Mark D. Walters
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What the Text of the US Constitution Actually Says on the Militia and Right to Bear Arms

6/2/2022

 

Article I, Section 8:
 
The Congress shall have Power . . . 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]
 
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.]
 
Article II, Section 2:
 
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States[.]
 
Second Amendment:
 
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
 
Fifth Amendment:
 
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger[.] 

Washington Employment Law Update:  Protections for Employee Personal Social Media Login Information

5/31/2022

 
RCW 49.44.200 provides: 
(1) An employer may not:
(a) Request, require, or otherwise coerce an employee or applicant to disclose login information for the employee's or applicant's personal social networking account;
(b) Request, require, or otherwise coerce an employee or applicant to access his or her personal social networking account in the employer's presence in a manner that enables the employer to observe the contents of the account;
(c) Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the employee's or applicant's personal social networking account;
(d) Request, require, or cause an employee or applicant to alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account; or
(e) Take adverse action against an employee or applicant because the employee or applicant refuses to disclose his or her login information, access his or her personal social networking account in the employer's presence, add a person to the list of contacts associated with his or her personal social networking account, or alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account.
(2) This section does not apply to an employer's request or requirement that an employee share content from his or her personal social networking account if the following conditions are met:
(a) The employer requests or requires the content to make a factual determination in the course of conducting an investigation;
(b) The employer undertakes the investigation in response to receipt of information about the employee's activity on his or her personal social networking account;
(c) The purpose of the investigation is to: (i) Ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (ii) investigate an allegation of unauthorized transfer of an employer's proprietary information, confidential information, or financial data to the employee's personal social networking account; and
(d) The employer does not request or require the employee to provide his or her login information.
(3) This section does not:
(a) Apply to a social network, intranet, or other technology platform that is intended primarily to facilitate work-related information exchange, collaboration, or communication by employees or other workers;
(b) Prohibit an employer from requesting or requiring an employee to disclose login information for access to: (i) An account or service provided by virtue of the employee's employment relationship with the employer; or (ii) an electronic communications device or online account paid for or supplied by the employer;
(c) Prohibit an employer from enforcing existing personnel policies that do not conflict with this section;
(d) Prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations; or
(e) Apply to a background investigation in accordance with RCW 43.101.095. However, the officer must not be required to provide login information.
(4) If, through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, an employer inadvertently receives an employee's login information, the employer is not liable for possessing the information but may not use the login information to access the employee's personal social networking account.

An employee or applicant aggrieved by a violation of RCW 49.44.200 may bring a civil action in a court of competent jurisdiction. The court may:
(1) Award a prevailing employee or applicant injunctive or other equitable relief, actual damages, a penalty in the amount of five hundred dollars, and reasonable attorneys' fees and costs; and
(2) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of RCW 49.44.200 reasonable expenses and attorneys' fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.  RCW 49.44.205.

Contact Mark D. Walters​

How to Name Electronic Files

5/18/2022

 
Year.Month.Day - Description 
2022.05.18 - File Naming Protocol

March 02nd, 2022

3/2/2022

 
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Updated COVID-19 Guidance for Employers (June 14, 2021)

6/24/2021

 
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Download the Guidance

Unjust Enrichment

3/6/2021

 
A claim for unjust enrichment may be brought by a party to recover the value of a benefit retained even absent any contractual relationship, if fairness and justice require it. Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008).  
Unjust enrichment requires proof of three elements:
(1) the defendant receives a benefit;  
(2) the received benefit is at the plaintiff's expense; and
​(3) the circumstances make it unjust for the defendant to retain the benefit without payment. Young v. Young, 164 Wn.2d at 484-85. 
An unjust enrichment claim is founded on notions of justice and equity. Young v. Young, 164 Wn.2d at 486. 

Recovering Unpaid Wages in Washington State

2/17/2021

 
There is nothing worse than an employer who accepts the labor of a worker and then refuses to pay the worker.  

Under Washington law, all wages owed to a departing employee must be paid at the end of the next established pay period.  This means employers have to pay departing employees all wages owed on the next regular pay day following the termination date. 


Washington law defines the term "wages" as "compensation due to an employee by reason of employment.”  This can include wages below the minimum wage, being forced work off the clock, overtime pay, hourly wages, salary, commissions as well as unused accrued PTO and vacation pay, and in some cases severance pay.  

Workers in Washington State should know that the law is very pro-employee in this arena. In as recent case, one Washington court explained:  "[Washington’s] wage statutes were enacted to prevent abuses by employers in the labor-management setting, and they reflect the legislature's strong policy in favor of payment of wages to employees. . . . The “‘fundamental purpose of the legislation, as expressed in both the title and body of the act, is to protect the wages of an employee against any diminution or deduction therefrom by rebating, underpayment, or false showing of overpayment of any part of such wages.’” . . . Thus, these wage statutes must be liberally construed to advance the legislature's intent to protect employee wages and assure payment." (Internal citations omitted). 

