Monday, June 4, 2018

This is what an appeal looks like....

For a January 2023 update of my story, including the current status of my lawsuits against the State and its co-defendants, go to “Starting Over.” 

Three years ago, I had a major health crisis. Most families eventually will say something like that. In my case, my doctor diagnosed me with PTSD. My symptoms were triggered by recent events, but they were rooted in trauma that occurred thirty years ago.

Fortunately, I’ve been blessed with a supportive family and excellent caregivers. My three kids and I are all thriving here in Bellingham. If my doctor or I had any doubts about my ability to be a candidate or a judge, I wouldn’t be running for the Court of Appeals. [] To the contrary, life is good. I’m together with my family, reading and writing, and spending an interesting summer passionately seeking something that matters to me. 

Unfortunately, some people, often with the best of intentions, responded to my disability with much less acceptance and support. With the help of an excellent disability lawyer, I eventually settled my wrongful termination claim with the State, including a release of any state employees who might have been involved. My family is doing well and moving on.

One major factor contributing to the problems with my former employer was that Human Resources engaged a Seattle private investigator to look into my original grievance. His name was Patrick Pearce, of the firm Ogden Murphy Wallace PLLC, Seattle’s sleaziest bottom-feeding law firm®.”

After I settled with the State, in attempt to clear my name, I reached out to Ogden Murphy and asked for a meeting with their Managing Partner. They responded by lawyering up.

In the end my lawsuit against Ogden Murphy did not go well. At least, in the end so far.

The defendants’ second set of lawyers eventually convinced the judge to dismiss the case. They relied on an obscure Washington statute that protects citizen whistleblowers who report potential wrongdoing to the appropriate government agency, RCW 4.24.510.

At my last job in Seattle, I was the Washington appellate expert at a law firm that handled all kinds of complex litigation. I would often encounter a version of this situation: a lower court victory that was too good to be true, or at least too good to defend on appeal.

For example, one of my litigation partners would ask me to respond to the other side's appeal from our trial lawyers’ impressively won, judge-certified, un-reversible jury verdict. Easy enough. Then you open the record on appeal, and discover a pretrial skirmish where our side won an early ruling from a busy trial judge who in hindsight probably made the wrong call. Our side's legal victory won the initial battle, but on appeal now risked losing the war.

If I was Ogden Murphy’s appellate lawyer right now, that’s how I would feel. 

The audience no longer is an overextended Seattle trial judge with too many cases and zero support staff, frantically skimming briefs at home on weekends. Now it’s a three-judge panel of the Court of Appeals, with long briefs from the parties, and law clerks to read them. And the most appellant-friendly legal standard possible.

I became an LGBT advocate 25 years ago, when society and the law were not as friendly to our community as they are today. 

Nowadays, I tell audiences it’s déjà vu all over again: disabled individuals, particularly people affected by mental illness, face exactly the same kinds of social and legal barriers the LGBT community faced a generation ago. Often we would go into court and encounter what came to be called “the gay exception”: we’d make an iron-clad legal argument that judges invariably applied to everyone else. But we would still lose. 

A couple of decades later, as judges and society began to listen, LGBT advocates achieved some great victories. Hopefully the moral arc for disabled folks also bends toward justice.

This is the first paragraph of my appeal brief:

In 1989, the Washington Legislature passed the “Brenda Hill” anti-SLAPP act to protect citizen whistleblowers who report potential misconduct to relevant government agenciesThis appeal presents an issue of first impression under Washington law: when it enacted RCW 4.24.510, did the Legislature intend to grant absolute immunity from civil liability for injuries caused by government vendors in connection with their contractual engagements?

Here’s a link to my entire appeal brief. I’ll let the record and the parties' arguments and legal authorities speak for themselves. Respondents’ Brief was originally due in July. [Ed. note: after requesting a couple of deadline extensions, Ogden Murphy finally filed its brief on August 8. Hmm, that's the day after the Primary Election.] Here is a link to my Reply BriefThe Court will set the case for argument early next year.

In the meantime, regardless of the outcome of my appeal, there’s no reason this pending case – involving a narrow but interesting question of statutory construction – should interfere with my campaign. To the contrary, keeping the courthouse doors open for all should be a top priority for any judicial candidate.

Frankly I have a lot of other things on my plate right now. Nevertheless, I’m appealing this troubling ruling to protect my family. And to send a message on behalf of other victims – whether they’ve been denied employment opportunities because of their mental health or other disabilities; or they’ve been injured by government contractors in the course of their tax-payer funded engagements; or they’ve been frustrated by finding out how quickly the legal system can close its doors to outsiders, often without anyone realizing it. 

The very first topic I addressed on this blog was the importance of being out of the closet. It doesn't matter whether the temptation is to hide your sexual orientation or your disability. Someone has to speak out. Often, someone has to be first to speak up.

One year and 150,000 words of a blog later, you can see I’ve written about a lot of things. But I always return to the subject of not returning to the closet.

Hopefully I haven’t been too “in your face” along the way, as a couple of readers recently described several riffs and rants. Anyway, I’ve listened. I’ll be speaking in slow, judicious tones for the next few months. But I’ll still be out of the closet.

As soon as I felt the call to be a judge several years ago, I tried to figure out what it would mean for my family, and for my candor and sense of humor. I choose to work closely with multiple judges and justices when I was a bar leader in part because I wanted to see them up close.  

After a few years with the bar and bench, here is a useful takeaway. One reason I feel suited for the Court of Appeals is observing that it’s the perfect legal job for do-gooding intellectual introverts who want to mix with other people – some of the time. The best judges I’ve known fit that description. They’ve shown me what it looks like to be judicious, even in the most awkward social situations. For example, one of Washington’s current Supreme Court justices taught me the trick of standing at receptions with the same unsipped glass of pinot grigio for hours and hours. 

I’m comfortable with my ability to be a father, a judge/candidate, and a person, and also to tell the story of my roller-coaster ride so far. Judiciously.

August 2021 update

Subsequent developments in the Ogden Murphy Wallace litigation over the next three years are described in “This is what a lawsuit looks like,” together with links to each of the blog posts related to my lawsuit.

On September 3, 2019, a three-judge panel of the Court of Appeals reversed the trial court’s ruling regarding the application of RCW 4.22.510 to government contractors. After accepting discretionary review, on January 28, 2021 the Washington Supreme issued a whipsawing ruling that agreed with the trial court regarding the statutory construction issue, but neglected to address my other claims.

On August 19, 2021, the Washington Supreme Court entered an order reconsidering the impact of their January 2021 decision. Justice Sheryl Gordon McCloud substituted an entirely new opinion. Her original concurrence is now a partial dissent. Justice Gordon McClouds thorough analysis reinstates most of my claims against Defendants Ogden Murphy Wallace and Patrick Pearce. 

The parties will now return to the trial court and start all over – but this time with the benefit of the mountain of incriminating evidence I uncovered while lawyers and judges procrastinated. I am grateful for Justice Gordon McCloud’s willingness to examine important details that other members of the bench and bar were prepared to overlook.   

For a January 2023 update of my story, including the current status of my lawsuits against the State and its co-defendants, go to “Starting Over.” 

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