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Fast Food Bandit loses appeal

Spokane’s alleged Fast Food Bandit won’t get a new trial because of a problem with the instructions the jury received before it convicted him of robbery and kidnapping in 2003.

Benjamin B. Brockie was accused by police of being responsible for a string of fast-food restaurant robberies in 2001 and 2002 before he switched to robbing banks. He was convicted of two robberies and 15 kidnapping charges for forcing employees of the Inland Northwest Bank to crawl into a vault during the robbery, and sentenced to 67 years in prison.

He challenged a judge’s instruction that said he could be convicted of robbery if he was armed with a deadly weapon or displayed what appears to be a firearm. The formal documents charging him with the robbery said only that he was displaying what appeared to be a firearm.

That difference could be important in some cases, Justice Susan Owens wrote for the unanimous court, because there is a distinction in the law between the two descriptions. But in Brockie’s case it didn’t matter, because he denied he committed the robberies and never argued he wasn’t armed with a deadly weapon. He didn’t prove the jury was prejudiced by the instruction, Owens said.

Spokane man wins new trial

The Washington State Supreme Court today overturned the second-degree rape conviction of a Spokane man, saying the trial judge violated the man’s right to a fair trial by including a jury instruction that the defense didn’t want.

In the 6-3 decision, the state’s high court ordered a new trial for Brandon S. Coristine, who was 22 when he was convicted in January 2010 of second-degree rape following an incident in 2009.

Spokane County prosecutors charged Coristine under the argument that the victim was too intoxicated to give consent for sex, which the defense argued was consensual.

At the end of the trial, Superior Court Judge Michael Price agreed with the prosecutor to give an instruction to the jury stating that the defendant reasonably believed that the woman gave consent. The instruction further stated that it was the burden on Coristine to prove that the woman gave consent for sex by a preponderance of the evidence.

But in the 6-3 decision, the majority of justices ruled that offering the jury instruction violated Coristine’s right to a fair trial. They reversed a decision by the Division III Court of Appeals and sent the case back to Spokane County Superior Court for a new trial.

Baumgartner: Cut 4 Sup Court judges

OLYMPIA — The state should reduce its Supreme Court by four members to save money, Sen. Mike Baumgartner says.

In a bill introduced today with two Republican colleagues, the Spokane legislator said the state could save as much as $2 million a year by reducing the court to five members.

In what might be considered a bit of pique over last week's decision overturning the two-thirds majority requirement for tax increases, Baumgartner said the reduction would also be in line with the court's admonition against adding requirements to clear constitutional mandates.

"The constitution clearly says that the Supreme Court shall consist of five judges," he said in a prepared statement.

That's a reference to Article IV, Section 2, but only part of that section. The whole section says: 

The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum, and pronounce a decision. The said court shall always be open for the transaction of business except on nonjudicial days. In the determination of causes all decisions of the court shall be given in writing and the grounds of the decision shall be stated. The legislature may increase the number of judges of the supreme court from time to time and may provide for separate departments of said court.

Over time, the Legislature did increase the number of judges to the current nine.

As to how to decide which justices would stay and which would go, Baumgartner's bill suggests they draw lots. 

"Based on their recent rulings on McCleary (requiring the state spend more to improve public schools) and their rationale behind the decision to throw out the will of the people regarding the two-thirds tax rule, I expect the court will support this approach," he said in a prepared statement. If not, they can lobby for a constitutional amendment.

The bill is introduced so late in session that deadlines for new bills have passed and it has almost no chance of passing. But it could get a hearing in the Senate Law and Justice Committee, Chairman Mike Padden said, if a case can be made that the bill is necessary to implement the budget.

A House committee held a hearing this morning on a bill to abolish capital punishment, in part on a claim that such a change would affect the budget by saving money on the costly appeals for death row inmates, Padden said.

Supermajority for taxes struck down. Now what?

OLYMPIA – For months, legislators have waited anxiously for the Washington Supreme Court to answer a political question that has roiled the state for two decades: Can voters make them pass any tax increase with a two-thirds majority?

No, a divided court said Thursday, not without a constitutional amendment. Supermajority requirements in Initiative 1053 were struck down.

Because I-1053 and other similar ballot measures since 1993 have been sold as a way to rein in free-spending legislators, voters might now be asking if they need to brace for an avalanche of new taxes.

Probably not, based on comments of legislators in the wake of Thursday’s decision.

To read the rest of this item, or to comment, click here to go inside the blog…

To read the court's majority and minority opinions, click on the document file below.


Retired state chief justice surprised by health care ruling

Retired state Supreme Court Justice Gerry Alexander was in Spokane Thursday for the last scheduled meeting of the city's Use of Force Commission.

Afterward, we asked him about his thoughts about this morning's U.S. Supreme Court decision that upheld most of the Affordable Care Act.

"I had previously thought that they would strike the mandate down," said Alexander, outside the Spokane City Council chambers. "It seemed to me that they were taking the Commerce Clause where it hadn't gone before."

Alexander, who was appointed to the Use of Force Commission by Mayor David Condon, said he followed the case, but hadn't read the ruling Thursday afternoon. The majority of justices agreed with Alexander about the Commerce Clause, but a different majority upheld the law under Congress's taxing authority.

"I felt all along they could pass a tax for this," Alexander said.

The Supreme Court barely approves state’s new liquor privatization law (with links)

So you may have heard the Washington State Supreme Court ruled Thursday (May 31) in a 5 to 4 opinion, that the privatization of liquor sales was legal.

