State v. Campbell

All you need to know is here:

Kenneth Campbell was charged with two counts of assault in the second degree and one count of unlawful possession of a firearm in the first degree. Regarding the assault charges, the State sought firearm sentence enhancements on both counts. When instructing the jury as to its deliberative responsibilities with respect to the special verdicts on the sentence enhancement allegations, the trial court correctly instructed the jurors as to the process by which each juror could arrive at an individual conclusion that the correct answer to the inquiry on a special verdict form was “yes,” the process by which each juror could arrive at an individual conclusion that the correct answer to the inquiry was “no,” and the process by which the jury could properly render a collective “yes” answer. To render a proper collective answer of “yes,” jury unanimity was required. However, the trial court did not instruct the jurors as to how the jury could properly return a collective answer of “no” — that is, by either unanimously agreeing that the correct answer was “no” or by failing to reach unanimous agreement on the question. In this respect, the trial court erred.

This error was exacerbated when the trial court subsequently declined to answer the jury’s direct question as to whether unanimity was required in order for the jury to collectively conclude that the State had failed to meet its burden of 
proof on the allegations referenced in the special verdicts. In determining not to answer the jury’s question, other than to refer the jury to the instructions previously given, the trial court articulated a misapprehension of the legal effect 
of an absence of unanimity on a special verdict, likening it to a mistrial as opposed to an acquittal. Accordingly, the trial court abused its discretion in determining not to further instruct the jury.

Under the circumstances of this case, the instructional error cannot be considered harmless. Thus, we order the vacation of the special verdicts and remand the matter to the trial court for further proceedings consistent with this 
opinion.

Green v. DSHS

Green challenged DSHS calculations of income deductions to her food benefits under the WACs. The superior court granted class status. The court of appeals reversed, stating the WAC was ambiguous and the ALJ was entitled to deference on interpretation of agency regulation (86′ing the class and upholding the ALJ decision):

Former WAC 388-450-0175 (2006), the primary regulation at issue in this appeal, stated, ”The department gives special deductions to people who receive income from work while receiving General Assistance-Unemployable (GA-U).” For these individuals, the regulation directed the Department to deduct the following from the GA-U client’s gross income: (1) $85.00, (2) one-half of the individual’s remaining monthly gross earned income, and (3) 20 percent of the individual’s gross earned income for work expenses. Former WAC 388-450-0175 (2006). The regulation required the Department to deduct these amounts before determining the individual’s eligibility and monthly benefits. Former WAC 388-450-0175 (2006).

Former WAC 388-450-0175 (2006) was ambiguous because its scope was unclear. It could have meant, as the Department contends, that when a GA-U client received income from work, the Department had to apply the deductions in former WAC 388-450-0175 (2006) to a client’s gross income when determining only the client’s GA-U eligibility and monthly benefits. See Appellant’s Br. at 8-9 (“At all times prior and subsequent to the amendment, the Department has consistently interpreted WAC 388-450-0175 to apply exclusively to the General Assistance Program.”) Alternatively, the regulation could have applied more broadly, as Green contends. Thus, it could have required the Department to apply its deductions to a GA-U client’s gross income when determining the client’s eligibility and monthly benefits for GA-U and other public assistance programs that the Department administered, like Basic Food.

I can v. Wwgmhb

Land use opinion. Read it if you want, nerds!

Mitchell v. Dep’t of Corrections

Mitchell requested records under the PRA, but requested they be disclosed electronically. The Department denied the request on the basis that it needed to redact, but couldn’t do so if done electronically (seriously though, get with the times, electronic redaction is SO much easier). However, the department didn’t explain its withholding and claimed exemptions, a violation of the PRA. The court did say that nothing in the PRA mandates electronic disclosure. Again, this should be written in for when departments already have the document scanned in, it would save mucho dinero!

Seashore Villa Ass’n v. Hagglund Family Ltd. P’ship

This is an opinion about trailer parks and carports. Basically these people are losing their carports. If you’re living in a trailer and have a car nice enough for a carport, shift your priorities a little to comport with Maslow’s hierarchy. Shelter should be before fancy transportation.

