term 2004
Contracts—Contract to Negotiate—Enforceability—Damages
Whether Washington law will recognize as enforceable a “contract” to negotiate a sale and leaseback of real property, and if so, what is the proper measure of damages.
No. 74904-3, Keystone Land & Dev. Co. (plaintiff-counter-defendant-appellant) v. Xerox Corp. (defendant-counter-claimant-appellee). (5/11/04)
Certification from U.S. Court of Appeals for the Ninth Circuit
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Courts—Jurisdiction—Out-of-State Service—Summons—Defect
Whether, absent a showing of prejudice, this lawsuit should be dismissed because the summons served on the out-of-state defendants said they had 20 days to appear and answer rather than the 60 days specified by the long-arm service provisions of RCW 4.28.180.
No. 74135-2, Sammamish Pointe Homeowners Ass’n (plaintiff) v. Sammamish Pointe L.L.C. (respondent) LSP Corp. (petitioner); Sammamish Pointe L.L.C. (third party plaintiff) v. American First Roofing & Builders, Inc. (third party defendant). (settled & stricken)
116 Wn. App. 117 (2003)
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Criminal Law—Child Molestation—Instructions—Sexual Gratification
Whether “sexual gratification” is an element of the crime of child molestation that must be included in the “to convict” instruction or a definitional term that can be addressed in a separate instruction.
No. 74061-5, State (respondent) v. Lorenz (petitioner). (5/18/04)
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Criminal Law—Insanity—Competency to Stand Trial—Involuntary Commitment
(1) Whether due process requires proof by clear, cogent, and convincing evidence in order to commit an alleged misdemeanant for restoration of competency pursuant to RCW 10.77.090.
(2) Whether the defendant’s threatening behavior qualified as a “violent act” as defined in RCW 10.77.010(21).
No. 74126-3, Born (petitioner) v. Thompson (respondent). (moved to 6/30/04)
117 Wn. App. 57 (2003)
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Criminal Law—Insanity—Compulsory Psychiatric Examination—Self-Incrimination—Statute
Whether a criminal defendant, by pleading not guilty by reason of insanity, waives his statutory right under RCW 10.77.020(3) to refuse to answer possibly incriminating questions at an examination by the State’s mental health experts.
No. 75106-4, State (petitioner) v. Carneh (respondent). (6/30/04)
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Criminal Law—Parties to Offenses—Accomplices—Instructions—Inclusion in “To Convict” Instruction
Whether, when the “to convict” instruction referred only to acts of “the defendant,” and an accomplice actually committed some of the acts, the State failed to prove the crime as defined in the “to convict” instruction, requiring acquittal.
No. 74569-2, State (respondent) v. Teal (petitioner). (6/24/04)
117 Wn. App. 831 (2003)
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Criminal Law—Persistent Prison Misbehavior—Validity of Statute—Delegation of Legislative Power
Whether RCW 9.94.070(1), which makes it a felony for a prisoner to commit a serious prison infraction after losing all potential early release credits, unlawfully delegates legislative authority to the Department of Corrections.
No. 74383-5, State (respondent) v. Simmons (petitioner). (5/25/04)
117 Wn. App. 682 (2003)
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Criminal Law—Possession of a Controlled Substance—Elements—Mens Rea
Whether knowledge or intent is an element of possession of a controlled substance. See State v. Cleppe, 96 Wn.2d 373, 635 P.2d 435 (1981).
No. 74410-6, State (respondent) v. Bradshaw (petitioner); State (respondent) v. Latovlovici (petitioner). (6/24/04)
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Criminal Law—Reckless Endangerment—Unit of Prosecution—Elements—Mens Rea
(1) Whether the unit of prosecution for the crime of reckless endangerment is each person endangered or each endangering act.
(2) Whether the trial court erred by concluding the defendant possessed the requisite mens rea by constructive knowledge of the risks involved in her behavior, although the court found she lacked actual knowledge.
No. 74554-4, State (respondent) v. Graham (petitioner). (6/29/04)
117 Wn. App. 462 (2003) — published in part
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Criminal Law—Search & Seizure—Expectation of Privacy—Abandoned Item—Involuntary Abandonment
Whether the defendant’s trial counsel acted ineffectively by failing to challenge the search of an automobile in which the defendant was a passenger, on the theory that, even though the driver consented to the search, the seizure of the defendant was without probable cause, so that his abandonment of drugs found in the automobile was involuntary.
No. 74331-2, State (respondent) v. Reichenbach (petitioner). (5/13/04)
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Criminal Law—Sentencing—First Time Offender—Community Supervision—State Budget Constraints
Whether a sentencing court can decline to impose a first time offender sentencing option solely because the Department of Corrections, due to budget cuts, no longer will provide community supervision for first time offenders.
