Thursday, February 20, 2020

Deaf Power

Last year while my lawsuit against the State's lawyer-investigators was pending before the Washington Court of Appeals, a former colleague asked me about the outlook for my appeal. Like Defendants’ newest attorney, my friend happens to be one of Washington’s A-list of top appellate lawyers. I explained that my legal position was definitely right, but that wasn’t enough to guarantee I would win. Of course not, he replied – the true purpose of the legal system is to protect “property, power, and privilege.” (Those are his words, not mine – only Harvard graduates think they can get away with that much alliteration.)

During the House impeachment hearings, Slate’s legal expert Dahlia Lithwick wrote that the challenge of speaking “truth to power” in the Trump era has degenerated into “speaking truth to nonsense.” I’ve personally endured years of legal argle-bargle substituting for actual arguments from the lawyers representing the State and its sleazy investigators at Ogden Murphy Wallace PLLC. 

As an unprivileged pro se litigant, I’ve developed a simple hypothesis:  regardless of the justice of your cause, and regardless of any tribunal’s diligence and good intentions, the first time you try to bring wrongdoing to a tribunal’s attention they’re going to get it wrongThe real question is what happens the next time.

Truth:     When the Washington Legislature passed the “Brenda Hill Bill” to protect private citizen whistleblowers, it did not intend to grant absolute immunity from civil liability for injuries caused by dishonest government vendors. See Leishman v. Ogden Murphy Wallace PLLC, 10 Wn.App.2d 826, 451 P.3d 1101 (2019); Answer to Petition for Review.

In November 2017, a busy King County Superior Court judge dismissed my lawsuit against Defendants, on the grounds that their taxpayer-paid assignment involved communicating with the firm's government agency customers. 

In the judiciary, the role of the Court of Appeals is to correct legal errors. Sure enough, the appellate court reversed the lower court’s erroneous statutory interpretation. The second time was the charm. It only took two years for the courts to get it right.

Now the case is pending before the Washington Supreme Court. This third time around I’m hoping for something more than merely getting the law right. Our Supreme Court should take this opportunity to provide clear guidance to lower courts and the public – not just about the proper interpretation of Washington’s whistleblower protection statute, but also about how the legal system should respond when lawyers start lying, and then won’t stop.

Truth:        Employees of the State of Washington injured me. See “My Story So Far.”

Before filing any lawsuit against the State, you must first give notice of your claim to the Office of Risk Management. This agency is responsible for investigating, processing, and adjudicating claims for damages caused by State employees. The mission of the Office of Risk Management includes protecting the State from frivolous claims – but the Office is also responsible for ensuring that victims of official wrongdoing are fairly compensated, regardless of the exalted status of the accused employees.

The first time around, we didn't follow the Office of Risk Management's normal procedure. That’s part of the problem. In May 2016, Washington Attorney General’s Office wrongfully terminated me after weeks of stonewalling my employment attorney's attempts to discuss a reasonable accommodation of my disability. When she sent the State’s lawyers a detailed demand letter describing how my employer had discriminated against me on the basis of my disability, officials at the Attorney General’s Office responded by initiating a series of secret high-level damage control meetings. The State’s lawyers never addressed my attorney’s concerns. Instead, they proposed that we meet with a mediator who wasn’t available until October 2016. 

As I wrote last year in “Pandora’s Box,” during those months of delay the combination of PTSD and anxiety pushed my stress levels beyond the capacity of even my overdeveloped coping mechanisms. I became suicidally depressed for the first time in thirty years. Eventually folks remembered to have me fill out the Office of Risk Management’s mandatory claim form – after we’d already reached agreement on the terms of a settlement that was based on the very limited information available to the mediator, my attorney, and me. 

Nowadays my mental health is much improved. Through painful litigation and numerous requests under the Public Records Act, I’ve finally obtained copies of the damning evidence that the lawyers representing the Attorney General’s Office concealed from my attorney and me. After unsuccessfully seeking to resolve our disputes by negotiation, this week I filed a formal claim form with the Office of Risk Management seeking additional compensation from the State for both my original injuries as well as for subsequent misconduct by the Attorney General’s Office and Western Washington University. I look forward to seeing whether things work out differently the second time around.

