COLUMN > From the Spindle
BY VALERIE McOMIE
Standards for Ordering a New Civil Trial Based on Racial Bias
In Henderson v. Thompson, 200 Wn.2d 417, 518 P.3d 1011 (2022), the Supreme Court clarified the legal standard applicable to motions for new trials in civil cases based on allegations that racial bias tainted the jury’s verdict.11 The court also addressed Henderson’s argument that Thompson had engaged in discovery violations, and agreed that sanctions were warranted. It instructed that on remand, the trial court should consider sanctions such as a spoliation instruction and attorney fees and costs for the first trial. Id. at 445. In 2014, Alicia Thompson, who is white, rear-ended Janelle Henderson, who is Black. Henderson sued Thompson. Thompson conceded fault but made no offer of settlement.
At trial, Thompson’s counsel (1) referred to Henderson as “combative” and “confrontational”; (2) contrasted Henderson’s purported qualities with Thompson, whom she described as “intimidated and emotional”; (3) argued Henderson’s request for a $3.5 million damage award suggested she was suing to obtain a financial windfall; (4) referred to Henderson’s witnesses, all Black, as “inherently biased,” and suggested that they colluded to offer similar testimony; and (5) insinuated impropriety between Henderson and her chiropractor, who offered testimony on her behalf. The jury requested that Henderson be asked to leave the courtroom for the reading of the verdict. The court granted the request. The all-white jury awarded Henderson $9,200.
Henderson moved for a new trial under CR 59 or, in the alternative, for an additur, arguing that Thompson’s statements at trial played on racist tropes. The trial court denied the motion, reasoning courts “cannot require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” Henderson, 200 Wn.2d at 429 (citation omitted).
The next day, the Washington Supreme Court issued State v. Berhe, 193 Wn.2d 647, 444 P.3d 1172 (2019). Berhe held that on a motion for a new criminal trial, if a litigant makes a prima facie showing that an “objective observer” could view race as a factor in the verdict, the trial court must hold an evidentiary hearing. Id. at 665. It defined an objective observer as “one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced verdicts in Washington state.” Id. Henderson moved for an evidentiary hearing pursuant to Berhe. The trial court denied the motion.
The Supreme Court granted direct review and reversed. It held that as in a criminal case, when a civil litigant makes a prima facie showing that an objective observer could view race as a factor in the verdict, the court must hold an evidentiary hearing. At the hearing, the court should presume racial bias tainted the verdict, Henderson, 200 Wn.2d at 435, and the party seeking to preserve the verdict has the burden of proving race was not a factor. Id. at 423. If the burden is not met, the court should conclude the trial did not comport with substantial justice and order a new trial pursuant to CR 59(a)(9). Id.
Justice Sheryl Gordon McCloud wrote a concurring opinion, which Justice Barbara Madsen joined. The concurrence largely agreed with the majority, but wrote separately to state it would have allowed the defense to (1) attack the plaintiff’s witnesses’ credibility by suggesting they had coordinated their testimony, and (2) argue the plaintiff’s motive in bringing the lawsuit was a “desire for a financial windfall,” because “parties must be able to explore witnesses’ financial and other interests that might undermine their credibility.” Id. at 447-48.
Washington Supreme Court Clarifies Application of Factors Informing Moral Character Inquiry for Purposes of Admission to the Washington State Bar Association
In In re Bar Application of Stevens, 200 Wn.2d 531, 519 P.3d 208 (2022), the Supreme Court reviewed the criteria for evaluating the moral character and fitness of an applicant seeking admission to the Washington State Bar Association (WSBA). Emphasizing that Washington evaluates applicants “on an individualized basis,” without imposing categorical exclusions based on criminal histories, the five-justice majority opinion written by Justice Mary Yu rejected the WSBA Character and Fitness Board’s (Board) recommendation to deny Zachary Leroy Stevens’ bar application and granted his application. Id. at 535.
Stevens was born in Salt Lake City, Utah, and at 12 moved to a small town that was “very much inundated in the Mormon faith.” Id. at 537. Stevens began to question his sexuality and felt that he didn’t fit in to his new community. By high school, Stevens believed himself “incapable of integrating,” and began using cannabis to self-medicate his developing depression. Id. at 537-38. He dropped out of high school and attempted suicide.
