Teenage Sexting, Child Pornography & Harassment

The Washington State Supreme Court just issued a decision in a case that will be over-simplistically referred as to a teenage sexting case. The details of the case reveal the incredible complexity in addressing child pornography and teenage “selfies” and harassment.

Case

State v. Gray; Docket No. 93609-9; Opinion Author – Owens; joined by Fairhurst, Johnson, Madsen, Stephens, and Wiggens; Dissent Author – McCloud; joined by Gonzalez and Yu; Attorney for Petitioners – Kathleen Shea & Washington Appellate Project; Attorney for Respondents Gretchen Eileen Verhoef 

Amicus Curaie: ACLU, Juvenile Law Center, Columbia Legal Services, and TeamChild

Basic Facts

When Eric Gray was 17 years old, he sent an unsolicited picture of his erect penis to an adult woman and invited her to share it with her daughter. (this is a little confusing as the recipient was 22 and it is unclear how old her daughter would have been) Mr. Gray had previously been convicted of a separate offense because at the time of this case, he was already a registered sex offender. Mr. Gray had allegedly been harassing the woman he sent the picture to for a year with unsolicited and repeated phone calls. To further complicate matters, Mr. Gray has an Asperger’s diagnosis, it was not discussed much in the opinion, but Asperger’s is a condition that can impair an individuals understanding of societal norms.

The State dismissed the telephone harassment charge and did not charge  “two counts of misdemeanor indecent exposure stemming from an unrelated incident.” (This is a short sentence that creates the impression there were more complaints regarding his behavior, likely in person).

The Law 

The law at issue is RCW 9.68A.050, which prohibits developing or disseminating sexually explicit images of minors.

 

Appellate Court Opinion

The major question and concern is whether child pornography laws can extend to minors taking sexual selfies. The majority took a textual approach and said the statute was clear and had no exceptions for juveniles. The Majority concluded it could not create the exception in an unambiguous statute.

As noted above, a “person” is any natural person and a “minor” is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the “minor” cannot also be the “person.” Contrary to Gray’s arguments, we find that had the legislature intended to exclude the depicted minor from the definition of “person,” it would have done so as it has in other sections in this chapter. …Because the legislature has not excluded minors from the definition of “person” here, Gray was properly charged under this statute.

The Majority acknowledged the concerns of amici about the possible consequences for teens engaging in consensual sexting, but stated that those facts were not before the court:

…our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute’s plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.

The Majority also address the Dissent argument about a law not being able to be used to prosecute those who are protected by the law, i.e., not charging a woman who has been trafficked with prostitution – basically arguing that is not what happened in this case, the minor engaged in unwanted behavior when the minor sent the text. The majority noted that this issue not involve the manufacturing of pornography, i.e., a child who was trafficked for pornography is not being charged with the manufacturing of pornography that the child had no choice in creating. The Majority makes a distinction with this case in that Mr. Gray acted alone, in fact, his attention was unwanted.

First Amendment Argument

The Majority rejected the First Amendment argument stating that child pornography does not enjoy First Amendment Protections. Gray attempted to argue that because the Supreme Court has struck down a law that prohibited computer generated child pornography, because it did not involve criminal activity that his selfie should have First Amendment protection.

The majority disagreed:

We find that RCW 9.68A.050 is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection.

 

The Dissent 

The main argument of the dissent is:

…when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct. … Since the legislature enacted RCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution under RCW 9.68A.050 for such depictions of themselves.

The dissent goes on to say the majority’s interpretation

punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing. It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!

(superfluous exclamation point in the original).

The dissent discussed Mr. Gray’s Asperger’s diagnosis and notes that he is a “prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender.” (This neglects to acknowledge that regardless of what happened in this case, he was a registered sex offender due to a prior adjudication- the details of what led him to have the initial sex offender registry requirement are not discussed in this case. )

The other points of the dissent were discussed above through discussing the Majority’s response to their arguments.

Additional thoughts on the case

There is a idiom in the law that bad facts make made law. In some ways, that may be a bit of what happened here. This is a case where it is hard to be sympathetic to the minor. He engaged in unwanted sexual conduct. He arguably put the adult woman, who did not want his attention, in a bad position because she had child pornography on her phone. What would have happened if she had not told the police and it somehow came out that she had child pornography? Even if she tried to delete it?

The Dissent focused on the instances where “better facts” may have created opportunities to create exceptions in the law, like grooming and the claim that photos sent in connection with grooming would result in the prosecution of the child. But the ideal facts weren’t before the court, instead the instant case involved a minor who sent unwanted photos as a part of a yearlong harassment of the recipient. This is a crucial difference that would seem to create a situation that does not trigger protecting the child as a possible victim.

In our government that seeks to be a balance of powers, this case is perhaps an important trigger for our state legislature to address this issue and to do so in a more informed way than can be done through case law can do.

