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WA Legal Roundup: WA Supreme Court: Mom loses 4 years olds left at home for work; ANOTHER Blakely case; Can’t Adversely Possess City’s Alley

March 1, 2012

So its actually quite an interesting day.

The first case wasn’t all that surprising. The challenge to the dependency action was based on not providing services blah blah blah. The usual rigamarole in dependency actions. So naturally, in Dependency of M.S.R. the Court found no issue with the services (not always the case) and no issue with failure of providing counsel, since none was requested. Let’s just say its not a good idea to take off for work and leave your twin four year olds to their own devices. In this case, they ended up causing a fire.

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Next case is a Blakely case. Every public defender should know this and the Recuenco series of decisions. Anyhow, the long and the short of it is Recuenco III isn’t retroactive and the Court may look at verdict forms to determine if the sentence is valid on its face. Can you imagine the train hurtling down the tracks if firearms enhancements from time immemorial were invalidated? Further, the court should be able to quickly look and see if the sentence is valid on its face, which would give it the ability to revise and clear the burden of the COA. The true gem of this opinion comes from Chambers’ clerk’s inserted footnote. Those who know Chambers’ clerks know from whence this note sprang:

On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.

I refer, of course, to Blakely v. Washington.

Now, to preserve the (semi) anonymity of the Clerks, I won’t give the name. But I will tell you that this quote originated in a law review article: Frank O. Bowman, III, Essay, Train Wreck  Or Can the Federal Sentencing System Be Saved  A Plea for Rapid Reversal of Blakely v. Washington, 41 Am. Crim. L. Rev. 217, 218 (2004). Oh yeah, the opinion is PRP of Scott.

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Its important to note that, while there have been a LOT of post-Blakely cases. I don’t think the sky has fallen down. The courts seem to have dealt with it rather effectively. Probably a little less turmoil than the whole felon-murder thing and the seminal case I can’t remember right now.

Finally, you can’t really take a city’s alleyway. Its there for public use, so you’re not really adverse possessing until the state actually says that part of it isn’t yours. This only applies to statutory dedications as opposed to common law dedications, which CAN be adversely possessed (comes down to the difference between a grant of fee simple in a statutory dedication of land, and an easement in common law). Sadly, I do not have anything funny to say about an Alley. So instead, I’ll post something involving Kirstie Alley. Oh yeah, so you want to know the case on this one too? You needy bastards! Fine! Kiely v. Graves.

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Posted in Adverse Possession, Blakely, Dependancy Gaurdianship Proceedings, Family Law, Firearms Enhancements, Noteworthy Articles, WA Supreme Court, Washington Legal News | 2 Comments »

Wiggins Winning Outside of Recount Margin

November 12, 2010

(Soon to be Justice) Charlie Wiggins has secured a healthy margin over Justice Richard Sanders in the race for the Washington State Supreme Court. Sanders currently leads by a healthy margin of 4,477 votes. The margin for a recount is 2,000.

I’ve said it before on this blog, and I’ll say it again, Wiggins will make an excellent justice.

Congratulations, Charlie! I am officially calling the election for you (despite having unofficially done so a week ago after reading projections).

Posted in Breaking Legal News, WA Supreme Court, Washington Legal News | Leave a Comment »

WA Supreme Court Race: Seattle Times Withdraws Endorsement of Richard Sanders; Endorses Wiggins

October 25, 2010

From the Seattle Times:

State Supreme Court justices Richard Sanders and James Johnson inflamed racial tensions with their remarks that African Americans are overrepresented in the state prison system because they commit more crimes. How disappointing these two legal minds were unable to offer more thoughtful, nuanced views about racial disparities in the criminal-justice system. African Americans make up 4 percent of the state population and 20 percent of state prisoners. An impressive body of evidence links the disproportionate numbers to drug-enforcement policies, poverty and racial biases throughout society.

Sanders and Johnson have worked in the judicial system long enough to be informed by these disparities and to know better. They missed by a wide mark an opportunity to lead a broader and smarter discussion.

This page takes the unusual step of withdrawing its endorsement of Sanders. The Seattle Times now supports lawyer Charlie Wiggins, who was a close call in our primary endorsement. We said then that Wiggins was fully qualified to serve on the bench and be a strong voice pushing back against government. At the time, Sanders’ support for state public-disclosure laws cinched his endorsement.

