Supreme Court Issues
May Term 2006

• Attorney & Client—Compensation—Co-Counsel—Recovery of Expected Fees—Right of Action
• Attorney & Client—Fee Agreement—Conflict of Interest—Attorney-Client Transaction
• Automobiles—Operator’s License—Revocation—Due Process—Notice—Address of Record
• Constitutional Law—Freedom of Speech—Political Speech—False Statements
• Constitutional Law—Freedom of Speech—Public Forum—Easement Through Shopping Center
• Constitutional Law—Right to Vote—Felons—Reenfranchisement—Conditions
• Contracts—Construction Contracts—Delay—Waiver—Statutory Prohibition—“Acting For” Contractee—Scope
• Courts—Courts of Limited Jurisdiction—Termination of Municipal Department—Interlocal Transfer Agreement—Necessary Parties to Agreement
• Courts—Municipal Courts—Jurisdiction—Agreements Between Municipalities
• Criminal Law—Arrest—Probable Cause—Officer’s Subjective Belief
• Criminal Law—Confessions—Corroboration—Corpus Delicti
• Criminal Law—Evidence—Prior Inconsistent Statement
• Criminal Law—Guilty Plea—Validity—Misinformation—Actual Consequences Less Onerous
• Criminal Law—Indigent Defendant—Services Other Than a Lawyer—Translation of Documents
• Criminal Law—New Principle of Law—Retroactivity—Finality of Case
• Criminal Law—Possession of Marijuana—Medical Use of Marijuana Statute—Qualifying Patient
• Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Notice—Due Process
• Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Prior Conviction of First Degree Statutory Rape—Comparability
• Criminal Law—Right of Appeal—Waiver—Fleeing Jurisdiction
• Criminal Law—Sentence—Outside Standard Range—Consecutive Sentences—Aggravating Circumstances—Determination by Court—Validity
• Damages—Mitigation—Collateral Source Rule—Scope—Plaintiff’s Own Insurance
• Elections—Public Disclosure Act—Advertising by a “Political Committee”—Filing & Reporting Requirements—Validity
• Elections—Public Disclosure Act—Contributions—Political Advertising—What Constitutes
• Employment—Compensation—Overtime—Exclusions—Drivers Transporting Agricultural Products
• Employment—Compensation—Overtime—Scope—Interstate Truckers
• 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
• Indians—Jurisdiction—Civil Jurisdiction—Tribe in State Court—Immunity—Tribal Entity
• Industrial Insurance—Course of Employment—Distant Job Site—Traveling Employee—Recreation
• Judgment—Default Judgment—Vacation
• Landlord &Tenant—Business License—Inspection of Premises—Municipal Ordinance—Constitutionality
• Licenses—Contractor Registration—Action Against Contractor—Attorney Fees—Recovery From Contractor & Bond
• Limitation of Actions—Contracts—Discovery Rule—Applicability—Construction Contracts—Statutory Provisions—Retroactivity
• Mental Health—Involuntary Commitment—Sexually Violent Predator—Evidence—Witnesses—Confrontation —Deposition Testimony
• Mental Health—Involuntary Commitment—Sexually Violent Predator—Statutes—Supreme Court Construction—Effect
• Municipal Corporations—Annexation—Boundaries—Boundary Review Boards—Authority
• Municipal Corporations—Utilities—Electric Utility—Powers—Governmental or Proprietary Function—Greenhouse Gas Reductions—Nexus to Purpose of Supplying Electricity
• Physician & Patient—Drug Sales—Anti-Rebating Statute—Applicability
• Prisons—Medical Treatment—Force-Feeding—Validity—State Constitution
• Real Property—Equitable Lien—Requirements
• Real Property—Liens—Priority—Equitable Subrogation
• Securities Regulation—Fraudulent Sale of Securities—Statutory Action—Defenses—Equitable Defenses—Estoppel—Waiver
• Taxation—Business & Occupation Tax—Local Governments—Categorization of Business Activity
• Telecommunications—Relocation of Facilities in Rights of Way—Cost—Payment by City or Town

Attorney & Client—Compensation—Co-Counsel—Recovery of Expected Fees—Right of Action

Whether an attorney may recover from co-counsel the expected contingency fee that the attorney lost because of co-counsel’s negligence.

