Washington Supreme Court
Blake Refunds – The invalidation of the simple drug possession statute in Blake does not entitle individuals to a refund of drug court participation fees. State v. Peterson, No. 104536-1 (Sep. 10, 2026)
Washington Supreme Court
Vicarious Liability and Negligent Retention – A plaintiff may plead both vicarious liability against an employer based on an employee’s negligence within the scope of employment, and negligent retention. Rule CR8(e)(2) expressly allows pleading alternative and inconsistent theories for recovery based on the same or different facts. And in any event, vicarious liability and negligent retention are not inconsistent claims, they are analytically distinct. An employer does not render a negligent retention claim superfluous by conceding that the employee was acting within the scope of employment. But a plaintiff can only recover once for the harm suffered. Double damages are not allowed. Earl v. City of Tacoma, No. 104495-0 (Sep. 3, 2026)
Division I
Firearms Restoration – The 2023 firearm restoration amendments are not retroactive. Individuals who met the prior requirements before the amendments, remain eligible, meaning they are exempt from new conditions like first paying full restitution even if they petitioned after the amendments took effect. If they are eligible, the court must grant the petition. McCaulley v. State of WA, No. 88984-2-I (Aug. 31, 2026, Unpublished)
Division III
Involuntary Treatment Act – The plain meaning of “administration,” as the term is used in RCW 71.05.217(1)(j)(iv), is unambiguous and permits the trial court to authorize a person undergo involuntary blood draws if the blood draws are a medically necessary component of giving treatment. In the matter of the Detention of: N.P., No. 40994-5-III (Mot. to Pub. Granted Sep. 3, 2026)
Other Jurisdictions
Fifth Amendment Right Not to Testify – A court commits constitutional error by “allowing a defendant to present clearly relevant evidence of his tattoos only at the price of forgoing his Fifth Amendment right not to testify.” Here, the defendant had tattoos covering the back of his hands. Surveillance footage, although blurry, did not appear to show tattoos on the left hand of the robber who lost his glove. The defendant argued the display of his hands should not make him subject to cross-examination. The Nineth Circuit agreed. US v. Valencia, No. 24-3820 (9th Cir. Sep. 3, 2026)
Division II
Involuntary Treatment Act and Statutory Interpretation – “Joel’s Law” allows a person’s “immediate family member,” to petition a superior court to detain the person for involuntary mental health treatment if a designated crisis responder (DCR) has declined to detain the person. RCW 71.05.201(1). “Immediate family member” means “a spouse, domestic partner, child, stepchild, parent, stepparent, grandparent, or sibling.” RCW 71.05.201(10). The statutory definition is not ambiguous, and the plain meaning does not include “sister-in-law.” Thus, the trial court erred by allowing the sister-in-law’s petition to proceed under Joel’s Law, and the appeals court reversed the 120-hour detention order. Regarding statutory interpretation, the court explained that if the definition of “immediate family member” was ambiguous, then “sister-in-law” would still not be included because under the expressio unius canon of construction the definition is limited to the expressly listed items. In the Matter of the Detention of: R.P., No. 60199-1-II (Aug. 25, 2026, Published in Part)
Editor’s note: The reason the court would have applied expressio unius, and not ejusdem generis, if the definition was ambiguous, is because the list in RCW 71.05.201(10) does not include a catch-all phrase like “or other” or “such as,” or a series of specific terms followed by a general term. If it did, and if the list was ambiguous, then the court would have applied ejusdem generis and asked whether a “sister-in-law” is sufficiently similar to the listed items to be included in the definition of “immediate family member.”
Collateral Bar Rule – The collateral bar rule only applies to proceedings for violations of a prior order. Here, the appellant did not violate a prior court order. Thus, review was not barred. In the Matter of the Detention of: R.P., No. 60199-1-II (Aug. 25, 2026, Published in Part)
Division III
Expert Testimony – An expert may not offer an opinion on an ultimate issue of fact when it is based solely on the expert’s perception of the witness’ truthfulness. Here, a doctor testified that she examined the child physically and did not see evidence that would rule in, or rule out, sexual abuse. But the doctor testified that in her opinion the child had been sexually assaulted multiple times, and that her opinion was based on the child’s statements. This was improper opinion testimony. The error was not harmless because the only other evidence was the child’s testimony, and the child wondered aloud if she might have imagined the abuse. Improper expert opinion testimony is especially dangerous because jurors tend to give it more weight. State v. Rowan, No. 39044-6-III (Aug. 25, 2026, Published in Part)
Public Records Act – When a court determines the penalty for a Public Records Act violation it should not count untimely records that are duplicates of records that were timely produced in previous installments. Nor should the court count untimely records that did not need to be produced at all because they are unresponsive to the public records request. Here, the trial court should have calculated the penalty award based on 69 unreasonably delayed records, not 434 records. Thus, the trial court must recalculate penalty. Cousins v. DOC, No. 41279-2-III (Aug. 25, 2026)
Division I
Pretrial Release Conditions – Pretrial drug monitoring patches are a search under Article I, Section 7, and must therefore be supported by authority of law to be lawful. Here, neither RCW 10.21.045, nor CrRLJ 3.2, provided authority of law. And neither the compelling interest test, nor the “special needs” exception to the search warrant requirement applied. The drug monitoring patch, and the process for obtaining the patch, reveal more personal information than necessary. Thus, the patch condition was not narrowly tailored, and not lawful. Bailey-Cobb v. Snohomish County District Court, No. 87738-1-I (Aug. 17, 2026)
Double Jeopardy – When a defendant pleads guilty to a lesser offense, double jeopardy does not bar another prosecution based on the same conduct if the state previously lacked the evidence needed to prove the greater charge beyond a reasonable doubt despite having acted diligently to obtain that evidence. The court based its decision on the “Diaz exception” to the double jeopardy rule, citing Diaz v. United States, 223 US 442 (1912). State v. Tuufuli, No. 88372-1-I (Aug. 17, 2026)
Miller-Fix Resentencing – De facto life-without-parole sentences are unconstitutional only for those juvenile offenders whose crimes reflect youthful immaturity, impetuosity, or failure to appreciate risks or consequences. That was not the case here. Rather, the defendant and another youth spent at least a year planning the murders and chose to act before they turned 18 so they would receive less severe punishment if caught. The trial court correctly applied the Miller factors at resentencing. Thus, the 46-year sentence that the court imposed at the resentencing was constitutional, despite the defendant being 17 years old when he committed the murders in 1997. State v. Baranyi, No. 87297-4-I (Aug. 17, 2026)
Washington Supreme Court
DUI Breath Tests – In cases involving the debatable presence of a foreign substance in the defendant’s mouth within 15-minutes before or during the breath test, the state must rely on expert testimony to make a prima facie showing that the defendant’s mouth was free of foreign substances. Here, the state met its burden when it presented expert testimony that the tiny strands of tobacco between the defendant’s teeth would not affect the reliability of the Draeger breath test results. The other admissibility requirements for breath tests were also met. Thus, the breath test was admissible. A defendant may still challenge the weight or accuracy of the evidence once it is admitted. State v. Sliger, No. 103563-2 (Aug. 13, 2026)
Division III
Restitution – Restitution may not exceed twice the victim’s loss, even if the precise amount of the loss cannot be easily proven. RCW 9.94A.753(3)(a). Here, the State failed to establish the amount of the hospital’s loss because it did not believe there was any reliable method for determining the value of the medical lamp that the defendant damaged. Nevertheless, the trial court ordered restitution of $14,563.49, the amount the hospital paid to purchase a replacement lamp. The appellate court remanded for a new restitution hearing to ensure that the award did not exceed twice the hospital’s actual loss. The court explained that the State could establish an approximate loss amount by presenting evidence of the lamp’s original purchase price and purchase date, estimating its remaining useful life at the time it was damaged, and calculating the value of the lost useful life on a pro rata basis. State v. Charles, No. 40514-1-III (Aug. 6, 2026, Published in Part)
Washington Supreme Court
Mental Health Sentencing Alternative – Under the Sentencing Reform Act, a deadly weapon enhancement, once determined, becomes part of the standard range sentence. Therefore, when a trial court imposes a mental health sentencing alternative and waives the standard range sentence per RCW 9.94A.695(4), it also waives confinement for the deadly weapon enhancement. State v. Perrin, No. 104816-5 (July 30, 2026)
Division I
Attempted Rape of a Child – In this case, the evidence was sufficient to prove that the defendant took a “substantial step” toward committing rape of a child, and commercial sexual abuse of a minor. The defendant communicated his desire to have sex with two minors, negotiated the terms, arrived at the agreed location with condoms and the agreed payment, and met with an undercover officer who was posing as the children’s mother. Defense counsel was not deficient for failing to request an entrapment instruction. State v. Nguyen Duc Le, No. 88337-2-I (Jul. 27, 2026)
Division II
Torts – In this case, the plaintiff’s tort action against the county failed because he was unable to show that an exception to the public duty doctrine applied. The defendant argued that the public duty doctrine did not apply at all, but the court disagreed. Burney v. Snohomish County, No. 61685-8-II, (Jul. 28, 2026)
Division III
Animal Cruelty First Degree – The phrase “manifesting an extreme indifference to life,” as used in the animal cruelty first degree statute, does not require proof that the animal suffered, but requires a degree of callousness that is not present in every unjustified intentional killing of an animal. Here, the evidence was sufficient where the defendant, shortly after separating from his wife, killed one of the couple’s healthy young horses named “Chabi,” and then told his wife, “Chabi went to a new home today,” indicating a cold, menacing affect, and that he killed the horse because he was angry and wanted to hurt, control, or manipulate his wife. State v. Kueck, No. 40763-2-III (Jul. 30, 2026, Published in part)
ABA Formal Opinion
Government Lawyers’ Obligations When Knowing of a Public Official’s Intended or Ongoing Violation of Law – For purposes of RPC 1.13(b) and (c), virtually any violation of a legal obligation or law by an individual associated with the government client that might reasonably be imputed to the government client may cause “injury” to the government client, given the government’s obligation to support, defend, and promote the rule of law. Government lawyers should exercise reasonable judgment regarding whether the potential injury to the government client, from the violation, is likely to be “substantial” and thus requires them to refer the matter to a higher authority in the organization, unless the government lawyer reasonably determines that referring the matter is not in the organization’s best interests. Formal Opinion 524
Division I
Torts – When a criminal defense attorney fails to correct an error in the judgment and sentence paperwork, before the paperwork is provided to the judge, it is reasonably foreseeable that the judge will erroneously sign the erroneous paperwork. Therefore, the judge’s error is not a superseding cause that relieves the defense attorney of malpractice liability. Stone v. King County, No. 88714-9-I (Jul. 20, 2026)
Division I
Land Use – A city may not enforce regulations against a landowner based solely on the conversion of a property into a condominium. Here, the owner converted a house and an accessory dwelling unit into two condominiums. The city claimed the change violated the city’s zoning code and water and sewer codes, not because of any physical changes to the property but based on the property’s conversion into a condominium form of ownership. The court held that treating the condominium form of ownership differently in this way violates the Washington Uniform Common Interest Ownership Act (WUCIOA) (specifically RCW 64.90.025(2)), and the Growth Management Act (GMA) chapter 36.70A RCW. Ladder Properties LLC v. City of Snoqualmie, No. 88063-2-I (Jul. 13, 2026)
Division II
Prosecutor Conflicts – A deputy prosecutor who is the victim of a crime is disqualified from prosecuting the case due to conflict, but the entire prosecutor’s office is generally not disqualified. The general rule is that office-wide disqualification is not required when a deputy prosecutor “is for any reason disqualified from a case.” The appearance of fairness doctrine does not apply to prosecutors performing their executive functions, and in any event, the prosecutor’s handling of this case did not appear unfair. State v. Spanjer, No. 61021-3-II (Jul. 14, 2026)
Editor’s note: compare this case to State v. Nickels, 195 Wn.2d 132, 456 P.3d 795 (2020) (holding that an elected county prosecutor’s former client conflict is imputed to all attorneys in the prosecuting attorney’s office.)
Division III
Receiving Unlawful Compensation – The word “compensation” in the Receiving Unlawful Compensation statute is not limited to money and includes sexual contact that a public servant receives in exchange for exercising official discretion to assist another with a “transaction.” RCW 9A.68.030(1)(a). The word “transaction” includes visits between a parent and child or a dependency case that the public servant assists with. Neither word is ambiguous, therefore the “ejusdem generis” canon of construction did not apply, and the court instead relied on dictionary definitions. However, the court explained that the outcome would have been the same even if ejusdem generis applied, and therefore the rule of lenity would not have required the court to resolve the ambiguity in the defendant’s favor even if the words had been ambiguous. State v. Tarver, No. 40603-2-III (Jul. 14, 2026)
Division III
Employment Law – A trial court errs in ordering arbitration of a disciplinary action when the collective bargaining agreement clearly excludes disciplinary actions from the grievance process and from arbitration and instead provides that disciplinary actions are subject to the civil service rules and regulations. Teamsters Local 839 v. Benton County, No. 40861-2-III (Jul. 7, 2026)
United States Supreme Court
Search and Seizure – In this case involving geofence warrants the Court held that police officers conduct a “search” under the Fourth Amendment when they acquire an individual’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information. Chatrie v. United States, No. 25-112 (Jun. 29, 2026)
Division II
Attorney Discipline – The Administrative Procedure Act (APA), Ch. 34.05 RCW, does not apply to the Washington State Bar Association (WSBA). Here, the WSBA denied an attorney’s request for a jury trial on whether she violated the ethics rules. The attorney then filed a petition for judicial review of the denial, under the APA, in Superior Court. The Superior Court correctly dismissed the petition because the APA does not apply to the WSBA and the Superior Court did not have authority to review the petition. The Washington Supreme Court has exclusive authority over lawyer discipline and can address whether disciplinary proceedings must be tried before a jury. The WSBA does not impose discipline. The WSBA makes disciplinary recommendations to the Supreme Court, and the Supreme Court imposes discipline. Shogren v. Washington State Bar Association, No. 60736-1-II (Jun. 30, 2026)
United States Supreme Court
Second Amendment – The federal Gun Control Act violates the Second Amendment to the extent that it prohibits “any unlawful user” of “any controlled substance” from possessing a firearm. 18 U. S. C. §922(g)(3). The Court chose not to address the constitutionality of laws that prohibit addicts, or those presently intoxicated, from possessing a firearm; laws that the legislature adopts after determining that users of a particular drug pose a special risk of misusing firearms; laws disarming individuals convicted of felonies (often drug-related ones). Nor did the court address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof of the defendant’s dangerousness when using the controlled substance. These questions were not before the court. United State v. Hemani, No. 24-1234 (Jun. 18, 2026)
Plea Agreements – An agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice – meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute. Hunter v. United State, No. 24-1063 (Jun. 18, 2026)
Division II
Prosecutorial Misconduct – A prosecutor does not commit misconduct by asking potential jurors “Does anybody here feel like they would not be able to convict based on testimony alone?” The question does not improperly implicate the unique facts of the case, nor does it commit potential jurors to a verdict. Rather, it seeks to assess whether the potential jurors can follow RCW 9A.44.020(1). State v. Camacho, No. 59503-6-II (May 22, 2026, Motion to Publish Granted Jun 18, 2026)
Jury Unanimity – The invited error doctrine prevents a defendant from challenging, for the first time on appeal, the trial court’s failure to give a Petrich unanimity instruction where the defendant’s proposed jury instructions did not contain a unanimity instruction, and where the defendant declined the court’s proposal to give a related limiting instruction. State v. Camacho, No. 59503-6-II (May 22, 2026, Motion to Publish Granted Jun 18, 2026)
Division III
Attempted Rape of a Child in the Second Degree – In a prosecution for Attempted Rape of a Child in the Second Degree, the defendant’s subjective belief about the intended victim’s age is relevant and material to prove his intent, but it is not a separate element that the State must prove. State v. Erlandson, No. 40207-0-III (Jun. 16, 2026, Published in part)
Washington Supreme Court
Second Amendment – Under the Second Amendment, the temporary firearm prohibition for recidivist drunk drivers in RCW 9.41.040(2)(a)(i)(D) is constitutional without an individualized assessment of the defendant’s dangerousness. The statute is consistent with the nation’s historical tradition of disarming groups of people presenting a special danger of misuse. Holloway v. Brown, No. 103799-6 (Jun. 11, 2026)
Jury Instructions – Potentially misleading jury instructions are not reversible error unless they are prejudicial. Prejudice is presumed if the jury instruction clearly misstates the law but not if the instruction is only potentially misleading. Verduzco v. King County, No. 103749-0 (Jun. 11, 2026)
Division II
Sexual Exploitation of a Minor – Exposing one’s breast while another person watches is an “exhibition” and therefore is a “live performance” that constitutes sexual exploitation of a minor under RCW 9.68A.040(1)(b). “Live performance” means “any play, show, skit, dance, or other exhibition performed … to … an audience of one or more, with or without consideration.” RCW 9.68A.011(4). Here, the defendant caused a minor to expose her breast to him on several occasions. The court applied ejusdem generis and held that this activity was “similar enough in nature” to the specifically listed activities “any play, show, skit, dance …” to fall within the general catch-all phrase “or other exhibition” in RCW 9.68A.011(4). The definitions in RCW 9.68A.011 should be “used with a measure of flexibility.” State v. Moss, No. 60520-1-II (Jun. 9, 2026, published in part)
Judicial Impartiality – A trial court violates its duty to be impartial and abuses its discretion by repeatedly advocating for one side. Here, the trial court advocated for the defendant by interrogating the investigating officer outside the presence of the jury, and steering defense counsel into a discussion about whether the officer gave pretextual reasons for the vehicle stop. The jury found the defendant guilty of Assault in the 3rd Degree for punching the officer in the nose. However, the trial court then dismissed the case for government misconduct under CrR 8.3(b). The trial court based the dismissal on its finding that the officer “lied” about why he stopped the vehicle, and that the State failed to correct the lie in front of the jury. Substantial evidence did not support the trial court’s finding that the officer lied. The trial court violated the state’s right to a fair trial. The court of appeals reversed the dismissal, reinstated the jury’s verdict, and remanded the case for sentencing. State v. Rutledge, No. 59684-9-II (Jun. 9, 2026, Unpublished)
Washington Supreme Court
GR 37 – GR 37 prohibits peremptory strikes if an objective observer could view the potential juror’s race as a factor in the peremptory strike. GR 37 does not target discrimination against the potential juror’s gender identity. The court provided several other bright line rules. For example, if the state provides a “demeanor based” reason for a peremptory strike, then the state must follow the procedures in GR 37(i). Otherwise, the appeals court cannot consider the “demeanor based” reason. If the state provides a “presumptively invalid” reason for the peremptory strike, from the list in GR 37(h), then there is a presumption that an objective observer could view race as a factor in the use of the peremptory challenge. However, that presumption may be rebutted. Here, an objective observer could not view race as a factor in the peremptory strike based on the totality of the circumstances. The stricken juror was white, and the defendant was black. That does not mean striking a white juror will never violate GR 37 since GR 37 is race neutral. The juror viewed the legal system as unjust for people of color. However, some jurors who expressed similar views were seated and some were stricken. The juror had strong political views and would not discuss their views about firearms in front of the group. Concerns about a juror’s ability to participate in deliberations is a legitimate reason for a peremptory challenge. There were no red flags and no evidence of discriminatory effect based on race. State v. Hogan, No. 103824-1 (Jun. 4, 2026)
Division I
State Environmental Policy Act (SEPA) – Recently enacted “appeal prohibition statutes” such as RCW 36.70A.600(3), that prohibit appeals of local planning department actions that increase housing, do not bar administrative appeals of a Final Environmental Impact Statement when, as here, SEPA and the local agency’s code allow it. WAC 197-11-680(3)(a)(iii), and SMC 25.05.680. Friends of Ravena-Cowen v. City of Seattle, No. 88217-1-I (consolidated with No. 88252-0-I) (June 1, 2026)
Torts – The “special relationship” exception to the public duty doctrine allows a negligence action to proceed against a public agency when three elements are met: 1) direct contact or privity between the injured person and a government official that sets the injured person apart from the general public, 2) express assurances given by the public official, and 3) reasonable reliance by the injured person on the official’s assurances. Here, all three elements were met where a hotel security guard called the police to report what sounded like a murder in progress in one of the hotel rooms, and where the guard relied on assurances that help was on the way. The decedent’s estate sued the government call center for negligently classifying the call as a lower priority and causing a delayed response. The case could proceed based on the “special relationship” exception notwithstanding that the caller was not the injured person. Bartlett v. Valley Communications Center, No. 87600-7-I (June 1, 2026)
Division II
Land Use – A LUPA petitioner has the burden of demonstrating that the hearing examiner erred. Here, the LUPA petitioner failed to provide sufficient evidence to support its arguments that 1) the subject property was partially owned by someone other than the applicant, or 2) that the proposal violated the county’s density requirements. Spanaway Concerned Citizens v. Pierce County, No. 60984-3-II (Jun. 2, 2026)
(Editor’s note: The concurrence argued that the hearing examiner lacked authority to conduct a title examination beyond confirming that the land use application contained an attestation of ownership. And argued further that litigating title before a hearing examiner, which is not a court of law, could cloud the title.)
