State Supreme Court Rules on Three Cases from Orcas

— from Cathryn Korth, SJC Prosecutors Office —

The Washington Supreme Court issued decisions on three San Juan County cases on December 11.  Two cases involved land use appeals by Deer Harbor resident Michael Durland.  The third case involved a ten-year-old rape case that received a fresh look due to a changes in the rules regarding “open courts.”

Prosecuting Attorney Randall Gaylord said that “in all three cases, the position on the law taken by the prosecutor’s office was upheld.”

The two cases filed by Mr. Durland involved a challenge to a building permit on property adjacent to Mr. Durland’s property.

Mr. Durland filed the first case directly in Skagit County without appealing to the County’s hearing examiner.  The trial court ruled that without a ruling from the hearing examiner, there was no final decision to be appealed and the court had no authority to hear the case.  The Washington court of appeals in Seattle upheld that decision and Mr. Durland then appealed to the Washington Supreme Court in Olympia.  The supreme court upheld the lower courts and awarded attorney fees to Mr. Durland’s neighbor.

Mr. Durland simultaneously appealed the same building permit to the County’s hearing examiner.  This appeal was denied by the hearing examiner as untimely.  Mr. Durland then filed suit in San Juan County and claimed the County hearing examiner should have processed the appeal because Mr. Durland did not receive personal notice of the issuance of the building permit.  Mr. Durland also contended that that the County deprived him of property rights.  The trial court ruled that no notice is required and that the dismissal was proper.  The court further ruled that a property owner does not have a property interest in his neighbor’s property under the laws of San Juan County.  This second case was also upheld by the Washington court of appeals and the Washington Supreme Court.  The neighbors were awarded attorney fees in this case, too.

Deputy prosecutor Ms. Amy Vira and a special deputy prosecutor, Mr. Mark Johnsen of Seattle, represented San Juan County in these two cases.

In the third case, the Washington Supreme Court denied a request to reverse the conviction of Roland Speight.  Mr. Speight was convicted in 2004 for a rape that occurred on Orcas Island.  Mr. Speight asked that his conviction be reversed for violation of the “open courts” laws.

In that case, during the jury selection phase of the trial, jurors completed a questionnaire in which they indicated whether they preferred to be questioned privately rather than in open court on sensitive topics such as prior experience with sexual assault. Ultimately, a few prospective jurors were questioned privately with the defendant and his lawyer present.

The Washington Supreme Court ruled that Mr. Speight was required to show that he was prejudiced by the questioning of jurors in private. Because he was present during the questioning, assisted in the defense, and as a result learned helpful information about the prospective jurors, Mr. Speight was unable to show prejudice.

Deputy prosecutor Mr. Charles Silverman (now retired) and special deputy prosecutor Mr. Philip Buri of Bellingham represented San Juan County.

The decisions of the Court of Appeals and Supreme Court are available at www.courts.wa.gov.