Supreme Court Issues
September Term 2008
Arbitration—Contractual Agreement—Enforcement—Termination or Lapse of Contract—Effect
Whether an arbitration clause in a lease option contract lapsed when the underlying option to buy lapsed.
No. 80626-8, Otis Housing Ass’n, Inc. (petitioner) v. Ha (respondents). (9/25/08)
140 Wn. App. 470 (2007)
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Arbitration—Scope—Shareholders Agreement—Disputes “Arising Out of” Agreement—Challenge to Validity of Agreement—Action for Breach of Fiduciary Duties and Minority Shareholder Oppression
Whether a provision in a shareholder’s agreement requiring arbitration of “any disputes” among the parties “arising out of” the agreement applies to a challenge to the validity of the agreement and claims of breach of fiduciary duties and minority shareholder oppression.
No. 80672-1, Nelson (respondent) v. Westport Shipyard, Inc. (petitioner). STRICKEN
140 Wn. App. 102 (2007)
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Bail and Recognizance—Forfeiture—Vacation—Denial—Validity—Surety’s Conduct
Whether the trial court properly refused to vacate a forfeiture of bail when the surety advised the defendant to turn himself in but did not alert authorities to the defendant’s whereabouts, and the defendant was arrested seven days after his failure to appear.
No. 81071-1, State (respondent) v. Kramer (petitioner). (9/25/08)
141 Wn. App. 892 (2007)
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Conflict of Laws—Consumer Protection—Action for Damages—Choice of Law—Parties—Residency in Other States
Whether choice of law provisions in the service contracts of AT&T Wireless Services, a Washington corporation, preclude persons living outside of Washington from bringing a class action against AT&T under the state Consumer Protection Act.
No. 80572-5, Schnall, et al. (respondents) v. AT&T Wireless Servs., Inc. (petitioner) (see also Consumer Protection—Parties—Class Actions—Consumer Protection Action—Elements—Causation—Proof). (10/28/08)
139 Wn. App. 280 (2007)
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Constitutional Law—Due Process—Requirements—Meaningful Opportunity to be Heard
Whether RCW 46.20.245, which provides for an administrative review of a proposed decision to impose a mandatory driver’s license suspension, provides adequate safeguards to ensure against the erroneous suspension of a license, so as to meet due process requirements.
No. 81473-2, City of Bellevue (petitioner) v. Lee, et al. (respondents). (11/18/08)
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Consumer Protection—Parties—Class Actions—Consumer Protection Action—Elements—Causation—Proof
Whether, in a class action against AT&T Wireless Services under the Consumer Protection Act, each class member must prove reliance on AT&T’s alleged misrepresentation of the nature of a charge in order to establish causation.
No. 80572-5, Schnall, et al. (respondents) v. AT&T Wireless Servs., Inc. (petitioner) (see also Conflict of Laws—Consumer Protection—Action for Damages—Choice of Law—Parties—Residency in Other States). (10/28/08)
139 Wn. App. 280 (2007)
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Contempt—Inherent Power—Inadequacy of Statutory Power—Findings—Necessity
Whether the juvenile court in at risk youth proceedings may employ its inherent contempt power to impose a punitive sanction without first finding that the statutory remedies for criminal contempt under RCW 7.21.040 are inadequate.
No. 81573-9, In re Interest of Estevan Silva, Jr. (appellant); Jeanette M. Silva (respondent). (10/28/08)
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Contracts—Validity—Unconscionability—Real Estate Transaction—Limitation on Remedies—Return of Deposit
Whether a clause in a real estate purchase and sale contract limiting the remedy for the seller’s breach to return of the buyer’s deposit money is unconscionable, fails of its essential purpose, or is contrary to public policy.
