Tuesday, September 29, 2020

Unanswerable Questions

Schrödinger’s Fridge has been waking me up at night.


When my ex moved back to the Midwest a year ago, I took over the lease on his convenient rental house. The kids, dogs, and I live in a comfortable classic ranch located near the kids’ schools, in a tiny residential enclave nestled up against the university. It’s the most neighborly neighborhood I’ve known since my childhood in Vancouver. Our marvelous landlords, a professorial couple, live just down the street.


The original fixtures in older homes are doomed to fail eventually. Last month when the refrigerator died we didn’t notice immediately. The freezer was doing fine, and because the light in the fridge has never worked, no one realized anything was amiss until everything had gone bad.


My landlady relies on handyman Glen, the Appliance Whisperer, to stretch life expectancies indefinitely. Sure enough, from my description of the problem Glen immediately figured out it was something to do with the defrost unit. He’s almost as good at diagnosis as my excellent Bellingham physicians Dr. Heuristic and Dr. Practical. As soon as Glenn could fit us into his busy schedule, he came over and magically revived the fridge. He even fixed the light.


As people and appliances age, their problems multiply. Fortunately, the refrigerator is as clean and cold and illuminated as it’s ever been in its life. Unfortunately, now the fridge makes loud airplane-like noises. Based on my texted sound effects, Glen says not to worry – it’s something to do with the evaporation fan that won’t affect the fridge temperature, and he’ll make a house call as soon as he can.


In the meantime, the grinding noises wake me up in the middle of the night. I want to believe in Glen. But I can’t get back to sleep, because I worry the orange juice and cream cheese will be spoiled by morning.

There are many kinds of unanswerable questions, from quantum physics to philosophy to dividing by zero. The Buddha refused to answer fourteen questions. Here are his first four:

1.  Is the world eternal?

2.  ...or not?

3.  ...or both?

4.  ...or neither?

As a fan of Broadway musicals, here are the first four unanswerable questions I ask:

1.  Why hasn’t Stephen Schwartz ever won a Tony award?

2.  Is Sondheim’s Merrily We Roll Along hopelessly unstageable? 

3.  Which movie version of a musical had the worst miscasting ever – Barbra Streisand as Dolly instead of Carol Channing, or Lucille Ball as Mame instead of Angela Lansbury? (Fortunately Bea Arthur played Vera in both version of Mame.)

4.  When will the theaters finally reopen?

Ever since I first discovered evidence of illegal conduct at my former employer the Washington Attorney General’s Office, I’ve been trying to get answers to some pretty obvious questions. After enduring three years of stonewalling, my questions have been getting increasingly pointed. Painfully pointed.


In one of my introductory blog posts about the mechanics of litigation I described the “discovery” phase of a lawsuit. During discovery each party can request copies of relevant documents from other side, and can ask written questions in the form of “interrogatories.” Under the federal rules of civil procedure, the plaintiff can ask each defendant to answer up to 25 interrogatories. So far I’ve only asked two questions. Here are paraphrased versions of each, translated back from legalese into English:



In March 2016, the Attorney General’s Office signed a written contract that authorized an outside investigator firm to look into Plaintiff Roger Leishman’s complaint of sexual orientation discrimination by his employer. Identify the State’s legal basis for instead spending tax dollars on an investigation into the separate issue of his supervisors’ secret complaints about odd behavior resulting from Leishman’s disability. 



After the investigation into his concerns about implicit and explicit homophobia in the workplace began, Plaintiff Leishman hired an experienced disability lawyer for the specific purpose of negotiating with Leishman’s employer in the interactive disability “reasonable accommodation” process required by the Americans with Disabilities Act. Identify any evidence supporting the sworn statement by the Attorney General’s Office testifying that “the reasonable accommodation process was put on hold” during Spring 2016. 


Some unanswerable questions actually have answers.


A “rhetorical” question is asked for dramatic effect, and has an obvious answer. In case you’re wondering, the answer to both Interrogatory No. 1 and Interrogatory No. 2 is zip. My employer broke the law, and then lied about it.


According to Webster’s dictionary, a “trick” question is “one that causes difficulty.” Sometimes the truth is painfully difficult to face. When a question’s only possible answer is “I broke the law,” an individual can invoke the Fifth Amendment’s protection against self-incrimination and refuse to answer. Unfortunately for my former employer, the Fifth Amendment doesn’t apply to State agencies. 


Eventually the State’s squirming will end. The Attorney General’s Office will finally have no alternative to telling the truth. What do I expect to happen at that point? Either Attorney General Bob Ferguson will be offering me a public apology, or a federal judge will be making all the decisions that matter for the foreseeable future. I’ll be happy either way.

This will make other Broadway fans jealous, but my Playbill collection includes the entire Idina Menzel trifecta:  I saw her in the original productions of RentWicked, and If/Then

Even straight people are familiar with Rent and WickedIf/Then is a much more obscure musical that opened in 2014. Idina played Elizabeth, a 38-year-old urban planner who returns to New York to start life over after getting divorced. The plot turns on a classic literary device. If/Then alternates between two versions of Elizabeth’s life, depending on whether she answers a phone call from a former colleague. “Beth” takes the call, and follows a careerist track. “Liz” misses the call, and has a family instead.  


Everyone has unanswerable questions about how their own lives would have turned out if things had gone in a different direction at key pivot points. Three years ago in “Flashpoint” I wrote that I have no regrets about anything that occurred before Spring 2011, when we salvaged Oliver’s adoption.


