Case Law

WEEKLY ROUNDUP FOR DECEMBER 6, 2019

Washington Supreme Court

Right to Present a Defense. The limitations placed upon the defense arson expert’s testimony due to his failure to follow well established scientific methodology was not an abuse of discretion under ER 702, as unreliable testimony does not assist the trier of fact.  The trial court did not abuse its discretion by excluding demonstrative photographs involving experimental conditions that were not sufficiently similar to the case at hand as irrelevant.  The trial court’s evidentiary rulings did not violate the defendant’s constitutional rights as the defendant was still able to advance her defense theory, including testimony from his expert witness.  State v. Arndt, No. 95396-1 (Dec. 5, 2019).   Justices Madsen, Gordon McCloud, and Johnson dissented.  The State was represented by Kitsap County Deputy Prosecuting Attorney Randall Sutton.
 
Double Jeopardy.  The defendant’s convictions for both first degree aggravated murder and first degree arson do not violate double jeopardy protections, as the two crimes have separate purposes and effects. The aggravated first degree murder charge involved a single victim.  The first degree arson charge destroyed a home that belonged to someone other than the murder victim and that was manifestly dangerous to the other occupants.  State v. Arndt, No. 95396-1 (Dec. 5, 2019).   Justices Madsen, Gordon McCloud, and Johnson dissented.  The State was represented by Kitsap County Deputy Prosecuting Attorney Randall Sutton.
 
Utilities and County Right of Ways.  King County may charge franchise compensation generally.  The charge is in the nature of a rent and not a tax.   Water-sewer districts or private utilities have no general right to use King County’s rights-of-way without a franchise.  Whether an individual utility has some specific right to use the rights-of-way without a franchise must be resolved on a case-by-case basis.  King County v. King County Water Districts, No. 96360-6 (Dec. 5, 2019).  Justices Stephens and Lawrence-Berry, J.P.T., concurred, clarifying that the result extends to non home-charter counties.  King County was represented by Thomas Brown, David Hackett, Matthew Segal, Jessica Skelton, Donald Woodworth, and Kymberly Evanson.
 
 The Washington Supreme Court granted review in the following matters this week:
 
SANE and Testimonial Hearsay.  State v. Burke, No. 96783-1.  State’s Petition–Pierce County.  Issues: “1. Did the sexual assault examination in this case have dual purposes?  2. Was one of the purposes of the sexual assault examination in this case the provision of medical care to a rape victim? 3. Does the record in this case suggest that the medical purpose of assisting a rape victim was in any way secondary or subordinate to the purpose of gathering evidence of a rape? 4. Does every conversation, examination, and document have a primary purpose? 5. Does the Confrontation Clause require a finding that every multi-purpose conversation must have a primary purpose? 6. Did the Court of Appeals err when it concluded that the provision of evidence was the primary purpose of the sexual assault nurse examination in this case? 7. Did the Court of Appeals err in its Confrontation Clause “primary purpose” analysis by failing to consider the individual statements made in the course of K.E.H.’s sexual assault examination? 8. Did the Court of Appeals err when it applied an all-or-nothing primary purpose Confrontation Clause analysis to a mixed-purpose sexual assault examination, rather than conducting a statement-by-statement analysis? 9. Should this matter be remanded to the Court of Appeals to conduct a statement-by-statement analysis? 10. Did the Court of Appeals err when it concluded that Confrontation Clause error in this case was not harmless?” COA opinion reported at 6 Wn. App. 2d 950 (2018).  Petition for review pleadings available here.
 
Sex Offender Registration.  State v. Batson, No. 97617-1.  State’s Petition– King County.  “State’s petition for review granted; review of the issues raised in the answer to the petition for review also granted.”  State’s Issue: Washington’s registration statute requires a person, who was convicted of an out-of-state conviction that is not comparable to any Washington offense, to register while residing in this state if obligated to do so in their state of conviction.  “Is this statutory scheme constitutional when the Washington legislature has defined every element of failing to register, and Arizona law merely controls when the registration requirement becomes operative for some individuals?”  Defendant’s Issues:  Do the changes to Washington’s sex offender registration scheme raise a significant question of constitutional law requiring a reassessment of this Court’s ex post facto and double jeopardy precedent? Does requiring a defendant with a non-comparable out-of-state conviction violate equal protection?  COA opinion reported at 9 Wn. App. 2d 546 (2019). Petition for review pleadings available here.
 
Tort-Liability and Execution of Search Warrants.  Mancini v. City of Tacoma, No. 97583-3.  Issues: When might a police officer be liable under a tort-law duty of reasonable care when a lawfully issued search warrant mistakenly identified the plaintiff’s home as the site of the criminal activity? Do law-enforcement officers in Washington owe a tort-law duty to the individual resident of a private home, when executing a search warrant, to release that resident from handcuffs when the officers know or, in the exercise of reasonable care, should know that the warrant mistakenly identified the home as the site of criminal activity?  COA opinion is unpublished. Petition for review pleadings available here.
 
Sewer Districts.  Ronald Wastewater Dist. v. Olympic View Water & Sewer Dist., No. 97599-0.   King County Petition for Review/Snohomish County a Respondent.  Whether the superior court lacked subject matter jurisdiction to approve Ronald’s 1986 annexation of the Point Wells Service Area?  Whether the “absurd results” cannon of statutory construction was improperly applied in this case?  COA opinion unpublished.  Petition for review pleadings available here.
 
Attorney Disqualification.  Plein v. USAA Cas. Ins. Co., No. 97563-9. Issues: “1. Does Washington law disfavor tactical motions to disqualify opposing counsel and, accordingly, should the affirmative burden of proving the basis for disqualification be placed on the party seeking such disqualification? 2. Do this Court’s 2006 Comments to RPC 1.9 govern the interpretation of whether attorneys’ former representation is “substantially related” to the present representation under the rule, and is the determination of “substantially related” a factual analysis? 3. Where attorneys’ former representation of an insurer was not the same matter as the present representation, the former representation was factually unconnected to the present representation, and the former representation merely involved matters of a similar type to the present representation that only gave the attorney general knowledge of the insurer’s practices and procedures that would have been revealed in discovery, did the trial court correctly conclude on substantial evidence that the representation was not “substantially related” and the attorneys’ disqualification was not merited under RPC 1.9, as interpreted by this Court in Comments 2 and 3?”  COA opinion reported at 9 Wn. App. 2d 407 (2019). Petition for review pleadings available here.
 

Division One

Self-Defense.  New trial required because judge-altered WPIC 16.03, which replaced “felony” with “violent felony,” coupled with an additional instruction which stated that “Robbery is a felony,” suggested that a robbery may not satisfy the requirements of a justifiable homicide defense because it does not qualify as a violent felony.  Because the modified instruction  instructions diluted the State’s burden of proving the absence of self-defense beyond a reasonable doubt, the defendant could assert the error for the first time on appeal.  An additional modification to WPIC 16.03, which added a requirement to the pattern instruction that the “slayer reasonably believed that the violent felony threatens imminent danger of death or great personal injury,” is improper when he claim of self defense rests solely upon actual resistance to a felony, RCW 9A.16.050(2).  The addition failed to make the applicable legal standards apparent to the average juror.   State v. Ackerman, COA No. 77807-2-I (Dec. 2, 2019).
 

Ninth Circuit

State-Created Danger Doctrine and Domestic Violence Victims. The state-created danger doctrine under the Due Process Clause applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, the state-created danger doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. Going forward, the panel held that the law in this circuit will be clearly established that such conduct is unconstitutional.  Martinez v. City of Clovis, No. 17-17492 (9th Cir. Dec. 4, 2019).
 
WEEKLY ROUNDUP FOR NOVEMBER 29, 2019

Division One

Public Records Act.  The private nonprofit organization Child Advocacy Center of Snohomish County at Dawson Place is not the functional equivalent of a government agency.  It is, therefore, not subject to the Public Records Act.  Shavlik v. Dawson Place, COA No. 79656-9-I (Nov. 25, 2019).
 
Growth Management Act.  The City of Sammamish’s housing element satisfied the Growth Management Act.  Sammamish properly relied upon reasonable assumptions derived from the United States Census, Washington Office of Financial Management, the Comprehensive Housing Affordability Strategy, King County, the United States Department of Housing and Urban Development, A Regional Coalition for Housing and Puget Sound Regional Counsel.   Sammamish was not required to create distinct categories for high income units.  Stickney v. Central Puget Sound Growth Management Hearings Board, COA No. 78518-4-I (Nov. 25, 2019).
 

Division Two

Legal Financial Obligations.  An appeal from an order revoking a DOSA sentence does not  allow a defendant to appeal legal financial obligations that were included in the judgment and sentence in which the DOSA was imposed.  State v. Vandervort, COA No. 51973-9-II (Nov. 26, 2019). 
 
WEEKLY ROUNDUP FOR NOVEMBER 22, 2019

Washington Supreme Court

Rendering Criminal Assistance.  An information charging the offense of rendering criminal assistance must include one or more of the six specified actions listed in RCW 9A.76.050.  State v. Pry, No. 96599-4 (Nov. 21, 2019).  Dissenters were Justices Yu, Owens, and González.  State was represented by Kitsap County DPA Randall Sutton.
 
Adequacy of Charging Documents.  An inadequacy of an information cannot be cured by referring to an attached certificate of probable cause.  State v. Pry, No. 96599-4 (Nov. 21, 2019).  Dissenters were Justices Yu, Owens, and González.  State was represented by Kitsap County DPA Randall Sutton.
 
 

Division One

Search Warrants.  Police officers did not exceed the scope of a search warrant by digging into the ground on real property to exhume a body from a location where detectives found what they believed might be skin and dark hair. The search warrant for the .083-acre property extended to the fire pit located on the property; the fire pit did not need to be separately designated. The warrant, which authorized the seizure of trace evidence of the crimes of first degree and/or second degree murder was not overbroad.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Aggressor Instruction.  Although the court was under no obligation to give a first aggressor jury instruction, it was not error to give the instruction when there was conflicting evidence about whether the defendant initiated the altercation with the victim.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Same Criminal Conduct.  Unlawful possession of a firearm and possession of an unlawful firearm are the same criminal conduct as the victim of both crimes is the general public and his objective criminal intent in committing the two crimes was the same: to possess the firearm.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Preservation of Evidence.  The defendant did not establish a violation of his due process rights where he failed to prove that video evidence of the shooting existed.  Two witnesses testified that they believed the camera was not recording at the time of the shooting, and if a recording had been made, it would have been automatically overwritten.   State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Speedy Trial.  The defendant’s constitutional right to a speedy trial was not violated by 18-month delay between charges being filed and the beginning of trial, where defense counsel requested numerous continuances in order to adequately prepare for trial and the defendant did not establish any prejudice to his defense from the delay.   State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 


Division Three

Police Body Cameras.  Body camera evidence does not violate the Privacy Act, chapter 9.73 RCW, as police interaction with a suspect and witnesses or victims of the crime are not private conversations.   The requirements of RCW 9.73.090(1)(b) do not apply until the suspect is arrested.   State v. Clayton, COA No. 35884-4-III (Nov. 19, 2019).

 

Ninth Circuit

U-Visas.  Splitting from the other circuits that have considered the question, the Ninth Circuit holds that a U-Visa applicant has a right to judicial review of a United States Citizenship and Immigration Service’s denial of the requested visa.  Perez Perez v. Wolf, No. 18-35123 (9th Cir. Nov. 22, 2019).
WEEKLY ROUNDUP FOR NOVEMBER 15, 2019

Washington Supreme Court

Land Use Regulations and Substantive Due Process.  Unless and until the Washington Supreme Court adopts a heightened standard as a matter of independent state law, article I, section 3 substantive due process claims are subject to the same standards as federal substantive due process claims.  The standard applicable to a plaintiff’s state substantive due process challenge to land use regulations and other laws regulating the use of property is rational basis review.  A law that regulates the use of property violates substantive due process only if it “fails to serve any legitimate governmental objective,” making it “arbitrary or irrational.” Chevron U.S.A., 544 U.S. at 542.
 
The “unduly oppressive” test recited in many Washington Supreme Court cases can no longer be interpreted as requiring heightened scrutiny in substantive due process challenges to laws regulating the use of property.  An appendix to the opinion contains a nonexclusive list of 62 cases that may no longer be interpreted as requiring heightened scrutiny in article I, section 3 substantive due process challenges to laws regulating the use of property.   Yim v. City of Seattle, No. 96817-9 (Nov. 14, 2019).
 
Regulatory Takings. The definition of regulatory takings set forth by the United States Supreme Court in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), applies to all taking claims under Wash. Const. art. I, § 16. Pursuant to Chevron U.S.A., there are only two categories of per se regulatory takings: (1) “where government requires an owner to suffer a permanent physical invasion of her property” and (2) “regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” 544 U.S. at 538 (alteration in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992). If an alleged regulatory taking does not fit into either category, it must be considered on a case-by-case basis in accordance with the Penn Central factors. Id. at 538-39.  Seattle’s First in Time rule does not fit into either of the per se categories set forth in Chevron U.S.A.
 
The following precedent is disavowed to the extent that it defines regulatory takings in a manner that is inconsistent with Chevron U.S.A.: Orion Corp. v. State, 109 Wn.2d 621 (1987); Presbytery of Seattle v. King County, 114 Wn.2d 320 (1990); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1 (1992); Robinson v. City of Seattle, 119 Wn.2d 34 (a992); Guimont v. Clarke, 121 Wn.2d 586 (1993); Margola Associates v. City of Seattle, 121 Wn.2d 625; and Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347 (2000) (plurality opinion).  Yim v. City of Seattle, No. 95813-1 (Nov. 14, 2019).
 

Division One

Identification of Defendant.  Detective’s testimony that he looked up the defendant’s Facebook page after another officer obtained the defendant’s name from him and that the person on the Facebook page was the person who sold drugs to the detective was proper law opinion testimony under ER 701. State v. Henson, COA No. 78361-1-I (Nov. 12, 2019).


Washington State Institute for Public Policy

“Dually Involved” Youth. Report to the State legislature regarding “dually involved” youth– those with a history of involvement in both the juvenile justice and child welfare systems.  WSIPP, Dually Involved Females in Washington State: Outcomes, Needs, and Survey of Approaches to Serve This Population (November 2019).
 
WEEKLY ROUNDUP FOR NOVEMBER 8, 2019

Washington Supreme Court

Unlawful Possession of a Firearm. Second degree unlawful possession of a firearm statute, RCW 9.41.040(2)(a), is not an alternative means statute.  Ownership, possession, and control all describe ways of accessing guns.  A jury need not be unanimous as to whether the defendant owned, possessed, or controlled the firearm.  State v. Barboza-Cortes, No. 96397-5 (Nov. 7, 2019).   Justices González and Owens concurred in the result, urging the Court to adopt the federal approach from Griffin v. United States, 502 U.S. 46, 56 (1991).  Under Griffin, on appellate review, a general jury verdict on an alternative means crime will not be vacated so long as sufficient evidence supports at least one of the means. [Editor’s Note: The rule announced in Griffin is consistent with Washington territorial case law.  See Leschi v. Wash. Terr., 1 Wash. Terr. 13, 26-27 (1857).] The State was represented by Chelan County DPAs Connor Johnson and Ryan Valaas.
 
Identity Theft.  Second degree identity theft statute, RCW 9.35.020(1), is not an alternative means statute.  Punishment for using a person’s personal information does not depend on whether the crime committed is a financial or other crime.  A jury need not be unanimous as to whether the defendant used a “means of identification” or “financial information.” State v. Barboza-Cortes, No. 96397-5 (Nov. 7, 2019).   Justices González and Owens concurred in the result, urging the Court to adopt the federal approach from Griffin v. United States, 502 U.S. 46, 56 (1991).  Under Griffin, on appellate review, a general jury verdict on an alternative means crime will not be vacated so long as sufficient evidence supports at least one of the means. [Editor’s Note: The rule announced in Griffin is consistent with Washington territorial case law.  See Leschi v. Wash. Terr., 1 Wash. Terr. 13, 26-27 (1857).] The State was represented by Chelan County DPAs Connor Johnson and Ryan Valaas.
 
Cellphone Data. A “ping” is a search under article I, § 7 and the Fourth Amendment.  A warrantless ping search is permissible when exigent circumstances exist.  In the instant case, officers used a ping to locate the defendant’s vehicle in order to execute a search warrant.  Since the defendant was aware of police interest in his car prior to obtaining the search warrant there was a valid concern that the defendant might destroy any evidence contained in the sedan. The facts also gave rise to a reasonable conclusion that the defendant had fled the area.  State v. Muhammad, No. 96090-9 (Nov. 7, 2019).  Lead opinion on these points authored by Justice Wiggins.  The State was represented by Asotin County Special DPA and WAPA Appellate Resource Attorney Jennifer Joseph.  Jennifer is a King County DPA.
 
Felony Murder and Double Jeopardy.  Imposing convictions for both felony murder predicated on rape and first degree rape violates double jeopardy.  State v. Muhammad, No. 96090-9 (Nov. 7, 2019). Opinions that state this rule are those authored by Justices Madsen and Gordon McCloud.  The State was represented by Asotin County Special DPA and WAPA Appellate Resource Attorney Jennifer Joseph.  Jennifer is a King County DPA.
 
The Washington Supreme Court agreed to hear the following cases on the merits this week:
 
 Drug Sentencing.  State v. Cyr, No. 97323-7.  Lewis County. Issue: “Did the Court of Appeals incorrectly hold that because Cyr had a previous conviction under RCW 69.50, the trial court erred when it exercised its discretion to sentence Cyr to five years for his current convictions under RCW 69.50.410 rather than applying the doubling provision in RCW 69.50.408(1)?”  COA opinion is reported at 8 Wn. App. 2d 834 (2019). The petition for review is available here.
 
Juveniles Sentenced as Adults and Felony Firearm Offender Registry.  State v. Gregg, No. 97517-5.  King County.  Questions presented: (1) Does it violate the federal or state constitutions to place the burden on a defendant who committed his or her crime prior to his or her 18th birthday to prove that his status as a child made him less culpable?  (2) Is the defendant entitled to withdraw his guilty plea when the prosecutor told him in the plea agreement and the plea hearing that the sentencing court would not be required to make the defendant register as a felony firearm offender upon release, when the court imposed a registration requirement.  COA opinion reported at  9 Wn. App. 2d 569 (2019).  Petition for review pleadings  available here.
 
Retroactivity of “Juvenile” Sentencing Cases.  In re Personal Restraint of Ali, No. 95578-6.  King County.  Whether the petitioner’s sentences, which were imposed in 2009, for crimes committed prior to his eighteenth birthday are unlawful because the sentencing court failed to consider imposition of a downward exceptional sentence based upon his youth and the trial court did not consider running firearm enhancements concurrently.  Whether the petition is not time barred because of changes in the law.
 
Retroactivity of Houston Sconiers.  In re Personal Restraint of Domingo-Cornelio, No. 97205-2.  Pierce County.  Did State v. Houston-Sconiers, 188 Wn.2d 1 (2017), announce a new rule that is applicable to cases that were final before Houston-Sconiers was issued?
 
Gift of Public FundsPeterson v. Port of Benton, No. 97410-1. Questions presented: “Where the Port of Benton (“Port”) allowed railroads to use its railroad track rent free and without paying for the impact to the track from the wear and tear occasioned by their trains’ track usage, was there at least a fact question as to whether the Port had the requisite donative intent or the consideration it derived from the railroads for their usage of its track was so grossly inadequate as to be tantamount to a gift so that the Port made an unconstitutional gift of public funds to the railroads under article VIII, § 7 of the Washington Constitution?”  COA opinion reported at 9 Wn. App. 2d 220 (2019).  Petition for review pleadings  available here.
 
Employment Law.  Burnett v. Pagliacci Pizza, Inc., No. 97429-2.  Questions presented: “1. Does providing an at-will employee with an employee handbook, and requiring him to read it at home and to comply with its terms, deny the employee a meaningful choice and thereby render a mandatory arbitration policy contained in the handbook procedurally unconscionable? 2. Does requiring an employee to engage in a non-binding dispute resolution process before commencing arbitration so shock the conscience as to render a mandatory arbitration policy substantively unconscionable? 3. Can an entire agreement be struck down as substantively unconscionable based upon a clause that could hypothetically lead to unfair outcome which did not occur? 4. If it is substantively unconscionable to require an employee to engage in a non-binding dispute resolution process before commencing an arbitration, should the strong public policy encouraging arbitration require severance of that provision from an arbitration agreement?”  COA opinion reported at 9 Wn. App. 2d 192 (2019). Petition for review pleadings  available here.
 
Intestate Succession.  In re Estate of Petelle, No. 97463-2.  Questions presented: “Whether a separation contract that converted the marital estate to separate property and was a ‘final settlement of all their marital and property rights and obligations’ but was neither a contract to legally separate or dissolve the marriage nor purported to expressly disclaim the statutory right to inherit if the other spouse died intestate nevertheless ‘impliedly waived’ the parties’ statutory right to intestate succession as a surviving spouse?”  COA opinion reported at 8 Wn. App. 2d 714 (2019).   Petition for review pleadings  available here.
 
Res Ipsa Loquitur.  Brugh v. Fun-Tastic Rides Co., No. 97503-5.  “Granted only as to the issue of the res ipsa loquitur analysis of ‘result.’”  Questions presented: “The first element of res ipsa loquitur requires that the accident or occurrence causing injury would not ordinarily happen in the absence of negligence. One condition for meeting this element is that the ‘general experience and observation of mankind teaches that the result would not be expected without negligence.’ Does ‘result’ mean the injury-causing event or the alleged injury?” COA opinion reported at 8 Wn. App. 2d 176 (2019).   Petition for review pleadings  available here.
 

Legal Update for Washington State Law Enforcement

 The October 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

 

WEEKLY ROUNDUP FOR NOVEMBER 1, 2019

Washington Supreme Court

Public Records Act.  A voter adopted initiative exempting names and addresses of individuals who provide subsidized childcare under Washington’s Working Connections Child Care program from Public Records Act (“PRA”) coverage and prohibiting agencies from releasing this information bars release of information pursuant to a pre-initiative PRA request.  Service Employees International Union Local 925 v. Department of Early Learning, No. 96578-1 (Oct. 31, 2019).
 

Division One

Involuntary Commitments.  The court’s failure to comply with its obligations under RCW 71.05.240 regarding notice to a detainee as to the loss of his constitutionally protected firearm rights requires  restoration of the detainee’s right to possess a firearm as if te commitment order never occurred.  In re Detention of T.C., COA No. 78222-3-I (Oct. 28, 2019).
 
Involuntary Commitments.  Supplemental findings of fact in support of a trial court’s 14-day involuntary commitment order will be struck when counsel for the State did not give notice to appellate counsel in addition to trial counsel and where the State failed to comply with RAP 7.2.  When general “boilerplate” findings in support of commitment are insufficient to permit meaningful review, the involuntary commitment order will be reversed.   In re Detention of G.D., COA No. 78585-1-I (Oct. 28, 2019).
 

Restoration of Firearm Rights.  The firearms statute, RCW 9.41.040, prohibits those with dismissed juvenile deferred dispositions from owning a firearm.  Such a juvenile’s firearm rights are not “automatically” restored  when his underlying conviction  is vacated.  State v. S.G., COA No. 78614-8-I (Oct. 28, 2019).

 

Division Two

Search Incident to Arrest.  A search of an arrestee’s person or articles in his or her possession extends to closed, but not locked containers found on their person and/or in articles (i.e. purses) in his or her custody at the time of arrest.   State v. Richards, COA No. 51700-1-II (Oct. 29, 2019).
 
WEEKLY ROUNDUP FOR OCTOBER 25, 2019

Washington Supreme Court

Public Records Act.  The Public Records Act (PRA), chapter 42.56 RCW, does not exempt these records from disclosure  public records containing state employees birth dates associated with their names.  Nor does Washington Constitution article I, section 7 preclude disclosure, given that names and birth dates are widely available in the public domain and that their disclosure here does not violate privacy rights.  Washington Public Employees Ass’n UFCW Local 365 v. Evergreen Freedom Foundation, No. 95262-1. Justices Wiggins, Owens, Gordon McCloud and González dissented.

 

Division One

Stalking and No Contact Orders.  The stalking statute, RCW 9A.46.110, is not constitutionally overbroad.  Stalking through harassment is not based on the content of pure speech.  The statute prohibits conduct, with speech incidently regulated.  The trial court did not abuse its discretion when it denied the defendant’s motion for separate trials on the no-contact order and stalking offenses.  The trial court properly admitted four prior convictions with associated guilty pleas to demonstrate the defendant’s knowledge that his current conduct was unlawful and to prove the victim’s reasonable fear. The trial court did not abuse its discretion by failing to redact the “warning” provisions of the court order which that that it is the defendant’s “sole responsibility” to abide by the terms of the no-contact orders.  State v. Nguyen, COA No. 77604-5-I (Oct. 21, 2019).

 

District of Columbia Bar Legal Ethics Committee

Impaired Lawyers.  The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.  The comprehensive opinion addresses the applicable ethics rules and also discusses the need to encourage individuals who are suffering from a mental impairment to seek and obtain assistance and treatment.  Ethics Opinion 377: Duties When a Lawyer is Impaired (Oct. 2019).
WEEKLY ROUNDUP FOR OCTOBER 7 TO 18, 2019

Washington Supreme Court

DUIs and Vehicle Impounds.  Hailey’s Law, RCW 46.55.360, which requires officers to impound a vehicle any time they arrest its driver for driving under the influence violates Const. art. I, § 7.  A vehicle may only be impounded on probable cause that it contains evidence of a crime or when there is reasonable justification for the impoundment.  Reasonable justification must be based upon the facts and circumstances in a particular case and requires an officer to consider reasonable alternatives to impound.  State v. Villela, No. 96183-2 (Oct. 17, 2019).  State represented by Grant County Deputy Prosecuting Attorneys Kevin McCrae and Katherine Mathews.
 
Vehicular Homicide and Assault.  When the jury is instructed on a defense that necessarily negates an element listed in the to-convict instruction, a definitional instruction adequately informs the jury of the State’s burden of proof. A trial court does not need to explicitly instruct the jury that the State has the burden to prove absence of superseding intervening cause because, proximate cause and presence of a superseding intervening cause are mutually exclusive. This means proof of proximate cause beyond a reasonable doubt necessarily proves absence of a superseding intervening cause.  State v. Imokawa, No. 96217-1 (Oct. 10, 2019).  Justices Madsen and Gordon McCloud dissented.  State represented by Clark County Deputy Prosecuting Attorneys Rachael Rogers and Lauren Boyd.
 
Offender Scores.  Time spent in jail as a sanction for failing to pay legal financial obligations ordered on a felony conviction does not reset the five-year washout period under RCW 9.94A.525(2)(c).  State v. Schwartz, No. 96643-5 (Oct. 10, 2019).  State represented by Klickitat County Prosecuting Attorney David Quesnel.
 
Public Records Act. Whether the “active and ongoing” employment investigations for “unfair practice .. or of a possible violation of other federal, state, or local laws, prohibiting discrimination” exemption, former RCW 42.56.250(5) (2014), applies to a Public Records Act (“PRA”) request is determined by the status of the investigation on the date the PRA request is received.  Installments produced after the exemption expire are still subject to the exemption.  “Should the exemption expire and the record come into ‘existence’ after the initial request and determination, the onus is on the requestor to make a ‘refresher request.’”  Gipson v. Snohomish County, No. 96164-6 (Oct. 10, 2019).  Justice Stephens dissented. Snohomish County represented by Deputy Prosecuting Attorney Alex Witenberg and former DPA Sara Di Vittorio.
 

Division One

Search Incident to Arrest.  Officers may not conduct a warrantless search of an arrestee’s backpack which is sitting behind her at the time of arrest under the search incident to arrest of an arrestee’s person doctrine.  Search incident to arrest of the backpack under the arrestee person’s doctrine is only proper when the arrestee is holding, wearing, or carrying the backpack at the time of her arrest or immediately preceding the time of arrest.  A search of a backpack that is not in the arrestee’s sole and exclusive possession at the time of arrest or immediately preceding the time of arrest may be searched under the arrestee’s immediate control or “grab area” search incident to arrest doctrine if there is some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence.  State v. Alexander, COA No. 77513-8-I (Oct. 7, 2019).
 

Division Two

Animal Cruelty.  RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls, does not require that the shooting of the animal be “reasonably necessary” to protect the shooter’s domestic animal.  A pet dog is a “domestic animal” for purposes of RCW 16.08.020.   A defendant who claims the protection of RCW 16.08.020 is entitled to a jury instruction that sets forth the three elements of the defense and that places the burden of disproving the defense beyond a reasonable doubt upon the State.  State v. Wilson, COA No. 50800-1-II (Oct. 8, 2019).
 
Portable Breath Tests. Where a custodial arrest is based on an offense unrelated to DUI or some other driving offense in which alcohol consumption is not an element, a search of an arrestee’s breath for alcohol concentration does not fall within the search incident to arrest rule.  When a PBT does not fall under the search incident to arrest exception the arrestee has a constitutional right to refuse the PBT and evidence of her exercise of her constitutional right to refuse the test is inadmissible at trial. It is improper for a police officer to opine that a person’s refusal to submit to field sobriety tests and/or to a breath test is evidence that the person is under the influence.  City of Vancouver v. Kaufman, COA No. 51202-5-II (Oct. 15, 2019).
 
Firearms. Expressly rejecting Division II’s prior decision in State v. Pierce,155 Wn. App. 701, 230 P.3d 237 (2010), the Court now holds that a  jury is not required to find that the gun the defendant possessed was operable for it to be considered a “firearm” under former RCW 9.41.010(9) (2015).   State v. Olsen, COA No. 51531-8-II (Oct. 8, 2019).
 

First Circuit

Authentication of Photographs from Facebook Pages.  When the question is the authenticity of photographs found on a social media page, rather than the authenticity of the Facebook page, the ordinary rules of authentication apply.  As noted by the Sixth Circuit, “it is not at all clear . . . why our rules of evidence would treat electronic photos that police stumble across on Facebook one way and physical photos that police stumble across lying on a sidewalk a different way.” United States v. Farrad, 895 F.3d 859, 879-80 (6th Cir. 2018).  State v. Vázquez-Soto, No. 17-1879 (1st Cir. Oct. 1, 2019).
 

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests.  The online training sessions are of high quality and are applicable to prosecuting attorneys.  The April 2019, May 2019, and June 2019 trainings are now posted.
 

Legal Update for Washington State Law Enforcement

The September 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 
WEEKLY ROUNDUP FOR OCTOBER 4, 2019

Washington Supreme Court

Juvenile Manifest Injustice Sentences.  A juvenile offender’s need for treatment is not an appropriate basis for imposing a manifest injustice disposition above the standard range. A juvenile’s need for services typically does not impose a serious, and clear danger to society.  State v. B.O.J., No. 95542-5 (Oct. 3, 2019).  Dissenters were Justices Madsen and Stephens.  Justice González wrote a concurring opinion that takes issue with language used in the juvenile probation counselor’s report.  State was represented by former King County DPA Samuel Dinning.
 
 The Supreme Court granted review of the following cases on October 2, 2019:
 

Offender Score.  State v. Haggard, No. 97375-0.  King County.  Issue: “In 2010, a court of limited jurisdiction entered judgment against petitioner for the misdemeanor crime of disorderly conduct. Pursuant to statute, said court deferred its sentence and subsequently allowed petitioner to withdraw his guilty plea before dismissing the charge later that year. At sentencing in the instant matter, the trial court included the dismissed charge in petitioner’s criminal history — thereby precluding the washout of three felonies — because he had not also moved to withdraw his misdemeanor plea and dismiss the charge pursuant to a separate statute. Did the Court of Appeals err in its construction of the Sentencing Reform Act’s “washout” statute thereby contravening this Court’s analysis of the identical issue as it pertained to an analogous felony deferred sentence statute in In re Carrier, 173 Wn.2d 791, 806-07, 272 P.3d 209 (2012)?”   COA opinion reported at 9 Wn. App. 2d 98 (2019).  Petition for review available here.

Contempt. Gronquist v. King Co. Pros. Daniel Satterburg, No. 97277-0.  King County– Prosecutor Satterberg’s petition for review.  May a court order a party to pay “for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney’s fees,” when no remedial sanctions were ever available to the moving party under RCW 7.21.030(2) and criminal/punitive sanctions cannot be obtained by a private party?  COA opinion is unpublished.  Petition for review documents available here.

 
Intoxication Defense and Tort Cases.  Gerlach v. The Cove Apts., No. 97325-3. Issues: “In a civil case in which the defendant invokes RCW 5.40.060’s intoxication defense and the plaintiff admits she was intoxicated when she was injured, does a trial court have the discretion to exclude the result of a hospital blood draw that did not comply with the State toxicologist’s standards for a blood alcohol concentration test (“BAC”) under RCW 46.61.506, as well as expert testimony based on that unverified result? The defendant was able to and did argue that the plaintiffs admitted intoxication caused her injury when she fell over the rotten second-story balcony railing of defendant’s apartment complex. The jury, which was instructed to consider plaintiffs voluntary intoxication, necessarily did so in allocating fault to the plaintiff. Was the trial court’s exclusion of the unverified results of a hospital blood draw so prejudicial that defendant is entitled to a new trial based on this claimed evidentiary error?”  COA opinion is reported at 8 Wn. App. 2d 813 (2019).
 

Washington State Attorney General’s Office

Outside Counsel. The consent of the county prosecuting attorney is required for the appointment of outside counsel to represent the county under a joint self-insurance program. AGO 2019 No. 4 (Sep. 30, 2019).
 

National District Attorneys Association

The Role of the Prosecutor.  New video explains the role of a prosecutor and their work within the community.
WEEKLY ROUNDUP FOR SEPTEMBER 27, 2019

Washington Supreme Court

Public Records Act.  A trial court’s determination regarding agency bad faith in determining what penalty should be awarded in a Public Records Act case is reviewed for abuse of discretion.  The overall penalty assessment is also reviewed for abuse of discretion.  The low penalty imposed in the instant case “was commensurate with the County’s PRA violation and sufficient to deter future violations.”  Hoffman v. Kittitas County, No. 96286-3 (Sep. 26, 2019).  Kittitas County was represented by Kittitas County Prosecuting Attorney Greg Zempel.
 
Inventory Searches, Automatic Standing, and Stolen Vehicles.  Persons found in possession of a stolen vehicle  have automatic standing under article I, section 7 to challenge the search of that vehicle.  Closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle .  The search, of course, must not be used as a pretext for an investigatory search.   State v. Peck, No. 96069-1 (Sep. 26, 2019). Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.  The State was represented by Kittitas County DPA Carole Highland. 
 
Conditions of Community Custody.  A community custody condition which stated that “The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is not unconstitionally vague. The condition need not be accompanied by an exclusive list of specific prohibited places.  State v Wallmuller, No. 96313-4 (Sep. 26, 2019).  Justices Wiggins, Johnson, Gordon McCloud and Yu dissented. The State was represented by Mason County DPA Tim Higgs.


Division Two

Retroactivity of Houston-Sconiers. A collateral attack seeking resentencing on the grounds that the sentencing court failed to consider the mitigating qualities of youth as required by State v. Houston-Sconiers, 188 Wn.2d 1 (2017), is subject to the one-year time limit imposed by RCW 10.73.090.  Such a claim does not fall within RCW 10.73.100(6)’s significant change in the law that should be applied retroactively.   Personal Restraint of Marshall, COA No. 49302-1-II (Sep. 24, 2019).
WEEKLY ROUNDUP FOR SEPTEMBER 20, 2019

Washington Supreme Court

Development Permits and Damages.  A claim for damages under RCW 64.40.020 for an attempted exaction of land through an unlawful permit condition may be obtained when the municipality should reasonably have known the final decision imposing the unlawful condition was unlawful or in excess of lawful authority.  Only evidence or justifications that were tendered to the final decision maker may be considered when determining whether the municipality knew or should reasonably have known that the hearing examiner’s decision did not satisfy a Nollan and Dolan analysis.  Church of the Divine Earth v. City of Tacoma, No. 96613-3 (Sep. 19, 2019). Justice Yu and Chief Justice Fairhurst dissented.

Division Two

Public Records Act.  Former RCW 42.56.520(3) required an agency to provide an estimate of when it would provide the first installment of records, not when it would fully respond to the request.  An agency must also provide a time estimate for each subsequent installment. An agency’s response that states only a date by which the agency will give an estimate for when the first installment of records will be produced does not comply with former RCW 42.56.520(3).  Health Pros Northwest, Inc. v. State, COA No. 52135-1-II (Sep. 17, 2019). [Editor’s note: Current RCW 42.56.520(1)(c) is essentially the same as former RCW 42.56.520(3).]

Division Three

Conditions of Community Custody. For an objection to a community custody condition to be entitled to review for the first time on appeal, it must (1) be manifest constitutional error or a sentencing condition that is “illegal or erroneous” as a matter of law, and (2) it must be ripe.  Under this test the following claims will not be reviewed for the first time on appeal: (a) lifetime no-contact order; (b) delegation of authority to CCO to approve dating relationship; (c) crime relatedness of a condition; and (d) employer notification requirement.  The following terms and/or conditions are not unconstitutionally vauge: (a) “community protection zone” restriction as both “private school” and “public school” are defined by statute; (b) “minor” as relevant statutes define the term as “any person under eighteen years of age;” and (c) “sexually explicit.”  State v. Peters, COA No. 31755-2-III (Sep. 17, 2019).

