Case Law
WEEKLY ROUNDUP FOR DECEMBER 6-17, 2021
Court of Appeals
Restitution Hearing after Remand – The state has 180 days from a court of appeals’ mandate to schedule a restitution hearing based on RCW 9.94a.753(1). State v. Jones, et al (December 16, 2021)
Sentencing and Same Criminal Conduct – Division III splits with Division II over whether State v. Chenoweth should apply outside of the context of rape and incest. Instead, here, the court finds that State v. Dunaway should control. The Dunaway court held ‘same criminal conduct’ test “turns on whether the defendant’s objective manifestation of intent changed from one crime to the next.” State v. Westwood (December 16, 2021)
Vehicular Assault and Aggravating Factors – Defendant crashed a vehicle while driving under the influence. The two passengers received significant long-term injuries. Due to the severity of the injuries the State asked for, and the court ordered, an exceptional sentence. A court is not required to issue written findings on aggravators or mitigators it considered but which did not affect the decision. A court is also not required to balance the mitigating against the aggravating factors. State v. Fletcher (December 14, 2021)
Blake and Marijuana – Consistent with prior unpublished decisions, Blake applies to non-felony simple possession. State v. A.I.r.h. (December 7, 2021)
Washington Law Enforcement Update
WEEKLY ROUNDUP FOR DECEMBER 3, 2021
Court of Appeals
Rape by Forcible Compulsion – For a charge of rape in the second degree by forcible compulsion, force must be directed at overcoming the victim’s resistance. If a victim is unconscious or unable to respond there is no resistance to overcome. State v. Gene (November 29, 2021)
Guns, ITA, and Justiciable Controversy (previously unpublished) – RCW 71.05.182, a part of the ITA, revokes the right to bear arms for at least six months if an individual is involuntarily committed. The court finds that the County lacks standing in a declaratory judgment to assert that enforcement of the ITA, and removal of gun rights, may violate the constitutional rights of individuals. The dissent argues in a lengthy 80-page response that the county has standing, and the statute is unconstitutional. Stevens County v Stevens County Sheriff’s Department (December 2, 2021)
Harassment Orders and Defamation – Defamatory speech is not constitutionally protected, and a court can use it in deciding whether to issue a temporary harassment order. Graham v. Silbaugh (December 2, 2021)
Washington State Legal Update
AOC has released “Standards of Practice and Ethics for Washington State Judiciary Interpreters.” The manual covers everything from number of interpreters, where interpreters should be situated in the courtroom, sight translation and declarations, and a myriad of other issues.
WEEKLY ROUNDUP FOR NOVEMBER 24, 2021
Court of Appeals
Bail and Life in Prison – An individual can be held without bail if the offense is “punishable by the possibility of life in prison” under article I, section 20 of the Washington Constitution. Anyone facing a class A felony is charged with a crime “punishable by the possibility of life in prison.” A court must also find “by clear and convincing evidence, that a person shows a propensity for violence that creates a substantial likelihood of danger to the community or any persons” under RCW 10.21.040. In re Sargent (November 23, 2021)
Unlawful Recreational Fishing, Captain’s Liability, and Overbroad Search Warrants – Criminal liability does not automatically attach to a captain of a ship for strict liability crimes committed by another person on the boat. A warrant may be severed if it authorizes lawful entry into the premises, probable cause exists for one or more items listed and that item must be significant compared to the warrant as a whole, the item was found and seized while executing the valid portion of the warrant, and the officers did not conduct a general search in flagrant disregard of the warrant’s scope. State v. Gudgell (November 23, 2021)
Competency Evaluation and Contempt Sanctions – After a court ordered an inpatient competency evaluation, the defendant waited approximately 100 days in jail for entrance at one of the State Hospitals. As part of the contempt finding, the court ordered a retroactive sanction to be paid to the defendant. Under RCW 7.21.020 a court may impose sanctions for contempt of court, and remedial sanctions may be compensatory “to pay a party for any losses suffered by the party as a result of the contempt.” State v. Luvert (November 22, 2021)
ER 404(b) and Recanting Victims – Expert testimony is not required to accompany evidence of a prior assault for credibility determinations. However, a court may allow expert testimony on general characteristics or conduct typically exhibited by survivors of domestic violence. State v. Harris (November 22, 2021)
Supreme Court
First Degree Burglary and Knowledge – A defendant’s knowledge of the unlawfulness of their entering or remaining is not an implied essential element of first degree burglary. For any burglary charge, if an accused entered or remained unlawfully, a permissible inference arises that the accused acted with the requisite criminal intent to commit a crime unless other evidence is presented. State v. Moreno (November 24, 2021)
Court Forms
New Protection Order Forms – AOC has published new and updated protection order forms. Five forms address changes to service and remote hearings (see sec. 18 and 25 of HB 1320), PO 025, PO 026, All Civil 035, WPF All Cases 01.0400, and PORHA. These forms have been removed: SA 9.060, VA 9.060, SA 9.020, VA 9.020, DV 9.020.
WEEKLY ROUNDUP FOR NOVEMBER 19, 2021
Court of Appeals
Blake and Marijuana convictions (unpublished) – Unlawful possession of marijuana is invalid under State v. Blake (this is the second case with this holding, see State v. K.L.O June 2021. VanOrman v. State (November 16, 2021)
Interpreters on Appeal – Indigent non-English-speaking defendants have a right to have certain documents translated to have a meaningful right to engage in their appeal and file a SAG. State v. Cruz-Yon (November 15, 2021)
ITA: Gravely Disabled and Firearms Notice – The court discusses “gravely disabled” and refuses to review a claim of error related to a firearm notice raised for the first time on appeal. In the matter of A.F. (November 16, 2021)
Supreme Court
Water Rights – A lengthy case, consolidating three appeals, involving litigation surrounding water rights in the Yakima River basin. Dep’t of Ecology v. Acquavella (November 18, 2021)
Law of the Case Doctrine and School Bus Stop Aggravator – The statutory definition of “school bus” is not an element of the sentence enhancement that an offense occurred within 1,000 feet of a “school bus route stop designated by the school district” under RCW 69.50.435(1)(c). State v. Anderson (November 18, 2021)
Delivery of Controlled Substance – Consistent with State v. Cyr, the SRA provides the applicable sentence for UCSA convictions. RCW 69.50.410 is neither unconstitutional or invalid and is separate and distinct from RCW 69.50.401. State v. Peterson (November 18, 2021)
WEEKLY ROUNDUP FOR NOVEMBER 1 - 12, 2021
Court of Appeals
Wrongly Convicted Persons Act (WCPA) – A claimant is barred from recovering any relief under the WCPA if they elect to take a non-WCPA remedy. Allen v. State (November 9, 2021)
Intoxication Defense, Jury Instructions, and Business Record Hearsay– A personal injury case in which a jury found the City of Puyallup partly at fault when a driver hit an individual riding a skateboard. Under RCW 46.61.502, a jury could find an individual under the influence based upon an admission of the injured party and circumstances at the time of the injury. A trial court abuses its discretion when it submits instructions to the jury that overemphasize one party’s theory. A party seeking to admit hearsay evidence may not do so by laying a trap and forcing a witness to spring it. Fite v. Puyallup (November 9, 2021)
Search Warrants – A sheriff’s office investigation involving alleged misconduct at a treatment facility violated federal regulations when it failed to obtain a “good cause” order prior to obtaining records with a search warrant. A “good cause order” is required prior to any release of documents containing patient identifying information, and a retroactive order does not cure the violation. A good cause order must “limit disclosure” of a patient’s record to only those that are essential. Daybreak Youth Services v. Clack County Sheriff’s Office (November 9, 2021)
Unemployment Benefits – A temporary increase in work hours for a salaried employee is not a reduction in compensation. If an employee voluntarily quits under those circumstances, it does not satisfy “good cause” and thus is not sufficient for unemployment. Sherry v. Dept of Employment Security (November 9, 2021)
Preservation of Error – A pretrial ruling can be tentative, and thus require objections during trial, even if the court did not expressly require objection to the admission of evidence. The court expressly declines to follow State v. Dillon, 12 Wn. App. 2d 133, 456 P.3d 1199 (2020). State v. Roosma (November 9, 2021)
Firefighters Worker’s Comp – An employer cannot rebut the presumption under RCW 51.32.185(1)(a) with evidence that firefighting activities in general do not cause bladder cancer. Instead, to avoid summary judgment an employer must present sufficient evidence that the individual claimant’s bladder cancer was caused by nonoccupational factors. Bradley v. City of Olympia (November 9, 2021)
Adverse Possession – RCW 7.28.090, which the legislature intends to be liberally construed, shields a government entity from adverse possession claims if it is using the land for “any public purpose.” The government must show some advancement of the public’s wellbeing from any part of the property to satisfy the statute. Michael et ano v. City of Seattle (November 8, 2021)
Right to Effective Counsel and Comparability– An attorney who receives incriminating evidence of his/her client from a nonclient has a duty to disclose such evidence. A defendant’s loss of confidence in and of itself is not a justification for granting an attorney’s withdrawal. A court should not include out of state convictions for crimes comparable to simple possession post Blake. State v. Wood (November 8, 2021)
Insanity – Involuntary intoxication is not evidence of insanity. However, a court should permit evidence of insanity to go to a jury if an individual has a mental condition that caused insanity, even if the individual voluntarily used drugs and/or alcohol. State v. Thompson (November 8, 2021)
Supreme Court
Governor’s Veto Power – Under article III, sec 12 of the Washington Constitution, the Governor can veto entire bills or appropriation items. When vetoing an appropriation item, striking a single sentence and not the full proviso is unconstitutional, unless it a court finds that the legislature attempted to manipulate the appropriation to avoid the veto power. Washington State Legislature v. Inslee (November 10, 2021)
Cell Phones and Privacy Interests – A cell phone owner’s voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. A subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution. The concurring opinion of this 5-4 decision should also be reviewed. State v. Bowman (November 10, 2021)
Legal Update for Washington Law Enforcement
October 2021
WEEKLY ROUNDUP FOR OCTOBER 29, 2021
Court of Appeals
Forfeiture – The Excessive Fines Clause of the Eighth Amendment of the US Constitution requires a court to consider an individual’s financial circumstances prior to a forfeiture determination. In this case, because the defendant was found to be indigent “in this and the related criminal proceedings, the forfeiture of his only asset is grossly disproportionate and therefore unconstitutional.” Hernandez v. City of Kent (October 25, 2021)
Right to Counsel and Videoconferencing – This case arises out of a sentencing during the early days of COVID. Courts must take care to ensure criminally accused persons are able to confidentially confer with counsel throughout the proceedings. Failure to provide a confidential means to communicate may be grounds for reversal on appeal. State v. Anderson (October 28, 2021)
Collateral Attack – A court exceeds its authority to impose an exceptional sentence when it miscalculates the underlying offender score. The Court found the motion in this case successive and barred under RCW 10.73.140, as applied through CrR 7.8(b). State v. Fletcher (October 28, 2021)
Supreme Court
Venue – A Governor’s Proclamation constitute acts performed by him “in virtue of his …. Office” within Thurston County. Johnson v. Inslee (October 22, 2021)
Plea Agreements and Post-Conviction Review – In a contested sentencing the State did not breach the plea agreement when it discussed the original charge and plea negotiations because those facts were necessary to explain why a low-end sentence was inappropriate. The State should, however, avoid using words that echo statutory aggravators. The Court’s opinion also provides an overview of the process that applies to consideration of collateral attacks. State v. Molnar (October 28, 2021)
WEEKLY ROUNDUP FOR OCTOBER 22, 2021
Court of Appeals
Extreme Risk Protection Order – Previously unpublished opinion, which provides a detailed discussion on issuing and renewing an ERPO. State v. Jones (October 15, 2021)
DV NCO (published in part) – The court upheld a conviction for a violation of a DV no contact order, while discussing a multitude of trial issues including hearsay, credibility of witnesses, jury instructions, and closing arguments. State v. Kelly (October 19, 2021)
Net Nanny and Privacy Act (published in part) – An undercover officer did not unlawfully intercept the Defendant’s communication when she was pretending to be a 13-year-old boy. The Privacy Act was not violated when multiple law enforcement shared access to the electronic messaging service and had access to the communicated messages. The court found it is generally understood in our modern world that multiple people may use the same username and password to online accounts. The unpublished portion includes discussions about the rules of discovery and prosecutor misconduct in closing argument. State v. Bilgi(October 19, 2021)
Blake and Bail Jump (unpublished) – The court found the “the invalidation of his conviction for unlawful possession of controlled substances does not affect the validity of the bail jumping convictions.” State v. Stacy (October 19, 2021)
Tort liability, Absolute and Strict liability, Hazardous Waste Management Act – A case arising out of scraping of a chlorine tank. The Court spends substantial time discussing various tort and liability issues, including the HWMA, before sending it back to the trial court granting in part and reversing in part. Schuck v. Beck(October 19, 2021)
WEEKLY ROUNDUP FOR OCTOBER 15, 2021
Court of Appeals
DOSA Eligibility – Under RCW 9.94A.660(1)(g), a person “receives” a single DOSA through the course of treatment, even if there are multiple concurrent sentences. The Court declined to follow a prior decision in State v. Van Noy, 3 Wn.App. 2d 494, 416 P.3d 751 (2018), which found two sentences which ran concurrently were two separate DOSA’s. The Ehlert court found that the Van Noy court’s reasoning located in a footnote was dicta. State v. Ehlert (October 12, 2021)
Supreme Court
Jury Instructions and Invited Error – A defendant can raise a challenge to jury instructions if s/he did not propose the specific instruction and invited error does not apply in those circumstances. While allowing the challenge to instructions in this case, the Court ultimately upheld the conviction. Courts “presume that jurors read the entirety of the jury instructions, consider them as a whole, and believe they are all important.”
New ABA Ethics Opinion
Language Access in the Client-Lawyer Relationship – The ABA issued a formal opinion last week regarding communication between a lawyer and a client, including communicating effectively with clients with limited English proficiency or with noncognitive physical disabilities, such as hearing, or speech impairment. Additional commentary can be found here.
WEEKLY ROUNDUP FOR OCTOBER 8, 2021
Court of Appeals
Visitation and Pets: A trial court does not have authority to grant visitation rights to pets that are separate property of one of the parties. Niemi v. Niemi (October 4, 2021)
SCCAR 7.1: Superior Court Civil Arbitration Rule 7.1 requires both an attorney and an aggrieved party’s signature. Hanson v. Luna-Ramirez (October 4, 2021)
TRO and Confinement: When a defendant receives a TRO, in this case for the birth of a child that was extended due to COVID, and the court does not place any conditions on the defendant, it is not considered “confinement” under the SRA. State v. Shelley (October 4, 2021)
Competency and Prosecutor Misconduct (published in part): Defendant was released after one court found him incompetent and ordered him to Western State. While waiting out of custody, defendant picked up new criminal charges in this case. Defense counsel was aware of the prior finding of incompetency and shared with the court. However, defense said, “I do not have competency concerns. I’m not raising those at this point.” A trial court errs if it fails to order a competency evaluation under RCW 10.77.060(1)(a) if there is “a reason to doubt” whether a defendant was competent to stand trial. Unpublished portion deals with a discussion about prosecutor misconduct. State v. Dufloth (October 4, 2021)
GR 37 and Peremptory Challenges. During voir dire, the prosecutor used a peremptory challenge on juror 25. Defense counsel objected as juror 25 was the only African American on the panel. The prosecutor’s explanation was that he had prosecuted juror 25 in the past, and her name appeared in several police reports associated with people engaged in criminal activity. In overturning the conviction, the Court stated, “[r]ecognizing venire juror 25 from multiple police reports indicates she has “prior contact with law enforcement officers” and “a close relationship with people who have been stopped, arrested, or convicted of a crime.” GR 37(h)(i), (iii). These reasons are historically associated with improper racial discrimination in jury selection. Combining a race-neutral justification with a presumptively invalid one is not “race neutral.”” State v. Orozco (October 7, 2021)
Washington Supreme Court
Prison Conditions: Article 1, section 14 of the Washington Constitution provides greater protection than the Eighth Amendment in the context of prison conditions. To prevail on a PRP challenging conditions of confinement, a petitioner must demonstrate 1) the conditions create on objectively significant risk of serious harm or otherwise deprive the petitioner of the basic necessities of human dignity and 2) those conditions are not reasonably necessary to accomplish any legitimate penological goal. In re Pers. Restraint of Williams (October 7, 2021)
Legal Update for Law Enforcement
WEEKLY ROUNDUP FOR OCTOBER 1, 2021
Division Two
Division Three
Task Force 2.0
Ethics Opinions
WEEKLY ROUNDUP FOR SEPTEMBER 24, 2021
Washington Supreme Court
Division Three
Ninth Circuit
WEEKLY ROUNDUP FOR SEPTEMBER 10, 2021
Washington Supreme Court
Division Two
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR AUGUST 27, 2021
Washington Supreme Court
Division One
Division Two
Division Three
Washington Attorney General Opinions Requests for Comment
Ninth Circuit
Sixth Circuit
WEEKLY ROUNDUP FOR AUGUST 20, 2021
Washington Supreme Court
Division Two
Massachusetts Supreme Judicial Court Court
North Carolina Supreme Court
California Lawyers Association
WEEKLY ROUNDUP FOR AUGUST 13, 2021
Washington Supreme Court
Division One
Division Two
Division Three
Legal Update for Washington State Law Enforcement
Ninth Circuit
Fifth Circuit
WEEKLY ROUNDUP FOR JULY 30, 2021
Washington Supreme Court
Division One
Washington Pattern Instructions
WEEKLY ROUNDUP FOR JULY 23, 2021
Division One
Court Form Update
WEEKLY ROUNDUP FOR JULY 16, 2021
Washington Supreme Court
Ninth Circuit
Fourth Circuit
WEEKLY ROUNDUP FOR JULY 9, 2021
Division One
Division Two
Legal Update for Washington State Law Enforcement
Washington Association of Sheriffs and Police Chiefs
Washington State Ethics Advisory Committee
Ninth Circuit
WEEKLY ROUNDUP FOR JULY 2, 2021
Washington Supreme Court
Division One
Division Two
Division Three
WEEKLY ROUNDUP FOR JUNE 25, 2021
United States Supreme Court
Division One
Spousal Testimonial Privilege. A defendant who indicated that he consented to his wife’s testimony and would not invoke the spousal testimonial privilege, RCW 5.60.060(1), to keep her off the stand, could not rescind his consent after the State entered into a plea agreement with the defendant’s spouse in reliance on the defendant’s waiver. The testimonial privilege is statutory, not constitutional, and the trial court has broad discretion with respect to evidentiary decisions. The exercise of discretion allows balancing the purposes of the privilege against the potential for trial gamesmanship, the exclusion of otherwise relevant evidence, and potential damage to the truth-seeking function. State v. Roach, COA No. 82053-2-I (Jun. 21, 2021). Judge Coburn wrote “separately to urge our legislature to revisit the spousal confidential communications privilege and spousal testimonial privilege provided in RCW 5.60.060(1).”
Juror Bias. The trial court did not err by excusing for cause a prospective juror who indicated that she would be unable to convict in a sexual assault case based solely on the testimony of an underage victim . State v. Roach, COA No. 82053-2-I (Jun. 21, 2021).
Division Three
Ninth Circuit
WEEKLY ROUNDUP FOR JUNE 18, 2021
Division Three
WEEKLY ROUNDUP FOR JUNE 11, 2021
Washington Supreme Court
The Washington Supreme Court accepted review of the following matters last week:
Division Three
Legal Update for Washington State Law Enforcement
Tenth Circuit
WEEKLY ROUNDUP FOR JUNE 5, 2021
United States Supreme Court
Division One
children’s activities regularly occur or are occurring” is not impermissibly vague. Although the condition does not specify how often an activity must occur to qualify as a “regular” occurrence, a commonsense reading makes clear that a child’s activity that occurred in a park in the distant past would not be sufficient to place the park off limit to the defendant at other times. State v. Peña Salvador, COA No. 81212-2-1 (Jun. 1, 2021).
Judicial Comment on the Evidence. The trial court did not violate art. IV, § 16 of the Washington Constitution when, in response to a prospective juror’s question, indicated that witnesses called to testify at trial have testimony that is relevant. This statement, which was an explanation of ER 402 as it applied to witness testimony, did not reveal the court’s attitudes toward the merits of the case. State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021).
Division Two
Division Three
Innovative Prosecution Solutions
WEEKLY ROUNDUP FOR MAY 28, 2021
Washington Supreme Court
Persistent Offender Accountability Act. The 2019 amendment to the Persistent Offender Accountability Act, which removed second degree robbery from the list of most serious offenses, only applies to defendants who are sentenced as a persistent offender for crimes committed on or after July 28, 2019. This result is compelled by both RCW 9.94A.345 and RCW 10.01.040. State v. Jenks, No. 98496-4 (May 27, 2021). Justices Yu and Montoya-Lewis joined a concurring opinion “to emphasize that while the legislature commands the harsh result of affirming Jenks’ life sentence, the constitution and the ends of justice do not.” The lone dissenter was Justice Madsen. State was represented by Spokane County DPAs Larry Steinmetz and Brett Pearce. [Editor’s Note: In Laws of 2021, ch. 141, the legislature has ordered all persistent offenders for whom robbery in the second degrees was treated as a “strike” to be resentenced.]
Public Records Act. Certain records relating to public employment—including photographs and the month and year of birth of people who work in state criminal justice agencies—are exempt from public request. RCW 42.56.250(8). However, members of the “news media” are entitled to these exempt records. Id; RCW 5.68.010(5). The statutory definition of “news media” requires an entity with a legal identity separate from the individual. The requestor bears the burden of establishing that s/he is a “news media.” The requestor’s intent in making the request has not bearing on whether a news media entity exists of what a person’s relationship is to that entity. Green v. Pierce County, No. 98768-8 (May 27, 2021). Justices Whitener and Gordon McCloud dissented. Pierce County was represented by Daniel Hamilton.
Division Two
Ninth Circuit
Washington State Institute for Public Policy
Arizona Supreme Court
Ethics Opinions
Attorney Well Being Resources
Looking for other resources regarding lawyer well-being– check out the Institute for Well-Being in Law , the WSBA Member Wellness Program, and the American Bar Association Mental Health Resources.
WEEKLY ROUNDUP FOR MAY 21, 2021
United States Supreme Court
Washington Supreme Court
Division One
Division Two
Sentencing Reform Act Resources
WEEKLY ROUNDUP FOR MAY 14, 2021
Washington Supreme Court
Division One
Division Two
Division Three
Legal Update for Washington State Law Enforcement
Ninth Circuit
Massachusetts Supreme Court
Zoom Evidentiary Hearings. A virtual suppression hearing is not a per se violation of a defendant’s constitutional rights in the midst of the COVID-19 pandemic. Nonetheless, a judge abuses his/her discretion in denying a defendant’s motion to continue a suppression hearing until it can be held in person where the defendant has waived his right to a speedy trial, there are no civilian victims or witnesses, the prosecution has present no evidence that the officers or the evidence in its custody will be unavailable if the hearing is continued, and the defendant is aware that when in-person proceedings resume, there will be a significant backlog and he may not be able to obtain a hearing as soon as he might wish. Vasquez Diaz v. Commonwealth, No. SJC-13009 (May 5, 2021).
Pennsylvania Superior Court
WEEKLY ROUNDUP FOR MAY 7, 2021
Washington Supreme Court
Division One
Ineffective Assistance of Counsel and Failure to Object. Defense counsel’s decision to not object to an answer to one of his/her questions that informed the jury that the defendant did not answer all of the officer’s questions was a purely tactical and entirely reasonable decision. State v. Davis, COA No. 80956-3-I (Apr. 26, 2021).
Division Three
WEEKLY ROUNDUP FOR APRIL 30, 2021
Washington Supreme Court
Division Two
WEEKLY ROUNDUP FOR APRIL 23, 2021
United States Supreme Court
Division One
Division Three
Sixth Circuit
WEEKLY ROUNDUP FOR APRIL 16, 2021
Washington Supreme Court
Division Two
Juvenile Court Sentences. State v. Houston-Sconiers, 188 Wn.2d 1 (2017), does not apply to juvenile offenders sentenced in juvenile court, as the Juvenile Justice Act (JJA) already takes the offender’s youth into account. The JJA’s requirement of clear and convincing evidence in support of a downward manifest statute, while the Sentencing Reform Act has the less burdensome standard of preponderance of the evidence, does not violate the juvenile’s right to equal protection. State v. S.D.H., COA No. 53841-5-II (Apr. 13, 2021).
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR APRIL 9, 2021
Washington Supreme Court
Division One
Division Three
New Jersey Supreme Court’s Advisory Committee on Professional Ethics
WEEKLY ROUNDUP FOR APRIL 2, 2021
United States Supreme Court
Washington Supreme Court
Division Three
Ninth Circuit
animal furthers the stated goals of the ADA, for other training could be prohibitively expensive. A self-trained service dog may not automatically be excluded from “places of public accommodations.” C.L. C. Del Amo Hospital, No. 19-56074 (9th Cir. Mar. 30, 2021).
Michigan Court of Appeals
State of New York Court of Appeals
WEEKLY ROUNDUP FOR MARCH 26, 2021
Washington Supreme Court
Lesser Included and Lesser Degree Crimes. A defendant is entitled to a lesser included offense instruction under the Workman test when a jury could reasonably find, based on evidence submitted and the jury’s decision about whether it is credible or not, that the defendant committed only the lesser offense. A defendant, however, is not entitled to a lesser included instruction merely because a jury could ignore some of the evidence. “The type of evidence that ‘must be presented which affirmatively establishes the defendant’s theory on the lesser included offense’ is not limited to evidence elicited on direct examination; in particular cases, it might include evidence elicited on cross-examination, such as impeachment evidence, evidence of bias, or inability to recall.” Slip op. at 10. State v. Coryell, No. 98256-2 (Mar. 25, 2021). The State was represented by Thurston County DPA Joe Jackson.
Division One
Division Three
Ethics Advisory Committee.
Ninth Circuit
WEEKLY ROUNDUP FOR MARCH 19, 2021
Washington Supreme Court
Division Three
I Can’t Believe They Said That
Ethics Resources
WEEKLY ROUNDUP FOR MARCH 12, 2021
Washington Supreme Court
Division One
Division Two
Division Three
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR MARCH 5, 2021
Washington Supreme Court
THC DUIs. State v. Fraser, No. 98896-0. Snohomish County. Questions presented: Whether RCW 46.61.502(1)(b) (the per se THC DUI statute) is an unlawful exercise of the Legislature’s police powers? Whether the statute is unconstitutional as applied to the defendant’s conduct as it fails to provide ascertainable standards of guilty to protect against arbitrary enforcement? Whether the statute is facially unconstitutionally overbroad because of a lack of scientific evidence to support the per-se concentration of active THC standard? Direct discretionary review so no COA opinion.
Credit for Pre-Trial Detention. State v. Enriquez-Martinez, No. 99101-4. Klickitat County. Question presented: Whether a defendant is entitled to receive credit against his Washington sentence for presentence time he was in-custody in Oregon waiting resolution of his Oregon criminal charges while simultaneously under arrest pursuant to a warrant issued by the Klickitat County Superior Court pending resolution of his Washington criminal charges? COA opinion reported at 14 Wn. App. 2d 192 (2020). Petition for review pleadings available here.
Pre-SRA Minimum Terms. In re Personal Restraint of Gallegos, No. 98917-6. AG’s Office–Pierce County Conviction. Questions presented: “[W]hether the ISRB’s 720 month minimum term violated the ex post facto clauses and whether the Court should revisit the ex post facto clause holding of In re Personal Restraint of Powell, 117 Wn.2d 175, 814 P.2d 635 (1991).” Direct discretionary review so no COA opinion.
Duty to Motorists and Roadside Trees. Evans v. Spokane County, No. 99283-5. Spokane County’s Petition for Review. Questions presented: Does the County’s duty to motorists includes a duty to inspect for and anticipate possible or probable dangers associated with a roadside tree being blown down in extreme winds? Where evidence about the visibility of an alleged defect in a roadside tree is disputed in a negligence suit arising out of the tree’s failure in extreme winds, must a trial court instruct the jury that notice of an unsafe tree can only be imputed if a defect in the tree was patent and readily observable by a layperson? Where the County’s evidence showed that the winds that blew down a roadside tree were exceedingly rare in terms of both their frequency and strength and that the County could not predict where such winds would strike, is it entitled to jury instructions stating it cannot be liable if the winds were an act of God or an intervening cause of the accident that superseded any County negligence? COA opinion is unpublished. Petition for review pleadings available here.
Division Two
Division Three
WEEKLY ROUNDUP FOR FEBRUARY 26, 2021
Washington Supreme Court
Division One
Division Two
Division Three
Racially Discriminatory Real Estate Covenants. The granting of a petition to “strike” racially discriminatory provisions from real estate contracts pursuant to RCW 49.60.227, results in a court order that removes the language as a matter for law from the documents. The offending language is not physically and permanently removed from existing records. May v. Spokane County, COA No. 37179-4-III (Feb. 23, 2020). Judge Fearing dissented.
WEEKLY ROUNDUP FOR FEBRUARY 19, 2021
Washington Supreme Court
Division One
Officer Use of Force. Officers owe a legal duty to exercise reasonable care when engaging in affirmative conduct toward others, whether they be crime victims or individuals suspected of committing crimes. Whether the use of lethal force against a person who, after requesting the officers’ presence to investigate a burglary, purportedly assaulted the officers with a knife is a question for the trier of fact. Washington’s felony defense statute, RCW 4.24.420, does not provide complete immunity to the officers as there is a question of fact as to whether the decedent, who suffered from a mental illness, formed the specific mens rea for assault. The decendent’s expert’s “psychological autopsy” should have been admitted by the trial court and was sufficient to create a question of fact as to the decedent’s mens rea. The officers are not entitled to queslified immunity as there are genuine questions of material fact as to whether the officers followed the proper procedures in responding to the knife attack and whether both officers acted reasonably in using lethal force against the decedent. Genuine issues of material fact require the jury to decide whether the decedent assumed the risk that she would be shot when she attacked the officers with a knife. Watness v. City of Seattle, COA No. 79480-9-I (Feb. 16, 2021).
Division Two
Pennsylvania Superior Court
WEEKLY ROUNDUP FOR FEBRUARY 12, 2021
Washington Supreme Court
Division One
Opinion Evidence. Admission of an officer’s lay opinion identifying the defendant in a surveillance tape was an abuse of discretion where the surveillance tape was of high quality and the officer only had limited prior contact with the defendant. The admission of the lay opinion was not harmless as it was accompanied by the officer’s testimony of prior contacts with the defendant which led the jury to conclude that the defendant had committed prior criminal acts, and the judge’s denial of a requested limiting instruction. State v. Sanjurjo-Bloom, COA No. 80367-1-I (Feb. 8, 2021).
Division Two
United States Department of Justice
Montana Supreme Court
American Bar Association
WEEKLY ROUNDUP FOR FEBRUARY 5, 2021
Washington Supreme Court
Division One
Legal Update for Washington State Law Enforcement
Sixth Circuit
North Carolina Supreme Court
WEEKLY ROUNDUP FOR JANUARY 29, 2021
Washington Supreme Court
Immunity for Communications to Government Agencies. RCW 4.24.510 provides immunity from retaliatory lawsuits for “persons” who communicate information to the government regarding a matter of reasonable concern to a federal, state, or local agency. Lawyers hired as government contractors to perform an independent investigation are a “person” entitled to the immunity conferred by the statute. Leishman v. Ogden Murphy Wallace, PLLC, No. 97734-8 (Jan. 28, 2021). Plurality opinion: Lead opinion signed by Justices Montoya-Lewis, Johnson, Owens and Yu. Justice Gordon McCloud concurred. Dissenters were Justices Madsen, González, Stephens and Whitner.
Court Rules Published for Comment. The Washington Supreme Court has published a number of proposed rules for comment. All comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments should be received no later than the end of the comment period. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words. You may view all of the proposed rules here. Links to the proposed rules of special interest to prosecutors appears here.
Division Two
Ninth Circuit
Ethics
New Resources
WEEKLY ROUNDUP FOR JANURY 15, 2021
Washington Supreme Court
In re Recall of Hatcher, No. 98968-1 (Jan. 14, 2021).
Ninth Circuit
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR JANUARY 8, 2021
Washington Supreme Court
Division One
Division Two
State v. Birge, COA No. 53584-0-II (Jan. 5, 2021).
Division Three
Ninth Circuit
Superior Court of New Jersey
Supreme Court of the State of New York
WEEKLY ROUNDUP FOR December 24, 2020
Washington Supreme Court
Division One
Arkansas Supreme Court
WEEKLY ROUNDUP FOR DECEMBER 18, 2020
Division One
Destruction of Evidence. The destruction of a 2007 recorded interview in which the victim denied that the defendant sexually abused her did not provide grounds for dismissal of charges, where the interview was destroyed pursuant to routine procedures in 2012, five years before the victim disclosed being abused by the defendant. State v. Koeller, COA No. 799142-1-I (Nov. 2, 2020, publication ordered Dec. 10, 2020).
Division Two
Ohio Supreme Court
Pennsylvania Supreme Court
WEEKLY ROUNDUP FOR DECEMBER 11, 2020
Washington Supreme Court
Division One
Pseudonyms. The trial court did not err by allowing the plaintiffs in this lawsuit to use pseudonyms to identify themselves. The trial court considered the Ishikawa factors and its unchallenged findings support its decision to allow the plaintiffs to conceal their true identities. A court is not required to repeat its Ishikawa analysis regarding the use of pseudonyms each time it enters an order granting relief independent of the anonymity issue. Doe v. King County, COA No. 80321-2-I (Dec. 7, 2020).
