Posts Tagged ‘washington supreme court’

WA Supreme Court – Retroactive Application of Ruem Rule on Ferrier Warning – Will it Hold Up?

October 11, 2014

State v. Westvang

Westvang’s boy was thought to be at her house. Officer’s came, and they asked her for consent to search. They did not give her the full Ferrier warnings, but they did let her know she could refuse consent. She allowed them in. Unfortunately for Westvang, she neglected to clean up the scale, white crystalline substance, and cash on the counter.

Originally, on May 21, 2013, the Court held that Ferrier warnings were required, because of a lack of corroborating evidence that her boy was at her place, and there was no prior experience to prove the informant that led them there was reliable. They reversed her conviction.

No, some six months and six days later, the Court issued its decision in Ruem. As a threshold matter, Ruem did not hold a majority, but was rather a 4 justice opinion, with two justices writing concurrences. Jim Johnson agreed that Ferrier warnings weren’t required every time, but also noted that the officers would have smelled marijuana when they were there legally. Justice Charles Johnson would have protected the homestead privacy interest:

However, when the same homestead privacy interest as in Ferrier is violated, and when the same effect of circumventing constitutional warrant requirements is achieved, it makes little difference that the officers did not mean to circumvent article I, section 7 requirements. Inherently coercive police procedures that result in violations of core privacy interests are unconstitutional, under whatever name. Ferrier should be applied here, particularly because the lead opinion’s result does not actually rely on its Ferrier analysis. While I agree with the lead opinion’s result, I cannot agree with its stealth undermining of the homeowner’s right to deny unwarranted entry by police.

Also in Ruem, the Court held there was no ability to rely on a warrant, and instead relied upon consent only. The Court then went on with a laundry list of cases that Ferrier did not apply, including serving warrants, verifying the identity of guests, and the express limitation on needing them to search for evidence of contraband. They held Ferrier warnings were not required any time the police request consent to search a house.

I am going to pause right here. The whole reason Ferrier was adopted was the highly coercive nature of the knock and talk. Its the same reason you are allowed to refuse consent to search your vehicle until probably cause is established for a search. Here you have police entering personal property on essentially coerced consent. Now, what does that do for Westvang?

While Westvang was given the information to refuse, it was not a full Ferrier warning. But the State asked for reconsideration of the Court’s earlier decision, based on Ruem.

So here is the problem. You are retroactively changing your decision in an earlier case based on the Court’s decision in a later case. However, there was no clear intent to retroactively apply Ruem, and I think the Court of Appeals ran afoul here. This was not a case on direct review, but rather reconsideration of a final review six months after the fact. The decision was final. “A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.” In re Pers. Restraint of Markel, 154 Wn.2d 262, 111 P.3d 249 (2005).

My gut feeling is the Washington Supreme Court would take issue with the retroactive application as a “reconsideration” of a decision over six months old. Given the Court’s makeup, I’m not sure that the limitations on Ferrier would continue to hold, but stare decisis is a powerful doctrine. 

Any of my crime law peeps or former clerks (obviously sitting clerk’s can’t comment, as this one may go up, may be remanded, or may affect current cases) care to comment?

WA Supreme Court – Long Arm Applies to foreign CEO re Employment Relationship

October 2, 2014

Failla v. Fixtureone Corp.

The one thing that takes some getting used to is the fact that all of these opinions now come out in PDF only. At least they are OCRd to I can still cut and past where necessary. Anyhow, Failla sought a job with fixture one, it was a sales gig that she could work out of her home. Fixtureone, on the other hand, it based out of Pennsylvania. They told her she might be a fit because Fixtureone didn’t really have people out in Washington. Short story, she was hired, and later promoted to VP of sales. They asked her to sign something saying everything would be done under Pennsylvania law, but that never happened, and it looks like the document got stuck in revisions. Fixtureone then closed shop, still owing Failla some back-due commission from her sales rep days, and told her they didn’t owe her those.

She sued for withholding of wage under Washington law. She served her former boss (who was the founder), but not the company itself.

So here’s where it gets sticky. Boss man says hey, you didn’t serve the company, and I personally have no contacts with Washington. The trial court said that argument was bunk, but the court of appeals said the argument was actually a good one.

Anyhow, the Washington Supreme Court took the view that Schutz’s actions as CEO of Fixtureone were sufficient to allow jurisdiction over Schutz personally:

We agree that a corporation’s actions cannot be simply imputed to a corporate officer or employee for purposes of determining whether there are minimum contacts necessary to establish jurisdiction. But it is just as true that an officer or employee is not automatically shielded from personal jurisdiction just because his contacts occurred in the context of his employment. Calder v. Jones, 465 U.S. 783, 790 104 S. Ct 1482, 79 L. Ed. 2d 804 (1984). Instead, “[e]ach defendant’s contacts with the forum State must be assessed individually.” Id.; see also David v. Metro Prods., Inc.. 885 F.2d 515, 522 (9th Cir. 1989) (affirming states’ authority to assert personal jurisdiction over corporate officers based on contacts performed in that capacity). We determine personal jurisdiction on a case-by-case basis.