United States Supreme Court
Peremptory Challenges – A trial court, to correctly apply the third step of Batson’s three-step test, must give the defendant a sufficient opportunity to rebut the race neutral reasons that the prosecutor provides for a peremptory strike. Pitchford v. Cain, No. 24–7351 (May 28, 2026)
(Editor’s Note: Washington has rejected Batson’s focus on purposeful discrimination and instead asks whether an objective observer “could” view race or ethnicity as a factor in the use of the peremptory challenge and requires courts to analyze numerous additional factors. GR 37, State v. Jefferson, 192 Wash. 2d 225, 230 (2018), State v. Sum, 199 Wn.2d 627 (2022))
Federal Habeas – A prisoner who collaterally attacks the validity of his federal conviction must proceed through 28 U. S. C. §2255, not 18 U. S. C. §3582; the supposed invalidity of a conviction is not among the “extraordinary and compelling reasons” that justify compassionate release. Fernandez v. United States, No. 24–556 (May 28, 2026)
Division I
Involuntary Treatment Act – County prosecutors are responsible for representing ITA petitioners that are not state hospitals or facilities. The AGO is responsible for representing ITA petitioners that are state hospitals or facilities. RCW 71.05.130. Here, the AGO represented the state hospital on the hospital’s petition for a 180-day less restrictive alternative order (LRO). The LRO provided that A.R. would be transferred to Aristo Healthcare, which is not a state hospital or facility. Meaning, the county prosecutor was then responsible for representing Aristo’s Designated Crisis Responder (DCR) when Aristo’s DCR filed the next 180-day petition. Thus, the trial court erred in denying the AGO’s motion to withdraw. In the Matter of the Detention of A.R., No. 87531-1-I (May 26, 2026)
GR 37 – An objective observer could not view race as a factor in the State’s peremptory challenge of an Asian juror where the GR 37 factors and the circumstances indicate the prosecutor’s concern was the juror’s negative views about the prison system, not the juror’s race. The trial court’s GR 37 analysis was incomplete. However, the appeals court analyzed the GR 37 factors de novo and held that the peremptory challenge did not violate GR 37. State v. Thompson, No. 85984-6-I (May 26, 2026)
Washington Supreme Court
Right to Counsel – A defendant is not completely denied counsel when his attorney declines to argue the defendant’s motion to withdraw his guilty plea at the sentencing hearing if: defense counsel remains present, defense counsel does not withdraw, is not conflicted, does not undermine the defendant’s position, and the defendant is allowed to make the argument. An allegation of ineffective assistance of counsel alone does not create a conflict or require substitution of counsel. Here, the defendant was not completely denied counsel and was, therefore, not entitled to automatic reversal. State v. Korsakas, No. 104065-2 (May 21, 2026)
Interfering with Reporting Domestic Violence – The Interfering with Reporting DV statute defines a single crime and is not an alternative means crime. RCW 9A.36.150. The alleged alternative acts in the statute do not criminalize the defendant’s conduct. Rather, they concern the acts of victims and witnesses and do not criminalize those acts. This decision resolves a split by affirming Division Three, and overturning Division One’s opinion in Nonog. State v. Buck, No. 104170-5 (May 14, 2026)
Division I
Appearance of Fairness Doctrine – A judicial proceeding satisfies the appearance of fairness doctrine if a reasonably prudent and disinterested person would conclude that all parties received a fair, impartial, and neutral hearing. Here, the jury administrator informed the judge, during a bench trial, that she overheard someone from a victim support organization tell one of the child victims to “remember this signal” and then saw her make a motion with her hand, before entering the courtroom. The trial judge’s failure to bring this to the parties’ attention before the trial ended, combined with the trial judge’s statement that he doubted that members of the victim support organization would engage in witness signaling, could cause a reasonable person to suspect judicial bias, and to believe that the defendant was denied a fair trial. Thus, the defendant is entitled to a new trial under the appearance of fairness doctrine. State v. Lester, No. 88956-7-I (May 18, 2026)
Division II
Sentencing – Monschke’s holding that mandatory life without parole is unconstitutional as applied to 18- to 20-year-old defendants does not apply to a defendant who was 22 years old when he committed the murders. The sentencing court was not required to consider the mitigating qualities of youth. State v. Pate, No. 60300-4-II (May 12, 2026, Unpublished)
First Amendment – A government agency may place reasonable viewpoint neutral, time place and manner restrictions on speech in a nonpublic forum. In addition, speech made with the intent to facilitate criminal conduct is unprotected speech. Here, the plaintiff had a history of sending vulgar offensive emails to agency staff. The agency responded by telling the plaintiff that he could only send emails to a single agency email address, unless he signed a “behavioral contract” (which he did not sign). The plaintiff violated the restriction. The agency again told the plaintiff to stop sending derogatory, harassing, or threatening emails, citing RCW 9A.76.180 (Intimidating a public servant). The plaintiff sued alleging a First Amendment violation. The trial court correctly dismissed the case. The plaintiff’s speech was not protected because it violated the agency’s reasonable restriction. Iceberg v. Tigerson, No. 60840-5-II (May 12, 2026, Unpublished)
Division I
Involuntary Treatment Act – Mental illness episodes that occur over a couple of days can be sufficient to support involuntary commitment without any other prior history of mental illness episodes or commitment. In the Matter of the Detention of H.T., No. 87418-7-I (May, 4, 2026)*
*Editor’s note: Division I withdrew its May 4, 2026 opinion in this case and substituted it with this new opinion: In the matter of the detention of H.T., No. 87418-7-I (Jun. 6, 2026)
Division III
Ineffective Assistance of Counsel – A defendant, to prevail on a claim of ineffective assistance, must show both (1) deficient performance falling below an objective standard of reasonableness, and (2) prejudice – a reasonable probability of a different outcome absent the deficiency. Here, defense counsel was deficient by not objecting to prejudicial booking photos and unauthenticated surveillance footage coming in. But there was no prejudice because there was a reasonable probability that the defendant would still have been found guilty if the booking photos and unauthenticated surveillance footage had not come in. Thus, defense counsel was not ineffective. State v. Perry, No. 40122-7-III (Mat 5, 2026, Unpublished)
Conflict of Interest – A part time superior court commissioner who represents a criminal defendant in the same court where he/she is a commissioner does not create a concurrent conflict of interest under RPC 1.7(a)(1) because commissioners do not represent a client in their non-advocate role. Nor did the commissioner’s dual role violate the appearance of fairness doctrine (at least not as to the defendant). State v. West, No. 40242-8-III (May 7, 2026, Unpublished)
Editor’s note: The court did not reach the Code of Judicial Conduct (CJC) because the CJC was not properly raised. But see Ethics Advisory Opinions: 09-02, (Whether a part-time commissioner may appear as a lawyer in a case in the same court in which he/she serves as a part-time commissioner, without violating the CJC, depends on factors to be reviewed case-by-case), and 26-01 (Defense attorneys should not serve as pro tem judges in criminal cases in district courts in the same county where the defense attorney routinely practices in the superior court because that would undermine the public’s confidence in the impartiality of the judiciary)
Washington Supreme Court
Vacating convictions – The crime-free time that is necessary for a vacatur applicant to be eligible for vacation under RCW 9.94A.640 does not start until the applicant is released from confinement for all convictions, not just released for the convictions that the applicant seeks to vacate. Vacatur applicants must present evidence of rehabilitation to assist the court in exercising discretion to grant or deny the application. State v. Abrams, No. 103058-4 (Apr. 30, 2026)
Editor’s note: The court explained in dicta that the rule of lenity does not automatically require courts to interpret statutes in the defendant’s favor.
Recall Petitions – A recall petition is legally insufficient if the petition alleges that the Secretary of State committed misfeasance by refusing to transmit a referendum to the attorney general, and if, as here, the bill that the referendum relates to includes an emergency clause and is therefore exempt from referendum. In re Recall of Hobbs, No. 104322-8 (Apr. 30, 2026)
Civil Discovery – Parties to a civil lawsuit may obtain discovery regarding any nonprivileged matter that is relevant to the lawsuit. CR 26(b)(1). Records of foster children and their families are privileged under RCW 74.04.060(1)(a). But RCW 74.04.060(1)(a) contains an exception that allows the state to provide records that are needed in a judicial proceeding that concerns the administration of the state’s child welfare program for foster children. The state may also provide an individual their own juvenile records without violating RCW 13.50.100. J.M.I. v. State, No. 104167-5 (Apr. 30, 2026)
Division I
Search and seizure – The state violates article I, section 7 of the Washington Constitution by obtaining from a hotel, without a warrant, a receipt that shows the last four digits of an individual’s bank card. Here, the error was harmless because the untainted evidence was overwhelming. State v. Blackburn, No. 86238-3-I (Apr. 20, 2026)
Law of the case – Under the “law of the case doctrine,” the state must prove unnecessary offense elements that are added to the “to-convict” instruction if the state does not object to the addition. Here, the state added a time-frame element to the “to-convict” instruction for Count 8 that became the law of the case and then failed to prove that element. Thus, the court reversed the conviction for Count 8. State v. Blackburn, No. 86238-3-I (Apr. 20, 2026)
Persistent Offender Accountability Act – The three strikes law in the POAA does not amount to cruel and unusual punishment under the Washington Constitution as applied. While the POAA disproportionately impacts black men, courts apply the POAA the same way to all defendants. All defendants who meet the objective three strikes criteria receive life without parole. State v. Dugan, No. 85809-2-I (Apr. 20, 2026)
Right to a jury – Courts may rely on certified records of a defendant’s criminal history to determine by a preponderance of the evidence whether the defendant has three strikes under the Persistent Offender Accountability Act (POAA). The constitution does not require prior convictions to be submitted to a jury and proven beyond a reasonable doubt because prior convictions are not offense elements. The US Supreme Court, in Erlinger, held that defendants are entitled under the Fifth and Sixth Amendments to have a jury determine beyond a reasonable doubt whether their past offenses were committed on separate occasions for purposes of the Armed Career Criminals Act (ACCA). 602 U.S. 821 (2024). However, Erlinger’s holding is limited to resolving the ACCA’s “occasions” inquiry and does not overrule Washington’s well established precedent that a trial court can find prior convictions for purposes of the POAA’s three strikes law without submitting them to a jury. State v. Dugan, No. 85809-2-I (Apr. 20, 2026)
Open Public Meetings Act – The Telford factors for determining whether an agency is the “functional equivalent” of a public agency (and must therefore comply with the Public Records Act) do not apply to determinations of whether an agency is a public agency under the OPMA. 95 Wn. App. 149 (1999). The definition of “other state agency” in the OPMA is expressly limited to agencies created by statute. RCW 42.30.020(1)(a). By contrast, creation by statute is merely one factor to be weighed under Telford. Moreover, Telford did not discuss the OPMA. Here, the LDWG is partially composed of public agencies such as King County, and the City of Seattle. Nevertheless, the OPMA does not apply to the LDWG because the LDWG was created by a Memorandum of Agreement, not by statute. West v. Lower Duwamish Waterway Group, No. 87289-3-I (Apr. 20, 2026, Unpublished)
Open Public Meetings Act – A press conference at which a quorum of council members is present can be a public meeting subject to the notice requirements of the OPMA, even if some council members only appear in their “individual capacity” and some only passively receive information. West v. Burien City Council, No. 87686-4-I (Apr. 27, 2026, Unpublished)
Division II
Earned Release Time – Aggravated first degree murder is a “serious violent offense” under RCW 9.94A.729(3)(b), meaning the aggregate earned release time (ERT) for an aggravated first degree murder committed on or after July 1, 1990, and before July 1, 2003, may not exceed 15 percent of the sentence. In the Matter of the Personal Restraint of Benson, No. 61316-6-II (Apr. 28, 2026)
Division III
Offender Score – The amendments to RCW 9.94A.525(1)(b) that took effect on July 23, 2023, and that prohibit counting most juvenile felony adjudications in an offender score are not retroactive. Here, the defendant committed two felonies as an adult before the amendments and was sentenced after the amendments took effect. The sentencing court correctly applied the law that existed at the time the sentencing offense was committed by including the defendant’s juvenile felony adjudications in his offender score. State v. Boyce, No. 40700-4-III (Apr. 30, 2026)
Washington Supreme Court
Double jeopardy – The flexible plea bargaining framework recognized in Barr and Zhao empowers defendants charged with a single assault to plead to multiple, lesser assaults when the state agrees to it, and when the defendant decides that the agreement is in their best interest. Multiple assault convictions do not violate double jeopardy if the plea is voluntary and knowing, there is a factual basis for the original charge, and the assault convictions are based on separate and distinct conduct. A defendant’s admission that the assault convictions are based on separate and distinct conduct is part of the record that courts must consider. In re Pers. Restraint of Bin-Bellah, No. 103569-1 (Apr. 9, 2026)
Division II
Assault in the first degree – A person commits assault, under the “attempted battery” definition of assault, by attempting with unlawful force to inflict bodily injury upon another but failing to accomplish it. Here, the defendant attempted to inflict bodily injury on the driver and front passenger of an SUV by firing gunshots into the SUV. Therefore, the defendant committed first degree assault as to all five occupants of the SUV regardless of whether the defendant knew that the other three occupants were present in the SUV, and regardless that there was no evidence that the two child passengers were harmed or place in apprehension of harm. State v. Sanchez-Radilla, No. 59912-1-II (Apr. 17, 2026, published in part)
Washington Supreme Court
Severance – Courts apply a two-step test in determining whether to grant a motion to sever: 1) consider the four factors for determining whether the potential prejudice from joining the charges for a single trial requires severance, and if the answer is no, then 2) weigh the prejudice of a joint trial against the benefits. Here, the trial court did not abuse its discretion when it denied the defendant’s motion to sever multiple rape charges involving the same defendant but different victims. Separate trials would have potentially had all the same witnesses. While the details of each victim’s rape would not have been admissible in separate trials, the jury could be expected to compartmentalize the evidence on the different counts, thus severance was not required. The benefits of joinder are clear. The burden of testifying contributes to low reporting of rapes. Requiring each victim to re-testify in separate trials, and to re-live the trauma each time, would do damage to the administration of justice. State v. Krause, No. 103835-6 (Mar. 26, 2026)
ER 404(b) – Evidence of a defendant’s prior bad acts may be admissible under ER 404(b) to show common scheme or plan if the prior bad acts were markedly similar to the charged crimes. But the victims in the prior bad acts do not need to be markedly similar to each other for the prior bad acts to be admissible to show common scheme or plan. Jurors are presumed to follow limiting instructions. State v. Stearns, No. 103908-5 (Mar. 26, 2026)
Division II
Community Custody Conditions – A community custody condition requiring the defendant to consent to home visits and searches is unconstitutionally broad unless it first requires the DOC to have reasonable cause to believe the search will reveal evidence of a violation. State v. Haas, No. 60309-8-II (Mar. 24, 2026)
Premises liability – A plaintiff, in a premises liability case against a county, must show that the county possessed the premises to establish that the county owed a duty to the plaintiff. A possessor of land occupies or controls it. Here, the County did not occupy or control an airplane hangar that it leased to a skydiving company that the plaintiff used when she was injured. Thus, the county owed no duty regarding the dangerous activities at the premises. Beenan v. Lewis County, No. 59591-5-II (Mar. 24, 2026, unpublished)
Washington Supreme Court
Caseload limits – The caseload limits in CrR 3.1 “Standards for Indigent Defense” are mandatory, and courts do not have authority to order defense attorneys to violate them. In this case, the trial court did not impliedly order DPD or its attorneys to violate caseload limits. Instead, the trial court properly ordered that “[b]arring any conflicts, DPD . . . shall continue to ensure an attorney represents [ITA] respondent,” and it correctly left all decisions as to “[w]ho that attorney is and where they come from and what caseloads they maintain” to be resolved by DPD. In the Matter of the Detention of M.E., No. 103252-8 (consolidated with No. 103312-5) (Mar. 19, 2026)
Harassment – The Washington felony harassment statute, RCW 9A.46.020, does not violate the First Amendment, and is constitutional. However, the trial court erred in using a “true threat” jury instruction that did not require the jury to find, at a minimum, that the defendant was aware that others could regard his statements as threatening violence. Counterman v. Colorado, 600 U.S. 66 (2023). The Court of Appeals, on remand, may find that the erroneous “true threat” instruction was harmless error if, after a thorough examination of the record, it concludes beyond a reasonable doubt that the jury verdict would have been the same without the error. State v. Calloway, No. 103374-5 (Mar. 19, 2026)