No. 80623-3, Miller, et al. (petitioners) v. One Lincoln Tower, LLC, et al. (respondents). (9/23/08)
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Courts—Supreme Court—Jurisdiction—Original Jurisdiction—Mandamus as to State Officer—Scope
Whether the decision of the lieutenant governor, as president of the state senate, not to forward Senate Bill 69311 to the house because it was a tax measure and failed to be approved by a two-thirds vote of the senate, can properly be challenged by an original action for mandamus, and if so, whether the statute requiring a two-thirds vote, RCW 43.135.035(1), conflicts with the majority-vote provision in article II, section 22 of the Washington Constitution.
No. 81287-0, Brown (petitioner) v. Owen (respondent). (9/9/08)
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Criminal Law—Aggravated First Degree Murder—Accomplice Liability—Instructions—Harmless Error
Whether, in an aggravated first degree murder trial, the trial court’s failure to instruct the jury that it had to find that the aggravating factors applied personally to the defendant was harmless error.
No. 80643-8, State (respondent) v. Thomas (petitioner) (see also Criminal Law—Punishment—Aggravated First Degree Murder—Reversal and Remand—Aggravating Circumstances—Authority to Empanel Jury to Determine Aggravating Circumstances). (9/23/08)
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Criminal Law—Dismissal of Action—Nunc Pro Tunc Order Amending Dismissal Order—Validity
Whether a trial court properly amended its dismissal of a criminal prosecution nunc pro tunc to provide for dismissal of only one count.
No. 80245-9, State (respondent) v. Hendrickson (petitioner). (10/30/08)
138 Wn. App. 827 (2007) — published in part
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Criminal Law—Evidence—Hearsay—Right of Confrontation—Unavailability of Declarant—Testimonial or Nontestimonial Statement
Whether the trial court in a prosecution for robbery and burglary violated the defendant’s right of confrontation by admitting into evidence statements that the unavailable victim had made in response to police questioning after the crimes were completed.
No. 80427-3, State (respondent) v. Koslowski (petitioner). (9/16/08)
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Criminal Law—Jury—Selection—Geographical Area—County Where Crime Committed—Jury Pools
Whether Local General Rule 18, which divides King County geographically by zip code into two jury assignment areas for criminal prosecutions, one for trials in Seattle and the other for trials in Kent, and the statute under which the rule was promulgated, RCW 2.36.055, violates the Sixth Amendment or article I, section 22 of the Washington Constitution.
No. 81219-5, State (respondent) v. Lanciloti (petitioner). (11/18/08)
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Criminal Law—Lesser Included Offense—Driving While Intoxicated—Physical Control of Vehicle While Intoxicated
Whether physical control of a vehicle while under the influence of intoxicating liquor or drugs is a lesser included offense of driving under the influence.
No. 80752-3, State (respondent) v. Nguyen (petitioner). (10/14/08)
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Criminal Law—Plea of Guilty—Withdrawal—Misunderstanding of Consequences—Standard Sentence Range—Scope of Remedy
Whether an offender is entitled to withdraw his guilty plea to simple possession of a controlled substance because he was not informed of the correct standard sentence range, and if so, whether the offender may also withdraw his guilty plea to a separate charge of possession with intent to deliver entered the same day.
No. 81045-1, In re Pers. Restraint of Bradley, Anthony Lamount Bradley (petitioner); State (respondent). (9/11/08)
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Criminal Law—Punishment—Aggravated First Degree Murder—Reversal and Remand—Aggravating Circumstances—Authority to Empanel Jury to Determine Aggravating Circumstances
Whether, following affirmance of the defendant’s conviction for first degree murder but reversal of his conviction for aggravated first degree murder, the trial court had authority on remand to convene a jury solely to redetermine the existence of aggravating factors. See State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (2004).
No. 80643-8, State (respondent) v. Thomas (petitioner) (see also Criminal Law—Aggravated First Degree Murder—Accomplice Liability—Instructions—Harmless Error). (9/23/08)
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Criminal Law—Punishment—Sentence—Certificate of Discharge—Completion of Sentencing Requirements—Unpaid Restitution—Expiration of Enforcement Jurisdiction
Whether expiration of the superior court’s 10-year jurisdiction to enforce a criminal offender’s unpaid legal financial obligations relieved the offender of his financial obligations so that he qualified for a certificate of discharge restoring his civil rights.
