Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 1 of 100
Exhibit A

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 2 of 100 ,.

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IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON

COUNTY OF SKAGIT

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9

JOSEPH JEROME WILBUR, a Washington resident; JEREMIAH RAY MOON, a

11 2 01156 'l
NO.

10 Washington resident; and ANGELA MARIE

MONTEGUE, a Washington resident,

COMPLAINT FOR INJUNCI'IVE AND

11 individually and on behalf of all others

DECLARATORY RELIEF

similarly situated, 12

Plaintiffs,
13

14

v.

15 CITY OF MOUNT VERNON, a Washington municipal corporation; and CITY OF
16 BURLINGTON, a Washington municipal corporation,
17
Defendants. 18

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20

Plaintiffs Joseph Jerome Wilbur, Jeremiah Ray Moon, and Angela Marie Montague

21 ("Plaintiffs"), by and through their respective undersigned counsel, upon knowledge with

22 respect to their own acts and circumstances, and on information and belief as to other matters,

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23 allege as follows:

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24

I. INTRODUCTION

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1. The Sixth and Fourteenth Amendments to the United States Constitution and

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26 Sections 3 (due process), 12 (equal protection), and 22 (right to counsel) of Article I of the

I

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - I

f

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TERRELL ~ ! AI\SHALL DAUDT & Wll.I.IE PLLC
U3l! NoM 34th Slroel, Sulo ~00

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I

Seoll••. Woshi"9IVP 9610Hl66G TEl. 206.016.\IOOJ • FAX 2!MI.350.3528

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www.lmclwt.w.rom

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Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 3 of 100

Washington State Constitution guarantee indigent persons charged with crimes the right to

2 effective assistance of counsel. This right is fundamental and is essential to a fair trial. See

3 Gideon v. Wainwright, 372 U.S . 335, 342-45, 83 S. Ct. 792,9 L. Ed. 2d 799 (1963);

4 Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

5

2. Defendant City of Mount Vernon ("Mount Vernon") and Defendant City of

6 Burlington ("Burlington") (collectively "Defendants") have a constitutional duty to operate a

7 public defense system that provides effective assistance of counsel to indigent persons charged

8 with crimes.

9

3. Mayor Bud Norris is the executive officer of Mount Vernon and is responsible

LO for the execution ofpolicies set by Mount Vernon's city council. Mayor Norris is assisted in

11 the performance of his duties by Project Administrator Eric Stendal and City Attorney Kevin

12 Rogerson. The members of Mount Vernon's city council are Bob Fiedler, Joe Lindquist, Scott

13 McMullen, Gary Molenaar, Ken Quam, Dale Ragan and Mike Urban.

14

4. Mayor Edward J. Brunz is the executive officer of Burlington and is responsible

15 for the execution of policies set by Burlington's city council. Mayor Brunz is assisted in the

16 performance of his duties by City Attorney Scott G. Thomas. The members of Burlington's

17 city council are Ted Montgomery, Edie Edmundson, Joanne Valentine, Tonya Bieche, Chris

18 Loving, Bill Aslett and Steve Sexton.

19

5. The mayors of Mount Vernon and Burlington, the mayors' assistants, and the

20 city council members are responsible for establishing, implementing, and maintaining their

21 public defense system.

22

6. Defendants, under the direction of their respective mayors and city councils,

23 have breached their constitutional duties by operating a public defense system that regularly

24 and systematically deprives indigent persons of the right to assistance of counsel. Among other

25 things, Defendants have failed to impose reasonable caseload limits on public defenders, have

26 failed to monitor and oversee the public defense system, have failed to provide adequate funds

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 2

TERRELL ;9\13A6RNSoHnhA3L4L111DSAtrUeeDl,TS&uiteW•oIoLLI£ PLLC S•a:Ue. Wo•M•og:on 981 03-80(;9 TEL e 1Ct S1 66~J • FAX 208.350 3528 - .lmcHII8w com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 4 of 100

for public defense, and have failed to provide representation at all critical stages of prosecution.

2 As a result of these systemic and structural deficiencies, Defendants have constructively denied

3 indigent defendants of the right to counsel that is guaranteed under Gideon.