No. 74119-1, State (respondent) v. Throneberry (petitioner); In re the Personal Restraint Petition of Treva Throneberry. (dismissed as moot)
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Criminal Law—Statutes—Vagueness—Prostitution Loitering—“Known Prostitute”
Whether the Spokane ordinance prohibiting loitering for the purposes of prostitution is unconstitutionally vague in allowing consideration as evidence of purpose that a person is a “known prostitute,” without defining that term.
No. 74872-1, City of Spokane (petitioner) v. Neff (respondent). (5/13/04)
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Criminal Law—Statutes—Vagueness—Seat Belt Use
Whether evidence obtained in a vehicle stop based on a seat belt violation was properly suppressed because the seat belt law, RCW 46.61.688, is unconstitutionally vague in its reference to a federal motor vehicle safety standard.
No. 74109-3, State (petitioner) v. Eckblad (respondent). (5/18/04)
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Criminal Law—Trial Irregularities—Jury Exposure to Unadmitted Statements—New Trial
Whether the trial court should have granted the defendant’s motion for a new trial because written statements purportedly made by him, but never admitted into evidence, were inadvertently given to the jury.
No. 74544-7, State (respondent) v. Pete (petitioner). (moved to 6/30/04)
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Criminal Law—Weapon—Enhanced Punishment—Firearm—Proof
Whether, for purposes of a firearm sentence enhancement, the State must prove that the defendant knew of the firearm.
No. 74408-4, State (respondent) v. Barnes (petitioner). (6/8/04)
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Whether, for purposes of a firearm sentence enhancement, the trier of fact must explicitly find a “nexus” between the defendant and the firearm and between the firearm and the crime.
No. 74561-7, State (respondent) v. Willis (petitioner). (6/8/04)
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Damages—Property Damage—Improvements on Real Property—Measure of Damages
Whether the measure of damages for negligent destruction of a building is (a) the lesser of the cost to replace the building or the diminution in the value of the building, or (b) the lesser of the cost to replace the building or the diminution in the value of the real property, including the building.
No. 74280-4, Thompson (respondent) v. King Feed & Nutrition Serv., Inc. (petitioner) (see also Discovery—Request for Admission—Failure to Admit—). (moved to 6/30/04)
117 Wn. App. 260 (2003) — published in part
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Discovery—Exemptions—Work Product—Medical Information of Personal Injury Protection Insured
Whether the defendant in an auto accident lawsuit may discover a doctor’s report prepared for the plaintiff’s insurer in connection with the plaintiff’s claim for personal injury protection benefits, and may offer the doctor’s report or testimony at trial.
No. 74025-9, Harris (respondent) v. Drake (petitioner). (5/11/04)
116 Wn. App. 261 (2003)
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Discovery—Request for Admission—Failure to Admit—Sanctions
Whether the trial court erred in awarding attorney fees under CR 37 based on the defendant’s failure to admit negligence and cause.
No. 74280-4, Thompson (respondent) v. King Feed & Nutrition Serv., Inc. (petitioner) (see also Damages—Property Damage—Improvements on Real Property—). (moved to 6/30/04)
117 Wn. App. 260 (2003) — published in part
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Dismissal & Nonsuit—Two Voluntary Dismissals—Effect
Whether the circumstances of a plaintiff’s voluntary dismissals of two lawsuits against a defendant were such as to make the second dismissal an adjudication on the merits under CR 41(a)(4), thus precluding a third lawsuit on the same claim.
No. 74539-1 (cons. w/75328-8), Spokane County (petitioner) v. Specialty Auto & Truck Painting, Inc. (respondent); Faust (respondent) v. Bellingham Lodge #493, Loyal Order of Moose (petitioner). (6/29/04)
119 Wn. App. 391 (2003) — (74539-1)
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Elections—Primary Elections—Statutes—Vetoes
Whether ESB 6453, as signed by the Governor, which establishes a new primary election system, violates Const. art. II, §§ 19 or 38, or Const. art. III, § 12.
No. 75384-9, Washington State Grange (petitioner) v. Locke (respondent). (6/10/04)
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Elections—Primary Elections—Statutes—Emergency
Whether ESB 6453, as signed by the Governor, is subject to referendum.
No. 75392-0, Locke (petitioner) v. Reed (respondent). (6/10/04)
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Eminent Domain—Condemnee’s Attorney Fees—Condemnor’s Settlement Offer—Terms
Whether, for purposes of RCW 8.25.070(1)(b), which provides that a landowner in condemnation proceedings is entitled to attorney fees if the award exceeds the State’s written settlement offer by 10 percent or more, the settlement offer must set forth the condemnor’s assessment of the property’s fair market value, and must remain open for 30 days before trial.
