Washington State Courts - Supreme Court Issue Summaries
Supreme Court Issues
May Term 2005
Administrative Law—Rules—Interpretive Rules—Agency Authority—Legal Effect
Whether the Washington Department of Revenue had either statutory or inherent authority to adopt rules interpreting sections of the tax code, and if so, whether the rules are nonbinding or have the force of law.
No. 75623-6, Ass’n of Washington Bus. (petitioner) v. Dep’t of Revenue (respondent). (5/17/05)
121 Wn. App. 766 (2004)
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Constitutional Law—Freedom of Speech—Prior Restraint
Whether an antiharassment order prohibiting petitioner from posting information on the internet about the low-income housing center where he formerly lived or about its staff or residents was an unconstitutional prior restraint on speech.
No. 75977-4, In re Trummel (petitioner) v. Mitchell (respondent); Mitchell (respondent) v. Trummel (petitioner). (6/23/05)
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Constitutional Law—Supremacy & Commerce Clauses—Sovereign Immunity—Statutory Interpretation—Mixed Radioactive & Nonradioactive Hazardous Waste
Whether the “Cleanup Priority Act,” enacted by the voters as Initiative 297 and codified as chapter 70.105E RCW, can be interpreted in various particulars so as to avoid either violating on its face the supremacy and commerce clauses of the U.S. Constitution or overstepping the United States’ waiver of sovereign immunity in the Resource Conservation and Recovery Act, 42 U.S.C. § 6961(a).
No. 76629-1, Unites States (plaintiff) v. Hoffman (defendant). (5/19/05)
Certified Questions from U.S. District Court, Eastern District of Wash.
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Criminal Law—Evidence—Hearsay—Child Hearsay—Right of Confrontation
Whether child hearsay statements were wrongly admitted under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) either because they were “testimonial” in nature or because the child hearsay statute under which they were admitted, RCW 9A.44.120, is facially unconstitutional.
No. 75605-8, State (respondent) v. Shafer (appellant). (6/30/05)
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Criminal Law—First Degree Driving While License Suspended or Revoked—Elements—Habitual Traffic Offender Status—Evidence—Sufficiency
Whether a Department of Licensing document stating that a defendant’s license has been “revoked in the first degree” is sufficient to support a conviction for first degree driving with a revoked license, which is committed by driving with a license that has been revoked because the driver was a habitual offender.
No. 75928-6, State (respondent) v. Smith (Calvin) (petitioner). (6/23/05)
122 Wn. App. 699 (2004)
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Criminal Law—Former Jeopardy—Effect of Hung Jury
Whether a guilty verdict on a lesser-included offense, entered after the jury expressly deadlocks on the greater offense, bars retrial on the greater offense.
No. 75784-4, State (petitioner) v. Linton (respondent). (5/26/05)
122 Wn. App. 73 (2004)
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Criminal Law—Guilty Plea—Multiple Charges & Enhancements—Withdrawal—Separable or Indivisible
Whether the defendant, who pleaded guilty to multiple counts of robbery with the misunderstanding that deadly weapon enhancements would run concurrently rather than consecutively, should be allowed to withdraw his plea only as to the weapon enhancements.
No. 75771-2, State (petitioner) v. Bisson (respondent). (6/28/05)
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Criminal Law—Homicide—Justifiable Homicide—Prevention of Felony
Whether the trial court erred by failing to instruct the jury that a homicide is justified if committed to prevent a robbery.
No. 72919-1, State (respondent) v. Brightman (petitioner) (see also Criminal Law—Trial—Right to Public Trial—). (6/9/05)
112 Wn. App. 260 (2002) — published in part
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Criminal Law—Insanity—Confinement—Release from Confinement—Mental Disease or Defect
Whether a diagnosis that an insanity acquitee suffers from polysubstance abuse and a “personality disorder not otherwise specified,” coupled with a finding that she will become dangerous if released, constitutes sufficient grounds to deny her petition for unconditional release under chapter 10.77 RCW.
