supplement summer 2012 news with a competitive edge Scorecard & Guide to the Washington Supreme Court

Transcription

1 supplement summer 2012 news with a competitive edge 2012 Scorecard & Guide to the Washington Supreme Court

2 Meet the Washington Supreme Court editorial staff Don C. Brunell, Publisher Jocelyn A. McCabe, APR, Executive Editor Kristopher I. Tefft, General Counsel awb officers Tom Hosea, Chair of the Board KeyBank, Tacoma Doug Bayne, Vice Chair Walla Walla Community College, Walla Walla Mel Russell, Secretary/Treasurer Aldercreek Vineyards, Vancouver Front row, from left: Justice Susan Owens, Associate Chief Justice Charles Johnson, Chief Justice Barbara Madsen, Justice Tom Chambers, Justice Mary Fairhurst. Back row, from left: Justice Charlie Wiggins, Justice James Johnson, Justice Debra Stephens, Justice Steven Gonzales. Chief Justice Barbara Madsen was elected to the court in 1992 and re-elected in 1998, 2004 and As Chief Justice, she is the court s chief spokesperson, presides over Supreme Court hearings and conferences and co-chairs the state s Board for Judicial Administration, the policy arm of the state judiciary. Associate Chief Justice Charles Johnson is the senior justice on the court. He was elected in 1990, won re-election in 1996, 2002 and Lynn Townsend-White, Immediate Past Chair Western Polymer, Moses Lake Don C. Brunell, President The late C. David Gordon, Honorary President awb senior staff Don C. Brunell, President Gary Chandler, VP, Government Affairs Kris Johnson, VP, Operations Jocelyn A. McCabe, APR, VP, Communications Justice Tom Chambers was elected to the court in 2000, was re-elected in 2006 and is not seeking re-election this fall. Justice Susan Owens was elected to the court in 2000, was re-elected in 2006 and again in Justice Mary Fairhurst was elected to the court in 2002 and re-elected in Justice Jim Johnson was elected to the court in 2004 and re-elected in Justice Debra Stephens was appointed to the court by Gov. Chris Gregoire in 2007, and was confirmed in an election in Justice Charles Wiggins was elected to the court in Justice Steve González is the newest member of the court, appointed by Gov. Gregoire in January He won re-election in the August primary. PO Box 658, Olympia, WA T F judicial scorecard is designed by: Daniels-Brown Communications T association of washington business

3 2012 Judicial Scorecard and Guide to the Washington Supreme Court Kristopher I. Tefft AWB General Counsel The Association of Washington Business is proud this year to present the fifth installment of our Judicial Scorecard and Guide to the Supreme Court. Designed to inform and educate our membership and the general public about the important work of the state s highest court as it relates to the business community, this year s Scorecard builds upon the evaluations set forth in our 2004, 2006, 2008 and 2010 editions. the importance of the washington supreme court to business The Washington Supreme Court is the state s highest court and court of last resort in the interpretation of state laws. Of the roughly 150 cases the court hears in a given year, about half of them are civil cases, and about half of those involve new and complex legal issues of interest to Washington s business community. Washington Supreme Court decisions, whether interpretations of laws passed by the Legislature, or interpretations of our state constitution, establish the precedent that becomes part of the law Washington businesses must follow. In that sense, our state s legal climate becomes a prominent and often permanent thread in the fabric of our business climate, impacting competitiveness by establishing key rules by which businesses must operate. AWB is often able to address the court with its perspective on legal issues that come before it, through the association s amicus curiae ( friend of the court ) program, whereby AWB submits legal briefs in certain cases sharing the perspective of the business community. Many of the cases featured in this publication involve the submission of an amicus brief to the court. It is less often, however, that AWB is able to share the day to day work of the court with the public and our members, from the perspective of how often AWB agrees or disagrees with the outcomes reached by the court. That is the purpose of our Judicial Scorecard. understanding and using the scorecard Supreme Court Justices are not, by constitutional design, legislators. They are under an obligation to independently interpret and apply the law to a particular set of facts present in a given case without regard to personal or political beliefs. Any effort to score justices votes, then, must recognize it is not like scoring the votes of legislators. Our Judicial Scorecard takes into account that unique role of the court as an equal yet independent branch of government, recognizing that it is more an art than a science to highlight philosophical or practical differences between justices on important cases. The best use of the scorecard is to highlight philosophical trends that may become evident over time. Washington Supreme Court Facts The number of justices serving on the Supreme Court has varied from the original five to the present nine. Each justice serves a six-year term, with three submitting themselves to the electorate every two years. The governor fills vacancies that occur through resignation or death, but these appointees must gain approval of the voters at the next general election. In 1907, the Legislature established a direct nonpartisan election system for nominating judges, replacing political party conventions. Separate nonpartisan ballots were also authorized for the November general elections, removing judges from the political party lists. Except for a brief return to partisanship in 1912, the names of candidates for the Supreme Court have subsequently appeared on nonpartisan ballots. The Chief Justice presides at all court sessions, handles administrative responsibilities, chairs the state judicial conference and represents the court and judicial system in many public appearances. The Supreme Court has almost total discretion in determining which cases it will hear and decide; death penalty cases are automatically reviewed. Each year, the Supreme Court publishes nearly 150 final opinions, each decision representing lengthy and thorough research and consideration by all nine members of the court, working both together and individually. The work of the court gives meaning and content to the American concept of freedom and liberty, to the preservation of our constitutional right, and to making a reality of our ideal of Equal Justice Under Law. Source: Washington Courts special edition