Division Two
Legal Update for Washington State Law Enforcement
Sixth Circuit
WEEKLY ROUNDUP FOR DECEMBER 4, 2020
Washington Supreme Court
Division One
Failure to Inspect. A county has a duty under RCW 64.44.020, to inspect a house for hazardous chemical contamination when the sheriff’s office becomes aware of possible methamphetamine use and manufacturing on the property. Actual knowledge of contamination is not required in order to trigger the duty to notify the health department–just an awareness that methamphetamine contamination is likely to be present. A negligence action brought for a failure to perform the duties contained in RCW 64.44.020 falls within the “legislative intent exception” to the public duty doctrine. Perillo v. Island County, COA No. 80055-8-I (Nov. 30, 3030).
Division Two
Division Three
WEEKLY ROUNDUP FOR NOVEMBER 16-25, 2020
Washington Supreme Court
Division One
Division Two
Ninth Circuit
WEEKLY ROUNDUP FOR NOVEMBER 13, 2020
Washington Supreme Court
Division One
Vacation of Convictions. RCW 9.94A.640 grants discretion to the trial court to grant or deny a motion to vacate a conviction, even if an offender satisfies the statutory criteria. The trial court did not abuse its discretion in denying the defendant’s motion to vacate his conviction based upon the facts of the case as set out in the probable cause certification that the defendant stipulated to when pleading guilty. State v. Kopp, COA No. 80958-0-I (Nov. 19, 2020).
Division Two
Division Three
WEEKLY ROUNDUP FOR NOVEMBER 6, 2020
Washington Supreme Court
Division Three
Legal Update for Washington State Law Enforcement
Ethics Advisory Committee
Arizona Disciplinary Matter
WEEKLY ROUNDUP FOR OCTOBER 19-30, 2020
Washington Supreme Court
Division One
Division Two
Division Three
WEEKLY ROUNDUP FOR OCTOBER 16, 2020
Washington Supreme Court
Division One
Jury Unanimity. The defendant was deprived of his right to a unanimous verdict where the harassment information charged him with threatening to kill “Christopher R. Wilson and/or Rina Sue Tappan,” the State did not elect between the two victims on the harassment charge, no unanimity instruction was given, and the to-convict instruction listed the first and second elements of the crime as “(1) That on or between 3/1/2018 – 3/7/2018, the defendant knowingly threatened to kill Chris Wilson and/or Rina Tappan immediately or in the future; (2) That the words or conduct of the defendant placed Chris Wilson and/or Rina Tappan in reasonable fear that the threat to kill would
be carried out.” State v. Espinoza, COA No. 79413-2-I (Oct. 12, 2020).
Division Three
American Bar Association
WEEKLY ROUNDUP FOR OCTOBER 9, 2020
Washington Supreme Court
Division One
Division Two
Washington State Attorney General
“Federally Licensed Gunsmith” and Washington’s Background Check Statute. A person licensed as a “dealer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” under RCW 9.41.113(4)(f) when engaged in the business of repairing or modifying firearms. A person licensed as a “manufacturer” or an “importer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” under RCW 9.41.113(4)(f) when engaged in the business of repairing or modifying firearms of the type he or she manufactures or imports at the premises where he or she is licensed to manufacture or import them. AGO 2020 No. 3 (Oct. 5, 2020).
Legal Update for Washington State Law Enforcement
Oregon Supreme Court
WEEKLY ROUNDUP FOR SEPTEMBER 6-24, 2020; with thanks to Guest Editor King County DPA Kristin Relyea
Washington Supreme Court
Offender Score Calculation. Defendant whose convictions were affirmed as to some counts in the information and was sentenced upon those counts prior to retrial on the reversed counts, was entitled to have his offender scores calculated on the retried counts as if his sentencing on the retried counts occurred at the same time as his sentencing on the affirmed counts. In Re Personal Restraint of Cranshaw, No. 97778-0 (Sep. 24, 2020).
Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), holding that trial courts must consider the mitigating qualities of youth at sentencing and have the discretion to impose any sentence below the standard range or sentence enhancements, is a significant and material change in the law. Houston-Sconiers announced a new substantive constitutional rule that must be applied retroactively. Consequently, the petitioner’s claim is not time-barred. Here, the petitioner is entitled to resentencing for a series of robberies that he committed at age 16 in 2008 because it appears more likely than not that the judge would have imposed a lower sentence had she understood that the Eighth Amendment requires absolute discretion to impose any sentence below the standard range based on youthful diminished culpability. “It is imperative for courts to consider youthfulness at sentencing and for courts to have absolute discretion to impose any sentence below the SRA, including as little as no prison time, for crimes committed by children.” In re Personal Restraint of Ali, No. 95578-6 (Sep. 17, 2020). Dissenters were Justices Johnson, Madsen and Chief Justice Stephens.
Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), constitutes a significant and material change in the law that requires retroactive application on collateral review. The petitioner is entitled to resentencing because he was actually and substantially prejudiced by the sentencing court’s failure to meaningfully consider youth and to appreciate its absolute discretion to impose a sentence below the adult standard sentencing range for crimes that he committed when he was between 15-17 years old. In re Personal Restraint of Domingo-Cornelio, No. 97205-2 (Sep. 17, 2020). Dissenters were Justices Johnson, Madsen and Chief Justice Stephens.
Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. RCW 9.94A.535(1), placing the burden on juvenile defendants sentenced in adult court to prove mitigating circumstances is constitutional under the Eighth Amendment and article I, section 14 of our state constitution. State v. Gregg, No. 97517-5 (Sep. 17, 2020). Dissenters were Justices González, Gordon McCloud, Yu, and Montaya-Lewis.
Community Custody and Right to Travel. An individual’s right to travel is limited by a criminal conviction while in prison and on community custody. Any community custody condition imposed by the Indeterminate Sentencing Review Board (ISRB) must bear a reasonable relation to the circumstances of the crime, the offender’s risk of reoffense, and public safety. Here, the ISRB did not abuse its discretion by requiring the defendant child molester to obtain written approval before entering the county where his victims lived, worked, and attended school. In re Personal Restraint of Winton, No. 97452-7 (Sep. 17, 2020).
Guilty Pleas and Firearm Registration. Affirmative misinformation as to a four-year firearm registration requirement does not render a defendant’s plea involuntary because it is not punishment and is therefore a collateral consequence of the plea. Further, the circumstances here do not rise to the level of a manifest injustice requiring the withdrawal of the plea. State v. Gregg, No. 97517-5 (Sep. 17, 2020).
Division One
Open Public Meetings Act. A quorum of city council members participated in a non-public meeting by engaging in a series or meetings, phone calls, and electronic communications over a three day period. If a quorum of a legislative body, such as the city council, collectively commits or promises to each other to vote—as a group—in favor of or in opposition to a piece of pending legislation at a future public meeting, then such a commitment may be evidence that a majority of the body attended a “meeting” with the collective intent to take an “action” in violation of the OPMA. Summary judgment was improperly granted to the City Council as there are genuine issues of material facts as to whether the seven council members, by agreeing to join the draft press release, collectively committed to vote to repeal the EHT and, thereby, took “action” in violation of the OPMA. West v. Seattle City Council, COA No. 79920-7-I (Sep. 8, 2020).
Privacy and Text Messages. An officer violates a defendant’s article I, section 7 protections by sending a text message to a defendant from an unfamiliar phone number while impersonating a known contact of the defendant. Consent from the known contact for law enforcement to use his phone for investigatory purposes is not a substitute for a search warrant. State v. Bowman, COA No. 79023-4-I (Sep. 8, 2020).
Division Two
Uncharged Alternative Means. Instruction the jury on an uncharged alternative of witness tampering was reversible error where both the State and the defendant referred to the uncharged alternative during their respective closing arguments and the State injected a fact into the trial that supported the uncharged alternative. State v. Sanchez, COA No. 52916-5-II (Jul. 21, 2020, publication ordered Sep. 9, 2020).
Sexually Violent Predators. The management of the day-to-day administration of a less restrictive alternative (LRA) order may be delegated to a court appointed transition team. Transition team was properly tasked with determining what types of movies, printed materials and similar items that the detainee is allowed during the LRA. The provisions restricting the detainee’s access to certain media is not unconstitutionally vague. The detainee’s right to due process is honored as he may obtain judicial review of any decisions made by the transition team and his LRA can only be revoked following a hearing. The “legitimate demands” of the LRA supervision process necessitate random searches, and the substantial interest in protecting the public from the detainee outweighs his reduced privacy interest. In re Detention of Lee, COA No. 52717-1-II (Jul. 28, 2020, publication ordered Sep. 9, 2020).
Washington Ethics Advisory Committee
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR SEPTEMBER 4, 2020
Division One
Restoration of Firearm Rights. RCW 9.41.040(4)(b) is not a jurisdictional limit on a superior court’s authority to restore a defendant’s firearm rights. The statute gives a petitioner two venue options, one of which is any superior court of conviction and the other is the superior court in the county of the petitioner’s residence. The petitioner, who was a Pierce County resident, could obtain an order in King County Superior Court that restored his firearm rights as to his King County Superior Court conviction, his Pierce County Superior Court convictions, and his Lakewood Municipal Court conviction. State v. Manuel, COA No. 80405-7-I (Aug. 31, 2020).
Attempted Unlawful Possession of a Firearm. Attempted unlawful possession of a firearm does not include an element that the defendant intended to unlawfully possess a firearm, rather than just possess a firearm. State v. Nielsen, COA No. 79792-1-I (Aug. 31, 2020).
Division Two
Collateral Attacks. Proclamation 20-47 which tolled the one-year time bar in RCW 10.73.090 for thirty days preserved existing rights and did not revive expired claims. In re Personal Restraint of Blanks, COA No. 54672-8-II (Sep. 1, 2020).
Involuntary Administration of Antipsychotic Medication. The State must attempt to obtain an involuntarily committed person’s informed consent to treatment with antipsychotic medication before obtaining an order authorizing the involuntary administration of antipsychotic medication. This requirement applies even when the treating physician determines that an attempt to obtain informed consent would be futile because the patient lacks the competency to give informed consent. A violation of this mandate invalidates the order authorizing the involuntary administration of antipsychotic medication. In re Detention of L.K., COA No. 53377-4-II (Sep. 1, 2020).
Child Abuse Investigations. The special relationship creating a duty to protect recognized in H.B.H. v. State, 192 Wn.2d 154 (2018), does not extend to law enforcement agencies investigating allegations of child abuse. M.E. v. City of Tacoma, COA No. 53011-2-II (Sep. 1, 2020).
Critical Areas Ordinance. WAC 365-190-130(4)(b) expressly establishes that the Department’s priority habitat and species information for candidate species is the “best available science” and the Department has established that any occurrence of the western toad should be designated as a critical area. The County misapplied the best available science by only designating the known upland occurrences of the western toad as critical areas. The precautionary approach requires that new upland occurrences must also be designated as critical areas and protected when they are discovered. The provision granting the planning director unrestrained discretion to waive the required biological site assessment is contrary to law. The 1,000-foot radius for requiring a biological assessment is neither arbitrary nor capricious. Whidbey Environmental Action Network v. Island County, COA No. 52923-8-II (Sep. 1, 2020).
Division Three
Accomplice Liability. The State’s request for an accomplice jury instruction was properly granted. The State was not bound by the testimony of its witness, who the defense argued was the primarily culpable actor. Other evidence submitted to the jury could lead the jury to conclude that the witness’s claim of innocent participation was not credible. State v. Miller, COA No. 37351-7-III (Sep. 1, 2020).
“Assumption of False Identity.” Sufficient evidence supported the defendant’s conviction for criminal impersonation in the first degree. The defendant’s phone call to the victim’s annuity company in which the defendant provided his true name while falsely claiming to be the victim’s nephew is the assumption of a false identity. Falsely asserting a family relationship to facilitate a fraud or advance some other unlawful purpose is consistent with the plain language of RCW 9A.60.040(1)(a). State v. Miller, COA No. 37351-7-III (Sep. 1, 2020).
WEEKLY ROUNDUP FOR AUGUST 28, 2020
Division One
Use of Initials. The use of a child’s initials in the to convict instruction does not constitute a judicial comment on the evidence, nor does it relieve the State of its burden of proof. The use of a child’s initials, instead of her full name, in court documents does not constitute a court closure and does not violate a defendant’s public trial right. State v. Mansour, COA No. 78708-0-I (Aug. 24, 2020).
Personal Restraint Petitions. The two year statute of limitations codified at RCW 4.16.130 applies to personal restraint petitions raising due process challenges to a serious infraction proceeding that occurred in the Department of Corrections. In re Personal Restraint of Heck, COA No. 79654-2-I (Aug. 24, 2020).
WEEKLY ROUNDUP FOR AUGUST 21, 2020
Washington Supreme Court
Closing Arguments. Framing a prosecution as representative of the war on drugs deprives a defendant of a fair trail and constitutes reversible error. The lack of an objection in the trial court to the prosecutor’s framing of the defendant’s prosecution as representing the war on drugs and reinforcing the theme throughout the case was flagrant and ill intentioned misconduct, such that the defendant’s failure to object does not preclude relief. State v. Loughbom, No. 97443-8 (Aug. 20, 2020). State was represented by Lincoln County DPA Adam Walser.
County Government. A statute that requires noncharter counties with populations of 400,000 or more to elect five county commissioners, one from each of the districts drawn by a redistricting committee, does not violate article XI, section 4 of of the Washington Constitution—mandating the legislature to establish a uniform system of county government—and article XI, section 5—requiring the legislature to provide for the election of county commissioners through general and uniform laws. The legislature may classify counties by population for any purpose that does not violate other constitutional provisions. State ex rel. Maulsby v. Fleming, 88 Wash. 583 (1915), a case that struck down a legislative scheme that removed the county coroner office in a certain class of counties is overruled. Spokane County v. State, No. 97739-9 (Aug. 20, 2020).
Division One
Burglary. Trespass is not a lesser included crime of burglary. This is because knowledge of the unlawfulness of one’s entry or remaining which is an essential element of trespass, is not an element of the crime of burglary. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).
Discovery Obligations. The State did not violate its discovery obligations where it provided defense counsel with a copy of all of the defendant’s recorded jail calls and then used one of those calls to impeach the defendant’s trial court testimony. It was not until the defendant testified at trial that the used calls became relevant, so the trial court did not abuse its discretion in allowing the State to admit the recordings, despite the State’s pre-trial representation that it did not intend to use any of the jail calls. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).
Offender Score Calculation. The defendant’s burglary and assault convictions encompass the same criminal conduct. Matter remanded for resentencing as the appellate court could not determine whether the trial court would imposed the same sentence based upon the burglary antimerger statute. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).
Improper Opinion Evidence. “It is inappropriate in a criminal trial for a prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer. New trial required when the prosecutor, despite repeated sustained objections, continued to question the officer until he finally confirmed that he would not make an arrest if he did not have a credible witness–as this implied to the jury that the officer believed the victim over the defendant. State v. Hawkins, COA No. 79897-9-I (Aug. 17, 2020).
Division Two
Depictions of a Minor Engaged in Sexually Explicit Conduct. A person has no privacy interest under article I, section 7 in the images obtained by an internet cloud storage service provider who then provides the images to law enforcement. A detective does not require a search warrant before opening or viewing the images forwarded to him or her from the internet cloud storage service provider. State v. Harrier, COA No. 52544-5-II (Jun. 23, 2020, publication ordered Aug. 18, 2020).
Division Three
Retroactivity of McFarland. State v. McFarland, 189 Wn.2d 47 (2017), which held that exceptional sentences were available for unlawful possession of weapons offenses sentenced under RCW 9.94A.589(1)(c), does not constitute a significant change of law that justifies applying the case retroactively. In re Personal Restraint of Henriques, COA No. 36408-9-III (Aug. 18, 2020).
Governor’s Proclamation. Governor’s Proclamation 20-47 which waived the time bar of RCW 10.73.090 for a thirty day period did not waive RCW 10.73.140, the successive petition rule. In re Personal Restraint of Henriques, COA No. 36408-9-III, n. 2 (Aug. 18, 2020).
Credit for Time Served. The defendant was properly denied credit for time served in Oregon after service of the Washington arrest warrant and prior to the defendant’s return to Washington. Washington issued a “no bail” warrant, so the defendant’s wealth or poverty made no difference concerning his ability to achieve pre-trial release on the Washington offense. When the defendant was sentenced in Washington, he had not yet been sentenced in Oregon so Washington lacked the ability to order a concurrent sentence. Oregon, moreover, credited the defendant for every day spent in custody, including any time that overlapped with the Washington detention and the Washington sentence. State v. Enriquez-Martinez, COA No. 36190-0-III (Aug. 18, 2020).
Possession of a Controlled Substance. Splitting from Division One’s decision in State v. Clark-El, 196 Wn. App. 614 (2016), and a decision of another panel of Division Three judges in State v. Barbarosh, 10 Wn. App. 2d 4088 (2019), the court holds that a verdict form that directed the jurors to determine whether the defendant was guilty or not guilty “of the crime of Possession of a Controlled Substance–other than Marijuana,” was sufficient to place the defendant’s offense within the scope of the felony sentencing grid. State v. Gardner, COA No. 36660-0-III (Aug. 18, 2020).
Ninth Circuit
Second Amendment. California Government Code § 31310, which bans possession of large capacity magazines (“LCMs”) that hold more than ten rounds of ammunition, violates the Second Amendment. Firearm magazines are protected arms under the Second Amendment. LCMs are commonly owned and typically used for lawful purposes. LCM prohibitions are not longstanding regulations that enjoy a presumption of lawfulness. The statutes near-categorical ban of LCMs does not survive strict scrutiny. Duncan v. Becerra, No. 19-55376 (9th Cir. Aug. 14, 2020).
WEEKLY ROUNDUP FOR AUGUST 14, 2020
Division One
Court Rule and Constitutional Speedy Trial. Local custom is irrelevant to a determination of whether any provision of CrRLJ 3.3 was violated. This is because CrRLJ 3.3(a)(4) expressly prohibits dismissal for delays arising from circumstances that are not explicitly addressed in CrRLJ 4.14 or CrRLJ 3.3. Accord CrRLJ 3.3(h). A new commencement date following a defendant’s failure to appear at a mandatory hearing only begins with a defendant’s appearance in the specific case; an appearance on an unrelated charge in a municipal court will not satisfy the presence requirements of CrRLJ 3.3(a)(3)(iii). Mere indication that a warrant was returned is not sufficient to satisfy the second requirement of CrRLJ 3.3(a)(3)(iii). The lapse of 4 years, 10 months, and 27 days from the date the DUI charge was filed until the defendant was brought to trial does not violate the Sixth Amendment because the delay was due to the defendant’s refusal to receive the mailed summons at his home address or, if he had moved, failing to update his address with DOL as required by RCW 46.20.205, and all but 83 days of the delay was attributed to the defendant’s failure to appear at the scheduled arraignment. The defendant is not deemed to have asserted his right to a speedy trial as he only raised the issue in his motion to dismiss pursuant to CrRLJ 3.3 State v. Nov, COA No. 79466-3-I (Aug. 10, 2020).
Division Three
COVID-19 and RCW 10.73.090. Proclamation 20-47, which waived and suspended RCW 10.73.090, preserved only existing rights. The proclamation does not allow an individual to file a collateral attack that was already untimely under RCW 10.73.090, prior to April 14, 2020. In re Personal Restraint of Millspaugh, COA No. 37552-8-III (Aug. 11, 2020).
Legal Update for Washington State Law Enforcement
The July 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR AUGUST 7, 2020
Washington Supreme Court
On August 4, 2020, the Court granted review of the following case:
Lesser Included/Lesser Degree Offenses. State v. Coryell, No. 98256-2. Thurston County. Question presented: Whether the current standard for determining whether a lesser included offense instruction should be tendered to the jury is incorrect and harmful. COA opinion is unpublished. Petition for review pleadings available here.
Division One
Deferred Prosecution. The deferred prosecution statute does not prohibit a court from considering a defendant’s residency. The court neither abused its discretion nor denied the defendant’s equal protection rights in denying a deferred prosecution to a defendant who lives out of state due to the difficulty in ensuring compliance with the deferred prosecution program. Thornock v. Lambo, COA No. 80294-1-I (Aug. 3, 2020).
Division Three
Community Custody. Requirements that a defendant, who was convicted of second degree attempted rape of a child, inform the supervising CCO and sexual deviancy treatment provider of any dating relationship and that he disclose his sex offender status prior to any sexual contact are affirmative conduct requirements governed by RCW 9.94A.703(3)(d) that are reasonably related to the safety of the community. A requirement for treatment provider approval for sexual contact is a proper crime-related requirement when it does not require contact-by-contact approval and is read to require that he not have sexual contact until his treatment provider is satisfied that sexual contact does not put others at risk. The clause prohibiting the defendant from “prohibition upon from possessing, using, accessing, or viewing “any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4), is unconstitutionally vague as it includes conduct such as simulated sexual intercourse that – engage in by adults–appears in mainstream media. A condition of “No internet use of websites, including email, to contact minors, to gather information about minors, or access personal webpages of minors” is neither vague nor overbroad. In re Personal Restraint of Sickels, COA No. 36753-3-III (Aug. 4, 2020).
DOSA Revocation. A court that revokes a prison-based DOSA during the period of community custody may impose a top of the standard range sentence with credit for time served, rather than imposing the remainder of the original sentence. State v. Salazar, COA No. 36960-9-III (Jul. 28, 2020).
Ninth Circuit
Brady Violations. District court properly dismissed criminal prosecution with prejudice under its supervisory powers where federal agencies recklessly withheld/failed to make known exculpatory evidence that should have been disclosed well before trial, until after the trial started, and the prosecution made deliberate choices, not mere misjudgment, by withholding facially exculpatory evidence that directly negated the government’s theory of the case. Lesser sanctions would have given the government an opportunity to strengthen its case at the defendants’ expense and would not deter future prosecutors from engaging in the same misconduct as occurred here. The Court did not that in affirming the district court it did not intend “to cast aspersion on the professionalism of the members of the U.S. Attorney’s Office here [as] much of the ‘blame’ from the constitutional violations here falls on the prosecution only because actions and knowledge related to evidence by other government agencies are imputed to the prosecution.” United States v. Bundy, No. 18-10287 (9th Cir. Aug. 6, 2020).
Termination of Pro Se Status. While a defendant’s right to represent himself or herself may be terminated for outrageous conduct, such as threatening a juror or taunting the judge, the right by not be terminated by a single instance of disobedience that is unaccompanied by open defiance or disruption. The defendant’s right of self-representation was violated in this case when the court terminated it, without prior warning, after the defendant asked a single question that was prejudicial to government. United States v. Engel, No. 18-10293 (9th Cir. Aug. 6, 2020).
WEEKLY ROUNDUP FOR JULY 24, 2020
Washington Supreme Court
COVID-19 and Incarceration. The writ of mandamus to force Governor Inslee and Department of Corrections Secretary Stephen Sinclair (collectively “DOC”) to reduce the prison population by ordering the immediate release of three categories of offenders is denied on separation of powers grounds. The writ asks the judiciary to encroach on the executive branch and exceed the court’s authority based on policies the legislature never approved. The record before the Court, moreover, demonstrates that DOC has not acted with deliberate indifference to the extreme risk that COVID-19 creates for the incarcerated. Colvin v. Inslee, No. 98317-8 (Jul. 23, 2020). Dissenters were Justices González, Yu, Montoya-Lewis, and Gordon McCloud. Governor Inslee was represented by AAGs John Samson and Tim Lang. Pierce County DPA Teresa Chen authored WAPA’s amicus brief and Kitsap County DPA Jacquelyn Aufderheide and Skagit County DPAs Haley Sebens and Nathaniel Block authored WSAC’s amicus brief.
Ninth Circuit
Parking Fines. The Eighth Amendment’s Excessive Fines Clause applies to municipal parking fines. An initial fine of $63 for violating parking ordinance was not grossly disproportionate to the offense of overstaying the time at a parking space. The setting of a late fee at one hundred percent of the initial fine must be remanded for the City to justify. Pimentel v. City of Los Angeles, No. 18-56533 (9th Cir. Jul. 22, 2020).
Tennesee Court of Criminal Appeals
COVID-19 and Confrontation. Testimony via two-way video conferencing technology requires a case-specific and witness-specific determination of whether the denial of the defendant’s right to confront witnesses is necessary to further an important public interest. The trial court may consider the negative implications, including health issues, and/or trauma to the witness and the relative importance of the testimony. State v. Seale, No. M2019-01913-CCA-R9-CD (Tenn. Cr. App. Jul. 20, 2020).
WEEKLY ROUNDUP FOR JULY 17, 2020
Washington Supreme Court
Pre-trial Restraints. The shackling or handcuffing of a defendant at any stage of proceedings without an individualized inquiry into whether shackles or restraints are necessary violates the defendant’s constitutional rights. The burden is on the State to prove the harmlessness of the shackling or restraints beyond a reasonable doubt. This burden may be met where the State can prove that under the Hutchinson/Hartzog individualized shackling factors that the defendant would have been required to wear restraints. The State does not meet this burden by establishing that no jurors observed the restraints during trial. When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, satisfy this burden the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary. State v. Jackson, No. 97681-3 (July 16, 2020). The State was represented by Clallam County DPA Jesse Espinoza. WAPA Appellate Resource Attorney/Spokane County DPA Gretchen Verhoef filed an amicus brief on behalf of WAPA.
Division Three
True Threats. The State failed to establish that the 17-year-old girl’s texts to friends, sent in the midst of a mother-daughter fight, and which interspersed statements that she wanted to kill her mother with smiling emojis and “LOL” do not constitute true threats for purposes of the harassment statute as there is no indication the girl ever meant for her mother to see the texts of that she ever threatened her mother directly. In assessing whether a defendant’s speech constituted a true threat, the focus is the impact the language would have on the defendant’s intended audience. State v. D.R.C., COA No. 36821-1-III (Jul. 14, 2020).
Sexually Violent Predator. An order revoking a community-based less restrictive alternative (LRA)is not an appealable order. Detention of McHatton, COA No. 37356-8-III (Jul. 14, 2020).
American Bar Association
Harassment or Discrimination. This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline. Formal Opinion 493 (July 15, 2020). [Editor’s Note: Washington’s RPC 8.4(g) and (h) vary from the model rule in a number of ways. Nonetheless, this ethics opinion provides valuable guidance as to the interpretation of our rule.]
WEEKLY ROUNDUP FOR JULY 10, 2020
Washington Supreme Court
On July 7, 202, the Court granted petitions for review in the following cases:
Drug Sentencing. State v. Peterson, No. 98201-5. Lewis County– State’s Petition. Questions presented: Whether a person convicted of selling heroin for a profit, RCW 69.50.410(3)(a), is to be sentenced under the Sentencing Reform Act or to the mandatory two-year sentence found in RCW 69.50.410(3)(a)? COA opinion reported at 12 Wn. App. 195 (2020). Petition for review pleadings available here.
Appeal as a Matter of Right. State v. Waller, No. 98326-7. King County– State’s Petition. Questions presented: Whether a trial court’s grant of resentencing pursuant to a CrR 7.8(b)(5) motion is appealable as a matter of right by the State under RAP 2.2(b)(3)? COA opinion reported at 12 Wn. App. 2d 523 (2020). Petition for review pleadings available here.
Tort Liability. Meyers v. Ferndale School Dist., No. 98280-5. Questions presented: Whether a school district may be liable for the death of a student who was struck by a car while walking on a sidewalk during a physical education class – foreseeability or field or zone of danger? COA opinion reported at 12 Wn. App. 2d 254 (2020). Petition for review pleadings available here.
Tort Damages. Coogan v. Genuine Parts Co., No. 98296-1. County. “Petition for review granted as to all issues; issues raised in the answer granted.” Questions presented: Whether the jury’s damage awards was improperly reduced by the appellate court? Whether the trial court erred by excluding evidence of the deceased’s alcohol related condition under ER 403? Whether the plaintiff’s attorney’s misconduct during witness examination warrants a new trial on both liability and damages? Whether the trial court erred by denying the defendant’s motion for relief from judgment under CR 60(b)(3) and (b)(4) based upon the alleged misrepresentation of facts and hidden evidence? COA opinion is unpublished. Petition for review pleadings available here.
The Court also granted three motions for discretionary review:
ISRB Jurisdiction. In re Personal Restraint of Brooks, No. 97689-9. King County (AG matter). Issue: Whether RCW 9.94A.730 applies to offenders convicted pre-Sentencing Reform Act who are subject to the Indeterminate Sentencing Review Board’s jurisdiction under RCW 9.95. Brooks was convicted in King County in 1978 of murder, robbery rape, and other serious crimes. He argues he’s entitled to petition for early release under RCW 9.94A.730. The chief judge summarily dismissed his Personal Restraint Petition.
Early Release of “Juvenile” Offenders. 2. In re Personal Restraint of Betancourt, No. 97973-1. Grant County (AG matter). Issue: What factors may the Indeterminate Review Board consider when it considers the early release of “juvenile” under RCW 9.94A.730? Betancourt was convicted of two counts of murder in Grant County in 1997. The ISRB denied his application for release under RCW 9.94A.730 after conducting a hearing. The Court of Appeals certified the case to the Supreme Court.
Immigration Consequences. In re Personal Restraint of Garcia-Mendoza, No. 98026-8. Snohomish County. Issue: Whether Tsai and Sandoval created a significant change in the law with regard to the statutory notification requirement in RCW 10.40.200(2), such that a court’s failure to provide the statutory warning requires granting a motion to withdraw a guilty plea, regardless of evidence of prejudice.
Division Three
Self-Representation. Trial court properly revoked competent defendant’s pro se status and appointed counsel, as the defendant, who argued with the court and prospective jurors, berated the court, and asked unusual questions to the trial court, lacked the mental capacity to represent himself. State v. Smith, COA No. 36552-2-III (Jul. 9, 2020).
Legal Update for Washington State Law Enforcement
The June 2020 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
Reasonable Suspicion and 911 Calls. Factors that can demonstrate the reliability of a tip relayed by a third party to 911 requires a court to consider the reliability of both the caller himself and the third party whose tip the caller conveys. Factors include whether the caller provides a name and other identifying information, the caller dialed a recorded emergency line, the size of the likely class of informants, the number of individuals providing information to the caller, and whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge, United States v. Vandergroen, No. 19-10075 (9th Cir. Jul. 7, 2020). [Editors note: A bare report that someone is in possession of a firearm in Washington does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. See United States v. Brown, 925 F.3d 1150, 1154 (9th Cir. 2019). A stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge “classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age.” RCW 9.41.300(1)(d).]
WEEKLY ROUNDUP FOR JULY 3, 2020
Washington Supreme Court
Land Use Petition Act. Because the Yakima County Code requires a final land use decision, including a decision following review by the board of county commissioners, to be written “for the purposes of Chapter 36.70(c) RCW, the 21-day period for filing a LUPA petition in superior court begins on the day the BOCC’s proclamation is transmitted to the parties, not the day the proclamation is reduced to writing at a public meeting. Confederated Tribes & Bands of the Yakama Nation v. Yakima County, No. 97910-3 (Jul. 2, 2020).
Privileges. In a case involving the marital counseling privilege, the Court holds that an exception to the privilege in one subsection of RCW 5.60.050 does not apply to any other subsection of RCW 5.60.050. Magney v. Pham, No. 96669-9 (Jul. 2, 2020). Justices Gordon McCloud and González dissent as to the process the majority sets out for determining implied waiver.
Division One
Sexual Assault Protection Orders. Children under the age of eight may not be restrained by a Sexual Assault Protection Order (SAPO) because they lack the capacity to commit a sexual assault or other crime. A temporary SAPO is also unavailable to retrain a child under age twelve because the child is still presumed incapable of committing crime at that age. For children between eight and 12 years only, a permanent SAPO restraining their conduct may be available, but only after a hearing in which the presumption of incapacity is removed. In re Jones, COA No. 79767-1-I (Jun. 29, 2020).
Division Two
Warrantless Blood Draw. Exigent circumstances justified the warrantless blood draw done at the scene of a car collision. When law enforcement arrived at the scene of the collision, the defendant was trapped in her vehicle, a strong order of alcohol was emanating from her, her speech was slurred and repetitive, and she admitted to drinking at alcohol. At the time of the draw, paramedics had extracted the defendant from the car, were about to administer IV fluids and medications, whose effect on blood alcohol were not known to the officer, and were planning to immediately depart for the hospital. A telephonic search warrant, which takes between 20 and 45 minutes in the county where the accident occurred, could not be obtained prior to the administration of drugs. State v. Rawley, COA No. 52344-2-II (Mar. 23, 2020, publication ordered Jun. 30, 2020).
Organized Retail Theft. Theft by ordering items online from catalogs will not support a conviction for second degree organized retail theft, because the takings are not from a “mercantile establishment.” The undefined statutory phrase, “mercantile establishment,” only applies to a physical establishment. State v. Lake, COA No. 52204-7-II (Jun. 30, 2020).
Public Records Act. Paratransit, a private corporation whose operations are funded through its contacts with the state, is not the functional equivalent of a government agency to which the Public Records Act (PRA) applies. A clause in Paratransit’s contract with the state which provides that “The Contractor certifies that the Contractor is now, and shall remain, in compliance with Chapter 42.52 RCW, Ethics in Public Service, throughout the term of this Contract,” does not obligate Paratransit to comply with the PRA. McKee v. Paratransit Services, COA No. 51920-8-II (Apr. 7, 2020, publication ordered Jun. 30, 2020).
