Under 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.
Archive for the ‘Justice Richard Sanders – Concur in Majority’ Category
Washington Supreme Court: Well founded suspicion of probation violation enough to garner bench warrantJanuary 22, 2010
Erickson 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.
State 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.
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.
Washington State Supreme Court: No Judicial Immunity for Obeying Judge’s Direction to Take Man to JailDecember 31, 2009
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.
Sanai, an Oregon attorney, wanted to help his mother with her divorce. He was admitted to Washington. During the course of the litigation, which was termed “extremely acrimonious” by the court, the WSBA filed eight counts of misconduct related to pleadings in the litigation.
The kicker came when Sanai requested a continuance due to health issues, along with a note from his doctor. The hearing officer refused, stating that he could not read the note. Sanai returned with a signed statement from his doctor stating that he had severe hypertension, and beginning the trial before blood pressure medication took affect would be very dangerous. Sanai also testified via phone that his bloodpressure was high, and that he couldn’t remember what the exact pressure was on which date, but gave two readings he remembered.
This is where it gets weird. The hearing examiner wanted nothing to do with the medical continuance:
frankly does [sic] not have the ring of truth, in my judgment. There is no indication in that letter as to what the blood pressure is; and as I understand it, and as Mr. Sanai has indicated, the major symptom of hypertension is high blood pressure. I find it inconceivable that Mr. Sanai would not remember the blood pressure that was taken twice from him on Friday, April 13th in order to be able to testify as to what that is here today.
The court also went on to note the examiner’s questioning of the doctor’s declaration:
He went on to note that the doctor’s letter was not on letterhead and carried a “rather strange certification” when it said, “‘I declare under penalty of perjury.’” Id. (“That’s not a certification that I’m familiar with and certainly different from the one that is normally used in the state of Washington.”).
Just to be clear here, this is the certification that I use on all of my declarations:
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
I’m having a little trouble distinguishing how the two are all that different. The hearing examiner also called into question the lack of letterhead of the doctor. Again, most of my declarations, regardless of the declarant, are submitted on plain ol’ bond paper.
As you can guess, the hearing examiner denied the continuance and proceeded without Sanai. The denial of a continuance is abuse of discretion. The court could in this case essentially review the same evidence de novo, the note, the declaration, and the telephone conversation.
Because the credibility assessment involves documents and a witness testifying by telephone, the hearing officer is not necessarily in a “better position to judge their veracity.”
While a hearing officer’s discretionary decisions are entitled to great weight, this must be weighed against the right of a lawyer to be present to defend. In this case, [Sanai] provided a doctor’s note and detailed testimony as to his medical condition. Because “[a]ttorney disciplinary hearings must meet the requirements of due process,” we hold that the hearing officer abused his discretion by refusing to grant [Sanai] a continuance based on his medical condition so that he could attend and participate in the proceedings. In re Discipline of Meade, 103 Wn.2d 374, 381, 693 P.2d 713 (1985) (citing In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968); Metzenbaum, 22 Wn.2d at 79).
Remanded for a hearing with Sanai present. Unfortunately for Sanai, his attempt to subpoena judges as to the merits of his claims is out. Also out are several improper requests for admissions, which called for legal conclusions.
The dissent goes more into the merits of the underlying hearing, effectively saying: Sanai, you had your chance. If you’re looking to see the outcome of the hearing, my guess is this dissent will be cut and paste into the adoption of the hearing examiners findings and conclusions.
Gold Star Resorts, Inc. v. Futurewise
Despite the name, this case has nothing to do with resorts, gold, or stars. Rather, this case represents another chapter in a longstanding challenge to Whatcom County’s comprehensive plan. Counties planning under the Growth Management Act (GMA) must revisit and update their comprehensive plans every seven years. When the time for update comes, the revised plan must confirm not only to the original GMA, but any and all amendments made thereto in the intervening years.
Whatcom County failed to properly conform its comprehensive plan revisions to a specific GMA amendment dealing with rural development, and so that portion of its comprehensive plan was struck down by the Court. The GMA allows for something called a “LAMIRD,” which stands for a limited area of more intense rural development. LAMIRDS are pre-existing areas of development, such as a rural crossroad, or an industrial cluster, or an existing rural neighborhood. The LAMIRD provisions accept the reality that these developments dot the landscape, but instructs counties to plan for their containment within existing “logical boundaries.” Where Whatcom County went astray was in its failure to
consider the statutory LAMIRD criteria when defining its designations for more intensely developed rural areas and . . . attempt to analyze the logical outer boundaries of the areas under RCW 36.70A.070(5)(d).
So, Whatcom County must revise it’s comprehensive plan to conform to the LAMIRD provisions in the GMA.
Moreover, the Court applied it’s recent holding in Thurston County v. Western Washington Growth Management Hearings Board, 164 Wn.2d 329, 190 P.3d 38 (2008) barring “bright-line” density rules to reverse the court of appeals and remand back to board for further consideration. In brief, a Growth Management Hearings Board is no longer allowed to judge a county’s comprehensive plans rural development component by a bright-line density computation. Here, the Board applied a bright-line of one dwelling unit per five acres to invalidate Whatcom County’s rural plan portion. The standard now is whether the densities placed in the plan were clearly erroneous under the GMA. Because no determination was made under that standard, the case must be remanded to the board.
