Involuntary Treatment Act (ITA)
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 McCaulley v. State of WA, No. 88984-2-I (Aug. 31, 2026, Unpublished)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)
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)
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:
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)