Ninth Circuit
Retrocession. The State of Washington may exercise criminal jurisdiction over members of the Confederated Tribes and Bands of the Yakama Nation who commit crimes against non-Indians on fee simple property located within the exterior boundaries of the Yakama reservation, and over non-Indians who commit crimes against Indians anywhere within the Yakama reservation. Confederated Tribes and Bands of the Yakama Nation v. Yakima County, No. 19-35199 (9th Cir. Jun. 29, 2020).
Maryland Court of Appeals
Defense Counsel Conduct. Criminal defense attorney disbarred, in part, for violations of RPC 4.3 (dealing with unrepresented person) and RPC 8.4 (a), (c), and (d) (misconduct). The improper conduct related to these rules arose in a child sex abuse case. The attorney met alone with the 16-year-old victim and advised her that he would cross-examine her at trial about her sexual history and drug and alcohol abuse, that the attorney did not believe the victim’s statement that she had been raped and that she was blaming the defendant because she regretted her decision about sex, encouraged the victim to “shed” all the shame and discrimination arising from gender and cultural issues, and took other actions to dissuade the victim from participating in the prosecution. The attorney also referred the victim to another lawyer who the attorney had a pre-existing professional relationship with and whose fee would be paid for by the father of the client, so that this lawyer could discuss the victim’s rights with her. Attorney Grievance Commission of Maryland v. Hoerauf, No. 468445V (Md. Jun. 26, 2020).
Forum of Hate E-mails. Two government attorneys were indefinitely suspended from the practice of law for membership in the “forum of hate.” The two attorneys, for approximately seven years, while working for the federal government, participated in an exchange of emails among a group of federal government employees, who were also lawyers, using their official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. Their conduct violated RPC 8.4(d) (conduct that is prejudicial to the administration of justice), RPC 8.4(a) (violate the RPC), and 8.4(g) and/or (h) (bias of prejudice). Attorney Grievance Commission of Maryland v. Markey, No. 468469-V (Md. Jun. 26, 2020).
WEEKLY ROUNDUP FOR JUNE 26, 2020
Washington Supreme Court
Public Defense. The State of Washington is not liable for alleged systemic, structural deficiencies in a county’s delivery of indigent public defense. Davison v. State, No. 96766-1 (Jun. 25, 2020). Justices Gozález, Yu and Gordon McCloud concurred.
Division Two
Victim Recantation. The trial court abused its discretion in limiting the defendant’s cross-examination of his girlfriend’s testimony. Defendant was entitled to ask his girlfriend if she felt pressured or threatened regarding her testimony, which recanted the sworn statement she made shortly after the incident. Expert testimony that as a general matter it is somewhat common for survivors of domestic violence to later recant or minimize their allegations did not constitute an improper comment on the defendant’s girlfriend’s credibility. State v. Case, COA No. 52464-3 (Jun. 23, 2020)
Public Records Act. The City’s redactions to requested performance evaluations were proper under the PRA’s “personal information” exemption, and the City’s accompanying privilege log contained adequate explanations. Items redacted were performance ratings, specific examples, employee’s listed goals, steps toward achievement, progress, target dates, supervisor’s comments, and overall rating. Church of the Divine Earth v. City of Tacoma, COA No. 53804-1 (Apr. 14, 2020, publication ordered Jun. 23, 2020).
Fourth Circuit
Closing Argument. Allowing the prosecution to waive its initial closing argument while retaining the opportunity to rebut the defendant’s argument, improperly impairs a defendant’s ability to rebut the governments arguments. United States v. Smith, No. 19-4321 (4th Cir. Jun. 16, 2020). [Editor’s Note: CrR 6.15(d) provides for the same order or argument as prescribed in Rule 29.1 of the Federal Rules of Criminal Procedure.]
Ohio Board of Professional Conduct
Concurrent Representation of Clients– RPCs 1.7 and 1.10. A law firm must withdraw from the concurrent representation of multiple clients or seek their informed, written consent when the clients’ disparate interests as to the outcome of the same matter materially interferes with the firm’s lawyers’ independent professional judgment in representing either client. Ohio Board of Professional Conduct, Opinion 2020-04 (Jun. 12, 2020). [Editor’s note: Public defenders, unlike prosecuting attorneys, are subject to RPC 1.10. See Wash. RPC 1.10(d) (“The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. However, lawyers appointed or assigned to represent indigent members of the public (public defenders) are subject to this rule regardless of whether they are government employees.”)]
WEEKLY ROUNDUP FOR JUNE 19, 2020
United States Supreme Court
Federal Employment Discrimination Law. Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Bostock v. Clayton County, Georgia, No. (Jun. 15, 2020). Justices Alito, Thomas, and Kavanaugh dissented.
Dissents from Denial of Certiorari. The Court declined review of cases involving the Second Amendment Right to Bear Arms and Qualified Immunity. Justices Thomas and Kavanaugh dissented with respect to the Second Amendment, while Justice Thomas was the lone dissenter in the qualified immunity case. Robers v. Grewal, No. 18-824 (Jun. 15, 2020) (Second Amendment case); Baxter v. Bracey, No. 18-1287 (Jun. 15, 2020) (qualified immunity).
Washington Supreme Court
Washington Law Against Discrimination. A school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the Washington Law Against Discrimination (“WLAD”). Under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault. W.H. v. Olympia School District, No. 97630-9 (Jun. 18, 2020).
Division One
Illegal Search. The fruits of a warrantless search of a sleeping individual in a Starbucks store should have been suppressed as the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket. In addition, the officer removed the utensil prior to conducting a pat-down of the outside of the pocket. If the officer had done so, he would have discovered that the item was a spoon and not a sharp object. The removal of the utensil was not proper under the emergency aid function of the community caretaking exception as the record is insufficient to find that the officer was conducting a routine check on health and safety rather than a criminal investigation. State v. Martin, COA No. 78958-9-I (Jun. 15, 2020).
Division Two
Outrageous Police Misconduct and Online Sting Operations. Neither the Washington State Patrol Missing and Exploited Children Task Force’s “Net Nanny” operations receipt of funds from private citizens and organizations, such as Operation Underground Railroad, nor the nature of communications between the defendant and that law enforcement officer who identified himself/herself as “Hannah”, violates due process under the State v. Lively, 130 Wn.2d 1 (1996), test for outrageous police misconduct. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).
Washington State Privacy Act. The defendant impliedly consented to the recording of his messages to an undercover law enforcement officer who identified himself/herself as “Hannah” by choosing to communicate through e-mail and text messages that the defendant knew would be recorded. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).
Constitutional Right to Privacy. Article I, section 7 of the Washington Constitution is not violated when a person voluntarily communicates with a stranger and the stranger, an undercover police officer, views the sent e-mails and texts without a warrant. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).
Appeal of Sentence. The defendant cannot appeal his standard range sentence. The sentencing judge did not categorically refuse to consider an exceptional sentence downward based upon youthfulness, rather he did not find such a sentence appropriate in this case. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).
WEEKLY ROUNDUP FOR JUNE 12, 2020
Washington Supreme Court
The Washington Supreme Court has accepted review in the following case:
SSOSA. State v. Pratt, No. 98066-7. Clark County. Whether in this prosecution for first degree child molestation, the defendant had a sufficient connection to the victim to make him eligible for the special sex offender sentencing alternative pursuant to RCW 9.94A.670(2)(a), under which an offender is eligible only if the offender had a sufficient relationship with or connection to the victim such that the crime itself did not constitute the sole connection. COA opinion is reported at 11 Wn. App. 2d 450 (2019). Petition for review may be found here.
Division One
Firearm Enhancements. State v. Brown, 139 Wn.2d 20 (1999), requires firearm enhancements to be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes. State v. Brown, COA No. 79954-1-I (May 18, 2020).
Motions for Immediate Release. A prison inmate is not entitled to release from confinement under either the Eighth Amendment or article I, section 14, as he has produced no evidence that the Department of Corrections has ignored the risk COVID-19 presents to Washington prison inmates. An inability to achieve meaningful social distancing in a jail or prison does not evince deliberate indifference to the COVID-19 risk. DOC has not violated its common law duty to protect inmates as it is exercising reasonable care in formulating and implementing screening, prevention, and treatment policies to mitigate COVID-19 risks. In re Personal Restraint of Pauley, COA No. 81370-6-I (May 18, 2020).
Division Three
Writs of Review. The superior court’s issuance of a writ of review is a discretionary ruling. It is unclear whether a respondent who was not provided notice prior to the issuance of the writ may file an RCW 4.12.050(1)(a) notice of disqualification. State v. Spokane County District Court (Taylor), COA No. 36506-9-III (Jun. 9, 2020).
Necessity Defense. A person engaged in civil disobedience may not assert a necessity defense when charged with violating constitutional laws. State v. Spokane County District Court (Taylor), COA No. 36506-9-III (Jun. 9, 2020). Judge Fearing dissented. [Editor’s Note: This decision conflicts with Division One’s opinion in State v. Ward, 8 Wn. App. 2d 365 (2019).]
Attempted Murder. The charging document for attempted first degree murder must include premeditation. State v. Murry, COA No. 35035-5-III (Jun. 4, 2020).
Frye Community. “[T]he relevant scientific community for purposes of a Frye analysis is not the ‘criminal forensics community,’ but, is instead the community of experts who are familiar with the use of the technique in question.” The examination of nanoparticles by a Transmission Electron Microscope is accepted in the scientific community familiar with the technology. State v. Murry, COA No. 35035-5-III (Jun. 4, 2020).
Privacy Act. A defendant’s request that the child who reported the inappropriate sexual touching state that he lied when making the disclosure does not fall within RCW 9.73.030(2)’s one-party exception to the Privacy Act for conversations “which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” This exception is limited to communications or conversations which convey threats of extortion, blackmail, bodily harm, or other unlawfulr requests or demands of a similar nature. The defendant’s statement was in “the nature of a request, or more aptly a plea, for a favor.” No witness may testify at trial regarding the contents of the conversation. State v. Gearhard, COA No. 36046-6-III (Jun. 4, 2020). Judge Korsmo dissented.
American Bar Association
RPC 1.18. “ A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).” Obligations to Prospective Clients: Confidentiality, Conflicts and “Significantly Harmful” Information, ABA Formal Opinion 492 (Jun. 9, 2020).
WEEKLY ROUNDUP FOR JUNE 5, 2020
United States Supreme Court
Emergency Powers and Free Exercise of Religion. California Governor Newsom’s Executive Order that restricts places of worship to 25 percent of building capacity or 100 occupants, whichever is less, is consistent with the Free Exercise Clause of the First Amendment and is entitled to deference during the pandemic. South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29, 2020).
Washington Supreme Court
Open Letter to the Legal Community. Washington Supreme Court’s response to racial injustice.
Division Two
Public Records Act. A county cannot be liable under the Public Records Act (PRA) for not disclosing documents that are not responsive to the plaintiff’s request. The County’s letter which stated that “As you have received responsive documents, I am closing your request,” comprised a final, definitive response for purposes of RCW 42.56.550(6). The 1-year statute of limitations was not extended by the County’s post-letter release of additional records. Dotson v. Pierce County, COA No. 52561-5-II (Jun. 2, 2020).
Legal Update for Washington State Law Enforcement
The May 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR MAY 29, 2020
Washington Supreme Court
The Washington Supreme Court issued its Third Revised and Extended Order Regarding Court Operations. This order updates and supersedes the court’s April 29, 2020 order, but the changes do not impact any of the dates you have been relying on and planning around. In particular, note that provisions allowing for the continuance of certain matters until after June 1, 2020 have not been changed. Nor has the date on which courts may resume jury trials been changed – it remains July 6, 2020. This new order is based on the understanding that courts will move forward in hearing matters that have been postponed, understanding judicial discretion remains to grant continuances based on the needs of individual cases.
Division Two
Forgery. A bank account application is a “written instrument” under the forgery statute , as a bank account application initiates a contractual relationship between the bank and the depositor that, once accepted by the bank, create rights in and impose obligations on both parties. A person “falsely completes” a bank account application when s/he uses a social security number of someone else when opening the account. Legal efficacy of an instrument is a question of law for the trial court, and not a jury issue. State v. Smith, COA No. 51946-1-II (May 27, 2020).
Illinois State Bar Association
RPC 1.13. Opinion 20-02 relates to the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer. It discusses Illinois Rule of Professional Conduct 1.13 and the in-house counsel’s reporting obligations. It also covers the in-house counsel’s authority under Illinois Rule of Professional Conduct 1.13 and 1.6 to disclose confidential information outside of the entity in certain circumstances. [Editor’s note: Prosecuting attorneys have an entity as a client and are governed by RPC 1.13. Washington’s RPC 1.6, 1.9, and 1.13 are substantially the same as the Illinois rules discussed in the opinion.]
Threatening Criminal Prosecution. Opinion 20-03 addresses prohibition of a lawyer threatening criminal charges to gain an advantage in a civil matter. The opinion concludes by indicating that in a demand letter, a lawyer may accurately set forth the law, including the possibility of civil and criminal liability, as well as including a copy of the applicable statute. However, a lawyer would be prohibited from stating that criminal liability could be avoided by complying with the demand. [Editor’s note: While Washington does not have an equivalent rule to Illinois RPC 8.4(g), actions that would violate this ethics opinion would likely violate other Rules of Professional Conduct.]
WEEKLY ROUNDUP FOR MAY 22, 2020
Washington Supreme Court
RPC 1.9(a). For purposes of RPC 1.9(a) a matter is “substantially related” to another matter when there is a “substantial risk” that the attorney obtained “confidential factual information” while representing the former client that would “materially advance” a new client’s case. See RPC 1.9 cmt. 3. If the former and current representation are not factually related, they are not “substantially related” within the meaning of RPC 1.9(a). Even when a lawyer is not disqualified from representing a new client in a matter involving a former client, RPC 1.9(c) bars the attorney from using the former client’s confidences against it. Finally, the former client, who is seeking to disqualify an adverse party’s lawyer based upon RPC 1.9(a), bears the burden of establishing that the current matter is “substantially related.” Plein v. USAA Casualty Insurance Co., No. 97563-9 (May. 21, 2020).
Division Three
Mandatory Joinder. CrR 4.3.1(b)(3) was violated when the State added two additional charges that could have been filed before the first trial, following a remand for a new trial. The superior court had jurisdiction and venue over the original charges and the new charges and the new charges involved the same conduct as the original obstructing incident. State v. Canfield, COA No. 36314-7-III (May 21, 2020).
Obstructing a Public Servant. The law imposes a duty to cooperate with an arrest and makes it a crime to resist arrest. Actions that hinder an arrest short of resisting can constitute obstructing a public servant. Passive resistance to a lawful arrest can constitute obstructing by itself. The defendant’s feigning sleep when first contacted by police and his repeated refusals to obey commands provided ample support for his obstruction conviction. State v. Canfield, COA No. 36314-7-III (May 21, 2020).
Knowledge. Sufficient evidence supported the jury’s guilty verdict for possession of a stolen vehicle. The prosecutor’s closing argument, however, misstated the State’s burden to prove actual knowledge. Despite the objective definition of “knowing” under RCW 9A.08.010(1)(ii), Washington case law demands a subjective standard of knowledge when the State must prove the mens rea of “knowledge” in order to convict the accused of a crime. It is, thus, error for a prosecutor to argue that a jury can convict solely upon a “should have known” standard. State v. Jones, COA No. 36795-9-III (May 19, 2020).
Law Enforcement Digest
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 March 2020 edition of the Washington State Criminal Justice Training Commission’s Law Enforcement Digest is now available.
Arizona Supreme Court
RPC 8.4(d). A deputy prosecuting attorney’s comments to juries in capital murder cases that appealed to the fears and passions of the jury and were characterized as “prosecutorial misconduct,” violated RPC 8.4(d) even though they did not result in reversals. The prosecutor’s repeated disregard of sustained objections during closing argument also violated RPC 8.4(d). The court cautions, however, that “prosecutorial misconduct” does not always equate to ethical misconduct:
The term “prosecutorial misconduct” broadly encompasses any conduct that infringes a defendant’s constitutional rights. It sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct. . . When reviewing the conduct of prosecutors in the context of “prosecutorial misconduct” claims, courts should differentiate between “error,” which may not necessarily imply a concurrent ethical rules violation, and “misconduct,” which may suggest an ethical violation. For purposes of evaluating the merits of a “prosecutorial misconduct” claim, any finding of error or misconduct may entitle a defendant to relief, but courts should not conflate that inquiry with the collateral issue of a prosecutor’s ethical culpability.
In re Martinez, No. SB-17-0081-AP (Apr. 30, 2020).
WEEKLY ROUNDUP FOR MAY 15, 2020
Division One
Immigration Status and ER 413(a). In a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial court erred in barring the defendant to inquire about the victim’s knowledge that a conviction would result in the defendant’s deportation. This evidence was admissible under ER 413(a) to show bias or prejudice of the prosecution’s key witness who could avoid the expense of a dissolution and child custody battle if the defendant were deported. The potential prejudice from this evidence could have been addressed through a limiting instruction. State v. Bedada, COA No. 79036-6-I (May 11, 2020).
Division Two
WEEKLY ROUNDUP FOR MAY 8, 2020
Washington Supreme Court
“Final Judgments” and Timeliness of a Notice of Appeal. A summary judgment order resolving all substantive legal claims constitutes a “final judgment” pursuant to RAP 2.2(a)(1). A notice of appeal, to be timely, must be filed within 30 days of such order even though the judgment reserves for future determination an award of attorney fees or costs. See RAP 2.2(a)(1), 5.2(a). Denney v. City of Richland, No. 97494-2 (May 7, 2020).
Summary Judgment and Affirmative Defenses. A non-moving party need not create a genuine issue of material fact under CR 56(e) with respect to his or her affirmative defenses if the moving party did not move for summary judgment on the defenses. Robbins v. Mason County Title Insurance Co. & Retitle Ins. Co., No. 96726-1 (May 7, 2020). Justices Madsen, Gordon McCloud, and Johnson dissented with respect to the insurance company’s duty to defend.
Division One
Legal Update for Washington State Law Enforcement
Ninth Circuit
New Jersey Appellate Division
WEEKLY ROUNDUP FOR MAY 1, 2020
Washington Supreme Court
Fifth Circuit
American Bar Association
WEEKLY ROUNDUP FOR APRIL 24, 2020
Washington Supreme Court
Miranda. While a typical detention at a fixed border checkpoint will not render someone “in custody” for Miranda purposes, separating a person from the normal stream of traffic and routing them to a secondary inspection area at which the person was separated from all his belongings, had his documents confiscated, was subjected to a pat-down search, and was detained for five hours in a locked 11 x 14 foot lobby that was inaccessible to the public or other travelers will create the type of police-dominated environment that will require Miranda warnings. No bright line test, however, exists for when a person at a fixed border checkpoint is “in custody”; each case requires consideration of the totality of the circumstances. State v. Escalante, No. 97268-1 (Apr. 23, 2020). The State was represented by Stevens County Special DPA Will Ferguson.
Offender Score. A misdemeanor conviction that is dismissed pursuant to RCW 3.66.067 or RCW 3.50.320 constitutes a “conviction” under the Sentencing Reform Act. A dismissed, as opposed to a vacated misdemeanor offense, will interrupt the washout period for felony offenes. State v. Haggard, No. 97375-0 (Apr. 23, 2020). Dissenting were Justices Gordon McCloud, Yu, Montoya-Lewis, and González. State represented by King County DPA Gavriel Jacobs.
Division Two
Noxious Weed Assessment. A weed assessment is a special assessment. The County lacks the explicit authority to impose the weed assessments against the Department under chapters 17.04 RCW and 17.10 RCW. Kittitas County v. Wa. State Department of Transportation, COA No. 52329-9 (Apr. 21, 2020).
Division Three
Remote Testimony. Considerations of public policy and necessities of the case, in narrow circumstances, may preempt the right of a physical face-to-face encounter. Although two-way video testimony more closely resembles face-to-face confrontation than one-way video, two-way video is still not the equivalent of physical face-to-face confrontation. Two-way video may only be used when the trial court renders “a case-specific finding that (1) excusing the presence of the witness necessarily furthers an important public policy, and (2) the procedure otherwise assures the reliability of the testimony.”
Trial courts are encouraged to enter findings of fact when granting a request for video conference testimony. Trial courts are encouraged to require affidavits or even testimony on the phone under oath before ruling on the necessity to further an important public policy.
Outside the context of child witness cases, courts have permitted the use of video conference testimony when a witness is too ill to travel and when a witness resides outside the United States. Video conference testimony is not allowed for convenience to witness or witness’s employer, cost saving, security, or unwillingness to travel. The trial court did not satisfy the first prong because it did not explore whether someone else could care for the witness’s ill mother and/or whether the ill mother would have recovered in the near future or was terminally ill and would have died in the near future such that the court could have postponed the trial for the witness to later appear in Washington State.
When video conferencing is allowed, the trial court or the State, with the court’s concurrence, to verify on the record the structure and the mechanics of the video conference presentation. Such details should include the number and location of the video screens in the courtroom, the technology present at the location of the witness, the dimensions of the respective screens, and what sections of the witness’s body that the jury can see on the screen. The record should confirm that the jury and the defendant see the witness and the witness’s body language, and that they hear the witness. The record should also verify that the witness sees the jury and the defendant. Finally, at the conclusion of the testimony, the trial court or the State should substantiate that no errors in the transmission occurred.
State v. Sweidan, COA No. 36060-1-III (Apr. 21, 2020).
Law Enforcement Digest
The February 2020 edition of the Washington State Criminal Justice Training Commission’s Law Enforcement Digest is now available.
Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility
Working Remotely. An excellent opinion that discusses the ethics rules implicated while working at home and suggestions for satisfying the rules. “At a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that: All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information; Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data; Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form; Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud; Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and Appropriate forms of data security are used.” Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Ethical Obligations for Lawyers Working Remotely, Formal Opinion 2020-300 (April 10, 2020).
Board of Professional Responsibility of the Supreme Court of Tennessee
RPC 3.3 (h), 3.8(d), and 8.4(d). An assistant district attorney violated Rule 3.3(h) (candor to the tribunal, which requires an attorney to “promptly report the improper conduct to the tribunal;” and Rule 3.8(d) (special responsibilities of a prosecutor) in failing to inform opposing counsel that a sheriff investigator lied during the preliminary hearing until six months after the hearing. The delay also violated Rule 8.4(d) (prejudice to the administration of justice). In re Bryson, No. 56933-0-ES (Apr. 17, 2020). Editor’s Note: Tennessee’s RPC 3.3(h) provides that “(h) A lawyer who, prior to the conclusion of the proceeding, comes to know that a person other than the client has perpetrated a fraud upon the tribunal or otherwise committed an offense against the administration of justice in connection with the proceeding, and in which the lawyer’s client was not implicated, shall promptly report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by RPC 1.6.” Washington’s RPC has no direct counterpart, but RPC 3.3(c) would require a prosecutor to immediately notify the court and opposing counsel of such false testimony.]
WEEKLY ROUNDUP FOR APRIL 17, 2020
Washington Supreme Court
Drug Sentencing. If a defendant has a prior conviction for violating the Uniform Controlled Substances Act, ch. 69.50 RCW, “or under any statute of the United States or of any state relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs,” then his statutory maximum sentence is 120 months, RCW 69.50.408(2), and the defendant must be sentenced within the standard range provided by the SRA. Sentences for violation of RCW 69.50.410, selling heroin for profit, are controlled by the SRA. State v. Cyr, No. 97323-7 (Apr. 16, 2020). Lewis County DPA Sara Beigh represented the State.
Division Two
Division Three
Supreme Court of Pennsylvania Middle District
WEEKLY ROUNDUP FOR APRIL 10, 2020
United State Supreme Court
Washington Supreme Court
Division One
Persistent Offenders. Laws of 2019, ch. 187, § 1, which removed second degree robbery from the list of most serious offenses does not apply retroactively to defendants whose sentences were imposed for crimes committed prior to July 28, 2019, or prospectively to a case that is on appeal. State v. Molia, COA No. 78981-3-I (Apr. 6, 2020).
Division Two
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR APRIL 3, 2020
Washington Supreme Court
The Court accepted review of the following cases this week:
Division One
WEEKLY ROUNDUP FOR MARCH 27, 2020
United States Supreme Court
Washington Supreme Court
Division One
Writs of Mandamus. Pretrial detainees who are unhappy with the sheriff’s restraint policy have a plain, speedy and adequate remedy in the ordinary course of law to challenge the policy. Trial court, therefore, erred in granting a writ of mandamus. Trenary v. Gonsalves, COA No. 79426-4-I (Mar. 23, 2020).
GR 37 and Jury Selection. An appellate court review a trial court’s denial of a peremptory challenge de novo. Trial court properly rejected defendant’s peremptory challenge to a prospective juror who appeared to be of Asian descent, as none of the challenged juror’s responses were controversial or reflected bias one way or another and an objective observer could view race as a factor in the use of the peremptory challenge. The defendant’s nebulous justifications for the peremptory strike that he “just didn’t like some of [Juror 16’s] responses” and that “he felt uncomfortable about the way she was responding” may serve to mask the defendant’s conscious or unconscious racism. State v. Omar, COA No. 78751-9-I (Mar. 23, 2019).
Unanimity Jury Instruction. The trial court did not err by failing to instruct the jury that its verdict must be unanimous as to the acts constituting the charged offenses of assault and rape as the prosecutor made an election during closing argument as to the acts that constituted the assault charged in count 2 and in count 3, and the defendant’s various acts of forced sexual contact constituted a single continuous course of conduct. State v. Lee, COA No. 79094-3-I (Feb. 18, 2020, publication ordered Mar. 23, 2020).
Ninth Circuit
American Bar Association
WEEKLY ROUNDUP FOR MARCH 20, 2020
Washington Supreme Court
Division One
Division Three
Ohio Supreme Court
WEEKLY ROUNDUP FOR MARCH 13, 2020
Division Two
ER 609. Unlawful possession of a firearm conviction has no probative value regarding a defendant’s truthfulness. Admission of such a conviction for impeachment purposes are prejudicial because they indicate that there is a reason why the defendant was precluded from possessing a firearm and they suggest that the defendant is dangerous. State v. Jones, COA No. 52251-9-II (Mar. 10, 2020).
Division Three
Contempt. A person’s in-court admission of non-compliance with prior court orders does not authorize a judge to impose summary contempt sanctions pursuant to RCW 7.21.050. Sanchez v. Rose, COA No. 36279-5-III (Mar. 10, 2020).
Legal Update for Washington State Law Enforcement
The February 2020 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
WEEKLY ROUNDUP FOR MARCH 6, 2020
Washington Supreme Court
Division One
Division Two
Law Enforcement Digest
National Alliance on Mental Illness
Attorney Well-Being
WEEKLY ROUNDUP FOR FEBRUARY 28, 2020
Washington Supreme Court
Double Jeopardy and Jurisdiction. Jurisdiction is not an essential element of every crime but, rather, is the power of the court to hear and determine a case. When, however, the trial court substantively treats jurisdiction as an essential element of the crime, the dismissal for failure to prove jurisdiction was no different than if jurisdiction were actually an essential element. Here, the trial court judicially acquitted the defendant when it dismissed the case against him, and double jeopardy barred the State’s appeal from the district court and prohibits retrial of the defendant on these charges. State v. Karpov, No. 95080-6 (Feb. 27, 2020). Justices Gordon McCloud, Yu, Owens, and Fairhurst concurred on the double jeopardy issue, while indicating that the discussion of jurisdiction is nonbinding dicta. State represented by Spokane County DPAs Brian O’Brien, Patrick Schaff, and Samuel Comi.
Division One
Division Two
Second Circuit
WL 4268817 (7th Cir. June 4, 2018) (vacating nation-wide injunction), reh’g grant vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018).]
New Jersey Appellate Division
Pennsylvania Supreme Court
WEEKLY ROUNDUP FOR FEBRUARY 21, 2020
Washington Supreme Court
RAP 2.5 and Manifest Error. “Manifest constitutional error” is not the same as “harmless error.” Harmless error analysis occurs after the court determines the error is a manifest constitutional error and is a separate inquiry. The burden of establishing “manifest error” is borne by the defendant, who must make a plausible showing that the asserted error had practical and identifiable consequences in the trial of the case. State v. Grott, No. 97183-8 (Feb. 20, 2020). State represented by Pierce County DPAs Jesse Williams, Kristie Barham, and Theodore Cropley.
Division One
LUPA. A City’s decision on how and when a builder may connect to its water system is a decision the city makes as an owner of public property. As such, it is not a “land use decision” that falls within subsection (a) of RCW 36.70C.020(2). Such a decision also falls outside of RCW 36.70C.020(2)(b)’s “interpretive decision” provision, which is limited to the question of whether a specific code applies or does not apply to a project. The phrase “declaratory judgment” in subsection (b) is similarly limited to a determination that simply declares that certain city ordinances or rules are applicable to the property. Pioneer Square Hotel Company v. City of Seattle, COA No. 80000-1-I (Feb. 18, 2020).
Division Three
WEEKLY ROUNDUP FOR FEBRUARY 14, 2020
Washington Supreme Court
Division One
Division Two
WEEKLY ROUNDUP – THE MISSING CASES EDITION
Division Three
WEEKLY ROUNDUP FOR FEBRUARY 7, 2020
Washington Supreme Court
Division One
ER 404(b). Evidence that the defendant, while being treated at a hospital for pre-existing injuries after his arrest for harassment, made threats and was aggressive was relevant and admissible under ER 404(b) to show his mental state and his level of intoxication. This evidence, however, should not have been characterized as “res gestae” evidence because the conduct occurred after the completion of the charged offense. State v. Dillon, COA No. 78592-3-I (Feb. 3, 2020).
Division Two
Selling Heroin for Profit. A person convicted of selling heroin for profit, RCW 69.50.410(3)(a), shall be sentenced to the two years specified in that statute, rather than the standard range directed by the Sentencing Reform Act. State v. Peterson, COA No. 52183-1-II (Feb. 5, 2020).
Sex Offender Registration. RCW 9A.44.128(10)(h), to the extent it imposes a duty to register as a sex offender based on an out-of-state conviction for which there is no comparable Washington crime, is an unconstitutional delegation of the legislative function to another state. State v. Reynolds, No. 51630-6-II (Feb. 4, 2020). Judge Melnick dissented. [Editor’s Note: Division Two reached the same result that Division One did in State v. Batson, 9 Wn. App. 2d 546, 550-54 (2019). The Supreme Court granted the State’s petition for review in Batson. Oral argument is scheduled for March 12, 2020.]
Law Enforcement Digest
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR JANUARY 31, 2020
Washington Supreme Court
•APR 26 – Insurance Disclosure
•CR 30 – Depositions Upon Oral Examination (WCRA Proposed Amendments)
•CR 30 – Deposition Upon Oral Examination
•CR 43 – Taking of Testimony
•CrR 3.1 – Standards for Indigent Defense
•CrR 3.1 – Right to and Assignment of Lawyer
•CrR 3.4 – Presence of the Defendant
•CrR 8.2 – Motions
•CrRLJ 3.1 – Standards for Indigent Defense
•CrRLJ 1.3 – Effect
•CrRLJ 3.1 – Right to and Assignment of Lawyer
•CrRLJ 3.4 – Presence of the Defendant
•CrRLJ 8.2 – Motions
•GR 29 – Presiding Judge in Superior Court District and Limited Jurisdiction Court District
•GR 31 – Access to Court Records
•GR 7 – Local Rules – Filing and Effective Date
•JuCR 9.2 – Standards for Indigent Defense
•JuCR9.3 – Right to Appointment of Experts in Juvenile Offense Proceedings
•MPR 2.1 – Standards for Indigent Defense
Division One
Division Two
Public Records Act. The identity of the specific make and model of a police department’s cell site simulator (CSS) technology does not fall within RCW 42.56.240(1)’s specific intelligence information exemption. The City did not conduct an adequate search for responsive documents, when in response to thir request for “Any records concerning any agreements, policies, procedures, or understandings related to the acquisition, use, or operation of stingray technology,” it did not search for e-mail communications based upon its interpretation of the request which was narrower than its actual language. West v. City of Tacoma, COA No. 51487-7-II (Jan. 28, 2020). Judge Lee dissented regarding the specific intelligence information exemption.
Division Three
WEEKLY ROUNDUP FOR JANUARY 17 & 24, 2020
Washington Supreme Court
Division One
Division Two
Supreme Court of Virginia
WEEKLY ROUNDUP FOR JANUARY 10, 2020
Washington Supreme Court
limit the B&O tax deduction for Medicaid and Children’s Health receipts to receipts from the Washington state programs? If so, does the statute unlawfully discriminate against interstate commerce in violation of the Commerce Clause of the U.S. Constitution by making it more expensive to provide hospital services to low-income persons from other states than low-income Washington residents?” COA opinion reported at 9 Wn. App. 2d 775 (2019). Petition for review pleadings available here.
Division One
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR DECEMBER 27, 2019 & JANUARY 3, 2020
Washington Supreme Court
Division One
Division Three
Law Enforcement Digest
Ninth Circuit
WEEKLY ROUNDUP FOR DECEMBER 20, 2019
Washington Supreme Court
Division One
Division Two
Division Three
Protection Orders. A trial court may only grant a domestic violence protection order prohibiting a parent from having contact with his or her spouse and minor children when the complained of physical discipline exceeds that allowed under RCW 9A.16.100. Ugolini v. Ugolini, COA No. 36156-0-III (Dec. 17, 2019).
