Archive for the ‘Justice Mary Fairhurst – Draft Majority’ Category
October 20, 2010
State v. Garcia-Salgado
Garcia-Salgado (GS from here on out, as that’s a lot to type) decided it was kosher to pull down an 11 year old’s pants and move up and down on her. Her parent’s disagreed on this point. A police officer sided with the parents. The court, after his arrest, ordered GS’s DNA be taken under Criminal Rule 4.7(b)(2)(vi).
Unfortunately, CrR 4.7 is subject to constitutional requirements. This means you have to have a warrant, and you have to have the additional prerequisites for an invasion to the person. Here, the State didn’t even meet the PC requirement:
Other than the deputy prosecutor’s assertions, it is unclear what information was brought to the attention of the trial court. The State urges us to consider the certification of probable cause in support of Garcia-Salgado’s arrest, but the record does not establish that the trial judge ever read the certification. Ideally, the CrR 4.7(b)(2)(vi) order itself would reference the evidence relied upon for the probable cause determination, but the order is silent, and nothing in the transcript of the record reveals what information was before the trial court when it entered the CrR 4.7(b)(2)(vi) order. Because we do not know what the trial court considered, we cannot say that probable cause supported the order. Accordingly, we cannot find that the warrant requirement has been satisfied. It is the State’s burden to establish that an exception to the warrant requirement has been met. Garvin, 166 Wn.2d at 250. The State has not established an exception in this case. Therefore, we reverse the Court of Appeals and remand.
Posted in Criminal Law, DNA testing, Justice Mary Fairhurst - Draft Majority, Search and Seizure, Unanimous, WA Supreme Court | Leave a Comment »
April 21, 2010
Salas v. Hi-Tech Erectors
In a standard civil case, it is error for the trial court to admit evidence of immigrant status when the Plaintiff is arguing future lost wages. The evidence was barely probative given the number of illegal immigrants who don’t get deported. A brick not being a wall, the evidence is probative enough to meet the ER 402 relevancy requirement. However, the evidence was extremely prejudicial:
We recognize that immigration is a politically sensitive issue. Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great. Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.
Tags:civil suits, ER 402, Immigration, prejudicial, probative, washington supreme court
Posted in Evidence, Immigration, Justice Gerry Alexander - Draft Dissent, Justice Mary Fairhurst - Draft Majority, Tort | Leave a Comment »
April 21, 2010
PRP of Clark
Clark plead to two counts of second degree robbery in 1998. The agreement stated he would serve one year of community placement, something which actually wasn’t statutorily authorized for his crimes. Though this was a bit beyond the one year limit on PRPs, he argues that the judgment and sentence is invalid on its face, allowing avoidance of the one year limit.
So is it invalid on its face? No:
The question is not, however, whether the plea documents are facially invalid, but rather whether the judgment and sentence is invalid on its face.” Hemenway, 147 Wn.2d at 533.
Here, Clark’s judgment and sentence is not invalid on its face. Clark asserts that the judgment and sentence is invalid on its face because it contains a term ofcommunity custody that is not authorized by statute. However, the judgment and sentence, as originally written, did not include a term of community placement.3
Tags:Judgment, Personal Restraing Petition, Plea Agreements, PRP, Sentence
Posted in Criminal Law, Justice Mary Fairhurst - Draft Majority, Justice Richard Sanders - Draft Dissent, WA Supreme Court | Leave a Comment »
December 31, 2009
Lallas v. Skagit County
A Skagit deputy was summoned to the court and told, “[h]e needs to go to jail,” by the judge. The deputy was escorting him to jail when the man broke free, and was injured when laid out by court security. At issue was whether judicial immunity shielded the deputy and the security officer from tort liability. Immunity is generally applicable in the administration of a judicial function. The supreme court phrased the issue as whether judges normally escort people to jail, which they do not.
However, the issue, as it seems to me, is whether judges normally direct prisoners be taken into custody, which it seems they do. And actually taking them into custody is administration of that judicial function.
I am not one known for being conservative, by any stretch of the imagination. This time I think the court got it plain wrong.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Judicial Immunity, 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 - Draft Majority, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Tort, WA Supreme Court | 4 Comments »
December 18, 2009
Ducote v. Dep’t of Soc. & Health Servs.
Ducote’s step-daughter alleged he peeked at her through the window, made her sit in his lap, touched her buttocks, walked in on her in the bathroom, and hit her little brother. She was placed in emergency care. During the 6-month investigation, the step-daughter was out of the house, and Ducote was booted from the house and barred from seeing any of his stepchildren. The allegations were returned as unfounded.
Ducote sued for Negligent Investigation. However, it is not an action that existed at common law. The statute itself doesn’t define who can sue, but case law under the Bennet test has decided the duty is owed to parents, custodians, guardians, and children. Though Zellmer did apply the same protections of parental immunity for step parents, the Court distinguished based on the fact that Zellmer involved a cause of action at common law, and this case did not.
