In 2009 the Court decided 120 cases. 59 were decided by unanimous decision while 17 were decided by a bare majority 5-4 vote. Among the Court’s most noteworthy decisions, it applied a flexible and purposive reading to statutory requirements regarding the initiative and referendum process, delivered a significant opinion applying the political question doctrine to an action seeking to compel the president of the Senate to forward a bill to the House of Representatives, and ruled that the right to counsel guaranteed by the Washington State Constitution is more expansive than the right to counsel guaranteed by the United States Constitution.
1. Community Care Coalition of Washington v. Reed – Community Care Coalition of Washington petitioned the Court to overturn Secretary of State Sam Reed’s decision to certify petitions submitted in favor of Initiative #1029 (which enhanced training and certification procedures for long-term care workers) to be placed on the November 2008 general election ballot. The petitioners asserted that although the initiative had been intended as an initiative to the people and processed by the secretary of state’s office as such, the petition forms failed to comply with the requirements of Washington Revised Code §29A.72.120 insofar as they contained contradictory language suggesting the initiative was both an initiative to the people and an initiative to the legislature. The Court, by a vote of 6 to 3 (with Chief Justice Alexander writing the majority opinion), disagreed and affirmed Secretary of State Reed’s certification of the petitions as petitions for an initiative to the people. The Court held that the secretary of state’s decision to give effect to the clear intent of the initiative’s sponsors and the likely intent of most of its signatories and to deem the petition forms to be in substantial compliance with statutory requirements for an initiative to the people was not arbitrary and capricious and had a reasoned basis. Justice Fairhurst, joined by Justices Owens and Sanders, dissented.
2. Washington State Major League Baseball Stadium Public Facilities District v. Huber, Hunt, and Nichols-Kiewit Construction Company – The Washington State Major League Baseball Stadium Public Facilities District, the municipal corporation responsible for the ownership and operation of Safeco Field, appealed an order granting summary judgment to Huber, Hunt, and Nichols-Kiewit Construction Company with regard to a claim by the Public Facilities District seeking reimbursement for costs incurred repairing defective work performed by Huber, Hunt, and Nichols-Kiewit in the construction of Safeco Field. The Public Facilities District argued that summary judgment on the basis of expiration of the statute of limitations was inappropriate as their action was for the benefit of the state and exempt from the statute of limitations. The Court, by a vote of 6 to 3 (with Justice Stephens writing for the Court) agreed, ruling that the construction and maintenance of Safeco Field for public recreation was a sovereign rather than a proprietary function as it had been performed for the common good rather than for the specific benefit or profit of the municipal corporation. Justice Sanders, joined by Justices Chambers and James Johnson, dissented.
3. Brown v. Owen – Senator Lisa Brown petitioned the Court for a writ of mandamus compelling Lieutenant Governor Brad Owen to forward Senate Bill 6931 (which increased the tax applied to liquor sales) to the House of Representatives after a majority of the Senate voted in favor of it. Owen had ruled, as the president of the Senate, that Senate Bill 6931 required the support of two-thirds of the members of the Senate for passage in order to comply with Initiative 960, which requires that any legislation increasing taxes receive the support of two-thirds of the members of both houses. Senator Brown’s petition asserted that Initiative 960 was unconstitutional and that Owen was therefore required to forward Senate Bill 6931 to the House. The Court, in a unanimous decision authored by Justice Fairhurst, refused to intervene, concluding that to do so would violate the separation of powers and the right of the legislature to govern its own proceedings and that Owen had acted properly in declining to decide the constitutionality of Initiative 960.
4. Woodinville v. Northshore United Church of Christ – The City of Woodinville, enforcing a moratorium on new land use permit applications, denied Northshore United Church of Christ’s application for a permit to erect an encampment for the homeless on church property and sought an injunction to prevent the church from doing so. The church claimed that the city’s refusal to consider its permit application violated its right to the free exercise of religion under Article I §11 of the Washington State Constitution. The Court, in an opinion by Justice James Johnson, agreed, holding that as Article I §11 confers a broader right to the free exercise of religion than does the United States Constitution and as aiding the homeless constituted religiously motivated conduct that was substantially burdened by the city, the city’s application of a blanket moratorium that offered the church no possibility of pursuing its plans in any fashion was unconstitutional insofar as the moratorium was not a sufficiently narrowly tailored means of achieving a compelling interest. Justice Sanders authored a concurring opinion joined by Justice Chambers.
