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WEEKLY UPDATE FOR AUGUST 17, 2008

Updates to Comprehensive Plans. A party may challenge a county's failure to revise aspects of a comprehensive plan that are directly affected by new or recently amended GMA provisions if a petition is filed within 60 days after publication of the county's seven year update. A party may challenge a county's revisions or failures to revise its UGA designations when there is a change in the population projection, if a petition is filed within 60 days after publication of the county's 10 year update. Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (August 14, 2008).

Taking a Motor Vehicle Without Owner’s Permission. Second degree TMV is not a lesser included offense of first degree theft. State v. Crittenden, COA No. 59809-1-I (Aug. 11, 2008).

Firearm Enhancements. The firearm sentence enhancement on a second degree assault conviction does not violate double jeopardy. State v. Kelley, COA No. 35944-8-II (Aug. 12, 2008).

File Sharing Software. An individual who installs file sharing software on his computer does not have a reasonable expectation of privacy in the files stored on his computer. The Fourth Amendment does not require police to obtain a search warrant before viewing files via a file sharing software program. United States v. Ganoe, No. 07-50195 (9th Cir. Aug. 15, 2008).

WEEKLY UPDATE FOR AUGUST 8, 2008

Parole. The ISRB did not abuse its discretion in denying parole to a prisoner who is an untreated sex offender. In Re PRP of Dyer, No. 79872-9 (Aug. 7, 2008). Justice Sanders penned the dissenting opinion.

On August 5, 2008, the Washington Supreme Court granted review in the following cases:

Second Appeals. State v. Kilgore, No. 81020-6. Pierce County. Whether a defendant who received an exceptional sentence pre-Blakely could appeal that sentence post-Blakely where his case was remanded following the vacation of some counts on appeal? COA opinion reported at 141 Wn. App. 817 (2007).

Post-Blakely Exceptional Sentence Appeals. A trial court must still enter written findings of fact and conclusions of law when imposing an exceptional sentence based upon a jury’s special verdict that an aggravating circumstance exists beyond a reasonable doubt. An appellate court will review the exceptional sentence under the following three prongs: (1) does the record support the jury's special verdict on the aggravating circumstances; (2) are the trial court's reasons for imposing an exceptional sentence substantial and compelling; and (3) did the trial court abuse its discretion by imposing a sentence that is clearly excessive? State v. Hale, COA No. 35928-6-II (Aug. 5, 2008).

2007 Blakely Fix. The 2007- post-Pillatos Blakely fix statute applies retroactively. This statute allows for the impaneling of juries on remand to consider whether an aggravating circumstance is present. State v. Mann, COA No. 26436-0-III (Aug. 7, 2008).

WEEKLY UPDATE FOR AUGUST 1, 2008

Public Disclosure Act. The identities of public school teachers who are the subjects of unsubstantiated allegations of sexual misconduct are exempt under the Public Disclosure Act. Letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted. Bellevue John Does 1-11 v. Bellevue School District, #405, No. 78603-8 (July 31, 2008). Justice Madsen authored the dissenting opinion.

Shoreline Management Act. Critical areas within the jurisdiction of the Shoreline Management Act (SMA) are governed only by the SMA. Futurewise v. West. WA. Growth Management Hearings Board, No. 80396-0 (July 31, 2008). Justice Chambers authored the dissenting opinion.

Sexually Violent Predators. The presumption of innocence and corpus delicti rule are based on rights of defendants facing criminal convictions that do not apply in SVP civil proceedings. In re Detention of Law, COA No. 59619-5-I (June 2, 2008, released for publication July 28, 2008).

Private Juror Voir Dire. The individual questioning of four jurors in the jury room with defense counsel’s acquiescence, violated the defendant’s right to a public trial. State v. Erickson, COA No. 35628-7-II (July 29, 2008). Judge Quinn-Brintnall dissented.

Sexually Violent Predators. RCW 71.09.090, as amended in 2005, is constitutional. In re Detention of Reimer, COA No. 35242-7-II (July 29, 2008).

Sexually Violent Predators. An detainee in an SVP proceeding may not challenge the lawfulness of his "custody" at the time of the commitment hearing in the SVP proceeding. The detainee must challenge his detention through other means. State v. Dudgeon, COA No. 36273-2-II (July 29, 2008).

Legal Financial Obligations. Despite the fact that DOC is deducting a portion of his inmate wages to contribute to his legal financial obligations, the inmate is not entitled to an evidentiary hearing on his motion for remission of costs. State v. Crook, COA No. 26338-0-III (May 29, 2008, publication ordered July 29, 2008).

WEEKLY UPDATE FOR JULY 25, 2008

ER 404(b) and Domestic Violence. Evidence of prior bad acts is admissible pursuant to ER 404(b) to assess a victim’s credibility versus his/her state of mind, and to prove the "reasonable fear of bodily injury" element of assault. State v. Magers, No. 79332-8 (July 24, 2008). Justice Madsen authored a concurring opinion that affirms the lead opinion’s themes, just finds that they did not apply to the facts of the instant case. Justice Charles Johnson authored the dissenting opinion.

Public Records Act. Once an agency implements a policy or recommendation, records pertaining to that policy or recommendation no longer fall within the ambit of the deliberative process exemption of the public records act (PRA). Here, records related to a lease should have been disclosed as the lease was executed before the records request was made. West v. Port of Olympia, COA No. 60723-5-I (July 21, 2008).

Public Records Act. Metadata in the electronic version of an e-mail sent by a private citizen to the mayor’s private e-mail account, that the mayor referred to in a public meeting, is subject to disclosure under the Public Records Act. The First Amendment does not protect the identity of the individual that originally e-mailed the mayor. The harddrive of the mayor’s personal computer is subject to a search to see if it has the e-mail with the metadata. Disapproving of the Secretary of State’s records retention guidelines, the Court holds that a print out of the e-mail, without the electronic metadata, is not an adequate substitute under the PDA. O’Neill v. City of Shoreline, COA No. 59534-2-I (July 21, 2008).