Truth:        Senior lawyers at the Attorney General’s Office acted unethically when they directed their investigator to interrogate me alone in his office after they knew I had hired a lawyer to represent me in the matter. See In re Discipline of Haley, 156 Wn.2d 324 (2006) and Undisputed Timeline; “Bar Discipline.”

In Washington, every lawyer is a member of the Washington State Bar Association. WSBA’s mission is “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” Among other functions, WSBA administers the state’s lawyer attorney discipline system. 

Washington Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

According to the Washington Supreme Court, strict compliance with RPC 4.2 is essential to maintaining public confidence in the integrity of the legal profession. In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 599, 48 P.3d 311 (2002).

In December 2018, I filed bar complaints regarding the conduct of Assistant Attorney General Kari Hanson and her supervisor Chief Deputy Attorney General Shane Esquibel. These lawyers violated RPC 4.2 when they directed their investigator to interrogate me alone in his office for over an hour even though they knew I’d hired an attorney to represent me in my employment dispute with the State. 

In response to my bar complaints, inept bureaucrats at WSBA completely dropped the ball. At the request of the Attorney General’s Office, WSBA misapplied the Supreme Court’s rules and stalled the investigation. Then the WSBA staff inexplicably misplaced the file for eight months.

After the Supreme Court granted review in my separate lawsuit against the Ogden Murphy Wallace defendants, I renewed my request that WSBA immediately investigate the serious and well-documented allegations of misconduct by some of the State’s most senior attorneys. I also filed a new bar complaint documenting additional examples of unethical conduct by lawyers at the Attorney General’s Office. The public needs to be confident that unethical lawyers will be held to account, regardless of their employer.

I had the honor of being elected by my peers to serve on WSBA’s Board of Governors a decade ago. In recent years, critics of the bar association have contended that the organization is no longer capable of protecting the public and regulating the legal profession. I’ve been trying to keep an open mind. We will soon discover whether WSBA is up to the challenge.

Truth:     The Washington Constitution forbids the Attorney General’s Office from using tax-payer funds to represent State employees accused of unethical conduct. See Sanders v. State, 166 Wn.2d 164, 207 P.3d 1245 (2010); “Toxic Entitlement.”

Washington has very strict laws prohibiting the use of public resources for private benefit. Government attorneys in the Attorney General’s Office are therefore forbidden from representing individuals accused of ethical lapses. Sanders v. State, 166 Wn.2d 164, 207 P.3d 1245 (2010) (government attorneys may not represent state employees accused of unethical conduct); State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433 (1926) (when the Attorney General is “cognizant of violations of the constitution or the statutes by a state officer, his duty is to obstruct and not to assist”).

In Washington, the Executive Ethics Board has jurisdiction over allegations of misconduct by employees in the executive branch of government, including the Attorney General’s Office. Ordinarily, the Executive Ethics Board take the misuse of public resources very seriously. For example, in one case the Board fined a former Assistant Attorney General $500 for using government office equipment to prepare an eleven-page filing for his wife’s private lawsuit. 

Last year I submitted requests to the Attorney General’s Office under the Public Records Act regarding its role in the bar disciplinary proceedings involving Chief Deputy Attorney General Shane Esquibel and Assistant Attorney General Kari Hanson. It turns out lawyers from the Attorney General’s Office have spent thousands of tax dollars on legal fees defending their colleagues. This constitutes an illegal misappropriation of public resources. I therefore submitted complaints to the Executive Ethics Board. 

The staff of the Executive Ethics Board threw my complaints away. Literally.  

Kate Reynolds, the “Executive Director” who provides staff support to the governor-appointed Board, sent me an email informing me that she would “not be taking any further action on your complaints.” According to Ms. Reynolds, “how state employees carry out their actual job duties” is not subject to review under the Executive Ethics Act, as long as the employees were following “agency policies.”

