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Issaquah Law Group - Injury Litigation Attorneys

TRUST: Personal injuries are personal. Which is why the attorneys at ILG treat every client and every case differently. Because they are different, and extremely personal. ILG was founded on the principle that strong client relationships are the key to successful legal representation and strong relationships are built on trust. Trust that you will be heard. Trust that you will be protected. Trust that every effort will be made to see justice done in your case. The singular goal of every ILG attorney is to earn and preserve that trust.

EXPERIENCE: ILG attorneys have a broad base of litigation experience to draw on in all Federal and State courts from on-the-ground investigations to Supreme Court appeals and we bring this experience to bear on behalf of our clients in personal injury and wrongful death claims arising out of motor vehicle accidents, bus versus pedestrian accidents, defective and dangerous products, medical malpractice, slip/trip and fall accidents, and catastrophic losses due to fire.

LOCATION: We are located on the Eastside in Issaquah, convenient to Bellevue, Redmond, Kirkland, Renton, Sammamish and North Bend. However, we provide legal services in King County, Pierce County, Snohomish County and throughout the entire state of Washington.

In addition, through The Amateur Law Professor Blog and LinkedIn postings, we share pertinent opinions and decisions of the Washington State Supreme Court, as well as the pertinent opinions and decisions of the Washington State Courts of Appeal so that our clients can be as update to date on cutting legal issues as we are.

Filtering by Category: WA Court of Appeals

WA Court of Appeals - Div. I: Sex Offenders Can Be Ordered to Stay Away from Kids

State v. Williams

I'm linking to the unpublished version of this on Google Scholar, but rest assured its now published. Unfortunately, Google Scholar is behind and doesn't have the published version of this up.

This opinion shouldn't come as a surprise. He was convicted of rape of a child in the third degree, then was homeless and failed to register. A small problem when you're trying to make sure someone doesn't reoffend. After picked up for failing to register, the trial court placed a no-contact with children unsupervised into his sentence. Oddly enough, Division I found that no contact with children is related to the crime of failing to register as a sex offender for an underlying offense of raping a child. Weird, I know. They really had to stretch the bounds of legal interpretation to get to that one. Darned activist judges.

Because this is quite possibly the shortest opinion outside of denial of review, The Prof is going to get crazy and post the whole thing after the jump. Watch out! You never know what may happen next!



Appelwick, J.   --  This appeal presents a single issue: whether a court may prohibit a defendant from unsupervised contact with minors as a condition of a sentence for failure to register as a sex offender. Finding no error, we affirm.


Because Calvin Williams had a conviction for rape of a child in the third degree and was homeless, he was required to report weekly to the King County Sheriff's Office. When he failed to report, the State charged him with failure to register as a sex offender contrary to RCW 9A.44.130(11)(a). The jury found him guilty as charged. The trial court sentenced Williams to 57 months. The court also ordered Williams to have no unsupervised contact with minors for five years. Williams did not object.

Williams appeals the trial court's imposition of the condition prohibiting unsupervised contact with minors.


We review the imposition of crime-related prohibitions for an abuse of discretion. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001). We will reverse only if the decision is manifestly unreasonable or based on untenable grounds. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993); State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981).

Williams challenges the court's imposition of a five-year prohibition against unsupervised contact with minors. He argues that this condition is not directly related to the crime of failure to register as a sex offender, in violation of RCW 9.94A.505(8). We disagree.

The trial court entered the prohibition regarding contact with minors as a condition of Williams's sentence for failing to register as a sex offender. RCW 9.94A.505(8) provides: "As part of any sentence, the court may impose and enforce crime related prohibitions and affirmative conditions as provided in this chapter." Crime related prohibitions are defined as "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." Former RCW 9.94A.030(13) (2007).

The existence of a relationship between the crime and the condition "'will always be subjective, and such issues have traditionally been left to the discretion of the sentencing judge.'" State v. Parramore, 53 Wn. App. 527, 530, 768 P.2d 530 (1989) (quoting David Boerner, Sentencing in Washington, § 4.5 (1985)). No causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime. State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992) (citing Parramore, 53 Wn. App. at 527). In Parramore, the court affirmed a community supervision condition as directly related to his drug conviction, despite the absence of evidence of whether the defendant actually used drugs. 53 Wn. App. at 532.

