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Court of Appeals: Div. III – Teacher’s Use of School Computer for Lobbying Is Grounds for Dismissal

August 22, 2010

Knudsen v. Washington State Executive Ethics Board

Knudsen is apparently a take charge kind of person. She even represented herself in the appeal of this case. But sometimes this type of approach can get you into trouble. Knudsen was a teacher at Spokane Community College (SCC). She sent an email from an SCC computer urging recipients to pursue approval of two pending bills that would provide tenure-like protections to part time college teachers. Knudsen was a part time college teacher. Was.

The email violated school policy, state statutes, and administrative code for using state resources for lobbying. Although Knudson did not agree that her email was lobbying, she was unable to present evidence that the email was within the scope of her duties as an English teacher. The Washington State Executive Ethics Board entered a finding that Knudsen had violated school policy, state statutes, and the administrative code. Knudson did try to argue that the email was sent on behalf of her union, but then contradicted herself when she testified that the union had made no efforts to lobby on behalf of this legislation. Knudsen appealed to the Superior Court and then to the Court of Appeals.

The Washington Administrative Code allows for de minimis personal use of state resources, EXCEPT if the use is “for the purpose of participating in or assisting in an effort to lobby the state legislature, or a state agency head.” WAC 292-110-010.

Knudsen argued that the school’s email policy violated her free speech rights. However, her argument was procedurally incorrect, as the Board did not consider the email policy when it made its determination; it only considered the statute and the WAC. Thus the Court of Appeals could not consider the constitutionality of the school’s email policy. The Court agreed, but analyzed her argument anyway:

 

The constitution allows the regulation of protected speech in certain circumstances. For example, speech in public forums is subject to valid time, place, and manner restrictions that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. In contrast, speech in nonpublic forums may be restricted if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral

 

Since the email system was a nonpublic forum and application of the statute and WAC was reasonable and viewpoint neutral, there was no constitutional violation

So in an attempt to protect her teaching position, Knudsen lost hers.  Class dismissed!  Or should I say “Claim dismissed!”

0511-0709-0401-3307_English_Teacher_clipart_image

Posted in Administrative Law, Constitutional Law, Division III, Freedom of Speech, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Teresa C. Kulik - Draft Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Gang Affiliation and Witness Intimidation Not Prejudicial for This Walmart Shopper

August 15, 2010

State v. Saenz

Mr. Saenz was a member of a gang called the Bell Garden Locos in Sunnyside, Washington. Saenz got into a verbal altercation at Walmart with two 15 year old members of a rival gang, the Lower Valley Locos. Walmart makes me crazy too. I become a member of the Low Price Locos and our motto is “I don’t care how cheap it is, get me the hell out of here!”  And their logo is a smiley face…I don’t think so.

Walmart guy

The parties left the store and Saenz had a friend, Guillen, pick him up to pursue the two rivals. They found the rivals driving through the parking lot. Saenz started shooting and the two rivals exited their vehicle and ran. Saenz shot one of them in the back. The other fell while trying to escape and put his head through the glass door at Ace Hardware.

Saenz and Guillen escaped, but were later turned in by a relative. Guillen agreed to testify against Saenz for a plea deal. Saenz was charged with two counts of first degree assault and one count of unlawful possession of a firearm. At trial, the State sought admission of Saenz’s gang affiliation. “The court found that three detectives had specific knowledge of language, formation, affiliation, and overall gang structure. The trial court allowed the detectives to testify regarding gangs and gang activity to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.”

The State also sought to introduce evidence of witness intimidation. Saenz had been sending messages to Guillen while they were both in jail. Saenz wanted Guillen to take responsibility for the crimes because he wouldn’t get as much time. Guillen was warned that if he didn’t take the rap, then he and his family would be harmed. Guillen was assaulted in the jail by a group of inmates who were “sending a message.” The court allowed the evidence regarding witness intimidation to show guilty knowledge of the crimes and participation.

Saenz was convicted on all charges and the State sought to have Saenz sentenced to life in prison without the possibility of parole because he was a persistent offender. The judge disagreed that Saenz was a persistent offender because Saenz had plead guilty to second degree assault and custodial assault when he was 15 years old. When Saenz plead guilty to these charges he signed a stipulation declining juvenile jurisdiction and specifically waived the requirement of a declination hearing. Saenz was represented by counsel when he plead guilty. However, the judge who took the plea failed to make any findings regarding the declination of juvenile court jurisdiction or Saenz’s waiver. So the trial court in the present case concluded that these convictions did not qualify for purposes of persistent offender status because there was no express waiver of juvenile jurisdiction. Saenz had one other serious offender conviction, but the statute requires two convictions for persistent offender status.

