Saturday, November 21, 2009

Practicing Law

Each lawyer has a different set of dreams and goals. Mine include wanting to help the little guy, take on some cases which other lawyers may fear as too hard or impossible, solve some tricky legal questions in a novel way, and then be recognized for a tough job well done. So, I guess, I wanted to be a hero (hopefully) and help “make some new law” by having a case reported in the law books as a “case of first impression.”

The promise of fees has never been the determining factor. Fitting cases usually involved modest or no fees at all. I recall a quote attributed to Abraham Lincoln—“do a good job practicing law and the fees will take care of themselves” or something like that. It’s true.

The “hero” thing probably came from watching black-and-white television shows growing up-- guys like Hop-a-Long Cassidy, Cisco Kid, and The Lone Ranger.

That, and perhaps also learning from some of the “classic” heroes-- like Don Quixote, Attorney Atticus Finch (Gregory Peck in "To Kill a Mockingbird"), Detective Harry Callahan (Clint Eastwood in "Dirty Harry" ), and Sheriff Will Kane (Gary Cooper in "High Noon"). Myths. The only real male hero in my life who was not a myth was my Dad.

The Ronda Reynolds case (posted earlier) got me to thinking about the civil cases I’ve handled that sort of fall into the category. Weird, but they all seem to involve death in some way—

1988-- Burkhart v. Harrod, 110 Wn.2d 381 (1988) involved a young man who had been killed when his motorcycle wrapped around a telephone pole after a wedding rehearsal dinner party. His blood alcohol level was almost twice the legal limit. He left a wife and small family. It seemed that somebody at the party could have taken his keys away or given him a ride. The cases in the State of Washington hold that surviving family members may sue a tavern owner, parents may sue those who provide booze to minors, and relatives of employees who were over-served at a company party could sue the employer. But no liability had yet been imposed upon a “social host” who over-served an obviously intoxicated guest. There is still no liability against social hosts, as we lost the appeal.

1989-- Halquist v. Department of Corrections, 113 Wn.2d 818 (1989) was sort of a ghoulish First Amendment type of case. I represented a journalist who wanted to video tape record the scheduled hanging of Charles Campbell, who had slit the throats of three women while he was in work release. The case was dismissed on grounds that there was no right to access the visual images of the hanging under the state constitution. The public would have to consider the death penalty in other ways.

1991-- Rabb v. McDermott, 60 Wn.App. 334 (1991) involved a guy named McDermott who died in a car wreck, leaving two twin boys known to be his. I represented a woman who stepped forward and claimed that her young boy was also a son, although McDermott was not named on the birth certificate and paternity had never been established. We filed a claim against the estate and sought to prove paternity against the deceased. Going without blood tests and in face of the “dead man statute” (which means you can’t use what the deceased said when alive if you might benefit in someway from those words). We prevailed, and a trust fund was set up for the third son.

2000-- Nelson v. Schubert, 98 Wn.App. 754 (2000) involved extreme domestic violence. Schubert was an insurance agent and reserve police officer who once said “Only stupid people get caught for murder.” He married younger Juliana Schubert and fathered two sons. The marriage was falling apart and Juliana was leaving him. She then disappeared without a trace, not taking her purse, car keys or other belongings. Police suspected him and even arrested him, but the lead detective died from leukemia. Schubert was released and never charged. Juliana’s mother asked me to file a wrongful death claim against the husband after the seven-year presumption of death kicked in. Based primarily upon his inconsistent statements, a jury found that he was the “slayer” and awarded the sons about $1,800,000 (although the sons fought us, too). Based upon his civil trial testimony (he should have remained silent, but just couldn't resist showing how smart he was), he was later charged and convicted of murder. (One of his sons committed suicide shortly after that).

2008-- Thompson v. Wilson, 142 Wn.App. 803 (2008) was where a husband, whose wife was leaving him the next morning, called 911 and reported that “my wife just committed suicide” by shooting herself in the back of her head. The sheriff declared the death a suicide and the husband was never prosecuted. I represented the mother of the wife, left to sue the coroner to change her daughter’s death certificate from “suicide.” That case is still in the works. So far, so good. The jury has said the death was not a suicide and that the coroner acted arbitrarily and capriciously. The coroner has refused to change the death certificate.