Division III
Torts – County agencies that supervise pretrial electronic home monitoring (EHM) owe a duty to protect third parties from foreseeable harm. Here, a rational trier of fact could find that King County DAJD breached a duty by failing to promptly notify law enforcement that two juveniles, with pending First Degree Robbery charges, cut off their EHM devices and absconded. However, no rational tier of fact could find that the breach proximately caused the murder because it was too speculative whether promptly notifying law enforcement would have prevented the murder in this case. Estate of Jordan Benjamin Brown v. King County, No. 40983-0-III (Mar. 19, 2026, published in part)
AI – Even pro se litigants must ensure that the cases they cite are real cases that plausibly support the proposition for which they are cited. Here, the court suspected the plaintiff used AI for legal research because the plaintiff’s brief contained fabricated quotes that were nowhere to be found in the quoted opinions and cited several nonexistent cases. Richmond v. City of Newport, No. 40954-6-III (Mar 17, 2026, unpublished)
Attorney General Opinion
Public works – Whether a construction project qualifies as a “public work” and is subject to public works procurement and prevailing wage laws is a highly fact-specific inquiry. Relevant factors include whether the project receives substantial government funding, whether it has a public purpose, whether it is constructed on public land, whether a government entity maintains or eventually obtains ownership of the project, and whether the project requires the simultaneous use of public property. AGO 2026 No. 2
Division II
Public Records Act (PRA) – The “legislative privilege” exempts from disclosure under the PRA legislative records revealing internal legislative deliberations about bills. The legislative privilege is an individual privilege that a legislator may assert or waive without affecting any other legislator’s right to assert or waive it. The privilege applies to both legislators and legislative aides. The privilege is based on separation of powers and applies even when there is no conflict between the branches. Nixon v. State, No. 60181-8-II (Mar. 10, 2026, published in part) https://www.courts.wa.gov/opinions/pdf/D2%2060181-8-II%20Published%20Opinion.pdf
Division III
Mental health – When an involuntarily committed person directly petitions the court for release under RCW 10.77.595(5), without first seeking approval from the secretary of DSHS, the court must “order a hearing” within 45 days. RCW 10.77.595(3). “Order a hearing” means order a hearing to commence within 45 days. “Order a hearing” does not mean schedule a hearing within 45 days that is not set to commence until after the 45 days. The court may only continue the hearing for good cause. Id. State v. Lybbert, No. 40682-2-III (Mar. 12, 2026) https://www.courts.wa.gov/opinions/pdf/406822_pub.pdf
Washington Supreme Court
Torts – Jailers have a special relationship with incarcerated people and a duty to ensure their health, welfare, and safety, under common law and tort law. However, these duties do not prevent the county from raising the felony defense (RCW 4.24.420) or the intoxication defense (RCW 5.40.060). Here, a jail inmate smuggled heroin into the jail and gave it to another inmate who ingested it and died. The deceased inmate’s estate sued the county for negligence. The trial court erred in holding the county could not raise the felony defense, or the intoxication defense. Anderson v. Grant County, No. 103111-4 (Mar. 5, 2026) https://www.courts.wa.gov/opinions/pdf/1031114.pdf
Division III
Jury instructions – A court does not commit constitutional error by giving an aggravating circumstance instruction that fails to say the burglary must start before the killing (for purposes of finding the burglary elevates the murder to aggravated murder). The sequencing language in the pattern instruction is not a separate element, it merely clarifies the element “in the course of, in furtherance of, or in immediate flight from …” Thus, failure to include the sequencing language is non-constitutional error, and failure to object waives the error. State v. Ault, No. 40421-8-III (March 3, 2026) https://www.courts.wa.gov/opinions/pdf/404218_pub.pdf
Ineffective assistance – An ineffective assistance of counsel claim requires a showing that there is a reasonable probability that the result of the proceeding would have been different, but-for the errors. If the defendant argues that two factual scenarios are equally likely, one of which results in prejudice to the defendant and one that does not, then the defendant has necessarily failed to meet the burden. State v. Ault, No. 40421-8-III (March 3, 2026) https://www.courts.wa.gov/opinions/pdf/404218_pub.pdf
Ethics Opinion
Pro tem judges – Defense attorneys should not serve as pro tem judges in criminal cases in district courts in the same county where the defense attorney routinely practices in the superior court because that would undermine public confidence in the impartiality of the judiciary. Ethics Advisory Committee Opinion 26-01 https://www.courts.wa.gov/content/publicupload/eclips/2026%2002%2026%20Ethics%20Advisory%20Committee%20Opinion%2026%2001.pdf
Attorney General’s Office Opinion
Juvenile court records – Court clerks may not require the Office of Public Defense (OPD) or the Office of Civil Legal Aid (OCLA) to file notices of appearance as a precondition to records access under RCW 13.50.010(13) and (14). Such a requirement would conflict with the legislative intent of those statutes and the agencies’ statutory prohibition from providing direct client representation. AGO 2026 No. 1 – Feb 25 2026 https://www.atg.wa.gov/ago-opinions/juvenile-courts-court-clerk-records-statutes-statutory-obligation-provide-office
United States Supreme Court
Right to counsel – A trial court, during a brief daytime break in the defendant’s testimony, may entirely prohibit defense counsel from communicating with the defendant. This protects the truth-seeking function of the trial by preventing mid-testimony coaching. However, during more extended overnight breaks in the defendant’s testimony, a trial court may only prohibit defense counsel from influencing or managing the defendant’s testimony, not from discussing other topics with the defendant such as the availability of witnesses, trial tactics, or plea bargaining. Villarreal v. Texas, No. 24-557 (Feb. 25, 2026)
Washington Supreme Court
Recall petitions – An allegation that a public official hired an individual with whom she had a preexisting personal relationship, and that she continued the relationship while the individual was employed as her subordinate, without more, is not sufficient to support a recall petition. The court explained the outcome might be different if the conduct violated county policies, or if there was evidence of a quid pro quo. In the Matter of the Recall of Emily Clouse, No. 103800-3 (Feb. 26, 2026)
Recall petitions – An allegation that a public official committed malfeasance by violating the indecent exposure statute is insufficient to support a recall petition if there is no evidence the official intended to violate the law. In the Matter of the Recall of Lucy Lauser, No. 104342-2 (Feb. 26, 2026)
Division II
Public Records Act (PRA) – Both article II, section 17 of the Washington Constitution (a speech and debate clause) and separation of powers provide legislators with a privilege from disclosure of legislative deliberations under the Public Records Act. The rights of the people are best supported when legislators can execute the functions of their office without fear of prosecution and the burden of defending themselves. The legislative privilege is limited to matters that are an integral part of the deliberative and communicative processes relating to proposed legislation or other matters placed within the jurisdiction of the legislature. West v. The Washington State Legislature, No. 60104-4-II (Feb. 24, 2026)
Postconviction DNA testing – A trial court, when ruling on a motion for postconviction DNA testing under RCW 10.73.170, must state that it is presuming the DNA test results will be favorable to the defendant. The trial court must grant the motion if, after applying the presumption, there is a reasonable probability that the person is innocent, even if there was significant evidence of guilt at trial. State v. Williams, No. 60390-0-II (Feb. 24, 2026)
Community custody conditions – A community custody condition requiring the defendant to remain within geographic boundaries set forth in writing by the Community Corrections Officer is not unconstitutionally vague. State v. Cobb, No. 59459-5-II (Feb. 24, 2026)
(Editor’s note: Division II recently reached the same conclusion in State v. Lundstrom, 34 Wn. App. 2d 977 (2025).)
Washington Supreme Court
Land use petition act (LUPA) – A LUPA petitioner must strictly comply with both RCW 4.28.080 and RCW 36.70C.040 when serving a LUPA petition on a local government. Here, the petitioner’s first attempted service was timely because it was within LUPA’s 21-day SOL. RCW 36.70C.040(3). But it was improper because it was made on a front desk employee at City Hall who was not designated to receive service. RCW 4.28.080(2). The second attempted service was made on the City Manager, who was designated to receive it. But it was untimely because it was 24-days after the City emailed its decision canceling the petitioner’s land use application. The three-day extension of the 21-day SOL only applies when the city mails a written land use decision, not when it emails it. Chandrruangphen v. City of Sammamish, No. 103789-9 (Feb. 12, 2026).
(Editor’s note: Whether cancellation of a land use application is a final land use decision, or merely interlocutory, and thus not appealable under LUPA, was not before the court. The amendment to LUPA in 2024 allowing service on “the office of a person” did not apply because the attempted service happened in 2023. RCW 36.70C.040(5).)
Division I
Second amendment – A protection order requiring an individual to surrender firearms does not violate the Second Amendment when the court finds the individual poses a clear threat of physical violence to another. The threat does not have to be towards a specific identified person. Procedural Due Process only requires notice and an opportunity to be heard. Here, the defendant had an opportunity to be heard but he chose not to appear for the hearing. Thus, there was no Due Process violation. State v. Bell, No. 84534-9-I (consolidated with No. 87502-7-I) (Feb. 9, 2026).
Division III
Confrontation clause – The confrontation clause requires a criminal defendant be allowed to cross-examine any forensic scientist whose work the final, opining scientist relies, regardless of whether they prepared a report or formed any conclusions or opinions. State v. Dodson, No. 39755-6-III (February 10, 2026).
(Editor’s note: This case largely repeats the holdings of Smith v. Arizona and State v. Hall-Haught. It appears to be published largely to voice dissatisfaction with the harmless error standard.)
Foreign Case of Interest
Second amendment – Prohibiting the concealed carrying of switchblade knives in public is a restriction supported by our Nation’s history and tradition of arms regulations. Knife Rights, Inc. v. Bonta, No. 24-5536 (9th Cir. January 30, 2026).
U.S. Supreme Court
Community caretaking – An officer need not have “probable cause” or “reasonable suspicion” to believe an occupant is in need of emergency aid to enter a home without a warrant to render assistance. Those standards are related to criminal investigations. An officer need only have an “objectively reasonable basis” to believe that an occupant is seriously injured or imminently threatened with such an injury to justify a warrantless intrusion. Case v. Montana, No. 24-624 (January 14, 2026).
(Editor’s note: Essentially, this opinion rejects the defendant’s attempt to narrow the Court’s decision in Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) and reaffirms that decision.)
Division I
Eyewitness identification – A trial court abuses its discretion by suppressing an identification procedure as inherently suggestive without considering if the procedure was necessary due to exigent circumstances, such as a single-photo showup identification when the suspect may still be in the area. State v. Yellowcalf, No. 86685-1-I (Jan. 2, 2026).
Personal jurisdiction – A court’s exercise of personal jurisdiction over a nonresident defendant, in civil cases, requires compliance with both the state long-arm statute (RCW 4.28.185) and the Fourteenth Amendment’s due process clause. Due process requires: (1) purposeful minimum contacts must exist between the defendant and the forum state, (2) the plaintiff’s injuries must arise out of or relate to those minimum contacts, and (3) the exercise of jurisdiction must be reasonable, that is, consistent with notions of fair play and substantial justice. King County v. Aquatherm, No. 85572-7-I (consolidated with No. 85595-6-I) (Feb. 2, 2026, unpublished).
(Editor’s note: Motion to publish granted on March 23, 2026.)
Foreign Cases of Interest
Standing – Where the plaintiff is an organization, they can establish standing by either 1) claiming the defendant injured the organization, or 2) claiming the defendant injured the organization’s members. Here, the alleged injuries to the organization were all caused by the plaintiffs’ own voluntary decisions to spend money on their cause, which does not count. And, alternative 2) was not satisfied because the juveniles were not members of the plaintiff organizations. The juveniles may not have even known the organizations existed and had no control over the organization’s decisions. Nor was there a special relationship between the organization and the juveniles combined with any inability of the juveniles to sue the defendants themselves. Justice 360 v. South Carolina Dept. of Juvenile Justice, No. 25-1032 (4th Cir., Jan. 29, 2026).
(Editor’s note: the court recognized the Federal Circuits have disagreed on these issues, and the 9th and 11th Circuits have found organizations had standing in similar cases.)
Second amendment – Criminalizing deserializing firearms is consistent with the nations’ historical tradition of firearm regulation. Although firearms were not serialized when the Second Amendment was ratified, founding-era regulations established various measures to inventory and track firearms. The Bruen standard should not be misunderstood to mean that modern firearm regulations require close founding-era comparators. United States v. Reyna, No. 23-1231 (7th Cir. Jan. 28, 2026).
Washington Supreme Court
Elections – A county auditor, after receiving a valid petition to amend a first-class city’s charter, must put the amendment on the ballot and submit it to the voters “at the next regular municipal election, occurring thirty days or more after said petition is filed.” RCW 35.22.120. The phrase “next regular municipal election” means the next municipal election, whether that is a general or a special election. A Better Richland v. Chilton, No. 103715-5 (Jan. 29, 2026).
9th Circuit
Second amendment – Criminalizing the possession of firearms by noncitizens unlawfully present in the United States is consistent with the nation’s historical tradition of firearm regulation and does not run afoul of the Second Amendment. United States v. Vazquez-Ramirez, No. 24-3544 (Jan. 2, 2026).
(Editor’s note: The case analyzes the constitutionality of 18 U.S.C. § 922(g)(5)(A), but the same logic would presumably apply to RCW 9.41.171, Alien possession of firearms.)
U.S. Supreme Court:
Restitution – Restitution under the Mandatory Crime Victim’s Restitution Act of 1996 is criminal punishment for purposes of the ex post facto clause and cannot be imposed on defendants who committed their crimes before passage of the Act. Ellingburg v. United States, No. 24-482 (January 20, 2026).
(Editor’s note: This case deals with restitution under a federal provision of law and is not binding on cases where restitution is ordered pursuant to state law. The case is included to defend against frivolous arguments that the U.S. Supreme Court has held that all restitution is punitive. The case only holds that it is punitive for the purposes of an ex post facto analysis. Washington courts have held that restitution under the SRA is both compensatory and punitive, and restitution under the SRA cannot be imposed for crimes committed prior to the effective date of the Act.)
Division I:
Right to silence – An individual may invoke the right to silence before they are in custody or the subject of suspicion or investigation because the right originates from the Fifth Amendment, not Miranda (citing State v. Easter, 130 Wn.2d 228, 243 (1996)). Here, the defendant invoked the right when her attorney informed police, before she was in custody or under arrest, not to contact the defendant. The state violated the right by eliciting testimony, during its case in chief, that the defendant failed to reach out to investigators, call, check in, or provide information about the case. The case Salinas v. Texas, 570 U.S. 178 (2013) did not overrule Easter because the court in Salinas did not decide whether defendants can assert the right to silence pre-custody and pre-arrest. Instead, the court in Salinas held the defendant did not invoke his right to silence. State v. Ianniciello, No. 86711-3-I (Jan. 20, 2026, substitute published opinion)
Washington Supreme Court:
Confrontation clause – Only statements that are both testimonial and hearsay implicate the confrontation clause. The confrontation clause does not prohibit a trial court from admitting out of court statements that are not hearsay even if the defendant never had an opportunity to cross-examine the declarant. Here, the statements were not hearsay because they were not used to show the truth of the matter asserted. Rather, the statements were used to show why the officers focused their investigation on the defendant. Thus, the court did not violate the confrontation clause by admitting the statements. State v. Bennett, No. 103469-5 (Jan. 15, 2026)
Rule of completeness – Under the rule of completeness, when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party to introduce any other writing or recorded statement, which “ought in fairness” be considered with it. ER 106. The rule is based on fairness and the truth-seeking function of trials and applies narrowly to statements offered to correct the misleading statement. The court need not consider alternative theories of admissibility such as “opening the door” “invited error” and “waiver” when the rule of completeness applies. Here, the court applied the rule to verbal statements indicating the rule is not limited to written or recorded statements. State v. Bennett, No. 103469-5 (Jan. 15, 2026)
Harmless error – Appellate courts must consider whether the alleged constitutional error is harmless beyond a reasonable doubt by considering both 1) the corrosive impact of the improperly admitted evidence; and 2) the strength of the properly admitted evidence. State v. Magaña-Arévalo, No. 103586-1 (Jan. 15, 2026).