Shultz is the founder and CEO of FixtureOne. He was the individual who responded to Failla’s job inquiry, interviewed her, and hired her because of the potential benefits to FixtureOne of having a sales representative in Washington. During the two-year course of her employment, Schutz set her salary, issued her payroll checks, promoted her, gave her a raise, and calculated her commissions. He appeared to be the primary contact for Failla, and in fact, there is no evidence in the record that Failla had contact with anyone other than Schutz.

Like I said, this is where it gets a little sticky. On the one hand, yes, he personally did have the contacts with Washington. On the other hand, those contacts were on behalf of FixtureOne. So was it Schutz or FixtureOne who had the contacts with Washington? Does this now impute personal liability on a CEO for the actions of an employee? Its a muddling of the waters. To get a better understanding, we need to look to Calder v. Jones. In Calder the Supreme Court said the plaintiff could assert personal jurisdiction for liable over the editor due to the magazine’s contacts with the state. That, actually, seems a bit wider than what is going on here. Think about Calder in today’s age. A blogger who sends an article to a national blog could get pulled in for liable knowing that the blog he submitted to had a wide circulation. Not sure if that would hold up today.

Regardless, I do not disagree with the result, I simply think the court’s reasoning in getting there was a little bare bones at the federal level. The real issue here was the CEO being pulled in for the actions of the company.

What it comes down to is this: a Washington worker should be protected by Washington laws.

WA Legal Roundup – WA State Supreme Court: Per curium defining substantial bodily harm; withdrawal of plea ok given misunderstanding of offender score

October 6, 2011

Two new opinions out of the court. One was a per curiam decision. What does that mean? The law in the thing is so basic, that the court doesn’t really feel the need to have a “majority” author, because the court is speaking with one united voice. Here, in State v. McKague, the court used the opportunity to correct the court of appeals definition of substantially bodily harm:

The Court of Appeals affirmed the convictions in a split decision. Judge Armstrong dissented on the issue of the sufficiency of the evidence of “substantial bodily harm.” He specifically disagreed with the lead opinion’s citation to a dictionarydefinition of the term “substantial” as including “something having substance or actual existence.” State v. McKague, 159 Wn. App. 489, 520-21, 246 P.3d 558 (2011) (Armstrong, J., dissenting in part and concurring in part). Judge Armstrong opined that under this definition, any cognizable injury would necessarily be “substantial.” He would have held that the term “substantial” requires the harm to be considerable and that the State’s evidence was insufficient to meet that standard.

We agree with Judge Armstrong that the majority applied an erroneous definition of “substantial,” but we nonetheless affirm McKague’s conviction because the evidence was sufficient to show that Chang’s injuries were “substantial” under a proper definition.

The court takes no side on whether it was appropriate to define substantial in a jury instruction, only that the definition by the court of appeals was wrong. So what is the proper definition?

We hold instead that the term “substantial,” as used in RCW 9A.36.021(1)(a), signifies a degree of harm that is considerable and necessarily requires a showing greater than an injury merely having some existence. While we do not limit the meaning of “substantial” to any particular dictionary definition, we approve of the definition cited by the dissent below: “considerable in amount, value, or worth.” Webster’s, supra, at 2280.

The next case on the block is State v. Robinson. Robinson was given a plea deal after being explained the implications. He thought his juvenile offenses had washed out. Not true. So basically he hadn’t made a knowing and voluntary waiver, and the trial court allowed him to withdraw the plea. The Supremes agreed, holding that it was not an abuse of discretion to do so.


WA Supreme Court: Res Ipsa Still the Law In Washington

September 16, 2010

Curtis v. Lein

Essentially there was a dock, a foot went through. Ordinarily, docks and what not don’t allow you to put your foot through them when walking on them. Usually this only happens when you haven’t been keeping up with the dock. The Court of Appeals said that Res Ipsa would provide evidence of negligence, but only if there was also evidence that the owners knew or should have known of the condition.

Well, as it turns out, Res Ipsa Loquitur means “The Thing Speaks for Itself”. Seems kind of at odds to require additional evidence when applying the doctrine. The Washington Supreme Court agreed:

We reject this analysis.   A plaintiff may rely upon res ipsa loquitur’s inference of negligence if (1) the accident or occurrence that caused the plaintiff’s injury  would not ordinarily  happen in the absence of  negligence, (2) the instrumentality or agency that caused the plaintiff’s injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence.  Pacheco, 149 Wn.2d at 436. The first element is satisfied if one of three conditions is present: “‘(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries.'” Id. at 438-39 (quoting Zukowsky, 79 Wn.2d at 595 (quoting Horner v. N. Pac. Beneficial Ass’n Hosps., Inc., 62 Wn.2d 351, 360, 382 P.2d 518 (1963))). Curtis relies upon the second scenario: general experience and observation teaches that a wooden dock does not give way under foot unless it is negligently maintained. Curtis, 150 Wn. App. at 106. The Court of Appeals agreed with this argument but concluded that it “does not follow that dangerous docks ordinarily exhibit discoverable defects,” and therefore res ipsa loquitur could not apply. Id. at 107. The Court of Appeals explained that Curtis could not rely on res ipsa loquitur to meet her “burden of showing that the dock’s defect was discoverable.” Id. at 106.