Here’s a link to some 2015 research on what states have done regarding sexting. Some of the things this chart included where whether the sexting law addressed issues of minors – sending or receiving, penalty diversion, penalty informal, penalty misdemeanor, penalty felony, and interestingly whether a state has a revenge porn law. It also provides the summary of information about the state’s laws and links to find the statutes. Some interesting examples are:

New York
The two persons involved in sending and receiving the message must both be under twenty and must be within five years of age from each other. They will have to participate in an education reform program that involves a maximum of eight hours of instruction that provides information regarding the legal consequences and non-legal consequences of sexting, and the problems associated with technology and bullying.
http://assembly.state.ny.us/leg/?default_fld=&bn=A08170&term=2011&Summary=Y&Text=Y

 

North Dakota
It is a misdemeanor to create or possess a sexually expressive image without written consent of the individual. It is a misdemeanor to send sexually expressive images with the intent to harm the individual in the image who has a reasonable expectation of privacy; or after being told by the individual, parent or guardian does not consent to distribute the image.
http://www.legis.nd.gov/assembly/62-2011/documents/11-8225-02000.pdf

Interestingly most of the discussion on this chart seems to address a particular issue where something occurs in a nonconsenual manner, i.e., one child has in their possession a photo of another and forwards it on in some way.

The question facing legislatures would be whether to completely remove any criminal penalties when minors send photos to each other. This issue is complicated because consent can be a complicated issue. In 2015, there was sexting scandal in two Bothell junior high schools (Canyon Park and Skyview junior highs). Girls were pressured to send photos, and any who sent a photo were pressured to send more or their initial photo would be disseminated. There was a Degrassi story line that involved a cheer team raising money by sending photos that was incredibly plausible.

There are also pressures about what couples do. “Sexting” is common enough that it has its own Wikipedia entry, which says it was included in 2012 in the Merriam-Wesbster’s Collegiate Dictionary. This Wikipedia entry also says a 2009 study (which is ancient in our evolving world of technology) claims that 4% of teens ages 14-17 have sent sexually explicit photos of themselves. Apparently there’s even a thing called “joke sexting” which may be a form of nonconsensual sexually explicit photos.

Revenge porn is definitely an issue. “Revenge porn” is when you send a sext to one person, like a significant other, you break-up (or they’re just a creep) and they forward it on to friends or even to your friends, teachers, employers, etc. Basically the first photo was consensual, but the future uses are nonconsensual.

Bottom line, sexting isn’t a simple issue. To assume that sexting is primarily photos sent in consensual manner and therefore there should not be any consequences for minors engaging in sexting is short-sighted. That being said, I’m not a fan of criminalizing minors and some of the diversion-type programs that other states have seem far more appropriate than more severe felony or sexual offense charges that could put teens on sexual registries. Perhaps if the laws can come up with some rational and ethical guidelines, they will make enough sense to youth to help them act in responsible ways, taking into consideration that no law will likely stop youth from sending sexually explicit messages to each other.

Washington State Supreme Court on Gun & Ammunition Tax, Expert Testimony for Medical Conditions, and DOC Sanctions while in Criminal Custody

The Washington State Supreme Court hears a wide variety of issues, the opinions issued this week (August 10, 2017), demonstrate just how complex and diverse the issues facing our courts are.

The issue getting the most publicity is the case about taxing guns and ammunition in the City of Seattle. Aug. 10, 2017 – 93723-1 – Watson v. City of Seattle.

The decision was majority decision was written by Justice Debra Stephens, joined by Justices Johnson, Madsen, Ownes, Wiggins, and Yu. Justice González issued a concurring opinion joined by Fairhurst. Justice Sherly Gordon McCloud was the sole dissenter.

The law being challenged taxed the sale of firearms $25 and the rounds of ammunition at $0.02 cents to $0.05 cents. The tax was used to pay for gun safety programs and related public health research. The dispute was whether the tax was a regulation disguised as a tax, and if it was a tax, did it exceed Seattle’s taxing authority. The court found it was a tax and not a regulatory fee disguised as a tax. The stated reason for the tax of public research and gun safety programs are “desired public benefits which cost money.” The court also noted that there was no regulatory language in the text of the ordinance nor no evidence of a regulatory purpose.

González’s concurrence agrees that it is a tax, but writes to add a separate law nerd conversation about the scope of evidence that courts should consider in deciding whether a fee constitutes a tax or a regulation. He believes in addition to the factors outlined by the majority the “charge’s regulatory effect, separate from its purpose[]” is relevant. Thus, if a tax heavily influenced purchase, then it might not be a tax. He also thinks legislative history should be considered more than the majority (the majority basically said you turn to it when the law is vague but that it cannot overturn the plain language of the law). González argues that if there is legislative intent to circumvent a state preemption statute, that would be important (it is unclear what the distinction would be with this between being aware there is a possibility a law could implicate preemption and inquiring as to what would make it not implicate preemption and knowing your intent would be something that preemption would prevent and trying to figure a way around preemption.) The concurrence does note there is nothing wrong with knowing th elaw and acting within its bounds.