Miranda – An officer’s advisement that a person is free to leave and not under arrest is just one factor to consider in the totality of the circumstances when deciding if the person is “in custody” for Miranda purposes. However, it is not dispositive. An officer’s admonishment alone cannot erase the custodial nature of an encounter. State v. Magaña-Arévalo, No. 103586-1 (Jan. 15, 2026).
(Editor’s note: In another opinion, State v. Wasuge, No. 103530-6, also published today, the Washington Supreme Court applied the Magaña-Arévalo decisions to a dissimilar set of facts. However, Wasuge did not announce any new principal of law that was not already contained within in Magaña-Arévalo, so no separate summary has been prepared.)
Double jeopardy – Pistol-whipping a person and then shooting at them is the same course of conduct, so long as it took place in a short period of time in the same place and the defendant stayed mad at the victim the whole time for the same reason. State v. Lee, No. 103451-2 (Jan. 15, 2026).
Manifest error – A court’s explanation for an evidentiary ruling that could be interpreted either as a comment on the evidence or just the legal reason for the decision does not rise to the level of manifest constitutional error and cannot be raised for the first time on appeal under RAP 2.5(a)(3). State v. Lee, No. 103451-2 (Jan. 15, 2026).
Division I:
Weapons surrender – A court abuses its discretion by failing to impose a period of incarceration lasting until the respondent has complied with a weapons surrender order, and by terminating the weapons surrender proceedings, when other reasonable contempt sanctions have proven ineffective. Llana v. Holiwell, No. 86474-2-I (Jan. 8, 2026).
Division II:
Repeat voting – The repeat voting statute is ambiguous as to whether it only prohibits repeat voting on the same issues and candidates, or whether it more broadly prohibits voting in both WA and another state in any election that occurs on the same date, even if, as here, none of the issues and candidates on the two state’s ballots were the same. RCW 29A.84.650(1). Both interpretations are reasonable. Thus, the rule of lenity applies, and the evidence was insufficient to support a conviction for repeat voting. State v. Padrta, 59737-3-II (Jan. 6, 2026).
(Editor’s note: this opinion was abrogated by SB 6084 on Mar. 17, 2026)
Division III:
Sentencing – A sentencing court has discretion to run firearm related sentences concurrently if running them consecutively results in a clearly excessive sentence that conflicts with the SRA’s core values of proportionality and consistency. RCW 9.94A.535(1)(g). A court abuses its discretion when it mistakenly believes it lacks discretion to impose an exceptional mitigated sentence, or when it imposes consecutive sentences that conflict with the SRA’s core values, notwithstanding RCW 9.94A.589(1)(c). The rule that standard range sentences cannot be appealed does not prevent defendants from appealing the legal determinations underlying the sentence. RCW 9.94A.585(1). A court can decline to consider a pro se motion when the party is represented by competent counsel, but if the court rules on it then the issue is preserved. State v. Smith, No. 40341-6-III (Jan. 8, 2026, Published in part).
Division I:
Evidence – A rational trier of fact could find a defendant intended to deliver controlled substances based on evidence that the defendant 1) was homeless but possessed 10 grams of meth and 50 fentanyl pills in separate receptacles with a street value of up to $800, 2) possessed $200 in denominations of a $100 bill and five $20 bills, 3) another person had been sitting in the defendant’s truck with him, near where a second pipe used for ingesting drugs was found, 4) deputy testimony that the size of the baggie was larger than normal for personal use, and that the other circumstances above indicated intent to deliver. State v. Hoover, No. 87203-6-I (Dec. 22, 2025, published in part).
Restitution – Before waiving restitution to an insurance company under RCW 9.94A.753(3), a trial court must find both that the defendant does not have a current ability to pay and that the defendant will likely not have a future ability to pay. Here, because the defendant had no physical or mental debilitation that would prevent work in the future, the court did not err in ordering restitution to the insurance company. State v. Morgan, No. 86639-7-I (Dec. 29, 2025, Published in part).
Division II:
Evidence – The second-degree burglary statute does not require a “nexus” between the unlawful entry and the crime the defendant intends to commit in the building. Here, the defendant committed second degree burglary by 1) unlawfully entering Winco Foods in violation of a trespass order, and 2) with the intent to commit the crime of violating a Domestic Violence No Contact Order (the defendant entered the store together with the protected person). State v. Veith, No. 59783-7-II (Dec. 23, 2025, unpublished).
9th Circuit:
Social media posts – When a social media company provides an authentication of social media posts, they authenticate the technical attributes of the records, not the substance of the posts. The substance of the posts is authenticated via ER 901. United States v. Allen, No. 24-804 (November 17, 2025).
Washington Supreme Court:
Public Records Act (PRA) – DBIA Services, a private nonprofit corporation, is the functional equivalent of a government agency and thus subject to the PRA. Two of the four Telford factors weighed in favor of functional equivalence, and two weighed against it. Telford v. Thurston Co. BOCC, 95 Wn. App. 149 (1999). But DBIA’s immunity from the PRA would frustrate the PRA’s goal of government transparency. Thus, all things considered, DBIA is the functional equivalent of a government agency. Horvath v. DBIA Services DBA Metropolitan Improvement District, No. 10333907 (Dec. 18, 2025).
(Editor’s note: One justice dissented because she did not believe any of the Telford factors weighed in favor of functional equivalence. She would have affirmed the trial court and the Court of Appeals.)
Division I:
Right to silence – Not contacting the police to inquire about the continuing investigation into the unsolved murder of a loved one can constitute “silence” under the Fifth Amendment, and, after an invocation, such an apparent lack of concern is inadmissible in the State’s case-in-chief in a subsequent homicide trial. State v. Ianniciello, No. 86711-3-I (Dec. 15, 2025).
Division III:
Public trial – The public trial right attaches to in-chamber discussions of dismissing a member of the venire for cause. Such a closure is unjustified without a Bone Club analysis. State v. Reyna, No. 39859-5-III (Dec. 18, 2025).
(Editor’s note: The court declined to apply a de minimus exception to this violation because, if it had, “…we would not be adequately reminding [the judge and the prosecutor] of their important functions, which include upholding established constitutional rights.”)
U.S. Supreme Court:
Party presentation rule – Under the party-presentation rule the parties frame the issues for decision, and the court serves as neutral arbiter of matters the parties present. A court violates the party-presentation rule by granting relief on a claim that the defendant never asserted. In this case, the U.S. Supreme Court held that the Fourth Circuit “departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” Clark v. Sweeney, No. 25-53 (Nov. 24, 2025).
Washington Supreme Court:
Recall Petitions – When a recall petition charges an elected official with violating the Open Public Meetings Act (OPMA), the petitioner must have knowledge of facts indicating an intent to violate the OPMA. Here, the record indicated that the commissioner attended an executive session where legal counsel was not present, and that therefore the attorney-client privilege exception to the OPMA did not apply. But the record failed to indicate that the petitioner had personal knowledge that the commissioner intended to violate the OPMA. Thus, the recall petition was legally insufficient. In Re Petition for Recall of Commissioner Lisa Olsen, No. 104087-3 (Dec. 4, 2025).
Blake – Individuals with invalidated convictions do not have a right to be reimbursed for community service work performed in lieu of LFOs under the Equal Protection Clause. The individuals alleging Equal Protection violations did not prove disparate treatment because the community service option was not limited to the poor. Further, equal protection claims require “significant state action” which the court found lacking because the community service was performed at nonprofit organizations and not for the State. State v. Danielson, No. 103627-2 (Dec. 11, 2025)
Division I:
Right to Appeal – Ordinarily, entry of a guilty plea that admits the sufficiency of the state’s evidence waives any subsequent challenge to that evidence. And ordinarily, a sentence within the standard range shall not be appealed. RCW 9.94A.585(1). But a defendant may reserve the right to appeal the denial of his motions to suppress evidence if the state agrees to it when the defendant enters his guilty plea (which the state did in this case). State v. Nielsen, No. 86402-5-I (Nov. 24, 2025, unpublished).
(Editor’s note: A better practice is for the parties agree to a stipulated facts bench trial following the denial of the defendant’s motions to suppress. Then the defendant can appeal the denial of his motions to suppress, and the appeals court will not have to struggle with the reservation of a right to appeal in a guilty plea statement that conflicts with the ordinary rules about what can be appealed.)
Competency – Where the evidence shows that DSHS made significant efforts to provide timely restoration services, but several structural barriers and resource limitations outside of its control left it unable to do so, a trial court abuses its discretion holding DSHS in contempt, as inability to comply is an affirmative defense to contempt. Courts may not impose sanctions for contempt based solely on a violation of the time requirements in RCW 10.77.605. RCW 10.77.605(9). However, courts may impose sanctions for contempt if the order that DSHS violated required DSHS to comply with the time requirements of due process (assuming DSHS is able to comply). State v. DSHS, No. 87697-0-I (Dec. 8, 2025).
Division II:
Evidence – A trial court does not abuse its discretion by allowing the state to refresh a witness’s recollection with an exhibit that the court excluded from evidence as a discovery sanction. A court has wide discretion to determine the sanction for a discovery violation and to determine whether something can be used to refresh a witness’ memory. State v. Newberry, No. 58893-5-II (Nov. 25, 2025, unpublished).
Division III:
Public Records Act (PRA) – A court may sanction a PRA plaintiff for failing to answer questions, or evading questions, during a deposition. An initial five-day response letter does not violate the PRA for failing to provide an estimated response time if the agency sent the letter during the COVID-19 pandemic when the governor paused the operation of RCW 42.56.520(1). An agency does not fail to produce responsive records if the requester asked for all emails that person A sent to the requester, and the agency withholds emails that person B sent to the requester using person A’s email account. The standard of review is de novo for reviewing a trial court’s decision to grant an injunction to protect an agency from harassing records requests from a prisoner, per RCW 42.56.565, if the trial court’s decision was based on a documentary record, not on live witness testimony. Here, the trial court erred in granting the injunction because the evidence of harassment was insufficient to support the injunction. Noyola v. Washington State DOC, No. 39698-3-III (Motion to Publish granted Dec. 9, 2025).
Foreign case of interest:
Takings – A county ordinance was enacted during the COVID-19 pandemic that prohibited all access to privately-owned beaches. County officers, to enforce the ordinance, entered the landowner’s property and excluded the landowners under threat of arrest. This was a “textbook physical taking” that entitled the plaintiffs to just compensation under U.S. Const. amend. V. Alford v. Walton County, No. 21-13999 (Nov. 17, 2025 11th Cir).
Weapons – A steak knife with a rounded tip and a 4 ½ inch blade is not a per se “weapon”. State v. Cortes, 374 Or. 461 (2025).
Washington Supreme Court:
Youthful offenders – Failure to meaningfully consider the mitigating qualities of youth in sentencing when requested is an abuse of discretion. A youthful defendant need not present any evidence to support a claim of youthfulness. Defendants need not object to preserve the error, nor need they allege ineffective assistance of counsel to appeal a failure to meaningfully consider the mitigating qualities of youth. Although the court must consider youthfulness, the court retains the discretion to not grant a mitigated sentence. State v. Ellis, No. 102378-2 (November 13, 2025).
Restitution – When restitution is solely compensatory, it is not “punishment” for the purposes of the excessive fines clause. State v. Ellis, No. 102378-2 (November 13, 2025).
Washington Supreme Court:
Workers’ compensation – The “traveling employee doctrine” applies when an employee contracts an occupational disease while traveling for work. An “occupational disease” is a disease that arises naturally and proximately out of employment. An employee who contracts an occupational disease in the course of employment is entitled to workers’ compensation. RCW 51.32.180. Courts should liberally construe the term “arises naturally” in favor of finding coverage. Here, the COVID-19 the plaintiff likely contracted either while working or while traveling for work as an Alaskan Airlines flight attendant could be an occupational disease. Azorit-Wortham v. Department of Labor and Industries, No. 103488-1, (Nov. 6, 2025).
Division II:
Jury selection – The voir dire question, “Does anybody here feel like they would not be able to convict based on testimony alone?” does not improperly implicate the unique facts of the case or improperly commit potential jurors to a verdict. State v. Camacho, No. 59503-6-II (October 28, 2025, unpublished).
Involuntary Treatment Act – Involuntary commitment pursuant to a nonunanimous jury verdict does not violate equal protection because there is a rational basis for the different jury unanimity rules under the ITA and the Sexually Violent Predator Act. In the Matter of the Det. of J.S., No. 59484-6-II (Nov. 4, 2025, unpublished).
Washington Supreme Court:
Confessions – The Juvenile Access to an Attorney Statute, RCW 13.40.740, is not retroactive because the legislature did not say it is retroactive, and because the statute creates a new substantive right rather than remedying a preexisting right. Here, the statute did not apply because the police sought waiver of the juvenile’s right to remain silent before the statute took effect. However, admitting the juvenile’s statements violated the defendant’s right against self-incrimination because the totality of the circumstances indicated the defendant lacked full awareness of the nature of the rights she was waiving, and the consequences of waiving them. The circumstances included the defendant’s youth (16 years old), she had never been Mirandized before, she recently sustained dozens of blows to the head, she felt dizzy, light-headed, after the interview she said she did not fully understand the warnings, or how to request an attorney, and that she thought she had to do what the detective said. The court also relied on research studies from amici about juveniles. State v. Luna, No. 103251-0 (Oct. 30, 2025).
Evidence – The trial court violated the defendant’s right to present a defense when it excluded an image the defendant received from an unknown third party on Snapchat with text claiming to put a “green light” (or hit) on the defendant and stating the victim had a whole gang ready to take the defendant out. The evidence was not hearsay because it was not offered to show the truth of the matter asserted, but to show the defendant’s fear before the altercation. Evidence of defendant’s fear was relevant to self-defense. State v. Luna, No. 103251-0 (Oct. 30, 2025).
Division II:
Mental health sentencing alternative – The Mental Health Sentencing Alternative (MHSA) statute requires the court to waive the standard range sentence when granting an MHSA. RCW 9.94A.695(4). All deadly weapon enhancements are mandatory and must be served in total confinement notwithstanding any other provision of law. RCW 9.94A.5334)(e). It is ambiguous whether the legislature intended a deadly weapon enhancement to become part of the standard range, and to be waived when the court grants an MHSA. Thus, the rule of lenity applies, the standard range subsumes the deadly weapons enhancement, and the court properly ordered zero confinement when it granted the MHSA. State v. Perrin, No. 58786-6-II (Oct. 28, 2025).
Same criminal conduct – If two crimes have different objective statutory intents, then they are not the “same criminal conduct” for purposes of the offender score. No additional analysis is necessary on whether the crimes furthered each other, were part of the same plan, occurred at the same time or place, or had the same victim. State v. Perrin, No. 58786-6-II (Oct. 28, 2025).
Boundary Line Adjustments (BLA) – The county did not erroneously interpret the law and its code when it determined that a BLA must comply with the applicable zoning density and when it then denied the petitioners’ applications for BLA’s. Cape George Land Company v. Jefferson County, No. 59366-1-II (Oct. 28, 2025, unpublished).
Division I:
Weapons surrender statute – A court abuses its discretion when it fails to issue an order to surrender weapons as a condition of a renewed DV Protection Order if the petitioner requests it and the elements of RCW 9.41.800(2) are met. The court should not consider whether the respondent needs weapons for his employment because that is not one of the elements to consider under RCW 9.41.800(2). Hudon v. Piffath, No. 86571-4-I (Oct. 20, 2025).
Division II:
Withdrawal of guilty plea – An error in the plea agreement as to the statutory maximum of a lesser count, that does not affect the overall sentence, is not a manifest injustice and does not entitle the defendant to withdraw his guilty plea. State v. Welter, No. 59830-2-II (Oct. 21, 2025, published in part).
Division I:
Jury unanimity – No unanimity instruction is required if the charge is based on acts that are part of a single continuous course of conduct that happened over a short period of time. Here, the defendant 1) held his arm out the car window with the gun, 2) chased down the victim in his car, and 3) blocked the victim with his vehicle and pointed the gun at the victim, all within a few minutes. Thus, the harassment charge was based on a single course of conduct, and no unanimity instruction was required. State v. Glover, No. 86605-2-I (Oct. 13, 2025, unpublished).
Division II:
Standing – Under the “subsequent purchaser doctrine” a plaintiff lacks standing to sue the government for inverse condemnation if the alleged government conduct happened before the plaintiff purchased the property (unless the seller expressly conveyed the right to sue for inverse condemnation to the buyer). The court will assume the purchase price reflected any reduction in value caused by the government’s conduct and will not allow the plaintiff to recover the lost value again by suing the government for inverse condemnation. Stephens v. Town of Steilacoom, No. 60051-0-II (Oct. 14, 2025 unpublished).
(Editor’s note: an “inverse condemnation” claim is a claim to recover the value of property that has been lost due to the government damaging or appropriating the property without formally exercising the power of eminent domain. The plaintiff’s tort claims were “subsumed” into the inverse condemnation claim and dismissed along with it.)
