WA Legal Roundup
Yes, yes, I know I've been slacking. Here's some new opinions out of Divs. I & II, as well as the Washington Supreme Court from the 18th. Due to the sheer number, these will be brief unless something of note.
Nothing interesting. This is a contract dispute with issues of whether material issues of fact existed. The court held that, as to the issue of whether the employee handbook provided for specific treatment and whether a bona fide dispute bars exemplary damages, that issues of material fact did exist. As to whether AK USA could unilaterally amend the compensation agreement, there were none (an employer can do so prospectively in an at-will employment contract).
The trial court had set child support at the advisory amount. The problem? The father did not spend time with the children, which is a factor in an upward departure from the advisory amount. The court tried to apply a requirement of extraordinary need for an upward departure. Those of you familiar with family law may be going, "Whaaaaat?" So did the court of appeals. Reversed on abuse of discretion. The court also laid out the standard:
In Daubert, the court held that findings in support of an award above the advisory amount "must explain why the amount of support ordered is both necessary and reasonable." The court explained that to determine whether the support is necessary, courts should consider "the special medical, educational and financial needs of the children," and to determine whether the support is reasonable, courts should consider the parents' income, resources, and standard of living.
A rental for less than 30 days (vacation rental) is not a business, but is a residential use. Thus, no violation of a covenant limiting to residential use.
A felon completed the requirements of his sentence in 2002. He petitioned in 2007 for a certificate of discharge, asking the court to date it to 2002, when the requirements were complete. The court instead dated it 2007, when it received the petition. The certificate HAS to dated when the sentencing court receives notice that the requirements have been met, which needed more facts, requiring a remand.
Drugs were found in the Terry stop; the officers articulated a reasonable suspicion. And the story.
State v. Berg
Berg was convicted of two counts of rape of a child in the third degree. The jury instructions did not inform the jury that a separate act was needed to convict on multiple counts. Berg had only committed one act. Thus, one of the counts was vacated. However, the court did not find that statutory maximum sentencing was violated, nor did it find that testimony was wrongly admitted or the Berg had ineffective counsel due to failure to object. Finally, the court found no error with the sentencing condition that he not have contact with his biological daughter, given that the molestation had occurred with what was essentially his stepdaughter.
State v. Linerud
The sentencing court did not make an initial determination of sentence length, instead instructing DOC simply cannot exceed the statutory maximum. The court held that doing such created an indeterminate sentence, in violation of the Sentencing Reform Act.
The trial court did not error when it allowed the trial testimony of the defendant to be played during jury deliberations. It weighed the factors in State v. Koontz, 145 Wn.2d 650, 41 P.3d 475 (2002):
Reviewing videotaped testimony raises greater concerns than reading from a transcript because videotaped testimony allows the jury to hear and see more than the factual elements contained in a transcript.
. . . .
. . . the unique nature of videotaped testimony requires trial courts to apply protections against undue emphasis that consider both the effect and the manner of video replay. Trial courts must consider how the replay can be limited to respond to the jury's request and the procedures necessary to protect the parties.
Protections to prevent undue emphasis in the manner of video replay may include replay in open court, court control over replay, and review by both counsel before presentation to the jury. Other protections may include the extent to which the jury is seeking to review facts, the proportion of testimony to be replayed in relation to the total amount of testimony presented, and the inclusion of elements extraneous to a witness' testimony. A determination to allow videotape replay should balance the need to provide relevant portions of testimony in order to answer a specific jury inquiry against the danger of allowing a witness to testify a second time. It is seldom proper to replay the entire testimony of a witness. These considerations are not exhaustive but should be evaluated before a videotape replay is presented to a deliberating jury.
Washington Supreme Court
In a win for Paul Lester Stritmatter, with amazing briefing by Garth Jones (I know, I know...tooting our collective horn here), the Court held in a 9-0 (fasttracked I believe) that sending certified mail giving notice of cancellation insurance policy does not satisfy the mailed requirement of RCW 48.18.290. I know you may be scratching your head, thinking, "How the heck does certified mail not satisfy this requirement?" The reason is this: mail can be dropped off in your mailbox. Certified mail, if not initially delivered, goes to the post office until picked up and signed for. However, the court did hold that if certified mail was actually received, that it, for obvious reasons, satisfies the "actually delivered" prong of the statute.
For goodness sake, always act diligently, don't take funds out of the trust account when you're not supposed to, and cooperate with WSBA investigators if you do happen to mess up. Behrman will not be practicing law for the next nine months and was fined $500.