In 2011 the Court decided 108 cases. 59 were decided by unanimous decision while 14 were decided by a bare majority 5-4 vote. Among the Court’s most noteworthy decisions, it decided two cases clarifying the duties and powers of the attorney general, holding in Goldmark v. McKenna that the attorney general’s duty to provide legal representation to state officers is non-discretionary and extends through the appellate level and holding in Seattle v. McKenna that while the attorney general possesses neither common law power nor implied power under the Washington State Constitution to initiate litigation on behalf of the state, the attorney general has statutory authority to initiate litigation in all cases in which the state is interested. The Court also delivered a major decision interpreting the state’s Medical Use of Marijuana Act, deciding in Roe v. TeleTech Customer Care Management, L.L.C. that the law does not imply a civil cause of action for wrongful termination for employees terminated as a consequence of using marijuana for medicinal purposes.
1. Washington v. Immelt – Helen Immelt appealed her conviction for violating Snohomish County Code §10.01.040, which prohibits the sounding of vehicle horns for purposes other than public safety. Immelt asserted that §10.01.040 is an unconstitutionally overbroad ordinance that infringes the right to freedom of speech and expression guaranteed by the 1st Amendment to the United States Constitution and Article I §5 of the Washington State Constitution. The Court, by a vote of 6 to 3 (with Justice Stephens writing for the Court), agreed, ruling that the sounding of a vehicle horn may rise to the level of protected speech when it is intended to communicate a message and the message can be understood in context, making §10.01.040’s prohibition of all sounding of vehicle horns for purposes other than public safety unconstitutionally overbroad. Chief Justice Madsen, joined by Justice Charles Johnson, dissented. Justice James Johnson authored a separate dissenting opinion.
2. In re personal restraint of Carter – Ernest Carter was convicted of robbery and sentenced to life in prison as a persistent offender. After an unsuccessful direct appeal of his sentence, Carter filed an untimely personal restraint petition that asserted that his sentence is unlawful in light of the fact that his prior conviction for assault in California is not comparable to a Washington “strike” offense. The Court, by a vote of 9 to 0 (with Justice Fairhurst writing for the Court), disagreed, ruling that the actual innocence doctrine, which creates an exception to procedural bars in cases where a miscarriage of justice would result if collateral relief is denied, does not apply in cases where the petitioner is claiming a purely legal error rather than factual innocence of the charged crime or aggravating factor. Justice Stephens authored a concurring opinion.
3. Mohr v. Grantham – Linda Mohr filed a medical malpractice action against Dale Grantham, asserting that the negligent care Grantham provided both prior to and subsequent to her stroke substantially diminished her chances of recovery. After the case was dismissed on grounds that a cause of action for a lost chance of a better outcome does not exist in the medical malpractice context if the ultimate harm is something short of death, Mohr appealed. The Court, by a vote of 6 to 3 (with Justice Owens writing for the Court), reversed the lower court, ruling that in Washington the lost chance doctrine applies to medical malpractice cases even in cases in which the ultimate harm is something short of death. Justice James Johnson, joined by Justice Alexander, dissented. Chief Justice Madsen authored a separate dissenting opinion.
4. Seattle v. McKenna – Following the enactment of the federal Patient Protection and Affordable Care Act, Attorney General Robert McKenna and the attorneys general of twelve other states jointly filed a lawsuit in federal court challenging the constitutionality of the law. The city of Seattle subsequently petitioned the Court for a writ of mandamus compelling McKenna to withdraw the state of Washington from the litigation. The Court, by a vote of 9 to 0 (with Justice Owens writing for the Court), declined to intervene, ruling that Washington Revised Code §43.10.030, which authorizes the attorney general to appear for and represent the state in all cases in which the state is interested, authorizes the attorney general’s participation in the lawsuit. Justices Alexander and Sanders authored concurring opinions.
5. Goldmark v. McKenna – Commissioner of Public Lands Peter Goldmark petitioned the Court for a writ of mandamus compelling Attorney General Robert McKenna to provide him with legal representation in his appeal of an adverse trial court decision. The Court, by a vote of 7 to 2 (with Justice Charles Johnson writing for the Court), issued the writ, ruling that the attorney general’s duty under Washington Revised Code §43.12.075 to institute or defend any action or proceeding when requested to do so by a state officer is non-discretionary and extends to both the trial and appellate levels. Thus, the attorney general could not refuse to appeal the decision on the basis of his evaluation of the merits of the case. Justice Alexander authored a concurring opinion. Justice Stephens, joined by Justice Sanders, dissented.