But Sanders’ latest remarks fall upon a trash heap of cringe-worthy conduct — the latest for ruling in a public-records case that could have affected a case of his own. In 2008, he called U.S. attorney general Michael Mukasey a “tyrant” to his face. Decades ago, Sanders dressed as a Nazi as a Halloween prank.

That is all.

Posted in Breaking Legal News, WA Supreme Court, Washington Legal News | Leave a Comment »

Jim Johnson is a Candidate for Injustice: Part 5

August 13, 2010

You’ve seen one post today on how Jim Johnson will put profits over people. Courtesy of the Stan Rumbaugh campaign, here’s another example of Jim Johnson’s skewed view and his take on whether same-sex couples should be allowed to marry. The Defense of Marriage Act is a sore subject for me, as the scare-mongering that went into this campaign really hurt, when some of the more stable couples I know are same-sex couples. In kudos to Justice Fairhurst, while I don’t agree with every opinion she had written, she had the courage to write a wonderful dissent on this case. It is one of the reasons I can say I was proud to have worked for her.  The junk science cited by the majority was especially problematic for me, and I’m sure for anyone who has read, and disagreed with, the opinion. Anyhow, here you go:

Contact: Brendan Williams, (360) 791-3979

 

A year ago today should have been the date that legislation finally giving domestic partners in Washington equal rights to married persons took effect. That date was of course delayed when activists forced the issue to a referendum before voters—ultimately celebrated on Election Day 2009 when Referendum 71 was approved by 53.15% of the electorate.

 

Of course, none of that would have been necessary had not exactly two years prior, on this day in 2006, the Washington State Supreme Court handed down a shockingly backwards decision in Andersen v. King County, the Defense of Marriage Act (DOMA) case.

 

The decision was devastating and infuriating for the families represented in the case, not to mention their loved ones and allies across the state, nation, and world.

But no one expected the ugliness that flowed from Justice Jim Johnson’s pen. Unsatisfied with the blockade, the Court’s opinion threw up against the basic rights of Washington’s LGBT community, Johnson wrote a separate concurring opinion that was an unadulterated distortion of our Constitution, science, and even established law. In his close-minded abuse of power he chided the minority’s defense of fundamental fairness as mere “political correctness”.

 

Johnson found that there was no unconstitutional infringement in the exclusive preference of heterosexual couples, and further found that the state had a compelling interest in regulating marriage to the limited definition. This was because of the “unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing.” The dissent pointed out that this made no sense whatsoever taken in light of all the childless straight couples and presented a problem for any barren or sterile straights who might want to marry, but Johnson paid no attention to the inconsistencies of his position.

 

Instead he repeatedly promoted the shocking procreation-centric position, and threw in some shop worn homophobic arguments for good measure:

  • He compared laws against gay marriage to laws against polygamy, and in fact posited that polygamists would be better positioned for recognition under the law because their relationship was based upon religion.
  • He suggested that finding statutes like DOMA an unconstitutional infringement would also make all marriages unconstitutional.
  • He found that same-sex parents were scientifically recognized as less-suitable parents.
  • He argued that DOMA was not a violation of constitutional rights because it didn’t prevent equal opportunity for heterosexual marriages for everyone—regardless of interest.

Underscoring the historical importance of the judicial branch in addressing individual and institutional discrimination in society, Johnson compares DOMA to the laws barring interracial marriage just a few generations ago. However, he attempted to draw a clear distinction between the two and calls the dissent “disturbing” for trying to link the two.

 

But make no mistake about it, they are cut out of the same legal cloth. Johnson writing, “The complementary nature of the sexes and the unique procreative capacity of one man and one woman as a reproductive unit provide one obvious and nonarbitrary basis for recognizing such marriage. The binary character of marriage exists first because there are two sexes,” is the same brand of poison dressed up as science as Judge Brazile’s “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. The fact that he separated the races shows that he did not intend for the races to mix,” in Loving v. Virginia in the sixties.

 

Indeed, this reminds that judicial decisions are inextricably linked to the key moments in society’s advancements. They can delay such moments and cling to regressive standards, or they can highlight the ways our Constitution and laws can drive communities forward into more inclusive and equal chapters.

 

Justice Johnson not only failed to seize his responsibility in that moment, but he led the charge in the opposite direction. His voice on the bench helped make Washington an argument for continuing the abuse of the personal liberty and legal protection of citizens when it is his very job to do the exact opposite.

