author: Justice Pearce, opinion of the Court:

text:
    SALT LAKE CITY, Appellee, v. Karlie KIDD, Appellant.
    No. 20150280
    Supreme Court of Utah.
    Filed January 23, 2019
    Heather Lindsay, Salt Lake City, for appellee
    W. Andrew McCullough, Midvale, for appellant
    Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.
   Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 Salt Lake City requires that any individual employed by an escort service agency, or any other sexually oriented business, obtain a license from the City before providing services. When Karlie Kidd met an undercover Salt Lake City police officer at the Grand America Hotel and asked him for a "show-up" fee, she did not possess such a license. She did, however, have an escort services license from Midvale City. Salt Lake City nevertheless cited Kidd for offering escort services without a valid license.

¶2 State law authorizes Salt Lake City and Midvale, as well as any other municipality, to impose licensing requirements on employees of sexually oriented businesses. This results in a regulatory scheme where escorts must obtain licenses in each jurisdiction in which they want to operate, if the jurisdiction requires a license.

¶3 To Kidd, the statute promotes regulatory overkill and burdens her constitutional rights because the license Midvale issued to her satisfies Salt Lake City's requirements and any legitimate interest the City might have in regulating her profession. Kidd claims that the imposition of multiple licensing requirements violates her First Amendment and Equal Protection rights.

¶4 Because Kidd's First Amendment argument is inadequately briefed and because her Equal Protection claim was not properly raised in the district court, we affirm her conviction.

BACKGROUND

¶5 Kidd and the escort service agency that employed her were licensed to provide sexually oriented business services in Midvale. Kidd was not, however, licensed by Salt Lake City to provide sexually oriented business services in that municipality. To obtain that license, Kidd would have been required to pay a fee and provide her social security number, fingerprints, and criminal history, as well as other personal information. See SALT LAKE CITY, UTAH, CODE § 5.61.110.

¶6 An undercover Salt Lake City police officer answered Kidd's online advertisement and arranged to meet her at the Grand America Hotel. Upon arrival, Kidd requested a "show-up" fee or "donation." The officer provided the payment; additional officers then entered the room. They informed Kidd that they were police, ran a records check, and ascertained that Kidd did not have a Salt Lake City-issued sexually oriented business license. They cited Kidd for violating Salt Lake City Code section 5.61.100.

¶7 Section 5.61.100 provides that "[i]t is unlawful for any sexually oriented business to employ, or for any individual to be employed by a sexually oriented business in the capacity of a sexually oriented business employee, unless that employee first obtains a sexually oriented business employee license." The Salt Lake City Code, like the Utah Code, deems escorts to be employees of sexually oriented businesses.

¶8 The City defines "sexually oriented business" as "[n]ude entertainment businesses, sexually oriented outcall services, adult businesses, 'seminude dancing bars' and seminude dancing agencies." SALT LAKE CITY, UTAH, CODE § 5.61.040. While this definition does not expressly mention escorts, the City's definition of "sexually oriented business employees" does, specifying that "[a]ll persons making outcall meetings under this chapter, including escorts, ... shall be considered sexually oriented business employees." Id. The Utah Code is also explicit that escort service agencies are "sexually oriented businesses." UTAH CODE § 10-8-41.5(1)(f)(i) (defining "[s]exually oriented business" as "a business at which any nude or partially denuded individual ... performs any service for compensation"); id. § 10-8-41.5(1)(f)(ii) (noting that the term " '[s]exually oriented business' includes ... an escort service").

¶9 Section 10-8-41.5 of the Utah Code expressly prohibits escorts from providing sexually oriented business services in a city, if the city requires that the employee be individually licensed and the employee has not obtained such a license.

UTAH CODE § 10-8-41.5(2) ("A person employed in a sexually oriented business may not work in a municipality: (a) if the municipality requires that a person employed in a sexually oriented business be licensed individually; and (b) if the person is not licensed by the municipality."). Section 10-8-41.5 therefore mandates that escorts obtain a license in each city in which they want to provide services, if that city requires a license.

¶10 Kidd challenged this regulatory framework before the justice court. Kidd asserted that section 10-8-41.5 unconstitutionally prohibited individuals from providing sexually oriented services if they did not satisfy the license requirement of each city in which they wanted to work. Kidd first raised these challenges in justice court, without success. In a trial de novo before the district court, Kidd reiterated her constitutional arguments. See generally UTAH CODE § 78A-7-118(1) (providing that, upon timely appeal following sentencing, criminal defendants are generally entitled to trial de novo in district court).

¶11 More precisely, Kidd moved to dismiss the charges against her, asserting that section 10-8-41.5 infringed her freedom of expression by authorizing a city to impose "repetitive licensing requirements" upon an escort already licensed in a "neighboring city." Kidd acknowledged she "did not have a Salt Lake City [e]scort license at the time of this incident," but asserted she "did have a license in the neighboring cit[y] of Midvale." She claimed her Midvale license was "sufficient to meet the requirements of" the Salt Lake City ordinance, and there was "no valid reason" for imposition of "duplicative and expensive licensing procedures."

¶12 In support of her argument, Kidd referenced several First Amendment cases, but she did not connect them to the facts of her case. Other than asserting that "[e]scorts are protected in their profession by the First Amendment," Kidd did not address what speech was allegedly infringed. And with even less specificity, Kidd asserted that section 10-8-41.5 violated her "rights to Equal Protection of the Law." She did not cite or apply equal protection authorities to the facts of her case.

¶13 The district court denied the motion and Kidd entered a conditional plea of no contest preserving her right to appeal the constitutional questions. And the court of appeals certified the case to this court.

STANDARD OF REVIEW

¶14 "The grant or denial of a motion to dismiss is a question of law [that] we review for correctness, giving no deference to the decision of the trial court." State v. Hamilton , 2003 UT 22, ¶ 17, 70 P.3d 111 (citation omitted) (cleaned up).

ANALYSIS

I. Jurisdiction

¶15 Before we turn to the merits of the case, we need to address a jurisdictional question. Utah Code section 78A-7-118 provides that when justice court proceedings are followed by a trial de novo in district court, as was the case here, "[t]he decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." UTAH CODE § 78A-7-118(8).

¶16 The only written ruling in the record with respect to Kidd's motion to dismiss, and the constitutional arguments contained therein, is the district court's notation that Kidd's motion was "[d]enied." While this matter was pending in front of the court of appeals, but prior to transfer to our court, the court of appeals questioned whether the district court's denial constituted a "rul[ing] on the constitutionality of a statute or ordinance" as section 78A-7-118 requires.