Claim Filing Statute. RCW 4.96.020(2) expressly precludes the district, which never appointed an agent to receive claims against it, from arguing that because Connelly's estate served its claim on the wrong person, the claim failed to toll the statute of limitations. Estate of Connelly v. Snohomish County PUD #1, COA No. 59942-9-I (July 21, 2008).

Confessions. Police are not required to electronically record custodial interrogations. State v. Turner, COA No. 59153-3-I (July 21, 2008).

Andress and Double Jeopardy. Double jeopardy does not bar the State from prosecuting the defendant for manslaughter after his second degree murder conviction was vacated pursuant to Andress. The jury’s response to the special interrogatory in the murder trial is of no consequence to double jeopardy because the jury was instructed that it did not have to unanimously agree on the alternate means of intentional or felony murder predicated on assault. State v. Scott, COA No. 58285-2-I (July 21, 2008).

Lane Travel. Washington State's requirement that automobile drivers remain within a single lane of travel "as nearly as practicable," RCW 46.61.140(1), does not impose strict liability. A vehicle crossing over a lane once for one second by two tire widths does not, without more, constitute a traffic violation justifying a stop by a police officer. State v. Prado, COA No. 59133-9-I (July 7, 2008).

Andress and Double Jeopardy. A defendant, who pled guilty to second degree felony murder predicated on assault and who contacted the State to negotiate relief under the Andress decision, could not have his conviction vacated by the State against his will. Double jeopardy principles bar the State from retrying the defendant for murder because (1) jeopardy attached when the State amended its charge and the defendant pled guilty to second degree felony murder; (2) jeopardy terminated when he successfully completed his sentence and the court discharged it, without his having challenged his conviction; and (3) the State recharged him with first degree murder for the same criminal act, in law and fact, as the act for which it had originally charged him by amended information and to which he had pled guilty. State v. Walters, COA No. 37336-0-I (July 22, 2008).

Pre-trial Diversion Programs. Yakima County’s "Friendship" Diversion program, a post-arraignment, pretrial diversion program for felonies, does not violate the Sentencing Reform Act. State v. Ashue, COA No. 25970-6-III (Mar. 25, 2008, released for publication on July 22, 2008).

Habitat and Species of Local Importance. The County is not barred from first asserting that neither the habitat nor the species were properly nominated for protection after three rounds of litigation. Stevens County v. Loon Lake Property Owners Assn., COA No. 25774-6-III (July 22, 2008).

DOSA. The suspended portion of a DOSA sentence can include time that arises from a sentencing enhancement. In re Post Sentencing Petition of Gutierrez, COA No. 26875-6-III (July 24, 2008).

WEEKLY UPDATE FOR JULY 18, 2008

Probable Cause. A moderate odor of marijuana emanating from a passenger vehicle does not probable cause to arrest each of the occupants in the vehicle. Const. art. I, § 7 requires individualized probable cause for each occupant of the vehicle. State v. Grande, No. 81068-1 (July 17, 2008). [Editor’s note: This opinion represents a rejection of the rule announced by the United States Supreme Court in Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).]

Sexual Contact. Ejaculation onto the victim is a "touching" for purposes of "sexual contact." State v. Jackson, COA No. 60361-2-I (July 14, 2008).

Right to Be Present. A drug court cannot hold a bench trial upon stipulated facts when the defendant is not present. State v. Pruitt, COA No. 60094-0-I (July 14, 2008).

Interfering With the Reporting of Domestic Violence. An information that alleges the crime of interfering with the reporting of domestic violence must specify the underlying crime of domestic violence. An information that is challenged for the first time on appeal sufficiently defines the charge of interfering if the count alleging the crime contains all the statutory elements and makes clear that the underlying crime of domestic violence is delineated elsewhere in the information. There are three alternative means of committing the offense of interfering with the reporting of domestic violence. Only the means supported by substantial evidence and included in the information may be submitted to the jury. State v. Nonog, COA No. 60248-9-I (July 14, 2008).

Sealing Court Records. Documents filed in support of a motion are only subject to sealing under the compelling interest standard, regardless of whether the documents were considered by the court. The fact that some of the allegations contained in the documents are embarrassing or may harm a person’s business interests does not establish a compelling interest sufficient to overcome the presumption of open courts. Treseler v. Treadwell, COA No. 59092-8-I (May 5, 2008, publication ordered July 14, 2008).

SVP. It is error for the trial court in an SVP proceeding to admit evidence regarding less restrictive alternatives and the content of special commitment center treatment program phases in which the defendant has not participated. In re Detention of Post, COA No. 55572-3-I (July 14, 2008). Judge Becker authored a dissenting opinion.

County Roads. RCW 35.02.180, which provides that "[t]he ownership of all county roads located within the boundaries of a newly incorporated city or town shall revert to the city or town and become streets as of the official date of incorporation," does not include an unimproved right-of-way. City of Spokane Valley v. Spokane County, COA No. 26268-5-III (July 15, 2008).

Batson Challenges. When the race-neutral reasons offered by a prosecutor for the striking of minority jurors also apply to unchallenged white jurors, the non-racial reasons will be considered pretexts for race and a new trial will be ordered. Green v. LaMarque, No. 06-16254 (9th Cir. July 17, 2008).

WEEKLY UPDATE FOR JULY 11, 2008

Double Jeopardy. Double jeopardy did not preclude retrial on an aggravating factor following a reversal of a conviction. State v. Eggleston, No. 77756-0 (July 10, 2008). Justice Sanders authored a concurring opinion. Justice Chambers authored a separate concurring opinion.

Jail Phone Calls. Calls made by a jail inmate were not "private" for purposes of the Washington privacy act, chapter 9.73 RCW, where a sign was posted near the jailhouse telephones that warned the users that calls would be recorded and an automatic message stated that the calls would be recorded played for every person making or receiving a call from the telephones. The majority does warn, however, that

State v. Modica, No. 79767-6 (July 10, 2008). Justice Sanders authored the dissenting opinion.

The Washington Supreme Court granted review in the following cases on July 8, 2008:

DOSA. A trial court cannot grant a conditional DOSA that is dependent upon DOC finding that the offender is amenable to treatment. The trial court must have the evaluation result in hand before a DOSA can be imposed. A trial court cannot amend a sentence by converting a standard range sentence to a DOSA sentence after the judgment and sentence became final. State v. Harkness, COA No. 59748-5-I (July 7, 2008).