The Court of Appeals erred when it parsed out the inference of negligence that can be drawn from res ipsa loquitur. When res ipsa loquitur applies, it provides an inference as to the defendant’s breach of duty. See Miller v. Jacoby, 145 Wn.2d 65, 74, 33 P.3d 68 (2001). It therefore would apply an inference of negligence on the part of the Leins generally: what they knew or reasonably should have known about the dock’s condition is part of the duty that they owed to Curtis. What the Leins knew or reasonably should have known about the dock is exactly the sort of information that res ipsa loquitur is intended to supply by inference, if the inference applies at all. See Ripley v. Lanzer, 152 Wn. App. 296, 307, 215 P.3d 1020 (2009) (accident’s “‘occurrence is of itself sufficient to establish prima facie the fact of negligence on the part of the defendant, without further direct proof.'” (quoting Metro. Mortgage & Sec. Co. v. Wash. Water Power, 37 Wn. App. 241, 243, 679 P.2d 943 (1984))). The Court of Appeals erred when it held otherwise.

A turtle flying from a window. Your argument is invalid.


Jim Johnson is a Candidate for Injustice: Part 6

August 13, 2010

In our continuing coverage of the bad opinions of Justice Jim Johnson, we have another example of his bad opinions. This is another opinion I have a close tie to. In Magana v. Hyundai, Hyundai essentially hid, until trial, remand, and a renewed discovery request, several instances of “other similar incident evidence”. When Magana found out about the evidence, he found from the people holding the physical remnants that they had just discarded it, or held it waiting for someone to contact them, but it went in the trash. The trial court sanctioned Hyundai with a default for such a blatant violation. What did Jim Johnson think? Well, courtesy of the Stan Rumbaugh campaign, here’s his take on the whole situation:

July 27, 2010


Contact: Brendan Williams: (360) 791-3979


The 2009 Washington Supreme Court decision in Magaña vs. Hyundai Motor America involved a car accident victim, Jesse Magaña, who was paralyzed after being thrown out the rear window of a Hyundai Accent during an accident.  Evidence showed Jesse’s injuries could have been avoided had it not been for a defective seat-reclining design- a defect that was well known to Hyundai, but that they failed to correct..


Jesse brought a lawsuit against Hyundai, but the company refused to participate in the discovery process. Instead, they spent years ignoring, providing incomplete answers, or outright lying to Jesse and the trial court. Included in this were attempts to hide evidence of similar past accidents. Ultimately, this denied Magaña the ability to adequately prepare his case, and the trial court found Hyundai willfully and deliberately abused the court’s rules.


Following appeals, the case ended up before the Washington State Supreme Court which found, “Hyundai refused to directly answer Magaña’s requests but reworded and limited their scope…evidence was spoiled and forever lost” as a result of Hyundai’s stalling tactics.


Thus the trial court had found and the Court upheld an $8million verdict against Hyundai.  The Court said,”we hold that the trial court appropriately diagnosed Hyundai’s willful efforts to frustrate and undermine truthful pretrial discovery efforts…”


Doing so, the Supreme Court noted it “can disturb a trial court’s sanction only if it is clearly unsupported by the record.”  It was not. And so twelve years after Jesse Magaña became a paraplegic, seven justices ruled he was entitled to his $8 million default judgment.


However, in Justice Jim Johnson, the Court has a judicial activist well-practiced at substituting his judgment for those who really should be exercising it He leapt at the chance to play the trial judge’s role and bestow favorable treatment upon Hyundai.


In dissent, Justice Johnson suggested a wrist slap was more appropriate for a “multibillion dollar corporation” that plays legal games with a paralyzed man. He further belittled Magaña by accusing him of submitting “sweeping” discovery requests “ and tried to claim that, ”Money is the heart of Magaña’s case, and substantial fines could affect Hyundai and its litigation strategies.”


Over the last decade, Jessie Magana has belied this claim by being one of the mosr dedicated advocates in the state for the rights of the disability community. He chaired Governor Locke’s Blue Ribbon committee for people with disabilities. He has championed the ADA and pushed to open facilities all over the state so that people with disabilities could enjoy the rights the 20 year old Americans With disabilities Act  bestowed on them- the same act celebrated this week by the President. Jesse did this on his own dime and out of his own commitment while Hyundai and their legions of lawyers fought to deny him justice.  The Supreme Court finally put those efforts to rest- but only over the objections of Justice Johnson, who would have denied these basic dignities to Jessie.  (See McClarty, day two of our list.)


Of course, the intent of the legal rules that protect against discovery abuse like in this case are to specifically keep monied interests from escaping justice.  Indeed, the majority reminds that the sanction is designed “to appropriately compensates the other party, punishes Hyundai, and hopefully educates and deters others so inclined.”


Instead, Johnson thought twelve years was not enough time for Magaña to await justice: “More time would allow further investigation of the discovery,” he wrote –despite the fact that the majority had clearly found additional time would not have mattered because the evidence was ruined by Hyundai’s tactics.


While the twelve years of waiting were long for Jesse Magaña waiting in his wheelchair, and losing his job and health care, they were good for Hyundai as U.S. sales soared. But abuse of the legal system is commonplace from large corporations that know how to work the system and make money while delaying legitimate payments to victims; as the Court put it, “Hyundai is a sophisticated multinational corporation, experienced in litigation.”  Even in 2009, as Jesse awaited over 300 agonizingly long days for the Court’s decision while Justice Johnson wrote his dissent, Hyundai doubled its profit from 2008.


