Supreme Court Issues
September Term 2004

• Administrative Law—Judicial Review—Petition for Review—Service—Proof of Service
• Attorney & Client—Malpractice—Elements—Criminal Defense—Innocence of Underlying Crime—Proof—Acquittal
• Civil Rights—Deprivation—Fourth Amendment—Validity of Administrative Warrant
• Civil Rights—Law Against Discrimination—Hostile Work Environment—Limitation of Actions
• Constitutional Law—Due Process—Parent-Child Relationship—Autonomy in Child Rearing
• Criminal Law—Crimes—Merger—First Degree Assault—First Degree Robbery
• Criminal Law—Drug Court—Unavailability—Equal Protection
• Criminal Law—Evidence—Hearsay—Excited Utterance—Right of Confrontation
• Criminal Law—Evidence—Offer of Compromise—Admissibility
• Criminal Law—Evidence—Telephone Conversation—Privacy Act—Transmission Device—Speakerphone
• Criminal Law—Guilty Plea—Motion to Withdraw—Right to Counsel—Court Rules
• Criminal Law—Homicide—Felony Murder—Accomplice—Erroneous Instruction—Harmless Error
• Criminal Law—Homicide—Second Degree Felony Murder—Lesser Offenses—First Degree Manslaughter
• Criminal Law—Postconviction Relief—New Constitutional Rule—Retroactivity—Exceptional Sentence
• Criminal Law—Postconviction Relief—New Constitutional Rule—Retroactivity—Right of Confrontation
• Criminal Law—Punishment—Outside Standard Range—Mitigating Circumstances
• Criminal Law—Punishment—Sentence—Drug Offender Alternative—Eligibility—Funding
• Criminal Law—Punishment—Sentence—Firearm Enhancement—Absence of Jury Finding—Harmless Error
• Criminal Law—Punishment—Sentence—Outside Standard Range—Validity
• Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Prior Conviction—Foreign Conviction
• Criminal Law—Search & Seizure—Automobiles—Traffic Stop—Pat-Down Search of Passenger
• Criminal Law—Victims Compensation—Family Members of Homicide Victim—Grief Counseling—Time Restraints
• Criminal Law—Witnesses—Competency—Juveniles—Determination—Mental Ability to Understand Event—Evidence of Time of Occurrence
• Deeds—Validity—Restraint on Alienation—Statutory Prohibition—Religious Condition
• Divorce—Decree—Enforcement—Value of Stock Options Wrongly Exercised
• Divorce—Distribution of Property—Factors—Economic Circumstances—Protection Order—Effect
• Eminent Domain—Inverse Condemnation—Elements—Public Use
• Health—Health Departments—Authority—Smoking Regulations—Preemption—Conflict With State Law
• Industrial Insurance—Employer’s Immunity—Scope—Tort Claim—Intent to Injure—Willful Disregard of Knowledge—Proof
• Industrial Insurance—Time-Loss Compensation—Basis—Wages—Employer Contributions for Pensions and Insurance
• Insurance—Construction of Policy—Pollution Exclusion—Scope
• Juveniles—Custody—Nonparent Petition—Other Persons In Loco Parentis
• Juveniles—Negligence—Contributory Fault—Sexual Relationship with School Teacher
• Municipal Corporations—Torts—Nonclaim Statutes—Claims Against Municipal Employees
• Municipal Corporations—Torts—Nonclaim Statutes—Timeliness of Claim—Computation of Waiting Period
• Open Government—Public Disclosure—Exemptions—Investigative Records—Nondisclosure Essential for Effective Law Enforcement
• Prisons—Prisoner Property—Delivery to Prisoner Upon Transfer—Validity of Department Rule
• Taxation—Business & Occupation Tax—Manufacturing—Perishable Meat Products
• Taxation—LID—Assessments—Judicial Review—Collateral Attack—Civil Rights Action
• Taxation—State Estate Tax—Federal Tax Credits—Effect of Amendment to Federal Estate Tax

Administrative Law—Judicial Review—Petition for Review—Service—Proof of Service

Whether the manner of and proof of service of a petition for judicial review under the Administrative Procedure Act are “ancillary procedural matters,” RCW 34.05.510(2), and thus governed by CR 4.

