On April 29, 2014, the Washington Supreme Court granted 10 petitions for review.

Our colleague, Heidi Wildercompiled the following information about the issues presented:

Akrie, et al. v. Grant, et al.

Court of Appeals Case No.:  68345-4-I

Supreme Court Case No.:  89820-1

Issues:

1. Whether the $10,000 SLAPP penalty applies cumulatively to every party in the lawsuit, even those who did not engage in any anti-SLAPP protected activity. NO. The anti-SLAPP penalty should only apply to the individual parties who undertook constitutionally protected activity.
2. Whether the $10,000 SLAPP penalty applies cumulatively to every party in the lawsuit, even those who did not engage in any anti-SLAPP protected activity. NO. The anti-SLAPP penalty should only apply to the individual parties who undertook constitutionally protected activity.
3. Whether the imposition of a cumulative SLAPP penalty without limits, i.e. $10,000 per nominal party without restriction and regardless of whether there are 2 or 200 parties, and regardless of whether 1 or 100 of them undertook constitutionally protected activity, violates the right to Petition under the Washington State Constitution and the Eighth’ and Fourteenth Amendments of the United States Constitution.
4. Whether and at what point a cumulative award of statutory damages that is vastly out of proportion to the relief sought in the underlying lawsuit ceases to be narrowly tailored to achieving the compelling state interests furthered by the anti-SLAPP statute and violates the Excessive Fine clause of the Eight Amendment and the Fourteenth Amendment Right to Due Process.

 

Dillon v. Seattle Deposition Reporters, et al.

Court of Appeals Case No.:  69300-0-I (linked with 68345-4-I)

Supreme Court Case No.:  89961-4

Issues:

1. Protected Conduct Under Anti-SLAPP Law. Whether the Court of Appeals misinterpreted the anti-SLAPP law, RCW 4.24.525, by ruling its protections for claims targeting “public participation and petition” do not protect First Amendment rights or lawful conduct in furtherance of the right of petition for redress from a court, contrary to the statute, its legislative history, other Court of Appeals’ decisions, and this Court’s decisions, meriting review under RAP 13.4(b)(1),(2), (3) and (4).
2. Proper Inquiry Under Anti-SLAPP Law. Whether the Court of Appeals erred by accepting the plaintiffs allegations rather than considering the evidence, as the anti-SLAPP law requires, undercutting the act’s protection for constitutional rights. RAP 13.4(b)(3) and (4).
3. Expectation of Privacy Under RCW 9.73.030. Whether the Court of Appeals erred in reversing summary judgment of a claim under the Washington Privacy Act, RCW 9.73.030, when the undisputed facts dispelled any contention that transcribed interviews were “private” communications, but the court ignored and contradicted another of its decisions and relied on a perjured declaration. RAP 13.4(b)(2) and (4).
4. Collateral Estoppel for Federal Judgment. Whether the Court of Appeals erred by refusing to accord collateral estoppel to a federal court’s judgment (after an evidentiary hearing) that the transcription did not violate the Privacy Act. RAP 13.4(b)(4).

 

State v. Cobos

Court of Appeals Case No.:  30658-5-III

Supreme Court Case No.:  89900-2

Issues:

1. Did the sentencing court erred in considering petitioner’s prior convictions in the calculation of petitioner’s offender score, after petitioner’s written and£!!! Specific objection and the State’s failure to prove the existence of petitioner’s prior convictions by a preponderance of the evidence?
2. Is the decision of the court of Appeals in conflict with a decision of the Supreme Court?
3. Is the decision of the court of Appeals in conflict with another decision of the court of Appeals?
4. Is there a significant question of law under the Constitution of the State of Washington or of the United States involved?
5. Does the petition involves an issue of substantial public interest that should be determined by the Supreme Court?

State v. MacDonald

Court of Appeals Case No.:  69415-4-I

Supreme Court Case No.:  89912-6

Issues

Contrary to the plea agreement negotiated by the State and the Petitioner, the “investigating officer,” here the lead detective, legally an “arm” of the prosecution, argued for imposition of the statutory maximum term of imprisonment.  Under the holding of the majority of Justices – but not the lead opinion- in State v. Sanchez, did the State breach the plea agreement in violation of the petitioner’s state and federal constitutional due process rights by arguing in violation of its own promise?