There is something big and serious about cases involving death—perhaps because they deal with the end of life. Maybe such cases give us an opportunity to respect and honor life, examine how death may come and what it leaves, or… maybe with death in the background we get a chance to see how we act before it.

Thursday, November 19, 2009

Parker's Ballroom

Parker's Ballroom on Aurora Avenue in North Seattle was already a northwest landmark when I moved to the area in the mid- 1960's. My new friends told me about it.

An album had been recorded there by Jimmy Hanna and "The Dynamics" and was hard to find. We found one copy and shared it but now it's long gone.

The record had some familiar instrumental hits on it including "Work Song" and "JAJ." That's what I liked about the band-- the horn section-- a trumpet and tenor sax. A couple of the garage bands I joined worked out our own versions of these hits. Still, the Dynamics were the model for me.

While I got to Parker's a few times, I never saw the Dynamics. Never saw Dave Lewis, either, but listened lots of times to him play "David's Mood" (another northwest standard) on his Hammond B 3.

A lot of big names played at Parker's over the years-- Ray Charles, The Beach Boys, BB King, Ricky Nelson, Guy Lombardo, Tina Turner, Tower of Power, Stevie Wonder, and many, many more.

The "big names" I saw there were Van Morrison and Them (when "Gloria" was their first big hit) and Doug Kershaw ("Louisiana Man"). Van Morrison had on a dark brown suit with a blue shirt which I thought was cool enough to imitate in a courtroom years later. I remember disliking Doug Kershaw because he embarrassed his bass player on stage in front of all of us-- we didn't hear the mistakes that Kershaw had to point out on stage in the middle of a song.

All the good northwest bands performed there, including-- Don & the Goodtimes, Paul Revere and the Raiders, Merilee Rush. But, I didn't see them at Parker's. Normana Hall in Everett was "our" place to go see and hear Northwest Bands, including Tiny Tony and the Statics. This is an excellent site for the history of all the northwest garage bands and more.

Parker's opened in 1930. "Like a few other local dance halls, it spanned all of the sequential musical eras from the wild jazz days of the Prohibition Era right on up through the forties swing scene, from the rise of rock ‘n’ roll in the fifties, to the psychedelic sixties, and onwards to the heavy metal, disco, and punk rock scenes of the seventies. Unlike most other historic dance halls though, Parker’s still stands."

Check out for more pictures of the Dynamics and a sound clip of JAJ.

UPDATEParker's Ballroom was demolished in December 2012.

Wednesday, November 11, 2009

Ronda Reynolds

Ronda Reynolds was born in 1965. She was the youngest female cadet accepted into the Washington State Patrol in 1985. Ronda served on patrol for almost 10 years. She resigned and later married Ron Reynolds, an elementary school principal in 1997.

On December 16, 1998, Ron Reynolds called 911 and reported that Ronda just "committed suicide." Lewis County Sheriff's Deputies found Ronda dead in her walk-in bathroom closest. She was lying on her left side, wearing pajamas, and was covered by an electric blanket with her head on a pillow. A second pillow covered her head. Her right hand was under the blanket and her left hand was clutching the blanket. She died from a single gunshot wound in front of her right ear. She was 33 years old.

A little over three years ago Marty Hayes called and asked me to meet Barb Thompson, Ronda's mother. Marty is founder and president of The Firearms Academy of Seattle. He had been working on the case for a couple of years and said Barb was looking for a lawyer to help her get some answers about her daughter's death.

The coroner changed his determination three times between 1998 and 2002 — to suicide from undetermined, then back to undetermined, and finally suicide.

The more they explained the case, the more unbelievable it seemed. For example, there were no fingerprints on the revolver. The husband had signed a $50,000 life insurance form and mailed it in with a premium right after Ronda's death. Jerry Berry, the lead homicide detective assigned to the case, believed the death scene was a "staged suicide." Berry kept working on the case but one day was suddenly ordered "off the case" and demoted back to patrol. He never quit working on the case-- even after he resigned from the Lewis County Sheriff's Department because of continuing harassment.