Saenz appealed the admission of gang affiliation evidence and witness intimidation. The State appealed the court’s failure to sentence as a persistent offender.

Since the trial court had weighed the probative value of the evidence of gang affiliation against its prejudicial impact and held that the evidence was being introduced to establish motive, intent, opportunity, and res gestae for the crimes charged, the Court of Appeals did not disturb the ruling. Similarly, the witness intimidation evidence was also properly weighed by the trial court and admitted.

Saenz also challenged the sufficiency of the evidence to convict him. However, given the testimony of the victim AND Saenz’s own homie that he was the shooter, the Court of Appeals held that the evidence was sufficient.

In addition, the Court of Appeals found that when Saenz entered his plea as a 15 year old, he knowingly and intelligently waived juvenile court jurisdiction. Thus he was a persistent offender under the statute and the trial court was reversed. Saenz will be getting LIFE! Maybe he can start a new gang called the Life Time Locos!

Life

Posted in Criminal Law, Division III, Evidence, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Teresa C. Kulik - Draft Majority, Juvenile Jurisdiction Declination, Rules of Evidence, Sentencing, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – False Report of Possession Charge Not Defamation

August 12, 2010

Van Hoven v. Pre-Employee.Com, Inc.

Mr. Van Hoven (VH) filled out an application for employment at Central Washington Hospital (CWH). As part of the application process, he was required to submit to a background check which included a criminal history. VH stated on his application that he had not been convicted of any crimes.

Pre-Employee.com conducted the background check and reported that VH had been convicted of possession of marijuana and possession of drug paraphernalia. While it was true that VH had been charged with both of these crimes, he was only convicted of possession of drug paraphernalia (the possession of marijuana had been dismissed). Pre-Employee later corrected the report to reflect that the marijuana charge had been dismissed.

Pot Pipe

A human resources specialist from CWH met with VH and asked him about the convictions. VH admitted that he was guilty of both charges but stated that as part of a plea bargain, the one charge had been dismissed. Because VH had provided false information on his application, his offer of employment was rescinded. VH then filed suit against Pre-Employee for defamation. DEFAMATION?! What’s the thinking process here? “I’m a possessor of drug paraphernalia NOT a possessor of drugs! How dare you! What will my neighbors think!”

The case was dismissed on summary judgment and VH appealed…after he went to Jack In the Box for 99¢ tacos. Dude!

RCW 19.182.080(6) provides:

no consumer may bring an action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against a consumer reporting agency . . . based on information disclosed under this section or RCW 19.182.070, except as to false information furnished with malice or willful intent to injure the consumer.

VH argued that the statute didn’t apply, but did not argue that Pre-Employee acted with malice or willful intent to injure. The Court of Appeals found that the statute did apply. In addition, to prove defamation the plaintiff must establish (1) falsity; (2) an unprivileged communication; (3) fault; and (4) damages. Since the hospital would not have hired VH because of the possession of drug paraphernalia conviction, the wrong information about the conviction for possession of marijuana was moot. And besides…HE LIED ON HIS APPLICATION!! No damages=No case.

VH

Posted in Defamation, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Draft Majority, Statutory Interpretation | Leave a Comment »

Court of Appeals: Div. III – Court Holds City Must Haul Their Juveniles 158 Miles for Holding

August 11, 2010

City of East Wenatchee v. Douglas County

East Wenatchee must be a hotbed of juvenile crime. Douglas County had previously allowed East Wenatchee to hold juveniles in their holding facility at Chelan County (Douglas County had a contract with Chelan County). However, the juveniles could only be held at Chelan County until their preliminary hearing. After that, the juveniles were required to be held at a juvenile facility in Medical Lake, which is about 158 miles from East Wenatchee.

But these are hard economic times and counties are slashing costs everywhere. Douglas County was paying $110 per day for each of the East Wenatchee juveniles held at Chelan County. In addition, 70% of the Douglas County juveniles held at Chelan County were East Wenatchee cases. So Douglas County pulled the plug on their agreement with East Wenatchee. After December 5, 2005, East Wenatchee was required to haul the juveniles 158 miles to Medical Lake for holding. They should have made the juveniles ride bikes there…in shackles…in the hot sun…or cold snow; maybe it would deter them from committing crimes!

