Archive for the ‘Judge Linda Lau – Concur in Majority’ Category
May 5, 2010
City of Seattle v. City of Seattle Public Safety Commission
Seattle police officer Richard Roberson was suspended for 30 days by the police department for 3 separate incidents of misconduct. He appealed and the Public Safety Commission determined that discipline was only justified for one of the offenses. The commission reduced the suspension to 7 days.
The Court of Appeals, in examining the appropriate standard of review for the commission on appeal, determined that the review standard was consistent with the state statute establishing the city police civil service system.
Posted in Administrative Law, City of Seattle, Division I, Judge Anne Ellington - Draft Majority, Judge Linda Lau - Concur in Majority, Judge Mary Kay Becker - Concur in Majority, Statutory Interpretation, WA Court of Appeals | Leave a 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 »
January 19, 2010
State v. Bennett
Clarence Bennett, Jr. was convicted of a sex offense in 1991. As a condition of his sentence, he was required to register with the county sheriff. He did register, listing his father’s address, but didn’t actually stay there most of the time.
The Court of Appeals determined that the jury instruction, which required the jury to find that Mr. Bennet knowingly failed to register, was proper.
The Court of Appeals also determined that the DNA collection fee was not an ex post facto law, as previously determined in State v. Brewster, 218 P.3d 249 (2009). The Court of Appeals did, however, remand the case case to have an HIV testing requirement stricken from the sentence because there was not statutory authority for such an order.
Note to sex offenders: Register, register, register. Even if you have been rehabilitated and aren’t committing sex crimes anymore, it is still a crime not to register. Even if you are homeless, you must register. If you move, you must re-register.
Posted in Constitutional Law, Criminal Law, Division I, Judge C. Kenneth Grosse - Draft Majority, Judge Linda Lau - Concur in Majority, Judge Mary Kay Becker - Concur in Majority, WA Court of Appeals | 1 Comment »
January 12, 2010
Bloome v. Haverly
Jackson Haverly bought property from Mark Bloome in 1995 in the Magnolia neighborhood of Seattle. Mr. Haverly purchased a developed lot up the hill from an undeveloped lot also owned by Mr. Bloome. They executed a restrictive covenant apparently aimed and protecting the view of Puget Sound and Olympic mountains of the uphill parcel.
Apparently seeking to develop the lot, Mr. Bloome brought a declaratory judgment action, asking the court to determine that view covenant did not prohibit him from developing the lot. Mr. Haverly brought a counterclaim, asking the court to determine that no development that blocked the view was permitted under the view covenant. Both parties moved for summary judgment. The trial court granted Mr. Haverly’s motion, holding that the view covenant prohibited Mr. Bloom from build a structure that interfered with Mr. Haverly’s view.
The Court of Appeals reversed and remanded, finding that there did not exist a justiciable controversy because no actual building plans had been proposed.
Note to appellate courts: Please tread very lightly in kicking cases out because they are not “justiciable.” The federal courts have effectively closed the courthouse to many persons because they, for example, lack standing. It is a back door means of slamming the courthouse doors to those that have legitimate grievances and are entitled to relief. See, e.g. Allen v. Wright, 468 U.S. 737 (1984). In this case, the Court of Appeals delays granting relief to parties that need a simple interpretation of a restrictive covenant so that they may order their affairs accordingly. Perhaps a more fully developed record would be helpful to the court, but the remand simply delays (and heightens the costs) of resolving a fairly simple dispute. Did the parties even brief and argue the issue of justiciability, or was that something the court came up with on its own (sua sponte)?
Posted in Contracts, Division I, Judge C. Kenneth Grosse - Concur in Majority, Judge Linda Lau - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority, Justiciability, Property, WA Court of Appeals | 1 Comment »
October 19, 2009
Townsend v. Quadrant Corp.
Several families purchased homes from Quadrant. They were “forced” to sign purchase and sale agreements (PSAs) that contained an arbitration provision. They claimed that they weren’t given the opportunity to review the PSA and that the arbitration clause was unconscionable.
The Court of Appeals held that while arbitration clauses CAN be unconscionable, this case was not an example of either procedural or substantive unconscionability.
The Court left to an arbitrator whether the various claims (some tort and some contractual) were viable in the aftermath of Alejandre v. Bull, 159 Wn.2d 674, 153 P.3d 868 (2007). The Court determined that the tort claims (involving personal injury and damage to property) were outside of the contract and not governed by the PSA. The contract claims, however, were governed by the arbitration clause.
