Supreme Court Issues
January Term 2010

• Adjoining Landowners—Encroachment—Injunction—Oppression Exception—Remedy—Boundary Adjustment
• Arbitration—Award—Review—Grounds for Disturbing Award—Facial Legal Error—Limitation of Actions—Applicability
• Arbitration—Mandatory Arbitration—Trial De Novo—Notice—Unilateral Withdrawal—After Successful Appeal of Adverse Judgment—Validity
• Costs—Attorney Fees—Minor Action for Damages—Settlement Offer—“All Claims”—Scope—Prevailing Party—Acceptance of Offer
• Courts of Limited Jurisdiction—Trial—Electronic Record—Portions Lost or Damaged—Significance or Materiality—Determination by Limited Jurisdiction Court—Standard of Review
• Criminal Law—Domestic Violence—Interfering with Reporting—Charge—Sufficiency—Identification of Underlying Domestic Violence Offense—Document as a Whole
• Criminal Law—Domestic Violence—Protection Order—Violation—Status as Criminal Offense—What Constitutes
• Criminal Law—Duress—Instructions—Proposed Instructions—Refusal—Prejudice
• Criminal Law—First Degree Assault—Sentence—Outside Standard Range—Aggravating Circumstances—Severity of Victim’s Injuries
• Criminal Law—Former Jeopardy—Multiple Convictions—Merger or Dismissal—Validity of Merged or Dismissed Conviction
• Criminal Law—Former Jeopardy—Witnesses—Tampering—Unit of Prosecution
• Criminal Law—Plea of Guilty—Withdrawal—Misadvice About Deportation Consequences
• Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection
• Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection
• Criminal Law—Punishment—Probation and Parole—Conditions—Violation—No New Criminal Violations—Acquittal of Charges—Effect
• Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process
• Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served
• Criminal Law—Punishment—Sentence—Outside Standard Range—Consecutive Sentencing—Aggravating Circumstances—Determination by Jury—Necessity
• Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—“Most Serious Offense”—What Constitutes—Deadly Weapon—Firearm Finding
• Criminal Law—Punishment—Special Drug Offender Sentencing Alternative—Revocation—Failure to “Obey All Laws”—Due Process—Notice—Law Allegedly Violated
• Criminal Law—Search and Seizure—Seizure—What Constitutes—Contact with Passenger of Parked Motor Vehicle—Request for Identification—Warrantless Search of Car Incident to Arrest—Validity
• Criminal Law—Searches and Seizures—Automobiles—Warrantless Search—Incident to Arrest of Occupant—Vehicle Locked in Presence of Officers
• Criminal Law—Searches and Seizures—Fruit of Unlawful Search or Seizure—Attenuation—Use of Unlawfully Seized Cell Phone to Arrange Encounter
• Criminal Law—Searches and Seizures—Warrantless Entry—Emergency—Domestic Violence—Validity
• Criminal Law—Sexual Offenses—Child Rape—Attempt—Underage Victim—Actual Existence—Necessity
• Criminal Law—Sexual Offenses—Rape—Evidence—Prior Sexual Behavior—Rape Shield Statute—Scope
• Criminal Law—Sexual Offenses—Registration of Sex Offenders—Failure to Register—Single or Alternative Means Offense—Time Lines—Residential Status
• Divorce—Domestic Violence—Protection Order—Termination—Objection—Basis—Historical Abuse and Current Fear
• Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Adequacy of Alternative Remedy
• Landlord and Tenant—Mobile Homes—Assignment or Transfer of Lease—Contractual Limitation—Validity
• Medical Treatment—Malpractice—Notice of Claim—Statutory Requirement—Validity—Equal Protection
• Municipal Corporations—Waters—Public Water Supply—Operation and Management—Local Initiatives—Validity
• Open Government—Public Disclosure—“Agency”—What Constitutes—Superior Court
• Open Government—Public Disclosure—Public Records—What Constitutes—E-Mail—Associated Metadata
• Property—State—Department of Transportation—Surplus Property Program—Sale of Property—Failure to Notify Abutting Property Owners—Ultra Vires Act—Bona Fide Purchaser
• Public Employment—Civil Service—Commission—Judicial Review—Timeliness—Commencement of Period—Ruling on Reconsideration—Notice of Appeal—Service—Sufficiency
• Schools—Students—Attendance—Truancy—Initial Hearing—Right to Counsel
• Statutes—Amendment—Retroactivity—Separation of Powers—Due Process
• Torts—Immunity—Communication to Government Agency—“Person”—State Agencies
• Torts—Juveniles—Loss of Parental Consortium—Feasibility of Joinder With Parents’ Personal Injury Action—Infeasibility—No Guardian ad Litem Representing Child
• Weapons—Possession—By Felon—Prior Conviction—Class B Felony—Reclassification as Class A Felony—Ex Post Facto Law