American Traffic Solutions v. City of Bellingham

The RCWs gave Bellingham authority to put up traffic cameras. The reason I think the initiative process should be modified or repealed Eyeman sought to hinder that authority. While I generally am not a fan of the cameras, the law on local initiatives is pretty clear when authority comes from state statute:

“An initiative is beyond the scope of the initiative power if the initiative involves powers granted by the legislature to the governing body of a city, rather than the city itself.” Malkasian, 157 Wn.2d at 261. Where the legislature enacts a general law that grants such authority to the legislative body of a city, the exercise of that authority by the legislative body is not “subject to repeal, amendment or modification by the people through the initiative or referendum procedure.” State ex rel. Guthrie v. City of Richland, 80 Wn.2d 382, 384, 494 P.2d 990 (1972); see also Priorities First v. City of Spokane, 93 Wn. App. 406, 410, 968 P.2d 431 (1998) (people cannot deprive the city legislative authority of power to do what a state statute specifically permits it to do). In determining whether the legislature granted authority to the local legislative body, we look primarily to the language of the relevant statute. See Malkasian, 157 Wn.2d at 262-63.

State v. A.M.

A.M. was 11 when he allegedly “placed his wiener in RD’s butt.” AM was 11, RD was about 7. RD told the officers it touched the outside but didn’t go inside.

The term “sexual intercourse,” for purposes of RCW chapter 9A.44 (sex offenses), “has its ordinary meaning and occurs upon any penetration, however slight.”  RCW 9A.44.010(1)(a).

That’s the crucial definition here, the difference between Rape of a Child in the First Degree and a lesser charge. The court refused to remand for attempt because the juvenile court didn’t make findings pre-appeal. Same goes with the lesser charge of child molestations.

Two things here, I think the court is narrowly interpreting sexual contact, which meets the definition of intercourse. RD told officers it touched the anus, but didn’t penetrate, which meets the definitions in the RCW.

Second, really? This kid is 11. Obviously he’s had something happen where he because hypersexualized. How about some counseling or something to help him out rather than labeling him as a sex offender. This one goes towards prosecutorial discretion in my book.

Cummings v. Budget Tank Removal & Environmental Svcs., LLC

Getting an art award overturned is tough, there has to be an error of law on the face of the award. Basically Budget tank was giving estimates of 20-40 grand and invoicing for 360-640 grand. A little bit of a difference. The arbitrations were consolidated, and the people who were screwed allegedly given vastly differing estimates by Budget got really good awards.

Budget moved to vacate based on the consolidation, but appealed the final order, including the alleged error. The court agreed that this fell under a final judgment appeal.

(1)  An appeal may be taken from:

(a)  An order denying a motion to compel arbitration;

(b) An order granting a motion to stay arbitration;

(c) An order confirming or denying confirmation of an award;

(d) An order modifying or correcting an award;

(e)  An order vacating an award without directing a rehearing; or

(f)  A final judgment entered under this chapter.

RCW 7.04A.280. However, a decision on consolidation is reviewed for an abuse of discretion. The parties were able to explain how their cases met the consolidation criteria in RCW 7.04.100(1), and the court was satisfied that the arbitrator considered those and thus consolidation was proper.

As to errors on the face of the award, the court gave a little bench slap, then gave a BUNCH of reasoning as to why. I won’t put it here, you can go look it up:

Budget contends that the trial court improperly limited its review to the last two pages of the award and failed to consider whether the first 40 pages demonstrated recognizable error. It appears, however, that the court simply concluded that the issues raised by Budget were not reviewable. Having considered all 42 pages, we reach the same conclusion.

Side note: Don’t think I’ll be doing business with Budget (you know, if I ever needed tanks removed). I mean, off by a couple grand I can dig. Off by 2900%? That’s a little bit of a problem.

Housing Authority of Seattle v. Bin

So Bin had some issues with housing, something about not providing enough information. She went to a hearing that was rescheduled to a date where her attorney couldn’t appear. She speaks limited English. The hearing officer, when asked to reschedule, went and talked to the scheduling coordinator outside the presence of counsel and Bin (there by her lonesome). She had asked for it to be continued to a date where her attorney could be there. The hearing officer said he didn’t have the authority.

