Supreme Court Issues
January Term 2006

• Contracts—Arbitration Clause—Enforceability—Public Policy
• Contracts—Forum Selection Clause—Enforceability—Public Policy
• Corporations—Dissolution—Action Against Corporation—Postdissolution Claim
• Criminal Law—Appeal—Death of Defendant—Effect
• Criminal Law—Arrest—Driving While License Suspended—Validity of Suspension—Search Incident to Arrest
• Criminal Law—Arrest—Misdemeanor Arrest—Statute—Constitutionality
• Criminal Law—Child Molestation—Instructions—Voluntary Intoxication—Necessity
• Criminal Law—Child Molestation—Lesser Offenses—Fourth Degree Assault
• Criminal Law—Child Pornography—Possession—Attempt—Elements—Age of Person Depicted
• Criminal Law—Communication With a Minor for Immoral Purposes—Necessity That Minor Read or Understand Message
• Criminal Law—Controlled Substances—Methamphetamine—Form of Substance
• Criminal Law—Controlled Substances—Punishment—Second or Subsequent Offense—Doubling of Maximum Penalty or Standard Range
• Criminal Law—Evidence—Suppression—Recording of Interstate Telephone Call—Violation of Washington Privacy Law
• Criminal Law—Former Jeopardy—Multiple Convictions—Attempted Second Degree Murder & First Degree Assault—Remedy
• Criminal Law—Homicide—Aggravated First Degree Murder—Aggravating Circumstance—Robbery—Proof—Sufficiency
• Criminal Law—Indigent Defendant—Services Other Than a Lawyer—Court Rules
• Criminal Law—Plea of Guilty—Factual Basis
• Criminal Law—Privacy—Privacy Act—Private Conversation—What Constitutes
• Criminal Law—Punishment—Sentence—Criminal History—Community Placement—Determination by Jury—Necessity
• Criminal Law—Punishment—Sentence—Criminal History—Prior Convictions—Juvenile Adjudications—Proof
• Criminal Law—Right of Confrontation—Statement of Child Victim—“Testify”—What Constitutes
• Criminal Law—Search & Seizure—Expectation of Privacy—Motel Guest Registry
• Criminal Law—Search & Seizure—Seizure of Evidence—Expectation of Privacy
• Criminal Law—Sentence—Special Sex Offender Alternative—Factors—Validity—Deportation
• Criminal Law—Speedy Trial—Excluded Period—Foreign Incarceration—Detainer Requirement—Good Faith & Due Diligence
• Criminal Law—Victims’ Credibility—Opinions of Other Witnesses—Nature of Error—“Manifest” Constitutional Error
• Criminal Law—Weapon—Enhanced Punishment—Armed With Firearm—Continuing Crime—Presence of Firearm
• Criminal Law—Weapon—Enhanced Punishment—Armed With Firearm—Proof—Nexus—Actual Possession
• Discovery—Abuse of Discovery—Sanctions—Degree—Harsher Sanctions
• Easements—Express Easements—Abandonment—Determination—Factors
• Employment—Safe Workplace—Administrative Enforcement—Department of Labor & Industries—Ergonomics-Related Safety Hazards
• Guaranty & Suretyship—Performance Bond—Declaration of Default as Condition of Surety’s Liability
• Guaranty & Suretyship—Performance Bond—Action to Obtain Benefit of Bond—Attorney Fees
• Industrial Insurance—Disability—Industrial Injury—Successive Employers—Last Injurious Exposure Rule
• Insurance—Health Care Insurance—Provider Contracts—Arbitration—Regulation Providing “Fair Review” Protection—Validity—Federal Preemption
• Insurance—Health Care Insurance—Provider Contracts—Arbitration Clauses—Unconscionability
• Land Use—Growth Management Act—Critical Areas
• Land Use—Growth Management Act—Implementing Ordinances—Referendum Power
• Land Use—Shoreline Management—Moratorium on Shoreline Development—Municipality’s Authority
• Open Government—Public Disclosure—Exemptions—Files Maintained for Students—Scope
• Public Contracts—Construction Contracts—Prevailing Wages—Scope—Delivery of Materials—Incorporation of Materials Into Project
• Statutes—Initiatives—Validity—Impairment of Contracts
• Vendor & Purchaser—Construction Defect—Claim Notice—When Required
• Wills—Contest—Citation—Necessity

Contracts—Arbitration Clause—Enforceability—Public Policy

Whether a contractual arbitration clause that prohibits class actions is unconscionable and thus unenforceable on the ground that it effectively eliminates consumers’ ability to assert their rights.

