The Stoel Rives Appellate Law Blog
[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
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 December 23, 2000. The case captured media attention when the press reported that post-trial surveillance videos showed Jones engaging in physical activities (e.g., playing horseshoes) the City alleged were inconsistent with his testimony at trial. The trial court refused to grant a new trial. The Court of Appeals affirmed in an unpublished opinion. The City petitioned the Washington Supreme Court for review based on the surveillance video and the new evidence that Jones was an alcoholic and that his drinking interfered with his recovery.
Continue Reading Washington Supreme Court Affirms Firefighter’s $12.75 Million Verdict Against City of Seattle
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…
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
