Washington Legal Roundup
Four new opinions out of the Supreme Court today, I will attempt to make short order of them to get back to avoiding writing this summary judgment opposition.
In a 5-4, the court denied certiorari on a petition relating to the placement of I-1029 on the November ballot. I-1029, if you recall, related to certification and training of long-term care workers.
(I will step out of reporting mode here and say, generally, that the measure was a horrible idea pragmatically. The majority of long-term care workers are entry level in position. In a system already struggling to get enough nurses cranked out due to a shortage, requiring certification and training of long-term care workers would be cost-prohibitive to those workers and result in a greater shortage. The result would be a sharp decline in quality of care. I actually had the opposite view on an initial reading, but after talking with several health care professionals, changed my tune. This, of course, coming from someone who has seen egregious errors in long term care at the hands of these workers, but which I attribute to a motivation of profit over people, which results in understaffing in all positions. Back to the regularly scheduled programming.)
The problem with the petitions submitted to the secretary of state: Though I-1029 was submitted as an initiative to the people, the language on the petitions themselves indicated that it was an initiative to the legislature. The Secretary of State decided to allow the petitions in, remaining concerned that the people should have the power of initiative granted under the constitution.
(This opinion just keeps forcing me out of my narrative. While I generally think that the state should seek to repeal the I&R process -- the number of times it is used in the name of hate or to kowtow to small groups through deceptive wording is mind-blowing -- until that point, the State should respect the color of the constitution, and not just the letter.)
In any event the standard really only called for substantial compliance statutorily, which was met here. Unfortunately, the initiative passed because, as most voters do, they hadn't thought out the repercussions of the law. Time will tell the results.
The well reasoned dissent by Justice Fairhurst reasons that the missing language on the petitions was non-discretionary. However, I think it fails to take into account the constitutional implications.
(One last side note, the initiative included a background check provision. That part I whole-heartedly agree with.)
If there's one thing I loved about having worked at the Washington Supreme Court, it was the family law cases. Of course, by loved, I meant wanted to reach across time and space and pimp-slap these horrible parents. I am saying all this pre-emptively, as I have only read the case title, and not the case itself. Be forewarned.
Well what do you know. Its actually a case about the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the act, the state that makes the initial custody determination keeps jurisdiction for any modifications.
This is actually a story of things going right. Child born to girl, state takes kid away and tried to terminate rights. Kid goes to foster family. State takes away rights. State overturns that decision, finding due process required the girl have counsel in the formulation of her treatment plan. Girl gets her act together, gets her GED, gets her N.A.C., and goes through a reunification program. She moves to Spokane with her kid.
The foster parents tried to get custody by filing an action to modify the parenting plan in Washington. However, under the UCCJEA, the action can only be brought in the child's home state. The home state in this case was still Montana, as the child had not continuously resided in Washington for six months, however, the court ruled on other grounds. Quite simply:
Under the UCCJEA, a Washington court may modify Montana's initial child custody determination only if either Montana declines jurisdiction or all parties have left that state. RCW 26.27.221.
The court went on, in its conclusion, to offer a gentle hand and, what I feel, is an accurate summation of the process generally:
Child custody cases are often disturbing. We are concerned both for parents who wish to raise their children free from interference and for the welfare of the children who are often bounced from one custodial situation to another. We regret the delay that these proceedings may have had on A.C.'s custody determination; but until Montana has divested itself of jurisdiction over A.C., issues concerning A.C.'s custody are properly for Montana, not Washington, to decide.
Man goes to periodontist. Man request no cow bone. Cow bone is used. Man brings CPA claim. CPA claim summarily dismissed. Court of appeals reinstates. Supreme court reverses court of appeals, smacking down the CPA claim. Medical battery and negligence claims were also involved, but settled.
The elements of a CPA claim are: (1) an unfair or deceptive act or practice that (2) occurs in trade or commerce, (3) impacts the public interest, (4) and causes injury to the plaintiff in her business or property, and (5) the injury is causally linked to the unfair or deceptive act.
The court held as a matter of law that the use of cow bone in a medical procedure did not occur in trade or commerce. The court first looked the legal profession and the application of the CPA there. The court noted that those aspects applicable to CPA claims include "how the price of legal services is determined, billed, and collected and the way the law firm obtains, retains, and dismisses claims." In Quimby v. Fine, 45 Wn. App. 175, 180, 724 P.2d 406 (1986), the court found no reason to differentiate between CPA claims involving the legal profession in CPA claims involving the medical profession. As such, the choice of what materials to use in the medical profession falls outside of the CPA's ambit.
The housing association had been renting a hotel with an option to buy. Unfortunately, after several extensions on the option, the association was unable to pony up the purchase price. The association stopped paying rent and the owners brought an unlawful detainer action. The trial court and court of appeals concluded the association was not entitled to arbitration because the arbitration clause expired with the rest of the option. The supreme court affirmed ultimately, but on grounds of waiver.
Essentially, the right to arbitration can be waived if not timely invoked. The association, in the unlawful detainer action, raised the option as a defense, but did not then seek arbitration, instead waiting to seek arbitration in a separate action after the court found against them in the unlawful detainer action:
OHA defended the unlawful detainer action by raising as a defense the very same issue it now seeks to arbitrate: whether the option to purchase had been properly exercised. The trial court ruled that the option had expired. Only after that time, and in a separate action, did OHA seek arbitration.
Simply put, we hold that a party waives a right to arbitrate if it elects to litigate instead ofarbitrate. OHA's conduct of submitting its claim that it exercised its option as a defense to the unlawful detainer action was completely inconsistent with an intent to arbitrate. We hold that OHA did waive any claim it may have had to arbitrate by presenting the same issue -- whether it had successfully exercised the option to purchase -- before the unlawful detainer court. Having lost that issue,it may not later seek to relitigate the same issue in a different forum.