Archive for the ‘Justice Charles Johnson – Draft Majority’ Category
September 25, 2010
State v. S.J.W.
S.J.W. raped a developmentally disabled boy, 14 years old. At trial, S.J.W.’s attorneys challenged the competency of the victim as a witness. The trial court held that the burden was on S.J.W. to show that the witness was not competent. The court of appeals held that the burden was on the party offering the witness to show the witness was competent, not the other way around, but that the error was harmless.
Let me just pause right there to state why the court of appeals holding would be unruly. Every witness in a criminal trial offered by the State would have to go through a litany of questions as to their competency when the same wouldn’t really be in question. It makes sense that the burden is on the person challenging competency to prove incompetency. Anything else would be just plain silly.
The supreme court agreed with me of course. Its because I’m wise and incredibly handsome:
We may better frame this issue as whether a trial court should presume a child is competent or incompetent to testify. If a trial court should presume a child witness is competent, then the party challenging the child’s competency has a burden to rebut that presumption by establishing that the child is not competent to testify. Conversely, if a trial court should presume a child witness is incompetent, then the party offering the child witness has a burden to rebut that presumption by establishing that the child is competent to testify. As noted, the trial court here started with the presumption that 14-year-old children are competent to testify. The Court of Appeals would have trial courts presume that all children are incompetent to testify.
. . .
Because RCW 5.60.050 no longer makes any reference to age, the default rule for all witnesses should apply, i.e., that every person is presumed competent to testify. See RCW 5.60.020 (“Every person of sound mind and discretion . . . may be a witness in any action, or proceeding”); ER 601 (“Every person is competent to be a witness except as otherwise provided by statute or by court rule.”); see also State v. Smith, 97 Wn.2d 801, 803, 650 P.2d 201 (1982) (“Where there has been no such [adjudication of insanity], the burden is on the party opposing the witness to prove incompetence.”). Requiring a trial court to presume a witness is incompetent based solely on his age would be inconsistent with the current statutory scheme that gives no weight to the witness’s age. A six-year-old child (as in Allen) may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone. Rather, we hold that courts should presume all witnesses are competent to testify regardless of their age.
(The Prof: Incredibly Handsome and Wise)
Tags:burden, competency, witness, witnesses
Posted in Criminal Law, Evidence, Justice Charles Johnson - Draft Majority, Unanimous, WA Supreme Court | 1 Comment »
September 16, 2010
State v. Montano
Montano decided it was a great idea to, after his arrest, taunt the police officer by threatening to kick his ass in several different ways. This reminds me of an old joke from Richard Jeni. Why would you intimidate a police officer. He has a stick…and a gun…and a radio to call more people with sticks and guns.
Anyhow, back to the case at hand. Montano was charged with intimidation of a public servant. Montano brought a Knapstad motion. I don’t know criminal procedure, but from what I’ve garnered, a Knapstad motion is essentially a criminal defendant’s form of a motion for summary judgment.
Anger alone isn’t enough to bring you within the intimidation statute. This seems reasonable. A lot of people are ticked off when they get arrested. Heck, Mel Gibson seems to be ticked off all the time regardless of whether he’s being arrested. He’s also taken to being a master of disguise:
It also has to be more than just threats:
The Burke court’s reasoning applies to the facts of Montano’s case. Before his arrest, Montano struggled violently with the police officers who were attempting to subdue him. From his initial refusal to provide identification to his final thrashings that resulted in two tasings, Montano grew increasingly enraged and violent. After being subdued physically, he resorted to lashing out verbally, hurling threats and insults at the officers. As in Burke, this behavior amply demonstrates Montano’s anger at the situation and at the police officers. However, there is simply no evidence to suggest that Montano engaged in this behavior, or made his threats, for the purpose of influencing the police officers’ actions. Instead, the evidence shows a man who was angry at being detained and who expressed that anger toward the police officers. In the absence of some evidence suggesting an attempt to influence, the State has failed to make a prima facie showing that Montano attempted to influence either officer’s official action.
The threshold showing required for a prima facie case (and thus to survive a Knapstad motion to dismiss) is lower than that required for a conviction. Nonetheless, the State must provide at least some evidence supporting each element of the crime charged to merit consideration by a jury. Here, under the facts alleged by the State, no evidence exists that Montano intended to influence a public servant. The evidence arguably shows that Montano resisted arrest, and charging him with that crime is appropriate. But the State cannot bring an intimidation charge any time a defendant insults or threatens a public servant. Though such behavior is certainly reprehensible, it does not rise to the level of intimidation. The legislature held the same view, as evident by its inclusion in the statute the requirement that the defendant must threaten with the “attempt[] to influence a public servant’s . . . official action.” RCW 9A.76.180(1). Therefore, some evidence is required to link the defendant’s behavior to an official action that the defendant wishes to influence.