McCloud’s sole dissent – appears to be based on the concept of preemption and arguing that the preemption provision bars more than regulation but also local “laws and ordinances” of all kinds that relate to firearms and becomes of this is preempted (meaning that the city cannot regulate, only the state may regulate). She does the thing I think no justice should ever do, she uses an exclamation point in her writing (and not as a quote). She also quotes the statute, and italicizes the part just before the word “regulation” as if by italicizing only part of a sentence you somehow alter the fact that the key part of the sentence is regulation. Then later she quotes the statute removing the fact it says firearms regulation and then criticizes the majority for focusing on the “firearms regulation.” While McCloud may very well be right that the legislature may come back and further expand the state preemption law to make sure it encompasses this kind of tax, but until then, the Seattle tax stands.

The other cases, while recieving less media intention are worthy of some discussion.

Street v. Weyerhaeuser Co. – 93984-5 
This was a unanimous decision authored by Justice Stephens. It involved a question about whether an expert was required in a claim for industrial insurance benefits for a claimed occupational disease. Weyerhaeuser argued that expert medical testimony must be presented that the disease arises naturally out of employment. The court rejected this argument.

At the industrial appeals hearing, three medical experts did testify. The administrative process rejected his claim and only as it got to appeal point where he had a trial did a jury conclude his back condition was an occupational disease that arose “naturally and approximately” out of the distinctive conditions of his employment.

Weyerhaeuser appealed on issue that a medical expert must testify that the disease arises naturally out of employment. Street (injured worker) argued that no, it is a causation issue and as with most factual issues it does not require an expert opinion.

The court noted a couple of things, one that the occupational law is supposed to be liberally applied, that the leading case on the occupational disease is clear that preexisting conditions exacerbated by work comes within the definition of occupational disease. The court also points out that no Washington law or court case requires “arises naturally” to be proven through expert medical testimony. Instead the court noted:

A worker need only show “distinctive conditions” of employment to meet the “arises naturally” requirement.

 

State v. Bigsby – 93987-0
This was another unanimous decision. It was authored by Justice González. The question before the court was whether the trial court could sanction Bigsby for sentence violations committed while he was on community custody. The court said no. The statute required sanctions for violation of a sentence to be imposed by the Department of Corrections and not the court.

Much of this case hinged on changes in the laws and the times for the changes in the law. In approximately July 2000, the law changed from postrelease supervision program to community custody. there were also more changes in 2008. The crime was committed in 2014 and because of the changes, it was the DOC had the sole authority to impose sanctions. Thus the court could not impose the sanctions.

 

Washington State Supreme Court Cases – week of 6/30/17

The Sate Supreme Court had four decision this week. The topics ranged from meal breaks, domestic violence orders, forfeiture of property without a conviction, and an appeal of a second degree murder conviction (also domestic violence related).

Jun. 29, 2017 – 93564-5 – Brady v. Autozone Stores, Inc.
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=935645MAJ

When a case is in federal court and there is a state law that is a part of the case that the federal courts feel has not been adequately resolved by the state courts, the federal court will turn to our court to get an answer (“certified questions”).

The first question was whether there could be strict liability for not providing a meal break. The court said no (and noted that neither party supported this position).

The second questions was about who carries the burden to prove that an employer did not permit an employee to take a break. The court held an employee can establish a prima facie case by providing they did not get a timely meal break and then the burden shifts to the employer to rebut.

Jun. 29, 2017 – 93645-5 – Rodriguez v. Zavala
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=936455MAJ

The issue in this case was about whether a parent could petition for a protection order for their child. The Supreme Court found the lower courts read the statute unnecessarily narrowly when it read the statute to preclude a parent from obtaining a protection order for their child. The Supreme Court found that the child should have been included in the protection order.

The Supreme Court also held that exposure to domstic violence is harmful under the Domestic Violence Protection Act. Referencing a prior decision, the court stated, “a child is psychologically harmed or placed in fear by observing violence against a family member.”

“Ample evidence supports the view that direct and indirect exposure to domestic violence is harmful….It strains common sense to think that L.Z. was not somehow exposed to domestic violence given the facts of this case. ”

Based on this, the Supreme Court found that the trial court abused its discretion in failing to grant the protection order.

Conclusion:

Zavala’s violent threats against L.Z. are “domestic violence” under the plain language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him. Accordingly, we reverse the Court of Appeals. We also conclude that exposure to domestic violence constitutes harm under the DVP A and qualifies as domestic violence under chapter 26.50 RCW. Because the trial court failed to consider the harm to L.Z. based on an incorrect reading of .010(3), it abused its discretion.