Still, I can’t help asking about my past. My greatest curiosity involves the major life change that occurred when I was twelve. That’s when we moved from Vancouver, Canada, to a small town in northern Utah. My parents came to their senses five years later and moved back to the Pacific Northwest, but the damage was already done. Three decades later, abusive conduct by employees at the Attorney General’s Office triggered the PTSD symptoms that ended my legal career and destroyed my health. But the underlying trauma began during the years when I was a teenager in Utah, where the Mormon church and Mormon culture overwhelmed me with their relentlessly homophobic and dehumanizing message. 


After examining and re-examining my own Canadian childhood memories, I keep badgering my parents and others about what they remember about me. I want to know what kind of person I was before I left Vancouver at age twelve – because I wonder if that’s the kind of person I’m turning into now.

During times like these we all find ourselves asking unanswerable questions. For example, “What one thing are you most surprised to find out you can bear to lose, and still be able say you are as happy as you’ve ever been in your life?” Here’s my answer: The other day my mother and I were asking each other when was the last time we’d gone this long without setting foot in Canada. I’m at 1984. Mom’s at 1981. I do not have words to convey how much I miss Vancouver and Vancouver Mens Chorus during this pandemic. Yet all is well. 


Lately I’ve been making amazing progress with the manuscript of my book Anyone Can Whistle: A Memoir of Showtunes, Religion, and Mental Illness. The chapters of the book are divided into three parts:  “Traumas,” “Triggers,” and “Recoveries.” In many ways I’m still living through Part III. Fortunately, four long years after mental health rock bottom, I feel better than ever. If I’m never able to think or write any better than I can today, I’d call that a huge victory.


We can’t say the same thing about my poor bodys recovery. To the contrary, as a result of decades of traumas, triggers, and stresses, my trichotillomania and bruxism are off the charts. Fortunately, mental health comes with various benefits. I’ll close with one example about how it wasn’t just writing that got blocked during the plague years. It was everything else, too. Rather than finish the smallest of ordinary tasks, I would let them simmer, percolate, fester. Eventually my paralysis reached the point where I couldn’t finish anything until I absolutely had to. Instead, my desk was always covered with stacks of procrastinated projects. The dishwasher, sink, and counter were always half filled. The entire house consisted of “staging areas” where I would put things on their way to where they belonged.


One of the reasons we moved from Vancouver to Brigham City in 1976 was to be close to my paternal grandparents. They lived twenty miles away from us, on the family farm where my dad grew up. My ancestors settled Wellsville, Utah in the 1850s. After hearing the message of Mormon missionaries in Scotland, my Leishman forebears sailed across the ocean and walked across the plains to Salt Lake City. Then Brigham Young sent them 90 miles north to plant crops and raise cows in remote Cache Valley. 


My daughter Rosalind is busy writing an essay about her family for English class. Last night I told her the story of my grandfather Ernest Leishman, the finest example of devoted love I’ve ever known. During the five years my parents lived in Utah, my grandparents would drive through the canyon for family dinner at our house every Monday night. But I do not have a single memory of Grandma speaking. She’d already started the long decline into Alzheimer’s disease. 

Grandpa cared for her at home as long as he could. When Grandma had to move into a nearby nursing home he visited her every day, and brought her home as often as possible for as long as he could. She died two decades later. Grandpa died less than six months afterwards, having held on long enough to make sure Grandma was cared for to the end.


One day we brought her back from the nursing home to the farmhouse. By then Grandma didn’t recognize anyone, but she could still move around. As my mother helped her change into a different dress, Mom told Grandma she looked beautiful. Grandpa took his wifes hand, and said “That’s because she’s the most beautiful woman in the world.”


When I started observing an increase in my short-term memory loss a couple of years ago, I nervously raised the subject of dementia with my physician Dr. Heuristic. He added a new item to his standard repertoire of go-to diagnoses: my symptoms are just a perfectly normal response to stress. And by any objective measure, right now I’m under as much stress as I’ve ever been in my life. Starting with the fact that the Peace Arch gates at the border are closed for the first time since the War of 1812.


The good news? I’ve made so much progress with other aspects of my mental health that I’m no more avoidant than a perfectly normal person. In fact, nowadays I’m much less avoidant than most people. The festering piles of unpaid bills are gone. The kitchen counters are clear. All the staging areas have disappeared. Just in time to cancel out my stress-induced memory blanks.


For the first time since my childhood in Vancouver, I can answer the unanswerable questions that matter most:  when I can’t remember where I put something, at least I know I’ll find it in the right place.

Tuesday, September 22, 2020

First Fall Walk

Bear and I recently ran into a gaggle of twentysomethings on the Boardwalk. Bear was his usual charming self, trying to kiss the girls and to bum snacks and cigarettes from the boys. One young man was particularly excited to meet us. It turns out he’d already filed an application for an aussiedoodle from the same local breeder. Bear’s charms closed the deal. 

The guy was full of curious questions about life with the dogs. Finally, he asked “Do they need a lot of exercise?”


I responded with the same observation I so often find myself repeating to my children, particularly Eleanor: “It depends what you think the word ‘need’ means.”

"walk" \ ˈwȯk \  noun

Both dogs and people need exercise. Some dogs and people really need exercise.


Our household consists of three children, two dogs, and Papa. Half of the family becomes stir crazy if we’re trapped inside for too long. The other half think quarantine is the best thing that’s ever happened.