 

For more information visit: www.johnsonsinjustice.com

 

For more information on Stan Rumbaugh visit: www.rumbaughforjustice.com

 

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Jim Johnson is a Candidate for Injustice: Part 4

August 13, 2010

In our continuing coverage of the ill-conceived opinions of Justice Jim Johnson, we bring you not one, not two, but four opinions. Why four? Because The Prof is taking a much-deserved vacation in the Methow Valley. This of course meant a day of just relaxing in Leavenworth, whereby I discovered the joy that is the Big Boy Brat. Throw some stone ground mustard and some sauerkraut on that bad boy and call it good.

Anyhow, here’s a few opinion for your perusal:

The first of the day: Davis v. Baugh, where, according to Jim, even though outdated precedent had run its course, had grown out of line with the statutory scheme, and shielded subcontractors no matter how badly they were negligent:

 

Date: July 23, 2010

 

Contact: Brendan Williams, (360) 791-3979

 

In 2007′s Davis v. Baugh, the Court got right to the heart of the matter: a man was killed due to the negligence of a company. Our judicial system is based upon the idea that punishing that kind of wrongdoing is not only fair, it is the only way to create a deterrent that helps prevent future criminal behavior. This point—that the court has a purpose in crafting strong language in the public interest—is critical to understanding the lengths Johnson was willing to go in his dissent, using dense legal language in an attempt to keep the company off the hook.

 

Baugh was a subcontractor who completed a subterranean pipe network for Glacier Northwest on a larger project. Glacier employed Alan Davis, who was sent to inspect the pipes when it was noticed, after installation, that they were leaking. As he was doing this, two ton-and-a-half portions of the pipe fell on him, crushing and killing him.

 

The portion of the pipes that failed was found to be structurally unsound. But for Baugh’s failure to recognize this before providing the pipes for installation, resulting in the predictable failure, Davis would still be alive.

 

His tragedy is easy enough to understand. What is not as easy to understand is the conflict that was created in the law when Alan Davis’s family sought justice in the courts.  Most perplexing of all was Johnsons’ refusal to help clarify the law in a way that gives working people like Alan Davis the protections they are entitled to in a situation like this.

 

The laws protecting victims from injury caused by another party’s negligence come to us from England centuries ago. They are called ‘common law’, and which is refined and updated by judges over the years. One such common law element at play in this case was the doctrine of completion and acceptance.

 

Completion and acceptance meant that once an independent contractor finished their work and it was accepted by the owner, liability for injuries ends.  This cutoff occurs no matter how negligently the work was performed. The court rejected this doctrine as “outmoded, incorrect, and harmful.”

 

Prior to this case, the Court hadn’t addressed the completion and acceptance issue for 40 years. In that 40 years our Legislature passed statutes which govern construction liability and created workplace safety regulations for the benefit of all working people. The very common law foundations of the completion and acceptance doctrine had been abandoned by the court, and the doctrine itself was rejected in 37 other states.  With the range of materials used and complexity of construction projects greatly expanded, the number and importance of subcontractors had steadily increased over the years. The very nature of the construction industry had changed.

 

That is why under modern law construction contractors are liable for injury or damage due to negligence after acceptance as long as it is reasonably foreseeable that the injury could occur.

 

Washington’s Supreme Court agreed, saying, “We have put the source of the obligation where it ought to be.”

 

It was necessary to place the obligation of responsibility for injury on negligent subcontractors to protect injured workers, bystanders, and other construction companies. The ancient legal scheme had run its course, and was superceded by new statutes and the development of the common law. But Johnson, per usual, sides with the negligent wrongdoers, not the victims or good public policy.

 

That part is expected. What is ironic is his sudden (misguided) concern about judicial activism. In his defense of keeping the company unaccountable for the death of Davis, Johnson argues that “without the stabilizing effect of stare decisis, “law could become subject to … the whims of current holders of judicial office.”

 

True, except for the fact that this decision moves Washington law in line with common sense, public interest, already changed legal precedent, and legislative updates. And unlike the manytimes Johnson has been accused of judicial activism, the Court here is advancing its own common law, not manipulating the intent of statutes created by the Legislature.

 

In an effort to fairly portray his position, it should be clear that Johnson also tries to make this case about “allow[ing] private contracting parties to continue to craft mutually beneficial and voluntary contract agreements for construction.” Of course, the majority takes the time to remind him this case is about tort law, not contract law, writing, “Thus, we respectfully disagree with the dissent that this case implicates any questions regarding contract interpretation in any way.”

