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.




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