No. 75715-1, State (respondent) v. Klein (petitioner). (6/7/05)
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Criminal Law—Punishment—Restitution
Whether a trial judge’s imposition of restitution—based on facts found by a preponderance of the evidence in a postjudgment hearing—violated the defendant’s rights to a jury trial and due process as explicated in Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)
No. 76051-9, State (respondent) v. Kinneman (petitioner). (6/30/05)
122 Wn. App. 850 (2004)
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Criminal Law—Punishment—Sentence—Outside Standard Range—Validity
Whether, under Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), a jury must decide whether the multiple offense policy of the Sentencing Reform Act results in a presumptive sentence that is too lenient, thus justifying an exceptional sentence, for a defendant whose offender score is greater than nine.
No. 75635-0 (cons. w/76195-7), State (respondent) v. Brown (petitioner); Personal Restraint Petition of Brown, Byron Lee Brown (petitioner); State (respondent) (see also Criminal Law—Search & Seizure—Vehicle Passenger—). (5/10/05)
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Criminal Law—Right to Jury—Impartial Jury
Whether the trial court violated the defendant’s right to a jury trial, under either the state or federal constitutions, by replacing a deliberating juror with an alternate juror.
No. 75637-6, State (petitioner) v. Elmore (respondent). (5/17/05)
121 Wn. App. 747 (2004) — published in part
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Criminal Law—Search & Seizure—Arrest on Misdemeanor Traffic Warrant—Warrantless Entry of Residence—Officer Safety
Whether officers who arrested the defendant outside her apartment on a misdemeanor traffic warrant were justified in accompanying a visitor whom the defendant sent to get bail money from her bedroom, where the officers found drugs.
No. 75545-1, State (respondent) v. Kull (petitioner). (5/24/05)
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Criminal Law—Search & Seizure—Consent—Cohabitants of Residence
Whether police, having been given consent to search an apartment by one of its residents, must also affirmatively obtain consent from another resident encountered during the search.
No. 75915-4, State (respondent) v. Morse (petitioner). (6/9/05)
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Criminal Law—Search & Seizure—Special Needs Doctrine—Collection of Biological Samples—Convicted Persons
Whether the collection of biological samples from persons convicted of felonies or some misdemeanors to create a DNA database, as required by RCW 43.43.754, violates the Fourth Amendment or the Washington Constitution.
No. 76013-6, State (respondent) v. Surge (petitioner). (5/26/05)
122 Wn. App. 448 (2004)
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Criminal Law—Search & Seizure—Vehicle Passenger—Request for Name—Collateral Attack
Whether the defendant may obtain relief by personal restraint petition on his claim that the officer who stopped the car in which he was a passenger violated his constitutional rights by asking his name.
No. 75635-0 (cons. w/76195-7), State (respondent) v. Brown (petitioner); Personal Restraint Petition of Brown, Byron Lee Brown (petitioner); State (respondent) (see also Criminal Law—Punishment—Sentence—). (5/10/05)
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Criminal Law—Theft—Identity Theft—Second Degree Identity Theft—Elements—Value
Whether the value of property unlawfully obtained by identity theft is an essential element of second degree identity theft.
No. 75866-2, State (respondent) v. Leyda (petitioner) (see also Criminal Law—Theft—Identity Theft—Unit of Prosecution—). (5/24/05)
122 Wn. App. 633 (2004)
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Criminal Law—Theft—Identity Theft—Unit of Prosecution—Use of Stolen Credit Card
Whether each use of a stolen credit card constitutes a unit of prosecution of the crime of identity theft.
No. 75866-2, State (respondent) v. Leyda (petitioner) (see also Criminal Law—Theft—Identity Theft—Second Degree Identity Theft—). (5/24/05)
122 Wn. App. 633 (2004)
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Criminal Law—Theft—Third Degree—Elements—Value—Adequacy of Information
Whether the value of property stolen is an essential element of third degree theft that must be alleged in the information.