4

7. Defendants, through their officers, representatives and employees, have known

5 of the structural deficiencies of their public defense system for many years. Numerous

6 complaints have been lodged regarding Richard M. Sybrandy and Morgan M. Witt, both of

7 whom have long provided the primary public defender services for MoWtt Vernon and

8 Burlington Wtder contracts with Defendants. Those complaints detail a systemic denial of the

9 constitutional right to assistance of counsel. Furthermore, Sybrandy and Witt have submitted

I0 reports to Defendants showing that each attorney handles between 950 and 1,150 public

11 defense cases per year, if not more, while also maintaining a busy private practice.

12 Remarkably, Defendants' contract with Sybrandy and Witt allows each attorney to handle up to

13 l,200 cases per year even though such a caseload is three times the maximum allowable

14 amoWtt for a full-time public defender pursuant to standards established by the Washington

15 State Bar Association. Despite being aware of the extensive number of indigent defendants

16 who need assistance of counsel each year, Defendants have failed to provide adequate funding

17 for their public defense system.

18

8. Despite knowing of the deficiencies in their public defense system, Defendants

19 have failed to take reasonable steps to protect the constitutional rights of indigent persons.

20 Indeed, Defendants recently chose to extend their contract with Sybrandy and Witt by two

21 years.

22

9. Indigent persons have suffered and continue to suffer harm as a result of

23 j Defendants' violations of constitutional rights. Among other things, indigent persons are

24 deprived of adequate consultation and communication with their attorneys; indigent persons

25 must make decisions about their rights or contest issues without adequate factual or legal

26 investigation by their attorneys; indigent persons are deprived of meaningful opportunities to

COMPLAINT FOR INJUNCTIVE AND i DECLARATORY RELIEF- 3

TERRELL l\f.4.RSHALL DAUDT & WILI.I£ J'LLC 936 Honll341h Sbeol, Sun.t o100
Soan!• . Washinglon 98 1C3·6869 TEL. 2(<€ 81 6 6603 • FAX 208.350 3528
www.lrnclwtllwcom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 5 of 100

present defenses; the rights of indigent persons are waived without proper consultation and

2 advice; indigent persons are deprived of the services of investigators and expert witnesses; the

3 cases of indigent persons are not properly prepared for trial; and indigent persons do not

4 receive meaningful benefits in exchange for guilty pleas.

5

10. Pursuant to 42 U.S.C. § 1983, the Sixth and Fourteenth Amendments to the

6 United States Constitution, and Sections 3, 12, and 22 of Article I ofthe Washington State

7 Constitution, Plaintiffs bring this class action lawsuit to ask this Court for injunctive and

8 declaratory relief to prevent further violations and to protect the constitutional rights of all

9 indigent persons charged with crimes in the municipal courts of Mount Vernon and Burlington.

10

II. JURISDICTION AND VENUE

11

11. The Court has jurisdiction over this action pursuant to 42 U.S.C. § 1983 in that

12 this is an action for deprivation of rights, privileges and immunities secured by the United

13 States Constitution.

14

12. The Court has jurisdiction over this action pursuant to Article IV, Section 6 of

15 the Washington State Constitution and RCW 2.08.010 in that this is a case in equity.

16

13. The Court has jurisdiction over this action pursuant to Article IV, Section 6 of

17 the Washington State Constitution and RCW 2.08.010 in that exclusive jurisdiction over this

18 matter has not been vested in some other court.

19

14. Venue is proper in this Court pursuant to RCW 4.12.025(1) because Defendants

20 are located and reside in Skagit County.

21

Ill. THE PARTIES

22

15. Plaintiff Joseph Jerome Wilbur is an indigent person who has been charged with

23 crimes in Burlington Municipal Court. Plaintiff Wilbur bas been assigned a public defender

24 and, as of the date of the filing of this complaint, that public defender was Richard Sybrandy.

25 PlaintiffWiJbur's case in Burlington Municipal Court is currently pending.
26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 4

TERRELL l&\I:1A6fNtSoHMA3L4L1hDsA...I..'D,.Ts&~W40I0Lli£ PLLC S.om.. Wosh1ngton 11.11103-81188 TEl. 206.816 6603 • FAX2oe 350.3528 www tmdwllw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 6 of 100

16. Plaintiff Jeremiah Ray Moon is an indigent person who has been charged with

2 crimes in Mount Vernon Munkipal Court. Plaintiff Moon has been assigned a public defender 3 and, as of the date of filing of this complaint, that public defender was Morgan Witt. Plaintiff

4 Moon's case in Mount Vernon Municipal Court is currently pending.

5

17. Plaintiff Angela Marie Montague is an indigent person who has been charged

6 with crimes in Burlington Municipal Court. Plaintiff Montague has been assigned a public

7 defender and, as of the date of the filing ofthis complaint, that public defender was Morgan

8 Witt. PlaintiffMontague has been sentenced in relation to the charges filed in Burlington

9 Municipal Court, but her case remains in active status because she has the right to seek in-

10 patient treatment in lieu ofjail time.

