Category: Opinions

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State Supreme Court Curtails Post-Foreclosure Sale Invalidation, but Permits Other Relief

Washington State Supreme Court reverses Division II in part and holds that failure to meet conditions to terminate a foreclosure sale and further appeal the trial court’s ruling constitutes a waiver of the right to challenge the foreclosure sale, but not other post-sale relief in Frizzell v. Murray, No. 87927-3. Background and Analysis Despite her … 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 That doctrine has superseded the “economic loss rule,” which previously limited recovery of economic damages to contract claims and recovery of non-economic damages to tort claims.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


State of Washington v. Bao Dinh Dang [Wash. Sup. Ct. No. 87726-2] The Washington Supreme Court issued a unanimous opinion that held that persons acquitted of a crime by reason of insanity and granted conditional release under medical supervision may only have their conditional release terminated if the court determines they are dangerous.  Without a … Continue Reading

A Purse Is Part of a Person, Even When the Person is Locked in a Police Car and the Purse is Not

At issue in State vs. Byrd is whether a police officer violated federal and state privacy rights by searching a defendant’s purse incident to arrest after the defendant was secured in a police car and the purse was left on the ground outside the vehicle.  The Washington Supreme Court determined that the search did not violate either … Continue Reading

Washington Supreme Court Strikes Down Department of Ecology Reservations of Water Uses that Conflict with Minimum Water Flow Levels for the Skagit River System

In Swinomish Indian Tribal Community v. Washington State Department of Ecology (PDF), the Washington Supreme Court determined that the state Department of Ecology (Ecology) overstepped its statutory authority by issuing an Amended Rule for the Skagit River which both established minimum water flow levels and set aside 27 reservations allowing users to draw on the water even … 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

Washington Supreme Court Holds Alford Plea Will Support a Death Penalty Verdict

In re Cross [Wash. Sup. Ct. No. 79761-7] The Washington Supreme Court unanimously held in this opinion that a capital sentence can be predicated on an Alford plea.  The court explained that the “advantage” of entering an Alford plea in a capital case is to preserve the ability to argue in the penalty phase that … Continue Reading

No Prejudice Where Jury Received Charging Instructions Not Included in Original Charging Information

In the Matter of the Personal Restraint of Benjamin B. Brockie, No. 86241-9 (Sept. 26, 2013) (en banc) Benjamin Brockie was charged by information for, among other things, first degree robbery.  Brockie’s charging information indicated that “in the commission of an immediate flight therefrom, the defendant displayed what appeared to be a firearm or other … Continue Reading

The Washington Supreme Court Embraces Teague v. Lane to Find Its Decision Against the Inevitable Discovery Doctrine Is Not Retroactive

The Washington Supreme Court held in In the Matter of the Personal Restraint of Haghighi that its 2009 decision State v. Winterstein, which invalidated the “inevitable discovery doctrine,” does not apply retroactively to old convictions. The Court then held that the petitioner’s ineffective assistance of appellate counsel claim was untimely and, as such, would not … Continue Reading

Washington Supreme Court Clarifies that Courts Must Resolve Disputes that go to the Validity of an Arbitration Agreement (e.g., Unconscionability) before Compelling Arbitration

In Hill v. Garda CL NW, Inc., the Washington Supreme Court reiterated that courts have the power and obligation to resolve dsputes going to the validity of arbitration agreements, unless an arbitration agreement clearly and unmistakably provides otherwise. Unconscionability is one such dispute, and the Court ruled that an arbitration agreement severely limiting the rights … Continue Reading

Supreme Court Recognizes Broad Discretion of Administrative Law Judges to Admit Evidence, Even if Inconsistent with Past Agency Position

In King County Public Hospital District No. 2 v. Wash. State Dep’t of Health, the Washington State Supreme Court recognized that administrative law judges have broad discretion to admit evidence in challenges to agency actions. Further, administrative law judges’ decisions on underlying agency actions are reviewed under the arbitrary and capricious standard, and the record supported 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

State v. Chen: The Ishikawa Factors Govern the Determination Whether Competency Evaluations Should Be Sealed

In State v. Chen, the Washington Supreme held that once a competency evaluation becomes a court record, it also becomes subject to the constitutional presumption of openness, which can be rebutted only when the trial court makes an individualized finding that the Ishikawa factors weigh in favor of sealing. The Court essentially balanced the public’s … 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

Brown, et al. v. MHN Government Services, Inc., et al., No. 87953-2 (Aug. 15, 2013) (en banc)

Brown, et al. v. MHN Government Services, Inc., et al. Opinion – August 15, 2013 Validity of Arbitration Agreements This case involved an agreement, labeled “Provider Services Task Order Agreement,” between two mental health professionals and their employer. The agreement contained, among other things, a “Mandatory Arbitration” provision and was governed by California law. After several years … Continue Reading