No. 75728-3, State (respondent) v. Tinker (petitioner). (5/24/05)
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Criminal Law—Trial—Right to Public Trial—Closure
Whether the defendant was denied the right to a public trial when spectators were excluded from the courtroom during jury selection..
No. 72919-1, State (respondent) v. Brightman (petitioner) (see also Criminal Law—Homicide—Justifiable Homicide—). (6/9/05)
112 Wn. App. 260 (2002) — published in part
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Employment—Compensation—Minimum Wage—Exclusions—Employees Required to Sleep at Place of Employment
Whether sheepherders who slept and lived full time at the ranch where they worked were excluded from the Washington Minimum Wage Act’s hourly wage requirements.
No. 75549-3, Berrocal (respondent) v. Fernandez (petitioner). (5/12/05)
120 Wn. App. 555 (2004)
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Employment—Termination—Violation of Public Policy—Constructive Discharge—Necessity of Resignation
Whether resignation from the job is a requirement of a constructive discharge claim.
No. 75662-7, Korslund (respondent) v. DynCorp Tri-Cities Servs., Inc. (petitioner). (6/7/05)
121 Wn. App. 295 (2004)
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Government—Torts—Duty—Persons Injured by Dependent Children
Whether the Department of Social and Health Services, by virtue of a placement recommendation or decision regarding a dependent child, has a duty to a person injured by the child’s later criminal violence, on the basis of the “take charge” exception to the public duty doctrine set forth in Restatement (Second) Torts § 319.
No. 76723-8, Sheikh (respondent) v. Choe (appellant). (6/9/05)
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Industrial Insurance—Employer’s Immunity—Employment Relationship—Volunteer Firefighter
Whether a volunteer firefighter, for whom a town pays benefit premiums under chapter 41.24 RCW, is employed by the town for purposes of the employer immunity afforded by the Industrial Insurance Act.
No. 75824-7, Doty (respondent) v. Town of South Prairie (petitioner). (6/23/05)
122 Wn. App. 333 (2004)
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Industrial Insurance—Employer’s Immunity—Scope—Maritime Injury—Federal Preemption
Whether RCW 51.12.100(1), which provides that the Industrial Insurance Act shall not apply to workers who have rights under federal maritime laws, precludes these workers from bringing tort claims against their employers for intentional exposure to asbestos.
No. 75606-6, Gorman (petitioner) v. Garlock, Inc. (defendant) Lockheed Shipbuilding Co. (respondent); Helton (petitioner) v. Todd Shipyards Corp. (respondent). (5/24/05)
121 Wn. App. 530 (2004)
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Juveniles—Paternity—Artificial Insemination—Statutes
Whether respondent, who donated sperm used to artificially inseminate petitioner, and who signed an affidavit of paternity acknowledging that he was the father of one of the two children born through this means, should be presumed the father of the two children. See former RCW 26.26.040(1)(e); former RCW 26.26.050(2).
No. 75563-9, In re Parentage of Kepl, Teresa Brock (petitioner); Michael Kepl (respondent). (5/12/05)
121 Wn. App. 578 (2004)
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Land Use—Growth Management Act—Critical Areas—Best Available Science
Whether a county complied with the Growth Management Act’s requirement to use the best available science in developing critical areas policies.
No. 75493-4, Ferry County (petitioner) v. Concerned Friends of Ferry County (respondent). (5/12/05)
121 Wn. App. 850 (2004)
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Land Use—Judicial Review—Land Use Petition Act—Noting Initial Hearing—Improper Noting—Effect
Whether a land use petition must be dismissed if the petitioner fails to note an initial hearing within seven days, as required by RCW 36.70C.080(1).
No. 76082-9, Conom (appellant) v. Snohomish County (respondent). (6/7/05)
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Municipal Corporations—Meetings—Notice—Sufficiency—Publication on Website
Whether Sound Transit provided statutorily adequate notice of a meeting to consider condemnation of property by posting the meeting agenda on its website.