Rosalind and Oliver are convinced “exercise” is something that occurs in Minecraft, Fortnite, and Grand Theft Auto. Meanwhile, our long-delayed trip to the dog groomer revealed a frankly zaftig Buster underneath all that fur. Whenever the dogs and I leave for a Walk, Buster is responsible for the huffing and puffing you’ll hear before we make it past the driveway.


Among the other three family members, Bear whines the most if he’s deprived of outside time. I’m third. Eleanor is second. She energetically fills her life with softball, volleyball, gymnastics, whatever. During these trying times, she’ll settle for a brisk walk through campus. Alone. Eleanor is too much of a teenager to be seen in public with her pets or parent – even though everyone else in Bellingham knows the dogs are adorable, and I’m the Cool Gay Dad.

"real" \ ˈrē(-ə)l \  adjective

Bear and I have rigorous standards. It doesn’t count as a Walk unless we go at least a mile. You and Buster might consider sometime less to be a “walk,” but we know it’s just a trip to the outhouse. You might as well hang out in our lovely enclosed backyard.


A mere Walk is not the same as a Real Walk. On a Real Walk, I can collect my thoughts and do some serious writing in my head. Meanwhile the dogs can get all their ya-yas out.


The transition from a Walk to a Real Walk usually occurs somewhere between the 2 and 3 mile marks. Coincidentally, that’s also about where Buster collapses and fakes an injury, like a European soccer player.   

"Friday" \ ˈfrī-(ˌ)dā \  noun

Friday Walks can happen any day of the week. Buster isn’t even invited. To prepare for a Friday Walk, Bear and I pack the essentials into a backpack:  writing supplies, snacky treats, a mobile dog dish, a flask of tap water for Bear, and Eleanor’s hand-me-down Hydroflask with Brita-filtered cold water for me.


On a Friday Walk we go for at least five miles, but usually more like eight or ten. We’ll try various routes through campus, the arboretum, downtown, and Fairhaven, invariably looping through the waterfront Boardwalk and Boulevard Park. We’ll stop at the off-leash park, or one of our three favorite coffee shops, or the post office. Once we stopped at the gay bar downtown, only to realize I’d forgotten my wallet. So Bear and I had to have another cider and snacky treat, and wait for Eleanor to walk down the hill. Obviously Rosalind, Oliver, and Buster didn’t accompany her. 


On Friday Walks, Bear and I will stop several times to write down our thoughts and transcribe our witty conversations, preferably at a park where the benches have back support. And we invariably end with a brisk hike to the top of South Hill and home.

"fall" \ ˈfȯl noun

Recently the smoke from forest fires across the West was so terrible the dogs and I couldn’t go on any Real Walks or Friday Walks. Unlike Seattle and Portland, Bellingham never made it to the maroon level of “Hazardous.” Instead we alternated between red (“Unhealthy”) and purple (“Very Unhealthy”).


Fortunately, rain returned over the weekend and brought us back into the green zone. On Sunday Bear and I went on our first Friday Walk in ages. It was also our First Fall Walk. 


Autumn is the air; masked collegiate nerds are playing frisbee on campus; my beard is back; and it’s almost time to break out the fleece. The smoke-induced break indoors underscored the change in seasons. Its obviously getting dark earlier, which makes it difficult to fit in a Real Walk after dinner. Buster and I will need to schedule our daytime Walks between inconveniences like the kids’ school, legal work, and rain showers. Some sacrifices may be required: perhaps healthy children’s meals, evening rabbit prowls, Zoom writing group meetings, or Buster.


You may ask, whose needs will be prioritized? It depends on what you think the word “Alpha” means.

Thursday, September 17, 2020

Hanlon's Razor

In contrast with my unhealthy obsessiveness four years ago, and despite the many other horrors of 2020, I’ve successfully avoided most election-related triggers so far.


Nevertheless, I was alerted to recent shenanigans at the United States Postal Service through the safely reality-based online filter provided by Slate/The New York Times/New York Magazine/Entertainment Weekly. So when I picked up my mail from the downtown post office box on Monday, I knew I should immediately toss my “voter information” postcard into the nearby recycle bin.

When the mail arrived at home later that day, I saw my bonus copy of the same postcard. This time I made the mistake of reading the back. I got annoyed. So I wrote this essay. It’s part of my continuing recovery process.

As I wrote last month in “A New Hope,” this summer my former colleagues at the Washington Attorney General’s Office removed my various claims against the State to federal court, then filed a quick motion to dismiss. Their opening brief triggered my worst PTSD symptoms this year. Here’s how the conclusion to my response brief begins: 


After his long, Kafka-esque journey, Plaintiff Leishman finds himself in this Court pleading for justice. This is an extraordinary case. Upon hearing Leishman’s story, most adherents to Ockham’s Razor would posit that he must be some kind of disgruntled crank relentlessly abusing the legal system, rather than entertaining the possibility that Attorney General Bob Ferguson has chosen to surround himself with chronically incompetent and unethical attorneys. Leishman describes the kind of systemic abuse of power that one would expect to hear about in the other Washington, not here. 


Nevertheless, the undisputed and indisputable contemporaneous documentary record speaks for itself. After three years of Leishman’s exhaustive requests under the Public Records Act, neither the Court nor Defendants can expect a secret cache of exculpatory documents to suddenly appear like a deus ex machina. To the contrary, despite repeated invitations, the lawyers at the Attorney General’s Office have failed to present any tribunal with a single scrap of evidence rebutting Leishman’s allegations. Instead, their predictable playbook consists of denial, bluster, and delay. On those rare occasions when the Attorney General’s Office responds to one of Leishman’s whistleblowing accusations with actual factual assertions, close inspection reveals their falsity. 