Jun. 29, 2017 – 93907-1 – City of Sunnyside v. Gonzalez
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=939071MAJ

Police are allowed to take property if it is connected to drug manufacturing or distribution (there is significant critique of this policy in discussion of criminal justice reform).For law nerd, RCW 69.50.505. The court noted the case is highly fact-specific. In discussing the law, “the court stated the statute generally does not contemplate forfeiture where the only violation is mere possession of a controlled substance; the violation usually must involve drug manufacturing or transactions.”

The “seizing law enforcement agency” (the City in this case) bears the burden “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” The court noted that there is a difference between the federal and state statutes.

Furthermore, the briefing from both parties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property is “traced as the proceeds of illegal drug activity.” Pet. for Review at 1 O; see also Answer in Opp ‘n to Pet. for Review at 6. While this assumption may be appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is inconsistent with the plain language of Washington’s statute, which allows forfeiture of personal property that was “acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter,” RCW 69.50.505(1)(g) (emphasis added).

 

CONCLUSION
Even where the question is limited to whether substantial evidence supports a finding by a mere preponderance of the evidence, appellate review must be sufficiently robust to ensure that an order of forfeiture is in fact supported by substantial evidence so as not to deprive people of significant property rights except as authorized by law. This is particularly important in the forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and because the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled

to keep or sell most forfeited property. RCW 69.50.505(7).

 

Jun. 22, 2017 – 92816-9 – In re Pers. Restraint of Lui
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=928169MAJ

Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.  The Court of Appeals dismissed each claim as meritless and the Supreme Court affirmed.

The court rejected the claims of ineffective assistance of counsel and related prosecutorial misconduct claims. The court walked through the various claims and analyzed each one concluded there was no basis for the claim. The court rejected the Brady violation claim, the juror misconduct claim, and the newly discovered DNA evidence (there was blood the gearshift the jury new did not belong to the defendant and they later matched the blood).

Conclusion

We affirm the Court of Appeals’s denial of Lui’s claims and dismissal of his personal restraint petition. Lui is not entitled to a new trial due to ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence. Nor is he entitled to a reference hearing to determine whether counsel was sleeping at trial or whether the State withheld exculpatory or impeachment Brady evidence, or to prove his juror misconduct claim.

Arlene’s Flowers and Washington State’s Commitment to Nondiscrimination

State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. The Washington State Supreme Court unanimously held that the a business owner engaged in secular activities could not discriminate against their customers based on alleged religious beliefs (I use alleged, not the court. I use “alleged” for a number of reasons, but perhaps most important is the bizarre distinction Arlene’s Flowers attempts to draw between selling flowers to a gay couple for a wedding versus Valentine’s day, anniversaries, birthdays, or other occasions where one person in a couple is purchasing flowers for the other and attempting to claim that one violates their religion and the other doesn’t. It seems clear that applying to marriage is simply a wedge to being allowed to discriminate against LGBTQ people in any setting).

UPDATE: On July 17, 2017, Arlene’s Flowers petitioned the U.S. Supreme Court to review the case.  On June 26, 2017, The Supreme Court agreed to hear a case involving a Colorado Baker who wants to discriminate against same-sex couples when selling cakes for marriages (but again claims that he will sell cakes to same-sex couples for other reasons). 

Continued discussion of the Alrene’s Flowers Case:

  •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
    • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
    • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

    • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
      • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

    • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association’” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

What this means for the LGBTQ Community in Washington

We know our experience and the experiences of our friends, people continue to discriminate based on sexual orientation and gender identity despite the laws. The best way to get compliance is to complain to the people who can command enforcement. If you experience discrimination in a public accommodation, file a complaint. The Washington State Human Rights Commission is the agency where a complaint should be filed. The Office of the Attorney General also has a complaint process.

 

Bias Based on Sexual Orientation or Religion in a Parenting Plan is Unacceptable and Invalidates the Parenting Plan

Short Overview

The Washington State Supreme Court held that when a parenting plan includes restrictions in any part of the parenting plan based on sexual orientation the entire order is invalidated because

This bias casts doubt on the trial court’s entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle’s sexual orientation.

In some ways, this was already the rule in Washington, but this decision makes it abundantly clear that it is improper to even try to bring up sexual orientation as a factor in a residential schedule, even if the family practiced a religion that viewed homosexuality as sinful.

Case Details

In re Marriage of Black, Docket No. 92994-7; Opinion Author – Justice Fairhurst, Unanimous Opinion with a concurrence authored by Justice Wiggins and joined by Justice Stephens; Attorney for Petitioners – Amanda J. Beane, Kelly F. Moser, Julie Wilson-McNerney all of Perkins Coie, and David Ward of Legal Voice; Attorneys for Respondent – Kenneth Wendell Masters and Shelby R. Frost Lemmel of Masters Law Group PLLC

Legal Voice was one of the leading advocacy groups in this case. Their discussion of this ruling can be found here.