Failure to Register as a Sex Offender. RCW 9A.44.130 imposes one duty – to register with the sheriff. Subsection (11)(a) contains the only punishable offense – knowingly failing to register with the county sheriff or notify the county sheriff, or changing one’s her name without notifying the county sheriff and the state patrol. The definition of registration and procedure for registration are set forth in the remaining subsections merely articulate the definition of continuing compliance. They do not define the elements or create alternative means of committing the crime of failure to register as a sex offender. State v. Peterson, COA No. 59722-1-I (July 7, 2008).

Land Use. King County Ordinance 15053 §14 (KCC 16.82.150), which limits clearing on property zoned rural area residential (RA) to a maximum of 50 percent, depending on the size of the parcel, violates RCW 82.02.020, which generally prohibits counties from imposing "any tax, fee, or charge" on the development of land, subject to certain exceptions. A local government’s ordinances that are adopted in response to the Growth Management Act are not exempt from the requirements of RCW 82.02.020. Citizens’ Alliance for Property Rights v. Sims, COA No. 59416-8-I (July 7, 2008).

Trial De Novo. A party who requests a trial de novo after arbitration, obtains an unfavorable judgment at trial, and then successfully appeals that judgment may, before the second trial, withdraw his request for the trial de novo. Hudson v. Hapner, COA No. 35797-6-II (July 8, 2008).

WEEKLY UPDATE FOR JULY 3, 2008

Public Records Act. The Department of Corrections interception of documents DOC sent to a prisoner in response to the prisoner’s public records request as contraband under DOC’s mail policy applicable to all incoming and outgoing materials, did not violate the public records act. Livingston v. Cedeno, No. 79068-4 (July 3, 2008). Justice Jim Johnson authored the dissenting opinion. [Editor’s note: The court unanimously "agrees the Department may not deny a public records request based on the requester's status as an inmate." Majority opinion at 11. See also Dissent at 3.]

Claim Filing Statute. A bona fide attempt to meet the requirement in RCW 4.96.020 to state the claimant's actual residence at the time of presenting the claim and for a period of six months before the claim arose substantially complies with the statute so long as the information provided enables the government entity, by reasonable diligence, to determine where the claimant resided at the relevant times. A claim made under RCW 4.96.020 was not defective for failing to state an amount where the wrongful termination claimant wrote on the claim form "undetermined pending further investigation and discovery" and then listed the elements of his claim as including, among other things, wages and benefits "as well known to the city since termination." Renner v. City of Marysville, COA No. 60509-7-I (June 30, 2008).

Protection Order Violations. The State must prove beyond a reasonable doubt that a defendant "knows" that his victim resides at the home he is being prosecuted for going to in violation of the protection order. Evidence that the protected person kept her personal belongings at her mother’s house, that she lived there off and on, and that she received mail there, coupled with the defendant’s testimony that he "assumed" the protected person lived with her mother, was sufficient to satisfy the State’s burden. State v. Vant, COA No. 35779-8-II (July 1, 2008).

Community Supervision. Fourth degree assault with sexual motivation is not a qualified sex offense. RCW 13.40.020(4) limits community supervision to one year for this non-sex offense. State v. C.D.C., COA No. 36431-0-II (July 2, 2008).

Arrest on Quashed Warrant. The public duty doctrine precluded an individual, who was arrested on a warrant that the court had ordered quash, from maintaining a negligence lawsuit against the county. Vergeson v. Kitsap County, COA No. 35313-0-II (July 1, 2008).

Protective Sweeps. Officers improperly entered a house that appeared vacant during the day, but which had lights and music emanating from it at night, where there was no evidence of immediate risk to health or safety. State v. Ibara-Raya, COA No. 25734-7-III (July 1, 2008).

Premeditation. Sufficient evidence supported the defendant’s conviction for first degree premeditated murder where the defendant had a long history of beating the victim, his right hand was swollen and stained with the victim’s blood, blood spatter from the victim appeared in several distinct locations in the house, and the victim sustained at least 42 separate blunt force injuries. State v. Sherrill, COA No. 25193-4-III (July 1, 2008). Judge Schultheis authored a dissenting opinion.

True Threats. The jury in a felony harassment case must be instructed on the definition of "true threat." The failure to do so, however, may be harmless error. State v. Schaler, COA No. 25919-6-III (July 3, 2008). Judge Sweeney authored a dissenting opinion.

Fed. R. Civ. Pro. 8(a)(2). A plaintiff’s 81-page complaint that was coherent, well-organized, and stated viable claims, should not have been dismissed for containing excessively detailed factual allegations. Hearns v. San Bernardino Police Department, No. 05-56214 (9th Cir. July 1, 2008).

WEEKLY UPDATE FOR JUNE 27, 2008

Right to Counsel. A criminal defendant’s initial appearance before a magistrate

judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County, Texas, No. 07-440 (June 23, 2008).

Death Penalty. While reaffirming the constitutionality of the death penalty for certain murders, the Court holds that the death penalty is unconstitutional for the crime of rape of a child. Kennedy v. Louisiana, No. 07-343 (June 25, 2008).

Forfeiture Doctrine. The forfeiture doctrine only allows for the admission of unconfronted testimony when the defendant acted with an intent to prevent a witness from testifying. The Court noted that acts of domestic violence are often intended to dissuade a victim from resorting to outside help, stating that a defendant’s prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. The Court also noted that a battered woman’s statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment are nontestimonial, and only subject to exclusion by hearsay rules, which states are free to alter. Giles v. California, No. 07-6053 (June 25, 2008). [Corrected Editor’s note: This case does change Washington law, as State v. Mason, 160 Wn.2d 910 (2007), previously indicated that specific intent to prevent testimony was unnecessary.]

Second Amendment. The second amendment guarantees the individual right to possess and carry weapons in case of confrontation. The right, however, is not without limits. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." District of Columbia v. Heller, 07-290 (June 26, 2008).