 

Ninth Circuit

Cell Phones.  Law enforcement officers may validly seize cell phones found in a wrecked car during an inventory search where the inventory search was not conducted in bad faith or for the sole purpose of investigation.  The contents of such phones, however, may not be accessed without a lawfully issued search warrant.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
 Inventory Searches.  An officer’s failure to complete the inventory form does not invalidate an inventory search.   Administrative errors will only invalidate an inventory searches when there is  something to suggest the police raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
 
Inventory Searches.  An officer’s failure to complete the inventory form does not invalidate an inventory search.   Administrative errors will only invalidate an inventory searches when there is  something to suggest the police raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
WEEKLY ROUNDUP FOR SEPTEMBER 13, 2019

Washington Supreme Court

Self-Incrimination. The State may not admit into evidence a detention center inventory form that the defendant signed after invoking her Miranda rights. Admission of the form was prejudicial manifest constitutional error that could be asserted for the first time on appeal. State v. A.M., No. 96354-1 (May 28, 2019). Justices Gordon McCloud and González concurred in the result but expressed a belief that strict liability for simple drug possession violates due process. The State was represented by Snohomish County DPA J. Scott Halloran.

Community Caretaking. The test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search is multi-part:

      (1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

      (2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

      (2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

The officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 because their emergency aid function search was a pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit. When an officer makes a warrantless entry with suspicions that a crime has been committed, the entry must be tested under the “exigent circumstances exception to the warrant requirement.”

The Washington Supreme Court declined to adopt a new rule permitting law enforcement officers to make warrantless searches of homes under the community caretaking exception in order to recover decomposing bodies. [Editor’s note: If police have probable cause to believe a decomposing body or corpse is in a home the search warrant application may allege a violation of RCW 68.50.020 (failure to notify coroner of the existence and location of human remains). The warrant application will need to include a statement about contacting coroner or medical examiner’s office and that they had no record of a death reported at the address to be searched.].

State v. Boisselle, No. 95858-1 (Sep. 12, 2019). Justices Stephens, González, Johnson and Wiggins dissented. State represented by Pierce County DPA Mark Von Wahlde.

Gifts of Public Funds. Municipal officers did not violate the Washington State Constitution’s prohibition on gifts of public funds by paying well above the assessed value to acquire real property for conversion into a “pocket park.” The mayor’s use of town-owned lots to park his vehicles was insubstantial and thus legally insufficient to support a recall election where there was no evidence that the mayor sought to exclude others from using the town-owned lots and the lost was also avaialbe for use by local residents and visitors. Recall of Burnham, No. 96839-0 (Sep. 12, 2019). Justices González, Gorden McCloud, and Wiggins all dissented on the grounds that paying an inflated purchase price for real property out of a desire to give a gift of part of the sale price is a recallable allegation.

Division Three

Plea Agreements and Guilty Pleas. Under current statute and rules, a court must afford a defendant the opportunity to enter a guilty plea to an original charge regardless of the merits of the defendant’s plea agreement. A defendant, however, may not plead guilty post-arraignment in order to fend off an enhanced charge. Respect for constitutional separation of powers requires the trial court to defer to the State’s tenable position that its plea agreement was consistent with prosecutorial standards. State v. Westwood, COA No. 35792-9-III (Sep. 12, 2019). Judge Korsmo dissented.

American Bar Association

Judicial Relationships and Recusal. “Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned—including cases implicating some familial and personal relationships—but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.” ABA Formal Opinion 488 (Sep. 5, 2019).

WEEKLY ROUNDUP FOR SEPTEMBER 6, 2019

Washington Supreme Court

Public Records Act. The “scope of employment” test from Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015), applies only to records created or stored on an employee’s personal device and does not extend to records on public agencies’ e-mail servers. But, an email is not a public record solely because it was sent through an agency account. Only e-mails that contain information relating to the conduct of government or the performance of any governmental or propriety function, even if not sent or received within the scope of employment, are subject to disclosure. Service Employees International Union Local 925 v. University of Washington, No. 96262-6 (Sep. 5, 2019).

This week the Court agreed to hear the following cases:

Self-Defense. State v. Grott, No. 97183-8. Pierce County – State’s Petition. “Petition for review granted; review of issue raised in answer also granted” Issues: May a defendant’s charged conduct be considered in assessing whether to give a first aggressor instruction? Is a trial court’s decision to give a first aggressor instruction a manifest error of constitutional magnitude that may be raised for the first time on appeal? Did the defendant’s trial counsel provide ineffective assistance of counsel by not objecting to the first aggressor instruction in the trial court? COA opinion is unpublished. Petition for review pleadings available here. (State represented by Kristie Barham).

County Clerks and Local Court Rules. The Judges of the Benton and Franklin Counties Superior Court v. Killian, No. 96821-7 Franklin County–Clerk’s Appeal. Issues: Do superior court judges exceed their authority by enacting a local rule that conflicts with both statutes and the rules of this Court? Do superior court judges unconstitutionally diminish the office of county clerk through the adoption of a local rule that strips the clerk of his authority to replace paper records with electronic reproductions? Must judges establish through clear, cogent, and convincing evidence that the superior court cannot fulfill its duties without duplicate paper files before compelling the county clerk to comply with a local rule for which no appropriation has been made? Must the writ of mandamus, which strips the county clerk of discretion and compels him to maintain paper records despite the absence of an appropriation to do so, be vacated?

Arbitration. Jeoung Lee v. Evergreen Hosp. Med. Ctr., No. 97201-0. “Petition for review granted; motion to withdraw denied without prejudice to renew in trial court.” Issue: Whether the hospital’s motion to compel arbitration in a putative class action suit was properly denied because, on its face, the collective bargaining agreement between the nurses’ union and the hospital did not waive union members’ abilities to enforce their statutory rights in a judicial forum. COA opinion reported at 7 Wn. App. 2d 566 (2019). Petition for review pleadings available here.

Legal Update for Washington State Law Enforcement

The August 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR AUGUST 30, 2019

Division One

CrR 8.3(b) Motions. The denial of a post-judgment CrR8.3(b) motion, moreover, is not appealable as a matter of right. CrR 8.3(b) does not authorize post-judgment motions to dismiss. A post-judgment motion filed under CrR 8.3(b) should be treated as a collateral attack pursuant to CrR 7.8. Such a challenge is subject to the time limit set forth in RCW 10.73.090. State v. Basra, COA No. 78282-7-I (Aug. 26, 2019).

Community Custody Violations. A defendant who is charged with a violation of community custody conditions for a crime committed prior to July 1, 2000, is not denied equal protection because he does not receive the same procedural benefits as offenders who committed their underlying crime after July 1, 2000. State v. McClinton, COA No. 78076-0-I (Aug. 26, 2019).

Workplace Injuries. The Industrial Insurance Act does not divest the superior court of subject matter jurisdiction over a worker’s tort claim against his or her employer. The question of employer immunity from actions for workplace injuries, therefore, may not be the basis for a CR 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Instead, the employer immunity claim must be brought pursuant to a CR 12(b)(6) motion for failure to state a claim upon which relief can be granted or via a motion for summary judgment. Boudreaux v. Weyerhaeuser Co., COA No. 78284-3-I (Aug. 26, 2019).

Division Two

Exceptional Sentences. The trial judge was precluded from imposing an exceptional sentence for on-going pattern of sexual abuse of a victim, RCW 9.94A.535(3)(g), where the charging document and jury instructions alleged the aggravator found at RCW 9.94A.535(3)(h)(i) and both omitted the statutory element that the offense(s) involved “domestic violence” as defined in RCW 10.99.020 or “stalking” as defined in RCW 9A.46.110. State v. Butterfield, COA No. 51519-9-II (Aug. 27, 2019).

Division Three

Controlled Substance Violations. The to-convict instruction’s failure to identify the specific controlled substance possessed by the defendant requires remand for imposition of a misdemeanor sentence. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).

Closing Argument. The prosecutor’s unobjected to rebuttal argument, which included a review of the circumstantial evidence that concluded with the phrase “I’m satisfied,” did not constitute reversible error as any resulting prejudice from the brief comment could have been cured by a timely objection. Counsel’s failure to object to the comment, which did not incite the jury’s passion, did not prejudice the defendant to an extent that changed the result of the trial. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).

Sentencing. Trial judge committed reversible error by denying the defendant’s request to continue the sentencing hearing from the day after return of verdict to provide the defendant with sufficient time to prepare her mitigation evidence. Trial judge erred by denying the defendant’s request for preparation of a presentence report, when the defendant was being sentenced in the superior court for an offense committed prior to her 18th birthday. State v. Alltus, COA No. 34677-3-III (Aug. 22, 2019) This partially published opinion replaces the unpublished opinion filed July 3, 2019.

Tennessee Supreme Court

RPC 3.8. Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility is vacated. A prosecutor’s ethical duty under Rule 3.8(d) is coextensive in scope with a prosecutor’s legal obligations under Brady v. Maryland, 373 U.S. 83 (1963). A disclosure of material is “timely” under RPC 3.8(d) if the disclosure is made at a time that is consistent with a prosecutor’s constitutional obligations. In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163 (Aug. 23, 2019). [Editor’s note: This opinion reduces the split regarding the interpretation of RPC 3.8(d). The New York City Bar Ethics Committee issued an opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v. Maryland. Courts or Ethics Committees have also decided the the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana, and Wisconsin. The Washington State Bar Association has not issued an ethics opinion on this topic. The Washington Supreme Court, however, indicated in State v. Davila, 184 Wn.2d 55, 79 n. 9 (2015), that the ethics rule imposes a broader duty upon prosecutors then does the constitution.]

WEEKLY ROUNDUP FOR AUGUST 23, 2019

Division One

Vehicular Assault. Because vehicular assault committed by the alternative means of reckless manner and by the alternative means of disregard for the safety of others are alternative means of committing the same crime, not separate crimes, disregard for the safety of others is not a lesser-included offense of reckless manner. Defendant, who requested that the jury be instructed on the uncharged alternative means of disregard for the safety of others, cannot object that he did not receive notice of the charge. State v. Downey, COA No. 78004-2-I (Aug. 19, 2019).

Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Questions asked of the officer about what he did during the investigation did not violate the confrontation clause, as the officer did not make any reference to what the victim said in response to the questions the officer asked. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the severity of the injury to the victim’s finger supports finding the infliction of substantial harm to the victim, it does not support finding that the defendant “acted recklessly in inflicting those injuries. The information charging the defendant with felony violation of a protection order provided notice to the defendant that he could be convicted of a misdemeanor violation of RCW 26.50.100, as misdemeanor violation of a no-contact order is a lesser included offense of felony violation of a no contact order. See RCW 10.61.006. State v. Melland, COA No. 76617-1-I (Aug. 19, 2019). This opinion replaces the May 6, 2019, opinion.

Involuntary Treatment Act. CR 43’s good cause standard for permitting video testimony of witnesses does not apply to 14-day Involuntary Treatment Act hearings. The ITA statute, RCW 71.05.020(24), only requires a showing of “good cause under compelling circumstances” before a witness is permitted to appear remotely by some means other than video. J.H. v. State, COA No. 78735-7-I (Jul. 15, 2019, publication ordered Aug. 14, 2019).

Code Enforcement. Code enforcement action taken against a property owner who systemically filled in and destroyed regulated wetlands on their property upheld against claims of due process violations, insufficient evidence, and vagueness. Miller v. City of Sammamish, COA No. 78528-1-I (Aug. 19, 2019).

Division Two

Prosecutorial Error. A defendant, who did not object at trial to a prosecutor’s statements in closing argument that alluded to the defendant’s constitutional rights, is only entitled to a new trial upon a showing that (1) no curative instruction would have obviated any prejudicial effect on the jury and (2) the misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict. The defendant waived his claim that the prosecutor impermissibly commented on the defendant’s exercise of the right to testify when the prosecutor argued the defendant testified in order to explain the DNA evidence in the case. While the statement was improper, they were not so flagrant and ill intentioned that the resulting prejudice could not be cured with a jury instruction. It was not improper for the prosecutor to attack the defendant’s credibility by discussing the significant differences between the defendant’s testimony and his initial statements. Prosecutor’s 9/11 weapon argument was improper but not so flagrant and ill intentioned that the resulting prejudice could not have been cured with a jury instruction. A prosecuting attorney does not “argue facts not in evidence” by discussing evidence that the State in good faith anticipates presenting at trial that is ultimately unsupported by the evidence at trial. A prosecuting attorney does not state a personal belief as to the credibility of a witness by arguing that the victim’s story had been consistent from first report to courtroom testimony. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Consent Jury Instruction. The trial court properly rejected the defendant’s proposed consent instruction as the State was already required to prove lack of consent as part of its burden in proving forcible compulsion in a prosecution for first degree rape. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Persistent Offender. Defendant’s mandatory sentence of life without the possibility of release does not violate article I, section 14 of the Washington Constitution based upon his age when he committed his first sex offense. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Restraints. The trial court violated the defendant’s constitutional right to due process by failing to perform an individualized inquiry into the need to restraint the defendant at pretrial proceedings, instead adopting the jail’s policy until a video conferencing system could be adopted. The trial court also erred by requiring the defendant to wear a leg restraint during the jury trial without conducting an individual inquiry into the need to restrain him. Both errors, however, were harmless. State v. Jackson, COA No. 51177-1-II (Aug. 20, 2019).

Growth Management Act. Service of a petition for judicial review to the Growth Management Hearings Board by e-mail does not satisfy the service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW. Service on the Board requires actual delivery to the agency’s office. Delivery is not completed on the date the petition is placed in the United States mail. Annexation of land by a city prevents a county from taking actions regarding the annexed land to resolve the Board’s ruling of invalidity, thus the Board’s determination of invalidity cannot have any legal effect. Clark County v. Friends of Clark County, COA No. 50847-8-II (Aug. 20, 2019).

Truancy. A school district must perform the mandatory WARNS assessment and providing approved best practice or research-based intervention consistent with the WARNS profile for middle and high school students and before filing a truancy petition. Chimacum School District v. R.L.P., COA No. 51327-7-II (Aug. 20, 2019).

Division Three

Subject Matter Jurisdiction and Standing. This case contains an excellent discussion of subject matter jurisdiction of trial courts and standing. The case identifies the conflicting cases and provides a resolution that is sound. In re Estate of Reugh, COA No. 35737-6-III (Aug. 20, 2019).

Ninth Circuit

Regulatory Traffic Laws. A state cannot enforce its regulatory traffic laws against tribal members’ conduct inside a reservation. A member Indian who receives a citation for a violation of a regulatory traffic law may bring a 42 U.S.C. § 1983 action against state officers. The tribe, however, does not have a § 1983 claim. Chemehuevi Indian Tribe v. Bunim, No. 17-56791 (9th Cir. Aug. 19, 2019).

WEEKLY ROUNDUP FOR AUGUST 9, 2019 & AUGUST 16, 2019

Washington Supreme Court

Persistent Offenders. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. The sentences imposed on all three defendants are proportional under the Fain factors. State v. Moretti, No. 95263-9 (Aug. 15, 2019). State represented by Grays Harbor County DPA Erin Riley, King County DPA Donna Wise, and Spokane County DPA Brian O’Brien (ret.) and Larry Steinmetz. Justices Yu, Madsen, and González concurred in an opinion that expressed increasing discomfort with sentences of life without the possibility of parole.

Competency. The proper standard of review of a trial court’s failure to sua sponte order a competency evaluation of a defendant is abuse of discretion. The trial court did not abuse its discretion by not sua sponte ordering a third competency hearing after a jury determined that the defendant was competent and the defendant, despite some delusions, appeared coherent throughout trial, did not engage in irrational behavior or outbursts, and had the ability to recall facts, communicate with his attorney, and understand the ramifications and consequences of the crime. State v. McCarthy, No. 96653-2 (Aug. 8, 2019). State represented by Spokane County DPA Gretchen Verhoef.

Independent Prosecutors. A prosecuting attorney has no duty under RCW 36.27.020 to represent the plaintiff county official in a civil lawsuit against another county official. Superior court judges may not appoint an independent prosecutor pursuant to RCW 36.27.030 when a prosecuting attorney has no duty to represent the party in the given matter. Entry of an order appointing an independent prosecutor pursuant to RCW 36.27.030 must occur in open court. Prosecuting attorneys have a cognizable interest in protecting their responsibilities from usurpation to entitle them to notice and an opportunity to be heard before an independent prosecuting attorney is appointed pursuant to RCW 36.27.030. A prosecuting attorney may revoke an RCW 36.27.040 appointment of a special deputy prosecuting attorney at will. In re Appointment of Special Deputy Prosecuting Attorney, No. 95945-5 (Aug. 8, 2019).

Division One

Sex Offender Registration. RCW 9A.44.128(10)(h), to the extent it imposes a duty to register as a sex offender based on an out-of-state conviction for which there is no comparable Washington crime, is an unconstitutional delegation of the legislative function to another state. State v. Batson, COA No. 78341-6-I (Aug. 12, 2019).

Prior DUI Sentencing Enhancement. A jury must decide whether a defendant’s prior reckless driving conviction qualifies as a “prior offense” under RCW 46.61.5055, before a court may add an additional two years to the standard range pursuant to RCW 9.94A.533(7). The question for the jury on remand is not whether the prior offense involved drugs or alcohol. The only questions for the jury on remand is whether the reckless driving offense was originally charged as a DUI. The 2016 amendment to RCW 9.94A.533(7) regarding the imposition of consecutive prior DUI sentencing enhancements was a clarifying amendment that applies retroactively to defendants who committed his crime prior to the amendment’s effective date. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Warrantless Blood Draws. Exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault, where the driver sustained serious injuries that required treatment, multiple responders smelled alcohol on the driver, the driver told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Restitution. The defendant’s failure to challenge the restitution order in the trial court on the grounds that the record did not establish a causal connection between the vehicular assault victim’s medical expenses and the injuries caused by the crash, precludes appellate review as the defendant’s objection does not challenge the trial court’s jurisdiction to order restitution. The testimony at trial describing most of the vehicular assault victim’s injuries and treatments, which stated critical dates and which was augmented with a detailed claim summary and diagnoses sheet established a sufficient causal connection between the victim’s medical expenses and his injuries resulting from the collusion. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. The State must connect the information it has legally obtained to the need for the suspect’s CSLI records. State v. Phillip, COA No. 77175-2-I (Aug. 5, 2019). [This opinion replaces the opinion previously issued in this case on July 1, 2019.]

Appearance of Fairness and Judicial Recusal. The appearance of fairness doctrine was violated by having members of the county superior court preside over a parental termination case after the parents asserted breaches of confidentiality, lying, and bias by the volunteer GAL, and the head superior court administrator and the civil DPA who was appointed to represent both the volunteer GAL program and the superior court meddled in the discovery process and threatened to take legal action against the parents for filing evidence in a termination case that was pending before a judge of the same court. Once a judge has recused, the judge may take no other action in the case except for the necessary ministerial acts to have the case transferred to another judge. A recused judge may not sign an order that conforms to the judge’s prior oral rulings. Dependency of A.E.T.H., COA No. 76964-2-I (Aug. 12, 2019).

Division Two

Courtroom Security. Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant. The trial court cannot rely solely on the security officer’s preference. A court’s failure to engage in the required analysis will require reversal on direct appeal unless the State can show harmlessness beyond a reasonable doubt. State v. Gorman-Lykken, COA No. 5124-8-II (Aug. 13, 2019). Judge Melnick concurred finding that other errors, including several improper statements by the prosecutor in closing argument, also merited reversal.

Bail. CrR 3.2 does not require a court to make oral or written findings before imposing bail. It was an abuse of discretion to set bail at $60,000 for a defendant who had a prior escape conviction, several failures to appear in Oregon cases, no employment tying him to the community, no one who vouched for him, mental health issues, a prior assault conviction, was currently on probation for prior offenses, and had engaged in prior acts of domestic violence against the victim, without first considering less restrictive conditions of release and the defendant’s financial resources. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).

Violation of Foreign Protection Orders. The validity of the foreign protection order is not an element of the offense of violation of a domestic violence court order under RCW 26.50.110(1)(a). The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).

Public Records Act. A requester can seek judicial review of an agency’s estimate of the time needed to respond to a PRA request prior to the agency taking final action. Whether an estimate is reasonable must be based upon a forward-looking evaluation at the time of the estimate, not on a backward-looking evaluation after the fact. A 30-day estimate of the time needed to assemble requested records from multiple different offices was reasonable under former RCW 42.56.520, where the agency received over 50 PRA requests on the same day. An agency can produce records to an affected party before producing them to the original requester without violating the prohibition against distinguishing among persons requesting records. Freedom Foundation v. DSHS, COA No. 51498-2-II (Aug. 6, 2019).

Conditions of Community Custody. The trial court did not abuse its discretion by prohibition a defendant who was convicted of unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver, from having contact with known drug users/sellers outside of a treatment setting and from possessing or consuming medical marijuana under the Medical Use of Cannabis Act, ch. 69.15A RCW. The condition that prohibits the defendant from “associating with ‘known drug users/sellers, except in treatment settings’” is not unconstitutionally vague. The term “known” limits the condition’s reach to people known by the defendant to be drug users/sellers. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).

DNA Collection Fee. A trial court may only impose a DNA collection fee upon a repeat offender where the State establishes that the offender’s DNA has not been previously collected. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).
Division Three

Wrongful Conviction Claims. Individuals who previously established their right to assert a claim under Washington’s “Wrongfully Convicted Persons Act” (WCPA), are not entitled to compensation after settling a federal lawsuit under 42 U.S.C. § 1983, arising from the same criminal prosecution. Remedies and compensation under the WCPA are exclusive. Larson v. State, COA No. 35649-3-III (Aug. 15, 2019).

Attorney General’s Office

Public Records Act. A request for access to an alphabetical listing of personal property owners constitutes a request for a list of individuals which must be denied under RCW 42.56.070(8) if the request is for a commercial purpose. In addition, RCW 42.56.080 requires a county assessor in appropriate circumstances to investigate whether a list of personal property owners is requested for a commercial purpose, which may include investigating whether a request for a list of real property is in fact a request for a list of individuals for a commercial purpose. AGO 2019 No. 3 (Aug. 1, 2019).

Legal Update for Washington State Law Enforcement

The July 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Missouri Supreme Court

Prosecutor Discipline. Assistant circuit attorneys’ law licenses were suspended for lengthy periods of time for for multiple violations of the rules of professional conduct in relation to their dishonesty about and concealment of a brutal assault of a suspect in custody by a police detective and the charges resulting therefrom filed by their friend and co-assistant circuit attorney. Rules violated include RPC 8.4(c), 8.4(d), 8.4(g), and 1.13. The RPC 1.13 violation is due to assistant circuit attorney’s failure to report another circuit attorney’s misconduct to a supervisor. In re Schuessler, No. SC97376 (Aug. 13, 2019).

WEEKLY ROUNDUP FOR AUGUST 2, 2019

Washington Supreme Court

Confrontation Clause. The primary purpose test governs a courts’ analysis of hearsay statements made to both governmental and nongovernmental witnesses. Shafer’s declarant-centric test, Sandoval’s three-factor test, and Hurtado’s synthesis of the two have all been superseded by the primary purpose test. A crime victim’s statements to his medical providers were nontestimonial because they were not made with the primary purpose of creating an out-of-court substitute for trial testimony. The fact that a victim signs waivers allowing the police to obtain his medical records does not alter the primary purpose of the interactions. State v. Scanlan, No. 95971-4 (Aug. 1, 2019). Justice Gordon McCloud authored a concurring opinion. King County DPA Ann Summers represented the State.

Division One

Juvenile Disposition Appeals. First-time juvenile offender’s manifest injustice sentence vacated and the matter remanded for entry of a standard disposition due to the prosecutor’s failure to obtain the proper entry of necessary findings of fact and conclusions of law. State v. I.N.A., COA No. 79587-2-I (Jul. 29, 2019).

Conflicts. In resolving conflict questions, the official comments to the Rules of Professional Conduct will prevail over pre-2006 appellate court decisions. Plein v. USAA Casualty Insurance Co., COA No. 78190-1-I (Jul. 29, 2019).

Administrative Office of the Courts

The Administrative Office of the Courts has published new and updated forms on the Washington Court Forms website. These forms are available at: Washington Court Forms Homepage: https://www.courts.wa.gov/forms/

List of All Forms: https://www.courts.wa.gov/forms/?fa=forms.static&staticID=14

The Washington Pattern Forms Committee and its subcommittees created new forms and updated existing forms to address changes in the law from the 2019 legislative session and the feedback provided by court form users. Some forms were also removed from the court form website because they were no longer supported by current law. A summary of changes to the forms may be found at: http://www.courts.wa.gov/forms/?fa=forms.static&staticID=2

Any feedback or questions about the forms can be provided to the Washington Pattern Forms Committee by submitting a Comment on Forms.

Ninth Circuit

Conditions of Supervised Release. A special condition that provided the sex offender “shall not frequent any place whose primary purpose is to sell, rent, show, display, or give other forms of access to, material depicting and/or describing sexually explicit conduct,” is not unconstitutionally over-broad or vague. This prohibition was accompanied by definitions for “sexually explicit conduct” and “sexually stimulating depictions”:

“any material depicting and/or describing sexually explicit conduct involving adults, defined as sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by the defendant’s probation officer”. . . “sexually stimulating depictions” include “computer images, pictures, photographs, books, writings, drawings, videos, or video games depicting such conduct.”

Under dictionary definitions of “frequent,” a defendant does not violate this condition by visiting an adult-themed business only once. United States v. Ochoa, No. 18-10383 (9th Cir. Jul. 29, 2019).

U.S. Citizenship and Immigration Services (USCIS)

U Visas. The guide includes an overview of: (1) The U visa certification process; (2) Best practices for certifying agencies and officials; (3) Answers to frequently asked questions from judges, prosecutors, law enforcement agencies and other officials; (4) DHS contact information for certifying agencies on U visa issues; and (5) Training resources and opportunities. A separate T Visa guide will issue shortly. U.S. Department of Homeland Security, U Visa Law Enforcement Resource Guide: For Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies (2019).

WEEKLY ROUNDUP FOR JULY 26, 2019

Division One

Child Support Obligations. The Ontario, Canada child and spousal support order may be registered in Washington and enforced pursuant to the Uniform Interstate Family Support Act. The Canadian order, which does not automatically terminated spousal support upon the recipient’s remarriage, does not contravene Washington public policy. Brett v. Martin, COA No. 79076-5-I (May 20, 2019, publication ordered July 22, 2019).

Community Caretaking. Officers, who were aware of the opioid crisis and the large number of heroin overdoses in their community, improperly opened the doors of the defendant’s vehicle without first trying to rouse the sleeping occupants. Suspected unconsciousness alone, without any evidence inside the car suggesting drug use, does not support a reasonable, objective belief of a need for immediate assistance. State v. Harris, COA No. 77987-7-I (Jul. 22, 2019).

Ethics Advisory Committee

Judge’s Children. A judge may preside over matters in which an attorney, who is affiliated with the same public defender agency as the judge’s child, is attorney of record. “But the judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” State of Washington Ethics Advisory Committee Ethics Opinion 19-05 (Jul. 2019).

Ninth Circuit

Warrantless Firearm Seizures. Police officers’ warrantless seizure of firearms from a residence after detaining the plaintiff’s husband for a mental health evaluation in response to a 911 call, did not violate the plaintiff wife’s Fourth Amendment rights. The seizure was justified under a community caretaking function framework under the facts of this case, as the urgency of a significant public safety interest was sufficient to outweigh the significant privacy interest in personal property kept in the home. The officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and to send the individual for evaluation, they expected the individual would have access to firearms and present a serious public safety threat if he returned to the home, and they did not know how quickly the individual might return. Issue preclusion bars relitigation of the plaintiff wife’s Second Amendment challenge to the forfeiture of the seized firearms. Rodriguez v. City of San Jose, No. 17-17144 (9th Cir. Jul. 23, 2019).

WEEKLY ROUNDUP FOR JULY 19, 2019

Washington Supreme Court

Allegations of Racial Bias During Jury Deliberations. As soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified. As soon as a court becomes aware of allegations that racial bias may have been a factor in the verdict, the court shall take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the record and supervised by the court. The court must tailor the on the record inquiry to the specific allegations presented. The ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing. State v. Berhe, No. 95920-0 (Jul. 18, 2019). State represented by Dennis McCurdy and Ann Summers. Justice Gordon McCloud filed a concurring opinion in which she opines that defense counsel’s ability to investigate juror conduct is not limited by the majority’s opinion.

No Contact Orders. Old Chief v. United States, 519 U.S. 172 (1997), does not apply to a defendant’s offer to stipulate to a domestic violence no-contact order in a felony violation of a no-contact order prosecution. The probative value of a domestic violence no-contact order far outweighs any danger of unfair prejudice, a no-contact order provides the specific restrictions imposed on a defendant, is closely related to a felony violation of a no-contact order charge, and is evidence of multiple elements of that offense. A trial court may redact any portion of a no-contact
order that poses a risk of unfair prejudice. State v. Taylor, No. 96325-8 (Jul. 18, 2019). State represented by Pam Loginsky and Jodi Hammond.

Division One

Critical Area Regulations. The Growth Management Act does not mandate that local governments consider the protection, against geologically hazardous areas, of the public health and safety when developing critical area regulations. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).

Growth Management Hearings Board. The Board has the power to deem arguments abandoned due to inadequate briefing. Citing the GMA in an argument heading is inadequate. The petitioner must explain how the law applies to the facts before the Board and how the local government has failed to comply with the GMA. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).

Graduated Income Taxes. No statutory prohibition limits Seattle’s authority to levy a property tax on income because RCW 36.65.030 (Substitute Senate Bill (SSB) 413) is unconstitutional in its entirety for violating the Washington Constitution article II, section 19’s single subject rule. The Washington Constitution, however, bars any graduated income tax. Kunath v. City of Seattle, COA No. 79447-4-I (Jul 15, 2019).

First Circuit

Absolute Prosecutorial Immunity. Deputy prosecuting attorney is not entitled to absolute immunity in a § 1983 action for withholding information about a criminologist’s drug addiction and evidence tampering from the plaintiff, as her decision to withhold evidence lacked a “functional tie” to her prosecutorial role in that specific plaintiff’s criminal case. DPA not entitled to absolute governmental attorney immunity with respect to withholding exculpatory evidence in response to a subpoena duces tecum as she primarily functioned as a custodian of evidence, rather than as an advocate. Penate v. Kaczmarek, No. 18-2261 (Jun. 26, 2019).

New York State Bar Association

Social Media. First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media. While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Subject matter includes attorney competence, attorney advertising and communications concerning a lawyer’s services, furnishing of legal advice through social media, review and use of evidence from social media, communicating with clients, researching jurors and reporting juror misconduct, and using social media to communicate with a judicial officer. The document also includes an appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases. Social Media and New Communication Technologies Committee of the Commercial and Federal Litigation Section of the New York State Bar Association, Social Media Ethics Guidelines (Updated Apr. 29, 2019, Released June 20, 2019).

National Judicial College

Science Bench Book for Judges. “It has become ever more apparent that judges must have some understanding of science. This book is a helpful and necessary effort to provide judges with knowledge and techniques that will help them work with scientific subject matter.” U.S. Supreme Court Justice Stephen Breyer. The entire book is available here.

WEEKLY ROUNDUP FOR JULY 12, 2019

Washington Supreme Court

First Amendment and Public Financing of Elections. Seattle’s Democracy Voucher Program further’s a legitimate interest in the public financing of elections. The tax that supports the program “does not alter, abridge, restrict, censor, or burden speech.” The Program, moreover, does not force association between taxpayers and any message conveyed by the program. Elster v. Pynchon, No. 96660-5 (Jul 11, 2019).

Vehicular Homicide. The defendant’s action of striking a vehicle while intoxicated and fleeing the scene was the proximate cause of a Good Samaritan who was killed while helping the occupant of the vehicle the defendant struck. The tort-derived reasonable foreseeability standard is properly applied in vehicular homicide cases to delineate between a superseding cause and a mere intervening event. The question of foreseeability rests with the jury when reasonable minds can differ on this issue. State v. Frahm, No. 95947-1 (Jul. 11, 2019). Justices Madsen and Gordon McCloud dissent.

Washington Law Against Discrimination. Obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a “physiological disorder, or condition” that affects multiple body systems listed in the statute. If an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the Washington Law Against Discrimination. Taylor v. Burlington Northern Railroad Holdings, Inc., No. 96335-5 (Jul. 11, 2019). Justices Yu and Gordon McCloud dissent.

The Court accepted review on July 9, 2019, of the following cases:

Jurisdiction of Courts. State v. Stevens County Dist. Court Judge, No. 97071-8. Stevens County. Issue: Whether the Superior Court can, in first appearances, exercise its concurrent jurisdiction over misdemeanor cases where the case was or is likely to be filed in the District Court. COA opinion reported at 7 Wn. App. 2d 927 (2019). Petition for review pleadings available here.

Jurors. Bednarczyk v. King County, No. 96990-6. King County. Issues presented: Does King County’s failure to compensate jurors for their service result in the unlawful exclusion of prospective jurors based on “economic status” in violation of the Juror Rights Statute, RCW 2.36.080(3)? Does there exist an implied cause of action under the Juror Rights Statute, RCW 2.36.080(3)? Are jurors “employees” for purposes of the Washington Minimum Wage Act, RCW 49.46.020, and therefore entitled to be paid at least the minimum wage for each hour of service? COA opinion reported at 7 Wn. App. 2d 647 (2019). Petition for review pleadings available here.

Division One

“Juvenile” Sentencing. Neither the Eighth Amendment nor article I, section 14 of the Washington Constitution require a presumption that a “juvenile’s” youthfulness is a mitigating circumstance that warrants a deviation from an SRA standard range. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).

Guilty Pleas. Although the defendant was affirmatively misinformed about his duty to register as a felony firearm offender, he fails to establish manifest injustice sufficient to vacate his guilty plea. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).

Legal Update for Washington State Law Enforcement

The June 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Federal Marijuana Prosecutions. A defendant may only enjoin his federal prosecution for violations of the Controlled Substances Act if he can prove that his actions were in strict compliance with the state’s medical marijuana law. United States v. Evans, No. 17-30185 (Jul. 9, 2019).

WEEKLY ROUNDUP FOR JULY 5, 2019

Washington Supreme Court

Restitution. “The sentencing hearing,” from which to calculate RCW 9.94A.753(1)’s 180 day period for determining restitution, when a defendant must be resentenced on remand, is the resentencing hearing. A trial court, therefore, does not exceed its statutory authority by entering a second restitution award following resentencing. State v. Barbee, No. 96490-4 (Jul. 3, 2019).

Division One

Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. State v. Phillips, COA No. 77175-2-I (Jul. 1, 2019).

Robbery. The use of force or fear to obtain or retain possession of the property at issue in a second degree robbery case is not an essential element that must be included in the information. A trial court is not required to instruct the jury on the good faith claim of title when neither the State nor defense request such an instruction. The good faith claim of title defense is surplusage and unnecessary in a robbery trial where the defendant claims that he selected the item, then paid for it at the checkout stand, and then was accosted as he was leaving the store, as if the jury believes the defendant there would be no theft and, hence, no robbery. State v. Phillips, COA No. 77562-6-I (Jul. 1, 2019).

Juvenile Sentencing. All deferred dispositions, including pending deferred dispositions, are excluded from a juvenile court’s calculation of an offender’s criminal history by RCW 13.40.020(8)(b). State v. S.M.G., COA No. 79039-1-I (Jul. 1, 2019).

Division Two

Search Warrants. The search warrant was sufficiently particular wherein it explained that (1) there was probable cause to search for “evidence of the crime(s) of: RCW 9.68.050 Dealing in depictions of a minor engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct,” (2) the warrant described the items to be seized, including a list of specific types of electronic devices and media “capable of being used to commit or further the crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes,”and (3) limited the records, documents and other information to be seized from the devices and data to that “related to the production, creation, collection, trade, sale, distribution, or retention of files depicting minors engaged in sexually explicit acts/child pornography.” State v. Vance, COA No. 50664-5-II (Jul. 2, 2019).

Division Three

Failure to Register as a Sex Offender. To convict a sex offender registrant without a fixed address of a violation of RCW 9A.44.130(6)(b) for failing to provide an accurate accounting of where he stayed during the week to the county sheriff at his weekly report to the sheriff’s office, the State must prove that the sheriff’s office made a clear and specific request for this accounting for the week in question. Sufficient evidence may be established through the use of a form that explicitly requests transients to list all places stayed that week. State v. Dollarhyde, COA No. 36047-4-III (Jul. 2, 2019).

Ninth Circuit

Bikini Baristas. The city’s lewd conduct ordinances are not unconstitutionally vague as the definition of “lewd act” would allow a person of ordinary intelligence to reasonably ascertain what is prohibited. The city’s dress code ordinance is also sufficiently clear. The act of wearing almost no clothing while serving coffee in a retail establishment does not constitute speech protected by the First Amendment. Edge v. City of Everett, No. 17-36038 (9th Cir. Jul. 3, 2019).

WEEKLY ROUNDUP FOR JUNE 28, 2019

United States Supreme Court

Blood Alcohol Testing. Plurality decision with Justices Alito, Roberts, Breyer and Kavanaugh concluding that when a drive is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally permits a blood test without a warrant. An exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, as a driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. Justice Thomas concurred in the opening stating that he would apply a per se rule, under which the natural metabolization of alcohol in the blood stream “creates an exigency once police have probable cause to believe the driver is drunk,” regardless of whether the driver is conscious. Mitchell v. Wisconsin, No. 18-6210 (2019). Dissenters were Justices Sotomayor, Ginsburg, Kagan and Gorsuch.

WEEKLY ROUNDUP FOR JUNE 21, 2019

United States Supreme Court

Double Jeopardy. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns” is reaffirmed. Gamble v. United States, No. 17-646 (Jun. 17, 2019). Justice Thomas filed a concurring opinion that favors curtailing the doctrine of stare decisis. Dissenters were Justices Ginsburg and Gorsuch.

Takings. A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under §1983 at that time. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983, is overruled. However, as long as post-taking compensation remedies are available, governments need not fear that federal courts will invalidate their regulations as unconstitutional. Knick v. Township of Scott, No. 17-647 (Jun. 21, 2019). Justice Thomas filed a concurring opinion. Dissenters were Justices Kagan, Ginsburg, Breyer, and Sotomayor.