No. 74768-7, Diehl (petitioner) v. W. Washington Growth Mgmt. Hearings Bd. (respondent). (9/30/04)

118 Wn. App. 212 (2003)

Attorney & Client—Malpractice—Elements—Criminal Defense—Innocence of Underlying Crime—Proof—Acquittal

Whether the plaintiff in a legal malpractice action stemming from a criminal prosecution must prove his actual innocence of the crime, and if so, whether acquittal on the criminal charge constitutes proof of actual innocence.

No. 74698-2, Ang (petitioner) v. Martin (respondent). (10/26/04)

118 Wn. App. 553 (2003)

Civil Rights—Deprivation—Fourth Amendment—Validity of Administrative Warrant

Whether a search made pursuant to an administrative search warrant, issued without statutory authority by a district court judge, violated the Fourth Amendment, thus subjecting to liability under 42 U.S.C. § 1983 those who obtained and executed the warrant.

No. 74934-5, Bosteder (petitioner) v. City of Renton (respondent) (see also Municipal Corporations—Torts—Nonclaim Statutes—). (10/26/04)

Civil Rights—Law Against Discrimination—Hostile Work Environment—Limitation of Actions

Whether, in applying the statute of limitations to hostile work environment claims brought under Washington’s Law Against Discrimination, this court should adopt the United States Supreme Court’s test for such actions under federal law, under which the entire time period of the hostile environment may be considered in determining liability, so long as an act contributing to the claim occurs within the limitations period. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).

No. 74759-8, Antonius (respondent) v. King County (petitioner). (9/30/04)

Constitutional Law—Due Process—Parent-Child Relationship—Autonomy in Child Rearing

Whether the non-parent visitation statute, RCW 26.09.240, offends the due process rights of fit parents to make child-rearing decisions regarding persons with whom their children may associate.

No. 75262-1, In re Parentage of Appel, Herlinde Appel (respondent); Christian Appel (petitioner). (11/16/04)

120 Wn. App. 199 (2004)

Criminal Law—Crimes—Merger—First Degree Assault—First Degree Robbery

Whether convictions for first degree assault should have merged with convictions for first degree robbery where the defendants shot or struck the victim during the robberies.

No. 74656-7 (cons. w/74861-6), State (respondent) v. Freeman (petitioner); State (petitioner) v. Zumwalt (respondent). (9/28/04)

118 Wn. App. 365 (2003) — Freeman
119 Wn. App. 126 (2003) — Zumwalt

Criminal Law—Drug Court—Unavailability—Equal Protection

Whether the unavailability of a drug court in the county where the defendant was prosecuted violated constitutional equal protection guarantees.

No. 74460-2 (cons. w/75337-7), State (respondent) v. Harner (petitioner); State (respondent) v. Keithley (appellant). (9/14/04)

Criminal Law—Evidence—Hearsay—Excited Utterance—Right of Confrontation

Whether the admission into evidence of a nontestifying assault victim’s 911 call, as an excited utterance, violated the defendant’s confrontation rights in light of Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

No. 73893-9 (cons. w/73894-7), State (respondent) v. Davis (petitioner); State (respondent) v. Mills (petitioner). (supplemental argument on this issue in Davis only). (rehearing 9/14/04)

Criminal Law—Evidence—Offer of Compromise—Admissibility

Whether Evidence Rule 408, which prohibits admission into evidence of an offer to compromise a claim, applies to criminal trials.

No. 75023-8, State (respondent) v. O’Connor (petitioner). (10/28/04)

119 Wn. App. 530 (2003) — published in part

Criminal Law—Evidence—Telephone Conversation—Privacy Act—Transmission Device—Speakerphone

Whether testimony recounting a conversation overheard by the clandestine use of the speakerphone function of the base unit of a cordless telephone should have been excluded from this criminal trial as obtained in violation of the Washington Privacy Act.

