In State v. Pena Fuentes, the State Supreme Court again condemned “the odious practice of eavesdropping on privileged communication between attorney and client” in criminal matters, as it had previously done in State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963).  Though the Cory court held that such misconduct is presumably prejudicial, in Pena Fuentes the court further held that the presumption is rebuttable if the State can prove the absence of prejudice beyond a reasonable doubt.
Continue Reading These Walls Shouldn’t Have Ears: State Supreme Court “Appalled” by the Need to Remind State that It May Not Eavesdrop on Private Conversations Between a Defendant and His/Her Counsel

[Note:  This post was drafted by Litigation Partner Jill Bowman]

The DCPA, chapter 61.34 RCW, is a remedial consumer protection statute intended to protect homeowners who, because they are in desperate circumstances, may be vulnerable to predatory schemes designed to deprive them of their equity interests.  The statute’s procedural safeguards are afforded to transactions involving

In State v. Kipp, a unanimous court reversed a defendant’s conviction because the trial court admitted a recording of a conversation that was protected by Washington’s privacy act.  A six Justice majority further ruled that Washington’s privacy act requires appellate courts to review de novo trial court decisions that a conversation was not private.  In a win for the amicus ACLU, the court emphasized that Washington’s statutory privacy protections trump law enforcement expediency.
Continue Reading Even Creeps Have a Right to Privacy: Appellate Courts Must Decide For Themselves Whether Conversations Admitted into a Criminal Trial Were Private or Not

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?

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.


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

The Washington Supreme Court recently ruled that a parentage order is a custody decree that cannot be modified without adequate cause and a change of circumstances.                       

Background: In Parentage of C.M.F. the superior court issued a parentage order that designated an individual as the father, named C.M.F.’s mother “custodian solely for purpose of other

The Washington Supreme Court, through identical five-Justice majorities, announced two decisions expanding the definition of parent in the state.  In In the Matter of the Custody of B.M.H., the Court held that the judge-made concept of “de facto parenthood” still existed in Washington even though the legislature had subsequently recognized additional forms of families.  The Court then specifically held that former step-parents may get full parental rights over a non-biological child as a de facto parent.  In the related In the Matter of the Custody of A.F.J., the Court held that foster parents may also become de facto parents.  While the Court affirmed a four-part test to determine whether an individual had become a de facto parent, in both decisions, the Court’s key concern was whether the legal parent had consented to the arrangement.
Continue Reading Be Careful Who You Let Change the Diapers: Caregivers May Become “De Facto Parents”

International Marine Underwriters v. ABCD Marine, LLC

The IMU opinion is an interesting example of legal gymnastics.  The lead opinion engages in “interpretation” followed by “construction” – distinguishing between the two – in order to give meaning to the operative insurance policy.  It then applies Washington partnership law to ascertain the relationship between a partner and a general partnership to determine whether the partner was a “third party” and therefore entitled to coverage.  The concurring opinion simplifies the issue, although it is still far from simple, and the dissent accuses both the lead opinion and the concurring opinion of misunderstanding partnership principles.  Although not joined by a majority of justices, the lead opinion is likely to be useful precedent in other cases involving complex contract interpretation/construction issues. 

Continue Reading General Partnership Partners Are Not Third Parties For Insurance Coverage

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 consistent with both the Washington Constitution, art. I, § 24, and the Second Amendment to the U.S. Constitution. 

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

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 to the majority opinion, described in greater length below, a contracting party can have a duty in tort to another contracting party if and only if the duty is independent of the agreement. If the contract is unclear, then it must be interpreted by a trier of fact before dismissal based on the independent duty doctrine is proper. As explained by the four-justice dissent, this analysis is unnecessary to the independent duty doctrine, cannot be harmonized with the parties’ agreement, and is not supported by settled principles of contract law. Consistent with those legal principles, the dissent would limit the plaintiff to contract damages where, as here, the parties’ agreement encompasses the risk of harm that is claimed.
Continue Reading Washington Supreme Court Breaks New Ground with Independent Duty Doctrine