6. Bothell v. Barnhart – James Barnhart was convicted of stalking in the Bothell Municipal Court, whose jurisdiction includes portions of both King County and Snohomish County. Barnhart appealed, asserting that as the alleged stalking occurred entirely within Snohomish County, empaneling a jury that included residents of both counties violated Article I §22 of the Washington State Constitution, which requires that juries be comprised of residents of the county in which the offense is charged. The Court, in a unanimous opinion authored by Justice Fairhurst, agreed, ruling that the meaning of the term county for purposes of Article I §22 is its ordinary meaning and that the framers of Article I §22 did not intend for county to mean the area served by a court. Thus, as material departures from jury selection requirements are presumptively prejudicial, the Court reversed Barnhart’s conviction.
7. In re detention of D.F.F. – D.F.F. was involuntarily committed for psychiatric treatment following a commitment proceeding that was closed to the public pursuant to Superior Court Mental Proceedings Rule 1.3, which stipulates that such proceedings shall not be open to the public unless the person subject to the proceeding or their attorney files a written request that the proceeding be opened. D.F.F. subsequently appealed her commitment, asserting that mandatory closure under Rule 1.3 violated Article I §10 of the Washington State Constitution’s requirement that justice be administered openly. The Court, by a vote of 6 to 3 (with Justice Sanders writing for the Court), agreed, ruling that Rule 1.3 is unconstitutional insofar as it automatically closes commitment proceedings without requiring courts to consider whether closure is appropriate in light of the particular circumstances of individual cases. Justice James Johnson authored a concurring opinion. Chief Justice Madsen, joined by Justice Fairhurst and Justice Charles Johnson, dissented.
8. Roe v. TeleTech Customer Care Management, L.L.C. – Jane Roe’s employment with TeleTech Customer Care Management, L.L.C. was terminated after a drug test revealed her use of marijuana, which she had used for medicinal purposes pursuant to a prescription issued under the authority of the Medical Use of Marijuana Act (Washington Revised Code §69.51A). Roe subsequently filed a lawsuit against TeleTech Customer Care Management alleging wrongful termination in violation of public policy. After the case was dismissed, Roe appealed. The Court, by a vote of 8 to 1 (with Justice Wiggins writing for the Court), affirmed the dismissal, ruling that the Medical Use of Marijuana Act was not intended to remove all impediments to the authorized use of marijuana for medicinal purposes but rather was simply intended to provide an affirmative defense to criminal prosecution by the state and therefore does not imply a civil cause of action for wrongful termination. Justice Chambers dissented.
9. Freeman v. Gregoire – Kemper Freeman petitioned the Court for a writ of mandamus barring Governor Christine Gregoire from authorizing a valuation of the center lanes of Interstate 90 between Seattle and Bellevue in anticipation of their eventual conversion to a light rail line and possible transfer or lease. The Court, by a vote of 7 to 2 (with Justice Charles Johnson writing for the Court), declined to intervene, ruling that a valuation performed in anticipation of the eventual transfer or lease of highway land is a valid highway purpose insofar as it indirectly benefits highways and that a writ of mandamus would in any event be premature insofar as no transfer or conversion of the lanes has yet occurred. Justice Alexander authored a concurring opinion. Justice James Johnson, joined by Justice Sanders, dissented.
10. Mills v. Western Washington University – Perry Mills, a professor at Western Washington University, was suspended without pay for two academic quarters following a hearing before a university disciplinary panel that concluded that Mills had engaged in a pattern of abusive and inappropriate behavior toward students and faculty. Mills subsequently filed a lawsuit against Western Washington University, asserting that it had violated the Administrative Procedure Act (Washington Revised Code §34.05) and Article I §10 of the Washington State Constitution by closing the hearing to the public. The Court, in a unanimous opinion authored by Justice Alexander, disagreed, ruling that although the Administrative Procedure Act generally requires that all hearings be open to the public, Washington Revised Code §28B.10.648(2) permits institutions of higher education to promulgate their own rules and regulations for peer review proceedings. The Court also held that Article I §10’s requirement that justice be administered openly does not apply to quasi-judicial disciplinary hearings conducted by universities and other state agencies.