Involving a Minor in a Drug Transaction. The offense of involving a minor in a drug transaction, former RCW 69.50.401(f) (1998), recodified as RCW 69.50.4015, does not encompass the act of merely allowing a minor to remain present during transactions that take place in the defendant’s residence. The offense, however, does apply when a defendant commits an affirmative act to bring or attempt to bring a minor into the criminal enterprise, regardless of whether the minor knows that he is being used to commit a crime. State v. Flores, No. 79135-0 (June 26, 2008). Justice Sanders dissented from the majority’s holding that the improper admission of some testimonial statements by the defendant’s wife was harmless error. Justice Owens dissented from the majority’s interpretation of RCW 69.50.401(f) and from the majority’s invalidation of an exceptional sentence imposed pursuant to a judicial finding that the defendant’s conduct satisfied the major VUCSA aggravator.

Resentencing. A defendant who is resentenced after discovery of an error in the initial sentencing is not denied equal protection under the law or due process by the inclusion in his offender score of convictions entered after the initial sentencing, but before the resentencing. State v. Bryan, COA No. 59576-8-II (June 23, 2008).

Claim Filing Statute. The claim filing statute, RCW 4.96.020(4), does not toll an action brought under 42 U.S.C. § 1983. Southwick v. Seattle Police Office John Does 1-5, COA No. 59283-1-I (May 5, 2008, ordered published June 23, 2008).

Jury Demand. A previously waived right to jury trial in a civil case will not be revived by the filing of an amended or supplemental complaint unless the amended or supplemental complaint raises new issues or changes the issues raised in the original complaint. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

Anti-SLAPP Statute. RCW 4.24.510 only provides immunity with respect to communications to a public officer who is authorized to act on the communication. Once the communicant becomes a private plaintiff seeking private relief in a civil lawsuit, the communicant ceases to be among the class of persons who can claim protection from liability under RCW 4.24.510. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

ER 404(b). Evidence that the twin defendants impersonated each other on occasion was admissible under ER 404(b), even though the impersonation occurred at different locations and did not result in the same harm alleged by the plaintiff. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

Service of Search Warrants. Officers violated the defendant’s Fourth Amendment rights by removing two women from an SUV at gunpoint, detaining them, and searching them, solely because the SUV was parked in the driveway of a residence for which the officer’s had a search warrant. State v. Smith, COA No. 26010-1-III (Apr. 24, 2008, publication ordered June 24, 2008).

Terry Stop of Witnesses. Police may not stop a potential witness when investigating a disturbance complaint when there exists no exigent circumstances. State v. Dorey, COA No. 25938-2-III (June 26, 2008). [Editor’s note: This opinion merely adds to the confusion arising from Division Two’s fractured opinion in State v. Carney, 142 Wn. App. 197 (2007), petition for review filed (Wash. Jan 23, 2008) (No. 81124-5), and Division One’s opinion in State v. Mitchell, COA No. 58935-1-I (order granting motion to publish June 17, 2008).]

Dorm Search. Police violated a Washington State University student’s Fourth Amendment rights by conducting a building-wide search of the interior hallways of the dormitory without a warrant. State v. Houvener, COA No. 25938-2-III (June 26, 2008). Judge Brown authored a concurring opinion.

Land Use. The superior court lacked jurisdiction over a citizen challenge to a Walla Walla City Council decision to amend the city's comprehensive plan governing certain property. The proper method to challenge the decision was to raise a complaint to the Growth Management Hearings Board (GMHB). Coffey v. City of Walla Walla, COA No. 26277-4-II (June 26, 2008).

Death Penalty. King County death row inmate, Cal Brown, did not receive constitutionally ineffective assistance of counsel. Mr. Brown’s petition for a writ of habeas corpus is denied. Brown v. Uttecht, No. 04-35598 (9^th Cir. June 27, 2008).

Family and Medical Leave Act. The FMLA allows a plaintiff to recover damages for absences from work that were caused by an emotional condition that itself resulted from the employer’s wrongful denial of FMLA leave. Farrell v. Tri-County Metropolitan District of Oregon, No. 06-35484 (9^th Cir. June 27, 2008).

WEEKLY UPDATE FOR JUNE 20, 2008

Pro Se Litigants. The Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, No. 07-208 (June 19, 2008).

Unemployment Benefits. RCW 50.20.050(2), the statutory list of reasons that do not disqualify an individual from benefits, is not an exhaustive list of good cause reasons to voluntarily leave a job without losing benefit eligibility. Spain v. Employment Sec. Dep’t., No. 79878-8 (June 19, 2008).

Criminal Libel Statute. The criminal libel statute, RCW 9.58.010, is facially unconstitutional for overbreadth and vagueness. Parmelee v. O’Neel, COA No. 35652-0-II (June 19, 2008).

Former RCW 26.50.110. A defendant’s contact with a protected person that did not occur at one of the enumerated prohibited locations and/or did not involve acts or threats of violence is not a crime under former RCW 26.50.110(1)(2000). State v. Hogan, COA No. 35534-5-II (June 19, 2008). Judge Quinn-Brintnall dissented. [Editor’s note– The Hogan opinion conflicts with Division One’s opinion in State v. Bunker, ___ Wn. App. ___, 183 P.3d 1086, 2008 WL 1932670 at *7 (2008).]

Former RCW 26.50.110. A defendant’s contact with a protected person that did not occur at one of the enumerated prohibited locations and/or did not involve acts or threats of violence is not a crime under former RCW 26.50.110(1)(2000). State v. Madrid, COA No. 35952-9 (June 17, 2008). [Editor’s note– The Hogan opinion conflicts with Division One’s opinion in State v. Bunker, ___ Wn. App. ___, 183 P.3d 1086, 2008 WL 1932670 at *7 (2008).]

Civil Infractions. RCW 46.63.070 allows a court to defer a finding on some traffic infractions. The statute, however, does not require a judge to defer a finding. Pierce County v. Magee, COA No. 34261-8-II (June 18, 2008) (amended opinion).