Foreign case of interest:
Relevance – In a prosecution of a man for hate crimes against Black and Hispanic people, it was not an abuse of discretion to 1) exclude the defendant’s mental health evidence, which contained little information about the defendant’s mental health at the time of the offenses, and 2) to admit the Nazi paraphernalia found in the defendant’s home to rebut the defendant’s testimony that the only reason he possessed an (already admitted) Confederate flag was because he “supports the military” and was interested in the history of the Civil War. United States v. Hudak, No. 24-4313 (4th Cir., October 7, 2025).
Washington Supreme Court:
Tribal sovereign immunity – Tribes may only be sued in state court if they waive sovereign immunity or if Congress has unequivocally abrogated sovereign immunity. Superior courts have in rem jurisdiction over real property, but they do not have subject matter jurisdiction over adverse possession claims involving nonreservation land owned by tribes. Under the “immovable property doctrine” sovereigns enjoy no immunity from actions involving immovable property located in the territory of another sovereign. However, here the immovable property doctrine did not apply because it has never been applied to waive Tribal sovereign immunity. Moreover, Congress has not waived sovereign immunity for claims such as this where plaintiffs claim to have acquired a strip of nonreservation land via adverse possession before the Tribe acquired it. Thus, plaintiff’s quiet title action is dismissed for lack of subject matter jurisdiction. Flying T Ranch, Inc. v. Stillaguamish Tribe, No. 103430-0 (Oct. 9, 2025).
Relief from judgment CR 60 – A court may, and in some cases must, grant a Motion to Vacate a judgment per CR 60(b)(11) if a subsequent decision of the court of appeals in a different case establishes the judgment was based on a legal error. The Motion to Vacate must be promptly filed. The trial court’s legal error, aside from not granting the CR 60 Motion to Vacate, was in quieting title in the landowner based on the incorrect conclusion that the six-year statute of limitations to foreclose on a deed of trust accrues from a landowner’s discharge from bankruptcy, when in fact it accrues with each unpaid payment even after the borrower’s personal liability has been discharged in bankruptcy. Luv v. West Coast Servicing, Inc., No. 103031-2 (Oct. 9, 2025).
Editor’s note: Four justices joined the lead opinion. One justice concurred with the lead opinion but would have relied on RAP 2.5(c)(2) to correct the error, not CR 60(b)(11). Four justices joined the dissent which argued among other things 1) CR 60(b)(11) gives trial courts (not the Supreme Court) discretion to set aside a judgment, 2) direct appeal is the proper way to challenge an alleged legal error by the trial court, not a collateral attack under CR 60, and 3) the lead opinion’s application of CR 60 violates the doctrine of finality.
Division I:
Excluded evidence & argument – A court does not violate a defendant’s sixth amendment right to counsel or due process by preventing defense counsel from arguing to the jury that certain evidence does not exist when the evidence does exist, but the court excluded the evidence at the defendant’s request. State v. Dervin, No. 85635-9-I (July 7, 2025, published in-part Oct. 6, 2025).
Division II:
Unpublished opinions – Appellant’s counsel cited two unpublished opinions in her brief without identifying them as unpublished, or as non-binding. The court imposed monetary sanctions against her for violating GR 14.1(a) per RAP 18.9(a), and caselaw. Courts may also address violations of GR 14.1(a) by striking the cases cited and their attached arguments. In the Matter of B.E.C, No. 60498-1-II, (Oct. 7, 2025, unpublished).
Division I:
Contracts – A breach of contract claim will be dismissed if the plaintiffs were not intended beneficiaries of the contract. Here, the county and the golf club entered a 20-year contract where the county agreed to reimburse the golf club for maintaining and operating a stormwater drainage system. The contract did not mention any obligations to adjacent landowners. Therefore, the plaintiffs, who were adjacent landowners whose basement flooded, were not third-party beneficiaries, and the trial court properly dismissed their breach of contract claim. Gueits v Whidbey Golf and Country Club, No. 87251-6-I (Sep. 29, 2025, unpublished).
Negligence – Under the “common enemy doctrine” landowners are shielded from liability for disposing of surface water from their land unless they 1) block a natural water course, 2) artificially channel water onto neighboring properties in a manner greater than or different from the natural flow, or 3) fail to act with due care to avoid unnecessary damage to neighboring properties. Here, the trial court properly dismissed the plaintiff’s negligence claim because the plaintiff’s evidence failed to create an inference that an exception to the common enemy doctrine applied, or that the plaintiff’s basement would not have flooded just as much but-for the defendant’s drainage system. Gueits v Whidbey Golf and Country Club, No. 87251-6-I (Sep. 29, 2025, unpublished).
Division III:
First amendment – The First Amendment allows a substantial amount of speech regulation within the physician-patient relationship but does not allow similar regulation of the doctor’s speech on the doctor’s public blog without a compelling interest. Here, the state did not violate the doctor’s First Amendment rights when it disciplined him for telling his patients to take Ivermectin and nebulized hydrogen peroxide for COVID-19. But the state violated the doctor’s First Amendment rights when it disciplined him for making similar statements on his public blog, because the state did not have a compelling interest in preventing the speech, and had not shown harm resulting from the Doctor’s blog posts. Wilkinson v. Washington Medical Commission, No. 40061-1-III (Sept. 16, 2025).
Washington Supreme Court:
Double jeopardy – Second degree assault with a deadly weapon, and harassment (threat to kill), are the same offense in fact when they are based on the same conduct. But they are not the same offense in law because neither conviction necessarily proves the other. The assault conviction requires proof of a higher mens rea (intentional v. knowing), and the harassment conviction requires proof of a more serious threat (threat to kill v. threat to cause bodily injury). Moreover, there is no clear evidence the legislature intended to prohibit separate punishments for each offense. Therefore, the two offenses are not the “same offense” for double jeopardy purposes. State v. Ray, No. 103509-8 (Sept. 11, 2025).
Division I:
Vagueness – The Prison Riot Statute (RCW 9.94.010) is not unconstitutionally vague or overbroad. The statute contains an implied mens rea element of intentional action. The statute contains an actus reas element of utilizing “force or violence, or the threat thereof.” The statute does not violate free speech, or the right to peaceably assemble. State v. Quijas, No. 86476-9-I (Sept. 8, 2025).
Double jeopardy – Convictions for Assault 1st Degree, and Rape 2nd Degree were the “same criminal conduct” for purposes of the offender score calculation, but the two convictions did not merge, and the trial court could impose separate punishments for each because each charge required proof of something the other did not (the Blockburger test). State v. Anderson, Jr., No. 86089-5-I (Sept. 8, 2025, unpublished).
Land Use Petition Act (LUPA) – A party must exhaust its administrative remedies to have standing under LUPA. RCW 36.70C.060(2)(d). Here, the Water District did not itself raise the issues to the hearing examiner that it wished to raise to the superior court in its LUPA appeal. However, another party (the County Department of Local Services) did. Therefore, the issues were preserved. That, combined with the fact that the Water District participated, at least minimally, at the administrative hearing before the hearing examiner (by appearing at the prehearing conference), meant the Water District exhausted its administrative remedies and had standing under LUPA. Woodinville Water District v. King County, No. 86736-9-I (Sept. 8, 2025, unpublished).
Division III:
Involuntary Treatment Act (ITA) – Superior courts have original subject matter jurisdiction to conduct involuntary treatment proceedings and to order less restrictive treatment alternatives. WASH. CONST. art. IV, § 6, and RCW 71.05.320. Here, the court did not exceed its authority when it directed the Developmental Disabilities Administration (DDA) to reassess C.E. and to reengage the placement process to effectuate the court’s own less restrictive alternative order. The court was not reviewing a final agency decision. Therefore, the procedures that are necessary for a superior court to have appellate jurisdiction under the APA (Ch. 34.05 RCW), such as exhaustion of administrative remedies, did not apply. In the Matter of the Detention of C.E., No. 40409-9-III (Sept. 9, 2025).
9th Circuit:
Jurisdiction – Timeliness of an appeal of a summary judgment order in a federal civil case is jurisdictional and is defined by 28 U.S.C. § 2107(a) which provides a 30-day appeal deadline starting from entry of the order. “Entry” of the order occurs when the district court files the order on the civil docket. To the extent the Federal Rules allow an additional 150 days to appeal collateral orders with no corresponding separate document, the Rules conflict with the statute and are thus invalid. Here, the defendants were prison officials defending against a civil §1983 action that the inmate plaintiff brought against them. The defendants waited 150 days to appeal the federal district court’s summary judgment order that the defendant’s lacked qualified immunity. Therefore, the appeals court no longer had jurisdiction to decide the merits of the appeal. McNeil v. Gittere, No. 23-3080 (9th Cir. Sept. 2, 2025)
Washington Supreme Court:
Employment law – In 2022, the legislature amended RCW 49.58.110(1) to require employers with 15 or more employees to disclose salary, wage, and benefits information in all job postings. Violations of this requirement entitles “job applicants” to $100 – $5,000 per violation plus attorneys’ fees. RCW 49.58.110(5)(a). “Job applicant” means a person who applies to a job posting, regardless of their subjective intent. Plaintiffs need not show they are “bona fide” applicants, or that they applied in “good faith,” or that they were qualified for the job, or that they sincerely wanted the job, or that they weren’t simply applying so they could recover the statutory damages. Branson v. Washington Fine Wine & Spirits, LLC, No. 103394-0 (Sep. 4, 2025).
Division I:
Indeterminate Sentence Review Board – The ISRB abused its discretion when it denied the petitioner’s request for release without meaningfully considering whether appropriate release conditions could lower the petitioner’s risk of reoffending to an acceptable level. The ISRB listed possible release conditions, and said they were insufficient, but did not say why they were insufficient, other than relying on the doctor’s conclusion that the petitioner was a Sexually Violent Predator (SVP) and was likely to reoffend regardless of release conditions. The ISRB, the court explained, should not have relied so heavily on the doctor’s evaluation because the evaluation was five years old and the petitioner was entitled to be reevaluated yearly under 71.09 RCW. Additionally, the petitioner disputed that he was a SVP, thus he was entitled to a determination by a fact finder, not just by the doctor. In Re the Personal Restrain of Day, No. 87505-3-I (Sept. 2, 2025).
Restitution – An appellate court’s decision to reverse and remand a restitution order for a hearing on the causal connection between the conviction, and the restitution amount ordered, is not necessarily a “modification” of the trial court’s restitution order. Therefore, RAP 12.8 (which authorizes refunds for overpaid restitution in appropriate circumstances) did not apply. And even if it did, the trial court did not abuse its discretion by denying defendant’s request for reimbursement of restitution. Nelson v. Colorado, 581 U.S. 128, 139 (2017) is inapplicable because the underlying conviction was not overturned. There was no due process violation because the defendant may still bring a civil action against the parties who ultimately received the money he paid and may receive a refund from them if appropriate. State v. Butcher, No. 86575-7-I (Sep. 2, 2025, unpublished).
Hearsay – A detective’s testimony that the defendant’s friend used a racial slur to describe the victim during the friend’s interview with the detective after the defendant killed the victim was not hearsay because the statement was not used to prove the truth of the matter asserted. Rather, the statement was used to prove the friend’s state of mind. However, the statement should have been excluded if the friend’s state of mind was irrelevant. The court did not decide whether the trial court erred by admitting the statement because any error was harmless. State v. Hoffman, No. 85456-9-I Sept. 2, 2025, unpublished).
Washington Supreme Court:
Victim’s rights – Where a trial court has allowed a nonparty, such as a victim or a victim’s survivor, to intervene to protect a legally cognizable interest, such as privacy, an appellate court may allow that nonparty to intervene on appeal, but solely on the issues the nonparty addressed in the trial court. State v. Thompson, No. 103338-9 (August 28, 2025).
Division I:
Juvenile confinement – At Green Hill School, juveniles were confined to their cells for lengthy periods due to staff shortages and overcrowding and had to urinate into plastic containers when bathroom wait times were too long. These conditions did not deprive the juveniles of human dignity, and were not severely unhygienic, and therefore not unconstitutionally cruel. Because the violations were statutory, as the State conceded, the proper remedy was to require the facility to comply with the statutes at once, but not to release the juveniles. In Re PRP of M.T.M.L., No. 86707-5-I (Aug. 25, 2025).
(Editor’s note: While this case was pending, one of the juveniles was transferred to a group home and subsequently escaped and, according to the opinion, is still at large.)
Foreign cases of interest:
Traffic stops – Roadside questioning generally falls into four categories: 1) small talk; 2) infraction-related inquires; 3) officer- and roadway safety-related inquires (which may include brief, casual questioning aimed at gauging risks or deescalating a situation); and 4) off-mission inquires. Benign small talk has no constitutional significance. Infraction-related inquires are obviously permitted. Questions that initially appear unrelated to officer safety may qualify as on-mission, safety-related inquiries when: 1) the officer has an articulable basis for safety concerns grounded in observable facts; 2) the questions, taken in context, can be reasonably understood as relating to those safety concerns, such as an effort to defuse tension, assess demeanor, determine the degree of caution needed, or evaluate whether the driver presents a threat; and 3) the officer does not prolong the stop with unrelated follow-up inquiries once reassured. Off-mission inquires that extend the time of a traffic stop must be supported by reasonable suspicion that there is an additional crime besides the reason for the initial stop to pass constitutional muster. Here, a 5-second exchange where an officer complemented the driver’s watch and asked him what he did for a living was constitutionally permissible because the driver exhibited signs of anxiety and nervousness, and such small talk could lower the “temperature” of the stop, and was not intrusive, in-depth, or asked repeatedly, and the officer asked no follow-up questions. United States v. Ross, No 23-1631 (3rd Cir., August 19, 2025).
Second amendment – Blanket waiting periods for firearm sales infringe on the Second Amendment by preventing the lawful acquisition of firearms and are not consistent with the nation’s historical tradition of regulating firearms. Ortega, et al. v. Lujan Grisham, et al., No. 24-2121 (10th Cir., August 19, 2025).
Division I:
Prosecutorial error – A prosecutor commits misconduct during voir dire by eliciting details about potential jurors’ experiences with sexual abuse in front of other potential jurors instead of focusing on whether they can be impartial. The fact that the prosecutor asked fewer follow-up questions to the juror who answered questions in private suggested the prosecutor’s voir dire strategy was to taint the other jurors with bias against the defendant. Here the error did not require reversal. State v. Coleman, Jr., No. 86629-0-I (Aug. 18, 2025, unpublished).
Division II:
Right to proceed pro se – A trial court abuses its discretion when it denies a defendant’s motion to proceed pro se if the defendant’s decision is unequivocal, knowing and voluntary, the defendant is mentally competent, and the defendant has not abandoned his request. The error in denying the defendant’s motion required reversal. State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Extrinsic evidence in the jury room – When the jury is improperly exposed to extrinsic evidence in the jury room, the trial court must ask whether the evidence objectively could have affected the jury’s verdict. If so, the defendant is entitled to a new trial under CrR 7.5(a)(1). State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Division III:
Search warrants – A search warrant authorizing the seizure of “Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.” Is overbroad because it allows the seizure of evidence related to crimes for which there is no probable cause, in this case sex crimes. State v. Hampton, No. 39943-5-III (Aug. 19, 2025).
Public records – Legal advice in a legal memo that counsel sent to the county planning director was attorney client privileged. The county did not waive the privilege by reproducing a checklist from the memo, briefly mentioning the checklist at a public meeting, using the checklist to determine whether water was legally available for land use permitting, or by providing the requester a redacted version of the checklist in an attempt to comply with the PRA. A record need not be prepared in anticipation of litigation, or be relevant to a controversy, to be attorney client privileged. Methow Valley Citizens Council v. Okanogan County, No. 40747-1-III (Aug. 19, 2025, unpublished).
Foreign case of interest:
Selective enforcement – Evidence of historical racial segregation and “overpolicing” of Black people; and disproportional stops of African American drivers vis-à-vis the overall population, was insufficient to prove the police had a discriminatory motive to stop a Black driver who had the same falsified temporary license plate as several other drivers spotted that night. First, historical evidence prior to 1990 is irrelevant to a stop conducted in 2020. Second, statistical disparities generally cannot show that any one decision was motivated by racial animus unless race can be isolated from other confounding variables such as poverty, residence in a high-crime area of town, and existing arrest warrants. Also, the comparison of drivers stopped was compared to the general population, not the racial makeup of drivers. United States v. Moore, No. 24-4201 (4th Cir. Aug. 1, 2025).
(Editor’s note: Although the egregious nature of the defendant’s behavior which led to his arrest, makes the statistics less important to the final outcome, this case is included for the cogent, well-reasoned discussion of the proper use of statistics in selective enforcement claims and the roundup of the relevant case law.)
Washington Supreme Court:
Juvenile court warrants – Juvenile Courts may not issue warrants unless the “individual circumstances” of the violation pose a “serious threat to public safety.” JuCR 7.16. Threats solely to the juvenile’s own safety do not meet this requirement. JuCR 7.16 does not conflict with RCW 13.40.040(1)(a) because juvenile courts can, and must, comply with both – the two can be harmonized by requiring juvenile courts to comply with the “threat to public safety” requirement. However, if there was a conflict, the statute would yield to the rule in this case because the issuance of warrants is procedural, which falls in the Supreme Court’s inherent, constitutional, and statutory power. State v. A.M.W., No. 103006-1 (August 14, 2025).
(Editor’s note: Justice Madsen’s dissent contains a discussion of the Supreme Court’s authority to promulgate procedural rules that is worth reading.)