Batson. The history of the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent. Disparate questioning can be probative of discriminatory intent – 145 questions asked of 5 black prospective jurors vs. 12 questions asked of 11 white seated jurors – when the two groups were not manifestly different. A comparison of the stuck jurors with those not struck revealed a series of factually inaccurate explanations for striking black prospective jurors, supporting a reversal of the verdict and remand for a seventh trial. Flowers v. Mississippi, No. 17-9572 (Jun. 21, 2019). Dissenters were Justices Thomas and Gorsuch.

Fabrication of Evidence Claims. The statute of limitations for a criminal defendant’s 42 U.S.C. § 1983 claim alleging the fabrication of evidence does not begin to run until the end of the criminal proceedings against him. McDonough v. Smith, No. 18-485 (Jun. 20, 2019). Dissenters were Justices Thomas, Kagan, and Gorsuch.

Division One

Involuntary Commitment. A person facing a trial for an involuntary 90-day commitment does not have a constitutional right to a jury trial. A person who is given notice of her statutory right to demand a jury and who does not do so, is not entitled to vacation of an order of commitment obtained in a bench trial. In re Detention of C.B., COA No. 77471-9-I (Jun. 17, 2019).

Gifts of Public Funds. The port did not violate Const. art. VIII, sec. 7 by allowing trains to utilize rails rent free pursuant to a 1947 contract, and without paying for the impact to the tracks from wear and tear. Donative intent not shown where legally sufficient consideration was recieved by the Port. Only when the consideration is “so gross as to shock the conscience,” and thus may suggest fraud or other wrongdoing will donative intent be found. Peterson v. Port of Benton, COA No. 79090-1-I (Jun. 17, 2019).

Division Two

Defense Attorney Conflict of Interest. Defense counsel who previously represented a principal in the gang which had been involved in back-and-forth shootings with the defendants’ gang had an actual conflict of interest that required his withdrawal. Although the former client was not a witness in the defendants’ trial, the attorney’s inability to use confidential information he learned during that prior representation in the defense of his current client represented an actual conflict of interest. State v. Kitt, COA No. 49534-1-II (Jun. 18, 2019).

WEEKLY ROUNDUP FOR JUNE 14, 2019

Washington Supreme Court

Police Officer Negligence Claims. Police officers owe a duty of reasonable care to avoid unreasonably escalating an encounter to the use of deadly force. A negligence claim is not barred by conduct that also supports an intentional tort, such as assault. The public duty doctrine does not prevent negligence lawsuits against police officers, though the legislature may limit liability by statute. Beltran-Serrano v. City of Tacoma, No. 95602-8 (Jun. 13, 2019). Justices Madsen, Johnson, Owens, and Wiggins dissented.

Division Two

Equitable Tolling and Collateral Attacks. Petitioner was not entitled to equitable tolling of the one year time limit contained in RCW 10.73.090. While the lawyer the defendant’s family retained to assist him with his personal restraint petition (PRP) resigned in lieu of discipline prior to the expiration of the one-year time limit, there was no bad faith, deception, or false assurances by the State. RAP 18.8(a) and (b) does not authorize extending the time limit for filing a PRP. In re Personal Restraint of Fowler, COA No. 51029-4-II (Jun. 11, 2019).

Division Three

Self-Defense Instruction. A defendant was entitled to a self defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others. State v. Tullar, COA No. 35956-5-III (Jun. 11, 2019).

Legal Financial Obligations. The 2018 LFO amendments impact assessments for the cost of court-appointed counsel and the sheriff’s fee. The 2018 LFO amendments do not impact the domestic violence assessment under RCW 10.99.080(1) as it is a penalty, rather than a cost of prosecution under RCW 10.01.160. The domestic violence assessment may be imposed against indigent defendants. The 2018 LFO amendments do not impact recovery of medical expenses under RCW 70.48.130(5) for care provided in the jail while a defendant is in custody pending adjudication. While a court must find that the defendant has the ability to pay prior to ordering repayment of medical costs, the fact that the defendant meets the statutory definition of indigence under RCW 10.101.010(3)(c) does not preclude the trial court from requiring reimbursement. State v. Smith, COA No. 35708-2-III (Jun. 6, 2019).

LUPA. Parties to a land use petition act action may agree to accept service of process by e-mail. RST Partnership v. Chelan County, COA No. 35838-1-III (Jun. 13, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The February 2019 and March 2019 trainings are now posted.

Legal Update for Washington State Law Enforcement

The May 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR JUNE 7, 2019

Washington Supreme Court

Adjudicatory Body, Selective Prosecution, and Religion. In a post-remand opinion that restates that the State of Washington bars discrimination in public accommodations on the basis of sexual orientation, and that enforcement of the Washington Law Against Discrimination does not violate a person’s right to religious free exercise and does not compel speech or association, the Court addresses the issues in the United States Supreme Court’s grant and reverse order. Members of an adjudicatory body may not disparage the religion of a party before it. Selective-enforcement claims premised on the free exercise clause are subject to the same demanding standard as all other selective enforcement claims, requiring the defendant to “introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” State v. Arlene’s Flowers, Inc., No. 91615-2 (Jun. 6, 2019).

On Tuesday, June 4, 2019, the Supreme Court accepted review in the following cases:

Disqualification of Prosecuting Attorney’s Entire Office. State v. Nickels, No. 96943-4. Grant County – State’s Petition. Issues: “1. Does RPC 1.11(d) apply equally to elected prosecuting attorneys as it does to other government attorneys? 2. If arguendo, RPC 1. 11 ( d) does not apply to a timely and effectively screened elected prosecuting attorney, must the office wide disqualification abatement test take into account the complexity of the case, proximity to trial, and availability of substitute counsel?” COA opinion reported at 7 Wn. App. 2d 491 (2019). Petition for review pleadings available here.

Judicial Disqualification Statute. Godfrey v. Ste. Michelle Wine Estates, Ltd., No. 96952-3. Issues presented: “Is a Superior Court judge’s ruling granting a request to extend case management deadlines a ‘discretionary ruling’ for purposes of Washington’s notice of disqualification statute, RCW 4.12.050? If entering such an order is a discretionary ruling for purposes of the statute, then a party is foreclosed from using an affidavit of prejudice to unilaterally remove a judge from a case who has already granted such a request.” COA opinion is unpublished, though prior opinions in the case are published. Petition for review pleadings available here.

Division One

Offender Score Calculation. Dismissal of a misdemeanor conviction is not equivalent to vacation of that conviction. A misdemeanor that is dismissed pursuant to RCW 3.50.320 and RCW 3.66.067, following a deferred sentence, will interrupt the washout period for prior felonies. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).

Search Warrants. Probable cause existed to issue the warrant as the affidavit set forth sufficient facts from which a reasonable person could conclude that the defendant was involved in criminal activity and existence of that activity could be found in the residence. Although the warrant contains generic classifications of the items to be searched and seized, it provided sufficient guidance to the officers to prevent them from making the search a general, exploratory rummaging in a person’s belongings. The complained of omission from the affidavit was merely negligent. No warrantless search occurred when the officers recorded the serial number that was in plain sight on a welder that may have been stolen. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).

Division Two

Bail. The trial court is not required to make written or oral findings regarding its decision to deny release on personal recognizance pending trial. The record in this case supported a finding that conditions of release were necessary to reasonably assure the accused’s appearance – defendant had prior FTAs, an escape conviction, no employment or ties to the community, mental health issues, and the release unit considered the defendant to be a medium to high flight risk. The defendant’s prior convictions for firearm possession and assault, the absence of any person to vouch for him, mental health issues, past threats against the victim involving a deadly weapon, the instant offense was committed when the defendant was on probation, and the instant offense involved a violation of a protection order. The trial court, however, erred by failing to consider less restrictive conditions of release or the defendnat’s financial resources before imposing the $60,000 bond. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).

Foreign Protection Orders. The validity of a foreign protection order is not an essential element of a violation of a protection order offense. The validity of the order is a legal question related to the admissibility of the order for the trial court to decide. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).

Division Three

Felony Elude and Vagueness. The attempting to elude a police vehicle statute, RCW 46.61.024(1), is not unconstitutionally vague. The “as applied” standard for vagueness was not changed by Johnson v. United States, 135 S. Ct. 2551 (2015). State v. Schilling, COA No. 35719-8-III (Jun. 4, 2019).

Ninth Circuit

Terry Stops. An anonymous tip that a person saw someone with a gun does not provide reasonable suspicion to make a Terry stop in Washington, where possession of a firearm is presumptively lawful. Flight from police officer does not establish reasonable suspicion in all cases; flight is just one factor in the reasonable suspicion analysis. Where flight occurs before officers communicate with the person and the person is of color, racial dynamics along with a simple desire not to interact with police will provide an “innocent” explanation of flight that flight when considered alongside a tip that is entitled to little weight, will not provide reasonable suspicion for a stop. United States v. Brown, No. 17-30191 (9th Cir. Jun. 5, 2019).

WEEKLY ROUNDUP FOR MAY 31, 2019

United States Supreme Court

First Amendment Retaliatory Arrest Claims. A First Amendment retaliatory arrest claim will generally fail as a matter of law when there was probable cause to arrest the person. A person may succeed on a 42 U.S.C. § 1983 claim despite the existence of probable cause when the person presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Nieves v. Bartlett, No. 17-1174 (May 28, 2019).

Washington Supreme Court

Manifest Injustice Dispositions. A suspended manifest injustice disposition is immediately appealable. The standard of proof for imposition of a manifest injustice sentence is clear and convincing evidence, as no constitutionally protectable liberty interest is created by the juvenile dispositional guidelines. State v. T.J.S.-M., No. 96434-3 (May 30, 2019). Justice Yu concurred in the result. Dissenters included Justices González and Gordon McCloud.

Division Three

“In Uniform” and Felony Elude. “Uniform” for purposes of eluding a police officer requires the signaling or pursuing officer to wear a department-issued garment that clearly communicates the officer’s official status to members clothing. A vest issued by the police department that the officer wore over “normal clothes” was a uniform as it had a Spokane Police badge on front and clear block reflective letters across the back that said “police.” State v. Connors, COA No. 35718-0-III (May 30, 2019).

Ninth Circuit

Federal Criminal Jurisdiction in Indian Country. The Assimilative Crime Act (ACA), 18 U.S.C. § 13 applies to Indian Country. The ACA, when invoked in Indian Country, does not apply to (1) “offenses committed by one Indian against the person or property or property of another Indian,” (2) “any Indian committing any offense in the Indian country who has been punished by the local law of the tribe,” or (3) “any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” See Indian Country Crimes Act, 18 U.S.C. § 1152. The Indian-on-Indian exception does not preclude application of the ACA to all “victimless” crimes. United States v. Smith, No. 17-30248 (9th Cir. May 28, 2019).

WEEKLY ROUNDUP FOR MAY 24, 2019

Division Two

Speedy Trial. A criminal defendant’s constitutional speedy trial rights were violated by a 38 year gap between charging and the defendant’s first appearance in the trial court on the murder charges. Most of the delay is attributable to the State which negligently allowed the defendant to be transferred to Canada to stand trial for murder and then made no formal efforts to extradite the defendant to the United States following his conviction in Canada. State v. Ross, COA No. 52570-4-II (May 21, 2019).

Public Funds and Ballot Propositions. RCW 42.17A.555, which prohibits the use of public facilities to support “a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition,” was violated when the Port filed a declaratory judgment action against two ballot propositions, seeking a judicial directive preventing the ballot propositions from being placed on the local ballot. The Port was required to disclose its pre-election declaratory judgment related legal expenditures as independent expenditures under RCW 42.17A.255. RCW 42.17A.255 does not violate the First Amendment and is not void for vagueness. State v. Economic Development Board for Tacoma-Pierce County, COA No. 49892-8-II (May 21, 2019).

Division Three

Cash Bail. If an accused has violated a condition of cash bail, a trial court has discretion to forfeit cash bail even after the accused reappears in court and even after entry of the judgment and sentence. State v. Jeglum, COA No. 35841-1-III (May 21, 2019).

DOSA. Eligibility for DOSA is offender-based, not offense-based. A defendant who is sentenced to serve concurrent sentences for multiple crimes is eligible for DOSA if at least one sentence has a standard range longer than one year. Postsentence Petition of Hardy, COA No. 36086-5-III (May 23, 2019).

Colorado Supreme Court

Drug Detection Dogs and Marijuana. A sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. Law enorcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. People v. McKnight, 2019 CO 36 (May 20, 2019).

WEEKLY ROUNDUP FOR MAY 17, 2019

Washington Supreme Court

Plain View. Inadvertence is not a separate element required under the plain view doctrine. Thus, a plain view seizure is legal when the police (1) have a valid justification to be in an otherwise protected area, provided that they are not there on a pretext, and (2) are immediately able to realize the evidence they see is associated with criminal activity. Law enforcement’s warrantless seizure of a defendant’s bloody clothing from the defendant’s hospital room was lawful where the officer’s presence in the hospital room was lawful and the police could reasonably conclude that the seized items had evidentiary value with respect to the current arson and assault investigation. State v. Morgan, No. 96017-8 (May 16, 2019). Justices Madsen and Gordon McCloud dissented. (Snohomish County – Seth Aaron Fine).

Impeachment Evidence and Harmless Error. The erroneous exclusion of impeachment evidence is harmless beyond a reasonable doubt if, in light of the entire record, the court is convinced that the jury would have reached the same verdict absent the error. There is no eyewitness prerequisite to a finding of harmless error. When the victim’s account is corroborated by numerous other witnesses and the defendant’s account was highly implausible and/or directly refuted by other witnesses, the erroneous exclusion of U Visa evidence is harmless beyond a reasonable doubt. State v. Romero-Ochoa, No. 95905-6 (May 16, 2019). (Pierce County.)

Division Two

Controlled Substances. When a defendant has a previous conviction under chapter 69.50 RCW, RCW 69.50.408 automatically doubles the maximum sentence and the trial court does not have discretion to treat 60 months as the maximum sentence. The standard range for such a defendant is that in the SRA grid. State v. Cyr, COA No. 50912-1-II (May 14, 2019).

Ninth Circuit

Pro Se Criminal Defendants. The defendant, who presented an unorthodox and ultimately unsuccessful defendant was properly found to be competent to represent himself. The trial court did not abuse its discretion when it found that the defendant knowingly and intelligently waived his right to counsel. Equivocal statements made early on in a Faretta hearing will not taint a defendant’s fina, unequivocal waiver of counsel. The trial court was not required to conduct a second Faretta hearing after the defendant filed a motion requesting “a new counsel advisor.” United States v. Audette, No. 17-10017 (9th Cir. May 14, 2019).

American Bar Association

Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses. Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) impose obligations on prosecutors when entering into plea bargains with persons accused of misdemeanors. These obligations include the duty to ensure that each charge incident to a plea has an adequate foundation in fact and law, to ensure that the accused is informed of the right to counsel and the procedure for securing counsel, to avoid plea negotiations that jeopardize the accused’s ability to secure counsel, and, irrespective of whether an unrepresented accused has invoked the right to counsel, to avoid offering pleas on terms that knowingly misrepresent the consequences of acceptance or otherwise pressure or improperly induce acceptance on the part of the accused. American Bar Association Formal Opinion 486 (May 9, 2019).

Virginia State Bar Disciplinary Board

Prosecutor Discipline. A commonwealth attorney received a public reprimand for listening to a jail phone call between a defendant and his attorney, which was recorded because the attorney had not registered his phone number with the jail. Although the attorney’s supervisors concluded that the attorney client privilege was waived as the defendant and the attorney were informed at the beginning of the call that it was being recorded, the disciplinary board found that the commonwealth attorney violated RPC 3.3, which states that “In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” In re Matter of Thacher, VSB Docket No. 18-053-111919 (May 7, 2019).

WEEKLY ROUNDUP FOR MAY 10,2019

Washington Supreme Court

Firearm Rights. The sheriff is not required to issue a concealed pistol licence to an individual whose sealed juvenile record includes adjudications for class A felonies. A sealed juvenile adjudication still exist as a matter of state law. A sealing order does not constitute an expungement of the juvenile offense. A sealed juvenile adjudication still exists, it is merely hidden from the view of the general public. A juvenile’s class A felony adjudication subjects him to federal law which makes it unlawful for him to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Barr v. Snohomish County Sheriff, No. 96072-1 (May 9, 2019). [Editor’s Note: The Court expressly declined to decide whether state law prohibits a juvenile whose class A adjudications have been sealed is prohibited from possessing or carrying a firearm under state law.]. (Snoco Lyndsey Downs)

Adult Sentencing for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. A defendant whose sentence was imposed prior to the issuance of Houston-Sconiers, 188 Wn.2d 1 (2017), which grants to the trial court absolute discretion to depart from the standard sentencing ranges and mandatory sentence enhancements for defendants being sentenced under the SRA for offenses committed prior to their eighteenth birthday, is not entitled to collateral relief unless he can demonstrate by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of sentencing. Because the judge sentenced this defendant to the top of the standard sentencing range, the Court declines to consider whether Houston-Sconiers is a significant material change in the law that applies retroactively to cases on collateral reivew. In re Personal Restraint of Meippen, No. 95394-5 (May 9, 2019). Justices Wiggins, González, Yu and Gordon McCloud dissented on the grounds that Houston-Sconiers is a significant thange of law that applies retroactively on collateral review and that would support a remand for a reference hearing. (King County Ann Summers and Amy Meckling)

Division One

Seizure. The defendant bears the burden of proving a seizure occurred in violation of article I, section 7. A seizure occurs for article I, section 7, when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” The seizure was unlawful as the officers did not observe any defendant-specific conduct prior to approaching the vehicle. State v. Johnson, COA No. 77720-3-I (May 6, 2019).

Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the evidence showed the defendant fractured the victim’s finger, there was no evidence that the defendant knew of and disregarded a substantial risk that he would fracture the victim’s finger when he grabbed the phone from her hand. State v. Melland, COA No. 76617-1-I (May 6, 2019).

Legal Update for Washington State Law Enforcement

The April 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Florida Supreme Court

Judges in Romantic Relationships with Attorneys. A judge must recuse in any case handled by the attorney who is in a romantic relationship with the judge. The judge must disclose the relationship with the attorney in cases where one side is represented by the firm that has a relationship with the attorney. The judge need not automatically recuse from cases involving the firm with whom the attorney is associated so long as it is clearly established that the attorney derives no personal benefit from cases handled by other members of the firm and the judge is careful to observe strict objectivity in ruling on any motions to disqualify that may stem from revealing the relationship. Judicial Ethics Advisory Committee, Opinion No. 2019-16 (Apr. 25, 2019).

WEEKLY ROUNDUP FOR APRIL 26, 2019 & MAY 3, 2019

Washington Supreme Court

Exceptional Sentence. The trial court was not collaterally estopped from imposing an exceptional sentence at a resentencing hearing that was necessitated by the reversal of four of seven convictions, by its decision not to impose an exceptional sentence as the original sentencing hearing. The presumption of judicial vindictiveness does not apply when the overall length of the new sentence is lower than the original sentence. The presumption of prosecutorial vindictiveness does not prevent the State from recommending an exceptional sentence at a resentencing hearing after not requested one at the original hearing, as the prosecutor at each sentencing hearing must decide whether the length of a standard range sufficient given the facts of the case. State v. Brown, No. 95734-7 (May 2, 2019). Justice Gordon McCloud was the lone dissenter.

Clerk’s Bonds. RCW 36.23.020 allows a superior court to increase the amount of the clerk’s bond. The superior court’s authority is not capped by RCW 36.16.050, which limits the maximum bond that a clerk must post before assuming office at the amount set for the treasurer in the same county. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the judges exceeded their statutory authority by ordering the clerk to double the amount of her official bond without any prior notice or opportunity to be heard.

Writs of Prohibition. Whether a writ of prohibition will issue is a narrow inquiry that looks only to the question of power and jurisdiction of an inferior court. A writ will not issue when the petitioner may be able to obtain relief through a preliminary injunction and declaratory judgment. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the extraordinary circumstances presented support the extraordinary remedy of prohibition.

On April 30, 2019, the Washington Supreme Court accepted review in the following matters:

Aggravated First Degree Murder and “Juveniles.” State v. Delbosque, No. 96709-1. Mason County– State’s Petition for Review. Issues presented: (1) Whether the Court of Appeals improperly vacated the trial court’s minimum term for a “juvenile” convicted of aggravated first degree due to its misallocation of the burden of proof and persuasion, by treating age as a per se mitigating factor, and by misapplying the standard of review. (2) Whether the defendant has a constitutional right to appeal his minimum term. COA opinion reported at 6 Wn. App. 2d 407 (2018). Petition for review pleadings available here.

Duty to Investigate. Wrigley v. State of Wash., DSHS, No. 96830-6. Government’s Petition for Review. Issues presented: Whether RCW 26.44.010 and .050 require an investigation of allegations of possible future abuse or neglect. COA opinion reported at 5 Wn. App. 2d 909 (2018) Petition for review pleadings available here.

Single Subject Requirement. Am. Hotel & Lodging Ass’n. v. City of Seattle, No. 96781-4. Government’s Petition for Review. Issues: Whether Seattle’s I-124, violates the City’s single subject requirement? COA opinion reported at 6 Wn. App. 2d 928 (2018). Petition for review pleadings available here.

Garnishments. Fireside Bank v. Askins, No. 96853-5. Whether a trial court may enforce the regulatory protections of the Collection Agency Act (CAA), when a “collection agency” “collected and attempted to collect, through writs of garnishment,” inflated judgment balances. COA opinion reported at 6 Wn. App. 2d 431 (2018). Petition for review pleadings available here.

Division One

Double Jeopardy. State v. Zhao, 157 Wn.2d 188 (2006), which allows a person to plead guilty to a fictitious crime, does not provide a basis to avoid double jeopardy and convict a person for two crimes based on one criminal act. State v. Robinson, COA No. 76648-1-I (Apr. 22, 2019).

Division Three

Theft of a Motor Vehicle. A snowmobile is not a “motor vehicle” for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle. State v. Tucker, COA No. 35530-6-III (May 2, 2019). Judge Korsmo dissented.

Seizure. A defendant was seized for purposes of the Fourth Amendment when two patrol cars blocked the defendant’s vehicles only exit from a dead end alley and two officers approached the passenger and driver side windows. Since the officers lacked reasonable suspicion of criminal activity, the seizure was unlawful. State v. Carriero, COA No. 35560-8-III (Apr. 25, 2019). Judge Korsmo dissented.

Ninth Circuit

Malicious Prosecution. The reversal of plaintiff’s conviction on basis of the exclusionary rule is not a favorable termination, for purposes of a malicious prosecution claim, because the reversal does not address plaintiff’s guilt or innocence. Mills v. City of Covina, No. 17-56343 (9th Cir. Apr. 24, 2019).

Sixth Circuit

Parking Enforcement. The common parking enforcement practice known as “chalking,” whereby parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked, is a search that is subject to the Fourth Amendment. Neither the automobile exception nor the community caretaking exceptions to the warrant requirement supports chalking. Taylor v. City of Saginaw, No. 17-2126 (6th Cir. Apr. 22, 2019).

WEEKLY ROUNDUP FOR APRIL 19, 2019

Washington Supreme Court

Obstruction Conviction. RALJ court’s ruling upholding the obstruction conviction affirmed by an equally divided court. Justice Madsen recused herself and no pro tem justice replaced her. See State v. Beck, 56 Wn.2d 474 (1960) (when one justice has recused herself from participating in the decision and the remaining eight justices are equally divided in their decision, the judgment of the trial court stands).

Justices González, Fairhurst, Johnson and Gordon McCloud would hold that a person cannot be convicted of obstructing for refusing to open the door to officers who have a lawful right to make a warrantless entry pursuant to the community caretaking exception to the warrant requirement. These four justices do not agree that a person has a duty to comply with the police’s demand to open the door under these circumstances, and that conduct that amounts to passive delay will not sustain an obstruction charge.

Justices Stephens, would hold that a person’s refusal to obey lawful commands to take a specific action is conduct sufficient to support an obstruction conviction, and that the officers’ orders to open the door were lawful under the community caretaking exception to the warrant requirement. No constitutional or free speech rights allowed the defendant to refuse the polices’ demand to open the door under the facts of this case. City of Shoreline v. McLemore, No. 95707-0 (Apr. 18, 2019).

Waiver of Counsel. A trial court does not abuse its discretion by denying a competent defendant’s request to represent himself, where the defendant’s responses during the waiver of counsel colloquy indicates a lack of understanding of the consequences. In this case, the defendant indicated that the criminal charges did not pertain to him as he did not enter into a contract with the State and he was not a corporation. State v. Burns, No. 95528-0 (Apr. 18, 2019).

Confrontation Clause Violation. A defendant must raise an objection at trial or waive the right of confrontation. “[R]equiring an objection is in the interests of judicial efficiency and clarity, and provides a basis for appellate courts to review a trial judge’s decision. Where a defendant does not object at trial, ‘nothing the trial court does or fails to do is a denial of the right, and if there is no denial of a right, there is no error by the trial court, manifest or otherwise, that an appellate court can review.’” State v. Kronich, 160 Wn.2d 893 (2007), is abrogated to the extent its analysis is inconsistent with the waiver approach. State v. Burns, No. 95528-0 (Apr. 18, 2019). Justices Stephens, Madsen, Gordon McCloud and Wiggins concur with the result but disagree with the waiver rule.

Legal Financial Obligations. Social Security Act’s antiattachment statute, 42 U.S.C. § 407(a), does not prohibit the imposition of the mandatory crime victim fund assessment. The sentencing court, however, may not impose a payment schedule while the defendant’s only source of income is social security disability. The county clerk may require the defendant to provide proof that his only assets and income are derived from social security disability benefits. State v. Catling, No. 95794-1 (Apr. 18, 2019). Justice González authored the dissenting opinion which was joined by Justice Yu and Gordon McCloud.

Exclusionary Rule. The proper remedy following suppression of evidence by an appellate court is to vacate the convictions that depended upon the illegally collected evidence and to remand to the trial court for further proceedings. State v. McKee, No. 96035-6 (Apr. 18, 2019).

Ninth Circuit

Immigration Enforcement. United States is not entitled to a preliminary injunction suspending a California statute that limits the cooperation between state and local law enforcement and federal immigration authorities. The statute which prohibits California law enforcement agencies from (1) “‘[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination,” (2) “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public,” and (3) “[p]roviding personal information . . . about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public,” is consistent with California’s prerogatives under the Tenth Amendment and the anti-commandeering rule. United States v. State of California, No. 18-16496 (9th Cir. 2019).

WEEKLY ROUNDUP FOR APRIL 12th, 2019

Washington Supreme Court

Landlord Liability. A property owner-landlord is liable for injuries that occur on its property when the lessee has exclusive possession at the time of the accident but only priority use under the lease and the landlord has contracted to maintain and repair the premises. Adamson v. Port of Bellingham, No. 96187-5 (Apr. 11, 2019).

Division One

Necessity Defense. A defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to tender his common law necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change. State v. Ward, COA No. 77044-6-I (Apr. 8, 2019).

Self-Defense. Although the lawfulness of the defendant’s first “warning shot” was not at issue, the giving of a first aggressor instruction without an accompanying lawful defense of another instruction prejudiced the defendant’s ability to argue his theory of the case. State v. Espinosa, COA No. 76894-8-I (Apr. 8, 2019).

Division Two

Mandatory Legal Financial Obligations. A trial court need not consider a defendant’s past, present, or future ability to pay when it imposes the mandatory victim penalty assessment. The trial court may not remit the mandatory LFOs. Imposition of the mandatory LFOs does not violate a defendant’s right to due process. A county clerk possesses the authority to require a defendant to annually verify her SSI status. Requiring a defendant to annually verify her SSI status is not an “enforcement action” that will trigger an inquiry into a defendant’s ability to pay. State v. Conway, COA No. 50032-9-II (Apr. 9, 2019).

Division Three

Cannabis and Zoning. Neither Washington’s Growth Management Act, chapter 36.70A RCW, nor the State’s marijuana licensing laws require the Washington State Liquor and Cannabis Board to defer to local zoning laws when making licensing decisions. While the Board may consider zoning restrictions in making licensing decisions, doing so is not required under current marijuana law. A license does not authorize the siting of a marijuana business, zoning laws remain in full force regardless of whether a license is issued. Kittitas County v. Washington State Liquor and Cannabis Board, COA No. 35874-7-III (Apr. 11, 2019).

“Profile Testimony.” Defense counsel provided constitutionally inadequate representation by failing to object to “profile testimony” at trial. While the State may admit evidence about the inability of a felon to lawfully obtain a gun, evidence of the high probability that any gun possessed by a felon is stolen or that one possessing a stolen firearm is likely to flee and discard the firearm when approached by a law enforcement officer constitutes improper “profile testimony” that implicates ER 402, 403, 404(b), and 702. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented. [Editor’s note: The majority’s ruling conflicts with Division II’s opinion in State v. Avendano-Lopez, 79 Wn. App. 706 (1995).]

Offender Scores. The State must produce evidence to support the existence of prior convictions at sentencing. Pre-sentencing discussions of prior history and defense counsel’s acknowledgment of the State’s offender score will not substitute. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented.

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The January 2019 Law Enforcement Digest is now available.

Articles of Interest

Locked Phones, Computers, or Files. How to resolve a defendant’s assertion of his Fifth Amendment rights when law enforcement seeks to compel the defendant to provide a password for a locked device collected pursuant to a search warrant. Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Texas L. R. 768 (2019)

WEEKLY ROUNDUP FOR APRIL 5, 2019

Washington Supreme Court

Aggravated First Degree Murder Sentences and “Juveniles.” A judge has discretion to restructure a defendant’s entire sentence when setting a new minimum term pursuant to RCW 10.95.035 for a defendant who was convicted of additional crimes.. Regardless of any limitations contained in the relevant statutes, the trial court may find an exceptional sentence is warranted and it may adjust the standard sentence to provide for a reduced term or years, for concurrent rather than consecutive sentences, or for both. State v. Gilbert, No. 95814-9 (Apr. 4, 2019).

This week the Court granted review in the following matters:

DUI “Prior Offenses.” State v. Wu, No. 96747-4. King County. Questions presented: Whether a prior conviction meets the definition in RCW 46.61.5055(14)(a)(xii) is a question for the jury or a threshold question for the court in a felony DUI prosecution? COA opinion reported at 6 Wn. App. 2d 679 (2018). Petition for review pleadings available here.

Double Jeopardy and Standard of Review for Constitutional Claims. State v. Arndt, No. 95396-1. Kitsap County. Questions presented: Does the double jeopardy clause apply to aggravating circumstances? Does double jeopardy prohibit conviction for both aggravated first degree murder and arson, where the aggravating circumstance and the arson conviction are based on the same evidence? Did the trial court violate the defendant’s constitutional right to present a defense by excluding some of her expert’s testimony and must this error be reviewed de novo? COA opinion is unpublished. Petition for review pleadings available here.

Unlawful Practice of Law. State v. Yishmael, No. 96775-0. King County. Questions presented: Is unlawful practice of law a strict liability crime. Is the term “practice of law” unconstitutionally vague? Is it improper to use a court rule as the basis of a jury instruction defining the practice of law? COA opinion reported at 6 Wn. App. 2d 203 (2018). Petition for review pleadings available here.

Campaign Finance Disclosure Laws. State v. Grocery Mfrs. Ass’n, No. 96604-4. Questions presented: Whether the Grocery Mfrs. Ass’n, is a “political committee” under the Fair Campaign Practices Act (“FCPA”). Whether enforcement of the FCPA violated the First Amendment in this case. Whether the penalty imposed for the violations of the FCPA should be trebled. COA opinion reported at 5 Wn. App. 2d 542 (2018). Petition for review pleadings available here.

Taxation. First Student, Inc. v. State of Wash. Dep’t of Revenue, No. 96694-0. County. Questions presented: Whether assessment of business and occupation taxes upon a company that provides transportation services for compensation to organizations including school districts, youth groups, summer camps, and churches is proper. COA opinion reported at 4 Wn. App. 2d 857 (2018). Petition for review pleadings available here.

Division Two

Access Device. An access device need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner. The jury instruction defining “can be used” which was based on State v. Schloredt, 97 Wn. App. 789 (1999), was not an improper comment on the evidence. State v. Sandoval, COA No. 50814-1-II (Apr. 2, 2019).

Water Rules. The Department of Ecology has the authority to promulgate administrative rules that establish minimum instream flows for a river, require mitigation and metering for all new water appropriations, including permit exempt wells, and closes the basin to new surface water withdrawals for part of the year. DOE was not required to consider the “cost” of lost legal rights for potential drillers of future permit exempt wells in its least-burdensome alternatives and cost-benefit analyses. Bassett v. Department of Ecology, COA No. 51221-1-II (Apr. 2, 2019).

SEPA. The City of Puyallup is an “agency with jurisdiction” that can assume lead agency status under WAC 197-11-948 over a development that is outside the City’s limits but within the City’s Growth Management Urban Growth Area, as the City has approval and permitting authority over roadwork and sewer and water services that are part of the proposal. The City may assume lead agency status following the County’s issuance of a mitigated determination of nonsignificance. City of Puyallup v. Pierce County, COA No. 51501-6-II (Apr. 3, 2019).

Division Three

Community Custody Conditions. A claim that conditions of community custody are not related to the circumstances of the crime will not be considered for the first time on appeal where the defendant informed the sentencing judge that he had no objection to the conditions. The phrase “dangerous weapon” is not unconstitutionally vague when it appears with an illustrative list: “dangerous weapons such as hunting knives or a bow and arrow.” The phrase “paraphernalia for the use of controlled substances” is not unconstitutionally vague. “Romantic” in the phrase “of any romantic or sexual relationship” is problematic; the better choice is “of any dating relationship or sexual relationship.” A condition that required the defendant to obtain approval from his corrections officer before engaging in volunteer, church, and travel activities must be modified to provide the corrections department with ascertainable standards to guide its enforcement of the provision. State v. Casimiro, COA No. 35680-9-III (Apr. 2, 2019).

Legal Update for Washington State Law Enforcement

The March 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Eighth Amendment and the Homeless. The Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Martin v. City of Boise, No. 15-35845 (9th Cir. Apr. 1, 2019) (amended opinion).

WEEKLY ROUNDUP FOR MARCH 29, 2019

Washington Supreme Court

RAP 3.1 “Aggrieved Party.” A party is not aggrieved by a favorable decision and cannot properly appeal from such a decision. A party may only appeal if one’s personal rights or pecuniary interests have been adversely affected. Inconvenience alone will not render someone an “aggrieved party.” Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Public Interest Exception to Mootness. Matters of statutory interpretation will likely satisfy the public interest exception to the mootness doctrine as the issues are likely to arise again and a definitive answer would be helpful to public officials. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Stays in Unlawful Detainer Cases. A court may stay execution of a writ of restitution after a default judgment is entered in an unlawful detainer case while resolving whether good cause is shown for vacation of the default judgment. The superior court’s inherent equitable authority allows granting an ex parte stay of a default judgment issuing a writ of restitution. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Division One

Therapeutic Courts. RCW 2.30.030 does not allow a trial court to admit a defendant to a therapeutic court without the prosecuting attorney’s consent. Trial court judges, however, do have discretion to establish eligibility criteria and to decline to accept cases. State v. Daniels, COA No. 78154-5-I (Mar. 25, 2019).

Seizure. An officer does not seize a person by entering a home if a person with authority to consent to the entry does so, regardless of whether the officer advised the person of his right to refuse consent. A suspect who is free to ask the officer to leave or to move to a different room is not seized for purposes of article I, section 7. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).
Miranda. The single officer’s failure to provide Miranda warnings until he said he was going to arrest the defendant does not provide grounds for suppressing the defendant’s confession, when the officer’s conduct did not create a “police dominated atmosphere” that would support a finding of “custody.” State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).

Interview of Allegedly Abused Children. Neither a violation of RCW 26.44.030 nor RCW 26.44.100, which establish guidelines for investigation of alleged abuse will support the suppression of evidence that might establish that abuse was occurring. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).

Division Two

Coercive Contempt. The trial court did not err by denying a sexually violent predator (SVP) detainee’s motion to lift the contempt sanction imposed for his failure to participate in evaluations with the State’s experts, as the contemnor still has the ability to comply. The contemnor’s ability to purge his contempt does not rest upon the actions of third parties, where the State’s experts will perform the evaluation as soon as the contemnor signs the required forms. To the extent the contemnor believes that complying with the superior court’s order infingers upon his rights, his remedy for that complaint is to ask the superior court to address the specific issues, not to aks that the contempt be lifted. In re Detention of Faga, COA No. 50077-9-II (Mar. 26, 2019).

Ninth Circuit

Tribal Police. The exclusionary rule applies in federal court prosecutions to evidence obtained in violation of the Indian Civil Rights Act’s (ICRA) Fourth Amendment counterpart. A tribal officer may rely on a detainee’s response when asking about Indian status in order to determine jurisdiction, but the officer “cannot presume for jurisdictional purposes that a person is a non-Indian – or an Indian– by making assumptions based on that person’s physical appearance.” A tribal officer, who fails to determine whether the person he stopped on a public, nontribal highway crossing a reservation without ascertaining whether the defendant is an Indian will violate the ICRA’s Fourth Amendment parallel if, under the law of a founding era, the tribal officer engages in actions that a private citizen could not lawfully take. In the instant case, the tribal officer’s two searches of the detained non-Indian defendant’s truck could not have been lawfully undertaken by a private citizen under the laws of the founding era. United States v. Cooley, No. 17-30022 (9th Cir. Mar. 21, 2019). [Editor’s Note: This opinion does not alter a tribal officer’s authority to detain a non-Indian who has apparently violated a state law for a reasonable time in order to turn him over to state authorities. See generally State v. Schmuck, 121 Wn.2d 373 (1993).]

