WAPA's Legal Notes Archives

WEEKLY ROUNDUP DURING THE YEAR OF 2007

WEEKLY ROUNDUP FOR DECEMBER 28, 2007

Contracts. A waiver of rights under a contract must be unequivocal. A city’s willingness to negotiate to try to reach a settlement does not constitute an unequivocal waiver of its rights to demand complaince with the contract’s provisions. American Safety Casualty Ins. Co. v. City of Olympia, No. 79001-9 (Dec. 27, 2007). This unanimous opinion reverses the COA decision.

Public Records Act. A state or local government entity can seek judgment in superior court, pursuant to RCW 42.56.540, as to whether a particular record is subject to disclosure. Handwritten notes or memoranda about witness interviews that were created by the school district’s legal team were protected work product, and not subject to disclosure under the Public Records Act. Soter v. Cowles Publishing Co., No. 78574-1 (Dec. 27, 2007). The majority opinion refuses to overrule Linstrom, and specifically recognizes that the fight should be taken to the legislature:

Justice Madsen authored a concurring opinion. Justice Charles Johnson authored the dissenting opinion.

Blakely and State’s Right to Appeal. The State may appeal a standard range sentence, on the grounds that the trial judge erred by refusing to apply RCW 9.94A.537 to convene a jury to consider aggravating circumstances. An appeal from a trial court’s refusal to allow the State to prevent aggravating circumstances to a jury does not violate double jeopardy, provided that any enhanced sentence imposed on remand is reduced based on the time the defendant has already served. State v. Murawski, COA No. 56941-4-I (Dec. 24, 2007).

Right to Counsel in Contempt Proceedings. A child support debtor’s failure to apply for a public defender despite warnings from the State that it would seek jail time and repeated instructions from the court to do so is certainly dilatory, but it does not rise to the level of extremely dilatory conduct required for forfeiture of the right to counsel. Knight v. Knight, COA No. 58250-0-I (Dec. 24, 2007).

Exceptional Sentences. A defendant who agrees to an exceptional sentence and does not challenge the validity of the plea agreement itself may not challenge only that exceptional sentence. State v. Dillon, COA No. 54560-4-II (Dec. 24, 2007).

Collateral Attacks. A personal restraint petition based upon the kidnap merger discussion of Korum does not satisfy any exception to the one-year jurisdictional statutory time bar for bringing a collateral attack, as Korum was based upon a perceived insufficiency of the evidence, not upon merger or double jeopardy. The exception to the time bar contained in RCW 10.73.100(4), is not available to individuals who pled guilty and did not go to trial. In re Personal Restraint of Bybee, COA No. 35438-1-II (Dec. 24, 2007).

Constructive Possession. While dominion and control over the premises where drugs are found is one circumstance to be considered by the trier of fact, dominion and control of the premises does not create an inference that the defendant had dominion and control over the drugs found on the premises. State v. Shumaker, COA No. 25860-2-III (Dec. 27, 2007), overruling State v. Ponce, 79 Wn. App. 651, 904 P.2d 322 (1995).

Robbery. Washington's robbery statute clearly sets forth two ways to commit a taking of another's personal property. When the State only charges the alternative of taking property form a victim’s person, it is proper to exclude the "presence" alternative from the "to convict" instruction. State v. O’Donnell, COA No. 25660-0-III (Dec. 27, 2007).

First Amendment and Public Employees. An employee’s charge of high level corruption in a government agency has all of the hallmarks normally associated with constitutionally protected speech. If an employee’s official duties do not require the employee to report misconduct and to pursue appropriate discipline, Garcetti v. Ceballos, 126 S.Ct. 1951 (2005), will not prevent the employee from pursuing a 42 U.S.C. § 1983 action against his or her government employee for retaliation. Marable v. Nichtman, No. 06-35940 (9th Cir. Dec. 26, 2007).

Police Internal Investigations. A police officer is not seized for Fourth Amendment purposes when he is ordered by his supervisor to remain at a designated location for questioning about the officer’s possible official misconduct triggering a criminal investigation, if the only sanction the officer faces for non-compliance is job loss or demotion. A police officer does not suffer a Fifth Amendment violation by being reassigned to a different duty in response to their refusal to provide a statement, as they were neither compelled to respond nor asked to waive their right against self-incrimination. Assigning the suspect officers to less favorable shifts and "degrading" positions did not constitute a Fourteenth Amendment violation. Aguilera v. Baca, No. 05-56617 (9th Cir. Dec.27, 2007).

American with Disabilities Act. The Teamsters’ burden-shifting protocol is inapplicable to a facial challenge to an employer’s safety qualification standard under the ADA. Rather, the employer bears the burden to prove a nexus between the safety qualification and business necessity and the plaintiffs must show that they can perform the essential functions of the position. In addition, Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), is overruled to the extent that it imposes a BFOQ standard under the ADA. Bates v. U.P.S., No. 04-17295 (Dec. 28, 2007)

WEEKLY ROUNDUP FOR DECEMBER 21, 2007

Inherent Contempt Powers. A court may use its inherent contempt power to impose punitive sanctions for indirect contempt without violating the due process clauses of the United States Constitution. A juvenile court commissioner or judge may only exercise their inherent contempt power if he or she specifically finds that criminal contempt of court under RCW 7.21.040 is inadequate. A juvenile court in a criminal contempt proceeding is not limited to 7 days of confinement. In Re Dependency of A.K., No. 78426-4 (December 20, 2007). Justice Madsen authored a concurring opinion. Justice Owens authored the dissenting opinion.

Attorney Discipline. The appropriate presumptive sanction under RPC 8.4(i) for conviction of first degree child molestation is disbarment. In Re Discipline of Day, No. 200,429-6 (Dec. 20, 2007). Justice Sanders dissented.

BAC Admissibility. Retroactive application of the Fircrest version of RCW 46.61.502 to tests that were administered prior to the effective date of the Fircrest version violates the ex post facto clause of the United States Constitution. Ludvigsen v. City of Seattle, No. 79974-1 (Dec. 20, 2007). Justice Madsen authored the concurring opinion.

