Washingon State Governor, Attorney General lead legal response to Supreme Court psychiatric boarding decision

On Friday Attorney General Bob Ferguson, in conjunction with a broad coalition of organizations, filed a motion in the Washington State Supreme Court to address the impacts of the court’s recent decision on psychiatric boarding. The motion asks the court to delay the effect of its decision so that the state can implement Governor Jay Inslee’s plan to make sure alternative care is available.

A broad coalition of hospitals, healthcare organizations and disability rights groups joined today’s motion. All of these groups had earlier asked the court to end psychiatric boarding. They nonetheless joined this request to ensure that the practice can be ended in a responsible manner, through implementation of a plan developed by the state Department of Social and Health Services. As the first step in that plan, Inslee today approved the immediate expenditure of $30 million for DSHS to purchase mental health services for some of the patients currently involuntarily detained.

The state respects the court’s ruling, but is aware that immediate implementation without alternatives in place could cause severe negative consequences. As a result the state, healthcare providers, hospitals and disability rights organizations are asking the court to delay the effective date of its ruling by 120 days to give the system time to adapt.

“My office wants to ensure the state is able to implement the court’s decision in a way that protects vulnerable individuals, public safety and healthcare providers,” said Ferguson. “No one would benefit from the release of people in mental health crisis without treatment. We hope the court will see the broad consensus in support of this motion and grant it.”

“I appreciate that so many parties have come together to agree on this plan,” Inslee said. “We are not challenging the Supreme Court ruling. We all want to implement the decision but we need to make sure patients receive the treatment they need and that the community is protected.”

Under state law, counties may detain individuals with “a mental disorder” for evaluation and treatment who are a threat to themselves or others. In recent years, counties have often relied on psychiatric boarding in hospital emergency rooms for such individuals because of a lack of space in certified evaluation and treatment facilities. On August 7, the Supreme Court held in the case In re Detention of D.W. that state law does not allow psychiatric boarding.

Under the court’s normal rules, its decision would become effective 20 days after being issued, i.e., on August 27.  As has been widely reported, ending psychiatric boarding so quickly could lead to serious problems for people in mental crisis, counties, hospitals and the general public. Without sufficient certified-treatment facilities available, many people who present a threat to themselves or others will be released without treatment.

To avoid this result, the AGO, governor and the Department of Social and Health Services have worked closely with healthcare organizations, hospitals, and disability rights advocates to come up with an interim solution.

In the motion filed today, the parties detail the plan they have developed, and ask the court to delay the effect of its ruling for 120 days to allow the plan to be put into place. The plan calls for the state to make available 145 additional certified evaluation and treatment beds over the next 120 days. Additionally, the governor and DSHS intend to work with legislative leaders to develop a longer-term solution.

The motion, available here, is being filed on behalf of DSHS, Multi Care Health System, Franciscan Health System, the Washington State Hospital Association, Disability Rights Washington, the Washington State Medical Association, the ACLU of Washington, the National Alliance on Mental Illness Washington, the Washington Association of Public Hospital Districts, the NW Organization of Nurse Executives, the Washington Chapter of American College of Emergency Physicians, the Washington Council of Emergency Nurse Executives, Washington State Nurses Association and SEIU 1199NW (which represents nurses).

2014 WA Primary: Your vote, your voice

by Brian Zylstra

Ten years after Washington voters adopted the Top 2 Primary system by initiative, it’s time for the 2014 edition.

Check your mail over the next few days for your Primary ballot.  Although it’s a mid-term election, there are races and propositions that are significant for your community, and we’re hoping for an excellent turnout, state Elections Director Lori Augino said this week.

The 2014 Primary actually got under way last month when county election officials sent ballots by mail and electronically to about 65,000 military and overseas voters.  Now it’s time for the rest of us.

This year’s Primary, which ends Aug. 5, will be dominated by races in all 10 congressional districts, including the competitive race in Eastern Washington’s open 4th Congressional District to replace retiring U.S. Rep. “Doc” Hastings. The Primary also includes all 98 state House seats and 25 of the 49 state Senate seats. Among the state Senate battles is the crowded race in the 37th Legislative District to replace retiring Sen. Adam Kline.

There are no races for U.S. Senate or statewide offices this year. None of the four state Supreme Court races will be on the Primary ballot.

The top two vote-getters in each partisan race advance to the General Election, regardless of party preference. Go here to view our online Primary Voters’ Guide on the congressional and legislative primary races.

Voters in many counties also will see many local races and ballot measures on their Primary ballot. Among the most publicized in King County is Proposition 1, which would create the Seattle Park District.

Secretary of State Wyman predicts that Primary voter turnout will be about 40 percent, which is in the same range as the 2010 Primary (41 percent) and 2006 Primary (38.8 percent).

Wyman, Washington’s chief elections official, encourages voters to take part in the Primary by filling out and returning their ballot in time for their vote to count.

“Several important local ballot measures will be decided in this Primary, and congressional, legislative and county races will be pared down to two candidates for the General Election, so I encourage voters to study the races and measures and take a few minutes to fill out and return their ballot by Election Day,” Wyman said.

Ballots must be postmarked by Aug. 5 or returned to a ballot drop box by 8 p.m. on Election Day. Ballots can also be returned to accessible voting centers during business hours.

If you aren’t registered to vote in Washington, you have until July 28 to do so. You need to visit your county elections office to register in person.