"Circumstance" is defined as "[a]n accompanying or accessory fact." Black's Law Dictionary 277 (9th ed. 2009). The crime of failure to register as a sex offender cannot exist in a vacuum. Rather, it is inextricably linked to the underlying crime here, rape of a child in the third degree. The nature of Williams's underlying conviction was an accessory fact properly considered by the court at sentencing. Thus, the prohibition against unsupervised contact with minors was reasonable, because it was directly related to the circumstances of the crime of failure to register.

In State v. Riles, the court held that an order prohibiting one of the two defendants from having contact with minors was questionably overbroad where the defendant was convicted of raping an adult. 135 Wn.2d 326, 352, 957 P.2d 655 (1998). The court held, "There is no reasonable relationship between his offense and the provision for no contact with minors. There is nothing in the record to indicate he is a danger to children now or predictably would be upon his release from prison earlier or in thirty or forty years." Id. Here, the record shows that Williams may be a danger to children now and upon his release. Riles is distinguishable.

The court did not abuse its discretion in entering the prohibition regarding contact with minors as a condition of Williams's sentence for failing to register.

We affirm.

LAU, and DWYER, JJ., concur.

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WA Court of Appeals - Div. I: Confrontation Clause Requires the Witness, Not a Piece of Paper for DOL Testimony

State v. Jasper

I apologize for the link to the Washington Courts site. Google Scholar is slacking with its polling, even though this opinion was entered almost a week ago.

Anyhow. Jasper was driving. He didn't have a license. Because the Prof is cheap and lazy and doesn't know how to add youtube to this properly, I will instead just give you a link to the kid from the Charlie Bit Me Video....his name is Jasper and he's pushing Charlie around in a car. Its the first thing that came up, and its super cute!

Anyhow, you can imagine what Jasper was charged with...not the cute Jasper in the video, the abstract one in the opinion.

So the State, to prove that there was no license came up with an affidavit from the DOL saying they did a search and found no valid license. Unfortunately, it's hard to cross-examine an affidavit. This tends to violate the confrontation clause, which requires an opportunity to cross-examine. The supreme court analyzed our law in relation to the recent United States Supreme Court Case of Melendez-Diaz:

The affidavit is not merely a certification that the agency records attached to the affidavit were true and correct copies of records possessed by the DOL. Without question, such a statement would be of the type approved by Melendez-Diaz. 129 S. Ct. at 2539; see, e.g., United States v. Mallory, __ F. Supp. 2d __, 2010 WL 1286038, *3 (E.D. Va. 2010) ("[T]he FedEx custodian's certification in this case does not comment on the content or meaning of the record. . . . [and] does not attempt to describe or decipher the content of the business record" but merely certified that the attached documents were true copies of records kept in the regular course of business).

Instead, the affidavit herein contains ex parte statements made for the purpose of establishing the fact that Jasper was driving with a suspended license on the day of the collision. The affidavit first asserts that the affiant performed a diligent search, implying that the person searching the records knew what records to search for, knew how to find them in the database, and conducted the search correctly. The affidavit next states that Jasper's license was suspended on a particular day. This statement explains what the results of the records search revealed and what the witness concluded from the records searched. These statements are testimonial because they constitute factual assertions, intended to prove an element of a crime charged. They are not mere statements of the authenticity of the attached records themselves. The affidavit also contains an indirect assertion regarding the non-existence of a record, impliedly asserting that no agency records exist indicating either that Jasper avoided suspension of his license by properly attending to the prior citations referenced in the two letters or that his license was ever reinstated following such a suspension. A statement asserting that a particular record does not exist, when offered to establish that fact, is testimonial.

Let's hope Jasper remembers to get his license...and hopefully some insurance...before his next crash.



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Court of Appeals: Div. II – Defendant Did Have a Clue As To His Guilty Plea, Despite Claim of Incompetency

State v. DeClue

Thomas DeClue pled guilty to second degree manslaughter and first degree unlawful possession of a firearm. DeClue later moved to withdraw his guilty plea because he claimed he was on medication and thus was unable to knowingly, voluntarily, and intelligently waive his constitutional rights. I guess you could say he didn’t have DeClue as to what he was doing! Sorry, I couldn’t resist.

Get a clue

The trial court held an evidentiary hearing and several people testified as to DeClue’s competency at the time he plead guilty. A nurse from the jail testified that DeClue had taken several medications at different times including Vicodin, BuSpar, Skelaxin, and Seroquel. I guess incarceration wasn’t too painful.

