Appeal—Review—Law of the Case

Whether the Court of Appeals correctly applied the law of the case doctrine in re-visiting an issue decided in an earlier appeal.

No. 75486-1, Roberson (plaintiff) Sims (petitioner) v. Perez (defendant) Douglas County (respondent). (3/24/05)

119 Wn. App. 928 (2004)

Arbitration—Mandatory Arbitration—Trial de Novo—Notice—Service—Proof

Whether the proof-of-timely-service requirements of MAR 7.1(a) were met by a declaration stating that the request for trial de novo was delivered to a legal messenger, but not showing the actual date that opposing counsel received it.

No. 75153-6, Alvarez (petitioner) v. Banach (respondent). (1/19/05)

120 Wn. App. 93 (2004)

Automobiles—Operator’s License—Revocation—Conviction of Crime—Due Process

Whether the automatic revocation of driver’s licenses upon conviction of certain crimes violates due process. See RCW 46.20.285; City of Redmond v. Moore, 151 Wn. App. 664, 91 P.3d 875 (2004).

No. 73249-3, City of Redmond (petitioner) v. Bagby (respondent). (3/17/05)

Civil Rights—Disability Discrimination—Disparate Treatment—Elements—Disability—Definition

Whether the definition of “disability” which is employed in cases involving a claimed failure to accommodate the plaintiff’s disability should likewise be employed in cases involving a claimed disparate treatment of the plaintiff due to his disability.

No. 75024-6, McClarty (respondent) v. Totem Elec. Co. (petitioner). (1/19/05)

119 Wn. App. 453 (2003)

Criminal Law—Arrest—Driving While License Suspended or Revoked—Officer’s Discretion to Issue Citation

Whether the evidence found during the impoundment search of the car driven by the defendant should have been suppressed because the arresting officer always arrested suspects for driving with a suspended license, even though he was statutorily authorized to instead issue a citation.

No. 75301-6, State (respondent) v. Pulfrey (petitioner). (1/20/05)

120 Wn. App. 270 (2004) — published in part

Criminal Law—Driving While Intoxicated—Punishment—Enhanced Penalty—Prior Offense—Negligent Driving Arising From DUI Charge

Whether RCW 46.61.5055, insofar as it increases the minimum sentence for a conviction of driving under the influence if the offender has a “prior offense,” violates due process by including as a “prior offense” a conviction for first degree negligent driving that was originally charged as a DUI.

No. 75108-1, City of Walla Walla (petitioner) v. Greene (respondent). (2/10/05)

Criminal Law—Eluding Police Vehicle—Elements—Failure to “Immediately” Stop

Whether the crime of attempting to elude a police vehicle includes as an element the failure to stop “immediately.”

No. 75326-1 (cons. w/75327-0), State (respondent) v. Tandecki (petitioner); State (respondent) v. Pettitt (petitioner). (2/8/05)

120 Wn. App. 303 (2004)

Criminal Law—Kidnapping—Robbery—Double Jeopardy—Merger

Whether the defendant’s convictions for first degree kidnapping and first degree robbery either violated double jeopardy or, because the kidnappings were incidental to the robberies, should have merged.

No. 75151-0, State (respondent) v. Louis (petitioner) (see also Criminal Law—Punishment—Sentence—Outside Standard Range—). (2/10/05)

Criminal Law—Kidnapping—Robbery—Merger

Whether the defendant’s convictions for first degree kidnapping should have merged with his convictions for first degree robbery, on the basis that the kidnappings were incidental to the robberies.

No. 75491-8, State (petitioner) v. Korum (respondent). (2/10/05)

120 Wn. App. 686 (2004)

Criminal Law—Post-Conviction Relief—Driving While License Suspended—Validity of Suspension

Whether City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004), should be applied retroactively to allow this defendant to collaterally attack his 1999 convictions for driving while his license was suspended.

No. 76134-5, City of Bremerton (respondent) v. Hawkins (appellant). (3/17/05)

Criminal Law—Post-Conviction Relief—Timeliness—Statutory Limits—Exceptions—Significant Change in Law

Whether State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000), and State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000), significantly changed the law of accomplice liability, thus exempting personal restraint petitions based on those decisions from the one-year time limit on collateral attacks.