WEEKLY ROUNDUP FOR DECEMBER 13, 2019
Washington Supreme Court
Division Three
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR DECEMBER 6, 2019
Washington Supreme Court
Division One
Ninth Circuit
WEEKLY ROUNDUP FOR NOVEMBER 29, 2019
Division One
Division Two
WEEKLY ROUNDUP FOR NOVEMBER 22, 2019
Washington Supreme Court
Division One
Division Three
Ninth Circuit
WEEKLY ROUNDUP FOR NOVEMBER 15, 2019
Washington Supreme Court
Division One
Washington State Institute for Public Policy
WEEKLY ROUNDUP FOR NOVEMBER 8, 2019
Washington Supreme Court
Legal Update for Washington State Law Enforcement
The October 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR NOVEMBER 1, 2019
Washington Supreme Court
Division One
Restoration of Firearm Rights. The firearms statute, RCW 9.41.040, prohibits those with dismissed juvenile deferred dispositions from owning a firearm. Such a juvenile’s firearm rights are not “automatically” restored when his underlying conviction is vacated. State v. S.G., COA No. 78614-8-I (Oct. 28, 2019).
Division Two
WEEKLY ROUNDUP FOR OCTOBER 25, 2019
Washington Supreme Court
Public Records Act. The Public Records Act (PRA), chapter 42.56 RCW, does not exempt these records from disclosure public records containing state employees birth dates associated with their names. Nor does Washington Constitution article I, section 7 preclude disclosure, given that names and birth dates are widely available in the public domain and that their disclosure here does not violate privacy rights. Washington Public Employees Ass’n UFCW Local 365 v. Evergreen Freedom Foundation, No. 95262-1. Justices Wiggins, Owens, Gordon McCloud and González dissented.
Division One
Stalking and No Contact Orders. The stalking statute, RCW 9A.46.110, is not constitutionally overbroad. Stalking through harassment is not based on the content of pure speech. The statute prohibits conduct, with speech incidently regulated. The trial court did not abuse its discretion when it denied the defendant’s motion for separate trials on the no-contact order and stalking offenses. The trial court properly admitted four prior convictions with associated guilty pleas to demonstrate the defendant’s knowledge that his current conduct was unlawful and to prove the victim’s reasonable fear. The trial court did not abuse its discretion by failing to redact the “warning” provisions of the court order which that that it is the defendant’s “sole responsibility” to abide by the terms of the no-contact orders. State v. Nguyen, COA No. 77604-5-I (Oct. 21, 2019).
District of Columbia Bar Legal Ethics Committee
WEEKLY ROUNDUP FOR OCTOBER 11 & 18, 2019
Washington Supreme Court
Division One
Division Two
First Circuit
Law Enforcement Digest Online Training
Legal Update for Washington State Law Enforcement
WEEKLY ROUNDUP FOR OCTOBER 4, 2019
Washington Supreme Court
Offender Score. State v. Haggard, No. 97375-0. King County. Issue: “In 2010, a court of limited jurisdiction entered judgment against petitioner for the misdemeanor crime of disorderly conduct. Pursuant to statute, said court deferred its sentence and subsequently allowed petitioner to withdraw his guilty plea before dismissing the charge later that year. At sentencing in the instant matter, the trial court included the dismissed charge in petitioner’s criminal history — thereby precluding the washout of three felonies — because he had not also moved to withdraw his misdemeanor plea and dismiss the charge pursuant to a separate statute. Did the Court of Appeals err in its construction of the Sentencing Reform Act’s “washout” statute thereby contravening this Court’s analysis of the identical issue as it pertained to an analogous felony deferred sentence statute in In re Carrier, 173 Wn.2d 791, 806-07, 272 P.3d 209 (2012)?” COA opinion reported at 9 Wn. App. 2d 98 (2019). Petition for review available here.
Contempt. Gronquist v. King Co. Pros. Daniel Satterburg, No. 97277-0. King County– Prosecutor Satterberg’s petition for review. May a court order a party to pay “for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney’s fees,” when no remedial sanctions were ever available to the moving party under RCW 7.21.030(2) and criminal/punitive sanctions cannot be obtained by a private party? COA opinion is unpublished. Petition for review documents available here.
Washington State Attorney General’s Office
National District Attorneys Association
WEEKLY ROUNDUP FOR SEPTEMBER 27, 2019
Washington Supreme Court
Division Two
WEEKLY ROUNDUP FOR SEPTEMBER 20, 2019
Washington Supreme Court
Development Permits and Damages. A claim for damages under RCW 64.40.020 for an attempted exaction of land through an unlawful permit condition may be obtained when the municipality should reasonably have known the final decision imposing the unlawful condition was unlawful or in excess of lawful authority. Only evidence or justifications that were tendered to the final decision maker may be considered when determining whether the municipality knew or should reasonably have known that the hearing examiner’s decision did not satisfy a Nollan and Dolan analysis. Church of the Divine Earth v. City of Tacoma, No. 96613-3 (Sep. 19, 2019). Justice Yu and Chief Justice Fairhurst dissented.
Division Two
Public Records Act. Former RCW 42.56.520(3) required an agency to provide an estimate of when it would provide the first installment of records, not when it would fully respond to the request. An agency must also provide a time estimate for each subsequent installment. An agency’s response that states only a date by which the agency will give an estimate for when the first installment of records will be produced does not comply with former RCW 42.56.520(3). Health Pros Northwest, Inc. v. State, COA No. 52135-1-II (Sep. 17, 2019). [Editor’s note: Current RCW 42.56.520(1)(c) is essentially the same as former RCW 42.56.520(3).]
Division Three
Conditions of Community Custody. For an objection to a community custody condition to be entitled to review for the first time on appeal, it must (1) be manifest constitutional error or a sentencing condition that is “illegal or erroneous” as a matter of law, and (2) it must be ripe. Under this test the following claims will not be reviewed for the first time on appeal: (a) lifetime no-contact order; (b) delegation of authority to CCO to approve dating relationship; (c) crime relatedness of a condition; and (d) employer notification requirement. The following terms and/or conditions are not unconstitutionally vauge: (a) “community protection zone” restriction as both “private school” and “public school” are defined by statute; (b) “minor” as relevant statutes define the term as “any person under eighteen years of age;” and (c) “sexually explicit.” State v. Peters, COA No. 31755-2-III (Sep. 17, 2019).
Ninth Circuit
WEEKLY ROUNDUP FOR SEPTEMBER 13, 2019
Washington Supreme Court
Self-Incrimination. The State may not admit into evidence a detention center inventory form that the defendant signed after invoking her Miranda rights. Admission of the form was prejudicial manifest constitutional error that could be asserted for the first time on appeal. State v. A.M., No. 96354-1 (May 28, 2019). Justices Gordon McCloud and González concurred in the result but expressed a belief that strict liability for simple drug possession violates due process. The State was represented by Snohomish County DPA J. Scott Halloran.
Community Caretaking. The test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search is multi-part:
(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.
(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.
(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”
The officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 because their emergency aid function search was a pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit. When an officer makes a warrantless entry with suspicions that a crime has been committed, the entry must be tested under the “exigent circumstances exception to the warrant requirement.”
The Washington Supreme Court declined to adopt a new rule permitting law enforcement officers to make warrantless searches of homes under the community caretaking exception in order to recover decomposing bodies. [Editor’s note: If police have probable cause to believe a decomposing body or corpse is in a home the search warrant application may allege a violation of RCW 68.50.020 (failure to notify coroner of the existence and location of human remains). The warrant application will need to include a statement about contacting coroner or medical examiner’s office and that they had no record of a death reported at the address to be searched.].
State v. Boisselle, No. 95858-1 (Sep. 12, 2019). Justices Stephens, González, Johnson and Wiggins dissented. State represented by Pierce County DPA Mark Von Wahlde.
Gifts of Public Funds. Municipal officers did not violate the Washington State Constitution’s prohibition on gifts of public funds by paying well above the assessed value to acquire real property for conversion into a “pocket park.” The mayor’s use of town-owned lots to park his vehicles was insubstantial and thus legally insufficient to support a recall election where there was no evidence that the mayor sought to exclude others from using the town-owned lots and the lost was also avaialbe for use by local residents and visitors. Recall of Burnham, No. 96839-0 (Sep. 12, 2019). Justices González, Gorden McCloud, and Wiggins all dissented on the grounds that paying an inflated purchase price for real property out of a desire to give a gift of part of the sale price is a recallable allegation.
Division Three
Plea Agreements and Guilty Pleas. Under current statute and rules, a court must afford a defendant the opportunity to enter a guilty plea to an original charge regardless of the merits of the defendant’s plea agreement. A defendant, however, may not plead guilty post-arraignment in order to fend off an enhanced charge. Respect for constitutional separation of powers requires the trial court to defer to the State’s tenable position that its plea agreement was consistent with prosecutorial standards. State v. Westwood, COA No. 35792-9-III (Sep. 12, 2019). Judge Korsmo dissented.
American Bar Association
Judicial Relationships and Recusal. “Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned—including cases implicating some familial and personal relationships—but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.” ABA Formal Opinion 488 (Sep. 5, 2019).
WEEKLY ROUNDUP FOR SEPTEMBER 6, 2019
Washington Supreme Court
Public Records Act. The “scope of employment” test from Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015), applies only to records created or stored on an employee’s personal device and does not extend to records on public agencies’ e-mail servers. But, an email is not a public record solely because it was sent through an agency account. Only e-mails that contain information relating to the conduct of government or the performance of any governmental or propriety function, even if not sent or received within the scope of employment, are subject to disclosure. Service Employees International Union Local 925 v. University of Washington, No. 96262-6 (Sep. 5, 2019).
This week the Court agreed to hear the following cases:
Self-Defense. State v. Grott, No. 97183-8. Pierce County – State’s Petition. “Petition for review granted; review of issue raised in answer also granted” Issues: May a defendant’s charged conduct be considered in assessing whether to give a first aggressor instruction? Is a trial court’s decision to give a first aggressor instruction a manifest error of constitutional magnitude that may be raised for the first time on appeal? Did the defendant’s trial counsel provide ineffective assistance of counsel by not objecting to the first aggressor instruction in the trial court? COA opinion is unpublished. Petition for review pleadings available here. (State represented by Kristie Barham).
County Clerks and Local Court Rules. The Judges of the Benton and Franklin Counties Superior Court v. Killian, No. 96821-7 Franklin County–Clerk’s Appeal. Issues: Do superior court judges exceed their authority by enacting a local rule that conflicts with both statutes and the rules of this Court? Do superior court judges unconstitutionally diminish the office of county clerk through the adoption of a local rule that strips the clerk of his authority to replace paper records with electronic reproductions? Must judges establish through clear, cogent, and convincing evidence that the superior court cannot fulfill its duties without duplicate paper files before compelling the county clerk to comply with a local rule for which no appropriation has been made? Must the writ of mandamus, which strips the county clerk of discretion and compels him to maintain paper records despite the absence of an appropriation to do so, be vacated?
Arbitration. Jeoung Lee v. Evergreen Hosp. Med. Ctr., No. 97201-0. “Petition for review granted; motion to withdraw denied without prejudice to renew in trial court.” Issue: Whether the hospital’s motion to compel arbitration in a putative class action suit was properly denied because, on its face, the collective bargaining agreement between the nurses’ union and the hospital did not waive union members’ abilities to enforce their statutory rights in a judicial forum. COA opinion reported at 7 Wn. App. 2d 566 (2019). Petition for review pleadings available here.
Legal Update for Washington State Law Enforcement
The August 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR AUGUST 30, 2019
Division One
CrR 8.3(b) Motions. The denial of a post-judgment CrR8.3(b) motion, moreover, is not appealable as a matter of right. CrR 8.3(b) does not authorize post-judgment motions to dismiss. A post-judgment motion filed under CrR 8.3(b) should be treated as a collateral attack pursuant to CrR 7.8. Such a challenge is subject to the time limit set forth in RCW 10.73.090. State v. Basra, COA No. 78282-7-I (Aug. 26, 2019).
Community Custody Violations. A defendant who is charged with a violation of community custody conditions for a crime committed prior to July 1, 2000, is not denied equal protection because he does not receive the same procedural benefits as offenders who committed their underlying crime after July 1, 2000. State v. McClinton, COA No. 78076-0-I (Aug. 26, 2019).
Workplace Injuries. The Industrial Insurance Act does not divest the superior court of subject matter jurisdiction over a worker’s tort claim against his or her employer. The question of employer immunity from actions for workplace injuries, therefore, may not be the basis for a CR 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Instead, the employer immunity claim must be brought pursuant to a CR 12(b)(6) motion for failure to state a claim upon which relief can be granted or via a motion for summary judgment. Boudreaux v. Weyerhaeuser Co., COA No. 78284-3-I (Aug. 26, 2019).
Division Two
Exceptional Sentences. The trial judge was precluded from imposing an exceptional sentence for on-going pattern of sexual abuse of a victim, RCW 9.94A.535(3)(g), where the charging document and jury instructions alleged the aggravator found at RCW 9.94A.535(3)(h)(i) and both omitted the statutory element that the offense(s) involved “domestic violence” as defined in RCW 10.99.020 or “stalking” as defined in RCW 9A.46.110. State v. Butterfield, COA No. 51519-9-II (Aug. 27, 2019).
Division Three
Controlled Substance Violations. The to-convict instruction’s failure to identify the specific controlled substance possessed by the defendant requires remand for imposition of a misdemeanor sentence. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).
Closing Argument. The prosecutor’s unobjected to rebuttal argument, which included a review of the circumstantial evidence that concluded with the phrase “I’m satisfied,” did not constitute reversible error as any resulting prejudice from the brief comment could have been cured by a timely objection. Counsel’s failure to object to the comment, which did not incite the jury’s passion, did not prejudice the defendant to an extent that changed the result of the trial. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).
Sentencing. Trial judge committed reversible error by denying the defendant’s request to continue the sentencing hearing from the day after return of verdict to provide the defendant with sufficient time to prepare her mitigation evidence. Trial judge erred by denying the defendant’s request for preparation of a presentence report, when the defendant was being sentenced in the superior court for an offense committed prior to her 18th birthday. State v. Alltus, COA No. 34677-3-III (Aug. 22, 2019) This partially published opinion replaces the unpublished opinion filed July 3, 2019.
Tennessee Supreme Court
RPC 3.8. Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility is vacated. A prosecutor’s ethical duty under Rule 3.8(d) is coextensive in scope with a prosecutor’s legal obligations under Brady v. Maryland, 373 U.S. 83 (1963). A disclosure of material is “timely” under RPC 3.8(d) if the disclosure is made at a time that is consistent with a prosecutor’s constitutional obligations. In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163 (Aug. 23, 2019). [Editor’s note: This opinion reduces the split regarding the interpretation of RPC 3.8(d). The New York City Bar Ethics Committee issued an opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v. Maryland. Courts or Ethics Committees have also decided the the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana, and Wisconsin. The Washington State Bar Association has not issued an ethics opinion on this topic. The Washington Supreme Court, however, indicated in State v. Davila, 184 Wn.2d 55, 79 n. 9 (2015), that the ethics rule imposes a broader duty upon prosecutors then does the constitution.]
WEEKLY ROUNDUP FOR AUGUST 23, 2019
Division One
Vehicular Assault. Because vehicular assault committed by the alternative means of reckless manner and by the alternative means of disregard for the safety of others are alternative means of committing the same crime, not separate crimes, disregard for the safety of others is not a lesser-included offense of reckless manner. Defendant, who requested that the jury be instructed on the uncharged alternative means of disregard for the safety of others, cannot object that he did not receive notice of the charge. State v. Downey, COA No. 78004-2-I (Aug. 19, 2019).
Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Questions asked of the officer about what he did during the investigation did not violate the confrontation clause, as the officer did not make any reference to what the victim said in response to the questions the officer asked. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the severity of the injury to the victim’s finger supports finding the infliction of substantial harm to the victim, it does not support finding that the defendant “acted recklessly in inflicting those injuries. The information charging the defendant with felony violation of a protection order provided notice to the defendant that he could be convicted of a misdemeanor violation of RCW 26.50.100, as misdemeanor violation of a no-contact order is a lesser included offense of felony violation of a no contact order. See RCW 10.61.006. State v. Melland, COA No. 76617-1-I (Aug. 19, 2019). This opinion replaces the May 6, 2019, opinion.
Involuntary Treatment Act. CR 43’s good cause standard for permitting video testimony of witnesses does not apply to 14-day Involuntary Treatment Act hearings. The ITA statute, RCW 71.05.020(24), only requires a showing of “good cause under compelling circumstances” before a witness is permitted to appear remotely by some means other than video. J.H. v. State, COA No. 78735-7-I (Jul. 15, 2019, publication ordered Aug. 14, 2019).
Code Enforcement. Code enforcement action taken against a property owner who systemically filled in and destroyed regulated wetlands on their property upheld against claims of due process violations, insufficient evidence, and vagueness. Miller v. City of Sammamish, COA No. 78528-1-I (Aug. 19, 2019).
Division Two
Prosecutorial Error. A defendant, who did not object at trial to a prosecutor’s statements in closing argument that alluded to the defendant’s constitutional rights, is only entitled to a new trial upon a showing that (1) no curative instruction would have obviated any prejudicial effect on the jury and (2) the misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict. The defendant waived his claim that the prosecutor impermissibly commented on the defendant’s exercise of the right to testify when the prosecutor argued the defendant testified in order to explain the DNA evidence in the case. While the statement was improper, they were not so flagrant and ill intentioned that the resulting prejudice could not be cured with a jury instruction. It was not improper for the prosecutor to attack the defendant’s credibility by discussing the significant differences between the defendant’s testimony and his initial statements. Prosecutor’s 9/11 weapon argument was improper but not so flagrant and ill intentioned that the resulting prejudice could not have been cured with a jury instruction. A prosecuting attorney does not “argue facts not in evidence” by discussing evidence that the State in good faith anticipates presenting at trial that is ultimately unsupported by the evidence at trial. A prosecuting attorney does not state a personal belief as to the credibility of a witness by arguing that the victim’s story had been consistent from first report to courtroom testimony. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).
Consent Jury Instruction. The trial court properly rejected the defendant’s proposed consent instruction as the State was already required to prove lack of consent as part of its burden in proving forcible compulsion in a prosecution for first degree rape. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).
Persistent Offender. Defendant’s mandatory sentence of life without the possibility of release does not violate article I, section 14 of the Washington Constitution based upon his age when he committed his first sex offense. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).
Restraints. The trial court violated the defendant’s constitutional right to due process by failing to perform an individualized inquiry into the need to restraint the defendant at pretrial proceedings, instead adopting the jail’s policy until a video conferencing system could be adopted. The trial court also erred by requiring the defendant to wear a leg restraint during the jury trial without conducting an individual inquiry into the need to restrain him. Both errors, however, were harmless. State v. Jackson, COA No. 51177-1-II (Aug. 20, 2019).
Growth Management Act. Service of a petition for judicial review to the Growth Management Hearings Board by e-mail does not satisfy the service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW. Service on the Board requires actual delivery to the agency’s office. Delivery is not completed on the date the petition is placed in the United States mail. Annexation of land by a city prevents a county from taking actions regarding the annexed land to resolve the Board’s ruling of invalidity, thus the Board’s determination of invalidity cannot have any legal effect. Clark County v. Friends of Clark County, COA No. 50847-8-II (Aug. 20, 2019).
Truancy. A school district must perform the mandatory WARNS assessment and providing approved best practice or research-based intervention consistent with the WARNS profile for middle and high school students and before filing a truancy petition. Chimacum School District v. R.L.P., COA No. 51327-7-II (Aug. 20, 2019).
Division Three
Subject Matter Jurisdiction and Standing. This case contains an excellent discussion of subject matter jurisdiction of trial courts and standing. The case identifies the conflicting cases and provides a resolution that is sound. In re Estate of Reugh, COA No. 35737-6-III (Aug. 20, 2019).
Ninth Circuit
Regulatory Traffic Laws. A state cannot enforce its regulatory traffic laws against tribal members’ conduct inside a reservation. A member Indian who receives a citation for a violation of a regulatory traffic law may bring a 42 U.S.C. § 1983 action against state officers. The tribe, however, does not have a § 1983 claim. Chemehuevi Indian Tribe v. Bunim, No. 17-56791 (9th Cir. Aug. 19, 2019).
WEEKLY ROUNDUP FOR AUGUST 9, 2019 & AUGUST 16, 2019
Washington Supreme Court
Persistent Offenders. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. The sentences imposed on all three defendants are proportional under the Fain factors. State v. Moretti, No. 95263-9 (Aug. 15, 2019). State represented by Grays Harbor County DPA Erin Riley, King County DPA Donna Wise, and Spokane County DPA Brian O’Brien (ret.) and Larry Steinmetz. Justices Yu, Madsen, and González concurred in an opinion that expressed increasing discomfort with sentences of life without the possibility of parole.
Competency. The proper standard of review of a trial court’s failure to sua sponte order a competency evaluation of a defendant is abuse of discretion. The trial court did not abuse its discretion by not sua sponte ordering a third competency hearing after a jury determined that the defendant was competent and the defendant, despite some delusions, appeared coherent throughout trial, did not engage in irrational behavior or outbursts, and had the ability to recall facts, communicate with his attorney, and understand the ramifications and consequences of the crime. State v. McCarthy, No. 96653-2 (Aug. 8, 2019). State represented by Spokane County DPA Gretchen Verhoef.
Independent Prosecutors. A prosecuting attorney has no duty under RCW 36.27.020 to represent the plaintiff county official in a civil lawsuit against another county official. Superior court judges may not appoint an independent prosecutor pursuant to RCW 36.27.030 when a prosecuting attorney has no duty to represent the party in the given matter. Entry of an order appointing an independent prosecutor pursuant to RCW 36.27.030 must occur in open court. Prosecuting attorneys have a cognizable interest in protecting their responsibilities from usurpation to entitle them to notice and an opportunity to be heard before an independent prosecuting attorney is appointed pursuant to RCW 36.27.030. A prosecuting attorney may revoke an RCW 36.27.040 appointment of a special deputy prosecuting attorney at will. In re Appointment of Special Deputy Prosecuting Attorney, No. 95945-5 (Aug. 8, 2019).
Division One
Sex Offender Registration. RCW 9A.44.128(10)(h), to the extent it imposes a duty to register as a sex offender based on an out-of-state conviction for which there is no comparable Washington crime, is an unconstitutional delegation of the legislative function to another state. State v. Batson, COA No. 78341-6-I (Aug. 12, 2019).
Prior DUI Sentencing Enhancement. A jury must decide whether a defendant’s prior reckless driving conviction qualifies as a “prior offense” under RCW 46.61.5055, before a court may add an additional two years to the standard range pursuant to RCW 9.94A.533(7). The question for the jury on remand is not whether the prior offense involved drugs or alcohol. The only questions for the jury on remand is whether the reckless driving offense was originally charged as a DUI. The 2016 amendment to RCW 9.94A.533(7) regarding the imposition of consecutive prior DUI sentencing enhancements was a clarifying amendment that applies retroactively to defendants who committed his crime prior to the amendment’s effective date. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).
Warrantless Blood Draws. Exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault, where the driver sustained serious injuries that required treatment, multiple responders smelled alcohol on the driver, the driver told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).
Restitution. The defendant’s failure to challenge the restitution order in the trial court on the grounds that the record did not establish a causal connection between the vehicular assault victim’s medical expenses and the injuries caused by the crash, precludes appellate review as the defendant’s objection does not challenge the trial court’s jurisdiction to order restitution. The testimony at trial describing most of the vehicular assault victim’s injuries and treatments, which stated critical dates and which was augmented with a detailed claim summary and diagnoses sheet established a sufficient causal connection between the victim’s medical expenses and his injuries resulting from the collusion. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).
Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. The State must connect the information it has legally obtained to the need for the suspect’s CSLI records. State v. Phillip, COA No. 77175-2-I (Aug. 5, 2019). [This opinion replaces the opinion previously issued in this case on July 1, 2019.]
Appearance of Fairness and Judicial Recusal. The appearance of fairness doctrine was violated by having members of the county superior court preside over a parental termination case after the parents asserted breaches of confidentiality, lying, and bias by the volunteer GAL, and the head superior court administrator and the civil DPA who was appointed to represent both the volunteer GAL program and the superior court meddled in the discovery process and threatened to take legal action against the parents for filing evidence in a termination case that was pending before a judge of the same court. Once a judge has recused, the judge may take no other action in the case except for the necessary ministerial acts to have the case transferred to another judge. A recused judge may not sign an order that conforms to the judge’s prior oral rulings. Dependency of A.E.T.H., COA No. 76964-2-I (Aug. 12, 2019).
Division Two
Courtroom Security. Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant. The trial court cannot rely solely on the security officer’s preference. A court’s failure to engage in the required analysis will require reversal on direct appeal unless the State can show harmlessness beyond a reasonable doubt. State v. Gorman-Lykken, COA No. 5124-8-II (Aug. 13, 2019). Judge Melnick concurred finding that other errors, including several improper statements by the prosecutor in closing argument, also merited reversal.
Bail. CrR 3.2 does not require a court to make oral or written findings before imposing bail. It was an abuse of discretion to set bail at $60,000 for a defendant who had a prior escape conviction, several failures to appear in Oregon cases, no employment tying him to the community, no one who vouched for him, mental health issues, a prior assault conviction, was currently on probation for prior offenses, and had engaged in prior acts of domestic violence against the victim, without first considering less restrictive conditions of release and the defendant’s financial resources. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).
Violation of Foreign Protection Orders. The validity of the foreign protection order is not an element of the offense of violation of a domestic violence court order under RCW 26.50.110(1)(a). The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).
Public Records Act. A requester can seek judicial review of an agency’s estimate of the time needed to respond to a PRA request prior to the agency taking final action. Whether an estimate is reasonable must be based upon a forward-looking evaluation at the time of the estimate, not on a backward-looking evaluation after the fact. A 30-day estimate of the time needed to assemble requested records from multiple different offices was reasonable under former RCW 42.56.520, where the agency received over 50 PRA requests on the same day. An agency can produce records to an affected party before producing them to the original requester without violating the prohibition against distinguishing among persons requesting records. Freedom Foundation v. DSHS, COA No. 51498-2-II (Aug. 6, 2019).
Conditions of Community Custody. The trial court did not abuse its discretion by prohibition a defendant who was convicted of unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver, from having contact with known drug users/sellers outside of a treatment setting and from possessing or consuming medical marijuana under the Medical Use of Cannabis Act, ch. 69.15A RCW. The condition that prohibits the defendant from “associating with ‘known drug users/sellers, except in treatment settings’” is not unconstitutionally vague. The term “known” limits the condition’s reach to people known by the defendant to be drug users/sellers. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).
DNA Collection Fee. A trial court may only impose a DNA collection fee upon a repeat offender where the State establishes that the offender’s DNA has not been previously collected. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).
Division Three
Wrongful Conviction Claims. Individuals who previously established their right to assert a claim under Washington’s “Wrongfully Convicted Persons Act” (WCPA), are not entitled to compensation after settling a federal lawsuit under 42 U.S.C. § 1983, arising from the same criminal prosecution. Remedies and compensation under the WCPA are exclusive. Larson v. State, COA No. 35649-3-III (Aug. 15, 2019).
Attorney General’s Office
Public Records Act. A request for access to an alphabetical listing of personal property owners constitutes a request for a list of individuals which must be denied under RCW 42.56.070(8) if the request is for a commercial purpose. In addition, RCW 42.56.080 requires a county assessor in appropriate circumstances to investigate whether a list of personal property owners is requested for a commercial purpose, which may include investigating whether a request for a list of real property is in fact a request for a list of individuals for a commercial purpose. AGO 2019 No. 3 (Aug. 1, 2019).
Legal Update for Washington State Law Enforcement
The July 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Missouri Supreme Court
Prosecutor Discipline. Assistant circuit attorneys’ law licenses were suspended for lengthy periods of time for for multiple violations of the rules of professional conduct in relation to their dishonesty about and concealment of a brutal assault of a suspect in custody by a police detective and the charges resulting therefrom filed by their friend and co-assistant circuit attorney. Rules violated include RPC 8.4(c), 8.4(d), 8.4(g), and 1.13. The RPC 1.13 violation is due to assistant circuit attorney’s failure to report another circuit attorney’s misconduct to a supervisor. In re Schuessler, No. SC97376 (Aug. 13, 2019).
WEEKLY ROUNDUP FOR AUGUST 2, 2019
Washington Supreme Court
Confrontation Clause. The primary purpose test governs a courts’ analysis of hearsay statements made to both governmental and nongovernmental witnesses. Shafer’s declarant-centric test, Sandoval’s three-factor test, and Hurtado’s synthesis of the two have all been superseded by the primary purpose test. A crime victim’s statements to his medical providers were nontestimonial because they were not made with the primary purpose of creating an out-of-court substitute for trial testimony. The fact that a victim signs waivers allowing the police to obtain his medical records does not alter the primary purpose of the interactions. State v. Scanlan, No. 95971-4 (Aug. 1, 2019). Justice Gordon McCloud authored a concurring opinion. King County DPA Ann Summers represented the State.
Division One
Juvenile Disposition Appeals. First-time juvenile offender’s manifest injustice sentence vacated and the matter remanded for entry of a standard disposition due to the prosecutor’s failure to obtain the proper entry of necessary findings of fact and conclusions of law. State v. I.N.A., COA No. 79587-2-I (Jul. 29, 2019).
Conflicts. In resolving conflict questions, the official comments to the Rules of Professional Conduct will prevail over pre-2006 appellate court decisions. Plein v. USAA Casualty Insurance Co., COA No. 78190-1-I (Jul. 29, 2019).
Administrative Office of the Courts
The Administrative Office of the Courts has published new and updated forms on the Washington Court Forms website. These forms are available at: Washington Court Forms Homepage: https://www.courts.wa.gov/forms/
List of All Forms: https://www.courts.wa.gov/forms/?fa=forms.static&staticID=14
The Washington Pattern Forms Committee and its subcommittees created new forms and updated existing forms to address changes in the law from the 2019 legislative session and the feedback provided by court form users. Some forms were also removed from the court form website because they were no longer supported by current law. A summary of changes to the forms may be found at: http://www.courts.wa.gov/forms/?fa=forms.static&staticID=2
Any feedback or questions about the forms can be provided to the Washington Pattern Forms Committee by submitting a Comment on Forms.
Ninth Circuit
Conditions of Supervised Release. A special condition that provided the sex offender “shall not frequent any place whose primary purpose is to sell, rent, show, display, or give other forms of access to, material depicting and/or describing sexually explicit conduct,” is not unconstitutionally over-broad or vague. This prohibition was accompanied by definitions for “sexually explicit conduct” and “sexually stimulating depictions”:
“any material depicting and/or describing sexually explicit conduct involving adults, defined as sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by the defendant’s probation officer”. . . “sexually stimulating depictions” include “computer images, pictures, photographs, books, writings, drawings, videos, or video games depicting such conduct.”
Under dictionary definitions of “frequent,” a defendant does not violate this condition by visiting an adult-themed business only once. United States v. Ochoa, No. 18-10383 (9th Cir. Jul. 29, 2019).
U.S. Citizenship and Immigration Services (USCIS)
U Visas. The guide includes an overview of: (1) The U visa certification process; (2) Best practices for certifying agencies and officials; (3) Answers to frequently asked questions from judges, prosecutors, law enforcement agencies and other officials; (4) DHS contact information for certifying agencies on U visa issues; and (5) Training resources and opportunities. A separate T Visa guide will issue shortly. U.S. Department of Homeland Security, U Visa Law Enforcement Resource Guide: For Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies (2019).
WEEKLY ROUNDUP FOR JULY 26, 2019
Division One
Child Support Obligations. The Ontario, Canada child and spousal support order may be registered in Washington and enforced pursuant to the Uniform Interstate Family Support Act. The Canadian order, which does not automatically terminated spousal support upon the recipient’s remarriage, does not contravene Washington public policy. Brett v. Martin, COA No. 79076-5-I (May 20, 2019, publication ordered July 22, 2019).
Community Caretaking. Officers, who were aware of the opioid crisis and the large number of heroin overdoses in their community, improperly opened the doors of the defendant’s vehicle without first trying to rouse the sleeping occupants. Suspected unconsciousness alone, without any evidence inside the car suggesting drug use, does not support a reasonable, objective belief of a need for immediate assistance. State v. Harris, COA No. 77987-7-I (Jul. 22, 2019).
Ethics Advisory Committee
Judge’s Children. A judge may preside over matters in which an attorney, who is affiliated with the same public defender agency as the judge’s child, is attorney of record. “But the judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” State of Washington Ethics Advisory Committee Ethics Opinion 19-05 (Jul. 2019).
Ninth Circuit
Warrantless Firearm Seizures. Police officers’ warrantless seizure of firearms from a residence after detaining the plaintiff’s husband for a mental health evaluation in response to a 911 call, did not violate the plaintiff wife’s Fourth Amendment rights. The seizure was justified under a community caretaking function framework under the facts of this case, as the urgency of a significant public safety interest was sufficient to outweigh the significant privacy interest in personal property kept in the home. The officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and to send the individual for evaluation, they expected the individual would have access to firearms and present a serious public safety threat if he returned to the home, and they did not know how quickly the individual might return. Issue preclusion bars relitigation of the plaintiff wife’s Second Amendment challenge to the forfeiture of the seized firearms. Rodriguez v. City of San Jose, No. 17-17144 (9th Cir. Jul. 23, 2019).
