Volume 92 — Washington Reports, Second Series

<bold>[1] Criminal Law — Preliminary Hearing — Disregard — Effect.</bold> A prosecutor may properly file an information in superior court and confer jurisdiction on such court even though a complaint on the same matter has previously been filed in justice court and the defendant has made an appearance but the preliminary hearing has not yet been held. In such a situation, the preliminary hearing is bypassed and the justice court complaint is superseded by the superior court information. <bold>[2] New Trial — Review — In General.</bold> An appellate court will not reverse a trial court's discretionary ruling as to a new trial except for abuse. A stronger showing of abuse will ordinarily be required to set aside the granting of a new trial than a denial. <bold>[3] Trial — Verdict — Impeachment — Matters Considered.</bold> In considering juror misconduct, the court cannot consider matters which inhere in the verdict, <italic>i.e.</italic>, facts which relate to a juror's motive, intent, belief, or the effect of facts on the juror's mental process. The court should consider evidence of acts or occurrences which can be rebutted by other testimony or evidence and then examine such acts or occurrences for possible prejudicial impact. <bold>[4] Trial — Verdict — Impeachment — Grounds.</bold> The statements of a bailiff to jurors which are designed to and could have the effect of hastening the verdict constitute grounds for granting a new trial.

<bold>[1] Attorney and Client — Discipline — Reinstatement —</bold> <bold>Criteria.</bold> The major consideration in ruling on a petition for reinstatement to the practice of law is whether the petitioner has overcome the weaknesses that produced his earlier misconduct. Specifically, the Supreme Court will consider the petitioner's character, standing, and professional reputation in the community in which he practiced prior to disbarment; the ethical standards which he observed in the practice of law; the nature and character of the charge for which he was disbarred and the sufficiency of the punishment and restitution; his attitude, conduct, and reformation subsequent to disbarment; the time elapsed since disbarment; his current proficiency in the law; and his sincerity, frankness, and truthfulness in presenting and discussing his disbarment and reinstatement. STAFFORD, J., did not participate in the disposition of this case.<page_number>Page 350</page_number>

<bold>[1] Judgment — Default — Vacation — In General.</bold> Although courts need to ensure that persons comply with judicial process, default judgments are not favored in law. The courts will apply equitable principles in considering the vacation of a default judgment to the end of achieving justice, and a stronger showing of abuse of discretion is necessary to overturn the vacation of a default judgment than a ruling upholding it. <bold>[2] Judgment — Default — Meritorious Defense — Requirements of</bold> <bold>Rule.</bold> The purpose of the requirement of CR 60(e)(1), that a motion for vacation of a default judgment be supported by an affidavit stating the facts constituting a defense, is to avoid a useless subsequent trial. The absence of such an affidavit will not prevent the vacation of a default judgment when the court has before it sufficient evidence of a meritorious defense to justify the vacation. In such a determination the court may consider any matter in the court file. <bold>[3] Community Property — Judgment Against Former Spouse —</bold> <bold>Effect.</bold> A judgment entered against a former spouse after dissolution of the marital community cannot create community obligations, and when a former spouse has prevailed on the merits as to an alleged obligation, property distributed to that spouse which previously belonged to the community cannot be used to satisfy a judgment against the other former spouse based on the same claim. STAFFORD, J., did not participate in the disposition of this case.<page_number>Page 577</page_number>

<bold>[1] Appeal and Error — Assignments of Error — Sufficiency — In</bold> <bold>General.</bold> An assignment of error is sufficient if the basis for the assigned error is apparent and the appellate court is not required to search the record for possible error. <bold>[2] Public Assistance — Production of Records — Enforcement —</bold> <bold>Statutory Provisions.</bold> A petition filed pursuant to RCW <cross_reference>74.04.290</cross_reference> for enforcement of a subpoena of medical records is not rendered void by the deletion of the patients' names on the copy of the subpoena accompanying the petition. The patients' identities may be provided by trial amendment if such information is required. <bold>[3] Parties — Indispensable Parties — Failure To Join —</bold> <bold>Dismissal.</bold> A court may not consider dismissal under CR 19(b) for failure to join an indispensable party until there has been a determination that an absent party is indispensable and an order entered to join such party. <bold>[4] Witnesses — Physician-Patient Privilege — Statutory</bold> <bold>Provisions — Construction.</bold> The physician-patient privilege (RCW <cross_reference>5.60.060</cross_reference>(4)) is a procedural safeguard, rather than a rule of substantive or constitutional law, with the purpose of encouraging full disclosure in obtaining medical treatment and of preventing embarrassment or scandal which might result from revelation of the<page_number>Page 813</page_number> details of medical treatment. The statute is in derogation of the common law and will be strictly construed. <bold>[5] Public Assistance — Production of Records —</bold> <bold>Physician-Patient Privilege — Application.</bold> The physician-patient privilege (RCW <cross_reference>5.60.060</cross_reference>(4)) is not applicable to the subpoena of medical records under RCW <cross_reference>74.04.290</cross_reference> to the extent necessary to audit the state's Medicaid program as required by federal statutes and regulations. ROSELLINI, J., UTTER, C.J., and WRIGHT, J., concur by separate opinion; STAFFORD and BRACHTENBACH, JJ., did not participate in the disposition of this case.