4 Judicial Scorecard Selection Criteria The Scorecard is compiled through a series of selection criteria for cases and a scoring methodology. The compilation is meant to both involve the input of the AWB membership and arrive at a fair and accurate picture of an individual justice s decisions in important business cases. cases were chosen through the awb committee process Input was provided by AWB s Legal Affairs Committee and policy committees within its Governmental Affairs Council. These committees are composed of attorneys and non-attorney representatives from the more than 7,900 businesses that make up AWB s membership and include leading experts on the issues most important to Washington businesses. decisions have a significant impact on washington businesses The cases selected for inclusion in the record must have a significant impact, either positive or negative, on the business climate in Washington. Decisions are labeled as AWB agrees with this decision if they are pro-business and AWB disagrees with this decision if they are not considered pro-business. In general, decisions with a positive impact on one type of business at the expense of other businesses were excluded. cases span the last two years The nine justices of the Washington Supreme Court serve staggered six-year terms, with three positions up for election every two years. Coinciding with this year s election cycle, our case review spans decisions issued from Scoring Criteria Justices were evaluated in comparison to the position AWB agrees with in a given case. Justices were not scored for a case if they did not participate in a decision. The participation rate for the justices is indicated in a separate column. Justices who concurred in part and dissented in part are scored to the extent their view from the split opinion is apparent on the issue of concern to the business community. Scores do NOT reflect the authorship of opinions. However, in the case summaries, the authorship of majority and dissenting opinions is noted, where applicable. Justices receive an overall pro-business score based upon AWB s agreement with their decisions in the six combined issue categories. cases are divided into six business issue categories; each case is listed within one of six categories The categories are: employment law, environment and land use, tax and fiscal policy, workers compensation and unemployment insurance, torts (which includes insurance and general liability) and general business issues. Some cases may involve legal elements that span more than one category, but are scored only in the category in which they are listed. Case Participation Of the 23 cases selected for review, the following percentages indicate the participation rate of the justices serving during the period under review. Overall Pro-Business Score Scores are only calculated based upon cases in which the justices participated. Average Pro-business scores averaged from case participation overall pro-business score Justice Average Chief Justice Madsen 100% 100% 52% 41% 54% 49% 68% 53% Justice C. Johnson 100% 100% 43% 67% 54% 42% 50% 51% Justice Alexander 91% 96% 81% 69% 58% 53% 59% 64% Justice Sanders* 52% 100% 33% 67% 76% 75% 63% 63% Justice Chambers 96% 100% 18% 41% 40% 47% 33% 36% Justice Owens 100% 100% 48% 52% 35% 47% 55% 47% Justice Fairhurst 100% 81% 35% 55% 38% 45% NA 43% Justice J. Johnson 100% 96% 96% 85% 92% 82% NA 89% Justice Stephens 96% 85% 14% 39% NA NA NA 27% Justice Wiggins* 39% NA 22% NA NA NA NA NA Justice Gonzalez* 9% NA 50% NA NA NA NA NA 0% 100% *Justices Sanders served on the court through 2010, and Justice Alexander through 2011 and remain listed on cases argued during their period of service. Justice Wiggins joined the court in 2011; Justice Gonzalez joined in association of washington business