Land Use. The superior court does not have jurisdiction under LUPA to review a claim that a site-specific rezone application does not comply with the GMA. Woods v. Kittitas County, No. 78331-4 (Dec. 20, 2007). Judge Pro Tem Becker authored a concurring opinion.

Release of Sex Offenders. The statute governing transfer to community custody in lieu of earned early release, RCW 9.94A.728, does not allow DOC to categorically exclude offenders who meet the sexually violent predator criteria. In re Personal Restraint of Mattson, COA No. 58823-1-I (Dec. 17, 2007).

Seizure of Witnesses. A police officer may not seize someone solely because the person seized may have been a witness to a crime. State v. Carney, COA No. 34147-6-II (Dec. 18, 2007).

Emergency Exception. The emergency exception to the warrant requirement does not apply to a case in which the deputies,who responded to an anonymous tip complaining of chemical smells at a particular property, delayed entry until the Clandestine Lab Team responded to the scene. The evidence from the illegal search may still be admissible if sufficient untainted evidence existed in the affidavit for the search warrant to support a finding of probable cause. State v. Leffler, COA No. 3401904-II (Dec. 18, 2007). This opinion replaces the one filed on August 21, 2007.

Obstruction. Spokane Municipal Code 10.07, which is substantially the same as RCW 9A.76.020, is not unconstitutionally vague. Bishop v. City of Spokane, COA No. 25684-7-III (Dec. 18, 2007).

Informer Privilege and Challenges to Search Warrants. Disclosure of a citizen informant’s identity is not appropriate when the informant only provides information relevant to probable cause, nothing in the record indicates that the citizen informant provided false information to the police and the defendant does not challenge the existence of the informant or contend that the deputy misrepresented the informant's statements or information. A defendant is not entitled to a Franks hearing merely by identifying additional information that the defendant believes should have been included in the affidavit or by producing photographs that the defendant claims are indicative that the officer could not have seen what the officer claimed to have seen in the search warrant affidavit. There was sufficient information in the search warrant affidavit to establish the credibility of the unnamed citizen informant where the issuing magistrate was advised that the informant provided his or her name and other contact information to police, the informant received no compensation or other reward in return for the tip, the informant had not criminal convictions, a background check revealed nothing to give the investigating officer reason to suspect the information provided was false, and the informant said his or her reason for coming forward was to assist law enforcement in ridding the community of suspected narcotic manufacturers and traffickers. State v. Atchley, COA No. 25235-3-III (Dec. 18, 2007).

Double Jeopardy. A defendant may be convicted of, and punished for, both second degree rape of a child and second degree rape arising from a single act of intercourse. State v. Hughes, COA No. 23946-2-III (Dec. 20, 2007). Judge Schultheis authored a dissenting opinion.

DNA Collection and RFRA. Compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA). United States v. Zimmerman, No. 06-50506 (9th Cir. Dec. 18, 2007).

WEEKLY ROUNDUP FOR DECEMBER 14, 2007

"Armed". A burglar’s movement of a rifle, from a closet to a bed, during the burglary is insufficient to support a finding that the burglar is "armed" for purposes of the first degree burglary statute or a deadly weapon enhancement. The State bears an extra burden of demonstrating that the burglar had the intent or willingness to use the rifle. State v. Brown, No. 77885-0 (Dec. 13, 2007). Justice Sanders authored a concurring opinion. Justice Madsen authored the dissenting opinion.

Intimidating a Witness. Evidence that a defendant threatened a prospective witness in an attempt to prevent them from providing any information to the police is insufficient to establish that the defendant threatened them with the intent to influence the prospective witnesses’ testimony. State v. Brown, No. 77885-0 (Dec. 13, 2007). Justice Sanders authored a concurring opinion. Justice Madsen authored the dissenting opinion.

Time for Trial. A defendant is not held "outside the county" within the meaning of former CrRLJ 3.3(g)(5), now codified as CrRLJ 3.3(e)(6), when the defendant is sent outside the county to serve a sentence imposed by a court of limited jurisdiction within the county. State v. Chhom, No. 78463-9 (Dec. 13, 2007). Chief Justice Alexander authored the dissenting opinion. Justice Sanders concurred in the dissent! [Editor’s note: The majority opinion states that, "[w]hen interpreting a court rule, this court has eschewed a literal reading of the language when such a reading fails to effecutate the intent of the rule." They did not have to reconcile this position with the construction provision, CrRLJ 3.3(4), of the current rule, but it does not bode well for compliance with the plain language of the construction provision.]

DOL License Suspension Hearings. The DOL hearing officer may consider a declaration from the state toxicologist that states that all of the breath test machines in Washington utilize an approved thermometer. Ingram v. Department of Licensing, No. 80149-5 (Dec. 13, 2007).

Recall Petitions. A recall petition is moot if the subjects of the recall petition elect not to run for reelection or they unsuccessfully run for reelection and there is insufficient time for the person who is petition for the recall to gather the signatures that are necessary to justify the holding of a recall election, before challenged officials’ current terms end. A superior court judge, who is reviewing the legal and factual sufficiency of the charges for recall, may permit the government body of which the challenged official is a member, to intervene in the case under CR 24. In re the Matter of the Recall Charges Against Seattle School District No. 1 Butler-Wall, No. 79869-9 (Dec. 13, 2007). In their concurring opinion, Justices Jim Johnson and Sanders exhort intervening governmental bodies to remember that they may not use public funds on politics.

LEOFF 2. LEOFF’s "right to sue" provision abrogates the City’s sovereign immunity. The City has no standing to challenge the provision under Const. art. I, § 12, the privileges and immunities clause. Locke v. City of Seattle, No. 79222-4 (Dec. 13, 2007).

Hybrid Sentences. A court may not give a hybrid part concurrent and part consecutive sentence. When a DOSA sentence is imposed to be served concurrently with a non-DOSA sentence, the court may not order that the treatment portion of the DOSA sentence be served following the defendant’s release from custody on the non-DOSA sentence. State v. Smith, COA No. 58715-3-I (Dec. 10, 2007).