 

But in the end, despite all the legal posturing, this case is very simply about preventing companies from negligently killing people with no accountability. The Supreme Court stood up and said it was wrong. Justice Johnson dissented.

 

His reason? “This rewriting of our law will cost consumers in the long run.” This is debatable, but before this, companies were allowed to kill people like Alan Davis for free.

 

For the opinions in this case, visit http://scholar.google.com/scholar_case?case=11653189741185350761&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

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Jim Johnson is a Candidate for Injustice: Part 3

August 11, 2010

We’ll keep them coming, up through election day. You deserve to know how Jim Johnson gets things wrong. From the Rumbaugh campaign, the ill-reasoned dissent in Ferry County, whereby [soon to be Ret.] Justice Jim Johnson poo-poos science:

Date: July 22, 2010

Contact: Brendan Williams, (360) 791-3979

In 2005’s Ferry County v. Friends of Ferry County, the County was updating its comprehensive plan. The Growth Management Hearings Board, trial court, appellate court, and Supreme Court all agreed “that Ferry County failed to demonstrate inclusion of best available science (BAS) in listing only two species as endangered, threatened, or sensitive (ETS) in its critical areas ordinance.” The County ignored the recommendations of other authorities, like the State Department of Fish and Wildlife which “recommended that Ferry County list 12 species as ETS.”

The Court found that the County’s decision-making process failed to incorporate “a sound, reasoned process which includes best available science.” Rather than using the State guidelines or other authority, the County exclusively relied on a local retired biologist. Before retiring he had spent his career out of state and for this project he  did not consult with local experts, employ on-site observations in data gathering, provide explanation of methodology or submit his findings to peer review.

The majority of the Supreme Court correctly stood up for Washington’s law, impartiality, and transparency.

Justice Johnson, however, could not support such a position.

Instead, Johnson authored a sarcastic dissent designed to undermine Washington’s important science-based environmental protections.

Despite the well-documented positions of the State’s Department of Fish and Wildlife, Johnson tries to spin the debate by claiming the majority’s “concern [with] the “environmental” groups” relies upon “undocumented species concerns” and reframes endangered species laws as an impossible requirement to “prove a negative”.

But Johnson doesn’t stop there:

“The result is analogous to requiring designation of critical habitat for the sasquatch, a species which the county and its biologist expert could not prove is not present. Repeated reports of sasquatch sightings do not, in my view, constitute “best available science” nor require counties to hire expensive experts to disprove its presence. As further noted below, this case is more extreme. Unlike the sasquatch, several of these supposed endangered species have no reported sightings in Ferry County.” [Emphasis added.]

Justice Chambers was so taken aback by Johnson’s dissent as to craft a majority concurrence specifically addressing the flaws:

“I am bemused by my learned colleague’s knowledge of “[r]epeated reports of sasquatch sightings”… [but]adopting the dissent’s position would require us to consistently substitute our judgment for the county and the growth management hearings board. That is not appropriate within our system of divided government.” [Emphasis added.]

Once again, Johnson’s toxic judicial activism prompted rebuke from his benchmates.

But neither the legislating from the bench nor the attack on science should come as a surprise to those familiar with his private practice work, where Johnson has history undermining endangered species protections.

Just the year before, Johnson had served as the attorney for big business—including campaign contributors the BIAW—in the Common Sense Salmon Recovery case, where he argued in federal court against the government in the matter inclusion of the Chinook Salmon on the Endangered Species List.

The June 2000 Fishermen’s News described opposition to the listing as spearheaded by “an extremist property rights legal defense group” and “a front for many of the industries who have profited handsomely from salmon habitat destruction over the years.”

In 2005 the U.S. District Court judge found attorney Johnson had failed to even state a valid claim worth trial—and simply dismissed the case on summary judgment.

The addition of a judicial robe obviously did not change Johnson’s views a year later.

Luckily in both cases Johnson was unsuccessful. But whether it be salmon, sasquatch or sprawl, environmental protections must rely on the most rigorous science in order to protect our resource economies, recreation, and health now and in the future. Our Supreme Court must join in this line of protection by impartially enforcing the laws as they come to them, not promoting personal ideological agendas at every turn.

See the Ferry County opinions here http://caselaw.findlaw.com/wa-supreme-court/1029981.html

See the Common Sense Salmon opinion here http://scholar.google.com/scholar_case?case=10824665907697403157&hl=en&as_sdt=2&as_vis=1&oi=scholarr

For more information, please visit http://www.rumbaughforjustice.com

I urge you all to donate if you can. Even if its only a couple dollars, now is the time that Stan has to push to get his message heard!

