Archive for the ‘Judge J. Robin Hunt – Draft Majority’ Category
July 25, 2010
Teamsters Local Union No. 117 v. State Human Rights Commission
The Department of Corrections (DOC) solicited an opinion from the Human Rights Commission (HRC) on whether gender-based hiring criteria could be used for personnel at a specific correctional facility. In other words, the DOC wanted to know whether it would be cool with everyone if it didn’t hire men to do the pat-downs and shower checks at the women’s prisons.
This opinion says more about the underlying facts of a current controversy than it does about the law. The holding and analysis are straightforward. Under the Washington Administrative Procedure Act, a justiciable controversy does not arise before “final agency action.” Prior cases had established that interpretive letters like the one here, do not constitute final agency action. Open and shut, as one might say.
Nonetheless, the opinion letter opens up interesting future questions. The HRC opined that gender may be a bona fide occupational qualification, under certain circumstances, like preventing prison guards from getting free looks at lady parts, and not subject to the Washington Law Against Discrimination. When the DOC finally gets around to issuing its policies and guidelines, then the Teamsters can sue again.
Jimmy Hoffa is rolling over under the end zone at Giants Stadium.
Posted in Administrative Law, Division II, Judge J. Robin Hunt - Draft Majority | Leave a Comment »
July 19, 2010
State v. McNeal
McNeal was resentenced under Blakely. On resentencing, the trial court impanelled a jury to hear evidence on free crimes. Under Free Crimes, a sentence may be placed outside the standard sentencing range if failing to do so would result in the offender essentially getting a free pass on one or more of his crimes. That’s the best I can do with it, I’m a Plaintiff attorney. The only math I know is 1/3. (Well, that’s not true, I actually do still know how to do a derivative in calculus. That’s right, where f(x)=x^3, then d(x)=3x^2. I think that’s the case. Its what some guy who looked like Gandalf told me online. Seriously, my calculus professor taught me online and looked like Gandalf. I trust a hippy wizard with my math over a scientist any day.). Because he’s no longer teaching at Bellevue College, I instead give you an artist’s rendering of what he may look like now.
Anyhow, the court of appeals concluded that the trial court, on remand, could consider free crimes without impanelling a jury, seeing as no facts need to be found. Its just math.
Tags:Blakely, free crimes
Posted in Blakely, Criminal Law, Division II, Judge J. Robin Hunt - Draft Majority, Sentencing, Unanimous, WA Court of Appeals | Leave a Comment »
July 19, 2010
State v. Pearsall
Pearsall was pulled over for driving with a suspended license. She gave the ID of another, lied about her identity (of one who she bore no physical resemblance towards), and fessed up, ending up in cuffs. The cop then searched her vehicle incident to arrest and found some vicodin. Well, under recent WA law, you can only search within the physical proximity of the Defendant. This would have been a great issue to bring up, only it came down between trial and the appeal. The argument was not preserved.
Here’s my argument to the supremes, assuming such a petition was made: I am not fully aware of the timing. I am issuing that as a caveat in case I am entirely wrong. I do only skim these after all. But, wouldn’t it have been a CR 11 sanction for Pearsnall to attempt to argue at the time that the search of the vehicle incident to arrest violated her rights. I mean, it was a shocker when the opinion came out that such searches were improper. To ding her because she didn’t raise those arguments below is a bit of a problem in my book. It will be interesting to see if a challenge on this gets up.
Nevermind. The dissent argues just that.
Tags:close proximity, incident to arrest, vehicle search
Posted in Division II, Judge J. Robin Hunt - Draft Majority, Search and Seizure, WA Court of Appeals | 1 Comment »
April 29, 2010
Housing Authority of Everett v. Kirby
Carroll Kirby failed to pay rent one month. The Housing Authority tried to evict him. They failed to state in the summons and complaint that he could answer by facsimile or mailing. He moved the court to have the case dismissed on that ground. He also asked for attorney fees. The court commissioner determined that the summons and complaint were invalid, but declined to award attorney fees because the court believed it lacked authority to do so once the case was dismissed. The Court of Appeals held affirmed, except that it held that Mr. Kirby was entitled to statutory attorney fees in the amount of $200.