Confrontation and the SVP. Neither the Sixth Amendment right to confrontation nor due process require that a sexually violent predator detainee be permitted to confront a live witness. In re Detention of Allen, COA No. 56883-3-I (Sept. 24, 2007, released for publication on Dec. 10, 2007).

WEEKLY ROUNDUP FOR DECEMBER 7, 2007

Right to Counsel. There is no constitutional right to publicly funded counsel in a dissolution case. In re Marriage of King, No. 79978-4. Justice Sanders authored the concurring opinion. The dissenting opinion was authored by Justice Madsen. Justice Chambers joined in the dissent.

The Supreme Court granted review of the following four cases on December 4, 2007:

Second or Subsequent DUI. For purposes of RCW 46.61.5055, a "prior offenses" occurring "within seven years" of the defendant's arrest for the current offense includes the period both before and after the arrest for the current offense. When a deferred prosecution is revoked, the deferred prosecution does not count as a "prior offense" when imposing sentence. City of Seattle v. Quesada, COA No. 58336-1-I (Dec. 3, 2007); City of Seattle v. Winebrenner, COA No. 58710-2-I (Dec. 3, 2007).

Sexually Violent Predators. The trial court judge has discretion to allow a jury to hear that an SVP detainee refused to speak with the government’s mental health expert. The trial court did not abuse its discretion by allowing the government to establish that the person the SVP detainee planned on residing with upon release was a convicted sex offender with a history of sexually abusing children. The trial court did not abuse its discretion by precluding cross-examination into the general success of Washington’s SVP treatment program. In re Detention of Duncan, COA No. 24820-8-III (Dec. 4, 2007).

Execution of Search Warrants. The handcuffing for 10 to 15 minutes, of an 11-year-old boy, who was barefoot and was wearing a T-shirt and shorts, during the execution of a search warrant and of arrest warrants for the boy’s parents for narcotics trafficking and tax-related offenses, constituted excessive force in violation of the Fourth Amendment as the officers outnumbered the occupants of the house 20 to 1, the child did not attempt to flee and did not resist the officers’ instructions. The detention was also unreasonable under the Fourth Amendment. Tekle v. United States, No. 04-55026 (9th Cir. Dec. 3, 2007).

WEEKLY ROUNDUP FOR NOVEMBER 30, 2007

Sex Discrimination. An employer who refuses to hire a job applicant because of her pregnancy is liable for sex discrimination under chapter 49.60 RCW (WLAD). The accommodation analysis applicable to disability discrimination claims is inapplicable to sex discrimination claims based upon pregnancy. Employers also violate RCW 49.60.180(4), by inquiring about an applicant’s history of pregnancy or other pregnancy related matters unless the inquiry is based upon a valid bona fide occupational qualification. Hegwine v. Longview Fibre Company, No. 78728-0 (Nov. 29, 2007). Justice Madsen concurred in the result, but disagreed with the majorities characterization of a number of administrative rules.

Blakely and Finality. A defendant, who received an exceptional sentence long before Blakely was decided and who did not challenge the exceptional sentence during his first appeal, could not challenge the imposition of the exceptional sentence following a remand to the trial court during which the trial court judge simply corrected the defendant’s offender score, ordered two reversed convictions deleted from the 1998 judgment and sentence, and did not exercise independent judgment to revisit the defendant’s exceptional sentences for the five affirmed convictions. State v. Kilgore, COA No. (Nov. 27, 2007). Judge Penoyar authored a concurring opinion. Judge Armstrong authored a dissenting opinion.

Failure to Register as a Sex Offender. A sex offender who registered as a transient in one county, then moved into a residence in another county for "a couple of weeks" without registering with the sheriff of the new county, was properly convicted of failing to register as a sex offender. The prosecutor was not required to forego charges and the court was not required to dismiss charges on the grounds that the sex offender "substantially complied" with the sex offender registration law. State v. Stewart, COA No. 25612-0-III (Nov. 27, 2007).

Closed Courtrooms and Individual Voir Dire. The questioning of selected jurors individually in the jury room, based on their responses to a questionnaire that asked the prospective jurors about their experiences with sexual abuse, violated the state constitution. The defendant may assert a constitutional violation of the right to a public trial, even though the defendant waived his right to be present for the questioning. State v. Duckett, COA No. 25614-6-III (Nov. 27, 2007). Judge Brown dissented.

Bail Bonds. A bonding company’s agreement with a defendant that the defendant will turn himself into the court immediately following Christmas, does not prevent a forfeiture of the bond when police apprehend the defendant prior to the date agreed upon between the defendant the bonding company. Nonetheless, the bonding company may still be entitled to a partial exoneration of the bond based upon a number of factors enumerated in the case. State v. Kramer, All-City Bail Bonds, COA No. 25569-7-III (Nov. 29, 2007).

Self Defense. Defining the word "malice" from WPIC 17.02 with an instruction that omits the following language from RCW 9A.04.110(12): "Malice may be inferred from an act done in willful disregard of the rights of another", rendered the self-defense instructions inaccurate. State v. O’Hara, COA No. 25597-2-III (Nov. 29, 2007). The dissenting opinion was authored by Judge Brown.

Fifth Amendment. Statements made by a pre-trial detainee to the staff psychiatrist, who ran a co-ed counseling group, outside of the group setting were not involuntary and their admission at the pre-trial detainee’s murder trial did not violate the Fifth Amendment. Beaty v. Schriro, No. 05-99013 (9th Cir. Nov. 28, 2007).

Compliance With Court Rules. Failure to comply with the rules governing the mandatory components of a brief on appeal can result in the striking of the brief and the dismissal of the appeal. Sekiya v. Gates, No. 06-15887 (9th Cir. Nov. 29, 2007).

