Archive for the ‘Justice Richard Sanders – Draft Majority’ Category
September 25, 2010
Rousso v. State
Let me tell you how this case will go. Washington bans gambling. We uphold gambling ban. Appeal to the Supreme Court of the U.S. which holds the ban unconstitutional because of their super-free market damn the consequences stance. You just wait. I would show you my crystal ball, but I’ve been told that it’s actually made of plastic. My reconstructive surgeon also informed me that showing it to people could get me arrested.
Yes…this may be a first for The Prof. Genital humor. (Go back and reread it if you don’t get the joke).
Anyhow, the legislature banned online gambling. They can’t really second guess the legislature and can only decide if the enactment was unconstitutional under the Dormant Commerce Clause of the U.S. Constitution.
Suffice it to say the ban reads in place. If you want a great breakdown of application of the Dormant Commerce Clause because you are still a law student, or because you want to torture yourself. Go right ahead.
Tags:Dormant Commerce Clause, legislature, online gambling, poker
Posted in Constitutional Law, Dormant Commerce Clause, Gambling, Justice Richard Sanders - Draft Majority, Unanimous | Leave a Comment »
September 25, 2010
State v. Doughty
Doughty stopped by a drug house for a couple minutes and drove away. An officer stopped him, and ran a records check and found he had a suspended. They searched incident to arrest and found meth.
Those familiar with the recent slew of search and seizure cases that have been coming down know that they can search the vehicle for something instrumental to the crime and in the immediate vicinity, but no longer have a full blanket ability to search the entire vehicle. Thus, the meth they found incident to arrest in the vehicle search is out:
Oooops. Helps if I read the whole opinion. The terry stop itself is out!
In contrast, here Bishop relied only on his own incomplete observations. There was no informant’s tip (which was the element we found most persuasive in Kennedy, id. at 6-8) and no furtive movement. Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m. Bishop had no idea what, if anything, Doughty did at the house. The totality of these circumstances does not warrant intrusion into Doughty’s private affairs.
. . .
A more apt analogy rests with State v. Gleason, 70 Wn. App. 13, 851 P.2d 731 (1993). Based on the totality of the circumstances, the Gleason court held it improper to seize a person merely for exiting an apartment complex that had a history of drug sales. Id. at 18. The court reasoned that “this was the first time the defendant had been seen in the area, the officers did not know what occurred inside the apartment and neither officer saw him involved in the purchase of drugs. Further, there was no evidence Mr. Gleason was acting suspiciously, he was not carrying any unusual objects.” Id. (citation omitted). That statement describes the events in Doughty’s chronology almost exactly.
Officer Bishop lacked sufficient specific and articulable facts to seize Doughty. No legal basis existed for the Terry stop. If a Terry stop is unlawful, the fruits obtained as a result must be suppressed. See Garvin, 166 Wn.2d at 254. ”‘The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.’” Id. (quoting State v. Duncan, 146 Wn.2d 166, 176, 43 P.3d 513 (2002)); see also Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Accordingly, suppression of the evidence obtained after the unlawful seizure in this case is proper.
Now, here’s what I’m seeing. The court really wanted to take a look at this Terry stop issue. They could have gotten rid of the conviction on the grounds I talked about earlier. They didn’t? Is this a commentary on our State
Tags:search and seizure, search incident to arrest, terry stop, vehicle search
Posted in Criminal Law, Justice Mary Fairhurst - Draft Dissent, Justice Richard Sanders - Draft Majority, Justice Tom Chambers - Draft Concurrence, Search and Seizure, WA Supreme Court | Leave a Comment »
August 2, 2010
Little Mountain Estates Tenants Assoc. v. Little Mountain Estates MHC LLC
Landlord and tenant negotiated for a 25 year lease, which would convert to a one-year lease if the tenant assigned. The MHLTA, a.k.a. the landlord tenant act specifically written for Auburn (mobile homes), allows the parties to negotiate a rental agreement. Since the provision was agreed to, there is no violation of the MHLTA:
Even if this court were to look to statements of legislative intent as the Court of Appeals erroneously did, see Little Mountain, 146 Wn. App. at 560, those statements do not support voiding the assignment provision here. RCW 59.22.010(2) sets forth the multiple legislative purposes of the MHLTA. The first is to maintain low-cost housing to benefit the elderly. Here, an initial 25-year term with fixed increases in rent provides secured housing and financial stability to the elderly who live there, and the assignment provision makes that 25-year term economically feasible for the manufactured home park. The legislature also sought “to obtain a high level of private financing for mobile home park conversions” and “to help establish acceptance for resident-owned mobile home parks in the private market.” Id. Permitting a park owner to offer contractual terms that provide attractive yet profitable features to prospective residents encourages additional private financing and market growth.