No. 77406-4, Scott (petitioner) v. Cingular Wireless (respondent). (2/28/26)

Contracts—Forum Selection Clause—Enforceability—Public Policy

Whether a contractual forum selection clause selecting a forum that does not allow consumer lawsuits to be brought as class actions is unenforceable in Washington as a waiver of protections under the Consumer Protection Act.

No. 77101-4, Dix (respondent) v. ICT Group, Inc. (petitioner). (2/28/06)

125 Wn. App. 929 (2005)

Corporations—Dissolution—Action Against Corporation—Postdissolution Claim

Whether a condominium owners association may sue a contractor corporation on a breach of contract claim that arose after the corporation dissolved.

No. 76938-9, Ballard Square Condo. Owners Ass’n (petitioner) v. Dynasty Constr. Co. (respondent). (3/2/06)

126 Wn. App. 285 (2005)

Criminal Law—Appeal—Death of Defendant—Effect

Whether this state should abandon the doctrine of abatement, under which the death of a defendant during the appeal of his criminal conviction requires vacation of the conviction and attendant punishment, penalties, and assessments.

No. 76947-8, State (petitioner) v. Devin (respondent). (3/14/06)

Criminal Law—Arrest—Driving While License Suspended—Validity of Suspension—Search Incident to Arrest

Whether a court should suppress evidence gained in a search incident to the arrest of a driver for driving with a suspended license, when the arrest was made prior to City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004), which held license suspensions like this driver’s suspension to be unconstitutional.

No. 77822-1 (cons. w/77849-3), State (respondent) v. Potter (petitioner); State (respondent) v. Holmes (petitioner). (3/21/06)

129 Wn. App. 494 (2005) — Potter
129 Wn. App. 24 (2005) — Holmes

Criminal Law—Arrest—Misdemeanor Arrest—Statute—Constitutionality

Whether RCW 10.31.100 unconstitutionally expands police authority to arrest without a warrant by permitting arrests for cannabis-related misdemeanors committed outside the officer’s presence.

No. 76743-2, State (respondent) v. Walker (petitioner). (1/24/06)

Criminal Law—Child Molestation—Instructions—Voluntary Intoxication—Necessity

Criminal Law—Child Molestation—Lesser Offenses—Fourth Degree Assault

Whether the defendant in a prosecution for child molestation may be entitled to a voluntary intoxication instruction even though intent is not an element of the crime, given that the State must prove sexual contact, which requires a touching for the purpose of sexual gratification.

Whether fourth degree assault is a lesser included offense of child molestation.

No. 77112-0, State (petitioner) v. Stevens (respondent). (2/16/06)

127 Wn. App. 269 (2005)

Criminal Law—Child Pornography—Possession—Attempt—Elements—Age of Person Depicted

Whether in order to convict a person of attempted possession of child pornography the State must prove that an actual minor is depicted in an image the defendant attempted to possess.

No. 76849-8, State (respondent) v. Luther (petitioner). (2/7/06)

125 Wn. App. 176 (2005)

Criminal Law—Communication With a Minor for Immoral Purposes—Necessity That Minor Read or Understand Message

Whether a person may be convicted of communicating with a minor for immoral purposes for leaving sexually explicit notes that the minors either did not see or could not have understood.

No. 76785-8, State (respondent) v. Hosier (petitioner). (1/24/06)

124 Wn. App. 696 (2004)

Criminal Law—Controlled Substances—Methamphetamine—Form of Substance

Whether possessing, manufacturing, or delivering a salt of methamphetamine (as opposed to methamphetamine in its base form) subjected a defendant to the 10-year maximum sentence prescribed by former RCW 69.50.401(a)(2)(ii), which did not mention the salts and isomers of the drug.

No. 77356-4, State (respondent) v. Cromwell (petitioner). (3/23/06)

127 Wn. App. 746 (2005) — published in part

Criminal Law—Controlled Substances—Punishment—Second or Subsequent Offense—Doubling of Maximum Penalty or Standard Range

Whether RCW 69.50.408(1), which authorizes a sentence for a subsequent drug offense “up to twice the term otherwise authorized,” serves to double the standard sentence range or only the statutory maximum sentence.

No. 77317-3, Personal Restraint Petition of Cruz, Gilbert Cruz (petitioner); State (respondent). (2/14/06)

Criminal Law—Evidence—Suppression—Recording of Interstate Telephone Call—Violation of Washington Privacy Law

Whether RCW 9.73.030(1) precludes a Washington court from admitting a recording made in Oregon of a telephone conversation between persons in Oregon and Washington, if the Washington participant did not consent to the recording.