Improper Vouching. It is improper vouching for a prosecutor to ask a witness about the witnesses’ agreement to tell the truth in exchange for sentencing consideration. It is improper vouching for a prosecutor to inquire about a witnesses past performance under an agreement that requires truthful testimony. Extensive testimony regarding the process for obtaining a wire tap also constitutes improper vouching. United States v. Brooks, No. 05-30261 (9th Cir. Nov. 29, 2007).

Vexatious Litigants. When an appellate court bars a vexatious litigant from pursuing an appeal without prior court approval, the court may only withhold approval when it is clear from the face of the appellant’s pleadings that: (i) the appeal is patently insubstantial or clearly controlled by well settled precedent; or (ii) the facts presented are fanciful or in conflict with facts of which the court may take judicial notice. In re Thomas, No. 01-80091 (9th Cir. Nov. 29, 2007).

WEEKLY ROUNDUP FOR NOVEMBER 23, 2007

Andress. Andress does not preclude use of the offense of drive-by shooting or reckless endangerment as a predicate for the crime of second degree felony murder. In Re Personal Restraint of Bowman, No. 78739-5 (Nov. 21, 2007). Justice Sanders authored the dissent. Justice Fairhurst joined the dissenting opinion.

Death Penalty. Rejecting a PRP that was originally filed in June of 2001, the Court holds that defense counsel was not ineffective in pursuing a strategy of relying upon the defendant’s remorse and acceptance of responsibility to avoid a sentence of death. In Re Personal Restraint of Elmore, No. 70233-1 (Nov. 21, 2007). Justice Sanders was the sole dissenter.

Taxation. ESSB 6896 which amended the Taxpayer Protection Act’s process for calculating the state expenditure limit was effective and challenges to taxes on the grounds that they purportedly violated the Taxpayer Protection Act must fail. WA State Farm Bureau Federation v. Gregoire, No. 78637-2 (Nov. 21, 2007). Chief Justice Alexander concurred by separate opinion. Justice Sanders authored a separate concurring opinion. Justice Chambers also penned a separate concurring opinion. Justice Jim Johnson also wrote separately.

Attempting to Elude. It is error to instruct the jury using the "wanton or willful" standard of former RCW 46.61.024(1) (Laws of 2003, ch. 101, § 1) for offenses committed after the effective date of the current statute. Jurors should be instructed that the defendant acted in a "reckless manner". The "reckless manner" standard of current RCW 46.61.024 here takes the same meaning as the "reckless manner" standard of RCW 46.61.520 (vehicular homicide) and RCW 46.61.522 (vehicular assault). State v. Ridgley, COA No. 35061-1-II (Nov. 20, 2007).

WEEKLY ROUNDUP FOR NOVEMBER 16, 2007

Public Records Act. A surveillance videotape installed on a public school bus is not exempt from disclosure under former RCW 42.17.310(1)(a), now codified as RCW 42.56.230(1). Lindeman v. Kelso School District No. 458, No. 77253-3 (Nov. 15, 2007). Justice Sanders authored a concurring opinion. Justices Fairhurst and Madsen dissented in part.

GR 31(e) Violations. The remedy for a violation of GR 31(e), which prohibits parties from including personal identifiers in certain documents filed with the court, is redaction of the document and an award of reasonable expenses to the person who filed the motion for redaction. Reversal of the order or vacation of the order are not available remedies. Densley v. Dept. of Retirement Systems, No. 79951-2 (Nov. 15, 2007). Justice Madsen dissented on other grounds.

Retirement. Public employees in the PERS 1 system are entitled to retirement service credit for pre-employment military service with the Washington Army National Guard for each calendar month in which the service exceeded 10 days. Densley v. Dept. of Retirement Systems, No. 79951-2 (Nov. 15, 2007). Justice Madsen dissented .

Closed Courtrooms and Jury Voir Dire. The conducting of individual jury voir dire in chambers adjacent to the courtroom does not constitute a closing of the proceedings. State v. Momah, COA No. 58004-3-I (Nov. 13, 2007). [Editor’s note: This opinion is directly contrary to Division Three’s opinion in State v. Frawley, ___ Wn. App. ___, 167 P.3d 593 (2007).]

Closed Courtrooms. A defendant’s constitutional right to a public trial is not violated by the entry of an order prohibiting the media from photographing juvenile witnesses without the juvenile witnesses’ consent and their parents’ consent. State v. Russell, COA No. 34424-6-II (Nov. 14, 2007).

Use of a Vehicle. A juvenile offender does not "use" a vehicle in the commission of a felony under RCW 46.20.285(4) simply by targeting a vehicle. State v. B.E.K., COA No. 35338-5-II (Nov. 14, 2007).

WEEKLY ROUNDUP FOR NOVEMBER 9, 2007

Unit of Prosecution. The unit of prosecution for the crime of solicitation is each agreement, not the number of intended victims. Thus, an agreement to kill four individuals reached in a single conversation will only support a single count of solicitation. State v. Varnell, No. 78979-7 (Nov. 8, 2007). Justices Jim Johnson and Bridge dissented.

Bail Jumping. The classification for the underlying felony or misdemeanor is not an essential element of bail jumping. Thus, the classification for the underlying felony or misdemeanor need not appear in the charging documents or in the "to convict" jury instruction. State v. Williams, No. 78984-3 (Nov. 8, 2007). [Editor’s note: Although the instant offense occurred in 2003, the jury instructions and the charging document were based upon the pre-2001 amendments to the bail jumping statute. The 2001 law removed the "I forgot court was on this day" defense in bail jump cases by moving the "knowledge" element from the day of the new hearing to the time of release. The WPIC instructions have not yet been updated to match the new statute. If you need current jury instructions, simply e-mail WAPA).

Tort Claims Statute. Former RCW 4.96.020 (2001) does not apply to claims against individual government employees. The tort claims statute does not apply to federal civil rights claims under 42 U.S.C. § 1983 or to unfair labor practice claims under chapter 41.56 RCW. Wright v. Terrell, No. 79542-8 (Nov. 8, 2007). [Editor’s note: This opinion contains a nice example of how to interpret a plurality decision.]