Because of the issues involved in this case, there were numerous amicus (friend of the court) briefs. You can find the list of the attorneys for the organizations providing amicus briefing (ACLU-Wa and National, NCLR, Fred T. Korematsu Center for Law & Equality, SU Law Professor, QLaw, GLAD). Full disclosure, I provided some assistance on the ACLU Amicus brief.

Basic Facts

Couple marries young (wife 19, husband 21). They were religious and involved in the church. They had three children and the mother wrapped around her life around the children, giving up her work in her family’s business to be able to focus on her family. The father worked in her family’s business and provided the financial support. Like so many divorcing families, it is clear that both parents loved their children.

Like many people, later in life the mother realized that she was not straight. As much as she loved her family, she could no longer hide this important part of her identity. She told her husband. They continued to reside together, agreeing that the mother would explore her sexual orientation.

The mother was committed to making her children come first. Based on her upbringing and belief that having a stay-at-home parent was important for children, she stayed in the family home, with the father, attempting to disrupt the children’s lives as little as possible, only moving out when the trial court ordered the family home would go to the father and the mother had to move out. The court made the father the primary custodian and said he got to make all the decision about the children (something typically reserved for high conflict cases, particularly instances with domestic violence). In addition to providing limited residential time with the mother and allowing the father to make all major decisions, the trial court limited the mother’s ability to talk about her sexual orientation or introduce the children to her long-term partner. The court of appeals struck down the provisions that were explicitly homophobic, but allowed all the other provisions to remain in place (For more discussion of the basic facts and the court of appeals decision, check out my earlier blog).

Washington State Supreme Court Opinion

Sexual Orientation and Parenting 

The Court reaffirmed that a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children. This principal was first articulated by the Washington State Supreme Court in 1983, In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983) it was reiterated in In re Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996) (trial court abuses its discretion “if it restricts parental rights because the parent is gay or lesbian).

In this case, the GAL issued a homophobic report that was highly critical of the mother for “making choices” to divorce the father and for her “lifestyle choices” and essentially blamed Rachelle for the marriage ending the marriage, believing she should have waited until the children were grown before living an authentic life. The trial court relied heavily upon the GAL report. The Supreme Court stated:

We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands.

The question to tease out in the case was, when is a trial court basing its decision on sexual orientation? The father argued that the trial court did not base its residential schedule based on sexual orientation and that the numerous references to her sexual orientation were simply included for context. The mother argued that the because the GAL report, the trial, and the opinion where full of references and restrictions connected to her sexual orientation, the entire parenting plan was tainted with bias and needed to be reversed.

Previously, our state Supreme Court decisions allowed parenting plans to remain in effect even if there was a reference to sexual orientation. In the Wicklund decision, while the court held that parental rights couldn’t be restricted based on sexual orientation, the result of the case still ended up feeling like that was exactly what was allowed to happen. The trial court trial court focused on causing the least amount of change for the children, which inherently created a bias on the parent who was trying to live more authentically.

The Washington State Supreme Court noted that since Wicklund was decided in 1996 courts have recognized that members of the LGBTQ community are vulnerable to discrimination. The court referenced Obergefell v. Hodges, the decision that affirmed the dignity of same-sex relations and overturned marriage discrimination (as a side note, the court also noted that this decision abrogated its own decision in Andersen v. King County – the case where our state failed to properly apply constitutional rights, arguing that dignity of LGBTQ people should be subject to political whims and that gays were going to get there through the political process. This ultimately happened, but it took six more years and justice deferred is justice denied).

The court did not draw the connection that 1996, when Wicklund was decided, was also the height of the gay marriage panic when the Federal Government passed the Defense of Marriage Act and many other states passed “Baby DOMAs.” When Wicklund was decided, in many states it was still criminal to engage in same-sex sexual relations – those laws wouldn’t be held as unconstitutional for another seven years in Lawrence v. Texas.

I mention the timing because as President Obama noted when he finally supported ending marriage discrimination, attitudes around the LGBTQ community have evolved, not simply with respect to marriage, but with respect to our ability actually live a life without being criminalized.

In the Black case, the State Supreme Court found that the trial court abused its discretion for failing to remain neutral in determining the residential schedule. This is a good ruling, but I would have preferred a bit more bright line ruling: Sexual Orientation cannot be used in determining a residential plan and any plan that bases any part of a decision or restrictions on sexual orientation will be presumed to have abused discretion and will be void. This case does not appear to overrule the caveat that sexual orientation may influence a residential schedule if it harms the child. This is wrong. Would anyone argue that if a same-sex marriage ended because a partner realized s/he had a deep sexual attraction to someone of an opposite-sex that this could harm the child? No. Sexual orientation does not harm children. LGBTQ people are not inherently sexually deviant with a greater likelihood that their behavior could be harmful. In the same way that someone who has a heterosexual orientation may engage in harmful sexual behaviors, it is the actual harmful sexual behaviors that is a problem and has nothing to do with sexual orientation.