No. 77398-0, Mazon (petitioner) v. Krafchik (respondent) (see also Damages—Mitigation—Collateral Source Rule—). (5/16/06)

126 Wn. App. 207 (2005)

Attorney & Client—Fee Agreement—Conflict of Interest—Attorney-Client Transaction

Whether a deed of trust that secures fees owed by a law firm’s client, by pledging property owned by a limited liability company controlled by the client, is enforceable against a claim by the limited liability company that the law firm had an inherent conflict of interest in its representation of both the client and the limited liability company.

No. 77570-2, Valley/50th Avenue, L.L.C. (petitioner) v. Stewart (respondent). (5/9/06)

Automobiles—Operator’s License—Revocation—Due Process—Notice—Address of Record

Whether the Department of Licensing satisfied due process when it sent notice of a license revocation to a driver’s “last address of record,” even though it had received an inquiry from the driver stating that he was incarcerated at a rehabilitation facility and asking that information be sent to him there.

No. 77629-6, State (respondent) v. Nelson (petitioner). (6/27/06)

Constitutional Law—Freedom of Speech—Political Speech—False Statements

Whether RCW 42.17.530, which makes it unlawful for a person, with actual malice, to sponsor political advertising that contains a false statement of material fact about a candidate for public office, is facially unconstitutional.

No. 77769-1, Rickert (respondent) v. Public Disclosure Comm’n (petitioner). (6/29/06)

129 Wn. App. 450 (2005)

Constitutional Law—Freedom of Speech—Public Forum—Easement Through Shopping Center

Whether the owner of an enclosed private shopping center, through which runs a public easement that provides pedestrian access to a public transportation terminal, may constitutionally exclude from the easement demonstrators carrying signs on sticks.

No. 78579-1, Sanders (appellant) v. City of Seattle (respondent). (6/13/06)

Constitutional Law—Right to Vote—Felons—Reenfranchisement—Conditions

Whether the state may constitutionally condition the reinstatement of a felon’s right to vote upon the payment of legal financial obligations that the felon is not financially able to pay.

No. 78598-8, Madison (respondent) v. State (appellant). (6/27/06)

Contracts—Construction Contracts—Delay—Waiver—Statutory Prohibition—“Acting For” Contractee—Scope

Whether utilities that removed or relocated their facilities pursuant to a city-contracted street improvement project “acted for” the city, thus rendering void, under RCW 4.24.360, a contract clause barring the contractor from recovering damages for delays caused by the utilities.

No. 77459-5, Scoccolo Constr., Inc. (petitioner) v. City of Renton (respondent). (6/6/06)

125 Wn. App. 150 (2005) — published in part

Courts—Courts of Limited Jurisdiction—Termination of Municipal Department—Interlocal Transfer Agreement—Necessary Parties to Agreement

Whether, pursuant to GR 29, the presiding judge of a municipal department of a county district court is a necessary party to an interlocal transfer agreement under chapter 3.46 RCW, terminating that department and creating an independent municipal court.

No. 77723-3, City of Spokane (appellant) v. Spokane County (respondent). (6/15/06)

Courts—Municipal Courts—Jurisdiction—Agreements Between Municipalities

Whether a city may by contract designate another city to adjudicate its municipal court prosecutions, at a location outside the boundaries of the prosecuting city.

No. 78575-9, City of Medina (respondent) v. Primm (petitioner). (6/13/06)

Criminal Law—Arrest—Probable Cause—Officer’s Subjective Belief

Whether a search incident to the defendant’s arrest was valid based on probable cause to arrest for a crime other than the one contemplated by the arresting officer.

No. 77484-6, State (respondent) v. Moore (petitioner). (5/18/06)

Criminal Law—Confessions—Corroboration—Corpus Delicti

Whether the trial courts’ admissions into evidence of these defendants’ incriminating statements to police violated the corpus delicti rule.

No. 78571-6, State (respondent) v. Brockob (appellant); State (respondent) v. Gonzales (appellant); State (respondent) v. Cobabe (appellant). (6/8/06)

Criminal Law—Evidence—Prior Inconsistent Statement

Whether in this child molestation prosecution the trial court erred in refusing to admit statements made by the alleged victim to a counselor and an aunt as prior inconsistent statements.

No. 77342-4, State (respondent) v. Dixon (petitioner). (6/27/06)

Criminal Law—Guilty Plea—Validity—Misinformation—Actual Consequences Less Onerous

Whether the defendant, who pleaded guilty having been misinformed that his offender score and standard range were higher than the correct score and range, should be allowed to withdraw his plea.

