Hunter Ferguson

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This Round’s On You: Washington Supreme Court Upholds Liquor License Fee Shortfall Scheme

Back in 2011 Washington voters approved I-1183 to allow the sale of spirits (hard alcohol or liquor) by certain private enterprises, ending the state monopoly over retail liquor sales.  The initiative created multiple classes of spirits distribution privileges.  Distributors operating under a “spirits distributor license” enjoy the broadest grant of authority to distribute spirits.  Other … Continue Reading

August Petitions for Review

Brooks v. BPM Senior Living Co. Court of Appeals Case No.:  69332-8-I Supreme Court Case No.:  90220-8 Issue(s): Whether an employer fulfills its duty to assist a disabled employee in seeking alternative employment in the company when the only ‘interaction’ with the employee is a single phrase in an e-mail stating the employer “would be … Continue Reading

Wash. S. Ct.: Medical Misdiagnosis Claims Separate and Distinct from Informed Consent Claims

By Sook Kim In Gomez v. Sauerwein, the Washington Supreme Court held that a medical negligence claim for misdiagnosis and a failure to obtain informed consent claim are mutually exclusive.  Justice Steven Gonzalez, joined by three other justices, concurred in the result but disagreed with the majority’s reasoning on this issue, arguing while alternative theories … Continue Reading

Wash. S. Ct. Clarifies Standard for Imposing Limitations on Parenting Plans

By Hunter Ferguson and Manmeet Dhami When considering a parenting plan, trial courts start from the premise that it is ordinarily in a child’s best interest to alter the existing pattern of parent-child interactions only to the extent necessary because of the parents’ changed relationship from physical, mental, or emotional harm.  But, as is the … Continue Reading

Petitions for Review – June 5, 2014

State v. Cates Court of Appeals Case No.:  68759-0-I Supreme Court Case No.:  89965-7 Issue(s): A community corrections officer (CCO) may not search a probationer’s home or personal effects without a warrant unless the officer has reasonable cause to believe the probationer violated a condition of community custody or committed a crime.  Did the Court … Continue Reading

Vested Developer Rights Can Survive Even When Land Use and Zoning Laws Are Later Found Invalid

Washington’s vested rights doctrine guarantees that a land development proposal will be processed under the laws and regulations in effect at the time a complete permit application is filed.  In Town of Woodway v. Snohomish County, the Washington Supreme Court confirmed that the vested rights doctrine applies even where land use plans and development regulations … Continue Reading

District Courts Have Broad Discretion In Setting Probation Conditions: Wash. C. Ct.

In a case that emerged from tragic facts of a dogs killing weaker members of their pack and maiming a neighbor’s pet, the Washington Supreme Court issued two significant rulings concerning criminal sentencing last week. First, it unanimously ruled in State v. Deskins that district courts have broad discretion to impose conditions of probation. Second, … Continue Reading

Washington Supreme Court Affirms Ecology’s Decision That EIS for CO2 Emissions Unnecessary

From our colleague, Daniel Lee: In PT Air Watchers v. Wash. Dep’t of Ecology, the Washington Supreme Court unanimously upheld Ecology’s decision not to require an Environmental Impact Statement (EIS) under the State Environmental Policy Act (SEPA) for an energy cogeneration project. The project, proposed by the Port Townsend Paper Corporation, would increase woody biomass … Continue Reading

Statutory Interpretation Based On Plain Language Does Not Stop With “Literal, Word-By-Word Interpretation Bereft of Context”

[Note: This post was drafted by Litigation Partner Vanessa Power] In Ellensburg Cement Products v. Kittitas County, et al., the Washington Supreme Court in an en banc ruling held that when a county provides a procedure for appealing a determination under the State Environmental Policy Act (SEPA), the county must provide at least one open … Continue Reading