WEEKLY ROUNDUP FOR MARCH 22, 2019

United States Supreme Court

Treaty Travel Rights. The Yakama Treaty’s provision guaranteeing “the right, in common with citizens of the United States, to ravel upon all public highways” does not exempt individual Yakama members from state laws designed to protect the Yakama’s ability to travel safely alongside non-Indians on the highways. Washington State Department of Licensing v. Cougar Den, Inc., No. 16-1498 (Mar. 19, 2019).

Washington Supreme Court

Frye and ER 702. Trial courts should admit evidence under Frye if the scientific community generally accepts the science underlying an expert’s conclusion. Frye does not require every deduction drawn from generally accepted theories to be generally accepted. It does not matter, for Frye purposes, that more investigation and research in the future will likely lead to even better results. A trial court’s decision to admit expert testimony is reviewed under the abuse of discretion standard which can result in exclusion of testimony in one case and its admission in another case. L.M. v. Hamilton, No. 95173-0 (Mar. 21, 2019). Justices González, Johnson and Stephens concurred in the result only.

Division One

Voluntary Intoxication Defense in Civil Cases. A trial court abuses its discretion by excluding evidence of the plaintiff’s blood alcohol level when the affirmative defendant of voluntary intoxication under RCW 5.40.060(1) has been pled. Gerlach v. The Cove Apartments, LLC, COA No. 77179-5-I (Mar. 18, 2019).

Division Two

Involuntary Treatment. RCW 71.05.050 authorizes a medical center to initially detain an individual until the hospital staff has the opportunity to evaluate the person only if it has some legitimate basis grounded in the requirements of RCW 71.05.050 to involuntarily detain the person at triage. Dalen v. St. John Medical Center, COA No. 50391-3-II (Mar. 19, 2019).

Hostile Work Environment Claims. A public defender’s claim against the Public Defender Association (PDA) under the Washington Law Against Discrimination (WLAD) for hostile work environment, based upon the actions of one of her clients, can proceed because an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace when the employer does not take immediate and/or corrective actions when it knows about the harassing conduct. The Industrial Insurance Act (IIA) doe not bar the employee’s negligence claim because it is not clear that the employee’s PTSD and related injuries constitute a compensable “injury” under the IIA. LaRose v. King County, COA No. 50858-3-II (Mar. 19, 2019).

WEEKLY ROUNDUP FOR MARCH 15, 2019

Washington Supreme Court

Contempt. This case concerns contempt sanctions imposed against the Department of Social and Health Services (DSHS) for failing to timely complete competency evaluations for criminal defendants. A court’s oral ruling determining contempt and imposing remedial sanctions triggers the running of the contempt sanctions. The State is not required to pay interest on the accrued contempt sanctions. State v. Sims, No. 95479-8 (Mar. 14, 201. Argued Sept. 20, 2018. [Editor’s Note: The Court’s analysis re interest should apply equally to awards under the Public Records Act.]

Jail Medical Costs. In the absence of a prior interlocal agreement, a county is not entitled to seek reimbursement from cities for the cost of medical services provided to jail inmates who were (1) arrested by city officers and (2) held in the county jail on felony charges. Thurston County v. City of Olympia, No. 95586-7. Argued Feb. 21, 2019).

Division Two

Credit for Presentence Electronic Home Monitoring. The 2015 amendment to RCW 9.94A.505 precludes felons convicted of violent crimes from receiving credit for time served on electronic home monitoring (EHM) before sentencing. The denial of credit for presentence EHM does not violate the prohibition against double jeopardy and does not violate violent offenders’ equal protection rights. State v. Kim, COA No. 50951-2-II (Mar. 8, 2091).

Division Three

Marijuana and Necessity. A defendant in possession of more than 40 grams of marijuana (in this case 1800 grams) who asserts a necessity defense must present a medical expert witness to support the defense. The trial court d did not abuse its discretion by precluding the defendant’s expert from testifying where the proposed expert testimony was first disclosed after the State rested. State v. Ruelas, COA No. 35029-1-III (Mar. 12, 2019).

Preliminary Appearances. The superior court retains authority to hold a preliminary hearing and enter related orders, even after a district court case has been filed and the district court has assumed exclusive original jurisdiction over the trial process. A district court may not refuse to accept preliminary appearance hearing orders from the superior court. State v. Stevens County District Court Judge, COA No. 35966-2-III (Mar. 12, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The December 2018 Law Enforcement Digest is now available.

New York City Bar

RPC 3.3(f). Rule 3.3(d) of the New York Rules of Professional Conduct, which is identical to Washington RPC 3.3(f), requires a lawyer to disclose to the tribunal material facts, including adverse facts, “that will enable the tribunal to make an informed decision.” While the disclosure obligation does not apply to proceedings in which an opposing party appearing pro se is absent by choice, the rule applies where the adverse party has not been provided with notice, an opportunity to be heard on the application and time to appear, as well as to proceedings, such as search warrant applications, in which interested parties are not permitted to receive notice and to participate. New York City Bar Professional Ethics Committee, Defining “Ex Parte Proceeding” Under Rule 3.3(d), Formal Opinion 2019-1 (Feb. 4, 2019).

WEEKLY ROUNDUP FOR MARCH 8, 2019

Washington Supreme Court

This week the Washington Supreme Court accepted review in the following matters:

Pro Se Defendants. State v. Davis, No. 96663-0. King County–State’s Petition. Issues: Under what circumstances does a pro se defendant voluntarily leave trial court proceedings? What is the standard of review on appeal when a pro se defendant claims his departure from the courtroom was not voluntary? Under what circumstances may a trial court remove a pro se defendant from the courtroom against his will, and what standard of review applies to such a removal? COA opinion reported at 6 Wn. App. 2d 43 (2018). Petition for review is available here.

Incompetency. State v. McCarthy, No. 96653-2. Spokane County–State’s Petition. Issues: Under what circumstances, if any, should the trial court order another competency evaluation of an accused after a jury finds the accused competent to stand trial? COA opinion is reported at 6 Wn. App. 2d 94 (2018). Petition for review pleadings available here.

Rendering Criminal Assistance. State v. Davis, No. 96599-4. State’s Petition – Kitsap County. “State’s petition for review granted; Pry’s petition for review denied; motion to consolidate denied.” Issues: Whether a charging document for first degree rendering criminal assistance must include language from definitional statutes to be constitutionally adequate. COA opinion is unreported. Petition for review pleadings available here.

Building Permits and 42 U.S.C. § 1983. Church of the Divine Earth v. City of Tacoma, No. 96613-3. “Granted only as to whether the city is liable for damages because it knew or should have known its action was unlawful.” COA opinion reported at 5 Wn. App. 2d 471 (2018). Petition for review pleadings available here.

State Recovery for Bridge Collapse. State Dep’t of Transp. v. Mullen Trucking 2005, LTD., No. 96538-2. Issues: Whether RCW 46.44.020 grants the State immunity from liability when a motorist strikes overhead structures with more than 14 feet of clearance. Does the statute prevent the State’s fault from being allocated for purposes of determining the comparative fault of the parties? COA opinion reported at 5 Wn. App. 2d 787 (2018). Petition for review pleadings available here.

Public Records Act. Serv. Emps Int’l Union Local 925 v. Dep’t of Early Learning, No. 96578-1. Issue Whether Initiative 1501 applies to public records act request that were still pending on the day the Initiative became effective or only to requests made after the effective date of the initiative. COA opinion is unpublished. Petition for review pleadings available here.

Division Three

Possession With Intent Jury Instructions. The identity of the controlled substance should appear in the elements instruction for the charge of possession with intent to deliver. When the jury’s verdict includes the identity of the controlled substance, its omission from the “to convict” instruction is harmless as to the defendant’s sentence. State v. Rivera-Zamora, COA No. 35184-0-III (Mar. 7, 2019).

Judge’s Comments Regarding Credibility Determinations. A veteran trial judge’s comments regarding her experience, as well as in the case law, that disclosure discrepancies by young children are not uncommon does not implicate ER 201. The judge did not treat this information as a “fact,” merely offering it to explain her reasoning for not being swayed by the defense argument that the child’s story was inconsistent. Judges are allowed to bring their knowledge and understanding of the world into the courtroom. State v. N.B., COA No. 35513-6-III (Mar. 7, 2019). [Editor’s Note: This opinion also includes a concise summary of the correct test to apply to a challenge to the sufficiency of the evidence in light of a defendant’s claim that a witness was not credible.]

Legal Update for Washington State Law Enforcement

The February 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR MARCH 1, 2019

United States Supreme Court

Federal Judges. “[F]ederal judges are appointed for life, not for eternity.” A federal court may not count the vote of a judge who dies before the decision is issued. Yovino v. Rizo, No. 18-272 (Feb. 25, 2019).

Ineffective Assistance of Counsel and Appeals. A presumption of prejudice applies when trial counsel fails to file an appeal as instructed in cases where a defendant signed an appeal waiver. The presumption is appropriate as no appeal waiver serves as an absolute bar to all appellate claims. Garza v. Idaho, No. 17-1026 (Feb. 27, 2019).

Division One

Traffic Stops. The passenger’s consent to a search of her purse was not vitiated by police conduct during the traffic stop. While an officer in a traffic stop may not request identification from a passenger for investigatory purposes absent an independent reason to justify the request, an officer may check the passenger’s identification to determine if the passenger has a valid driver’s license when considering whether to allow the passenger to drive the car from the scene. Once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger if she consented to a search of the purse she left in the car. State v. Lee, COA No. 77038-1-I (Feb. 25, 2019).

Division Three

DOSA. A trial court exceeds its statutory sentencing authority by imposing an additional term of community custody to be served in the event that the defendant fails to complete his or her DOSA program. In re Postsentence Review of Milne, COA No. 36093-8-III (Jan. 17, 2019, publication ordered Feb. 28, 2019).

Ninth Circuit

First Amendment and Unions. Washington’s authorization of an exclusive bargaining representative for subsidized childcare providers did not infringe on the plaintiff childcare provider’s First Amendment rights. The State’s exclusive bargaining arrangement served the compelling—and enduring—state interest of labor peace. Miller v. Inslee, No. 16-35939 (9th Cir. Feb. 26, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 22, 2019

United States Supreme Court

Excessive Fines Clause of the Eighth Amendment. The Excessive Fines Clause of the Eighth Amendment which guards against abuses of the government’s punitive or criminal law-enforcement authority is incorporated by the Due Process Clause of the Fourteenth Amendment and is binding on states. Timbs v. Indiana, No. 17-1091 (Feb. 20, 2019). [Editor’s note: This case is likely to have little impact in Washington. Article I, section 14 of the Washington Constitution already prohibits the imposition of excessive fines and the Washington Supreme Court assumed application of the Eighth Amendment clause to states in 1999. See State v. WWJ Corp., 138 Wn.2d 595, 604 (1999).]

Washington Supreme Court

Collateral Consequences of Convictions. Plurality decision. Lead opinion (Justices Yu, Stephens, Madsen and González): The Department of Early Learning’s (DEL)regulations prohibiting any individualized consideration of a previously convicted person’s qualifications at the administrative level violates a person’s federal right to procedural due process when the person’s conviction is many years old and was committed when the person was in her twenties. Concurring opinion (Justice Gordon McCloud): DEL did not violate the person’s federal right to procedural due process, but did violate her right to substantive due process. DEL may not permanently disqualify the petition based solely on her 1988 conviction. Dissent (Justices Fairhurst, Owens, Wiggins and Johnson): No violation of procedural due process and petitioner has not met the heavy burden of showing that the decision to permanently disqualify her from providing childcare services based on her conviction for the violent crime of attempted robbery is not rationally related to the legitimate government interest in protecting children. Fields v. State Dept. of Early Learning, No. 95024-5 (Feb. 21, 2019).

Statute of Limitations. The statute of limitations is not an essential element of a crime. Including facts related to the statute of limitations in the information may put a defendant on notice of a defense based on the statute of limitations, but their omission does not render an information constitutionally deficient. State v. Merritt, No. 95115-2 (Feb. 21, 2019). Justices Gordon McCloud, Fairhurst and González concurred in the result, but found that the State violated RCW 10.37.050, which requires the charging document to contain sufficient facts to establish that the offense was committed within the statute of limitations. A challenge on statutory grounds, however, must be brought prior to trial through a demurrer or a request for a bill of particulars.

Division One

Juror Compensation. The appellants have failed to show that the low statutory rate of pay for jurors gives rise to a disparate impact claim based on economic status under wither the Washington Law Against Discrimination or the constitution. The fact that jurors or lower economic status will be unable to serve due to the low juror pay does not give rise to an implied disparate impact claim under the amount jurors are paid under the “no juror exclusion” statute, RCW 2.36.080(3). The “no juror exclusion” statute which protects the opportunity to be considered for jury service and imposes the obligation to serve as a juror when summoned, does not guarantee the right to actually serve on a jury when summoned. If “the Appellants premise that economic hardship excusals should be characterized as exclusions that violate RCW 2.36.080(3), the appropriate remedy would be to prohibit economic hardship excusals—it would not be to increase the rate of juror pay.” Because jury service is a civic duty and not employment, jurors are not employees under the Washington Minimum Wage Act (MWA), chapter 49.46 RCW. Rocha v. King County, COA No. 51823-6-II (Feb. 21, 2019). Judge Bjorgen dissented.

Division Two

Inmate Visitation. The Department of Corrections denial of a sex offender’s request for visitation with his minor children did not violate the defendant’s due process rights, as the due process clause does not create a protected liberty interest in prison visitation between an inmate and his children. The sentencing court’s order amending and clarifying the inmate’s sentence is not binding on DOC because the sentencing court did not have personal jurisdiction to order DOC to provide supervised visitation. DOC’s denial of visitation was not arbitrary or capricious. In re Personal Restraint of Gossett, COA No. 49525-2-II (Feb. 20, 2019).

Sealing of Juvenile Record. The offender’s 1993 conviction of indecent liberties by forcible compulsion remains a class B felony that the superior court must seal under the plain language of RCW 13.50.260(4)(b), if the specified statutory conditions are met. Once the record for that conviction is sealed, the conviction is treated as if it never occurred, allowing the offender’s first degree child molestation conviction to be sealed under the plain language of RCW 13.50.260(4)(a). State v. P.M.P., COA No. 50821-4-II (Feb. 20, 2019).

Division Three

Warrantless Breath Tests. A warrantless breath test is allowed under article I, section 7 of the Washington Constitution under the search incident to arrest exception to the warrant requirement. State v. Nelson, COA No. 35273-1-III (Feb. 19, 2019). Judge Lawrence-Berrey dissented.

Pretrial Reform Task Force

Pretrial Reform. The final report of the Task Force lists 19 recommendations in three categories — pretrial services; risk assessment; and data collection. Final Recommendations Report.

Pennsylvania Supreme Court

Prosecutors and Facebook. Prosecuting attorney suspended from the practice of law for one year and one day for improper ex parte contacts and for creating a fictitious Facebook account for the purpose of “liking” establishments suspected of selling illegal bath salts, so that her office could be alerted to events where the establishments provided free “samples,” which could be obtained and tested. Attorney encouraged staff to send “friend” requests from the fictitous Facebook account to criminal defendants and their family members. Facebook conduct violated RPC 8.4(c), 4.3(a), 4.3(c), 5.3(b), 5.3(c)(1) and 5.3(c)(2). Office of Disciplinary County v. Miller, No. 32 DB 2017 (Feb. 8, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 15, 2019

Washington Supreme Court

Amendment of Charges. Plurality opinion. The principles for which there were at least five votes are (1) the Pelkey rule (109 Wn.2d 484 (1987)) that prohibits the State from amending charges after it rests to anything other than a lesser degree or lesser included offense is a bright line rule that requires a formal announcement from the State that it “rests its case,” (concurring and dissenting justices) and (2) CrR 2.1(d) is violated as the defendant is actually prejudiced when the State amends the information prior to resting and the amendment adds a new element that the defendant could not address in his voir dire, opening statement, or cross-examination of any of the State’s witnesses. (concurring and lead justices). State v. Gehrke, No. 95635-9 (Feb. 14, 2019). Lead opinion authored by Justice Wiggins and joined by Justices Madsen, Stephens, and Gordon McCloud. Concurring opinion authored by Chief Justice Fairhurst and joined by Justice Owens. Dissenting opinion authored by Justice González and joined by Justices Johnson and Yu.

DOSA. While a trial court can waive imposition of a sentence within the standard range, the trial court may not “waive” sentence enhancements or portions of the base sentence to get to a range that is low enough to accommodate the residential-based DOSA’s sentence-length prerequisites. If the base sentence range plus enhancements results in a midpoint of the standard range sentence that exceeds 24 months, the court may impose only a prison-based DOSA. State v. Yancy, No. 95992-7 (Feb. 14, 2019).

Division Three

Prosecuting Attorney Conflicts. When an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation. A prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest. The elected prosecuting attorney’s recusal from the case and lack of participation at any time during tenure as the prosecuting attorney is insufficient to allow the office to remain on the case. State v. Nickels, COA No. 35369-9-III (Feb. 7, 2019). Judge Korsmo dissented.

Restitution and Possession of Stolen Property. Restitution in possession of stolen property cases is limited to damage that the State can prove was caused by the defendant’s conduct. The State is not relieved of this burden simply because the property possessed by the defendant was stolen recently. State v. Romish, COA No. 35643-4-III (Feb. 7, 2019). Judge Korsmo dissented.

Legal Update for Washington State Law Enforcement

The January 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR FEBRUARY 8, 2019

Washington Supreme Court

Gunwall and Art. I, § 7. A Gunwall analysis is not required to justify an independent analysis of article I, section 7 in new contexts. It is not sufficient, however, “for parties to simply ‘mention our state constitution in their briefs’ and note that article I, section 7 is often more protective than the Fourth Amendment.” “Parties must provide argument and relevant authorities supporting the specific outcome they seek in light of ‘the constitutional text, the historical treatment of the interest at stake as reflected in relevant case law and statutes, and the current implications of recognizing or not recognizing an interest.’” State v. Mayfield, No. 95632-4 (Feb. 7, 2019).

Attenuation Doctrine. To comply with the heightened protections of article I, section 7, the attenuation doctrine must be narrow and apply only where intervening circumstances have genuinely severed the causal connection between official misconduct and the discovery of evidence.

We caution that the attenuation doctrine we adopt today must be narrowly and carefully applied. The State bears the burden of proving that the attenuation doctrine applies and that evidence is admissible despite a violation of article I, section 7. Armenia, 134 Wn.2d at 14. To meet its burden, the State must prove that unforeseen intervening circumstances genuinely severed the causal connection between official misconduct and the discovery of evidence. The State cannot meet its burden by merely showing that there are one or more additional proximate causes of the discovery of evidence. The question of whether intervening circumstances constitute a superseding cause is a highly fact-specific inquiry that must account for the totality of the circumstances, just as it is in the context of tort law. See Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254 (1975).

We also caution that the narrow attenuation doctrine we adopt today is entirely independent of the modem attenuation doctrine used by federal courts. As such, it is irrelevant to our state attenuation doctrine whether suppression in one case will deter similar misconduct in the future. It is also irrelevant whether the officer’s misconduct was merely negligent or was instead flagrant and purposeful. The only question is whether unforeseeable intervening actions genuinely severed the causal connection between official misconduct and the discovery of evidence.If not, then the attenuation doctrine does not apply, and the evidence must be excluded in accordance with article I, section 7 and our state exclusionary rule.

The newly adopted narrow state attenuation doctrine is not satisfied by an unlawfully detained suspect’s consent to search after Ferrier warnings. State v. Mayfield, No. 95632-4 (Feb. 7, 2019). Justice Johnson authored a concurring opinion.

This week the Court granted review in the following cases this week:

Persistent Offenders and Cruel Punishment. State v. Moretti, No. 95263-9. Grays Harbor County. “Granted on persistent offender sentence issue only.” Questions presented: (1) Does the Persistant Offender Accountability Act violate Article I, § 14, and the less-protective Eighth Amendment because it does not allow the sentencing court to consider the characteristics of the offender and his relative youth and culpability at the time of the commission of a predicate crime? (2) Should an additional factor be added to the Fain test: whether the sentence is proportional in light of the characteristics of the offender? (3) Whether automatic imposition of life without the possibility of parole based on a “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.

Persistent Offenders and Cruel Punishment. State v. Nguyen, No. 95510-7. King County. “Granted only as to the issue of whether the persistent offender sentence is cruel & unusual punishment.” Question presented: “Where Nguyen was only 20 years old when he committed one of the predicate offenses, did imposition of a life sentence constitute cruel punishment in violation of the federal and Washington constitutions?” COA opinion is unpublished. Petition for review pleadings available here.

Persistent Offenders and Cruel Punishment. State v. Orr, No. 96061-5. Spokane County. “Granted only as to the persistent offender issue.” Question presented: Whether automatic imposition of life without the possibility of parole based on a predicate “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.

Restitution. State v. Barbee, No. 96490-4. King County. “Granted only on the issue of whether the trial court had authority to enter a second restitution award.” Question presented: When an appellate court remands a case for resentencing may the court of appeals enter a new restitution order? COA opinion is unpublished. Petition for review pleadings available here.

Insurance Reimbursement. Group Health Cooperative v. Coon, No. 96516-1. COA opinion reported at 4 Wn. App. 2d 737 (2018). Petition for review pleadings available here.

Division One

Ex Post Facto and Community Custody. It violates the ex post facto clause to replace the variable term of community custody authorized by former RCW 9.94A.715(1) (2006), with the fixed term set by Laws of 2009, ch. 375, § 5. This is true even though the fixed term is the midpoint of the previously applicable variable range. In re Personal Restraint of Alston, COA No. 76497-7-I (Feb. 5, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 1, 2019

Washington Supreme Court

Coroner Subpoena Power. A medical examiner or coroner (collectively “coroner”) must request a jury from the superior court before an inquest can begin. A coroner has the power to issue a subpoena only once he or she has requested a jury. who never begins an inquest does not have authority to issue a subpoena. Once an inquest is properly begun, the subpoena power granted by RCW 36.24.050 includes the power to bring a witness in to testify and the power to require a witness to bring physical items with him or her. A coroner may demand only that the witness bring the evidence to the inquest jury. The coroner is not entitled to summon the witness or the evidence to his or her office. BNSF Railway Company v. Clark, No. 95015-6 (Jan. 31, 2019).

Sexual Harassment and Employer Liability. Under the plain language of the Washington Law Against Discrimination, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation. Floeting v. Group Health Cooperative, No. 95205-1 (Jan. 31, 2019). Justices Madsen and Wiggins dissented.

Division Two

Early Release of “Juvenile Offenders.” Under RCW 9.94A.730(3), which allows an individual who has been sentenced under the Sentencing Reform Act for crimes committed prior to his/her eighteenth birthday to petition the Indeterminate Sentencing Review Board (ISRB) for release after 20 years of confinement, does not allow the ISRB to delay release and to impose pre-release conditions after it finds that an individual is not likely to reoffend. The offender in this case, however, is not now entitled to release because the ISRB subsequently found that he was likely to commit new criminal law violations based upon his subsequent conduct. In re Personal Restraint of Pugh, COA No. 50055-8-II (Jan. 29, 2019). Judge Lee dissented, contending that the offender was entitled to immediate release.

Division Three

Firearms and Terry Stops. The presence of a firearm in public is insufficient, standing alone, to support an investigatory stop. The presence of an individual openly carrying a handgun in a “high-risk setting,” is insufficient, standing alone, to support an investigatory stop. State v. Tarango, COA No. 35305-2-III (Jan. 31, 2019).

Police Department Policies and Local Initiatives. A local initiative may not be used to repeal an ordinance that codifies the city police department’s policy limiting questioning of individuals about immigration status and citizenship status. Global Neighborhood v. Respect Washington, COA No. 35528-4-III (Jan. 29, 2019).

Eleventh Circuit

Prosecutors and First Amendment Retaliation. A district attorney’s false statement made in retaliation for a former exonerated prisoner’s attempts to obtain legislative compensation for his wrongful convictions violated the prisoner’s First Amendment rights. The prisoner, however, is not entitled to compensation because the prisoner’s right to be free from retaliation under the First Amendment was not clearly established when the district attorney made the statement. Echols v. Lawton, No. 17-13843 (11th Cir. Jan. 25, 2019).

WEEKLY ROUNDUP FOR JANUARY 25, 2019

Division Two

“Free Crimes Aggravating Factor. The free crimes aggravator, RCW 9.94A.535(2)(c), applies when a defendant is charged with two current offenses and only one offense would go unpunished. State v. Smith, COA No. 50397-2-II (Jan. 23, 2019).

Public Records and Sex Offenders. Neither SSOSA or SSODA evaluations are exempt from disclosure. under the Uniform Health Care Information Act. Information in sex offender registration forms are not exempt under RCW 42.56.230(7)(a). RCW 42.56.230(7)(a) only exempts personal information that is actually submitted as part of an application for a driver’s license or identicard. RCW 4.24.550 is not an “other statute” that bars release of sex offender registration records. Juvenile records not found within the official juvenile court file are confidential under ch. 13.50 RCW and subject to the “other statute” exemption to the PRA. SSODA evaluations are exempt from disclosure under the “other statute” exemption as they are not part of the official juvenile court file. The Criminal Records Privacy Act does not mandate the release of juvenile SSODA records as the Act does not supplant ch. 13.50 RCW. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Public Records Act. An agency is not required to first identify an exemption to disclosure before providing third-party notification of a PRA request pursuant to RCW 42.56.520(2). An agency does not “deny” access to records until it finishes producing all responsive documents. Accordingly, a requester may not initiate a lawsuit to compel compliance with the PRA until after the agency finishes producing all responsive documents. An agency is not required to provide records by e-mail or “the cloud.” Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Pseudonyms. The superior court erred by allowing sex offender registration complain level 1 sex offenders to proceed as Does in their action to prevent disclosure of records under the Public Records Act (PRA), without first conducting an Ishikawa analysis. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Involuntary Commitment. A superior court is not required to consider voluntary treatment status when determining continued commitment under RCW 71.05.280. In re Detention of S.B., COA No. 50856-7-II (Jan. 23, 2019).

Ninth Circuit

Tribal Sovereign Immunity and Contracts. A tribe’s anticipatory defense of sovereign immunity to a state court lawsuit arising from a particular contract with the State of Washington, does not form a basis for federal question jurisdiction. Stillaguamish Tribe of Indians v. State of Washington, No. 17-35722 (9th Cir. Jan. 22, 2019).

WEEKLY ROUNDUP FOR JANUARY 18, 2019

Division Three

Signaling Turns. RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. A driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed. State v. Brown, COA No. 35304-4-III (Jan. 17, 2018). Chief Judge Lawrence-Berrey dissented.

Public Records Act. A requester need not initiate legal action in order to be a prevailing
party entitled to fees under RCW 42.56.550(4). The requester substantially prevailed against the County’s request to withhold attorney invoices in their entirety and on his claim that the County must submit its proposed redactions to the court when requested in camera review. Asotin County v. Eggleston, COA No. 35720-1-III (Jan. 17, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is November 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.

Ninth Circuit

Vehicle Stops. Law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense. United States v. Landeros, No. 17-10217 (9th Cir. 2019).

WEEKLY ROUNDUP FOR JANUARY 11, 2019

United States Supreme Court

Qualified Immunity. The Ninth Circuit erred by applying a high level of generality to a question of qualified immunity. Rather than looking at the “right to be free of excessive force,” the court should have looked at whether clearly established law prohibited the officers from stopping and taking down a man in the specific circumstances presented in the case. Escondido v. Emmons, No. 17-1660 (Jan. 7, 2019).

Washington Supreme Court

Law of the Case Doctrine and Accomplice Liability. The State’s identification by name of the victim of the assault did not require the State to prove that the accomplice knew the names of all potential victims. All the State needed to prove was that the defendant had general knowledge of her coparticipant’s substantive crime. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).

Sealing of Appellate Court Briefs. The defendant’s motion to seal those portions of the briefing that contained argument regarding her financial circumstances and ability to pay appellate costs was properly denied as the defendant did not establish that failure to seal would result in a “serious and imminent threat” to her interest. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).

The Supreme Court granted review of the following cases this week:

Public Records. Hoffman v. Kittitas County, No. 96286-3. What impact should a finding of bad faith have upon the sanction imposed for a Public Records Act violation? COA decision reported at 4 Wn. App. 2d 489 (2018). Petition for review available here.

Identity Theft. State v. Cortes, No. 96397-5. Chelan County. In RCW 9.35.021(1), did the legislature intend the terms “means of identification” and “financial information” to create two alternative means of committing the crime of Identity Theft Second Degree? Are “owning,” “possessing,” and “control” alternative means of committing the crime of unlawful possession of a firearm? COA opinion reported at 5 Wn. App. 2d 86 (2018). Petition for review available here.

Community Custody. State v. Wallmuller, No. 96313-4. Mason County– State’s Petition. Whether a community custody condition prohibiting the defendant from loitering or frequenting “places where children congregate” is unconstitutionally vague. COA opinion reported at 4 Wn. App. 2d 698 (2018). Petition for review available here.

Jury Voir Dire and Murder Cases. State v. Pierce, No. 96344-4. King County– State’s Petition. “State’s petition for review granted; Pierce’s petition for review granted in part; consolidated with State of Washington v. Michael William Bienhoff, et al., Supreme Court number 96345-2″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.

Jury Voir Dire and Murder Cases. State v. Bienhoff, No. 96345-2. King County – State’s Petition. “Granted, consolidated with State of Washington v. Karl Emerson Pierce, et al., Supreme Court number 96344-4″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.

Timber Trespass and Agency. Porter & Zimmer v. Kirkendoll, No. 96214-6. COA opinion reported at 5 Wn. App. 2d 686 (2018). Petition for review available here.

Division Two

Civil Commitments and Involuntary Medication. A compelling state interest justified the involuntary administration of antipsychotics when doing so is likely to decrease the length of time a respondent will be detained for treatment. Sufficient evidence supported the order in this case as other alternatives would not address the symptoms of the respondent’s illness and would not enable to respondent to recover to the point where he could be discharged. In re Detention of B.M., COA No. 50699-8-II (Jan. 8, 2019). Judge Bjorgen dissented.

Legal Update for Washington State Law Enforcement

The December 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Second Amendment and Non-Citizens. A statute prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority. United States v. Torres, No. 15-10492 (9th Cir. Jan. 9, 2019).

WEEKLY ROUNDUP FOR DECEMBER 28, 2018 & JANUARY 4, 2019

Washington Supreme Court

Ballot Title Challenges. Ballet title objections must be raised within 10 days of the public filing of that ballot title. A challenge asserting an alleged deficiency in the proposed levy lift language that was brought nearly 4 years after the ballot title at issue in this case is dismissed as untimely. End Prison Indus. Complex v. King County, No. 95307-4 (Dec. 27, 2018).

Reasonable Doubt Jury Instruction. The omission of the last sentence of WPIC 4.01, which states, “The defendant has no burden of proving that a reasonable doubt exists,” does not present a manifest constitutional error, which may be reviewed for the first time on appeal pursuant to RAP 2.5(a)(3). The Supreme Court mandated the use of WPIC 4.01 to promote uniformity and simplicity in defining a core concept of our justice system. The failure to instruct in the words of WPIC 4.01 is not a constitutional error. State v. Chacon, No. 95194-2 (Dec. 27, 2018). Justices González, Yu, Gordon McCloud and Fairhurst dissented.

Division One

County Liability and Oso Landslide. An action for damages predicated upon a county’s adoption of a flood control plan is barred by former RCW 86.12.037. An action for damages predicated upon a county’s involvement in the construction of a cribwall is barred by RCW 36.27.982, as a cribwall is a “fish enhancement project.” Slide victims cannot maintain a claim for damage to riparian rights where none of the slide victims own riparian rights. The county acted reasonably when it held a meeting to warn community members of the risk of future landslides and did not make promises that induced reliance on the part of the homeowners that caused them to refrain from seeking help elsewhere. The county’s act of distributing information at the community meeting did not expose the residents to the risk of the coming landslide. Regelbrugge v. Snohomish County, COA No. 76376-8-I (Dec. 31, 2018).

Division Two

Confrontation Clause and Data Extraction. The technician who performed the cell phone extraction was not a “witness” for purposes of the confrontation clause as this person made no comparison or conclusions from the extracted data. The Sixth Amendment right to confrontation was satisfied by the defendants’ ability to cross-examine the detective who drew conclusions from the extracted data. State v. Ramirez, COA No. 49245-8-II (Jan. 3, 2019).

Testimonial Hearsay and Sexual Assault Nurse Examiners. A deceased victim’s statements to a SANE nurse is testimonial hearsay under the primary purpose test. The admission of the statements at trial violated the confrontation clause. State v. Burke, COA No. 50053-1-II (Dec. 27, 2018).

Ineffective Assistance of Counsel and Plea Negotiations. Defense counsel’s provision of misinformation during the plea negotiation process of the potential sentence range the defendant faced if found guilty on all charges at trial amounted to ineffective assistance of counsel. The matter is remanded to the trial court with a requirement that the State reoffer the final 50-month plea offer, subject to the defendant’s and the court’s acceptance of a guilty plea. If either the court rejects the guilty plea or the defendant declines to plead guilty, the defendant’s trial conviction and sentence will stand. State v. Drath, COA No. 49403-5-II (Dec. 27, 2018). Judge Melnick dissented on the grounds that the defendant did not establish prejudice as she failed to show a reasonable probability that, but for counsel’s deficient representation, she would have accepted the State’s final plea offer.

Washington State Attorney General

Marijuana and Clean Air. Local clean air agencies have broad authority to enforce the Clean Air Act, even if the Department of Ecology has not set minimum standards. Local authorities may use state regulations as a minimum standard when regulating odors. A regional clean air agency must follow the procedures set forth in the Clean Air Act prior to any rulemaking or enforcement actions. No statute deprives local clean air agencies of their authority to enforce the Clean Air Act with respect to marijuana. AGO 2018 No. 10 (Dec. 26, 2018).

WEEKLY ROUNDUP FOR DECEMBER 21, 2018

Division One

Right to Impartial Jury. The trial court did not violate the represented defendant’s right to an impartial jury by not sua sponte dismissing a prospective juror for cause. While the juror admitted domestic violence was an emotional issue, the juror did not express unqualified statements expressing actual bias. The juror further assured both counsel that he could look at the case as instructed and based on the evidence despite his feelings that African American men are more prone to violence. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

Smith Declarations. The victim’s sworn written statement to responding officers that the defendant choked her was properly admitted pursuant to ER 801(d)(1)(i). The victim’s testimony that she did not remember whether she was choked, kicked, or nearly thrown down the stairs was inconsistent with her prior statements. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

No Contact Orders. The entry of a no contact order barring the defendant from any contact with the victim and his step-daughter did not make it impossible for the defendant to parent his own child. Although not having contact with the victim will make access to his child more difficult, the defendant can still have supervised visitation without the mother present. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

Adoptive Admissions. The proponent of adoptive admissions must submit and the court must give an instruction to the jury that informs the jury that it cannot consider proposed adoptive admissions as evidence unless it finds under the circumstances that the defendant heard, understood, and acquiesced in the statements. In the instant case it was error to admit text messages as adoptive admissions. While the defendant received and responded to the text messages sent by the victim, he did not affirmatively agree with the accusatory text message statements she made. The defendant’s deflection–moving the discussion in another direction – is insufficient for a jury to conclude that the defendant acquiesced or acceded in the truth of the statements. It was error, therefore, to admit the statements pursuant to ER 801(d)(2)(ii). State v. Hill, COA No. 75947-7-I (Dec. 17, 2018).

Offender Scores. A non-comparable out-of-state conviction will not prevent washout of prior offenses under RCW 9.94A.525(2)(c). State v. Marquette, COA No. 77197-3-I (Dec. 17, 2018).

Felony DUI and Qualifying Prior Offenses. The existence of four (now three) or more prior DUI offenses within 10 years is an essential element of felony DUI, and must be proven beyond a reasonable doubt. Whether a prior conviction meets the statutory definition of prior offense contained in RCW 46.61.5055 is a threshold question of law to be decided by the trial court. Whether a reckless driving conviction involved alcohol is a threshold question for the court, not a question for the jury. The State’s presentation of certified copies of the original criminal complaint and the district court’s judgment and sentence was sufficient to allow the judge to determine that the reckless driving convictions involved alcohol. State v. Wu, COA No. 77045-4-I (Dec. 17, 2018). Justice Becker dissented. [Editor’s note: This opinion creates a split with Division Two. See State v. Mullen, 186 Wn. App. 321, 227 (2005).]

Division Two

Involuntary Commitment. A respondent may be gravely disabled under former RCW 71.50.020(17)(b), despite the lack of prior hospitalizations or law enforcement interventions. A respondent does not have a constitutional or statutory right to a less restrictive alternative placement. Thus, a respondent’s due process rights are not violated when the State does not submit its recommendation for outpatient treatment. In re Detention of D.W., COA No. 50817-6-II (Oct. 16, 2018, publication ordered Dec. 18, 2018).

Felony Firearm Offender. When the evidence at trial was that either a knife or a firearm was used in the commission of the second degree assault, a defendant may only be ordered to register as a felony firearm offender when the jury renders a special verdict finding that the weapon used was a firearm. State v. Rios, COA No. 50035-3-II (Dec. 18, 2018).

First Aggressor Instruction. The first aggressor jury instruction, WPIC 16.04, must be modified to advise the jury that words alone are not sufficient to make a defendant the first aggressor in an altercation. State v. Kee, COA No. 50203-8-II (Dec. 18, 2018).

Division Three

Time for Trial. Release from custody pursuant to the prosecuting attorney’s oral motion extended the time for trial deadline by an additional 30 days. The lack of a written motion filed at least five days before the court hearing does not render the release order invalid. State v. Maling, COA No. 35272-2-III (Dec. 18, 2018). Judge Fearing dissented.

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is October 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.