Adjoining Landowners—Encroachment—Injunction—Oppression Exception—Remedy—Boundary Adjustment

Whether, in an action to eject an adjoining landowner who mistakenly built improvements on the plaintiff’s property, the trial court properly quieted title in the adjoining landowner and ordered him to pay the plaintiff for a boundary adjustment.

No. 82326-0, Proctor (petitioner) v. Huntington (respondents). (1/12/10)

146 Wn. App. 836 (2008)

Arbitration—Award—Review—Grounds for Disturbing Award—Facial Legal Error—Limitation of Actions—Applicability

Whether the superior court may vacate a private arbitration award for legal error appearing on the face of the award, and if so, whether the arbitration panel in this case committed facial error in dismissing claims under the statute of limitations.

No. 82311-1, Broom (respondents) v. Morgan Stanley DW Inc. (petitioners). (1/28/10)

Arbitration—Mandatory Arbitration—Trial De Novo—Notice—Unilateral Withdrawal—After Successful Appeal of Adverse Judgment—Validity

Whether a personal injury defendant who requested a trial de novo following arbitration, failed to improve his position at trial, and successfully appealed the trial court judgment, could withdraw his request for trial de novo before a second trial and have judgment entered on the arbitration award.

No. 82409-6, Hudson (petitioner) v. Hapner (respondent). (1/26/10)

146 Wn. App. 280 (2008)

Costs—Attorney Fees—Minor Action for Damages—Settlement Offer—“All Claims”—Scope—Prevailing Party—Acceptance of Offer

Whether an offer by a defendant to settle “all claims” in a minor action for damages included attorney fees, thus precluding the plaintiff who accepted the offer from seeking additional sums as attorney fees when the settlement was reduced to judgment, and if not, whether the plaintiff was a “prevailing party” entitled to attorney fees.

No. 82659-5, McGuire (respondent) v. Bates (petitioner). (1/28/10)

147 Wn. App. 751 (2008)

Courts of Limited Jurisdiction—Trial—Electronic Record—Portions Lost or Damaged—Significance or Materiality—Determination by Limited Jurisdiction Court—Standard of Review

Whether a district court decision on whether a significant or material portion of the electronic record of a district court trial has been lost or damaged, thus entitling an appellant to a new trial pursuant to RALJ 5.4, is reviewed by the superior court de novo or only for abuse of discretion.

No. 82671-4, State (respondent) v. Osman (petitioner). (1/26/10)

147 Wn. App. 867 (2008)

Criminal Law—Domestic Violence—Interfering with Reporting—Charge—Sufficiency—Identification of Underlying Domestic Violence Offense—Document as a Whole

Whether an information that charged the offense of interfering with the reporting of domestic violence without specifying the predicate domestic violence crime was constitutionally sufficient if the predicate crime could be derived from other counts charged in the information.