No. 75920-1 (cons. w/75951-1 & 75976-6), In re Personal Restraint Petition of Domingo, Jerry Domingo (petitioner); State (respondent); In re Personal Restraint Petition of Le, Keit Le (petitioner); State (respondent); In re Personal Restraint Petition of Kaseweter, Bob Kaseweter (petitioner); State (respondent). (3/10/05)

Criminal Law—Punishment—Enhancements—Multiple Enhancements—Consecutive or Concurrent

Whether these defendants’ standard range sentences properly included consecutive (rather than concurrent) enhancements for manufacturing methamphetamine (1) within 1,000 feet of a school bus stop (RCW 69.50.435) and (2) with a child on the premises (RCW 9.94A.605).

No. 75436-5, State (respondent) v. Jacobs (petitioner); State (respondent) v. Austin-Bocanegra (petitioner). (2/17/05)

121 Wn. App. 669 (2004)

Criminal Law—Punishment—Sentence—Criminal History—Juvenile Adjudications Sentenced on Same Date—Statutory Provisions—Amendment—Retroactivity

Whether, in calculating an offender score, the trial court properly counted separately prior juvenile convictions for which the defendant had been sentenced on the same date in 1996.

No. 75460-8, State (respondent) v. Swecker (petitioner). (3/24/05)

Criminal Law—Punishment—Sentence—Earned Early Release—Prohibition

Whether a sentencing court may preclude application of the earned early release statute, RCW 9.94A.728, based on the defendant’s stipulation as part of a plea bargain that she would waive early release.

No. 75310-5, In re Personal Restraint Petition of West, Brenda West (petitioner); State (respondent). (1/20/05)

Criminal Law—Punishment—Sentence—Mandatory Minimum—First Degree Assault

Whether the Department of Corrections may treat an offender convicted of first degree assault as having a five-year mandatory minimum term under former RCW 9.94A.120(4) (which imposes a five-year minimum if the offender used force or means likely to result in death) in the absence of a judgment and sentence expressly imposing that term.

No. 75280-0 (cons. w/75309-1), In re Personal Restraint Petition of Tran, Huy Tran (petitioner); State (respondent); In re Personal Restraint Petition of Roberts, Michael Roberts (petitioner); State (respondent). (2/15/05)

Criminal Law—Punishment—Sentence—Outside Standard Range—Validity

Whether the imposition of consecutive sentences under RCW 9.94A.589(1)(b), based on the sentencing judge’s finding that the defendant’s serious violent offenses arose from separate and distinct criminal conduct, violates the requirement of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), that any fact increasing a defendant’s sentence be found by a jury.

No. 75109-9, State (respondent) v. Cubias (petitioner). (2/10/05)

* * * * * * * * * * * * * * * * * *

No. 75151-0, State (respondent) v. Louis (petitioner) (see also Criminal Law—Kidnapping—Robbery—Double Jeopardy—Merger). (2/10/05)

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Jury Determination

Whether, for purposes of considering an exceptional sentence, the trial court may convene a jury to determine whether aggravating circumstances exist.

No. 75984-7 (cons. w/75989-8; 76081-1; 76077-2), State (petitioner) v. Pillatos (respondent); State (petitioner) v. Butters (respondent); State (respondent) v. Base (petitioner); State (petitioner) v. Metcalf (respondent). (3/24/05)

Criminal Law—Punishment—Sentence—Outside Standard Range—Validity

Whether, under Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), a jury must decide whether the multiple offense policy of the Sentencing Reform Act results in a presumptive sentence that is too lenient, thus justifying an exceptional sentence, for a defendant whose offender score is greater than nine.