Tags:intimidating a public servant, intimidation, knapstad
Posted in Criminal Law, Justice Charles Johnson - Draft Majority, Knapstad, WA Supreme Court | Leave a Comment »
August 2, 2010
Broom v. Morgan Stanley DW Inc.
Broom’s broker made some bad decisions. He took a retirement account, liquidating blue-chip stocks and going high-tech. Not a smart move for an old man. The broker move to Morgan Stanley in 2000, taking the account with. The value continued to decrease, and Broom passed away in 2002.
The children brought suit, alleging negligence and a slew of other claims. The arbitration agreement came into effect and Morgan Stanley asserted statute of limitations. The arbitration panel held that the claims were barred by the statute limitations (except for the CPA claim. The panel then dismissed the CPA claim.
The problem here is the statute of limitations applied to arbitrations is that of the arbitration agreement, not the state. The parties, may of course contract specifically for a state statute limitations, but this does not mean that they apply automatically. Thus, the six-year limitation within the arbitration agreement governed.
The next question then becomes whether the court can trump an arbitration award where there is a clear error of law: “We hold that facial legal error falls within former RCW 7.04.160(4) as one instance in which arbitrators exceed their powers and that it is a valid ground to vacate an arbitration award.”
Yes, I have had my Xanax and can now again blog securities opinions. Or maybe it’s the fact that this is an opinion about arbitration awards that only tangentially touches on securities. Either way, you have your opinion, and a bit of analysis to boot.
Posted in Arbitration Agreements, Justice Charles Johnson - Draft Majority, Securities, WA Supreme Court | Leave a Comment »
August 2, 2010
Waples v. Yi
The 90 day notice of intent to sue has been found to be unconstitutional by the Washington Supreme Court. Those who’ve been following the court as of late probably saw this coming, but the court having just recently struck down the requirement that medical malpractice lawsuit be filed alongside a certificate of merit. The crux of striking down the certificate of merit requirement was that it violated the separation of powers between the legislature and the courts.
In doing with requirement, the court applied the same argument:
Respondents attempt to distinguish Putman, contending that the certificate of merit requirement changes the procedures for filing pleadings in a lawsuit, while the notice requirement does not impose any pleading requirements. But the analysis of Putman is not so limited. There, we held that the addition of legislative requirements to the court rules for filing suit was unconstitutional. We based our conclusion on the fact that the statutory certificate of merit requirement involved procedures and not substantive rights “because it addresses how to file a claim to enforce a right provided by law . . . . The statute does not address the primary rights of either party; it deals only with the procedures to effectuate those rights. Therefore, it is a procedural law and will not prevail over the conflicting court rules.” Putman, 166 Wn.2d at 984-85 (citation omitted).
We make the same holding here. The conflict between RCW 7.70.100(1) and CR 3(a) cannot be harmonized and both cannot be given effect. If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters. “Substantive law `creates, defines, and regulates primary rights,’ while procedures involve the `operations of the courts by which substantive law, rights, and remedies are effectuated.’” Putman, 166 Wn.2d at 984 (internal quotation marks omitted) (quoting Jensen, 158 Wn.2d at 394). Like RCW 7.70.150, RCW 7.70.100(1) does not address the primary rights of either party and deals only with the procedures to effectuate those rights. Therefore, RCW 7.70.100(1) involves procedural law and will not prevail over CR 3(a).
Congratulations to Jerry Pearson and the WSAJ Amicus Committee for their win.
Those paying attention have to wonder if the court will tackle the 60 day notice requirement for suits against governmental entities in the next go-round as well. The logic seems to dictate that any pre-filing procedural requirement is a violation of the separation of powers.
Also an open question at this point is whether notice against governmental entities is still in play in medical practices. The statutes for the 90 day notice and the 60 day notice were recently harmonized to make only the medical malpractice 90 day notice of intent to sue in play in situations where you have a medical malpractice suit against governmental entity. Now that the 90 day notice is kaput, it’s an open question as to whether the 60 day notice is now in play again.
