Case Law

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 COA opinion is unpublished, though prior opinions in the case are published.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 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 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 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 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 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 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 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 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 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 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 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 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 at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3265510