This is what a lawsuit looks like....


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

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

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


One major factor contributing to the problems with my former employer was that Human Resources engaged a Seattle private investigator to investigate my original grievance. His name was Patrick Pearce, of the firm Ogden Murphy Wallace PLLC. 

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


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

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


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

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

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

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


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

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

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


This is the first paragraph of my appeal brief:

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

Here’s a link to my entire appeal brief. I’ll let the record and the parties' arguments and legal authorities speak for themselves. Respondents’ Brief was originally due in July. [Ed. note: after requesting a couple of deadline extensions, Ogden Murphy finally filed its brief on August 8. Hmm, that's the day after the Primary Election.] Here's a link to my Reply Brief. The Court has set the case for oral argument in Seattle on April 16, 2019.


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

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

Over 200,000 words of blogging later, you can see I’ve written about a lot of things. But I always return to the subject of not returning to the closet.

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

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





Prior blog posts about my lawsuit against Ogden Murphy Wallace:

No comments:

Post a Comment