No. 82094-5, State (respondent) v. Nonog (petitioner). (2/25/10)

145 Wn. App. 802 (2008)

Criminal Law—Domestic Violence—Protection Order—Violation—Status as Criminal Offense—What Constitutes

Whether under former RCW 26.50.110 (2006), violation of a domestic violence no-contact order constituted a criminal offense only if the violation was one for which arrest was required under RCW 10.31.100(a) or (b).

No. 81921-1 (consol w/81940-8), State (respondent) v. Bunker (petitioner); State (respondent) v. Williams (respondent); State (petitioner) v. Vincent (respondent). (2/23/10)

144 Wn. App. 407 (2008) (Bunker & Williams)

Criminal Law—Duress—Instructions—Proposed Instructions—Refusal—Prejudice

Whether in a criminal prosecution the trial court erred in failing to give the defendant’s requested duress instruction, and if so, whether the error was automatically reversible.

No. 82358-8, State (respondent) v. Harvill (petitioner). (1/14/10)

Criminal Law—First Degree Assault—Sentence—Outside Standard Range—Aggravating Circumstances—Severity of Victim’s Injuries

Whether a defendant convicted of first degree assault based on the infliction of “great bodily harm” was properly given an exceptional sentence based on the infliction of injuries that “substantially exceed the level of bodily harm necessary to satisfy the elements of the offense.” See RCW 9.94A.535(3)(y).

No. 81650-6, State (respondent) v. Stubbs (petitioner). (3/9/10)

144 Wn. App. 644 (2008)

Criminal Law—Former Jeopardy—Multiple Convictions—Merger or Dismissal—Validity of Merged or Dismissed Conviction

Whether a trial court violates double jeopardy principles when it merges or dismisses one of two criminal convictions on double jeopardy grounds with the condition that the conviction may be reinstated if the companion conviction is reversed or vacated.

No. 81626-3 (consol. w/82336-7), State (respondent) v. Turner (petitioner); State (respondent) v. Faagata (petitioner). (1/21/10)

144 Wn. App. 279 (2008) (Turner)
147 Wn. App. 236 (2008) (Faagata)

Criminal Law—Former Jeopardy—Witnesses—Tampering—Unit of Prosecution

Whether several telephone calls to a witness allegedly asking her to absent herself from a pending criminal trial or to testify falsely constituted a single unit of prosecution of the crime of witness tempering, rendering the defendant’s multiple convictions for that crime contrary to double jeopardy principles.

No. 82558-1, State (respondent) v. Hall (petitioner). (1/26/10)

147 Wn. App. 485 (2008) — Published in Part

Criminal Law—Plea of Guilty—Withdrawal—Misadvice About Deportation Consequences

Whether a non-citizen defendant who pleaded guilty to a criminal charge should be allowed to withdraw his plea because his attorney misadvised him about the potential deportation consequences of his conviction.

No. 82175-5, State (respondent) v. Sandoval (petitioner); In re Pers. Restraint of Sandoval, Valentin Sandoval (petitioner); State (respondent). STRICKEN — WILL BE RESCHEDULED

Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection

Whether Washington’s lethal injection procedure for offenders sentenced to death constitutes cruel and unusual punishment.

No. 83828-3, Stenson (appellant) v. Vail (respondent). (3/18/10)

Criminal Law—Punishment—Cruel and Unusual Punishment—Lethal Injection

Whether Washington’s lethal injection procedure for offenders sentenced to death constitutes cruel and unusual punishment.

No. 83474-1, Brown, Cal; & Gentry, Jonathan (appellants) v. Vail (respondent). (3/18/10)

Criminal Law—Punishment—Probation and Parole—Conditions—Violation—No New Criminal Violations—Acquittal of Charges—Effect

Whether acquittal of an offender on a criminal charge stemming from conduct committed while on probation precludes a court from subsequently finding that the same conduct constituted a “criminal violation” justifying the revocation of probation.

