Posts Tagged ‘washington’

WA Legal Roundup – WA State Supreme Court: No appeal of hearing for school district. Must read for teachers!

October 5, 2011

Federal Way Sch. Dist. v. Vinson

When a teacher loses a dispute in this state at the level of administrative hearing, they have the ability to appeal to the court. A lot of this is rooted in the fact that the license carries with it the ability to work. Any law student who has taken constitutional law can tell you that (due process, people). In Washington, its also governed by statute.

The statute doesn’t provide a right of appeal to the school districts if the hearing officer finds for the teacher, a fact which has been just affirmed by our supreme court:

We hold that the statutory writ, an extraordinary remedy, is not available to the school district. In contrast, the constitutional writ is always available to a party seeking relief from arbitrary, capricious, or illegal acts. The hearing officer acted within the limits of his statutory authority, and his final decision was not arbitrary or capricious. We reverse the Court of Appeals and reinstate the attorney fees awarded by the superior court.

The court of appeals reasoning below basically held that a teacher could be fired for doing anything not work related during the school day, even if at lunch:

The Court of Appeals first deviated from our stated rule in Clarke in Sauter v. Mount Vernon School District No. 320, 58 Wn. App. 121, 791 P.2d 549 (1990). Relying on Pryse and Potter,[17] the Sauter court eliminated the remediability prong of the second Clarke test. Sauter, 58 Wn. App. at 130-31. The Sauter test — sufficient cause for a teacher’s discharge exists as a matter of law where the teacher’s deficiency is (1) irremediable and materially and substantially affects the teacher’s performance or (2) lacks any positive educational aspect or legitimate professional purpose — eradicated the significant protections previously afforded teachers by the sufficient cause standard.[18] Under the Sauter test, any misconduct will be grounds for discharge because, by definition, misconduct is behavior that “lacks any positive educational aspect or legitimate professional purpose.” Id. at 130.

The ramifications of the modified-Clarke rule are glaringly apparent in Vinson. The Clarke rule as modified by Vinson holds that any time a teacher, in the course of his job, engages in conduct lacking any “professional purpose,” that teacher may be discharged. Vinson, 154 Wn. App. at 230. This creates a per se rule of discharge under which any school-day lapse, no matter how minor and no matter the context, will always constitute sufficient cause for the teacher’s discharge. Essentially, the Vinson court, relying on Sauter, removes the required nexus between alleged teacher misconduct or deficiency and teaching performance. We reject this alteration of our Clarke rule. The nexus requirement finds root in the constitution. See, e.g., Hoagland, 95 Wn.2d at 429 (“[I]t would violate due process to discharge a teacher without showing actual impairment to performance.”).

Sufficient cause may be found as a matter of law, without applying the Clarke test or Hoagland factors, in only the most egregious cases. We hold that where a teacher engages in sexually exploitive conduct or physical abuse of a student, sufficient cause is established as a matter of law; the Clarke test and Hoagland factors (if applicable, see Clarke, 106 Wn.2d at 114) must be applied in all nonflagrant instances of misconduct.

So basically, because the conduct of the teacher on his lunch (shouting match with a former student, who was harassing him because of gender identity) had nothing to do with his ability to teach, he gets to keep his job.

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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.

NewImage.jpg

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Posted in Justice Debra Stephens - Draft Majority, Res Ipsa Loquitur, Tort, WA Supreme Court | Leave a Comment »

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.

Why?

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

 

Municipal

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 amateurlawprof@gmail.com, and we will get back to you before the election.

 

*Update*

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.

 

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