¶17 Kidd then supplemented the record with a transcript. The court of appeals subsequently certified the case, but did not address the jurisdictional question it had raised.

¶18 In her briefing to this court, Kidd responds to the court of appeals' concern and argues that we have appellate jurisdiction because the district court ruled on the statute's constitutionality. The City does not appear to disagree. Although this might seem to resolve the question, "acquiescence of the parties is insufficient to confer jurisdiction."

First Nat'l Bank of Layton v. Palmer , 2018 UT 43, ¶ 6, 427 P.3d 1169 (citation omitted). We must be "satisfied that we have jurisdiction before reaching the merits." Id.

¶19 With the transcript in the record, we are assured that we have jurisdiction because the district court "rule[d] on the constitutionality of a statute or ordinance" as required for purposes of section 78A-7-118. We are therefore satisfied that appellate jurisdiction exists.

II. First Amendment

¶20 Kidd first asserts that Utah Code section 10-8-41.5"violates [her] first amendment right to free speech, and particularly violates" her right to "commercial speech." We cannot reach the merits of this claim, however, because Kidd does not identify the speech at issue in this case, much less demonstrate that any such speech is protected by the First Amendment. Kidd's argument is inadequately briefed and, as a result, she has failed to carry her burden of persuasion on appeal.

¶21 As an initial matter, "it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies." Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Here, Kidd needed to start by pointing this court to the speech she claims the statute burdens. Yet Kidd does nothing more than recite that, while employed as an escort, she arrived at a hotel room and demanded a "show-up" fee. Her argument assumes that the licensing requirement has infringed her ability to engage in constitutionally protected speech, whatever that speech might have been. In other words, Kidd leaves it to this court to fill in the blanks about what speech or expressive conduct might have occurred but for her failure to obtain a license. We are not in a position to do that for Kidd. We could speculate on what Kidd would do but for the statute, but judicial speculation cannot overcome the presumption of constitutionality that we afford legislation. "[A]ll statutes are presumed to be constitutional and the party challenging a statute bears the burden of proving its invalidity." State v. Angilau , 2011 UT 3, ¶ 7, 245 P.3d 745 (citation omitted). This Kidd did not do.

¶22 As noted above, Kidd characterizes her claim as resting primarily-or perhaps entirely-on the infringement of her commercial speech. But again, Kidd does not identify the commercial speech at issue. She does make a passing assertion that First Amendment protection has been afforded to escort service agencies on what appears to be artistic (as opposed to commercial) speech grounds. We express no opinion as to whether, or to what degree, the First Amendment may protect escort services generally or escort service providers individually. We simply note that to assert a First Amendment claim, Kidd needs to start by identifying and characterizing the speech at issue. And Kidd has failed to do so.

¶23 Kidd would then have needed to demonstrate what level of protection the speech at issue receives and how the statute burdens it. Kidd compounds this problem by citing cases applying various First Amendment frameworks without explaining how those distinctive legal principles might apply, either alternatively or in combination. Kidd's main contention appears to be that section 10-8-41.5 fails as a regulation of commercial speech, and in support she relies on Pacific Frontier v. Pleasant Grove City , which addresses a First Amendment challenge involving commercial speech. 414 F.3d 1221, 1231-35 (10th Cir. 2005). But Kidd also relies on United States v. O'Brien , which addresses regulation of conduct that implicates protected expression. 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). She also cites FW/PBS, Inc. v. City of Dallas , which addresses whether a regulation constitutes an unconstitutional prior restraint due to inadequate procedural safeguards. 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion). And while Kidd references other cases, she does little with them. For example, she cites, without meaningful analysis, Tollis Inc. v. San Bernardino County , which analyzes whether an ordinance may be upheld as a content-neutral time, place, and manner regulation and justified on the basis of secondary effects. 827 F.2d 1329, 1332-33 (9th Cir. 1987).

¶24 Undifferentiated citation to various First Amendment frameworks will almost inevitably lead to inadequate briefing. See, e.g. , Cheek v. Clay Bulloch Constr. Inc. , 2016 UT App 227, ¶¶ 30-33, 387 P.3d 611 (concluding that an argument was inadequately briefed, due in part to the undeveloped assertion of "multiple contractual theories, some of which are contradictory"). And requiring Kidd to develop a cogent First Amendment argument is more than making her run an appellate gauntlet before she can obtain relief. When a party advances proto-arguments without developing them into actual arguments, that party essentially asks this court to develop those arguments for her. And then rule on those arguments, often without the benefit of adversarial briefing because the opposing party was not given a focused target at which to aim. This is not the way we aspire to operate nor is it fair to the opposing party.

¶25 Because of the lack of clarity in Kidd's legal argument, as well as the absence of factual development noted above, we are unable to reach the merits of her claim. In short, Kidd has failed to develop an argument "that we can respond to" and has not demonstrated that Utah Code section 10-8-41.5 is an unconstitutional intrusion on First Amendment rights. See Rose v. Office of Prof'l Conduct , 2017 UT 50, ¶ 82, 424 P.3d 134.

¶26 Although unnecessary to the resolution of this case, we note two additional shortcomings of Kidd's argument, as these issues may arise in future cases. First, any First Amendment claim should specify the breadth of the challenge, as well as the specific relief sought. Yet Kidd never asserts whether she has raised a facial statutory challenge or a challenge that the statute is unconstitutional as applied to her, and her brief sometimes reads as if she is raising a facial challenge and sometimes uses language usually associated with an as-applied argument.

¶27 The distinction matters, both in terms of the tests applied and the available remedy. See, e.g. , Gillmor v. Summit Cty. , 2010 UT 69, ¶ 27, 246 P.3d 102 (contrasting facial and as-applied constitutional challenges); Bushco v. Utah State Tax Comm'n , 2009 UT 73, ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis for a facial challenge on First Amendment grounds); see also United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (contrasting "typical" facial challenge requirements with an overbreadth challenge). The distinction may also inform a court's ability to reach the merits. "Particularized facts are what allow a court to issue a narrowly tailored and circumscribed remedy" in response to an as-applied claim. Justice v. Hosemann , 771 F.3d 285, 292 (5th Cir. 2014).