Ms. Reynolds’ “we were just following orders” analysis is frivolous. Bob Ferguson can no more order his underlings to violate their ethical duties than he can adopt a policy directing them to shoot someone in the middle of Fifth Avenue. Likewise, Ms. Reynolds decision to simply ignore my ethics complaints is lawless. The Executive Ethics Board has adopted rules and procedures under which the Board will review the staff’s decision to formally “dismiss” a citizen complaint. However, Ms. Reynolds contends there wasn’t anything to dismiss, so there’s nothing I can do.

Interestingly, although the Executive Ethics Board is an independent state agency, it is housed within the Washington Attorney General’s Office. Ms. Reynolds ultimately reports through the chain of command to Bob Ferguson himself – just like Chief Deputy Attorney General Shane Esquibel, Assistant Attorney General Kari Hanson, Suzanne LiaBraaten, Mark Fucile, and the other government attorneys accused of unethical conduct.

This week I filed new ethics complaints against Ms. Reynolds’ office mates. If she ignores me again, before taking her to court I will appear before the Executive Ethics Board during the public comment period at the Board’s next meeting, on March 13, 2020, and let them know Washington has a very serious ethical problem.

I have one final powerful audience out there.

When I started my advocacy efforts almost three years ago, I shared the jumbo “venti version of my story in the form of a “Dear Bob” letter to Washington Attorney General Bob Ferguson. This week I went back and re-read my public “J’accuse.” It’s 10,824 words, which is much longer than anything else I’ve published on this blog. It’s still pretty good writing.

“Dear Bob” seethes with the raw rage of PTSD that I’ve subsequently learned to focus. Somewhat. Nevertheless, I stand behind every word. My legal analysis remains sound. The factual allegations are totally accurate, even though I wrote my letter without the benefit of the secret files the State and its investigator refused to share with me voluntarily. Subsequent disclosures obtained through litigation and under Washington’s robust Public Records Act corroborated every detail. 

Even with the benefit of hindsight and numerous “smoking gun” emails, there are only two additional points I would add to my original “Dear Bob” letter. First, I discovered my horrifying experience cannot be dismissed as the result of mere misunderstanding or miscommunication, or even incompetence. Bobs minions – including his top lieutenant, Chief Deputy Attorney General Shane Esquibel – knowingly violated some of an attorney’s most important professional duties. Then they intentionally misled my lawyer and me, before embarking on the illegal taxpayer-funded coverup that continues today.

My second chilling epiphany involved one of the many examples of the State’s anti-gay bias described in my “Dear Bob” letter: 

Channeling one Western employee’s bias, your representatives determined it was “insensitive and inappropriate” for me to use the analogy of the Seattle Men’s Chorus’ first conductor search in thirty-five years during a public Board discussion about the Trustees’ own presidential search process. To the contrary, I see your subordinates' reliance on this item as a further example of your office’s deeply institutionalized homophobia, and its unlawful demand that I squeeze back into the closet….  

It was wrong to fire me because some fragile middle-aged white man in Bellingham could not handle being exposed to part of a conversation about the search experience at one of Seattle’s leading arts organizations. Regardless of whether bias comes from the Attorney General’s Office itself or from its client, you know perfectly well an employer cannot facilitate invidious discrimination.

Years later, documents produced under the Public Records Act years revealed that the fragile Baby Boomer critic of my gay arts analogy was the President of Western Washington University himself. Senior officials at the Attorney General's Office intentionally and misleadingly attempted to erase former President Bruce Shepard from the story. The State should be ashamed of covering up evidence that Bruce Shepard personally insisted on destroying my life, just as he did to others in the university community.

Here’s how my “Dear Bob” letter ended:

Remember back when Facebook asked for your “motto”? I picked an Italian phrase that, while a favorite since college, has taken on even deeper meaning for me in the last year – e pur si muove. That’s what Galileo is reputed to have said when the Inquisition forced him to recant his contention that the earth moves around the sun. But after confessing the then-Catholic dogma that the earth rests motionless at the center of the universe, he supposedly muttered e pur si muove:  “It still moves.”

