Category: Opinions

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Seeking Absolutes in a World of Probabilities: Washington Supreme Court Finds Mesothelioma to be Risk of Asbestos Exposure Rather than a Certain Harm

In Waltson v. Boeing Co., a 5-4 majority of the Washington Supreme Court held that Boeing did not have actual knowledge in 1985 that asbestos exposure would cause certain injury and that its former employee was therefore only entitled to worker’s compensation payment for the cost of the mesothelioma that likely resulted from that exposure.  … Continue Reading

Lucky Defendant Gets a New Trial, Appellate Court Doesn’t Get to Rain on His Parade

In State v. Hawkins, the Supreme Court reinstated a trial court’s grant of a new trial for newly discovered evidence after the Court of Appeals overturned that decision.  The decision is highly fact specific, and fascinating for mystery buffs, but the take away is clear: just as defendants can’t lightly disturb trial court rulings against … Continue Reading

The ER Should Not Be a Warehouse for Disabled People

Washington has allowed people to be involuntarily detained if they are a risk to themselves or others or are gravely disabled under the Involuntary Treatment  Act (ITA) since 1977 – first for a short period of evaluation, then for treatment.   Close of observers of modern mental health trends will not be surprised to learn that … Continue Reading

Criminal Case Roundup: You Don’t Need Cash to Get Out on Bail and the Supreme Court Wants to Know Whether “Child Luring” is Criminal or Just Disgusting

In State v. Barton, the Washington Supreme Court examined the mandate found in Article I, section 20 of the Washington State Constitution that criminal defendants “shall be bailable by sufficient sureties.”  The Court interpreted the phrase to mean that a criminal defendant has the right to make bail by using a surety, i.e., a third … Continue Reading

In Renters v. Landlords, the County Clerk Wins

Renters want to vindicate their rights without fear of retaliation.  Landlords want to know as much as they can about the people who seek to live in their property.  In Hundtofte v. Encarnacion a fractured Supreme Court resolved a conflict between those two impulses in favor of the landlords.  Renters can force their landlord to … Continue Reading

Washington Won’t Second Guess Your Out of State Conviction.

In State v. Jordan, a unanimous Washington Supreme Court ruled that a trial court properly increased a defendant’s prison sentence because he had been previously convicted of manslaughter in Texas, even though Washington has more forgiving self-defense laws than Texas.   The court held that sentencing judges may properly consider the fact that a defendant was … Continue Reading

State v. Franklin – State Supreme Court Divided Over Discretion

In State v. Andre Luis Franklin, five State Supreme Court justices reversed a defendant’s convictions after concluding the trial court erred in excluding evidence to further the defendant’s “other suspect” defense.  The defendant, Franklin, was in pseudo-relationships with two different women, Hibbler and Fuerte, and the women had a history of jealousy with one another.  … Continue Reading

No comprende? No problema. Washington’s Supreme Court accepts poor performance by defense lawyer who didn’t speak the same language as his client

In the Matter of the Personal Restraint of Gomez, the Washington Supreme Court rejected a collateral attack on a mother’s conviction for killing her child through abuse. The Court ruled that the Spanish-speaking client did not deserve a new trial even though her lawyer only spoke English and also represented the child’s father in a … Continue Reading

Discretion Prevails: Trial Courts May Rule on Jury Instructions When Asked…or Not

In a unanimous decision, the Washington Supreme Court clarified Washington’s Criminal Court Rules by holding that it is within the trial court’s discretion to provide preliminary rulings on jury instructions during trial. The Court then affirmed Ronald Mendes’s second degree murder conviction after rejecting his argument that he was “compelled” to testify in his defense.… Continue Reading

State Supreme Court Upholds $57 Million Verdict for In-Home Care Providers

In a 5-4 decision, the Washington State Supreme Court upheld a Thurston County jury’s award of over $57 million to live-in individual care providers (“providers”). Eight of the nine justices agreed to overturn an additional $39 million in prejudgment interest the providers also received at trial. All of the justices agreed that the recipients of … Continue Reading

State v. Garcia, Jr. – Not Enough Evidence for First Degree Kidnapping Conviction

In State v. Garcia, Jr., No. 88020-4, the State Supreme Court unanimously reversed the defendant’s first degree kidnapping and second-degree kidnapping convictions and remanded for a new trial of those convictions, but affirmed the defendant’s criminal trespass conviction. The defendant, Phillip Garcia, Jr., believed he was involved in a car chase after hearing gun shots … 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

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 … Continue Reading

Under the Distressed Property Conveyance Act (DCPA), Whether a Property Is Sufficiently “At Risk of Loss Due to Nonpayment of Taxes” to Qualify as a “Distressed Home” Is a Question of Fact

[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 … 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 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 … Continue Reading

Does the Right to Counsel for Personal Restraint Petitions Mean Anything?

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 … Continue Reading

Can a corporate healthcare provider’s defense counsel communicate ex parte with the corporate defendant’s employee if that employee was also the plaintiff’s treating physician? Sometimes yes, sometimes no.

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 … 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. 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, … Continue Reading

Washington Court Starts to Count to Five, Stops at Four

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 … Continue Reading

Congrats, you’re a dad! The kid’s staying with mom.

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 state … Continue Reading

Washington Supreme Court Affirms Firefighter’s $12.75 Million Verdict Against City of Seattle

Last week, the State Supreme Court affirmed a $12.75 million verdict (including $2,422,006 for future care and $10 million in noneconomic damages) against the City of Seattle in favor of former Seattle firefighter, Mark Jones, who was injured when he fell 15 feet down the “pole hole” in a fire station at 3 a.m. on … Continue Reading

Be Careful Who You Let Change the Diapers: Caregivers May Become “De Facto Parents”

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 … Continue Reading
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