No. 77587-7, State (respondent) v. Mendoza (petitioner). (6/29/06)

Criminal Law—Indigent Defendant—Services Other Than a Lawyer—Translation of Documents

Whether a defendant who is returned to court for sentencing following extradition is entitled under CrR 3.1(f) to have foreign language extradition documents translated into English at public expense.

No. 78569-4, State (respondent) v. French (appellant) (see also Criminal Law—Right of Appeal—Waiver—Fleeing Jurisdiction). (6/13/06)

Criminal Law—New Principle of Law—Retroactivity—Finality of Case

Whether the judgment and sentence in this case became final only after the decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and if so, whether Blakely applies to an exceptional sentence consisting of consecutive standard range terms.

No. 77733-1, In re Pers. Restraint of VanDelft, William VanDelft (petitioner); State (respondent) (see also Criminal Law—Sentence—Outside Standard Range—). (5/9/06)

Criminal Law—Possession of Marijuana—Medical Use of Marijuana Statute—Qualifying Patient

Whether the trial court improperly rejected the defendant’s medical marijuana defense (see RCW 69.51A.005, .010), where the parties stipulated that the defendant had a medical marijuana card obtained in California.

No. 77534-6, State (respondent) v. Tracy (petitioner). (6/8/06)

128 Wn. App. 388 (2005)

Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Notice—Due Process

Whether the failure to notify a defendant prior to trial that he faces a possible life sentence as a persistent offender violates due process.

No. 77532-0, State (petitioner) v. Crawford (respondent). (6/6/06)

128 Wn. App. 376 (2005)

Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—Prior Conviction of First Degree Statutory Rape—Comparability

Whether the trial court erred in sentencing the defendant to life as a persistent offender, either because a jury did not decide whether his prior conviction for first degree statutory rape was comparable to the present crime of first degree rape of a child, or because as a matter of law the crimes are not comparable.

No. 77693-8, State (respondent) v. Stockwell (petitioner). (6/29/06)

129 Wn. App. 230 (2005) — published in part

Criminal Law—Right of Appeal—Waiver—Fleeing Jurisdiction

Whether a defendant who absconded after conviction but before sentencing, and who was then sentenced only when he was apprehended and extradited from Mexico nine years later, waived any right to appeal the conviction or sentence.

No. 78569-4, State (respondent) v. French (appellant) (see also Criminal Law—Indigent Defendant—Services Other Than a Lawyer—). (6/13/06)

Criminal Law—Sentence—Outside Standard Range—Consecutive Sentences—Aggravating Circumstances—Determination by Court—Validity

Whether the judgment and sentence in this case became final only after the decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and if so, whether Blakely applies to an exceptional sentence consisting of consecutive standard range terms.

No. 77733-1, In re Pers. Restraint of VanDelft, William VanDelft (petitioner); State (respondent) (see also Criminal Law—New Principle of Law—Retroactivity—). (5/9/06)

Damages—Mitigation—Collateral Source Rule—Scope—Plaintiff’s Own Insurance

Whether an attorney who is liable for malpractice damages because of co-counsel’s negligence may recover from co-counsel the portion of damages paid by the attorney’s insurer.

No. 77398-0, Mazon (petitioner) v. Krafchik (respondent) (see also Attorney & Client—Compensation—Co-Counsel—). (5/16/06)

126 Wn. App. 207 (2005)

Elections—Public Disclosure Act—Advertising by a “Political Committee”—Filing & Reporting Requirements—Validity

Whether RCW 42.17.020(38), which defines “political committee” for purposes of Washington’s Public Disclosure Act, is unconstitutionally vague, thus making statutory filing and reporting requirements a prior restraint on speech.

No. 77724-1, Voters Educ. Comm. (appellant) v. Public Disclosure Comm’n (respondent). (5/25/06)

Elections—Public Disclosure Act—Contributions—Political Advertising—What Constitutes

Whether talk radio broadcasts promoting an initiative were political advertisements subject to campaign contribution reporting under RCW 42.17.080(1).

No. 77966-0, San Juan County (respondent) v. No New Gas Tax (appellant). (6/8/06)

Employment—Compensation—Overtime—Exclusions—Drivers Transporting Agricultural Products

Whether the Minimum Wage Act’s exemption from overtime compensation for persons employed in delivering agricultural commodities applies to truck drivers who are not employed by growers of the agricultural commodities.