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

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 … Continue Reading

Washington Supreme Court – December 10 Conference

The Washington Supreme Court granted review in the followoing four cases at its December 10 conference: State v. Russell, No. 89253-9 Issue: 1.  A nonconsensual, warrantless, protective frisk is permitted only when a frisking officer has an objectively reasonable belief, based on specific and articulable facts, that a suspect is armed and presently dangerous. Was … Continue Reading

Don’t Take Your Guns to Town: Washington Supreme Court Upholds Firearm Ban

The Washington Supreme Court recently upheld the application of a state law prohibiting individuals accused of committing “serious crimes” from possessing firearms while free on bond or personal recognizance awaiting trial.  In State v. Jorgenson, the Court concluded that public safety considerations may justify the temporary suspension of an accused individual’s right to possess firearms … Continue Reading

Public Hospital Med Mal Plaintiffs from the Last Three Years Can Breathe Easy

Last week the Washington Supreme Court extended a life preserver to plaintiffs who brought med mal claims against public hospitals between July 1, 2010 and December 27, 2012 without giving the hospitals 90-days presuit notice. The Court withdrew its earlier opinions in McDevitt v. Harborview and clarified that its ruling upholding the presuit notice requirement … Continue Reading

Washington Supreme Court Breaks New Ground with Independent Duty Doctrine

Donatelli v. D.R. Strong Consulting Engineers, Inc. [Wash. Sup. Ct. No. 86590-6] A five justice majority in this case continued to develop the “independent duty doctrine” in Washington. That doctrine has superseded the “economic loss rule,” which previously limited recovery of economic damages to contract claims and recovery of non-economic damages to tort claims. According … Continue Reading

Washington Supreme Court Holds that Governor’s Cancellation of an Inmate’s Parole Does Not Violate Due Process

From our colleague, Rita Latsinova: The State Supreme Court upheld RCW 9.95.160, which permits the governor to cancel the parole granted by the Indeterminate Sentencing Review Board, in a due-process challenge by an inmate whose parole had been approved and release date set by the Board but abruptly cancelled by the governor, who also denied … Continue Reading

Washington Supreme Court Recognizes Executive Privilege

Yesterday the Washington Supreme Court recognized that the governor enjoys a qualified executive communications privilege.  In Freedom Foundation v. Gregoire, the Court held that executive privilege is necessary to facilitate candid advice to the governor and is therefore inherent in the state constitutional principle of separation of powers.  Thus, the executive privilege functions as a … Continue Reading

Summary of Cases Granted Review at Washington Supreme Court’s October Conference

At its October 1, 2013 conference, the Washington Supreme granted review to four cases. We provide a summary of the issues presented in each case below. State v. Owens Supreme Court No. 88905-8 Court of Appeals No. 67867–1–I PFR & Answer Issue: Whether the Court of Appeals properly reversed a conviction for First Degree Trafficking … Continue Reading

Anxious Trial Witness Permitted to Testify in Presence of Comfort Dog

At issue in State v. Dye (PDF) was whether a criminal defendant is denied a fair trial by allowing a developmentally disabled victim to testify with the assistance of a comfort dog.  Such trial management decisions are reviewed for abuse of discretion.  Based on the evidence presented to the trial court at a hearing on the … Continue Reading

Prosecutors May Consider the Strength of Evidence of Guilt in Deciding Whether to Seek the Death Penalty

In State v. McEnroe, the Washington Supreme Court ruled that prosecutors are not prohibited by statute from considering the evidence of guilt in deciding whether to seek the death penalty. Prosecutors must consider mitigating factors, and they also have discretion to consider other factors, including the strength of the evidence. Such consideration, the Court explained, … Continue Reading

Washington State Supreme Court – September 3, 2013 Conference

The Court granted review in three cases at its September 3 conference. Case Background Issues Fergen v. Sestero 88819-1 Court of Appeals Opinion In this med mal case, the treating physician testified that he considered two different diagnoses before incorrectly diagnosing his patient as having a benign cyst. The patient had a malignant tumor and … Continue Reading