Ninth Circuit

Vehicle Impounds. Impounding vehicles of drivers who have never been issued a driver’s license for a period of 30-days when the drivers attempted to have friends with valid licenses take possession of the vehicle was unreasonable under the Fourth Amendment. Although the state’s interest in keeping drivers off the road provided a “community caretaking” exception to the Fourth Amendment, the application of the exception turns on the facts and circumstances of each case. Continued impoundment of these vehicles was not justified as a deterrence or penalty. Sandoval v. City of Santa Rosa, No. 16-16122 (9th Cir. Dec. 21, 2018).

WEEKLY ROUNDUP FOR DECEMBER 7, 2018 & DECEMBER 14, 2018

Washington Supreme Court

Double Jeopardy. Facts that increase the mandatory minimum and are subject to the Sixth Amendment’s right to trial by jury will also be subject to the Fifth Amendment’s double jeopardy clause. If a jury unanimously acquits a jury of an RCW 10.9.020 aggravating circumstances, the prohibition on double jeopardy bars retrial on those aggravating circumstances. State v. Allen, No. 95454-2 (Dec. 13, 2018).

Hydraulic Projects. The Department of Fish and Wildlife’s permitting authority over hydraulic projects includes projects above the ordinary high-water line that affect state waters. Spokane County v. State Department of Fish and Wildlife, No. 95029-6 (Dec. 6, 2018). Justice Gordon McCloud authored a concurring opinion which was joined by Justice Gonzàlez.

Division One

Insanity Acquittees. An order granting or denying an individual who was found not guilty of a crime by reason of insanity’s petition for final release pursuant to RCW 10.77.200 is appealable as a matter of right under RAP 2.2(a)(13). The order denying final release is affirmed as continued supervision is required for public safety due to the nature of the petitioner’s mental illness. State v. Coleman, COA No. 76851-4-I (Dec. 10, 2018).

Preliminary Appearances. CrRLJ 3.2.1 requires an individual who is subjected to a warrantless arrest and held in jail, to be brought before a judicial officer for a preliminary hearing the next court day following the arrest. The filing of a notice of disqualification does not waive a defendant’s right to a timely preliminary appearance hearing. Khandelwal v. Seattle Municipal Court, COA No. 78058-1-I (Dec. 3, 2018).

Early Release of “Juveniles.” Early release is presumptive under RCW 9.94A.730(3) unless the ISRB determines that the petitioner is more likely than not to reoffend. The ISRB abused its discretion by denying release to a woman who committed murder at age 15, who had no infractions since 2008 and whose psychological evaluation indicated she was a low risk to reoffend. In re Personal Restraint of Brashear, COA No. 77047-1-I (Dec. 3, 2018).

School Searches. Drugs found in a 14-year-old child’s backpack in a search conducted by the vice principal were suppressed because the search was not reasonable when the child was not a student of the school, the vice principal knew nothing about the child’s history or school record, there was no record of a drug problem at the school, and there was no exigency to conduct the search as police officers were already on their way to the school. State v. A.S., COA No. 76823-9-I (Dec. 3, 2018).

Division Two

Involuntary Commitment of Persons Incompetent to Stand Trial. The law does not provide mentally ill persons found incompetent to stand trial for felony charges the legal opportunity to become good faith voluntary patients. In re the Detention of P.P., COA No. 50773-1-II (Dec. 11, 2018).

Exceptional Sentences. The “substantially exceeds” aggravating factor, RCW 9.94A.535(3)(y), applies to a conviction for the crime of hit and run (injury). The jury’s finding by special verdict alone provides a sufficient basis on which to justify a defendant’s exceptional sentence. A trial court errs by making additional findings of fact in support of the exceptional sentence. State v. Perry, COA No. 49913-4-II (Dec. 11, 2018).

Aggravated First Degree Murder Sentences for “Juveniles.” A minimum term of 48 years was not supported by substantial evidence of “irreparable corruption, permanent incorrigibility, and irretrievable deparvity,” where the defendant’s last prison infraction occurred six years prior to the hearing to set the minimum term and did not exhibit a pattern related to the murder he committed. The court failed to meaningfully consider juveniles” underdeveloped executive brain functioning and the greater prospects for reform from a crime committed prior to a defendant’s eighteenth birthday. State v. Delbosque, COA No. 49792-1-II (Dec. 4, 2018).

Division Three

Public Trial. The public trial right does not apply to rulings excluding witnesses under ER 615. The public trial right does apply to motions in limine that are raised before testimony. A new trial is ordered because the chambers conference on the motion to exclude a witnesses’ testimony was not a de minimis violation of the public’s right to open courts. State v. Karas, COA No. 34899-7-III (Dec. 13, 2018). Judge Fearing dissented on the grounds that the public trial right extends to an ER 615 motion.

Public Records Act and Polygraphs. An individual’s action to enjoin disclosure under the Public Records Act (PRA), which consisted of a six-page pleading containing an ex parte motion requesting a TRO and eventual permanent injunction, a declaration of facts, and a memorandum of authorities, “substantially complied” with RCW 4.28.020’s statutory requirement of filing a complaint to vest the superior court with jurisdiction over the case. A polygraph report taken by peace officers as part of a pre-employment screening qualifies as “other related materials submitted with respect to an applicant” which is exempt under RCW 42.56.250(2). The police officer, however, is not entitled to enjoin dissemination of the record that the agency elected to disseminate in response to a PRA request as the redacted polygraph report discloses numerous instances of theft and dishonesty and the public has an interest in knowing whether a particular officer is law abiding. Sheats v. City of East Wenatchee, COA No. 35555-1-III (Dec. 11, 2018). [Editor’s note: Both the Wenatchee City Attorney’s Office and the Douglas County Prosecuting Attorney’s Office should be commended for their handling of potential impeachment evidence.]

Traffic Stops. RCW 46.61.670, which makes it a traffic infraction to operate a vehicle with one or more wheels off a designated roadway, affords no room for error. Even a minor, momentary violation meets the terms of the statute and can provide a basis for a traffic stop and imposition of an infraction. RCW 46.61.140(1) only applies in circumstances where a vehicle momentarily crosses from one lane of travel into a neighboring lane traveling the same direction. State v. Alvarez, COA No. 34711-7-III (Dec. 4, 2018). Judge Lawrence-Berrey dissented.

Public Trial. Defendant forfeited appellate review by expressly declining to seek a new trial after being advised of the factual basis for a public trial violation. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).

Attorney Withdrawal. A defendant’s absence from a hearing on defense counsel’s motion to withdraw is not per se reversible error. A defendant who is seeking relief due to his absence bears the burden of demonstrating the reason for the withdrawal motion and why his input might impact the court’s ruling on the motion. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).

Credit for Time Served. A defendant may not receive credit for time served for a community custody violation in a prior unrelated felony case upon conviction of a new felony case. Post Sentencing Petition of Allery, COA No. 35284-6-III (Oct. 16, 2018, publication ordered Dec. 4, 2018).

Washington State Attorney General

Mandatory Sick Leave. Employees who fall within the definition of “employee” for minimum wage purposes are entitled to paid sick leave under RCW 49.46.200-.210. The definition of “employee” is that contained in RCW 49.46.010(3). “Employee” does not include “Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature.” RCW 49.46.010(3)(l). Effective January 1, 2018, employees who had worked for the employer in question for at least 90 days became entitled to use sick leave. Under RCW 49.46.210 and WAC 296-128-620, employers are required to carry over up to 40 hours of unused paid sick leave during the following year, whether that leave is “front-loaded” or “accrued.” AGO 2018 No. 9 (Dec. 5, 2018).

Legal Update for Washington State Law Enforcement

The November 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR NOVEMBER 30, 2018

Washington Supreme Court

Retaliatory Discharge. An employee presents sufficient evidence to survive summary judgment in an action under the Washington Law Against Discrimination where by demonstrating that the employer “knew or suspected” the employee had previously been involved in a protected activity. An employer has actual knowledge that the employee engaged in an alleged protected action, i.e. filed a prior lawsuit, even though the employer does not know the substance of the prior lawsuit. The “knew or suspected” standard incorporates the actual knowledge standard and also encompasses cases in which the employer suspects that an employee engaged in protected action. This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion. Cornwell v. Microsoft Corp., No. 94846-1 (Nov. 29, 2018). Justice Gordon McCloud was the lone dissenter.

Division One

Unlawful Practice of Law. RCW 2.48.180(2)(a), which states that the unlawful practice of law occurs when a “nonlawyer practices law, or holds himself or herself out as entitled to practice law, is not unconstitutionally vague. RCW 2.48.180(2)(a) is a strict liability offense. Using GR 24 to define the practice of law in a jury instruction is not error. State v. Yishmael, COA No. 76802-6-I (Nov. 26, 2018).

Community Custody. RCW 9.94A.701(9) precludes a court from imposing a exceptional period of incarceration below the standard range so as to accommodate a mandatory term of community custody. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

Duty to Register as a Sex Offender. Notice in a judgment and sentence as to termination of the duty to register as a sex offender should be consistent with RCW 9A.44.140(3), which does not require a court order to affirmatively relieve some sex offenders of the duty to register. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

DNA Fee. The DNA collection fee may only be stricken when a defendant with prior convictions establishes that the State has already collected his DNA. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

14-Day Involuntary Treatment Commitment Order. Former RCW 71.05.154 (2013) did not create an affirmative obligation for a designated mental health professional to consult with an emergency room physician before making the decision to detain a person, when there was no examining emergency room physician present or involved in the person’s care. In re Detention of C.A.C., COA No. 77173-6-I (Nov. 26, 2018).

Community Custody Conditions. A condition that bars the defendant from “associat[ing] with known users or sellers of illegal drugs” is not unconstitutionally vague. The condition only applies to persons who are known to the defendant to be users or sellers of illegal drugs and who are currently engaging in the activity. The phrase “illegal drugs” includes Marijuana which is still prohibited by federal law. In re Personal Restraint of Brettell, COA No. 76384-9-I (Nov. 19, 2018).

Division Two

Residential Burglary. The fact that nobody had leaved in a house for 15 months prior to the burglary, that the windows had been boarded up and the broken front door had been secured, and there was no evidence of a plan for someone to resume living in the residence at the time of the burglary, did not prevent the house from being a “dwelling.” Other factors supported a finding that the house constituted a dwelling included that the house had been used for lodging for almost 30 years, the house had never been used for anything other than lodging, the house was fully furnished with furniture in every room and appliances, and the owner of the house left clothing and personal belongings in the house. Finally, the owner, who was forced to leave because of age-related health problems, continued to regard the house as her abode. State v. Hall, COA No. 50543-6-II (Nov. 27, 2018).

Washington Attorney General

LEOFF Plan 1 Members and Medical Marijuana. A city or county disability board may permissibly reimburse LEOFF Plan 1 members for their authorized use of medical marijuana, if that use is properly authorized and if the board determines use of marijuana is medically necessary. The potential effect, if any, of a board’s reimbursement decision on city or county eligibility for federal funding depends on federal policy and the conditions of specific federal grants. AGO 2018 No. 8 (Nov. 21, 2018).

Municipal Research and Services Center (MRSC)

Gifts. Quick primer on the law regarding the acceptance of gifts by county employees. Paul Sullivan, Oh Boy! A Gift! (Nov. 26, 2018).

WEEKLY ROUNDUP FOR NOVEMBER 23, 2018

Washington Supreme Court

Gross Negligence. “To survive summary judgment in a gross negligence case, a plaintiff must provide substantial evidence of serious negligence. In determining whether the plaintiff has provided substantial evidence, the court must look at all the evidence before it, evidence that includes both what the defendant failed to do and what the defendant did. If a review of all the evidence suggests that reasonable minds could differ on whether the defendant may have failed to exercise slight care, then the court must deny the motion for summary judgment. But if a review of all the evidence reveals that the defendant exercised slight care, and reasonable minds could not differ on this point, then the court must grant the motion.” Applying this test, summary judgement was properly granted to DOC in a failure to supervise case. DOC did not act with gross negligence in a case in which a defendant, who was subject to supervision, murdered his long-time girlfriend 15 days after he was released from prison. DOC reasonably relied upon the girlfriend’s explicit assurances that she was not in a relationship with the defendant, that she was moving to a place where he could not fine her, and that she would call the police if she saw them. The defendant’s mother had also verified in writing that the defendant was sleeping at her home. Harper v. State, No. 95511-5 (Nov. 21, 2018).

Division Two

Self-Incrimination. Article I, section 9 provides the same protection as the Fifth Amendment. Neither a corporation nor corporate officers acting on behalf of the corporation are protected by the constitutional privilege against self-incrimination. The same rule applies to a limited liability company. An individual must invoke the protections of the Fifth Amendment as to specific topics or on a question-by-question basis, blanket assertions of privilege are insufficient. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Civil Investigative Demand. A civil investigative demand (“CID”) issued and served pursuant to RCW 19.86.110 is not an unconstitutional intrusion into private affairs without authority of law. A corporation’s business records are not “private affairs” for purposes of article I, section 7. A CID is not an unreasonable search under the Fourth Amendment. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018). Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Article I, Section 7. The protections of article I, section 7 are not limited to Washington citizens. The constitutional guarantee extends to all persons within the state of Washington. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Other

Controlled Substance Homicides. Newly created Drug-Induced Homicide Defense Toolkit is available to the public. Worth viewing when making charging decisions and other discretionary decisions in these cases. Health in Justice Action Lab, Northeastern University School of Law, Drug Induced Homicide Defense Toolkit (Preliminary Version Oct. 12, 2018). Most current version will be available here.

WEEKLY ROUNDUP FOR NOVEMBER 16, 2018

Division One

Felony Traffic Sentencing. While prior serious traffic offenses are excluded from calculation of the offender score for vehicular homicide, they are properly included in the offender score calculation for felony hit-and-run. The 24-month vehicular homicide enhancements are added to the standard sentence range for vehicular homicide, not to the standard sentence range for any other current offense. In re Personal Restraint of Raymundo, COA No. 73998-1-I (Nov. 13, 2018).

Division Two

Pre-Trial Restraint. A trial court’s failure to make an individualized determination on the necessity of pretrial restraints violates a defendant’s due process rights. State v. Lundstrom, COA No. 49709-3-II (Nov. 15, 2018).

Division Three

Competency to Stand Trial. A court must continue to monitor the mental health of the accused and must order another mental health evaluation if, subsequent to a jury finding that the accused is competent to stand trial, a substantial change in circumstances raises a reasonable doubt as to the accused’s competency. State v. McCarthy, COA No. 34859-8-III (Nov. 15, 2018). Judge Siddoway dissented.

“Wash-Out.” Incarceration for willfully failing to pay legal financial obligations will not prevent a prior offense from washing out for purposes of calculating the offender score. Such detention is not pursuant to a felony conviction. State v. Schwartz, COA No. 35171-8-III (Nov. 15, 2018). [Editor’s Note: Division Three’s decision is inconsistent with Division One’s holding in State v. Mehrabian, 175 Wn. App. 678, review denied, 178 Wn.2d 1022 (2013).]

Legal Update for Washington State Law Enforcement

The October 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Florida Supreme Court

Will You Be My Friend. An allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. Law Offices of Herssein and Herssein, P.A., v. United States Automobile Association, No. SC17-1848 (Fla. Nov. 15, 2018).

WEEKLY ROUNDUP FOR NOVEMBER 9, 2018

United States Supreme Court

Age Discrimination in Employment Act. The federal Age Discrimination in Employment Act applies to all state and local governments, regardless of how many employees they have. Mount Lemmon Fire Dist. v. Guido, No. 17-587 (Nov. 6, 2018).

Washington Supreme Court

Expiration of Prison Sentence. When a defendant receives consecutive SRA sentences, DOC has the authority to hold the defendant in custody up to the sum of the multiple terms– i.e. three consecutive, 114-month terms, allow DOC to hold a defendant in custody up to 342 months. Personal Restraint of Gronquist, No. 94971-9 (Nov. 8, 2018).

Competency Restoration. The defendant’s due process rights were violated when he was detained in the county jail for 76 days before his admission to Washington State Hospital for competency restoration treatment. Dismissal of charges with prejudice for this violation of the defendant’s due process rights is not warranted. State v. Hand, No. 94902-6 (Nov. 8, 2018). Justices Madsen and Stephens would, if timely asserted by the defendant, apply the Sixth Amendment speedy trial analysis to any delay in the start of competency restoration treatment.

Privacy Right to Medical Records. The Uniform Health Care Information Act, chapter 70.02 RCW, does not carve out a duty to non-health-care providers to protect the privacy of a patient’s health care information. The Department of Correction was not required to obtain authorization from an inmate before removing and reviewing medical records that were in the inmate’s cell. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Search Warrants. A search warrant must be supported by probable cause that evidence of the crime can be found at the place to be searched. “Evidence of the crime” is not limited to evidence proving a crime was committed. “Evidence of the crime” can relate to evidence that is relevant to sentencing and/or to a defendant’s ability to form the mens rea of the crime. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Particularity Requirement. A search warrant that authorized the search and seizure of the prison’s inmate property and storage room, the prison’s administration building, as well as any ant all records for an inmate, which was accompanied by the search warrant affidavit that was both physically attached and incorporated by reference, authorized the search of a medical records room located in the prison and adequately described the items to be seized. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

CrR 3.1. Statements made by a defendant prior to being charged with a crime were not subject to suppression for an alleged violation of CrR 3.1. Defendant was placed into contact with an attorney at 9:00 a.m., the morning following his 9:00 p.m. arrest for murdering a prison guard. The delay in putting the defendant into contact with an attorney was justified because (1) detectives
needed to obtain a search warrant, (2) there was a risk to prison security and the lockdown of other inmates, (3) there was concern for the safety of the defendant, and (4) restrictions were placed on the facility due to the lockdown. Any alleged violation, moreover, was harmless as the defendant provided a videotaped statement after he met with two attorneys who both advised him to not speak to the police. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Jail Detention. A defendant, who was detained at the Snohomish County Jail, following his arrest for the murder of a prison guard, in the absence of a contract between the Department of Corrections and Snohomish County in violation of RCW 72.68.050, is not entitled to the suppression of statements made while housed at the jail. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

CrR 3.2.1(d)(1). While CrR 3.2.1(d)(1) requires that a person be brought before a judge “as soon as practicable” following a warrantless arrest, does not support overruling State v. Hoffman, 64 Wn.2d 445 (1964), which makes any unnecessary delay in the preliminary appearance one factor to consider when determining whether a confession is involuntary, rather than an automatic basis for excluding statements. Custody for purposes of Miranda does not establish “detention” for purposes of CrR 3.2.1. The defendant, who was already in prison serving a life sentence for another crime, was not detained for purposes of CrR 3.2.1 until he was booked for the murder of Officer Biendl. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Voluntariness of Confessions. The defendant’s videotaped statements were not rendered involuntary by the harsh conditions of solitary confinement that the defendant was subjected to following the murder of prison Officer Biendl. The defendant was repeatedly advised of his Miranda rights, met with attorneys twice before his first interview with police, met with an attorney before his third interview, was calm and cooperative, selectively answered questions, and confessed because of the intolerable guilt arising from his actions. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

ER 403. An objection that evidence is not relevant is insufficient to preserve a claim that the trial court should have excluded the evidence on ER 403 grounds of unfair prejudice, confusion of issues, or misleading the jury. A trial court is only required to conduct an ER 401 analysis to a relevancy objection. A trial court is not also required to conduct an ER 403 analysis when a party asserts a relevancy objection. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Opinion as to Guilt. A detective’s out-of-court questions to the defendant and their answers were properly admitted at trial. Neither of the post-Miranda-waiver questions– what the defendant would say of Officer Biendl’s death if she could hear him now and whether the defendant was sorry that Officer Biendl was dead – went to the defendant’s state of mind and were not unduly prejudicial. The detective’s reference to “the murder” was also not substantially prejudicial. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Exercise of Constitutional Rights. While the State may not draw adverse inferences on a defendant’s exercise of his constitutional rights, statements of a defendant regarding his desire for a speedy resolution of murder charges were properly admitted to demonstrate the defendant’s reasoning for speaking with the police and that his statements were voluntary and credible. It was also not error to admit the defendant’s statements that he was disregarding his attorney’s advice by speaking with the detectives. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Jury Selection. The prosecuting attorney did not violate the prohibition upon private communications between prosecutors and jurors, when during voir dire, he smiled at the jurors, made eye contact with the jurors, and thanked the excused jurors for their service. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Premeditation. The trial court did not err by utilizing WPIC 26.01.01 instead of the deffendant’s proposed premeditation instruction. The prosecuting attorney did not conflate intent to kill with premeditation in his closing arguments. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Division One

Duress. Duress is not a defense to the aggravating factors of robbery and kidnapping when the charge is aggravated first degree murder. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Closing Argument. The prosecutor erred by inviting the jury to imagine what the victim was thinking and feeling in the hours before her murder. The prosecutor also erred by telling the jurors that duress is not a defense to murder and by defining duress for them after the trial court refused to instruct the jury on duress regarding the aggravating factors and because the defense did not argue that the defendant should be acquitted because he killed the victim out of fear of a co-participant. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Juror Issues. The bailiff did not violate CrR 6.15(f)(1) by separating a juror who communicated safety concerns from the other jurors and after discerning the nature of the juror’s distress, promptly notified the court and counsel of the juror’s concerns. The defendant’s right to a public trial was not violated by the bailiff’s initial out-of-court communications with the juror where the juror’s safety concerns were promptly referred to the court and all subsequent discussion of the juror’s safety concerns occurred in open court in the presence of the defendant. The dismissal of the juror, who suffered a heart attack and who could not return for deliberations did not violate the defendant’s right to a unanimous jury. A juror’s statement after hearing the medical examiner’s testimony and prior to the start of deliberations that “I hope they fry the fucking bastard,” inheres in the verdict and will not support a motion for a new trial. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Autopsy Photos. The trial court did not abuse its discretion by admitting 15 of 100 autopsy photographs over the objection of the defendant. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Pro Se Defendants. The trial court did not abuse its discretion by denying the defendant’s multiple requests for standby counsel. A pro se defendant, who was removed from court following disruptive conduct and the defendant’s statement that “You can hold your trial without me,” did not voluntarily absent himself from the trial. Questioning witnesses after the defendant was removed from the courtroom violated the defendant’s right to representation. The trial court should have appointed counsel to question the witnesses’ in the defendant’s absence, recessed to give the defendant time to calm down, have the defendant attend trial via video conference or provide the defendant with a recording of the missed testimony and allow the defendant the opportunity to cross-examine the witness, or restrained the defendant in the courtroom. State v. Davis, COA No. 76806-9-I (Nov. 5, 2018).

Division Two

Community Custody. Attempted failure to register as a sex offender is not a sex offense for which community custody is authorized. In re Postsentence Review of Thompson, COA No. 50767-6-II (Nov. 6, 2018).

Ninth Circuit

Confrontation Clause and Physical Confrontation. Testimony from victim from her hospital bed in Minnesota via two-way video violated the defendant’s Sixth Amendment right to confrontation. The victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition, so a continuance of the trial was a more appropriate solution. Testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness. United States v. Carter, No. 16-50271 (9th Cir. Nov. 2, 2018).

Fifth Amendment and Subpoenas. A record custodian for a collective entity, even a small, closely-held entity, may not invoke his Fifth Amendment privilege against self-incrimination to resist producing the collective entities’ documents. In re Twelve Grand Jury Subpoenas, No. 17-17213 (9th Cir. Nov. 8, 2018). [Editor’s note: This decision should apply equally to subpoenas issued in Chapter 10.27 and 10.29 RCW proceedings.]

WEEKLY ROUNDUP FOR NOVEMBER 2, 2018

Washington Supreme Court

Batson. The third step of a Batson challenge to a peremptory strike of a juror in Washington is modified. At the final step, the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted. The State’s use of a peremptory strike against the only remaining African-American jury based upon the juror’s statements that voir dire was a “waste of time”, his specific knowledge of the move 12 Angry Men, and his brining outside evidence into jury deliberations as a juror in a previous trial violates this new test as the juror’s statements were not that different from answers provided by jurors who were not subject to peremptory strikes. State v. Jefferson, No. 84853-4 (Nov. 1, 2018). Justices Yu and González concurred with the lead opinion but she “remain(s0) convinced that nothing short of complete abolishment of the peremptory challenge, coupled with further development of our “for cause” challenge jurisprudence, will get us on the right path toward finally eradicating racial bias in jury selection.” Justices Madsen, Johnson and Stephens objected on the grounds that GR 37 was never meant to be a constitutional rule backed by constitutional protections.

Certificate of Discharge. The effective date for the issuance of a certificate of discharge for an offender who is not under Department of Corrections custody is the date the offender completed all the terms of the sentence, rather than the date the court received notice that the offender completed all terms of the sentence. State v. Hubbard, No. 95012-1 (Nov. 1, 2018).

The Washington Supreme Court granted review of the following cases this week:

Concealed Pistol License. Barr v. Snohomish County Sheriff, No. 96072-1. Snohomish County–County’s Petition for Review. Questions presented: (1) May an individual convicted of a Class A felony as a juvenile use RCW 13.50.260 as an alternative mechanism to judicially restore his/her firearm rights, thereby avoiding the restoration prohibition stated in RCW 9.41.040? (2) Does RCW 9.41.070 require a law enforcement agency to issue a Concealed Pistol License to an individual with a Class A felony that has been sealed pursuant to RCW 13.50.260? COA opinion reported at 4 Wn. App. 2d 85 (2018). Appellate court pleadings available here.

Impound Inventories. State v. Peck, No. 96069-1 and State v. Tellvik, No. 96073-9. Kittitas County – State’s Petition for Review. Question presented: Whether the contents of a zippered CD case located in a stolen vehicle in the course of an inventory search were obtained in violation of article 1, section 7, when neither occupant of the stolen truck asserted any possessory interest in the CD case. COA opinions are unpublished – Peck and Tellvik . Appellate court pleadings available here.

Double Jeopardy and Cell Phone “Ping.” State v. Muhammad, No. 96090-9. Asotin County. Questions presented: Whether the warrantless search of transmissions between a cell phone and cell towers to obtain real-time location information was justified by exigent circumstances. Whether the exclusionary rule applies to the search of the vehicle, where the search of the car was independently authorized by a search warrant supported by probable cause and any connection between the “ping” and the search of the vehicle was sufficiently attenuated to dissipate any taint.. Whether entry of convictions and sentences for rape and felony murder predicated upon the same rape violates double jeopardy or merger. COA opinion reported at 4 Wn. App. 2d 31 (2018). Appellate court pleadings available here.

Home Financing. Wash. State Housing Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., No. 96063-1. Questions presented: Whether the Washington State Housing Finance Commission has standing to bring a declaratory judgment action to prohibit a California non-profit from engaging in mortgage finance activities in Washington. Whether the California non-profit may lawfully engage in mortgage finance activities in Washington. COA opinion is unpublished. Appellate court pleadings available here.

Division One

Fellow Officer and Warrantless Arrests. Under the post-State v. Bravo Ortega, 177 Wn.2d 116 (2013), amendment to RCW 10.31.100, the fellow officer rule applies to arrests for non-felony offenses. The plain language or RCW 10.31.100(1), moreover, allows for application of the fellow officer rule to arrests for select non-felony offenses, including theft. State v. Perez, No. 76902-2-I (Oct. 29, 2018).

Ninth Circuit

“Ruse” Warrantless Entries. A “ruse” entry is when a known government agent misrepresents his purpose in seeking entry. An officer’s warrantless entry into a home via a ruse such as by asking the homeowner for assistance in a fictitious criminal investigation, violates the Fourth Amendment. Whalen v. McMullen, No. 17-35267 (9th Cir. Oct. 31, 2018).

WEEKLY ROUNDUP FOR OCTOBER 26, 2018

Division One

Involuntary Commitments. A court may dismiss a meritorious petition for involuntary commitment for a person who, as a result of a mental disorder, “presents a likelihood of serious harm, or is gravely disabled.” A nonlicensed facilities provision of treatment under a single bed certification that is not specific to the detained person and that fails to include a description of why the detained person being committed can receive appropriate mental health treatment as the facility will not require the reversal of a 14-day commitment order as it is not a total disregard of the involuntary treatment act requirements. In re Detention of C.V., COA No. 77057-8-I (Oct. 22, 2018).

Division Three

Eyewitness Identification. Defense counsel must assert an ER 403 objection that a witness’s identification of the defendant is more prejudicial than probative due to its unreliability to preserve the issue on appeal. RAP 2.5(a)(3) does not all the claim to be raised for the first time on appeal as the error is not manifest and the claims regarding suggestiveness rely upon empirical studies or law enforcement policies that were not offered in the trial court and law enforcement was never questioned about their reasoning for engaging in two pretrial identification interviews and for not using a double-blind procedure. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).

Historic Cell Site Analysis. An FBI special agent’s cell site analysis was admissible under Frye and ER 702. The fact that the agent used propriety software to map out cell tower strengths did not cause her testimony to fall outside of Frye. The agent’s testimony was helpful to the jury as she made the jury aware of the imprecision of cell site information. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).

Ineffective Assistance of Counsel. Defense counsel’s failure to ask the trial court to instruct the jury to review the self-defense instruction when the deliberating jury sent two questions to the judge which showed that the jury did not understand the law of self-defense, was prejudicially deficient performance that requires a reversal of the defendant’s first degree assault with a deadly weapon conviction. State v. Backemeyer, COA No. 35218-8-III (Oct. 23, 2018). Judge Korsmo dissented.

American Bar Association

Lawyers’ Obligations After and Electronic Data Breach or Cyberattack. “Model Rule 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Model Rules 1.1, 1.6, 5.1 and 5.3, as amended in 2012, address the risks that accompany the benefits of the use of technology by lawyers. When a data breach occurs involving, or having a substantial likelihood of involving, material client information, lawyers have a duty to notify clients of the breach and to take other reasonable steps consistent with their obligations under these Model Rules.” Formal Opinion 483 (Oct. 17, 2018).

WEEKLY ROUNDUP FOR OCTOBER 19, 2018

Washington Supreme Court

Cruel Punishment. Adopting a new “categorical bar analysis” for sentencing challenges, the Court holds that sentencing an individual to life without parole or early release for aggravated first degree murders committed prior to their eighteenth birthday is unconstitutional under article I, section 14 of the Washington Constitution. State v. Bassett, No. 94556-0 (Oct. 18, 2018). Justice Stephens authored the dissenting opinion which was joined by Justices Johnson, Madsen and Chief Justice Fairhurst.

Division Three

Unlawful Redemption of Food Stamp Benefits. RCW 9.91.144, which makes it a class C felony to redeem food stamps in violation of 7 U.S.C. sec. 2024(c) or RCW 74.04.500, applies only to merchants and others who seek reimbursement by the government for food stamp benefits previously used by a consumer. A person who improperly uses another person’s benefits to purchase food at a grocery store does not fall within the statute’s ambit. State v. Gray, COA No. 35357-5-III (Oct. 16, 2018).

WEEKLY ROUNDUP FOR OCTOBER 12, 2018

Washington Supreme Court

Death Penalty. Washington’s death penalty is invalid because it is imposed in an arbitrary and racially biased manner. Because the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant, the death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution. In reaching this conclusion, the Court did “not decide whether the prior cases [upholding the constitutionality of the death penalty] were incorrect and harmful at the time they were decided” because the scope of article I, section 14 “is not static.” The Court’s conclusion “that race has a meaningful impact on imposition of the death penalty” was made “by way of legal analysis, not pure science.” The Court leaves open the possibility that the legislature may enact a carefully drafted statute that will pass constitutional muster, stating that “[T]o hold that the death penalty is per se unconstitutional would be to substitute our moral judgment for that of the people of Washington.” State v. Gregory, No. 88086-7 (Oct. 11, 2018). Justices Johnson, Owens, Stephens and Madsen concurred, asserting that additional state constitutional principles compel the majority’s decision.

Law of the Case Doctrine. The law of the case doctrine prohibits reconsideration of alleged guilt phase errors where the remand following the first appeal was solely for the purpose of conducting a new penalty phase hearing. State v. Gregory, No. 88086-7 (Oct. 11, 2018).

LUPA and Building Permit Processing Fees. The imposition of a permit application fee falls under the statutory definition of a land use decision under chapter 36.70C RCW. Hence, LUPA applies when parties are challenging, as excessive, permit application fees assessed when a building or a land use permit application is submitted for processing. Community Treasures v. San Juan County, No. 94463-6 (Oct. 11, 2018).

Division One

DOSA. The provisions of RCW 9.94A.664(4), which allows imposition of total confinement equal to one-half the midpoint of the standard range of the underlying sentence as a sanction when the recipient of a residential drug offender sentencing alternative fails to comply with the terms of her judgment and sentence, does not apply to an offender who fails to report to residential treatment. A court may impose a term of incarceration anywhere within the standard range upon an offender who fails to report to residential treatment. State v. Church, COA No. 76573-6-I (Oct. 8, 2018).

Improper Court Filings. CR 11 sanctions were properly levied upon a lawyer who filed documents with the court to help facilitate the media’s access to them.

The court file is not a bulletin board for attorneys to post information for the press. Neither is it an archive for communications between lawyers. It exists so attorneys may provide the court with documents relevant to the proceedings pending before it so that the court can consider this information when resolving a request for relief. Attorneys may communicate with the press through a number of avenues. But the court file does not exist for the purpose of facilitating this communication.

Heckard v. Murray, COA No. 77019-5-I (Oct. 8, 2018).

Indeterminate Sentence Review Board. Under the plain language of RCW 9.95.115, the IRSB is not prohibited from releasing a person on parole unless the person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. A prefiling forensic psychological evaluation does not mean a person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. In re the Personal Restraint of Parejo, COA No. 76256-7-I (Oct. 8, 2018).

Division Two

Sexually Violent Predators. The trial court’s instructions on “adequately protect the community” which stated that “to establish that the respondent’s less restrictive alternative placement should not be granted, the State must prove one of the following beyond a reasonable doubt:. . .(2) That the proposed less restrictive alternative placement plan does not include conditions that will adequately protect the community” and that the community protection factor did not require “that all risk be removed,” were sufficient. In re Detention of Urlacher, COA No. 49781-6-II (July 3, 2018, publication ordered Oct. 9, 2018).

Ninth Circuit

Tribal Forfeiture of Non-Member’s Vehicle. Tribal jurisdiction is colorable, requiring the exhaustion of tribal remedies, where the non-member, immediately after leaving the casino was found with several containers of marijuana in his truck. Although the vehicle was stopped on a Washington state road, one can logically conclude that the forfeiture was a response to his unlawful possession of marijuana while on tribal land. Wilson v. Horton’s Towing, No. 16-35320 (9th Cir. Oct. 9, 2018). [Editor’s Note: Footnote 6 of the opinion questions tribal authority to issue a non-criminal/civil traffic infraction to nonmembers or events occurring on state roads located within reservation lands.]

WEEKLY ROUNDUP FOR SEPTEMBER 28, 2018 & OCTOBER 5, 2018

Washington Supreme Court

“Notice of Protest” Provisions. A contractor’s suit against the city for breach of implied covenant of good faith and fair dealing was barred by the contractor’s failure to file a written notice protecting the written orders on which the claim of breach was based. Mike M. Johnson, which held that such written notice is mandatory and that actual notice does not apply, applies to claims for expectancy and consequential damages. Nova Contracting, Inc. v. City of Olympia, No. 94711-2 (Sep. 27, 2018).

Dependencies. The Washington constitution does not require that all children be appointed counsel at all stages of the dependency proceedings. Confidential juvenile court records remain sealed and confidential on appeal. In re the Dependency of E.H., No. 94798-8 (Oct. 4, 2018). Lead opinion signed by Justices Owens, Fairhurst, Wiggins and Johnson. Justices Stephens and Gordon McCloud dissented as to the decision to seal the record. Justices Yu and González dissented on the counsel issue.

On October 2, 2018, the Court accepted review of the following cases:

DOSA. State v. Yancey, No. 95992-7. Government’s Petition, Franklin County, Teresa Chen. Questions presented: Who is eligible for a DOSA? May a sentencing enhancement be ignored in order to render someone eligible for a DOSA? COA opinion reported at 3 Wn. App. 2d 735 (2018). Appellate court pleadings available here.

Remedy for Illegal Search. State v. McKee, No. 96035-6. Government’s Petition, Skagit County, Erik Pedersen. Question presented: Whether dismissal of charges based upon an illegal search warrant is impermissible when there has been no finding that insufficient admissible evidence remains following suppression. COA opinion reported at 3 Wn. App. 2d 11 (2018). Appellate court pleadings available here.

Miller. State v. Gilbert, No. 95814-9. Klickitat County– David Quesnel. Questions presented: Whether imposition of consecutive sentences for multiple murder counts violate Miller and its progeny. Whether RCW 9.94A.730(1), which allows for early release of defendants who were sentenced for crimes committed prior to their eighteenth birthday violates a defendant’s due process and Eighth Amendment rights. Whether a sentencing court may consider RCW 9.94A.730(1) when imposing sentence. COA opinion is unpublished. Appellate court pleadings available here.

Division One

Sexually Violent Predator. In an unconditional release trial, a detainee’s antisocial personality disorder and alcohol abuse disorder are relevant risk factors that a jury may consider in determining whether it is likely the detainee will commit predatory acts of sexual violence unless confined to a secure facility. In re Detention of Harell, COA No. 76137-4-I (Aug. 6, 2018, publication ordered Sep. 18, 2018).