As Hanlon’s Razor advises, “Never attribute to malice that which is adequately explained by stupidity.” Eventually, however, the accumulation of egregious errors adds up to willful blindness, or worse. Perhaps something about Leishman himself deranges his former colleagues. Or perhaps his experience is the result of the same kind of institutional problems as the Attorney Generals Office counseling the Department of Corrections to release dangerous inmates early and the secret plan to destroy incriminating emails exchanged between the State’s lawyers and their outside experts in the Oso mudslide litigation. Either way, the result in Leishman’s case has been a spectacular failure of the State’s mechanisms for public accountability. 


The Continental Congress appointed Ben Franklin as the United States’ first Postmaster General in 1775. Donald Trump appointed businessman and Republican donor Louis DeJoy as the nation’s 75th Postmaster General in May 2020. 


The Postmaster General previously served in the Cabinet. In 1971, the Post Office Department was reorganized as the United States Postal Service. According to Wikipedia, the Postmaster General is the second-highest paid federal government official after the President of the United States. For the last three decades, the position went to an experienced manager from within the Postal Service. In contrast, Postmaster General DeJoy is a very political appointment. 


Even a news-avoider like myself has seen the headlines about DeJoy, such as his fraudulent election contributions to Republican candidates as a CEO, and his inability to answer a congressman’s questions about the price of a first class stamp. Then there’s DeJoy’s decision to fire most of the post office’s senior managers and to reorganize many of its procedures for no apparent reason, just in time for a uniquely mail-dependent election. If you haven’t noticed, we’ve come a long way since George Washington and Ben Franklin. 

As Paul Krugman says in the introduction to his newest book, Arguing with Zombies, “If you’re having a real, good-faith debate, impugning the other side’s motives is a bad thing. If you’re debating bad-faith opponents, acknowledging their motives is just a matter of being honest about what’s going on.” 

One of the memes you’ll see tossed among Krugman’s hand-wringing colleagues on the New York Times Op-Ed page is their relief that Trump’s narcissism and incompetence have preventing him from doing even more damage. Cold comfort while the West burns. Trumps competently evil collaborators like Mitch McConnell and Bill Barr have done permanent damage to the rule of law, the economy, and the environment.

If you turn over your postcard from Postmaster General DeJoy, you’ll read several bland bullet points about voting by mail. Perhaps his advice will be helpful to newbies in Wisconsin or Florida. Here in Washington we’ve had 100 % mail-in elections for years, with no fraud or failures. But if inexperienced local voters follow the postcard’s advice and wait until fifteen days prior to the election before confirming the status of their voter registration, they wouldn’t be able to vote by mail at all – at best they’d be one of the handful of special-needs Washington citizens voting in person on November 4.


Recently I saw a photograph of a protest poster that read “Not all of Trump’s supporters are racists. But all of them decided that racism isn’t a deal-breaker.” As Hanlon’s Razor suggests, the postcard’s misleading statements about vote-by-mail are probably the result of stupid fact-checking by bureaucratic hacks. But after four years, the underlying pattern of malice – and its inevitable consequences – are undeniable.

Tuesday, September 15, 2020

Keep Breathing

I was prepared for the extra long Q-tip snaking up my nose. However, no one told me a Covid-19 test involves repeatedly sneezing afterwards.

I’ve lived with chronic ear, nose, and throat problems ever since I was a teenager. Once or twice a year, allergies and stress converge for a bout of sore throat and congestion. The first time it happened I was in high school. In a cosmic joke that recurs every few years, I lost my voice for several weeks, even after the more painful symptoms subsided. I was performing in some show at Palace Playhouse at the time. The director’s advice to the rest of the cast: “If everyone talks quietly when Roger’s on stage, maybe the audience won’t notice.”

In a bad year, I’ll get a high temperature that signals bacterial infection. More than once I’ve been told if I’d waited another day to come in for antibiotics I’d already be in the hospital, or dead. Fortunately, Bellingham has an excellent walk-in urgent care clinic. Nowadays when I recognize the nasal warning signs and can’t get an appointment with my regular physician, Dr. Heuristic, I promptly pay a visit to Dr. Practical at her clinic. 

This year I didn’t have a fever to accompany my sore throat, nasal congestion, and cough. So I assumed I had the usual malaise, and I’d just have to wait in misery while the crud ran its multi-week course. 

On the other hand, the same symptoms could also point to Covid-19. Right after the kids flew back from the Midwest, they went in for regular wellness visits. Their pediatrician said if any of them had Covid-like symptoms I should call her office and she’d order a test. But when I called my grownup doctor’s office, they told me if I wanted a Covid test I had to go to the walk-in clinic and be triaged in their parking lot first. 

So last week I had I nice drive-through chat with Dr. Practical about our kids’ Zoom high school experiences, picked up a prophylactic antibiotic prescription, then drove down the street to another parking lot where a nurse stuck a Q-tip up my nose.

This summer as Bear and I went on longer and longer treks around Bellingham, I recognized what an important role our walks play in my thinking, writing, and general mental and physical health. Among other benefits, I have the opportunity to try out new material on dog owners, or at least on dogs. Or dog. It turns out Bear is a marvelous conversationalist. 