Posted in Politics, Rant, WA Supreme Court, Washington Legal News, Washington State Constitution | Leave a Comment »

Richard Sanders: Not Exactly a Model of Integrity

August 11, 2010

Those of you who read The Prof know that I often take issue with Sanders’ opinions. I also take issue with his apparent pre-judgment of issues, his lack of belief in a system to govern lawyers and judges, and his general view that anything goes in this society. Yes, he’s a true libertarian. But his version of libertarianism would equate to a legal system that does not have the support, respect, or trust required of such a system in order for it to function. We may live in a post-modern society, but there is no such ability to have a post-modern legal system.

Some helpful examples are provided by way of the Charlie Wiggins campaign:

• In 2005 Justice Sanders was disciplined by the Washington State Commission on Judicial Conduct for improperly personally interviewing sexually violent predators with cases pending before the Supreme Court. Nine judges unanimously agreed that Sanders’ conduct created an improper appearance that he might favor the sexually violent predators [In re Disciplinary Proceedings Against Sanders, 159 Wn.2d 517, 145 P.3d 1208 (2006)].

• Judges cannot decide a case in which they have an interest in the outcome, but in 2009, Justice Sanders wrote a majority opinion for the Court that directly benefited him, since he was a party in a very similar case on appeal. The Court was forced to withdraw the decision and hear argument again without Sanders [Yousoufian v. King County, 165 Wn.2d 439, 200 P.3d 232 (2009), on reconsideration, ___ Wn.2d ___ (3/25/10)].

• The justices of the Supreme Court make the final decision for all violations of lawyer ethics.  In 2007 Justice Sanders dissented from the decision of the 8 other justices to disbar a lawyer who sexually molested an 11 year old former client. Justice Sanders thought the lawyer should not be disbarred, but only suspended temporarily. [In re Disciplinary Proceeding Against Day, 162 Wn.2d 527, 173 P.3d 915 (2007].

I take special issue with Day, as I worked on this case. The lawyer’s conduct was a violation of the trust that is inherent with clients. Using the profession as a gateway to molestation is absolutely abhorrent.
Let’s not forget, Sanders was the candidate who, immediately after being sworn in, went to the steps of the legislature to deliver a speech to pro-lifers. For a libertarian, he sure has a funny way of involving himself in a woman’s right to choose.
Please vote for Charlie Wiggins in the upcoming election for Washington State Supreme Court. I’ve worked on cases where Charlie has handled the appeals. He is, arguably, the best appellate trial lawyer in the state. His analysis is superb. He is the right man for the job and will follow the law, as guided by principles of justice.

Posted in Rant, WA Supreme Court, Washington Legal News, Washington State Constitution | Leave a Comment »

Jim Johnson is a Candidate for Injustice: Part 2

August 11, 2010

In continuing our support of Supreme Court Candidate Stan Rumbaugh, we’d like to highlight another opinion where Jim Johnson got it wrong. As per the other posting, as a caveat, it must be noted that this analysis was provided by the Rumbaugh campaign. That said, I agree with this analysis.

Date: July 21, 2010

 

Contact: Brendan Williams, (360) 791-3979

 

The U.S. Census Bureau counts 937,000 Washingtonians living with disabilities and the challenges they bring. For years, Washington has led in strong access and anti-discrimination laws to serve this vulnerable population.

 

But Justice Jim Johnson put those laws and the people they protect at risk.

 

In the 2006 McClarty v. Totem Electric decision, involving a worker wrongfully terminated due to disability resulting from digging trenches, Justice Johnson rolled back 33 years of fundamental protections provided by the Washington Law Against Discrimination (WLAD).

 

As an attorney fighting for clients with disabilities, Stan Rumbaugh knows discrimination doesn’t belong in workplaces.  Washington law agreed until Justice Johnson rewrote it by incorporating less-protective federal standards in an end-run around our laws to prevent discriminatory wrongful termination (again see yesterdays injustice at http://www.johnsonsinjustice.com in an effort to shield a bad-actor corporation).

 

Curiously, Johnson argued that the Legislature, in beginning in 1973 to protect the “handicapped” (the WLAD term was changed to “disability” in 1993), must have intended all along to use the less protective definition of disability in the federal Americans with Disabilities Act–which wasn’t enacted until 1990.