I’m still gay and that’s great, regardless of what some bigoted old men in Salt Lake said to me thirty years ago, or what a bunch of ignorant government lawyers say to me now.

I’m still both an excellent lawyer and a disabled person, regardless of what some insensitive and incompetent State bureaucrats said to Ogden Murphy.

I’m still the victim of discrimination that injured my family in your name, regardless of what those serial whitewashers at Ogden Murphy said in their shameful tax-payer funded Report.  

And I’m still confident my friends – and the jury – will recognize the truth when they hear it. 

The Ogden Murphy Report amplified a bunch of bureaucrats’ lies, and sent them back to reverberate in the echo chamber you preside over. Some day you may find the courage and decency to do something about this tragedy. Meanwhile I intend to continue telling my story.

After the Oso landslide evidence spoliation scandal and the Department of Correction prisoner early release fiasco became public, Bob Ferguson commissioned internal reviews to determine what his office did wrong. Has the Attorney General done anything to examine how his subordinates handled my disability accommodation request and my sexual orientation discrimination complaint? Or was Bob in the loop all along?

Since I wrote my “Dear Bob” letter, Washington Attorney General Bob Ferguson has remained mute as well as deaf. It’s probably for the best. I moved on to a new audience long ago. 

When powerful men ignore injustice, the way to speak truth to power is to find someone else who will listen. Ultimately it’s for the voters to decide what kind of Attorney General they want.  

In the meantime, Bob, I’m not talking to you anymore. I’m talking to everyone else.

Tuesday, February 18, 2020


If you insist on searching for a silver lining in the plagues I’ve endured over the last four years, particularly the impact of Post-Traumatic Stress Disorder (or rather the impact of my former employers’ horrifying treatment that triggered PTSD symptoms), there is one obvious candidate:  my new-found freedom from decades of debilitating writer’s block. I’ve published over 300,000 words on this blog alone, on topics ranging from mental illness to musical theatre.

Most theories of human psychology, from Freudian analysis to Cognitive-Behavioral Therapy, place great weight on what we avoid. Avoidant thoughts and behaviors indirectly reveal how our mind works, or doesn’t work. However, it’s hard to drill down very far once you realize you’re avoiding something as broad as “Writing.” 

After three years of blogging, however, I now have enough data to analyze which important topics are conspicuously missing. Or what it means when there’s a sudden burst of inspiration. Such as when I took a break last month from writing about kids, brains, and dishonest lawyers, and for the first time wrote about my experience as a gay man coming out into a world dominated by AIDS.  

First Clue:  A hole in the story.

Over the holidays I got a text from a gay friend in Seattle I haven’t seen for a while. He asked whether I was still looking for a job or applying for disability benefits, and wondered “what is your PTSD from?”

I realized I could respond by cutting and pasting the account I’d already written for a draft blog essay about how different kinds of trauma interfere with our brain’s ability to process memories. So I searched my files.  

I discovered I’d started the explanation three times. Each time I reached this graphic – “6 Most Common Causes of PTSD” – then stopped writing.

I’ve never endured physical or sexual abuse, war, or a serious accident. Instead, like too many other sensitive Mormon youths, I was the victim of emotional abuse from a pervasively homophobic and authoritarian message that denied our very existence. Those unhealed wounds reopened thirty years later, when I experienced “unrighteous dominion” at the hands of ignorant employers and dishonest bureaucrats.

But there’s a sixth common cause of PTSD:  “Witnessing/Experiencing a Mass Disaster.” A big gay mass disaster, which resonated with and amplified the horror of the closet. 

Second Clue:  I read a book.

“Anhedonia,” or the inability to feel pleasure, is a common symptom of depression and other mental health disorders. As a lifelong reader, the most obvious warning that something has gone wrong is when I find myself unable to read. Conversely, the earliest hint of wellness comes when I start reading again.