¶28 Second, the posture of Kidd's challenge is somewhat unique. Kidd was cited for violation of a city ordinance but challenged only the state statute authorizing that ordinance. Whether Kidd could succeed on such a challenge without also challenging the city ordinance, we need not and do not address. Nor do we opine on whether the analytical framework might shift depending on whether Kidd challenges the statute, the ordinance, or both. We simply note these issues and caution parties to keep them in mind in future cases.

¶29 For the reasons set forth above, Kidd has failed to persuade us that the district court erred in denying her motion to dismiss with respect to her First Amendment claim.

III. Equal Protection

¶30 Kidd also asserts that section 10-8-41.5"denies [her] the Equal Protection of the Law in violation of the Fourteenth Amendment." Because Kidd did not adequately preserve this argument before the district court, we do not address it.

¶31 "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346. This "preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that exceptional circumstances exist or plain error occurred." Id. (internal quotation marks omitted). Kidd has not advocated that either of those exceptions apply here.

¶32 Preservation requires that an issue "be presented to the trial court in such a way that the trial court has an opportunity to rule on [it]." 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 (citation omitted). We have stated that the preservation "requirement puts the trial judge on notice of the asserted error and allows for correction at that time in the course of the proceeding." Id. "For a trial court to be afforded an opportunity to correct the error (1) the issue must be raised in a timely fashion[,] (2) the issue must be specifically raised[,] and (3) the challenging party must introduce supporting evidence or relevant legal authority." Id. (alterations in original) (citation omitted) (internal quotation marks omitted).

¶33 These principles also govern Kidd's assertion of a constitutional violation. "Preservation requires affording the district court a meaningful opportunity to rule on the ground that is advanced on appeal, and that implies, at a minimum, not just the invocation of a legal principle but also its application to the facts of the case." Hill v. Superior Prop. Mgmt. Servs., Inc. , 2013 UT 60, ¶ 46, 321 P.3d 1054.

¶34 In district court, Kidd primarily asserted that her First Amendment rights had been infringed. But on a few occasions, she incanted the phrase "equal protection." For example, Kidd asserted that "[i]nsofar as [ section] 10-8-41.5 [a]uthorizes the City to require the additional license, the statute violates [her] First Amendment rights, and also [her] rights to Equal Protection of the Law under the Fourteenth Amendment." But Kidd did not cite and apply equal protection principles to her case. Indeed, the sole equal protection authority Kidd cites on appeal, Romer v. Evans , 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), appears nowhere in her argument below.

¶35 Mere mention of a constitutional right, phrase, or principle does not raise a constitutional claim. See 438 Main St. , 2004 UT 72, ¶ 51, 99 P.3d 801 (requiring introduction of relevant legal authority); cf. Rose , 2017 UT 50, ¶ 80, 424 P.3d 134 (noting, "[a]t the risk of sounding pedantic, a federal equal protection argument should at the very least reference" the constitutional provision as well as "the case law interpreting that clause"). The concept of preservation-and the principles underlying its application-would be undone were we to conclude that, in this instance, Kidd made and preserved a claim that section 10-8-41.5"denies [her] the Equal Protection of the Law in violation of the Fourteenth Amendment." A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party's responsibility, not a judicial duty.

¶36 Accordingly, we conclude that Kidd did not preserve her Equal Protection claim in the district court and we do not address it.

CONCLUSION

¶37 Kidd did not preserve her Equal Protection challenge in the district court and has not adequately briefed her First Amendment challenge on appeal. We affirm.

      Kidd argues that much to her consternation, she already provided the same information to Midvale, along with a fee, to obtain its license. See Midvale City, Utah, Code § 5.12.310.

      The Salt Lake City Code defines "escort" as follows: "Any person who, for pecuniary compensation, dates, socializes, visits, consorts with or accompanies ... another or others," or offers to do so, "to or about social affairs, entertainment or places of amusement, or within any place of public or private resort or any business or commercial establishment or any private quarters." Salt Lake City, Utah, Code § 5.61.040 (but excluding, for example, "persons who provide business or personal services such as licensed private nurses" or "services such as singing telegrams, birthday greetings or similar activities"); see also Utah Code § 10-8-41.5(1)(c)(i) (defining "escort" similarly).

      We agree with Kidd that we have jurisdiction to hear this case. But we disagree with Kidd's reasoning. Kidd asserts that by certifying this case, the court of appeals "settled" the question of whether jurisdiction exists. Kidd misunderstands the import of certification.
      Utah Code section 78A-4-103 empowers the court of appeals to assign cases within its original jurisdiction to this court. Utah Code § 78A-4-103(3). By rule, the court of appeals may certify cases that "will govern a number of other cases involving the same legal issue or issues," that present questions of "first impression under state or federal law which will have wide applicability," or that otherwise "should be decided by" this court and on which this court would "probably grant a petition for writ of certiorari." Utah R. App. P. 43(c). Certification is thus a procedural mechanism aimed toward efficient resolution of matters of significant jurisprudential importance. See id. It accomplishes only the transfer of a case from one appellate court to another; it does not constitute a ruling on any other issue.
      Likewise, when a case otherwise appears to fit rule 43 's criteria, our inability to reach the merits is not a conclusion that the case was improperly certified. Certification usually occurs early in the appellate process, and the existence or outcome of jurisdictional or procedural issues on which resolution ultimately turns may not have been sufficiently apparent in the briefing before the court of appeals. Thus, although we hope certified cases have been vetted for jurisdictional and preservation issues, certification should not be viewed as a court of appeals plebiscite on those questions.

      Compare FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 224, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion) (noting that the ordinance at issue "applie[d] to some businesses that apparently are not protected by the First Amendment, e.g., escort agencies" (emphasis omitted) ); Ctr. for Fair Pub. Policy v. Maricopa Cty. , 336 F.3d 1153, 1165 (9th Cir. 2003) (noting that the statutory provision at issue "regulates both establishments protected by the First Amendment-adult bookstores, video stores, cabarets, motion picture theaters and theaters-and businesses that have no such protection-escort agencies " (emphasis added) ); id. at 1172 n.1 (Canby, J., dissenting) (agreeing with the majority that "the statutory term 'sexually-oriented businesses' includes escort services that presumably are not engaged in First Amendment-protected activity"); IDK, Inc. v. Clark Cty. , 836 F.2d 1185, 1195-97 (9th Cir. 1988) (concluding that "escort services' activities are not protected by the [F]irst [A]mendment"); with id. at 1200 (Reinhardt, J., dissenting) (concluding that "[t]o the extent that association is constitutionally protected, the first amendment applies to IDK (as well as to the escorts and their patrons), despite the fact that IDK operates for commercial ends"). See also Bushco v. Utah State Tax Comm'n , 2009 UT 73, ¶¶ 2, 6, 48, 54, 58, 225 P.3d 153 (rejecting First Amendment challenges raised by "[p]laintiffs, a group of escort service agencies and erotic dancing clubs," without explicitly addressing whether the escort service agencies were entitled to First Amendment protection, and ultimately concluding that the "provisions of the statute applying the tax [at issue] to escort services [were] unconstitutionally vague").

