Regan was on probation and had a restriction that he not engage in conduct which constituted “criminal violations of the law.” He of course did so, but wasn’t convicted. The standard for revoking probation is that the conduct be proven to reasonable satisfaction. Requiring a conviction would be changing that standard to “reasonable doubt”. Anyhow, because the City proved to a reasonable satisfaction that the violation occurred, YOINK…bye bye goes the probation.
Archive for the ‘Justice Gerry Alexander – Concur in Majority’ Category
WA Supreme Court: No Conviction Needed for Probation Violation
October 14, 2010Posted in Criminal Law, Justice Gerry Alexander - Concur in Majority, Justice Mary Fairhurst - Draft Majority, Justice Richard Sanders - Draft Dissent, Probation, WA Supreme Court | Leave a Comment »
WA Supreme Court: Mandatory Joinder exception applies to Andress cases
January 28, 2010Under the mandatory joinder rule, two or more criminal offenses must be joined if related. Under Andress felony murder charges were invalidated, and many were retried on lesser offenses for the murders. The Defendants (consolidated cases) claimed this violated the mandatory joinder rule. The State contends that this fits into the exception to the MJ rule — that is, to meet the ends of justice.
The court applied the ‘extraordinary circumstances’ requirement of CR 60(b) analogously and determined that Andress was definitely extraordinary.
However, one of the requirements of application is that the extraordinary circumstance be “extraneous to the action of the court.” Here, the court skims over and says it was in fact extraneous.
I beg to differ. Just because it wasn’t the trial court, doesn’t mean that it wasn’t the court. After all, it was the Washington Supreme Court that took on Andress.
That said, I still agree with the result.
Posted in Andress, Chief Justice Barbara Madsen - Draft Majority, Criminal Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, WA Supreme Court | Leave a Comment »
WA Supreme Court: Minor Plea can be Withdrawn
January 28, 2010ANJ (12 years old) pleaded guilty to child molestation. Almost immediately, and after learning the consequences of a guilty plea in this situation, he tried to withdraw his plea. This case, essentially, involves an admonishment of the Public Defender system.
ANJ was accused of molesting a 5-year-old. The trial court appointed a public defender. Under the contract, the defender was paid a flat rate of $162, but expert fees had to be paid for by the defender. I don’t know how often you hire experts, but it is not uncommon for the retainer to be $4,000. Given the number of cases a public defender can handle, you can see the issue here. In fact, “Under recent revisions of the rules governing attorneys’ professional conduct, it is now unethical for an attorney to sign a public defender contract to deliver public defense if the contract requires the attorney to pay for conflict counsel, expert witness, or investigative costs out of a lump fee. RPC 1.8(m).”
In a case of such import, the overloaded PD didn’t do an investigation, met with the client only briefly, and never contacted the witnesses (only trying once). There were no requests for discovery and no motions filed.
When the state offered a reduced charge under SSODA, the PD only briefly explained the implications of the plea, saying he would have to register and couldn’t own a firearm. He told the family that the charge could be removed at 18 or 21 (sex offenses don’t roll like that, they stick):
[The Public Defender] also initially submitted a declaration in support of A.N.J.’s motion. He acknowledged he had done no investigation, that he had not read the plea agreement to A.N.J. or had him do so, and that he had told A.N.J.’s parents that he “believed” the convictions could be removed from A.N.J.’s record when he turned 18 or 21.
The court reversed on the misinformation to the client, which is ineffective assistance, as well as the failure to inform ANJ of the elements (specifically, sexual gratification, which, given the age of all involved, could very well be missing).
Finally, of particular note on the ineffective assistance:
However, we hold that if a public defender contract requires the defender to pay investigative, expert, and conflict counsel fees out of the defender’s fee, the contract may be considered as evidence of ineffective assistance of counsel. We further hold that depending on the nature of the charge and the issues presented, effective assistance of counsel may require the assistance of expert witnesses to test and evaluate the evidence against a defendant.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Criminal Law, Ineffective Assistance of Counsel, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Draft Concurrence, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Concurrence, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »
WA Supreme Court: Firearm enhancement does not merge with 2d degree possession of a firearm
January 22, 2010Under double jeopardy, you can’t be convicted of the same conduct twice. However, under the same conviction, you may have multiple punishments. Therefore, a firearms enhancement is only a second punishment on the single conviction, not a second conviction. Thus, a firearm enhancement may be added to a 2d degree possession of a firearm.
Posted in Blakely, Chief Justice Barbara Madsen - Draft Majority, Criminal Law, Firearms Enhancements, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, WA Supreme Court | Leave a Comment »
Washington Supreme Court: Well founded suspicion of probation violation enough to garner bench warrant
January 22, 2010Erickson was convicted and sentenced to probation. The court received notice that, “Erickson had failed to report to the probation department and had failed to enroll in treatment.” Based on the notice, the court scheduled a probation violation hearing. Guess who didn’t attend and had a bench warrant issued. When he was found? COKE!
Erickson argues that under Fisher, the court here could only issue a bench warrant if it had at minimum a “well-founded suspicion” that a violation of the terms of release had occurred. Id. at 232. While we agree with Erickson regarding the required standard, we conclude that in this case the issuing court did have a “well founded suspicion” that Erickson had violated the conditions of his release. Had the bench warrant here been issued immediately after the court received notice of the probation violation allegations, we might be more persuaded by Erickson’s argument. But one of the conditions of Erickson’s release was that he notify the court of any address change. The returned summons stated that Erickson had moved and had left no forwarding address. This alone provided the court with a well-founded suspicion that Erickson had violated the terms of release. The bench warrant was therefore valid and provided adequate authority of law to arrest Erickson.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Criminal Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Majority, WA Supreme Court | Leave a Comment »
Washington Supreme Court: No nationwide class for ATT Plaintiffs
January 22, 2010Schnall v. ATT Wireless Services, Inc.