Division Two

Bail. While the trial court did not abuse its discretion by concluding that there was a substantial danger that the defendant would commit a violent crime if released on his own recognizance, the court erred by requiring $1,000 bail without making any findings that less restrictive conditions would assure the safety of the community. CrR 3.2(d)(6) requires the court to make oral or written findings that the imposition of other conditions, without bail, would be insufficient to reasonably assure the safety of the community. State v. Huckins, COA No. 50091-4-II (Sep. 25, 2018). [Editor’s Note: Because the court reversed based upon the court rule, it did not reach the defendant’s claim that it violates the constitution for a court to order bail he could not afford. The Washington Supreme Court rejected an article I, section 14 challenge to bail on this ground in 1910. See Ex Parte Rainey, 59 Wash. 529, 110 P. 7 (1910) (bail of $5000 imposed upon a laboring man accused of a common felony is not so unreasonable or excessive in amount as to require reduction). The $5000 bail set in Rainey, adjusted for inflation, would be more than $123,000. See Inflation Calculator available at http://www.usinflationcalculator.com/. ]

Jury Misconduct. The trial court did not abuse its discretion in denying a motion for new trial based upon a juror’s mid-deliberation research on the definition of “premeditation,” where the juror did not share the fruits of her research with the other members of the jury and the definitions the juror located where consistent with the law and the court’s own instruction. State v. Arndt, COA No. 50118-0-II (Sep. 25, 2018). Judge Maxa dissented.

Competency to Stand Trial. A trial court may not proceed with a trial when it becomes apparent that the defendant’s mental state has deteriorated to the point where the defendant is no longer competent. If a question arises regarding a defendant’s continued competency, the trial court must suspend the trial and order a competency evaluation. State v. Fedoruk, COA No. 49975-4-II (Jun. 26, 2018, publication ordered Sep. 25, 2018).

Division Three

Jurisdiction Over DUIs. A city’s adoption of RCW 46.61.502 does not deprive the county district court of jurisdiction over DUIs committed within the city. State v. Taylor, COA No. 35461-0-III (Oct. 2, 2018).

Capacity. RCW 9A.04.050, the capacity statute, does not deprive a court of jurisdictional authority to act. A 2017 CrR 7.8 motion to vacate a 1996 conviction for child molestation on the grounds that the court lacked jurisdiction because it did not first determine that the defendant had the capacity to commit the crime when he was 10-years-old was properly denied. State v. Kassner, COA No. 35628-1-III (Oct. 2, 2018).

Manifest Injustice Disposition. The trial court properly imposed a manifest injustice disposition of 27-36 weeks for theft in the third degree solely for the reason that it would benefit the juvenile to receive the services she needed. It was not error for the judge to consider the juvenile’s behavior during the dependency. State v. F.T., COA No. 35524-1-III (Sep. 25, 2018).

Public Records Act. RCW 70.48.100 shields disclosure of phone conversation recording of jail inmates and records relating to the recordings from Public Records Act requests. The exemption extends to jail records that have been forwarded to other government agencies, including the prosecuting attorney’s office. Zabala v. Okanogan County, COA No. 34961-6-III (Oct. 2, 2018) (replacing the April 3, 2018, opinion in this case).

Legal Update for Washington State Law Enforcement

The September 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

First Amendment and Bus Advertisements. The county’s bus advertising program is a nonpublic forum. A county may reject factually inaccurate ads because the First Amendment does not require it to display patently false content in a nonpublic forum. The county’s disparagement standard for rejecting ads impermissibly discriminates, on its face, on the basis of viewpoint. The county’s disruption standard is facially valid but was unreasonably applied in this case. American Freedom Defense Initiative v. King County, No. 17-35897 (9th Cir. Sep. 27, 2018).

United States District Court, Western District of Washington

Taxes in Indian Country. Both the State of Washington and Snohomish County may collect retail sales and use tax, business and occupation tax, and personal property tax from non-Indian owned businesses located at Quil Ceda Villate, a municipality located on Tulalip tribal land. The collection of such taxes does not impose on Tulalip’s tribal sovereignty and is not preempted by operation of federal law. Tulalip Tribes v. State of Washington, No. 15-CV-940 BJR (Oct. 4, 2018).

American Bar Association

Ethical Obligations Related to Disasters. “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.” ABA Formal Opinion No. 482 (Sep. 19, 2018). [Editor’s note: The Vermont Bar Association offers a number of resources for disaster planning. I did not find comparable materials on the WSBA website.]

WEEKLY ROUNDUP FOR SEPTEMBER 21, 2018

Washington Supreme Court

Legal Financial Obligations. The court’s inquiry into ability to pay must include consideration of the mandatory factors set forth in Blazina, including the defendant’s incarceration and other debts, and the court rule GR 34 criteria for indigency. The trial court should also address what we described in Blazina as other “important factors” relating to the defendant’s financial circumstances, including employment history, income, assets and other financial resources, monthly living expenses, and other debts.

On review, the court applies the abuse of discretion standard to whether discretionary LFOs were validly imposed and conducts a de novo review as to whether the trial court made an adequate inquiry under Blazina.

House Bill 1783 (Laws of 2018, ch. 269), which amended two LFO statutes to prohibit trial courts from imposing discretionary LROs on defendant who are indigent at the time of sentencing, applies to cases on appeal on the effective date of the amendments.

State v. Ramirez, No. 95249-3 (Sep. 20, 2018).

Felony Violation of Protection Order. While assault is an essential element to RCW 26.50.110(4), a defense of property jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party. State v. Yelovich, No. 95192-6 (Sep. 20, 2018). Justices Wiggins, Gordon McCloud and Owens concurred in the result on the grounds that RCW 9A.16.020(3) does not justify the use of force to recover stolen property.

Division One

Assault in the Second Degree. Assault in the second degree is an alternative means crime. A jury is not required to unanimously agree as to which alternative means has been proved beyond a reasonable doubt, so long as sufficient evidence supports each of the charged alternative means to commit assault in the second degree. State v. Garcia Gomez, COA No. 75673-7-I (Sep. 17, 2018).

Division Two

Erotic Dance Studios. A local ordinance which allows the County to suspend or revoke the licenses issued to erotic dance studio operators, managers, and dancers if they violate or permit the violation of erotic dance studio regulations is not unconstitutional under article I, section 5 of the Washington Constitution because it does not allow the imposition of sanctions based on strict liability. The ordinance is not unconstitutional under a First Amendment analysis for time, place or manner restrictions. The ordinance does not violate due process because it does not allow the imposition of sanctions based on strict liability. Forbes v. Pierce County, COA No. 51548-2-II (Sep. 18, 2018).

WEEKLY ROUNDUP FOR SEPTEMBER 14, 2018

Washington Supreme Court

Dismissal of an Impaneled Juror. Dismissal of an impaneled juror for bias requires the same findings as dismissal of a potential juror for bias– proof that the juror has formed a biased opinion and, as a result, cannot try the case impartially. When an impaneled juror is erroneously excused midtrial, the defendant will be entitled to a new trial if there is any possibility that the erroneous dismissal stemmed from the juror’s views on the merits of the case. In this case, the trial judge erroneously dismissed an impaneled juror after multiple days of trial testimony because she had a minor connection to an important defense witness that did not give rise to any evidence that the juror was biased . Because there is a reasonable possibility that juror 12 was dismissed beacuse of her views of the merits of the case, the defendant is entitled to a new trial. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). Lead opinion authored by Justice Wiggins and signed by no other justices. Justice Gordon McCloud authored a concurring opinion to address “the assumption that one tribal member is incapable of fairly evaluating the testimony of a witness associated with the same tribe.” Justices González, Yu, and Fairhurst signed the concurring opinion. Justice Stephens authored a dissenting opinion in which she argues that a new trial is not warranted. Justices Johnson, Owens and Madsen joined the dissent.

Firearm Enhancement. Sufficient evidence supported a firearm enhancement as there was a nexus between the defendant, the weapon and the crime. The defendant’s argument that the shotgun was too far away from him to qualify as easily accessible and readily available because he would have had to exit the car or move to the back seat to reach the shotgun is rejected. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). The Court’s decision on this point was unanimous.

Community Custody and Sex Offenses. The sentencing condition prohibiting the defendant, who was convicted of first degree child molestation, first degree child rape, second degree child molestation, and second degree child rape, from possessing or viewing “sexually explicit material” was crime related and not unconstitutionally vague. The exact language of the community custody condition was

Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.

The sentencing conditions requiring the defendant, who was convicted of three counts of second degree child molestation, to disclose to her community corrections officer any “dating relationship” is not unconstitutionally vague. The condition prohibiting this case defendant from entering any “sex-related business” is crime related. State v. Nguyen, No. 94883-6 (Sep. 13, 2018). 

Relocating Cremains. A cemetery violated RCW 68.50.140(4), a class C felony, by relocating cremains without giving prior notification of its actions to next of kin. A “place of interment” for RCW 68.50.140(4) means the particular place remains are buried, such as a plot, and not a cemetary in general. Southwick, Inc. v. State, No. 95237-0 (Sep. 13, 2018). Dissenters were Justices Gordon McCloud, Fairhurst and González.

Wrongful Discharge. The four-part Perritt analysis does not apply to a wrongful discharge suit based upon whistle-blowing. The four-part Perritt analysis does provide helpful guidance in resolving a claim of wrongful discharge based upon whistle blowing.

In a wrongful discharge suit based on whistle-blowing, the plaintiff must show that (1) his discharge may have been motivated by reasons that contravene a clear mandate of public policy and (2) the public-policy-linked conduct was a significant factor in the decision to discharge him. The clear mandate of public policy is a question of law that is not met in the instant case as the plaintiff cannot produce a court decision, statute, or regulation that requires wall padding in the basketball courts.

If the plaintiff succeeds in presenting a prima facie case, the burden shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for discharge. An employer is not required to concede the existence of the first three elements of the Perritt test before asserting an overriding justification for the termination. The after-acquired-evidence doctrine does not apply to the overriding justification element of the Perritt test.

If the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer’s stated reason is legitimate, the public-policy-linked conduct was nevertheless a substantial factor motivating the employer to discharge the worker. Martin v. Gonzaga University, No. 95269-8 (Sep. 13, 2018).

Personnel Files. An employee’s claim that his employer violated RCW 49.12.250 by failing to provide him with a complete copy of his personnel file is not justiciable. An employee must first pursue an administrative request through the Department of Labor and Industries before turning to the courts. Martin v. Gonzaga University, No. 95269-8 (Sep. 13, 2018).

The Washington Supreme Court has accepted review of the following cases:

Clerk’s Bond. Riddle v. Elofson, No. 95959-5. Yakima County. Issue – Whether the Yakima County Clerk is entitled to a writ of prohibition barring the Yakima County Superior Court judges from requiring her to post a $200,000 supplemental bond pursuant to RCW 36.23.020. This is an original action filed against a state officer.

Special Deputy Prosecuting Attorneys. In re the Appointment of a Special Deputy Prosecuting Attorney, No. 95945-5. Franklin County. Whether Benton-Franklin County Superior Court judges had authority to appoint a special deputy prosecuting attorney to represent them in their mandamus action seeking to compel the Franklin County clerk to provide paper copies of court records as required by Franklin County Local General Rule 3.

Legal Update for Washington State Law Enforcement

The August 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Cyberstalking. Younger abstention doctrine does not bar a federal court from reaching the merits in an action seeking to enjoin enforcement of Washington’s cyberstalking law and to declare the law to be unconstitutional. Rynearson v. Ferguson, No. 17-35853 (9th Cir. Sep. 6, 2018).

WEEKLY ROUNDUP FOR SEPTEMBER 7, 2018

Washington Supreme Court

Forfeiture. A corporate shareholder who did not file any claim in the forfeiture case is not a claimant and therefore cannot recover attorney fees pursuant to RCW 69.50.505(6). A substantially prevailing claimant’s fee award is not strictly limited to fees incurred in the forfeiture proceeding itself. RCW 69.50.505(6) gives courts discretion to award the claimant attorney fees from a related criminal case if the fees were reasonably incurred for the primary purpose of resisting civil forfeiture. OPNET v. Real Property, No. 95013-0 (Sep. 6, 2018). Justice González dissented on the grounds that “The civil forfeiture statute does not authorize attorney fees incurred in a criminal case to be awarded in a forfeiture proceeding.” Justices Fairhurst and Johnson joined the dissent.

The Washington Supreme Court accepted review of the following cases this week:

Community Caretaking. State v. Boisselle, No. 95858-1. Pierce County. “Petition for review granted as to the issue of community caretaking exception only.” Issues: Whether the warrantless entry into the defendant’s home was justified under the emergency exception to the warrant requirement and whether the community caretaking exception requires the State to prove that the warrantless entry was totally divorced from a criminal investigation. COA opinion is reported at 3 Wn. App. 2d 266 (2018). Petition for review available here.

Harmless Error Standard. State v. Romero-Ochoa, No. 95905-6. Pierce County– State’s Petition. Issue: “Does the decision below conflict with decisions of the United States Supreme court, this court, and the courts of appeals concerning the harmless error standard applied to an evidentiary U-visa ruling, where the decision adds a requirement of eyewitness corroboration to the untainted evidence test, and where but for that requirement the error was shown to be harmless beyond a reasonable doubt?” COA opinion is unpublished. Petition for review is available here.

Work Product Protection. Barriga Figueroa v. Prieto Mariscal, No. 95827-1. “Petition for review granted; review of Diaz’s contingent issues denied” Issues: Whether an application for benefits qualified as work product even though it was not prepared in anticipation of litigation, and it contained no confidential information and was admittedly prepared in the normal course of business. Whether the admission of the application was harmless because the same evidence was admitted from other sources and plaintiff below did in fact present refuting evidence. COA opinion is reported at 3 Wn. App. 2d 139 (2018). Petition for review is available here.

Insurance Law. Keodalah v. Allstate Ins. Co., No. 95867-0. Issue: “Does an employee claims adjuster, despite lacking any legal relationship with an insured, owe an actionable, independent duty of good faith to the insured?” COA opinion is reported at 3 Wn. App. 2d 31 (2018). Petition for review pleadings are available here.

Division One

Terry Stops. An officer may check for outstanding warrants during a valid criminal investigatory stop, as long as the procedure does not unreasonably extend the initial valid stop. The officer did not exceed the scope of a valid Terry stop involving a report of a recent assault in order to investigate whether the woman with the suspect was the protected person. State v. Alexander, COA No. 76506-0-I (Sep. 4, 2018).

Manslaughter. A requested lesser degree jury instruction for manslaughter in the second degree was properly rejected when the evidence did not support a finding that the defendant only negligently caused the death of another. While the defendant was entitled to an instruction on manslaughter in the first degree, where the defendant claimed that he reasonably believed he was in imminent danger and needed to act in self-defense but used more force than necessary. No evidence support a finding that the defendant was unaware of the risk of death when he intentionally shot the victim 8 to 10 times at close range. State v. Fluker, COA No. 75060-7-I (Sep. 4, 2018).

Carry Permit. Evidence that the defendant had a permit to carry a firearm is irrelevant to whether the defendant intentionally murdered the victim. State v. Fluker, COA No. 75060-7-I (Sep. 4, 2018).

Division Two

Permit Applications. The City was not liable for damages under RCW 64.40.020(1) in a case in which the LUPA appeal resulted in a determination that the right-of-way dedication failed to satisfy the Nollan/Dolan nexus and proportionality requirements. The City’s decision to impose a right-of-way dedication was not arbitrary and capricious, ultra vires, or unlawful, as the City conducted a Nollan/Dolan analysis prior to imposing the condition, which was authorized by the City code. The LUPA decision alone, does not establish liability for monetary damages or compensation. Church of the Divine Earth v. City of Tacoma, COA No. 49854-5-II (Sep. 5, 2018).

Equitable Estoppel and Permitting. As a matter of law, equitable estoppel may not be alleged offensively as a cause of action by plaintiffs. In a county permitting case, equitable estoppel is a defense rather than a cause of action. Byrd v. Pierce County, COA No. 50513-4-II (Sep. 5, 2018).

Quiet Title and Permitting. Relief available in a quiet title action does not include an injunction prohibiting the County from enforcing an access restriction covenant on title. To the extent an action to quiet title depends upon equitable estoppel, the complaint fails to state a claim upon which relief may be granted. Byrd v. Pierce County, COA No. 50513-4-II (Sep. 5, 2018).

Division Three

Washington Attorney General

Voter Registration. A city, county, or school district lacks the authority to allow individuals who have reached the age of 17, but not yet reached the age of 18, to vote in elections for that jurisdiction. The legislature may not allow by statute individuals who have reached the age of 17, but not yet reached the age of 18, to vote in local elections nor allow a city, county, or school district to do so by local option. AGO 2018 No. 6 (Sep. 5, 2018).

Ninth Circuit

Confrontation Clause. The Sixth Amendment Confrontation Clause protections established in Bruton v. United States, 391 U.S. 123 (1968), concerning the introduction of statements by non-testifying codefendants, do not apply to statements that are nontestimonial. A tiny handwritten gang memo that detailed the attack was non-testimonial, as it was designed not to fall into the hands of government officials. Lucero v. Holland, No. 15-16111 (9th Cir. Aug. 31, 2018).

Judicial Notice. A defendant’s request that the court take judicial notice of “unproductive” stops made at the border patrol station, which the defendant contended showed that the agents were not properly applying the reasonable suspicion standard, was proerly rejected on the grounds that it is neither “generally known within the trial court’s territorial jurisdiction” nor “can [it] be accurately and readily determined from sources whose accuracy cannot be reasonably questioned” as required under Federal Rule of Evidence 201(b). United States v. Raygoza-Garcia, No. 16-50490 (9th Cir. Aug. 31, 2018).

Eighth Amendment and the Homeless. The Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Martin v. City of Boise, No. 15-35845 (9th Cir. Sep. 4, 2018).

Actual Bias. It was error to seat a juror, whose social security number had previously been stolen, in an aggravated identity theft and possession of unauthorized access devices case, where the victim was unable to explicitly state that she could put her personal biases aside. United States v. Kecheczian, No. 16-50326 (9th Cir. Sep. 4, 2018).

Indiana Supreme Court

RPC 3.8. Deputy prosecuting attorney suspended from the practice of law for 18 months for violating RPC 3.8(a), 3.8(d), and 8.4(d), by failing to notify the defense prior to trial that a child victim recanted the facts underlying one count and by proceeding to trial on that count, despite believing the child victim’s recantation to be truthful. In re the Hudson, No. 64S00-1705-DI-325 (Aug. 29, 2018).

Texas Center for Legal Ethics

On Line Discussion Groups. A lawyer may reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client. A responding lawyer does not enter into an attorney-client relationship with the inquiring lawyer’s client merely by virtue of an informal consultation. Responding lawyers should take reasonable steps to insure that consultation with an inquiring lawyer on a given subject will not adversely affect a present or former client in the subject of the present or former representation. Professional Ethics Committee for the State Bar of Texas Opinion No. 673 (Aug. 2018).

New York City Bar Association Committee on Professional Ethics

Joint Clients. When a joint representation does not involve a conflict of interest between the joint clients that would require the lawyer to obtain the clients’ “informed consent” to the joint representation, the lawyer must nevertheless explain the implications of the joint representation to the extent “reasonably necessary to permit the client[s] to make informed decisions regarding the representation.” This may require the lawyer to explain, for example, that information disclosed to the lawyer by one joint client cannot be withheld from the other joint client(s) if it is material to the representation, and that in the event of a dispute between the joint clients, information that would otherwise be protected by the attorney-client privilege as against third parties will not be protected as between the joint clients. The lawyer should ordinarily provide all such required explanations before commencing the joint representation. Formal Opinion 2017-7: Disclosures to Joint Clients When the Representation Does Not Involve a Conflict of Interest.

WEEKLY ROUNDUP FOR AUGUST 31, 2018

Washington Supreme Court

Use of Deadly Force Initiative. I-940 must appear on the November ballot. ESHB 3003, which purported to conditionally and prospectively amend I-940 before I-940 was enacted violates article II, section 1(a) of the state constitution, which prohibits the legislature from amending an initiative during the same session in which it was enacted. Eyman v. Wyman, No. 95749-5 (Aug. 28, 2018) (plurality opinion with lengthy discussions on the separation of powers doctrine).

Division One

Felony Murder Predicated Upon Robbery. There was sufficient evidence to support a reasonable inference that the defendant killed the victim with the intent to take her property where the defendant (1) used a phone application to make calls via the Internet rather than a regular cellular service, (2) created the account he used to communicate with the victim on the day of the murder, (3) contacted numerous medium-priced prostitutes who often carry large sums of money and who are less likely to report a robbery, (4) was in financial despair and looking to “make fast money,” (5) used force to take the property, (6) was seen on video leaving the victim’s ransacked apartment with a full bag, and (7) tried to sell a designer bag which was taken from the victim’s apartment the day after the murder. State v. Wang, COA No. 76369-5-I (Aug. 27, 2018).

WPIC 37.50. The final optional sentence of WPIC 37.50, which states that “The taking constitutes robbery, even if death precedes the taking, whenever the taking and a homicide are part of the same transaction,” is potentially misleading and is not supported by State v. Craig, 82 Wn.2d 777 (1973). The inclusion of this language will not, however, require reversal in all cases. State v. Wang, COA No. 76369-5-I (Aug. 27, 2018).

Washington Privacy Act. A defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act. In re Personal Restraint of Hopper, COA No. 76509-4-I (Jul. 2, 2018, publication ordered Aug. 22, 2018).

Division Two

Domestic Violence/Ongoing Pattern of Psychological Abuse Aggravator. RCW 9.94A.535(3)(h)(i), which allows for an exceptional sentence based upon a finding that the defendant committed a domestic violence offense that was part of an ongoing pattern of psychological abuse of a victim manifested by multiple incidents over a prolonged period of time, is not unconstitutionally overbroad. This sentencing aggravator is not subject to a vagueness challenge. The trial court did not err in finding that the ongoing pattern or psychological abuse occurred over a prolonged period of time based on the defendant’s abuse of the victim over nearly seven weeks. The exceptional sentence of 1,060 months for first degree murder conviction was not clearly excessive. State v. Brush, COA No. 49760-3-II (Aug. 28, 2018).
Division Three

Felony DUI. Whether a prior conviction for vehicular assault will support a felony DUI conviction is a question of law to be decided by the court, upon a review of the court records relating to the prior conviction and assessing which of the alternative means to vehicular assault formed the basis of the conviction. The relevant documents are the charging document, a guilty plea statement, jury verdicts and judgment of conviction. Where a defendant is charged with all three alternative means of committing vehicular assault, his guilty plea includes the means necessary for a later felony DUI conviction. State v. Allen, COA No. 35214-5-III (Aug. 28, 2018).

Eyewitness Identification. A defendant’s failure to argue at trial that a witnesses’ identification testimony is unreliable limits appellate review to whether the introduction of the witnesses’ identification testimony amounted to a manifest constitutional error. RAP 2.5(a)(3). Factual questions regarding what policies governed the pretrial identification procedures, what steps may have been taken to protect against suggestiveness or misidentification, why a double-blind procedure was not used, and other issues prevents the defendant from establishing manifest constitutional error. In the absence of a viable constitutional challenge to unreliable eyewitness testimony, a criminal defendant may assert an objection under ER 602. Such a challenge, however, must first be asserted in the trial court. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018).

FBI Historical Cell Site Analysis. Cell site location testimony is widely accepted throughout the country, thus it is not subject to a Frye hearing. The use of proprietary software to map out cell tower strengths does not cause an FBI agent’s testimony to fall outside of Frye. It is not error under ER 702, to allow an FBI agent with sufficient training and experience to testify regarding historical cell site analysis. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018).

Jury Unanimity. A defendant may assert a claim that the charged crime is an alternative means offense and that the jury instructions left open the possibility of an improper nonunanimous jury verdict for the first time on appeal. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge dissented on this point.

Unlawful Possession of a Firearm. Although the firearm statute prohibits owning, possessing or controlling a firearm, these three descriptors are not alternate ways of violating the same statute. They are instead manners of proving the singular criminal act of unlawful possession. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge Fearing dissented on this point.

Identity Theft. Washington’s identity theft statute prohibits contains two alternative means of committing the crime: (1) illegal activity involving “means of identification;” or (2) illegal activity involving “financial information.” Absent sufficient evidence in support of each alternative means, the jury must make an express unanimous finding as to which alternative means formed the basis of the conviction. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge Korsmo dissented on this point.

Washington Attorney General

Foreign Protection Orders. Federal law requires that any protection order issued by the court of a state or Indian tribe be accorded full faith and credit and enforced by the court of another state or Indian tribe. Registration of the order in a state court is not a prerequisite to enforcement. AGO 2018 No. 5 (Aug. 28, 2018).

WEEKLY ROUNDUP FOR AUGUST 24, 2018

Washington Supreme Court

Washington Minimum Wage Act. Plaintiffs can recover both prejudgment interest under RCW 19.52.010 and double exemplary damages under RCW 49.52.070 for the same wage violation. Hill v. Garda CL Northwest, Inc., No. 94593-4 (Aug. 23, 2018). Justice Johnson authored a dissent which claims that the employer did not willfully withhold wages. Justices Owens and Fairhurst also signed the dissent.

Division One

GR 33. GR 33, which governs requests for accommodation by persons with disabilities, requires proof of disability as a prerequisite to accommodations at trial. A trial court’s decision as to the presence or absence of a disability will be reviewed under the substantial evidence test. GR 33 does not require that a request for accommodation be handled wholly ex parte. A court properly requires notice to all parties when a request for accommodation includes a motion for a continuance of the trial date. A court’s ruling regarding accommodation should be on the record and reduced to writing. When a request is denied, the trial court must “ensure that the person requesting the accommodation is informed of his or her right to file an ADA complaint with the United States Department of Justice Civil Rights Division.” GR 33(e). A party is entitled to challenge the application of GR 33 in an appeal of the same proceeding in which the GR 33 accommodation were sought. The party is not required to bring his/her GR 33 claim against the county, as the question in the appeal is whether the party was denied a fair trial, not whether the county should be sanctioned for failure to accommodate the party. In re the Marriage of McCann, COA No. 76113-7-I (Aug. 20, 2018).

Division Two

Electronic Service. When parties to an action mutually agree to accept service by e-mail, service through a court maintained system that automatically generates an e-mail which states that “The following documents are being electronically served upon you,” is sufficient. A party need not also serve the document by direct e-mail to opposing counsel. Tacoma Pierce County Small Business Incubator v. Jaguar Security, Inc., COA No. 50439-1-II (Aug. 21, 2018).

Division Three

Child Pornography. The information provided by Microsoft to police in compliance with 18 U.S.C. § 2258A, along with commonsense inferences about where and how long child pornography is likely to be retained, provided probable cause to issue the warrant. Overbreadth issues are properly avoided by the severability doctrine. State v. Friedrich, COA No. 35099-1-III (Aug. 23, 2018).

Defendant’s Post-Conviction Access to Discovery. Defendant’s post-sentencing motion to compel production of his client file and discovery materials is governed by CrR 4.7(h)(3) and RPC 1.6(d). These rules require some sort of disclosure when a criminal defendant requests copies of his or her file, without any showing of need. Disclosure is subject to redactions under CrR 4.7(h)(3). State v. Padgett, COA No. 35034-7-III (Jul. 17, 2018, publication ordered Aug. 23, 2018). [Editor’s Note: This case relates solely to the client record that is in the hands of the defendant’s attorney. There is no requirement that the prosecution reissue discovery to a defendant post-conviction.]

Ninth Circuit

No Contact Orders and Expectation of Privacy. A person who is prohibited from entering a residence by a court’s no-contact order lacks a legitimate expectation of privacy in that residence and may not challenge its search on Fourth Amendment grounds. United States v. Schram, No. 17-30055 (9th Cir. Aug. 21, 2018). [Editor’s note: This opinion is consistent with Washington law. See State v. Jacobs, 101 Wn. App. 80, 2 P.3d 974 (2000) (an individual who has been excluded from a particular building by a judicial domestic violence order will lack a reasonable expectation of privacy in the building).].

Indecent Exposure and Immigration Consequences. Convictions for indecent exposure pursuant to RCW 9A.88.010(1) or RCW 9A.88.010(2)(b) are not categorically crimes involving moral turpitude for immigration purposes. Both statutes are indivisible such that the modified categorical approach is inapplicable. Barrera-Lima v. Sessions, No. 13-73022 (9th Cir. Aug. 24, 2018).

WEEKLY ROUNDUP FOR AUGUST 17, 2018

Washington Supreme Court

Waiver of Counsel. Defendant’s request to represent himself, which was made out of a desire to avoid a trial delay, was unequivocal. An unequivocal request to proceed pro se requires a defendant to make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself. The motivation or purpose behind the request for self-representation is not a factor in determining whether the request was unequivocal. State v. Curry, No. 94681-7 (Aug. 16, 2018). Justice Gordon McCloud authored a concurring opinion.

Auto-Adult. RCW 13.04.030(1), which automatically subjects some individuals who commit crimes prior to their eighteenth birthday to adult court jurisdiction, does not violate the individuals’ substantive or procedural due process rights. There is no constitutional right to be tried in juvenile court. Automatic adult jurisdiction does not implicate the Eighth Amendment’s prohibition on cruel and unusual punishment. State v. Watkins, No. 94973-5 (Aug. 16, 2018). Justice Yu authored the dissenting opinion which was also signed by Justices González and Gordon McCloud.

Leading Organized Crime. Only crimes listed in RCW 9A.82.010(4) as predicate offenses may be joined to a count of “leading organized crime,” Washington’s Criminal Profiteering Act (CPA), RCW 9A.82.060(1)(a). The “joinder bar” statute, RCW 9A.82.085, rather than CrR 4.4’s discretionary severance standard applies when leading organized crime is charged. Convictions affirmed as the record, which is devoid of defense counsel’s reasons (or lack of reasons) for choosing to defend against these crimes in one prosecution rather than several, does not establish ineffective assistance of counsel. State v. Linville, No. 94813-5 (Aug. 16, 2018). Justices González, Johnson and Yu concurred in the result only.

Frivolous Lawsuits. Eighteen month suspension of attorney for violating RPC 3.1, RPC 4.4(a), and RPC 8.4(d), by intentionally and knowingly filing frivolous pleadings, including a LUPA, with the intent to harass and annoy his neighbors, affirmed. Baseless litigation is not immunized by the First Amendment Right to Petition. In re Discipline Of: David Cottingham, No. 201,704-5 (Aug. 16, 2018).

Division One

Public Records Act. The PRA provides for a single cause of action arising from an alleged PRA denial, regardless of how many individuals were involved in making the request. An attorney, who makes a Public Records Act (PRA) request on behalf of a client, lacks standing to sue for a PRA violation; the cause of action belongs to the client. Creer Legal v. Monroe School District, COA No. 76814-0-I (Aug. 13, 2018).

Restoration of Firearm Rights. A sealed juvenile class A felony adjudication does not render a person ineligible for restoration of firearm rights. Woodward v. State, COA No. 76932-4-I (Aug. 13, 2018).

Ninth Circuit

Writs of Restitution. Plaintiff’s action for declaratory and injunctive relief against the sheriff, to prevent the sheriff from enforcing RCW 59.18.375, could proceed under the public interest exception to the mootness doctrine. Judicial immunity is not available to the sheriff in an action as the doctrine only bars suits seeking damages, and does not preclude a court from granting declaratory or injunctive relief. Whether RCW 59.18.375, which allows for the issuance of a writ of restitution in non-payment of rent situations without a court hearing is unconstitutional should be resolved on remand. Moore v. Urquhart, No. 16-36086 (9th Cir. Aug. 16, 2018).

Section 1983 and Brady. A detective, who withheld material impeachment evidence under Brady v. Maryland and Giglio v. United States during a 1997-98 investigation, is not protected by qualified immunity in a lawsuit brought by a woman who was wrongly imprison for seventeen years. Mellen v. Winn, No. 17-55116 (9th Cir. Aug. 17, 2018).

Ethics

Prosecutorial Misconduct. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. The article also proffers a few explanations for the persistence of the myth that prosecutorial misconduct is endemic, discusses various problems related to the criminal justice system that are improperly attributed to prosecutors, and evaluates a few well-intentioned but misguided proposals intended to remedy prosecutorial misconduct. Timothy Harker, Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct, Tennessee Law Review, Vol. 85, No. 4, 2018.

WEEKLY ROUNDUP FOR AUGUST 10, 2018

Washington Supreme Court

Employer Tort Liability. An action based on negligent training and supervision is applicable only when the employee is acting outside the scope of his employment. But if the employee is acting within the scope of his employment, then an employer is vicariously liable under the principles of agency. A duty of supervision claim requires evidence that the employer knew or should have known of the dangerous tendencies of the particular employee. Anderson v. Soap Lake School District, No. 93977-2 (Aug. 9, 2018). Justice Gordon McCloud authored a partial dissent, which was also signed by Justices Stephens, Yu and González.

Land Use, Monetary Damages, and Exhaustion of Administrative Remedies. The Land Use Petition Act’s administrative exhaustion requirement does not bar all tort claims. The evidence was sufficient to support the jury’s finding of a substantive due process violation under 42 U.S.C. § 1983 when the plaintiff had a permit to mine and two letters from the County which could be interpreted broadly as an agency determination that the property owner had complied with all of the permit’s premining conditions, and where two of the county’s board commissioners deliberately interfered with the impartiality of the department’s decision-making process. An aggrieved party cannot recover prelitigation, administrate fora attorney fees intentionally caused by the tortfeasor under a tortious interference claim. While RAP 18.1 applies to requests for appellate attorney fees under 42 U.S.C. § 1983, the separate argument requirement is satisfied by a brief (in this case 2 sentences) request in the body of the brief which cites the federal statute. Maytown Sand & Gravel, LLC v. Thurston County, No. 94452-1 (Aug. 9, 2018).

On August 7, 2018, the Washington Supreme Court granted review of the following case:

Legal Financial Obligations. State v. Catling, No. 95794-1. Spokane County. “Granted on the Social Security Act antiattachment issue only.” Issue presented: Whether the imposition of mandatory LFOs on a defendant how receives social security disability payments is valid as long as the court specifies that payments cannot come from the defendant’s social security disability income. The petition for review and an amicus from Disability Rights Washington in support of review are both available on the court’s website. The court of appeal’s opinion is reported at 2 Wn. App. 2d 819 (2018).

Division One

Public Records Act. Records associated with union organizing created by, received by, or in the possession of specifically named employees and specified e-mail addresses are not “public records” under the Public Records Act, because they were not prepared, owned, used or retained within the scope of employment. Service Employees International Union Local 925 v. University of Washington, COA No. 76630-9-1 (Jun. 11, 2018, publication ordered Aug. 8, 2018).

Division Two

Community Custody. A community custody condition that provided: “The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is unconstitutionally vague. State v. Wallmuller, COA No. 50250-0-II (Aug. 7, 2018). [Editor’s Note: This opinion creates a conflict with Division Three’s July 17, 2018, opinion in State v. Johnson, COA No. 34928-4-III. Division Three held that a condition that demands the defendant “[a]void places where children congregate to include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating rinks, and video arcades,” is not unconstitutionally vague. The term “children,” however, must be limited to individuals under the age of 16.]

Waiver of Filing Fees and Inmates. RCW 4.24.430, which requires a court to deny an inmate’s request to waive filing fees in any civil action or appeal against the State where the inmate has brought at least three prior actions that were dismissed because they were “frivolous or malicious” and where the action would not affect the duration of confinement is not unconstitutionally vague and does not violate equal protection. Procedural due process requires the court clerk’s letter ruling to identify the prior actions that the clerk relies on in determining that RCW 4.24.430 applies to a particular inmate. In re Personal Restraint of Troupe, COA No. 50657-2-II (Aug. 7, 2018).

Legal Financial Obligations. The trial court’s inquiry into the defendant’s work history and whether there was any reason why the defendant could not work was inadequate to assess whether the defendant had the ability to pay discretionary LFOs. A court must also inquire into debts and assets. State v Glover, COA No. 49944-4-II (Aug. 7, 2018).

Legal Update for Washington State Law Enforcement

The July 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR AUGUST 3, 2018

Washington Supreme Court

Time Bar and Petitions for Resentencing Based Youth. State v. O’Dell, 183 Wn.2d 680 (2015), which held that while “age is not a per se mitigating factor,” a sentencing court “must be allowed to consider youth as a mitigating factor when” relevant, does not provide an exception to RCW 10.73.090(1)’s one year time bar on collateral attacks. O’Dell was not a “significant and material change in the law.” RCW 10.73.100(6). In re Personal Restraint of Light-Roth, No. 94950-6 (Aug. 2, 2018). Justice González concurred in the result.

Possession of Stolen Property. Possession of a stolen vehicle is not an “alternative means” or “all means” crime. The inclusion of the definition of “possession” in the “to convict” jury instruction does not require the State to prove that the defendant “knowingly received, retained, possessed, concealed, and disposed of a stolen motor vehicle.” RCW 9A.56.140(1). The State’s failure to place an “or” between “concealed” and “disposed” in the “to convict” instruction does not require reversal where the definitional jury instruction contained the word “or.” State v. Tyler, No. 93770-2 (Aug. 2, 2018). Justice Gordon McCloud authored a concurring opinion which was signed by Justice Fairhurst.

Denial of a Peremptory Challenge. The erroneous denial of a peremptory challenge authorized by the criminal rules is not a structural error. In re Personal Restraint of Meredith, No. 94582-0 (Aug. 2, 2018). . Justice Yu concurred.

Ineffective Assistance of Appellate Counsel. Appellate counsel was not ineffective for failing to raise the denial of a non-constitutional denial or peremptory challenge in the direct review because, under RAP 2.5(a), the appellate court could have refused to hear the claim of error because it was not objected to at trial and it is not a type of structural error that requires automatic reversal. In re Personal Restraint of Meredith, No. 94582-0 (Aug. 2, 2018). Justice Yu concurred.

Time Bar and Double Jeopardy. Double jeopardy claims are exempt from the one-year time bar on collateral challenges. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Guilty Pleas and Waivers of Appeals and Collateral Attacks. A defendant cannot waive his right to: (1) assert constitutional violations that arise after the entry of the plea,; (2) effective assistance of counsel in a plea agreement; (3) be sentenced free from constitutionally impermissible factors such as race; and (4) to challenge a sentence in a plea agreement that exceeds the court’s statutory authority. A defendant can waive the right to appeal or assert other challenges to his sentence or conviction. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Double Jeopardy and Guilty Pleas. Criminal defendants cannot pick and choose the portions of the charges to which they will plead guilty. Where the defendant was charged with first degree murder by two alternative means: premeditated murder and felony murder predicated on first degree robbery, his first degree robbery conviction does not merge with the first degree premeditated murder conviction. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Sexually Violent Predators. The admission of expert testimony on a diagnosis of “paraphilia not otherwise specified (NOS), persistent sexual interest in pubescent aged females, non-exclusive,” was not an abuse of discretion. “Paraphilia NOS” is a generally accepted diagnosis within the psychological community. In re Detention of Black, No. 94494-6 (Aug. 2, 2018). Justices Madsen, Wiggins, Gordon McCloud and Stephens dissented.