No. 77250-9, State (respondent) v. Fowler (petitioner). (3/21/06)

Criminal Law—Former Jeopardy—Multiple Convictions—Attempted Second Degree Murder & First Degree Assault—Remedy

Whether, to avoid a double jeopardy violation on convictions for attempted second degree murder and first degree assault, the attempted second degree murder conviction should be vacated as the “lesser” crime.

No. 77395-5, State (respondent) v. Weber (petitioner) (see also Criminal Law—Punishment—Sentence—Criminal History—). (3/23/06)

127 Wn. App. 879 (2005)

Criminal Law—Homicide—Aggravated First Degree Murder—Aggravating Circumstance—Robbery—Proof—Sufficiency

Whether in this aggravated first degree murder prosecution sufficient evidence established that the homicide occurred in the course of or in furtherance of a robbery.

No. 76912-5, State (respondent) v. Allen (petitioner). (2/9/06)

Criminal Law—Indigent Defendant—Services Other Than a Lawyer—Court Rules

Whether an indigent criminal defendant is entitled to expert services at public expense, under CrR 3.1(f), even though his family has retained private counsel to represent him.

No. 77490-1, State (respondent) v. Punsalan (appellant); State (respondent) v. Hanson (appellant). (2/16/06)

Criminal Law—Plea of Guilty—Factual Basis

Whether the defendant’s guilty pleas to charges of conspiracy to commit indecent liberties and second degree assault are invalid because they are unsupported by any version of the facts.

No. 76822-6, State (respondent) v. Zhao (petitioner). (2/9/06)

Criminal Law—Privacy—Privacy Act—Private Conversation—What Constitutes

Whether a verbal exchange between a police officer and a person stopped for a traffic infraction is a private conversation for purposes of chapter 9.73 RCW, so that a sound recording of the exchange made by a device in the police vehicle may be introduced into evidence only if the officer complied with RCW 9.73.030.

No. 76824-2 (cons. w/77110-3), Lewis (petitioner) v. Dep’t of Lic. (respondent) & State (respondent) v. Higgins (petitioner); City of Auburn (respondent) v. Kelly (petitioner) & City of Auburn (respondent) v. De Waele (petitioner). (2/14/06)

125 Wn. App. 666 (2005) — (Lewis)
127 Wn. App. 54 (2005) — (Kelly)

Criminal Law—Punishment—Sentence—Criminal History—Community Placement—Determination by Jury—Necessity

Whether a jury must determine, on proof beyond a reasonable doubt, that the defendant was on community placement at the time of his crime before a point can be added to the defendant’s offender score pursuant to RCW 9.94A.525(17).

No. 76900-1, State (respondent) v. Jones (petitioner); State (respondent) v. Thomas (petitioner). (2/7/06)

126 Wn. App. 136 (2005)

Criminal Law—Punishment—Sentence—Criminal History—Prior Convictions—Juvenile Adjudications—Proof

Whether, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), prior juvenile convictions used to calculate an offender score must be proven to a jury beyond a reasonable doubt.

No. 77395-5, State (respondent) v. Weber (petitioner) (see also Criminal Law—Former Jeopardy—Multiple Convictions—). (3/23/06)

127 Wn. App. 879 (2005)

Criminal Law—Right of Confrontation—Statement of Child Victim—“Testify”—What Constitutes

Whether a child victim of alleged sexual abuse, who at trial could not remember the acts of abuse or the statements she had made to others, sufficiently “testified” to permit the admission of testimonial hearsay statements without violating the defendant’s right of confrontation.

No. 77152-9, State (respondent) v. Price (petitioner). (3/21/06)

127 Wn. App. 193 (2005)

Criminal Law—Search & Seizure—Expectation of Privacy—Motel Guest Registry

Whether police violated article I, section 7 of the Washington Constitution by randomly taking names from the guest registry of a motel and running warrant checks on those names.

No. 76800-5, State (respondent) v. Jorden (petitioner). (1/26/06)

126 Wn. App. 70 (2005)

Criminal Law—Search & Seizure—Seizure of Evidence—Expectation of Privacy

Whether police illegally obtained DNA evidence from the flap of an envelope which was mailed by the defendant in reply to a letter purporting to be from a lawyer but actually sent by police.

No. 75312-1, State (respondent) v. Athan (appellant). (1/26/06)

Criminal Law—Sentence—Special Sex Offender Alternative—Factors—Validity—Deportation

Whether the trial court erred in considering the defendant’s possible deportation when deciding not to impose a sentence under the special sex offender sentencing alternative.