Nowadays I read every day, although I’ll never again rival my mother’s frequent-flyer status at the Bellingham Public Library. I’ve gotten much pickier. There are lots of books I can’t finish, and even more I wont start.

I own a copy of Randy Shilts’ classic account of the origins of the AIDS epidemic, And the Band Played On, but I’ve never read it. Or watched the HBO adaption of Shilt’s book. Or seen the movie Philadelphia. So last month I was surprised to find myself reading David France’s How to Survive a Plague.

Not just reading France’s 518-page book, but devouring it. France was a young gay journalist in New York who witnessed ACT UP’s heyday in the 1980s and 1990s. How to Survive a Plague is a week-by-week account of life in the trenches in New York. France’s story paralleled my own experiences on the Western and Midwestern fronts. 

I was there. But I’m not Lazarus in the tomb. Instead, I spent the plague years as the guy observing from the edge of the picture.

Third Clue:  A bumpy ride.

In my mind, the story of my relationship with HIV always begins with a picture of the AIDS Memorial Quilt. As I wrote in “OK Boomer,” the first of these five essays about HIV, the quilt is where you can see a ragged tear in the fabric connecting me to my gay Baby Boomer brothers.

When I began writing “OK Boomer” the essay indeed started with the AIDS Quilt. So I was a little surprised by the Facebook comment left by one of the young Second Tenors in Vancouver Men’s Chorus:  “You took me to a wild ride of complex and different feelings. What a roller coaster.”

Going back to the finished essay, I realized that during the writing process the quilt pictures had all moved to the conclusion. Readers encountered AIDS without warning, after meandering past quips about generational pop culture. 

When you’ve been avoiding something for too long you have to sneak up on it.

Fourth Clue:  War is hell.

The term “Post-Traumatic Stress Disorder” was coined in 1978, and the diagnosis was added to the DSM-III in 1980. However, we’ve associated trauma with same constellation of symptoms under different names for centuries, from “soldier’s heart” after the Civil War, to “shell shock” in World War I. 

My all-time favorite author is an obscure woman from the Scottish Highlands who used the penname Jane Duncan to write three series of novels. Her central themes include memory and storytelling. Although many aspects of the books parallel Duncan’s life, they are fiction. Through her narrator-surrogate, Duncan repeatedly protests that her gifts do not include true autobiography.

Nevertheless, in Duncan’s penultimate book before her death from cancer in 1976 she removed the authorial mask. The preface to Letter from Reachfar consists of an apologetic letter to her editor:

You suggested that I should record my part in the war against Nazism and Fascism as a photographic interpreter in the Women’s Auxiliary Air Force…. I tried to write the book you suggested, but in trying I discovered that the years of the war were some of the most sterile of my life and that there was very little in those years that I wished to record.  

The attempt to do what you asked “took off” for me, however, into something completely different, something that I really wanted to say and have wanted to say for a long time to you and my other readers. As you know, quite a number of readers are sufficiently interested in my novels to write to me and the question that is most frequently asked is “Are your books autobiographical? I thought it might be of interest if I sketched the background of my life and placed the novels against it, in an endeavor to show how fiction arises out of fact by some mysterious process that I cannot explain.

As a “photographic interpreter,” Duncan spent World War II in a stately home in Buckinghamshire as part of a secret intelligence unit poring over aerial photographs of Western Europe. Her job was to tell Allied bombers how to distinguish between an elementary school and a bullet factory. It took avoiding the horror of war for Duncan to finally tackle her memoir.

The last time I wrote about Jane Duncan, I made the connection between my PTSD-amplified trichotillomania and her body’s similar reaction to stressful situations:

Even after reading Jane Duncan’s books numerous times over the decades, I still marvel at our many personal connections. For example, last month I remembered how in times of exceptional stress, her protagonist inevitably develops an itchy skin rash. Then she proceeds to tear off her flesh in long strips. 

