Washington Appellate Practice

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Under ER 404(b), evidence of prior bad acts is not admissible to show conformity with those acts.  In 2008, the Legislature carved out an exception to ER 404(b) by passing a bill that allowed evidence of prior sex crimes to be admitted in criminal sex cases.  But in 2012, the Washington Supreme Court held that this statute was unconstitutional.

Gower involves a bench trial that took place in 2009, after the Legislature’s ER 404(b) exception was in effect, but before it was held unconstitutional.  The State had charged Gower with a series of sex crimes relating to sexual contact with his minor step-daughter, SEH.  At trial, the State sought to admit the testimony of one of Gower’s other minor children, CM, and the trial court admitted CM’s testimony, stating that the evidence would have been inadmissible under ER 404(b), but was admissible under the statutory exception.  SEH also testified to her own experience at the hands of Gower.
Continue Reading State v. Gower: Anything is Reasonably Probable

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 coming from other vehicles on a highway.  Garcia eventually abandoned his vehicle and ran to a gas station to seek help.  Upon learning the gas station was closed, Garcia broke into the gas station with a cinder block, but fled after hearing he triggered the station’s alarm.  Garcia then went to homes nearby, and ended up at the home where the victim was asleep.  Garcia entered the home through an unlocked door, then spoke with and remained with the victim for two hours before one of Garcia’s friends picked him up.

The State charged Garcia with first degree kidnapping based on his interactions with the victim, and first degree criminal trespass and burglary in the second degree for breaking into the gas station.  The State successfully excluded Garcia’s statements to the victim as hearsay, and also introduced a police report containing hearsay statements from Garcia’s previous burglary conviction.  A jury convicted Garcia of all three charges, and the Court of Appeals affirmed.  Garcia appealed, arguing there was insufficient evidence to support the kidnapping charge and that the trial court’s above evidentiary rulings were erroneous.
Continue Reading State v. Garcia, Jr. – Not Enough Evidence for First Degree Kidnapping Conviction

[Note:  This post was drafted by Labor and Employment Associate Karin Jones]

The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60.  In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.


Continue Reading Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

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 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 record hearing. The Court rejected Kittitas County’s argument that it could create its own proceeding, or interpret SEPA to provide no open record hearing.

An individual landowner, Homer Gibson, applied to Kittitas County to amend a prior Conditional Use Permit (CUP) that would allow him to conduct rock crushing in addition to gravel extraction on his land. Based on the original CUP, Gibson had previously received a gravel extraction permit from the Department of Natural Resources (DNR). In seeking to amend the CUP, Gibson suggested that the CUP was not limited to a 13.4 acre parcel, but applied to all 84 acres of his land. Gibson also submitted to Kittitas County an altered SEPA checklist that referred to a mining area greater than that permitted by DNR. Ellensburg Cement objected to Gibson’s application and noted the discrepancies.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 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?

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…

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, 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

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Welcome to the Stoel Rives Appellate Law blog, dedicated to providing those in appellate law practices regular updates on significant decisions from courts of appeal within our regions of practice. It is our goal to build out this blog to be a handy resource for both keeping up to date on new decisions and quickly locating information about past decisions.