As soon as we arrived home from each long Real Walk, I now transcribe our Bear Dialogues. Here are some recent examples:

“I told you we were walking back to the car, not the house. Ha! Who’s the Guide Dog now?”

“Which sounds better, ‘If my children loved us they wouldn’t have made us go on this walk,’ or ‘If my children didn’t love us they wouldn’t have made us go on this walk’?

“I’m the Alpha, goddammit.”

“What should we do, Bear?” “Breathe.”

“Only one of us can be the most passive aggressive, and you win.”

[At PAWS, Bellingham’s bar for dogs and dog owners]  “Buster hasn’t texted, so I guess we can order another cider and stay a while.”

[Also at PAWS] “Poor Buster. At least this time we fed him before we left.”

“Can’t you find a park where the benches have back support?”

“What’s the collective noun for a bunch of cute nerds?”

“You’re just as bad as my children.”

“Is my mother paying you to scare away twentysomething nerds?”

“You’re an attention whore.”

“We’re going to the off-leash park, not the dog bar. We can’t have alcohol.”

“If we keep having such a good Friday every week you’ll have to vote for Trump.”

That final line of Bear Dialogue, which I posted to Facebook last Friday, tempted fate a little too much. 

As expected, my Covid-19 test came back negative, which was the real point of my visit to Dr. Practical. Unfortunately, her antibiotics didn’t make a difference, other than upsetting my stomach. Instead, as I suspected, this year I have the lingering non-bacterial version of la grippe. My nose finally feels better, but as usual I’m now hoarse. And the congestion has decided to settle in my chest for a while. 

Meanwhile, the horrifying forest fires across the West are sending clouds of toxic smoke our way. Everyone who is already staying indoors is supposed to stay indoors even more. Buster, Rosalind, and Oliver are thrilled to have yet another excuse to avoid exercise. Eleanor is compensating by doing twice as much indoor and online teenager stuff. And Bear and I are frustrated and irritable.

On Saturday evening, I was exhausted from work and congestion. I wasn’t up for a Walk or even a mere “walk.” But after being spoiled by months of regular exercise, Bear obviously needed a Real Walk. Right Now. 

Desperation began to alter Bear’s personality. Abandoning his usual aloof and cat-like passive aggression, Bear tried cuddling with everyone. Even Eleanor. When we filled the dogs’ supper bowls, the normally anorexic Bear ate first for the first time ever. Out of Buster’s bowl. Buster frantically wagged his tail nearby in terror. 

Then Bear sat on my chest and batted his blue and brown eyes. I couldn’t stand it any more. I crawled out of bed, changed out of my pajamas, and got out the leash. Bear bounded toward the door. Buster remained curled on the floor in the living room, rolling his eyes at us like we’re both crazy.

Last month in “Just Breathe” I wrote about how my PTSD-amplified trichotillomania makes wearing a mask feel like I’m being waterboarded. I can handle a few minutes in the post office and grocery store, but that’s about it. Nevertheless, relying heavily on mouth breathing, on Saturday night Bear and I made it from the end of the Boardwalk to Boulevard Park and back to the car before I had to rip off the mask and gasp.

Air quality throughout the Pacific Northwest keeps getting even worse. After the briefest of “walks” with Buster yesterday morning, Bear and I were trapped inside the house with the children all day.

Happily, after dinner a surprise shower finally cleared the air a little. As soon as the rain stopped, Buster and the children kicked us out of the house. Bear and I enjoyed a delightfully mask-free Real Walk across the hill to our favourite Victorian mansion.

When I posted my first excerpt from the Bear Dialogues to Facebook a few weeks ago, here’s what it said: 

Tonight’s New Yorker cartoon caption, overheard in a dark wood nearby: “You said you’re the ‘Guide Dog.’ Does no one here have night vision? Shouldn’t that fact have come up on an earlier date?”

We’ve learned our lesson. Last night Bear and I stayed on lighted sidewalks and avoided the woods. Instead, here’s the Bear Dialogue you would have overheard on South Hill last night: 

“We’re not going to get run over. Half our hair and both your legs are blindingly white.” 

“Hey, I don’t smell smoke anymore!” 

“You really don’t have any sense of smell, do you?”

“Didn’t we leave Buster at home? Who’s that huffing and puffing, you or me?”

“Keep breathing.”

Thursday, September 10, 2020

Pied Beauty

I began living with Bear and Buster fulltime a year ago, when my ex moved back to the Midwest and I moved in with the kids and dogs to began Peak Parenting. The dogs had just received their summer haircuts. I began growing my autumnal beard after Labor Day. All fall and winter, we watched each other turn into our furball selves. In the spring when I shaved off the beard, the dogs kept on getting fuzzier – dog grooming didn’t make the governor’s list of “essential” services during a pandemic. 

When Bear reached peak shaggy, I couldn’t decide which one-word hair icon he most resembled: Barbra? Farrah? Rachel? Or a Mad Max: Beyond Thunderdome Tina?

After Washington entered pandemic “Phase 2,” we finally scheduled haircuts. By then the dogs’ hair had become a hopeless tangle of knots and mats. The groomer had no alternative to completely shaving them.

Each aussiedoodle lost 80% of his volume. At least Buster retained his coloring – hairy or shaved, Buster is a black dog with white trim.

When I picked up Bear from the groomer I didn’t recognize him. He was all brown and white blotches. My son said he looks like a rat. A friend said Bear was more like a hyena. Or a weasel.

I tried to convince myself Bear was going for a “masked superhero sidekick” look.