No. 82476-2, City of Aberdeen (respondent) v. Regan (petitioner). (1/28/10)

147 Wn. App. 538 (2008)

Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process

Whether the trial court violated an offender’s due process rights when it ordered him to report to jail and serve a period of incarceration if he failed to pay his legal financial obligations by a certain future date.

No. 82333-2, State (respondent) v. Nason (petitioner) (see also Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served). (3/9/10)

146 Wn. App. 744 (2008)

Criminal Law—Punishment—Sentence—Financial Assessments—Enforcement—Credit Against Financial Obligation for Jail Time Served

Whether an offender jailed under RCW 9.94A.634 for failing to pay legal financial obligations is entitled to have his jail time credited against his outstanding financial obligations.

No. 82333-2, State (respondent) v. Nason (petitioner) (see also Criminal Law—Punishment—Sentence—Conditions—Violation—Prospective Consequences—Validity—Due Process). (3/9/10)

146 Wn. App. 744 (2008)

Criminal Law—Punishment—Sentence—Outside Standard Range—Consecutive Sentencing—Aggravating Circumstances—Determination by Jury—Necessity

Whether Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), requires a jury to find aggravating factors supporting an exceptional sentence consisting of consecutive standard range prison terms. See Oregon v. Ice, __ U.S. __, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009).

No. 81393-1, State (petitioner) v. Vance (respondent). (2/25/10)

142 Wn. App. 398 (2008)

Criminal Law—Punishment—Sentence—Persistent Offender Accountability Act—“Most Serious Offense”—What Constitutes—Deadly Weapon—Firearm Finding

Whether a finding in a prior criminal conviction that the defendant was armed with a “firearm” rendered the conviction a “most serious offense” under the Persistent Offender Accountability Act, which makes any felony a “most serious offense” if it was accompanied by a “deadly weapon” verdict. See former RCW 9.94A.030(23) (1996).

No. 82567-0, In re Pers. Restraint of Cruze, Schawn Cruze (petitioner); State (respondent). (2/25/10)

Criminal Law—Punishment—Special Drug Offender Sentencing Alternative—Revocation—Failure to “Obey All Laws”—Due Process—Notice—Law Allegedly Violated

Whether revocation of an alternative sentence for a drug offender for failure to “obey all laws” violated due process because the offender was not given adequate notice of the law he was accused of failing to obey.

No. 82329-4, In re Pers. Restraint of Blackburn, Douglas Blackburn (petitioner); State (respondent). (3/18/10)

Criminal Law—Search and Seizure—Seizure—What Constitutes—Contact with Passenger of Parked Motor Vehicle—Request for Identification—Warrantless Search of Car Incident to Arrest—Validity

Whether police unlawfully seized the occupant of a car parked in a public place by requesting her identification, and whether police unlawfully searched the car incident to the occupant’s arrest.

No. 82600-5, State (respondent) v. Afana (petitioner). (1/12/10)

147 Wn. App. 843 (2008)

Criminal Law—Searches and Seizures—Automobiles—Warrantless Search—Incident to Arrest of Occupant—Vehicle Locked in Presence of Officers

Whether police lawfully searched a car incident to the driver’s arrest when the arrest took place after the driver got out of the car and locked it.

No. 82210-7, State (respondent) v. Adams (petitioner). (2/23/10)

146 Wn. App. 595 (2008)

Criminal Law—Searches and Seizures—Fruit of Unlawful Search or Seizure—Attenuation—Use of Unlawfully Seized Cell Phone to Arrange Encounter

Whether, in a prosecution for possession of cocaine, drugs found near the defendant during an encounter with police should have been suppressed because the police arranged the meeting using an illegally seized cell phone.

No. 82219-1, State (respondent) v. Ibarra-Cizneros (petitioner). (3/9/10)

145 Wn. App. 516 (2008)

Criminal Law—Searches and Seizures—Warrantless Entry—Emergency—Domestic Violence—Validity

Whether police officers’ warrantless entry into an apartment to investigate a domestic violence call was justified by the emergency exception to the warrant requirement.