Land Use. A builder may not, to meet code density requirements, include in its plat proposal five neighboring and previously platted and developed lots. Milestone Homes, Inc. v. City of Bonney Lake, COA No. 36441-7-II (June 17, 2008).

Child Sexual Abuse. A mistrial should have been granted when charges against one child were dismissed when that child refused to testify, as the jury had already heard significant hearsay testimony regarding that child’s allegations. State v. Babcock, COA No. 23491-6-III (June 19, 2008).

Adoption of Ordinances. A city clerk’s duty to attest to a newly enacted ordinance was entirely ministerial and the clerk's failure to attest to the ordinance did not invalidate the ordinance.

City of Wenatchee v. Owens, COA No. 26152-2-III (June 19, 2008).

Land Use. A developer’s appeal from an adverse LUPA ruling must be dismissed as moot because, with the passage of time, the permit expired due to the developer's failure to meet deadlines required by the permit. Kelly v. County of Chelan, COA No. 25378-3-III (June 19, 2008).

Land Use. Rock quarry developers could not challenge highway improvement conditions that they had affirmatively agreed with DOT to complete. Joe Humbert/Birch Creek Construction v. Walla Walla County, COA No. 26081-0-III (June 19, 2008).

Text Messages and Government Employees. Users of text messaging services have a reasonable expectation of privacy in their text messages stored on the service provider’s network. Government employers may not audit the content of text messages sent over government supplied equipment on a government paid for account unless there is a clear policy establishing that such messages are subject to review. The existence of a public records law does not overcome the employee’s Fourth Amendment rights. Quon v. Arch Wireless Operating Co., No. 07-55282 (9th Cir. June 18, 2008).

WEEKLY UPDATE FOR JUNE 13, 2008

Public Employees. Public employees may not bring their discrimination complaints to federal court when they are alleging that adverse job actions resulted from arbitrary or malicious reasons unique to their situation. Enquist v. Oregon Dep’t of Agriculture, No. 07-474 (June 9, 2008).

Andress. Neither the mandatory joinder rule, CrR 4.3.1(b)(3), nor double jeopardy principles prevent the State from recharging this defendant, whose convictions for second degree felony murder was vacated under In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), with first degree manslaughter as jeopardy was never terminated on intentional second degree murder and manslaughter is a lesser included offense of that alternative means of committing second degree murder. State v. Ramos, No. 77347-5 (June 12, 2008). Justice Sanders authored the dissenting opinion.

Andress. A manslaughter conviction that was vacated on double jeopardy grounds may be reinstated when the remaining conviction for felony murder was subsequently vacated pursuant to In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). State v. Schwab, No. 79262-3 (June 12, 2008). Justice Sanders authored a dissenting opinion. Justice Jim Johnson authored a separate dissenting opinion.

SVP. The 2005 amendment to the sexually violent predator act is not retroactive. In Re Detention of Smith, No. 80144-4 (June 12, 2008).

SVP. An SVP detainee may be held in contempt for refusing to submit to a court order requiring compliance with a psychological exam that was ordered as part of the detainee’s evidentiary hearing to determine if he still meets the definition of a sexually violent predator. The trial court’s sanction of a stay of proceedings is appropriate. In Re Detention of Young, No. 79747-1 (June 12, 2008). Justice Sanders authored the dissenting opinion.

Rule Changes. The following court rule changes that are of interest to prosecutors were adopted by the Washington Supreme Court on June 5, 2008. The effective date of these rule changes appear next to each rule.

GR 14. Effective September 1, 2008. GR 14(a) has the following sentence added to it: "This rule applies to attachments unless the nature of the attachment makes compliance impractical." GR 14(b) is amended to speak of "trial or hearing" exhibits.

MAR 3.1. Effective September 1, 2008. An arbitrator must be a member in good standing of the WSBA. The court is authorized to remove an individual from a list of qualified arbitrators for good cause.

RPC 1.8. Effective September 1, 2008. Prohibits a lawyer from making or participating in making an agreement with a governmental entity for the delivery of indigent defense services if the terms of the agreement obligated the contracting lawyer or law firm to bear the cost of providing conflict counsel; or to bear the cost of providing investigation or expert services unless a reasonable amount for such costs is specifically designated in the agreement in a manner that does not adversely affect the income or compensation allocated to the lawyer, law firm, or law firm personnel. The amendment also makes it a conflict to knowingly accept compensation for the delivery of indigent defense services from a lawyer who has entered into a current agreement in violation of the above.

ER 408. Effective September 1, 2008. The rule has been amended to conform with case law. The rule now begins with "In a civil case, evidence . . ."

ER 410. Effective September 1, 2008. A new subsection is added to the rule that specifies that "[e]vidence of payment or an offer or agreement to pay (i) to compromise a misdemeanor pursuant to RCW Chapter 10.22, or (ii) for a liability described in RCW 4.24.230, shall not be admissible in any civil or criminal proceeding."

RAP 2.2(b)(1) and RALJ 2.2(c)(1). Effective September 1, 2008. Consistent with case law, the rules now expressly authorize the government to appeal an adverse Knapstad ruling.

CrR 7.8(c) and CrRLJ 7.8(c). Effective September 1, 2008. Establishes a formal procedure for Knapstad motions. The new court rule incorporates significant case law.

JuCR 7.15. September 1, 2008. This court rule sets out the procedure by which a juvenile offender may waive his or her right to counsel. The rule contains a written waiver form, that must be signed by both the juvenile and the juvenile’s lawyer.

Blood Alcohol. A sufficient foundation was laid for the admission of the defendant’s blood alcohol test where the toxicologist testified that vials used for the collection of samples for a blood alcohol test are provided by the manufacturer with powdery chemicals, which he identified as potassium oxalate and sodium fluoride, that the labels on the vials that contained the defendant’s blood indicated that the vials contained sodium fluoride and potassium oxalate, that if those chemicals were not present the blood would be clotted and no alcohol would be detected in the samples, and that the blood in the samples were not clotted and alcohol was detected in the samples. State v. Brown, COA No. 25892-1-III (June 10, 2008).

