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.