WEEKLY ROUNDUP FOR JULY 19, 2019
Washington Supreme Court
Allegations of Racial Bias During Jury Deliberations. As soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified. As soon as a court becomes aware of allegations that racial bias may have been a factor in the verdict, the court shall take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the record and supervised by the court. The court must tailor the on the record inquiry to the specific allegations presented. The ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing. State v. Berhe, No. 95920-0 (Jul. 18, 2019). State represented by Dennis McCurdy and Ann Summers. Justice Gordon McCloud filed a concurring opinion in which she opines that defense counsel’s ability to investigate juror conduct is not limited by the majority’s opinion.
No Contact Orders. Old Chief v. United States, 519 U.S. 172 (1997), does not apply to a defendant’s offer to stipulate to a domestic violence no-contact order in a felony violation of a no-contact order prosecution. The probative value of a domestic violence no-contact order far outweighs any danger of unfair prejudice, a no-contact order provides the specific restrictions imposed on a defendant, is closely related to a felony violation of a no-contact order charge, and is evidence of multiple elements of that offense. A trial court may redact any portion of a no-contact
order that poses a risk of unfair prejudice. State v. Taylor, No. 96325-8 (Jul. 18, 2019). State represented by Pam Loginsky and Jodi Hammond.
Division One
Critical Area Regulations. The Growth Management Act does not mandate that local governments consider the protection, against geologically hazardous areas, of the public health and safety when developing critical area regulations. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).
Growth Management Hearings Board. The Board has the power to deem arguments abandoned due to inadequate briefing. Citing the GMA in an argument heading is inadequate. The petitioner must explain how the law applies to the facts before the Board and how the local government has failed to comply with the GMA. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).
Graduated Income Taxes. No statutory prohibition limits Seattle’s authority to levy a property tax on income because RCW 36.65.030 (Substitute Senate Bill (SSB) 413) is unconstitutional in its entirety for violating the Washington Constitution article II, section 19’s single subject rule. The Washington Constitution, however, bars any graduated income tax. Kunath v. City of Seattle, COA No. 79447-4-I (Jul 15, 2019).
First Circuit
Absolute Prosecutorial Immunity. Deputy prosecuting attorney is not entitled to absolute immunity in a § 1983 action for withholding information about a criminologist’s drug addiction and evidence tampering from the plaintiff, as her decision to withhold evidence lacked a “functional tie” to her prosecutorial role in that specific plaintiff’s criminal case. DPA not entitled to absolute governmental attorney immunity with respect to withholding exculpatory evidence in response to a subpoena duces tecum as she primarily functioned as a custodian of evidence, rather than as an advocate. Penate v. Kaczmarek, No. 18-2261 (Jun. 26, 2019).
New York State Bar Association
Social Media. First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media. While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Subject matter includes attorney competence, attorney advertising and communications concerning a lawyer’s services, furnishing of legal advice through social media, review and use of evidence from social media, communicating with clients, researching jurors and reporting juror misconduct, and using social media to communicate with a judicial officer. The document also includes an appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases. Social Media and New Communication Technologies Committee of the Commercial and Federal Litigation Section of the New York State Bar Association, Social Media Ethics Guidelines (Updated Apr. 29, 2019, Released June 20, 2019).
National Judicial College
Science Bench Book for Judges. “It has become ever more apparent that judges must have some understanding of science. This book is a helpful and necessary effort to provide judges with knowledge and techniques that will help them work with scientific subject matter.” U.S. Supreme Court Justice Stephen Breyer. The entire book is available here.
WEEKLY ROUNDUP FOR JULY 12, 2019
Washington Supreme Court
First Amendment and Public Financing of Elections. Seattle’s Democracy Voucher Program further’s a legitimate interest in the public financing of elections. The tax that supports the program “does not alter, abridge, restrict, censor, or burden speech.” The Program, moreover, does not force association between taxpayers and any message conveyed by the program. Elster v. Pynchon, No. 96660-5 (Jul 11, 2019).
Vehicular Homicide. The defendant’s action of striking a vehicle while intoxicated and fleeing the scene was the proximate cause of a Good Samaritan who was killed while helping the occupant of the vehicle the defendant struck. The tort-derived reasonable foreseeability standard is properly applied in vehicular homicide cases to delineate between a superseding cause and a mere intervening event. The question of foreseeability rests with the jury when reasonable minds can differ on this issue. State v. Frahm, No. 95947-1 (Jul. 11, 2019). Justices Madsen and Gordon McCloud dissent.
Washington Law Against Discrimination. Obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a “physiological disorder, or condition” that affects multiple body systems listed in the statute. If an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the Washington Law Against Discrimination. Taylor v. Burlington Northern Railroad Holdings, Inc., No. 96335-5 (Jul. 11, 2019). Justices Yu and Gordon McCloud dissent.
The Court accepted review on July 9, 2019, of the following cases:
Jurisdiction of Courts. State v. Stevens County Dist. Court Judge, No. 97071-8. Stevens County. Issue: Whether the Superior Court can, in first appearances, exercise its concurrent jurisdiction over misdemeanor cases where the case was or is likely to be filed in the District Court. COA opinion reported at 7 Wn. App. 2d 927 (2019). Petition for review pleadings available here.
Jurors. Bednarczyk v. King County, No. 96990-6. King County. Issues presented: Does King County’s failure to compensate jurors for their service result in the unlawful exclusion of prospective jurors based on “economic status” in violation of the Juror Rights Statute, RCW 2.36.080(3)? Does there exist an implied cause of action under the Juror Rights Statute, RCW 2.36.080(3)? Are jurors “employees” for purposes of the Washington Minimum Wage Act, RCW 49.46.020, and therefore entitled to be paid at least the minimum wage for each hour of service? COA opinion reported at 7 Wn. App. 2d 647 (2019). Petition for review pleadings available here.
Division One
“Juvenile” Sentencing. Neither the Eighth Amendment nor article I, section 14 of the Washington Constitution require a presumption that a “juvenile’s” youthfulness is a mitigating circumstance that warrants a deviation from an SRA standard range. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).
Guilty Pleas. Although the defendant was affirmatively misinformed about his duty to register as a felony firearm offender, he fails to establish manifest injustice sufficient to vacate his guilty plea. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).
Legal Update for Washington State Law Enforcement
The June 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Ninth Circuit
Federal Marijuana Prosecutions. A defendant may only enjoin his federal prosecution for violations of the Controlled Substances Act if he can prove that his actions were in strict compliance with the state’s medical marijuana law. United States v. Evans, No. 17-30185 (Jul. 9, 2019).
WEEKLY ROUNDUP FOR JULY 5, 2019
Washington Supreme Court
Restitution. “The sentencing hearing,” from which to calculate RCW 9.94A.753(1)’s 180 day period for determining restitution, when a defendant must be resentenced on remand, is the resentencing hearing. A trial court, therefore, does not exceed its statutory authority by entering a second restitution award following resentencing. State v. Barbee, No. 96490-4 (Jul. 3, 2019).
Division One
Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. State v. Phillips, COA No. 77175-2-I (Jul. 1, 2019).
Robbery. The use of force or fear to obtain or retain possession of the property at issue in a second degree robbery case is not an essential element that must be included in the information. A trial court is not required to instruct the jury on the good faith claim of title when neither the State nor defense request such an instruction. The good faith claim of title defense is surplusage and unnecessary in a robbery trial where the defendant claims that he selected the item, then paid for it at the checkout stand, and then was accosted as he was leaving the store, as if the jury believes the defendant there would be no theft and, hence, no robbery. State v. Phillips, COA No. 77562-6-I (Jul. 1, 2019).
Juvenile Sentencing. All deferred dispositions, including pending deferred dispositions, are excluded from a juvenile court’s calculation of an offender’s criminal history by RCW 13.40.020(8)(b). State v. S.M.G., COA No. 79039-1-I (Jul. 1, 2019).
Division Two
Search Warrants. The search warrant was sufficiently particular wherein it explained that (1) there was probable cause to search for “evidence of the crime(s) of: RCW 9.68.050 Dealing in depictions of a minor engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct,” (2) the warrant described the items to be seized, including a list of specific types of electronic devices and media “capable of being used to commit or further the crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes,”and (3) limited the records, documents and other information to be seized from the devices and data to that “related to the production, creation, collection, trade, sale, distribution, or retention of files depicting minors engaged in sexually explicit acts/child pornography.” State v. Vance, COA No. 50664-5-II (Jul. 2, 2019).
Division Three
Failure to Register as a Sex Offender. To convict a sex offender registrant without a fixed address of a violation of RCW 9A.44.130(6)(b) for failing to provide an accurate accounting of where he stayed during the week to the county sheriff at his weekly report to the sheriff’s office, the State must prove that the sheriff’s office made a clear and specific request for this accounting for the week in question. Sufficient evidence may be established through the use of a form that explicitly requests transients to list all places stayed that week. State v. Dollarhyde, COA No. 36047-4-III (Jul. 2, 2019).
Ninth Circuit
Bikini Baristas. The city’s lewd conduct ordinances are not unconstitutionally vague as the definition of “lewd act” would allow a person of ordinary intelligence to reasonably ascertain what is prohibited. The city’s dress code ordinance is also sufficiently clear. The act of wearing almost no clothing while serving coffee in a retail establishment does not constitute speech protected by the First Amendment. Edge v. City of Everett, No. 17-36038 (9th Cir. Jul. 3, 2019).
WEEKLY ROUNDUP FOR JUNE 28, 2019
United States Supreme Court
Blood Alcohol Testing. Plurality decision with Justices Alito, Roberts, Breyer and Kavanaugh concluding that when a drive is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally permits a blood test without a warrant. An exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, as a driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. Justice Thomas concurred in the opening stating that he would apply a per se rule, under which the natural metabolization of alcohol in the blood stream “creates an exigency once police have probable cause to believe the driver is drunk,” regardless of whether the driver is conscious. Mitchell v. Wisconsin, No. 18-6210 (2019). Dissenters were Justices Sotomayor, Ginsburg, Kagan and Gorsuch.
WEEKLY ROUNDUP FOR JUNE 21, 2019
United States Supreme Court
Double Jeopardy. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns” is reaffirmed. Gamble v. United States, No. 17-646 (Jun. 17, 2019). Justice Thomas filed a concurring opinion that favors curtailing the doctrine of stare decisis. Dissenters were Justices Ginsburg and Gorsuch.
Takings. A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under §1983 at that time. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983, is overruled. However, as long as post-taking compensation remedies are available, governments need not fear that federal courts will invalidate their regulations as unconstitutional. Knick v. Township of Scott, No. 17-647 (Jun. 21, 2019). Justice Thomas filed a concurring opinion. Dissenters were Justices Kagan, Ginsburg, Breyer, and Sotomayor.
Batson. The history of the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent. Disparate questioning can be probative of discriminatory intent – 145 questions asked of 5 black prospective jurors vs. 12 questions asked of 11 white seated jurors – when the two groups were not manifestly different. A comparison of the stuck jurors with those not struck revealed a series of factually inaccurate explanations for striking black prospective jurors, supporting a reversal of the verdict and remand for a seventh trial. Flowers v. Mississippi, No. 17-9572 (Jun. 21, 2019). Dissenters were Justices Thomas and Gorsuch.
Fabrication of Evidence Claims. The statute of limitations for a criminal defendant’s 42 U.S.C. § 1983 claim alleging the fabrication of evidence does not begin to run until the end of the criminal proceedings against him. McDonough v. Smith, No. 18-485 (Jun. 20, 2019). Dissenters were Justices Thomas, Kagan, and Gorsuch.
Division One
Involuntary Commitment. A person facing a trial for an involuntary 90-day commitment does not have a constitutional right to a jury trial. A person who is given notice of her statutory right to demand a jury and who does not do so, is not entitled to vacation of an order of commitment obtained in a bench trial. In re Detention of C.B., COA No. 77471-9-I (Jun. 17, 2019).
Gifts of Public Funds. The port did not violate Const. art. VIII, sec. 7 by allowing trains to utilize rails rent free pursuant to a 1947 contract, and without paying for the impact to the tracks from wear and tear. Donative intent not shown where legally sufficient consideration was recieved by the Port. Only when the consideration is “so gross as to shock the conscience,” and thus may suggest fraud or other wrongdoing will donative intent be found. Peterson v. Port of Benton, COA No. 79090-1-I (Jun. 17, 2019).
Division Two
Defense Attorney Conflict of Interest. Defense counsel who previously represented a principal in the gang which had been involved in back-and-forth shootings with the defendants’ gang had an actual conflict of interest that required his withdrawal. Although the former client was not a witness in the defendants’ trial, the attorney’s inability to use confidential information he learned during that prior representation in the defense of his current client represented an actual conflict of interest. State v. Kitt, COA No. 49534-1-II (Jun. 18, 2019).
WEEKLY ROUNDUP FOR JUNE 14, 2019
Washington Supreme Court
Police Officer Negligence Claims. Police officers owe a duty of reasonable care to avoid unreasonably escalating an encounter to the use of deadly force. A negligence claim is not barred by conduct that also supports an intentional tort, such as assault. The public duty doctrine does not prevent negligence lawsuits against police officers, though the legislature may limit liability by statute. Beltran-Serrano v. City of Tacoma, No. 95602-8 (Jun. 13, 2019). Justices Madsen, Johnson, Owens, and Wiggins dissented.
Division Two
Equitable Tolling and Collateral Attacks. Petitioner was not entitled to equitable tolling of the one year time limit contained in RCW 10.73.090. While the lawyer the defendant’s family retained to assist him with his personal restraint petition (PRP) resigned in lieu of discipline prior to the expiration of the one-year time limit, there was no bad faith, deception, or false assurances by the State. RAP 18.8(a) and (b) does not authorize extending the time limit for filing a PRP. In re Personal Restraint of Fowler, COA No. 51029-4-II (Jun. 11, 2019).
Division Three
Self-Defense Instruction. A defendant was entitled to a self defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others. State v. Tullar, COA No. 35956-5-III (Jun. 11, 2019).
Legal Financial Obligations. The 2018 LFO amendments impact assessments for the cost of court-appointed counsel and the sheriff’s fee. The 2018 LFO amendments do not impact the domestic violence assessment under RCW 10.99.080(1) as it is a penalty, rather than a cost of prosecution under RCW 10.01.160. The domestic violence assessment may be imposed against indigent defendants. The 2018 LFO amendments do not impact recovery of medical expenses under RCW 70.48.130(5) for care provided in the jail while a defendant is in custody pending adjudication. While a court must find that the defendant has the ability to pay prior to ordering repayment of medical costs, the fact that the defendant meets the statutory definition of indigence under RCW 10.101.010(3)(c) does not preclude the trial court from requiring reimbursement. State v. Smith, COA No. 35708-2-III (Jun. 6, 2019).
LUPA. Parties to a land use petition act action may agree to accept service of process by e-mail. RST Partnership v. Chelan County, COA No. 35838-1-III (Jun. 13, 2019).
Law Enforcement Digest Online Training
The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The February 2019 and March 2019 trainings are now posted.
Legal Update for Washington State Law Enforcement
The May 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR JUNE 7, 2019
Washington Supreme Court
Adjudicatory Body, Selective Prosecution, and Religion. In a post-remand opinion that restates that the State of Washington bars discrimination in public accommodations on the basis of sexual orientation, and that enforcement of the Washington Law Against Discrimination does not violate a person’s right to religious free exercise and does not compel speech or association, the Court addresses the issues in the United States Supreme Court’s grant and reverse order. Members of an adjudicatory body may not disparage the religion of a party before it. Selective-enforcement claims premised on the free exercise clause are subject to the same demanding standard as all other selective enforcement claims, requiring the defendant to “introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” State v. Arlene’s Flowers, Inc., No. 91615-2 (Jun. 6, 2019).
On Tuesday, June 4, 2019, the Supreme Court accepted review in the following cases:
Disqualification of Prosecuting Attorney’s Entire Office. State v. Nickels, No. 96943-4. Grant County – State’s Petition. Issues: “1. Does RPC 1.11(d) apply equally to elected prosecuting attorneys as it does to other government attorneys? 2. If arguendo, RPC 1. 11 ( d) does not apply to a timely and effectively screened elected prosecuting attorney, must the office wide disqualification abatement test take into account the complexity of the case, proximity to trial, and availability of substitute counsel?” COA opinion reported at 7 Wn. App. 2d 491 (2019). Petition for review pleadings available here.
Judicial Disqualification Statute. Godfrey v. Ste. Michelle Wine Estates, Ltd., No. 96952-3. Issues presented: “Is a Superior Court judge’s ruling granting a request to extend case management deadlines a ‘discretionary ruling’ for purposes of Washington’s notice of disqualification statute, RCW 4.12.050? If entering such an order is a discretionary ruling for purposes of the statute, then a party is foreclosed from using an affidavit of prejudice to unilaterally remove a judge from a case who has already granted such a request.” COA opinion is unpublished, though prior opinions in the case are published. Petition for review pleadings available here.
Division One
Offender Score Calculation. Dismissal of a misdemeanor conviction is not equivalent to vacation of that conviction. A misdemeanor that is dismissed pursuant to RCW 3.50.320 and RCW 3.66.067, following a deferred sentence, will interrupt the washout period for prior felonies. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).
Search Warrants. Probable cause existed to issue the warrant as the affidavit set forth sufficient facts from which a reasonable person could conclude that the defendant was involved in criminal activity and existence of that activity could be found in the residence. Although the warrant contains generic classifications of the items to be searched and seized, it provided sufficient guidance to the officers to prevent them from making the search a general, exploratory rummaging in a person’s belongings. The complained of omission from the affidavit was merely negligent. No warrantless search occurred when the officers recorded the serial number that was in plain sight on a welder that may have been stolen. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).
Division Two
Bail. The trial court is not required to make written or oral findings regarding its decision to deny release on personal recognizance pending trial. The record in this case supported a finding that conditions of release were necessary to reasonably assure the accused’s appearance – defendant had prior FTAs, an escape conviction, no employment or ties to the community, mental health issues, and the release unit considered the defendant to be a medium to high flight risk. The defendant’s prior convictions for firearm possession and assault, the absence of any person to vouch for him, mental health issues, past threats against the victim involving a deadly weapon, the instant offense was committed when the defendant was on probation, and the instant offense involved a violation of a protection order. The trial court, however, erred by failing to consider less restrictive conditions of release or the defendnat’s financial resources before imposing the $60,000 bond. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).
Foreign Protection Orders. The validity of a foreign protection order is not an essential element of a violation of a protection order offense. The validity of the order is a legal question related to the admissibility of the order for the trial court to decide. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).
Division Three
Felony Elude and Vagueness. The attempting to elude a police vehicle statute, RCW 46.61.024(1), is not unconstitutionally vague. The “as applied” standard for vagueness was not changed by Johnson v. United States, 135 S. Ct. 2551 (2015). State v. Schilling, COA No. 35719-8-III (Jun. 4, 2019).
Ninth Circuit
Terry Stops. An anonymous tip that a person saw someone with a gun does not provide reasonable suspicion to make a Terry stop in Washington, where possession of a firearm is presumptively lawful. Flight from police officer does not establish reasonable suspicion in all cases; flight is just one factor in the reasonable suspicion analysis. Where flight occurs before officers communicate with the person and the person is of color, racial dynamics along with a simple desire not to interact with police will provide an “innocent” explanation of flight that flight when considered alongside a tip that is entitled to little weight, will not provide reasonable suspicion for a stop. United States v. Brown, No. 17-30191 (9th Cir. Jun. 5, 2019).
WEEKLY ROUNDUP FOR MAY 31, 2019
United States Supreme Court
First Amendment Retaliatory Arrest Claims. A First Amendment retaliatory arrest claim will generally fail as a matter of law when there was probable cause to arrest the person. A person may succeed on a 42 U.S.C. § 1983 claim despite the existence of probable cause when the person presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Nieves v. Bartlett, No. 17-1174 (May 28, 2019).
Washington Supreme Court
Manifest Injustice Dispositions. A suspended manifest injustice disposition is immediately appealable. The standard of proof for imposition of a manifest injustice sentence is clear and convincing evidence, as no constitutionally protectable liberty interest is created by the juvenile dispositional guidelines. State v. T.J.S.-M., No. 96434-3 (May 30, 2019). Justice Yu concurred in the result. Dissenters included Justices González and Gordon McCloud.
Division Three
“In Uniform” and Felony Elude. “Uniform” for purposes of eluding a police officer requires the signaling or pursuing officer to wear a department-issued garment that clearly communicates the officer’s official status to members clothing. A vest issued by the police department that the officer wore over “normal clothes” was a uniform as it had a Spokane Police badge on front and clear block reflective letters across the back that said “police.” State v. Connors, COA No. 35718-0-III (May 30, 2019).
Ninth Circuit
Federal Criminal Jurisdiction in Indian Country. The Assimilative Crime Act (ACA), 18 U.S.C. § 13 applies to Indian Country. The ACA, when invoked in Indian Country, does not apply to (1) “offenses committed by one Indian against the person or property or property of another Indian,” (2) “any Indian committing any offense in the Indian country who has been punished by the local law of the tribe,” or (3) “any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” See Indian Country Crimes Act, 18 U.S.C. § 1152. The Indian-on-Indian exception does not preclude application of the ACA to all “victimless” crimes. United States v. Smith, No. 17-30248 (9th Cir. May 28, 2019).
WEEKLY ROUNDUP FOR MAY 24, 2019
Division Two
Speedy Trial. A criminal defendant’s constitutional speedy trial rights were violated by a 38 year gap between charging and the defendant’s first appearance in the trial court on the murder charges. Most of the delay is attributable to the State which negligently allowed the defendant to be transferred to Canada to stand trial for murder and then made no formal efforts to extradite the defendant to the United States following his conviction in Canada. State v. Ross, COA No. 52570-4-II (May 21, 2019).
Public Funds and Ballot Propositions. RCW 42.17A.555, which prohibits the use of public facilities to support “a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition,” was violated when the Port filed a declaratory judgment action against two ballot propositions, seeking a judicial directive preventing the ballot propositions from being placed on the local ballot. The Port was required to disclose its pre-election declaratory judgment related legal expenditures as independent expenditures under RCW 42.17A.255. RCW 42.17A.255 does not violate the First Amendment and is not void for vagueness. State v. Economic Development Board for Tacoma-Pierce County, COA No. 49892-8-II (May 21, 2019).
Division Three
Cash Bail. If an accused has violated a condition of cash bail, a trial court has discretion to forfeit cash bail even after the accused reappears in court and even after entry of the judgment and sentence. State v. Jeglum, COA No. 35841-1-III (May 21, 2019).
DOSA. Eligibility for DOSA is offender-based, not offense-based. A defendant who is sentenced to serve concurrent sentences for multiple crimes is eligible for DOSA if at least one sentence has a standard range longer than one year. Postsentence Petition of Hardy, COA No. 36086-5-III (May 23, 2019).
Colorado Supreme Court
Drug Detection Dogs and Marijuana. A sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. Law enorcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. People v. McKnight, 2019 CO 36 (May 20, 2019).
WEEKLY ROUNDUP FOR MAY 17, 2019
Washington Supreme Court
Plain View. Inadvertence is not a separate element required under the plain view doctrine. Thus, a plain view seizure is legal when the police (1) have a valid justification to be in an otherwise protected area, provided that they are not there on a pretext, and (2) are immediately able to realize the evidence they see is associated with criminal activity. Law enforcement’s warrantless seizure of a defendant’s bloody clothing from the defendant’s hospital room was lawful where the officer’s presence in the hospital room was lawful and the police could reasonably conclude that the seized items had evidentiary value with respect to the current arson and assault investigation. State v. Morgan, No. 96017-8 (May 16, 2019). Justices Madsen and Gordon McCloud dissented. (Snohomish County – Seth Aaron Fine).
Impeachment Evidence and Harmless Error. The erroneous exclusion of impeachment evidence is harmless beyond a reasonable doubt if, in light of the entire record, the court is convinced that the jury would have reached the same verdict absent the error. There is no eyewitness prerequisite to a finding of harmless error. When the victim’s account is corroborated by numerous other witnesses and the defendant’s account was highly implausible and/or directly refuted by other witnesses, the erroneous exclusion of U Visa evidence is harmless beyond a reasonable doubt. State v. Romero-Ochoa, No. 95905-6 (May 16, 2019). (Pierce County.)
Division Two
Controlled Substances. When a defendant has a previous conviction under chapter 69.50 RCW, RCW 69.50.408 automatically doubles the maximum sentence and the trial court does not have discretion to treat 60 months as the maximum sentence. The standard range for such a defendant is that in the SRA grid. State v. Cyr, COA No. 50912-1-II (May 14, 2019).
Ninth Circuit
Pro Se Criminal Defendants. The defendant, who presented an unorthodox and ultimately unsuccessful defendant was properly found to be competent to represent himself. The trial court did not abuse its discretion when it found that the defendant knowingly and intelligently waived his right to counsel. Equivocal statements made early on in a Faretta hearing will not taint a defendant’s fina, unequivocal waiver of counsel. The trial court was not required to conduct a second Faretta hearing after the defendant filed a motion requesting “a new counsel advisor.” United States v. Audette, No. 17-10017 (9th Cir. May 14, 2019).
American Bar Association
Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses. Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) impose obligations on prosecutors when entering into plea bargains with persons accused of misdemeanors. These obligations include the duty to ensure that each charge incident to a plea has an adequate foundation in fact and law, to ensure that the accused is informed of the right to counsel and the procedure for securing counsel, to avoid plea negotiations that jeopardize the accused’s ability to secure counsel, and, irrespective of whether an unrepresented accused has invoked the right to counsel, to avoid offering pleas on terms that knowingly misrepresent the consequences of acceptance or otherwise pressure or improperly induce acceptance on the part of the accused. American Bar Association Formal Opinion 486 (May 9, 2019).
Virginia State Bar Disciplinary Board
Prosecutor Discipline. A commonwealth attorney received a public reprimand for listening to a jail phone call between a defendant and his attorney, which was recorded because the attorney had not registered his phone number with the jail. Although the attorney’s supervisors concluded that the attorney client privilege was waived as the defendant and the attorney were informed at the beginning of the call that it was being recorded, the disciplinary board found that the commonwealth attorney violated RPC 3.3, which states that “In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” In re Matter of Thacher, VSB Docket No. 18-053-111919 (May 7, 2019).
WEEKLY ROUNDUP FOR MAY 10,2019
Washington Supreme Court
Firearm Rights. The sheriff is not required to issue a concealed pistol licence to an individual whose sealed juvenile record includes adjudications for class A felonies. A sealed juvenile adjudication still exist as a matter of state law. A sealing order does not constitute an expungement of the juvenile offense. A sealed juvenile adjudication still exists, it is merely hidden from the view of the general public. A juvenile’s class A felony adjudication subjects him to federal law which makes it unlawful for him to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Barr v. Snohomish County Sheriff, No. 96072-1 (May 9, 2019). [Editor’s Note: The Court expressly declined to decide whether state law prohibits a juvenile whose class A adjudications have been sealed is prohibited from possessing or carrying a firearm under state law.]. (Snoco Lyndsey Downs)
Adult Sentencing for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. A defendant whose sentence was imposed prior to the issuance of Houston-Sconiers, 188 Wn.2d 1 (2017), which grants to the trial court absolute discretion to depart from the standard sentencing ranges and mandatory sentence enhancements for defendants being sentenced under the SRA for offenses committed prior to their eighteenth birthday, is not entitled to collateral relief unless he can demonstrate by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of sentencing. Because the judge sentenced this defendant to the top of the standard sentencing range, the Court declines to consider whether Houston-Sconiers is a significant material change in the law that applies retroactively to cases on collateral reivew. In re Personal Restraint of Meippen, No. 95394-5 (May 9, 2019). Justices Wiggins, González, Yu and Gordon McCloud dissented on the grounds that Houston-Sconiers is a significant thange of law that applies retroactively on collateral review and that would support a remand for a reference hearing. (King County Ann Summers and Amy Meckling)
Division One
Seizure. The defendant bears the burden of proving a seizure occurred in violation of article I, section 7. A seizure occurs for article I, section 7, when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” The seizure was unlawful as the officers did not observe any defendant-specific conduct prior to approaching the vehicle. State v. Johnson, COA No. 77720-3-I (May 6, 2019).
Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the evidence showed the defendant fractured the victim’s finger, there was no evidence that the defendant knew of and disregarded a substantial risk that he would fracture the victim’s finger when he grabbed the phone from her hand. State v. Melland, COA No. 76617-1-I (May 6, 2019).
Legal Update for Washington State Law Enforcement
The April 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Florida Supreme Court
Judges in Romantic Relationships with Attorneys. A judge must recuse in any case handled by the attorney who is in a romantic relationship with the judge. The judge must disclose the relationship with the attorney in cases where one side is represented by the firm that has a relationship with the attorney. The judge need not automatically recuse from cases involving the firm with whom the attorney is associated so long as it is clearly established that the attorney derives no personal benefit from cases handled by other members of the firm and the judge is careful to observe strict objectivity in ruling on any motions to disqualify that may stem from revealing the relationship. Judicial Ethics Advisory Committee, Opinion No. 2019-16 (Apr. 25, 2019).
WEEKLY ROUNDUP FOR APRIL 26, 2019 & MAY 3, 2019
Washington Supreme Court
Exceptional Sentence. The trial court was not collaterally estopped from imposing an exceptional sentence at a resentencing hearing that was necessitated by the reversal of four of seven convictions, by its decision not to impose an exceptional sentence as the original sentencing hearing. The presumption of judicial vindictiveness does not apply when the overall length of the new sentence is lower than the original sentence. The presumption of prosecutorial vindictiveness does not prevent the State from recommending an exceptional sentence at a resentencing hearing after not requested one at the original hearing, as the prosecutor at each sentencing hearing must decide whether the length of a standard range sufficient given the facts of the case. State v. Brown, No. 95734-7 (May 2, 2019). Justice Gordon McCloud was the lone dissenter.
Clerk’s Bonds. RCW 36.23.020 allows a superior court to increase the amount of the clerk’s bond. The superior court’s authority is not capped by RCW 36.16.050, which limits the maximum bond that a clerk must post before assuming office at the amount set for the treasurer in the same county. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the judges exceeded their statutory authority by ordering the clerk to double the amount of her official bond without any prior notice or opportunity to be heard.
Writs of Prohibition. Whether a writ of prohibition will issue is a narrow inquiry that looks only to the question of power and jurisdiction of an inferior court. A writ will not issue when the petitioner may be able to obtain relief through a preliminary injunction and declaratory judgment. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the extraordinary circumstances presented support the extraordinary remedy of prohibition.
On April 30, 2019, the Washington Supreme Court accepted review in the following matters:
Aggravated First Degree Murder and “Juveniles.” State v. Delbosque, No. 96709-1. Mason County– State’s Petition for Review. Issues presented: (1) Whether the Court of Appeals improperly vacated the trial court’s minimum term for a “juvenile” convicted of aggravated first degree due to its misallocation of the burden of proof and persuasion, by treating age as a per se mitigating factor, and by misapplying the standard of review. (2) Whether the defendant has a constitutional right to appeal his minimum term. COA opinion reported at 6 Wn. App. 2d 407 (2018). Petition for review pleadings available here.
Duty to Investigate. Wrigley v. State of Wash., DSHS, No. 96830-6. Government’s Petition for Review. Issues presented: Whether RCW 26.44.010 and .050 require an investigation of allegations of possible future abuse or neglect. COA opinion reported at 5 Wn. App. 2d 909 (2018) Petition for review pleadings available here.
Single Subject Requirement. Am. Hotel & Lodging Ass’n. v. City of Seattle, No. 96781-4. Government’s Petition for Review. Issues: Whether Seattle’s I-124, violates the City’s single subject requirement? COA opinion reported at 6 Wn. App. 2d 928 (2018). Petition for review pleadings available here.
Garnishments. Fireside Bank v. Askins, No. 96853-5. Whether a trial court may enforce the regulatory protections of the Collection Agency Act (CAA), when a “collection agency” “collected and attempted to collect, through writs of garnishment,” inflated judgment balances. COA opinion reported at 6 Wn. App. 2d 431 (2018). Petition for review pleadings available here.
Division One
Double Jeopardy. State v. Zhao, 157 Wn.2d 188 (2006), which allows a person to plead guilty to a fictitious crime, does not provide a basis to avoid double jeopardy and convict a person for two crimes based on one criminal act. State v. Robinson, COA No. 76648-1-I (Apr. 22, 2019).
Division Three
Theft of a Motor Vehicle. A snowmobile is not a “motor vehicle” for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle. State v. Tucker, COA No. 35530-6-III (May 2, 2019). Judge Korsmo dissented.
Seizure. A defendant was seized for purposes of the Fourth Amendment when two patrol cars blocked the defendant’s vehicles only exit from a dead end alley and two officers approached the passenger and driver side windows. Since the officers lacked reasonable suspicion of criminal activity, the seizure was unlawful. State v. Carriero, COA No. 35560-8-III (Apr. 25, 2019). Judge Korsmo dissented.
Ninth Circuit
Malicious Prosecution. The reversal of plaintiff’s conviction on basis of the exclusionary rule is not a favorable termination, for purposes of a malicious prosecution claim, because the reversal does not address plaintiff’s guilt or innocence. Mills v. City of Covina, No. 17-56343 (9th Cir. Apr. 24, 2019).
Sixth Circuit
Parking Enforcement. The common parking enforcement practice known as “chalking,” whereby parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked, is a search that is subject to the Fourth Amendment. Neither the automobile exception nor the community caretaking exceptions to the warrant requirement supports chalking. Taylor v. City of Saginaw, No. 17-2126 (6th Cir. Apr. 22, 2019).