 

State v. Allen

Court of Appeals Case No.: 42257-3-II

Supreme Court Case No.:  89917-7

Issues:

1. The Sixth Amendment and the Fourteenth Amendment’s Due Process Clause require the State prove each element of an offense to the jury beyond a reasonable doubt. To convict someone as an accomplice, Washington law requires the State prove beyond a reasonable doubt the person knew he was assisting someone in the commission of the crime charged. To prove knowledge, Washington law requires the State prove beyond a reasonable doubt that a person has actual subjective knowledge of the facts necessary to constitute the crime charged. Where the State did not prove beyond a reasonable doubt that Mr. Allen had actual subjective knowledge that he was assisting in the commission of four murders do his four convictions of first degree murder violate the Sixth and Fourteenth Amendments?
2. A prosecutor violates the Fourteenth Amendment’s Due Process Clause when he misstates the law and endeavors to relieve the State of its burden of proving each element of an offense. The prosecutors purposefully and repeatedly told the jury, over Mr. Allen’s objection and in direct contradiction of long-settled Washington law, that Mr. Allen was guilty so long as he “should have known” Mr. Clemmons intended to commit murder. Did the State’s purposeful misconduct violate the Fourteenth Amendment’s Due Process Clause?
3. Article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution do not permit a warrantless police entry of a home to arrest a person based solely upon probable cause. The warrantless entry may only be justified if the State proves an exception exists to the warrant requirement. Where the State did not establish any exigent circumstance justified the officers’ warrantless entry, did the entry of a motel room and the subsequent arrest of Mr. Allen inside violate the Article I, section 7 and the Fourth Amendment?
4. Due process requires a trial court to instruct on a lesser included offense when requested by the defendant, where (1) the lesser offense is necessarily committed when one commits the greater offense as charged, and (2) in the light most favorable to the defendant the evidence supports an inference that only the lesser offense was committed. In a prosecution for first degree murder as an accomplice, the State’s evidence, when viewed in the light most favorable to Mr. Allen, permitted a reasonable juror to conclude Mr. Allen committed only rendering criminal assistance. Did the trial court deny Mr. Allen due process when it refused to provide the requested instruction on the lesser offense?
5. The general accomplice liability statute, RCW 9A.08.020, does not apply to sentencing enhancements or factors. Sentencing enhancements and aggravating factors may only apply to an accomplice if the statute establishing the enhancement or factor provides for accomplice liability. Did the court error in imposing an exceptional sentence in Mr. Allen’s case?
6. The Sixth and Fourteenth Amendments impose an affirmative duty upon the trial court to ensure the jury’s verdict is the product of the evidence presented at trial and is free of influence from outside sources. The trial court concluded it could not limit courtroom spectators from wearing t-shirts memorializing the victims of Maurice Clemmons’s crimes, even when those t-shirts were visible to the jurors during trial. Did the trial court’s failure to ensure the jury’s verdict was free of improper influences deprive Mr. Allen of his Sixth and Fourteenth Amendment rights?

 

 

State v. Friedlund

Court of Appeals Case No.: 31206-2-III

Supreme Court Case No.:  89926-6

Issues:

1. RCW 9.94A.535 mandates: “Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.” In this case, the Court of Appeals held that while the requirement is mandatory, appeals courts have permitted review when a trial court’s oral ruling “is sufficiently comprehensive and clear” that written facts would be a mere formality. Does the Court of Appeals decision conflict with the plain reading of the statute and this Court’s ruling in In re Beedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999)?
2. Was trial counsel ineffective for failing to present a diminished capacity defense where the facts support evidence of a mental condition, which may have prevented the requisite intent necessary to commit first degree theft?

 

State v. Hayes

Court of Appeals Case No.: 43207-2-II

Supreme Court Case No.:  89742-5

Issues:

1. May a trial court impose an exceptional sentence based upon the jury returning special verdicts finding defendant’s crimes to be major economic offenses under RCW 9.94A535(3)(d), when the trial court’s instructions to the jury permitted it to convict based upon accomplice liability?
2. As this Court’s decisions in McKim and Silva-Baltazar instruct that a sentencing enhancement provision may sometimes be applied to an accomplice even though that term does not appear in the statute, did the Court of Appeals erroneously find that the absence of the term “accomplice” in RCW 9.94A.535 precluded applicability of those aggravating circumstances to any accomplice?
3. When the ‘‘major economic offense” aggravating circumstance under RCW 9.94A.535(3)(d) is defined as one where a crime has additional factor beyond the elements that more fully describes the nature of the crime committed – as opposed to an aggravating circumstance that focuses on an aspect of the defendant’s actions, motivation, or intent – may the jury’s finding that the offense was a “major economic offense” be applied to any participant in the offense?