Normally Bear’s fur looks like an expensive salon hairdo, with elegantly layered shades of brown and white. After his buzz cut, the naked blotches made me self-conscious on Bear’s behalf. He didn’t mind, of course, and probably enjoyed a cool break during the dog days of summer.

Fortunately, after a few weeks Bear’s fur began growing back in attractive white and brown. While walking on the Boardwalk last week I was relieved to overhear a young Latina girl admiring his “dos colores.” 

Priming is a powerful mental process where exposure to one stimulus automatically effects our response to a subsequent stimulus. Your thinking will go in different directions depending on which modules of your brain have already been primed. For example, psychologists know that if you respond to survey questions about your political affiliation while the smell of garbage is wafting by, you will give more conservative answers. (As we learned from the Pixar movie Inside Out, thats your braindisgust module at work.)

I thought of priming last week shortly after I encountered Bear’s young Latina admirer. Fifty feet further along the Boardwalk, I overheard another little girl excitedly tell her mother “Look, the dog’s eyes are two different colors!”

I was so embarrassed by Bear’s blotchy fur that I’d forgotten about his more obvious dos colores feature.

I recently read in the college alumni magazine that my first English professor had died. When I arrived at BYU, Karen Lynn Davidson was the director of the Honors Program. She was a thoughtful feminist role model in a painfully patriarchal community, and an excellent teacher. I still rely on the principles she taught in Introduction to Literary Criticism, and I still remember the literature she introduced us to. 

For example, I first encountered the Victorian poet Gerard Manley Hopkins in her class. Professor Lynn told us that Hopkins was an earnest Englishman who converted to Catholicism while at Oxford and became a Jesuit priest and scholar. Hopkins never published any of his poetry during his lifetime. Fortunately, a college classmate who became Poet Laureate championed Hopkins’ work thirty years later. (At BYU in 1982, the professor would not have mentioned that Hopkins probably was gay.)

My favorite Hopkins poem is still the one we read in our Intro to Literary Criticism class: “Pied Beauty.” Four decades later, I believe more than ever in redemption songs, prodigal homecomings, and the beauty of imperfection.

Glory be to God for dappled things – 
   For skies of couple-colour as a brinded cow; 
      For rose-moles all in stipple upon trout that swim; 
Fresh-firecoal chestnut-falls; finches’ wings; 
   Landscape plotted and pieced – fold, fallow, and plough; 
      And all trades, their gear and tackle and trim. 

All things counter, original, spare, strange; 
   Whatever is fickle, freckled (who knows how?) 
      With swift, slow; sweet, sour; adazzle, dim; 
He fathers-forth whose beauty is past change: 
                                Praise him.

Tuesday, September 8, 2020

Good Friends

Amicus curiae is Latin for “friend of the court.” Because the Anglo-American legal tradition is based on the adversary system, judges only decide actual controversies between opposing parties. Nevertheless, a court’s legal rulings can also affect the rights of other members of society. Outside parties who are interested in the issues before the court can ask for permission to submit an amicus curiae brief to offer additional perspectives and friendly information.

Some grumpy appellate judges find amici to be time-wasting distractions. Other courts appreciate input from a variety of sources. The United States Supreme Court receives an average of twelve amicus briefs in each of its cases. The 2015 marriage equality case Obergefell v. Hodges holds the current record, with a total of 149 amicus briefs submitted by a wide variety of individuals and organizations. Confusingly named “Parents and Friends of Ex-Gays & Gays” appeared as amicus on the opposite side from beloved “Parents and Friends of Lesbians & Gays.”

Like its federal counterpart, the Washington Supreme Court only accepts cases that involve issues of substantial public interest. Our Supreme Court generally welcomes participation from serious amici. The ultimate goal of any effective tribunal is getting it right.

After a century of vigilant advocacy, the American Civil Liberties Union remains an essential bulwark of democracy. Over the years I’ve had the privilege of serving as an ACLU member, volunteer, speaker, board member, staff lawyer, and cooperating attorney. I was even invited to argue before the Washington Supreme Court on behalf of the ACLU as amicus curiae in a prisoner’s rights case.  

Here’s another strange new experience I never expected to see on my bucket list:  the ACLU submitted an amicus brief in a case where I’m the pro se plaintiff. “Pro se” is Latin for representing yourself, rather than having a lawyer. As the cliché goes, any lawyer who represents himself has a fool for a client. Like the Court, I could use some good friends.

In 1989, Washington passed the nation’s first law protecting defendants from “SLAPP” lawsuits. “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” SLAPP lawsuits are “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” They are typically filed by thin-skinned but well-financed organizations like property developers, agribusiness, the Pacific Legal Foundation, and the Church of Scientology.  

The ACLU has a longstanding interest in anti-SLAPP laws. On the one hand, laws like RCW 4.24.510 are necessary to protect citizens First Amendment rights of freely speaking, petitioning the government for redress, and participating equally in public debates. On the other hand, anti-SLAPP laws should not be applied so broadly that they chill other constitutionally protected speech.

The ACLU’s submission is the only amicus brief that will be in front of the Washington Supreme Court as they make their decision in my case. 

When the Court surprised everyone by accepting review of Defendants’ appeal, I reached out to other Washington organizations that regularly submit amicus briefs. Some of these groups, like the lawyers from the LGBT and disability community, might have been interested if the case had remained focused on my original experiences with discrimination, rather than on the interpretation of Washington’s citizen whistleblower protection statute. 