5 Employment Law 4 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez Deputy Sheriff s Guild v. Kitsap County NP NP Roe v. TeleTech NP NP Cudney v. ALSCO NP NP Anfinson v. FedEx NP + - NP NP NP % 50% 50% 0% 0% 50% 50% 100% 25% 100% 0% pro-business percentage % 67% 67% 100% 0% 0% 0% 100% 0% NA NA % 67% 67% 100% 50% 50% 33% 100% NA NA NA % 50% 67% 33% 17% 67% 50% 100% NA NA NA % 36% 64% 64% 13% 63% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable Kitsap County Deputy Sheriff s Guild v. Kitsap County 167 Wn.2d 429 (2010) In Deputy Sheriff s Guild, the court limited employers flexibility by upholding a labor arbitrator s decision to reinstate a deputy sheriff who had been terminated after numerous documented acts of dishonesty, misconduct, and insubordination, finding no strong public policy against employing law enforcement officers under such circumstances. Roe v. TeleTech Customer Care Management LLC 171 Wn.2d 736 (2011) In Roe, the court upheld the right of an employer to terminate an employee for failing a preemployment drug test for medical marijuana usage. Cudney v. ALSCO, Inc. 171 Wn.2d 524 (2011) In Cudney, the court refused to expand lawsuits for wrongful discharge in violation of public policy in a claim brought by an alleged workplace safety whistleblower. Anfinson v. FedEx Ground Package Systems, Inc. Wn.2d (2012)* In Anfinson, the court developed a broad and unworkable definition of economic dependence to be used to determine whether an individual is an employee or independent contractor under the state s Minimum Wage Act. *Citation numbers not available as of press time. Justice Susan Owens wrote opinion Justice Sanders concurred Justice J. Johnson wrote dissent Justice Wiggins wrote opinion Justice Chambers wrote dissent Justice Stephens wrote dissent Justice C. Johnson dissented Justice Chambers dissented Justice Sanders dissented Justice Gonzalez concurred Justice C. Johnson wrote dissent Justice J. Johnson dissented special edition

6 Workers Compensation & Unemployment Insurance 2 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez Kustura v. L&I NP NP NP Tobin v. L&I NP NP % 50% 50% 0% 0% 50% 100% 100% 0% NA NA pro-business percentage % 40% 20% 40% 20% 40% 50% 60% 40% NA NA % 0% 0% 80% 20% 0% 0% 75% NA NA NA % 100% 100% 67% 67% 100% 100% 100% NA NA NA % 29% 57% 14% 20% 60% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable Kustura v. Dept. of Labor & Industries 169 Wn.2d 81 (2010) In Kustura, the court appropriately limited the provision of government-provided interpreter services in workers compensation appeals. Tobin v. Dept. of Labor & Industries 169 Wn.2d 396 (2010) In Tobin, the court limited the ability of the Department of Labor & Industries and self-insured employers to reimburse themselves for benefits paid to a worker injured by the negligence of a third party when the worker recovers money from the negligent party. Justice J. Johnson wrote opinion Justice Chambers wrote dissent Justice Sanders dissented Chief Justice Madsen wrote opinion Justice Sanders concurred Justice Fairhurst wrote dissent Justice J. Johnson dissented 6 association of washington business