Elma woman learns of her overturned conviction on the news

 ELMA, Wash. – The State Supreme Court has unanimously thrown out an Elma woman’s conviction for controlled substances homicide due to a defect in the charging papers filed against her. Although someone forgot to tell Brenda Zillyette, she tells KBKW  “I just heard it on the radio that the case was overturned, so I looked you up.”
She’s already done serving 36 months of a 55 month sentence, Zillyette was charged with providing Xanax and methadone that caused the overdose death of 18-year-old Austin Burrows in 2009. However, prosecutors didn’t specify what drugs she was accused of providing.
Now 4 years sober, she tells us “There will never be closure for me, that’s something I’m going to remember for the rest of my life.” She said she remains active in recovery, “I’m able to go in and tell my story to people, and hope that they learn something from it.
Because only certain drugs can support a charge of controlled substances homicide, the high court found that in effect, the charging papers didn’t necessarily accuse her of committing a crime. On Thursday the high court overturned the trial court that convicted her and the state appeals court panel that upheld the conviction, dismissing the charge against Zillyette.

Washington high court tosses Elma drug homicide conviction

OLYMPIA, Washington (AP) – The State Supreme Court has unanimously thrown out an Elma woman’s conviction for controlled substances homicide due to a defect in the charging papers filed against her.

Brenda Zillyette was charged after investigators in Grays Harbor County discovered she had provided the Xanax and methadone that caused the overdose death of 18-year-old Austin Burrows in 2009. However, in charging papers prosecutors didn’t specify what category of controlled substances or what specific drugs she was accused of providing.

Because only certain drugs can support a charge of controlled substances homicide, the high court found that in effect, the charging papers didn’t necessarily accuse her of committing a crime. For that reason, on Thursday they overturned the trial court that convicted her and the state appeals court panel that upheld the conviction.

The justices dismissed the charge against Zillyette, who learned about it on the news.

State Supreme Court and FCC Side With Phone Customers

These added fees can amount to a tremendous amount of money. In one of the earlier cases that we had, the Universal Connectivity charge that involved AT&T Wireless, the company made over $200 million, easily, on that charge.

In the most recent case, Peck v. AT&T Mobility, he says the estimate is between $15 million and $20 million. There’s no word yet on whether AT&T Mobility will refund the charges. The company contended that it is regulated by federal law, not state, but in an earlier decision, the 9th Circuit Court said that doesn’t apply to billing practices. A similar lawsuit against Sprint is pending.

Critics say the FCC rules are at least a decade too late. Breskin says he’s seeing less federal oversight to protect consumers – and all manner of businesses, including banks and airlines, pushing the same types of limits as the phone companies.

“These different industries have become very aggressive about trying to recoup overhead through added charges. I mean, they like to present seemingly-low costs for their service, but then tack on these added charges after the fact, which just drives up the cost to the consumer.”

The lesson, he adds, is to read the fine print on your bills, at least periodically, and request explanations of what you don’t understand.

Union to pay teachers for campaign violations

In 2000, EFF filed a complaint with the Public Disclosure Commission alleging the WEA had violated RCW 42.17.760. After an investigation, the WEA admitted to “multiple violations” of the law, and then-Attorney General Christine Gregoire filed a lawsuit against the union in October 2000. A Thurston County Superior Court judge found the union had committed intentional violations. The union appealed.

Meanwhile, in March 2001, a group of teachers led by former teacher Gary Davenport filed a separate class-action lawsuit against the WEA in order to recover their improperly-spent dues. The teachers were represented by Steven T. O’Ban of Ellis, Li & McKinstry PLLC and Milton L. Chappell of the National Right to Work Legal Defense Foundation, and supported by the Evergreen Freedom Foundation. This case was consolidated with the State’s case against the WEA to determine the constitutionality of the law requiring unions to get permission for political spending.

In 2006 the Washington State Supreme Court ruled the law was unconstitutional. Justice Faith Ireland (retired) wrote that requiring unions to ask permission before spending nonmember dues on political activity was “too heavy an administrative burden.” The State and the Davenport teachers both appealed to the U.S. Supreme Court. 

On June 14, 2007, the U.S. Supreme Court unanimously upheld RCW 42.17.760 as constitutional. Justice Antonin Scalia wrote that “unions have no constitutional entitlement to nonmember employees’ fees.” Thus, laws requiring unions to gain permission from employees before using the money to further the union’s political objectives are constitutional.

Both cases were then returned to state court. The State settled its case with the WEA in December 2008. The WEA agreed to pay the State $735,000 and return up to $240,000 to affected teachers. Today’s settlement for an additional $225,000, bring the total the WEA has paid in penalties and restitution to teachers well over $1 million dollars.

“With today’s settlement of the Davenport case, this matter is finally laid to rest,” said Steve O’Ban. “We are pleased that the WEA has been held accountable for its actions. The real victors today are the teachers who fought for nearly a decade to vindicate their rights.”

“This case was about a simple principle,” said Michael Reitz, general counsel of EFF, “to ensure that teachers are not forced to pay for political activity with which they disagree. No one should have to support someone else’s political agenda as a condition of employment.”

Additional Information 

·         U.S. Supreme Court decision in Davenport v. WEA (2007)

·         Audio comments from Michael Reitz, EFF general counsel

-         Clip 1

-         Clip 2

-         Clip 3

Washington Court Limits Child Pornography Charges, New Sentencing for Grays Harbor Resident

     OLYMPIA, Wash. (AP) – The state Supreme Court has ruled that defendants accused of possessing multiple images of child pornography can only be prosecuted for a single offense, not multiple counts based on the number of images or children involved.

The court decision Thursday upheld an appeals court ruling ordering a new sentencing in Grays Harbor County Superior Court for Randy Sutherby on a single count. He had originally been convicted of 10.

The Supreme Court says the proper unit for child pornography prosecution is one count per possession, rather than for each image or each child. The court separately reversed Sutherby's convictions for child
rape and child molestation, because his lawyer was ineffective. He had been accused of assaulting a 5-year-old girl in 2004. Investigators found pictures in his computer.