No. 75635-0 (cons. w/76195-7), State (respondent) v. Brown (petitioner), Personal Restraint Petition of Brown, Byron Lee Brown (petitioner); State (respondent). (stricken—will be rescheduled for May term)

Criminal Law—Punishment—Sentence—Right of Allocution—Remedy for Denial

Whether a defendant has the right of allocution at a Special Sex Offender Sentencing Alternative revocation hearing, and if so, whether the remedy for denial of that right is to remand for a new hearing or only for a determination based on the previous probation violation findings and the defendant’s allocution.

No. 75357-1 (cons. w/76464-6 & 76561-8), State (petitioner) v. Canfield (respondent); State (respondent) v. Demry (appellant); State (respondent) v. Speirs (appellant). (3/8/05)

120 Wn. App. 729 (2004)

Criminal Law—Punishment—Special Drug Offender Sentencing Alternative—Prosecutor’s Policy Statement

Whether a county prosecutor’s policy statement opposing special drug offender sentences, set forth in a memorandum that was sent to all county superior court judges prior to the commencement of the defendant’s prosecution, amounted to an improper ex parte communication.

No. 75351-2, State (petitioner) v. Watson (respondent). (2/15/05)

120 Wn. App. 521 (2004)

Criminal Law—Search & Seizure—Inevitable Discovery—State Constitution

Whether, under the Washington Constitution, evidence found in an unlawful search may be admitted if it inevitably would have been discovered by lawful means, and if so, whether the challenged evidence in this case inevitably would have been discovered.

Nos. 74793-8; 75718-6, State (respondent) v. Gaines (petitioner); State (respondent) v. Gaines (petitioner). (2/8/05)

Criminal Law—Sentence Modification Hearings—Hearsay Evidence—Confrontation

Whether testimonial hearsay evidence may be admitted at a sentence modification hearing if the defendant does not have an opportunity to confront the declarant.

No. 75398-9, State (respondent) v. Abd-Rahmaan (petitioner). (2/17/05)

120 Wn. App. 284 (2004)

Criminal Law—Taking Motor Vehicle Without Permission—Restitution—Imposition Against Passenger

Whether passengers convicted of taking a motor vehicle without permission may be held liable in restitution for damages to the vehicle that occurred either before they got in or after they got out.

No. 75499-3, State (respondent) v. Hiett (petitioner); State (respondent) v. Freilinger (petitioner). (3/8/05)

120 Wn. App. 604 (2004)

Criminal Law—Time for Trial—Continuance—Judicial Unavailability

Whether the general unavailability of judges because of an annual judicial conference was sufficient justification for continuing the defendant’s trial beyond his original CrR 3.3 speedy trial period.

No. 75092-1, State (respondent) v. Flinn (petitioner). (1/13/05)

119 Wn. App. 232 (2003)

Criminal Law—Weapon—Enhanced Punishment—Constructive Possession

Whether the defendant’s sentence for drug possession was properly enhanced based on a deadly weapon finding, where the drugs and the firearm were both in a backpack that the defendant could not remove from behind the driver’s seat without getting out of his truck or moving to the passenger seat.

No. 75156-1, State (respondent) v. Gurske (petitioner). (1/20/05)

120 Wn. App. 63 (2004)

Damages—Remittitur—Propriety

Whether the Court of Appeals properly reversed the judgment in this employment discrimination action, either for remittitur of the plaintiff’s noneconomic damages from $260,000 to $25,000 or for retrial on the issue of general damages only, at the plaintiff’s election, based on the conclusion that the jury award was unsupported by the evidence.

No. 75103-0, Bunch (petitioner) v. King County Dep’t of Youth Servs. (respondent). (3/17/05)

Declaratory Judgment—Justiciable Controversy—Standing—Taxpayer’s Suit

Whether taxpayers have standing to challenge a public utility district’s authority to provide an appliance repair service.

No. 74971-0, Kightlinger (respondent) v. PUD 1 of Clark County (petitioner) (see also Public Utility Districts—Powers—Implied Powers—). (1/19/05)

119 Wn. App. 501 (2003)

Eminent Domain—Monorail Project—Lack of Statutory Procedure—Effect

Whether the Seattle Monorail Project, a “city transportation authority” under chapter 35.95A RCW, lacks the power of eminent domain because the legislation purporting to grant that power does not prescribe procedures to exercise it.