No. 76948-6, State (respondent) v. Osman (petitioner). (2/16/06)

126 Wn. App. 575 (2005)

Criminal Law—Speedy Trial—Excluded Period—Foreign Incarceration—Detainer Requirement—Good Faith & Due Diligence

Whether the State acted with the requisite good faith and due diligence in bringing the defendant to trial on Washington charges, when the State failed to lodge a detainer with the Oregon jail in which the defendant was an inmate because the State believed that Oregon did not consider the Interstate Agreement on Detainers to apply to jail inmates.

No. 77122-7, State (respondent) v. Welker (petitioner). (3/2/06)

127 Wn. App. 222 (2005)

Criminal Law—Victims’ Credibility—Opinions of Other Witnesses—Nature of Error—“Manifest” Constitutional Error

Whether, in these child rape prosecutions, witnesses improperly offered opinions on the alleged victims’ credibility, and if so, whether the errors were “manifest constitutional errors” that defendants could raise for the first time on appeal.

No. 76833-1 (cons. w/77596-6), State (petitioner) v. Kirkman (respondent); State (petitioner) v. Candia (respondent). (2/7/06)

126 Wn. App. 97 (2005) — (Kirkman)

Criminal Law—Weapon—Enhanced Punishment—Armed With Firearm—Continuing Crime—Presence of Firearm

Whether the defendant was “armed” with a firearm in the commission of his crimes (possession and manufacture of marijuana) when police arrested him outside his home and found a marijuana grow operation and two guns inside the home.

No. 76100-1, State (respondent) v. Eckenrode (petitioner). (3/14/06)

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Whether the defendants were armed during the commission of their crimes (manufacturing methamphetamine and marijuana) when a loaded gun was found in the open bedroom closet of their home, where drug manufacturing was taking place.

No. 76950-8, State (respondent) v. O’Neal (petitioner). (3/14/06)

126 Wn. App. 395 (2005)

Criminal Law—Weapon—Enhanced Punishment—Armed With Firearm—Proof—Nexus—Actual Possession

Whether, for purposes of imposing a firearm sentence enhancement, the State must prove a nexus between the defendant, the firearm, and the crime even in cases where the defendant actually (as opposed to constructively) possessed the weapon during the crime.

No. 76861-7, State (respondent) v. Easterlin (petitioner). (3/14/06)

126 Wn. App. 170 (2005)

Discovery—Abuse of Discovery—Sanctions—Degree—Harsher Sanctions

Whether, when the trial court awards a party monetary sanctions in order to compensate for costs caused by another’s discovery misconduct, the monetary sanctions constitute a “harsher remedy” under CR 37, for which the justification must be clearly stated on the record.

No. 76720-3, Mayer (petitioner) v. Sto Indus., Inc. (respondent). (2/14/06)

123 Wn. App. 443 (2004)

Easements—Express Easements—Abandonment—Determination—Factors

Whether abandonment of a recorded easement may be shown by long nonuse of the easement coupled with an alternative means of access to the dominant parcel.

No. 76706-8, Heg (petitioner) v. Alldredge (respondent). (2/9/06)

124 Wn. App. 297 (2004)

Employment—Safe Workplace—Administrative Enforcement—Department of Labor & Industries—Ergonomics-Related Safety Hazards

Whether I-841, the 2003 initiative repealing “ergonomics regulations” adopted by the Department of Labor and Industries, precludes the Department from bringing enforcement proceedings under RCW 49.17.060(1) (the “general duty clause” of the Washington Industrial Safety and Health Act) based on ergonomics-related hazards.

No. 76527-8, SuperValu Holdings, Inc. (respondent) v. Dep’t of Labor & Indus. (petitioner). (2/14/06)

Guaranty & Suretyship—Performance Bond—Declaration of Default as Condition of Surety’s Liability

Guaranty & Suretyship—Performance Bond—Action to Obtain Benefit of Bond—Attorney Fees

Whether a surety’s obligation to a contractor on a subcontractor’s performance bond was conditioned on the contractor declaring a default before the subcontractor substantially completed the work.

Whether a contractor may recover attorney fees from the surety of a subcontractor in an action to recover on the performance bond, under the rationale of Olympic Steamship Co. v. Continental Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991).

No. 76973-7, Colorado Structures, Inc. (respondent) v. Insurance Co. of the West (petitioner). (Stricken—Reset in May Term)

125 Wn. App. 907 (2005)

Industrial Insurance—Disability—Industrial Injury—Successive Employers—Last Injurious Exposure Rule

Whether the “last injurious exposure” rule, which makes the insurer covering the risk for the last employer liable for the entire amount of an industrial insurance award, applies to industrial injury cases (as well as occupational disease cases), and whether it can be applied here where there has been no claim against the last employer, but only a petition to reopen a claim against an earlier employer.