No. 76284-8, Central Puget Sound Reg’l Transit Auth. (respondent) v. Miller (appellant). (5/26/05)
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Municipal Corporations—Taxation—Local Tax—Excise or Property Tax—Statutory Authority
Whether motor vehicle excise taxes levied by the Central Puget Sound Regional Transit Authority and the Seattle Popular Monorail Authority are lawful.
No. 76036-5, Sheehan (appellant) v. Central Puget Sound Reg’l Transit Auth. (respondent). (5/19/05)
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Open Government—Public Disclosure—Attorney Fees—Prevailing Party
Whether petitioners, who intervened in this Public Disclosure Act lawsuit seeking the same documents they had sought by separate lawsuit, and who moved for summary judgment in this action but did not independently move for an order to show cause, were entitled to attorney fees as prevailing parties when the documents were disclosed in a third lawsuit.
No. 75577-9, Spokane Research & Def. Fund (plaintiff) Connor (petitioner) v. City of Spokane (respondent). (6/7/05)
121 Wn. App. 584 (2004)
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Open Government—Public Disclosure—Exemptions—Child Victim of Sexual Assault—Personal Privacy
Whether police records relating to a named child victim of sexual assault are completely exempt from disclosure under the public disclosure act.
No. 75889-1, Koenig (respondent) v. City of Des Moines (petitioner). (6/28/05)
123 Wn. App. 285 (2004)
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Schools—Employment Relations—Compensation—Cost of Living Increases—Initiative Measure
Whether the State violated Initiative 732 when it reduced the number of teacher learning days for the 2002-03 school year, because this reduction resulted in a cost of living salary increase for teachers that was smaller than the initiative required.
No. 75878-6, Brown (Jason) (respondent) v. State (appellant). (cont’d to 6/28/05)
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Statutes—Initiatives—Validity—Scope of Initiative Power
Whether the trial court properly dismissed this pre-election action seeking to preclude submission to the voters of the noneconomic damages and attorney fee provisions of Initiative 330.
No. 76818-8, Coppernoll (appellant) v. Reed (respondent). (6/30/05)
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Statutes—Referendum Power—“Emergency” Clause—Validity
Whether the sections of SB 6078 which temporarily remove the statutory requirement of a 2/3 majority of each house of the Legislature to raise state revenue are subject to referendum, notwithstanding a provision that those sections take effect immediately.
No. 77010-7, State Farm Bureau Fed’n (petitioner) v. Reed (respondent). (6/30/05)
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Taxation—Property Taxation—Assessed Value—Valuation Date—Multiyear Valuation Cycle
Whether the proper date of property valuation, for purposes of a “mid-cycle” challenge to a property tax assessment in a county which uses a multiyear cyclical revaluation system, is January 1 of the last cyclical revaluation year or January 1 of the year for which the challenged tax is assessed.
No. 75641-4, Advanced Silicon Materials LLC (respondent) v. Grant County (petitioner). (5/19/05)
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Telecommunications—Railroads—Right of Way—Telecommunication Lines—Installation—Incidental Use Doctrine
Whether a buried fiber-optic telecommunications cable is an incidental use of a railroad right of way, such that the owner of the servient estate is not entitled to separate compensation.
No. 75982-1, Kershaw Sunnyside Ranches, Inc. (petitioner) v. Yakima Interurban Lines Ass’n (defendant) Level 3 Communications, LLC (respondent). (6/28/05)
121 Wn. App. 714 (2004)
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Utility Services—Rates—Municipal Taxes—Pass-Through to Ratepayers—Validity
Whether the Washington Utilities and Transportation Commission properly allowed utilities to pass through to all customers living within the boundaries of the Yakima Indian Reservation a tax imposed on the utilities by the Yakama Indian Nation.
No. 75821-2, Willman (petitioner) v. Utilities & Transp. Comm’n (respondent). (6/23/05)
122 Wn. App. 194 (2004)
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