The probate had long been opened and closed and it was too late to file a wrongful death lawsuit against the husband. So, Marty pointed out an unused state law that allowed somebody like Barb to challenge a death certificate in court. It looked a little late for that, too, and although we were thrown out of court, we prevailed on appeal and were sent back to Lewis County Superior Court for a trial. The appeal is reported in Thompson v. Wilson, 142 Wn.App. 803 (2008) . Jury trial began on November 2, 2009.

This is from the Chehalis Chronicle--

A jury concluded Tuesday that Lewis County Coroner Terry Wilson's suicide determination in a death 11 years ago was incorrect. The unprecedented judicial review is the latest twist in the case of Ronda Reynolds, a former state patrol trooper who was found shot dead under an electric blanket in a walk-in closet at her Toledo home on Dec. 16, 1998.

Reynolds' mother Barbara Thompson has never agreed with the determination that her daughter committed suicide.She first filed a civil suit in 2006. Her case was facilitated by a state law passed in 1987 that allows the determination of coroners and medical examiners to be subjected to judicial review.

Ferguson called a ballistics expert, a forensic pathologist, former Sheriff's Office employees and friends of Reynolds to the stand.

(That's Dr. Jeffrey Reynolds--no relationship-- the reknown forensic pathologist, recalling where exactly in all the evidence he noted lividity, which supported his opinion that Ronda died earlier than when claimed by Ron Reynolds).

Jurors faced three questions, all of which they answered unanimously in favor of Thompson:

Question 1: Was the coroner’s determination of suicide accurate?Jury: No.

Question 2: Did you find the coroner’s determination of suicide more likely than not?Jury: Not likely.

Question 3: Did you find the coroner’s determination of suicide arbitrary and capricious?Jury: Yes.

The judge denied Thompson’s request to ask the jury whether the official cause of death could be changed to a homicide, saying there was no legal authority to make such a determination.

(Jerry Berry, Royce Ferguson, Marty Hayes)

The little guy can fight city hall. It's just not easy.

Wednesday, September 9, 2009

Arrogance of Power

The following excerpts are from a column written by Cal Thomas dated September 10, 2009, titled "The Reason for Our Discontent."

Who wrote the following: "We must learn to welcome and not to fear the voices of dissent. We must dare to think about 'unthinkable things' because when things become unthinkable, thinking stops and action becomes mindless."

A "right-wing extremist" didn't write these words, nor did a cable TV or radio talk show host. Sen. J. William Fulbright, the late Arkansas liberal Democratic senator and Bill Clinton mentor, wrote them in his 1966 book, "Arrogance of Power."

The arrogance of power and disdain for average Americans is what fueled much of the dissent expressed in town hall meetings. Growing numbers of people see a small cadre of government, academic and media elites caring nothing about them, except when it comes to their tax dollars. Many, especially those who are conservative and even worse, religious, are viewed by these elites as enemies of progress and sophistication.

In a letter to Henry Lee on Aug. 10, 1824, Thomas Jefferson wrote something that could be applied to the arrogant elites who have caused the rising anger in modern America: "Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depository of the public interests—"

Thursday, August 20, 2009

Law Book

In 1981 or so West Publishing Company (then the world's largest law book publisher) offered me a contract to write a volume on criminal law practice and procedure for use by Washington attorneys. I accepted and started to work, thinking the project would take about 90 days. It took over three years to write the manuscript, which I did while practicing law full-time during the day. The work was published in 1984. It has been cited as authority by both the Washington State Court of Appeals and Washington State Supreme Court.

To get the manuscript finished, I also hired a smart young lawyer named Jeff Gross, who helped quite a bit doing research. West also held the copyright on a lot of criminal law books from other states, so I had access to that material, too. I had been collecting a lot of legal forms from actual cases, which I wanted to include in the manuscript. Midge Wolff helped re-type the legal forms, and Della Wasson typed the manuscript. (Della also typed the manuscript for the 2nd and 3rd editions).

