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


  1. Good luck! Love the picture. And the dog. And the pillow. You're looking well.

    1. My fabric store addict mother regularly sews custom pillow cases for each of us. I sleep on "Inside Out"