No. 74839-0, State (respondent) v. Christensen (petitioner). (10/19/04)

119 Wn. App. 74 (2003)

Criminal Law—Guilty Plea—Motion to Withdraw—Right to Counsel—Court Rules

Whether a defendant who brings a motion to withdraw a guilty plea after judgment, under CrR 7.8, has a right to counsel pursuant to CrR 3.1.

No. 74611-7, State (respondent) v. Robinson (petitioner). (9/14/04)

Criminal Law—Homicide—Felony Murder—Accomplice—Erroneous Instruction—Harmless Error

Whether, in this felony murder prosecution, an error in the accomplice liability instruction was harmless.

No. 74907-8, State (respondent) v. Carter (petitioner). (10/21/04)

119 Wn. App. 221 (2003) — published in part

Criminal Law—Homicide—Second Degree Felony Murder—Lesser Offenses—First Degree Manslaughter

Whether, as part of the remedy for an Andress error (Personal Restraint Petition of Andress, 147 Wn.2d 602 (2002)), first degree manslaughter may be treated as a lesser included offense of second degree felony murder.

No. 74414-9, State (respondent) v. Gamble (petitioner). (11/10/04)

118 Wn. App. 332 (2003)

Criminal Law—Postconviction Relief—New Constitutional Rule—Retroactivity—Exceptional Sentence

Whether Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) applies on collateral review to cases final before Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. ed. 2d 435 (2000), and to cases final after Apprendi but before Blakely.

No. 74851-9 (cons. w/75766-6), State (respondent) v. Evans (petitioner); In re the Personal Restraint Petition of Swenson, Shawn Swenson (petitioner); State (respondent). (11/10/04)

Criminal Law—Postconviction Relief—New Constitutional Rule—Retroactivity—Right of Confrontation

Whether these petitioners’ 1991 child rape convictions should be overturned because the admission of hearsay statements made by the alleged victim violated their right of confrontation under Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

No. 75459-4 (cons. w/75537-0), In re the Personal Restraint Petition Markel, Eric Markel (petitioner); State (respondent); In re the Personal Restraint Petition of Markel, Leadee Markel (petitioner); State (respondent). (11/10/04)

Criminal Law—Punishment—Outside Standard Range—Mitigating Circumstances

Whether a trial court may consider factors personal to the defendant as a reason for imposing a sentence below the standard range.

No. 74390-8, State (respondent) v. Law (petitioner). (9/23/04)

Criminal Law—Punishment—Sentence—Drug Offender Alternative—Eligibility—Funding

Whether the trial court erred in declining to consider the drug offender sentencing alternative for this defendant based on its understanding that the alternative was underfunded.

No. 74913-2, State (respondent) v. Grayson (petitioner). (10/26/04)

Criminal Law—Punishment—Sentence—Firearm Enhancement—Absence of Jury Finding—Harmless Error

Whether the sentencing court’s imposition of a firearm enhancement, based on a jury finding that the defendant was armed only with a “deadly weapon,” violated Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and if so, whether the error is subject to harmless error analysis.

No. 74964-7, State (respondent) v. Recuenco (petitioner). (11/9/04)

Criminal Law—Punishment—Sentence—Outside Standard Range—Validity

Whether these defendants’ exceptional sentences must be overturned in light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

No. 74147-6 (cons. w/75053-0 & 75063-7), State (respondent) v. Hughes (appellant); State (respondent) v. Selvidge (petitioner); State (respondent) v. Anderson (petitioner). (11/9/04)

Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Prior Conviction—Foreign Conviction

Whether the defendant’s prior federal bank robbery conviction is comparable to the Washington crime of second degree robbery and thus counts as a “strike” against the defendant under the Persistent Offender Accountability Act.

No. 75340-7, In re the Personal Restraint Petition of Lavery, Leonard Lavery (petitioner); State (respondent). (11/9/04)

Criminal Law—Search & Seizure—Automobiles—Traffic Stop—Pat-Down Search of Passenger

Whether the pat-down of an automobile passenger was valid because he made a furtive movement during a traffic stop.