No. 74464-5, State (petitioner) v. Costich (respondent). (6/24/04)
117 Wn. App. 491 (2003)
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Employment—Employment Contract—Arbitration Agreement—Enforceability
Whether an arbitration agreement in an employment contract is unconscionable and therefore unenforceable.
No. 74156-5, Zuver (petitioner) v. Airtouch Communications, Inc. (respondent). (6/8/04)
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Whether an arbitration agreement that an employee was required to sign as a condition of continued employment is unenforceable because it violates the employee’s right to a jury trial, violates public policy, or is unconscionable.
No. 74701-6, Adler (petitioner) v. Fred Lind Manor (respondent). (6/8/04)
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Government—Torts—Community Custody Supervision—Duty—Breach
(1) Whether the trial court improperly instructed the jury on the Department of Corrections’ legal responsibilities and the ability of a community corrections officer to arrest a supervised offender who presents a danger to the community.
(2) Whether inaction by the Department of Corrections was a proximate cause of injuries inflicted by a supervised offender, absent proof that, but for the Department’s negligence, the offender would have been incarcerated.
No. 74176-0, Joyce (respondent) v. State (petitioner). (5/27/04)
116 Wn. App. 569 (2003)
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Industrial Insurance—Vocational Rehabilitation Services—Administrative Action—Denial for Noncooperation—Judicial Review
Whether the decision to deny this worker’s request for vocational benefits was governed by former RCW 51.32.095, under which vocational rehabilitative services would be provided if necessary “in the sole opinion of the supervisor,” or by former RCW 51.32.110, under which a self-insured employee, with the department’s approval and “with notice to the worker,” could reduce, suspend, or deny compensation if the worker obstructed a medical evaluation.
No. 74247-2, Anderson (respondent) v. Weyerhaeuser (petitioner). (dismissed as moot)
116 Wn. App. 149 (2003)
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Labor Relations—Union Membership—Exclusive Bargaining Agent—Nonmember Participation—Agency Fees—Nonrepresentational Activities
Whether RCW 42.17.760, which provides that a labor organization may not use non-member agency fees for political purposes unless affirmatively authorized by the non-member, violates the First Amendment.
No. 74268-5 (cons. w/74316-9), State ex rel. Public Disclosure Comm’n (petitioner) v. Washington Educ. Ass’n (respondent); Davenport (petitioner) v. Washington State Educ. Ass’n (respondent). (5/27/04)
117 Wn. App. 625 (2003) — (74268-5)
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Libel & Slander—Elements—Falsity—Omissions—Material Facts
Whether, for purposes of a defamation action by a private figure against a media defendant, a news story that contains only truthful statements may nonetheless be false and defamatory if it omits material facts.
No. 74208-1, Mohr (petitioner) v. Grant (respondent). (5/13/04)
117 Wn. App. 75 (2003)
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Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—Personal Restraint Petition
Whether this personal restraint petitioner may challenge his 1994 commitment as a sexually violent predator on the ground that in the commitment proceedings, which were instituted after his parole for a sex crime had recently been revoked, the State failed to plead and prove a “recent overt act.”
No. 74556-1, In re the Personal Restraint Petition of Turay, Richard Turay (petitioner); State (respondent). (5/25/04)
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Pensions—Fire Fighters—Eligibility
Whether office staff employed by volunteer fire departments may participate in the volunteer fire fighters’ pension fund established by chapter 41.24 RCW.
No. 74354-1, Schrom (respondent) v. Bd. for Volunteer Firefighters (petitioner). (5/25/04)
117 Wn. App. 542 (2003)
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Public Employees—Coverage by Industrial Welfare Act—Statutory Amendment—Retroactivity
Whether a 2003 amendment to the Industrial Welfare Act, purporting to clarify that the legislature did not intend the Act to apply in all cases to the State and its political subdivisions, is retroactive.
No. 74529-3, McGinnis (appellant) v. State (respondent). (5/20/04)
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Release—Validity—Unfamiliarity With Language—Erroneous Translation—Effect
Whether one who signs a release may avoid being bound by it on the ground the release was written in a language unfamiliar to the signer and the signer reasonably relied on another’s erroneous translation or explanation of the document.
No. 74283-9, Leonida del Rosario (petitioner) v. Gene del Rosario (respondent). (5/25/04)
116 Wn. App. 886 (2003)
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Torts—Limitation of Liability—Validity—Public Policy
Whether a liability waiver provision in a registration form for a motorcycle training course violates public policy, thus making it unenforceable.
No. 74571-4, Petersen (petitioner) v. Sorensen (respondent). (review dismissed as improvidently granted)
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