January 2014

In a 5-3 decision, the State Supreme Court affirmed the Court of Appeals that genuine issues of material fact precluded summary judgment on the use of Washington’s recreational immunity statute (former RCW 4.24.210) in Camicia v. Howard S. Wright Constr. Co., No. 85583-8.

Plaintiff Susan Camicia was bicycling along the Interstate-90 trail, crossing over a portion of the trail located on Mercer Island, when she swerved to avoid the defendant construction company’s fence footing protruding onto the pathway.  Then Camicia immediately hit a wooden post on the trail, which the City of Mercer Island had placed there to prevent vehicles from using the trail, and was thrown from her bike.  Camicia suffered serious injuries and was paralyzed as a result of her fall.
Continue Reading Washington Supreme Court: Recreational Use Immunity is in the Eye of the Landowner

Roughly three years ago, the Washington Supreme Court took a bold step toward eliminating appeals to racial bias in criminal trials.  In State v. Monday, the Court reversed a first-degree murder conviction supported by videotape evidence of the charged crime and an apparent confession by the defendant because the prosecutor tainted the proceeding by impermissibly injecting race into the trial.  Specifically, the prosecutor argued that African-American witnesses had adhered to an anti-snitch code and mimicked some African-American witnesses’ pronunciation of the word “police.”  Monday was remarkable because the Court announced a rule putting the burden on the State – not the defendant – to demonstrate beyond a reasonable doubt that a prosecutor’s appeal to racial bias (whether subtle or direct) does not affect the jury’s verdict.    

Last week, the Supreme Court significantly limited the reach of Monday.  In the Personal Restraint Petition of Gentry, the Court ruled that the burden-shifting framework articulated in Monday does not apply retroactively to collateral attacks on criminal convictions.


Continue Reading Wash. S. Ct.: Monday Is Not A Retroactive, “Watershed” Rule Of Criminal Procedure

In In Re Personal Restraint of Stockwell, the Supreme Court unanimously (7 judges, with 2 concurring) determined that an involuntary guilty plea may only be overturned on collateral attack if the petitioner shows actual and substantial prejudice from the circumstances surrounding the plea.  This decision is the latest in the Court’s self-described “course correction” towards a more stringent standard for granting relief after convictions have been finalized.  While concurring, Justice Gordon McCloud, joined by Justice Stephens, wrote separately to complain that the majority defined too stringently the prejudice required to prevail on personal restraint petition
Continue Reading Does the Right to Counsel for Personal Restraint Petitions Mean Anything?

A five-Justice majority of the Washington Supreme Court ruled in Youngs v. PeaceHealth (No. 87811-1) that a corporate healthcare provider’s defense counsel may communicate ex parte with the plaintiff’s treating physician if – and only if – the communication is for the purpose of providing legal advice, the physician has direct knowledge of the events…

Schroeder v. Wieghall

When Jaryd Schroeder was nine-years old, he sought treatment from Dr. Steven Weighall and Columbia Basin Imaging.  During this treatment, he received an MRI, which Weighall reviewed and concluded was normal.  Nearly eight years later, at the age of 17, Schroeder underwent another MRI.  This MRI revealed that Schroeder suffered from an Arnold Chiari Type I Malformation.  The radiologist reviewing the second MRI concluded that the condition had been present to the same extent at the time of Schroeder’s first MRI.

Subsequently, the day before his 19th birthday, Schroeder filed a medical malpractice action against Weighall, Columbia Basin Imaging, PC, and a third party (who was dismissed by stipulation).  In response, Weighall argued that the action was time barred by the applicable statute of limitations and subject to the minority-tolling exemption codified at RCW 4.16.190(2).  The trial court agreed with Weighall and dismissed Schroeder’s action.  Schroeder then appealed directly to the Washington Supreme Court, arguing that RCW 4.16.190(2) violated article I, section 10 and article I, section 12 of the Washington State Constitution.

The Washington Supreme Court reversed.Continue Reading Toll This: Wash. S. Ct. Holds Tolling Exemption In Med Mal Cases Unconstitutional

In State v. Johnson, a 5-4 majority of the State Supreme Court upheld Lewis County resident Stephen Johnson’s third-degree driving while license suspended (DWLS) charge for failing to pay a $260 traffic ticket because he arguably had the financial means to do so.

Background

After Johnson’s driver’s license expired in 2001 he did not renew it.  In 2007, police stopped Johnson and cited him for driving without a valid license.  Following his appearance at a hearing to contest the infraction, the district court imposed a $260 fine, which Johnson did not pay, and his license was suspended as a result.  Lewis County deputies stopped Johnson again in 2008, this time arresting Johnson for third-degree DWLS.  At trial on the DWLS charge, the Lewis County District Court found Johnson guilty and imposed a fine and suspended jail sentence.

In a hearing to determine whether he could afford counsel, Johnson testified that he had no income, had not worked in 30 years, and received food stamps and energy assistance from the State.  He further testified, however, to owning a $300,000 home free of liens and obtaining a $3 million judgment in a tort suit (though Johnson stated that the defendant appeared judgment proof).  The district court determined that Johnson was not “indigent” for purposes of obtaining court-appointed counsel.
Continue Reading Fifty Shades of Poverty: State Supreme Court Holds There is No Such Thing as “Driving While Poor” If You Own Your House

In State v. Liu, a 5-4 majority on the Washington Suprme Court declared the the Confrontation Clause of the Sixth Amendment to the U.S. Constitution does not require that DNA tests or other hard to decipher scientific tests be presented in court by the technician who conducted the test.  These tests are not inculpatory because a juror would not understand how the data bears on the guilt or innocence of the defendant without the testimony of an expert witness.  Therefore these complicated reports are not “witness[es] against” the defendant and need not be available for confrontation by the defendant.  While the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) might suggest otherwise, the Washington Court determined that the five Justice majority who signed that opinion was not really a majority because Justice Thomas also wrote an idiosyncratic concurrence. The Washington Court started counting five Supreme Court Justice signatures, but stopped at four.
Continue Reading Washington Court Starts to Count to Five, Stops at Four

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Welcome to the Stoel Rives Appellate Law blog, dedicated to providing those in appellate law practices regular updates on significant decisions from courts of appeal within our regions of practice. It is our goal to build out this blog to be a handy resource for both keeping up to date on new decisions and quickly locating information about past decisions.