Stevens’ criminal history began thereafter. First, Stevens entered a plea in abeyance to controlled substance charges after a roommate began dealing drugs out of their shared apartment. Second, feeling “more isolated than he had ever been,” Stevens, then 19, made “a conscious effort to appear younger” and began connecting with underaged males online and sharing sexual content. Id. at 539 (citations omitted). An undercover detective posing as a teenager asked Stevens to send pornographic pictures of minors, and Stevens complied. He was charged with sexual exploitation of a minor and pleaded guilty to a reduced charge of voyeurism. Pursuant to the plea agreement, Stevens was required to register (and remain registered) as a sex offender until at least 2024. Finally, in 2013, Stevens drove while under the influence of alcohol and was charged with impaired driving. This charge constituted a violation of his probation and resulted in additional probation conditions.
Eventually, Stevens enrolled in school, earning a college degree and a law degree. He also sought therapy, got married, and built a community of friends and colleagues. Throughout this process, Stevens was candid about his criminal history.
After graduation, Stevens applied for membership to the Arizona Bar Association, which denied his request on moral character grounds. Stevens then applied to the WSBA. His application was referred to the Board, which recommended by a vote of 6-5 that it be denied.
On de novo review, the Supreme Court held that, notwithstanding his criminal history, Stevens met his burden of proving by clear and convincing evidence that he is “of good moral character,” is “fit to practice law,” and “meets all five essential eligibility requirements to [practice law] in accordance with APR [Admission and Practice Rules] 20(d)-(e).” Id. at 536, 543 (citations omitted; brackets added). The eligibility requirements relate in part to an applicant’s ability to exercise good judgment, conduct oneself with honesty and professionalism, and uphold the standards of the Washington Rules of Professional Conduct. APR 21(b) enumerates aggravating and mitigating factors that guide analysis of applicants’ moral character. Id. at 543.
The court began by clarifying the relevant factors bearing on Stevens’ application: APR 21(a)(1) (unlawful conduct), (9) (violation of a court order), (11) (denial of admission to another jurisdiction’s bar on character grounds), and (13) (conduct that physically harms another person). Id. Of those, the court gave less weight to (11), noting that Arizona’s character requirements impose a presumption against admission for those convicted of misdemeanors involving serious crimes or felonies, and this is in tension with Washington’s practice of evaluating applicants on an individualized basis. Id. at 544-48.
The court then evaluated the factors enumerated in APR 21(b) relevant in Stevens’ case and found that most were mitigating: 21(b)(1) (Stevens’ age at the time of the crimes); (2) (the time between Stevens’ criminal conduct and his application); (5) (the circumstances surrounding his criminal activity); (7) (Stevens’ candor); and (9) (steps Stevens took toward rehabilitation). Id. at 551-61. Only 21(b)(4), (the seriousness of the offense), constituted an aggravating factor. Id. at 561.
The court concluded that Stevens’ past conduct was “sufficiently mitigated” to warrant admission. Id. at 551. While his history raised concerns, the character and fitness inquiry examines whether an applicant “is currently of good moral character and possesses the requisite fitness to practice law.” Id. at 563 (citation omitted). Concluding that Stevens is, the court reaffirmed its “long history of recognizing that one’s past does not dictate one’s future.” Id. at 565.
The dissent departed from the majority’s analysis of the foregoing factors and would have placed greater weight on the denial of Stevens’ application by the Arizona Supreme Court Committee on Character and Fitness, and on the requirement that Stevens must register as a sex offender. Id. at 566 (Madsen, J., dissenting). The dissent expressed concern that the majority opinion “creates a substantially lower standard compared to other states, which will encourage forum shopping by those with serious criminal records.” Id.