Nevertheless, the ruling effectively determined that sexual orientation cannot be used in any part of a parenting plan and if it a trial court makes unnecessary reference to sexual orientation and especially if a trial court includes any limitations based on sexual orientation, it will be presumed to bias the entire parenting plan (not simply the place that references sexual orientation).

Religion and Parenting 

In this case, the children were raised in a conservative Christian faith that was judgmental towards divorce and sexual orientation. The trial court also based parenting decisions on stability and maintaining the religious identity the children were raised in (without ever inquiring as to the children’s own religious beliefs). This clearly favored a particular religion. The mom still maintained a Christian identity, but she embraced Christian ideals that were more accepting. The court determined that the children must be raised in the more conservative Christian setting. This decision also violated the law with regard to parenting decision.

[Washington courts] require an analogous attitude of neutrality regarding conflicting religious beliefs. Although a trial court may consider the parents’ and the children’s religious beliefs when fashioning a parenting plan under RCW 26.09.184(3), it may not favor either parent’s religious beliefs without a clear showing of harm to the children[.]

(emphasis added).

The consideration of religion is intended to allow for an ability to figure out religious holidays and residential schedules and possibly other issues (i.e., coordinating taking children to religious services where there is a gender segregation, coordinating important religious milestones, like bar/bat mitzvahs).

In the Black case, religion and sexuality were intertwined. The argument was basically that because the children were raised in an ultra conservative religion they would be harmed by the mother’s sexual orientation because it contradicted the teachings of their religion. The trial court concluded that the father was better able to maintain the religious beliefs the children had thus far been raised. Thus, the court effectively favored the father’s religion.

The court didn’t do an analysis if either religious practice would harm the child. Arguably, if the court had done such an analysis, if any religious practice would have the possibility of harming the children, the father’s religion, which demands viewing their mother as a sinner, would be more likely to cause an actual detriment to the children.

Bias in a Parenting Plan Requires Dismissal of the Entire Parenting Plan

Parenting plans include numerous provision, there is the time each parent has with the the children, there are decision-making provisions, there are possible restrictions on visitation, and any parenting plan done with lawyers involved will include a vast array of “other” provisions that attempt to help guide parents on behaving respectfully with each other during the challenge of co-parenting. The Supreme Court decision essentially held that these other decisions must be reviewed when the trial court’s decision appears to have been tainted with bias.

What Happens Next? 

Sadly, this decision doesn’t mean an end for the family. Perhaps they will be able to go back to mediation in light of this decision and make agreements about their parenting, and increasing the mother’s time with her children. If they cannot reach agreements, they will have to go to trial. They will have to incur expense to hire a new GAL and likely another psychologist to interview the children. At the time this decision was issued, the court noted that one of the children is already 17, parenting plans do not apply to legal adults, so that means the oldest child will likely not be impacted, because with how slow the process is, he will likely be 18 before a final parenting plan is entered. The vast majority of his high school life had his mother radically diminished from his life because of the bias of the trial court and the bias of the ex-husband. If the ex-husband had not pushed for the restraints and limitations in the children’s life, the court never would have ordered it. The other two children are 14 and 9, so there is still a significant impact that a new parenting plan could have on their lives and their relationships with both parents.

Cases like this are heartbreaking. It seems clear that both parents love their children and that their children love both their parents. But in the way that break-ups can be toxic, this break-up got toxic and the father successfully leveraged the lingering homophobic attitudes to try to diminish the relationship between the children and their mother.

The reality is that as the children grow up, there is no way they will be anything other than resentful to the father for his efforts to marginalize their mother in their lives. Divorce does not inherently harm children, messy divorces where a parent is vindictive against another parent harm children. Children know more than we realize and eventually the father’s relationship with the children will likely suffer from his actions.

It didn’t have to be this way. In fact, our legislature has done everything it can and our courts have interpreted the statutes in ways to try to prevent exactly this kind of harm. The trial court missed an incredible opportunity to apply our state statutes to assist parents in doing what is best for their children. Instead of having a long court battle lasting years and years, had the court followed the statute and court law, the family could have been on a path towards healing and existing in their newly defined family.

Additional Side Note

Sexism, heterosexism, and homophobia are all leaves on the same branch of bias based on sexual stereotyping. In addition to religion and sexual orientation, this case seemed to be tinged with bias based on gender/against a parent who stays at home with children. The Supreme Court did not address this issue, but the decision by the trial court clearly punished the mother for being a stay-at-home parent. It argued that the father was more stable because he had a job. The court and GAL seemed to be critical of the mother for not making more of an effort to become employed outside the home. Despite questioning her ability to support herself, the court denied her alimony.

This case presents a particularly bizarre situation to assert the financial stability of the father because his financial stability is based on his employment with the mother’s parents. That seems like an inherently unstable relationship. What if the father starts dating someone else and the parents fire him? What if the parents evolve in their acceptance of their daughter and fire him for the trauma that he caused to their daughter?