No. 82238-7, State (respondent) v. Schultz, aka Peterson, aka Robertson (petitioner). (1/14/10)

Criminal Law—Sexual Offenses—Child Rape—Attempt—Underage Victim—Actual Existence—Necessity

Whether the defendant was properly convicted of attempted child rape when the purported victim was a police officer posing as a child on the Internet.

No. 82649-8, State (respondent) v. Patel (petitioner). (3/16/10)

Criminal Law—Sexual Offenses—Rape—Evidence—Prior Sexual Behavior—Rape Shield Statute—Scope

Whether the rape shield statute precluded the defendant in a rape prosecution from testifying that the complaining witness had consensual sex with two other men at the same party where she was allegedly raped.

No. 82613-7, State (respondent) v. Jones (petitioner). (1/26/10)

Criminal Law—Sexual Offenses—Registration of Sex Offenders—Failure to Register—Single or Alternative Means Offense—Time Lines—Residential Status

Whether the former sex offender registration statute established alternative means of committing the crime of failure to report to the county sheriff by specifying different reporting time lines for change of residence within a county, change of residence to a different county, and ceasing to have a fixed residence. See former RCW 9A.44.130 (2004).

No. 82089-9, State (respondent) v. Peterson (petitioner). (1/21/10)

145 Wn. App. 672 (2008)

Divorce—Domestic Violence—Protection Order—Termination—Objection—Basis—Historical Abuse and Current Fear

Whether the trial court should have granted a petition to terminate an eight-year-old domestic violence protection order that prevented the petitioner from obtaining a security clearance necessary to transfer to a different job within the military.

No. 82283-2, In re Marriage of Freeman, Robin Freeman (petitioner); Robert Freeman (respondent). (1/19/10)

Employment—Termination—Violation of Public Policy—Elements—Jeopardy—Adequacy of Alternative Remedy

Whether the Washington Industrial Safety and Health Act (particularly RCW 49.17.160 and accompanying regulations) or the statutes prohibiting drunk driving (particularly RCW 9.91.020, RCW 46.61.502, and RCW 46.61.504) adequately promote the public policy of protecting the public from drunk drivers so as to preclude an action by a terminated employee for wrongful discharge in violation of public policy based on a claim that the employee was discharged after reporting a management employee who drove a company vehicle while intoxicated.

No. 83124-6, Cudney (plaintiff) v. Alsco, Inc. (defendant). (1/12/10)

Certified Question from U.S. District Court for the Eastern District of Washington

Landlord and Tenant—Mobile Homes—Assignment or Transfer of Lease—Contractual Limitation—Validity

Whether a provision in a 25-year mobile home lease that reduces the lease to a term of one year if it is assigned violated the requirement of the Manufactured/Mobile Home Landlord-Tenant Act that mobile home leases be assignable.

No. 82574-2, Little Mtn. Estates Tenants Ass’n (respondents) v. Little Mtn. Estates MHC LLC (petitioners). (3/16/10)

146 Wn. App. 546 (2008)

Medical Treatment—Malpractice—Notice of Claim—Statutory Requirement—Validity—Equal Protection

Whether RCW 7.70.100(1), which requires medical malpractice plaintiffs to notify the defendant of the claim 90 days before filing suit, violates equal protection principles.

No. 82142-9 (consol. w/82973-0) Waples (petitioner) v. Yi (respondent); Cunningham (appellant) v. Nicol (respondent). (2/25/10)

146 Wn. App. 54 (2008)

Municipal Corporations—Waters—Public Water Supply—Operation and Management—Local Initiatives—Validity

Whether proposed local initiatives seeking to prohibit the city of Port Angeles from adding fluoride to its public water system are within the local initiative power.

No. 82225-5, City of Port Angeles (respondent) v. Our Water-Our Choice (petitioner). (2/23/10)

145 Wn. App. 869 (2008)

Open Government—Public Disclosure—“Agency”—What Constitutes—Superior Court

Whether a superior court is an “agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.