Time and time again, Johnson demonstrates his deep commitment to fighting for corporations rather than those they victimize. His performance is profitable for them, but costs too much for Washington’s citizens.


For the Magaña case, see


For a compelling story on Jesse Magaña, see

For more information on Johnson’s Injustice click “here

Visit Stan Rumbaugh at

Jim Johnson is a Candidate for Injustice: Part 5

August 13, 2010

You’ve seen one post today on how Jim Johnson will put profits over people. Courtesy of the Stan Rumbaugh campaign, here’s another example of Jim Johnson’s skewed view and his take on whether same-sex couples should be allowed to marry. The Defense of Marriage Act is a sore subject for me, as the scare-mongering that went into this campaign really hurt, when some of the more stable couples I know are same-sex couples. In kudos to Justice Fairhurst, while I don’t agree with every opinion she had written, she had the courage to write a wonderful dissent on this case. It is one of the reasons I can say I was proud to have worked for her.  The junk science cited by the majority was especially problematic for me, and I’m sure for anyone who has read, and disagreed with, the opinion. Anyhow, here you go:

Contact: Brendan Williams, (360) 791-3979


A year ago today should have been the date that legislation finally giving domestic partners in Washington equal rights to married persons took effect. That date was of course delayed when activists forced the issue to a referendum before voters—ultimately celebrated on Election Day 2009 when Referendum 71 was approved by 53.15% of the electorate.


Of course, none of that would have been necessary had not exactly two years prior, on this day in 2006, the Washington State Supreme Court handed down a shockingly backwards decision in Andersen v. King County, the Defense of Marriage Act (DOMA) case.


The decision was devastating and infuriating for the families represented in the case, not to mention their loved ones and allies across the state, nation, and world.

But no one expected the ugliness that flowed from Justice Jim Johnson’s pen. Unsatisfied with the blockade, the Court’s opinion threw up against the basic rights of Washington’s LGBT community, Johnson wrote a separate concurring opinion that was an unadulterated distortion of our Constitution, science, and even established law. In his close-minded abuse of power he chided the minority’s defense of fundamental fairness as mere “political correctness”.


Johnson found that there was no unconstitutional infringement in the exclusive preference of heterosexual couples, and further found that the state had a compelling interest in regulating marriage to the limited definition. This was because of the “unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing.” The dissent pointed out that this made no sense whatsoever taken in light of all the childless straight couples and presented a problem for any barren or sterile straights who might want to marry, but Johnson paid no attention to the inconsistencies of his position.


Instead he repeatedly promoted the shocking procreation-centric position, and threw in some shop worn homophobic arguments for good measure:

  • He compared laws against gay marriage to laws against polygamy, and in fact posited that polygamists would be better positioned for recognition under the law because their relationship was based upon religion.
  • He suggested that finding statutes like DOMA an unconstitutional infringement would also make all marriages unconstitutional.
  • He found that same-sex parents were scientifically recognized as less-suitable parents.
  • He argued that DOMA was not a violation of constitutional rights because it didn’t prevent equal opportunity for heterosexual marriages for everyone—regardless of interest.

Underscoring the historical importance of the judicial branch in addressing individual and institutional discrimination in society, Johnson compares DOMA to the laws barring interracial marriage just a few generations ago. However, he attempted to draw a clear distinction between the two and calls the dissent “disturbing” for trying to link the two.


But make no mistake about it, they are cut out of the same legal cloth. Johnson writing, “The complementary nature of the sexes and the unique procreative capacity of one man and one woman as a reproductive unit provide one obvious and nonarbitrary basis for recognizing such marriage. The binary character of marriage exists first because there are two sexes,” is the same brand of poison dressed up as science as Judge Brazile’s “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. The fact that he separated the races shows that he did not intend for the races to mix,” in Loving v. Virginia in the sixties.


Indeed, this reminds that judicial decisions are inextricably linked to the key moments in society’s advancements. They can delay such moments and cling to regressive standards, or they can highlight the ways our Constitution and laws can drive communities forward into more inclusive and equal chapters.


Justice Johnson not only failed to seize his responsibility in that moment, but he led the charge in the opposite direction. His voice on the bench helped make Washington an argument for continuing the abuse of the personal liberty and legal protection of citizens when it is his very job to do the exact opposite.


For more information visit:


For more information on Stan Rumbaugh visit:


Jim Johnson is a Candidate for Injustice: Part 4

August 13, 2010

In our continuing coverage of the ill-conceived opinions of Justice Jim Johnson, we bring you not one, not two, but four opinions. Why four? Because The Prof is taking a much-deserved vacation in the Methow Valley. This of course meant a day of just relaxing in Leavenworth, whereby I discovered the joy that is the Big Boy Brat. Throw some stone ground mustard and some sauerkraut on that bad boy and call it good.

Anyhow, here’s a few opinion for your perusal:

The first of the day: Davis v. Baugh, where, according to Jim, even though outdated precedent had run its course, had grown out of line with the statutory scheme, and shielded subcontractors no matter how badly they were negligent:


Date: July 23, 2010


Contact: Brendan Williams, (360) 791-3979


In 2007’s Davis v. Baugh, the Court got right to the heart of the matter: a man was killed due to the negligence of a company. Our judicial system is based upon the idea that punishing that kind of wrongdoing is not only fair, it is the only way to create a deterrent that helps prevent future criminal behavior. This point—that the court has a purpose in crafting strong language in the public interest—is critical to understanding the lengths Johnson was willing to go in his dissent, using dense legal language in an attempt to keep the company off the hook.