The manuscript resulted in volumes 12 and 13 of the Washington Practice Series. There are several thousand footnotes referring to Washington statutes, Washington cases, United States Supreme Court decisions and other laws and cases. The law is constantly changing through new and amended laws and old case decisions being followed, modified, distinguished or overruled in newer cases.

I now have an arrangement with the publisher to update the volumes each year. The updates are published as supplements to the bound volumes and are inserted into the back cover of the books.

Each year I am to read and summarize the newly enacted state statutes and amendments passed by the state legislature, as well as the Washington State Court of Appeals decisions (contained in the green "advance sheets"), Washington State Supreme Court decisions (contained in the yellow advance sheets), together with the United States Supreme Court decisions for the current session. "Advance sheets" are pamphlets containing the court decisions, available before the same decisions are compiled into bound books.

It's tedious, time-consuming, solitary work, but it's also satisfying-- sort of like taking your kid to get a new haircut and some school clothes before the beginning of a new school year. There is pride invested in the project. Plus, you want it to be accurate and true, as others will be relying upon it. It takes about 80 to 100 hours to do all the reading, summarizing and organizing. A 10-page court decision has to be summarized into a single sentence or phrase to be useful as a foot note. For example, a complex court decision might be summarized like this-- State v. Rathbun, 124 Wn.App. 372, 101 P.3d 119 (2004) (driver jumped out of vehicle and over fence and was 60 feet away from truck when arrested; search of truck was not incident to arrest).

Tuesday, August 18, 2009

Grill Cooking

My friend knows a lot about healthy cooking with fresh vegetables and how to spice up a meal.

So we went to the local supermarket to put some things together on the grill. I took my camera to photo-document some of the foods. Look at the colors of those vegetables. What a display!

There's also a small local fish market near the Everett waterfront. We bought some fresh oysters for grilling. I wanted to buy a new oyster knife rather than use a screw driver again. Next time I think I'll open the oysters and put them on the grill, rather than wait for the heat to open them.

We also got some tiger schrimp for grilling with some butter and garlic. Mmmmm....good.

This silver salmon was given to me by Clayton, who started me fishing this season. The Coke can is in there to show the size of that fish! I just put it on a boat of aluminum foil and it barely squeezed in under the hood of the grill-- no spices, no butter, no garnish. It was great!

There is other grilling that I've done and have planned this summer. We even went to the movie about Julia Child and I've been inspired to do something other than always drive through McDonald's, although there's a time and place for everything.

There are some U-Pick blueberry fields around here, and the berries taste real good with Bar-B-Q chicken.

Thursday, August 6, 2009

Health Care Bill

There's so much discussion about the contents of the proposed "health care" bill that I decided to try to work my way through it. Yes, it's over 1,000 pages. Yes, it's complicated and would take months to figure it out. Yes, I see a lot of constitutional issues, including privacy rights, property rights, separation of powers issues, and 10th Amendment rights reserving power to the states and to the people. This chart is probably pretty close to accurate. (Left click on chart to enlarge it).

It appears to me that many of the complaints about the proposed legislation are well-founded, and that this is definitely a move for national health care and elimination of individual policies and protections. No, I would not support this legislation at all. There's too much in the text of the bill to address it all. Below are some excerpts of the actual text, which I have high-lighted in red. It would be best to read the actual text of the bill yourself. Here's the link to the actual text of the proposed house bill: and here's the link to the analysis done by Duke Professor John David Lewis in plain english, which does a better job than me, but which does confirm the suspicions I found on my own by reading the bill:
Selected excerpts I found pertinent--
3 A QHBP offering entity is required to comply with
4 standards for electronic financial and administrative
5 transactions
under section 1173A of the Social Security
6 Act, added by section 163(a).
* * *
4 —Subject to the succeeding provisions of
5 this section, for purposes of establishing acceptable cov
6 erage under this division, the term ‘‘grandfathered health
7 insurance coverage’’ means individual health insurance
8 coverage that is offered and in force and effect before the
9 first day of Y1 if the following conditions are met
11 (A) IN GENERAL.—Except as provided in
12 this paragraph, the individual health insurance
13 issuer offering such coverage does not enroll
14 any individual in such coverage if the first ef
15 fective date of coverage is on or after the first
16 day of Y1.