Nevertheless stability referenced in our parenting statute is not financial stability or religious stability, it is the stability of the relationship between the parents. To use financial stability as a basis in a parenting plan deeply contradicts the legislative efforts to usurp that kind of decision through the creation of the child support schedule. It is dangerous to identify financial stability as a basis for a residential schedule because it will inevitably punish one parent. Studies show that regardless of sexual orientation, families almost universally tend to have one parent who makes financial sacrifices to support the family. Because of systemic sexism (i.e., that women still make significantly less for the same jobs as men, particularly if they are women of color), in opposite-sex relationships, it will often make the most economic sense for women to make the financial sacrifice, factoring in “financial stability” would result in systemic discrimination against (primarily) women in parenting decisions.

 

 

 

Summary of February 2017 Supreme Court Decisions

Appellate decisions within two weeks of 2/28/17:

Washington State Supreme Court Decisions:

  • In re Marriage of Zandi, 92296-9 (unanimous opinion)- Court held that out-of-network expenses are uninsured medical expenses and must be paid according to the parties’ child support order.
  • “The legislature defines ‘” [u]ninsured medical expenses”‘ as costs “not covered” by insurance. RCW 26.18.170(18)(d). WAC 388-14A-1020 clarifies that this includes costs “not paid” by insurance, even if those costs would be covered under other circumstances. Because the health care expenses in this case are unambiguously within the scope of RCW 26.18.170(18)(d), financial responsibility is allocated by the 2009 order and may not be modified absent evidence of changed circumstances or other evidence consistent with the requirements of RCW 26.09.170(6)-(7).”

    • In this case, it didn’t matter that the father had requested the mother get pre-approval from the insurance company, the mother thought that the issue was urgent enough to require immediate attention. Nothing in the record indicated that the mother acted in bad faith (she did request pre-approval and was assured by hospital staff it would be approved). The court said that to look at the fact that the father did not have a say in the incurrence of the out-of-network expense, “incorrectly introduces concepts of marital fault into the enforcement of a child support order.”
  •  Estate of Ackerley v. Dep’t of Revenue, 92791-0 , (5-4 opinion, Madison authored majority, Wiggins authored the dissent). This is a case concerning the Estate and Transfer Tax Act, chapter 83.100 RCW. There is something called the “gross-up rule” wherein the federal government assesses estate taxes on gift taxes paid within three years of death. The question was whether they also needed to be included as a part of the Washington taxable estate (this would result in more taxes being owed to the state). The majority said yes. The court held:
    • “Following the legislature’s clear mandate, we must also find that the gift tax paid is part of the Washington taxable estate and transferred upon death as part of the entire estate. Thus, the Washington State Department of Revenue (DOR) properly included the gift tax paid in its assessment of Barry Ackerley’s estate.”

    • The focus of the majority is on the concept of “transfer.”
    • The dissent argued that, “[w]here no transfer exists, Washington’s Constitution prohibits the imposition of an excise tax.” In this case, the federal gift taxes were fully and finally paid during life, so no transfer of gift occurred at death. This would mean exclusion of the gift tax from Washington’s estate tax. This focus of the dissent is on the concept of “direct tax:”
    • “Because the estate tax is imposed on a “transfer of property,” it is an excise tax, not a direct tax. And because the tax is not a direct tax, it is not subject to the uniformity requirement of the Washington Constitution.”

 

  • In re Disciplinary Proceeding Against Conteh, 201,448-8  (unanimous opinion – Madsen author). This case involves the suspension of an attorney and whether the Disciplinary Board should have reviewed the case on its own, even when the attorney did not appeal the suspension. The disciplined attorney appealed the decision of the Disciplinary Board not to review the suspension. The court noted that the attorney did not identify any specific assignments of error or any findings he disagreed with. Since unchallenged facts are assumed to be true on appeal, the attorney had no basis for his appeal.

 

  • Lundgren v. Upper Skagit Indian Tribe, 91622-5 (5-4 opinion – Johnson authored majority, Stephens authored dissent). This case involves a property dispute involving land that was purchased by a tribe and where there had been a long-term fence that was inconsistent with documented boundary lines.
    • Majority Opinion: There were issues of sovereign immunity because of the tribal ownership of the land. The issue involved In Rem jurisdiction and the right of Washington Courts to decide actions regarding property. The majority discussed CR 19 and whether the tribe was a necessary party and determined because the Lundgren’s obtained possession long before the Tribe acquired the disputed property, the Tribe was not a necessary party and therefore there was no concern regarding sovereign immunity. The majority also noted that there would be no other remedy without suit in Washington Superior Court.
    • Dissent: The dissent’s argument is captured succinctly with this quote:

      “While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach[es] and discount[s] the merits of [the Tribe’s] claims.”