No. 77283-5, Cerrillo (respondent) v. Esparza (petitioner). (5/18/06)

126 Wn. App. 723 (2005)

Employment—Compensation—Overtime—Scope—Interstate Truckers

Whether an interstate truck driver employed by a Washington employer must work a 40-hour week within the state to be entitled to overtime or a reasonable equivalent thereof under the Minimum Wage Act.

No. 77201-1, Bostain (petitioner) v. Food Express, Inc. (respondent). (5/18/06)

127 Wn. App. 499 (2005)

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). (5/23/06)

125 Wn. App. 907 (2005)

Indians—Jurisdiction—Civil Jurisdiction—Tribe in State Court—Immunity—Tribal Entity

Whether two business corporations formed by the governing body of the Confederated Tribes of the Colville Reservation are cloaked with tribal sovereign immunity against an employment discrimination suit brought in state court.

No. 77558-3, Wright (respondent) v. Colville Tribal Enter. Corp. (petitioner). (5/16/06)

127 Wn. App. 644 (2005)

Industrial Insurance—Course of Employment—Distant Job Site—Traveling Employee—Recreation

Whether under the “traveling employee” doctrine the injuries sustained by an employee during recreational activities while on a business trip qualify the employee for workers compensation benefits.

No. 77655-5, Ball-Foster Glass Container Co. (petitioner) v. Giovanelli (respondent). (6/27/06)

128 Wn. App. 846 (2005)

Judgment—Default Judgment—Vacation

Whether the superior court erred in vacating a default judgment, where the court had not entered written findings and conclusions when granting the judgment, and the defendant’s insurer, though in communication with the plaintiff, was not notified that the judgment would be sought.

No. 77560-5, Little (petitioner) v. King (respondent). (5/23/05)

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Whether a superior court’s determination that a party had informally appeared, which resulted in the vacation of a default judgment because the party had not received notice, is reviewed for an abuse of discretion or for substantial evidence.

No. 77291-6 (cons. w/77784-5 & 77867-1), Morin (petitioner) v. Burris (respondent); Gutz (petitioner) v. Johnson (respondent); Matia Inv. Fund, Inc. (petitioner) v. City of Tacoma (respondent). (5/18/06)

128 Wn. App. 901 (2005) — Gutz
129 Wn. App. 541 (2005) — Matia

Landlord &Tenant—Business License—Inspection of Premises—Municipal Ordinance—Constitutionality

Whether a city ordinance requiring that residential landlords obtain business licenses, after having first obtained an inspection report certifying that the rental premises meet health and safety standards, is unconstitutional.

No. 77195-2, City of Pasco (respondent) v. Shaw (petitioner). (5/9/06)

127 Wn. App. 417 (2005)

Licenses—Contractor Registration—Action Against Contractor—Attorney Fees—Recovery From Contractor & Bond

Whether, in an action against a contractor and its surety bond, the attorney fees available to the prevailing plaintiff under RCW 18.27.040(6) are recoverable against both the contractor and the bond.

No. 77661-0, Cosmopolitan Eng’g Group, Inc. (respondent) v. Ondeo Degremont, Inc. (petitioner). (5/25/06)

128 Wn. App. 885 (2005)

Limitation of Actions—Contracts—Discovery Rule—Applicability—Construction Contracts—Statutory Provisions—Retroactivity

Whether the discovery rule applies to actions for breach of contract, and if so, whether RCW 4.16.326(1)(g), which bars the use of the discovery rule in actions based on construction contracts, applies retroactively.

No. 77362-9 (cons. w/77846-9), 1000 Virginia Ltd. P’ship (respondent) v. Vertecs Corp. (petitioner); Lombardi (respondent) v. JTE Constr., Inc. (petitioner). (5/16/06)

127 Wn. App. 899 (2005) — 1000 Virginia Ltd. P’ship

Mental Health—Involuntary Commitment—Sexually Violent Predator—Evidence—Witnesses—Confrontation —Deposition Testimony

Whether a person who is the subject of civil commitment proceedings as a sexually violent predator under chapter 71.09 RCW has a right to confront witnesses against him, and, if so, whether the use of deposition testimony at the commitment proceeding violates that right.