Initiative 747 and Const. art. II, § 37. Initiative 747 violated article II, § 37, of the Washington Constitution because the text of the initiative claimed to reduce the general property tax levy limit from two percent to one percent, but in reality it reduced the limit from six percent to one percent. Washington Citizens Action of Washington v. State, No. 78844-8 (Nov. 8, 2007). Justices Charles Johnson, Sanders, Alexander and Chambers dissented.

In-Chambers Questioning of Jurors. The due process clause does not require a defendant's presence at in-chambers discussions between a judge and an impaneled juror to address the impaneled juror’s recognition of one of the State’s witnesses. A juror is not disqualified from sitting in a theft case solely because she previously worked for one of the victim stores and recognized one of the witnesses. State v. Wilson, COA No. 25458-6-III (Nov. 6, 2007). Note– This case did not include a violation of the public right to trial claim.

Public Disclosure. In a case in which DOC employees sought to enjoin the release of personal information to an inmate under RCW 42.17.330, the employees’ failure to provide an address in their pleadings, sign the amended complaint, and their failure to all sign the motion for protective order did not render their pleadings deficient. The inmate’s failure to promptly intervene in the employees’ action for an injunction justified the court’s denial of his request to intervene. The person requested disclosure of public records is not an indispensable party to an action for a protective order. Burt v. Washington State Dept. of Corrections, COA No. 24076-2-III (Nov. 6, 2007).

Municipal Court Judges. The participation of county residents who live outside the city limits in the election of municipal court judges violated state law. The judges that were elected in violation of state law do not possess "de facto" authority. Thus, convictions obtained in cases presided over them must be vacated. City of Spokane v. Rothwell, COA No. 25316-3-III (Nov. 8, 2007). Judge Brown dissented from that part of the opinion which held that the judges did not possess de facto authority.

WEEKLY ROUNDUP FOR NOVEMBER 2, 2007

Review Granted. On October 30, 2007, the Washington Supreme Court granted review of the following cases:

Continuances. A trial court does not abuse its discretion by dismissing a case on the morning of trial when the prosecutor's office does not reassign the case when the originally assigned prosecutor becomes unavailable if the issues involved in the case are not complex. State v. Chichester, COA No. 57750-6 (Oct. 29, 2007).

"True Threats". While the threat at issue in a felony telephone harassment case must be a "true threat", this definitional concept need not be included in an information or "to convict" instruction. State v. Tellez, COA No. 58155-4-I (Oct. 29, 2007).

Appellate Costs. An award of appellate costs under RCW 10.73.160 is limited to "expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence." RCW 10.73.160(2). A defendant’s challenge to his earned early release time does not satisfy this definition. State v. Ashby, COA No. 34185-9-II (Oct. 30, 2007). Editor’s note: This opinion is silent regarding the State’s right to costs in the underlying PRP under RAP 16.5(f) (costs in PRPs to be governed by Title 14 RAP); RAP 14.2 (costs to be awarded to the prevailing party); RAP 14.3(a) (costs included statutory attorney’s fees), RCW 4.84080(2) (authorizing $200 for statutory attorneys fees to the prevailing party in a civil appeal; (prior to 2004 the statutory attorney’s fee was $125)) and Castillo v. Kincheloe, 43 Wn. App. 137, 715 P.2d 1358 (1986) (PRP is a civil action), and State v. Labeur, 33 Wn. App. 762, 657 P.2d 802, review denied, 99 Wn.2d 1013 (1983) (same); RAP 14.5 (objections to cost bills must be filed within 10 days of the cost bill being filed) and Family Medical Building v. DSHS, 38 Wn. App. 738, 689 P.2d 413 (1984) (failure to object within the 10 days waives the objection to the award of costs); RAP 14.6(c) (costs may be enforced as part of the judgment in the trial court.)

Deadly Weapons. A car can be a deadly weapon for purposes of the robbery statute. Where a defendant uses a car to attempt to run someone down while fleeing from a gas station without paying for fuel. State v. Sparling, COA No. 36257-1-II (Oct. 30, 2007).

Traffic Infractions. A finding that a traffic infraction was committed can be sustained solely upon circumstantial evidence. There is no authority for a court to impose costs while deferring a finding of guilt. A court, therefore, may not defer a finding on condition that the defendant pay costs it has no authority to impose. State v. Magee, COA No. 34261-8-II (Oct. 30, 2007).

Open Courtrooms. The defendant validly entered a limited waiver of his right to a public trial when the defendant stated that he agreed with his counsel’s statement that the defendant wished to allow jurors to be questioned in chambers regarding personal sexual matters. The defendant cannot assert a violation of the public’s right to an open trial as grounds to reverse his conviction. State v. Castro, COA No. 25533-6 (Oct. 30, 2007).

Involuntary Medication. In an action to allow for the involuntary medication of a defendant to render the defendant competent to stand trial, a court should first make a specific determination on the record that no other basis for forcibly administering medication is reasonably available (i.e. pursuant to Harper), before undertaking an analysis under Sell. To be valid, a Sell order must provide some limitations on the specific medications that may be administered and the maximum dosages and duration of treatment. United States v. Hernandez-Vasquez, No. 06-50198 (9th Cir. Oct. 31, 2007).

Warrantless Entries. Police possessing a valid bench warrant for the arrest of a person who has failed to appear on a misdemeanor charge may enter that person’s residence to the extent necessary to execute the warrant. United States v. Gooch, No. 06-30645 (9th Cir. Nov. 1, 2007).

Denial of Applications. Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc), does not block a developer’s claim for relief based on the allegedly arbitrary and irrational denial of a permit application. Crown Point Development, Inc. v. City of Sun Valley, No. 06-35189 (9th Cir. Nov. 1, 2007).

WEEKLY ROUNDUP FOR OCTOBER 25, 2007

Offender Score. Where the sentencing court's offender score determination is challenged on appeal for insufficient evidence of prior convictions the following rules apply to non-guilty plea cases:

State v. Bergstrom, No. 78355-1 (Oct. 25, 2007). Chief Justice Alexander authored the dissent. Justices Chambers, Charles Johnson, and Sanders concurred in the dissent.