DeClue testified that the medications made him feel like a zombie and he wasn’t able to process information. Others, including inmates at the jail, also testified that DeClue was drowsy and couldn’t concentrate. However, DeClue’s attorney when he entered the plea testified that DeClue was sharp, astute, paid attention, and had no problems communicating. The judge also reviewed a videotape of the plea. The judge held that entry of the plea did not violate DeClue’s constitutional rights. DeClue appealed.

DeClue contended that since he claimed he was not competent to enter the plea, the statute required that a competency hearing was required not an evidentiary hearing. “If a defendant supports his motion to withdraw a guilty plea with substantial evidence of incompetency, the trial court must either grant the motion or hold a formal competency hearing under RCW 10.77. 060.” The important part of this rule is that the claim must be supported by “substantial evidence of incompetency.” If substantial evidence is lacking, then the motion is denied and no competency hearing is required.

DeClue’s claim that the judge made an error by having an evidentiary hearing rather than a competency hearing failed. The evidentiary hearing was held for the purpose of exploring DeClue’s claim that he was not competent. That exploration ended in a finding that there was no substantial evidence of incompetency and thus no competency hearing was necessary.

DeClue also challenged the trial court’s finding that he was competent. However, given the nurse’s testimony that DeClue didn’t appear intoxicated, DeClue’s attorney’s testimony, and the judge’s own recollection (with assistance from video) of the plea, the Court of Appeals could not find that the judge abused her discretion. Affirmed! Get a clue.

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Court of Appeals: Div. III – Teacher’s Use of School Computer for Lobbying Is Grounds for Dismissal

Knudsen v. Washington State Executive Ethics Board

Knudsen is apparently a take charge kind of person. She even represented herself in the appeal of this case. But sometimes this type of approach can get you into trouble. Knudsen was a teacher at Spokane Community College (SCC). She sent an email from an SCC computer urging recipients to pursue approval of two pending bills that would provide tenure-like protections to part time college teachers. Knudsen was a part time college teacher. Was.

The email violated school policy, state statutes, and administrative code for using state resources for lobbying. Although Knudson did not agree that her email was lobbying, she was unable to present evidence that the email was within the scope of her duties as an English teacher. The Washington State Executive Ethics Board entered a finding that Knudsen had violated school policy, state statutes, and the administrative code. Knudson did try to argue that the email was sent on behalf of her union, but then contradicted herself when she testified that the union had made no efforts to lobby on behalf of this legislation. Knudsen appealed to the Superior Court and then to the Court of Appeals.

The Washington Administrative Code allows for de minimis personal use of state resources, EXCEPT if the use is “for the purpose of participating in or assisting in an effort to lobby the state legislature, or a state agency head.” WAC 292-110-010.

Knudsen argued that the school’s email policy violated her free speech rights. However, her argument was procedurally incorrect, as the Board did not consider the email policy when it made its determination; it only considered the statute and the WAC. Thus the Court of Appeals could not consider the constitutionality of the school’s email policy. The Court agreed, but analyzed her argument anyway:


The constitution allows the regulation of protected speech in certain circumstances. For example, speech in public forums is subject to valid time, place, and manner restrictions that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. In contrast, speech in nonpublic forums may be restricted if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral


Since the email system was a nonpublic forum and application of the statute and WAC was reasonable and viewpoint neutral, there was no constitutional violation

So in an attempt to protect her teaching position, Knudsen lost hers.  Class dismissed!  Or should I say “Claim dismissed!”


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Court of Appeals: Div. III – Gang Affiliation and Witness Intimidation Not Prejudicial for This Walmart Shopper

State v. Saenz

Mr. Saenz was a member of a gang called the Bell Garden Locos in Sunnyside, Washington. Saenz got into a verbal altercation at Walmart with two 15 year old members of a rival gang, the Lower Valley Locos. Walmart makes me crazy too. I become a member of the Low Price Locos and our motto is “I don’t care how cheap it is, get me the hell out of here!”  And their logo is a smiley face…I don’t think so.

Walmart guy

The parties left the store and Saenz had a friend, Guillen, pick him up to pursue the two rivals. They found the rivals driving through the parking lot. Saenz started shooting and the two rivals exited their vehicle and ran. Saenz shot one of them in the back. The other fell while trying to escape and put his head through the glass door at Ace Hardware.