5. Putman v. Wenatchee Valley Medical Center – Kimme Putman’s medical malpractice claim against Wenatchee Valley Medical Center was dismissed as a result of her failure to comply with Washington Revised Code §7.70.150’s requirement that she file a certificate of merit issued by a medical expert. Putman subsequently appealed the dismissal, arguing that §7.70.150 was unconstitutional. The Court, in an opinion written by Justice Owens, agreed, ruling that §7.70.150 violates the separation of powers by usurping the exclusive authority of the judiciary to set court procedures and unduly burdens the right to access the courts. Justice Madsen wrote a concurring opinion that was joined by Justice James Johnson.
6. Washington v. Kenyon – James Kenyon moved to dismiss a charge of unlawful possession of a firearm filed against him after the deadline for bringing the case to trial stipulated by Superior Court Criminal Rule 3.3 had passed due to the unavailability of a judge to preside over the trial. The trial court rejected Kenyon’s motion and he was subsequently convicted following a trial. Kenyon’s appeal asserted that provisions in Rule 3.3 allowing a trial to be continued past the deadline due to unforeseen or unavoidable circumstances were not applicable as the delay was foreseeable and unexceptional. The Court agreed and dismissed the charges against Kenyon, deciding in an opinion by Justice Sanders that the trial court could not claim unforeseen or unavoidable circumstances when it had made no record of the number or availability of visiting and/or pro tempore judges that could have presided over a trial. Justice Chambers wrote a concurring opinion.
7. Washington v. Strode – Tony Strode appealed his conviction for rape, claiming that his right to a public trial under the 6th Amendment to the United States Constitution and Article I §22 of the Washington State Constitution had been violated when a portion of the jury selection process was closed to the public and prospective jurors were questioned privately in the judge’s chambers regarding past experiences that might preclude a fair and impartial verdict. The Court, by a vote of 6 to 3 (with Chief Justice Alexander writing the majority opinion), agreed and ordered a new trial. The Court held that the circumstances underlying the closing of voir dire to the public were unexceptional and that the trial court had not made sufficient record of whether the closure was justified (by carefully and transparently weighing competing interests and considering whether a compelling interest necessitating closure was present, whether the method for curtailing public access represented the least restrictive means available, and whether the closure order was no broader in its application or duration than necessary). Justice Fairhurst wrote a concurring opinion that was joined by Justice Madsen. Justice Charles Johnson, joined by Justice James Johnson and Justice Pro Tempore Penoyar, dissented.
8. In re detention of Fair – David Fair appealed his civil commitment pursuant to Washington Revised Code §71.09, which permits the commitment of those persons likely to reengage in predatory acts of sexual violence if not confined, arguing that the state had not demonstrated that he had committed a recent act of sexual violence. The Court, by a vote of 5 to 3 (Justice Stephens did not participate), disagreed. Writing for the majority, Justice James Johnson’s opinion concluded that the state need only prove that a person had committed a recent overt act of sexual violence if that person was not incarcerated at the time the state filed its petition for commitment. Thus, although Fair was not incarcerated for a sexually violent offense at the time of the state’s petition (but rather for a robbery that he had been convicted of following his earlier conviction for child molestation and subsequent release), requiring a recent act by an incarcerated person would be absurd in the Court’s view. Justice Fairhurst authored a concurring opinion that was joined by Justice Charles Johnson. Justice Sanders, joined by Justices Alexander and Chambers, dissented.
9. In re personal restraint of Beito – Corey Beito appealed his sentence for murder, which had been enhanced by the trial court on grounds that the murder had been motivated by and closely connected to Beito’s rape of the victim. Beito asserted that the sentence violated his right to trial by jury insofar as the question of whether the murder was connected to the rape had not been submitted to a jury and proven beyond a reasonable doubt. The Court, by a vote of 7 to 2 (with Justice Charles Johnson writing for the Court), agreed and reversed Beito’s sentence, ruling that although Beito stipulated to the rape and the murder in his plea bargain, he had not stipulated to the connection between the rape and the murder that formed the basis for the enhanced sentence and that the trial court could not draw an inference from these stipulated facts without submitting the question to a jury. Justice James Johnson, joined by Justice Fairhurst, dissented.
10. Washington v. Rafay – Following his conviction, along with co-defendant Atif Rafay, for murder, Glen Burns moved to have his attorney withdraw and to represent himself pro se on appeal. After the Washington Court of Appeals rejected his motion, Burns appealed, maintaining that Article I §22 of the Washington State Constitution granted a right to self-representation on appeal. The Court, in a unanimous opinion authored by Justice Stephens, agreed and reversed the Washington Court of Appeals, holding that although the 6th Amendment to the United States Constitution does not confer a right to self-representation, the privilege granted by Article I §22’s right to counsel is broader and does confer such a right.
