Supreme Court Issues

January Term 2013

• Admiralty—Maintenance and Cure—Reinstatement—Pretrial—Summary Judgment Standard—Validity
• Arbitration—Contractual Agreement—Validity—Unconscionability
• Automobiles—Operator’s License—Driving Without a License—Third Degree Driving While Suspended or Revoked—Elements—Suspension Based on Failure to Pay Adjudicated Traffic Fine
• Building Regulations—Land Use Regulations—Judicial Review—Land Use Petition Act—Applicability—Approval of Mitigation Projects Related to Sewage Treatment Facility
• Courts—Rules of Court—Indigent Litigant—Waiver of Filing Fees and Surcharges—Scope of Waiver
• Covenants—Construction—Residential Use—Commerical Uses Prohibited—Scope—Short-Term Rentals
• Criminal Law—Evidence—Hearsay—Right of Confrontation—Forfeiture by Wrongdoing—Casual Link—Proof—Sufficiency
• Criminal Law—Evidence—Implicating Another—Right to Remain Silent—Assertion—Effect
• Criminal Law—Forgery—Elements—Intent to Injure or Defraud—Possession of False Documents
• Deed of Trust—Subsequent Lender—Default—Foreclosure—Lender’s Status as “Volunteer”—Previous Loan—Entitled to Equitable Subrogation
• Environment—Water Pollution—Point Pollution Sources—Storm Water Runoff Systems—Discharge Permit—Effluent Limitations—Presumptive Compliance Water Quality Standards—Additional Effluent Reduction Measures—Validity
• Indians—Jurisdiction—Criminal Jurisdiction—In State Court—Searches and Seizures—Validity
• Insurance—Liability Insurance—Comprehensive General Liability Policy—“Insured Contract”—“Third Person”—What Constitutes
• Juveniles—Juvenile Offenders—Sexual Offenses—Risk Level Classification—Sexual Behavior and Risk Assessment SSODA Evaluation—Transmission to Local Law Enforcement Agency—Effect of New Legislation
• Medical Treatment—Health Services—Certificate of Need—Adjudicative Hearing—Settlement—Reliance on Department of Health’s Analysis of Recent Data—Validity
• Negligence—Abuse of Vulnerable Adults—Right of Action—Statutory Provisions—Proof—Pattern of Conduct—Deprivation of Care
• Negligence—Owner or Occupier of Land—Invitee—Duty Owed—Criminal Acts of Third Persons
• Open Government—Public Disclosure—Exemptions—Investigative Records—Nondisclosure Essential for Effective Law Enforcement—Expiration of Investigation—“Continuing” or “Standing” Requests—Ongoing Responsibility of Agency
• Personal Restraint—Final Judgment—Retroactivity of New Decision—Ineffective Assistance of Appellate Counsel—Failure to Anticipate Pending New Supreme Court Decision During Pendency of Petitioner’s Direct Appeal
• Personal Restraint—Grounds—Guilty Plea—Invalid Plea—Failure to Inform of Consequences—Actual Prejudice—Necessity
• Personal Restraint—Grounds—Ineffective Assistance of Counsel—Lack of Experience—Lack of Administrative Support—Inadequate Preparation
• Personal Restraint—Probation and Parole—Grant of Probation—Authority of Governor to Cancel or Revoke Probation—Applicability—Due Process
• State Highways—State Management—Sale or Transfer—Motor Vehicle Fund—Highway Purpose—Conversion of Highway Lanes for High Capacity Transit
• Subrogation—Real Estate—Applicability—Construction of Purchase Loan
• Utility Services—Municipal Utilities—Sewers—Revenues—Limitations on Use
• Vendor and Purchaser—Earnest Money Agreement—Restitution—Seller Ready, Willing, and Able to Perform—Disagreement as to Terms of Contract—Effect—Burden of Proof
• Wills—Contest—Intervention—Standing to Challenge Settlement—Decedent’s Spouse Not a Beneficiary Under Will
• Witness—Nonparty Treating Physician—Ex Parte Contact by Defense Counsel—Prohibition—Scope—Physicians Employed by Defendant Hospital Corporation—Amendments to Statutory Waiver of Physician-Patient Privilege—Effect
• Zoning—Nonconforming Use—Creation—Validity—Nonpermitted Site Preparation Activities