      The next step would have been for Kidd to clearly identify the alleged burden on her protected speech. Here again, Kidd's briefing fell short. Kidd alludes to the burden on escorts seeking to provide services across Salt Lake County, but does not aver that she sought to work in any municipality other than Salt Lake City and Midvale. Thus, while she estimates the cost of obtaining a license in multiple municipalities, she never claims that she would engage in First Amendment-protected activities anywhere other than Salt Lake City or Midvale.

      We also do not address Kidd's failure to distinguish between any First Amendment protection potentially afforded escort agencies generally, based on artistic or other services provided by the agency as a whole, and any First Amendment protection that might be afforded her as an individual escort service provider.


source: Caselaw Access Project

license: Public Domain

text:
    SALT LAKE CITY, Appellee, v. Randall JOSEPHSON, Appellant.
    No. 20150980
    Supreme Court of Utah.
    Filed January 29, 2019
    Scott A. Fisher, Paige Williamson, Hyrum J. Hemingway, Salt Lake City, for appellee
    Dayna K. Moore, Salt Lake City, for appellant
    Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.
   Chief Justice Durrant, opinion of the Court:

Introduction

¶1 Randall Josephson was charged in Salt Lake City Justice Court with one count of threat of violence, a class B misdemeanor under Utah Code section 76-5-107. The alleged threat occurred on September 7, 2014. While that case was pending, Salt Lake City charged Mr. Josephson in the Third District Court with one count of stalking, a class A misdemeanor under Utah Code section 76-5-106.5, and one count of threat of violence, a class B misdemeanor. The district court threat of violence charge was based on an alleged threat that occurred on September 30, 2014, and the stalking charge was based on alleged conduct occurring throughout September 2014. Mr. Josephson argues that the district court prosecution was barred by the earlier justice court prosecution or, alternatively, that the district court plainly erred in failing to merge the threat of violence and stalking charges. Because we find that neither issue was preserved nor amounts to plain error, we affirm.

Background

¶2 Randall Josephson and D.C. were neighbors in September 2014. During that month, Mr. Josephson made daily threats to D.C. On September 7, 2014, Mr. Josephson threatened D.C. Five days later, Salt Lake City (the City) filed an information in justice court charging Mr. Josephson with threat of violence based upon the September 7 threat. D.C. later received a stalking injunction against Mr. Josephson, which was served on September 20, 2014. On September 22, 2014, Mr. Josephson was arraigned on the information in justice court. On September 30, 2014, Mr. Josephson again threatened D.C. The City later filed an information in district court charging him with stalking and threat of violence based on the September 30 threat. The next month, the information in justice court was amended to an infraction. Two months later, Mr. Josephson represented himself at a bench trial in justice court and was found guilty on the threat of violence charge stemming from the September 7 threat. On March 13, 2015, he was sentenced to probation and a fine in justice court.

¶3 On September 7, 2015, Mr. Josephson filed a motion in limine in district court to exclude testimony regarding the September 7, 2014 threat, the basis of his justice court conviction. The next day, the City amended the information against Mr. Josephson in district court to reflect that the stalking charge was based on conduct during the entire month of September, rather than just September 30. The district court heard argument on Mr. Josephson's motion in limine. It denied the motion and held a jury trial. At the close of evidence, Mr. Josephson made a motion for a directed verdict on double jeopardy grounds. That motion was denied. Mr. Josephson was convicted on both counts. He now appeals his conviction, arguing that the district court prosecution was barred by the earlier justice court prosecution or, alternatively, that the district court plainly erred in failing to merge the convictions at sentencing.

¶4 Mr. Josephson timely appealed the district court's decision. The parties briefed the matter before the court of appeals and the court of appeals certified the matter to this court for original appellate review. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

Issues and Standard of Review

¶5 Mr. Josephson raises two issues on appeal: (1) whether the trial court erred in allowing the district court prosecution for stalking and threat of violence when Mr. Josephson had previously been prosecuted and convicted of another threat of violence charge in justice court, and (2) whether the district court plainly erred in failing to merge the threat of violence conviction with the stalking conviction.

¶6 Mr. Josephson argues that the first issue was preserved but the City argues it was not. We conclude that it was not preserved, and we accordingly review for plain error. Both parties agree that the second issue was not preserved and must be reviewed for plain error.

Analysis

¶7 Mr. Josephson challenges his conviction in the district court in two ways. First, he argues that the district court violated Utah Code section 76-1-403 (the single criminal episode statute) by permitting the state to prosecute the stalking and threat of violence charges even though he had already been prosecuted and convicted in justice court for conduct that allegedly formed the basis of his district court prosecution. Second, he argues that the district court erred by failing to merge his threat of violence conviction with his stalking conviction. Because neither of these alleged errors constituted plain error, we affirm Mr. Josephson's conviction.

I. The District Court Did Not Plainly Err By Permitting the State to Prosecute the Threat of Violence and Stalking Charges

¶8 Mr. Josephson argues that his justice court prosecution serves as a bar of his district court prosecution under the single criminal episode statute. The City disagrees. Additionally, the City argues that even if the district court erred by failing to apply the single criminal episode statute, we should nevertheless affirm the conviction because Mr. Josephson failed to preserve this argument below and the error, if any, does not constitute plain error. Because we find insufficient evidence in the record to satisfy the preservation requirement, we review Mr. Josephson's argument under our plain error standard. And under this standard we affirm his conviction.

A. Mr. Josephson failed to preserve his single criminal episode argument

¶9 Mr. Josephson argues that he preserved his argument under the single criminal episode statute when he asserted that the district court prosecution was barred by the double jeopardy clauses of the Utah and United States Constitutions. We disagree.