Other amicus frequent flyers, such as the two opposing advocacy groups representing plaintiff’s lawyers and insurance defense lawyers, ordinarily file amicus briefs in cases like this. Both groups participated as amicus the last time the statute was before the Court, in Segaline v. Dept. of Labor & Industries, 169 Wn.2d 467 (2010). However, between the general disruption from the coronavirus, and the fact that most of their legal issues are already well briefed on both sides by the parties, this time around each organization ended up taking a pass.

Some attorneys believe that the Washington Association for Justice (the plaintiff lawyers) and the Washington Defense Trial Lawyers (the insurance defense lawyers) have a secret pact that says neither group will file an amicus brief in a particular case unless the other group also files an opposing amicus. Sorta like the deal between the Demon and the Angel assigned to Earth in Good OmensI’d like to think that after reading the parties’ briefs in our case, the two appellate lawyers who ordinarily would be responsible for noodling over these policy issues decided to have a Zoom cocktail together, rather than writing a pair of superfluous amicus briefs that would just cancel each other out.

Other than the ACLU team, only one lawyer asked for permission to submit an amicus brief in my case. Solicitor General Noah Purcell, who is the top courtroom lawyer at the Washington Attorney General’s Office, attempted to file an amicus brief on behalf of all State agencies. The Solicitor General’s brief would have endorsed the position taken by my opponents – who happen to be the sleazy lawyer-investigators who were hired to justify my wrongful termination by my former employer, the Washington Attorney General’s Office. 

I objected to the Solicitor General’s proposed amicus submission. I pointed out that not only did the entire Attorney General’s Office have an obvious conflict of interest based on their role in the dispute before the Court, but Mr. Purcell himself had already personally participated in the case when it was still before the Court of Appeals.  

Unsurprisingly, the Court denied the Solicitor General’s motion for permission to file an amicus brief “in light of the state’s involvement in the history of the case.” But I’m grateful for Mr. Purcell’s misguided motion, which gave me the opportunity to submit a declaration to the Court attaching various records from the Attorney General’s Office that came to light during the appeal. Otherwise these incriminating documents would not be part of the public court record, where they are available for examination by anyone who’s interested.

The Solicitor General’s tone deaf motion also underscores one of the implausibly Kafka-esque aspects of my experience: not only am I the victim of abusive treatment by various government lawyers, but something about me has the effect of deranging every lawyer who works for the State. Even the smart ones. 

Here’s how one of the few remaining lawyer friends I’m still in contact with described the Solicitor General’s boneheaded amicus motion: “I’m no appellate law lawyer, but even I know that stinks.”

When I was with my parents for Mother’s Day, I spoke on the phone with my youngest brother. He’s the other lawyer in the family. My brother asked about my upcoming oral argument, and asked what kind of moot I was planning. 

A “moot” is rehearsal for court. When I worked in private practice or at the ACLU, before each big appellate argument we would arrange at least one moot with a few colleagues. They would read the briefs, pose as justices asking questions, then provide feedback on the argument. Invariably the lawyers asked much meaner questions than any real judge. 

So much has changed. I no longer have access to a mock courtroom and legal colleagues. While the kids were visiting my ex, I was more isolated than ever. And because of the coronavirus pandemic, this year the Washington Supreme Court is conducting all oral arguments on Zoom. 

Nevertheless, my lawyer brother’s question about how I intended to prepare for oral argument gave me an idea. Did you see the big online celebration for Stephen Sondheim’s 90th birthday last month? Or the last few episodes of Saturday Night Live? With everyone stuck at home, its possible to weave pre-taped segments into the live Zoom stream. I thought about doing the same thing with my oral argument. After answering the Court’s question, Id push a button and play a prepared conclusion filmed in my same Brady Bunch square on Zoom. 

In the TV movie version of my story I’ll be played by Paul Rudd, so imagine him with some grey in his hair as he looks into the camera:

“If the justices have no more questions about the Legislature’s intent when the enacted RCW 4.22.510 or the proper application of Civil Rule 12 to the Complaint in this case, I’d like to close with one more personal disclosure about what it’s been like to experience the legal system from the perspective of a pro se litigant with three kids, two dogs, and PTSD.

In March 2016, my employers at the Attorney General’s Office placed me on an abusive “home assignment,” paid their investigator to attack my character, ignored repeated inquires from the lawyer I hired, then illegally fired me.  

Before moving to Bellingham for what I foolishly thought was my dream job, I practiced law in Seattle for two decades. I worked with countless lawyers as a civil rights advocate, bar leader, and appellate lawyer. In the last four years, not a single Washington attorney reached out to see if there was anything they could do to help me and my familyMeanwhile, no lawyer or tribunal has responded to the mountain of evidence I uncovered documenting official misconduct – even the folks who are responsible for investigating accusations against dishonest attorneys.

But wait, there’s more. While this case was still pending in the Court of Appeals, my parents were worried that my mental health hadn’t improved enough to risk the stress of oral argument. So after all the briefing was complete, they offered to pay another attorney to handle the argument itself. I approached two separate appellate lawyers I’d worked with in the past. Both of them turned me down. Instead I argued on my own behalf in the Court of Appeals, just as I’m arguing before you today.

Here’s another stark contrast with my unprivileged experience with the legal system:  after this Court accepted Ogden Murphy Wallace’s petition for review, it took less than a week for Defendants and their insurer to hire their third set of lawyers, this time a distinguished appellate expert. All the hard work and whistleblowing evidence in the world cannot compete with the privileges of power and money. 