Admiralty—Maintenance and Cure—Reinstatement—Pretrial—Summary Judgment Standard—Validity

Whether in a Jones Act case brought by a maritime worker the trial court correctly applied the summary judgment standard to the worker’s pretrial motion to reinstate maintenance and cure.

No. 87407-7, Dean (petitioner) v. The Fishing Co. of Alaska, Inc., et al. (respondents). (2/14/13)

166 Wn. App. 893 (2012)

Arbitration—Contractual Agreement—Validity—Unconscionability

Whether a mandatory arbitration clause in a contract between social service professionals and a corporation that provides social and counseling services to members of the military is unconscionable.

No. 87953-2, Brown, et al. (respondents) v. MHN Gov’t Servs., Inc., et al. (appellants). (3/12/13)

Automobiles—Operator’s License—Driving Without a License—Third Degree Driving While Suspended or Revoked—Elements—Suspension Based on Failure to Pay Adjudicated Traffic Fine

Whether the offense of third degree driving with a suspended license may be based on a suspension for failure to pay an adjudicated traffic fine.

No. 86885-9, State (respondent) v. Johnson (petitioner). (3/19/13)

Building Regulations—Land Use Regulations—Judicial Review—Land Use Petition Act—Applicability—Approval of Mitigation Projects Related to Sewage Treatment Facility

Whether Snohomish County’s approval of community mitigation projects related to a sewage treatment facility was a land use decision subject to the time limit on judicial challenges under the Land Use Petition Act.

No. 86293-1, Cedar River Water & Sewer Dist., et al. (appellants) v. King County, et al. (respondents) (see also Utility Services—Municipal Utilities—Sewers—Revenues—Limitations on Use). (1/24/13)

Courts—Rules of Court—Indigent Litigant—Waiver of Filing Fees and Surcharges—Scope of Waiver

Whether a superior court, upon finding a litigant indigent in connection with an application to waive filing fees and surcharges under General Rule 34, must waive all fees and surcharges or may grant a partial waiver.

No. 87009-8, Jafar (petitioner) v. Webb (respondent). (3/12/13)

Covenants—Construction—Residential Use—Commerical Uses Prohibited—Scope—Short-Term Rentals

Whether a homeowners association properly amended its covenants to prohibit the short-term rental of homes in light of existing covenants limiting use to single family residences and prohibiting commercial use of properties.

No. 86870-1, Wilkinson, et al. (respondents) v. Chiwawa Communities Ass’n (appellant). (3/19/13)

Criminal Law—Evidence—Hearsay—Right of Confrontation—Forfeiture by Wrongdoing—Casual Link—Proof—Sufficiency

Whether in a prosecution for domestic violence offenses the defendant’s conduct toward the victim before and after his arrest supported a ruling that he forfeited his right to challenge the admission of the unavailable victim’s out-of-court statements, even though there was no evidence that the defendant threatened the victim not to testify or direct evidence that the victim refused to appear because of threats.

No. 87472-7, State (respondent) v. Dobbs (petitioner); Personal Restraint Petition of
Dobbs, Timothy J. Dobbs (petitioner). (1/22/13)

167 Wn. App. 905 (2012) Published in Part

Criminal Law—Evidence—Implicating Another—Right to Remain Silent—Assertion—Effect

Whether the trial court in a prosecution for cyberstalking erroneously disallowed evidence that someone else committed the crime after allowing the alleged other suspect to assert her Fifth Amendment right to remain silent.