¶10 The preservation doctrine serves a number of important policies. "One of the most important purposes of preservation is that it allows an issue to be fully factually, procedurally, and legally developed in the district court." "[It] enables us to analyze both the application of a legal rule or principle to a concrete and well-developed dispute and, nearly as important, the effect of the district court's ruling on the overall course of the proceedings below." When parties fail to preserve issues, we do not receive "the benefit of a trial judge's reasoning and analysis on the issue at hand."

¶11 The preservation doctrine also serves our "policy of fairness" because it "generally would be unfair to reverse a district court for a reason presented first on appeal. This is because, had the contention now before us been raised below, [the appellee] might have countered the argument, potentially avoiding the time and expense of appeal."

¶12 "[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." "This requirement puts the trial judge on notice of the asserted error and allows for correction at that time in the course of the proceeding." Three factors "help determine whether the trial court had such an opportunity: '(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority.' " The party must put forth enough evidence that "the issue [is] sufficiently raised to a level of consciousness before the trial court." Applying these factors, we hold that Mr. Josephson did not preserve his single criminal episode argument below.

¶13 Although Mr. Josephson raised double jeopardy concerns on several occasions both pre- and posttrial, at no point in any of those arguments did he point the district court to the single criminal episode statute argument that he now makes. This is significant because the analysis for a double jeopardy challenge is distinct from the analysis under the single criminal episode statute.

¶14 "The double jeopardy clauses of both the Utah and federal constitutions limit the government's ability to prosecute or punish an individual multiple times for the same conduct." The single criminal episode statute, "takes the matter a step further[,] ... barring prosecutions for different offenses committed as part of a single criminal episode and otherwise meeting the terms of the statute." Because the single criminal episode statute could apply to bar the prosecution of offenses beyond those offenses that were already prosecuted, the statute expands the protections of double jeopardy. And this expanded scope of protection will often require courts to conduct analysis beyond what is required when only a double jeopardy argument is raised.

¶15 Additionally, there is an important difference between the operation of the protections under the single criminal episode statute and the double jeopardy clauses. Unlike the constitutionally based protection provided by the double jeopardy clauses, the protections under the single criminal episode statute are limited by the language of the statute. "The single criminal episode statute is strictly procedural in nature. It requires that when a defendant is brought before a court, all offenses arising from a single incident which are triable before that court be charged at the same time." To the extent that is not possible, "the state is not required to choose to prosecute only some of the offenses committed by a defendant."

¶16 So the single criminal episode "provisions are implicated not for all former prosecutions arising out of a single criminal episode, but only as to former prosecutions in which the offenses in question were 'known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment .' " For this reason, the single criminal episode statute does not apply to any prosecutions stemming from conduct arising after the date of the first arraignment. This feature of the statute is significant in this case and ultimately defeats Mr. Josephson's preservation argument.

¶17 Because the single criminal episode statute does not apply to any prosecutions stemming from conduct arising after the date of the first arraignment, the determination of whether or not the statute applies may often depend on the district court's factual findings regarding the timing of events-factual findings that might not be relevant to the more limited focus of a double jeopardy determination. This case illustrates the significance of this aspect of the single criminal episode statute.

¶18 Here, Mr. Josephson was charged in justice court on September 22, 2014 (first arraignment) with one count of making a threat of violence. This charge was based solely on a threat Mr. Josephson made on September 7. Later, the City brought charges against Mr. Josephson in district court for conduct that occurred throughout the month of September, including a threat made on September 30, 2014.

¶19 Before the district court, Mr. Josephson argued that the district court prosecution violated double jeopardy because he had already been convicted in the justice court. But he did not make an argument under the single criminal episode statute. His failure to raise his single criminal episode arguments before the district court deprived the court of an opportunity to conduct the necessary analysis. Although the district court found that Mr. Josephson's prosecution did not implicate double jeopardy, the court never had the opportunity to conduct the analysis on the single criminal episode requirements. Because of this, there is no evidence in the record as to what the prosecuting attorney knew at the time of the first arraignment in justice court.

¶20 This factual deficiency hinders our appellate review and illustrates the importance of our preservation requirements. Accordingly, we hold that Mr. Josephson's single criminal episode argument was not preserved and must be reviewed under our plain error standard.

B. The district court did not plainly err when it failed to apply the single criminal episode statute

¶21 Mr. Josephson argues that the district court plainly erred when it failed to apply the single criminal episode statute to bar the City's prosecution in the district court. "[T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, [Mr. Josephson] must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful...." Because the error, if any, would not have been obvious to the district court, we conclude that the court did not plainly err when it permitted Mr. Josephson's prosecution.

¶22 Whether the single criminal episode statute applies depends on whether the first prosecuting attorney knew, at the time of the first arraignment, about the conduct underlying the charges that were later brought in the second prosecution. As discussed supra , because Mr. Josephson never argued that the single criminal episode statute applied to his case, neither party introduced evidence regarding whether the first prosecutor knew about the conduct underlying the second prosecution at the time of the first arraignment. As a result, there was no indication on the record that the first prosecutor knew about all the conduct underlying the charges in the second prosecution, and it could not have been obvious to the district court that the single criminal episode statute applied to Mr. Josephson's case. Accordingly, Mr. Josephson's claim that the district court erred in allowing the prosecution fails.

II. The District Court Did Not Plainly Err By Failing to Merge Mr. Josephson's Threat of Violence Conviction With His Stalking Conviction

¶23 Mr. Josephson also argues that the district court plainly erred in failing to merge his convictions for stalking and threat of violence at sentencing. Both parties agree that this issue was not preserved and must be reviewed for plain error. As we noted above, one requirement of the plain error standard is that the error complained of should have been obvious to the district court. To establish this, Mr. Josephson "must show that the law governing the error was clear at the time the alleged error was made." Because our law is unclear regarding whether the stalking and threat of violence convictions should have been merged, we find that the alleged error would not have been obvious to the district court and Mr. Josephson's claim fails.

¶24 We begin our analysis by noting that the court of appeals' chief concern in certifying this case to us was to allow us to determine "whether [under the lesser included offense provision] a defendant may be convicted separately of stalking and also the predicate crimes that constitute the course of conduct on which the stalking charge was (in part) based." Importantly, the court of appeals noted that this "question of law has not been ... settled by" this court. After considering the merger doctrine, the requirements of the stalking and threat of violence statutes, and relevant caselaw, we agree with the court of appeals that the law on this point is unclear.

¶25 Merger "is a judicially-crafted doctrine available to protect criminal defendants from being twice punished for committing a single act that may violate more than one criminal statute." In Utah, the legislature "codified the merger doctrine in statute, providing that '[a] defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense.' " This is true unless the legislature includes an anti-merger provision, specifically indicating its intent that the offenses not merge.