* * *
11 (A) IN GENERAL.—The Commissioner
12 shall establish a grace period
whereby, for plan
13 years beginning after the end of the 5-year pe
14 riod
beginning with Y1, an employment-based
15 health plan
in operation as of the day before
16 the first day of Y1 must meet the same require
17 ments as apply to a qualified health benefits
18 plan
under section 101
* * *
1 (1) IN GENERAL.—Individual health insurance
2 coverage that is not grandfathered
health insurance
3 coverage under subsection (a) may only be offered
4 on or after the first day of Y1 as an Exchange-par
5 ticipating health benefits plan.

* * *
23 (1) DEDICATED PAYMENTS.—There is hereby
24 appropriated to the Trust Fund amounts equivalent
25 to the following:

2—The amounts re
3 ceived in the Treasury under section 59B of the
4 Internal Revenue Code of 1986 (relating to re
5quirement of health insurance coverage for indi

9 amounts received in the Treasury under section
10 3111(c) of the Internal Revenue Code of 1986
11 (relating to employers electing to not provide
12 health benefits).

15—The amounts received in the Treasury
16 under section 4980H(b) (relating to excise tax
17 with respect to failure to meet health coverage
18 participation requirements).

* * *
16 posed under this section shall not be treated as tax
17 imposed
by this chapter for purposes of determining
18 the amount of any credit under this chapter or for
19 purposes of section 55.

* * *

17 ‘‘(1) CIVIL PENALTIES.—In the case of any em
18 ployer who fails
(during any period with respect to
19 which the election under subsection (a) is in effect)
20 to satisfy the health coverage participation require
21 ments with respect to any employee, the Secretary
22 may assess a civil penalty against the employer of
23 $100 for each day in the period beginning on the
24 date such failure first occurs and ending on the date
25 such failure is corrected.

* * *
23 TIONAL FAILURES.—In the case of failures
24 which are due to reasonable cause and not to
25 willful neglect
, the penalty assessed under para-
1 graph (1) for failures during any 1-year period
2 shall not exceed the amount equal to the lesser
3 of—
4 ‘‘(i) 10 percent of the aggregate
5 amount paid or incurred by the employer
6 (or predecessor employer) during the pre
7ceding taxable year for group health plans,
8 or
9 ‘‘(ii) $500,000.

* * *
20 ‘‘(a) TAX IMPOSED
.—In the case of any individual
21 who does not meet the requirements of subsection (d) at
22 any time during the taxable year, there is hereby imposed
23 a tax equal to 2.5 percent of the excess of—
1 ‘‘(1) the taxpayer’s modified adjusted gross in
2 come for the taxable year, over
3 ‘‘(2) the amount of gross income specified in
4 section 6012(a)(1) with respect to the taxpayer.
‘‘(2) NONRESIDENT ALIENS.—Subsection (a)
2 shall not apply to any individual who is a non
3 resident alien.

* * *
17 ‘‘(a) GENERAL RULE.—In the case of a taxpayer
18 other than a corporation, there is hereby imposed (in addi
19 tion to any other tax imposed by this subtitle) a tax equal
20 to—
21 ‘‘(1) 1 percent of so much of the modified ad
22 justed gross income of the taxpayer as exceeds
23 $350,000 but does not exceed $500,000,
1 ‘‘(2) 1.5 percent of so much of the modified ad
2 justed gross income of the taxpayer as exceeds
3 $500,000 but does not exceed $1,000,000, and
4 ‘‘(3) 5.4 percent of so much of the modified ad
5 justed gross income of the taxpayer as exceeds
6 $1,000,000.

* * *
‘‘(A) REPORTING.—Any person who is re
2 quired, but fails, to meet a reporting require
3 ment
of paragraphs (1) and (2)(A) of sub
4 section (f) is subject to a civil money penalty of
5 not more than $10,000 for each day for which
6 reporting is required to have been made.