No. 87253-8, State (respondent) v. Franklin (petitioner). (1/15/13)

Criminal Law—Forgery—Elements—Intent to Injure or Defraud—Possession of False Documents

Whether a defendant’s possession of forged documents without evidence that the defendant used the documents for any purpose supports an inference of intent to defraud sufficient to convict the defendant of forgery.

No. 87282-1, State (respondent) v. Vasquez (petitioner). (3/19/13)

166 Wn. App. 50 (2012)

Deed of Trust—Subsequent Lender—Default—Foreclosure—Lender’s Status as “Volunteer”—Previous Loan—Entitled to Equitable Subrogation

Whether a subsequent “volunteer” lender foreclosing on a deed of trust may be equitably subrogated to a previous loan encumbering the real property.

No. 87174-4, Columbia Cmty. Bank (respondent) v. Newman Park, LLC (petitioner). (1/24/13)

Environment—Water Pollution—Point Pollution Sources—Storm Water Runoff Systems—Discharge Permit—Effluent Limitations—Presumptive Compliance Water Quality Standards—Additional Effluent Reduction Measures—Validity

Whether the holder of an industrial storm water general permit may lawfully be required under the permit to implement corrective measures when certain “benchmark” effluent levels are exceeded even though the permittee has fully implemented storm water best management practices approved by the Department of Ecology and there is no site-specific evidence that a discharge is causing or contributing to a violation of state water quality standards.

No. 87892-7, The Boeing Co. (petitioner) v. State, et al. (respondents). ORAL ARGUMENT STRICKEN

Indians—Jurisdiction—Criminal Jurisdiction—In State Court—Searches and Seizures—Validity

Whether nontribal police officers were required to obtain a search warrant from a tribal court in order to search the home of a tribal member located on tribal land for evidence of a crime committed on fee land within the boundaries of an Indian reservation.

No. 87376-3, State (respondent) v. Clark (petitioner). (1/22/13)

167 Wn. App. 667 (2012)

Insurance—Liability Insurance—Comprehensive General Liability Policy—“Insured Contract”—“Third Person”—What Constitutes

Whether, under a partnership liability policy that excluded coverage of liability the partnership contractually assumed but exempted from that exclusion agreements assuming liability for injury to third persons, an insured partner was a “third person” and therefore covered for injuries he sustained while doing work for a contractor under an agreement to indemnity the contractor for injuries arising out of the partnership’s operations or use of the contractor’s property.

No. 87231-7, Int’l Marine Underwriters (respondent) v. ABCD Marine, LLC, et al. (defendants). (2/19/13)

165 Wn. App. 223 (2001)

Juveniles—Juvenile Offenders—Sexual Offenses—Risk Level Classification—Sexual Behavior and Risk Assessment SSODA Evaluation—Transmission to Local Law Enforcement Agency—Effect of New Legislation

Whether, in light of a 2011 amendment to RCW 7.09.345 that requires the end-of-sentence review committee to assign risk levels to sex offenders (Laws of 2011, ch. 338, § 5), a juvenile court was nonetheless required by RCW 4.24.550(6) to transmit a juvenile offender’s Special Sex Offender Disposition Alternative evaluation to the county sheriff for risk classification.

No. 87740-8, State (respondent) v. Sanchez (petitioner). (2/21/13)

169 Wn. App. 405 (2012)

Medical Treatment—Health Services—Certificate of Need—Adjudicative Hearing—Settlement—Reliance on Department of Health’s Analysis of Recent Data—Validity

Whether the Department of Health properly issued a certificate of need in settlement of an adjudicative hearing on the validity of the department’s original decision denying a certificate, and whether in doing so it properly relied on data collected after the original decision.

