Prep One Flashcards
RAP 18.9(a) Frivolous appeal
authorizes the appellate court, on its own initiated or motion of a party, to order a party or counsel who files a frivolous appeal to pay sanctions, including award of attorney fees and costs to the opposing party.
An appeal is frivolous if there are no debatable issues on which reasonable minds might differ and it is so totally devoid of merit that there is no reasonable possibility of reversal
Sixth Amendment
a defendant has a right to a fair and impartial jury as well as the right to a trial process free from discrimination
peremptory challenge
There is no right under US Constitution or WA state Constitution, so a loss of a peremptory challenge does not undermine the fundamental judicial process and is not a per se reversible error. Tradition, statutes, and court rules created peremptory challenges.
Sicth Amendment
Guarantees the right to effective assistance of counsel
To succeed on a claim of ineffective assistance of appellate counsel, the petitioner mush demonstrate that defense counsel’s representation fell below an objective standard of reasonableness and the deficient representation resulted in prejudice
prejudice
requires that there is a reasonable probability that except for counsel’s unprofessional errors, the result of the proceeding would have been different.
First Amendment
True threats are not protected by the First Amendment.
persuasive authority
Persuasive authority refers to cases, statutes, regulations, or secondary sources that the court may follow but does not have to follow. Thus, the holding from a court in another jurisdiction or a lower court in the same jurisdiction is persuasive authority.
Fifteenth Amendment
In part: a prohibition on denying or abridging the right to vote on account of race… grants protection to all persons, not just members of a particular race.
Declaration of Intent (legislative)
Only serve as an important guide in determining the intended effect of the operative sections.
Abridgment of the right to vote
likely to be found if voting registration administered literacy test to Mexican American class more frequently, more carefully, and more stringently than they have administered them to other persons.
Equal Protection Clause - Fourteenth Amendment
strict scrutiny; rational basis review
Rational basis review
Satisfied if there is a rational relationship between the WVRA (example) and any legitimate government interests.
Proper service
when a defendant raises a challenge of service of process, plaintiff has the burden to show service was proper. burden can shift to defendant by clear and convincing evidence that service was improper
Corporate service of process
RCW 4.28.080:
If against a company or corporation other than those designated in subsections
(1) through (8) of this section, to the president or other head of the company
or corporation, the registered agent, secretary, cashier or managing agent
thereof or to the secretary, stenographer or office assistant of the president
or other head of the company or corporation, registered agent, secretary,
cashier or managing agent.
For more than 100 years, the list of authorized persons has included the corporation’s president or other head of the company, secretary, cashier, and managing agent.
Managing Agent: managerial authority
CR 56
“Summary judgment is
appropriate when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.” Lakehaven Water & Sewer Dist.
v. City of Federal Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020)
If reasonable minds could
differ on facts controlling the outcome of the litigation, then there is a genuine
issue of material fact and summary judgment is inappropriate. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
Contracts - unconscionable
A contract provision is unenforceable it if is deemed unconscionable. WA recognizes two forms: substantive and procedural.
Substantive: provision shocking to the conscience, monstrously harsh, exceedingly calloused to define unconscionable.
Procedural: equity between the contracting parties at the time of the contract’s formation. described as the lack of meaningful choice, considering all the circumstances surrounding the transaction.
Criminal competence (RCW 10.77.060 et seq.)
(1) Able to understand the nature of the charges against them; and
(2) able to assist in their own defense.
If either party raises competence under RCW 10.77 and is in custody, evaluation must take 14 days to complete
Corporation formation
Articles of incorporation are filed with the secretary of state and must include:
(1) name of corporation;
(2) Maximum number of shares the corporation is authorized to issue; and
(3) the initial registered agent.
Amendments to articles of incorporation
may be amended if there is a majority vote from directors and shareholders. Minor changes may be made by Board of Directors without shareholder approval.
piercing the corporate veil
ability to hold a shareholder liable for the debts of the corporation if:
(1) “Alter Ego”;
(2) Lack of corporate formalities;
(3) undercapitalized; OR
(4) fraud / illegality
Corporate shareholder liability
typically not liable for the debts of the corporation; review piercing the corporate veil
Duty of care
Making sure directors and officers are exercising reasonable care when making business decisions. Prevent negligence. Manage corporation’s management; ensure corporate proposals are in the interest of the company; disclose material information to the Board of Directors; make reasonably informed decisions
Duty of loyalty
Intentional wrongful conduct. Conflicting interest transaction, for example parent company and shareholder on both sides of the deal. Benefiting oneself over the corporation.
business judgment rule
creates a presumption that the directors acted in good faith, on an informed basis, and in the honest belief that the action in corporation’s best interest
EXCEPTIONS to duty of loyalty owed to corporation
(1) When shareholders approved the conflicting interest transaction;
(2) Disinterested directors approve the conflicting interest transaction; OR
(3) The conflicting interest transaction is fair to the corporation.
Duty of Care - Special relationship
Basis: liable party’s assumption of responsibility for the safety of another.
Exists where:
(1) the DEF has a special relationship with the tortfeasor that imposes a duty to control that person’s conduct; OR
(2) the DEF has a special relationship with the victim that gives the victim a right to protection.
FOR EXAMPLE: a school and its students because a student is placed under the control and protection of the other party (the school) with resulting loss of control to protect himself or herself.
FOR EXAMPLE: a group home and highly vulnerable residents because a nursing home’s function is to provide care for those who are unable because of physical or mental impairment to provide care for themselves.
INSTITUTIONAL DEF: not involved in “on-the-ground control of operations, an instutitional DEF is not in a position to provide protection from physical danger such as a school or group home.
Spearin Doctrine
United States v. Spearin (1918)
Doctrine holds: where a contractor is required to build in accordance with plans and specifications furnished by the owner, the owner impliedly guarantees that the plans are workable and sufficient.
Affirmative Defense to breach of contract claim
“Person of Interest in any will”
a person interested is one who has a direct, immediate, and legally ascertained pecuniary interest in the devolution of the testator’s estate, such as would be impaired or defeated by the probate of the will or benefited by the declaration that it is invalid.
“The contestant must stand to lose directly in a financial way if the will which he seeks to attack is permitted to stand.”
Undue influence
Term of art in common law.
In contracts: undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.
Must prove BOTH: a qualifying relationship AND contract was induced by unfair persuasion.
Litigation privilege
Judicially created privilege that protects participants including attorneys, parties, and witnesses in a judicial proceeding against civil liability for statements they make in the course of that proceeding. Statements are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.
Witness immunity
As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony. Statements are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.
First Amendment right to privacy
Under the Public Records Act, the First Amendment right to privacy protects against state action compelling disclosure of political beliefs and associations.
Thus, only if the State actor demonstrates a compelling interest in disclosure, and that interest is sufficiently related to the disclosure, can the state actor lawfully disclose the Does’ identities in the investigatory records.
nonconforming use
a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.
A common law principle; “ a lot, use, building or structure which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails by reason of such adoption, revision or amendment to conform to the current requirements of the zoning district.
NEGLIGENCE
(1) existence of a duty owed;
(2) breach of that duty;
(3) a resulting injury; AND
(4) proximate cause between the breach and the injury.