Saenz and Guillen escaped, but were later turned in by a relative. Guillen agreed to testify against Saenz for a plea deal. Saenz was charged with two counts of first degree assault and one count of unlawful possession of a firearm. At trial, the State sought admission of Saenz’s gang affiliation. “The court found that three detectives had specific knowledge of language, formation, affiliation, and overall gang structure. The trial court allowed the detectives to testify regarding gangs and gang activity to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.”

The State also sought to introduce evidence of witness intimidation. Saenz had been sending messages to Guillen while they were both in jail. Saenz wanted Guillen to take responsibility for the crimes because he wouldn’t get as much time. Guillen was warned that if he didn’t take the rap, then he and his family would be harmed. Guillen was assaulted in the jail by a group of inmates who were “sending a message.” The court allowed the evidence regarding witness intimidation to show guilty knowledge of the crimes and participation.

Saenz was convicted on all charges and the State sought to have Saenz sentenced to life in prison without the possibility of parole because he was a persistent offender. The judge disagreed that Saenz was a persistent offender because Saenz had plead guilty to second degree assault and custodial assault when he was 15 years old. When Saenz plead guilty to these charges he signed a stipulation declining juvenile jurisdiction and specifically waived the requirement of a declination hearing. Saenz was represented by counsel when he plead guilty. However, the judge who took the plea failed to make any findings regarding the declination of juvenile court jurisdiction or Saenz’s waiver. So the trial court in the present case concluded that these convictions did not qualify for purposes of persistent offender status because there was no express waiver of juvenile jurisdiction. Saenz had one other serious offender conviction, but the statute requires two convictions for persistent offender status.

Saenz appealed the admission of gang affiliation evidence and witness intimidation. The State appealed the court’s failure to sentence as a persistent offender.

Since the trial court had weighed the probative value of the evidence of gang affiliation against its prejudicial impact and held that the evidence was being introduced to establish motive, intent, opportunity, and res gestae for the crimes charged, the Court of Appeals did not disturb the ruling. Similarly, the witness intimidation evidence was also properly weighed by the trial court and admitted.

Saenz also challenged the sufficiency of the evidence to convict him. However, given the testimony of the victim AND Saenz’s own homie that he was the shooter, the Court of Appeals held that the evidence was sufficient.

In addition, the Court of Appeals found that when Saenz entered his plea as a 15 year old, he knowingly and intelligently waived juvenile court jurisdiction. Thus he was a persistent offender under the statute and the trial court was reversed. Saenz will be getting LIFE! Maybe he can start a new gang called the Life Time Locos!


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Court of Appeals: Div. III – Court Holds City Must Haul Their Juveniles 158 Miles for Holding

City of East Wenatchee v. Douglas County

East Wenatchee must be a hotbed of juvenile crime. Douglas County had previously allowed East Wenatchee to hold juveniles in their holding facility at Chelan County (Douglas County had a contract with Chelan County). However, the juveniles could only be held at Chelan County until their preliminary hearing. After that, the juveniles were required to be held at a juvenile facility in Medical Lake, which is about 158 miles from East Wenatchee.

But these are hard economic times and counties are slashing costs everywhere. Douglas County was paying $110 per day for each of the East Wenatchee juveniles held at Chelan County. In addition, 70% of the Douglas County juveniles held at Chelan County were East Wenatchee cases. So Douglas County pulled the plug on their agreement with East Wenatchee. After December 5, 2005, East Wenatchee was required to haul the juveniles 158 miles to Medical Lake for holding. They should have made the juveniles ride bikes there…in shackles…in the hot sun…or cold snow; maybe it would deter them from committing crimes!

Snowing Bike 

Transportation to Medical Lake

East Wenatchee broke down and struck their own contract with Chelan County to hold the juveniles until transported to Medical Lake. What a weird name for a lake. Want to go swimming in Medical Lake? I don’t think so.

East Wenatchee filed suit against Douglas County seeking an order requiring Douglas County to pay for holding juveniles at Chelan and for transporting them to Medical Lake. On cross motions for summary judgment the trial court ruled in favor of Douglas County holding that their juvenile holding facility was Medical Lake and East Wenatchee was responsible for transporting their juveniles there.