2011 Opinions by Author
|Majority Opinions||Concurring Opinions||Dissenting Opinions|
|Susan Owens||17||15.7%||Barbara Madsen||12||41.4%||James Johnson||13||23.2%|
|Tom Chambers||14||13.0%||Gerry Alexander||6||20.7%||Debra Stephens||10||17.9%|
|Mary Fairhurst||12||11.1%||Debra Stephens||4||13.8%||Barbara Madsen||9||16.1%|
|Charles Johnson||12||11.1%||Tom Chambers||3||10.3%||Gerry Alexander||5||8.9%|
|Debra Stephens||12||11.1%||James Johnson||3||10.3%||Richard Sanders||5||8.9%|
|Barbara Madsen||12||11.1%||Richard Sanders||1||3.5%||Tom Chambers||4||7.1%|
|Gerry Alexander||11||10.2%||Charles Johnson||0||0.0%||Charles Wiggins||4||7.1%|
|James Johnson||9||8.3%||Mary Fairhurst||0||0.0%||Mary Fairhurst||3||5.4%|
|Charles Wiggins||7||6.5%||Susan Owens||0||0.0%||Charles Johnson||2||3.6%|
|Richard Sanders||2||1.9%||Charles Wiggins||0||0.0%||Susan Owens||1||1.8%|
2011 Inter-Justice Agreement
|Gerry Alexander||Tom Chambers||Mary Fairhurst||Charles Johnson||James Johnson||Barbara Madsen||Susan Owens||Richard Sanders||Debra Stephens||Charles Wiggins|
|Gerry Alexander||88 (81%)||89 (83%)||89 (82%)||80 (75%)||83 (78%)||94 (87%)||34 (67%)||86 (80%)||45 (83%)|
|Tom Chambers||88 (81%)||91 (85%)||93 (86%)||74 (70%)||80 (75%)||100 (93%)||39 (76%)||87 (81%)||48 (89%)|
|Mary Fairhurst||89 (83%)||91 (85%)||94 (88%)||82 (78%)||91 (86%)||99 (93%)||26 (52%)||90 (85%)||50 (93%)|
|Charles Johnson||89 (82%)||93 (86%)||94 (88%)||83 (78%)||90 (84%)||95 (88%)||29 (57%)||90 (84%)||47 (87%)|
|James Johnson||80 (75%)||74 (70%)||82 (78%)||83 (78%)||87 (83%)||80 (75%)||26 (52%)||77 (73%)||43 (81%)|
|Barbara Madsen||83 (78%)||80 (75%)||91 (86%)||90 (84%)||87 (83%)||86 (80%)||21 (42%)||86 (81%)||51 (94%)|
|Susan Owens||94 (87%)||100 (93%)||99 (93%)||95 (88%)||80 (75%)||86 (80%)||33 (65%)||87 (81%)||49 (91%)|
|Richard Sanders||34 (67%)||39 (76%)||26 (52%)||29 (57%)||26 (52%)||21 (42%)||33 (65%)||31 (62%)||N/A|
|Debra Stephens||86 (80%)||87 (81%)||90 (85%)||90 (84%)||77 (73%)||86 (81%)||87 (81%)||31 (62%)||50 (93%)|
|Charles Wiggins||45 (83%)||48 (89%)||50 (93%)||47 (87%)||43 (81%)||51 (94%)||49 (91%)||N/A||50 (93%)|
2011 Most Frequent Decision Coalitions
|Majority/Concurring Coalition||Dissenting Coalition||# of Cases|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Stephens, Wiggins||None||38|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Sanders, Stephens||None||17|
|Alexander, Chambers, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens, Stephens||Sanders||4|
|Alexander, Chambers, Fairhurst, C. Johnson, Madsen, Owens, Stephens, Wiggins||J. Johnson||3|
|Alexander, Chambers, Fairhurst, C. Johnson, Madsen, Owens, Sanders, Stephens||J. Johnson||2|
|Alexander, Chambers, Fairhurst, C. Johnson, Owens, Sanders, Stephens||J. Johnson, Madsen||2|
|Alexander, Fairhurst, C. Johnson, J. Johnson, Madsen, Owens||Chambers, Sanders, Stephens||2|
|Fairhurst, C. Johnson, J. Johnson, Madsen, Stephens||Alexander, Chambers, Owens, Sanders||2|