Posted in Attorney's Fees and Costs, Civil Procedure, Division I, Judge C. Kenneth Grosse - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Judge Linda Lau - Concur in Majority, Landlort Tenant, WA Court of Appeals | Leave a Comment »
February 23, 2010
State v. Nyegaard
Nyegaard was convicted of possession of meth after his vehicle was stopped for failure to make a lawful turn and for speeding. As the officer approached he smelled alcohol and witnessed Nyegaard moving his hands to his side. The officer removed Nyegaard from the car and witnessed and heard Nyegaard drop something, which later turned out to be a meth pipe. After searching the vehicle, the officer found a gun, meth, cocaine, cell phones, and another pipe.
Nyegaard challenges the vehicle search for the first time on appeal. The Court of Appeals, relying on State v. Millan (151 Wn. App. 492) concluded that a defendant waives his right to appeal an issue that is raised for the first time on appeal.
Nyegaard argues insufficiency of evidence. The court disagreed and found that all of the evidence presented could lead a reasonable jury to conclude that Nyegaard either aided or agreed to aid in possession of meth with intent to deliver.
Posted in Constitutional Law, Criminal Law, Division II, Fourth Amendment, Judge C. C. Bridgewater - Concur in Majority, Judge Elaine Houghton- Draft Dissent, Judge J. Robin Hunt - Draft Majority, Search and Seizure, WA Court of Appeals | Leave a Comment »
January 6, 2010
In Re The Settlement/Guardianship of AGM and LMM
This is a case where the attorney missed the SGAL hearing, lied to the court (claiming she was stuck in snow when there was no snow), erroneously told the court that she requested and prepared documents for the SGAL, and sent a three page demand on a policy limit case (undetermined whether it included all the medical records to substantiate).
Minor sisters were injured in an automobile accident. AGM’s medical specials totaled over $68,000.00 while LMM’s medical specials were $3,500.00. The family was represented by Rubinstein Law Firm who submitted a demand on behalf of the family that consisted of three pages and 7 lines dedicated to AGM’s claim. State Farm offered policy limits ($100,000.00) for AGM and $4,500 for LMM. Rubinstein accepted the offer for AGM (pending approval) and negotiated LMM’s settlement. An SGAL was appointed to review the settlement and fees (1/3 requested by the attorney per the rep agreement). The SGAL opined that a lower fee was appropriate for AGM as the attorney spent very little time on the case and there was no need to negotiate. After missing the first hearing and being requested to file an itemized lien wherein she claimed only 2 hours of attorney work on AGM’s case, the trial court approved $15,000.00 of the requested $33,333.33 fee for AGM. Rubinstein Law Firm appeals.
On appeal, Rubinstein argues that the trial court lacked a reasonable basis to reduce the fee, based its decision on the itemized lien, and applied an improper method for determining the fee. The court found that SPR 98.16W authorizes the trial court discretion over the fees and allows the trial court to consider itemized liens, SGAL recommendations, and attorney declarations. The court also noted that Rubinstein was incorrect in alleging that the burden of proof for determining a reasonable fee should have been the SGAL or State Farm and held that the burden is on the attorney requesting the fees.
Finally, the court disagrees again with Rubinstein, holding that the trial court did not determine the reduced fee on an unreasonable or arbitrary basis. The court quotes the RPC 1.5(a) disallowing attorneys from accepting an unreasonable fee. In pointing out that the attorney spent very little effort on AGM’s case to obtain the policy limit, the court ruled that the trial court acted reasonably in lowering Rubinstein’s fees.
Posted in Attorney's Fees and Costs, Division II, Judge Chris Quinn-Brintnall - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Judge Joel Penoyar - Concur in Majority, Minor Settlements, Settlement Guardian ad Litem (SGAL), Tort, WA Court of Appeals | 3 Comments »
November 19, 2009
State v. Bliss
Bliss was driving her van when a patrol officer pulled her over to verify she was the registered owner. The patrol car had noticed the van and a light skinned woman with light hair driving. The police officer ran a check on the car to find that the registered owner (Bliss) had outstanding arrest warrants (felony and misdemeanor) and was a light skinned woman with blond hair. The officer pulled Bliss over, arrested her, and searched the van- finding meth. Bliss tried to suppress the meth by arguing that the office made an unreasonable stop and an unreasonable inference she was the driver.
Bliss appeals her conviction, arguing that the trial court erred in denying her CrR 3.6 motion to suppress the meth and in concluding that the officer acted reasonably in stopping Bliss’s vehicle. Bliss also argues that under Arizona v. Gant, which disallows a warrantless vehicle search incident to arrest under some circumstances, the meth should have been suppressed.