WEEKLY ROUNDUP FOR APRIL 19, 2019
Washington Supreme Court
Obstruction Conviction. RALJ court’s ruling upholding the obstruction conviction affirmed by an equally divided court. Justice Madsen recused herself and no pro tem justice replaced her. See State v. Beck, 56 Wn.2d 474 (1960) (when one justice has recused herself from participating in the decision and the remaining eight justices are equally divided in their decision, the judgment of the trial court stands).
Justices González, Fairhurst, Johnson and Gordon McCloud would hold that a person cannot be convicted of obstructing for refusing to open the door to officers who have a lawful right to make a warrantless entry pursuant to the community caretaking exception to the warrant requirement. These four justices do not agree that a person has a duty to comply with the police’s demand to open the door under these circumstances, and that conduct that amounts to passive delay will not sustain an obstruction charge.
Justices Stephens, would hold that a person’s refusal to obey lawful commands to take a specific action is conduct sufficient to support an obstruction conviction, and that the officers’ orders to open the door were lawful under the community caretaking exception to the warrant requirement. No constitutional or free speech rights allowed the defendant to refuse the polices’ demand to open the door under the facts of this case. City of Shoreline v. McLemore, No. 95707-0 (Apr. 18, 2019).
Waiver of Counsel. A trial court does not abuse its discretion by denying a competent defendant’s request to represent himself, where the defendant’s responses during the waiver of counsel colloquy indicates a lack of understanding of the consequences. In this case, the defendant indicated that the criminal charges did not pertain to him as he did not enter into a contract with the State and he was not a corporation. State v. Burns, No. 95528-0 (Apr. 18, 2019).
Confrontation Clause Violation. A defendant must raise an objection at trial or waive the right of confrontation. “[R]equiring an objection is in the interests of judicial efficiency and clarity, and provides a basis for appellate courts to review a trial judge’s decision. Where a defendant does not object at trial, ‘nothing the trial court does or fails to do is a denial of the right, and if there is no denial of a right, there is no error by the trial court, manifest or otherwise, that an appellate court can review.’” State v. Kronich, 160 Wn.2d 893 (2007), is abrogated to the extent its analysis is inconsistent with the waiver approach. State v. Burns, No. 95528-0 (Apr. 18, 2019). Justices Stephens, Madsen, Gordon McCloud and Wiggins concur with the result but disagree with the waiver rule.
Legal Financial Obligations. Social Security Act’s antiattachment statute, 42 U.S.C. § 407(a), does not prohibit the imposition of the mandatory crime victim fund assessment. The sentencing court, however, may not impose a payment schedule while the defendant’s only source of income is social security disability. The county clerk may require the defendant to provide proof that his only assets and income are derived from social security disability benefits. State v. Catling, No. 95794-1 (Apr. 18, 2019). Justice González authored the dissenting opinion which was joined by Justice Yu and Gordon McCloud.
Exclusionary Rule. The proper remedy following suppression of evidence by an appellate court is to vacate the convictions that depended upon the illegally collected evidence and to remand to the trial court for further proceedings. State v. McKee, No. 96035-6 (Apr. 18, 2019).
Ninth Circuit
Immigration Enforcement. United States is not entitled to a preliminary injunction suspending a California statute that limits the cooperation between state and local law enforcement and federal immigration authorities. The statute which prohibits California law enforcement agencies from (1) “‘[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination,” (2) “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public,” and (3) “[p]roviding personal information . . . about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public,” is consistent with California’s prerogatives under the Tenth Amendment and the anti-commandeering rule. United States v. State of California, No. 18-16496 (9th Cir. 2019).
WEEKLY ROUNDUP FOR APRIL 12th, 2019
Washington Supreme Court
Landlord Liability. A property owner-landlord is liable for injuries that occur on its property when the lessee has exclusive possession at the time of the accident but only priority use under the lease and the landlord has contracted to maintain and repair the premises. Adamson v. Port of Bellingham, No. 96187-5 (Apr. 11, 2019).
Division One
Necessity Defense. A defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to tender his common law necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change. State v. Ward, COA No. 77044-6-I (Apr. 8, 2019).
Self-Defense. Although the lawfulness of the defendant’s first “warning shot” was not at issue, the giving of a first aggressor instruction without an accompanying lawful defense of another instruction prejudiced the defendant’s ability to argue his theory of the case. State v. Espinosa, COA No. 76894-8-I (Apr. 8, 2019).
Division Two
Mandatory Legal Financial Obligations. A trial court need not consider a defendant’s past, present, or future ability to pay when it imposes the mandatory victim penalty assessment. The trial court may not remit the mandatory LFOs. Imposition of the mandatory LFOs does not violate a defendant’s right to due process. A county clerk possesses the authority to require a defendant to annually verify her SSI status. Requiring a defendant to annually verify her SSI status is not an “enforcement action” that will trigger an inquiry into a defendant’s ability to pay. State v. Conway, COA No. 50032-9-II (Apr. 9, 2019).
Division Three
Cannabis and Zoning. Neither Washington’s Growth Management Act, chapter 36.70A RCW, nor the State’s marijuana licensing laws require the Washington State Liquor and Cannabis Board to defer to local zoning laws when making licensing decisions. While the Board may consider zoning restrictions in making licensing decisions, doing so is not required under current marijuana law. A license does not authorize the siting of a marijuana business, zoning laws remain in full force regardless of whether a license is issued. Kittitas County v. Washington State Liquor and Cannabis Board, COA No. 35874-7-III (Apr. 11, 2019).
“Profile Testimony.” Defense counsel provided constitutionally inadequate representation by failing to object to “profile testimony” at trial. While the State may admit evidence about the inability of a felon to lawfully obtain a gun, evidence of the high probability that any gun possessed by a felon is stolen or that one possessing a stolen firearm is likely to flee and discard the firearm when approached by a law enforcement officer constitutes improper “profile testimony” that implicates ER 402, 403, 404(b), and 702. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented. [Editor’s note: The majority’s ruling conflicts with Division II’s opinion in State v. Avendano-Lopez, 79 Wn. App. 706 (1995).]
Offender Scores. The State must produce evidence to support the existence of prior convictions at sentencing. Pre-sentencing discussions of prior history and defense counsel’s acknowledgment of the State’s offender score will not substitute. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented.
Law Enforcement Digest Online Training
The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The January 2019 Law Enforcement Digest is now available.
Articles of Interest
Locked Phones, Computers, or Files. How to resolve a defendant’s assertion of his Fifth Amendment rights when law enforcement seeks to compel the defendant to provide a password for a locked device collected pursuant to a search warrant. Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Texas L. R. 768 (2019)
WEEKLY ROUNDUP FOR APRIL 5, 2019
Washington Supreme Court
Aggravated First Degree Murder Sentences and “Juveniles.” A judge has discretion to restructure a defendant’s entire sentence when setting a new minimum term pursuant to RCW 10.95.035 for a defendant who was convicted of additional crimes.. Regardless of any limitations contained in the relevant statutes, the trial court may find an exceptional sentence is warranted and it may adjust the standard sentence to provide for a reduced term or years, for concurrent rather than consecutive sentences, or for both. State v. Gilbert, No. 95814-9 (Apr. 4, 2019).
This week the Court granted review in the following matters:
DUI “Prior Offenses.” State v. Wu, No. 96747-4. King County. Questions presented: Whether a prior conviction meets the definition in RCW 46.61.5055(14)(a)(xii) is a question for the jury or a threshold question for the court in a felony DUI prosecution? COA opinion reported at 6 Wn. App. 2d 679 (2018). Petition for review pleadings available here.
Double Jeopardy and Standard of Review for Constitutional Claims. State v. Arndt, No. 95396-1. Kitsap County. Questions presented: Does the double jeopardy clause apply to aggravating circumstances? Does double jeopardy prohibit conviction for both aggravated first degree murder and arson, where the aggravating circumstance and the arson conviction are based on the same evidence? Did the trial court violate the defendant’s constitutional right to present a defense by excluding some of her expert’s testimony and must this error be reviewed de novo? COA opinion is unpublished. Petition for review pleadings available here.
Unlawful Practice of Law. State v. Yishmael, No. 96775-0. King County. Questions presented: Is unlawful practice of law a strict liability crime. Is the term “practice of law” unconstitutionally vague? Is it improper to use a court rule as the basis of a jury instruction defining the practice of law? COA opinion reported at 6 Wn. App. 2d 203 (2018). Petition for review pleadings available here.
Campaign Finance Disclosure Laws. State v. Grocery Mfrs. Ass’n, No. 96604-4. Questions presented: Whether the Grocery Mfrs. Ass’n, is a “political committee” under the Fair Campaign Practices Act (“FCPA”). Whether enforcement of the FCPA violated the First Amendment in this case. Whether the penalty imposed for the violations of the FCPA should be trebled. COA opinion reported at 5 Wn. App. 2d 542 (2018). Petition for review pleadings available here.
Taxation. First Student, Inc. v. State of Wash. Dep’t of Revenue, No. 96694-0. County. Questions presented: Whether assessment of business and occupation taxes upon a company that provides transportation services for compensation to organizations including school districts, youth groups, summer camps, and churches is proper. COA opinion reported at 4 Wn. App. 2d 857 (2018). Petition for review pleadings available here.
Division Two
Access Device. An access device need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner. The jury instruction defining “can be used” which was based on State v. Schloredt, 97 Wn. App. 789 (1999), was not an improper comment on the evidence. State v. Sandoval, COA No. 50814-1-II (Apr. 2, 2019).
Water Rules. The Department of Ecology has the authority to promulgate administrative rules that establish minimum instream flows for a river, require mitigation and metering for all new water appropriations, including permit exempt wells, and closes the basin to new surface water withdrawals for part of the year. DOE was not required to consider the “cost” of lost legal rights for potential drillers of future permit exempt wells in its least-burdensome alternatives and cost-benefit analyses. Bassett v. Department of Ecology, COA No. 51221-1-II (Apr. 2, 2019).
SEPA. The City of Puyallup is an “agency with jurisdiction” that can assume lead agency status under WAC 197-11-948 over a development that is outside the City’s limits but within the City’s Growth Management Urban Growth Area, as the City has approval and permitting authority over roadwork and sewer and water services that are part of the proposal. The City may assume lead agency status following the County’s issuance of a mitigated determination of nonsignificance. City of Puyallup v. Pierce County, COA No. 51501-6-II (Apr. 3, 2019).
Division Three
Community Custody Conditions. A claim that conditions of community custody are not related to the circumstances of the crime will not be considered for the first time on appeal where the defendant informed the sentencing judge that he had no objection to the conditions. The phrase “dangerous weapon” is not unconstitutionally vague when it appears with an illustrative list: “dangerous weapons such as hunting knives or a bow and arrow.” The phrase “paraphernalia for the use of controlled substances” is not unconstitutionally vague. “Romantic” in the phrase “of any romantic or sexual relationship” is problematic; the better choice is “of any dating relationship or sexual relationship.” A condition that required the defendant to obtain approval from his corrections officer before engaging in volunteer, church, and travel activities must be modified to provide the corrections department with ascertainable standards to guide its enforcement of the provision. State v. Casimiro, COA No. 35680-9-III (Apr. 2, 2019).
Legal Update for Washington State Law Enforcement
The March 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Ninth Circuit
Eighth Amendment and the Homeless. The Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Martin v. City of Boise, No. 15-35845 (9th Cir. Apr. 1, 2019) (amended opinion).
WEEKLY ROUNDUP FOR MARCH 29, 2019
Washington Supreme Court
RAP 3.1 “Aggrieved Party.” A party is not aggrieved by a favorable decision and cannot properly appeal from such a decision. A party may only appeal if one’s personal rights or pecuniary interests have been adversely affected. Inconvenience alone will not render someone an “aggrieved party.” Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.
Public Interest Exception to Mootness. Matters of statutory interpretation will likely satisfy the public interest exception to the mootness doctrine as the issues are likely to arise again and a definitive answer would be helpful to public officials. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.
Stays in Unlawful Detainer Cases. A court may stay execution of a writ of restitution after a default judgment is entered in an unlawful detainer case while resolving whether good cause is shown for vacation of the default judgment. The superior court’s inherent equitable authority allows granting an ex parte stay of a default judgment issuing a writ of restitution. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.
Division One
Therapeutic Courts. RCW 2.30.030 does not allow a trial court to admit a defendant to a therapeutic court without the prosecuting attorney’s consent. Trial court judges, however, do have discretion to establish eligibility criteria and to decline to accept cases. State v. Daniels, COA No. 78154-5-I (Mar. 25, 2019).
Seizure. An officer does not seize a person by entering a home if a person with authority to consent to the entry does so, regardless of whether the officer advised the person of his right to refuse consent. A suspect who is free to ask the officer to leave or to move to a different room is not seized for purposes of article I, section 7. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).
Miranda. The single officer’s failure to provide Miranda warnings until he said he was going to arrest the defendant does not provide grounds for suppressing the defendant’s confession, when the officer’s conduct did not create a “police dominated atmosphere” that would support a finding of “custody.” State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).
Interview of Allegedly Abused Children. Neither a violation of RCW 26.44.030 nor RCW 26.44.100, which establish guidelines for investigation of alleged abuse will support the suppression of evidence that might establish that abuse was occurring. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).
Division Two
Coercive Contempt. The trial court did not err by denying a sexually violent predator (SVP) detainee’s motion to lift the contempt sanction imposed for his failure to participate in evaluations with the State’s experts, as the contemnor still has the ability to comply. The contemnor’s ability to purge his contempt does not rest upon the actions of third parties, where the State’s experts will perform the evaluation as soon as the contemnor signs the required forms. To the extent the contemnor believes that complying with the superior court’s order infingers upon his rights, his remedy for that complaint is to ask the superior court to address the specific issues, not to aks that the contempt be lifted. In re Detention of Faga, COA No. 50077-9-II (Mar. 26, 2019).
Ninth Circuit
Tribal Police. The exclusionary rule applies in federal court prosecutions to evidence obtained in violation of the Indian Civil Rights Act’s (ICRA) Fourth Amendment counterpart. A tribal officer may rely on a detainee’s response when asking about Indian status in order to determine jurisdiction, but the officer “cannot presume for jurisdictional purposes that a person is a non-Indian – or an Indian– by making assumptions based on that person’s physical appearance.” A tribal officer, who fails to determine whether the person he stopped on a public, nontribal highway crossing a reservation without ascertaining whether the defendant is an Indian will violate the ICRA’s Fourth Amendment parallel if, under the law of a founding era, the tribal officer engages in actions that a private citizen could not lawfully take. In the instant case, the tribal officer’s two searches of the detained non-Indian defendant’s truck could not have been lawfully undertaken by a private citizen under the laws of the founding era. United States v. Cooley, No. 17-30022 (9th Cir. Mar. 21, 2019). [Editor’s Note: This opinion does not alter a tribal officer’s authority to detain a non-Indian who has apparently violated a state law for a reasonable time in order to turn him over to state authorities. See generally State v. Schmuck, 121 Wn.2d 373 (1993).]
WEEKLY ROUNDUP FOR MARCH 22, 2019
United States Supreme Court
Treaty Travel Rights. The Yakama Treaty’s provision guaranteeing “the right, in common with citizens of the United States, to ravel upon all public highways” does not exempt individual Yakama members from state laws designed to protect the Yakama’s ability to travel safely alongside non-Indians on the highways. Washington State Department of Licensing v. Cougar Den, Inc., No. 16-1498 (Mar. 19, 2019).
Washington Supreme Court
Frye and ER 702. Trial courts should admit evidence under Frye if the scientific community generally accepts the science underlying an expert’s conclusion. Frye does not require every deduction drawn from generally accepted theories to be generally accepted. It does not matter, for Frye purposes, that more investigation and research in the future will likely lead to even better results. A trial court’s decision to admit expert testimony is reviewed under the abuse of discretion standard which can result in exclusion of testimony in one case and its admission in another case. L.M. v. Hamilton, No. 95173-0 (Mar. 21, 2019). Justices González, Johnson and Stephens concurred in the result only.
Division One
Voluntary Intoxication Defense in Civil Cases. A trial court abuses its discretion by excluding evidence of the plaintiff’s blood alcohol level when the affirmative defendant of voluntary intoxication under RCW 5.40.060(1) has been pled. Gerlach v. The Cove Apartments, LLC, COA No. 77179-5-I (Mar. 18, 2019).
Division Two
Involuntary Treatment. RCW 71.05.050 authorizes a medical center to initially detain an individual until the hospital staff has the opportunity to evaluate the person only if it has some legitimate basis grounded in the requirements of RCW 71.05.050 to involuntarily detain the person at triage. Dalen v. St. John Medical Center, COA No. 50391-3-II (Mar. 19, 2019).
Hostile Work Environment Claims. A public defender’s claim against the Public Defender Association (PDA) under the Washington Law Against Discrimination (WLAD) for hostile work environment, based upon the actions of one of her clients, can proceed because an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace when the employer does not take immediate and/or corrective actions when it knows about the harassing conduct. The Industrial Insurance Act (IIA) doe not bar the employee’s negligence claim because it is not clear that the employee’s PTSD and related injuries constitute a compensable “injury” under the IIA. LaRose v. King County, COA No. 50858-3-II (Mar. 19, 2019).
WEEKLY ROUNDUP FOR MARCH 15, 2019
Washington Supreme Court
Contempt. This case concerns contempt sanctions imposed against the Department of Social and Health Services (DSHS) for failing to timely complete competency evaluations for criminal defendants. A court’s oral ruling determining contempt and imposing remedial sanctions triggers the running of the contempt sanctions. The State is not required to pay interest on the accrued contempt sanctions. State v. Sims, No. 95479-8 (Mar. 14, 201. Argued Sept. 20, 2018. [Editor’s Note: The Court’s analysis re interest should apply equally to awards under the Public Records Act.]
Jail Medical Costs. In the absence of a prior interlocal agreement, a county is not entitled to seek reimbursement from cities for the cost of medical services provided to jail inmates who were (1) arrested by city officers and (2) held in the county jail on felony charges. Thurston County v. City of Olympia, No. 95586-7. Argued Feb. 21, 2019).
Division Two
Credit for Presentence Electronic Home Monitoring. The 2015 amendment to RCW 9.94A.505 precludes felons convicted of violent crimes from receiving credit for time served on electronic home monitoring (EHM) before sentencing. The denial of credit for presentence EHM does not violate the prohibition against double jeopardy and does not violate violent offenders’ equal protection rights. State v. Kim, COA No. 50951-2-II (Mar. 8, 2091).
Division Three
Marijuana and Necessity. A defendant in possession of more than 40 grams of marijuana (in this case 1800 grams) who asserts a necessity defense must present a medical expert witness to support the defense. The trial court d did not abuse its discretion by precluding the defendant’s expert from testifying where the proposed expert testimony was first disclosed after the State rested. State v. Ruelas, COA No. 35029-1-III (Mar. 12, 2019).
Preliminary Appearances. The superior court retains authority to hold a preliminary hearing and enter related orders, even after a district court case has been filed and the district court has assumed exclusive original jurisdiction over the trial process. A district court may not refuse to accept preliminary appearance hearing orders from the superior court. State v. Stevens County District Court Judge, COA No. 35966-2-III (Mar. 12, 2019).
Law Enforcement Digest Online Training
The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The December 2018 Law Enforcement Digest is now available.
New York City Bar
RPC 3.3(f). Rule 3.3(d) of the New York Rules of Professional Conduct, which is identical to Washington RPC 3.3(f), requires a lawyer to disclose to the tribunal material facts, including adverse facts, “that will enable the tribunal to make an informed decision.” While the disclosure obligation does not apply to proceedings in which an opposing party appearing pro se is absent by choice, the rule applies where the adverse party has not been provided with notice, an opportunity to be heard on the application and time to appear, as well as to proceedings, such as search warrant applications, in which interested parties are not permitted to receive notice and to participate. New York City Bar Professional Ethics Committee, Defining “Ex Parte Proceeding” Under Rule 3.3(d), Formal Opinion 2019-1 (Feb. 4, 2019).
WEEKLY ROUNDUP FOR MARCH 8, 2019
Washington Supreme Court
This week the Washington Supreme Court accepted review in the following matters:
Pro Se Defendants. State v. Davis, No. 96663-0. King County–State’s Petition. Issues: Under what circumstances does a pro se defendant voluntarily leave trial court proceedings? What is the standard of review on appeal when a pro se defendant claims his departure from the courtroom was not voluntary? Under what circumstances may a trial court remove a pro se defendant from the courtroom against his will, and what standard of review applies to such a removal? COA opinion reported at 6 Wn. App. 2d 43 (2018). Petition for review is available here.
Incompetency. State v. McCarthy, No. 96653-2. Spokane County–State’s Petition. Issues: Under what circumstances, if any, should the trial court order another competency evaluation of an accused after a jury finds the accused competent to stand trial? COA opinion is reported at 6 Wn. App. 2d 94 (2018). Petition for review pleadings available here.
Rendering Criminal Assistance. State v. Davis, No. 96599-4. State’s Petition – Kitsap County. “State’s petition for review granted; Pry’s petition for review denied; motion to consolidate denied.” Issues: Whether a charging document for first degree rendering criminal assistance must include language from definitional statutes to be constitutionally adequate. COA opinion is unreported. Petition for review pleadings available here.
Building Permits and 42 U.S.C. § 1983. Church of the Divine Earth v. City of Tacoma, No. 96613-3. “Granted only as to whether the city is liable for damages because it knew or should have known its action was unlawful.” COA opinion reported at 5 Wn. App. 2d 471 (2018). Petition for review pleadings available here.
State Recovery for Bridge Collapse. State Dep’t of Transp. v. Mullen Trucking 2005, LTD., No. 96538-2. Issues: Whether RCW 46.44.020 grants the State immunity from liability when a motorist strikes overhead structures with more than 14 feet of clearance. Does the statute prevent the State’s fault from being allocated for purposes of determining the comparative fault of the parties? COA opinion reported at 5 Wn. App. 2d 787 (2018). Petition for review pleadings available here.
Public Records Act. Serv. Emps Int’l Union Local 925 v. Dep’t of Early Learning, No. 96578-1. Issue Whether Initiative 1501 applies to public records act request that were still pending on the day the Initiative became effective or only to requests made after the effective date of the initiative. COA opinion is unpublished. Petition for review pleadings available here.
Division Three
Possession With Intent Jury Instructions. The identity of the controlled substance should appear in the elements instruction for the charge of possession with intent to deliver. When the jury’s verdict includes the identity of the controlled substance, its omission from the “to convict” instruction is harmless as to the defendant’s sentence. State v. Rivera-Zamora, COA No. 35184-0-III (Mar. 7, 2019).
Judge’s Comments Regarding Credibility Determinations. A veteran trial judge’s comments regarding her experience, as well as in the case law, that disclosure discrepancies by young children are not uncommon does not implicate ER 201. The judge did not treat this information as a “fact,” merely offering it to explain her reasoning for not being swayed by the defense argument that the child’s story was inconsistent. Judges are allowed to bring their knowledge and understanding of the world into the courtroom. State v. N.B., COA No. 35513-6-III (Mar. 7, 2019). [Editor’s Note: This opinion also includes a concise summary of the correct test to apply to a challenge to the sufficiency of the evidence in light of a defendant’s claim that a witness was not credible.]
Legal Update for Washington State Law Enforcement
The February 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR MARCH 1, 2019
United States Supreme Court
Federal Judges. “[F]ederal judges are appointed for life, not for eternity.” A federal court may not count the vote of a judge who dies before the decision is issued. Yovino v. Rizo, No. 18-272 (Feb. 25, 2019).
Ineffective Assistance of Counsel and Appeals. A presumption of prejudice applies when trial counsel fails to file an appeal as instructed in cases where a defendant signed an appeal waiver. The presumption is appropriate as no appeal waiver serves as an absolute bar to all appellate claims. Garza v. Idaho, No. 17-1026 (Feb. 27, 2019).
Division One
Traffic Stops. The passenger’s consent to a search of her purse was not vitiated by police conduct during the traffic stop. While an officer in a traffic stop may not request identification from a passenger for investigatory purposes absent an independent reason to justify the request, an officer may check the passenger’s identification to determine if the passenger has a valid driver’s license when considering whether to allow the passenger to drive the car from the scene. Once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger if she consented to a search of the purse she left in the car. State v. Lee, COA No. 77038-1-I (Feb. 25, 2019).
Division Three
DOSA. A trial court exceeds its statutory sentencing authority by imposing an additional term of community custody to be served in the event that the defendant fails to complete his or her DOSA program. In re Postsentence Review of Milne, COA No. 36093-8-III (Jan. 17, 2019, publication ordered Feb. 28, 2019).
Ninth Circuit
First Amendment and Unions. Washington’s authorization of an exclusive bargaining representative for subsidized childcare providers did not infringe on the plaintiff childcare provider’s First Amendment rights. The State’s exclusive bargaining arrangement served the compelling—and enduring—state interest of labor peace. Miller v. Inslee, No. 16-35939 (9th Cir. Feb. 26, 2019).
WEEKLY ROUNDUP FOR FEBRUARY 22, 2019
United States Supreme Court
Excessive Fines Clause of the Eighth Amendment. The Excessive Fines Clause of the Eighth Amendment which guards against abuses of the government’s punitive or criminal law-enforcement authority is incorporated by the Due Process Clause of the Fourteenth Amendment and is binding on states. Timbs v. Indiana, No. 17-1091 (Feb. 20, 2019). [Editor’s note: This case is likely to have little impact in Washington. Article I, section 14 of the Washington Constitution already prohibits the imposition of excessive fines and the Washington Supreme Court assumed application of the Eighth Amendment clause to states in 1999. See State v. WWJ Corp., 138 Wn.2d 595, 604 (1999).]
Washington Supreme Court
Collateral Consequences of Convictions. Plurality decision. Lead opinion (Justices Yu, Stephens, Madsen and González): The Department of Early Learning’s (DEL)regulations prohibiting any individualized consideration of a previously convicted person’s qualifications at the administrative level violates a person’s federal right to procedural due process when the person’s conviction is many years old and was committed when the person was in her twenties. Concurring opinion (Justice Gordon McCloud): DEL did not violate the person’s federal right to procedural due process, but did violate her right to substantive due process. DEL may not permanently disqualify the petition based solely on her 1988 conviction. Dissent (Justices Fairhurst, Owens, Wiggins and Johnson): No violation of procedural due process and petitioner has not met the heavy burden of showing that the decision to permanently disqualify her from providing childcare services based on her conviction for the violent crime of attempted robbery is not rationally related to the legitimate government interest in protecting children. Fields v. State Dept. of Early Learning, No. 95024-5 (Feb. 21, 2019).
Statute of Limitations. The statute of limitations is not an essential element of a crime. Including facts related to the statute of limitations in the information may put a defendant on notice of a defense based on the statute of limitations, but their omission does not render an information constitutionally deficient. State v. Merritt, No. 95115-2 (Feb. 21, 2019). Justices Gordon McCloud, Fairhurst and González concurred in the result, but found that the State violated RCW 10.37.050, which requires the charging document to contain sufficient facts to establish that the offense was committed within the statute of limitations. A challenge on statutory grounds, however, must be brought prior to trial through a demurrer or a request for a bill of particulars.
Division One
Juror Compensation. The appellants have failed to show that the low statutory rate of pay for jurors gives rise to a disparate impact claim based on economic status under wither the Washington Law Against Discrimination or the constitution. The fact that jurors or lower economic status will be unable to serve due to the low juror pay does not give rise to an implied disparate impact claim under the amount jurors are paid under the “no juror exclusion” statute, RCW 2.36.080(3). The “no juror exclusion” statute which protects the opportunity to be considered for jury service and imposes the obligation to serve as a juror when summoned, does not guarantee the right to actually serve on a jury when summoned. If “the Appellants premise that economic hardship excusals should be characterized as exclusions that violate RCW 2.36.080(3), the appropriate remedy would be to prohibit economic hardship excusals—it would not be to increase the rate of juror pay.” Because jury service is a civic duty and not employment, jurors are not employees under the Washington Minimum Wage Act (MWA), chapter 49.46 RCW. Rocha v. King County, COA No. 51823-6-II (Feb. 21, 2019). Judge Bjorgen dissented.
Division Two
Inmate Visitation. The Department of Corrections denial of a sex offender’s request for visitation with his minor children did not violate the defendant’s due process rights, as the due process clause does not create a protected liberty interest in prison visitation between an inmate and his children. The sentencing court’s order amending and clarifying the inmate’s sentence is not binding on DOC because the sentencing court did not have personal jurisdiction to order DOC to provide supervised visitation. DOC’s denial of visitation was not arbitrary or capricious. In re Personal Restraint of Gossett, COA No. 49525-2-II (Feb. 20, 2019).
Sealing of Juvenile Record. The offender’s 1993 conviction of indecent liberties by forcible compulsion remains a class B felony that the superior court must seal under the plain language of RCW 13.50.260(4)(b), if the specified statutory conditions are met. Once the record for that conviction is sealed, the conviction is treated as if it never occurred, allowing the offender’s first degree child molestation conviction to be sealed under the plain language of RCW 13.50.260(4)(a). State v. P.M.P., COA No. 50821-4-II (Feb. 20, 2019).
Division Three
Warrantless Breath Tests. A warrantless breath test is allowed under article I, section 7 of the Washington Constitution under the search incident to arrest exception to the warrant requirement. State v. Nelson, COA No. 35273-1-III (Feb. 19, 2019). Judge Lawrence-Berrey dissented.
Pretrial Reform Task Force
Pretrial Reform. The final report of the Task Force lists 19 recommendations in three categories — pretrial services; risk assessment; and data collection. Final Recommendations Report.
Pennsylvania Supreme Court
Prosecutors and Facebook. Prosecuting attorney suspended from the practice of law for one year and one day for improper ex parte contacts and for creating a fictitious Facebook account for the purpose of “liking” establishments suspected of selling illegal bath salts, so that her office could be alerted to events where the establishments provided free “samples,” which could be obtained and tested. Attorney encouraged staff to send “friend” requests from the fictitous Facebook account to criminal defendants and their family members. Facebook conduct violated RPC 8.4(c), 4.3(a), 4.3(c), 5.3(b), 5.3(c)(1) and 5.3(c)(2). Office of Disciplinary County v. Miller, No. 32 DB 2017 (Feb. 8, 2019).
WEEKLY ROUNDUP FOR FEBRUARY 15, 2019
Washington Supreme Court
Amendment of Charges. Plurality opinion. The principles for which there were at least five votes are (1) the Pelkey rule (109 Wn.2d 484 (1987)) that prohibits the State from amending charges after it rests to anything other than a lesser degree or lesser included offense is a bright line rule that requires a formal announcement from the State that it “rests its case,” (concurring and dissenting justices) and (2) CrR 2.1(d) is violated as the defendant is actually prejudiced when the State amends the information prior to resting and the amendment adds a new element that the defendant could not address in his voir dire, opening statement, or cross-examination of any of the State’s witnesses. (concurring and lead justices). State v. Gehrke, No. 95635-9 (Feb. 14, 2019). Lead opinion authored by Justice Wiggins and joined by Justices Madsen, Stephens, and Gordon McCloud. Concurring opinion authored by Chief Justice Fairhurst and joined by Justice Owens. Dissenting opinion authored by Justice González and joined by Justices Johnson and Yu.
DOSA. While a trial court can waive imposition of a sentence within the standard range, the trial court may not “waive” sentence enhancements or portions of the base sentence to get to a range that is low enough to accommodate the residential-based DOSA’s sentence-length prerequisites. If the base sentence range plus enhancements results in a midpoint of the standard range sentence that exceeds 24 months, the court may impose only a prison-based DOSA. State v. Yancy, No. 95992-7 (Feb. 14, 2019).
Division Three
Prosecuting Attorney Conflicts. When an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation. A prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest. The elected prosecuting attorney’s recusal from the case and lack of participation at any time during tenure as the prosecuting attorney is insufficient to allow the office to remain on the case. State v. Nickels, COA No. 35369-9-III (Feb. 7, 2019). Judge Korsmo dissented.
Restitution and Possession of Stolen Property. Restitution in possession of stolen property cases is limited to damage that the State can prove was caused by the defendant’s conduct. The State is not relieved of this burden simply because the property possessed by the defendant was stolen recently. State v. Romish, COA No. 35643-4-III (Feb. 7, 2019). Judge Korsmo dissented.
Legal Update for Washington State Law Enforcement
The January 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR FEBRUARY 8, 2019
Washington Supreme Court
Gunwall and Art. I, § 7. A Gunwall analysis is not required to justify an independent analysis of article I, section 7 in new contexts. It is not sufficient, however, “for parties to simply ‘mention our state constitution in their briefs’ and note that article I, section 7 is often more protective than the Fourth Amendment.” “Parties must provide argument and relevant authorities supporting the specific outcome they seek in light of ‘the constitutional text, the historical treatment of the interest at stake as reflected in relevant case law and statutes, and the current implications of recognizing or not recognizing an interest.’” State v. Mayfield, No. 95632-4 (Feb. 7, 2019).
Attenuation Doctrine. To comply with the heightened protections of article I, section 7, the attenuation doctrine must be narrow and apply only where intervening circumstances have genuinely severed the causal connection between official misconduct and the discovery of evidence.
We caution that the attenuation doctrine we adopt today must be narrowly and carefully applied. The State bears the burden of proving that the attenuation doctrine applies and that evidence is admissible despite a violation of article I, section 7. Armenia, 134 Wn.2d at 14. To meet its burden, the State must prove that unforeseen intervening circumstances genuinely severed the causal connection between official misconduct and the discovery of evidence. The State cannot meet its burden by merely showing that there are one or more additional proximate causes of the discovery of evidence. The question of whether intervening circumstances constitute a superseding cause is a highly fact-specific inquiry that must account for the totality of the circumstances, just as it is in the context of tort law. See Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254 (1975).