Firearm rights restoration – A petition to restore firearms rights may be filed in any superior court in Washington and any Superior Court in Washington has the jurisdiction to hear it. WASH. CONST. art. IV, § 6. However, the general rule is that once a venue objection is made, and the court finds venue is improper, the court has only two options 1) transfer the petition to a proper venue, or 2) dismiss the petition. If the disqualifying conviction is from another state, the general rule regarding venue does not apply. Any Superior Court in Washington retains jurisdiction to decide the merits of the petition. Arends v. State, No. 103068-1 (Aug. 14, 2025).
(Editor’s Note: The Court agreed with the court of appeals that the petitioner did not have a “vested right,” under former RCW 9.41.040(4)(b), to file the petition in his county of residence. The vested rights doctrine does not apply to a form of procedure such as venue.)
Division I:
Attenuation doctrine – The attenuation doctrine applies in the Article 1, § 7 context when an intervening circumstance brings about a discovery beyond the foreseeable results of the police misconduct. Here, a third-party witness’s voluntary statements to law enforcement were an intervening circumstance going beyond the foreseeable results of the police improperly using CSS technology without a magistrate’s permission to locate the defendant’s phone. Thus, the statements were admissible. State v. Parker, No. 88034-9-I (Aug. 11, 2025).
Blake – A defendant is not entitled to resentencing under Blake if it is clear from the record that the trial court would have imposed the same sentence even without the offender score error. State v. Parker, No. 88034-9-I (Aug. 11, 2025).
Division II:
Blake – A DNA profile in CODIS was not collected “without authority of law,” in violation of Article 1, § 7, just because the sample was collected pursuant to a conviction that was subsequently vacated due to an unconstitutional criminal statute. Blake did not hold RCW 43.43.754, the statute that authorizes the collection and retention of DNA profiles in CODIS, to be unconstitutional. The State’s failure to notify the defendant that his conviction was vacated and his profile could be expunged did not amount to a violation of his procedural due process rights. State v. Munoz-Hernandez, No. 59255-0-II (August 12, 2025) .
Foreign case of interest:
Ineffective assistance – Refusing to present a legally untenable defense does not constitute ineffective assistance of counsel. Criminal defense attorneys have an ethical obligation to refrain from advancing frivolous defenses, and an obligation to disclose to the tribunal any legal authority that is adverse to the client’s position. State v. Baverov, No. A-0274-23 (N.J. Super. Ct. App. Div., Aug. 11, 2025) .
Division I:
Blake – CrR 7.8 does not authorize courts to vacate charges that were already dismissed upon successful completion of drug court. Nor does CrR 7.8 authorize courts to refund fees that are not LFO’s, such as drug court participation fees. State v. Peterson, No. 85791-6-1 (Aug. 4, 2025).
(Editor’s note: The court assumed, without deciding, other avenues for the same relief may exist via motions brought under Chapter 10.97 RCW to delete or to not disclose nonconviction data, or via motions to refund therapeutic court participation fees based on the holding and policy reasons set out in Blake. “It is conceivable too that either payment of drug court fees or the continued existence of nonconviction data, or both, could satisfy the restraint showing for a matter to be considered as a PRP.”)
9th Circuit:
Notice – The Sixth Amendment does not require “punishment enhancing facts” – facts serving solely to increase the prescribed range of penalties to which a defendant is exposed – to be pled in the charging instrument. The Notice requirement is not limited to the charging document. These facts are not essential elements of the crime. Apprendi and Blakely require those facts to be submitted to a jury, and proved beyond a reasonable doubt, but did not change the notice requirement for states. Handley v. Moore, No. 24-499 (9th Cir. July 29, 2025).
Washington Supreme Court:
Blake – Consequences of the Blake decision are not self-executing. An arrest warrant issued for an offender pursuant to a void conviction is voidable, but was not automatically void upon publication of the Blake decision. State v. Balles, No. 103582-9 (July 31, 2025).
Pretrial conditions – No authority of law authorizes a judge to order the patting down, handcuffing, and detaining a criminal defendant for the purposes of complying with RCW 10.98.050 (administrative booking.) State v. Evans, No. 103136-0 (July 31, 2025).
Standard of review – The standard of review of the sufficiency of the evidence in a bench trial is the same as a jury trial: whether, after viewing all of the evidence, presented in a light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. A trial court’s written findings and conclusions do not limit appellate review. State v. Roberts, No. 103546-2 (July 31, 2025).
Offender scoring – A point is properly added to the offender score of a defendant who commits a felony while being supervised by Washington DOC under the Interstate Compact for Adult Offender Supervision, regardless of whether the underlying foreign crime is comparable to a Washington offense. State v. Roberts, No. 103546-2 (July 31, 2025).
Recall – A recall petition will be dismissed if the next general election in which the elected official is up for reelection is less than six months away because the recall sponsors cannot meet the time limit in RCW 29A.56.150(1), and a court can no longer provide effective relief. In the Matter of Recall of Ruelas, No. 103542-0 (Jul. 31, 2025).
Division I:
Community custody conditions – A condition of community custody that the offender “remain within geographic boundaries, as set forth in writing by the CCO” is not unconstitutionally vague. RCW 9.94A.704 limits DOC’s authority to those reasonably related to… “[t]he crime of conviction, the offender’s risk of reoffending, or the safety of the community.” State v. Lundstrom, No. 86537-4-I (July 28, 2025).
Sexual assault protection orders – Courts do not need to determine whether the respondent in a SAPO petition has criminal capacity or is old enough to form the criminal intent necessary to commit the alleged crime. Conduct that would not support criminal liability can still be a basis for obtaining a sexual assault protection order. Jones v. Darragh, No. 86397-5-I (Jul. 28, 2025).
Division II:
Conspiracy – A defendant who gave his sister a gun and persuaded her to shoot him at work so he could file an L&I claim can be held criminally liable for Conspiracy to Commit Assault 2 and Conspiracy to Commit Drive-By Shooting. Although the legislature expressly prohibits victims being liable under an Accessory theory, the same is not true for Conspiracy. State v. Floe, No. 59948-1-II (July 29, 2025)
Blake – Due process does not require the State to refund the $370 that defendant paid toward the $500 drug court participation fee because the fee was not from a conviction, but from a contract entered when simple drug possession was a crime. The Eighth Amendment’s excessive fines clause does not apply because the fee was not punitive and therefore was not a fine. The contract doctrine of “frustration” does not require a refund because the $370 was for the State’s partial performance that occurred before Blake frustrated the contract. “Unjust enrichment” does not require a refund because that theory does not apply when there is a contract. “Mutual mistake” does not apply because Blake did not nullify the contract or render defendant’s agreement unknowing or involuntary. Former RCW 10.01.160(3) and Blazina do not apply because the trial court did not sentence the defendant. Extortion does not apply because the State did not unlawfully threaten the defendant into entering the contract. State v. Ward, No. 58969-9-II (July 29, 2025, unpublished)
Foreign cases of interest:
Nondisclosure orders – The Stored Communications Act, 18 U.S.C. § 2705, requires that a court issuing a search warrant or subpoena make a determination for each warrant or subpoena that disclosure to the user would harm the government’s case. A court cannot issue a blanket nondisclosure Order that applies to all future warrants or subpoenas in an investigation. In Re: Sealed Case, No. 24-5089 (D.C. Cir., July 18, 2025).
Sex offenders – States may require convicted sex offenders to participate in a sex-offender program as a condition of parole without providing any more process than a criminal trial (or a plea) on the underlying offense. McClendon El v. Washington, et al., No. 24-1849 (6th Cir., July 21, 2025).
Second Amendment – A federal statute (18 U.S.C. § 922(g)(4)) prohibiting firearm possession by a person previously involuntarily committed to a mental institution, but now released, is not facially unconstitutional because situations exist where the statute may be applied consistent with the Second Amendment. Release from a mental institution (in West Virginia) is not equivalent to a judicial determination that the person is no longer dangerous. United States v. Gould, No. 24-4192 (4th Cir. July 29, 2025).
Division I:
SSOSA – Invited error doctrine precludes an offender who was granted a SSOSA from appealing the conditions of sentence that were recommended by the offender’s evaluation and that were argued by the offender (and relied upon by the court) as reasons to grant the SSOSA. State v. Smith, No. 86394-1-I (July 21, 2025).
Division II:
Standing – Counties have standing to argue the funding system for indigent defense violates defendants’ right to counsel and equal protection. Counties are within the “zone of interest” of the funding system that they are challenging because the funding system is intended to help counties meet their constitutional requirement to provide indigent defense services. The “injury in fact” requirement is met because the counties allege the current funding system directly harms the counties’ ability to meet their constitutional duty to provide indigent defense. But even if the zone of interest or injury in fact requirements was a close call, the court would still find standing because of the public importance of the issue. Washington State Assoc. of Counties v. State, No. 60179-6-II (July 22, 2025).
Division III:
Vacation – Two violations of violating the same domestic violence no-contact Order, separated by five months, are not a “single incident” as defined in the vacation statute, RCW 9.96.060(f)(ii), and cannot be vacated. State v. Marvin, No. 40113-8-III (July 23, 2025).
9th Circuit:
Evidence – Visual identification lies within the province of the factfinder, who may properly compare photographic or video evidence of the culprit’s identity with the defendant’s courtroom appearance. The defendant’s courtroom appearance is not extrinsic evidence, regardless of whether it is somehow formally introduced into the record. United States v. Hassan, No 24-263 (9th Cir., July 22, 2025).
Washington Supreme Court:
Offender score – The term, “out-of-state convictions” as used in RCW 9.94A.525, is ambiguous because it could mean either “in another U.S. state” or “anywhere outside the borders of Washington.” Therefore, the rule of lenity applies and convictions from outside the United States may not be included in the offender score. State v. Lewis, No. 102910-1 (July 17, 2025).
Foreign case of interest:
Curtilage – A portion of a home’s driveway that is “several dozen feet” from an attached garage, used for parking, not secluded and visible from the street, is not within the curtilage. United States v. Moses, No. 23-3078 (3rd Cir., July 3, 2025).
ABA Formal Opinion:
Jury selection – A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law. ABA Formal Opinion 517 (July 9, 2025).
Washington Supreme Court:
GR 37 – Review of a GR 37 objection is de novo. Appellate courts need give no deference to the trial court’s observations concerning a prospective juror. State v. Bell, No. 103077-1 (July 10, 2025).
Division I:
Weapons surrender statute – The weapons surrender statute, RCW 9.41.801, does not violate the Fifth Amendment protection against self-incrimination because subsection (9)(a) provides immunity, and if 9(a) does not provide immunity then the prosecutor may provide immunity, and if the prosecutor does not provide immunity then the person can only be ordered to surrender weapons that are not self-incriminating. The statute does not violate the Fourth Amendment, or article 1, section 7, because there is no “state action” when a court orders a person to search their own home for weapons. The statute does not violate the Second Amendment because individuals who pose a clear threat of violence to others may be disarmed. The statute does not violate the separation of powers doctrine because the legislature appropriately delegated authority to the courts to ensure compliance with weapons surrender orders. Montesi v. Montesi, No. 85858-1-I (Jun. 30, 2025).
Division II:
Animal cruelty – DV expert testimony is admissible in an animal cruelty case to explain counterintuitive witness behavior, such as the defendant’s child initially lying about the defendant harming the animal, and delayed reporting. It is also admissible to discredit the defendant’s self-defense claim. This is true even though the testimony is not directly relevant to an element of the charged crime of animal cruelty. State v. Cecil, No. 58432-8-II (Jun. 3, 2025, Motion to Publish granted July 8, 2025).
Division III:
Speedy trial – Excluded periods pursuant to CrRLJ/CrR 3.3(e) apply to all “related charges” that are ultimately joined, regardless of whether they are joined, or even actively charged, at the time the excluded period occurs. State v. Lumpkin, No. 39830-7-III (Jul. 1, 2025).
Foreign Case of Interest:
Defenses – Defenses must apply throughout the duration of the crime to excuse the behavior. Here, a woman who drove drunk to escape her abusive husband was no longer excused from DUI after she had driven far enough to get away. State v. Stetzer, No. 2023AP874-CR (Wisc., July 3, 2025).
Washington Supreme Court:
Public records act – The “deliberative process exemption” (RCW 42.56.280) applies to initial offers for collective bargaining agreements (CBAs) and does not end until the legislature has funded the CBA. Citizen Action Def. Fund v. Off. of Fin. Mgmt. No. 103379-2 (June 26, 2025).
Employment law – Public employees in Washington State are entitled to paid leave when their military service requires them to be absent from their employment with state or local government even if they are not “scheduled to work” by the employer due to the length of their absence for military service. Barden v. City of Ocean Shores, No. 103121-1 (June 26, 2025).
Division I:
GR 37 – GR 37’s purpose is to prevent the use of peremptory challenges based on racial stereotypes or generalizations, not specific facts. Here, a preemptory challenge was proper for a prospective juror who is a woman of color because she was a witness in the same prosecutor’s recent case who had to be arrested pursuant to a material witness warrant, booked into jail, compelled to testify, and impeached by the State. State v. Mejia, No. 86244-8-I (June 23, 3035, unpublished).
(Editor’s note: This unpublished case has an unusual fact pattern. It is included because such situations may be more common in smaller counties and for the proposition that preemptory challenges are still possible under GR 37.)
Division II:
Vicarious liability – Where an employer concedes that its employee was acting within the scope of their employment during the allegedly negligent act, and that it is vicariously liable for the employee’s negligence, a simultaneous negligent retention claim is superfluous and cannot be brought. Earl v. City of Tacoma, No. 59220-7-II (Jun. 17, 2025).
Foreign cases of interest:
Second amendment – 18 U.S.C. § 922(b)(1), which prohibits the commercial sale of handguns to those under 21, does not violate the second amendment, because those under 21 were “infants” at common law and at the time of the ratification of the constitution, and unable to contract for the purchase of anything other than necessities. McCoy v. ATF, No. 23-2085 (4th Cir. June 18, 2025).
(Editor’s note: There is a brief concurring opinion worth reading.)
Second amendment – 18 U.S.C. § 922(q)(2)(A), which prohibits firearm possession within 1000’ of a school, is not unconstitutional as applied to a man who possessed an AR-15 in a car parked in front (within 40’) of a school. United States v. Allam, 24-40065 (5th Cir. June 16, 2025).
(Editor’s note: The Defendant challenged the statute facially in the District Court, who found it constitutional. This appellate decision only addresses the Defendant’s as-applied challenge.)
Washington Supreme Court:
Public records – Plaintiff sex offenders seeking to enjoin county from releasing their records to a public records requester cannot use pseudonyms, or seal the records, unless GR 15 and the Ishikawa factors are satisfied. Here, GR 15 and the Ishikawa factors were not satisfied because plaintiffs’ identities as sex offenders (including those adjudicated as juveniles) was already public information. Although SSODA evaluations are exempt from the PRA, plaintiffs’ identities appear in publicly available lists of sex offenders, which the requester compiled using public records. Therefore, plaintiffs did not have a legitimate privacy interest. Does v. Thurston County, No. 102976-4 (June 12, 2025).
Division III:
Booking questions – Answers to booking questions, asked after an invocation of the right to remain silent, are inadmissible if the officer who asked the question was aware that the response might be probative of the Defendant’s guilt. State v. Butler, No. 40152-9-III (June 10, 2025).
Foreign case of interest:
Miranda – A suspect who voluntarily sits in the passenger seat of an unlocked, unmarked police vehicle parked at his home and submits to questioning by two armed, (mostly) plainclothes officers for 41 minutes was not in such a “police-dominated” atmosphere to be “custodial and require Miranda warnings, even though he was never told he was free to go or whether he was under arrest for not. United States v. Nahkai, No. 24-4058 (10th Cir. June 3, 2025).
(Editor’s note: It would have been best practice to advise the suspect that the door was unlocked and he was free to leave.)
Division II:
Premeditation – WPIC 26.01.01, which states, “[t]he law requires some time, however long or short, in which a design to kill is deliberately formed,” does not misstate RCW 9A.32.020(1), which states premeditation must be of, “more than a moment in point of time.” Nor is it a comment on the evidence. State v. Hribar, No. 58982-6-II (June 3, 2025).
Felony firearm registration – The felony firearm offender registration statute, RCW 9.41.330, does not authorize a registration requirement for unarmed accomplices. State v. Couch, No. 58122-1-II (June 3, 2025).
Competency restoration – RCW 10.77.068(9) creates a statutory bar to an award of sanctions for the failure to meet deadlines for admission to the state hospital for competency restoration. State v. Lockhart, No. 59738-1-II (June 3, 2025).
(Editor’s note: The Court of Appeals’ decision is based on the trial court’s use of the pattern form, which indicated that the Order was rooted solely in the statute. Therefore, the statute barred a remedy of sanctions. Prosecutors should anticipate defense efforts to modify the pattern forms.)
Dismissal – A District Court abuses its discretion by denying the State’s Motion to dismiss pursuant to CrRLJ 8.3(a) (allowing the defendant to change his plea to guilty) when the State has refiled the case as a felony in Superior Court. State v. Taylor, No. 59042-5-II (May 20, 2025, unpublished).
Division III:
Public records – The court applied the “definitive response test” from Cousins v. State, 546 P.3d 415 (Wash. 2024) retroactively, even though Cousins did not “…impose a retroactive standard of strict compliance” as “such an approach would be entirely inconsistent with the balanced, functional approach taken by our precedent….” Cousins at 433. In this case, the county’s closing letter did not trigger the statute of limitations because the letter did not say the 1-year SOL had started to run, and did not say the requester may ask follow-up questions for a reasonable time. Here, the requester was entitled to attorney’s fees because he prevailed on the appeal of the summary judgment motion. Hood v. Stevens County, No. 39811-1-III (Jun. 3, 2025, unpublished).