On my most recent re-reading of her final novel, I was struck by another thing Jane Duncan's narrator and I have in common: we both know exactly when and how our bodies are going to react, but that knowledge merely makes us angry at ourselves. Which makes the itchiness/hair-pulling worse, and then stokes the anger, in a vicious cycle. 

Jane Duncan avoided but never escaped the trauma of war.

Fifth clue:  I am Pops.

Actually I’m “Papa.” When our daughter Eleanor was born, my ex chose the title “Daddy.” I preferred to be “Papa,” in part to honor my maternal grandfather H. Boyd Phillips, who always went by “Pops.”

Pops was the archetypical representative of the Greatest Generation. He was a civil engineer, with pocket protectors, eternally crew-cut hair, and clunky glasses. He was precise and dryly witty. 

Pops spent World War II in the Pacific with the Army Corps of Engineers. My mother recently showed me a letter my grandmother wrote to a friend on May 8, 1945 – the day Germany surrendered to the Allies. I didn’t realize Gram worked as a typist for the Veterans Administration in Salt Lake City during the war. Each day she would leave my mom and my Aunt Carol at home with family members, and go do her part for the war effort. 

As I detailed last year in “Crazy Mormon Mommy Bloggers,” Gram’s long letter to her friend is filled with numerous lines that resonate with family members seven decades later. But the real reason my mother showed me Gram’s letter was what my grandmother wrote in gossiping about an acquaintance's discharged husband:

He recently returned home, classed as Psychoneurotic. His wife said that that at first just having to decide what he wanted to eat made him violently ill. Also in the VA files there seems to be lots of Anxiety Neurosis. In my unlearned way I had been classifying that as “worry wart” – we learn something every day.

As Gram concluded seventy-five years ago, “when I see in our files just how many fellows are given discharges for various neuroses, I’d like to broadcast to people how no stigma should be attached to it.” 

When Gram wrote her letter, Pops was still serving overseas in some classified location. No one knows what Pops actually did during the war, because he never talked about it. Never.

Pops visiting Vancouver in 1972. I'm on the far right

My daughters have been binge-watching a TV show that featured a plotline involving HIV. I related to the story. I thought I could talk to my kids about anything, in an age-appropriate and sensitive way. But when Rosalind asked me a question about AIDS, I was speechless.

So I’m grateful for whatever dam recently burst enough for me write about my experiences as a gay man in the AIDS era. I still have to approach things obliquely – when it came to the gritty stuff, my recent essays relied on long quotes from David France and Andrew Sullivan. But it’s a start. Unlike Pops or Jane Duncan, I already know enough about how closets work to give me confidence that eventually I’ll find the rest of my voice. 

When I searched my blog essays for previous references to HIV/AIDS, I realized Id already begun sneaking up on the subject. The hints came in the safest of spaces. I mentioned HIV medications in the same essay where I made the connection between Jane Duncan’s body-focused repetitive symptoms and my own struggle with compulsive hair-pulling. And when the Vancouver Men’s Chorus presented a concert called “Gays of Our Lives,” I was able to reminisce about how reprising familiar songs of grief and rage gave me a glimpse back to the Gay 90s. 

Surrounding yourself with family, friends, chorus, and good books can offer hope to even the most scarred trauma victim. 

Other “AIDS is not a Picnic” essays:

After the Fall” (2/6/20)

Set Theory” (1/30/20)

OK Boomer” (1/28/20)


Gays of Our Lives” (5/22/19)

Opportunistic Infections” (5/12/19)

I Shall Miss Loving Him” (1/19/18)

I Come from Good People” (1/7/18)

Thursday, February 13, 2020

Well-Picked Battles

No civil rights lawyer ever had a better client than Mildred and Richard Loving.

The Lovings spent their lives in rural Central Point, Virginia. They met and fell in love when they were in high school. In 1958, they got married in Washington D.C. because their home state outlawed interracial marriage. Later that year, the local police raided the Lovings’ home and arrested them because Richard was white and Mildred was not. They were sentenced to one year in prison, but the sentence was suspended on the condition that the couple leave Virginia and not return together for at least 25 years.