No. 76462-0, In re Seattle Monorail Project—Second and Yesler Station Site. (3/17/05)

Judgments—Interest—Accrual—Suspension—Appellate Delay

Whether the accrual of interest on a money judgment may be suspended because of appellate delay not caused by the judgment debtor.

No. 75116-1, Rufer (petitioner) v. Abbott Labs. (respondent) (see also Open Government—Courts—Judicial Records). (2/8/05)

Juveniles—Parental Relationship—De Facto Parent—Visitation

Whether the same-sex former domestic partner of a child’s biological parent can be considered a de facto parent who is entitled to visitation despite the objections of the custodial biological parent.

No. 75626-1, In re Parentage of L.B., Sue Ellen Carvin (respondent); Page Britain (petitioner). (2/15/05)

121 Wn. App. 460 (2004)

Land Use—Building Regulations—Building Permit—Conditions—Development Fees

Whether impact fees under the Growth Management Act must be based on a specific development’s impact or may be based on the need for additional public infrastructure created by projected new growth in the aggregate.

No. 75270-2, City of Olympia (petitioner) v. Drebick (respondent). (2/8/05)

119 Wn. App. 774 (2004)

Land Use—Growth Management Act—Fully Contained Community Designation—Validity

Whether King County’s designation of the Bear Creek area as a fully contained community under the Growth Management Act complied with the Act’s requirements for such designations.

No. 75076-9, Quadrant Corp. (petitioner) v. Growth Mgmt. Hearings Bd. (respondent); King County (petitioner) v. Central Puget Sound Growth Mgmt. Hearings Bd. (respondent); Friends of the Law (petitioner) v. King County (petitioner) Central Puget Sound Growth Mgmt. Hearings Bd. (respondent) (see also Land Use—Growth Management Act—Urban Growth Area—). (1/13/05)

119 Wn. App. 562 (2003)

Land Use—Growth Management Act—Urban Growth Area—Designation—Effect of Future Development

Whether, consistent with the Growth Management Act, a county may consider vested or planned future development in determining if an area is already characterized by urban growth and thus eligible for an urban growth area designation under the Act.

No. 75076-9, Quadrant Corp. (petitioner) v. Growth Mgmt. Hearings Bd. (respondent); King County (petitioner) v. Central Puget Sound Growth Mgmt. Hearings Bd. (respondent); Friends of the Law (petitioner) v. King County (petitioner) Central Puget Sound Growth Mgmt. Hearings Bd. (respondent) (see also Land Use—Growth Management Act—Fully Contained Community Designation—). (1/13/05)

119 Wn. App. 562 (2003)

Land Use—Restrictive Covenants—Enforceability

Whether lot size and single family residence limitations in a restrictive covenant are unenforceable, either because the limitations conflict with public policy as embodied in the Growth Management Act and the applicable comprehensive plan, or because the covenant also includes invalid racial restrictions.

No. 75240-1, Viking Prop., Inc. (respondent) v. Holm (appellant). (2/17/05)

Marriage—Statutes Prohibiting Same-Sex Marriage—Constitutionality

Whether RCW 26.04.010(1) and RCW 26.04.020(1)(c), in prohibiting marriages between two persons of the same sex, violate the Washington Constitution.

No. 75934-1 (cons. w/75956-1), Andersen (respondent) v. King County (appellant); Castle (respondent) v. State (petitioner). (3/8/05)

Mental Health—Involuntary Commitment—Sexually Violent Predators—Recent Overt Act—Necessity—Person Incarcerated for Third Degree Rape When Petition Filed

Whether the State may seek to commit as a sexually violent predator an offender who was previously convicted and incarcerated for a sexually violent offense, and who is presently incarcerated for a third degree rape conviction, based on the allegation that the third degree rape would have qualified as a recent overt act.