Seems to me to be a distinction without a difference. The dissent things so as well.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Dependancy Gaurdianship Proceedings, Family Law, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Dissent, Justice Gerry Alexander - Did Not Participate, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Draft Majority, Justice Richard Sanders - Concur in Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Dissent, Pro-Tem Justice - Concur in Majority, Tort, WA Supreme Court | Leave a Comment »
October 1, 2009
State v. O’Hara
O’Hara was convicted of Second Degree Assault after beaning a guy a few times with a mag light. He claimed self defense and the court issued a proper instruction. The self-defense instruction contains the following language:
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured and/or in preventing or attempting to prevent an offense against the person or a malicious trespass or other malicious interference with real or personal property lawfully in that person’s possession, and when the force is not more than is necessary.
The trial court then gave a partial definition of malice, but did not include the language from Title 9A that “[m]alice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty.”
As you might expect, O’Hara didn’t object. The court of appeals reversed anyhow, finding a manifest constitutional error which could be raised without preservation. Unfortunately, the failure to define individual terms is usually not manifest error, and the supplemental tidbit on malice didn’t really change the definition of self defense (which would be manifest error). Anyhow, to make a long story short, not manifest constitutional error, and the verdict stands.
I did have a good joke here but failed to find what I needed to pull it off. I’d rather provide no humor than bad humor. I wish Dane Cook felt the same way.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Constitutional Law, Criminal 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 - Draft Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Pro-Tem Justice - Concur in Majority, WA Supreme Court | Leave a Comment »
October 1, 2009
In re Detention of Moore
Moore is a bad bad man who does bad bad things. He claimed that his SVP hearing was fundamentally flawed because he was incompetent to stand trial. Moore was no stranger to competency hearings. He was found incompetent twice out of 10 evaluations over the years. When he was deemed incompetent, it involved his not taking his meds, drinking out of urinals, having doo doo butter in his hair, and completing shutting off as far as communication was concerned. During his SVP proceeding, he was cooperating with his counsel, and wasn’t exhibiting his usual signs of being incompetent. He argues that the court shouldn’t have allowed him to stipulate to certain facts because he was nutter butter, and that it was ineffective assistance for his attorney to allow it.
The trial court found him competent, I get that. There is one part that troubles me. Yes, SVP proceedings are civil, but as far as due process is concerned, the court equated it with just basic civil due process, rather than looking at the liberty interest on par with criminal due process requirements. The liberty interest is the same, non? As such, a heightened standard should be used, such that any waiver of right should be evaluating for knowing and voluntary (which would have probably been met here).
The dissent here took issue with the majority’s view that the state need not prove that someone will reoffend in the foreseeable future, looking towards case law stating the danger must be current. I tend to agree with that notion. Again, one that wouldn’t be at issue here, but should still be proven.
While I am generally an ardent supporter of our state’s SVP laws, I still think we have to be ever vigilant not to trod on the constitution when utilizing them.
Posted in Chief Justice Barbara Madsen - Concur in Majority, Civil Rights, Ineffective Assistance of Counsel, 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 - Draft Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, Sexually Violent Predator Law, WA Supreme Court | Leave a Comment »
September 24, 2009
State v. Kilgore
Kilgore=chimo.
According to wikipedia:
Chimo may refer to:
- Chimo, a word of greeting, farewell, and toast before drinking[1] once widely spoken in theInuktitut language in northern Canada[2]
- the 223 Royal Canadian Sea Cadets Corps CHIMO, founded in 1970 at Longueuil, Quebec (re-named 223 RCSCC LONGUEUIL in the mid 1980s)
- Chimo, an active softball league founded in Brossard, Québec in 1979[3]
- Chimo (orca), the only white killer whale displayed in captivity, at Sealand of the Pacific from 1970-72
- Chimo!, 1960s Canadian rock band
- Chimo Bayo, 1990s Spanish dance act
- Chimo, a very strong tobacco paste taken orally, principally in Venezuela and adjacent countries
If you think it refers to any of those, you are sadly mistake. According tothe online slang dictionary:
One guess which use I am putting forth here.
Anyhow, two counts were reversed on an earlier appeal. The state chose not to retry the two counts, leaving the trial court to simply strike those sentences. The problem, Blakely came out in the interim. Under Blakely, aggravating factors need to be found by a jury. They weren’t here. So the question becomes, does Kilgore get a redo on sentencing on remand. The answer, no. You only get to redo your sentencing under Blakely if the case wasn’t final. If you’re coming back down on remand, the 5 counts that weren’t reversed are only “not final” if the judge decides to do something with them. Here, the judge didn’t touch those counts, but merely struck the two that were reversed from his sentence. Since no discretion was exercised by the judge on remand, the 5 counts were final before the Blakely decision.
Posted in Chief Justice Barbara Madsen - Concur in Dissent, 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 - Draft Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, WA Supreme Court | 2 Comments »
August 24, 2009
State v. Rivera-Santos
Driving from WA to OR while drunk can mean two drunk driving charges, one from each state. Rivera-Santos argued double jeopardy. Yeah, you may have had one act of driving. But driving on Oregon roads is different from driving on Washington roads. Therefore, the elements are not the same.
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 - Draft 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 »