Snowing Bike 

Transportation to Medical Lake

East Wenatchee broke down and struck their own contract with Chelan County to hold the juveniles until transported to Medical Lake. What a weird name for a lake. Want to go swimming in Medical Lake? I don’t think so.

East Wenatchee filed suit against Douglas County seeking an order requiring Douglas County to pay for holding juveniles at Chelan and for transporting them to Medical Lake. On cross motions for summary judgment the trial court ruled in favor of Douglas County holding that their juvenile holding facility was Medical Lake and East Wenatchee was responsible for transporting their juveniles there.

RCW 13.16.030 requires that counties provide juvenile detention facilities. Douglas County has a juvenile detention facility. The statute does not require that the county place it in a convenient location. East Wenatchee made several arguments citing Attorney General opinions on detaining arrestees, however all of these opinions dealt with cities booking arrestees into jails of the county for which the cites are located. Here, East Wenatchee wanted to book the juveniles into Chelan County; East Wenatchee is in Douglas County. Even though the Chelan County facility is conveniently located 3 miles from East Wenatchee, there is no authority for allowing them to hold their juveniles there. Judgment affirmed.

Posted in Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Draft Majority, Statutory Interpretation, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Six Months Not “Shortly After”…This Time

August 4, 2010

State v. Combs

This one is nice and short. Combs was released from prison on a drug possession charge. Six months later he was charged with attempting to elude a police officer. RCW 9.9A.535(3)(t) allows a court to impose an exceptional sentence if the “defendant committed the current offense shortly after being released from incarceration.” This is referred to as “rapid recidivism.” Say that five times fast!

This case came down to what does “shortly after” mean? Is it a week? A month? Six months? The Court of Appeals held that considering the facts of this case, six months was not “shortly after.” But they weren’t going as far as to draw a line in the sand at six months for every case. The reasoning being that if the defendant had no opportunity to re-offend for six months or immediate access to the means to re-offend (i.e., it takes a while to find contraband), then it could be considered “shortly after.” In addition, some crimes “require a lengthy period of time to plan or come to fruition.” It takes time to knock over a liquor store! Combs exceptional sentence was reversed.

Posted in Criminal Law, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, Sentencing, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – If Witness Did Not Report His Own Sexual Abuse, He Can’t Be Used as a Witness for Other Sex Abuse Victims

July 18, 2010

Minehart v. Morning Star Boys Ranch, Inc.

Currently there are several cases in the Spokane County Superior Court involving the Morning Star Boys Ranch (the Ranch). The trial court has separated 19 cases into individual trials. The cases are brought by former residents of the Ranch that allege that they were sexually abused by Father Joe Weitensteiner and/or other members of the staff of the facility. In addition to having Fr. Weitensteiner found individually liable, the plaintiffs seek to hold the Ranch liable for damages on various theories including civil conspiracy and vicarious liability.

Father

The first of the 19 trials resulted in a defense verdict. In the second case, this case involving plaintiff George Minehart, the trial court ruled that it would exclude all testimony from witnesses claiming that they were also sexually molested, but never reported the incident to staff at the Ranch (holding that the testimony’s prejudice outweighed its probative value). But if the witness had reported the incident to staff, then the trial court allowed the testimony to support the claims of conspiracy and vicarious liability. Both parties sought discretionary review of the Court of Appeals; plaintiff appealing the exclusion of the witnesses’ testimony and the Ranch appealing the admission of other witnesses’ testimony and the suppression of Fr. Weitensteiner’s passed polygraph test. The trial was stayed pending this appeal.

For you lay people, this is what they call an interlocutory review. Basically the trial court has issued an order and the appealing party feels that the alleged error is reasonably certain and its impact on the trial manifest. The appeal is filed while the trial is still pending, but the appealing party feels that the error will affect the outcome of the trial and thus it can’t wait to appeal the case after a final judgment.

In this case, both parties claimed that the discretionary review by the Court of Appeals was necessary under the rules because (1) The superior court had committed an obvious error which would render further proceedings useless; and (2) The superior court had committed probable error and the decision of the superior court substantially altered the status quo or substantially limited the freedom of a party to act.

The Court of Appeals reviewed the trial court’s evidentiary rulings for an abuse of discretion. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. The Court of Appeals found that the trial court did not abuse its discretion and there were no obvious or probable errors. This decision goes into each ruling that the trial court made and why each one did not meet the standards for discretionary review. I’m not going to go into each of those here, but if you are interested you can click on the link to the case and read on!