No. 77267-3, Cowlitz Stud Co. (respondent) v. Clevenger (petitioner). (3/16/06)

127 Wn. App. 542 (2005)

Insurance—Health Care Insurance—Provider Contracts—Arbitration—Regulation Providing “Fair Review” Protection—Validity—Federal Preemption

Whether the Federal Arbitration Act preempts WAC 284-43-322(4), which prohibits “health carriers” from requiring alternate dispute resolutions to the exclusion of judicial remedies.

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Insurance—Health Care Insurance—Provider Contracts—Arbitration Clauses—Unconscionability

Whether arbitration clauses in contracts between a health care insurer and its providers are unconscionable and thus unenforceable.

No. 76719-0 (cons. w/76886-2), Kruger Clinic Orthopaedics, LLC (petitioner) v. Regence Blueshield (respondent); Tacoma Orthopaedic Surgeons, Inc. (petitioner) v. Regence Blueshield (respondent). (2/28/06)

123 Wn. App. 355 (2004) — (Kruger)

Land Use—Growth Management Act—Critical Areas

Whether a Skagit County ordinance adopted to fulfill the critical area protection requirements of the Growth Management Act provides legally sufficient protection for fish and wildlife habitats.

No. 76339-9, Swinomish Indian Tribal Cmty. (petitioner) v. W. Wash. Growth Mgmt. Hearings Bd. (respondent). (2/7/06)

Land Use—Growth Management Act—Implementing Ordinances—Referendum Power

Whether county ordinances which were enacted pursuant to the Growth Management Act, and which amended county code provisions related to surface water management, clearing and grading, and zoning, are subject to referendum.

No. 76581-2, 1000 Friends of Wash. (respondent) v. McFarland (appellant). (1/26/06)

Land Use—Shoreline Management—Moratorium on Shoreline Development—Municipality’s Authority

Whether the City of Bainbridge Island had the authority to enact a moratorium on certain shoreline development.

No. 77150-2, Biggers (respondent) v. City of Bainbridge Island (petitioner). (3/16/06)

124 Wn. App. 858 (2004)

Open Government—Public Disclosure—Exemptions—Files Maintained for Students—Scope

Whether a Public Disclosure Act exemption for “[p]ersonal information in any files maintained for students in public schools,” RCW 42.17.310(1)(a), applies only to information that would violate a student’s right of privacy if disclosed.

No. 77253-3, Lindeman (petitioner) v. Kelso Sch. Dist. 458 (respondent). (3/16/06)

127 Wn. App. 526 (2005)

Public Contracts—Construction Contracts—Prevailing Wages—Scope—Delivery of Materials—Incorporation of Materials Into Project

Whether truck drivers who delivered fill material to the location where it was used in the Sea-Tac Third Runway Embankment Project were entitled to local prevailing wages under RCW 39.12.020 because they thereby participated in the incorporation of the delivered materials into the project. See WAC 296-127-018(2)(a).

No. 76695-9, Silverstreak, Inc. (respondent) v. Dep’t of L&I (petitioner). (1/24/06)

125 Wn. App. 202 (2005)

Statutes—Initiatives—Validity—Impairment of Contracts

Whether Initiative 776 unconstitutionally impairs contracts between bond holders and Sound Transit, so that Sound Transit must be allowed to continue to collect a motor vehicle excise tax.

No. 76534-1, Pierce County (respondent) v. State (respondent); Salish Village Home Owners Ass’n (appellant). (1/24/06)

Vendor & Purchaser—Construction Defect—Claim Notice—When Required

Whether a homeowner’s obligation under RCW 64.50.020 to provide a notice of claim before filing a construction defect suit against a “construction professional” is contingent upon the construction professional having first informed the homeowner of the prelitigation notice requirement. See RCW 64.50.050.

No. 76850-1, Lakemont Ridge Homeowners Ass’n (petitioner) v. Lakemont Ridge Ltd. P’ship (respondent). (3/2/06)

125 Wn. App. 71 (2005)

Wills—Contest—Citation—Necessity

Whether the failure to issue a citation under RCW 11.24.020 divests the superior court of jurisdiction to hear a will contest.

No. 77164-2, In re Estate of Kordon, Helen Cleveland (petitioner); Leilani Duke (respondent). (3/21/06)

126 Wn. App. 482 (2005)