Marlin J. Appelwick

In Morrison v. Department of Labor & Industries, electrical contractor John Morrison challenged eight citations totaling $4,000 issued by the Department for violations of electrical laws. He sought to appeal to the Electrical Board but refused to pay the $200-per-citation filing fee required by RCW 19.28.131, claiming the requirement violated due process under the state and federal constitutions because it created a financial barrier. The superior court rejected the constitutional claim, found the fees imposed a hardship, reduced the total fee to $200, and remanded the appeal to the Board contingent on payment. The Court of Appeals affirmed, holding that because Morrison's interest was solely economic rather than a fundamental liberty interest, the monetary prerequisite to appeal did not violate due process. The court also upheld the fee reduction under the trial court's inherent equitable authority and awarded Morrison his superior court filing fee as the prevailing party.

business & regulatorylabor & employmentprocedure

Wendy Birnbaum sued Pierce County under RCW 64.40 after the county took roughly five years to approve her 2005 application for a conditional-use permit to build an RV park and campground. The county had returned the initial application in 2006 for insufficient information on site plans, traffic, and other details, allowing Birnbaum either to appeal or submit revisions; she chose the latter and received final approval in March 2010. The trial court dismissed the complaint under CR 12(b)(6), and the Court of Appeals affirmed. The court held that any claim for exceeding the county’s 120-day decision deadline had to be filed within 30 days after that deadline (as tolled for information requests) rather than after the eventual permit issuance, that statutory “damages” cover only losses incurred between the accrual of a cause of action and the grant of relief, and that the 2006 hearing-examiner decision did not bar the later claims under collateral estoppel or LUPA.

business & regulatorypropertyproceduretorts & liability

The case concerned whether Seattle Police Officer Danny Allen, injured while working off-duty directing traffic at a construction site, was an employee of Gary Merlino Construction Company or the City of Seattle for purposes of a workers’ compensation claim. The Department of Labor and Industries initially allowed the claim against the City but denied it against Merlino; the Board of Industrial Insurance Appeals and the superior court reversed, finding Merlino was the employer. The Court of Appeals affirmed, holding that Merlino was Allen’s employer because it exercised the right to control the details of his work—assigning him specific locations and tasks, setting his hours, and directing him on site—while Allen consented to that employment by accepting the assignment, reporting to Merlino supervisors, and being paid directly by the contractor. The court found no such control or consent existed with respect to the City, which had no knowledge of the off-duty assignment and did not direct Allen’s conduct.

labor & employment

The case concerned whether the Central Puget Sound Growth Management Hearings Board had authority under the Growth Management Act (GMA) to review two 2010 Black Diamond city ordinances that approved master planned development permits for large projects proposed by Yarrow Bay. The Board had asserted jurisdiction, treated the ordinances as development regulations or subarea plans subject to GMA review, and remanded them to the city for further compliance proceedings after a citizens group challenged them. The court reversed, holding that the Board lacked jurisdiction because the 2010 ordinances merely approved site-specific project permits that were consistent with the city’s unchallenged 2009 comprehensive plan and MPD development regulations. Under controlling precedent such as Woods v. Kittitas County, the GMA does not authorize Board review of such permits; any challenge must instead proceed under the Land Use Petition Act in superior court and cannot collaterally attack the prior, unappealed 2009 enactments.

environmentpropertyprocedurebusiness & regulatory

In Griffith v. Seattle School District No. 1, two special education teachers at Green Lake Elementary were suspended for 10 days without pay after refusing to administer the federally mandated Washington Alternative Assessment of Student (WAAS) portfolio to six eligible students, despite explicit instructions from their principal and missing a key December deadline. The teachers claimed their actions aligned with parental wishes or that the test was inappropriate for their students, but a hearing officer found they had declined on principle rather than because of documented parental refusals. The Washington Court of Appeals affirmed the hearing officer’s decision, holding that the insubordination constituted sufficient cause for the unpaid suspension under state law. The court reasoned that the findings of principled refusal were supported by evidence, including the teachers’ own emails and statements, and that the district’s chosen discipline was neither arbitrary nor contrary to law.

labor & employment

Chris Young sued three Puyallup Tribal Police officers in Washington state court after his brother died during an encounter at a tribal treatment center on the reservation. The brother had acted erratically, refused to leave, and resisted officers who detained him with a stun gun and restraints; the medical examiner ruled the death accidental due to excited delirium syndrome. Young alleged excessive force, wrongful death, and civil rights violations under 42 U.S.C. § 1983. The trial court dismissed the case under CR 12(b)(1) for lack of subject matter jurisdiction, and the Court of Appeals affirmed. The court held that tribal sovereign immunity barred the suit because the officers acted within the scope of their official tribal authority to enforce law and maintain order on reservation land, with no waiver or congressional abrogation, and § 1983 does not reach tribal officials acting under color of tribal law.

