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 Rejects Discrimination in the Name of Religion

On February 16, 2016, the Washington State Supreme Court issued its unanimous opinion definitively declaring that Washington State’s nondiscrimination law does not violate religious freedom. The opinion walked through all of the claims by Arlene’s Flowers and eloquently refuted each claim/defense. The decision is best summarized by this paragraph:

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.

I’m going to do this blog a little differently than others, as I suspect this blog will be of greater interest to nonlawyers than many of my other blogs regarding court decisions. I’ll lead with an analysis of the importance of this case and then follow up with the more technical information that attorneys will likely find more interesting.

From the perspective of using the law as a tool for greater social justice, there are two major components of this case. The first is that this case unequivocally supported a state’s rights to provide protections for its residents in public accommodations. This case was seeking to invalidate public accommodations laws that could be argued to conflict with a person’s religion. The problem with that is that religion is often the basis for the most invidious forms of oppression and discrimination. Slavery was said to be god’s plan. Segregation, god’s plan. Women not voting or being allowed access to certain jobs, because of the special role as mothers that god out outlined for them. Criminalization of sexual relationships between nonmarried individuals – god’s law. Criminalization of same-sex sex – god’s law.

The attempt to create a loophole in anti-discrimination laws by arguing that it violated religious expression is incredibly dangerous, because there continue to be people who hold beliefs inconsistent with a society seeking to value all its members. It may start with flowers for a wedding between two men, but it isn’t long before it’s separate lunch counters all over again.

The second, equally important reason for the importance of this case is there is now affirmative case law that says that individuals, as well as the Attorney’s General Office, have standing to sue anyone who violates the Washington Law Against Discrimination, and since a violation of the WLAD is a per se violation of the Consumer Protection Act, it establishes a precedence for suing for violating the CPA. The CPA provision made it clear a person could be sued as a business and in an individual capacity. This ruling will make a letter from the Human Rights Commission or the Attorney’s General Office to a business demanding they cease engaging in discriminatory practices more powerful. It also has the power to make individual complaints more powerful, because individuals also have the right to sue and obtain attorney’s fees for their suits.

This case was also incredibly important because those whose oppose the existence of same-sex relationships use a case like this to create broader policy. Washington is one of about 19 states, including D.C., with protections for the LGBTQ community, and two more have protections for the people who are lesbian, gay, or bisexual. If the proponents of the Arlene’s Flowers case had been successful, they would have had a case that could establish a precedent to invalidate all of the laws protecting the LGBTQ community.

This issue could be appealed to the U.S. Supreme Court. It’s impossible to read the tea leaves of the Supreme Court (but if you’re interested in the best podcast I’m aware of about the Supreme Court, check out Amicus with Dahlia Lithwick produced by Slate and Panoply). Nevertheless, my prediction is that the Supreme Court will not take this case. In 1996, the Supreme Court decided Romer v. Evans, 517 U.S. 620 (1996). This case involved a state law denying local jurisdictions (cities and counties) from passing ordinances to protect LGBTQ individuals. The Supreme Court found that the blanket refusal to allow protections was not rational and violated the Equal Protection Clause. The attempt by anti-LGBTQ advocates to carve out exceptions to anti-discrimination laws is reminiscent of this case. In addition, as far as I know, every attempt to carve out these exemptions has failed, and there simply is no reason for the U.S. Supreme Court to take the case. While the intersection of the First Amendment, religion, conduct-versus-belief and status and conduct are interesting, the cases where people attempt to use religious ideology to allow them to discriminate in secular businesses falls into a category of “settled law.” That means that it has been argued and decisions have been made and society has moved forward, relying on the understandingthat  this issue is settled.

Now for the details that may not be of interest to nonlawyers.


State v. Arlene’s Flowers Inc; Docket No. 91615-2;

Opinion Author – J. McCloud- unanimous decision;

Attorneys for Appellant Arlene’s Flowers – George Ahrend from Ahrend Law Firm, PLLC Kristen Waggoner and Jeremy Tedesco from Alliance Defending Freedom

Attorneys for Respondents (State/Couple): Michael Ramsey Scott, Amit Ranade, Michael Ewart from Hillis Clark Martin & Peterson PS; Margaret Chen and Elizabeth Gill from ACLU-WaA Bob Ferguson, Todd Bowers, Noah Purcell Alan Copsey, Rebecca Glasgow from the Washington State Attorney General’s Office, and Kimberlee Gunning from Columbia Legal Services.