RCW 13.16.030 requires that counties provide juvenile detention facilities. Douglas County has a juvenile detention facility. The statute does not require that the county place it in a convenient location. East Wenatchee made several arguments citing Attorney General opinions on detaining arrestees, however all of these opinions dealt with cities booking arrestees into jails of the county for which the cites are located. Here, East Wenatchee wanted to book the juveniles into Chelan County; East Wenatchee is in Douglas County. Even though the Chelan County facility is conveniently located 3 miles from East Wenatchee, there is no authority for allowing them to hold their juveniles there. Judgment affirmed.

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Court of Appeals: Div. III – Six Months Not “Shortly After”…This Time

State v. Combs

This one is nice and short. Combs was released from prison on a drug possession charge. Six months later he was charged with attempting to elude a police officer. RCW 9.9A.535(3)(t) allows a court to impose an exceptional sentence if the “defendant committed the current offense shortly after being released from incarceration.” This is referred to as “rapid recidivism.” Say that five times fast!

This case came down to what does “shortly after” mean? Is it a week? A month? Six months? The Court of Appeals held that considering the facts of this case, six months was not “shortly after.” But they weren’t going as far as to draw a line in the sand at six months for every case. The reasoning being that if the defendant had no opportunity to re-offend for six months or immediate access to the means to re-offend (i.e., it takes a while to find contraband), then it could be considered “shortly after.” In addition, some crimes “require a lengthy period of time to plan or come to fruition.” It takes time to knock over a liquor store! Combs exceptional sentence was reversed.

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Court of Appeals: Div. III – Assault Was Part of Rape and Thus Cannot Convict for Both Crimes

State v. Williams

This is a lovely story about a swell guy (note sarcasm). Floyd Williams was convicted on two counts of rape and one count of second degree assault with sexual motivation, which involved two victims. The cases had been consolidated and tried together. The trial court admitted testimony from the victim of Floyd’s prior rape conviction. Floyd was sentenced to life imprisonment as a persistent offender based on these convictions and the prior rape conviction.

Floyd appealed the admittance of the prior victim’s testimony. In addition, Floyd claimed that the assault charge should have merged with the rape charge.

Evidence Rule 404(b) prohibits evidence of other crimes to show that the defendant acted in conformity with that character-had a propensity to commit this crime. But evidence of prior crimes may be admitted for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Since the facts of the earlier rape were very similar to the facts of both the recent rapes, the trial court held that it showed a common scheme and the prejudice of the testimony was minimal. The Court of Appeals agreed.

Next Floyd argued that he could not be convicted of both assault and rape as the assault was part of the rape and the assault had no independent purpose. Since the assault on the victim before and during the rape is what raised it to the level of First Degree Rape, Floyd couldn’t be convicted of both charges. There was merger of the two crimes and thus the conviction for assault was vacated. Boy, I bet ole Floyd was glad to get that assault off his record. I mean what would his employer think?

Three strikes and you’re out Floyd. Out for life! Floyd also made some Pro-se arguments including that the forensic lab who conducted the tests on the victims had a history of making mistakes. But at trial he argued that the sex was consensual. Nice try Floyd.

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WA Court of Appeals at Div. II: Bailbondsperson testimony exclusion improper under ER 615

State v. Skuza

Note: This opinion is not the standard Google Scholar link, but to Washington Courts. As such, it will expire after ninety days.

In presenting a defense to bail jumping, Skuza was allowed to have a bailbondsman testify. He had a conversation with the bailbondsperson, where she related what her testimony would be to Skuza. The transcript on this portion is worth the read. However, the conversation didn't on its face violate ER 615 and the exclusion is reversible error to that count only:

Here, however, the trial court erred because there was no evidence that Spencer violated ER 615. The trial judge stated that he had seen Skuza and Spencer together in a smoking area near the court and heard a portion of a conversation between them.  But the trial court failed to conduct a hearing regarding the circumstances of the interaction.  Spencer, Skuza, and the trial judge were not questioned about the interaction or their observations of it.  The trial judge made a statement, which was not subject to cross-examination, about what he had witnessed and the results of legal research the trial court extern had conducted.  Counsel discussed the effect of the trial judge's observation on whether Spencer could be called as a defense witness in the proceeding but did not discuss the fact that the trial judge had inadvertently become a witness in the proceeding.  Skuza had no opportunity to question the trial judge about his observations, call Spencer to testify about the specifics of their contact, or research the law to provide a defense or authority against the sanction of excluding Spencer's testimony.