Alternative Means. When a defendant is charged with more than one alternative means of committing a crime that each carry different seriousness levels, a trial court must use the lowest seriousness level in sentencing the defendant absent a special interrogatory indicating the jury unanimously finds that the defendant committed the offense by a means with a higher seriousness level. When there is a special interrogatory indicating that jury unanimously finds the defendant committed a higher seriousness level alternative, the sentencing court must impose a penalty from the higher standard range. State v. Brown, COA No. 25892-1-III (June 10, 2008).

Identification. An officer does not seize someone who has exited a vehicle and is walking away by asking the individual for identification to verify that he is not another person who is suspected of committing a crime. State v. Vanderpool, COA No. 26402-5-III (June 10, 2008).

Early Release. Washington state law creates a liberty interest in an inmate’s early release into community custody that is protected under the Due Process Clause of the Fourteenth Amendment. DOC may deny release only if it finds one of the statutory criteria listed in RCW 9.94A.728(2)(d) is met. Carver v. Lehman, No. 06-35176 (9th Cir. June 9, 2008).

WEEKLY UPDATE FOR JUNE 6, 2008

Private Search Doctrine. The private search doctrine, which provides that a warrantless search by a state actor does not offend the Fourth Amendment if the search does not expand the scope of the private search, is inapplicable under Const. art. I, § 7. State v. Eisfeldt, No. 81005-2 (June 5, 2008). Justice Madsen authored the concurring opinion.

On Tuesday, June 3rd, the Washington Supreme Court accepted review in the following cases:

Double Jeopardy. State v. Thomas, No. 80643-8. Pierce County. Grant on all but one issue (prosecutorial misconduct issue). Defendant was found guilty of premeditated first degree murder and the crime was aggravated by concealment; the trial court (Washington) sentenced him to death. On appeal, the sentence was reversed and remanded for a new trial on the aggravating circumstances or for resentencing. On remand, a jury found the murder was aggravated by concealment and furtherance of burglary, and defendant was sentenced to life without parole. Defendant appealed contending the trial court had no authority to empanel a jury, double jeopardy barred rehearing on the aggravating circumstances, and the jury instructions were faulty. The appellate court disagreed, finding first that the supreme court authorized the trial court, on remand, to sentence defendant for premeditated murder or empanel a jury to determine the existence of aggravating factors; the supreme court issued its ruling on the remedy, and the appellate court thus could not revisit this ruling. Double jeopardy was not implicated because the supreme court ordered a rehearing after defendant's initial appeal and, therefore, his case was never final. The supreme court did not rule that the evidence was insufficient to support an aggravating factor; thus, double jeopardy did not bar a rehearing on that sentencing factor. Contrary to defendant's assertion, RCW 10.95.020 (1995) did not require that defendant committed the aggravating circumstances when the State sought a punishment of life without parole. COA opinion is unpublished.

Competency to Stand Trial. State v. Heddrick, No. 80841-4. King County. In these consolidated cases involving felony harassment and custodial assault, the defendant argued that the trial court violated his right to due process by finding him competent to stand trial without observing adequate procedural safeguards because the trial court proceeded to trial without an evidentiary hearing. The court of appeals disagreed. Defendant's own expert examined him for the second time and concluded that he was competent to stand trial. That satisfied defense counsel that defendant was competent. Defendant did not make a compelling argument that an evidentiary hearing would have added anything under the circumstances. No other expert had examined him or come to a different conclusion about his competence at that time. Moreover, the record did not indicate that any issues regarding competency arose during either of the two trials that followed. Balanced against the State's interest in trying defendant for his crimes, an evidentiary hearing was not required and defendant received the due process to which he was entitled, notwithstanding that the trial court did not follow the statutory procedures of RCW 10.77.060. COA Opinion is unpublished.

Offender Score. State v. Knippling, No. 80848-1. Spokane County– State petition for review. Challenge to the inclusion of a "strike" offense on the grounds that the defendant was a juvenile when the crime was committed and the State did not establish that he had been declined in juvenile court prior to the entry of the adult conviction. COA Opinion reported at 141 Wn. App. 450 (2007).

Probation Search. State v. Winterstein, No. 80755-8. Cowlitz County. Defendant, who was under the supervision of a community corrections officer (CCO), was arrested and convicted after the CCO, based on a tip, searched defendant's residence and discovered a methamphetamine lab in a trailer on the property. On appeal, the court held that the trial court did not err by refusing to give defendant's jury instruction on accomplice liability because the instruction given properly informed the jury of applicable law and allowed the defense to argue its theory of the case. The court held that the evidence was sufficient to support defendant's conviction because: (1) officers saw two methamphetamine pipes in defendant's bedroom; (2) another man who lived in the mobile home on the property testified that defendant helped bring the travel trailer onto the property and hooked up electricity to it; and (3) two drug store employees testified that defendant regularly bought pseudoephedrine-based cold medicines. The court further held that specific and articulable facts supported the CCO's belief that defendant still lived in the mobile home and therefore the search was not improper. COA Opinion reported at 140 Wn. App. 676 (2007).

Removal of Juror. State v. Depaz, No. 80574-1. King County. Defendant appealed a judgment of a Washington trial court that convicted him of one count of first degree rape, arguing that the trial judge erred in excusing a deliberating juror. The court concluded that the trial judge did not abuse his discretion in excusing the juror. The basis for the decision to excuse the juror was a violation of the trial judge's instruction to not discuss the case with anyone but the other jurors during deliberations. The trial judge excused the juror for cause pursuant to RCW 2.36.110, not because of her views on the sufficiency of the evidence, but because she was not candid about her discussion of the case with her husband and committed misconduct by discussing the case with him. The trial judge was uniquely situated to decide whether the juror should be excused. There was no suggestion in the record that the other jurors wanted the juror removed because of her views on the sufficiency of the evidence. COA decision is unpublished.

Physical Control. State v. Nguyen, No. 80752-3. King County. Is physical control a lesser included offense of DUI? Granted on lesser issue only. COA Opinion is unpublished.

Brady and Police Officers. Kitsap County Deputy Sheriffs Guild v. Kitsap County, No. 80720-5. Kitsap County. Was a binding arbitration order to reinstate a deputy sheriff properly set aside as violative of public policy where the arbitrator sustained 23 counts of misconduct based upon the deputy sheriff’s acts of dishonesty. COA opinion reported at 140 Wn. App. 516 (2007).