Washington Supreme Court:
Confrontation clause – The confrontation clause prohibits crime laboratory supervisors from testifying about test results reached by a nontestifying subordinate. If the ultimate opinion hinges upon whether a statement from a lab analyst is true, that analyst must testify for the ultimate opinion to be admissible. State v. Hall-Haught, No. 102405-3 (May 29, 2025).
(Editor’s note: Justice González’ points out in a brief concurrence that it remains unclear what statements that form the basis of an expert’s opinion must be subject to cross examination.)
Division I:
General-specific rule – Escape, RCW 9A.76.110, and Failure to Appear or Surrender, RCW 9A.76.190, are concurrent statutes. Therefore, an offender who fails to report to jail must be charged with Failure to Appear or Surrender, the crime specific to this conduct. State v. Widders, No. 86849-7-I (May 27, 2025).
Division III:
Attorney-client privilege – A controversy between the client (Mike) and the attorney must exist before the attorney can disclose privileged information to establish a defense to a claim by the client. Here, the controversy was between the estate of a different former client (Bert) and the attorney. Therefore, the attorney could not reveal the confidential contents of Mike’s client file notwithstanding Mike was a witness for Bert’s estate in the controversy. Mike could assert his attorney-client privilege, and the court could decide whether disclosure of his client file was permissible, without Mike being a party and without the court having personal jurisdiction over Mike. Taylor v. Ebenger, No. 39262-7-III (May 27, 2025).
Washington Supreme Court:
Informants – A 911 call is not the same as an “anonymous tip.” A 911 call from a bystander (meaning someone not connected with the events) giving a contemporaneous eyewitness report is part of the totality of the circumstances that establishes reliability. The caller’s basis of knowledge is a factor in assessing the tip’s reliability, but is not required. Wenatchee v. Stearns, No. 102680-3 (May 15, 2025).
Division I:
Commercial sex acts – The (human) Trafficking statute, RCW 9A.40.100, does not limit commercial sex acts to those between the victim and a third person, arranged by a seller. “Things of value” may be housing, food and monetary support received by the victim directly from the defendant. State v. Callahan, No. 86613-3-I (May 19, 2025).
Land use – A hearing examiner may approve a plat application that fails to strictly comply with the county’s comprehensive plan if the development regulations do not expressly require compliance with the comprehensive plan. Fall City Sustainable Growth v. King County, No. 86032-1-I (May 19, 2025).
Division III:
Prosecutorial error – A prosecutor may present evidence and arguments related to religion and culture when it is relevant. Here, evidence of the defendant and victim’s religion and culture was probative of the defendant’s motive for killing his ex-wife, who had apparently changed her behavior and beliefs in ways inconsistent with Iraqi Islamic cultural norms. State v. Darraji, No. 39421-2-III (May 22, 2025).
Foreign case of interest:
Search & seizure – An officer’s mistaken belief about a law violation can be an objectively reasonable basis for a traffic stop. United States v. Smith, No. 24-1006 (May 13, 2025).
Washington Supreme Court:
Second Amendment – RCW 9.41.370, which prohibits the manufacture, distribution, importation, and sale of firearm magazines capable of holding more than 10 rounds of ammunition, does not violate either the Washington or United States constitutional protection of the right to bear arms. Large capacity magazines (LCMs) are not “arms” within the meaning of either constitutional provision, nor is the right to purchase LCMs an ancillary right necessary to the realization of the core right to possess a firearm in self-defense. State v. Gator’s Custom Guns, Inc., No. 102940-3 (May 8, 2025).
Torts – The Statute of Limitations for actions based on childhood sexual abuse does not bar claims of sexual abuse that originate from childhood sexual abuse that extend into adulthood. The lower court engaged in improper fact finding when it concluded the alleged childhood sexual abuse did not cause the adult sexual abuse. M.R. v. State, No. 102899-7 (May 8, 2025).
Division I:
Deferred prosecution – When a District Court is presented with violations of the deferred prosecution program, RCW 10.05.090 allows the court to only either terminate the deferred prosecution or continue treatment. Nothing in the statute limits the treatment to a specified term of years. State v. Peoples, No. 86111-5-I (April 28, 2025).
Division II:
Mental health sentencing alternative – Courts may deny a request for a Mental Health Sentencing Alternative (MHSA) when, among other reasons, there is no nexus between a defendant’s mental health diagnoses and the crime; the victim opposes a MHSA; the defendant has a lengthy criminal history and non-compliance with court orders, limited history of engagement in mental health treatment, and continued treatment within DOC is more suitable than a MHSA. State v. Colon, No. 59046-8-II (Apr. 29, 2025).
Restraints – Merely appearing by video from jail, without more (e.g. handcuffs, leg restraints, behind bars, glass windows, mesh windows etc.) is not an unconstitutional restraint. Due process does not require the court to make an individualized inquiry before the defendant appears by video. Even if due process required that, the error is harmless when the evidence of guilt is overwhelming. State v. Ferguson, No. 58378-0-II (Apr. 29, 2025).
Aggravating circumstances – The victim of a vehicular homicide or assault may be particularly vulnerable under RCW 9.94A.535(3)(b) if they are on the side of a freeway and either: 1) outside a car; or 2) sitting in a stationary car. The victim outside a car is not protected by a vehicle, and the person sitting in a stationary car has little opportunity to evade a collision. State v. Ireland, No. 58212-1-II (April 29, 2025).
Division I:
Open Public Meeting Act – Council members’ statements at public meeting, immediately following executive session, indicated council made a final collective decision in executive session. Therefore, the Council violated the OPMA. West v. Walla Walla City Council, No. 87208-7-I (Apr. 21, 2025).
(Editor’s note: decisions in executive session are arguably authorized in a few situations but even then, final action is generally required at a public meeting. See e.g. commentary on pgs 21 and 25 of MRSC’s OPMA Manual regarding RCW 42.30.110(1)(b)-(c) (purchasing or leasing property); RCW 42.30.110(1)(i)[discussing litigation with counsel].)
Laches – Absent highly unusual circumstances, the court will not apply the laches doctrine before the statute of limitations expires. The fact that the plaintiff delayed filing the lawsuit until the city manager was already hired, and on the job for two months, was not a highly unusual circumstance. Therefore, the court would not consider the laches defense before the SOL expired. West v. Walla Walla City Council, No. 87208-7-I (Apr. 21, 2025).
Division II:
Second amendment – The Second Amendment does not protect felons, whether their crimes are characterized as violent or not. Therefore, the Unlawful Possession of a Firearm statute is not unconstitutional. State v. Koch, No. 58449-2-II (April 22, 2025).
(Editor’s note: The court also found that criminalizing possession of firearms by nonviolent felons does not violate article 1, section 24 of the Washington constitution.)
9th Circuit:
Fresh pursuit – A nine-minute delay where the officer loses sight of the suspect, does not break the continuity of a pursuit. Newman v. Underhill, No. 24-1493 (April 23, 2025).
Attorney General Opinion:
PID lists – There is no authority for removing law enforcement officers from a PID (“Brady”) list based simply on the passage of time. Whether other circumstances might justify removal from such a list is a fact-specific inquiry not susceptible to an across-the-board answer. Case law makes clear that prosecutors should err on the side of disclosure in any case in which they are unsure. AGO 2025 No. 2 (April 21, 2025).
Washington Supreme Court:
Accomplice liability – The State need not prove knowledge of a plan to commit the crime to prove accomplice liability. Washington’s accomplice liability law allows the state to prove an accomplice either aided or agreed to aid another in the planning or in the commission of the charged crime. State v. Zghair, No. 102787-7 (April 17, 2025).
Homeless Encampments – Local initiatives exceed the local initiative power if they are “administrative” rather than “legislative.” The “Hansen Initiative” in Spokane was administrative because it “greatly expands” Spokane’s criminalization of camping and conflicts with Spokane’s preexisting comprehensive homeless camping policy by banning camping in areas within 1,000 feet of a school, park, or childcare facility regardless of whether shelter space was available. Jewels Helping Hands v. Hansen, No. 102814-8 (April 17, 2025).
(Editor’s note: A hearing examiner, the Superior Court, and the Court of Appeals upheld the initiative as legislative. In reversing, the Supreme Court noted this was a “close call.”)
Division III:
Service of process – Civil plaintiffs must properly serve the county within the statute of limitations, or the case will be dismissed unless the county waived the improper notice defense. Service on the board of county commissioners is not sufficient, and actual notice, standing alone, is not sufficient. The county can unintentionally waive the defense by behaving as if they have been properly served, e.g. engaging in discovery while secretly waiting for the statute of limitations to expire. Larson v. Chelan County, No. 40438-2-III (April 17, 2025, unpublished).
Foreign case of interest:
Hearsay – Former testimony may be admissible in a criminal trial, pursuant to ER 804(b)(1), regardless of whether the former testimony was in a civil matter. People v. Harmon, No. 2025 COA 38 (Colo. App. April 10, 2025).
(Editor’s note: This decision was made under the evidence rules. In order to satisfy the confrontation clause, the criminal defendant would have had to be present in the civil matter.)
Washington Supreme Court:
Community custody – Community custody condition prohibiting access to material depicting “sexually explicit conduct” is not unconstitutionally vague or overbroad. A person of ordinary intelligence can understand what conduct is prohibited from that description. Due process does not require that a defendant is able to predict with complete certainty the exact point at which their actions would be classified as prohibited conduct. State v. J.H.-M., No. 102635-8 (Apr. 10, 2025).
Division II:
Denial of counsel – Defense counsel’s “minimal presentation” at sentencing, which amounted to no more than a request to follow the agreed recommendation, was not a constructive denial of counsel, even when the court did not follow the recommendation. The State robustly endorsed the plea agreement, so it was a legitimate strategy to “let the Government do the talking.” State v. Greatreaks, No. 59439-1-II (April 8, 2025).
(Editor’s note: The defense specifically disavowed an ineffective assistance claim in this case, depending instead on “constructive denial of counsel”.)
Division III:
Alternative means – Interfering with Reporting Domestic Violence (RCW 9A.36.150) is not an alternative means crime. The conduct criminalized by the statute is preventing or attempting to prevent the reporting of domestic violence. The criminalized conduct does not change based on who the violence is being reported to. State v. Buck, No. 39445-0-III (Apr. 10, 2025).
Foreign case of interest:
Rape shield – A defendant seeking to admit evidence of the victim’s past sexual behavior under an exception to the Rape Shield law cannot compel the victim to testify at the hearing to determine admissibility of such evidence. Those hearings are for the presentation of argument on the admissibility of evidence already identified in motion by the moving party, not to uncover or test that evidence. State v. Jolley, In re T.T., No. 20240290 (Utah, April 10, 2025).
(Editor’s note: Utah’s Rape Shield law, URE Rule 412, is modeled on the equivalent Federal rule, FRE 412.)
Washington Supreme Court:
Sanctions – An “individualized justice model,” where sanctions are meted out based on the justice’s feelings, beliefs and policy preferences, results in inconsistent and unpredictable sanctions, which undermines fairness and efficacy in attorney discipline proceedings. The well-established three-stage sanctions analysis is less subjective and therefore more consistent and fundamentally fair. In re Disciplinary Proceeding Against Wallstrom, No. 202188-3 (April 3, 2025).
Division II:
Public records – The names and addresses of individuals who apply for the exemption from the WA Cares Fund are exempt from disclosure under RCW 50B.04.170(1) because the information is used in assessing premiums and determining eligibility for benefits. The agency did not silently withhold records by creating a new record containing the requested information. Pilloud v. Employment Security Department, No. 59149-9-II (April 1, 2025).
Professionalism – It is not ineffective assistance for a defense attorney to refer to the prosecutor as “my colleague” during a jury trial. That argument is frivolous. An adversarial proceeding need not be contentious. It is a testament to the professionalism of both counsel that the trial was not a screaming match between angry combatants. State v. Hall, No. 57762-3-II (April 1, 2025, unpublished).
Washington Supreme Court:
Conditions of sentence – Random breath and urine testing to monitor compliance of statutorily authorized conditions of a sentence in a case that did not involve substance use are constitutionally permissible. State v. Nelson, No. 102942-0 (March 27, 2025).
Discretionary review – RAP 2.3(b)(3), which allows discretionary review where the court has “so far departed from the accepted and usual course of judicial proceedings… as to call for review…” applies to substantive irregularities, not just procedural irregularities. In Re Dependency of C.J.J.I., No. 103541-1 (March 27, 2025).
Recall Petitions – A legal voter of the state lacks standing to petition to recall a public officer of a political subdivision if he or she is not a legal voter of the political subdivision from where the officer was elected. In the Matter of the Recall of Suggs, No. 103314-1 (Mar. 27, 2025).
Division I:
Immunity – Washington’s anti-SLAPP statute (RCW 4.24.510) provides immunity from civil liability to a nurse who tells police a patient assaulted her, where the communication touches on the patient’s personal health information, and the patient sues the nurse for violating the Uniform Healthcare Information Act (Chapter 70.02 RCW) and for invasion of privacy. Campanelli v. Peacehealth Southwest Medical Center, No. 86615-0-I (Mar. 24, 2025).
(Editor’s Note: Washington has more than one anti-SLAPP statute. See e.g. M.G. v. Bainbridge Island School District, No. 86846-2-I (Mar. 24, 2025) discussing a different anti-SLAPP statute, Chapter 4.105 RCW.)
Division II:
Missing evidence instruction – Defense was not entitled to a missing evidence instruction when video evidence of the crime was deleted by a third party in the normal course, even though the police knew about the footage but failed to retrieve it. The video was not uniquely available to the State, and absence of the footage was explained – the clerk on duty at the time of the crime didn’t have access to the surveillance footage. State v. Plotnikov, No. 59063-8-II (March 25, 2025, unpublished).
Division III:
Comparability – Oregon’s crimes of Theft, Robbery and Burglary are not legally comparable to Washington’s Theft, Robbery and Burglary statutes. State v. Zimmerman, No. 39765-3-III (March 28, 2025).
(Editor’s note: In this case, most of the defendant’s prior Oregon convictions were found to be factually comparable, based on the language in the foreign charging instruments. Oregon’s “plea petitions” {equivalent of a Statement of Defendant on Plea of Guilty} will seldom contain a statement to satisfy a factual basis for a plea. However, Oregon’s pleading rules require very specific charging language. Therefore, you will frequently find specific allegations in an Oregon Information or Indictment which may prove factual comparability.)
9th Circuit:
Second amendment – The Second amendment protects the right to bear “arms,” not “accoutrements” to arms, such as high-capacity magazines. But even if it did, California’s ban on possessing large capacity magazines is consistent with the Nations’ tradition of protecting innocent persons by regulating a component of a firearm. Duncan v. Bonta, No. 23-55805 (9th Cir. Mar. 20, 2025).
Search warrants – A search warrant for an electronic device that includes a provision to search for evidence of dominion and control must establish probable cause that the evidence of dominion and control is relevant and follow the same particularity requirement for the dominion and control provision as any other evidence. United States v. Holcomb, No. 23-469 (9th Cir., March 27, 2025).
Foreign case of interest:
Second amendment – Because minors have yet to reach the age of reason, Florida’s Marjory Stoneman Douglas High School Public Safety Act, which prohibits a person under 21 from purchasing a firearm, is consistent with the nations’ historical tradition of firearms regulation. Just because Florida lowered the age of majority for other rights does not mean that it has less power to restrict the rights of minors than it did at the Founding; distinguishing the right to purchase a firearm from other rights is consistent with the founding-era legal regime. N.R.A. v. Commissioner, Florida Dept. of Law Enforcement, No. 21-12314 (11th Cir. March 14, 2025).
Division I:
Second amendment – Disarming those convicted of Vehicular Homicide by Disregard for the Safety of Others is consistent with the United States’ historic tradition of firearms regulation. State v. Hamilton, No. 85055-5-I (March 17, 2025).
Legal financial obligations – The DUI emergency response fee in RCW 38.52.430 is mandatory and cannot be waived due to indigency. However, it does require judicial findings that the amount imposed is “reasonable.” State v. Hamilton, No. 85055-5-I (March 17, 2025).
Division II:
Collateral attacks – When a subsequent collateral attack alleges good cause for failing to raise new issues in a previous collateral attack, a trial court errs by ruling on the merits without first addressing the procedural issue of whether good cause existed. State v. Airington, No. 58369-1-II (March 18, 2024).
Foreign cases of interest:
Potentially impeachable disclosures – Forensic scientists, and not just prosecutors and police officers, have a duty to disclose exculpatory evidence even absent bad faith. Clark v. Louisville-Jefferson Cnty. Metro Gov’t, No. 24-5061 (6th Cir., March 7, 2025).
Search & seizure – There is no 4th Amendment privacy interest in the bullet extracted by surgeons from a self-inflicted gunshot wound. Although the surgeons who removed the bullet were government actors, since they routinely turn over all extracted bullets to police, a 911 call for emergency medical assistance is consent to surgical removal of the bullet. Additionally, falsely claiming that a “masked intruder” was the shooter is an abandonment of any possessory interest in the bullet. United States v. Gaye, No. 23-1240 (10th Cir. March 11, 2025).
ABA Formal Opinion:
Ethics – When a client commits a crime against a lawyer or the lawyer witnesses a crime against someone associated with the lawyer or related to the lawyer, RPC 1.6 implicitly permits the lawyer to disclose information about the client’s crime to the extent reasonably necessary to permit the relevant authorities to investigate and possibly prosecute the crime or to enable the lawyer to seek other services, remedy, or redress. ABA Formal Opinion 515.