Moreover, the trial judge's description of the conversation did not identify specific exchanges that took place between Spencer and Skuza sufficient to warrant a finding that an ER 615 violation occurred.  The trial judge only described statements that Spencer made to Skuza about her testimony and made no reference to specific statements that Skuza made to Spencer about her intended testimony or his prior testimony.  It is possible that the conversation did not violate ER 615's intent, which is  "to discourage or expose inconsistencies, fabrication, or collusion."  Tegland, § 615.2, at 623.  Skuza had already completed his testimony in the case by the time of the alleged violation, so Spencer telling Skuza about her intended testimony did not give Skuza an opportunity to alter his testimony to match hers.

Without a thorough factual development of the circumstances of the conversation, the record is insufficient to establish that an ER 615 violation occurred.  On this record, the trial court erred when it applied the harshest possible sanction of excluding evidence central to the defendant's bail jumping defense.



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WA Court of Appeals at Div. II: Have to be under house arrest to get credit for it

State v. Dockens


(One Dokken is never enough...or maybe it is)

There's just something really satisfying about homophones. But enough about metal. Dockens contended that it was a violation of the equal protection clause to not give him credit for house arrest on his sentence. Seeing as he was never under house arrest, but on bail with a curfew, he doesn't get credit for house arrest. Second, he is not a member of a protected class.

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WA Court of Appeals at Div. II:

Yeakey v. Hearst Communications, Inc.


The 2006 Crane Accident in Bellevue, where a man was killed in his apartment, spawned a slew of news stories regarding crane safety. One of the stories involved the operator of the crane, Warren Taylor Yeakey, and alleged he had a history of drug abuse. He sued Hearst (operators of the Seattle Post-Intelligencer, a former print newspaper now exclusively online) for defamation when his drug test came back negative. Does he contend the PI spead anything untruthful (a requirement for defamation)? Not quite:

He argued that the juxtaposition of the article's statements with a photograph of the damage, a photograph of the deceased, and a graphic with bullet points contending "GAPS IN SAFETY CONTROLS" falsely implied that Yeakey's drug use, operator error, or failure to sufficiently perform safety inspections were factors in the collapse. CP at 11. He concedes that all the statements in the articles are true and that his claims are not based on a contention that facts were omitted from the articles.

Unfortunately, Washington only recognizes standard defamation, which means the statements have to be false:

But we have held that a plaintiff may not base a defamation claim on the negative implication of true statements. Lee v. Columbian, Inc., 64 Wn. App. 534, 538, 826 P.2d 217 (1991). Defamatory meaning may not be imputed to true statements. Lee, 64 Wn. App. at 538.

As a side note: I have, through looking for pictures examining truth, learned of Tarski's undefinability theorum. You should give it a read. Philosophy major's already know of Russell's utter destruction of Frege.

You may be wondering why I didn't include links to Tarski or Russell. Simply, a computer glitch that won't let me.'s_undefinability_theorem's_paradox

Happy philosophizing!

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WA Court of Appeals at Div. II: Scribbled Crappy CR 2(a) Dissolution Agreement Enforced Because Both Parties Want It to Be

Grimsley-Lavergne v. Lavergne

This is the first time I've heard of a record referred to as "abysmal". But there's no other way to describe this. It's essentially a dissolution CR2(a) stipulation written on a bar room napkin:

On September 21, 2004, Mark, Teresa, and their attorneys attended a mediation with former King County Superior Court Commissioner Harry Slusher. The 11-hour mediation resulted in a partially typed but mostly scribbled document identified as a "CR 2A stipulation and agreement" signed by each party, the attorneys, and Slusher. The CR 2A agreement addressed many marriage dissolution issues including: (1) a parenting plan; (2) child support; (3) spousal maintenance; (4) extensive agreements on the distribution of personal property, real property, business property, and personal and business liabilities; and (5) ownership and management of the septic and plumbing business.

The CR 2A agreement is confusing; portions are interlineated, sections are crossed out, and some crossed-out sections have adjacent notes stating, "Back in." Clerk's Papers (CP) at 489-90, 493. The CR 2A agreement does clearly state, however, that "W will prepare final paperwork, incl. [the property settlement agreement]. W will do final presentation."