Posted in Arbitration Agreements, Contracts, Division I, Judge Linda Lau - Concur in Majority, Judge Marlin Applewick - Draft Majority, Judge Susan R. Agid - Concur in Majority, WA Court of Appeals | Leave a Comment »
September 22, 2009
State v. Smits
Barry Smits was convicted of crimes in 2005 and 2007. As part of his sentence, the court imposed legal financial obligations (LFOs) on Mr. Smits. He made a motion to to the sentencing court to terminate the LFOs. The motion was denied. He appealed to the Court of Appeals. The commissioner of the court determined that the denial of the motion was not appealable because it was not a final order. The LFOs could be revisited at any time and could be modified or set aside if circumstances required it. Mr. Smits moved to modify the commissioner’s order. The Court of Appeals agreed with the commissioner and dismissed the appeal.
Note to people concerned about appellate review: Apparently, there are some things that a trial court can do that you cannot seek appellate review of.
Posted in Appellate Procedure, Judge Ann Schindler - Draft Majority, Judge C. Kenneth Grosse - Concur in Majority, Judge Linda Lau - Concur in Majority, WA Court of Appeals | Leave a Comment »
September 22, 2009
In re: Detention of Boynton
Jeshuel Amos Boynton admitted to engaging in a number of acts in which he either engaged in or attempted to engage in sexual activity with minors. The state attempted to have him committed as a sexually violent predator (SVP) based, in part, on a sexual offense he committed against his then seven year-old brother when he was 13. He had been convicted of incest in the first degree, which did not require the state to prove that the brother was under the age of 14. Mr. Boynton argued that for incest to be used as a basis for SVP commitment, the victim needed to have been under the age of 14. As the argument went, since the state had never been forced to prove that the incest victim had been under 14, they couldn’t use it as the basis for finding that Mr. Boynton was an SVP.
The Court of Appeals determined that the argument was hogwash. Because commitment under the SVP statute is civil in nature, Apprendi/Blakely do not apply to the determination of whether the age of the victim need be established by a jury beyond a reasonable doubt. I’ve never quite understood how an involuntary commitment doesn’t constitute of taking of liberty under the Due Process clause, but I suppose that’s a discussion for another day.
Posted in Division I, Judge Ann Schindler - Draft Majority, Judge C. Kenneth Grosse - Concur in Majority, Judge Linda Lau - Concur in Majority, Sexually Violent Predator Law, WA Court of Appeals | 1 Comment »
September 22, 2009
Cascade Valley Hospital v. Stach
You were thinking by the caption that this would be a medical malpractice case. Nope. It’s a worker’s compensation case. It involves an “over-seven” claim. An “over-seven” claim is a worker’s compensation claim that has been closed for over seven years. The director of the Department of Labor & Industries has the discretion to re-open such claims if an aggravation of a work-related injury can be shown. The director did so in this case and the Court of Appeals determined that doing so was a proper use of his discretion.
On a side note: Division II apparently reached a slightly different resolution with regard to the director’s discretionary authority in Walmer v. Department of Labor & Industries, 78 Wn. App. 162 (1995). Query what this will mean for worker’s comp practitioners practicing in Division Three (or Divisions One and Two for that matter).
Posted in Division I, Judge Anne Ellington - Draft Majority, Judge C. Kenneth Grosse - Concur in Majority, Judge Linda Lau - Concur in Majority, WA Court of Appeals, Workers Compensation | Leave a Comment »
September 15, 2009
Ensley v. Pitcher
Nicholas Ensley was injured when a drunk woman, Rebecca Humphries, plowed into him. He sued the bar that allegedly over served Ms. Humphries. The case against the bar was dismissed on summary judgment in part because the court struck evidence of that Ms. Humphries’ intoxication was apparent to the bartender, Mr. Pitcher. The trial court also refused to allow Mr. Ensley to amend his complaint to include Mr. Pitcher individually.
Mr. Ensley brought a separate action directly against Mr. Pitcher. The Court of Appeals held that res judicata precluded the claim, because Mr. Pitcher was an employee of the bar and the bar had previously had claims against it dismissed.
Note to bars: Don’t serve alcohol to people that look glassy-eyed.
Posted in Appellate Procedure, Division I, Judge Linda Lau - Concur in Majority, Judge Marlin Applewick - Draft Majority, Judge Susan R. Agid - Concur in Majority, res judicata, Tort, WA Court of Appeals | Leave a Comment »
August 25, 2009
City of Seattle v. May
A statute allowing for an order of protection that lasts for more than one year requires a court to find that “the respondent is likely to resume acts of domestic violence against the petitioner…”
In this case, a municipal court entered a permanent protection order against Robert May. The order did not state on its face that Mr. May was “likely to resume acts of domestic violence.” Mr. May violated the protection order and was charged with a crime for doing so. He argued that the protection order was invalid because it did not contain the language from the statute.
The Court of Appeals held that the language was not required in the order itself and that the lower court had made the finding despite the order’s failure to include language indicating that it had.
Posted in Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge C. Kenneth Grosse - Draft Majority, Judge Linda Lau - Concur in Majority, WA Court of Appeals | Leave a Comment »