Tags:90 day notice, intent to sue, Medical Malpractice, ninety day notice
Posted in Justice Charles Johnson - Draft Majority, Tort, WA Supreme Court | Leave a Comment »
July 31, 2010
S. Tacoma Way, LLC v. State
The department of transportation sold some land without giving statutory notice under RCW 47.12.063(2)(g). Under the statute, DOT was required to give statutory notice to abutting landowners. They thought they were the only abutting landowners, but was having mistaken. When South Tacoma Way, LLC tented to purchase the property of one of the landowners, it learned that that landowner had not been given notice of the sale and objected. STW attempted to block the sale is ultra vires.
Court found that the sale by DOT did not amount to ultra vires. Of particular note, for the doctrine to apply there must be no legal authority to take the action at issue. Here DOT did have the authority to make the sale and purchase, the only error was procedural. The court also made particular note of the fact that declaring these types of transactions, in which procedural irregularities occur, void would leave these transactions open to challenge years or even decades later. As we all know from first year property class, we favor finality in these types of transactions.
Posted in Justice Charles Johnson - Draft Majority, Property, WA Supreme Court | Leave a Comment »
May 6, 2010
Rivard v. State
Really, I don’t know what you were expecting. This one is pretty self explanatory. In 1996, vehicular homicide was reclassified to a Class A felony, and Class A felons can’t have guns. In another case, the court held that a violation of a no felon gun law, which banned certain felons from carrying guns, wasn’t ex post facto because the statute was violated after its enactment. It wasn’t a new punishment. The distinction here is that you can’t go around changing convictions to fit them under an existing law. Rivard was convicted a class B felon, and a class B felon he shall remain because reclassifying him as a class A is a violation of ex post facto. This has nothing to do with whether the violation of the firearm statute is ex post facto.
Okay, maybe there was a little something more to tell.
Tags:convictions, felon-rights, firearms, vehicular homicide
Posted in Criminal Law, Ex Post Facto, Justice Charles Johnson - Draft Majority, Unanimous, WA Supreme Court | Leave a Comment »
April 21, 2010
Lawson v. City of Pasco
Pasco banned RVs from Mobile Home Parks. Lawson, of course, owned an RV, or else he wouldn’t be here. He argued it was protected by the Mobile Home Landlord Tenant Act. Unfortunately, the MHLTA actually contemplates local regulation, thus the field is not preempted. There is no conflict, because the MHLTA deals with mobile homes, manufactured homes, and park models (“a recreational vehicle intended for permanent or semi permanent installation and . . . used as a primary residence.” Since the statute doesn’t address the allowance or disallowance of straight RVs, there is no conflict preemption.
The local ordinance stands.
Tags:conflict preemption, field preemption, mobile home park, preemption, recreational vehicle, RV, WHLTA
Posted in Chief Justice Barbara Madsen - Draft Concurrence, Justice Charles Johnson - Draft Majority, Justice Debra Stephens - Did Not Participate, Justice Mary Fairhurst - Draft Dissent, Justice Richard Sanders - Draft Dissent, Land Use, Landlort Tenant, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »
April 21, 2010
Renner v. City of Marysville
Earlier this year (or I think 2009), the notice of claims statute went to a substantial compliance rule, meaning that you couldn’t be kicked out of court on a technicality. Here, Renner, rather than stating the amount of damages, described the damages. Further, he only provided two months worth of addresses instead of the 6 required on the form.
Held: Renner substantially complied.
Justice Fairhurst would have held that amount means amount, and a failure in that regard does not amount to substantial compliance. It makes one wonder what would amount to substantial compliance.
Tags:government liability, Notice of Claims, washington supreme court
Posted in Chief Justice Barbara Madsen - Draft Concurrence, Government Claim Forms, Governmental Liability, Justice Charles Johnson - Draft Majority, Justice Mary Fairhurst - Draft Dissent, Notice of Claims, Tort, WA Supreme Court | Leave a Comment »
February 18, 2010
State v. Dow
Dow was charged with molesting a 3-year-old. The evidence available included the testimony and his statement. The victim was found incompetent to testify. Under the Corpus Delecti rule, the statement can be used against the Defendant in a limited circumstance:
RCW 10.58.035 permits a lawfully obtained and otherwise admissible statement of a defendant to be admitted when independent proof of the crime is absent, the alleged victim is dead or incompetent to testify, and the defendant’s statement is found trustworthy based on a nonexclusive set of statutory factors that a trial court must consider.
Here, the statement could be used. However, that doesn’t get you a pass to take it to trial. Here, the statement was exculpatory. An exculpatory statement with no other evidence isn’t sufficient to convict, and the case was properly dismissed.
Also held: The Corpus Delecti Rule passes constitutional muster.
Posted in Corpus Delecti, Criminal Law, Justice Charles Johnson - Draft Majority, WA Supreme Court | Leave a Comment »