Respondents ask this court to deem unenforceable any provision that alters the contract upon assignment. However, this contract does not alter an assignment; it provides in the original contract what would happen in that eventuality. Nothing in the MHLTA imposes a wholesome prohibition on such assignment provisions. The MHLTA does not prevent landlords from offering special terms to the tenants who first move into a new mobile or manufactured home park. Such a practice is not uncommon when a landlord is attempting to populate a new rental community.
There you have it, the legislature has officially connected high levels of private finance with mobile home park conversions. The Apocalypse is upon us.
Posted in Justice Richard Sanders - Draft Majority, Landlort Tenant, Property, WA Supreme Court | Leave a Comment »
July 31, 2010
McCurry v. Chevy Chase Bank, FSB
Okay, so maybe I really just wanted to see Chevy Chase’s smiling face. Is that so wrong? I mean, really, if you haven’t been paying attention to NBC’s lineup, you really need to start. Mr. Chase is playing a community college student in the aptly titled Community. Of course, the chances of this opinion having anything to do with the hilarious star of Caddy Shack are pretty slim. In fact, they are nonexistent. This instead, has to do with the bank.
You see, Chevy Chase was charging tax and notary fees when reconveying title. Those fees were allowed under the deed of trust. Chevy Chase claimed instead that these fees Were authorized under federal regulation, and were preempted. The Supreme Court instead held that the fees were only incidental and us were not preempted by federal law:
State contract law does not purport to impose requirements on loan-related fees; state contract law instead requires parties to adhere to the terms of their contracts. Forcing Chevy Chase to adhere to the terms of its contract only incidentally affects the loan-related fees, as permitted under 12 C.F.R. § 560.2(c). See 61 Fed. Reg. 50951-01, 50966 (“OTS wishes to make clear that the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.”).
Tags:Chevy Chase, Loan Fees
Posted in Contracts, Justice Richard Sanders - Draft Majority, Preemption, WA Supreme Court | Leave a Comment »
May 6, 2010
State v. Vance
Vance did bad things to children and was sentenced by a jury to a lot of time for each count charged. He argued the finding of facts necessary to sentence him to consecutive, rather than concurrent sentences ran afoul of Blakely. However, the United States Supreme Court essentially ruled directly on this issue and held that the consecutive/concurrent facts may be found by the court and such findings do not run afoul of the mandate of Blakely that exceptional sentence facts be found by the jury.
Do I agree with this? Not really. Seems a weird distinction for the U.S. Supreme Court to make. Do I think Washington Courts had any other choice given the United States Supreme Court precedent? Not really. We would have to make changes to our constitution or our statutory scheme for that to happen. Though the Court didn’t engage in this, a Gunwall analysis would probably merit the same result.
Tags:Blakely, concurrent, consecutive, sentencing enhancement, sex offender
Posted in Blakely, Criminal Law, Justice Richard Sanders - Draft Majority, Sentencing, Sixth Amendment, Unanimous, WA Supreme Court | Leave a Comment »
April 21, 2010
State v. Osman
The juvenile rules provide that if part of a transcript is missing, you get a new trial as long as its “significant or material”. Normally, that determination is left up to the court. However, on appeal, if the findings and fact and conclusions of law are missing (they are only recorded on audio at the hearing), then any chance for appeal is meaningless (you can’t challenge what you don’t know). THus, Osman gets a new trial.
