COLUMN > From the Spindle
BY BRYAN HARNETIAUX
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In two recent cases—one civil, one criminal—the Washington Supreme Court reversed the Court of Appeals opinions, finding in each instance the appellate court had exceeded the bounds of its review and invaded the fact-finding province of the jury.
Limited Nature of Appellate Review Regarding a Civil Jury’s Determination of Damages
In Coogan v. Borg-Warner Morse Tec Inc. (slip op. #98296-1, decided July 8, 2021), a wrongful death action, the Washington Supreme Court reversed a Court of Appeals decision vacating a jury’s damage award totaling $81.5 million, and reinstated the verdict. Doy Coogan died of peritoneal mesothelioma after years of asbestos exposure. His widow, daughters, and estate brought wrongful death and survival actions against Genuine Parts Company (GPC), National Automotive Parts Association (NAPA), and others. After a three-month trial, a unanimous jury awarded a total of $81.5 million in damages against GPC and NAPA. GPC and NAPA moved for a new trial and, later, CR 60 relief. Coogan slip op. at 4-5. The superior court denied all post-trial motions, including a challenge to the damage award as excessive, and affirmed the jury’s verdict in all respects. See id. at 5-6. GPC and NAPA appealed on a number of grounds, and a divided Court of Appeals reversed the damage award as excessive and ordered a new trial on damages. See id. at 6-7. In an unpublished opinion, the majority concluded that the superior court had erred in excluding the testimony of one of GPC and NAPA’s expert witnesses on damages and found that the jury’s award for Doy Coogan’s pain and suffering ($30 million) was excessive. The court remanded for a new trial on damages. See id. at 7. The Coogan family and estate petitioned the S upreme Court for review, which was granted. The court also conditionally granted review on issues raised by GPC and NAPA. This cross-review involved challenges to the entire damage award as excessive and to the denial of CR 60 relief by the superior court, based upon a claim of newly discovered evidence. See id. at 7-8, 37-43.
A unanimous Supreme Court first reversed the Court of Appeals holding that the superior court erred in excluding the testimony of GPC and NAPA’s expert witness on damages, finding no abuse of discretion by the superior court. See id. at 10-16. The court then turned to what it described as the “principal issue in the case,” id. at 8, regarding the proper standard of review for determining whether a jury’s verdict is excessive or the result of passion and prejudice. See id. at 23-37. The court determined:
[T]he Court of Appeals overstepped the limited role appellate courts are supposed to play in our civil justice system and substituted its own subjective judgment for that of the jury and the trial court based on nothing more than the size of the verdict. Because the verdict is supported by substantial evidence and the record does not clearly indicate that the verdict resulted from passion or prejudice, or was so beyond the bounds of justice that no reasonable person could believe it is correct, we reverse the Court of Appeals and reinstate the jury’s verdict in full.
Id. at 9-10; see also id. at 31, 34-37.
In reaching this result, the court examined extensively the facts and law, reaffirming the deference required by an appellate court, given “the jury’s constitutional role as ultimate fact finder.” Id. at 31 (citation omitted). In light of its reinstatement of the jury verdict, the court reached the unresolved CR 60 issue raised by GPC and NAPA on cross-review and found that the trial court did not abuse its discretion in denying relief.
Availability of “Necessity Defense” in Criminal Case
In State of Washington, ex rel. Haskell v. Spokane County District Court (slip op. #98719-0, decided July 15, 2021), the Supreme Court addressed the availability of the so-called “necessity defense” in a criminal case. Reverend George Taylor, a long-time climate activist, was charged in Spokane County with two misdemeanors, trespass in the second degree, and unlawful obstruction of a train. The charges stemmed from Taylor organizing and conducting a peaceful protest on Burlington Northern Santa Fe railroad tracks. See Haskell, slip op. at 2-3. Taylor contended his actions were necessary to prevent imminent harms of climate change and train derailment. He had particular concerns about the transportation of coal and oil through Spokane and the dangers posed to public safety and the environment. Taylor raised the “necessity defense,” urging that his actions were justified because he had no other reasonable alternative course of action left. See id.
The Spokane County District Court held an extensive hearing regarding whether Taylor was entitled to present the necessity defense to the jury. See id. at 3. Taylor presented testimony from experts in global ecology, conflict resolution, and the specific harms surrounding train derailments. See id. at 3-4. The district court upheld Taylor’s right to present the necessity defense. See id. at 4.