¶26 In resolving merger questions, "the determination to be made is whether the legislature intended an offense to be a lesser included offense of another." Lesser included offenses are "established by proof of the same or less than all the facts required to establish the commission of [another] offense."

In other words, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."

¶27 "Utah courts apply a two-tiered analysis to identify lesser-included offenses." Under the first tier, if the "two crimes are such that the greater cannot be committed without necessarily having committed the lesser, then ... they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both." That analysis is not sufficient here, because both the stalking and threat of violence statutes have multiple variations. Where, as here, the two crimes charged have multiple variations, it is possible that under one variation, an offense would be a lesser-included offense, but under another variation it would not be. So we proceed to the second tier of the analysis and "consider the evidence [used at trial] to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial." So we turn to an examination of the stalking and threat of violence statutes and their variations.

¶28 The stalking statute requires proof that a person "intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person's own safety or the safety of a third person; or (b) to suffer other emotional distress." "Course of conduct" is defined as "two or more acts directed at or toward a specific person, including: (i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person." Additionally, a "person is guilty of stalking who intentionally or knowingly violates: (a) a stalking injunction issued pursuant to Title 77, Chapter 3a, Stalking Injunctions."

¶29 The stalking statute provides that this "section does not preclude the filing of a criminal information for stalking based on the same act which is the basis for the violation of the stalking injunction issued pursuant to [the stalking statute], or a permanent criminal stalking injunction." Here, that would mean that the September 30 violation of the stalking injunction could be prosecuted in addition to the stalking charge itself. Although the City largely presented the issue to the jury under the course of conduct theory, this violation of the stalking injunction would also satisfy the elements of stalking.

¶30 In contrast, the threat of violence statute requires proof that either "the person threatens to commit any offense involving bodily injury, death, or substantial property damage, and acts with intent to place a person in fear of imminent serious bodily injury, substantial bodily injury, or death" or "the person makes a threat, accompanied by a show of immediate force or violence, to do bodily injury to another."

¶31 But even if offenses would otherwise be considered lesser included offenses, the legislature may still, by statute, prohibit those offenses from merging. We have held that "if the legislature intends to preclude [the lesser included offense provision] from requiring merger in a specific instance, it must clearly indicate that" intent. "Only when such an explicit indication of legislative intent is present in the specific offense statute will we consider it appropriate to exempt that statute from operation of the general merger requirements in [the lesser included offense provision]."

¶32 The City argues that subsection (5) of the threat of violence statute operates as an anti-merger provision, or an "explicit indication of legislative intent" against merger. This section states that a "person who commits an offense under this section is subject to punishment for that offense, in addition to any other offense committed, including the carrying out of the threatened act."

¶33 Mr. Josephson argues that the language of this provision is not explicit enough to be construed as an anti-merger provision. He asserts that the legislature makes it clear when a statute is exempted from this doctrine. He points to several statutes that provide exemptions to the merger provision, all of which use the word "merge" explicitly. In response the City points to two additional statutes that contain similar provisions but do not actually include the word "merge."

¶34 As the debate between the parties in this case demonstrates, there is no clearly established law resolving this issue. Indeed, this is a complicated issue with many moving parts. But we need not resolve this issue as part of our plain error review. Because of the admittedly unsettled nature of this area of law, we cannot say that the error should have been obvious to the trial court. So the error, if any, was not plain error, and Mr. Josephson's claim must fail.

Conclusion

¶35 Neither of Mr. Josephson's arguments was adequately preserved below. Given the complexity of both issues that are before us and the fact that the law was unsettled, we cannot charge the trial court with plain error. Accordingly, we affirm.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted).

      State v. Dunn , 850 P.2d 1201, 1208 (Utah 1993) ("[T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful....").

      Id.

      Baumann v. Kroger Co. , 2017 UT 80, ¶ 25, 416 P.3d 512.

      Id.

      Id.

      Federated Capital Corp. v. Deutsch , 2018 UT App 118, ¶ 19, 428 P.3d 51 (citations omitted) (internal quotation marks omitted).

      Brookside Mobile Home Park, Ltd. v. Peebles , 2002 UT 48, ¶ 14, 48 P.3d 968 (citation omitted).

      438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 (citation omitted).

      Brookside , 2002 UT 48, ¶ 14, 48 P.3d 968 (citation omitted).

      State v. Sanchez , 2018 UT 31, ¶ 30, 422 P.3d 866 (citation omitted) (internal quotation marks omitted).

      We recognize that "[w]hether a party has properly preserved an argument ... cannot turn on the use of magic words or phrases." In re Baby Girl T. , 2012 UT 78, ¶ 38, 298 P.3d 1251. And "an overlooked or abandoned argument should not compel an erroneous result. We should not be forced to ignore the law just because the parties have not raised or pursued obvious arguments." Kaiserman Assocs., Inc. v. Francis Town , 977 P.2d 462, 464 (Utah 1998). This is our caselaw, and we are not abandoning these standards now. Mr. Josephson did not need to utter the "magic words" of "single criminal episode statute" to properly preserve the issue. But without any reference to any argument besides double jeopardy, we cannot find that this issue was ever "sufficiently raised to a level of consciousness before the trial court." Sanchez , 2018 UT 31, ¶ 30, 422 P.3d 866 (citation omitted) (internal quotation marks omitted). So we hold that this issue is unpreserved.

      Mr. Josephson raised the double jeopardy issue during oral argument on his motion in limine on September 9, 2015. He again argued this issue while objecting to a jury instruction. Finally, he argued this issue on a motion for directed verdict and the ensuing discussion with the trial court indicated that the court recognized the issue, though it denied the motion.

      State v. Robertson , 2017 UT 27, ¶ 15, --- P.3d ---- (citing U.S. Const. amend. V ; Utah Const. art. 1, § 12 ).

      State v. Ririe , 2015 UT 37, ¶ 6, 345 P.3d 1261.

      Id.

      State v. Sosa , 598 P.2d 342, 345 (Utah 1979).

      Id. ("To hold otherwise would frustrate sound public policy and circumvent the demands of justice.").

      Ririe , 2015 UT 37, ¶ 10, 345 P.3d 1261 (citing Utah Code § 76-1-402(2) ).

      "The policy of judicial economy is most directly frustrated when an appellant asserts unpreserved claims that require factual predicates." Patterson v. Patterson , 2011 UT 68, ¶ 15, 266 P.3d 828.