 

Quoting a past dissenting opinion as guidance, Justice Johnson dismissively suggested stronger protections might apply to “a sprained finger or ankle”–and overturned as not “rational or sensible” the longstanding definition of the state agency, the Washington Human Right Commission, that enforces the WLAD.

 

Four justices disagreed, stating, “Rather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law[,]” and offered an explanation:

“Plainly enough, the true target of the majority’s dissatisfaction with the definition of ‘disability’ is not the potential disharmony between the [definitions]; rather, it is the scope of the Commission’s definition.”

 

Dissenting justices assailed Justice Johnson for adopting a federal definition not urged by any party, and suggested he should have followed the 1976 interpretation of his former employer, then-Attorney General Slade Gorton, who had argued for acceptance of a broad definition as support to good public policy designed to prevent and eliminate discrimination. But Johnson paid no attention to this or the effects of his judicial activism on disabled persons.

 

Luckily the Legislature recognized the risk and responded directly to Justice Johnson’s opinion by immediately passing a law making it clear it had always meant what it said about protecting those with disabilities.

 

Adopted in 2007, the bi-partisan Substitute Senate Bill 5340 passed the House 62-35 and the Senate 46-2 before being signed by Governor Chris Gregoire.  Significantly, after the judicial attempt to circumvent their policy goals, the original intent section made certain they would not be misunderstood again in future Courts by taking the rare step of directly rebuking Justice Johnson:

 

“The legislature finds that the supreme court, in its opinion in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006), overstepped the court’s constitutional role of deciding cases and controversies before it, and engaged in judicial activism by significantly rewriting the state law against discrimination. The legislature further finds that the law changed by the court is of significant importance to the citizens of the state, in that it determines the scope of application of the law against discrimination, and that the court’s deviation from settled law was substantial in degree. The legislature reaffirms its intent that the law against discrimination affords to Washington residents protections that are wholly independent of those afforded by the federal Americans with Disabilities Act of 1990, and rejects the opinion stated in McClarty v. Totem Electric.”

(Emphasis added).

 

Washington citizens—especially those vulnerable to abuse—cannot expect the Legislature step in to reverse every questionable 5-4 decision of Justice Jim Johnson.  Fortunately for all Washingtonians who deserve to live without fear of discrimination there is another check built into our system: Election Day on August 17th.

 

For the decisions in McClarty vs. Totem Electric see http://caselaw.findlaw.com/wa-supreme-court/1455630.html

 

For Substitute Senate Bill 5340, see http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5340&year=2007

 

Please visit http://www.johnsonsinjustice.com for more injustice by Johnsons

 

To learn more about Stan Rumbaugh for Justice visit http://www.rumbaughforjustice.com

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“Shocking” surveillance video of firefighter not so shocking, as it turns out.

August 9, 2010

It was in talking with my girlfriend that I first learned of the revisiting of Mark Jones’ case. I remember the firefighter that fell 15 feet down a pole shaft. I remember that his injuries were severe. I remember that this happened to someone before him, and the city didn’t correct the problem.

When she told me about this revisiting, she seemed a little appalled that someone could get so much money and be faking it. I explained he probably wasn’t faking it, that we were only getting half the story.

It turns out this was, as I guessed, only half the story. I wasn’t there for the jury verdict, but this wasn’t a case about his physical injuries. His physical injuries could be overcome with a pain pump, despite his lung capacity being that of an 80 year old. This was about what happened to Mark’s brain in the fall. The lawyers that represented Mark, Dick Kilpatrick and Todd Gardner, issued a statement deploring this tactic by the insurance companies to taint Mark’s case (of which he has yet to see a penny):

It is disappointing that ten months after the jury’s decision, the City of Seattle, AIG and ACE insurance file a new motion and misrepresent the case to the media before Mark could even respond in court.  That is unfair to Mark and to the jury who heard the real facts and decided his case last fall. Mark has not seen a dime of the verdict while the insurers appeal.  AIG and ACE’s action seems a thinly veiled attempt to unfairly pressure the trial judge, or prejudice the appeals court judges before they can know the facts of the case, or both. The videos released by the City of Seattle cannot show the full extent of Mark’s injuries, the biggest of which is a permanent brain injury.

Mark Jones was left permanently disabled when he got up to go to the bathroom at 3:00 am at a fire station and fell 15 feet down an unguarded hole onto a concrete floor. A previous firefighter fell down the same unguarded hole at that same station at 3:00 am in 1976.