The appeals court disagreed with Bliss’s arguments that the police officer’s observations of her prior to pulling her over were not sufficient for the stop and that the stop was unjustified, however, the court held that in light of Gant, there was insufficient evidence for review and remanded back to the trial court for more evidentiary hearings. The court based its decision regarding the justified stop on the analysis that the police officer observed a driver with light skin and light hair, which fit the description of the registered owner with outstanding warrants.
The appeals court remanded on the limited issue of whether any other exceptions to the warrant requirement might apply to the search of Bliss’s vehicle. The trial court is to conduct another suppression hearing, enter findings and give those findings to the Division II Court of Appeals.
Posted in Constitutional Law, Criminal Law, Division II, Judge Chris Quinn-Brintnall - Concur in Majority, Judge Elaine Houghton - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Search and Seizure, WA Court of Appeals | Leave a Comment »
September 30, 2009
State v. Coleman
Coleman appeals his conviction of first degree burglary with an exceptional sentence based on sexual motivation, invasion of privacy, and presence of the victim during the commission of the crime.
The Court vacated the sexual motivation aggravating factor. The verdict form had initially been returned by the jury with a No next to the question on whether the jury found sexual motivations. The Judge polled the jury and found that they were not unanimous on the issue and sent them back for more deliberations. Finally, the jury came back and said they unanimously determined “yes” for that answer. The appeals court found this case to be almost identical to Goldberg and found that the trial court erred when they treated the jury’s no as a deadlock and requiring more deliberations.
The court affirmed the aggravating factor of "invasion of privacy,” and found that invasion of privacy does not inhere in first degree burglary as it was charged in Coleman’s case.
Coleman also argues that the court erred in using the victim’s mother’s presence in the home as an aggravating factor. As the court could not determine if the jury did consider the victim’s mother the found this error, if any, to be harmless.
The court remands for resentencing because at least one of the aggravating factors was vacated. The court confirms the conviction.
Posted in Criminal Law, Division II, Judge C. C. Bridgewater - Concur in Majority, Judge Chris Quinn-Brintnall - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Sentencing, WA Court of Appeals | Leave a Comment »
September 22, 2009
State v. Sims
Sims appeals his sentence banishing him from Cowlitz County as a violation of his due process rights and equal protection. Sims was charged with 1st degree child molestation and plead guilty. He underwent a psychosexual examination for a pre-sentence report. The report determined that he would present a very low risk for recidivism if allowed to stay in the community. Based upon the results, the DOC recommended suspending the confinement portion of the sentence under SSOSA (special sex offender sentencing alternative). The trial court banned him from the county in which the child he molested lived.
The State concedes the error and argues that the case should be remanded back to the trial court for “broader resentencing and reconsideration.”
To survive strict scrutiny the banishment must be narrowly tailored to serve a compelling government interest. The court holds that the banishment of Sims was not narrowly tailored and that there could have been other restrictions imposed to protect the child and her family from Sims.
The court vacates Sims’s sentence and remands back to the trial court for resentencing. Sims argues that on remand the trial court should not be able to reconsider its SSOSA decision because if allowed to do so it will “chill criminal appeals.” The court finds the argument compelling, but nevertheless agrees that the trial court should be allowed to reconsider the SSOSA decision.
Posted in Civil Rights, Constitutional Law, Criminal Law, Division II, Judge C. C. Bridgewater - Concur in Majority, Judge Chris Quinn-Brintnall - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Sentencing, Special Sex Offender Sentencing Alternative, WA Court of Appeals | Leave a Comment »
September 17, 2009
State v. McCarty
McCarthy and her roommate, Otis [see previous blog on State v. Otis], were charged with manufacturing marijuana. At trial, the court precluded the defense of medical marijuana. Otis presented documents from a patient designating him as the patient’s caregiver. Otis also presented documents from the patient’s doctor allowing him to use marijuana for medical purposes. None of these documents mentioned McCarthy.
On appeal, McCarthy argues that the trial court erred in precluding her medical marijuana defense. The appeals court disagrees and argues that she is precluded from bringing a medical marijuana because there was no evidence that she was a primary care giver of a patient that was allowed to use marijuana for medical purposes. The documents presented at the hearing referred only to Otis.
The appeals court did remand McCarthy’s case back to trial for the purpose of allowing her to present a defense under RCW 69.51A.050(2), which states that a person cannot be convicted of manufacturing marijuana based solely on their presence or vicinity of the medical marijuana.
Posted in Criminal Law, Division II, Judge Chris Quinn-Brintnall - Concur in Majority, Judge Elaine Houghton - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Medical Marijuana, WA Court of Appeals | Leave a Comment »