Washington Minimum Wage Act. Almquist v. City of Redmond, No. 80804-0. Having reached an impasse in bargaining, a police association and the city went into statutory interest arbitration. The arbitration award included retroactive pay raises for the employees. The employees sued the city on the ground that the retroactive pay became due as of the day of the arbitrator's award and should have been paid on the next payday after the award instead of two months later. The trial court entered judgment for the city, and this appeal followed. In affirming, the appellate court determined that, because the precise date when the retroactive payments were "due" was not fixed by statute, judgment, or contract, the trial court properly entered judgment for the city. The interest arbitration award did not create an immediate obligation to pay money to the employees. The employees cited no authority demonstrating that the retroactive pay raises awarded by the arbitration decision were due at any time before the city paid them. As there was no unlawful delay, the employees did not show a violation of the payment interval rule under WAC 296-126-023 and WAC 296-128-035 or the wage payment statutes. COA Opinion reported at 140 Wn. App. 402 (2007).

LUPA. Post v. City of Tacoma, No. 80684-5. Appellant property owner sued respondents, a city, a collection agency, and others, claiming that the fines imposed under the city's building and structures code were excessive, unconstitutional, and outside the city's statutory authority. The Washington trial court granted summary judgment to the city. The owner challenged the judgment. COA held the claims were barred due to the owner’s failure to comply with LUPA. COA Opinion reported at 140 Wn. App. 155 (2007).

Insurance Law. Am. Best Food, Inc. v. Alea London, Ltd., No. 80755-8. Duty to defend case. COA Opinion reported at 138 Wn. App. 674 (2007).

Asbestos Case. Lunsford v. Saberhagen Holdings, Inc., No. 80728-1. COA Opinion reported at 139 Wn. App. 334 (2007).

Workmen’s Comp. Tomlinson v. Puget Sound Freight Lines, No. 80811-2. Calculation of a permanent partial disability award. COA Opinion reported at 140 Wn. App. 845 (2007).

Consumer Protection Act. Michael v. Bright Now! Dental, Inc, No. 80665-9. Peridontist’s use of cow bone for grafting after the consumer specifically requested that no animal products be used. COA Opinion reported at 140 Wn. App. 139 (2007).

Shareholder Action. Nelson v. Westport Shipyard, Inc, No. 80672-1. COA Opinion reported at 140 Wn. App. 102 (2007).

Second Degree Theft. A credit card that is stolen from the mail before the account holder actually has possession of it and before it is activated is an "access device" under RCW 9A.56.010. State v. Clay, COA No. 59648-9-I (June 2, 2008).

Custodial Interference. The offense of custodial interference does not contain as an element the defendant's knowledge of a custody order's validity. The validity of the order is not a jury question. Instead, the judge determines the custody order's validity as part of its "gate- keeping" function. State v. Boss, COA No. 59573-3-I (June 2, 2008).

Indian County Jurisdiction. A tribe’s grant of a highway easement to the State does not terminate the tribe’s interest in the land over which the highway runs. Accordingly, the State may not prosecute an Indian for an offense unrelated to the traffic laws that is committed on the highway. State v. Pink, COA No. 36485-9-II (June 3, 2008).

Amendment of Information. State v. Pelkey, 109 Wn.2d 484 (1987), does not prohibit an amendment of charges made after the State rests, where the State and defense agreed to the amendment before the State rested its case in chief, and the prosecutor merely failed to put the appropriate motion on the record before resting. State v. Hockaday, COA No. 35976-6-II (June 3, 2008).

Individual Voir Dire. Questioning some jurors in open court, out of the presence of the rest of the venire, does not violate the defendant’s right to a public trail because jurors become officers of the court when sworn to serve and are not members of the general public. Thus, Bone-Club factors need not be addressed on the record. State v. Vega, COA No. 24889-5-III (June 2, 008).

LUPA. RCW 36.70C.070(4), which requires a party filing a Land Use Petition Act (LUPA) petition to attach a copy of the decision being appealed to the petition, is a procedural requirement, not a jurisdictional threshold requirement. Keep Watson Cutoff Rural v. Kittitas County, COA No. 26202-2-III (June 5, 2008).

WEEKLY UPDATE FOR MAY 30, 2008

Collateral Attacks. The superior court erred by equitably tolling the one-year time limit for filing collateral attacks contained in RCW 10.73.090, where the petitioner first filed his motion to vacate 8 years after the judgment and sentence had been entered. Equitable tolling under the circumstances presented here does not serve any of the policies underlying RCW 10.73.090. The court’s routine destruction of its records provides no basis for equitable tolling. City of Bellevue v. Benyanimov, COA No. 59243-2-I (May 27, 2008).

Crime-Related Prohibitions. A condition prohibiting the defendant from accessing the internet without prior approval from his community custody officer or treatment provider is not a proper crime-related prohibition in a rape case. The State’s argument that allowing the defendant unfettered internet access to inappropriate sexual material would increase his risk of reoffending and thus endanger the community must fail as there is no evidence that the defendant accessed the internet before the rape, or that the defendant used the internet to contact and lure the victim into an illegal sexual encounter. The court, however, notes that "[o]ur holding does not preclude control over internet access being imposed as part of sex offender treatment if recommended after a sexual deviancy evaluation." State v. O’Cain, COA No. -I (May 27, 2008).

CrR 7.8. Under the 2007 version of CrR 7.8(c)(2), the superior court’s only options in dealing with an untimely motion to vacate judgment is to transfer the motion to the court of appeals for handling as a personal restraint petition. State v. Smith, COA No. 36858-7-II (May 28, 2008). Editor’s note: The rule change prevents the appointment of counsel to represent the defendant on his appeal from the superior court’s dismissal of the motion to vacate as untimely.