Tags:juvenile court, records on review, washington supreme court
Posted in Criminal Law, Justice Richard Sanders - Draft Majority, Juvenile Justice, Unanimous, WA Supreme Court | Leave a Comment »
January 22, 2010
Dependency of C.S.
C.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 »
January 22, 2010
Clayton v. Wilson
Mr. 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 »
December 31, 2009
State v. Buelna Valdez
In October of this year, The Prof posted a holding by the court that there had to be a nexus between the driver and the vehicle to perform a search incident to arrest. In State v. Patton, the court held:
Though we agree Patton was under arrest while he stood next to his car, the search incident to arrest exception requires a nexus between the arrestee, the vehicle, and the crime of arrest, implicating safety concerns or concern for the destruction of evidence of the crime of arrest. Because no such nexus existed here, we reverse the Court of Appeals. We hold that an automobile search incident to arrest is not justified unless the arrestee is within reaching distance of the passenger compartment at the time of the search, and the search is necessary for officer safety or to secure evidence of the crime of arrest that could be concealed or destroyed.
Fast forward to now, and we have Buelna Valdez arrested and put in the back of a patrol car on an outstanding warrant secondary to a taillight. The officer noticed floorboards loose and called a drug dog for the search. One guess what they found. However, because of the failure to wait for a warrant, the evidence is out.
Its a shame too, the car wasn’t going anywhere.
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 - Draft Concurrence, Justice Jim Johnson - Draft Concurrence, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Concur in Majority, WA Supreme Court | Leave a Comment »
December 18, 2009
State v. Harrington
Harrington was walking down the street when an officer pulled up to him based only on the fact that he was in a certain neighborhood at a certain time. Officers are allowed to engage in social contract contact without suspicion of a crime. In this case, the officer did just that:
Reiber asked Harrington where he was coming from. Harrington responded he was coming from his sister’s house. Asked where his sister lived, Harrington replied he did not know. Reiber considered that lack of knowledge “a little suspicious.” Id. at 14. Reiber testified Harrington was acting “quite nervous, pretty fidgety” throughout the encounter.
However, the arrival of a second officer who didn’t talk, the asking to remove hands from pockets, and the request to do a pat down amounted to converting this to a seizure. The court noted a similar fact pattern in Soto-Garcia:
“The atmosphere created by Tate’s progressive intrusion into Soto-Garcia’s privacy was of such a nature that a reasonable person would not believe that he or she was free to end the encounter.” The court then inquired whether Soto-Garcia’s subsequent consent to search was valid in light of the prior illegal seizure, answering in the negative. “Soto-Garcia’s consent to the search was obtained through exploitation of his prior illegal seizure.” Accordingly the court found suppression of the cocaine proper.
Similar to Soto-Garcia, Harrington endured a progressive intrusion at the hands of Reiber. Tate’s progressive intrusion included an inquiry about Soto-Garcia’s identification, warrant check, direct question about drug possession, and request to search — all of which, combined, formed a seizure. The independent elements of Harrington’s seizure are different, but the effect is the same. Before Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs. Instead Reiber initiated contact with Harrington on a dark street. He asked questions about Harrington’s activities and travel that evening and found Harrington’s answers suspicious. A second officer arrived at the scene and stood nearby. Reiber asked Harrington to remove his hands from his pockets to control Harrington’s actions. Then Reiber asked to frisk, without any “‘specific and articulable facts’” that would create an objectively reasonable belief that Harrington was “‘armed and presently dangerous.’” Collins, 121 Wn.2d at 173 (quoting Terry, 392 U.S. at 21, 24). The facts in both Soto-Garcia and this case create an atmosphere of police intrusion, culminating in a request to frisk.
Hard standard to apply? You betcha!
Posted in Criminal Law, Justice Richard Sanders - Draft Majority, Unanimous, WA Supreme Court | Leave a Comment »