7 Environment & Land Use 4 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez Kittitas County v. EWGMHB NP NP Knight v. City of Yelm NP NP Five Corners Family Farmers v. State NP NP Cary v. Mason County NP NP % 50% 25% 100% 75% 50% 50% 100% 25% 33% NA pro-business percentage % 63% 50% 100% 75% 63% 63% 100% 67% NA NA % 75% 50% 100% 67% 33% 75% 100% NA NA NA % 46% 46% 92% 62% 46% 46% 89% NA NA NA % 54% 57% 100% 56% 44% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable Kittitas County v. Eastern Washington Growth Management Hearings Board 172 Wn.2d 144 (2011) In Kittitas County, the court upheld a hearing board decision finding elements of the county s comprehensive plan and development regulations out of compliance with the Growth Management Act. Knight v. City of Yelm 173 Wn.2d 325 (2011) In Knight, the court held in favor of a neighboring opponent of residential development who sued under the Land Use Petition Act to stop a proposed development out of concern it would affect opponent s water rights. Five Corners Family Farmers v. State 173 Wn.2d 296 (2011) In Five Corners, the court held that withdrawals of groundwater for stock watering purposes are not limited to any particular quantity. Cary v. Mason County 173 Wn.2d 697 (2012) In Cary, the court struck down on statutory grounds a county s improper conservation district assessment. Justice Chambers wrote partial dissent Justice J. Johnson wrote partial dissent Justice Sanders dissented Justice Wiggins wrote opinion Justice J. Johnson wrote dissent Justice Wiggins wrote dissent Justice Madsen dissented Justice Stephens dissented Justice Alexander wrote opinion Justice Wiggins concurred special edition

8 Tax & Fiscal 4 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez G-P Gypsum Corp. v. Dept. of Revenue NP NP Lamtec Corp. v. Dept. of Revenue NP NP Qualcomm v. Dept. of Revenue NP NP Tesoro v. Dept. of Revenue NP NP % 50% 0% 100% 25% 25% 0% 75% 0% 0% NA pro-business percentage % 100% 40% 100% 60% 60% 67% 100% 60% NA NA % 100% 67% 67% 67% 33% 33% 100% NA NA NA % 50% 50% 75% 75% 50% 0% 50% NA NA NA % 63% 75% 88% 75% 75% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable G-P Gypsum Corp. v. Dept. of Revenue 169 Wn.2d 304 (2010) In G-P Gypsum, the court upheld a city s use tax on a manufacturer s use of natural gas, despite the fact that the company s first use of the gas occurred outside city limits. Lamtec v. Dept. of Revenue 170 Wn.2d 838 (2011) In Lamtec, the court upheld, under the federal commerce clause, the imposition of B&O taxes on an out-of-state manufacturer despite the lack of physical presence in the state. Qualcomm v. Dept. of Revenue 171 Wn.2d 125 (2011) In Qualcomm, the court adopted a primary purpose of the purchaser rule for determining whether to apply the network telephone service or information service B&O tax rate when a service involves both the collection and processing of data and the transmission of data. Justice Stephens wrote opinion Justice Sanders wrote dissent Justice C. Johnson dissented Justice J. Johnson dissented Justice Chambers wrote opinion Justice Alexander wrote dissent Justice J. Johnson dissented Justice Sanders dissented Justice Chambers wrote opinion Justice Sanders concurred Justice Fairhurst wrote dissent Chief Justice Madsen dissented Justice Stephens dissented Tesoro Refining & Marketing, Inc. v. Dept. of Revenue 173 Wn.2d 551 (2012) In Tesoro, the court allowed for the retroactive limitation of a B&O tax deduction for bunker fuel after clarifying legislation by the Legislature. AWB filed an amicus curiae brief in this case and disagrees with this decision. Justice J. Johnson wrote opinion Justice Wiggins concurred 8 association of washington business

9 Torts (Insurance, General Liability) 5 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez Holden v. Farmers Insurance Company NP NP Burton v. Twin Commander Aircraft, LLC NP NP Mohr v. Grantham NP NP Moeller v. Farmers Insurance Company NP NP NP Matsyuk v. State Farm Insurance Company NP NP % 20% 80% 0% 0% 40% 20% 100% 0% 0% NA pro-business percentage % 80% 40% 0% 20% 80% 75% 80% 0% NA NA % 60% 80% 50% 40% 60% 60% 100% NA NA NA % 0% 33% 67% 0% 0% 33% NA NA NA NA % 50% 75% 36% 9% 55% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable Holden v. Farmers Insurance Company 169 Wn.2d 750 (2010) In Holden, the court found an insurance contract ambiguous and interpreted it to require reimbursement for lost or damaged property to include sales tax amounts. Burton v. Twin Commander Aircraft, LLC 171 Wn.2d 204 (2011) In Burton, the court limited the liability of an airplane manufacturer sued for wrongful death arising from an airplane crash, finding that for purposes of the relevant federal law, the company was not the manufacturer of the airplane in question. Justice Stephens wrote opinion Justice Sanders concurred Justice J. Johnson wrote dissent Justice Owens dissented Chief Justice Madsen wrote opinion Justice Stephens wrote dissent Justice Sanders dissented Justice Chambers dissented Mohr v. Grantham 172 Wn.2d 844 (2011) In Mohr, the court expanded liability, creating a cause of action for a lost chance of a better outcome in the medical malpractice context where the ultimate harm is something short of death. Justice Wiggins concurred Chief Justice Madsen wrote dissent Justice J. Johnson wrote dissent special edition