Anyhow, they end up having sex that night and staying together three years. Then she wants to enforce the agreement and he doesn't. Then he does. The court, understandably, is ticked that they didn't follow form in a dissolution:

Moreover, the record reflects that, although they did so at different times, Mark and Teresa each asked the trial court to enforce the CR 2A agreement. Accordingly, neither party has standing to argue that he or she is aggrieved by the trial court's enforcement of the CR 2A agreement and the entry of the final dissolution decree.

As we noted earlier, the trial court should have required the parties to comply with former RCW 26.09.070. The legislature expressly designed this statute to address the enforceability of parties' predissolution agreements. See generally former RCW 26.09.070. Moreover, former RCW 26.09.070 mandates that a predissolution separation contract be in writing and any terms of a parties' predissolution separation contract (except for parenting plans and child support) be incorporated into a decree of dissolution unless (1) the parties mutually intended to revoke the agreement or (2) the trial court finds the agreement was "unfair at the time of its execution." Former RCW 26.09.070(1), (4), (5), (8). Neither the trial court nor the parties addressed the statute.


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WA Court of Appeals at Div. II: Need to do a Motion to Suppress to Preserve Vehicle Search Issue

State v. Cross

As you recall, earlier we had a vehicle search issue come up. Here, there was no motion to suppress the gun. I'm still unclear on the timing here, but it sounds like this is the opposite of the previous, in that the area searched was exactly within the control. Center console which the driver dove for and a glove box in the control of the passenger that was heard shutting while the officer had the driver out of the car. So regardless of the fact that they didn't preserve the issue, it likely would have been the same result. We, of course, have virtually the same dissent as the last on the issue of waiver.

Conviction stands as do the enhancements (firearm of course).

For those of you wondering...I'm not going for the low-hanging fruit. That's why there's no David Cross picture up there. No, we here at The Amateur Law Professor keep things classy. That's why I now give you The Cross Gun!


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WA Court of Appeals at Div. II: Keep Things Separate and Distinct in Jury Instructions to Keep Convictions of More Than One Count.

State v. Carter

Carer is a pederass who raped his own daughter between the ages of 6 and 7 given my counts. Lovely guy, non? Unfortunately, the jury instructions didn't spell out which acts they were finding and subjected Carter to the possibility that the counts were based on the same opposed to several separate and distinct acts, which are required to avoid double jeopardy issues. As such, only one of the counts can survive.

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WA Court of Appeals at Div. II: Argument that Rick Astley is Not a White Guy Fails

State v. McGrew III

You may remember a way back there was a hullaballoo about an offender getting mad at getting a firearm enhancement when the jury found a deadly weapon. The court reversed because a deadly weapon could be something other than a firearm. Well here is the opposite problem. Well, not really a problem. A firearm is always a deadly weapon.

Let's see if we can break this down. I am white. Rick Astley is white. Consider a firearms enhancement like Rick Astley. Say a trial court said...hey, you're Justin, and therefore a white guy, and we will give you a white guy enhancement:

Photo on 2010-07-15 at 09.21.jpg

(IS a white guy)

But say it was even worse than being a white guy to be Rick Astley. And the court found that I was Rick Astley because it already found I was a white guy.



(NOT Justin)

However, you can say that if you find that a person is Rick Astley to begin with, that he is in fact a white guy. That's not only science, but it is me Rick-rollin' you!!!!

So needless to say, the fact that a firearms enhancement was found does in fact mean Rick Astley is a white guy (or that there was a deadly weapon involved). So needless to say, arguing a firearm is not necessarily a deadly weapon fails.

He also claimed that the firearm enhancement punished the same criminal conduct as the firearm charged. Unfortunately, this has come up before. A sentencing enhancement isn't a sentence, and thus falls outside double jeopardy.




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WA Court of Appeals at Div: II: Would the Real Party In Interest Please Stand Up?

Kim v. Moffett

Kim and his sons sought help of an Olympia architect to facilitate some California deals. Kim transferred the land to his sons. Kim then entered into the contract with Moffett for the services. He was the only contracting party, saying that it was between Kim and Moffett only. The sons weren't involved. Moffett moved to California, and wanted out of the agreement. Kim transferred the land to the partnership, sued, and then added the partnership as a Plaintiff. Kim didn't appeal dismissal of his and JME's claims, but his sons did. Held, the sons are not real parties in interest and can't enforce his personal services contract for an undisclosed principal:

As a contracting party, Kim could bring a claim alleging breach of his contract with Moffett for architectural services. While it remains to be seen whether Kim can prove a breach, the trial court erred in denying Kim that opportunity.