7 ‘‘(B) DISCLOSURE.—Any physician who is
8 required, but fails, to meet a disclosure require
9 ment
of subsection (f)(2)(B) or a hospital that
10 is required, but fails, to meet a disclosure re
11 quirement of subsection (f)(2)(C) is subject to
12 a civil money penalty of not more than $10,000
13 for each case
in which disclosure is required to
14 have been made.

* * *
22 (9) LANGUAGE SERVICES.—The term ‘‘lan
23 gauge services’’ means provision of health care serv
24 ices directly in a non-English language, interpreta
25 tion, translation, and non-English signage

* * *
the Secretary shall include
12 quality measures on end of life care and ad
13 vanced care planning that have been adopted or
14 endorsed by a consensus-based organization

* * *
1 ‘‘(i) IN GENERAL.—Subject to clause
2 (ii), a qualifying ACO that meet or exceeds
3 annual quality and performance targets for
4 a year shall receive an incentive payment

5 for such year equal to a portion (as deter
6 mined appropriate by the Secretary) of the
7 amount by which payments under this title
8 for such year relative are estimated to be
9 below the performance target for such
10 year, as determined by the Secretary. The
11 Secretary may establish a cap on incentive
12 payments for a year for a qualifying ACO

* * *
4 DEFINED.—For purposes of this subsection, the
5 term ‘targeted high need beneficiary’ means a
6 high need beneficiary who, based on a risk score
7 as specified by the Secretary
* * *
11 ‘‘(4) LIMITATION ON REVIEW.—There shall be
12 no administrative or judicial review
under section
13 1869, section 1878, or otherwise, respecting—
* * *
‘‘(v) LIMITATION.—In no case shall
12 more than 20 full-time equivalent addi
13 tional residency positions be made available
14 under this subparagraph with respect to
15 any hospital.

* * *
8 ‘‘(10) The Secretary may disenroll, for a period of
9 not more than one year for each act, a physician or sup
10 plier
under section 1866(j) if such physician or supplier
11 fails to maintain and, upon request of the Secretary, pro
12 vide access to documentation
relating to written orders or
13 requests for payment for durable medical equipment, cer
14 tifications for home health services, or referrals for other
15 items or services written or ordered by such physician or
16 supplier under this title, as specified by the Secretary.’’

* * *
For purposes of law
18 enforcement
activity, and to the extent consistent with ap
19 plicable disclosure, privacy, and security laws, including
20 the Health Insurance Portability and Accountability Act
21 of 1996 and the Privacy Act of 1974, and subject to any
22 information systems security requirements enacted by law
23 or otherwise required by the Secretary, the Attorney Gen
24 eral shall have access, facilitation by the Inspector General
25 of the Department of Health and Human Services, to
1 claims and payment data
relating to titles XVIII and XIX,
2 in consultation with the Centers for Medicare & Medicaid
3 Services or the owner of such data.’’

* * *
9 not eligible for payment
under subsection (a) for a
10 calendar quarter beginning after the date of the en
11actment of this subsection if eligibility standards,
12 methodologies, or procedures under its plan
13 this title (including any waiver under this title or
14 under section 1115 that is permitted to continue ef
15 fect) that are more restrictive than the eligibility
16 standards, methodologies, or procedures, respect
17 tively, under such plan (or waiver) as in effect on
18 June 16, 2009.

* * *
GENERAL.—A State is not eligible
2 for payment
under subsection (a) for a calendar
3 quarter beginning on or after the first day of
4 Y1 (as defined in section 100(c) of the Amer
5 ica’s Affordable Health Choices Act of 2009), if
6 the State applies any asset or resource test
7 determining (or redetermining) eligibility of any
8 individual on or after such first day

* * *
10 A State is eligible for Federal funds under the provi
11 sions of the Public Health Service Act (42 U.S.C. 201 et
12 seq.) only if the State—
13 (1) agrees
to be subject in its capacity as an
14 employer to each obligation under division A of this
15 Act and the amendments made by such division ap
16 plicable to persons in their capacity as an employer;
17 and
18 (2) assures that all political subdivisions in the
19 State will do the same