No. 87574-0, King County Pub. Hosp. No. 2, et al. (petitioners) v. Wash. State Dep’t of Health, et al. (respondents). (2/21/13)

Negligence—Abuse of Vulnerable Adults—Right of Action—Statutory Provisions—Proof—Pattern of Conduct—Deprivation of Care

Whether in an action for neglect of a ward under the abuse of vulnerable adults act, chapter 74.34 RCW, the State need only prove the guardian engaged in a pattern of conduct resulting in a deprivation of care, not that the conduct caused the ward harm or that the ward would have accepted an alternative care plan had one been offered.

No. 87483-2, Raven (petitioner) v. DSHS (respondent). (2/12/13)

167 Wn. App. 446 (2012)

Negligence—Owner or Occupier of Land—Invitee—Duty Owed—Criminal Acts of Third Persons

Whether, in this action brought against a mall owner and a mall security firm by a store employee who was one of those shot during a third party’s criminal rampage, the plaintiff must show that similar violent acts previously occurred on the premises in order to establish that the defendants owed him a duty to protect him from the third party’s criminal acts.

No. 87722-0, McKown (appellant) v. Simon Prop. Group Inc., et al. (appellees). (2/21/13)

Certified from U.S. Court of Appeals, Ninth Circuit

Open Government—Public Disclosure—Exemptions—Investigative Records—Nondisclosure Essential for Effective Law Enforcement—Expiration of Investigation—“Continuing” or “Standing” Requests—Ongoing Responsibility of Agency

Whether the exemption from the Public Records Act for law enforcement investigative records expired when the underlying case was referred for prosecution, and if so, whether the law enforcement agency was thereafter required to comply with the original public records request.

No. 87417-4, Sargent (petitioner) v. Seattle Police Dep’t (respondent). (1/15/13)

167 Wn. App. 1 (2011)

Personal Restraint—Final Judgment—Retroactivity of New Decision—Ineffective Assistance of Appellate Counsel—Failure to Anticipate Pending New Supreme Court Decision During Pendency of Petitioner’s Direct Appeal

Whether State v. Winterstein, 167 Wn.2d 620, 220 P.3d 1226 (2009), applies retroactively to petitioner’s previously final judgment and sentence, and if not, whether appellate counsel was ineffective during the pendency of petitioner’s direct appeal by failing to anticipate Winterstein while it was pending in the supreme court.

No. 87529-4, In re Pers. Restraint of Haghighi, Nadder B. Haghighi (petitioner); State (respondent). (2/19/13)

167 Wn. App. 712 (2012)

Personal Restraint—Grounds—Guilty Plea—Invalid Plea—Failure to Inform of Consequences—Actual Prejudice—Necessity

Whether a personal restraint petitioner alleging that his guilty plea was involuntary because he was misinformed of the maximum sentence must establish actual and substantial prejudice in order to obtain relief.

No. 86001-7, Pers. Restraint of Stockwell, Dan Stockwell (petitioner); State (respondent). (2/12/13)

161 Wn. App. 329 (2012)

Personal Restraint—Grounds—Ineffective Assistance of Counsel—Lack of Experience—Lack of Administrative Support—Inadequate Preparation

Whether the defendant in a prosecution for homicide by abuse and first degree manslaughter was deprived of effective assistance of counsel due to counsel’s inexperience, mishandling of expert testimony, and lack of preparation and administrative support.

No. 86711-9, Pers. Restraint of Gomez, Maribel Gomez (petitioner); State (respondent). (3/12/13)

Personal Restraint—Probation and Parole—Grant of Probation—Authority of Governor to Cancel or Revoke Probation—Applicability—Due Process

Whether the governor’s power under RCW 9.95.160 to “cancel or revoke” an offender’s probation authorizes the governor to overrule a decision of the Indeterminate Sentence Review Board granting probation, and if so, whether the offender is entitled to due process protections.