      Dunn , 850 P.2d at 1208. Mr. Josephson also argues that this issue is not susceptible to a harmless error analysis, because the United States Supreme Court has held that double jeopardy violations are not subject to harmless error analysis. See, e.g. , Morris v. Mathews , 475 U.S. 237, 244-45, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) ; Price v. Georgia , 398 U.S. 323, 331, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Because the single criminal episode statute expands on double jeopardy protections, it is unclear whether or how we would conduct a harmless error analysis. But because we find any potential error would not have been obvious, we reserve this question for another time.

      We have "recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances." State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443. But because the parties have only argued for plain error review, we decline to review the question under the other exceptions.

      State v. Dean , 2004 UT 63, ¶ 16, 95 P.3d 276 (citing State v. Eldredge , 773 P.2d 29, 35-36 (Utah 1989) ).

      State v. Smith , 2005 UT 57, ¶ 7, 122 P.3d 615 (citation omitted) (internal quotation marks omitted); see also State v. Williams , 2007 UT 98, ¶ 13, 175 P.3d 1029 ("The merger doctrine derives from the constitutional guarantee that a person may not be held accountable twice for the same criminal conduct." (citations omitted) ).

      Williams , 2007 UT 98, ¶ 13, 175 P.3d 1029 (alteration in original) (quoting Utah Code § 76-1-402(3) ).

      Smith , 2005 UT 57, ¶ 11, 122 P.3d 615.

      State v. Bond , 2015 UT 88, ¶ 69, 361 P.3d 104 (citation omitted) (internal quotation marks omitted); see also Albernaz v. United States , 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) ("Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the [legislature] intended to be imposed.").

      Utah Code § 76-1-402(3)(a).

      Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      State v. Ross , 951 P.2d 236, 241 (Utah Ct. App. 1997).

      State v. Hill , 674 P.2d 96, 97 (Utah 1983) (citation omitted) (internal quotation marks omitted).

      State v. Chukes , 2003 UT App 155, ¶ 10, 71 P.3d 624 (citation omitted).

      Utah Code § 76-5-106.5(2).

      Id. § 76-5-106.5(1)(b).

      Id. § 76-5-106.5(3).

      Id. § 76-5-106.5(16).

      Id. § 76-5-107(1)(a).

      Id. § 76-5-107(1)(b).

      Smith , 2005 UT 57, ¶ 11, 122 P.3d 615.

      Id.

      Utah Code § 76-5-107(5).

      See, e.g. , id. § 76-1-405 (explicitly defining instances when a subsequent prosecution is not barred by a former prosecution).

      See, e.g. , id. § 76-5-202(5)(a) ("Any aggravating circumstance ... that constitutes a separate offense does not merge with the crime of aggravated murder."); id. § 76-5-203(5) ("Any predicate offense ... that constitutes a separate offense does not merge with the crime of murder."); id. § 76-8-508(3) ("The offense of tampering with a witness or soliciting or receiving a bribe under this section does not merge with any other substantive offense committed in the course of committing any offense under this section."); id. § 76-8-508.3(4) ("The offense of retaliation against a witness, victim, or informant under this section does not merge with any other substantive offense committed in the course of committing any offense under this section.").

      See id. § 58-37-8(7) ("A person may be charged and sentenced for a violation of this section, notwithstanding a charge and sentence for a violation of any other section of this chapter."); id. § 76-6-202(3) ("A violation of this section is a separate offense from any of the offenses listed in Subsections (1)(a) through (g), and which may be committed by the actor while in the building.").

      This leaves an important question unanswered. But it would be inappropriate to reach this question given that the court did not plainly err.


author: /s/ Fairhurst, C.J. CHIEF JUSTICE

text:
    ZURICH AMERICAN INSURANCE COMPANY, Petitioner, v. Bryan SYKES, et al., Respondents.
    No. 96528-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should he granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. Respondent Singh's request for attorney fees is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