2009 Opinions by Author*
|Majority Opinions||Concurring Opinions||Dissenting Opinions|
|Barbara Madsen||18||15.1%||Barbara Madsen||12||30.0%||Richard Sanders||23||34.3%|
|Debra Stephens||16||13.5%||Tom Chambers||5||12.5%||Gerry Alexander||9||13.4%|
|Charles Johnson||15||12.6%||Mary Fairhurst||5||12.5%||Tom Chambers||7||10.5%|
|Tom Chambers||14||11.8%||James Johnson||5||12.5%||Mary Fairhurst||6||9.0%|
|Susan Owens||14||11.8%||Gerry Alexander||4||10.0%||Barbara Madsen||6||9.0%|
|Mary Fairhurst||12||10.1%||Richard Sanders||4||10.0%||Susan Owens||5||7.5%|
|Richard Sanders||12||10.1%||Debra Stephens||3||7.5%||Charles Johnson||4||6.0%|
|James Johnson||11||9.2%||Charles Johnson||1||2.5%||James Johnson||4||6.0%|
|Gerry Alexander||7||5.9%||Susan Owens||1||2.5%||Debra Stephens||3||4.5%|
|* Does not include opinions by justices pro tempore|
2009 Inter-Justice Agreement
|Gerry Alexander||Tom Chambers||Mary Fairhurst||Charles Johnson||James Johnson||Barbara Madsen||Susan Owens||Richard Sanders||Debra Stephens|
|Gerry Alexander||91 (76.5%)||79 (66.4%)||90 (75.6%)||93 (78.2%)||87 (73.1%)||90 (75.6%)||78 (65.5%)||84 (70.6%)|
|Tom Chambers||91 (76.5%)||84 (70.6%)||95 (79.8%)||86 (72.3%)||91 (76.5%)||97 (81.5%)||92 (77.3%)||92 (77.3%)|
|Mary Fairhurst||79 (66.4%)||84 (70.6%)||90 (75.6%)||94 (78.9%)||92 (77.3%)||95 (79.8%)||71 (59.7%)||79 (66.4%)|
|Charles Johnson||90 (75.6%)||95 (79.8%)||90 (75.6%)||98 (82.4%)||97 (81.5%)||103 (86.5%)||78 (65.5%)||84 (70.6%)|
|James Johnson||93 (78.2%)||86 (72.3%)||94 (78.9%)||98 (82.4%)||88 (73.9%)||94 (78.9%)||75 (63.0%)||75 (63.0%)|
|Barbara Madsen||87 (73.1%)||91 (76.5%)||92 (77.3%)||97 (81.5%)||88 (73.9%)||99 (83.2%)||79 (66.4%)||85 (71.4%)|
|Susan Owens||90 (75.6%)||97 (81.5%)||95 (79.8%)||103 (86.5%)||94 (78.9%)||99 (83.2%)||77 (64.7%)||89 (74.8%)|
|Richard Sanders||78 (65.5%)||92 (77.3%)||71 (59.7%)||78 (65.5%)||75 (63.0%)||79 (66.4%)||77 (64.7%)||74 (62.2%)|
|Debra Stephens||84 (70.6%)||92 (77.3%)||79 (66.4%)||84 (70.6%)||75 (63.0%)||85 (71.4%)||89 (74.8%)||74 (62.2%)|
2009 Most Frequent Decision Coalitions
|Majority/Concurring Coalition*||Dissenting Coalition||# of Cases|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Sanders, Stephens||None||47|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Stephens||Sanders||8|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Sanders||None||7|
|Alexander, Chambers, C. Johnson, J. Johnson, Madsen, Owens, Sanders, Stephens||None||3|
|Fairhurst, C. Johnson, J. Johnson, Madsen, Owens||Alexander, Chambers, Sanders||3|
|Alexander, Chambers, C. Johnson, Madsen, Owens, Sanders, Stephens||Fairhurst, J. Johnson||2|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Owens, Sanders, Stephens||Madsen||2|
|Chambers, C. Johnson, Madsen, Owens, Sanders, Stephens||Alexander, J. Johnson||2|
|Fairhurst, C. Johnson, J. Johnson, Madsen, Owens||Alexander, Chambers, Sanders, Stephens||2|
|* Does not include justices pro tempore|