Baugh was a subcontractor who completed a subterranean pipe network for Glacier Northwest on a larger project. Glacier employed Alan Davis, who was sent to inspect the pipes when it was noticed, after installation, that they were leaking. As he was doing this, two ton-and-a-half portions of the pipe fell on him, crushing and killing him.


The portion of the pipes that failed was found to be structurally unsound. But for Baugh’s failure to recognize this before providing the pipes for installation, resulting in the predictable failure, Davis would still be alive.


His tragedy is easy enough to understand. What is not as easy to understand is the conflict that was created in the law when Alan Davis’s family sought justice in the courts.  Most perplexing of all was Johnsons’ refusal to help clarify the law in a way that gives working people like Alan Davis the protections they are entitled to in a situation like this.


The laws protecting victims from injury caused by another party’s negligence come to us from England centuries ago. They are called ‘common law’, and which is refined and updated by judges over the years. One such common law element at play in this case was the doctrine of completion and acceptance.


Completion and acceptance meant that once an independent contractor finished their work and it was accepted by the owner, liability for injuries ends.  This cutoff occurs no matter how negligently the work was performed. The court rejected this doctrine as “outmoded, incorrect, and harmful.”


Prior to this case, the Court hadn’t addressed the completion and acceptance issue for 40 years. In that 40 years our Legislature passed statutes which govern construction liability and created workplace safety regulations for the benefit of all working people. The very common law foundations of the completion and acceptance doctrine had been abandoned by the court, and the doctrine itself was rejected in 37 other states.  With the range of materials used and complexity of construction projects greatly expanded, the number and importance of subcontractors had steadily increased over the years. The very nature of the construction industry had changed.


That is why under modern law construction contractors are liable for injury or damage due to negligence after acceptance as long as it is reasonably foreseeable that the injury could occur.


Washington’s Supreme Court agreed, saying, “We have put the source of the obligation where it ought to be.”


It was necessary to place the obligation of responsibility for injury on negligent subcontractors to protect injured workers, bystanders, and other construction companies. The ancient legal scheme had run its course, and was superceded by new statutes and the development of the common law. But Johnson, per usual, sides with the negligent wrongdoers, not the victims or good public policy.


That part is expected. What is ironic is his sudden (misguided) concern about judicial activism. In his defense of keeping the company unaccountable for the death of Davis, Johnson argues that “without the stabilizing effect of stare decisis, “law could become subject to … the whims of current holders of judicial office.”


True, except for the fact that this decision moves Washington law in line with common sense, public interest, already changed legal precedent, and legislative updates. And unlike the manytimes Johnson has been accused of judicial activism, the Court here is advancing its own common law, not manipulating the intent of statutes created by the Legislature.


In an effort to fairly portray his position, it should be clear that Johnson also tries to make this case about “allow[ing] private contracting parties to continue to craft mutually beneficial and voluntary contract agreements for construction.” Of course, the majority takes the time to remind him this case is about tort law, not contract law, writing, “Thus, we respectfully disagree with the dissent that this case implicates any questions regarding contract interpretation in any way.”


But in the end, despite all the legal posturing, this case is very simply about preventing companies from negligently killing people with no accountability. The Supreme Court stood up and said it was wrong. Justice Johnson dissented.


His reason? “This rewriting of our law will cost consumers in the long run.” This is debatable, but before this, companies were allowed to kill people like Alan Davis for free.


For the opinions in this case, visit


Endorsements for August 17 Primary *Updated August 11, 2010*

August 10, 2010

[Ed. – As does happen, The Prof can flub. Senator Shin is running for State Senator, not Representative, in the 21st district. Mary Helen Roberts and Marko Iliias are running for positions 1 and 2 respectively in the 21st District. Thank you to Senator Shin’s campaign manager, Zach Shelton, for pointing out the error.]

The Amateur Law Professor is more than a blog devoted to bringing you the as-its-happening legal news from the Washington Courts of Appeal. We’re much more than that. We’re also a bringing you the delayed legal new from the Washington Courts of Appeal. Sometimes, we’ll even make you wait for much-needed legal news.


Because we can!

But, seriously, I plan on catching up on the blog posts during a road trip occurring on vacation. At that point, we will be adding Division 3 blogger Angela Macy-Cushman, an amazing trial attorney at SGB.

One of the questions I often get asked around election time is how I choose who I vote for when voting for judges. This is an easy question. I look for intelligence, a track record as an attorney that speaks to how they will rule from the bench, and good looks. Good looks are a must in this business. Okay, maybe not so much the good looks. But definitely the first two.

If they are already a sitting judge, I look for what I know about the judge. This could be past opinions that I agree or disagree with. This could be how they have applied the law to the case. This could be, quite simply, whether they do proper citation format (Justice Charles Johnson gets an exemption from this, as I know his take on the bluebook, why, and the running mandate to his clerks).