While the plaintiffs in these cases won’t be able to use witnesses that didn’t report their own abuse, they still have the witnesses who did report the abuse.  It will be interesting to see how the rest of these cases play out.

Posted in Appellate Procedure, Discretionary Review, Division III, Evidence, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Laurel H. Siddoway, WA Court of Appeals | 2 Comments »

Court of Appeals: Div. III – Dismissal of Charges of Child Molestation Upheld Due to Violation of Attorney-Client Privilege

June 19, 2010

State v. Perrow

This is another instance where the State’s handling of a case let an alleged child molester off the hook. In my previous article, the State let a convicted child molester receive about half the prison sentence he should have received under the law. (See Even Though Sentencing Incorrect, Child Rapist Will Be Released Earlier Than Statute Requires; June 15, 2010). In Perrow, the State bumbled the case at the beginning rather in than in the end, as they did in Hudgens.

In October 2007, Detective Sloan began investigating Perrow for alleged sexual abuse of his daughter, A.P. Sloan assisted A.P. in obtaining a protection order against her father on November 13th. On November 14th Sloan contacted Perrow and informed him of A.P.’s allegations. Sloan then prepared an affidavit for a search warrant.

Perrow received a copy of the protection order on November 17th and contacted attorney Vannier on November 19th. Vannier agreed to represent Perrow in regards to both the protection order and any potential criminal charges. Vannier asked Perrow to gather information about A.P.’s allegations and provide him with a written narrative of the matters.

On Novemeber 29th, Sloan executed a search warrant of Perrow’s home. Sloan seized the written materials that Perrow had prepared for his attorney. Perrow contacted his attorney while the police were searching his home and told him that they had seized the written materials he had prepared for Vannier. Vannier told Perrow to inform Sloan that the materials were protected under the attorney-client privilege. Sloan took the materials anyway. Sloan read and analyzed the materials and compared them to notes he had taken from his conversation with Perrow. He noted inconsistencies between the written materials and what Perrow had told him. Sloan prepared a written analysis of the materials seized and forwarded it, along with the seized documents, to the prosecutor.

On December 17th, the State charged Perrow with two counts of child molestation. Perrow moved to dismiss for based on unjustifiable interference of the right to counsel, violation of the attorney-client privilege, and prejudicial governmental misconduct. The court granted the motion finding that at the time the documents were seized, Vannier represented Perrow and therefore the items seized were protected by the attorney-client privilege. The court found that the seizure violated Perrow’s constitutional right to counsel and his right to privileged communication with his attorney. Based on the prosecutor’s knowledge of the contents of the documents seized, the court concluded that suppression was not an adequate remedy and dismissed the charges.

The attorney-client privilege applies to communications and advice between an attorney and client and extends to documents that contain a privileged communication. It applies to any information generated by a request for legal advice. "The attorney-client privilege exists in order to allow the client to communicate freely with an attorney without fear of compulsory discovery." The privilege encourages a client to make a full disclosure to his or her attorney, enabling the attorney to render effective legal assistance. An eight-part test in determining if the privilege exists is (1) the client must have sought legal advice; (2) from an attorney; (3) the communication was made to obtain legal advice; (4) in confidence; (5) by the client; (6) the client must wish to protect his identity; (7) from disclosure; and (8) the protection must not have been waived.

The findings of the trial court established each part of the eight part test and thus the attorney-client privilege did exist and the documents were covered under the privilege. The Court of Appeals held that the Sixth Amendment right to counsel argument doesn’t matter, because existing case law holds that a violation of the attorney-client privilege is enough to suppress evidence or grant dismissal even before a Sixth Amendment right attaches.

So we are left with the issue of whether dismissal was the appropriate remedy. Case law holds that the prejudice from a violation of the attorney-client privilege cannot be isolated and thus dismissal is the only appropriate remedy. The dismissal was affirmed.

Both Detective Sloan and the prosecutors in this matter really dropped the ball. Detective Sloan could have simply contacted the prosecutor’s office and asked them if the documents were privileged; well in advance of anybody viewing them and spoiling the case. In addition, the prosecutors, once they learned the privileged information was contained in Sloan’s reports, could have sealed the evidence and returned it to Perrow’s attorney. This action may also have saved the case. Instead, both Detective Sloan and the prosecutors ignored the privilege (even when they were informed it existed when seized) and lost the opportunity to convict an alleged child molester. Shame on you. Get it right next time!