Four major issues with this one:

They didn’t provide her with a translator or translate important documents. Since they were forcing her to proceed pro se, they needed to.

Second, the hearing examiner always has authority to reschedule. He’s not bound by the scheduling officer telling him he shouldn’t reschedule. Like He-Man, he has the power.

Third, error for the H.E. to go and talk with the scheduling officer to make his decision. No opportunity to respond=no due process.

Finally, there was some confusion about when jurisdiction vests with the Superior Court in an unlawful detainer with this kind of administrative remedy. The Court held that the Superior Court always has subject matter jurisdiction.

State v. Eriksen

Flip-flopping court now says tribal cops can’t follow off-res for on-res violations.

Cudney v. Alsco

Now if you’re anything like me, you generally want people, especially people in cars, to not be drunk at work. If they are, you generally want someone to be aware of it. In a 5-4 opinion (thank you Tom, Deb, Richard, and Chuck for the dissent), the court held that the current schema of WISHA and the criminal DUI statutes are good enough, and that firing someone for reporting drinking and driving at work is not contrary to public policy.

In April 2004, ALSCO hired Cudney as the service manager of its Spokane branch. During his tenure at ALSCO, Cudney made numerous complaints to his supervisor about the alcohol use of John Bartich, the Spokane branch’s general manager.  On June 10, 2008, Cudney observed that Bartich appeared to be intoxicated at work. He noted that Bartich was weaving back and forth, had slurred speech and glazed eyes, and smelled of alcohol. Cudney then observed Bartich drive away in a company vehicle. Cudney reported his observations to the assistant general manager and to the human resources manager.  On August 5, 2008, Cudney was terminated from his job.

This guy sounds like the guy on MadMen who wet himself. Not exactly Don Draper material (compare and contrast the classiness:

Anyhow, the Court seems to think that this is okay, because, you know, WISHA and the criminal laws will take him down eventually, hopefully not after he’s killed someone:

This court has long used the adequacy standard, finding, under the jeopardy element of our four-part Gardner analysis, that a tort of wrongful discharge in violation of public policy can proceed only when other remedies are inadequate. Accordingly, we answer the federal court’s certified questions by holding that Washington’s public policies of (1) promoting workplace safety and protecting workers who report safety violations and (2) protecting the public from drunk drivers are adequately promoted by WISHA and Washington’s DUI laws, respectively.

So let me get this straight, a 30-day administrative exhaustion remedy is okay because DUI laws and WISHA offer enough protection to the public from people drunk at work driving cars around?! I’m sorry, administrative exhaustion just needs to go away. Especially when it comes to whistleblower litigation. All this does is allow terminations in violation of public policy at a rate that exceeds what will likely be brought administratively. It means its still worth it to fire a whistleblower 95% of the time, because Joe Schmoe hasn’t killed anyone yet, and you really like the guy even though he may hit the sauce a bit at work.

Blargh!

City of Seattle v. McKenna

Goldmark v. McKenna

In this pair of opinions, the State lays out the duties of the Attorney General. He has discretion to pursue things, yes. But he does not have the discretion to let state agencies hang in the wind. Thus, he has to represent the Department of Natural Resources in pursing the head of that agencies agenda, and cannot simply say he doesn’t want to. However, he can also pursue taking down Obamacare.

Here’s where it gets iffy in my opinion. The governor expressly supports Obamacare. It seems to me then that he is in dereliction of representation of the Office of the Governor. Does this mean that the Gregoire can use the state AG’s office to draft an amicus against itself? Doesn’t this create a conflict within the AG’s office? Shouldn’t discretionary authority be limited by the head of the agency to which you are beholden?

Well, our attorney general really has no inherent powers other than advisory to state agencies. Other powers “may be prescribed by law” under our constitution. A statute (RCW 43.10.030) allows McKenna to engage in litigation in which the State has interest, and interpretation of law gives him discretion on that interest. So basically, its now up to the legislature.

One route may be for the governor to declare the state has no interest in this litigation via formal proclamation, then institute litigation against McKenna herself.

I dunno, McKenna is pushing forward his partisan agenda here in a gubernatorial bid. No sir, I don’t like it!