SSOSA Revocation. A trial court need not find that a defendant’s violations of his SSOSA are "willful" in order to revoke the SSOSA. State v. McCormick, COA No. 58255-1-I (Oct. 22, 2007).

At Risk Youth Contempts. A juvenile court’s "inherent contempt" powers does not allow the court to impose a determinate period of detention for disobeying court orders. A determinate period of detention is only possible as a criminal sanction in a separate action initiated by a public prosecutor. In re the Matter of R.V.M., COA No. 58938-5-I (Oct. 22, 2007).

SSOSA Violations. When a defendant violates the terms of his SSOSA, the trial court has the option of revoking the SSOSA or of imposing sanctions of up to 60 days confinement for each violation of the SSOSA probation conditions. State v. Partee, COA No. 34742-3-II (Oct. 23, 2007).

Essential Elements of Interference With Reporting DV. Charging the offense of interference with reporting DV in the statutory language is adequate under a liberal interpretation, but prosecutors are urged to include the identity of the domestic violence victim in the charging language itself. State v. Laramie, COA No. 25337-6-III (Oct. 23, 2007).

Amending Informations. The State may not amend an information to add an alternative means of committing the charged crime after the trial has begun. State v. Laramie, COA No. 25337-6-III (Oct. 23, 2007).

SVP. The SVP statute is not unconstitutionally vague due to its failure to define the relevant time period that the fact finder is to use when assessing whether a defendant is likely to engage in predatory acts of sexual violence. The unlawful detention of an inmate at the time the SVP petition is filed does not strip the court of jurisdiction over the SVP action. In re Detention of Keeney, COA No. 25277-9-III (Oct. 23, 2007).

WEEKLY ROUNDUP FOR OCTOBER 19, 2007

Sexually Violent Predators. The 2005 amendment to the SVPA does not apply retroactively to a detainee who petitioned the court for conditional release prior to its effective date. An individual whose expert disputes the original diagnosis and whose age makes it less likely that he will reoffend is entitled to a full hearing under the prior SVPA law. In Re Detention of Elmore, No. 79208-9 (Oct. 18, 2007). Justices Madsen, Fairhurst and Bridge dissented. Editor’s note: An important ruling in this case for individuals who draft statutes is the majority’s determination that the presence of an "emergency clause" will weigh against a finding of retroactive effect.

Crawford and Excitted Utterances. The court of appeals’ per se rule that excited utterances can never be testimonial is rejected in light of Davis v. Washington. Excited utterances to police officers may be non-testimonial when circumstances objectively indicate that the primary purpose of the statements is to enable police assistance to meet an ongoing emergency. If circumstances indicate that the primary purpose is to establish or prove past events, the elicited statements are testimonial. Characteristics to consider when objectively assessing the circumstances of the interrogation include the timing of the statements, the threat of harm, the need for information to resolve a present emergency, and the formality of the interrogation. State v. Ohlson, No. 78238-5 (Oct. 18, 2007). Justices Chambers and Madsen concurred in the result, but only because they found the admission of the evidence to be harmless error.

Agricultural Land. Although soil mapping data does not support the five-acre minimum parcel size for "significant agricultural lands of long-term significance", the Pierce County correctly applied the statutory and regulatory definitions of agricultural land of long-term significance. Futurewise v. Central Puget Sound Growth Management Hearings Board, COA No. 35569-8-II (Oct. 16, 2007).

WEEKLY ROUNDUP FOR OCTOBER 12, 2007

Terry Stops. A Terry stop may not be made to investigate a possible parking infraction. State v. Day, No. 78187-7 (Oct. 11, 2007). Chief Justice Alexander wrote a concurring opinion. Justice Bridge authored the dissent.

False Information. A defendant only violates RCW 46.61.021(3), which requires the defendant to give his name for the completion of a citation, when the officer requests the information in the course of investigation a traffic infraction. State v. Moore, No. 77484-6 (Oct. 11, 2007). Justice Bridge wrote the dissenting opinion.

Shoreline Development. There is no statutory authority for a city to adopt a moratorium on shoreline development. The adoption of such a moratorium violates Const. art. XVII, § 1, which states that the shorelines are owned by the state and are only subject to state regulation. Biggers v. City of Bainbridge Island, No. 77150-2 (Oct. 11, 1007). Justice Chambers concurred in the result. Justice Fairhurst authored the dissent.

Vested Rights. Development rights did not vest because the developer failed to file a building permit application before Bonney Lake adopted new zoning and permit standards applicable to the developer’s property within its city limits. City of Bonney Lake v. Abbey Road Group, COA No. 35383-1-II (Oct. 9, 2007).

Consent to Search. A neighbor’s consent to search the defendant’s mother’s property was ineffectual as the adult son had equal access to his mother’s property and he objected to the police’s warrantless entry into the building on his mother’s property. State v. White, COA No. 23502-5-III (Oct. 5, 2007).

WEEKLY ROUNDUP FOR OCTOBER 5, 2007

Attorney Discipline. The dismissal of a complaint and vacation of the judgment and sentence of a misdemeanor pursuant RCW 9.96.060(1), does not remove a conviction if the court does not also vacate the jury’s verdict. A jury’s verdict is conclusive proof that the attorney engaged in the misconduct. In the Matter of Perez-Pena, No. 200,428-8 (Oct. 4, 2007). Justice Madsen wrote a separate concurring opinion. Justice Fairhurst dissented from the length of the sanction.

First Amendment. RCW 42.17.530(1)(a), which prohibits sponsoring, with actual malice, a political advertisement containing a false statement of material fact about a candidate for public office, is unconstitutional on its face. Rickert v. Public Disclosure Comm’n, No. 77769-1 (Oct. 4, 2007). Chief Justice Alexander wrote a concurring opinion. Justice Madsen dissented.