Get Out of Jail Free

A dissent was filed in this case by Judge Korsmo, who felt that a lesser remedy was appropriate and that the violation of the attorney-client privilege was only negligent and not egregious. He based this on the fact that the documents were seized under a valid search warrant. The cases in which the majority relied upon, were cases where the information was seized illegally and after the right to counsel had attached.

This may be taken to the Supreme Court.

Posted in Attorney-Client Privilege, Criminal Law, Division III, Evidence, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Dissent, Judge Stephen M. Brown - Draft Majority, Search and Seizure, Sixth Amendment, WA Supreme Court | Leave a Comment »

Court of Appeals: Div. III – Even Though Sentencing Incorrect, Child Rapist Will Be Released Earlier Than Statute Requires

June 15, 2010

In re Post Sentencing Review of Hudgens

Hudgens plead guilty to third degree rape of a child. Upon sentencing, neither party nor the court realized that under RCW 9.94A.507, a court sentencing a sex offender who had a prior sex offense is required to impose the statutory maximum and a minimum term that is usually within the standard range. Hudgens had a prior sex offense and thus he should have been sentenced to a maximum of five years and a minimum term within range of 26 to 34 months. Thus the court adopted the State’s recommendation of a 26-month determinate sentence and 36 to 48 months of community custody. So the prison time was not even half the maximum time that should have been imposed.

The Department of Corrections contacted the State and pointed out the error. The State then moved to amend the sentence, but Hudgens objected and moved for specific performance of the plea agreement. Citing State v. Miller, the court agreed with Hudgens that even if the sentencing was contrary to law, Hudgens had the choice of either specific performance or withdrawing the guilty plea, unless the State could show that giving the defendant this choice would be unjust under the circumstances. The court held that it was not unjust. Seems pretty unjust to me! I bet it did to the victim as well.

The State petitioned for post-sentence review asking the Court of Appeals to overturn the Miller decision or to find that the result was unjust. Miller holds that “where fundamental principles of due process so dictate, the specific terms of a plea agreement based on a mistake as to sentencing consequences may be enforced despite the explicit terms of a statute.” In Miller the Supreme Court held that the only thing that would override the defendant’s choice to withdraw the plea or not would be if the State could show it would be prejudiced by the withdrawal of the guilty plea.

The thinking behind this is that defendants must be able to rely on the plea bargaining process or it us undermined. In addition, the Court of Appeals cannot overrule a Supreme Court case. The DOC then turned to the argument that giving Hudgens the choice was unjust. They argued that allowing Hudgens to choose the lesser sentence detrimentally affects the Department of Corrections’ ability to protect the public from future sex offenders. In addition the longer sentence would allow the Review Board to review an offenders’ likelihood of reoffending and decide whether to release him to community custody for the remaining sentence. However, the Court of Appeals held that the trial court properly exercised its discretion.

And here’s the salt in the wound:

“Mr. Hudgens’ determinate sentence specified a five-year maximum punishment…Mr. Hudgens’ sentence is 26 months’ confinement plus 36 to 48 months’ community custody or the period of earned early release, whichever is longer. The potential combined terms of confinement and community custody are thus from 66 to 74 months, exceeding the statutory 60 month maximum.”

This violates the statute and thus the case was remanded to the trial court to REDUCE THE SENTENCE so that the combined time does not exceed five years. Ouch! However, the Court’s math is wrong as the correct potential combined terms is 62 to 74 months. I would like to say that the Court got more than the math wrong in this case, but the analysis appears correct to me. What went wrong here is that the prosecutor missed a very important sentencing statute. And so did the judge. I’m sure the victim of this crime appreciated the fact that this child rapist will be out of prison in just over two years when the legislature intended for him to be there five years.

Posted in Criminal Law, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Draft Majority, Plea Bargains, Sentencing, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Court Holds That State Has No Criminal Jurisdiction Over Indians At Off Reservation Treaty Site

June 13, 2010

State v. Jim

I have learned over the course of my life that conversations regarding politics or religion can end in heated arguments with each side willing to use whatever ammunition at their disposal to prove they are indeed “RIGHT!” I’ve found that here in Washington discussions about Indian rights can become even more heated than those discussions involving whether Republicans will be allowed into Heaven or not. While I don’t pretend to be an expert on Native American Indians or Indian Law, I have taken classes on both and what I learned changed my views considerably. I think State v. Jim is one of those cases that has the potential for heated debate on the rights of Indians. Division III of the Court of Appeals has come down on the side of the Indians in this case.

