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Litigation

HeadsUp for Washington State: Court Opinions From Tuesday, July 28, 2015

  • Tuesday, July 28, 2015

    To view the full text of these opinions, please click here. Lexis.com® and Lexis Advance® subscribers may use the links below to access the cases on lexis.com and Lexis Advance.

    Division Two of the Court of Appeals filed 3 new published opinions and Division Three did not file any new published opinions on Tuesday, July 28, 2015:

    Division Two:

    1. In re Personal Restraint of Schreiber
    No. 40553-9  
    (July 28, 2015)
    2015 Wash. App. LEXIS 1706 (lexis.com)

    2015 Wash. App. LEXIS 1706 (Lexis Advance)

    Areas: CRIMINAL LAW

    Brief: The personal restraint petitioner could not obtain collateral relief from his conviction of second degree murder on the basis of his claim that the trial court violated his Const. art. I, § 22 right to a public trial─by the use of confidential questionnaires to query prospective jurors, by privately questioning two prospective jurors in chambers, by excluding spectators from the courtroom during voir dire due to a lack of space, and by directing the bailiff to speak privately with an empaneled juror─because the petitioner failed to establish actual and substantial prejudice resulting from any of the trial court's acts. Because the petitioner failed to demonstrate actual and substantial prejudice, his public trial arguments could not be sustained.

    2. State v. Lozano
    No. 45242-1
    (July 28, 2015)
    2015 Wash. App. LEXIS 1685 (lexis.com)

    2015 Wash. App. LEXIS 1685 (Lexis Advance)

    Areas: CRIMINAL LAW

    Brief: The defendant charged with second degree rape under RCW 9A.44.050(1)(b) was not deprived of due process of law under the Fourteenth Amendment or Wash. Const. art. I, § 3 by the jury instruction stating that he had the burden of proving the “reasonable belief” defense because the defense did not negate an element of the charge where the State solely alleged that the sexual intercourse occurred with a person incapable of consent by reason of being physically helpless or mentally incapacitated. The defendant's trial counsel did not provide ineffective assistance by failing to propose an instruction on consent because consent was not an affirmative defense to the charge where the State solely alleged the sexual intercourse occurred with a person incapable of consent by reason of being physically helpless or mentally incapacitated.

    3. Puget Soundkeeper Alliance v. Pollution Control Hearings Board
    No. 45609-5
    (July 28, 2015)
    2015 Wash. App. LEXIS 1698 (lexis.com)

    2015 Wash. App. LEXIS 1698 (Lexis Advance)

    Areas: GOVERNMENT RELATIONS AND ADMINISTRATIVE LAW; PROPERTY AND LAND USE LAW

    Brief: In issuing the wastewater discharge permit, the Department of Ecology improperly included a condition specifying that a single failed whole effluent toxicity (WET) test does not violate the permit's terms as long as the permittee takes certain subsequent measures. The condition effectively allows toxic discharges prohibited by statute and the Department's own regulations. Because the Department's interpretation of the WET rules allows discharges that violate a water quality standard, and thus conflicts with the governing statute and regulations, the condition is invalid. 

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