We also caution that the narrow attenuation doctrine we adopt today is entirely independent of the modem attenuation doctrine used by federal courts. As such, it is irrelevant to our state attenuation doctrine whether suppression in one case will deter similar misconduct in the future. It is also irrelevant whether the officer’s misconduct was merely negligent or was instead flagrant and purposeful. The only question is whether unforeseeable intervening actions genuinely severed the causal connection between official misconduct and the discovery of evidence.If not, then the attenuation doctrine does not apply, and the evidence must be excluded in accordance with article I, section 7 and our state exclusionary rule.
The newly adopted narrow state attenuation doctrine is not satisfied by an unlawfully detained suspect’s consent to search after Ferrier warnings. State v. Mayfield, No. 95632-4 (Feb. 7, 2019). Justice Johnson authored a concurring opinion.
This week the Court granted review in the following cases this week:
Persistent Offenders and Cruel Punishment. State v. Moretti, No. 95263-9. Grays Harbor County. “Granted on persistent offender sentence issue only.” Questions presented: (1) Does the Persistant Offender Accountability Act violate Article I, § 14, and the less-protective Eighth Amendment because it does not allow the sentencing court to consider the characteristics of the offender and his relative youth and culpability at the time of the commission of a predicate crime? (2) Should an additional factor be added to the Fain test: whether the sentence is proportional in light of the characteristics of the offender? (3) Whether automatic imposition of life without the possibility of parole based on a “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.
Persistent Offenders and Cruel Punishment. State v. Nguyen, No. 95510-7. King County. “Granted only as to the issue of whether the persistent offender sentence is cruel & unusual punishment.” Question presented: “Where Nguyen was only 20 years old when he committed one of the predicate offenses, did imposition of a life sentence constitute cruel punishment in violation of the federal and Washington constitutions?” COA opinion is unpublished. Petition for review pleadings available here.
Persistent Offenders and Cruel Punishment. State v. Orr, No. 96061-5. Spokane County. “Granted only as to the persistent offender issue.” Question presented: Whether automatic imposition of life without the possibility of parole based on a predicate “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.
Restitution. State v. Barbee, No. 96490-4. King County. “Granted only on the issue of whether the trial court had authority to enter a second restitution award.” Question presented: When an appellate court remands a case for resentencing may the court of appeals enter a new restitution order? COA opinion is unpublished. Petition for review pleadings available here.
Insurance Reimbursement. Group Health Cooperative v. Coon, No. 96516-1. COA opinion reported at 4 Wn. App. 2d 737 (2018). Petition for review pleadings available here.
Division One
Ex Post Facto and Community Custody. It violates the ex post facto clause to replace the variable term of community custody authorized by former RCW 9.94A.715(1) (2006), with the fixed term set by Laws of 2009, ch. 375, § 5. This is true even though the fixed term is the midpoint of the previously applicable variable range. In re Personal Restraint of Alston, COA No. 76497-7-I (Feb. 5, 2019).
WEEKLY ROUNDUP FOR FEBRUARY 1, 2019
Washington Supreme Court
Coroner Subpoena Power. A medical examiner or coroner (collectively “coroner”) must request a jury from the superior court before an inquest can begin. A coroner has the power to issue a subpoena only once he or she has requested a jury. who never begins an inquest does not have authority to issue a subpoena. Once an inquest is properly begun, the subpoena power granted by RCW 36.24.050 includes the power to bring a witness in to testify and the power to require a witness to bring physical items with him or her. A coroner may demand only that the witness bring the evidence to the inquest jury. The coroner is not entitled to summon the witness or the evidence to his or her office. BNSF Railway Company v. Clark, No. 95015-6 (Jan. 31, 2019).
Sexual Harassment and Employer Liability. Under the plain language of the Washington Law Against Discrimination, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation. Floeting v. Group Health Cooperative, No. 95205-1 (Jan. 31, 2019). Justices Madsen and Wiggins dissented.
Division Two
Early Release of “Juvenile Offenders.” Under RCW 9.94A.730(3), which allows an individual who has been sentenced under the Sentencing Reform Act for crimes committed prior to his/her eighteenth birthday to petition the Indeterminate Sentencing Review Board (ISRB) for release after 20 years of confinement, does not allow the ISRB to delay release and to impose pre-release conditions after it finds that an individual is not likely to reoffend. The offender in this case, however, is not now entitled to release because the ISRB subsequently found that he was likely to commit new criminal law violations based upon his subsequent conduct. In re Personal Restraint of Pugh, COA No. 50055-8-II (Jan. 29, 2019). Judge Lee dissented, contending that the offender was entitled to immediate release.
Division Three
Firearms and Terry Stops. The presence of a firearm in public is insufficient, standing alone, to support an investigatory stop. The presence of an individual openly carrying a handgun in a “high-risk setting,” is insufficient, standing alone, to support an investigatory stop. State v. Tarango, COA No. 35305-2-III (Jan. 31, 2019).
Police Department Policies and Local Initiatives. A local initiative may not be used to repeal an ordinance that codifies the city police department’s policy limiting questioning of individuals about immigration status and citizenship status. Global Neighborhood v. Respect Washington, COA No. 35528-4-III (Jan. 29, 2019).
Eleventh Circuit
Prosecutors and First Amendment Retaliation. A district attorney’s false statement made in retaliation for a former exonerated prisoner’s attempts to obtain legislative compensation for his wrongful convictions violated the prisoner’s First Amendment rights. The prisoner, however, is not entitled to compensation because the prisoner’s right to be free from retaliation under the First Amendment was not clearly established when the district attorney made the statement. Echols v. Lawton, No. 17-13843 (11th Cir. Jan. 25, 2019).
WEEKLY ROUNDUP FOR JANUARY 25, 2019
Division Two
“Free Crimes Aggravating Factor. The free crimes aggravator, RCW 9.94A.535(2)(c), applies when a defendant is charged with two current offenses and only one offense would go unpunished. State v. Smith, COA No. 50397-2-II (Jan. 23, 2019).
Public Records and Sex Offenders. Neither SSOSA or SSODA evaluations are exempt from disclosure. under the Uniform Health Care Information Act. Information in sex offender registration forms are not exempt under RCW 42.56.230(7)(a). RCW 42.56.230(7)(a) only exempts personal information that is actually submitted as part of an application for a driver’s license or identicard. RCW 4.24.550 is not an “other statute” that bars release of sex offender registration records. Juvenile records not found within the official juvenile court file are confidential under ch. 13.50 RCW and subject to the “other statute” exemption to the PRA. SSODA evaluations are exempt from disclosure under the “other statute” exemption as they are not part of the official juvenile court file. The Criminal Records Privacy Act does not mandate the release of juvenile SSODA records as the Act does not supplant ch. 13.50 RCW. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).
Public Records Act. An agency is not required to first identify an exemption to disclosure before providing third-party notification of a PRA request pursuant to RCW 42.56.520(2). An agency does not “deny” access to records until it finishes producing all responsive documents. Accordingly, a requester may not initiate a lawsuit to compel compliance with the PRA until after the agency finishes producing all responsive documents. An agency is not required to provide records by e-mail or “the cloud.” Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).
Pseudonyms. The superior court erred by allowing sex offender registration complain level 1 sex offenders to proceed as Does in their action to prevent disclosure of records under the Public Records Act (PRA), without first conducting an Ishikawa analysis. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).
Involuntary Commitment. A superior court is not required to consider voluntary treatment status when determining continued commitment under RCW 71.05.280. In re Detention of S.B., COA No. 50856-7-II (Jan. 23, 2019).
Ninth Circuit
Tribal Sovereign Immunity and Contracts. A tribe’s anticipatory defense of sovereign immunity to a state court lawsuit arising from a particular contract with the State of Washington, does not form a basis for federal question jurisdiction. Stillaguamish Tribe of Indians v. State of Washington, No. 17-35722 (9th Cir. Jan. 22, 2019).
WEEKLY ROUNDUP FOR JANUARY 18, 2019
Division Three
Signaling Turns. RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. A driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed. State v. Brown, COA No. 35304-4-III (Jan. 17, 2018). Chief Judge Lawrence-Berrey dissented.
Public Records Act. A requester need not initiate legal action in order to be a prevailing
party entitled to fees under RCW 42.56.550(4). The requester substantially prevailed against the County’s request to withhold attorney invoices in their entirety and on his claim that the County must submit its proposed redactions to the court when requested in camera review. Asotin County v. Eggleston, COA No. 35720-1-III (Jan. 17, 2019).
Law Enforcement Digest Online Training
The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is November 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.
Ninth Circuit
Vehicle Stops. Law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense. United States v. Landeros, No. 17-10217 (9th Cir. 2019).
WEEKLY ROUNDUP FOR JANUARY 11, 2019
United States Supreme Court
Qualified Immunity. The Ninth Circuit erred by applying a high level of generality to a question of qualified immunity. Rather than looking at the “right to be free of excessive force,” the court should have looked at whether clearly established law prohibited the officers from stopping and taking down a man in the specific circumstances presented in the case. Escondido v. Emmons, No. 17-1660 (Jan. 7, 2019).
Washington Supreme Court
Law of the Case Doctrine and Accomplice Liability. The State’s identification by name of the victim of the assault did not require the State to prove that the accomplice knew the names of all potential victims. All the State needed to prove was that the defendant had general knowledge of her coparticipant’s substantive crime. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).
Sealing of Appellate Court Briefs. The defendant’s motion to seal those portions of the briefing that contained argument regarding her financial circumstances and ability to pay appellate costs was properly denied as the defendant did not establish that failure to seal would result in a “serious and imminent threat” to her interest. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).
The Supreme Court granted review of the following cases this week:
Public Records. Hoffman v. Kittitas County, No. 96286-3. What impact should a finding of bad faith have upon the sanction imposed for a Public Records Act violation? COA decision reported at 4 Wn. App. 2d 489 (2018). Petition for review available here.
Identity Theft. State v. Cortes, No. 96397-5. Chelan County. In RCW 9.35.021(1), did the legislature intend the terms “means of identification” and “financial information” to create two alternative means of committing the crime of Identity Theft Second Degree? Are “owning,” “possessing,” and “control” alternative means of committing the crime of unlawful possession of a firearm? COA opinion reported at 5 Wn. App. 2d 86 (2018). Petition for review available here.
Community Custody. State v. Wallmuller, No. 96313-4. Mason County– State’s Petition. Whether a community custody condition prohibiting the defendant from loitering or frequenting “places where children congregate” is unconstitutionally vague. COA opinion reported at 4 Wn. App. 2d 698 (2018). Petition for review available here.
Jury Voir Dire and Murder Cases. State v. Pierce, No. 96344-4. King County– State’s Petition. “State’s petition for review granted; Pierce’s petition for review granted in part; consolidated with State of Washington v. Michael William Bienhoff, et al., Supreme Court number 96345-2″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.
Jury Voir Dire and Murder Cases. State v. Bienhoff, No. 96345-2. King County – State’s Petition. “Granted, consolidated with State of Washington v. Karl Emerson Pierce, et al., Supreme Court number 96344-4″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.
Timber Trespass and Agency. Porter & Zimmer v. Kirkendoll, No. 96214-6. COA opinion reported at 5 Wn. App. 2d 686 (2018). Petition for review available here.
Division Two
Civil Commitments and Involuntary Medication. A compelling state interest justified the involuntary administration of antipsychotics when doing so is likely to decrease the length of time a respondent will be detained for treatment. Sufficient evidence supported the order in this case as other alternatives would not address the symptoms of the respondent’s illness and would not enable to respondent to recover to the point where he could be discharged. In re Detention of B.M., COA No. 50699-8-II (Jan. 8, 2019). Judge Bjorgen dissented.
Legal Update for Washington State Law Enforcement
The December 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Ninth Circuit
Second Amendment and Non-Citizens. A statute prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority. United States v. Torres, No. 15-10492 (9th Cir. Jan. 9, 2019).
WEEKLY ROUNDUP FOR DECEMBER 28, 2018 & JANUARY 4, 2019
Washington Supreme Court
Ballot Title Challenges. Ballet title objections must be raised within 10 days of the public filing of that ballot title. A challenge asserting an alleged deficiency in the proposed levy lift language that was brought nearly 4 years after the ballot title at issue in this case is dismissed as untimely. End Prison Indus. Complex v. King County, No. 95307-4 (Dec. 27, 2018).
Reasonable Doubt Jury Instruction. The omission of the last sentence of WPIC 4.01, which states, “The defendant has no burden of proving that a reasonable doubt exists,” does not present a manifest constitutional error, which may be reviewed for the first time on appeal pursuant to RAP 2.5(a)(3). The Supreme Court mandated the use of WPIC 4.01 to promote uniformity and simplicity in defining a core concept of our justice system. The failure to instruct in the words of WPIC 4.01 is not a constitutional error. State v. Chacon, No. 95194-2 (Dec. 27, 2018). Justices González, Yu, Gordon McCloud and Fairhurst dissented.
Division One
County Liability and Oso Landslide. An action for damages predicated upon a county’s adoption of a flood control plan is barred by former RCW 86.12.037. An action for damages predicated upon a county’s involvement in the construction of a cribwall is barred by RCW 36.27.982, as a cribwall is a “fish enhancement project.” Slide victims cannot maintain a claim for damage to riparian rights where none of the slide victims own riparian rights. The county acted reasonably when it held a meeting to warn community members of the risk of future landslides and did not make promises that induced reliance on the part of the homeowners that caused them to refrain from seeking help elsewhere. The county’s act of distributing information at the community meeting did not expose the residents to the risk of the coming landslide. Regelbrugge v. Snohomish County, COA No. 76376-8-I (Dec. 31, 2018).
Division Two
Confrontation Clause and Data Extraction. The technician who performed the cell phone extraction was not a “witness” for purposes of the confrontation clause as this person made no comparison or conclusions from the extracted data. The Sixth Amendment right to confrontation was satisfied by the defendants’ ability to cross-examine the detective who drew conclusions from the extracted data. State v. Ramirez, COA No. 49245-8-II (Jan. 3, 2019).
Testimonial Hearsay and Sexual Assault Nurse Examiners. A deceased victim’s statements to a SANE nurse is testimonial hearsay under the primary purpose test. The admission of the statements at trial violated the confrontation clause. State v. Burke, COA No. 50053-1-II (Dec. 27, 2018).
Ineffective Assistance of Counsel and Plea Negotiations. Defense counsel’s provision of misinformation during the plea negotiation process of the potential sentence range the defendant faced if found guilty on all charges at trial amounted to ineffective assistance of counsel. The matter is remanded to the trial court with a requirement that the State reoffer the final 50-month plea offer, subject to the defendant’s and the court’s acceptance of a guilty plea. If either the court rejects the guilty plea or the defendant declines to plead guilty, the defendant’s trial conviction and sentence will stand. State v. Drath, COA No. 49403-5-II (Dec. 27, 2018). Judge Melnick dissented on the grounds that the defendant did not establish prejudice as she failed to show a reasonable probability that, but for counsel’s deficient representation, she would have accepted the State’s final plea offer.
Washington State Attorney General
Marijuana and Clean Air. Local clean air agencies have broad authority to enforce the Clean Air Act, even if the Department of Ecology has not set minimum standards. Local authorities may use state regulations as a minimum standard when regulating odors. A regional clean air agency must follow the procedures set forth in the Clean Air Act prior to any rulemaking or enforcement actions. No statute deprives local clean air agencies of their authority to enforce the Clean Air Act with respect to marijuana. AGO 2018 No. 10 (Dec. 26, 2018).
WEEKLY ROUNDUP FOR DECEMBER 21, 2018
Division One
Right to Impartial Jury. The trial court did not violate the represented defendant’s right to an impartial jury by not sua sponte dismissing a prospective juror for cause. While the juror admitted domestic violence was an emotional issue, the juror did not express unqualified statements expressing actual bias. The juror further assured both counsel that he could look at the case as instructed and based on the evidence despite his feelings that African American men are more prone to violence. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).
Smith Declarations. The victim’s sworn written statement to responding officers that the defendant choked her was properly admitted pursuant to ER 801(d)(1)(i). The victim’s testimony that she did not remember whether she was choked, kicked, or nearly thrown down the stairs was inconsistent with her prior statements. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).
No Contact Orders. The entry of a no contact order barring the defendant from any contact with the victim and his step-daughter did not make it impossible for the defendant to parent his own child. Although not having contact with the victim will make access to his child more difficult, the defendant can still have supervised visitation without the mother present. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).
Adoptive Admissions. The proponent of adoptive admissions must submit and the court must give an instruction to the jury that informs the jury that it cannot consider proposed adoptive admissions as evidence unless it finds under the circumstances that the defendant heard, understood, and acquiesced in the statements. In the instant case it was error to admit text messages as adoptive admissions. While the defendant received and responded to the text messages sent by the victim, he did not affirmatively agree with the accusatory text message statements she made. The defendant’s deflection–moving the discussion in another direction – is insufficient for a jury to conclude that the defendant acquiesced or acceded in the truth of the statements. It was error, therefore, to admit the statements pursuant to ER 801(d)(2)(ii). State v. Hill, COA No. 75947-7-I (Dec. 17, 2018).
Offender Scores. A non-comparable out-of-state conviction will not prevent washout of prior offenses under RCW 9.94A.525(2)(c). State v. Marquette, COA No. 77197-3-I (Dec. 17, 2018).
Felony DUI and Qualifying Prior Offenses. The existence of four (now three) or more prior DUI offenses within 10 years is an essential element of felony DUI, and must be proven beyond a reasonable doubt. Whether a prior conviction meets the statutory definition of prior offense contained in RCW 46.61.5055 is a threshold question of law to be decided by the trial court. Whether a reckless driving conviction involved alcohol is a threshold question for the court, not a question for the jury. The State’s presentation of certified copies of the original criminal complaint and the district court’s judgment and sentence was sufficient to allow the judge to determine that the reckless driving convictions involved alcohol. State v. Wu, COA No. 77045-4-I (Dec. 17, 2018). Justice Becker dissented. [Editor’s note: This opinion creates a split with Division Two. See State v. Mullen, 186 Wn. App. 321, 227 (2005).]
Division Two
Involuntary Commitment. A respondent may be gravely disabled under former RCW 71.50.020(17)(b), despite the lack of prior hospitalizations or law enforcement interventions. A respondent does not have a constitutional or statutory right to a less restrictive alternative placement. Thus, a respondent’s due process rights are not violated when the State does not submit its recommendation for outpatient treatment. In re Detention of D.W., COA No. 50817-6-II (Oct. 16, 2018, publication ordered Dec. 18, 2018).
Felony Firearm Offender. When the evidence at trial was that either a knife or a firearm was used in the commission of the second degree assault, a defendant may only be ordered to register as a felony firearm offender when the jury renders a special verdict finding that the weapon used was a firearm. State v. Rios, COA No. 50035-3-II (Dec. 18, 2018).
First Aggressor Instruction. The first aggressor jury instruction, WPIC 16.04, must be modified to advise the jury that words alone are not sufficient to make a defendant the first aggressor in an altercation. State v. Kee, COA No. 50203-8-II (Dec. 18, 2018).
Division Three
Time for Trial. Release from custody pursuant to the prosecuting attorney’s oral motion extended the time for trial deadline by an additional 30 days. The lack of a written motion filed at least five days before the court hearing does not render the release order invalid. State v. Maling, COA No. 35272-2-III (Dec. 18, 2018). Judge Fearing dissented.
Law Enforcement Digest Online Training
The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is October 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.
Ninth Circuit
Vehicle Impounds. Impounding vehicles of drivers who have never been issued a driver’s license for a period of 30-days when the drivers attempted to have friends with valid licenses take possession of the vehicle was unreasonable under the Fourth Amendment. Although the state’s interest in keeping drivers off the road provided a “community caretaking” exception to the Fourth Amendment, the application of the exception turns on the facts and circumstances of each case. Continued impoundment of these vehicles was not justified as a deterrence or penalty. Sandoval v. City of Santa Rosa, No. 16-16122 (9th Cir. Dec. 21, 2018).
WEEKLY ROUNDUP FOR DECEMBER 7, 2018 & DECEMBER 14, 2018
Washington Supreme Court
Double Jeopardy. Facts that increase the mandatory minimum and are subject to the Sixth Amendment’s right to trial by jury will also be subject to the Fifth Amendment’s double jeopardy clause. If a jury unanimously acquits a jury of an RCW 10.9.020 aggravating circumstances, the prohibition on double jeopardy bars retrial on those aggravating circumstances. State v. Allen, No. 95454-2 (Dec. 13, 2018).
Hydraulic Projects. The Department of Fish and Wildlife’s permitting authority over hydraulic projects includes projects above the ordinary high-water line that affect state waters. Spokane County v. State Department of Fish and Wildlife, No. 95029-6 (Dec. 6, 2018). Justice Gordon McCloud authored a concurring opinion which was joined by Justice Gonzàlez.
Division One
Insanity Acquittees. An order granting or denying an individual who was found not guilty of a crime by reason of insanity’s petition for final release pursuant to RCW 10.77.200 is appealable as a matter of right under RAP 2.2(a)(13). The order denying final release is affirmed as continued supervision is required for public safety due to the nature of the petitioner’s mental illness. State v. Coleman, COA No. 76851-4-I (Dec. 10, 2018).
Preliminary Appearances. CrRLJ 3.2.1 requires an individual who is subjected to a warrantless arrest and held in jail, to be brought before a judicial officer for a preliminary hearing the next court day following the arrest. The filing of a notice of disqualification does not waive a defendant’s right to a timely preliminary appearance hearing. Khandelwal v. Seattle Municipal Court, COA No. 78058-1-I (Dec. 3, 2018).
Early Release of “Juveniles.” Early release is presumptive under RCW 9.94A.730(3) unless the ISRB determines that the petitioner is more likely than not to reoffend. The ISRB abused its discretion by denying release to a woman who committed murder at age 15, who had no infractions since 2008 and whose psychological evaluation indicated she was a low risk to reoffend. In re Personal Restraint of Brashear, COA No. 77047-1-I (Dec. 3, 2018).
School Searches. Drugs found in a 14-year-old child’s backpack in a search conducted by the vice principal were suppressed because the search was not reasonable when the child was not a student of the school, the vice principal knew nothing about the child’s history or school record, there was no record of a drug problem at the school, and there was no exigency to conduct the search as police officers were already on their way to the school. State v. A.S., COA No. 76823-9-I (Dec. 3, 2018).
Division Two
Involuntary Commitment of Persons Incompetent to Stand Trial. The law does not provide mentally ill persons found incompetent to stand trial for felony charges the legal opportunity to become good faith voluntary patients. In re the Detention of P.P., COA No. 50773-1-II (Dec. 11, 2018).
Exceptional Sentences. The “substantially exceeds” aggravating factor, RCW 9.94A.535(3)(y), applies to a conviction for the crime of hit and run (injury). The jury’s finding by special verdict alone provides a sufficient basis on which to justify a defendant’s exceptional sentence. A trial court errs by making additional findings of fact in support of the exceptional sentence. State v. Perry, COA No. 49913-4-II (Dec. 11, 2018).
Aggravated First Degree Murder Sentences for “Juveniles.” A minimum term of 48 years was not supported by substantial evidence of “irreparable corruption, permanent incorrigibility, and irretrievable deparvity,” where the defendant’s last prison infraction occurred six years prior to the hearing to set the minimum term and did not exhibit a pattern related to the murder he committed. The court failed to meaningfully consider juveniles” underdeveloped executive brain functioning and the greater prospects for reform from a crime committed prior to a defendant’s eighteenth birthday. State v. Delbosque, COA No. 49792-1-II (Dec. 4, 2018).
Division Three
Public Trial. The public trial right does not apply to rulings excluding witnesses under ER 615. The public trial right does apply to motions in limine that are raised before testimony. A new trial is ordered because the chambers conference on the motion to exclude a witnesses’ testimony was not a de minimis violation of the public’s right to open courts. State v. Karas, COA No. 34899-7-III (Dec. 13, 2018). Judge Fearing dissented on the grounds that the public trial right extends to an ER 615 motion.
Public Records Act and Polygraphs. An individual’s action to enjoin disclosure under the Public Records Act (PRA), which consisted of a six-page pleading containing an ex parte motion requesting a TRO and eventual permanent injunction, a declaration of facts, and a memorandum of authorities, “substantially complied” with RCW 4.28.020’s statutory requirement of filing a complaint to vest the superior court with jurisdiction over the case. A polygraph report taken by peace officers as part of a pre-employment screening qualifies as “other related materials submitted with respect to an applicant” which is exempt under RCW 42.56.250(2). The police officer, however, is not entitled to enjoin dissemination of the record that the agency elected to disseminate in response to a PRA request as the redacted polygraph report discloses numerous instances of theft and dishonesty and the public has an interest in knowing whether a particular officer is law abiding. Sheats v. City of East Wenatchee, COA No. 35555-1-III (Dec. 11, 2018). [Editor’s note: Both the Wenatchee City Attorney’s Office and the Douglas County Prosecuting Attorney’s Office should be commended for their handling of potential impeachment evidence.]
Traffic Stops. RCW 46.61.670, which makes it a traffic infraction to operate a vehicle with one or more wheels off a designated roadway, affords no room for error. Even a minor, momentary violation meets the terms of the statute and can provide a basis for a traffic stop and imposition of an infraction. RCW 46.61.140(1) only applies in circumstances where a vehicle momentarily crosses from one lane of travel into a neighboring lane traveling the same direction. State v. Alvarez, COA No. 34711-7-III (Dec. 4, 2018). Judge Lawrence-Berrey dissented.
Public Trial. Defendant forfeited appellate review by expressly declining to seek a new trial after being advised of the factual basis for a public trial violation. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).
Attorney Withdrawal. A defendant’s absence from a hearing on defense counsel’s motion to withdraw is not per se reversible error. A defendant who is seeking relief due to his absence bears the burden of demonstrating the reason for the withdrawal motion and why his input might impact the court’s ruling on the motion. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).
Credit for Time Served. A defendant may not receive credit for time served for a community custody violation in a prior unrelated felony case upon conviction of a new felony case. Post Sentencing Petition of Allery, COA No. 35284-6-III (Oct. 16, 2018, publication ordered Dec. 4, 2018).
Washington State Attorney General
Mandatory Sick Leave. Employees who fall within the definition of “employee” for minimum wage purposes are entitled to paid sick leave under RCW 49.46.200-.210. The definition of “employee” is that contained in RCW 49.46.010(3). “Employee” does not include “Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature.” RCW 49.46.010(3)(l). Effective January 1, 2018, employees who had worked for the employer in question for at least 90 days became entitled to use sick leave. Under RCW 49.46.210 and WAC 296-128-620, employers are required to carry over up to 40 hours of unused paid sick leave during the following year, whether that leave is “front-loaded” or “accrued.” AGO 2018 No. 9 (Dec. 5, 2018).
Legal Update for Washington State Law Enforcement
The November 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR NOVEMBER 30, 2018
Washington Supreme Court
Retaliatory Discharge. An employee presents sufficient evidence to survive summary judgment in an action under the Washington Law Against Discrimination where by demonstrating that the employer “knew or suspected” the employee had previously been involved in a protected activity. An employer has actual knowledge that the employee engaged in an alleged protected action, i.e. filed a prior lawsuit, even though the employer does not know the substance of the prior lawsuit. The “knew or suspected” standard incorporates the actual knowledge standard and also encompasses cases in which the employer suspects that an employee engaged in protected action. This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion. Cornwell v. Microsoft Corp., No. 94846-1 (Nov. 29, 2018). Justice Gordon McCloud was the lone dissenter.
Division One
Unlawful Practice of Law. RCW 2.48.180(2)(a), which states that the unlawful practice of law occurs when a “nonlawyer practices law, or holds himself or herself out as entitled to practice law, is not unconstitutionally vague. RCW 2.48.180(2)(a) is a strict liability offense. Using GR 24 to define the practice of law in a jury instruction is not error. State v. Yishmael, COA No. 76802-6-I (Nov. 26, 2018).
Community Custody. RCW 9.94A.701(9) precludes a court from imposing a exceptional period of incarceration below the standard range so as to accommodate a mandatory term of community custody. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).
Duty to Register as a Sex Offender. Notice in a judgment and sentence as to termination of the duty to register as a sex offender should be consistent with RCW 9A.44.140(3), which does not require a court order to affirmatively relieve some sex offenders of the duty to register. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).
DNA Fee. The DNA collection fee may only be stricken when a defendant with prior convictions establishes that the State has already collected his DNA. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).
14-Day Involuntary Treatment Commitment Order. Former RCW 71.05.154 (2013) did not create an affirmative obligation for a designated mental health professional to consult with an emergency room physician before making the decision to detain a person, when there was no examining emergency room physician present or involved in the person’s care. In re Detention of C.A.C., COA No. 77173-6-I (Nov. 26, 2018).
Community Custody Conditions. A condition that bars the defendant from “associat[ing] with known users or sellers of illegal drugs” is not unconstitutionally vague. The condition only applies to persons who are known to the defendant to be users or sellers of illegal drugs and who are currently engaging in the activity. The phrase “illegal drugs” includes Marijuana which is still prohibited by federal law. In re Personal Restraint of Brettell, COA No. 76384-9-I (Nov. 19, 2018).
Division Two
Residential Burglary. The fact that nobody had leaved in a house for 15 months prior to the burglary, that the windows had been boarded up and the broken front door had been secured, and there was no evidence of a plan for someone to resume living in the residence at the time of the burglary, did not prevent the house from being a “dwelling.” Other factors supported a finding that the house constituted a dwelling included that the house had been used for lodging for almost 30 years, the house had never been used for anything other than lodging, the house was fully furnished with furniture in every room and appliances, and the owner of the house left clothing and personal belongings in the house. Finally, the owner, who was forced to leave because of age-related health problems, continued to regard the house as her abode. State v. Hall, COA No. 50543-6-II (Nov. 27, 2018).
Washington Attorney General
LEOFF Plan 1 Members and Medical Marijuana. A city or county disability board may permissibly reimburse LEOFF Plan 1 members for their authorized use of medical marijuana, if that use is properly authorized and if the board determines use of marijuana is medically necessary. The potential effect, if any, of a board’s reimbursement decision on city or county eligibility for federal funding depends on federal policy and the conditions of specific federal grants. AGO 2018 No. 8 (Nov. 21, 2018).
Municipal Research and Services Center (MRSC)
Gifts. Quick primer on the law regarding the acceptance of gifts by county employees. Paul Sullivan, Oh Boy! A Gift! (Nov. 26, 2018).
WEEKLY ROUNDUP FOR NOVEMBER 23, 2018
Washington Supreme Court
Gross Negligence. “To survive summary judgment in a gross negligence case, a plaintiff must provide substantial evidence of serious negligence. In determining whether the plaintiff has provided substantial evidence, the court must look at all the evidence before it, evidence that includes both what the defendant failed to do and what the defendant did. If a review of all the evidence suggests that reasonable minds could differ on whether the defendant may have failed to exercise slight care, then the court must deny the motion for summary judgment. But if a review of all the evidence reveals that the defendant exercised slight care, and reasonable minds could not differ on this point, then the court must grant the motion.” Applying this test, summary judgement was properly granted to DOC in a failure to supervise case. DOC did not act with gross negligence in a case in which a defendant, who was subject to supervision, murdered his long-time girlfriend 15 days after he was released from prison. DOC reasonably relied upon the girlfriend’s explicit assurances that she was not in a relationship with the defendant, that she was moving to a place where he could not fine her, and that she would call the police if she saw them. The defendant’s mother had also verified in writing that the defendant was sleeping at her home. Harper v. State, No. 95511-5 (Nov. 21, 2018).
Division Two
Self-Incrimination. Article I, section 9 provides the same protection as the Fifth Amendment. Neither a corporation nor corporate officers acting on behalf of the corporation are protected by the constitutional privilege against self-incrimination. The same rule applies to a limited liability company. An individual must invoke the protections of the Fifth Amendment as to specific topics or on a question-by-question basis, blanket assertions of privilege are insufficient. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).
Civil Investigative Demand. A civil investigative demand (“CID”) issued and served pursuant to RCW 19.86.110 is not an unconstitutional intrusion into private affairs without authority of law. A corporation’s business records are not “private affairs” for purposes of article I, section 7. A CID is not an unreasonable search under the Fourth Amendment. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018). Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).
Article I, Section 7. The protections of article I, section 7 are not limited to Washington citizens. The constitutional guarantee extends to all persons within the state of Washington. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).
Other
Controlled Substance Homicides. Newly created Drug-Induced Homicide Defense Toolkit is available to the public. Worth viewing when making charging decisions and other discretionary decisions in these cases. Health in Justice Action Lab, Northeastern University School of Law, Drug Induced Homicide Defense Toolkit (Preliminary Version Oct. 12, 2018). Most current version will be available here.
WEEKLY ROUNDUP FOR NOVEMBER 16, 2018
Division One
Felony Traffic Sentencing. While prior serious traffic offenses are excluded from calculation of the offender score for vehicular homicide, they are properly included in the offender score calculation for felony hit-and-run. The 24-month vehicular homicide enhancements are added to the standard sentence range for vehicular homicide, not to the standard sentence range for any other current offense. In re Personal Restraint of Raymundo, COA No. 73998-1-I (Nov. 13, 2018).
Division Two
Pre-Trial Restraint. A trial court’s failure to make an individualized determination on the necessity of pretrial restraints violates a defendant’s due process rights. State v. Lundstrom, COA No. 49709-3-II (Nov. 15, 2018).