Government Liability and the Public Duty Doctrine in the Context of 911 Calls Seeking Emergency Medical Services
In Norg v. City of Seattle, 2023 WL 164077, 522 P.3d 580 (Wash. 2023), the court held that common law claims asserting negligence in response to 911 calls are not precluded by the public duty doctrine when they are predicated on breach of the duty to use reasonable care once one has undertaken to render aid to another. The 5-4 opinion, written by Justice Mary Yu, distinguished prior case law and reaffirmed that the public duty doctrine is inapplicable to claims asserted under the common law.22 Valerie McOmie is one of the co-coordinators of the Washington State Association for Justice Foundation Amicus Program. Ms. McOmie submitted an amicus curiae brief in the Washington Supreme Court in Norg on behalf of the Foundation. McOmie’s comments in this article are purely her own and do not reflect the views of the Foundation or of the Washington State Bar Association.
Delaura Norg woke to find her husband suffering a heart attack. She called 911. Emergency services were located just three blocks from the Norgs’ home and the dispatcher assured her help was on the way. Emergency responders did not follow the dispatcher’s directions and went to the wrong address, delaying medical aid and causing Mr. Norg to suffer significant cognitive impairment. The Norgs sued the City for common law negligence, and the City responded that the claim was barred by the public duty doctrine. The Norgs moved for partial summary judgment, arguing the doctrine was inapplicable. The trial court granted the Norgs’ motion and the appellate court affirmed. The Supreme Court accepted review and affirmed, clarifying the application of the doctrine in light of recent case law.
The public duty doctrine has a long history in Washington jurisprudence. In the early years of statehood, the government enjoyed sovereign immunity from tort claims. In the 1960s, the Legislature waived sovereign immunity, submitting itself to suit in tort “to the same extent as if it were a private person or corporation.” RCW 4.92.090 (suits against the state); see also RCW 4.96.010 (local governmental entities). Following the waiver, the court grappled with the scope of liability the Legislature intended the government to assume. It concluded the Legislature did not intend to permit government liability for breach of “public” duties—those services the government voluntarily undertakes for the benefit of the public. The public duty doctrine was adopted as a tool to determine whether a duty is owed to the public as a whole or instead to individual plaintiffs or classes of persons. See Osborn v. Mason County, 157 Wn.2d 18, 27-28, 134 P.3d 197 (2006). The Supreme Court subsequently clarified that the doctrine does not apply to claims asserted under the common law. Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549-50, 442 P.3d 608 (2018) (citation omitted).
With these legal principles in mind, the majority held that the Norgs’ claim was not precluded by the public duty doctrine. Norg, 522 P.3d at 582. It distinguished Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006), which also involved a 911 call seeking medical services, on a number of grounds, including the fact that the plaintiff in Cummins did not bring a common law claim, and that the city in Cummins did not “undertake” to render aid, because the caller neither had extensive interaction with the dispatcher nor received assurance that help was on its way. Id. at 588. The court in Norg noted that while there is generally no duty to aid a stranger in need, a common law duty arises where one “voluntarily begins to assist an individual needing help.” Id. at 587 (citations omitted). It emphasized the Norgs’ claim was not predicated on the City’s failure to respond, but on its negligent provision of services after it undertook to provide aid:
The Norgs have established that the City owed them an individualized, actionable duty of reasonable care when it undertook to respond to their 911 call. The Norgs’ negligence claim is based solely on the City’s alleged breached of this common law duty … [and] the public duty doctrine does not apply.
Id. at 589 (brackets added).
The dissent, written by Justice Barbara Madsen, maintained that the majority opinion is irreconcilable with precedent, particularly Cummins, and renders the public duty doctrine “practically inert.” Id. at 589 (Madsen, J., dissenting).
NOTE
1. The court also addressed Henderson’s argument that Thompson had engaged in discovery violations, and agreed that sanctions were warranted. It instructed that on remand, the trial court should consider sanctions such as a spoliation instruction and attorney fees and costs for the first trial. Id. at 445.
2. Valerie McOmie is one of the co-coordinators of the Washington State Association for Justice Foundation Amicus Program. Ms. McOmie submitted an amicus curiae brief in the Washington Supreme Court in Norg on behalf of the Foundation. McOmie’s comments in this article are purely her own and do not reflect the views of the Foundation or of the Washington State Bar Association.