That said, The Amateur Law Professor is a blog that is devoted to the ideals ever-present in our system of government. This means true equality (not simply surface equality that can be swept under the rug). This means providing a voice in our society for those who have no voice. This means, quite simply, justice.

This is how we go about picking our candidates for office, and we hope that you join us in voting for the people that follow on this list. We have made an attempt to cover most of the major elections, and all of the judicial elections. Some were selected based on their record and personal knowledge. Some were selected based on the best information we had available. The selections were propogated by your Dean, and voted on by the staff of the Amateur Law Professor. Where there has been a tie, we provide a dual endorsement, as opposed to none at all. Where we feel neither candidate is an ideal one, we provide no endorsement.

The Amateur Law Professor officially endorses the following candidates and positions:


State Judicial

Washington Supreme Court Pos. 1 – Stan Rumbaugh

Washington Supreme Court Pos. 6 – Charlie Wiggins


Court of Appeals Div. 2, Dist. 3, Pos. 2 – Jill M. Johanson


Court of Appeals Div. 3, Dist. 1, Pos. 1 – Laurel Siddoway


County Judicial

Clallam County Dist. Court Pos. 1 – Tim Davis


King County District Court Northeast Electoral Dist. – Ketu Shah


Kittitas County Dist. Court, Lower Dist. – No Endorsement


Pierce County Dist. Court, Pos. 2 – Lance Hester


Yakima County Dist. Court, Pos. 4 – Doug Federspiel


Initiatives and Referendum

No on I-1053

No on I-1082

Yes on I-1098

Yes on I-1100

Yes on I-1105

No on I-1107

Yes on R-52

Yes on ESHJR 4220


Intercity Transit District

Yes on Proposition 1


State Legislative

U.S. Senator – Patty Murray


U.S. Representative District 1 – Jay Inslee

U.S. Representative District 2 – Rick Larsen

U.S. Representative District 3 – Denny Heck

U.S. Representative District 4 – Leland Yialelis

U.S. Representative District 5 – Daryl Romeyn

U.S. Representative District 6 – Norm Dicks

U.S. Representative District 7 – Jim McDermott

U.S. Representative District 8 – Suzan DelBene

U.S. Representative District 9 – Adam Smith


State Representative Dist. 1, Pos. 1 – Derek Stanford

State Representative Dist. 1, Pos. 2 – Luis Moscoso

State Representative Dist. 2, Pos. 1 – Marilyn Rasmussen

State Representative Dist. 2, Pos. 2 – Tom Campbell

State Representative Dist. 3, Pos. 1 – Andy Billig

State Representative Dist. 3, Pos. 2 – Timm Ormsby

State Representative Dist. 5, Pos. 1 – Gregory Hoover

State Representative Dist. 5, Pos. 2 – David Spring

State Representative Dist. 6, Pos. 2 – John F. Driscoll

State Representative Dist. 8, Pos. 1 – Carol L. Moser

State Representative Dist. 9, Pos. 2 – No Endorsement

State Representative Dist. 10, Pos. 2 – Tom Riggs

State Representative Dist. 11, Pos. 1 – Zack Hudgins

State Representative Dist. 11, Pos. 2 – Bob Hasegawa

State Representative Dist. 12, Pos. 2 – No Endorsement

State Representative Dist. 13, Pos. 2 – Anthony (El Tigrero) Novack

State Representative Dist. 14, Pos. 1 – Scott Brumback

State Representative Dist. 15, Pos. 1 – Paul Spencer

State Representative Dist. 15, Pos. 2 – Thomas (Tom) T. Silva

State Representative Dist. 16, Pos. 1 – Maureen Walsh

State Representative Dist. 17, Pos. 1 – Tim Probst

State Representative Dist. 17, Pos. 2 – Monica Stonier

State Representative Dist. 18, Pos. 1 – No Endorsement

State Representative Dist. 19, Pos. 1 – Dean Takko

State Representative Dist. 19, Pos. 2 – Brian E. Blake

State Representative Dist. 20, Pos. 1 – Corinne Tobeck

State Representative Dist. 20, Pos. 2 – Uncontested

State Representative Dist. 21, Pos. 1 – Mary Helen Roberts

State Representative Dist. 21, Pos. 2 – Marko Liias

State Representative Dist. 22, Pos. 1 – Steve Robinson

State Representative Dist. 22, Pos. 2 – Sam Hunt / Chris Reykdal

State Representative Dist. 23, Pos. 1 – Sherry V. Appleton

State Representative Dist. 23, Pos. 2 – Christine Rolfes

State Representative Dist. 24, Pos. 1 – Sam Hunt

State Representative Dist. 24, Pos. 2 – Steve Tharinger

State Representative Dist. 25, Pos. 1 – Bruce Dammeier

State Representative Dist. 25, Pos. 2 – Dawn Morrell

State Representative Dist. 26, Pos. 1 –  No Endorsement

State Representative Dist. 26, Pos. 2 – Larry Seaquist

State Representative Dist. 27, Pos. 1 – Jake Fey

State Representative Dist. 27, Pos. 2 – Jeannie Darneille

State Representative Dist. 28, Pos. 1 – Troy Kelley

State Representative Dist. 28, Pos. 2 – Tami Green

State Representative Dist. 29, Pos. 1 – Connie Ladenburg

State Representative Dist. 29, Pos. 2 – Steve Kirby

State Representative Dist. 30, Pos. 1 – Mark Miloscia