No. 75026-2, State (respondent) v. Nevarez (petitioner ). (11/16/04)

Criminal Law—Victims Compensation—Family Members of Homicide Victim—Grief Counseling—Time Restraints

Whether the expense of counseling starting four years after a family member’s homicide qualifies for payment under the Crime Victims’ Compensation Act, which allows benefits for counseling “to assist in dealing with the immediate, near-term consequences of the related effects of the homicide.” RCW 7.68.070(17).

No. 74908-6, Dep’t of L&I (respondent) v. Gongyin (petitioner). (10/21/04)

119 Wn. App. 188 (2003)

Criminal Law—Witnesses—Competency—Juveniles—Determination—Mental Ability to Understand Event—Evidence of Time of Occurrence

Whether the trial court erred in finding two witnesses, ages 4 and 5, competent to testify about the abuse they allegedly suffered, on grounds the court failed to determine when the events allegedly occurred.

No. 74886-1, State (respondent) v. Woods (petitioner). (10/21/04)

Deeds—Validity—Restraint on Alienation—Statutory Prohibition—Religious Condition

Whether RCW 49.60.224, which prohibits restrictions in deeds based on creed, violates the First Amendment and article I, section 11 of the Washington Constitution because it interferes with the free exercise of religion.

No. 74782-2, Niemann (petitioner) v. Vaughn Cmty. Church (respondent). (10/19/04)

118 Wn. App. 824 (2003)

Divorce—Decree—Enforcement—Value of Stock Options Wrongly Exercised

Whether the value of stock options that an ex-spouse exercised in violation of a dissolution decree should be determined as of the date the options were exercised or as of the date the stock obtained with the options was sold.

No. 74508-1, In re Marriage of Langham & Kolde, Margo Thomas (petitioner); Velle Kolde (respondent). (9/30/04)

Divorce—Distribution of Property—Factors—Economic Circumstances—Protection Order—Effect

Whether the trial court, in distributing the property in this dissolution action, improperly considered a protection order obtained by the wife that caused the husband to lose his job as a deputy sheriff.

No. 75061-1, In re Marriage of Muhammad, Dawud Muhammad (respondent); Cherry Muhammad (petitioner). (10/28/04)

119 Wn. App. 166 (2003)

Eminent Domain—Inverse Condemnation—Elements—Public Use

Whether the State’s logging of public land to provide money for public schools qualifies as a “public use” for purposes of an inverse condemnation claim by a downhill landowner whose property was damaged as a result of the logging.

No. 74619-2, Dickgieser (petitioner) v. State (respondent). (9/14/04)

118 Wn. App. 442 (2003)

Health—Health Departments—Authority—Smoking Regulations—Preemption—Conflict With State Law

Whether the Clean Indoor Air Act, chapter 70.160 RCW, preempts the authority of a county health department to ban smoking in indoor public places.

No. 75675-9, Entertainment Indus. Coalition (respondent) v. Tacoma-Pierce County Health Dep’t (petitioner). (11/16/04)

Industrial Insurance—Employer’s Immunity—Scope—Tort Claim—Intent to Injure—Willful Disregard of Knowledge—Proof

Whether a school district “willfully disregarded” the certain injury of a special education teacher at the hands of a student and thus cannot claim immunity from tort liability to the teacher.

No. 74857-8, Vallandigham (petitioner) v. Clover Park Sch. Dist. 400 (respondent). (10/26/04)

119 Wn. App. 95 (2003)

Industrial Insurance—Time-Loss Compensation—Basis—Wages—Employer Contributions for Pensions and Insurance

Whether, for purposes of calculating time-loss compensation under the Industrial Insurance Act, “wages” include employer contributions to pension funds and funds providing life and long-term disability insurance.

No. 74849-7 (cons. w/75064-5 (cons. w/75070-0; 75071-8; 75088-2)), Gallo (petitioner) v. Dep’t of L&I (respondent); Renshaw (appellant) v. Dep’t of L&I (respondent). (11/16/04)

119 Wn. App. 49 (2003) — Gallo

Insurance—Construction of Policy—Pollution Exclusion—Scope

Whether the pollution exclusion in a landlord’s insurance policy precludes coverage for injuries sustained by a tenant who inhaled toxic fumes from a deck sealant being applied by a contractor.