Review Granted. On October 2, 2007, the Washington Supreme Court granted review of the following cases:

Tort Liability for Negligent Probation Supervision. The county’s policy that probation officers would not, due to budgetary restrictions, conduct home visits or contact third parties in the community, did not constitute gross negligence. Whitehall v. King County, COA No. 58854-1-I (July 23, 2007, released for publication on Oct. 1, 2007).

Persistent Offender Accountability Act. Blakely does not require a jury to determine whether the defendant was the person who committed a prior strike or whether an out-of-state conviction is comparable to a Washington strike. State v. Rudolph, COA No. 32658-2-II (Oct. 2, 2007). Judge Quinn-Brintnall dissented.

Not Guilty Plea by Reason of Insanity. A defendant’s motion to withdraw his NGI plea more than one year after the plea was entered was timely because the defendant was not advised of the one year time bar to collateral attacks. The defendant’s NGI plea was voluntary as the trial court clearly informed him of the statutory maximum term of confinement. State v. Schwab, COA No. 34907-8-II (Oct. 2, 2007).

Public Records Act. Highly detailed gas pipeline structural and location information and underlying data ("shapefile" data) may be protected from disclosure under RCW 42.56.420,9 the Public Records Act exemption for information gathered or maintained to prevent or to respond to criminal terrorist acts. This exemption is not limited solely to information collected solely to combat terrorism. Northwest Gas Assoc. v. Wa Utilities And Transportation Comm., No. 36057-8-II (Oct. 2, 2007).

Persistent Offender Accountability Act. If the judgment and sentence from a prior conviction indicates that the defendant was a juvenile when the judgment and sentence was entered, the State must establish that the juvenile court either declined jurisdiction over the defendant or that the defendant waived juvenile court jurisdiction before the prior conviction can be counted as a "strike". State v. Knippling, COA No. 24864-0-III (Oct. 2, 2007).

WEEKLY ROUNDUP FOR SEPTEMBER 28, 2007

Search Warrants. A search warrant that authorizes the officer to seize evidence of "child sex" is insufficient to satisfy the particularity requirement of the Fourth Amendment. State v. Reep, No. 79969-5 (Sept. 27, 2007). Justice Jim Johnson authored a concurring opinion.

Death Penalty. The Washington Supreme Court affirmed the death sentence obtained by Pierce County of serial killer Robert Lee Yates, Jr. The major holdings include:

State v. Yates, No. 73155-1 (Sept. 27, 2007). Justice Chambers wrote a separate concurring opinion. Justice Jim Johnson also separately concurred. Justice Sanders was the lone dissenter.

Corpus Delicti. There was ample independent evidence to establish the corpus delicti of DUI as the vehicle was registered to the defendant, he was the only person in the area, and he smelled strongly of alcohol, and his eyes were bloodshot and watery. A trial court judge has the discretion to allow a defendant’s out-of-court statements to be admitted prior to the establishment of the corpus delicti. State v. Hendrickson, COA No. 34580-3-II (Sept. 25, 2007).

Presence of Defendant. A defendant has a right to be present at a resentencing hearing whenever the trial court exercises its discretion to consider an argument that might impact his status as a persistent offender. State v. Davenport, COA No. 34755-5-II (Sept. 25, 2007).

Alternative Means. In a witness tampering prosecution, the State’s failure to produce substantial evidence to support one of the three alternative means of committing the crime, required reversal as the absence of a special interrogatory renders it impossible to determine whether the jury was unanimous. State v. Lobe, COA No. 34227-8-II (Sept. 25, 2007). Judge Hunt dissented, finding that the error was harmless.

Counselor Notification. Article 36 of the Vienna Convention on Consular Relations does not create judicially enforceable rights that may be vindicated in an action brought under 42 U.S.C. § 1983. Cornejo v. County of San Diego, No. 05-56202 (9^th Cir. Sept. 24, 2007).

Washington Death Penalty Case. Clallam County condemned murderer Darold Stenson’s federal habeas corpus petition seeking relief from his conviction and death sentence on the grounds of ineffective assistance of counsel and denial of the right to proceed pro se is unanimously rejected. The court also affirmed the trial court’s refusal to allow the defendant’s family members to testify regarding the impact the defendant’s execution would have upon them, as such testimony amounted to no more than their opinion regarding the proper sentence. Stenson v. Lambert, No. 05-99011 (9^th Cir. Sept. 24, 2007).

WEEKLY ROUNDUP FOR SEPTEMBER 21, 2007

Auto-Adult Jurisdiction Case. A juvenile who is acquitted in adult court on the charge that conferred automatic adult jurisdiction over the juvenile, must be returned to juvenile court for either a Kent factor decline hearing or sentencing on the remaining charges. State v. Posey, No. 78043-9 (September 20, 2007). Justice Chambers agreed with this holding, but wrote a separate concurring opinion on the rape shield issue. Justice Sanders agreed with this holding, but wrote a dissenting opinion on the rape shield issue.

Rape Shield. A victim’s e-mail message that stated she would "enjoy" being raped and that she wanted a boyfriend that would "choke her" and "beat her", was properly excluded under the rape shield statute as the e-mail was not addressed to the defendant, was not sent to the defendant, and it described only potential sexual misconduct or potential sexual mores. State v. Posey, No. 78043-9 (September 20, 2007). Justice Chambers agreed with this holding, but wrote a separate concurring opinion on the rape shield issue. Justice Sanders agreed with this holding, but wrote a dissenting opinion on the rape shield issue.

Innocent Owners. The parents and registered owner of a vehicle that police repeatedly found to contain drugs and drug paraphernalia when arresting the owner’s son, cannot assert an "innocent owner" defense to forfeiture as they knew or should have known that the vehicle was being used to acquire possession of controlled substances. In re Forfeiture of One 1970 Chevrolet Chevelle (WLN CVO2849), COA No. 58943-1-I (Sept. 17, 2007).

Mandatory Reporters. Latter Day Saints bishops and other church officials are not "social service counselor[s]" under RCW 26.44.020(8), and thus are not mandatory reporters of child abuse under RCW 26.44.030. Osborne v. Taylor, COA No. 57416-7-I (Sept. 17, 2007).