Mental Health Commitments. The State is solely responsible for the care and treatment of long-term public mental health patients under the Involuntary Treatment Act, chapter 71.05 RCW. Former WAC 388- 865-0203 and the contract provisions incorporating it are invalid. The 2006 amendments to chapters 71.05 and 71.24 RCW, Laws of 2006, ch. 333, §§ 103, 301 (codified at RCW 71.05.026 and RCW 71.24.370), pass constitutional muster. These statute bar future lawsuits by the counties against the state over the state’s actions in caring for long-term public mental health patients. Pierce County v. State, COA No. 34423-8-II (May 28, 2008).

Search Warrants. A search warrant that describes particular documents authorizes the seizure of a computer when the searching agents reasonably believes that documents specified in the warrant would be found stored in the computer. In this respect, computers are treated no differently than traditional file cabinets or home libraries. United States v. Giberson, No. 07-10100 (9th Cir. May 30, 2008).

WEEKLY UPDATE FOR May 23, 2008

Child Pornography. Section 2252A(a)(3)(B), which generally prohibits offers to provide and requests to obtain child pornography, is not overbroad under the First Amendment. Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process Clause. United States v. Williams, No. 06-694 (May 19, 2008).

Blakely. The trial court could not convene a jury to determine the existence of an aggravating circumstance in any case tried prior to the 2005 Blakely statute. The Court does not reach whether the State can seek the imposition of an exceptional sentence under the 2007 statute that allows for the convening of a jury. State v. Davis, No. 79068-0 (May 22, 2008). Justice Jim Johnson authored the dissenting opinion.

Frisks. An officer who encountered an individual who appeared to be under the influence of methamphetamine in a public area of the DSHS building had no basis for conducting a frisk, as the intoxicated individual offered threatening gestures or words and remained seated. State v. Setterstrom, No. 79690-4 (May 22, 2008).

Expert Witnesses. A judge’s finding in another SVP case that the expert’s methodology was not generally accepted in the expert’s field was inadmissible since the judge in the prior SVP case is not an expert in the field. The prior judge’s opinion was also inadmissible as hearsay. In re the Detention of Pouncy, COA No. 59034-1-I (May 19, 2008).

Possessing Depictions of a Minor Engaged in Sexually Explicit Conduct. When the evidence does not demonstrate that the defendant aided, invited, employed, authorized, or caused the photographed minor to become naked, there is insufficient evidence to establish the minor victim engaged in sexually explicit conduct. State v. Whipple, COA No. 35523-0-II (May 20, 2008).

Community Custody. Petitioner is entitled to have the extra 24 months of custody served before he was resentenced under Blakely credited against his term of community custody. In re the Personal Restraint of Knippling, COA No. 25403-8-III (May 20, 2008). Judge Sweeney authored the dissenting opinion. [Editor’s note –

Exceptional Sentences. The trial court did not err in a first degree assault case by considering the severity of the victim's injuries as an aggravating factor under RCW 9.94A.535(3)(y). RCW 9.94A.535(3)(y) does not violate due process vagueness prohibitions. A jury instruction that uses the phrase "substantially exceeds" is not unconstitutionally vague. State v. Stubbs, COA No. 25475-5-III (May 20, 2008). Judge Schultheis authored the dissenting opinion.

Rape. A defendant who engages in sexual intercourse with a victim, who is physically helpless due to a debilitating disease such as Lou Gehrig disease, is only guilty of third degree rape. State v. Bucknell, COA No. 25783-5-III (Mar. 13, 2008, publication ordered May 22, 2008).

Firearms. A defendant who was convicted of vehicular assault when that offense was a class B felony was entitled to have his firearm rights restored, despite the fact that vehicular assault has been reclassified as a class A felony and an individual who has been convicted of a class A felony may not have his firearm rights restored.. State v. Rivard, COA No. 25923-4-III (May 22, 2008). Editor’s note: This case maybe correct in so far as it provides that a particular defendant’s offense cannot be reclassified post conviction. This case appears to be wrong in so does not appear to alter the principle that restrictions upon owning firearms are collateral consequences of a conviction. In re Personal Restraint of Ness, 70 Wn. App. 817, 823-24, 855 P.2d 1191 (1993), review denied, 123 Wn.2d 1009 (1994) (citing Saadiq v. State, 387 N.W.2d 315, 325 (Iowa), appeal dismissed, 479 U.S. 878 (1986)); see also In re Firearm Rights of Nelson, 120 Wn. App. 470, 475, 85 P.3d 912 (2003) ("Although the prohibitions of the amended firearm statute impose a disability and a threat of criminal prosecution if violated, they do not amount to punishment for a previous conviction, nor do they alter the standard of punishment.") (citing State v. Schmidt, 143 Wn.2d 658, 676, 23 P.3d 462 (2001)).

WEEKLY UPDATE FOR May 16, 2008

State v. Montgomery, No. 79564-9 (May 15, 2008). Justice Madsen wrote a concurring opinion. Justice J. Johnson wrote a separate concurring opinion.

Plea Agreements. A defendant breaches a plea agreement when he contests the inclusion of out-of-state convictions at sentencing that he affirmatively acknowledged during the plea negotiations. In such cases, rescission is the proper remedy. State v. Collins, COA No. 59943-7-I (May 12, 2008).

Community Custody. Failure to register as a sex offender is a sex offense that carries a 36 to 48 month term of community custody. The inadvertent numbering error in Substitute Senate Bill (SSB) 6519 does not mandate a different result. State v. Albright, COA No. 35890-5-II (May 13, 2008).

Public Disclosure. Requester of attorney invoices was entitled to attorney’s fees and statutory penalty, as the county did not provide copies until after the requester filed a lawsuit. The requester, however, was not entitled to proceed upon his breach of contract lawsuit as he was not a party to the contract. West v. Thurston County, COA No. 36252-0-II (May 13, 2008).

Consensual Contacts. The arrival of a second officer, who stood a respectful distance away without becoming part of the encounter between the defendant and the first officer did not convert the encounter into a seizure. The first officer’s request for permission to check the defendant’s pocket after the defendant kept putting his hands into his object-laden pockets after the officer requested that the defendant not do so, did not turn the voluntary meeting into a seizure. State v. Harrington, COA No. 25497-6-III (May 13, 2008). Judge Sweeney authored a