. . .

The nonassignability of personal services contracts as noted in the above cases is significant because such designation corresponds to the limits placed on the above stated general rule. This is so because the nature of the performance that a contract requires determines whether an undisclosed principal is entitled to receive that performance. See Restatement (Third) of Agency § 6.03 cmt. d (2006). Accordingly, Dana and Columbia state the applicable rule regarding "simple contracts," such as cash for goods. But because the present case involves a personal services contract, we hold that the trial court correctly ruled that an undisclosed principal may not enforce performance. See Restatement (Third) of Agency § 6.03 cmt. d (2006).

Seriously, how am I supposed to make this funny (aside from my brilliant, and not at all sophomoric, reference to Eminem)?

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WA Court of Appeals at Div. II: Notify All Interested Tribes Under ICWA

In re Welfare of L.N.B.-L., A.D.B.-L.

Ready for your daily bar prep? Under the Indian Child Welfare Act, when initiating termination proceedings, you must give notice to the tribes if they wish to intervene. This means all the tribes which have an interest. Here, the state failed to notify three interested tribes. The termination, as terminations do, will likely stand. The court, to fix the procedural error, took a rare step in affirming with a remand. The remand is to give proper notice to the three tribes not notified. If any wish to intervene, then there will be a do-over.

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WA Court of Appeals at Div. II: Notify All Interested Tribes Under ICWA

In re Welfare of L.N.B.-L., A.D.B.-L.

Ready for your daily bar prep? Under the Indian Child Welfare Act, when initiating termination proceedings, you must give notice to the tribes if they wish to intervene. This means all the tribes which have an interest. Here, the state failed to notify three interested tribes. The termination, as terminations do, will likely stand. The court, to fix the procedural error, took a rare step in affirming with a remand. The remand is to give proper notice to the three tribes not notified. If any wish to intervene, then there will be a do-over.

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WA Court of Appeals at Div. II: NIED Claim Survives Ecclesiastical Abstention

Erdman v. Chapel Hill Presbyterian Church

Under the ecclesiastical abstention doctrine, you usually let church employment matters be handled by the church. Anything less usually gets you into first amendment no-no zones. Same with this, a church employee who continually questioned her church's guided religious tours as not being in comport with the church's status as a non-profit.

Needless to say, her employment went south. Most of her claims fell under the abstention, with only her negligent supervision and retention claims surviving:

Analyzing this case under Bollard, we first note that the church has not offered a religious justification for Toone's alleged tortious acts. Instead, it has denied that any misconduct occurred and argues that both the ministerial exception and ecclesiastical abstention bar consideration of Erdman's claims. Second, in its employee handbook, the Church specifically recognizes its prohibition against sexual harassment. Third, the Church's Book of Order states that the Session possesses responsibility "to provide for the administration of the program of the church, including. . . fair employment practices." CP at 831. Thus, the Church's employment policies and church doctrine prohibit sexual harassment. Fourth, Erdman's negligent supervision and retention claims and the Church's potential defenses involve a limited, secular inquiry similar to the plaintiff's claims and potential defenses under Bollard.

The First Amendment does not bar Erdman's negligent supervision and retention claims against the Church. Thus, we remand for further proceedings.


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WA Court of Appeals at Div. II: If limited to not fair and impartial, holdout juror can be removed if she asks

State v. Hopkins

Hopkins was down at a Marina with a girl. An officer found his truck, knew it was a high-burglary area, and then found the two strolling. During questioning, she gave her ID, he didn't give his, then relented and went back to the truck to grab it. He was being a bit aggressive (stomping, shouting), while the girl just seemed embarrassed. While the cop was focusing on Hopkins, the girl pulled a knife and snuck behind the officer. Luckily for him, quick reflexes kept him safe, and he got both in custody without losing his life.

The issue came in deliberation. A juror (the one deadlocked juror of course, or this wouldn't be interesting) told the presiding that while she initially though she could be impartial, she was sure now that she couldn't. She asked to be removed. The judge was careful about not intruding on the deliberations, asking her typical for cause removal questions. She was excused and a verdict was returned.

Not improper.

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