The question before the Court was whether Washington State is a proper place for a nationwide class of Plaintiffs. Essentially, ATT passed on a governmental charge as a “Universal Connectivity Charge” to its customers. The customers, understandably, were upset, as this was never disclosed as a charge, nor was the reason for the charge really ever explained (I speak from personal experience here).
The trial court denied class cert, finding that individual questions predominated. Division I reversed and certified the nationwide class.
The Washington Supreme Court, in striking down a nationwide class, upheld the choice of law provisions in the contract. Thus, each individual state’s residents would have a separate set of law, making it difficult to administer a nationwide class. Hence, the only class that can still be had is Washington residents. Additionally, the Washington CPA claim is a bit tied to using Washington Law.
The Court made a big deal of the extra burden imposed by a nationwide class. Of course that burden is based on their choice of law finding. If the Court had found that the choice of law provision was one of adhesion (like their similar view of arbitration clauses), the extra burden to Washington Courts would have been minimal.
Finally, as the dissent states: “Not every state contract law is materially different for purposes here, and the trial court abused its discretion by failing to consider whether the laws of the states could be grouped together in a manageable number of subclasses.”
Posted in Chief Justice Barbara Madsen - Draft Majority, Class Actions, Consumer Protection, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Dissent, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Dissent, Justice Tom Chambers - Concur in Dissent, WA Supreme Court | Leave a Comment »
Washington Supreme Court: State has to offer services before terminating
January 22, 2010C.S.’s mother had drug problems. She fixed them. The state still terminated the parental relationship on the basis that, while she had recovered, she was unable to care for his ADHD needs. Unfortunately, the state did not offer services to help her with that, a pre-termination requirement under RCW 13.34.190.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Dependancy Gaurdianship Proceedings, Family Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »
Washington Supreme Court: Chimos can’t fraudulently transfer to avoid liability
January 22, 2010Mr. Wilson abused Clayton for a long time — that is, until he was caught. When out on bail before trial, he transferred 90% of his assets to his wife. The trial court voided the transfer and the Wilson’s were found jointly and severally liable. The joint and several liability is imposed as long as the abuse occurs during the conduct of community business. Here, that was Clayton cutting the lawn.
As to the fraudulent transfer:
Based on RCW 19.40.041(b)’s 11 factors, the facts of the present matter strongly suggest fraud in the Wilsons’ property transfer: The Wilsons were married, Mr. Wilson continued to live on one of the properties rent free after the transfer, the transfer occurred at breakneck speed between Mr. Wilson’s release from jail and eventual incarceration, Ms. Wilson received over 90 percent of the assets, the spouses knew and discussed their exposure to tort liability, Mr. Wilson gave no equivalent consideration for transferring the property, and the transfer left Mr. Wilson insolvent. Under the UFTA these factors overwhelmingly suggest fraudulence in the transfer.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Tort, WA Supreme Court | Leave a Comment »
Washington Supreme Court: No Harmless Error Analysis for Firearm Enhancements
January 15, 2010State v. Williams-Walker
In a 6-3 decision, the Washington Supreme Court found that 5 year firearms enhancement violations do not get the benefit of a harmless error analysis. Williams-Walker was charged with Robbery and Murder (both 1st degree). The jury was presented with a verdict form that read, “[w]as the defendant armed with a deadly weapon at the time of the commission of the crime.”
If you’ll remember, you criminal law people, this has been blogged about previously. However, this was at the Court of Appeals. That jury instruction does not say “firearm”. It only says “deadly weapon”. The issue is whether this allows a court to do a harmless error analysis and keep the enhancement on despite not adhering to the letter of Blakely.
Held: There is no harmless error analysis on a sentencing enhancement under the Washington Constitution. If you want a firearms enhancement, the fact-finder has to specifically find a firearm was involved. Otherwise, you only get the deadly weapon enhancement.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Criminal Law, Firearms Enhancements, Justice Charles Johnson - Draft Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Dissent, Justice Mary Fairhurst - Draft Dissent, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Dissent, WA Supreme Court | Leave a Comment »
Washington Supreme Court grants jury trial right in Jones Act case
January 14, 2010Endicott v. icicle foods, inc.
Endicott was injured aboard an icicle foods vessel (the lowercase is evidently intentional). He brought the case in state court. Under the Jones Act:
A seaman injured in the course of employment . . . may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to . . . a railway employee apply to an action under this section.
Endicott argued that this was his choice. icicle contended either party could demand a jury. The question comes down to whether the law of the venue or the law of the action (in admiralty) governs. The Ninth Circuit Court of Appeals follows the law in admiralty, which leaves the right with the plaintiff (along with California). The 5th and 7th circuits follow the law of the venue (along with Louisiana and Illinois).
The court adopted the jurisdictional reasoning. Of particular note is their interpretation of a 9th circuit opinion talking about the Jones Act being cause of action oriented even thought that circuit has said the right flows to the plaintiff.
Substantively, I have to comment that its a way to erode the protections given to Maritime Workers under the Jones Act. In the age of tort reform, where the burden is stacked against a defendant legally, providing a jury trial for the defendant does nothing but break down the stacked deck that was put in place by the legislatute.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Draft Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Maritime Law, Tort, WA Supreme Court | Leave a Comment »