Exceptional Sentences Downward. A court may not impose an exceptional sentence below the standard range on the grounds that the multiple offense policy is violated when the defendant is convicted of two counts of rape involving two separate women and committed on two separate dates and at two separate locations. It is improper to impose a sentence below the standard range on the grounds that the rape victim worked as a prostitute. State v. McKee, COA No. 56504-4-I (July 23, 2007, released for publication on Sept. 17, 2007).

Invited Error. A defendant who affirmatively offers an incorrect self-defense instruction in the trial court, the defendant cannot obtain relief based upon that jury instruction on appeal. A defendant who fails to request a "no duty to retreat" instruction in the trial court may not obtain relief in the appellate court on the grounds that such an instruction was not tendered to the jury. State v. Lucero, COA No. 57684-4-I (Sept. 17, 2007).

Offender Score. A defendant who merely claims in the trial court that his out-of-state convictions have washed out, may not assert in the appellate court that the State did not establish the existence or comparability of the out-of-state convictions. State v. Lucero, COA No. 57684-4-I (Sept. 17, 2007).

Second Degree Assault. When the State charges a person with second degree assault for intentionally assaulting and recklessly inflicting substantial bodily harm, it is not misleading, nor does it create a mandatory presumption, for the trial court to instruct, as defined by RCW 9A.08.010(2), that "[r]ecklessness also is established if a person acts intentionally or knowingly." The State is not required to allege or prove as an element of second degree assault that the act did not amount to first degree assault. The judiciary does not violate the separation of powers doctrine by defining common law assault. State v. Keend, COA No. 35222-2-II (Sept. 18, 2007).

Telephonic Testimony. At least in civil cases, where there is no statute or court rule permitting telephonic testimony, the trial court may only permit the telephonic testimony of witnesses with the consent of all parties. Kinsman v. Englander, COA No. 34849-7-II (Sept. 18, 2007).

Vested Development Rights. Development rights did not vest because, although the developer filed a site plan review application, it failed to file a building permit application before Bonney Lake adopted new zoning and permit standards applicable to Abbey Lake's property within its city limits. City of Bonnie Lake v. Abbey Road Group, Llc., COA No. 35383-1-II (Sept. 18, 2007).

Deportation and Drug Offenses. An alien may not avoid the immigration consequences of a drug conviction as a "first time offender" when, the alien was granted "pretrial diversion" for a previous arrest for drug possession, under a state rehabilitation scheme that did not require the alien to plead guilty. Mendez v. Gonzales, No. 05-73581 (9th Cir. Sept. 19, 2007).

Judicial Elections. A challenge to the constitutionality of three provisions in the Alaska Code of Judicial Conduct ("Code"): (1) requiring disqualification from any proceeding in which a judge’s impartiality might reasonably be questioned; (2) prohibiting judicial candidates from making pledges or promises of particular conduct in judicial office; and (3) restricting statements that commit or appear to commit a judicial candidate to a particular view or decision regarding a case likely to come before the court, is not ripe as the challenger did not produce evidence of some real threat of enforcement, and did not make a showing that withholding federal adjudication would impose hardship on them. Alaska Right to Life v. Feldman, No. 05-36027 (9th Cir. Sept. 21, 2007).

School Searches. A female teacher’s search of a female student, conducted in the presence of the female school nurse, that consisted of asking the student to (1) remove her jacket, shoes, and socks, (2) remove her pants and shirt, (3) pull her bra out and to the side and shake it, exposing her breasts, and (4) pull her underwear out at the crotch and shake it, exposing her pelvic area, and that was conducted in response to credible claims that the student was in possession of drugs, did not violate the Fourth Amendment. The information received from fellow students that implicates other students in illegal or otherwise prohibited activities should be evaluated under rules similar to that applicable to "informants" in criminal cases. Redding v. Safford Unified School District #1, No. 05-15759 (9th Cir. Sept. 21, 2007).

WEEKLY ROUNDUP FOR SEPTEMBER 7, 2007

Sixth Amendment Right to an Attorney. A defendant has a Sixth Amendment right to an attorney during his presentence interview with the presentence report writer. The PSI writer violates that right by "deliberately eliciting" statements from the defendant regarding the charged crimes by asking the defendant to describe his version of the offense. State v. Everybodytalksabout, No. 78514-7 (Sept. 6, 2007).

Execution of Arrest Warrants. An arrest warrant -- even for a misdemeanor -- constitutes "authority of law" which allows the police the limited power to enter a residence for an arrest, as long as (1) the entry is reasonable, (2) the entry is not a pretext for conducting other unauthorized searches or investigations, (3) the police have probable cause to believe the person named in the arrest warrant is an actual resident of the home, and (4) said named person is actually present at the time of the entry. State v. Hatchie, No. 78889-8 (Sept. 6, 2007).

Review Granted. On September 5, 2007, the Washington Supreme Court granted review of the following cases:

Damages for Permit Delays. Chapter 64.40 RCW permitted a private developer from recovering a judgment in excess of ten million dollars for a city's failure to timely make a SEPA decision. The developer was allowed to proceed under common-law tort theories. Westmark Development Corp. v. City of Burien, COA No. 57958-4-I (Sept. 4, 2007).

Brady and Officer Discipline. An arbitration order, issued pursuant to a collective bargaining agreement, that required the Sheriff to reinstate a deputy who had repeatedly been untruthful, was unenforceable as against public policy. Kitsap County Deputy Sheriff’s Guild v. Kitsap County, COA No. 34321-5-II (June 26, 2007, order publishing opinion issued Sept. 5, 2007).

Community Custody. When a statute mandates a period of community placement, the court must either impose the statutory period or, if the standard range imposed is the statutory maximum, state that the term of community placement shall consist entirely of "such community custody to which the offender may become eligible". The court cannot merely impose the statutory maximum time in custody with no community custody at all. State v. Hibdon, COA No. 25843-2-III (Sept. 4, 2007).

Search Warrants.