State Representative Dist. 30, Pos. 2 – Carol Gregory

State Representative Dist. 31, Pos. 1 – Peggy Levesque

State Representative Dist. 31, Pos. 2 – Christopher Hurst

State Representative Dist. 32, Pos. 1 – Cindy Ryu

State Representative Dist. 32, Pos. 2 – Ruth Kagi

State Representative Dist. 34, Pos. 1 – Ray Carter

State Representative Dist. 34, Pos. 2 – Mike Heavey / Joe Fitzgibbon

State Representative Dist. 35, Pos. 1 – Kathy Haigh

State Representative Dist. 35, Pos. 2 – Fred Finn

State Representative Dist. 36, Pos. 2 – Mary Lou Dickerson

State Representative Dist. 37, Pos. 2 – Eric Pettigrew

State Representative Dist. 38, Pos. 1 – John McCoy

State Representative Dist. 38, Pos. 2 – Mike Sells

State Representative Dist. 39, Pos. 1 – Eleanor Walters

State Representative Dist. 40, Pos. 1 – Kristine Lytton

State Representative Dist. 40, Pos. 2 – Jeff Morris

State Representative Dist. 41, Pos. 1 – Marcie Maxwell

State Representative Dist. 41, Pos. 2 – Judy Clibborn

State Representative Dist. 42, Pos. 1 – Richard May

State Representative Dist. 42, Pos. 2 – Kelli Linville

State Representative Dist. 43, Pos. 2 – Frank Chopp

State Representative Dist. 44, Pos. 1 – Hans Dunshee

State Representative Dist. 44, Pos. 2 – John Boerger

State Representative Dist. 45, Pos. 1 – Roger Goodman

State Representative Dist. 45, Pos. 2 – Larry Springer

State Representative Dist. 46, Pos. 2 – Phyllis G. Kenney

State Representative Dist. 47, Pos. 1 – Geoff Simpson

State Representative Dist. 47, Pos. 2 – Pat Sullivan

State Representative Dist. 48, Pos. 1 – Ross Hunter

State Representative Dist. 48, Pos. 2 – Deb Eddy

State Representative Dist. 49, Pos. 1 – Jim Jacks

State Representative Dist. 49, Pos. 2 – Jim Moeller


State Senator, District 6 – Chris Marr

State Senator, District 7 – Barbara Mowrey

State Senator, District 8 – Jerome Delvin

State Senator, District 21 – Paull Shin

State Senator, District 26 – Derek Kilmer

State Senator, District 29 – Steve Conway

State Senator, District 30 – Tracey Eide

State Senator, District 31 – Raymond Bunk

State Senator, District 32 – Maralyn Chase

State Senator, District 33 – Karen Keiser

State Senator, District 35 – Tim Sheldon

State Senator, District 36 – Jeanne Kohl-Welles

State Senator, District 37 – Adam Kline

State Senator, District 38 – Jean Berkey

State Senator, District 41 – Randy Gordon

State Senator, District 42 – Pat Jerns

State Senator, District 44 – Steve Hobbs

State Senator, District 45 – Eric Oemig

State Senator, District 47 – Claudia Kauffman

State Senator, District 48 – Rodney Tom


King County

King County Council District No. 8 – Joe McDermott



City of Federal Way Mayor – Mike Park


We apologize if we did not cover your election, time being what it is, we simply do not have the time to cover every single election. We trust your local papers will do their diligence in researching where we have not. If you wish for us to research an issue or election, please email, and we will get back to you before the election.



The Amateur Law Professor has been informed that John Boerger has withdrawn from the race. We still feel he is worth the vote. If you don’t see him next to a bubble, feel free to write him in.


WA Supreme Court: Jailhouse Trial for Murder Uncouth (mostly)

May 30, 2010

I apologize for the delay in getting this latest set of supreme court opinions out. I have been in trial in Skagit County. For those who don’t know, Skagit lies just a tad bit north of the Prof’s chosen abode in Seattle. I actually head back up there tuesday for another trial. Nothing like living life out of a suitcase!

State v. Jaime

Jaime was tried for second degree murder. The court held, with Justice Stephens writing for the majority, that holding said trial in the jail courthouse violated his due process rights by “eroding the presumption of innocence.” Can’t say I disagree just based on the smell test, but here’s what the court had to say about it:

Consistent with this analysis, the question here is whether the average juror would take for granted his or her presence in a jail, i.e., whether jurors are so inured to the experience of being in a jail building that it would have no effect on their perspective as jurors.  The answer is self-evident.  “‘[R]eason, principle, and common human experience'” tell us that the average juror does not take for granted a visit to a jail.  Id. at 569 (quoting Estelle, 425 U.S. at 504).  The average juror does not frequent the jailhouse for the very reason that a jailhouse is not meant to be a public space.  Unlike a courthouse, in which the public is welcome to — and in some instances required to — conduct all manner of business, a jail serves a specific purpose not generally applicable to the public at large.