Division Two

Life Without the Possibility of Parole. Sentencing a defendant with age-related dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment. State v. Moen, COA No. 49474-4-II (Jul. 31, 2018).

Midtrial Motion to Excuse Juror. The trial court did not abuse its discretion in denying the defendant’s midtrial motion to excuse a juror who did not disclose during voir dire that she met with members of the defendant’s family to discuss long-term care, where the juror did not deliberately conceal the fact during voir dire. The juror disclosed the potential conflict soon after hearing testimony regarding the defendant’s attempted suicide and resulting injuries, and she unequivocally stated that she would decide the case fairly, based on the facts and evidence presented. State v. Moen, COA No. 49474-4-II (Jul. 31, 2018).

Division Three

Reempaneling Jury. A discharged jury may be recalled to complete a corrected verdict when the time since discharge is short and external influences have not compromised the jury’s impartiality. State v. Clements, COA No. 35112-2-III (Aug. 2, 2018).

Ninth Circuit

Federal Grants. In the absence of congressional authorization, the Executive Branch may not withhold all federal grants from so-called “sanctuary” cities and counties. City and County of San Francisco v. Trump, No. 17-17478 (9th Cir. Aug. 1, 2018).

State Bar of Nevada Standing Committee on Ethics and Professional Responsibility

Ineffective Assistance of Counsel. A criminal defense lawyer facing allegations of ineffective assistance of counsel from a former client may disclose confidential information relating to representation of the client to the extent the lawyer reasonable believes necessary to defend against the allegations. Any disclosure must be narrowly tailored to the issues raised by the former client. Formal Opinion No. 55.

WEEKLY ROUNDUP FOR JULY 27, 2018

Washington Supreme Court

DOSA Revocations. A fact that necessarily results in DOSA revocation must be proved by a preponderance of the evidence. If the underlying infraction is not proved by a preponderance of the evidence, the Department of Corrections (DOC) may not terminate the defendant’s treatment. DOC must determine on a case-by-case basis whether an individual facing DOSA revocation should be appointed counsel. Personal Restraint of Schley, No. 94280-3 (Jul. 26, 2018) (plurality opinion). Lead opinion signed by Justices Owens, Wiggins, Yu and Gordon McCloud. Justice González wrote separately to indicate his concern by the very low burden of proof – “some evidence” – used in prison disciplinary cases. Justices Fairhurst, Madsen, Johnson and Stephens dissented.

Offender Scores. The defendant must allege a constitutional defect on the face of a prior conviction to challenge the conviction’s validity for purposes of offender score calculation in an otherwise unrelated proceeding. The court may not go behind the judgment and sentence and engage in statutory interpretation to determine the facial validity of a prior conviction for current sentencing purposes. State v. Blair, No. 93995-1 (Jul. 26, 2018). Justice Gordon McCloud authored a concurring opinion which was also signed by Justices Stephens and Madsen.

Restoration of Firearm Rights. RCW 9.41.040(4)(a)(ii)(A) doe not require a petitioner to be conviction-free for five consecutive years or more immediately preceding the filing of the petition. Any five-year conviction-free period will satisfy the terms of RCW 9.41.040(4)(a)(ii)(A). State v. Dennis, No. 95083-1 (Jul. 26, 2018). Justices González, Fairhurst and Yu dissented.

Public Works Contract and Employment Discrimination. A gender discrimination claim based upon the county making the performance of the work under an offered contract more difficult than if the contract had been awarded to a member of the opposite sex was improperly dismissed on summary judgment, where the official overseeing the bidding process commented upon the successful bidder’s attire during the scheduled walk-through, called to discourage her from bidding on the project, the male-owned business received an unscheduled private walk-through, only the contractor status of the female-owned company was checked prior to awarding the bid, the county continued to track the contractor status post-award of bid, and altered the contract to require a bond. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018). Justices Gordon McCloud and Johnson dissented on this point.

Public Works Contract and Negligent Misrepresentation. Summary judgment was improperly granted on the negligent misrepresentation claim as the plaintiff had incurred expenses prior to performance basedupon the bid’s statement that no bond would be required. The public duty doctrine will not bar a company’s negligent misrepresentation claim against the county as once the contract was awarded there was a “special relationship” between the county and the plaintiff. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018).

Public Works Contract and Breach of Contract. A company that was awarded a public works contract was not entitled to pursue monetary damages for its breach of contract claim. The only remedy available to the company, which did not perform under the contract, is injunctive relief. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018).

Division Two

Waiver of Appeal. A written plea agreement provision that waived the defendant’s right to ““any and all other appellate rights [other than the right to appeal any sentence outside of his standard sentencing range] as part of this plea agreement in accordance with State v. Lee,” does not waive the defendant’s right to challenge the validity of his guilty plea. The waiver of appeal does, however, prevent the defendant from challenging the offender score calculation. State v. Harris, COA No. 49641-1-II (Jul. 24, 2018).

Voluntariness of Guilty Pleas. A defendant’s guilty plea to crimes he did not commit in order to take advantage of a plea offer pursuant to In re Barr, was valid where the record demonstrates that the defendant knew the “greater charge” he was seeking to avoid was premeditated first degree murder and the probable cause declaration detailed the evidence available to the State on the original charge. State v. Harris, COA No. 49641-1-II (Jul. 24, 2018).

DOSA Revocations. The Department of Corrections (DOC) must advise inmates serving DOSA sentences that they may request to be represented by counsel at a UA violation hearing and that their request will be considered on a case-by-case basis. DOC’s revocation of a DOSA under RCW 9.94A.662(3) does not violate separation of powers. Personal Restraint of Bufalini, COA No. 50785-4-II (May 10, 2018, publication ordered Jul. 24, 2018).

Kidnapping. Kidnapping is a continuing course of conduct that includes the act of abduction itself and the continued restraint of a victim’s liberty. Double jeopardy was not violated by convictions for first degree kidnapping and attempted first degree kidnapping where the victim regained her liberty by escaping the defendant’s initial restraint. Though the defendant immediately pursued the victim, she was no longer restrained when the defendant attempted to kidnap her again. State v. Classen, COA No. 49762-0-II (Jul. 24, 2018).

Vehicular Homicide and Vehicular Assault. When a defendant claims that a superseding cause negates proximate cause, the jury must be instructed that the State has the burden to prove the absence of a superseding cause. The absence of a superseding cause, however, is not an element that must be added to the “to convict” instruction. State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Voluntary Intoxication. The defendant’s failure to provide competent evidence as to whether methamphetamine or heroin can affect his ability to form the requisite intent was fatal to a request for a voluntary intoxication instruction. Defense counsel was not ineffective in failing to assert a voluntary intoxication defense as a history and diagnosis of amphetamine use disorder will not support the defense absent expert testimony or some other evidence establishing that methamphetamine use affected the defendant’s ability to form the requisite intent. State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Ineffective Assistance of Counsel and Inferior Degree Offenses. Defense counsel provided constitutionally deficient representation by not requesting an inferior degree offense where his closing argument demonstrated that the failure to request such an instruction was not a legitimate trial strategy. Counsel’s closing argument contained this statement: “[Classen] is guilty of assault. There is no question about that. What kind of assault is it? That’s the question.” State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Local Initiatives. A superior court has the authority to conduct a pre-election review of a proposed initiative to determine whether the initiative is beyond the scope of the local initiative power and whether any of the provisions conflict with state law. An injunction preventing the initiative from appearing on the ballot does not violate the proponent’s right to free speech. Port of Tacoma v. Save Tacoma Water, COA No. 49263-6-II (Jul. 25, 2018).

Division Three

Public Records Act. Agency culpability is only one of a series of factors to be taken into account in assessing a PRA penalty. The trial court did not abuse its discretion in assessing a relatively low daily fine where the problems leading up to the PRA violation were attributable solely to one employee and, given that employee’s retirement, a large penalty would not be necessary to deter future PRA violations. Hoffman v. Kittitas County, COA No. 35091-6-III (Jul. 24, 2018). Judge Lawrence-Berrey concurred in a separate opinion.

Ninth Circuit

Judicial Bias. Capital defendant’s right to due process was violated where the judge who presided over the trial never informed the defendant that the FBI agent/murder victim had investigated the judge for possible criminal prosecution. This unrevealed connection created a constitutionally intolerable risk of judicial bias. Echavarria v. Filson, No. 15-99001 (9th Cir. Jul. 25, 2018).

Witness Exclusion Orders. Fed. R. Evid. 615 prohibits a sequestered witness from not only attending a hearing or trial, but reading transcripts from it. An appropriate sanction for violating a Rule 615 sequester order is to allow the defense to cross-examine the witness about his/her exposure to the transcripts. United States v. Robertson, No. 16-10385 (9th Cir. Jul. 20, 2018).

Tennessee Supreme Court Board of Professional Responsibility

Prosecutors and RPC 1.8 and 8.4(d). Prosecuting attorney censured for entering into an agreement to publish a book about the convictions of three people for murder, after he was successful in getting murder convictions as the lead prosecutor in the matter. The publication of the book prior to the conclusions of the appeals of two of the convictions violated RPC 1.8 (conflict of interest) and RPC 8.4(d) (prejudice to the administration of justice). In re Brooks, No. 44880-1-ES (July 13, 2018). Additional facts available here.

WEEKLY ROUNDUP FOR JULY 20, 2018

Division Three

Conditions of Community Custody. Conditions restricting the defendant’s access to nude images and images of children wearing only undergarments and/or swimsuits are invalid as overbroad and not crime related. Conditions prohibiting the possession or viewing of material that shows women, men, and/or children engaging in sexual acts with each other, themselves, with an object, or animal, and attendance at X-rated movies, peep shows, or adult book stores are overly broad and not sufficiently crime related. To the extent Alocer and Magana condoned such conditions, these decisions are “no longer good law after Padilla.” A condition that demands the defendant “[a]void places where children congregate to include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating rinks, and video arcades,” is not unconstitutionally vague. The term “children,” however, must be limited to individuals under the age of 16. State v. Johnson, COA No. 34928-4-III (July 17, 2018). Judge Fearing dissented on the grounds that the “avoid places” condition should be reformed further.

“Old Chief” Stipulations and Post-Conviction No Contact Orders. Old Chief v. United States, 519 U.S. 172, 191-92 (1997), which holds that where the existence of a prior conviction is an element of an offense, the trial court must accept the accused’s offer to stipulate to the prior conviction, also applies to an accused’s offer to stipulate to a post-conviction no-contact order. State v. Taylor, COA No. 35172-6-III (Jul. 17, 2018). [Editor’s Note: Defense counsel may not stipulate to the existence of a prior predicate conviction or the existence of a post-conviction no-contact order over the defendant’s objection. State v. Humphries, 181 Wn.2d 708 (2014). Best practice is to obtain defendant’s agreement to the stipulation on the record in open court.]

Guilty Pleas. A defendant may assert that the trial court violated his due process rights by accepting a guilty plea for the first time on appeal when the challenge is based upon the defendant’s denial of an element of the charged crime at the plea hearing. When a defendant’s oral statement at a plea hearing conflicts with the defendant’s written statement, the court must inquire further and may only accept the guilty plea upon determining that the defendant actually understands the elements of the crime and is admitting to the prohibited conduct. State v. Taylor, COA No. 35172-6-III (Jul. 17, 2018).

Exclusion of Defense Evidence. Whether a trial court’s exclusion of defense evidence violated the accused’s constitutional right to present a defense will be reviewed de novo. Where the excluded defense evidence has minimal or no relevance the trial court’s ruling will be affirmed. The trial court did not err in excluding evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon. State v. Burnam, COA No. 34946-2-III (Jul. 17, 2018).

Fourth Circuit

Prosecutorial Immunity. A prosecuting attorney does not create a hostile work environment by reading aloud, at a trial preparation meeting, potential evidence in the form of letters containing racial epithets. A prosecuting attorney, moreover, acts as an advocate during a trial-preparation meeting, thus triggering absolute prosecutorial immunity. Absolute prosecutorial immunity protects a prosecuting attorney in a suit brought by a police officer who claims that the prosecutor retaliated against him by refusing to call the officer as a witness in criminal cases and by notifying the officer’s employers of that decision. Savage v. Sewell, No. 17-1636 (4th Cir. Jul. 13, 2018).

Sixth Circuit

Facebook. Photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment. Defendant’s argument that the photos could have been manipulated goes to the weight of the evidence, not to authentication pursuant to Fed. R. Evid. 901(a). The Facebook photographs were self-authenticating as a business record. United States v. Farrad, Nos. 16-5102/6730 (6th Cir. Jul. 17, 2018). [Editor’s Note: This opinion contains a comprehensive analysis regarding the admissibility of Facebook records. Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.]

Massachusetts Supreme Judicial Court

Drug-Free Conditions of Sentences. It is permissible to impose a “drug free” condition of probation upon an individual who is addicted to drugs. A person who is addicted to drugs may be subject to probation violation proceedings for subsequently testing positive for illegal drugs. Requiring an individual who has been diagnosed with “substance use disorder” (SUD) to remain drug free does not violate the Eighth Amendment as any sanction is not a punishment for drug use but for the underlying crime. While “addition is a status that cannot be criminalized, . . . judges cannot ignore the fact that relapse is dangerous for the person who may be in the throes of addiction and, often times, for the community in which that person lives.” Massachusetts v. Eldred, No. SJC–12279 (Mass. July 16, 2018). [Editor’s Note: RCW 69.51A.055 allows a drug free condition of sentence to include medical marijuana when the use of marijuana is “inconsistent with and contrary to his or her supervision.”]

WEEKLY ROUNDUP FOR JULY 13, 2018

Washington Supreme Court

Petitions for Review. The Supreme Court accepted review this week of the following cases:

Attenuation Doctrine. State v. Mayfield, No. 95632-4. Cowlitz County. Issues presented: Whether a Gunwall analysis is required with every new article I, section 7 challenge? Whether the federal attenuation doctrine is compatible with articl I, section 7? Whether a voluntary consent to search, obtained with Ferrier warnings, attenuates a search from an illegal seizure? COA opinion is unpublished. Petition for review available here.

Exceptional Sentences. State v. Brown, No. 95734-7. Snohomish County. Issues presented: Whether a trial court may impose an exceptional sentence on remand following an appeal when the court expressly declined to impose an exceptional sentence on the same basis at the original sentencing. Whether a presumption of vindictive COA opinion is unpublished. Petition for review available here.

Division Two

Attempted Manslaughter. Attempted manslaughter is a nonexistent crime. Although the defendant’s conviction for attempted manslaughter was the result of a plea agreement, the judgment and sentence is facially invalid. A conviction for a nonexistent crime is a fundamental constitutional error that causes actual prejudice. In re Personal Restraint of Knight, COA No. 49521-0-II (Jul. 10, 2018).

Ethics Advisory Committee

Pre-trial Dynamic Risk Assessments. The Code of Judicial Conduct prohibits court staff, who are under the judge’s direction and control, from conducting off-the-record interviews of unrepresented defendants with pending matters for the purpose of gathering information for use in a pre-trial risk assessment. Ethics Opinion 18-04.

Legal Update for Washington State Law Enforcement

The June 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR JULY 6, 2018

Washington Supreme Court

Unlawful Possession of a Firearm. Whether a defendant received statutory notice that he was prohibited from possessing a firearm may properly be resolved pretrial. A sentencing court’s failure to notify a defendant at the time of sentencing that he is prohibited from possessing a firearm does not require the dismissal of a charge of unlawful possession of a firearm, if the defendant “otherwise acquired actual knowledge” of his ineligibility to possess firearms. Formal written notices of ineligibility to possess firearms given to the defendant upon his conviction of subsequent felonies by a judge, probation officer, member of the court staff, or defense counsel will satisfy the “otherwise acquired actual knowledge” requirement. State v. Garcia, No. 94457-1 (Jul. 5, 2018). Chief Justice Fairhurst authored the dissenting opinion, which was also signed by Justices Johnson and Gordon McCloud.

Division Two

Failure to Transfer Title. Failure to transfer a vehicle’s title within 15 days of a change of ownership, RCW 46.12.050(5)(a), is a traffic infraction. RCW 46.63.020 makes a failure to perform any act required by Title 46 RCW a traffic infraction, except when a provision is expressly classified as a criminal offense. State v. Hendricks, COA No. 49823-5-II (Apr. 24, 2018, publication ordered Jul. 3, 2018).

Pretext Traffic Stop. The traffic stop for failure to transfer title was not pretextual as the stop was initiated based upon running license plates as vehicles passed him and the deputy did not recognize the vehicle’s occupants until after initiating the traffic stop. State v. Hendricks, COA No. 49823-5-II (Apr. 24, 2018, publication ordered Jul. 3, 2018).

Personal Restraint Petitions and Trial Courts. The filing of a personal restraint petition (PRP) does not invest the superior court of its authority to act in a case. A PRP is an original action in the appellate court which does not trigger RAP 7.2. State v. Contreras-Rebollar, COA No. 48923-6-II (Jul. 3, 2018).

Community Custody. Application of RCW 9.94A.701 to impose a fixed 36-month community custody term upon a person who committed the crime prior to the effective date of RCW 9.94A.701 violates the constitutional prohibition on ex post facto laws. State v. Contreras-Rebollar, COA No. 48923-6-II (Jul. 3, 2018).

WEEKLY ROUNDUP FOR JUNE 22, 2018 & JUNE 29, 2018

United States Supreme Court

Double Jeopardy. Defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. Currier v. Virginia, No. 16-1348 (Jun. 22, 2018).

Historical Cell Site Location Data. Police will generally need to get a search warrant to obtain cell-site location information, a record of the cell towers (or other sites) with which a cellphone connected. Carpenter v. United States, No. 16-402 (Jun. 22, 2018).

Union Agency Fees. Overrules Abood v. Detroint Board of Education and holds that state government workers who do not wish to join the union representing them cannot be forced to pay fees to support the union under a union security agreement. Janus v. American Federation of State, County, and Municipal Employees, No. 16-1466 (Jun. 27, 2018).

First Amendment Retaliatory Arrest Claims. The presence of probable cause will not bar a First Amendment retaliatory arrest claim against a municipality, rather than against the individual arresting officer. Whether a retaliatory arrest claim may be maintained against an arresting officer who has probable cause is left for another day, though the Court noted the “undoubted force” in the City’s argument that probable case should be bar, just as it is a bar in retaliatory prosecution cases. Lozman v. Riviera Beach, No. 17-21 (Jun. 18, 2018). [Editor’s note: The Ninth Circuit in Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013), held that an individual’s First Amendment right was violated when the officers, who had probable cause to arrest, booked and jailed the individual in retaliation for his protected speech. The individual’s criticism of the police for what he perceived to be an unlawful and racially motivated traffic stop fell squarely within the protective umbrella of the First Amendment. The decision in Lozman does not impact the Ford case.]

Eyewitness Identification. Due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. A procedure that may have fallen short of the ideal in some respect is not automatically “impermissibly suggestive. Suppression is not the inevitable consequence of an unnecessarily suggestive procedure. Sexton v. Beaurdeaux, No. 17-1106 (Jun. 28, 2018).

Police and the First Amendment. A police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable. Sause v. Bauer, No. 17-742 (Jun. 28, 2018).

Delays in Execution. In a lone dissent from a denial of certiorari, Justice Breyer contends that the question of whether a lengthy delay in executing a death sentence violates the Eighth Amendment’s prohibition on “cruel and unusual” punishments. Contains an assertion “that the death penalty dotay lacks “requisite reliability.” Jordan v. Mississippi, No. 17-7153 (Breyer, J., dissenting from the denial of certiorari).

Cert. Grants of Interest:

Double Jeopardy. Gamble v. United States, No. 17-646. Question presented: “Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.” Case information available here.

Retaliatory Arrests. Nieves v. Bartlett, No. 17-1174. Question presented: “In Hartman v. Moore, 54 7 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?” Case information available here.

Division Two

Citizen Complaints and Grand Juries. The district court did not abuse its discretion by denying a petition for a citizen complaint in a case in which the court found that there was “no willful disregard on behalf of the state or their oath or their duties.” The superior court did not abuse its discretion in denying a private person’s request to summon a grand jury to determine whether a particular person was involved in criminal activity within the county, after the prosecuting attorney’s office declined to file charges against the individual. The superior court found that it would not serve the public interest to second guess the prosecutor’s charging decision in this case, especially in light of the prosecutor’s inherent charging discretion. In re the Matter of the Petition of Ware, COA No. 50285-2-II (Jun. 26, 2018). [Editor’s Note: The court of appeals declined to reach the constitutional challenges to CrRLJ 2.1(c) and to citizen petitions to convene grand juries as the appeal could be decided on non-constitutional grounds.]

Division Three

Accomplice Liability. A Knapstad motion to dismiss murder charges was properly granted when the evidence leads one to conclude that the defendant did not consent to a duel. The defendant only retrieved his firearm after the other participant, who shot and killed a bystander, grabbed his weapon in order to defend himself. The defendant could have, but never did, shoot at the other participant in the fight before the other participant shot in the defendant’s direction. The defendant’s arming himself and hiding behind a car from the bullets of the other shooter does not fulfill the meaning of “encouragement” for purposes of accomplice liability. The defendant, moreover, was a “victim” of the other participant’s assaultive behavior. State v. Jameison, COA No. 34768-1-III (Jun. 28, 2018).

Drive-by Shooting. Drive-by shooting charges may not be maintained against an accused who he retrives a gun from the car in which he arrived to the scene of the homicide but crouches behind another car at the time he returns fire. State v. Jameison, COA No. 34768-1-III (Jun. 28, 2018).

Juries. When a juror, during deliberations, recalls that he witnessed some of the event forming the charges against the accused, the trial court must remove the juror and seat an alternative. A juror’s observation of a portion of the alleged crime implicates actual, not implied, bias. The seating of an actually biased juror can never be harmless. State v. Winborne, COA No. 35081-9-III (Jun. 26, 2018). Judge Pennell dissented.

Reckless Driving and Eluding. An officer’s use of the word “reckless” or “eluding” while testifying in a trial for violating RCW 46.61.024, attempting to elude police vehicle, constitutes improper opinion testimony. “An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.” State v. Winborne, COA No. 35081-9-III (Jun. 26, 2018). Judge Pennell dissented.

Oregon Supreme Court

Computer Search Warrants. The State is barred by Oregon Const. art. I, § 9 from using data that is “nonresponsive” to the warrant unless some other warrant exception applies. State v. Mansor, No. SC S064382 (Jun. 28, 2018). [Editor’s note: Oregon Const. art. I, § 9 contains language that is arguably less protective than Washington Const. art. I, § 7. Oregon Const. art. I, § 9 states that “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”].

WEEKLY ROUNDUP FOR JUNE 15, 2018

United States Supreme Court

Culverts. The Ninth Circuit’s opinion in United States v. Washington, 853 F.3d 946 (9th Cir. Mar. 2, 2017), is affirmed by an equally divided court. Washington v. United States, No. 17-269 (Jun. 11, 2018).

Washington Supreme Court

Attorney Discipline. Attorney discipline is not subject to double jeopardy protection. In re the Discipline of Waechter, No. 201,645-6 (June 14, 2018).

Attempted Crimes and “To Convict” Instructions. In a prosecution of criminal attempt, the State has to prove only two essential elements: (1) intent to commit a specific crime, and (2) any act which is a substantial step toward the commission of that crime. Both approached suggested in the WPIC comments for formulating a “to convict” instruction for attempted cases are proper but the first option, in which the “to convict” instruction states these essential elements along with a separate definition of the crime the actor intended to commit is most in line with the statutory definition. The definition of the underlying crime is not required to be included in the “to convict” instruction as the State is not required to prove each element of the underlying substantive crime in an attempt case. State v. Nelson, No. 94712-1 (June 14, 2018).

Robbery. Robbery does not include a non-statutory element that the victim have an ownership, representative, or possessory interest in the property. The State is not required to prove that an employee has care, custody, control or management of an employee’s property in a robbery prosecution. State v. Richie, 191 Wn. App. 916 (2015), and other cases are overruled to the extent they hold otherwise. State v. Nelson, No. 94712-1 (June 14, 2018). Justice González authored a concurring opinion “to stress that a first degree robbery charge might well be sustainable when the property was taken from a customer, not just an employee.” Justice Gordon McCloud concurred, stating that the majority’s discussion about the continuing validity of Ritchie is dicta.

Division Two

Concealed Pistol Licenses. A concealed pistol license may not be denied to an individual based upon juvenile felony adjudications once those adjudications have been sealed. The sealing statute requires treating the offender as if he had never been convicted of an offense. Once sealed, the juvenile offenses will not prohibit the individual from possessing a firearm under RCW 9.41.040, nor prevent the individual from receiving a CPL. The sealing of the juvenile adjudication allows the individual to lawfully possess a firearm under federal law. An individual who resorts to mandamus to compel the issuance of a CPL is entitled to reasonable attorneys’ fees under RCW 9.41.0975(2)(d). Barr v. Snohomish County Sheriff, COA No. 50623-8-II (Jun. 12, 2018).

Division Three

Public Records Act. A trial court may consider the small size of a jurisdiction and the disproportionate burden on its taxpayers of a penalty whose amount would be appropriate if imposed on a larger jurisdiction. A trial court does not abuse its discretion in arriving at a preliminary penalty based on culpability and then reducing the penalty to an amount per taxpayer deemed necessary and sufficient to deter future misconduct. The 2011 legislation that eliminated a $5 floor on per-day penalties under the Public Records Act is remedial legislation that applies retroactively. Zink v. City of Mesa, COA No. 34599-8-III (Jun. 14, 2018).

WEEKLY ROUNDUP FOR JUNE 1, 2018 & JUNE 8, 2018

United States Supreme Court

Fourth Amendment and Curtilage. Officers may not enter the curtilage of a house without a search warrant in order to remove the tarp from a motorcycle in order to confirm that the motorcycle was stolen. The partially enclosed top portion of the driveway that abuts the house is curtilage. Collins v. Virginia, No. 16-1027 (2018).

Washington Supreme Court

Public Records Act. Records containing trade secrets are not categorically excluded from public disclosure under the Public Records Act. Such records may be enjoined from disclosure under RCW 42.56.540, only if disclosure would clearly not be in the public interest, and would substantially and irreparably damage a person or a vital government interest. Lyft, Inc. v. City of Seattle, No. 94026-6 (May 31, 2018). Justice González dissented in part. Justices Fairhurst, Wiggins and Gordon McCloud signed his dissent. Justice Gordon McCloud also authored a separate dissent.

The Washington Supreme Court granted review in the following cases on June 5, 2018:

Law of the Case Doctrine and Assault. State v. Dreewes, No. 95551-4. Snohomish County– State’s Petition. “State’s petition for review granted; issues raised in Respondent’s answer to petition for review denied.” Question Presented. “When the defendant is charged with Second Degree Assault on an accomplice theory of liability, is the State required to prove the defendant knew a particular person was assaulted under the law of the case doctrine?” COA opinion reported at 2 Wn. App. 2d 297 (2018). Appellate court pleadings available here.

Felony Murder and Excusable Homicide. State v. Henderson, No. 95603-1. King County– State’s Petition. Questions presented whether an excusable homicide instruction is proper in a felony murder when accident is not a defense to felony murder. COA opinion is unpublished. Appellate court pleadings available here.

Amending Information. State v. Gehrke, No. 95635-9. Spokane County. “Petition for review granted only on amended information issue.” Question presented: “Whether the trial court abused its discretion in permitting the State to amend its information after the close of its case-in-chief, but prior to resting, where the State expressly stated it intended to rest regardless of the trial court’s ruling?” COA opinion is unpublished. Appellate court pleadings available here.

Wrongful Discharge and In-House Counsel. Karstetter v. King County Corr. Guild, No. 95531-0. Question presented: Whether a discharged in-house counsel may maintain a wrongful discharge claim or enforce an employment contract. COA opinion reported at 1 Wn. App. 2d 822 (2017). Appellate court pleadings available here.

Unlawful Detainers. Randy Reynolds & Assoc., Inc. v. Harmon, No. 95575-1. “Petition for review granted; review of issues raised in answer to petition for review granted.” Questions presented: Whether the public interest exception to the mootness doctrine may be applied in a case in which the respondent does not participate. Whether the court erred by considering evidence from outside of the record on review when RAP 9.11 was not satisfied. Whether a trial court has the ability to stay a writ of restitution issued in an unlawful detainer action. Whether the trial court has the discretion to waive the bond required by RCW 59.18.390(1).COA opinion reported at 1 Wn. App. 2d 239 (2017). Appellate court pleadings available here.

Division One

Outrageous Misconduct. The trial court did not abuse its discretion by dismissing a charge of attempted rape of a child for outrageous police misconduct, where an office, posing as a fictional 14-year-old girl sent the defendant nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited the defendant to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the court of four days. State v. Solomon, COA No. 76298-2-I (May 29, 2018).

Admission of Certified Driver’s License. A certified copy of a driver’s license may be admitted as a self-authenticating business or public record and the contents of the driver’s license also satisfies the definition of a “public record” under RCW 5.44.040. State v. Bajardi, COA No. 77732-7 (April 16, 2018, publication ordered May 29, 2018).

Offender Score: Comparability of California Burglary Convictions. Burglary in California, Cal. Penal Code § 459, is not legally comparable to Washington burglary statute. The defendant’s guilty plea to an information that alleged an “unlawful entry” does not render the offense factually comparable. State v. Davis, COA No. 75610-9-I (May 29, 2018).

Legal Resources for Represented Jail Detainees. A defendant, who is represented by counsel, is not unconstitutionally deprived of his right to consult with counsel by the jail limiting access to the Westlaw workstations to one hour per week, which could be reduced or eliminated to accommodate the needs of pro se defendants. State v. Davis, COA No. 75610-9-I (May 29, 2018).

Represented Defendants and Discovery. The State had no obligation to personally disclose to the defendant the contents of a firearm fingerprint report. Defendant’s counsel did not violate objective standards of reasonableness by not providing the defendant with an early redacted set of discovery. Defendant was not entitled to a continuance of trial in order to personally review and digest the discovery. State v. Davis, COA No. 75610-9-I (May 29, 2018).

Division Two

Restoration of Firearm Rights. A second degree robbery conviction is not an automatic bar to restoration of firearm rights. An other current offense is not a “prior conviction” that can preclude firearm restoration. A person seeking restoration of rights due to a felony conviction need not prove compliance with all sentencing conditions. Benson v. State, COA No. 50270-4-II (Jun. 5, 2018).

Vehicular Homicide. The defendant was properly convicted of vehicular homicide for the death of a Good Samaritan who was struck by another vehicle while rendering assistance to the occupant of the vehicle that was initially struck by the defendant’s vehicle. The defendant’s rear-ending of the first vehicle proximately caused the death of the Good Samaritan. State v. Frahm, COA No. 49231-8-II (May 30, 2018).

Conspiracy to Commit Perjury. Sufficient evidence established that the defendant reached an agreement with an individual the defendant met in jail for the individual to make a materially false statement, despite the alleged co-conspirator’s statement that the plan to secure the defendant’s freedom by providing police with a false alibi was his and his alone. State v. Frahm, COA No. 49231-8-II (May 30, 2018).

Division Three

Double Jeopardy. Double jeopardy is not violated by sentencing a defendant for felony murder predicated on rape and for the competed rape. The first degree murder and rape convictions do not merge. State v. Muhammad, COA No. 34233-6-III (Jun. 7, 2018).

Investigative Stops. Although officers did not observe any criminal conduct on the security videos that showed the homicide victim walking toward a distinctive car immediately before her death, the totality of the circumstances rendered an investigative stop of the distinctive car three days later. The scope of the stop, which was limited to gaining the identification of the driver and to asking the driver if he was present at the crime scene and if he saw any suspicious activity on the night of the murder was also proper. State v. Muhammad, COA No. 34233-6-III (Jun. 7, 2018).

Cell Phone Ping. Exigent circumstances excused the warrantless pining of the murder suspect’s phone so the officers could determine his location in order to execute a search warrant for the suspect’s vehicle before the suspect could escape or destroy evidence. State v. Muhammad, COA No. 34233-6-III (Jun. 7, 2018).

Legal Update for Washington State Law Enforcement

The May 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR MAY 25, 2018

United States Supreme Court

Tribal Sovereign Immunity. The Washington Supreme Court held that a quiet title action could go forward against property owned by the Tribe because the action was in rem. The United States Supreme Court vacated the Washington Supreme Court’s decision, which was reported at 187 Wn.2d 857 (2017), and remands for the Court to consider whether the Tribe can assert sovereign immunity regarding immovable property located in Washington State that the Tribe purchased in the same manner as a private citizen. Upper Skagit Indian Tribe v. Lundgren, No. 17-387 (2018). Justices Thomas and Alito dissented, arguing that there is no reason for the Supreme Court not to affirm on the immovable-property common law exception.

Washington Supreme Court

Model Toxics Control Act. DNR is not liable, under Model Toxics Control Act, as “owner or operator” for contamination caused by its lessee. Pope Resources, LP v. Washington State Department of Natural Resources, No. 94084-3 (May, 24, 2018). Dissenters were Justices González, Yu, and Gordon McCloud.

Division Three

Residential DOSA. A trial court may waive the school zone enhancement in order to lower the midpoint of the defendant’s standard range to less than 24-months, so that the defendant will qualify for a residential DOSA. State v. Yancey, COA No. 35216-1-III (May 24, 2018). Judge Korsmo dissented.

Excessive Force Claim. A law enforcement’s “door-checking,” the opening of a patrol car door so that the door strikes and stops a speeding motorcyclist, is a seizure within the meaning of the Fourth Amendment. Door-checking, which the WSP considers to be a method of intentional intervention and lethal force, was excessive where the trooper lacked probable cause to believe that the plaintiff committed a crime involving serious physical harm to another and at the time of the door-check the plaintiff was obeying all traffic laws except the speed limit. The troopers are not entitled to qualified immunity despite the majority “encounter[ing] some difficulty in discerning clearly established law,” slip op. at 28, and the court’s inability to find a prior case involving a door check. Slip op. at 35. The plaintiff’s Alford plea to attempting to elude was insufficient to trigger the felony bar rule, RCW 4.24.420. Sluman v. State of Washington, COA No. 34467-3-III (May 22, 2018). Judge Lawrence-Berry concurred in part, finding that the felony bar rule did not apply because the eluding crime was not a proximate cause of the plaintiff’s injuries. Judge Korsmo dissented on the grounds that the felony bar rule required the dismissal of the claim for false arrest and false imprisonment.

WEEKLY ROUNDUP FOR MAY 18, 2018

United States Supreme Court

Automobile Searches. While a car thief does not have a reasonable expectation of privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement. Byrd v. United States, No. 16-1371 (May 14, 2018).

Defendant Autonomy. The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Counsel’s admission of a client’s guilt over the defendant’s express objection blocks the defendant’s right to make a fundamental choice about the defendant’s own defense. When such a violation occurs, the defendant is entitled to a new trial without any need to show prejudice. McCoy v. Louisiana, No. 16-8255 (May 14, 2018).

Shackling. The Ninth Circuit’s opinion striking down a district wide policy permitting the use of full restraints on most in-custody defendants produced in court for nonjury proceedings by the United States Marshals Service is vacated with instructions to dismiss the case as moot. United States v. Sanchez-Gomez, No. 17-312 (May 14, 2018).

Washington Supreme Court

Public Records Act and Work Product. E-mails exchanged between Kittitas County and the Department of Ecology regarding how to bring a hazardous waste facility located i Kittitas County into compliance with state and local regulations are work product. These e-mails are not discoverable under the Public Records Act as Kittitas County did not waive its work product protection because disclosure of the e-mails to Ecology never created a significant likelihood that an adversary would also obtain the information. Kittitas County v. Allphin, No. 93562-9 (May 17, 2018). Justice Yu dissented. Her dissent was signed by Chief Justice Fairhurst and Justice González. Justice Madsen wrote a concurring in the dissent opinion.

Indecent Exposure and Rapid Recidivism. The sexual motivation aggravator, RCW 9.94A.535(3)(f), can apply to the crime of indecent exposure, RCW 9A.88.010. The rapid recidivism aggravator, RCW 9.94A.535(3)(t), was not void for vagueness as applied to a defendant who reoffended 16 days after being released from jail. State v. Murray, No. 94346-0 (May 17, 2018). The dissenters were Justices Madsen and Gordon McCloud.

Division Three

Ineffective Assistance of Counsel and Arraignment. Defense counsel provided ineffective assistance of counsel when he failed to advise the defendant that he had the right to plead guilty as charged at arraignment, that the defendant would lose the right to plead guilty as charged without the approval of the Prosecuting Attorney if he entered a plea of not guilty at arraignment, that the evidence could support conviction of a more serious crime then that currently charged, that the more serious crime carries a dramatically greater punishment, and that the decision to plead guilty or not guilty belongs to the defendant, not to defense counsel. The defendant in this case established prejudice where the record convincingly demonstrates that he would have pleaded guilty at arraignment. Remanded with directions to give the defendant the opportunity to plead guilty to the original charge of rape in the third degree. In re Personal Restraint of Burlingame, COA No. 35177-7-III (May 17, 2018).