Indian Fishing

Lester Ray Jim is a member of the Yakima Nation. He was fishing on the Columbia River via access from the Maryhill Treaty Fishing Access Site. Upon docking he was cited by the Washington Department of Fish and Wildlife for second degree unlawful use of a net and retaining undersized sturgeon. Now this case is not about the fishing practices of Indians and how they might affect fishing resources; it is about state criminal jurisdiction over Indians. So keep in mind that we don’t even get to the facts of the size of the fish or how the net was used. This is a jurisdictional issue! Even non-Indian criminal cases can have jurisdictional issues that don’t get to the meat of the case before they are decided. Search and seizure issues take the same route. So before anyone says, “You mean because they’re Indians we’re going to ignore how and what they were pulling from the river,” please realize that this is how legal analysis works. We have to start with the foundation before we get to the house (i.e., “can you even cite them with a crime” before we get to “did they commit a crime”).

Jim was successful at having the cases dismissed for jurisdictional reasons. The State appealed to the Superior Court and won. The Court of Appeals granted discretionary review.

Now it is clear that the state of Washington does not have criminal jurisdiction for these types of crimes if they occur on the reservation via P.L. 280. However, these crimes were not on the reservation. So it must be determined whether the State has criminal jurisdiction for these types of crimes at a treaty site which is not on the reservation.

“In 1855, several treaties were negotiated with Pacific Northwest Indian tribes for the setting aside of land for Indian reservations. Some of this land was lost with the subsequent building of dams along the Columbia River. The Maryhill site resulted from congressional legislation authorizing the acquisition of lands to provide facilities in Washington to replace Indian fishing grounds submerged or destroyed by the construction of dams.”

So even though these crimes did not take place on a reservation, they did take place where a treaty was in effect. The Supreme Court has already decided a similar case and held that the State did not have jurisdiction at that particular treaty site in that case only. So this Court had to decide whether there was jurisdiction at this site. Because this site was reserved specifically to these tribes to replace reservation land that was “submerged or destroyed”, Division III held that the fishing site is entitled to reservation status. Thus the State had no jurisdiction to cite Jim and the cases were dismissed.

And for all of you lay people who did not have to suffer through studying Indian Law for the Bar exam, felonies committed by Indians is a whole different ball game.  The crimes in this case were misdemeanors or gross misdemeanors. 

There is lots of good reading out there about how the State and the Indian tribes are working together to preserve the ecology and resources of the State. Together they have come a long way!

Posted in Criminal Law, Division III, Indian Law, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Draft Majority, Jurisdiction, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Clause Not Ambiguous: Arbitration Not Mandatory

May 12, 2010

Yang vs. AIG Specialty Auto

This opinion was unpublished, but due to popular demand (Justin made me do it) I am submitting it to the blog for review.

I’m willing to bet that even the lay people out there who read this blog (I think that might be limited to my aunt and my cousin) can read the clause in this auto insurance policy and come to the same conclusion as that of the trial court and the Court of Appeals. Here it is:

If we and an "insured" do not agree:

1. Whether that "insured" is legally entitled to recover damages; or

2. As to the amount of damages which are recoverable by that "insured";

from the owner or operator of an "underinsured motor vehicle", then the matter may be arbitrated. However, disputes concerning coverage under this endorsement may not be arbitrated.

Both parties must agree to arbitration. If so agreed, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction.

(Emphasis added).

So here’s the $64,000 Question (or in this instance the $25,000 question): Under this clause is arbitration mandatory or discretionary? I’m sure you came to the same conclusion as the Courts.

The_64000_Question_5793_390x191

Yang sued under her parents’ underinsured auto policy and demanded arbitration pursuant to the clause above. She was seeking the policy’s limits of $25,000.  The trial court denied the motion to compel arbitration and Yang appealed. One of Yang’s arguments was based on the last sentence of the clause above (“If they cannot agree…”). Yang contended that this last sentence is ambiguous and provides for mandatory arbitration.  I guess if you were to take that sentence and place it somewhere besides where it is currently located, you could say that if there was a dispute about arbitration then the court could compel arbitration? Oh who am I kidding! I can’t even buy that! The Court of Appeals pointed out the clear discretionary language (underlined above) and affirmed the lower court.

Posted in Division III, Insurance, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Mandatory Arbitration, WA Court of Appeals | Leave a Comment »

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