author: /s/ Fairhurst, CJ. CHIEF JUSTICE

text:
    STATE of Washington, Petitioner, v. Matthew Sean MCCARTHY, Respondent.
    No. 96653-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, this 6th day of March, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Vernice M. MORRIS, Petitioner.
    No. 96637-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, this 6th day of March, 2019.
    ORDER
   ¶ 1 Department I of the Court., composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5. 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Christopher B. RAMIREZ, Petitioner.
    No. 96597-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Julian Jesus GARCIA, Petitioner.
    No. 96586-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted only on the issue of the challenge to the legal financial obligations. In light of this Court's decision in State of Washington v. David Angel Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), and the 2018 amendment to the legal financial obligations statutes, this case is remanded to the trial court to reconsider the imposition of the requirement to pay the $ 200 criminal filing fee.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Luis GOMEZ-MONGES, Petitioner.
    No. 96584-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    In the Matter of the Marriage of Cathrine J. MARCHESSEAULT, Petitioner, v. Chad E. MARCHESSEAULT, Respondent.
    No. 96580-3
    Supreme Court of Washington.
    March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The Respondent's request for attorney fees is also denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    PORT OF TACOMA, et al., Respondents, v. SAVE TACOMA WATER, et al., Petitoners.
    No. 96575-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Michael Levi BACKEMEYER, Respondent.
    No. 96574-9
    Supreme Court of Washington.
    March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    State of Washington, DEPARTMENT OF TRANSPORTATION, Respondent, v. MULLEN TRUCKING 2005, LTD., et al., Petitioners.
    No. 96538-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That both petitions for review are granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Russell Paul KASSNER, Petitioner.
    No. 96481-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    ESTATE OF Carl MURRAY, et al., Petitioners, v. CITY OF VANCOUVER, Respondent.
    No. 96459-9
    Supreme Court of Washington.
    March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    IN RE the Matter of the WELFARE OF: A.L.B.-Y.
    No. 96174-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The Petitioner's motion for extension of time to file the petition for review is granted. The petition for review and the motion to stay are both denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    HEADSPACE INTERNATIONAL, LLC, Respondent, v. PODWORKS CORP., et al., Petitioners.
    No. 96598-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The Petitioners' motion for extension of time to file a petition for review is granted. The petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Mark Wade ALEXANDER Jr., Petitioner.
    No. 96590-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Nathaniel E. TILTON, Petitioner.
    No. 96588-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, Petitioner, v. DEPARTMENT OF EARLY LEARNING, et al., Respondents.
    No. 96578-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    In the MATTER OF the MARRIAGE OF Paul A. CARDWELL, Respondent, v. Regan R. CARDWELL, Petitioner.
    No. 96563-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The Respondent's motion for extension of time to file an answer to the petition for review is denied. The petition for review is also denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Charles Williams JONES Jr., Petitioner.
    No. 96562-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant, to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jeffrey Joseph POOL, Petitioner.
    No. 96559-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    Joginder SINGH dba AP Transport, Respondent, v. ZURICH AMERICAN INSURANCE COMPANY, Petitioner.
    No. 96536-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    In the Matter of the Marriage of: John MASON, Respondent, v. Tatyana MASON, Petitioner.
    No. 96438-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The petition for review is denied. The Petitioner's motion for extension of time to file a reply to the answer to the petition for review, motion for a continuance, and motion to accept the reply to the answer to the petition for review are all denied. The Respondent's motion to strike the reply to the answer to the petition for review and the Respondent's request for attorney fees are both denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    WELLS FARGO BANK, N.A., Respondent, v. Barry and Mary Beth GARDNER, et al., Petitioners.
    No. 96407-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    IN RE the DETENTION OF: Gregory Eugene COLEY
    No. 95389-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted only as to the Batson challenge issue. The case is remanded to the Court of Appeals for reconsideration in light of State of Washington v. Tyree William Jefferson, 192 Wn.2d 225, 429 P.3d 467 (2018).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    C.L. and Simeon J. Osborn as litigation guardian for S.L., Respondents, v. STATE of Washington, Petitioner.
    No. 95184-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Chris ONOCHIE, Petitioner, v. Erekpoebinimi ONOCHIE, Respondent.
    No. 96676-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Amie N. MELAND, Petitioner.
    No. 96587-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    SEIU HEALTHCARE N.W. TRAINING PARTNERSHIP, Respondent, v. EVERGREEN FREEDOM FOUNDATION, Petitioner.
    No. 96560-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The Petitioner's motion for extension of time to file a petition for review is granted. The petition for review is denied. The Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Gary Bernard SANDERS II, Petitioner.
    No. 96506-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    IN RE the DETENTION OF: Charles URLACHER
    No. 96484-0
    Supreme Court of Washington.
    March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jerremy Joe GMEINER, Petitioner.
    No. 96483-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Edward Lane HART, Petitioner.
    No. 96482-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Stephen R. JABS, Petitioner.
    No. 96337-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    Angela SANDERSON n/k/a Angela Bovo, Petitioner, v. Zane SANDERSON, Respondent.
    No. 96256-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jeffrey Joseph BAUS, Petitioner.
    No. 96685-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Marlon Iupati LEMAFA, Petitioner.
    No. 96681-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief" Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

2 IT IS ORDERED:

¶ 3 That the petition for review is granted only on the issue of the challenge to the legal financial obligations. In light of this Court's decision in State of Washington v. David Angel Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), and the 2018 amendment to the legal financial obligations statutes, this case is remanded to the trial court to reconsider the imposition of the requirement to pay the DNA fee.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Lucien J. THIBODEAUX, Petitioner.
    No. 96675-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Hayden Adam Martin CEPA, Petitioner.
    No. 96674-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jason Michael SMITH, Petitioner.
    No. 96673-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Nicholas Adam ZYLSTRA, Petitioner.
    No. 96672-9
    Supreme Court of Washington.
    March 06, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    KAES ENTERPRISES, Petitioner, v. KOPPENBERG ENTERPRISES, Respondent.
    No. 96667-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Keith Adair DAVIS, Respondent.
    No. 96663-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    ADDAI INVESTMENT GROUP, LLC, Petitioner, v. DITECH FINANCIAL, LLC, et al., Respondents.
    No. 96659-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Valentina POLETAYEVA, Petitioner, v. SPECIALIZED LOAN SERVICES LLC, et al., Respondents.
    No. 96652-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González arid Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Larry SMITH Jr., Petitioner.
    No. 96651-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted only on the issue of the $200 filing fee and the $100 DNA fee. The case is remanded to the trial court to amend the judgement and sentence to strike the $200 filing fee and reconsider the $100 DNA fee to determine whether the Petitioner's DNA has been previously collected.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Andres S. FERRER, Petitioner.
    No. 96650-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Karen Lynn KLEINSMITH, Petitioner.
    No. 96646-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Raul CORTES-MENDEZ, Petitioner.
    No. 96645-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Hector Hugo TALAVERA, Petitioner.
    No. 96638-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Ronnie MOORE Jr., Petitioner.
    No. 96636-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respodent, v. Keith Edwin EAGLE, Petitioner.
    No. 96635-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Curtis K. K. ESCALANTE, Petitioner.
    No. 96632-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Oscar Luis URBINA, Petitioner.
    No. 96628-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jason Michael BUTCHER, Petitioner.
    No. 96621-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jonathan Ray THACKER, Petitioner.
    No. 96620-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(h) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. David Timothy FLAIR, Petitioner.
    No. 96619-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Christopher L. BILLINGS, Petitioner.
    No. 96618-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    CHURCH OF THE DIVINE EARTH, Petitioner, v. CITY OF TACOMA, Respondent.
    No. 96613-3
    Supreme Court of Washington.
    March 06, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted only as to whether the City of Tacoma is liable for damages because it knew or should have known its action was unlawful. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Eric Lamar JACKSON, Petitioner.
    No. 96612-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Dymon Lee WILLIAMS, Petitioner.
    No. 96611-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Leshaun Ayatta ALEXANDER Jr., Petitioner.
    No. 96601-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Arnold M. CRUZ, Respondent.
    No. 96600-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 The motion to consolidate this matter with Supreme Court case number 96599-4 - State of Washington v. Robert L. Davis, et al. is denied. Consideration of this matter is stayed pending a final decision in Supreme Court No. 96599-4 - State of Washington v. Robert L. Davis, et al.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Matthew Thomas SCHWARTZ, Respondent.
    No. 96643-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 06, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Robert L. DAVIS, et al., Respondents.
    No. 96599-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the State's petition for review is granted and Pry's petition for review is denied. The motion to consolidate this matter with Supreme Court cause number 96600-1 - State of Washington v. Arnold M. Cruz is denied. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    CONNELL OIL INC., Respondent, v. Erik McConnell JOHNSON, et al., Petitioners.
    No. 96579-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 6, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE