The Washington Supreme Court filed three opinions before the long Independence Day weekend.  All three garnered nine signatures for the majority with nary a dissent in sight.

Expedia, Inc. v. Steadfast Ins. Co. examines insurers’ duty to defend and will discussed in a seperate blog post.

In re Disciplinary Proceeding Against Petersen will be of interest to attorneys and others serving as Certified Professional Guardians.  The Washington Supreme Court confirmed that the Certified Professional Guardian Board may properly sanction guardians under the Washington constitution.  However, the Supreme Court will review whether Board sanctions are disproportionate to the misconduct if a guardian properly raises the issue before the Board itself.

In State v. France, the Court reaffirmed that criminal jury instructions do not create additional elements of a crime by including alternative definitions.  William France was convicted of felony harassment towards a former attorney after the jury received instructions that “to convict” France, they  had to find he made a threat of harm with no requirement of immediacy. However, the jury was also instructed that threat “also means” to communicate the “intent immediately to use force against any person who is present at the time.  The jury received no other definition of “threat.” France argued that he could not be convicted on these instructions because there was no evidence he communicated an intent to immediately use force.  The Supreme Court disagreed and affirmed his sentence.

France’s argument was based on “law of the case” doctrine.  This doctrine states that regardless of how the State can convict other people of felony harassment, once the jury received their idiosyncratic instructions, the State could only convict France of felony harassment if it proved France communicated an intent to immediately use harm against his former attorney.

The Supreme Court agreed that jury instructions could add elements to a crime under law of the case, but found that the jury instructions here did no such thing.  The Court categorized the instructed definition of threat as an “alternative definition” that did not modify threat as defined for purposes of felony harassment.  Therefore the jury was instructed that it could convict based on the normal statutory elements and law of the case did not apply.

The Court set a protective precedent for attorneys who receive harassing phone calls from disgruntled former clients. Even if alternative definitions find their way into jury instructions, juries can properly convict incarcerated individuals who threaten their attorneys. In order to get this result, the Court unanimously declared the only definition presented to these jurors to be an “alternative definition.”   Lawyers and other court watchers were left to ponder this question over the long holiday weekend:  If this was the alternative definition, what was the primary definition of threat presented to the jury?