The American Civil Liberties Union challenged the Lovings’ convictions. When the trial judge upheld the constitutionality of Virginia’s miscegenation statue, this was his reasoning: 

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Fortunately, in 1967 a unanimous United States Supreme Court reversed the decision in the aptly named case of Loving v. Virginia.

A year before her death, Mildred Loving issued the following statement against the backdrop of another national debate about marriage equality:

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about. 

Forty years after the Supreme Court’s landmark ruling in Loving v. Virginia, I was on the ACLU legal team challenging Washington’s so-called “Defense of Marriage” statute. (Spoiler alert: we lost in the Washington Supreme Court by one painful vote. Marriage equality had to wait another six years before the Legislature and the voters did the right thing.) 

One of my assignments in the ACLU case was to screen the potential plaintiffs who would represent the LGBT community. Most aspects of litigation are beyond the control of parties, amici, lawyers, and even judges. It helps when you can start with heroes and a just cause. 

Nevertheless, in the end you go into battle with both the army and the opponents you have. As a warrior, these days I start with a lot of minuses and a few key plusses: a supportive family, some relevant skills, a Canadian gay chorus, and opponents who are predictably incompetent and dishonest. But identifying your plaintiff – or finding yourself at the center of an important public controversy – is only one small step toward challenging injustice. As Donald Rumsfeld might say, any campaign of impact litigation and public education will involve numerous known and unknown contingencies. You do your best to prepare for what might happen, then you do your best to respond to what actually happens.  

Here are a few tips for picking your battles:

·       Find the best possible venue. In my case, the most visible ring of the circus is now the Washington Supreme Court, which has both the authority and the resources to give these issues the attention they need. However, there are also related proceedings pending before other courts and administrative tribunals, including the Washington State Bar Association’s attorney discipline system and the state’s Executive Ethics Board.

·       Focus on what’s important. The first year of law school teaches you how to spot all the potential issues raised by a dispute. Eventually a good lawyer learns to identify the important issues. A really good lawyer then figures out how these important issues connect to your client’s situation. My particular story involves a handful of interesting legal problems related to topics like the reasonable accommodation of mental illness and other disabilities, the effect of the closet on LGBT people and society, governmental treatment of whistleblowers, and systemic barriers facing ordinary people with legal problems. But all of these issues center on a single important question – what happens when lawyers start lying, and then won’t stop?

·      Seek the most favorable legal standardLike soccer and certain other sports, litigation is all about working the ref. Give yourself your best shot. It should come as no surprise to readers that my appeal involves the friendliest possible standard of review for a civil rights plaintiff. The Supreme Court will resolve purely legal questions like the Legislature’s intent and the proper interpretation of statutory language de novo, i.e., without giving any weight to the trial court’s erroneous ruling. In doing so, the Court must not only presume the truthfulness of every single allegation in my original Complaint, but the justices may also consider purely hypothetical facts not included in the record. In contrast, in order to win in the Supreme Court, Defendants have the heavy burden of demonstrating there is no conceivable set of facts that would justify any legal recovery for me and my family. See, e.g., P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 210, 289 P.3d 638 (2012). 

·         Aim for as few distractions as possible. I don’t need to rely on hypothetical facts. I don’t even need to rely on disputed allegations, or “he said/she said” incidents. Instead, every argument I’ve chosen to make in my public filings is based solely on undisputed evidence:  the “smoking gun” emails and other contemporaneous documents belatedly produced by the State and Defendants themselves. For example, I had a key meeting on December 16, 2015, with then-Western Washington University Bruce Shepard. Only he and I were present in his office that day. He’s welcome to share his version of events. In the meantime, I’ve done my best to tell the truth, while respecting my obligations as a lawyer and a citizen. I hope people will believe every part of my story, including my account of horrifying encounters with malignant narcissists like President Shepard. But when I sue the State and its tools for illegal discrimination, or when I publicly accuse their lawyers of ethical violations, I never rely on my word standing alone. Instead, all my accusations are corroborated by documents produced by the State under the Public Records Act. Such as the fact that Western President Bruce Shepard had me fired, in part, because he objected to my real-world legal analogy as too gay.