The difference between jailhouses and courthouses is evident even in their architectural contrast.  Courthouses are often monuments of public life, adorned with architectural flourishes and historical exhibits that make them inviting to members of the public.  Many of our county courthouses are on historical registries and are visited each year by school children, civic groups, and tourists.  A jail, on the other hand, is singularly utilitarian.  Its purpose is to isolate from the public a segment of the population whose actions have been judged grievous enough to warrant confinement.  Jail buildings are typically austere in character, and entrance is subject to heightened security.  Indeed, the Yakima County jail in which Jaime’s trial was held was described by the judge in an unrelated trial as “a monolithic concrete building.”  Br. of Appellant at 111,  State v. Sanchez, No. 26816-1-III (Wash. Ct. App. Jan. 23, 2009) (oral argument stayed pending decision in this case).

Given the character of a jail, a juror would not take a visit to a jailhouse for granted, nor would he or she be inured to the experience.  See Holbrook, 475 U.S. at 569.  A juror’s experience with jail is very likely limited to what our societal discourse tells us of jails:  they are high-security places that house individuals who need to be in custody.  That the average juror would draw a corresponding inference from that experience is reasonable to surmise.

Of course, some jurors’ experience with a jail may be more personal but no less negative.  What if, for example, one of Jaime’s jurors was the victim of domestic violence whose abuser was housed in the jail?  Her visit to the jail would not strike her as unremarkable or routine.  It takes no great logical leap to conclude that such a juror’s heightened awareness of her surroundings could contribute negatively to her view of the defendant.

In short, under the analysis of Holbrook, holding a trial in a jail courtroom is inherently prejudicial for two reasons.  First, the setting is not in a courthouse, a public building whose purpose is to provide a neutral place to conduct the business of the law.  Second, the setting that replaces the courthouse has a purpose and function that is decidedly not neutral, routine, or commonplace.  Holding a criminal trial in a jailhouse building involves such a probability of prejudice that we must conclude it is “‘inherently lacking in due process.'”  Holbrook, 475 U.S. at 570 (quoting Estes, 381 U.S. 542-43).

That said, the court didn’t say that you could never have a jailhouse trial, but there had better be a damned good reason for doing so (articulated safety risks, etc.).

Of particular note, is the court’s calling out of a false statement to the jury by the trial court. I wholeheartedly believe, as does the court, that trust in the jury, and the juries trust in the system are essential for the proper administration of justice. The trial court here misrepresented to the jury why the trial was being held at the jailhouse. While I do not think it was the slightest ill intent by the trial, and do not fault the trial court for wanting to find an explanation that may satisfy the jury, the explanation must be truthful.

Justices Fairhurst, J. Johnson, and Madsen would hold that the prejudice of walking through a jail on the way to a courtroom is less prejudicial than shackles, and that the trial implicated no due process rights. Additionally, Justice J. Johnson would hold that the jury could have followed a curative instruction. I would point out that if this were the case, there would potentially be no due process violations, even for shackles applied inappropriately, as anything could be simply explained away. Some bells cannot be unrung, no matter how well you instruct the jury.

WA Supreme Court: Porn Not Okay at Public Libraries

May 6, 2010

Bradburn v. North Central Regional Library Dist.

The Federal District Court certified the following question to the Washington Supreme Court (and boy is it a doozy):

Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling Web sites containing constitutionally-protected speech upon the request of an adult library patron.

So what does this mean? On the one end, you have a panoply of first amendment law, which, as I understand is voluminous, confusing, hard to wrap your head around, obtuse, and every other word which means hard to understand.

On the other, there’s the smell test that we need not have some 80-year old man without a sense of propriety jerkin the gherkin under the guise of internet “research”.

Case in point:


Now for those of you who know how courts work, you already know the outcome. Pragmatically, they have to allow the internet filters. The question then becomes, how do they justify it?

As to whether this was a prior restraint on speech, a plurality of the United States Supreme Court has already decided that filters in libraries do not count:

The plurality in A.L.A. termed it a mistake to extend “prior restraint to the context of public libraries’ collection decisions. A library’s decision to use filtering software is a collection decision, not a restraint on private speech.” A.L.A., 539 U.S. at 209 n.4. We similarly agree that NCRL’s filtering policy does not constitute a prior restraint within the meaning of article I, section 5.

. . .

Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.” Id. at 203. A public library “provides Internet access . . . for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id. at 206. “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.” Id. at 204.

The discretion exercised, however, cannot be purely political or partisan.

The court then looked to Maintstream Laudon, a case that leaned towards no filtering as a removal of items from a collection, but determined that the later discretion given by the United States Supreme Court rendered much of Mainstream Laudon as outdated and bad law. A.L.A. considers the internet provided at a library no more than an electronic bookstack, which falls under the discretion of the library and its mission. Further, allowing all categories of internet would tie up scarce library resources, which could jam up the mission (for which a great exception exists):

Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block. The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers.

. . .

Because adults can request and obtain unblocking of erroneously blocked sites, we conclude that on this record no overbreadth problem exists under article I, section 5 as a result of overblocking.

Finally, there’s the elephant in the room. “Why can’t the old man look at porn. Porn has been held to be protected reading material. Again, according to A.L.A., such restrictions in the context of library collections are okay, because libraries can decide what they put into their collections:

As the plurality in A.L.A. observed, “[m]ost libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.” A.L.A., 539 U.S. at 208. It makes “little sense” to treat libraries’ decisions to block access to “online pornography any differently, when these judgments are made for just the same reason.” Id.


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