10 Moeller v. Farmers Insurance Company 173 Wn.2d 264 (2011) In Moeller, the court re-interpreted the plain language of an insurance contract, requiring the insurance company to both pay for the repair of damaged property and pay compensation for its diminished value, despite contract language to the contrary. Matsyuk v. State Farm Insurance Company 173 Wn.2d 643 (2012) In Matsyuk, the court created a new equitable sharing basis for attorneys fees in certain liability cases. Justice Stephens wrote opinion Chief Justice Madsen wrote dissent Justice Alexander wrote dissent Justice J. Johnson dissented Justice Stephens wrote opinion Justice Wiggins concurred Chief Justice Madsen wrote dissent Justice J. Johnson dissented 10 association of washington business

11 General Business Interest 4 cases case name Alexander C. Johnson Madsen Sanders Chambers Owens Fairhurst J. Johnson Stephens Wiggins Gonzalez Sound Infiniti v. Snyder NP NP Schnall v. AT&T Wireless NP NP Minnick v. Clearwire US, LLC NP NP Washington Ass n for Substance Abuse and Prevention v. State NP - + NP % 50% 100% 0% 0% 75% 75% 100% 25% 0% 100% pro-business percentage % 0% 0% 0% 0% 0% 0% 0% 0% NA NA % 33% 67% 33% 0% 33% 33% 67% NA NA NA % 14% 17% 86% 43% 29% 29% 67% NA NA NA % 83% 100% 50% 50% 40% NA NA NA NA NA + AWB Supports Decision - AWB Opposes Decision NP: Not Participating NA: Not Applicable Sound Infiniti v. Snyder 169 Wn.2d 199 (2010) In Sound Infiniti, the court affirmed that an appraisal proceeding, rather than a shareholder derivative action, is the sole remedy under state law to a dissenting former shareholder. AWB submitted an amicus curiae brief in this case and agrees with this decision. Schnall v. AT&T Wireless Services, Inc. 171 Wn.2d 260 (2011) In Schnall, the court denied certification of a nationwide class action under Washington s Consumer Protection Act. Minnick v. Clearwire US, LLC 174 Wn.2d 443 (2012) In Minnick, the court applied contract law principles to uphold a telecommunications contract provision that charges customers a fee for terminating the contract prematurely. Washington Ass n for Substance Abuse and Violence Prevention v. State Wn.2d (2012)* In Washington Ass n, the court upheld Initiative I-1183 (privatization of spirits market) against various constitutional challenges. *Citation numbers not available as of press time. Justice Sanders wrote dissent Justice Chambers dissented Justice Stephens dissented Chief Justice Madsen wrote opinion Justice Chambers wrote partial dissent Justice Sanders wrote dissent Justice Owens dissented Justice Stephens dissented Justice Chambers wrote dissent Justice C. Johnson wrote dissent Justice Stephens wrote dissent Justice Wiggins dissented Justice Gonzalez wrote opinion Justice Chambers wrote partial dissent Justice Wiggins wrote dissent Justice C. Johnson dissented Justice Fairhurst dissented special edition

12 Look for us behind some of the state s best businesses. Sterling Bank is proud to have partnered with many of the dedicated business owners who ve made our community a better place to live. We look forward to doing the same for you. Whether you need a full range of commercial banking services or basic advice on how to get started, we have all the solutions you need for every stage of your business. Including knowledgeable bankers who are behind you all the way. Nobody works harder for you. BankWithSterling.com