I finished this blog essay a couple of weeks ago, after I learned the Washington Supreme Court had accepted review of my appeal from the trial court’s erroneous legal ruling and the cruel monetary judgment the judge imposed on me under Washington’s whistleblower statute. Oral argument is scheduled for June 9, 2020. 

Originally the essay concluded with more examples of well-picked battles. Soon the State, its tools, and their lawyers will wake up and finally realize they’re going to lose. Eventually. Painfully. I’ll probably publish the other samples of well-picked battles in a new blog post down the road, titled something like “No Brainers.”

But I decided to write a new conclusion for this essay after we got some more news last week. Despite the unanticipated success of their petition for review before the Supreme Court, Defendants have fired their lawyers once again. Sadly, I may never get to actually meet the “Great Lawyer” they hired to deal with my claims over the last couple of years.

Arguing for marriage equality before the Washington Supreme Court (2005)

I've already met Defendants’ newest lawyer. In fact, I’ve known Paul Lawrence almost as long as I’ve been an attorney. Paul and I have represented clients on the opposite sides of cases. We’ve also served together on the board of the ACLU of Washington, and we've worked together on multiple legal matters. Paul Lawrence is a civil liberties titan. In his commercial litigation day job, Paul is on anyone’s A-list of Washington appellate lawyers. (I’ve never made it past the B-list myself.) When I worked on the marriage equality case, he was the ACLU’s lead attorney. Paul argued the case before the Washington Supreme Court.

Fifteen years later, Paul Lawrence agreed to represent Defendants in the Supreme Court phase of my lawsuit. Before deciding to take the case, Paul had very little information beyond the fact that the appeal involved the proper interpretation of a whistleblower statute that was last before the Court in a fractured opinion ten years ago. Paul had not yet read my Answer to Defendants’ petition for review, so he didn’t realize that the Court chose to open this particular can of worms knowing that the case is also about what happens when lawyers like his clients lie and won’t stop lying. Paul also wasn’t aware that in the event he actually prevails in the Supreme Court, the resulting judgment will require me to reimburse the other side for their litigation expenses – including Paul’s own fees – and will inevitably bankrupt me.   

Most lawyers get to pick their clients.

I’m glad that Defendants finally sought out a lawyer like Paul Lawrence. The Washington Supreme Court is also glad. We know we’ll be reading and hearing the smartest possible legal arguments. And we know oral argument won’t be marred when opposing counsel’s blatant lies trigger more PTSD symptoms, as happened in both the trial court and the Court of Appeals. 

I’m even glad that Defendants picked Paul himself. As with every quirk of events lately, his choice provides fodder for public education efforts like this essay. Besides, my monologuing will finally find an intelligent lawyer in the audience.

But I’m also sad for Paul, and for what his choice of clients these days reveals about how the legal system treats ordinary people – or rather ordinary “people” in the sense that United States Chief Justice John Roberts uses the word, i.e., to mean “corporations.”

Bankrupt bullies like Donald Trump can always find a lawyer who is willing to use the legal system to grind their opponents into dust. Even without resorting to such abusive tactics, there will always be another straight white male Baby Boomer lawyer like Paul Lawrence out there, ready to vigorously advocate on behalf of yet another straight white male Baby Boomer defendant, or for a well-resourced corporation. Rather than sitting down with his new clients and telling them they’re not just likely to lose, they should lose – for everyone’s sake, including their own.

Rule of Professional Conduct 2.1 for Washington lawyers provides:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. 

I know everything isn’t black and white. But there’s not as much grey out there as some lawyers are willing to argue. Not every argument needs to be made, nor every client’s conduct defended until you've scorched the earth and everyone on it. Unfortunately, Defendants keep picking “Great Lawyers,” rather than listening to some candid advice from a pretty good lawyer about which battles are worth fighting.