The state successfully petitioned the superior court, ex parte, for a writ of review of the district court decision; the superior court granted the writ and reversed the district court, disallowing the necessity defense. See id. In a split decision, the Court of Appeals affirmed the superior court ruling, and the Supreme Court granted review. See id.11 In the superior court, Taylor invoked RCW 4.12.050 and attempted to disqualify the judge who had granted the petition, but this motion was denied because the judge had already made a discretionary decision in accepting review, albeit ex parte in nature. See Haskell, slip op. at 4. The Court of Appeals apparently affirmed the denial of the disqualification motion. See id.
The Supreme Court reversed, with seven justices holding that Taylor had presented sufficient evidence entitling him to present the necessity defense to a jury. See id. at 9-17.22 The seven-justice majority first determined that the superior court had properly rejected Taylor’s motion for disqualification under RCW 4.12.050, concluding that the denial of disqualification under the circumstances was consistent with the statute and did not offend Taylor’s due process rights. See Haskell, slip op. at 5-9. A two-justice dissent disagreed, urging that Taylor’s motion for disqualification should have been granted, and that the case should be remanded for review of the necessity defense determination before a different judge. See id. Gordon McCloud, J., dissenting in part, slip op. at 3 & 12, n.4. The court explained that this defense is rooted in the right to trial by jury protected by the Sixth Amendment to the United States Constitution and Washington Constitution, Art. I §§21 & 22, and identified the elements of the necessity defense as follows:
To raise the necessity defense, a defendant must show by a preponderance of the evidence that (1) [the defendant] reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed.
Id. at 10 (internal quotation and citations omitted).
The court’s analysis principally focused on whether Taylor had presented sufficient evidence on element (4), that no reasonable legal alternative existed. See id. at 11-15. The court specifically rejected the Court of Appeals majority’s view that “[t]here are always reasonable alternatives to disobeying constitutional laws.” Id. at 2 (quoting Court of Appeals majority opinion). The Supreme Court majority concluded that “[l]ooking at these facts as a whole, and in a light most favorable to the defendant, Rev. Taylor has created a question of fact for the jury regarding whether he has tried alternatives that were unsuccessful and had no reasonable legal alternatives.” Id. at 15.
Update: COVID-19 and the Supreme Court
In light of the ongoing COVID-19 crisis, including recent emergence of the highly contagious delta variant, by order dated Aug. 18, 2021 (#25700-B-669), the Supreme Court prohibits any worker from engaging in work for the court after Nov. 1, 2021, unless the worker has been fully vaccinated or qualifies for a recognized exemption. See Order at 4. The order requires documentary proof of vaccination such as the CDC COVID-19 Vaccination Record Card, or photo thereof. A personal attestation that vaccination has been completed is not acceptable. See id. at 4-5. The order also specifies the types of exemptions recognized, the proof required to establish different exemptions, and the range of reasonable accommodations that may apply to unvaccinated workers. Lastly, the order provides that it “will take effect immediately and shall remain in effect until further order of the Washington Supreme Court.” See id. at 6.33 Ed. Note: At press time, the Supreme Court had not amended or vacated this order.
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SIDEBAR
What is a ‘Spindle?’
To this day, in the Temple of Justice hallway between the clerk’s office and the courtroom, there’s a spindle on top of a wooden lectern where on any Thursday the Supreme Court’s newly issued opinions are placed for public viewing. This is the paper version of the “slip opinion” of the court. In the “old days,” before the internet, the press and media, or members of the public, would have to check the spindle to quickly access the latest decisions from the court. Although we now all have near-instant access to the court’s decisions via cyberspace, for reasons that seem more ceremonial than practical, the spindle remains—a small relic and enduring symbol of the open administration of justice. Caveat: This column is based on slip opinions of the court, which are not necessarily the court’s final decisions and are subject to change; the official opinions of the court are those published in the Washington Reports.
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Washington Supreme Court slip opinions are available at www.courts.wa.gov/opinions/.
1. In the superior court, Taylor invoked RCW 4.12.050 and attempted to disqualify the judge who had granted the petition, but this motion was denied because the judge had already made a discretionary decision in accepting review, albeit ex parte in nature. See Haskell, slip op. at 4. The Court of Appeals apparently affirmed the denial of the disqualification motion. See id.
2. The seven-justice majority first determined that the superior court had properly rejected Taylor’s motion for disqualification under RCW 4.12.050, concluding that the denial of disqualification under the circumstances was consistent with the statute and did not offend Taylor’s due process rights. See Haskell, slip op. at 5-9. A two-justice dissent disagreed, urging that Taylor’s motion for disqualification should have been granted, and that the case should be remanded for review of the necessity defense determination before a different judge. See id. Gordon McCloud, J., dissenting in part, slip op. at 3 & 12, n.4.
3. Ed. Note: At press time, the Supreme Court had not amended or vacated this order.