 

Scanlan v. Townsend

Court of Appeals Case No.: 69106-6-I

Supreme Court Case No.:  89853-7

Issue:

In this case a process server retained by the plaintiff gave the summons and complaint to Ms. Townsend’s father at his home, which was not Ms. Townsend’s usual abode, and with whom Ms. Townsend did not reside. Ms. Townsend’s father later gave the documents to Ms. Townsend. The Court of Appeals held that upon receiving the summons and complaint, Ms. Townsend’s father became the process server, and thus service was accomplished when Ms. Townsend’s father gave her the documents. Did the Court of Appeals err in expanding the definition of “process server” to include any adult who was given the summons and complaint at a place other than the defendant’s usual abode, who did not reside with the defendant, and who may not have knowingly consented to being a process server?

Did the Court of Appeals err in holding that the plaintiff need not comply with the statute for service of process, RCW 4.28.080(15), which requires that the person receiving the documents, if not the defendant herself, be served at the defendant’s abode while currently residing there?

 

 

Grove v. PeaceHealth St. Joseph Hosp.

Court of Appeals Case No.: 69556-8-I

Supreme Court Case No.:  89902-9

Issue:

When a plaintiff identifies a number of health care providers, supplies expert testimony as to the common standard of care that applies to all of them, and adduces evidence that one or more of them breached that standard of care and proximately caused the plaintiffs injury, may a jury find the providers’ principal vicariously liable under RCW 7.70.040?

 

 

Martin v. Dematic d/b/a Rapistan, Inc.

Court of Appeals Case No.: 68132-0-I

Supreme Court Case No.:  89924-0

Issues:

1. The applicable limitations period does not begin to run until a claim accrues, and a claim does not normally accrue until the plaintiff discovers all facts giving rise to the claim. In Orear v. International Paint Co., 59 Wn. App. 249, 796 P.2d 759 (1990), rev. denied, 116 Wn.2d 1024 (1991), the Court of Appeals held that knowledge of a defendant’s identity is necessary for accrual. In the decision below, the court held that the Martin family’s claims against a corporate defendant accrued before they discovered its identity as the successor to the company that installed a machine that killed their husband and father. Is the decision below erroneous?
2. Once the plaintiff has filed the summons and complaint and served them on one defendant, RCW 4.16.070 tolls the applicable limitations period as to all remaining defendants. In Sidis v. Brodie Dohrmann, Inc., 117 Wn.2d 325, 331, 815 P.2d 781 (1991 ), this Court stated that tolling under this statute would apply to unnamed or fictitiously named “John Doe” or “ABC Corporation” defendants “if identified with reasonable particularity.” In Powers v. WB. Mobile Services, Inc., 177 Wn. App. 208, 311 P.2d 58 (2013), the Court of Appeals followed the Sidis dictum and tolled the limitations period as to a fictitiously named “John Doe” defendant. In the decision below, the court declined to recognize the Sidis dictum, and held that the limitations period applicable to the Martin family’s claims was not tolled as to the corporate successor of a company named in their original complaint. Is the decision below erroneous?
3. A nonparty amendment relates back to the date of the original complaint for purposes of the applicable limitations period as long as it arises out of the same transaction or occurrence described in the complaint. Does an amendment identifying the corporate successor of a company named in the original complaint change the party against whom a claim is asserted? Or, does it merely correct a misnomer regarding the name of the party against whom the claim is asserted?
4. In order for an amendment changing the party against whom a claim is asserted to relate back to the date of the original complaint for purposes of the applicable limitations period, there must be a lack of “inexcusable neglect.” In Perrin v. Stensland, 158 Wn. App. 185, 201-02, 240 P.3d 1198 (2010), the Court of Appeals equated inexcusable neglect with “a strategic choice rather than a mistake.” In the decision below, the court equated inexcusable neglect with a lack of knowledge regarding a series of complex and non-public corporate mergers and acquisitions. Is the decision below erroneous?