 

  • Peralta v. State, 92675-1  (Unanimous Opinion – Wiggins author). This case involved an admission during pretrial discovery (discovery is where both sides ask questions and provide documents relevant to the case). There is a part of discovery where you can be asked to admit or deny certain facts. This case involved an issue where a woman was hit while walking while intoxicated. She admitted in discovery that she was intoxicated and didn’t attempt to qualify it, like she had a drink, but didn’t think she was impaired. The trial court allowed the admission and required her to be bound by it, including it in a jury instruction. The jury found that Peralta’s intoxication was more than 50% of the reason why Peralta was hit. The Supreme Court upheld the trial court’s decision because the intoxication defense statute provides a complete defense to an action for personal injury when the person injured “was under the influence of intoxicating liquor” at the time of the injury.
  • State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. I hope to blog about this case in more detail soon, but in the meantime, here are the basics.
    •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
      • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
      • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

      • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
        • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

      • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association'” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Washington State Supreme Court – Estate Case

The Washington State Supreme Court released an opinion in an Estate case:

In re Estate of Jepsen, Docket No. 90874-5; Opinion Author – Yu; joined by Madsen, Fairhurse, Wiggns, Gonzalez; Dissent Author – Stephens, joined by Johnson, Owens, and McCloud. Attorney for Petitioners  –  Susan L. Caulkins and Ingrid Linnea Daun Mcleod of Davies Pearson, P.C.; Counsel for Respondent – Robert P. Dickson, Dickson Law Group, P.S.

Basics of Decision: While this case concerned an estate dispute the appellate issue was a procedural issue. The question was whether the there was timely personal service of the will contest petition on the estate’s personal representative. Person service was not served on the personal representative and the State Supreme Court majority found that the case was never fully commenced and should have been dismissed.

Basic Facts: Jespen wrote her will on 7/1/09 and died on 11/16/11. On 12/20/11 her will was admitted to probate and appointed Julie Miles as PR with nonintervention powers. On 3/22/12 Jespsen’s adult son Mack filed a petition to contest the validity of the will. Mack’s attorney e-mailed the petition to the PR’s attorney the same day it was filed. Nothing in the record showed that the PR affirmatively agreed to accept e-mail service on her attorney in lieu of personal service on the PR. On 4/27/12, the PR filed a response denying its substantive allegations but not raising any affirmative defenses (i.e., did not at this time raise the issue of lack of service).

On 10/31/12, the PR filed a motion to dismiss Mack’s petition because it was not personally served within 90 days of filing. The trial court initally granted but then reversed itself on reconsideration holding that service under 11.24.010 went solely to personal jurisdiction and that the objection had been waived. The PR appealed and the Court of Appeals affirmed the trial court and it was appealed to the State Supreme Court.

The Majority

The court identified two issues: (A) Did the Court of Appeals correctly hold that the PR waived any objection to Mack’s failure to comply with RCW 11.24.010? and (b) Is either party entitled to attorney fees and costs on appeal? The court’s simple answer was that RCW 11.24.010 is clear that personal service is required in order to commence a will contest, but to express its disapproval of PR’s delay in raising the issue, the court denied the parties’ request for attorney fees and costs on appeal.

The son’s argument around the plain language of the statute was to argue that personal service was only required to gain personal jurisdiction over the PR and that the PR waived any objection on that basis under CR 12(h)(1) (waiver of a defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service is waived if it is neither made by motion under the rule nor included in a responsive pleading).

The court’s response to this argument is there is a difference between notice of and the commencement of a will contest. Washington Courts have always strictly enforced the requirements for commencing a will contest action and their holding adhering to the language of the RCW requiring personal service in order to commence a will contest action is consistent with the history of strictly enforcing the requirements. The court also adds a footnote 7 that says that the PR’s response was superfluous and that an automatic waiver under CR 12(h)(i) is inconsistent with the plain language of RCW 11.24.010 and so would not have been applied anyway.

The son also made an argument that RCW 11.24.010 would conflict with CONST. art. IV, § 6 and divest the superior courts of their constitutional jurisdiction over “all matters probate.” The majority disagreed with this argument stating that the legislature may prescribe reasonable regulations without divesting the court of its jurisdiction and that RCW 11.24.010 does just that.

The Dissent

The dissent frames the case as a dispute concerning whether the statutory personal service requirement speaks to the superior court’s subject matter jurisdiction over will contest proceedings or to personal jurisdiction over the PR. For the dissent, this distinction is crucial as subject matter jurisdiction can be raised at any time, but personal jurisdiction  can be waived. The dissent feels that the case involves personal jurisdiction and the defense of lack of personal service was waived.

The dissent also acknowledged that there is a significant amount of confusion in the difference of personal jurisdiction and subject matter jurisdiction and that they disagree with the majority in this case regarding what is at issue here (which speaks volumes about how profound this confusion is since it was a 5-4 decision, so the confusion still abounds).