No. 77369-6, In re Detention of Stout, Roy Stout, Jr. (petitioner); State (respondent). (6/8/06)

128 Wn. App. 21 (2005)

Mental Health—Involuntary Commitment—Sexually Violent Predator—Statutes—Supreme Court Construction—Effect

Whether this court’s holding in In re Detention of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002), that a person alleged to be a sexually violent predator may not be compelled to undergo a mental examination by the State’s experts under CR 35, applies to examinations ordered before Williams was decided, and if so, whether any resulting error was harmless in this case.

No. 77576-1, In re Detention of Audett, State (petitioner); Daniel Audett (respondent). (6/6/06)

Municipal Corporations—Annexation—Boundaries—Boundary Review Boards—Authority

Whether a county boundary review board acted within its authority when it modified the boundaries for a proposed city annexation to include an entire “island” of unincorporated urban growth area, even though the modification tripled the acreage originally proposed for annexation.

No. 78578-3, Interlake Sporting Ass’n (appellant) v. Wash. State Boundary Review Bd. (respondent). (6/13/06)

Municipal Corporations—Utilities—Electric Utility—Powers—Governmental or Proprietary Function—Greenhouse Gas Reductions—Nexus to Purpose of Supplying Electricity

Whether Seattle City Light may lawfully pay third parties to reduce their greenhouse gas emissions so that City Light can “credit” those reductions to its goal of reducing its own emissions.

No. 77888-4, Okeson (appellant) v. City of Seattle (respondent). (5/23/06)

Physician & Patient—Drug Sales—Anti-Rebating Statute—Applicability

Whether RCW 19.68.010 prohibits a physician from selling drugs at a profit to his or her patients.

No. 78635-6, Wright (respondent/cross-petitioner) v. Jeckle (petitioner/cross-respondent). (6/15/06)

Prisons—Medical Treatment—Force-Feeding—Validity—State Constitution

Whether the Department of Corrections may constitutionally force-feed an inmate who wishes to starve himself.

No. 77359-9, McNabb (petitioner) v. Dep’t of Corr. (respondent). (5/11/06)

127 Wn. App. 854 (2005)

Real Property—Equitable Lien—Requirements

Whether the trial court erred in imposing an equitable lien against property pledged as collateral for loans, where the borrower had no legitimate interest in the pledged property.

No. 77229-1, Sorenson (respondent) v. Pyeatt (defendant); Saxon Mortgage Inc. (petitioner) v. Pyeatt (defendant). (5/16/06)

Real Property—Liens—Priority—Equitable Subrogation

Whether the doctrine of equitable subrogation should be applied in this case to give a mortgage lender a prior lender’s first lien position despite the new lender’s knowledge of intervening lienholders.

No. 77038-7, Bank of Am. (respondent) v. Wells Fargo Bank (petitioner). (5/9/06)

126 Wn. App. 710 (2005)

Securities Regulation—Fraudulent Sale of Securities—Statutory Action—Defenses—Equitable Defenses—Estoppel—Waiver

Whether the equitable defenses of waiver and estoppel are available in a case asserting a sale of securities in violation of the Securities Act of Washington.

No. 77663-6, Go2Net, Inc. (respondent) v. FreeYellow.com (defendant) Molino (petitioner). (5/25/06)

126 Wn. App. 769 (2005) — published in part

Taxation—Business & Occupation Tax—Local Governments—Categorization of Business Activity

Whether the cities of Seattle and Tacoma properly collected business and occupation taxes from Ford Motor Company based on activities related to sales of vehicles to dealers located in those cities and measured by the gross proceeds of those wholesale sales.

No. 77167-7 (cons. w/77516-8), Ford Motor Co. (appellant) v. City of Seattle (respondent); Ford Motor Co. (appellant) v. City of Tacoma (respondent). (6/15/06)

Telecommunications—Relocation of Facilities in Rights of Way—Cost—Payment by City or Town

Whether the term “aerial supporting structures,” as used in RCW 35.99.060(3)(b) (for purposes of determining when municipalities must pay the cost of undergrounding telecommunication facilities), includes only poles, towers, and the like, or whether it also includes attachment devices and other hardware.

No. 78293-8, Qwest Corp. (plaintiff) v. City of Kent (defendant). (5/23/06)

Certified Questions from U.S. District Court, Western District of Wash.