There were a number of Amicus Curia briefs from a variety of different organizations.


Basic Facts

  • Robert Ingersoll and Curt Freed are gay men who have been in committed relationship since 2004.
  • Arlene’s Flowers is owned by Barronelle Stutzman.
  • Throughout their relationship, they (particularly Mr. Ingersoll) purchased flowers from Arlene’s Flowers and specifically Ms. Stutzman for birthdays and anniversaries.
  • Stutzman knew Mr. Ingersoll and Mr. Freed were gay and in a committed relationship.
  • After Washington ended marriage discrimination in December 2012, Mr. Ingersoll proposed and he and Mr. Freed began planning their marriage ceremony.
  • Ingersoll went to Arlene’s Flowers and Ms. Stutzman to order flowers for the ceremony.
  • Stutzman refused to sell flowers for their wedding because of her “relationship with Jesus Christ.” Ms. Stutzman formed a policy that because of her religious belief that marriage should be between a man and a woman, there would be a store-wide policy prohibiting the sale of flowers for same-sex marriage or commitment ceremonies.
  • Arlene’s Flowers is a for profit business with no religious purpose or affiliation.
  • Instead of a large wedding with over a hundred people, they ended up having a small wedding with only 11 people and one flower arrangement.

Procedural Facts

  • This case involves the consolidation of two cases: one filed by the State of Washington and one filed by Mr. Ingersoll and Mr. Freed. The claims in this case were that Arlene’s Flowers violated the Washington Law Against Discrimination and the Consumer Protection Act.
  • The trial court granted the injunctive relief and held that anything that Arlene’s Flowers sells must be sold equally, and she cannot deny services based on sexual orientation. The trial court rejected the attempt by Arlene’s Flowers to claim that providing flowers was an undue burden on her religious expression, as it essentially compelled her to provide support for same-sex marriages.
  • The case was appealed directly to the Washington State Supreme Court.
  • On November 15, 2016, the Washington State Supreme Court heard oral argument.


Relevant Statutes:

Washington Law Against Discrimination – prohibition on discrimination in the realm of public accommodations:

(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of … sexual orientation ….

RCW 49.60.215. The protected class status of “sexual orientation” was added to this provision in 2006. LAws OF 2006, ch. 4, § 13.

RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of

the WLAD. To make out a prima facie case under the WLAD for discrimination in

the public accommodations context, the plaintiff must establish four elements: (1)

that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the

defendant is a place of public accommodation, RCW 49.60.215; (3) that the

defendant discriminated against the plaintiff, whether directly or indirectly, id.; and

( 4) that the discrimination occurred “because of’ the plaintiffs status or, in other

words, that the protected status was a substantial factor causing the discrimination,

RCW 49.60.030. 

 The WLAD provides that an act of public accommodation discrimination is an “unfair practice” and a per se violation of the CPA. RCW 49.60.030(3).

 Consumer Protection Act

Because an act public discrimination is a per se violation of the Consumer Protection Act, the question before the court was whether Ms. Stutzman could be personally liable under the CPA. As the Supreme Court noted, the CPA authorizes the attorney general to bring an action against “against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful,” RCW 19.86.080(1), and defines “person” to include “where applicable, natural persons,” as well as corporate entities, RCW 19.86.010(1).


Relevant Portions of the U.S. and Washington State Constitutions

First Amendment to the U.S. Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Article I, section 11 of the Washington State Constitution (the part the Court described as relevant):

Absolute freedom of conscience in all matters of religious sentiment, belief, and worship shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.


The court discussed speech and conduct that is expressive enough to be protected as speech and determined that there was nothing inherently expressive in flower arrangements and that without significant further context, no one would understand the flowers to say anything.


The court also noted that the WLAD is a neutral, generally applicable law that was not created for the purpose of infringing upon or restricting practices because of their religious motivation. As such, it only had to meet a rational basis. Nevertheless, the court also concluded that assuming, without deciding, that even applying strict scrutiny to the WLAD, the WLAD satisfies the standard.