No. 75521-3, In re Detention of Marshall, Raymond Marshall (petitioner); State (respondent). (3/10/05)

122 Wn. App. 132 (2004)

Municipal Corporations—Boundaries—Annexation by Petition—Boundary Review Board—Review—Timeliness—180-day Filing Period—Commencement

Whether the statutory 180-day period for filing with a boundary review board a notice of intention to seek annexation begins when owners of 10 percent of the affected property present their initial annexation petition to the city legislative body, or when the subsequent annexation petition reflecting the approval of owners of 75 percent of the property is filed with the city.

No. 75461-6, Snohomish County Fire Prot. Dist. 1 (petitioner) v. Boundary Review Bd. for Snohomish County (respondent). (3/10/05)

121 Wn. App. 73 (2004)

Municipal Corporations—Ordinances—Initiatives—Validity—Declaratory Judgment—Standing

Whether a municipality has standing to challenge the validity of an ordinance enacted by initiative, and if so, who is the proper defendant.

No. 74987-6, City of Sequim (respondent) v. Malkasian (petitioner). (1/13/05)

119 Wn. App. 654 (2003)

Newspapers—Contracts—Joint Operating Agreement—Escape Clause

Whether a force majeure clause in a newspaper joint operating agreement precluded one party from invoking an escape clause to terminate the agreement after three consecutive unprofitable years, when some of those years were unprofitable because of a labor strike.

No. 75400-4, Hearst Communications, Inc. (petitioner) v. Seattle Times Co. (respondent). (2/15/05)

120 Wn. App. 784 (2004)

Open Government—Courts—Judicial Records

Whether the trial court correctly applied a “compelling interest” test to determine if documents which were subject to a pretrial confidentiality order, and which were sealed when initially filed with the court, should remain sealed after trial.

No. 75116-1, Rufer (petitioner) v. Abbott Labs. (respondent) (see also Judgments—Interest—Accrual—Suspension—). (2/8/05)

Property—Estates—Grantor’s Residual Interest—Validity—Restraint on Alienation

Whether a clause in a deed which provides that the property will revert back to the grantors if the grantees mortgage the property during the grantors’ lifetimes is void as an unreasonable restraint on alienation.

No. 75001-7, Alby (respondent) v. Bank One Fin. (petitioner). (1/13/05)

119 Wn. App. 513 (2003)

Public Contracts—Contractor’s Bond—Owner’s Reserve Fund—Preclaim Notice—Materials Supplier—On-Site Subcontractor

Whether RCW 39.08.065 and RCW 60.28.015 require a subcontractor to give preclaim notice before making a claim against the contractor’s bond or the retainage fund for materials the subcontractor installed at the project.

No. 75096-3, LRS Elec. Controls, Inc. (respondent) v. Hamre Constr., Inc. (petitioner). (1/19/05)

119 Wn. App. 606 (2004)

Public Utility Districts—Powers—Implied Powers—Appliance Repair

Whether a public utility district’s authority to sell and distribute electricity impliedly also authorizes it to provide a repair service for appliances other than those it sold or leased.

No. 74971-0, Kightlinger (respondent) v. PUD 1 of Clark County (petitioner) (see also Declaratory Judgment—Justiciable Controversy—Standing—). (1/19/05)

119 Wn. App. 501 (2003)

Taxation—Property Taxation—Assessed Value—Valuation Date—Multiyear Valuation Cycle

Whether the proper date of property valuation, for purposes of a “mid-cycle” challenge to a property tax assessment in a county which uses a multiyear cyclical revaluation system, is January 1 of the last cyclical revaluation year or January 1 of the year for which the challenged tax is assessed.

No. 75641-4, Advanced Silicon Materials LLC (respondent) v. Grant County (petitioner). (continued to May term)

Woods & Forests—Nuisance—Agricultural Exemption—Forest Practice—What Constitutes

Whether, for purposes of RCW 7.48.305, which bars nuisance actions against those engaged in forest practices that were established prior to surrounding nonforestry activities, tree growing alone can qualify as a forest practice.

No. 75408-0, Alpental Cmty. Club, Inc. (petitioner) v. Seattle Gymnastics Soc’y (respondent). (3/24/05)

121 Wn. App. 491 (2004)