Disability Discrimination. An employee’s disability discrimination claim for termination of his employment by the Washington State Patrol was barred by collateral estoppel where a labor arbitration hearing determined that his employment was terminated for just cause. Scholz v. Washington State Patrol, COA No. 34919-5-III (May 17, 2018). [Editor’s Note: This opinion reiterates the Washington Supreme Court’s 2009 statement regarding the lack of a well-defined public policy against reinstating an officer found to be untruthful. The opinion fails to cite or mention RCW 43.101.021 which was adopted after the Washington Supreme Court’s 2009 statute. RCW 43.101.021 states that “It is the policy of the state of Washington that all commissioned, appointed, and elected law enforcement personnel comply with their oath of office and agency policies regarding the duty to be truthful and honest in the conduct of their official business.”].

Legal Update for Washington State Law Enforcement

The April 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Inventory Searches. A suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity. United States v. Johnson, No. 15-30222 (May 14, 2018).

Eighth Amendment and “Juveniles.” The Eighth Amendment does not bar a sentence of life imprisonment without the possibility of parole imposed upon a defendant, who was a juvenile, at the time he committed felony murder and other crimes. United States v. Briones, No. 16-10150 (9th Cir. May 16, 2016).

Ethics

RPC 3.8(d) and Brady. The disclosure obligations found in Rule 3.8(d) of the Tennessee Rule of Professional Conduct 3.8(d) is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor’s legal disclosure obligations. This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady. Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or otherwise falls within RPC 3.8(d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable. and in Brady v. Maryland are coextensive. Board of Professional Responsibility of the Supreme Court of Tennessee Formal Ethics Opinion 2017-F-163. [Editor’s note: This opinion adds to the growing split regarding the interpretation of RPC 3.8(d). The New York City Bar Ethics Committee issued an opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v. Maryland. Courts or Ethics Committees have also decided the the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana, and Wisconsin. The Washington State Bar Association has not issued an ethics opinion on this topic. The Washington Supreme Court, however, indicated in State v. Davila, 184 Wn.2d 55, 79 n. 9 (2015), that the ethics rule imposes a broader duty upon prosecutors then does the constitution.]

Judicial Recusal and Elections. An incumbent judge may hear a case where the prosecuting attorney is running for election against the judge if the judge subjectively believes that he or she can be fair and impartial and an objective review of the circumstances indicates that the judge’s ability to be fair and impartial is unlikely to be questioned. The judge must, however, disclose on the record of each case that the judge and the prosecutor/judicial candidate are involved in a contested election and must offer to recuse. State of Washington Ethics Advisory Committee Ethics Opinion 18-03.

WEEKLY ROUNDUP FOR MAY 4, 2018 & MAY 11, 2018

Washington Supreme Court

De Facto Life Sentences. A defendant who is serving a 900 month sentence for a murder committed prior to his eighteenth birthday is not entitled to be resentenced. RCW 9.94A.730’s parole provision is an adequate remedy for the alleged Miller violation. State v. Scott, No. 94020-7 (May 10, 2018). Justices Gordon McCloud, Yu, and González concurred in the result but left open the possibility that a different result might be reached under Washington Constitution article I, section 14.

Community Custody Pornography Restrictions. The community custody condition prohibiting the defendant from “possess[ing] or access[ing] pornographic materials, as directed by his supervising Community Corrections Officer” is unconstitutionally vague because the accompanying definition of “pornographic materials” is vague and overbroad. The judgment and sentence defined the term “pornographic materials” as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.” State v. Padilla, No. 94605-1 (May 10, 2018).

Warrantless Entry. Ferrier warnings were not required prior to the officers entering the apartment owner’s home, as the officers were not there to perform a “knock and talk.” The officers were there to question the apartment owner about a report from an individual who allegedly was robbed in the apartment. The apartment owner’s unambiguous consent to officers searching her apartment renders it unnecessary for the Court to determine whether protective sweeps may be performed in non-arrest situations. Consent was not separately required from the defendant, who was neither a tenant or someone who would have a valid expectation of privacy in the apartment. State v. Blockman, No. 94273-1 (May 10, 2018). Justices Gordon McCloud authored a concurring opinion that was also signed by Justice Wiggins, which would limit Maryland v. Buie, 494 U.S. 325 (1990), protective sweeps to arrest situations.

Summary Dismissals of Personal Restraint Petitions. The Chief Judge erroneously dismissed a timely PRP as frivolous. The petitioner’s ineffective assistance of counsel claim based on his attorney’s failure to understand the DNA evidence may not be frivolous, as his attorney’s misunderstanding may have led to the petitioner rejecting an allegedly favorable plea agreement. The matter is remanded to the COA for further proceedings. In re the Personal Restraint of James, COA No. 94869-1 (May 10, 2018).

LUPA. A city council’s restrictive zoning decision is judicially reviewable under chapter 36.07C RCW, the Land Use Petition Act (LUPA), when the ordinance targets a single property with a cole owner and is not an amendment to the city’s comprehensive plan. Schnitzer West, LLC. v. City of Puyallup, No. 94005-3 (May 10, 2018) (lead opinion). Justice González concurred, stating that LUPA review is this context is limited, with the petitioner in this case allowed to seek redress under LUPA because the city passed a site-specific ordinance targeting the petitioner’s existing proposal. Dissenters were Justices Johnson, Yu, Madsen and Fairhurst.

During the week of May 1st, the Supreme Court accepted review of the following cases:

Contempt. State v. Sims, No. 95479-8. This case stems from Western State Hospital’s failure to timely perform competency evaluations and/or restoration services to criminal defendants. Questions presented: Whether an oral ruling imposing a remedial monetary sanction for contempt of court is effective and enforceable upon issuance or only when it is memorialized in a written order. Whether by enacting the contempt statute, chapter 7.21 RCW, which authorizes full compensation to parties injured by contemptuous acts, the State impliedly waived its sovereign immunity from being held to post judgment interest on monetary sanctions for contempt of court. COA opinion reported at 1 Wn App. 2d 472 (2017). Appellate court pleadings available here.

Local Initiatives. Protect Pub. Health v. Freed, No. 95134-9. King County. Questions presented: Whether King County Initiative 27, which if approved would prohibit the funding and operation of supervised drug consumption sites in the county, is beyond the scope of the local initiative power in that it interferes with the county’s statutory authority to appropriate funds for public health work and the county board of health’s statutory authority to promulgate regulations promoting public health. Appellate court pleadings available here.

Division One

DOSA. A person is eligible for a DOSA sentence if the offender has not received a drug offender sentencing alternative within the 10 years before commission of the current offense. A defendant who receives a DOSA sentence after the commission of the current offense is still eligible for a DOSA. State v. Noy, COA No. 75993-1-I (May 7, 2018).

Jury Instructions and Unanimity. WPIC 1.04 adequately instructs the jurors that they have a duty to discuss the case with each other and to deliberate together in an effort to reach a unanimous verdict. The jury does not need to be separately instructed that it must complete all deliberations when all twelve jurors are in the jury room. State v. Sullivan, COA No. 76358-0-I (Apr. 30, 2018).

Felony Harassment. The defendant’s prior conviction for third degree assault of the same victim qualifies as a crime of harassment for purposes of elevating the current charge of harassment from a gross misdemeanor to a felony. The list of crimes in RCW 9A.46.060 is not exclusive. State v. Joseph, COA No. 76308-3-I (Apr. 30, 2018).

Domestic Violence Aggravator. The jury must be instructed that it must unanimously find the “family or household relationship” beyond a reasonable doubt in order to answer the special verdict with a “yes.” State v. Joseph, COA No. 76308-3-I (Apr. 30, 2018).

Venue of Public Works Contract Actions. RCW 36.01.050(3) renders the public works contract venue provision unenforceable but does not abrogate the mandate under RCW 36.01.050(1) that a county shall file a lawsuit against a contractor in the county in which the contractor resides. The King County contractor’s motion to dismiss King County’s breach of contract action and/or to transfer venue to Snohomish County were both properly denied. Frank Coluccio Construction Company v. King County, COA No. 76334-2-I (May 7, 2018).

Division Two

Regulatory Taking. A rezone of the petitioner’s property did not constitute an as applied taking. The ordinance was adopted to manage steep areas and are prone to geologic instability, protect tree cover, protect the entrance to the city, and comply with the GMA’s mandate to adopt development regulations that provide open space areas between urban growth areas and that protect critical areas that are susceptible to erosion or sliding. That the public may benefit from the preservation of the City’s magnificent entry does not reduce or remove the effect of the Ordinance of safeguarding the public from harm. Thun v. City of Bonney Lake, COA No. 49690-9-II (May 1, 2018).

Division Three

Sufficiency of the Evidence of Rape of a Child. The child victim’s testimony, which placed the multiple incidents of rape within a time frame that partially exceeded the charging period by eight months was sufficient to support a conviction. The “on or about” for the charging period allows for conviction of the act at any time within the statute of limitations, so long as there is no defense of alibi. State v. Yallup, COA No. 34925-0-III (May 10, 2018).

Late Entry of Findings. It is the responsibility of the prevailing party to make efforts to get findings entered in a manner that facilitates timely review of an appeal. If the prevailing party does not get findings entered in a timely manner, the appellant’s counsel should alert the prevailing party’s counsel. If this does not result in the timely entry of findings, the appellant should file a motion to compel entry of findings in the trial court. State v. Yallup, COA No. 34925-0-III (May 10, 2018).

Unit of Prosecution. The unit of prosecution for attempted murder is each substantial step taken to complete the crime. Double jeopardy was not violated by one conviction for attempted first degree murder based upon the defendant’s strangulation of the victim and one conviction for attempted first degree murder based upon the defendant’s slitting the victim’s throat where a period of time separated both attempts. State v. Latham, COA No. 34535-1-III (May 3, 2018).

Offender Score. The defendant’s two attempts to kill the same victim did not constitute same criminal conduct. The defendant’s first attempt by strangulation occurred in the basement of a house. The second attempt was made a couple of hours later by slashing the victim’s throat with a knife outside near a vacant home located two blocks from where the first attempt occurred. State v. Latham, COA No. 34535-1-III (May 3, 2018).

Exclusion of Defense Evidence. The trial court properly barred Mr. Predmore’s proposed testimony regarding the effects of methamphetamine on the victim, as based upon speculation, where Mr. Predmore never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion. State v. Richmond, COA No. 34157-7-III (May 1, 2018).

First Aggressor Jury Instruction. A first aggressor instruction was properly tendered based upon the defendant’s actions after the “moment of peace” when the defendant returned from inside his home. Conflicting testimony indicated that the defendant armed himself with a two-by-four and ran outside his home. An unlawful act is not a requirement for a first aggressor instruction. State v. Richmond, COA No. 34157-7-III (May 1, 2018). Judge Fearing dissented.

WEEKLY ROUNDUP FOR APRIL 27, 2018

Washington Supreme Court

Domestic Violence No Contact Orders.   The duration of a domestic violence (DV) no-contact order entered by a court of limited jurisdiction is limited to the length of the underlying suspended sentence.  State v. Granath, No. 94892-5 (Apr. 26, 2018).  Justice Stephens was the lone dissenter.
 

Division Two

Search Warrants.  A search warrant for firearms located in a residence allows officers to search a locked gun safe.  The Washington Constitution does not require that a premises search warrant expressly authorize the search of locked containers likely to hold the search’s object.  State v. Witkowski, COA No. 49490-6-II (Apr. 24, 2018).  Judge Sutton authored a concurring opinion. 

Cross-Examination.  The trial court’s limitation upon cross-examination of the victim regarding her knowledge that the offender had a criminal history of sexual crimes did not violate either  the defendant’s constitutional right to present a defense or to confront witnesses.  The trial court did not abuse its discretion or commit an evidentiary error by limiting the scope of cross-examination.    State v. Blair, COA No. 50037-0-II (Apr. 24, 2018).  Judge Worswick concurred, though she would apply a different analysis than that used by the majority.  
 
Right to Present a Defense.  The trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of the offense did not violate the defendant’s Sixth Amendment rights.  The trial court did not abuse its discretion in finding that the engagement and trip was not minimally relevant to whether the victim was actually placed in reasonable fear on the day of the offense that the defendant’s threat to kill her would be carried out.   State v. Horn, COA No. 48489-7-II (Apr. 24, 2018).  Judge Melnick concurred, though he would apply a different test – the one identified in State v. Blair – for analyzing the Sixth Amendment question than this panel applied.

 

Division Three

Left Lane of Travel.  It is a violation of RCW 46.61.100 to continuously drive in the left lane of a multilane roadway except in four exceptions.  All of the exceptions listed in RCW 46.61.100(2) are transient.  Even when one of the fourst circumstances exist, it is an infraction to travel in the left lane if it will impede the flow of traffic.  State v. Thibert, COA No. 33341-8-III (Apr. 26, 2018). [Editor’s note: RCW 46.61.100 was amended by Laws of 2018, ch. 18, sec. 1, but not in a manner that impacts the holding of this case.]
WEEKLY ROUNDUP FOR APRIL 20, 2018

Washington Supreme Court

Mandatory Reporting of Child Abuse.  Failure to comply with the mandatory reporting duty in RCW 26.44.030(l)(a) requires some connection between the individual’s professional identity and the criminal offense.  A teacher’s failure to comply with the mandatory reporting duty must have some connection to his or her professional identity.  A teacher may not be prosecuted for failing to report the alleged abuse of her own children, who are not her students, when the abuse occurred within the home and was perpetuated by another family member.   State v. James-Buhl, No. 94409-1 (Apr. 19, 2018).   Justice González was the lone dissenter.
 
Juvenile Suspended Dispositions.  Juvenile court judges lack statutory authority to suspend Juvenile Justice Act disposition unless the disposition fits under one of the specifically listed exemptions in RCW 13.40.160(10).  This restriction applies to manifest injustice dispositions.  Division Three’s opinion to the contrary in State v. Crabtree, 116 Wn. App. 536 (2003), is overruled.  State v. Bacon, No. 94393-1 (Apr. 19, 2018).
 
Recreational Use Immunity. The recreational use immunity statute, RCW 4.24.210, extends to negligence actions in addition to premises liability claims.  While more than incidental recreational use may be required, sole recreational use is not required before conferring immunity to landowners.  Lockner v. Pierce County, No. 94643-4 (Apr. 19, 2018).   Justice Madsen authored a concurring opinion.
 

Division One

Community Caretaking or Emergency Doctrine Warrantless Searches.  The officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to be living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.   State v. Boisselle, COA No. 77767-0-I (Apr. 16, 2018).
 
Sixth Amendment Right to Counsel.  The State bears the burden of demonstrating the absence of prejudice beyond a reasonable doubt from jail staff members’ reviewed 14 pieces of confidential correspondence that the defendant sent to his counsel on jail kites and/or “Public Defender Request Forms.”  If the State fails to meet this burden, the trial court must fashion a proper remedy.  Dismissal of charges is not the only possible remedy.  State v. Irby, COA No. 75901-9-I (Apr. 16, 2018).
 

Ethics

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error.  Model Rule of Professional Conduct 1.4 requires a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. No similar obligation exists under the Model Rules to a former client where the lawyer discovers after the attorney-client relationship has ended that the lawyer made a material error in the former client’s representation.  American Bar Association Formal Opinion 481 (Apr. 17, 2018).
WEEKLY ROUNDUP FOR APRIL 13, 2018

Washington Supreme Court

Death Penalty.  State v. Schierman, No. 84614-6 (Apr. 12, 2018).  Issues addressed in this plurality opinion include:
• Right to Be Present.  A defendant has no right to be present when his attorneys review juror declarations in the nonadversarial setting of the jury administrator’s office.  A defendant has a right to be present during argument on for-cause challenges.  While the in chamber meetings between counsel and the judges to discuss the for-cause challenges violated the defendant’s right to presence, the error was harmless. 
• Public Trial.  The preliminary hardship determinations which were made in the nonadversarial setting of the jury administrator’s office did not violate the defendant’s public trial right.  The public trial right was violated by the court hearing and ruling on six for-cause juror challenges in a closed proceeding.  The violation, however, was de minimis as the proceeding involved no witness testimony, no questioning of potential jurors, and no presentation of evidence.  (Dissenters on this point were: Stephens, Johnson and Owens, and Fairhurst).   
• Death Qualification.  The same test is used to determine whether a prospective juror may be dismissed for cause because of his or her views on capital punishment.  Witt’s “substantial impairment” standard governs  for-cause dismissals based on either opposition to or support for the death penalty. 
• Sexual Motivation.  The State’s sexual motivation theory was supported by the evidence and was disclosed in a timely manner to the defense.  Expert testimony was not required in order for the State to argue this theory to the jury.
• Uniformed Soldiers.  The defendant was not deprived of a fair trial by testimony from the father of two victims and the husband of a third victim that he was in the military, on active duty at the time, and deployed to Iraq at the time of the murders, As the jury was instructed to disregard all testimony regarding the witness being stationed in a combat zone in July of 2006.  The presence of soldiers in uniform in the audience was a display of affiliation, not a comment on the defendant’s guilt.
• Jury Instructions.    WPIC  26.01.01 is a correct definition of premeditation.  Using this instruction along with the WPIC instruction on intent makes the distinction between “premeditation” and “intent” abundantly clear.  The standard WPIC on voluntary intoxication is a correct statement of the law.   The trial court erred by denying the defendant’s request for manslaughter instructions as there was evidence that his voluntary consumption of alcohol could have supported the inference that he was too intoxicated to premeditate or to intend the murders.  The error, however, was harmless as the jury clearly did not credit the defendant’s theory that an alcoholic blackout diminished his capacity to premeditate.
• Penalty Phase Exclusion of Defense Testimony.  The trial court did not err by excluding expert testimony on the lack of future dangerousness in prison for lack of relevance, as the testimony did not relate to the defendant’s character, history, and background.  The trial court did not err by excluding expert testimony regarding the defendant’s diminished control as the issues of premeditation and intent had already been decided in the guilt phase.  The trial court did, however, allow the expert to testify to the issues relating to moral culpability, including the defendant’s development as a child, boy and adolescent, his addition issues, and his alcohol treatment and recovery.  The trial court did not err by excluding expert testimony regarding past brain injury as the opinion was not expressed to a reasonable degree of medical certainty.    (Dissenter on this point Gordon McCloud)
• Victim Impact.  The admission of a 15-minute long video that was prepared for purposes of the memorial service by the victims’s family and which provided moving images of the four victims did not violate the defendant’s right to due process or the protection against cruel punishment.  The victim family member testimony that addressed coming to the U.S. as political refugees because they were persecuted in the former Soviet Union for their Christianity and the importance of faith in the victims’ lives did not violate the defendant’s right to due process or the protection against cruel punishment.  
• Cross-Examination of Defendant’s Stepfather.  The State was properly allowed to cross-examine the defendant’s stepfather with specific acts of violence contained in the defendant’s treatment journal after the stepfather testified that the defendant “didn’t have the history of hurting people or hurting things, or doing things that were violent.” 
• Penalty Phase Closing Argument.  The prosecutor’s quoting a Holocaust museum plague about the immorality of remaining a “bystander” was an improper appeal to passion and prejudice.  The error, standing alone, is not sufficiently prejudicial to warrant reversal.
• Proportionality.  The defendant’s death sentence for killing four people, including a 3-year-old and a 5-year-old is not disproportionate.  (Dissenters on this point Gordon McCloud, Madsen and Fairhurst.) 


Division One

Family and Household Members.  A man, who is cohabitating with a woman and her child, does not have a “family or household” relationship to the child.  Neither the presumed parent nor de facto parent doctrine apply in a criminal case.  State v. Shelley, COA No. 77761-1-I (Apr. 9, 2018).
 
Forgery.  An escrow agent’s conviction for forgery for altering a certificate of insurance to make it appear she had enough liability insurance to cover a transaction she had been hired to handle was supported by sufficient evidence, as the certificate of insurance had legal efficacy both as a public record and as a foundation for legal liability.  State v. Bradshaw, COA No. 75853-5-I (Apr. 9, 2018).
       

Division Three

Self Defense and No Duty to Retreat.   A no duty to retreat instruction was not supported by trial evidence that the defendant had a right to be in the private parking lot of an apartment complex.  The defendant went to the apartment complex to conduct business with a guest of a tenant, and failed to make a demand of the owner of the apartment for the immediate delivery of the disputed vehicle or for permission to enter to obtain immediate possession of the Blazer.  WPIC 16.08 misstates the law if it is given in a case where there is evidence that the defendant was the first aggressor but the defendant persuades the trial court not to give a first aggressor instruction.  In this case, defendant’s trial attorney made a tactical decision to waive his right to have a “not duty to retreat” instruction, by arguing against the giving of a first aggressor instruction that was supported by the evidence.    In re Personal Restraint of Harvey, COA No. 34808-3-III (Apr. 12, 2018).
 
Public Trial.  An ER 615 motion to exclude witnesses may be heard in chambers without violating the public trial right.  A motion in limine, however, must be heard in open court.  State v. Karas, COA No. 34899-7-III (Apr. 12, 2018). 
WEEKLY ROUNDUP FOR APRIL 6, 2018

United States Supreme Court

Qualified Immunity and Excessive Force.  A police officer, who shot and killed a woman who was holding a large kitchen knife, had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so, was entitled to qualified immunity as his actions did not violate clearly established law. The general rules set forth in Garner and Graham do not by themselves create clearly established law outside an obvious case.  Ninth Circuit’s decision to the contrary reversed, with the court stating that it did “not pass the straight-face test.”  Kisela v. Hughes, No. 17-467  (Apr. 2, 2018).  Justices Sotomayor and Ginsburg dissented on the grounds that two other officers withheld fire, electing to try verbal commands before turning to lethal force.
 

Washington Supreme Court

 This week the Court accepted review of the following cases:
 

Aggravated First Degree Murder.  State v. Allen, No. 95454-2.  Pierce County–State’s Petition.  Questions presented: Whether double jeopardy protections bar retrial of noncapital-penalty factors?  COA opinion reported at 1 Wn. App. 2d 774 (2017).  Appellate court pleadings available here.

Firearm Enhancements.  State v. Thomas, No. 95374-1.  King County.  “Petition for review and State’s cross-petition for review both granted.”   Questions presented: Whether the superior court may empanel a second jury to retry a defendant solely on firearm allegations when the first jury left blank the special verdict form that addressed the firearm sentence enhancement.  COA opinion is unpublished.  Appellate court pleadings available here.

Ballot Titles.  End Prison Indus. Complex v. King County, No. 95307-4.  King County–Government’s Petition.  “Petition for review and motion to take judicial notice of other ballot titles both granted.”  Questions presented: Whether a challenge to a ballot title brought over three and a half years after the levy passed is timely?  Whether RCW 84.55.050 requires that a 75-word ballot title to contain detailed levy lid lift information when the applicable statutory language refers to other materials that were before the voters, including the text of Proposition 1.  Whether ballot title language stating that the proposition would authorize “an additional regular property tax for nine years” at a rate “of $.07 per $1,000 of assessed valuation for collection in 2013” with “[ijncreases in the following eight years … subject to the limitations in chapter 84.55 RCW” adequately advised voters of the impact of the levy lid lift.  COA opinion reported at 200 Wn. App. 616 (2017). Appellate court pleadings available here.

 

Division One

Physical Evidence in the Possession of an Attorney.  An attorney could be compelled to turn over a letter he obtained from a third party that was authored by the attorney’s client.  RPC 1.6 does not preclude the attorney from producing the letter to comply with a court order. The attorney-client privilege, RCW 5.60.060(2)(a) does not prevent the attorney from complying with the court order.  State v. Rogers, COA No. 75722-9-I (Feb. 20, 2018, publication ordered April 2, 2018).

 

Division Two

Public Records Act.  The Family Educational Rights and Privacy Act of 1974 (FERPA), which conditions receipt of federal higher education funding on compliance with its student information nondisclosure requirements, is an “other statute” exemption of the Public Records Act.  West v. TESC Board of Trustees, COA No. 49120-6-II (Feb. 27, 2018, publication ordered April 3, 2018).
 

Division Three

Public Records Act.  RCW 70.48.100 exempts records related to recorded and/or monitored jail phone calls from disclosure under the Public Records Act.  The exemption applies as to PRA requests sent to the jail or the prosecuting attorney’s office.  Zabala v. Okanogan County, COA No. 34961-6-III (Apr. 3, 2018).
 

Legal Update for Washington State Law Enforcement

The March 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 

Ethics

E-mail Correspondence with Opposing Counsel While Sending a Copy to Client.  A lawyer who copies a client on e-mail communications with opposing counsel risks waiver of attorney/client confidences. A lawyer who responds to an e-mail where opposing counsel has “cc’d” the opposing counsel’s client has a duty to inquire whether the client should be included in a reply. A lawyer may “bcc” the lawyer’s own client on electronic communications, however the better practice is to forward the communication to the client to avoid inadvertent responsive communications by the client to opposing counsel.  Alaska Bar Association Ethics Opinion No. 2018-1.
WEEKLY ROUNDUP FOR MARCH 30, 2018

Division One

Cell Phones.  A search warrant that authorized the police to search and seize a large amount of cell phone data, including “[i]mages, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, [and] tasks,” and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.  Limiting the search to the crimes cited on the first page of the warrant, “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050,” was insufficient.  The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.    State v. McKee, COA No. 73947-6-I (Mar. 26, 2018).
 

Division Two

Bail Jumping.  The particular crime that the defendant was charged with is not an element of bail jumping that must appear in the “to convict” jury instruction.  State v. Anderson, COA No. 49552-0-II (Mar. 27, 2018).
 
Sex Offender Registration.  The duty to register following upon release from custody applies when the offender was in custody for any offense, including non-sex offenses.   State v. Tash, COA No. 50108-2-II (Mar. 27, 2018).
 
 
WEEKLY ROUNDUP FOR MARCH 23, 2018

Washington Supreme Court

Independent Source Doctrine. Cell phone records that were initially obtained pursuant to a jurisdictionally invalid district court record were properly admitted at trial pursuant to the independent source doctrine, where post-seizure, a second superior court search warrant for the phone records was obtained based upon the same showing as was made for the initial district court search warrant.  The independent source doctrine did not require the State to return the initial set of phone records to the phone company and to then obtain a duplicate set of records pursuant to the second search warrant.   State v. Betancourth, No. 94208-1 (Mar. 22, 2018).
 

Division One

DV Protection Orders and Surrender of Firearms.   The restrained person has the burden to prove by a preponderance of the evidence that he has surrendered his firearms and other dangerous weapons when the court issues an RCW 9.41.800(3) order to surrender weapons. The restrained person’s proof of surrender form provides evidence of compliance but does not, in itself, prove that the person has surrendered all of his weapons.  When there is conflicting evidence as to whether the restrained person has complied with the order, the question to be answered is “were all weapons surrendered?”  The efforts of the restrained person to comply with the order is not relevant to this determination.  In a contempt hearing for non-compliance with the order to surrender in which the contemnor asserts as an affirmative defense, that he was unable to comply or that failure to comply is based on the Fifth Amendment right against self-incriminaton, the contemnor has the burden to produce evidence as to the claimed affirmative defense and the burden to persuade the court that the evidence is credible.  Braatz v. Braatz, COA No. 76577-0-I (Mar. 19, 2018). 
       


Division Two

Geographic Restrictions.  The Indeterminate Sentencing Review Board (ISRB) has the authority to prohibit someone granted a conditional release from entering into a geographical area as a condition of community custody.  The ISRB, however, must include a clear process by which the conditional releasee may request modification of the condition in light of changed circumstances. In re Personal Restraint of Martinez, COA No. 49145-1-II (Mar. 20, 2018).
 
Non-AOC Certified Interpreters.  A proceeding may continue with a non-AOC certified interpreter only when the court finds good cause for using a noncertified interpreter and then satisfies  itself, on the record, that the proposed interpreter: “(a) Is capable of communicating effectively with the court or agency and the person for whom the interpreter would interpret; and (b) Has read, understands, and will abide by the code of ethics for language interpreters established by court rules.”  RCW 2.43.030(2). In re the Dependency of J.E.D.A., COA No. 49927-4-II (Jan. 17, 2018) (publication ordered Mar. 20, 2018).
 

Division Three

Conditions of Community Custody.  Even when sexually explicit material was not involved in the defendant’s offenses, a prohibition upon the use or possession of materials depicting sexually explicit conduct as defined in RCW 9.68A.011 is a proper crime-related prohibition for someone convicted of sex offenses against a child.   State v. Alcocer, COA No. 34395-2-III (Mar. 22, 2018). 
 
        
WEEKLY ROUNDUP FOR MARCH 16, 2018

Washington Supreme Court

Probation Searches.  Article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation.   Here, there was no nexus between the defendant’s failure to report to DOC and the car which the defendant was driving.   State v. Cornwell, No. 93845-8 (Mar. 15, 2018).  Justices Madsen and Owens dissented.
 
Vehicle Consent Searches.  A driver of a vehicle owned by another person does not generally assume the risk that the third-party owner will consent to a police search.  The present driver’s refusal to consent to the search of his or her  vehicle must generally be respected.   But where the facts reasonably raise a significant question about whether the driver had any legitimate claim to the vehicle at all, the police may contact the absent owner and then get that owner’s consent to search instead.  State v. Vanhollebeke, No. 94054-1 (Mar. 15, 2018).
 
Public Trust Doctrine.  The legislature expressly consented to the placement of pre-1969 fills, when it enacted the Savings Clause, RCW 90.58.270, and that consent does not violate the public trust doctrine.  Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2 (Mar. 15, 2018).  Justice Madsen authored a concurring opinion.
 

Division One

Non-Testimonial Hearsay.  Statements made by the 82-year-old DV victim to his treatment providers were properly admitted at trial, even though the victim did not testify.  The primary purpose of the statements was to obtain proper medical care for his injuries.  Each of the medical providers’ inquiry into how the victim was injured was for the purpose of diagnosis and treatment.  The fact that the victim signed medical release waivers prior to making some of the statements did not render them testimonial.  State v. Scanlan, COA No. 74438-1-I (Mar. 12, 2018).
 

Land Use/Zoning. Issue preclusion will not bar a  property owner, whose position in support of an earlier rezone was consistent with that of the city, from asserting claims of legal error as the property owner is not in privity with the enacting municipality.  The city impermissibly relied upon its existing pans, laws and regulations in evaluating the adverse environmental impacts of a rezone in a flood-prone, land-slide prone location.  The City may still proceed with an SEIS, but only with one that complies with SEPA and that adequately addresses the GMA’s planning goal of protecting the environment.   Heritage Baptist Church v. Central Puget Sound Growth Management Hearings Board, COA No. 75375-4-I (Mar. 12, 2018).

 

Division Two

Local Marijuana Ordinances. A Clark County ordinance that prohibits the retail sale of marijuana in its unincorporated areas does not violate article XI, section 11 of the Washington Constitution and is not preempted by chapter 69.50 RCW.   Emerald Enterprises, LLC v. Clark County, COA No. 47068-3-II (Mar. 13, 2018).
 

Division Three

Mandatory LFO’s.  Mandatory LFOs may be imposed against someone whose sole legal source of income is Social Security disability, but the judgment and sentence must specify that repayment cannot be made from the proceeds of Social Security disability payments.  A defendant, who wishes to take advantage or RCW 9.94A.777, which limits which LFOs can be imposed upon a defendant who suffers from a mental disorder, must provide sufficient proof of the mental disorder in the trial court.   State v. Catling, COA No. 34852-1-III (Mar. 15, 2018).  Judge Fearing dissented.
 
Criminal Jurisdiction re Indians. The governor’s retrocession proclamation retained state jurisdiction to prosecute an Indian for any offense committed on fee property within the boundaries of the Yakama Reservation in which the victim is a non-Indian.  State v. Zack, COA No. 34926-8-III (Mar. 8, 2018).
 
Aggravating Circumstances.  Aggravating circumstances contained in RCW 9.94A.535 that will support an exceptional sentence are not subject to void for vagueness challenges.  State v. DeVore, COA No. 34728-1-III (Mar. 8, 2018).
 
Public Records Act.  An agency can rely on CR 7(b)(1) to move for judicial review under RCW 42.56.550(3).   Kittitas County v. Sky Allphin, COA No. 34760-5-III (Mar. 13, 2018).
 
Election Challenge.  An election will not be invalidated where the county auditor, as required by RCW 29A.60.165, mailed notices to voters who failed to sign ballot envelopes or whose signatures do not match signatures on file with the auditor, but who did not telephone the voters who did not respond to the mailed notice.  The failure to telephone does not void the election.  The auditor substantially complied with the statute and the challengers did not establish that the defect would have affected the outcome of the election.  Meise v. Jaderlund, COA No. 35174-2-III (Mar. 8, 2018).
 

Ninth Circuit

Excessive Force.  A police officer uses excessive force when he points a gun at a suspect’s head and threatens to kill the suspect after the suspect, who was arrested for a felony, has already been searched, is calm and compliant, and is being watched over by a second armed deputy.  Thompson v. Copeland, No. 16-35301 (9th Cir. Mar. 13, 2018).
WEEKLY ROUNDUP FOR MARCH 9, 2018

Washington Supreme Court

Insanity Acquittees.  An insanity acquittee can petition the court for conditional release directly instead of applying indirectly through DSHS.  An  insanity acquittee is entitled to legal counsel  once a petition for conditional release is filed with the court or an application for release is submitted to DSHS. State v. Fletcher, No. 94329-0 (Mar. 8, 2018).  Chief Justice Fairhurst authored a concurring opinion, which was joined by Justices Johnson and Madsen.
 
Sexually Violent Predators. An order pursuant to RCW 71.09.050(1) that requires a pre-trial SVP detainee to submit to penile plethysmograph and polygraph tests as requested by the State’s evaluator when the testing is relevant to the evaluation, does not violate the detainee’s substantive due process rights..  The detainee was properly found in contempt for failing to participate in both procedures.   In re Detention of Herrick, No. 94495-4 (Mar. 8, 2018).
 
On March 6, 2018, the Washington Supreme Court accepted review of the following cases:
 

Issue Unknown.  State v. Karpov, No. 95080-6.   County Unknown.  “Motion for discretionary review granted.”  Petition for review and other documents are not available on the court’s website, so I cannot provide any additional information. 

Discretionary LFOs.  State v. Ramirez, No. 95249-3.  Lewis County.   “Granted on the issue of discretionary LFOs only.” COA opinion is unpublished.  Whether the trial court erred by assessing discretionary LFOs against a defendant”  who was working in a minimum wage job which allowed him to pay his household bills and maintain a bank account.  Petition for review and other documents are not available on the court’s website. 

 Conditions of Community Custody.  State v. Norris, No. 95274-4.  King County.  Validity of community custody conditions that require a defendant to inform the community corrections officer of a dating relationship and to not enter any parks/playgrounds/schools where minors congregate.  COA opinion is reported at 1 Wn. App. 2d 87 (2017).

Public Records Act.  Wash. Pub. Emp. Ass’n. v. Wash. Ctr. for Childhood Deafness & Hearing Loss, No. 95262-1.  Whether Const. art. I, sec. 7 protects from public disclosure state employees’ full names associated with their corresponding birthdates.  COA opinion reported at 1 Wn. App. 2d 225 (2017).  Petition for review and other documents are not available on the court’s website. 

Employment Action.  Martin v. Gonzaga Univ., No. 95269-8. Petition for review and cross-petition for review both granted.  COA opinion reported at 200 Wn. App. 332 (2017).  In a plurality decision, the COA affirmed the dismissal of the employee’s action for wrongful discharge in violation of public policy for failure aver sufficient facts to establish all four elements of the action, and vacated the dismissal of the employee’s action for violation of a statute requiring production of his personnel file.  Petition for review and other documents are not available on the court’s website. 

Industrial Insurance Coverage.  Murray v. State, Dep’t of Labor & Indus., No. 9521-5.  COA opinion reported at 1 Wn. App. 2d 1 (2018).   Whether the administrative decision to deny industrial insurance coverage for the injured worker’s hip surgery on the basis of a prior determination by the Washington State Health Technology Clinical Committee that the treatment was not a covered procedure under state health law and without making an individualized inquiry was lawful.  Petition for review and other documents are not available on the court’s website.

 

Fair Campaign Practices Act.  State v. Evergreen Freedom Found., No. 95281-7.  COA opinion reported at 1 Wn. App. 2d 288 (2017).  State’s action to enforce the Fair Campaign Practices Act against the organization for failing to comply with the reporting requirement was improperly dismissed by the trial court because the local initiatives qualified as “ballot  propositions” and the organization’s free speech rights were not violated.  Petition for review and other documents are not available on the court’s website. 

CemeteriesSouthwick, Inc. v. State, Dep’t of Licensing Bus. & Professional Div., No. 95237-0.  “Granted only as to the issue of whether Southwick acted with ‘authority of law.”” COA opinion is reported at 200 Wn. App. 890 (2017).  Whether the cemetery operator lawfully moved cremains without notifying the families.  Petition for review and other documents are not available on the court’s website.  
 

           
Legal Update for Washington State Law Enforcement

 The February 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

American Bar Association

 Confidentiality Obligations for Lawyer Blogging and Other Public Commentary. Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.  Formal Opinion 480  (Mar. 6, 2018). 
WEEKLY ROUNDUP FOR MARCH 2, 2018

Division One

Sexually Violent Predators.  At a show cause hearing under RCW 71.09.090(2)(b), the prosecuting agency is free to rely on experts of its choosing rather than relying exclusively on annual evaluations prepared under RCW 71.09.070.  In re the Detention of Nelson, COA No. 75138-7-I (Feb. 26, 2018).

 

Division Three

Drive-By Shootings. The close nexus required between a perpetrator and vehicle for a violation of the drive-by shooting statute, RCW 9A.35.045, and the drive-by sentence aggravator, RCW 10.95.020(7), is not met where a perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim.  State v. Vasquez, COA No. 34107-1-III (Mar. 1, 2018).
 

Ninth Circuit

Warrantless Arrests. Police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door.  Although the DV victim, who was outside of the house consented to the officers entering the house, the suspect’s “actions were express–stay out.”  Under the facts of the case, the warrantless entry could not be upheld under consent, emergency doctrine or exigent circumstances.   Bonivert v. City of Clarkston, No. 15-35292 (9th Cir. Feb. 26, 2018).