No. 87109-4, In re Pers. Restraint of Lain, Jerry Lain (petitioner); State (respondent). (3/21/13)

State Highways—State Management—Sale or Transfer—Motor Vehicle Fund—Highway Purpose—Conversion of Highway Lanes for High Capacity Transit

Whether an agreement between the State and Sound Transit to lease the center lanes of Interstate 90 across Lake Washington for purposes of light rail violates article II, section 40 of the Washington Constitution by diverting motor vehicle funds for nonhighway purposes or improperly leases land presently needed for highway purposes contrary to RCW 47.12.120.

No. 87267-8, Freeman, et al. (appellants) v. State, et al. (respondents). (2/19/13)

Subrogation—Real Estate—Applicability—Construction of Purchase Loan

Whether equitable subrogation was available to a bank on the basis of a construction and purchase loan to a developer intended to pay off existing liens on the property, giving the bank priority over a subsequent mechanic’s lien.

No. 87087-0, Stewart Title Guar. Co. (appellant) v. Sterling Savings Bank, et al. (respondents). (2/14/13)

Utility Services—Municipal Utilities—Sewers—Revenues—Limitations on Use

Whether King County lawfully expended sewer revenues on certain aspects of a sewage treatment facility it constructed in Snohomish County, including water reclamation functions of the facility and community mitigation projects it agreed to fund in a settlement with Snohomish County over siting of the facility.

No. 86293-1, Cedar River Water & Sewer Dist., et al. (appellants) v. King County, et al. (respondents) (see also Building Regulations—Land Use Regulations—Judicial Review—Land Use Petition Act—Applicability—Approval of Mitigation Projects Related to Sewage Treatment Facility). (1/24/13)

Vendor and Purchaser—Earnest Money Agreement—Restitution—Seller Ready, Willing, and Able to Perform—Disagreement as to Terms of Contract—Effect—Burden of Proof

Whether a seller who claims to be ready, willing, and able to perform a real estate sales contract that violates the statute of frauds may avoid the remedy of restitution of the earnest money if the parties disagree as to the terms of the contract, and if so, whether the buyer bears the burden of proving that the seller is not ready, willing, and able to perform.

No. 87395-0, Kofmehl (petitioner) v. Baseline Lake, LLC (respondent). (2/14/13)

167 Wn. App. 677 (2012) Published in Part

Wills—Contest—Intervention—Standing to Challenge Settlement—Decedent’s Spouse Not a Beneficiary Under Will

Whether the spouse of a decedent, who is not a beneficiary under the will, had standing to intervene in a will contest in order to challenge a settlement between the will challengers and the guardian ad litem of the surviving spouse’s minor child, the sole beneficiary under the will.

No. 87544-8, In re Estate of Becker, Virgil V. Becker, Jr., Deceased; Becker, et al. (respondents) v. Becker (petitioner). (2/12/13)

Witness—Nonparty Treating Physician—Ex Parte Contact by Defense Counsel—Prohibition—Scope—Physicians Employed by Defendant Hospital Corporation—Amendments to Statutory Waiver of Physician-Patient Privilege—Effect

Whether under Louden v. Myhre, 110 Wn.2d 675, 756 P.2d 128 (1988), attorneys representing a defendant hospital corporation in a medical malpractice action are prohibited from having ex parte contact with nonparty treating physicians employed by the hospital corporation, and if so, whether Louden was abrogated by amendments to RCW 5.60.060(4) providing that the waiver of the physician-patient privilege for any one physician following the filing of a medical malpractice lawsuit constitutes a waiver of the privilege as to all physicians.

No. 87811-1, Youngs (petitioner) v. Peacehealth, et al. (respondents); Glover (respondent) v. State of Wash., et al. (petitioner). (2/19/13)

Zoning—Nonconforming Use—Creation—Validity—Nonpermitted Site Preparation Activities

Whether a materials processing facility was a valid nonconforming use even though it was established in part by nonpermitted clearing and grading.

No. 87514-6, King County, Dep’t of Dev. & Envtl. Servs. v. King County, et al. (petitioner) v. King County, et al. (respondents). (1/22/13)

167 Wn. App. 561 (2012)