By statute, employers who fail to pay wages owed to employees can be held liable to the employee for two times the amount of unpaid wages, plus the attorney fees the employee incurs pursuing the recovery of the unpaid wages.   

Unpaid wage liability can attach to the company employer, and officers or agent of the employer.  So, even if the company goes out of business and has no funds, the employee can recover unpaid wages from the company's officers and managers.  

Washington employees are also protected from retaliation if they speak up to their employer to enforce their rights.  

If you are a worker in Washington that has not been paid all wages you are owed by your employer , contact Mark D. Walters.  

How Courts Perform Contract Interpretation

11/23/2020

 
The block quote below from Healy v. Seattle Rugby, LLC et al., 15 Wn. App. 2d 539; 476 P.3d 583 (Nov. 23, 2020)) explains how courts perform contract interpretation in contract disputes.  
The purpose of contract interpretation is to ascertain the intent of the parties. Roats v. Blakely Island Maint. Comm’n, Inc., 169 Wn. App. 263, 274, 279 P.3d 943 (2012). Washington courts “follow the objective manifestation theory of contracts.” Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005).  Under this approach, courts “focus on the agreement’s objective manifestations to ascertain the parties’ intent.”  Martin v. Smith, 192 Wn. App. 527, 532, 368 P.3d 227 (2016). When considering the language of a written agreement, we “impute an intention corresponding to the reasonable meaning of the words used.” Hearst Commc’ns, Inc., 154 Wn.2d at 503 (citing Lynott v. Nat’l Union Fire Ins. Co. of Pittsburgh, 123 Wn.2d 678, 684, 871 P.2d 146 (1994)).

The intent of the parties may be discovered from “‘the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.’”  Tanner Elec. Coop. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996) (internal quotation marks omitted) (quoting Scott Galvanizing, Inc. v. NW EnviroServices, Inc., 120 Wn.2d 573, 580-81, 844 P.2d 428 (1993)).

When contract provisions conflict, we will harmonize them to the extent possible. Kut Suen Lui v. Essex Ins. Co., 185 Wn.2d 703, 710, 375 P.3d 596 (2016). The purpose of this “harmonization” is to interpret the agreement in a manner that gives effect to all of the contract’s provisions. Nishikawa v. U.S. Eagle High, LLC, 138 Wn. App. 841, 850-51, 158 P.3d 1265 (2007). When the 
terms of an agreement truly conflict and, thus, harmonizing them is impossible, courts must “give effect to the manifest intent of the parties.” Green River Valley Found., Inc. v. Foster, 78 Wn.2d 245, 249, 473 P.2d 844 (1970) (citing Starr v. Mut. Life Ins. Co. of New York, 41 Wash. 228, 83 P.116 (1905)). Accordingly, effect is given to that provision which more nearly effectuates the purpose of the entire contract. Vance v. Ingram, 16 Wn.2d 399, 416, 133 P.2d 938 (1943). A contract term is ambiguous only when, viewed in context, two or more meanings are reasonable. GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126, 135, 317 P.3d 1074 (2014). When multiple meanings are reasonable, which meaning reflects the parties’ intent is a question of fact. GMAC, 179 Wn. App at 135. 


Contact Mark. D. Walters

Washington State Supreme Court Overrules Racist 1960 Court Opinion and Calls Out Prior Justice

10/16/2020

 
Yesterday, October 15, 2020, the Washington State Supreme Court issued an opinion in which it (again) shot down the Car Tabs Initiative as unconstitutional for violating the single issue rule.   But the court did much more than that in a footnote.  In footnote 1, on page 13, of yesterday's opinion, the court overruled a 1960 Washington State Supreme Court opinion that upheld a cemetery's refusal to allow Black parents to bury their stillborn child in the all-white "Babyland" section of the largest Seattle cemetery. This was long overdue, but Washington's High Court went even further by calling out prior Justice Joseph A. Mallery by name for his racist concurring opinion, "which condemns civil rights and integration."  
​
​​Here's the text from footnote 1:​