Read the key opinion at this link. There is of course a dissenting view, which can be read here.

The dissent, authored by Justice Stephen Warning, includes this summary:

   An initiative can impose new taxes, but the ballot title cannot misleadingly imply that it does not.  Likewise, earmarking a portion of the new tax revenue for public safety is not inherently problematic, but  (the Constitution's) article II, section 19 precludes combining a substantive liquor privatization law with an earmark that has no rational relation to liquor privatization and may have been included only  to win votes.   We respectfully dissent.

Here's the majority opinion summary of the changes that I-1183 makes in the distribution of revenue for local governments, as well as the small changes pertaining to advertising:

The initiative additionally secures the current distribution of liquor revenues to local governments and dedicate[s] a portion of the new revenues raised from liquor license fees to increase funding for local public safety programs, including police, fire, and emergency services in communities throughout the state.  The additional portion is "$10 million per year from the spirits license fees [to] be provided to border areas, counties, cities, and towns through the liquor revolving fund for the purpose of enhancing public safety programs."   

       I-1183 also modified the law pertaining to liquor advertising.  The initiative removed a provision that prohibited the Liquor Control Board from advertising liquor but maintained the LCB's "power to adopt any and all reasonable rules as to the kind, character, and location of advertising of liquor."   I-1183 also added that the LCB is prohibited from restricting the "advertising of lawful prices."


Split decision on AG power from High Court

OLYMPIA — It's a win some, lose some day for Attorney General Rob McKenna and his authority to join or not join various types of legal actions.

As noted elsewhere on the newspaper's website, the State Supreme Court ruled that it won't order McKenna out of the federal lawsuit over health care reform. But it did order him to take up the appeal of a case that State Lands Commissioner Peter Goldmark lost in summary judgment, and McKenna didn't think was worth taking to the next level.

As one might imagine, McKenna was happy about the former: “It’s important that the state’s constitutionally-established, independently-elected Attorney General – whomever it may be — have the authority to protect the legal rights of the state and its people in the years to come,” he said in a press release.

As for the latter, not so much. Narrow ruling on a rare disagreement based on a specific statute, he said. And they're studying the inconsistencies between this and the health care reform case.

Goldmark,  not surprisingly, saw the lands case as a much bigger deal. "Historic" was the word he used to describe it. "I applaud the Supreme Court for striking down what would be a dangerous precedent by the attorney general to dictate policy for another statewide official."

Fuse, a progressive group that is no fan of McKenna, used even stronger language, suggesting that the court said he "deserted  his duty under the law." To be clear, the court didn't really use that kind of language, and two dissenting judges said he should have the ability to decide when to stop handling a case.

If you want to read the decisions and decide for yourself, you can find them here.

High Court considers challenge to Appeals Court elections

OLYMPIA –Washington state needs a new way of electing appeals court judges to comply with the constitutional doctrine of one-person, one-vote, Spokane attorney Steve Eugster told the state Supreme Court Tuesday.

But an attorney for the state countered that’s really a doctrine for picking legislators, not judges, and the way appeals court judges are elected and assigned cases is correct. That phrase isn’t even found in the state constitution, which instead calls for elections to be “free and equal,” Deputy Solicitor General Anne Egeler said.

“There is no right to be heard by the judge you personally elected to the bench,” Egeler said.

To read the rest of this item, or to comment, click here to go inside the blog.

Wiggins up by nearly 7,800

OLYMPIA — Ballot counting continues, if somewhat sporadically, around the state and the margin in the Supreme Court race grew slightly Monday.

Challenger Charlie Wiggins has 955,298 votes compare to incumbent Richard Sanders’ 947,618.

As previously reported, Wiggins lead is mathematically secure, even though there are about 76,000 ballots yet to be counted. That’s because more than half — an estimated 40,000 — are in King County, where Wiggins has been leading Sanders throughout the counting. Sanders hasn’t officially conceded, but he has sent an e-mail to supporters acknowledging that the race appears over.

In other close election news, Republican challenger has a 28 vote lead over Democratic Rep. Dawn Morrell in Pierce County’s 25th District, a race where the lead has changed hands several times in the last week.

Friday Quote

“And that’s how a constitutional crisis gets virtually ignored while a cute baby seal grabs front page headlines.” - horsesass.org

The constitutional crisis at hand is that Washington State Pulic Lands Commissioner Peter Goldmark is battling state Attorney General Rob McKenna at the Supreme Court level over a Superior Court decision that gave an Okanogan utility company the right to condemn state land in order to build a new power transmission line in Methow Valley.  Goldmark wanted McKenna to appeal it, McKenna declined, and now Goldmark is taking him to the Supreme Court to force him to do his job. 

If this story just jumped off the page and hit you in the face you’re not alone.  Until late last week we had NO idea that this was going on.  And it’s pretty dang significant. Thankfully a good friend directed us to the HorsesAss post about how the media was failing in reporting on this story.  Excerpt:
“On the one hand, reporters in Olympia know state government really well, but politics… not so much. Oh, they think they know politics, because they hang out with legislators, but considering the odd fact that legislators don’t really drive politics in Washington state, this actually puts the Olympia press corps at a disadvantage. Then you have the Seattle reporters, who tend to kinda get the political stuff, but don’t really know the ins and outs of state government… at least not as well as the Olympia full-timers.

Oh… and our state’s few remaining experienced environmental reporters… the journalists most likely to be assigned a story that appears to concern natural resources…? No offense intended, but they really don’t know politics or state government.