No. 80310-2, State (respondent) v. Gossage (petitioner). (9/9/08)
138 Wn. App. 298 (2007)
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Criminal Law—Punishment—Sentence—Conditions—Indian Country—Jurisdiction
Whether, on conviction of a Chehalis Tribe member for unlawful gill net fishing off tribal land, the superior court had authority to impose a sentence condition prohibiting the defendant from possessing gill nets on tribal land.
No. 80499-1, State (petitioner) v. Cayenne (respondent). (9/11/08)
139 Wn. App. 114 (2007)
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Criminal Law—Punishment—Sentence—Criminal History—Offender Score—Unranked Fish and Wildlife Violations
Whether the trial court erred in including 35 unranked fish and wildlife violations in the defendant’s offender score for sentencing purposes.
No. 81110-5, In re Pers. Restraint of Tobin; Douglas Tobin (petitioner); State (respondent). (9/25/08)
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Criminal Law—Punishment—Sentence—Criminal History—Proof—Presentence Report—What Constitutes—Prosecutor’s Statement
Whether a criminal defendant “acknowledged” information in a “presentence report,” and thus waived any objection to his offender score, by failing to dispute the criminal history recited in a written statement that the prosecutor presented at sentencing. See RCW 9.94A.530(2).
No. 80477-0 (consol. w/80553-9), State (petitioner) v. Mendoza (respondent); State (petitioner) v. Henderson (respondent). (9/18/08)
139 Wn. App. 693 (2007) (Mendoza) — published in part
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Criminal Law—Punishment—Sentence—Good Behavior Credits—Maximum Earnable—Eligibility—Risk Classification—Redetermination—Notice and Opportunity to be Heard—Necessity
Whether the Department of Corrections violated an inmate’s due process rights by raising the inmate’s risk classification level without providing advance notice and an opportunity to challenge the proposed reclassification.
No. 80834-1, In re Pers. Restraint of Pullman, James Pullman (petitioner); State (respondent). (10/30/08)
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Criminal Law—Search and Seizure—Warrantless Search—Probationer—Validity—“Well Founded Suspicion”
Whether a probation officer may conduct a warrantless search of a home if specific and articulable facts support the officer’s belief that the probationer lives in the home.
No. 80755-8, State (respondent) v. Winterstein (petitioner). STRICKEN – TO BE RESET WINTER 2009 TERM
140 Wn. App. 676 (2007) — published in part
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Criminal Law—Searches and Seizures—Automobiles—Warrantless Search—Exigent Circumstances—Odor of Marijuana
Whether the odor of marijuana in a car during a routine traffic stop provided police probable cause to believe that destructible evidence of drug possession could be found in the car justifying a search of the car due to exigent circumstances.
No. 80308-1, State (respondent) v. Tibbles (petitioner). (10/14/08)
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Criminal Law—Sexual Offenses—Communication With Minor for Immoral Purposes—Felony—Prior Conviction—Stipulation and Waiver of Jury Trial—Validity
Whether, in a prosecution for felony communication with a minor for immoral purposes, an element of which is the existence of a prior conviction for a sex offense, the defendant may stipulate to the existence of the prior conviction and waive a jury trial only on that element in order to avoid informing the jury of the conviction.
No. 80547-4, State (respondent) v. Roswell (petitioner). (9/16/08)
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Criminal Law—Weapon—Enhanced Punishment—Exempt Crimes—Equal Protection
Whether equal protection principles permit weapon sentence enhancements for crimes involving use or display of a weapon as an element, where other weapons-based crimes are exempt from weapon enhancements. See RCW 9.94A.533(3)(f), (4)(f).