We take this opportunity to overrule this court’s opinion in Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 357 P.2d 702 (1960). We may overrule a prior case when it is both incorrect and harmful. Deggs v. Asbestos Corp., 186 Wn.2d 716, 727-28, 381 P.3d 32 (2016) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)). Price is both. Price considered the constitutionality of a 1953 law that said, “It shall be unlawful for any cemetery under this act to refuse burial to any person because such person may not be of the Caucasian race.” LAWS OF 1953, ch. 290, § 53, at 838. Section 53 was part of a larger bill with the title “AN ACT relating to the regulation of cemeteries.” Id., ch. 290. The majority concluded the bill had two subjects in violation of article II, section 19: “(1) civil rights, and (2) the endowment care funds of private cemeteries and the creation of a cemetery board.” Price, 57 Wn.2d at 354. This was a strained and incorrect way to divide the subjects in the bill, all of which were germane to the subject of cemetery regulation. It is harmful for two reasons: first, because it suggests a more stringent standard than is required to survive an article II, section 19 challenge, second, and more importantly, the case is harmful because of Justice Mallery’s concurrence, which condemns civil rights and integration. Id. at 355-58. “As judges, we must recognize the role we have played in devaluing black lives.” Letter from the Wash. State Supreme Court to the Members of the Judiciary and the Legal Cmty. 1 (June 4, 2020) (addressing racial injustice). The Price concurrence is an example of the unfortunate role we have played. ​​

I include a link where interested readers can download Price v. Evergreen Cemetery Co. of Seattle to read for themselves this clear example of institutional racism and its racist concurring opinion by Justice Mallery, whom history will rightly condemn as a racist.  If you need more proof of institutional racism in America, read the dissenting opinion of Justice Mallery, who sat on the Washington State Supreme Court from 1942 to 1962, in Browning v. Slenderella Sys. of Seattle, 54 Wn.2d 440, 341 P.2d 859  (1959).   

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​

Setting Aside a Default Judgment

6/9/2020

 

Parties in a lawsuit generally have 20-days to file a response to a Complaint after being served.  If the party misses this deadline, they are at risk of their adversary filing a Motion for Default for failure to respond.   However, even if the Motion for Default is filed and granted, the party in default does have an opportunity to file a Motion to Set Aside the Order of Default.  You must act immediately to meet the legally required deadlines, and you should consult and hire counsel to help with this important step. 
​
The block quote below explains the standards for how courts review a Motion to Set Aside a Default Order. 

​
Washington generally disfavors default judgments because “[w]e prefer to give parties their day in court and have controversies determined on their merits.”7 CR 55 provides that “if a judgment by default has been entered, [the trial court] may likewise set it aside in accordance with rule 60(b).”8 CR 60(b) lists 11 grounds upon which a party may seek relief from judgment. While Era Living did not specifically identify the grounds upon which it sought relief, the relevant basis appears to be CR 60(b)(1) “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.”

In general, to vacate a default judgment pursuant to CR 60(b)(1), the moving party must establish that (1) there is substantial evidence to support a prima facie defense to the claims asserted by the opposing party, (2) the moving party’s failure to appear in the action was occasioned by mistake, inadvertence, surprise, or excusable neglect, (3) the moving party acted with due diligence after notice of the entry of default, and (4) no substantial hardship will result to the opposing party. White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968). The first two factors above are “primary” and the latter two are “secondary.” Little, 160 Wn.2d at 352. To determine whether the moving party has demonstrated a prima facie defense, the trial court must review the evidence and all reasonable inferences in the light most favorable to the moving party. Rosander v. Nightrunners Transport, Ltd., 147 Wn. App. 392, 404, 196 P.3d 711 (2008).The moving party has presented “a prima facie defense if it produces evidence that, if later believed by the trier of fact, would constitute a defense to the claims presented.” Rosander, 147 Wn. App. at 404-05. In making its determination, the trial court does not weigh the evidence. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835-36, 14
P.3d 837 (2000).

When the moving party is able to demonstrate a “strong or virtually conclusive defense,” courts will generally spend little time inquiring into the reasons for the default, “provided the moving party is timely with his application and the failure to properly appear in the action in the first instance was not willful.”White, 73 Wn.2d at 352-53. In other words, the moving party must demonstrate that (1) it has a strong or virtually conclusive defense to the claim asserted against it, (2) it has timely moved to vacate the default judgment, and (3) its failure to timely appear was not willful.TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal Supplies, Inc., 140 Wn. App. 191, 205, 165 P.3d 1271 (2007). This is because “[i]f a default judgment on a meritless claim is allowed to stand, justice has not been done”. TMT, 140 Wn. App. at 205.  To determine that the moving party’s defense is strong or virtually conclusive, the court must examine all the evidence, not merely that which if believed would support the defense.TMT, 140 Wn. App. at 202-03.

Salazar v. ERA Living LLC d/b/a IDA Cluve43r House Broadvie (06/08/2020; No. 80177-5-I  UNPUBLISED OPINION).


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