Division Three
Competency to Stand Trial. A court must continue to monitor the mental health of the accused and must order another mental health evaluation if, subsequent to a jury finding that the accused is competent to stand trial, a substantial change in circumstances raises a reasonable doubt as to the accused’s competency. State v. McCarthy, COA No. 34859-8-III (Nov. 15, 2018). Judge Siddoway dissented.
“Wash-Out.” Incarceration for willfully failing to pay legal financial obligations will not prevent a prior offense from washing out for purposes of calculating the offender score. Such detention is not pursuant to a felony conviction. State v. Schwartz, COA No. 35171-8-III (Nov. 15, 2018). [Editor’s Note: Division Three’s decision is inconsistent with Division One’s holding in State v. Mehrabian, 175 Wn. App. 678, review denied, 178 Wn.2d 1022 (2013).]
Legal Update for Washington State Law Enforcement
The October 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Florida Supreme Court
Will You Be My Friend. An allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. Law Offices of Herssein and Herssein, P.A., v. United States Automobile Association, No. SC17-1848 (Fla. Nov. 15, 2018).
WEEKLY ROUNDUP FOR NOVEMBER 9, 2018
United States Supreme Court
Age Discrimination in Employment Act. The federal Age Discrimination in Employment Act applies to all state and local governments, regardless of how many employees they have. Mount Lemmon Fire Dist. v. Guido, No. 17-587 (Nov. 6, 2018).
Washington Supreme Court
Expiration of Prison Sentence. When a defendant receives consecutive SRA sentences, DOC has the authority to hold the defendant in custody up to the sum of the multiple terms– i.e. three consecutive, 114-month terms, allow DOC to hold a defendant in custody up to 342 months. Personal Restraint of Gronquist, No. 94971-9 (Nov. 8, 2018).
Competency Restoration. The defendant’s due process rights were violated when he was detained in the county jail for 76 days before his admission to Washington State Hospital for competency restoration treatment. Dismissal of charges with prejudice for this violation of the defendant’s due process rights is not warranted. State v. Hand, No. 94902-6 (Nov. 8, 2018). Justices Madsen and Stephens would, if timely asserted by the defendant, apply the Sixth Amendment speedy trial analysis to any delay in the start of competency restoration treatment.
Privacy Right to Medical Records. The Uniform Health Care Information Act, chapter 70.02 RCW, does not carve out a duty to non-health-care providers to protect the privacy of a patient’s health care information. The Department of Correction was not required to obtain authorization from an inmate before removing and reviewing medical records that were in the inmate’s cell. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Search Warrants. A search warrant must be supported by probable cause that evidence of the crime can be found at the place to be searched. “Evidence of the crime” is not limited to evidence proving a crime was committed. “Evidence of the crime” can relate to evidence that is relevant to sentencing and/or to a defendant’s ability to form the mens rea of the crime. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Particularity Requirement. A search warrant that authorized the search and seizure of the prison’s inmate property and storage room, the prison’s administration building, as well as any ant all records for an inmate, which was accompanied by the search warrant affidavit that was both physically attached and incorporated by reference, authorized the search of a medical records room located in the prison and adequately described the items to be seized. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
CrR 3.1. Statements made by a defendant prior to being charged with a crime were not subject to suppression for an alleged violation of CrR 3.1. Defendant was placed into contact with an attorney at 9:00 a.m., the morning following his 9:00 p.m. arrest for murdering a prison guard. The delay in putting the defendant into contact with an attorney was justified because (1) detectives
needed to obtain a search warrant, (2) there was a risk to prison security and the lockdown of other inmates, (3) there was concern for the safety of the defendant, and (4) restrictions were placed on the facility due to the lockdown. Any alleged violation, moreover, was harmless as the defendant provided a videotaped statement after he met with two attorneys who both advised him to not speak to the police. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Jail Detention. A defendant, who was detained at the Snohomish County Jail, following his arrest for the murder of a prison guard, in the absence of a contract between the Department of Corrections and Snohomish County in violation of RCW 72.68.050, is not entitled to the suppression of statements made while housed at the jail. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
CrR 3.2.1(d)(1). While CrR 3.2.1(d)(1) requires that a person be brought before a judge “as soon as practicable” following a warrantless arrest, does not support overruling State v. Hoffman, 64 Wn.2d 445 (1964), which makes any unnecessary delay in the preliminary appearance one factor to consider when determining whether a confession is involuntary, rather than an automatic basis for excluding statements. Custody for purposes of Miranda does not establish “detention” for purposes of CrR 3.2.1. The defendant, who was already in prison serving a life sentence for another crime, was not detained for purposes of CrR 3.2.1 until he was booked for the murder of Officer Biendl. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Voluntariness of Confessions. The defendant’s videotaped statements were not rendered involuntary by the harsh conditions of solitary confinement that the defendant was subjected to following the murder of prison Officer Biendl. The defendant was repeatedly advised of his Miranda rights, met with attorneys twice before his first interview with police, met with an attorney before his third interview, was calm and cooperative, selectively answered questions, and confessed because of the intolerable guilt arising from his actions. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
ER 403. An objection that evidence is not relevant is insufficient to preserve a claim that the trial court should have excluded the evidence on ER 403 grounds of unfair prejudice, confusion of issues, or misleading the jury. A trial court is only required to conduct an ER 401 analysis to a relevancy objection. A trial court is not also required to conduct an ER 403 analysis when a party asserts a relevancy objection. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Opinion as to Guilt. A detective’s out-of-court questions to the defendant and their answers were properly admitted at trial. Neither of the post-Miranda-waiver questions– what the defendant would say of Officer Biendl’s death if she could hear him now and whether the defendant was sorry that Officer Biendl was dead – went to the defendant’s state of mind and were not unduly prejudicial. The detective’s reference to “the murder” was also not substantially prejudicial. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Exercise of Constitutional Rights. While the State may not draw adverse inferences on a defendant’s exercise of his constitutional rights, statements of a defendant regarding his desire for a speedy resolution of murder charges were properly admitted to demonstrate the defendant’s reasoning for speaking with the police and that his statements were voluntary and credible. It was also not error to admit the defendant’s statements that he was disregarding his attorney’s advice by speaking with the detectives. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Jury Selection. The prosecuting attorney did not violate the prohibition upon private communications between prosecutors and jurors, when during voir dire, he smiled at the jurors, made eye contact with the jurors, and thanked the excused jurors for their service. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Premeditation. The trial court did not err by utilizing WPIC 26.01.01 instead of the deffendant’s proposed premeditation instruction. The prosecuting attorney did not conflate intent to kill with premeditation in his closing arguments. State v. Scherf, No. 88906-6 (Nov. 8, 2018).
Division One
Duress. Duress is not a defense to the aggravating factors of robbery and kidnapping when the charge is aggravated first degree murder. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).
Closing Argument. The prosecutor erred by inviting the jury to imagine what the victim was thinking and feeling in the hours before her murder. The prosecutor also erred by telling the jurors that duress is not a defense to murder and by defining duress for them after the trial court refused to instruct the jury on duress regarding the aggravating factors and because the defense did not argue that the defendant should be acquitted because he killed the victim out of fear of a co-participant. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).
Juror Issues. The bailiff did not violate CrR 6.15(f)(1) by separating a juror who communicated safety concerns from the other jurors and after discerning the nature of the juror’s distress, promptly notified the court and counsel of the juror’s concerns. The defendant’s right to a public trial was not violated by the bailiff’s initial out-of-court communications with the juror where the juror’s safety concerns were promptly referred to the court and all subsequent discussion of the juror’s safety concerns occurred in open court in the presence of the defendant. The dismissal of the juror, who suffered a heart attack and who could not return for deliberations did not violate the defendant’s right to a unanimous jury. A juror’s statement after hearing the medical examiner’s testimony and prior to the start of deliberations that “I hope they fry the fucking bastard,” inheres in the verdict and will not support a motion for a new trial. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).
Autopsy Photos. The trial court did not abuse its discretion by admitting 15 of 100 autopsy photographs over the objection of the defendant. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).
Pro Se Defendants. The trial court did not abuse its discretion by denying the defendant’s multiple requests for standby counsel. A pro se defendant, who was removed from court following disruptive conduct and the defendant’s statement that “You can hold your trial without me,” did not voluntarily absent himself from the trial. Questioning witnesses after the defendant was removed from the courtroom violated the defendant’s right to representation. The trial court should have appointed counsel to question the witnesses’ in the defendant’s absence, recessed to give the defendant time to calm down, have the defendant attend trial via video conference or provide the defendant with a recording of the missed testimony and allow the defendant the opportunity to cross-examine the witness, or restrained the defendant in the courtroom. State v. Davis, COA No. 76806-9-I (Nov. 5, 2018).
Division Two
Community Custody. Attempted failure to register as a sex offender is not a sex offense for which community custody is authorized. In re Postsentence Review of Thompson, COA No. 50767-6-II (Nov. 6, 2018).
Ninth Circuit
Confrontation Clause and Physical Confrontation. Testimony from victim from her hospital bed in Minnesota via two-way video violated the defendant’s Sixth Amendment right to confrontation. The victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition, so a continuance of the trial was a more appropriate solution. Testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness. United States v. Carter, No. 16-50271 (9th Cir. Nov. 2, 2018).
Fifth Amendment and Subpoenas. A record custodian for a collective entity, even a small, closely-held entity, may not invoke his Fifth Amendment privilege against self-incrimination to resist producing the collective entities’ documents. In re Twelve Grand Jury Subpoenas, No. 17-17213 (9th Cir. Nov. 8, 2018). [Editor’s note: This decision should apply equally to subpoenas issued in Chapter 10.27 and 10.29 RCW proceedings.]
WEEKLY ROUNDUP FOR NOVEMBER 2, 2018
Washington Supreme Court
Batson. The third step of a Batson challenge to a peremptory strike of a juror in Washington is modified. At the final step, the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted. The State’s use of a peremptory strike against the only remaining African-American jury based upon the juror’s statements that voir dire was a “waste of time”, his specific knowledge of the move 12 Angry Men, and his brining outside evidence into jury deliberations as a juror in a previous trial violates this new test as the juror’s statements were not that different from answers provided by jurors who were not subject to peremptory strikes. State v. Jefferson, No. 84853-4 (Nov. 1, 2018). Justices Yu and González concurred with the lead opinion but she “remain(s0) convinced that nothing short of complete abolishment of the peremptory challenge, coupled with further development of our “for cause” challenge jurisprudence, will get us on the right path toward finally eradicating racial bias in jury selection.” Justices Madsen, Johnson and Stephens objected on the grounds that GR 37 was never meant to be a constitutional rule backed by constitutional protections.
Certificate of Discharge. The effective date for the issuance of a certificate of discharge for an offender who is not under Department of Corrections custody is the date the offender completed all the terms of the sentence, rather than the date the court received notice that the offender completed all terms of the sentence. State v. Hubbard, No. 95012-1 (Nov. 1, 2018).
The Washington Supreme Court granted review of the following cases this week:
Concealed Pistol License. Barr v. Snohomish County Sheriff, No. 96072-1. Snohomish County–County’s Petition for Review. Questions presented: (1) May an individual convicted of a Class A felony as a juvenile use RCW 13.50.260 as an alternative mechanism to judicially restore his/her firearm rights, thereby avoiding the restoration prohibition stated in RCW 9.41.040? (2) Does RCW 9.41.070 require a law enforcement agency to issue a Concealed Pistol License to an individual with a Class A felony that has been sealed pursuant to RCW 13.50.260? COA opinion reported at 4 Wn. App. 2d 85 (2018). Appellate court pleadings available here.
Impound Inventories. State v. Peck, No. 96069-1 and State v. Tellvik, No. 96073-9. Kittitas County – State’s Petition for Review. Question presented: Whether the contents of a zippered CD case located in a stolen vehicle in the course of an inventory search were obtained in violation of article 1, section 7, when neither occupant of the stolen truck asserted any possessory interest in the CD case. COA opinions are unpublished – Peck and Tellvik . Appellate court pleadings available here.
Double Jeopardy and Cell Phone “Ping.” State v. Muhammad, No. 96090-9. Asotin County. Questions presented: Whether the warrantless search of transmissions between a cell phone and cell towers to obtain real-time location information was justified by exigent circumstances. Whether the exclusionary rule applies to the search of the vehicle, where the search of the car was independently authorized by a search warrant supported by probable cause and any connection between the “ping” and the search of the vehicle was sufficiently attenuated to dissipate any taint.. Whether entry of convictions and sentences for rape and felony murder predicated upon the same rape violates double jeopardy or merger. COA opinion reported at 4 Wn. App. 2d 31 (2018). Appellate court pleadings available here.
Home Financing. Wash. State Housing Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., No. 96063-1. Questions presented: Whether the Washington State Housing Finance Commission has standing to bring a declaratory judgment action to prohibit a California non-profit from engaging in mortgage finance activities in Washington. Whether the California non-profit may lawfully engage in mortgage finance activities in Washington. COA opinion is unpublished. Appellate court pleadings available here.
Division One
Fellow Officer and Warrantless Arrests. Under the post-State v. Bravo Ortega, 177 Wn.2d 116 (2013), amendment to RCW 10.31.100, the fellow officer rule applies to arrests for non-felony offenses. The plain language or RCW 10.31.100(1), moreover, allows for application of the fellow officer rule to arrests for select non-felony offenses, including theft. State v. Perez, No. 76902-2-I (Oct. 29, 2018).
Ninth Circuit
“Ruse” Warrantless Entries. A “ruse” entry is when a known government agent misrepresents his purpose in seeking entry. An officer’s warrantless entry into a home via a ruse such as by asking the homeowner for assistance in a fictitious criminal investigation, violates the Fourth Amendment. Whalen v. McMullen, No. 17-35267 (9th Cir. Oct. 31, 2018).
WEEKLY ROUNDUP FOR OCTOBER 26, 2018
Division One
Involuntary Commitments. A court may dismiss a meritorious petition for involuntary commitment for a person who, as a result of a mental disorder, “presents a likelihood of serious harm, or is gravely disabled.” A nonlicensed facilities provision of treatment under a single bed certification that is not specific to the detained person and that fails to include a description of why the detained person being committed can receive appropriate mental health treatment as the facility will not require the reversal of a 14-day commitment order as it is not a total disregard of the involuntary treatment act requirements. In re Detention of C.V., COA No. 77057-8-I (Oct. 22, 2018).
Division Three
Eyewitness Identification. Defense counsel must assert an ER 403 objection that a witness’s identification of the defendant is more prejudicial than probative due to its unreliability to preserve the issue on appeal. RAP 2.5(a)(3) does not all the claim to be raised for the first time on appeal as the error is not manifest and the claims regarding suggestiveness rely upon empirical studies or law enforcement policies that were not offered in the trial court and law enforcement was never questioned about their reasoning for engaging in two pretrial identification interviews and for not using a double-blind procedure. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).
Historic Cell Site Analysis. An FBI special agent’s cell site analysis was admissible under Frye and ER 702. The fact that the agent used propriety software to map out cell tower strengths did not cause her testimony to fall outside of Frye. The agent’s testimony was helpful to the jury as she made the jury aware of the imprecision of cell site information. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).
Ineffective Assistance of Counsel. Defense counsel’s failure to ask the trial court to instruct the jury to review the self-defense instruction when the deliberating jury sent two questions to the judge which showed that the jury did not understand the law of self-defense, was prejudicially deficient performance that requires a reversal of the defendant’s first degree assault with a deadly weapon conviction. State v. Backemeyer, COA No. 35218-8-III (Oct. 23, 2018). Judge Korsmo dissented.
American Bar Association
Lawyers’ Obligations After and Electronic Data Breach or Cyberattack. “Model Rule 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Model Rules 1.1, 1.6, 5.1 and 5.3, as amended in 2012, address the risks that accompany the benefits of the use of technology by lawyers. When a data breach occurs involving, or having a substantial likelihood of involving, material client information, lawyers have a duty to notify clients of the breach and to take other reasonable steps consistent with their obligations under these Model Rules.” Formal Opinion 483 (Oct. 17, 2018).
WEEKLY ROUNDUP FOR OCTOBER 19, 2018
Washington Supreme Court
Cruel Punishment. Adopting a new “categorical bar analysis” for sentencing challenges, the Court holds that sentencing an individual to life without parole or early release for aggravated first degree murders committed prior to their eighteenth birthday is unconstitutional under article I, section 14 of the Washington Constitution. State v. Bassett, No. 94556-0 (Oct. 18, 2018). Justice Stephens authored the dissenting opinion which was joined by Justices Johnson, Madsen and Chief Justice Fairhurst.
Division Three
Unlawful Redemption of Food Stamp Benefits. RCW 9.91.144, which makes it a class C felony to redeem food stamps in violation of 7 U.S.C. sec. 2024(c) or RCW 74.04.500, applies only to merchants and others who seek reimbursement by the government for food stamp benefits previously used by a consumer. A person who improperly uses another person’s benefits to purchase food at a grocery store does not fall within the statute’s ambit. State v. Gray, COA No. 35357-5-III (Oct. 16, 2018).
WEEKLY ROUNDUP FOR OCTOBER 12, 2018
Washington Supreme Court
Death Penalty. Washington’s death penalty is invalid because it is imposed in an arbitrary and racially biased manner. Because the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant, the death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution. In reaching this conclusion, the Court did “not decide whether the prior cases [upholding the constitutionality of the death penalty] were incorrect and harmful at the time they were decided” because the scope of article I, section 14 “is not static.” The Court’s conclusion “that race has a meaningful impact on imposition of the death penalty” was made “by way of legal analysis, not pure science.” The Court leaves open the possibility that the legislature may enact a carefully drafted statute that will pass constitutional muster, stating that “[T]o hold that the death penalty is per se unconstitutional would be to substitute our moral judgment for that of the people of Washington.” State v. Gregory, No. 88086-7 (Oct. 11, 2018). Justices Johnson, Owens, Stephens and Madsen concurred, asserting that additional state constitutional principles compel the majority’s decision.
Law of the Case Doctrine. The law of the case doctrine prohibits reconsideration of alleged guilt phase errors where the remand following the first appeal was solely for the purpose of conducting a new penalty phase hearing. State v. Gregory, No. 88086-7 (Oct. 11, 2018).
LUPA and Building Permit Processing Fees. The imposition of a permit application fee falls under the statutory definition of a land use decision under chapter 36.70C RCW. Hence, LUPA applies when parties are challenging, as excessive, permit application fees assessed when a building or a land use permit application is submitted for processing. Community Treasures v. San Juan County, No. 94463-6 (Oct. 11, 2018).
Division One
DOSA. The provisions of RCW 9.94A.664(4), which allows imposition of total confinement equal to one-half the midpoint of the standard range of the underlying sentence as a sanction when the recipient of a residential drug offender sentencing alternative fails to comply with the terms of her judgment and sentence, does not apply to an offender who fails to report to residential treatment. A court may impose a term of incarceration anywhere within the standard range upon an offender who fails to report to residential treatment. State v. Church, COA No. 76573-6-I (Oct. 8, 2018).
Improper Court Filings. CR 11 sanctions were properly levied upon a lawyer who filed documents with the court to help facilitate the media’s access to them.
The court file is not a bulletin board for attorneys to post information for the press. Neither is it an archive for communications between lawyers. It exists so attorneys may provide the court with documents relevant to the proceedings pending before it so that the court can consider this information when resolving a request for relief. Attorneys may communicate with the press through a number of avenues. But the court file does not exist for the purpose of facilitating this communication.
Heckard v. Murray, COA No. 77019-5-I (Oct. 8, 2018).
Indeterminate Sentence Review Board. Under the plain language of RCW 9.95.115, the IRSB is not prohibited from releasing a person on parole unless the person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. A prefiling forensic psychological evaluation does not mean a person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. In re the Personal Restraint of Parejo, COA No. 76256-7-I (Oct. 8, 2018).
Division Two
Sexually Violent Predators. The trial court’s instructions on “adequately protect the community” which stated that “to establish that the respondent’s less restrictive alternative placement should not be granted, the State must prove one of the following beyond a reasonable doubt:. . .(2) That the proposed less restrictive alternative placement plan does not include conditions that will adequately protect the community” and that the community protection factor did not require “that all risk be removed,” were sufficient. In re Detention of Urlacher, COA No. 49781-6-II (July 3, 2018, publication ordered Oct. 9, 2018).
Ninth Circuit
Tribal Forfeiture of Non-Member’s Vehicle. Tribal jurisdiction is colorable, requiring the exhaustion of tribal remedies, where the non-member, immediately after leaving the casino was found with several containers of marijuana in his truck. Although the vehicle was stopped on a Washington state road, one can logically conclude that the forfeiture was a response to his unlawful possession of marijuana while on tribal land. Wilson v. Horton’s Towing, No. 16-35320 (9th Cir. Oct. 9, 2018). [Editor’s Note: Footnote 6 of the opinion questions tribal authority to issue a non-criminal/civil traffic infraction to nonmembers or events occurring on state roads located within reservation lands.]
WEEKLY ROUNDUP FOR SEPTEMBER 28, 2018 & OCTOBER 5, 2018
Washington Supreme Court
“Notice of Protest” Provisions. A contractor’s suit against the city for breach of implied covenant of good faith and fair dealing was barred by the contractor’s failure to file a written notice protecting the written orders on which the claim of breach was based. Mike M. Johnson, which held that such written notice is mandatory and that actual notice does not apply, applies to claims for expectancy and consequential damages. Nova Contracting, Inc. v. City of Olympia, No. 94711-2 (Sep. 27, 2018).
Dependencies. The Washington constitution does not require that all children be appointed counsel at all stages of the dependency proceedings. Confidential juvenile court records remain sealed and confidential on appeal. In re the Dependency of E.H., No. 94798-8 (Oct. 4, 2018). Lead opinion signed by Justices Owens, Fairhurst, Wiggins and Johnson. Justices Stephens and Gordon McCloud dissented as to the decision to seal the record. Justices Yu and González dissented on the counsel issue.
On October 2, 2018, the Court accepted review of the following cases:
DOSA. State v. Yancey, No. 95992-7. Government’s Petition, Franklin County, Teresa Chen. Questions presented: Who is eligible for a DOSA? May a sentencing enhancement be ignored in order to render someone eligible for a DOSA? COA opinion reported at 3 Wn. App. 2d 735 (2018). Appellate court pleadings available here.
Remedy for Illegal Search. State v. McKee, No. 96035-6. Government’s Petition, Skagit County, Erik Pedersen. Question presented: Whether dismissal of charges based upon an illegal search warrant is impermissible when there has been no finding that insufficient admissible evidence remains following suppression. COA opinion reported at 3 Wn. App. 2d 11 (2018). Appellate court pleadings available here.
Miller. State v. Gilbert, No. 95814-9. Klickitat County– David Quesnel. Questions presented: Whether imposition of consecutive sentences for multiple murder counts violate Miller and its progeny. Whether RCW 9.94A.730(1), which allows for early release of defendants who were sentenced for crimes committed prior to their eighteenth birthday violates a defendant’s due process and Eighth Amendment rights. Whether a sentencing court may consider RCW 9.94A.730(1) when imposing sentence. COA opinion is unpublished. Appellate court pleadings available here.
Division One
Sexually Violent Predator. In an unconditional release trial, a detainee’s antisocial personality disorder and alcohol abuse disorder are relevant risk factors that a jury may consider in determining whether it is likely the detainee will commit predatory acts of sexual violence unless confined to a secure facility. In re Detention of Harell, COA No. 76137-4-I (Aug. 6, 2018, publication ordered Sep. 18, 2018).
Division Two
Bail. While the trial court did not abuse its discretion by concluding that there was a substantial danger that the defendant would commit a violent crime if released on his own recognizance, the court erred by requiring $1,000 bail without making any findings that less restrictive conditions would assure the safety of the community. CrR 3.2(d)(6) requires the court to make oral or written findings that the imposition of other conditions, without bail, would be insufficient to reasonably assure the safety of the community. State v. Huckins, COA No. 50091-4-II (Sep. 25, 2018). [Editor’s Note: Because the court reversed based upon the court rule, it did not reach the defendant’s claim that it violates the constitution for a court to order bail he could not afford. The Washington Supreme Court rejected an article I, section 14 challenge to bail on this ground in 1910. See Ex Parte Rainey, 59 Wash. 529, 110 P. 7 (1910) (bail of $5000 imposed upon a laboring man accused of a common felony is not so unreasonable or excessive in amount as to require reduction). The $5000 bail set in Rainey, adjusted for inflation, would be more than $123,000. See Inflation Calculator available at http://www.usinflationcalculator.com/. ]
Jury Misconduct. The trial court did not abuse its discretion in denying a motion for new trial based upon a juror’s mid-deliberation research on the definition of “premeditation,” where the juror did not share the fruits of her research with the other members of the jury and the definitions the juror located where consistent with the law and the court’s own instruction. State v. Arndt, COA No. 50118-0-II (Sep. 25, 2018). Judge Maxa dissented.
Competency to Stand Trial. A trial court may not proceed with a trial when it becomes apparent that the defendant’s mental state has deteriorated to the point where the defendant is no longer competent. If a question arises regarding a defendant’s continued competency, the trial court must suspend the trial and order a competency evaluation. State v. Fedoruk, COA No. 49975-4-II (Jun. 26, 2018, publication ordered Sep. 25, 2018).
Division Three
Jurisdiction Over DUIs. A city’s adoption of RCW 46.61.502 does not deprive the county district court of jurisdiction over DUIs committed within the city. State v. Taylor, COA No. 35461-0-III (Oct. 2, 2018).
Capacity. RCW 9A.04.050, the capacity statute, does not deprive a court of jurisdictional authority to act. A 2017 CrR 7.8 motion to vacate a 1996 conviction for child molestation on the grounds that the court lacked jurisdiction because it did not first determine that the defendant had the capacity to commit the crime when he was 10-years-old was properly denied. State v. Kassner, COA No. 35628-1-III (Oct. 2, 2018).
Manifest Injustice Disposition. The trial court properly imposed a manifest injustice disposition of 27-36 weeks for theft in the third degree solely for the reason that it would benefit the juvenile to receive the services she needed. It was not error for the judge to consider the juvenile’s behavior during the dependency. State v. F.T., COA No. 35524-1-III (Sep. 25, 2018).
Public Records Act. RCW 70.48.100 shields disclosure of phone conversation recording of jail inmates and records relating to the recordings from Public Records Act requests. The exemption extends to jail records that have been forwarded to other government agencies, including the prosecuting attorney’s office. Zabala v. Okanogan County, COA No. 34961-6-III (Oct. 2, 2018) (replacing the April 3, 2018, opinion in this case).
Legal Update for Washington State Law Enforcement
The September 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
Ninth Circuit
First Amendment and Bus Advertisements. The county’s bus advertising program is a nonpublic forum. A county may reject factually inaccurate ads because the First Amendment does not require it to display patently false content in a nonpublic forum. The county’s disparagement standard for rejecting ads impermissibly discriminates, on its face, on the basis of viewpoint. The county’s disruption standard is facially valid but was unreasonably applied in this case. American Freedom Defense Initiative v. King County, No. 17-35897 (9th Cir. Sep. 27, 2018).
United States District Court, Western District of Washington
Taxes in Indian Country. Both the State of Washington and Snohomish County may collect retail sales and use tax, business and occupation tax, and personal property tax from non-Indian owned businesses located at Quil Ceda Villate, a municipality located on Tulalip tribal land. The collection of such taxes does not impose on Tulalip’s tribal sovereignty and is not preempted by operation of federal law. Tulalip Tribes v. State of Washington, No. 15-CV-940 BJR (Oct. 4, 2018).
American Bar Association
Ethical Obligations Related to Disasters. “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.” ABA Formal Opinion No. 482 (Sep. 19, 2018). [Editor’s note: The Vermont Bar Association offers a number of resources for disaster planning. I did not find comparable materials on the WSBA website.]
WEEKLY ROUNDUP FOR SEPTEMBER 21, 2018
Washington Supreme Court
Legal Financial Obligations. The court’s inquiry into ability to pay must include consideration of the mandatory factors set forth in Blazina, including the defendant’s incarceration and other debts, and the court rule GR 34 criteria for indigency. The trial court should also address what we described in Blazina as other “important factors” relating to the defendant’s financial circumstances, including employment history, income, assets and other financial resources, monthly living expenses, and other debts.
On review, the court applies the abuse of discretion standard to whether discretionary LFOs were validly imposed and conducts a de novo review as to whether the trial court made an adequate inquiry under Blazina.
House Bill 1783 (Laws of 2018, ch. 269), which amended two LFO statutes to prohibit trial courts from imposing discretionary LROs on defendant who are indigent at the time of sentencing, applies to cases on appeal on the effective date of the amendments.
State v. Ramirez, No. 95249-3 (Sep. 20, 2018).
Felony Violation of Protection Order. While assault is an essential element to RCW 26.50.110(4), a defense of property jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party. State v. Yelovich, No. 95192-6 (Sep. 20, 2018). Justices Wiggins, Gordon McCloud and Owens concurred in the result on the grounds that RCW 9A.16.020(3) does not justify the use of force to recover stolen property.
Division One
Assault in the Second Degree. Assault in the second degree is an alternative means crime. A jury is not required to unanimously agree as to which alternative means has been proved beyond a reasonable doubt, so long as sufficient evidence supports each of the charged alternative means to commit assault in the second degree. State v. Garcia Gomez, COA No. 75673-7-I (Sep. 17, 2018).
Division Two
Erotic Dance Studios. A local ordinance which allows the County to suspend or revoke the licenses issued to erotic dance studio operators, managers, and dancers if they violate or permit the violation of erotic dance studio regulations is not unconstitutional under article I, section 5 of the Washington Constitution because it does not allow the imposition of sanctions based on strict liability. The ordinance is not unconstitutional under a First Amendment analysis for time, place or manner restrictions. The ordinance does not violate due process because it does not allow the imposition of sanctions based on strict liability. Forbes v. Pierce County, COA No. 51548-2-II (Sep. 18, 2018).
WEEKLY ROUNDUP FOR SEPTEMBER 14, 2018
Washington Supreme Court
Dismissal of an Impaneled Juror. Dismissal of an impaneled juror for bias requires the same findings as dismissal of a potential juror for bias– proof that the juror has formed a biased opinion and, as a result, cannot try the case impartially. When an impaneled juror is erroneously excused midtrial, the defendant will be entitled to a new trial if there is any possibility that the erroneous dismissal stemmed from the juror’s views on the merits of the case. In this case, the trial judge erroneously dismissed an impaneled juror after multiple days of trial testimony because she had a minor connection to an important defense witness that did not give rise to any evidence that the juror was biased . Because there is a reasonable possibility that juror 12 was dismissed beacuse of her views of the merits of the case, the defendant is entitled to a new trial. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). Lead opinion authored by Justice Wiggins and signed by no other justices. Justice Gordon McCloud authored a concurring opinion to address “the assumption that one tribal member is incapable of fairly evaluating the testimony of a witness associated with the same tribe.” Justices González, Yu, and Fairhurst signed the concurring opinion. Justice Stephens authored a dissenting opinion in which she argues that a new trial is not warranted. Justices Johnson, Owens and Madsen joined the dissent.
Firearm Enhancement. Sufficient evidence supported a firearm enhancement as there was a nexus between the defendant, the weapon and the crime. The defendant’s argument that the shotgun was too far away from him to qualify as easily accessible and readily available because he would have had to exit the car or move to the back seat to reach the shotgun is rejected. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). The Court’s decision on this point was unanimous.
Community Custody and Sex Offenses. The sentencing condition prohibiting the defendant, who was convicted of first degree child molestation, first degree child rape, second degree child molestation, and second degree child rape, from possessing or viewing “sexually explicit material” was crime related and not unconstitutionally vague. The exact language of the community custody condition was
Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.
The sentencing conditions requiring the defendant, who was convicted of three counts of second degree child molestation, to disclose to her community corrections officer any “dating relationship” is not unconstitutionally vague. The condition prohibiting this case defendant from entering any “sex-related business” is crime related. State v. Nguyen, No. 94883-6 (Sep. 13, 2018).
Relocating Cremains. A cemetery violated RCW 68.50.140(4), a class C felony, by relocating cremains without giving prior notification of its actions to next of kin. A “place of interment” for RCW 68.50.140(4) means the particular place remains are buried, such as a plot, and not a cemetary in general. Southwick, Inc. v. State, No. 95237-0 (Sep. 13, 2018). Dissenters were Justices Gordon McCloud, Fairhurst and González.
Wrongful Discharge. The four-part Perritt analysis does not apply to a wrongful discharge suit based upon whistle-blowing. The four-part Perritt analysis does provide helpful guidance in resolving a claim of wrongful discharge based upon whistle blowing.
In a wrongful discharge suit based on whistle-blowing, the plaintiff must show that (1) his discharge may have been motivated by reasons that contravene a clear mandate of public policy and (2) the public-policy-linked conduct was a significant factor in the decision to discharge him. The clear mandate of public policy is a question of law that is not met in the instant case as the plaintiff cannot produce a court decision, statute, or regulation that requires wall padding in the basketball courts.
If the plaintiff succeeds in presenting a prima facie case, the burden shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for discharge. An employer is not required to concede the existence of the first three elements of the Perritt test before asserting an overriding justification for the termination. The after-acquired-evidence doctrine does not apply to the overriding justification element of the Perritt test.
If the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer’s stated reason is legitimate, the public-policy-linked conduct was nevertheless a substantial factor motivating the employer to discharge the worker. Martin v. Gonzaga University, No. 95269-8 (Sep. 13, 2018).
Personnel Files. An employee’s claim that his employer violated RCW 49.12.250 by failing to provide him with a complete copy of his personnel file is not justiciable. An employee must first pursue an administrative request through the Department of Labor and Industries before turning to the courts. Martin