WA Legal Roundup
4 new opinions out of Washington State's highest court today. Seriously, stagger this a bit folks, I have a real job too!
This is a land use case. Those of you that have been reading for a while know that I refuse to blog on these for no other reason than I find them extremely boring. Seriously, I'm yawning even having typed the title alone. If you don't believe me, have a look. And yes, I still think land use attorneys are nerds.
In what shouldn't come as a surprise. The court reaffirmed its longstanding view that your trust accounts should never be overdrawn. It also reaffirmed its longstanding view that if you are investigated as a result of a trust account being overdrawn, you had damned better participate fully in the investigation and be forthcoming with the tribunal. Oh, and you can't overcharge your clients.
The court, in a 9-0 decision, suspended Jeffrey G. Poole from the practice of law for one year, followed by a two year suspension.
It never fails to amaze me that attorneys have such problems with these basic premises. It seems every other disciplinary case involves trust accounts and being forthcoming with the tribunal. Its like watching a bad batman crook that makes the same mistake that every other Batman crook makes...over and over again. You're no different than every other person who tries to hide the evidence, you WILL be found out eventually, no matter how many times you paint your face in clown makeup and say into the mirror, "Why so serious?"
In the interests of me not wanting to spend my whole day blogging, forcing me to work on real things until midnight, I will make this brief (can't you just see my patience wearing thin...the next case will be written like Solomon Grundy talks).
Part of Bahl's sentence included terms of community custody, including:
- Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
- Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising Community Corrections Officer and therapist except as provided for therapeutic purposes.
The court of appeals refused to hear a challenge as there was no accusation of violation, Bahl then sought review on the basis of overbroadness and vagueness. Bahl had initially argued that the restrictions ere unconnected to the crime (Rape), but did not make that argument to the supreme court.
The court first addressed the ripeness issue, holding for Bahl, in that courts routinely reviews sentencing conditions pre-enforcement, and other courts have had no problem doing the same with pre-enforcement vagueness challenges. The court essentially followed the 3d Cir. decision and reasoning in United States v. Loy, 237 F.3d 251 (3d Cir. 2001).
Looking to the 2d Cir., the court looked to cases where the phrase pornographic material was found not vague where applied to those convicted of child pornography, but vague where the underlying offense did not involve pornography. The 9th Cir., the court pointed out, rejected the "pornographers can smell their own" argument (my words, not their), instead finding the term pornography to be entirely subjective. The state argued that, while this may be the case, the RCW actually defines pornography. However, the statute in question defined "lewd material," a not exactly subtle distinction when we're talking First Amendment jurisprudence. The court did not side with Bahl on his challenges to "frequent", "visit often", or "sexually explicit", siding with statutory and dictionary definitions, along with case law.
Finally, the court found that the sexual stimulus to your deviancy provision was vague as well, because it cannot be identified which materials may be sexually stimulating to his deviancy when no deviancy has been identified.
The matter was remanded for sentencing.
In a 7-2 decision, the court held that assault, where it elevates a taking to robbery, merges in this case. The court followed its decision in State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005), taking a case-by-case approach. This time, they found no reason to deviate from Freeman and decided the charge was in fact barred by double jeopardy merger principles.