No. 82229-8, Yakima County (respondent) v. The Yakima Herald Republic (appellant). (3/9/10)

Open Government—Public Disclosure—Public Records—What Constitutes—E-Mail—Associated Metadata

Whether metadata associated with agency e-mail is a public record disclosable under the Public Records Act.

No. 82397-9, O’Neill (respondent) v. City of Shoreline (petitioner). (3/16/10)

145 Wn. App. 913 (2008)

Property—State—Department of Transportation—Surplus Property Program—Sale of Property—Failure to Notify Abutting Property Owners—Ultra Vires Act—Bona Fide Purchaser

Whether the Department of Transportation’s sale of surplus property was ultra vires and void for failure to provide statutorily required notice of the proposed sale to all abutting property owners, and if so, whether the buyer’s deed is nonetheless valid because the buyer was a bona fide purchaser.

No. 82212-3, South Tacoma Way, LLC (respondent) v. State (defendant) and Sustainable Urban Dev. #1, LLC (petitioner). (1/14/10)

146 Wn. App. 639 (2008)

Public Employment—Civil Service—Commission—Judicial Review—Timeliness—Commencement of Period—Ruling on Reconsideration—Notice of Appeal—Service—Sufficiency

Whether the 30-day period for appealing a city civil service commission’s decision upholding a police officer’s termination was tolled pending the officer’s motion for reconsideration of the commission’s decision, and whether the officer properly served the commission with his notice of appeal by leaving a copy with the city clerk.

No. 82306-5, Skinner (respondent) v. Civil Serv. Comm’n of City of Medina (petitioner). (1/19/10)

146 Wn. App. 171 (2008)

Schools—Students—Attendance—Truancy—Initial Hearing—Right to Counsel

Whether a juvenile has a constitutional right to appointed counsel at the initial hearing on a truancy petition filed under chapter 28.225 RCW.

No. 83024-0, Bellevue Sch. Dist. (petitioner) v. E.S. (respondent). (1/19/10)

148 Wn. App. 205 (2009)

Statutes—Amendment—Retroactivity—Separation of Powers—Due Process

Whether amendments to chapter 90.03 RCW modifying the definition of “municipal water supplier” and providing that any party meeting the amended definition had a retroactive right to any water right based on the “pumps and pipes” measure violates the separation of powers doctrine and due process principles.

No. 81809-6, Lummi Indian Nation (respondents/cross-appellants) v. State (appellants/cross-appellants). (1/12/10)

Torts—Immunity—Communication to Government Agency—“Person”—State Agencies

Whether RCW 4.24.510, which protects any “person” from civil liability for communicating a complaint to a government agency on a matter of concern to that agency, immunizes the Department of Labor and Industries from liability for reporting to police the plaintiff’s claimed violation of a no trespass order.

No. 81931-9, Segaline (petitioner) v. Dep’t of Labor & Indus. (respondent). (1/21/10)

144 Wn. App. 312 (2008)

Torts—Juveniles—Loss of Parental Consortium—Feasibility of Joinder With Parents’ Personal Injury Action—Infeasibility—No Guardian ad Litem Representing Child

Whether it was infeasible to join a loss of parental consortium action with the parents’ earlier personal injury action because the children were not then represented by a guardian ad litem, thus allowing the children’s action to proceed independently of the parents’ action.

No. 82474-6, Kelley (respondent) v. Centennial Contractors (petitioner). (1/19/10)

147 Wn. App. 290 (2008)

Weapons—Possession—By Felon—Prior Conviction—Class B Felony—Reclassification as Class A Felony—Ex Post Facto Law

Whether a person previously convicted of vehicular homicide when that crime was a class B felony may be prohibited from possessing firearms based on the current classification of the crime as a class A felony.

No. 82431-2, Rivard (petitioner) v. State (respondent). (3/16/10)

146 Wn. App. 891 (2008)