civil rightsproceduretorts & liability

In State v. Mandanas, the defendant, convicted of second degree assault and felony harassment with firearm enhancements after a 2004 altercation, appealed following resentencing on a prior remand for same criminal conduct. The court held that Mandanas could not raise a new double jeopardy challenge to his convictions in this second appeal. The reasoning is that issues that were or could have been raised in the first appeal are barred in a subsequent appeal, the convictions had become final, and the resentencing did not reopen review of the convictions themselves; the proper avenue for such a claim would instead be a personal restraint petition. The court affirmed.

criminal lawprocedure

The case concerned a preelection challenge by American Traffic Solutions, Inc. (ATS), which had contracted with the City of Bellingham to install automated traffic safety cameras under an ordinance authorized by RCW 46.63.170. ATS sought a declaration that Initiative No. 2011-01—requiring both city council and voter approval before any such system could be used—was beyond the scope of local initiative power and asked to enjoin its placement on the ballot; the trial court rejected the claim, granted the initiative sponsors’ anti-SLAPP motion, and awarded fees and a statutory penalty. The Court of Appeals held that the initiative exceeded the lawful scope of local initiative power because the legislature had expressly granted the city council, not the voters, authority to enact and administer the camera program, rendering the measure an improper attempt to reallocate that authority. It therefore reversed the trial court’s rulings on the initiative’s validity and the anti-SLAPP motion (vacating the fee award) but denied injunctive relief, concluding that an invalid initiative could not cause ATS the actual and substantial injury needed for an injunction.

electionsprocedurefree speech

The case concerned whether Olympic Tug & Barge, which provides bunkering services by transporting fuel from refineries to ocean-going vessels in Washington waters, could claim a public utility tax deduction under former RCW 82.16.050(8) for that activity. The Department of Revenue denied the deduction on audit, the Board of Tax Appeals upheld the denial after a formal hearing, the superior court reversed in Olympic’s favor, and the Court of Appeals reversed the superior court. The court held that the fuel did not qualify as a commodity “forwarded . . . to interstate or foreign destinations” because it was delivered to the vessels for their own consumption rather than being transported onward in its original form without intervening movement. It further ruled that collateral estoppel did not apply from an earlier informal Board decision, as the Department had no opportunity for judicial review in that proceeding.

taxesprocedurebusiness & regulatory

In State v. Taylor, the defendant appealed his conviction for failure to register as a sex offender, which was based on his 1988 guilty plea to third-degree statutory rape under a statute repealed in 1988. The Court of Appeals of Washington reversed the conviction, concluding that the prior offense did not meet the definition of a "sex offense" under the applicable registration statute (former RCW 9A.44.130), which incorporates the Sentencing Reform Act's requirement that the conviction be a current violation of chapter 9A.44 RCW. The court applied plain-meaning statutory interpretation to determine that the repealed provision was not coextensive with the replacement offense of rape of a child and thus did not trigger registration duties, even though the defendant had been charged and tried under the registration law. It also addressed preservation of the issue on appeal under RAP 2.5(a)(3) as implicating due process and proof of every element of the crime.

criminal law

The case concerned whether National Surety Corporation had a duty to defend Immunex Corporation under an umbrella liability insurance policy in over 20 lawsuits alleging that Immunex had fraudulently inflated the average wholesale prices of its drugs, giving rise to claims under RICO, state unfair trade statutes, fraud, and related theories. The trial court granted summary judgment to National Surety on the duty-to-defend issue, finding no coverage triggered under the policy's personal-injury or advertising-injury provisions, and the Court of Appeals affirmed that ruling. On the cross-appeal, the court held that National Surety remained obligated to reimburse Immunex for defense costs incurred up to the date of the coverage ruling unless it could prove prejudice from late notice at trial. The core reasoning rested on the policy language, the nature of the underlying claims, and Washington precedent governing an insurer's duty to defend and the effect of delayed tender.

business & regulatoryproceduretorts & liability

This case involved two settled lawsuits alleging sexual abuse by employees of the Corporation of the Catholic Archbishop of Seattle, in which the plaintiffs' law firm had obtained documents through discovery under a stipulated protective order. After settlement, the Archdiocese moved to enforce the order's requirement that the confidential documents be returned or destroyed, while the law firm sought modification to retain them for use in other pending similar cases against the same defendant. The trial court denied the motion and modified the protective order to permit retention, subject to the original confidentiality terms and subject to rulings by the judges in the other cases. The Court of Appeals affirmed, holding that the protective order expressly allowed modification and that the trial court did not abuse its discretion by modifying it to avoid duplicative discovery while deferring specific discoverability questions to the other courts.

proceduretorts & liability

Amy Rimov sued Mary Schultz for damages and equitable distribution of property accumulated during their personal and professional relationship, claiming a prior release of claims was invalid. Schultz moved to dismiss under CR 12(b), arguing that the parties' submission of the release validity issue to a retired judge constituted binding arbitration under Washington's Uniform Arbitration Act, chapter 7.04A RCW, barring the complaint. The trial court denied the motion, finding no agreement to arbitrate existed. The Court of Appeals affirmed, reasoning that the parties had agreed only to a non-binding advisory process outside the scope of the arbitration statute, so the Act did not apply.