Nothing will change until this Court acts. In the meantime, the Court should affirm the decision of the Court of Appeals.

Unemployed and home alone during a pandemic, I prepared for oral argument without the benefit of fancy lawyer moots. As usual, the most important part of my preparation was writing “SLOW DOWN” in large caps at the top of my outline. 

During oral argument my Zoom connection froze several times. But I remained calm, despite the challenges of anxiety and PTSD. Hopefully I answered the justices’ questions and told my story.   

In my conclusion I didn’t complain about other lawyers. Instead, I thanked the justices for their hard work. In the Segaline case ten years ago, the Court considered the related question of whether Washington’s anti-SLAPP law protects government agencies. Neither side in Segaline did a good job with their briefing. In her concurring opinion, one of the justices tracked down an important case that neither side had cited, which discussed Massachusetts similar anti-SLAPP statute. 

Without this good judge’s diligent search for the right answer, I probably wouldn’t have found the Massachusetts court opinion in Kobrin v. Gastfriend. Ten years later, Kobrin answered the exact question thats before now before the Court:  whether anti-SLAPP statutes grant absolute immunity to government contractors for injuries they cause during their taxpayer-funded assignments. (The correct answer is “No.”) The Massachusetts high court’s opinion provided a clear roadmap for explaining how the legislature intended to protect citizen whistleblowers, not unscrupulous vendors.

These days my mental health is much improved. I get up, make my bed, walk the dogs, hug my children, file legal briefs, then read and write

While quarantined at home with the public library closed, both my mother and I have been reading our way through the complete works of our favorite author Jane Duncan. In one of Duncans novels, the narrator describes a return to relative normalcy after spending a year caring for her husband when a sudden heart attack exposed his chronic heart and liver disease: 

Ill health is an isolating thing. My husband’s sickness, as well as putting distance between him and me, had put distance between us and all our friends. An illness of limited duration is something that people can stomach and over which their sympathy can stretch. But nothing wears out more quickly than sympathy stretched over a long period of time and humanity’s stomach soon sickens at the sight of permanent ill-health, so that, gradually, most of our acquaintances dropped away.

I was lonely but I did not blame people for not coming to see us, because his rigid health routine seemed outlandish to others and made entertaining difficult. People could not be blamed for leaving us within that routine as in a prison. But although I told myself this, it did nothing to abate my feeling of isolation which was increased by the feeling that I was now not only an exile, but an exile without hope of return, a “displaced person,” one of many such in this twentieth century....

When one is happy, one seeks only the happy, pleasant and amusing things. But when one has passed through the shadow of unhappiness, one learns the nature of shadows and begins to notice them everywhere beyond all ignoring.

Coming out is hard, for both the speaker and the listener.  

In writing frankly about my traumatic and triggering experiences, I don’t mean to whine. I’m certainly not pointing fingers at any particular friend or former colleague. Like Jane Duncan’s narrator, I don’t take my isolation personally. Instead, I’ve reached the point in my recovery where I want everyone to know exactly why I disappeared for a few years. 

As each of us goes about our busy lives, it’s easy to lose touch with folks – particularly when an old friend has kids/gets divorced/exits chorus/moves away/implodes professionally/gets a PTSD diagnosis. No one knows what to say. Then they worry it’s too late to say something, so they keep saying nothing. It’s hard to reach out to friends after such a gap, regardless of whether the particular friend was known long and well, or short and hard, through traumas, triggers, or recoveries. Maybe you last interacted with me three or four years ago, when you would have seen me at my craziest. It’s hard to reach out to someone who you fear has become a stranger. 

Regardless of personal history, its always hard to reach out to someone with an off-putting disability, particularly someone living with mental illness or another handicap that interferes with smooth communication. This summer as Bear, Buster, and I briskly walked along Bellingham’s marvelous network of trails, one of the few people who regularly passed us was a young man in a motorized wheelchair. One afternoon as he zipped by I noticed the back of his T shirt:  “Disability Rights are Human Rights.” As the dogs and I reached the dock at the end of the Boardwalk, I saw him parked parked in the shelter. The front of his T shirt celebrated the twenty-fifth anniversary of the Americans with Disabilities Act. 

Despite my introversion, I decided to reach out with a friendly “I like your T shirt.”

His response was incomprehensible, presumably because the disability that put him in the wheelchair also affected his speech. I stood paralyzed on the Boardwalk – wanting to communicate, but overwhelmed by social anxiety, confusion, covid masks, crowds, and two dogs yanking on their leash. So I fled. And I haven’t seen him since.

Nevertheless, I hope I will find the nerve to keep reaching out, telling my story, and listening to friends and strangers as they tell their stories, too.

When this is all over – and by “this” I mean the covid pandemic, tiresome litigation, and Donald Trump – I intend to take advantage my newfound mental health and freedom. 

I’ll cross the border to sing again with Vancouver Men’s Chorus.

I’ll look for opportunities to socialize with lawyers and other folks. 

I’ll look for jobs and do some marketing. After the next few weeks I’ll finally be in a position to write briefs for clients who don’t have a fool for a lawyer. [Ed note: He means someone should start hiring him to write elegant appellate briefs without “Leishman” in the caption.] 

I’ll never again be the over-anxious do-gooder of yesteryear. I’m balder, greyer, and wearier. But I’m also smarter, nicer, and more mindful.

Plus now I come with cute dogs.

Papa and his best friend