Washington Supreme Court:
Torts – Plaintiffs in a premises liability case, to prove the cause element of negligence, must prove the defendant had actual or constructive notice of the unsafe condition unless the “reasonable foreseeability” exception applies. A genuine issue of material fact as to whether the reasonable foreseeability exception applies precludes summary judgement. A trier of fact could find that allowing customers to help themselves to bulky items stored on high shelves could result in reasonably foreseeable injuries to customers from falling items. Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0 (Mar. 13, 2025)
Division II:
Foreign convictions – The holding of Erlinger v. United States, 602 U.S. 821 (2024) is limited only to the federal Armed Career Criminal Act. A judge, rather than a jury, may make the determination of whether a prior out-of-state conviction is comparable to a Washington offense. The state was not obligated to inform the defendant in the charging document that it would seek to have his out-of-state convictions included in his offender score. State v. Frieday, No. 58467-1-II (Mar. 11, 2025).
Search & Seizure – An affidavit for a search warrant for an illegal cannabis grow need not necessarily include that the officers have checked the legal status of the grow operation and confirmed that the grow operations are not registered with the State. State v. Le, No. 58336-4-II (Mar. 11, 2025).
(Editor’s note: It’s still a good idea to include this information.)
Division III:
Plea agreements – The State’s unfulfilled promise to return property to the accused in a plea agreement is specifically enforceable within the criminal case. Allowing the defendant to withdraw his plea is not a just remedy since withdrawal of the guilty plea could cause him to lose the benefit of his bargain. State v. McManis, No. 39680-1-III (Mar. 11, 2025).
Plea agreements – Although plea agreements are governed by contract law, they also implicate due process and criminal procedure, so not all contract law principles apply. The contract doctrine of an illusionary promise does not belong in plea agreement jurisprudence. And mutuality in each clause of a contract is not required when consideration is given for the contract as a whole, as in a plea agreement. State v. McManis, No. 39680-1-III (Mar. 11, 2025).
Second Amendment – Unlawful Possession of Firearms (UPOF) conviction predicated on a nonviolent felony is not unconstitutional, even when the predicate is Escape from Community Custody on community custody ordered pursuant to a conviction invalidated by Blake. State v. Olson, No. 39517-1-III (Mar. 11, 2025).
Pro se defendants – In reviewing whether a defendant’s waiver of counsel was knowing, intelligent and voluntary, the appellate court is not limited to the court’s colloquy with the defendant at the time of the waiver, but may review the broader record. A court need not discuss collateral consequences (with the exception of deportation) with the defendant during the colloquy. State v. Sochirca, No. 39751-3-III (March 13, 2025).
Animal cruelty – A person may kill a dog that is chasing, biting, injuring or killing domestic animals, pursuant to RCW 16.08.020, but not inflict undue suffering. State v. Sochirca, No. 39751-3-III (March 13, 2025)
Washington Supreme Court:
Search & seizure – Ferrier warnings are not required when an officer is simply investigating a complaint and not searching for evidence, regardless of whether the officer describes the encounter as a “knock and talk.” State v. Mercedes, No. 102622-6 (March 3, 2025).
(Editor’s note: In this case, an animal control officer requested to see the defendant’s livestock after receiving complaints from a neighboring ranch that the horses were emaciated. The majority holds that no Ferrier warnings were required due to the nature of the contact. One concurrence argues that this result is not dependent on the location of the contact, e.g. around, but not in, the house. A second concurrence would have decided the case on the location of the contact, which was the issue briefed by the parties.)
Elections – The voter signature verification statute, RCW 29A.40.110(3), is not facially unconstitutional under the WA constitution, at least not when coupled with the increasingly expansive cure system that Auditor’s offices use. Washington’s signature verification law does not facially violate the freedom of elections clause, the privileges and immunities clause, or the due process clause of our state constitution. Nothing in the opinion should be read to foreclose an as-applied challenge to the way signature verification has been used in specific instances or places. Vet Voice v. Hobbs, No. 102569-6 (March 6, 2025).
Division I:
Prosecutorial error – The term “beef” (as in a dispute) does not have a clear racial connotation to an objective observer, absent additional context. State v. Bellerouche, No. 84887-9-I (March 3, 2025).
(Editor’s note: There is a lengthy dissent.)
Prosecutorial error – The State does not burden-shift by arguing in rebuttal that the defendant must be the “unluckiest man in the world” to be accused of sexual assault on four different occasions, by four different women, when the defense questioned the truthfulness and memory of the accusers. Such an argument is simply an appeal to the jury’s common sense, or to the (rough) laws of probability. State v. Shakir, No. 84717-1-I (March 3, 2025, unpublished).
Division II:
Motions to dismiss – When the State moves to dismiss a case without prejudice pursuant to CrR 8.3(a), the trial court lacks authority to dismiss with prejudice, absent some finding that would warrant dismissal pursuant to CrR 8.3(b). State v. W.H., No. 59094-8-II (March 4, 2025).
Public records – An agency’s failure to search email accounts for responsive records, when there is some evidence that related emails existed, creates at least a genuine issue of material fact as to whether the City failed to conduct an adequate search that was reasonably calculated to uncover all relevant documents responsive to a request for: “all records the Downtown Redevelopment Authority got from the auditor… [r]egarding the most recent state audit.” Hood v. City Of Vancouver, No. 59242-8-II (Mar. 4, 2025).
Foreign case of interest:
Best evidence rule – Admitting testimony about text messages without admitting the original text messages does not violate the best evidence rule where testimony established that the receiving cell phone was lost, the sending phone could not be accessed, and there was no evidence that the State destroyed the text messages in bad faith. Tucker v. State, No. S25A0070 (Ga. Feb. 18, 2025).
(Editor’s note: The Georgia Supreme Court applied Georgia’s Best Evidence Rule which contains the same exception for lost or destroyed writings as Washington State’s Best Evidence Rule. ER 1002, ER 1004(a).)
U.S. Supreme Court:
Prosecutor’s duty – The State violates its obligations under the 14th Amendment’s Due Process clause when it fails to correct false trial testimony from a key witness that the state knew to be false, even when that witness’ credibility was already impugned and the defense could have known that the testimony was false. Glossip v. Oklahoma, No. 22-7466 (February 25, 2025).
Attorney’s fees – Parties who gain only preliminary injunctive relief before the action becomes moot do not qualify as “prevailing parties” eligible for attorney’s fees under 42 U.S.C. § 1988(b) if no court conclusively resolved their claims by granting enduring judicial relief on the merits that materially altered the legal relationship between the parties. A preliminary injunction may become irreversible by way of mootness but that does not convert it into a permanent injunction or result in a decision on the merits. Lackey v. Stinnie, No. 23–621 (February 25, 2025).
Division II:
Juvenile sentences – RCW 13.40.160(11), which states, “In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense” does not refer to the standard range, since the SRA provides for exceptional sentences, and an adult “could” be subjected to an exceptional sentence up to the statutory maximum. State v. M.V., No. 58853-6-II (February 25, 2025).
Search & seizure – The independent source doctrine allows admission of digital evidence seized from a cell phone pursuant to a valid warrant regardless of whether the officer’s initial, warrantless seizure of the physical phone was authorized. State v. Tyson, No. 58888-9-II (February 25, 2025).
Foreign case of interest:
Search & seizure – Using a cell phone’s camera to see through tinted windows does not violate reasonable expectations of privacy, and therefore not a “search” within the meaning of the Fourth Amendment. State laws on tinted windows require a degree of opacity, and cell phones with cameras are both widely available and routinely used by the general public. United States v. Poller, No. 24-75-cr (2nd Cir. February 20, 2025).
(Editor’s note: This case uses the Fourth Amendment’s “reasonableness” standard, rather than the more protective Article 1 § 7 analysis, however, Washington case law has generally agreed with Fourth Amendment analysis on the use of “enhancing senses” using commonly available techniques such as flashlights, binoculars, etc. See e.g. State v. Rose, 128 Wn.2d 388 (1996). Caution is advised, however.)
Washington Supreme Court:
Evictions – The CARES Act only requires 30 days’ notice when evicting a tenant for failure to pay rent, not evictions for other reasons, such as nuisance. Hous. Auth. v. Knight, No. 102905-5 (February 20, 2025).
Division I:
U visas – Limiting cross-examination into a sexual assault victims’ pending U visa application may violate the defendant’s right to confront witnesses where the victim is the sole accuser and key witness. State v. Bravo, No. 85030-0-I (February 18, 2025).
Division II:
Offender scoring – RCW 9.94A.525(1)(b), which excludes most juvenile adjudications from being included in a defendant’s offender score, does not apply to sentences imposed after the effective date for crimes committed before the effective date (July 23, 2023.) State v. Solomon Gibson, No. 58962-1-II (February 19, 2025).
(Editor’s note: Division I has already made the same holding. State v. Troutman, 30 Wn. App. 2d 592, 546 P.3d 458 (2024), review denied, 554 P.3d 1217 (Wash. 2024). These holdings give effect to RCW 9.94A.345.)
9th Circuit:
Attorney Client Privilege – Communications between an attorney and the attorney’s public agency client are confidential if the primary purpose of the communication is to provide legal advice. The presence of multiple Sheriff’s Department employees at a meeting where the attorney provides legal advice does not waive the privilege because the attorney represents the entire Sheriff’s Department. The privilege extends to written reports memorializing the communications at the meeting, where the agency has treated the reports as confidential. Greer v. County of San Diego, No. 23-55607 (9th Cir. Feb. 10, 2025)
(Editor’s note: An important factor in Washington is whether the agency employees believed their communications were attorney client privileged. Soter v. Cowles Pub. Co., 162 Wn. 2d 716, 746 (2007) (“More importantly, these people believed they were clients.”) Meaning, if the attorney informs the individual employees that he represents the agency not the individual employees, as recommended by ABA Formal Opinion 514, then the attorney’s communications with agency employees may not be privileged.)
§1983 – State and local officials cannot be sued under 42 U.S.C. § 1983 for alleged constitutional violations if they were acting “under color” of federal law, and not under color of state law. Courts consider the totality of the circumstances in determining whether state actors assigned to joint federal-state task forces were acting under color of state law. In general, where the source of authority for the program is federal and the state officials are subject to the immediate control of a federal supervisor, those officials act under color of federal law, not state law, and the § 1983 action against them will be dismissed. Thai v. County of Los Angeles, No. 23-55326 (9th Cir. Feb. 12, 2025).
Foreign case of interest:
Second amendment – suppressors are not “Arms” protected by the Second Amendment. United States v. Peterson, No. 24-30043 (February 6, 2025).
(Editor’s note: This case collects several cases with the same conclusion from other circuits, including the Ninth.)
Threats – A stalking prosecution premised on acts constituting contacting or approaching the victim does not implicate the rule announced in Counterman v. Colorado, 600 U.S. 66 (2023) because it is premised on the defendant’s conduct, not content of the defendant’s speech. People v. Morris, No. 23CA1927 (Colo. App., Feb. 6, 2025).
Division I:
Joinder – In a joint trial, evidence of uncharged acts that would be inadmissible against one of the co-defendants pursuant to ER 404(b), is admissible without an ER 404(b) analysis if the evidence is probative of the charged acts of another co-defendant. The jury must be properly instructed on who the evidence is to be considered against, however. Admission of such evidence is the consequence of a joint trial. State v. Miller, No. 84870-4-I (February 3, 2025).
(Editor’s note: The court points out that the Defendant did not assign error to the joinder.)
Division III:
Default judgments (civil) – Default judgments entered erroneously are voidable. Only a jurisdictional defect can render an order or judgment void. Lamb v. Lamb, No. 40157-0-III (February 6, 2025).
(Editor’s note: In this case, an email from an attorney inquiring whether the plaintiff would waive a conflict – which the plaintiff would not – was found to be sufficient appearance under CR 55(a)(3). Because the plaintiff did not serve the defendant with a notice of hearing for the default judgment motion, the judgment was voidable)
Foreign case of interest:
Second amendment – A federal law prohibiting the sale of handguns to 18 – 20-year-olds is not consistent with the Nation’s historical tradition of firearm regulation. Reese v. ATF, No. 23-30033 (5th Cir., January 30, 2025).
Division III:
Terry stops – An officer may conduct a warrantless safety sweep of an unoccupied vehicle pursuant to a Terry stop. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983) was not overruled by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). State v. Howard, No. 39665-7-III (January 28, 2025).
Insanity acquittees – A person found not guilty by reason of insanity and committed to a state hospital is entitled to credit for time served against the maximum term of commitment only for the time spent detained pretrial for evaluation or treatment pursuant to Chapter 10.77 RCW. State v. Phillips, No. 39857-9-III (January 30, 2025).
9th Circuit:
Relevance – Evidence of the value of the defendant’s illegal narcotics is relevant even when it is not an element of the offence because it tends to disprove unwitting possession. United States v. Velasqez, No. 24-5359 (January 21, 2025).
Foreign case of interest:
Discovery – The party seeking production of smartphone data must 1) provide “some evidence” of the smartphone’s use by the person from whom the data is sought – relatively low burden but mere suspicion or speculation is insufficient to justify intruding into the privacy interests of an opposing party; 2) describe each item and category with reasonable particularity, which specifically applies to the subject matter of the information sought and the temporal scope of the request unless the contents are unknown or unknowable. Jennings v. Smiley, No. 24S-CT-186 (Ind., January 24, 2025)
(Editor’s note: Indiana Trial Rule 26(B) is identical to Washington’s CR 26(B). The case collects several relevant cases from outside jurisdictions.)
Washington Supreme Court:
Crime Victims’ Compensation Fund – A sentencing court cannot reduce the amount of restitution owed to the Crime Victims’ Compensation program. State v. Morgan, No. 102643-9 (January 23, 2025).
Division II:
Blake – A person who requested community service in lieu of legal financial obligations for a conviction now vacated pursuant to State v. Blake is not entitled to reimbursement for the hours spent performing community service. State v. Sindars, No. 58839-1-II (January 22, 2025).
Division III:
Deeds – A recorded Deed of Trust that inadequately describes the property does not encumber the property. The property description in the recorded interest must be clear enough for the court to understand it without extrinsic evidence or testimony. A cover sheet cannot be used to correct an inadequate description. A court may not disregard an incorrect legal description in a deed under a theory of construing it. Errors in a property description cannot be corrected by one party unilaterally striking out words and writing in new words, and recording the corrected version, without clear and convincing evidence that both parties to the deed approved the edits. William & Maria Lawson v. Bankers Insurance Co, et al, No. 40213-4-III (Jan. 21, 2025).
Sufficiency of the evidence – Testimony by the victim that the approximate value of stolen goods was “approximately $1500” is insufficient to establish the value of the goods was over $750, even with photographs of the stolen property and evidence that the value estimate did not include all the stolen property. Testimony regarding value must establish “fair market value” and must include a basis for the opinion. State v. Golyshevsky, No. 58335-6-II (January 22, 2025, unpublished).
Ninth Circuit:
Notice – Placing tickets and a tow notice on the windshield of an illegally parked car provides the car’s owner sufficient notice that the car is about to be towed. However, the owner letting the tickets pile up on the windshield does not provide adequate notice to the city that the owner isn’t checking the windshield of his car for legal process. Grimm v. Portland, No. 23-35235 (9th Cir., January 3, 2025) .
Foreign case of interest:
Second amendment – A state law that effectively bans 18-to-20-year-olds from carrying firearms outside their homes during a state of emergency is not consistent with the Nation’s historical tradition of firearm regulation. Madison Lara v. Commissioner PA State Police, No. 21-1832 (3rd Cir., January 13, 2025).
Washington Supreme Court:
Tribunal – An appellate judge cannot participate in the review of a case on which that judge sat as a trial court judge. The remedy is reversal. State v. J.M.H., No. 102658-7 (January 16, 2025).
(Editor’s note: This is one half of the previously consolidated case of State v. J.M.H. & A.M.W., in which Division III had held that JuCR 7.16, which prohibits warrants in juvenile court cases, was unconstitutional. The Supreme Court severed the cases after oral argument. This decision does not address the validity of JuCR 7.16 )
Torts – Forestland owners are immune from liability when trees in a Riparian Management Zone (RMZ) they were required to leave in place, fall and cause damage or injury. RCW 76.09.330. The definition of “forestland owners” in RCW 76.09.020(16) includes those who have control over the land and does not require ownership of the title. Here, the defendants were forestland owners because they had the right to sell or otherwise dispose of the trees. Pub. Util. Dist. No. 1 of Snohomish County v. State, No. 102586-6 (Jan. 16, 2025).
Division I:
Wrongly Convicted Persons Act – A recantation by a victim alone is not necessarily enough to prove actual innocence by clear and convincing evidence. Determining which story to credit requires a careful examination of the retracting victim’s credibility and the circumstances surrounding the recantation. Brock v. State, No. 86617-6-I (January 13, 2025).
Division II:
Harassment – The victim of harassment is the person who is the target of the coercion, intimidation or humiliation caused by the threat. A person may harass someone by threatening to injure another. Therefore, the victim of harassment need not be the person who was threatened. Here, the officers who witnessed the defendant threaten to kill the infant in his arms were properly pled and proven to be the victims of felony harassment because his threats were to coerce or intimidate the officers into leaving the scene. State v. Johal, No. 58980-0-II (January 14, 2025).
Foreign case of interest:
Organizational advice – Advising a client organization about potential future actions the organization may wish to take may include an ethical duty to notify the organization about potential legal risks the action could create for individuals working for the organization. RPC 1.1, 1.4, and 2.1. And attorneys must take reasonable measures to avoid and correct any misunderstandings the non-client individuals working for the client-organization may have about the attorney’s role (for example, explaining that the organization is the attorney’s client, not the individuals working for the organization.) RPC 4.1, 4.3, 1.13(f). ABA Formal Opinion 514 (January 8, 2025).