procedurefamily lawproperty

In this case, Harley H. Hoppe & Associates sought to compel King County to release Department of Revenue tax ratio audits for personal property under the Public Records Act, believing the audits would reveal preferential tax treatment for certain corporate taxpayers. The County refused, citing exemptions in the Public Records Act and property tax statutes that protect taxpayer information, and the trial court granted summary judgment to the County. On appeal, the court addressed both the merits and procedural issues arising from prior dismissals and reentries of judgment. It held that the audits qualify as confidential tax information under RCW 84.08.210 and RCW 42.56.230(3)(b), that redaction could not overcome the exemptions, and that disclosure would risk unfair competitive disadvantage to the audited taxpayers. The court affirmed the trial court's ruling that the documents were exempt from disclosure.

taxesprocedurebusiness & regulatory

The case concerned Bryan Allen's appeal of his felony harassment conviction arising from an alleged threat made to a witness during a street encounter in which the witness identified Allen as the perpetrator. Allen challenged the trial court's refusal to give a proposed jury instruction on the reliability of cross-racial eyewitness identifications, claimed improper vouching by the prosecutor for the complaining witness's credibility, and argued that the charging document and to-convict instruction were defective for omitting the element of a true threat. The court affirmed the conviction, holding that no specialized cross-racial identification instruction was required where there was no expert testimony on the subject and the defense could still argue the issue, that the prosecutor's remarks did not constitute improper vouching, and that the information and instructions adequately stated the elements of the offense. The decision rested on due process standards requiring instructions that allow parties to present their theories supported by the evidence, along with review of the specific record showing limited testimony on identification difficulties.

criminal lawprocedure

In State v. Njonge, the defendant was convicted of second degree murder following a trial in which the court limited public access to the courtroom during voir dire due to space limitations and concerns about potential juror bias from observing family members of the victim. Njonge appealed on the ground that the exclusion of observers violated his right to a public trial under the Sixth Amendment and article I, section 22 of the Washington Constitution. The Court of Appeals reviewed the issue de novo, determined that a closure had occurred without the trial court making the required findings under the Bone-Club factors, and reversed the conviction. The court noted that the public trial right extends to jury selection proceedings and that the lack of a formal closure order or objection did not cure the constitutional violation.

criminal lawprocedurecivil rights

In this medical malpractice case, the plaintiffs alleged that a misdiagnosis of laryngeal cancer led to the unnecessary removal of Mr. Diaz's larynx and sued multiple healthcare providers including Dr. Futran and UW (who settled pretrial for $400,000) as well as Dr. Kini and MCL. The issue on appeal was whether evidence of that settlement, including the amount, could be admitted at trial under RCW 7.70.080. The Court of Appeals held that the statute expressly permits any party to introduce evidence of compensation the plaintiff has received from collateral sources in health-care injury actions, superseding the common-law collateral-source rule, and that the trial court correctly admitted the evidence with a limiting instruction. It therefore affirmed the jury verdict for the remaining defendants and the denial of a new trial.

healthcareproceduretorts & liability

The case involved the Marina Condominium Homeowners Association suing The Stratford at the Marina, LLC, for construction defects arising from the conversion of an apartment complex into condominiums, with the sole claim on appeal being breach of the implied warranty of quality under the Washington Condominium Act. The trial court granted partial summary judgment to the HOA on liability and a set amount of damages, then later imposed a default judgment on the remaining claims as a discovery sanction. The Court of Appeals reversed both judgments, holding that the summary judgment motion improperly included defects for which Stratford was not responsible as a matter of law and that the record did not justify the harsh sanction of default, while affirming an award of CR 11 sanctions and remanding for further proceedings.

propertyprocedure

The case involved a teacher, Denise Frisino, who claimed a disability under the Washington Law Against Discrimination due to respiratory sensitivity to environmental factors like mold and chemicals in school buildings. She sued the Seattle School District for failing to accommodate her condition after transfers and remediation efforts at two schools and for retaliatory discharge. The trial court granted summary judgment to the District, but the Court of Appeals reversed, holding that material questions of fact existed regarding whether the District had provided reasonable accommodation and whether Frisino had adequately communicated any remaining issues. The court reasoned that evidence about the effectiveness of mold remediation, the adequacy of offered classroom alternatives, and ongoing communications between the parties precluded dismissal as a matter of law.

labor & employmentcivil rights

Denise Frisino, a teacher, sued the Seattle School District under the Washington Law Against Discrimination for failure to accommodate her disability of respiratory sensitivity to environmental factors like mold and chemicals, and for retaliatory discharge after she took medical leave. The trial court granted summary judgment to the District, but the Court of Appeals reversed, holding that material questions of fact remained on whether the District had provided adequate accommodation through measures such as classroom transfers, air testing, and mold remediation at Nathan Hale High School, and whether Frisino had sufficiently communicated any remaining concerns. The court noted ongoing disputes about the effectiveness of the remediation efforts, the implications of conflicting medical opinions on her condition, and the District's decision to terminate her after she refused to return to work. The opinion focuses on the employer's interactive process obligations and the need for factual resolution at trial rather than summary disposition.

labor & employmentcivil rights