Winterstein was living at a place, but had registered his address as another place. His parole officer came around, suspicious that he was actually living in the place he was found, searched and found…surprise…meth-making.
Winterstein argued that the warrantless search wasn’t warranted, because his address was listed as elsewhere. The State argued that reasonable suspicion that the place was Winterstein’s actual residence.
Held: 2 fairly major things.
- The probation officer can search only if he has probable cause that the place is the residence of the parolee;
- The inevitable discovery rule is 86′d in Washington.
Obviously, you will want to know the reasoning as to the second. The first is just one of those policy choices, and in this case, the court decided to follow the ninth circuit. Terry applies only after you have PC that the place is in fact the residence. As to the second:
The independent source doctrine recognizes that probable cause may exist based on legally obtained evidence; the tainted evidence, however, is suppressed. This is consistent with the mandate of White and Boland and does not suggest any balancing of interests as a precondition to the exclusion of unlawfully obtained evidence. As in Bonds, the balancing of interests under the independent source doctrine becomes relevant only after the tainted evidence is disregarded. See Coates, 107 Wn.2d at 889; Gaines, 154 Wn.2d at 720.
In contrast, the inevitable discovery doctrine is necessarily speculative and does not disregard illegally obtained evidence. The State seeks to admit evidence that it claims the police would have discovered notwithstanding the violation of the defendant’s constitutional rights. For example, the federal doctrine allows admission of illegally obtained evidence if the State can “establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). There is no requirement of good faith on the part of the police. Id. at 445.
In essence, the greater privacy afforded by the Washington Constitution (explicit versus the implicit in the United States Constitution) means that we should not ever accept illegally obtained evidence.
Oh why couldn’t the appellant have been named Magoo?!
Anyhowwwwwww, Magee said he hadn’t driven down the road in the wrong direction, but maneuvered otherwise in order to get nose to nose with a disabled vehicle. The officer was called to the scene, and, though she didn’t see it, concluded he had to have driven the wrong way to get to where he was. Buuuut, the statute is pretty clear that an officer can only cite under RCW 46.63.030 if she sees the infraction (or another officer sees it).
The parties are (1) Meridian, which received a construction loan from (2) KCU. The loan required Meridian to obtain additional independent financing by means of an irrevocable [Letter of Credit]. Meridian arranged such an LOC from (3) Alhadeff in satisfaction of this requirement; Alhadeff authorized his bank, (4) Wells Fargo Bank, N.A. (Wells Fargo), to issue that LOC to KCU for the benefit of Meridian. Thus, in total, four parties are involved in this unusual LOC transaction: Meridian, KCU, Alhadeff, and Wells Fargo.
So essentially, the contract between Meridian and Alhadell issued an LOC to KCU for Meridian’s benefit, and to draw on the LOC, KCU had to certify that Meridian wasn’t defaulting. KCU did such a certification, even though it was false, and Aldaheff sought to recover.
Confused yet? If not, you probably work for a big firm doing really boring things. I applaud you for your attention span.
COA tried to say this wasn’t article V and thus the standard contract Statute of Limitations applied:
The core of the present appeal boils down to a dispute about the meaning and scope of the phrase, “[a]n action to enforce a right or obligation arising under this Article.” Id. Alhadeff contends that his causes of action, grounded as they are in the common law, do not seek to enforce rights or obligations “arising under” Article 5. KCU, on the other hand, argues that Alhadeff’s claims do in fact seek to enforce rights or obligations “arising under” Article 5 and that they are thus barred by the one-year limitations period. The trial court sided with KCU, concluding that all of the causes of action arose under the Article 5 warranty and were barred by the statute of limitations. The Court of Appeals disagreed, characterizing his actions as arising under the common law of contract, tort, and equity, not the warranty, and therefore holding that they were timely. For reasons outlined below, we agree with the trial court with respect to most of Alhadeff’s claims and hold that they are barred by the statute of limitations; additionally, we find that his other claims are meritless. We thus reverse the Court of Appeals and remand for entry of summary judgment for KCU.
. . .
No underlying contract existed between Alhadeff, the applicant, and KCU, the beneficiary. Rather, the underlying contract in the transaction, the Letter of Credit Agreement, was between Alhadeff and a fourth party, Meridian. The letter between Alhadeff and KCU confirming the terms of the LOC is not a contract. Its language does not indicate an offer, acceptance, or any new consideration. The letter merely verified the conditions under which KCU was entitled to draw on the LOC. The trial court specifically held that there was no contract between Alhadeff and KCU recognized by the common law. With no underlying contract to breach, Alhadeff has no basis outside of the statutory warranty for his breach of contract claims. Accordingly, these claims are displaced by the warranty and barred by the one-year limitations period.