No. 80243-2 (consol. w/80342-1), In re Pers. Restraint of Cardenas, Leopoldo Cardenas (petitioner); State (respondent); In re Pers. Restraint of Jones, Adrian Dashon Jones (petitioner); State (respondent). STRICKEN
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Criminal Law—Weapon—Enhanced Punishment—Firearm—Multiple Enhancements—Consecutive or Concurrent—Same Criminal Conduct
Whether two firearm enhancements must be imposed consecutively to each other and to the sentences on the two underlying convictions even though the convictions encompassed the “same criminal conduct.” See RCW 9.9A.589(1)(a).
No. 80441-9, State (respondent) v. Mandanas (petitioner). (10/14/08)
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Insurance—Duty to Defend—Exclusions—Assault and Battery—Postassault Negligence
Whether an exclusion in a nightclub’s liability insurance policy for injuries “arising out of” assault applies to the exacerbation of injuries allegedly sustained by a nightclub patron who was shot outside the nightclub, brought inside by security personnel, and then left outside on the sidewalk.
No. 80753-1, Am. Best Food, Inc. (respondent) v. Alea London, Ltd. (petitioner). (10/21/08)
138 Wn. App. 674 (2007)
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Insurance—Exclusions—Work of Insured—Scope—Subcontractors
Whether an exclusion in a building contractor’s insurance policy for claims arising from the work of the “named insured” extends to claims arising from the work of subcontractors.
No. 80590-3, Mut. of Encumclaw Ins. Co. (respondent) v. MacPherson Constr. & Design, Inc. (petitioner). STRICKEN
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Insurance—Policy Cancellation—Notice—Mail—Certified Mail—Sufficiency
Whether notice of an insurance policy cancellation sent by certified mail satisfied the “mailed” requirement of former RCW 48.18.290 (1997) and thereby gave the insured sufficient notice of cancellation, even if the insured never received the notice.
No. 81160-1, Cornhusker Cas. Ins. Co. (appellee) v. Brooks Samples (appellant). (10/28/08)
Certified Question from U.S. Court of Appeals, Ninth Circuit
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Judges—Receivership Proceedings—Adjunct Proceedings—Disqualification—Affidavit of Prejudice—Availability
Whether RCW 7.60.160(2), which requires the referral of any action adjunct to a receivership proceeding to the judge presiding over the receivership, precludes a party to an adjunct action from filing an affidavit of prejudice removing the judge from the adjunct action.
No. 80554-7, Wash. Motorsports (respondent) v. LeMaster & Daniels; Larry Wyatt (petitioners). STRICKEN
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Jury—Replacement of Juror—After Commencing Deliberations—Holdout Juror—Misconduct—Remedy
Whether the trial court in a criminal prosecution erroneously dismissed a juror who the court knew to be a holdout based on the juror’s improper discussion of the case with her husband during a break in deliberations.
No. 80574-1, State (respondent) v. Depaz (petitioner). (9/16/08)
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Liens—Materialmen’s Liens—Priority—Lien Attached to Improvement But Not Real Property
Whether a materialmen’s lien that did not attach to public land upon which improvements were made had priority over a deed of trust to the property filed after delivery of the materials giving rise to the lien.
No. 80411-7, Estate of Haselwood, et al. (petitioners) v. Bremerton Ice Arena, Inc., et al. (respondents). (10/28/08)
137 Wn. App. 872 (2007)
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Medical Treatment—Consumer Protection—Action for Damages—Professional Practice—Injury to Business or Property—Wrong Product Affixed to Patient’s Body
Whether a dental office violated the Consumer Protection Act when an office periodontist implanted a cow bone graft in a patient’s jaw after the patient requested that no animal products be used.
No. 80665-9, Michael (respondent) v. Bright Now! Dental, Inc. (petitioner). (10/21/08)
140 Wn. App. 139 (2007)
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Mental Health—Involuntary Commitment—Sexually Violent Predator—Evaluation—Prepetition Evaluation—Validity
Whether the State had authority to conduct a psychological evaluation of an inmate as a sexually violent predator without first filing a petition to commit the inmate as a sexually violent predator.
