Tacking Trademark Rights on Appeal, Question of Law or Fact?

        Hana Financial Inc. v. Hana Bank, No. 11-56678 (9th Cir. Nov. 22, 2013) For the purposes of this blog, the facts are largely irrelevant, but to read the extended analysis of this case you can contact me by clicking the "contact" link at the top of the page and submit a request.  Here, I will only discuss the appellate implications. A party claiming trademark ownership must establish that it has priority, meaning it was the first to use the mark in ... [Continue Reading]

Under WEAJA, No Judicial Review, No Attorneys’ Fees

  More on Attorneys' Fees   In re Dependency of A.P., No. 30925-8-III (Nov. 14, 2013) DSHS filed a petition and alleged A.P. was a dependent of the State, but B.P. successfully opposed it in superior court and retained custody of her daughter. She sought an award of reasonable attorney fees and costs under Washington's equal access to justice act (WEAJA) in RCW 4.84.350.  WEAJA awards attorneys’ fees to qualified parties who prevail in a judicial review of an agency ... [Continue Reading]

State Does Not Get Attorneys’ Fees for PRP Challenging DOC’s Administrative Disciplinary Action

      When prisoner Derek Gronquist was sanctioned loss of early release credits for allegedly assaulting a correctional officer, he filed a personal restraint petition in the Washington Supreme Court to challenge it.  Personal Restraint of Gronquist, No. 87666-5 (Nov. 14, 2013).  The court’s commissioner dismissed the petition, but awarded the State attorneys’ fees of $200 under RCW 10.73.160(2).  The court found that a challenge to the department’s ... [Continue Reading]

90 Day Presuit Notice Requirements Do Not Violate Equal Protection

McDevitt v. Harborview Medical Center, No. 85367-3 (Nov. 14, 2013)   Glen McDevitt had a paragliding accident that required surgery at Harborview Medical Center, a King County public hospital.  He alleges he was taken off anticoagulant medication after surgery and sued for damages.  Harborview moved for summary judgment based on the undisputed fact that McDevitt failed to comply with the 90 day presuit notice requirement of former RCW 7.70.100(1) for all medical malpractice suits.  ... [Continue Reading]

The Battle of the Presumptions: No Majority Rule In WA On Conflicting Presumptions

The Court of Appeals recently declined to make a bright line rule about conflicting presumptions in Drown v. Boone, NO. 67255-0-1, (Ct. App. Oct. 28, 2013). Randall Langeland and Sharon Drown were in a committed intimate relationship from 1983 until 2009 when Langeland died.  His personal representative inventoried proceeds from a software company Langeland founded in 1994, a house that he purchased with Drown in 1999, and a 36-foot sailboat purchased in 1998 as Langeland’s ... [Continue Reading]

No Relief for Presumed Wicked, Mistreated Guantanamo Bay Detainees Not Entitled to Day in Court

This post is quite long, but worth reading.  It summarizes what we are left with after Boumediene v. Bush.  This post is a comment on Hamad v. Gates, No. 12-35395 (9th Cir.  Oct. 7, 2013). Hamad, a Sudanese enemy combatant alleges he was detained in Pakistan in 2002 by Pakistani forces acting at the direction of an American official.  From there he was transferred to U.S. military custody and eventually detained at Guantanamo Bay.  The Combatant Status Review Tribunal (CSRT) found Hamad ... [Continue Reading]

What to Expect in Ninth Circuit Oral Arguments

  Last week I spent two days in the Ninth Circuit Court of Appeals where I observed a total of 7 oral arguments.  It was interesting to see each counsel’s style and preparation level and the Justices reactions to their arguments.  Here are some of my observations. Substantive Observations Direct Questions – The panel was a particularly hot bench and wasted no time getting into the heart of the argument.  Justice Garber started asking questions immediately following the ... [Continue Reading]

Be Aware of the Experience and Logic Test for WA’s Open Court Cases

State v. Halverson, No. 42761 -3 –II (Sept. 24, 2013). One way the court can avoid granting a new trial for an alleged open court/public trial violation is to hold the right has not yet attached.  The right to a public trial does not attach unless the defendant’s argument passes the experience and logic test by showing: “The place and process have historically been open to the press and general public” and “Public access plays a significant positive role in the functioning of ... [Continue Reading]

Can a Death Sentence be Predicated on an Alford Plea in Washington?

  The Washington Supreme Court answered a resounding Yes.  In re Cross, No. 79761-7, (Sept. 26, 2013).  It is true that at common law, felony convictions (for which the penalty was usually death) could not be predicated on a no contest plea.  Commonwealth v. Shrope, 264 Pa. 246, 250, 107 A. 729 (1919).  The rule was necessary because a no contest plea could be entered without any factual support or any independent evidence that supported a finding of guilt.  A defendant could be ... [Continue Reading]

Anders Brief Required for Withdrawal of Appointed Counsel from a Habeas Corpus Appeal in Ninth Circuit

            Anders v. California, 386 U.S. 738, 744 (1967) specified how appointed criminal counsel should proceed when he determines a client’s appeal is “wholly frivolous.”  386 U.S. at 744.  Under those circumstances counsel should advise the court, request permission to withdraw, and submit a brief referring to anything in the record that might arguably support the appeal.  Anders, 386 U.S. at 744.  There is no general constitutional ... [Continue Reading]