Volume 104 — Washington Reports, Second Series

<bold>[1] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> There is sufficient evidence to convict a criminal defendant if any reasonable trier of fact, viewing the evidence most favorably to the prosecution, could find the elements of the crime beyond a reasonable doubt. <bold>[2] Public Disturbance — Constitutional Law — Freedom of Speech</bold> <bold>— Insulting and Abusive Language — Validity of Crime.</bold> A statute making speech a crime violates both the First Amendment and Const. art. 1, § 5 unless it proscribes only language which inflicts injury itself or tends to incite an immediate breach of the peace. The expression of words which are merely insulting or abusive may not, by itself, constitute a crime. <bold>[3] Criminal Law — Statutes — Overbreadth — Speech Limitation —</bold> <bold>Standing — Particular Conduct.</bold> When the scope of a penal statute affecting speech is not susceptible of a limiting construction, a challenge to the statute for overbreadth need not be preceded by a showing that the defendant's own conduct could not have been proscribed by a properly limited statute. <bold>[4] Schools and School Districts — Teachers — Insulting or</bold> <bold>Abusing — Validity of Crime.</bold> RCW 28A.87.010, which makes it a misdemeanor to insult or abuse a teacher carrying out official duties on school grounds, violates the First Amendment and Const. art. 1, § 5.

<bold>[1] Products Liability — Negligence — Duty To Inspect —</bold> <bold>Distributor.</bold> The distributor of an inherently dangerous product<page_number>Page 200</page_number> who is involved only in the marketing aspect and never has physical control or possession has no duty to inspect or test the product when it may reasonably rely on the manufacturer and has no notice of a specific defect. <bold>[2] Products Liability — Negligence — Duty To Warn —</bold> <bold>Distributor.</bold> The distributor of a product has no duty to warn an experienced retailer of the obvious dangers of an inherently dangerous product and may rely on the retailer to warn the ultimate consumer of such dangers. <bold>[3] Products Liability — Strict Liability — Distributor.</bold> A distributor may be a part of the chain of distribution of a product so as to be strictly liable for the sale of an unreasonably defective product even though such distributor does not obtain physical custody or control of the product. The significant consideration in finding such a party to be a part of the chain of distribution is the presence of some identifiable role in placing a defective product on the market. <bold>[4] Gas — Duty To Odorize — Reasonable Care.</bold> The duty of a seller of combustible gas to adequately odorize the gas for safety is not derived from industry standards or state administrative regulations and therefore is not measured by those requirements; however, compliance with those requirements is relevant on the issue of whether insufficient odor was a proximate cause of a gas explosion. DORE, J., did not participate in the disposition of this case.

<bold>[1] Statutes — Construction — Legislative Intent — Reenactment</bold> <bold>Following Construction.</bold> When a statute has been judicially construed and is later reenacted with substantially identical language, the Legislature is presumed to have chosen not to modify the construction. <bold>[2] Public Employment — Personnel Board — Judicial Review —</bold> <bold>Findings of Fact.</bold> Under RCW 41.64.130, findings of the State Personnel Board are not subject to de novo review. Such findings are presumptively correct and will be upheld if they are directly or circumstantially supported by any substantial evidence in the record. <bold>[3] Master and Servant — Refusal To Work — Hazardous Conditions</bold> <bold>— Test.</bold> An employee's right to refuse to work on safety grounds depends upon his good faith and the conditions of the job being abnormally unsafe so as to create an imminent risk of serious bodily injury. A change in the employee's perception of the degree of hazard customarily present does not create an abnormal condition. <bold>[4] Master and Servant — Refusal To Work — Hazardous Conditions</bold> <bold>— Good Faith — Alternative Actions.</bold> An employee who fears for his safety because of dangerous working conditions must, before refusing to work, demonstrate his good faith by requesting his employer to correct the hazard and seeking relief<page_number>Page 324</page_number> through available administrative channels if there is time to do so. <bold>[5] Administrative Law and Procedure — Rules — Construction —</bold> <bold>Administrative Construction — Effect.</bold> A court will give great weight to an administrative agency's interpretation of its own rules. <bold>[6] Master and Servant — Termination — Notice by Mail — Absence</bold> <bold>on Working Day — What Constitutes.</bold> For purposes of an administrative rule permitting a termination notice to be mailed if the employee is absent on a working day, an employee who refuses to work without proper justification is constructively "absent" from his job.

<bold>[1] Criminal Law — Insanity — Competency To Stand Trial —</bold> <bold>Determination — Choice of Strategy.</bold> The determination of a criminal defendant's competency to stand trial under the standard established by RCW <cross_reference>10.77.010</cross_reference>(6) is a matter within the trial court's discretion. An ability to choose among alternative trial strategies is not a requirement of competency. <bold>[2] Criminal Law — Confessions — Voluntariness — Determination —</bold> <bold>Mental Retardation.</bold> Determining the voluntariness of a criminal defendant's incriminating statement requires an evaluation of all the circumstances surrounding the statement. The defendant's mental retardation is not dispositive and is only one of many factors which should be considered by the court. ANDERSEN, J., concurs in the result only.

<bold>[1] Utility Services — Ratemaking — Judicial Review — Scope.</bold> The legislative delegation of power to the Utilities and Transportation Commission to set rates for utility services allows the agency wide discretion in setting fair and reasonable rates, as well as in deciding the ratemaking methodology. The courts will determine compliance with constitutional and statutory mandates but will not substitute their judgment for that of the Commission as to rates that will assure fair prices and service while providing sufficient earnings to permit economical operation of the business involved. <bold>[2] Utility Services — Ratemaking — Limitation — "Useful"</bold> <bold>Property — Application.</bold> That portion of RCW <cross_reference>80.04.250</cross_reference> which limits the Utilities and Transportation Commission's consideration of a public service company's property to that which is "used and useful" restricts only the base upon which a business may receive a rate of return and does not apply to operating costs which may also be considered in setting rates. <bold>[3] Utility Services — Ratemaking — Operating Expenses — What</bold> <bold>Constitutes — Determination.</bold> The Utilities and Transportation Commission's determination that an expenditure by a utility is an "expense" will not be overturned by the courts if the expenditure is appropriately utility related and the determination is not arbitrary or capricious. <bold>[4] Utility Services — Ratemaking — Operating Expenses — What</bold> <bold>Constitutes — Costs of Abandoned Nuclear Plant.</bold><page_number>Page 799</page_number> The Utilities and Transportation Commission is empowered to allow as operating expenses the prudently incurred costs of a nuclear power plant that is reasonably abandoned before completion. <bold>[5] Statutes — Construction — Meaning of Words — In General.</bold> Words in a statute will be given their usual and ordinary meaning, and when the meaning of a statute is clear no construction is necessary. <bold>[6] Utility Services — Ratemaking — Charges — Statutory</bold> <bold>Provisions.</bold> The phrase "for any service rendered" in RCW <cross_reference>80.28.010</cross_reference> and .020, which provide for charges made by public utilities, refers to services provided to customers. BRACHTENBACH, DORE, PEARSON, and GOODLOE, JJ., dissent by separate opinion.