No. 80570-9, In re Det. of Strand, John L. Strand (petitioner); State (respondent). (9/9/08)
139 Wn. App. 904 (2007)
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Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—Necessity—Revocation of SSOSA—Confinement for Another Charge
Whether the State, in seeking to commit a detainee as a sexually violent predator, had to prove the detainee committed a recent overt act when, at the time the State filed the commitment petition, the detainee was serving a sentence for robbery and had completed a concurrent prison sentence for child molestation that he began serving after his special sex offender sentencing alternative was revoked.
No. 80498-2, In re Detention of Fair, David Fair (petitioner); State (respondent). (10/23/08)
139 Wn. App. 532 (2007) — published in part
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Partnership—Limited Liability Company—Action by or Against—Survival of Action—Dissolution of Company—Cancellation of Certificate of Formation—Effect
Whether a limited liability company that has been administratively dissolved or whose certificate of formation has been cancelled can continue to sue or be sued.
No. 80450-8 (consol. w/80459-1), Chadwick Farms Owners Ass’n (respondent) v. FHC, LLC (petitioner); Emily Lane Homwowners Ass’n (respondent) v. Colonial Dev., LLC (petitioners). (11/18/08)
139 Wn. App. 300 (2007) (Chadwick)
139 Wn. App. 315 (2007) (Emily Lane)
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Products Liability—Asbestos—Strict Liability—Common Law—Retroactivity
Whether common law strict products liability principles apply to a claim arising from exposure to asbestos prior to Washington’s adoption of the common law doctrine.
No. 80728-1, Lunsford (respondent) v. Saberhagen Holdings (petitioner). (10/30/08)
139 Wn. App. 334 (2007)
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Public Employment—Arbitration—Interest Arbitration—Retroactive Pay Raise—Due Date
Whether retroactive pay raises awarded by interest arbitration become due on the date of the award.
No. 80804-0, Almquist (petitioner) v. City of Redmond (respondent). STRICKEN
140 Wn. App. 402 (2007)
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Punishment—Sentence—Life Imprisonment Without Parole—Prior Conviction—Juvenile Conviction—Waiver of Declination of Juvenile Court Jurisdiction—Proof—Necessity
Whether the State, in order to use a prior adult conviction of a juvenile offender to support a current persistent offender sentence, must show that the juvenile court declined jurisdiction or that the defendant waived juvenile court jurisdiction.
No. 80848-1, State (petitioner) v. Knippling (respondent). (10/21/08)
141 Wn. App. 50 (2007)
Schools—Employment Relations—Compensation—Certified Employees—State School for Blind—Conformity With District Salaries
Whether RCW 28A.400.200(4), which entitles certificated employees of school districts to supplemental pay for “additional time, additional responsibilities, or incentives,” applies to certificated employees of the state School for the Blind.
No. 80602-1, Delyria & Koch (respondents) v. Wash. Sch. for the Blind (petitioner). (9/23/08)
139 Wn. App. 245 (2006)
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Statutes—Construction—Retroactivity—Curative Legislation—Response to Court Decision—Separation of Powers
Whether for causes brought under the Washington Law Against Discrimination the separation of powers doctrine precludes application of 2007 legislation providing a comprehensive definition of “disability” where the cause of action occurred prior to the issuance of this court’s decision in McClarty v. Totem Elec. Int’l, 157 Wn.2d 214, 137 P.3d 844 (2006).
No. 80771-0, Hale (petitioners) v. Wellpinit Sch. Dist. #49 (respondent). (10/21/08)
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Taxation—Business and Occupation Tax—Deductions—Interest Earned on Real Estate Loans—Amounts “Derived” from “Interest”—What Constitutes
Whether a portion of loan interest retained by a residential mortgage lender as compensation for servicing loans is deductible from the business and occupation tax as “amounts derived from interest received on investments or loans primarily secured by first mortgages or trust deeds on nontransient residential properties.” RCW 82.04.4292.
No. 80544-0, Homestreet, Inc. (petitioners) v. State, Dep’t of Revenue (respondent). (9/16/08)
139 Wn. App. 827 (2007) |