No. 74663-0, Quadrant Corp. (petitioner) v. American States Ins. Co. (respondent). (9/28/04)

118 Wn. App. 525 (2003)

Juveniles—Custody—Nonparent Petition—Other Persons In Loco Parentis

Whether a person who stands in loco parentis to a child should be afforded the same protections as a parent during a nonparental custody proceeding under chapter 26.10 RCW.

No. 74699-1, In re Custody of Brown, Luby (petitioner); DeSilva (respondent). (10/19/04)

118 Wn. App. 71 (2003)

Juveniles—Negligence—Contributory Fault—Sexual Relationship with School Teacher

Whether a 13-year-old victim of sexual abuse by her teacher on school premises, who brings a negligence action against the school district and her principal for failure to supervise or for negligent hiring of the teacher, may have contributory fault assessed against her under the Washington Tort Reform Act for her participation in the relationship.

No. 75214-1, Christensen (plaintiff) v. Royal Sch. Dist. 160 (defendant). (9/23/04)

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

Municipal Corporations—Torts—Nonclaim Statutes—Claims Against Municipal Employees

Whether a claim against an employee of a local governmental entity, based on conduct in his official capacity, must first be filed with the governmental entity pursuant to RCW 4.96.020.

No. 74934-5, Bosteder (petitioner) v. City of Renton (respondent) (see also Civil Rights—Deprivation—Fourth Amendment—). (10/26/04)

Municipal Corporations—Torts—Nonclaim Statutes—Timeliness of Claim—Computation of Waiting Period

Whether the 60-day waiting period for commencement of tort actions against a local governmental entity, see RCW 4.96.020(4), elapses on the 60th or the 61st day.

No. 74986-8, Troxell (respondent) v. Rainier Pub. Sch. Dist. 307 (petitioner). (11/10/04)

119 Wn. App. 361 (2003)

Open Government—Public Disclosure—Exemptions—Investigative Records—Nondisclosure Essential for Effective Law Enforcement

Whether the Department of Corrections can refuse to disclose the names of medical professionals who provided care to inmates, and who were disciplined or investigated concerning that care, on grounds that nondisclosure is essential to effective law enforcement. See RCW 42.17.310(d).

No. 74890-0, Prison Legal News, Inc. (petitioner) v. DOC (respondent). (10/21/04)

Prisons—Prisoner Property—Delivery to Prisoner Upon Transfer—Validity of Department Rule

Whether the Department of Corrections rule regarding delivery of personal property when inmates are transferred from one facility to another conflicts with RCW 72.02.045, which requires the superintendent of each correctional institution to deliver all personal property belonging to inmates upon transfer or discharge.

No. 74731-8, Burton (petitioner) v. Lehman (respondent). (9/28/04)

118 Wn. App. 307 (2003)

Taxation—Business & Occupation Tax—Manufacturing—Perishable Meat Products

Whether a manufacturing process that uses perishable meat products to produce a nonperishable product is taxable under RCW 82.04.260(4), which imposes a reduced manufacturing tax rate on processing perishable meat products.

No. 74478-5, Agrilink Foods, Inc. (petitioner) v. Dep’t of Revenue (respondent). (10/19/04)

Taxation—LID—Assessments—Judicial Review—Collateral Attack—Civil Rights Action

Whether a property owner’s failure to employ statutory procedures to challenge a local improvement district assessment precludes the owner from later bringing constitutional challenges to the assessment.

No. 74526-9, Tiffany Family Trust Corp. (petitioner) v. City of Kent (respondent). (9/28/04)

119 Wn. App. 262 (2003)

Taxation—State Estate Tax—Federal Tax Credits—Effect of Amendment to Federal Estate Tax

Whether the congressional elimination of the state tax credit from the federal estate tax scheme effectively also eliminated state estate tax liability under chapter 83.100 RCW.

No. 74974-4, Estate of Hemphill (appellant) v. Dep’t of Revenue (respondent). (9/30/04)