Mark suffered head injuries, broke nine ribs, had a pierced lung, fractured several vertebrae and had several pelvic fractures, as well as bladder and liver injuries.  Mark worked very hard to recover physically and is now able to do most normal activities. Despite his hard work, Mark has the vital lung capacity of an average 80 or 90 year old, and permanent cognitive injuries. The City even had its own neuropsychologist examine and test Mark’s brain function. Then the City blocked that doctor from testifying because he too supported Mark’s case. The cognitive injuries made Mark totally disabled and was why the jury awarded him the substantial verdict.

Mark’s executive functions are badly affected, such as the ability to plan, remember, and follow through. He is impulsive and has impaired judgment, and his choices could physically hurt him or others, like his eight year old son. The brain injury is what made him unable to work and was not even addressed in the City’s video.  The City’s conduct and false accusations of fraud undermine justice, misrepresent the truth, and are in very poor taste. The City’s media blitz encourages people to mock someone with a brain injury or disability, which is what people who mock Mark in the video are doing.

The jury had all the facts – including the City of Seattle’s. The jury knew that with his pain pump Mark could physically do most every general activity. The jury heard testimony from multiple doctors and experts who all agreed that Mark was permanently disabled because of the brain injuries on top of his bodily injuries.

A juror wrote after seeing the supposedly shocking surveillance video and put it succinctly – I remember quite clearly why we found the city negligent and for what reasons we determined the amount of the verdict, none of which had anything to do with his ability to play bocce ball.

The old video deposition the City handed over as what Mark claimed at trial was a total falsehood. That video deposition couldn’t have misled any juror – the City chose not to show it or read it to the jury. The video deposition never could have had anything to do with the verdict. To falsely claim the jury was misled by this video deposition the jury never saw speaks to the City’s desperation. The only deception in this case has come from the City and its lawyers.

The greater story is how appallingly the City of Seattle continually honors its firefighters and police officers who put their lives on the line every day – right until the City negligently injures one of them. It then unfairly employs false character assassination to avoid accountability. Mark Jones was an Air Force Veteran, a police officer and then for several years a highly respected Seattle firefighter. He deserved far better than a dishonest media blitz from the City he served so well.

We here at The Amateur Law Professor applaud Mark Jones. In the face of a permanent brain injury, one which has robbed him of who he was, he has found the ability to dance, to play, to find some bit of happiness despite the knowledge that he will never be who he was. We applaud his ability to bounce back from such a catastrophic injury, to the point where he can move fairly freely as long as he has his pain pump.

What we do not condone is this tactic by the insurance company to take this away from the legal issues. The motion to vacate judgment should be judged on the issues, not in the court of public opinion. If you are going to put this kind of thing into the public eye prior to its resolution, you should know better than to misconstrue it. Mark’s injuries can’t be seen. Your attempt to play him off as some sort of fraud sickens me.

Moreover, it is my belief that such behavior borders on violating the Rules of Professional Conduct, which govern all lawyers in Washington State, specifically RPC 3.6, that a lawyer engaged in litigation shall not make an extrajudicial statement that the lawyer knows or should know would have a substantial likelihood of prejudicing a proceeding.

My hope is that the judge will see this tactic the way I do, and take appropriate action to ensure other’s don’t face the same misleading assault on their right to seek redress for the wrongs of others. All too often we hear from the insurance companies and their lobbyists about the need for tort reform. We hear about the need for personal responsibility. This knife you wield cuts both ways, and your attempt at deceit is nothing but your own attempt to avoid that responsibility.

 

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Posted in Breaking Legal News, Rant, Washington Legal News | 1 Comment »

Rumbaugh Throws Hat in for Supreme Court Bid Against Jim Johnson

June 9, 2010

In a bit of shake up for Washington Supreme Court elections this year, trial lawyer Stan Rumbaugh has decided to take on Justice Jim Johnson, one of the more junior justices. We at the Amateur Law Professor fully support and endorse Rimbaugh in his bid. While Jim Johnson has been an advocate for open government, his stance on many other issues just fall far to right of center in order to warrant his continued operation on the bench.

 

*EDIT* My apologies for getting Stan’s name wrong in the initial post. No offense was intended.

 

The full article from the Olympian after the jump.

 

 

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Posted in Breaking Legal News, Judicial Elections, WA Supreme Court, Washington Legal News | Leave a Comment »

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