II

18. Defendant City of Mount Vernon is a Washington municipal corporation located

12 in Skagit County.

13

19. Defendant City of Burlington is a Washington municipal corporation located in

14 Skagit County.

15

IV. CLASS ACTION ALLEGATIONS

16

20. Plaintiffs Wilbur, Moon, and Montague (collectively, the "Class Plaintiffs")

17 bring this action pursuant to Civil Rule 23(a) and (b)(2) on behalfofthemselves and all others

18 similarly situated (collectively the "Class Members") as members of the following proposed

19 plaintiff class (the "Class"):

20

All indigent persons who have or will have criminal cases

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pending in the municipal courts of either Mount Vernon or Burlington, who are appointed an anomey, and who have not

entered into a plea agreement or been convicted.

22

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21. The Class is so numerous that the individual joinder of all members is

24 impracticable. At any point in time, scores of indigent persons with criminal cases pending in

25 the municipal courts of Mount Vernon or Burlington rely on appointed counsel for legal

representation.
26

22. There are questions of law and fact common to the Class.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 5

TERRt:LL MARSHALL DAUDT & WILLI£ PLLC
9:l6 Non1134th Stroot S..Kt 400 Se&HI• . Wasnington 96103-6669 TEt / Oil 816 6603 o FAX 206 350 3528
- .tmdwlaw.mm

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 7 of 100

23. The questions of law and fact common to all members of the Class include but

2 are not limited to: (a) whether Defendants have a duty to provide indigent persons charged with

3 crimes with assistance of counsel; and (b) whether Defendants have breached their duties.

4

24. The Class Plaintiffs' claims are typical of the claims of the Class.

5

25. The Class Plaintiffs will fairly and adequately protect the interests of the Class.

6 There are no conflicts of interest between the Class Plaintiffs and other Class Members. The

7 Class Plaintiffs will vigorously prosecute this action on behalf of the Class. The Class

8 Plaintiffs are represented by competent counsel who will vigorously prosecute the case on

9 behalfof the Class.

10

26. Defendants have acted or refused to act on grounds generally applicable to the

11 entire Class.

12

27. The claims asserted herein are capable of repetition while evading review.

13 There is a continuing and substantial public interest in these matters.

14

V. FACTS ENTITLING PLAINTIFFS TO RELIEF

15 A. 16

Defendants' Duty to Provide Effective Assistance of Counsel for Indigent Persons Charged with Crimes

17

28. The Sixth and Fourteenth Amendments to the United States Constitution and

18 Sections 3, 12, and 22 of Article I of the Washington State Constitution guarantee to every

19 indigent person charged with a crime the right to effective assistance of counsel.

20

29. Each Defendant has a constitutional duty to provide every indigent person

21 charged with a crime in that city's municipal court with effective assistance of counsel.

22

30. The Washington State Legislature has specifically found that effective legal

23 representation should be provided for all indigent persons where the right to counsel attaches:

24 "The legislature finds that effective legal representation should be provided for indigent

25 persons and persons who are indigent and able to contribute, consistent with the constitutional
26 requirements of fairness, equal protection, and due process in all cases where the right to

counsel attaches." RCW 10.101.005.

COMPLAfNT FOR INJUNCTIVE AND DECLARATORY RELIEF - 6

TERRELL MARSHAJ. L DAUDT & WILUE I'LL(' Sl361+;w!h :14111 Sl,...ol, Su•t• .00
SMIIMI. w..~ in~U>n 9810 3-8869
T£L. 206.816 5003 • FAX 21)6 350.3!">28
Wtii'W.~w c::om

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 8 of 100

1

31. Washington law requires cities to adopt specific standards for the delivery of

2 public defense services and provides that "the standards endorsed by the Washington State Bar

3 Association for the provision of public defense services may serve as guidelines to contracting

4 authorities." RCW 10.101.030. A copy of the standards endorsed by the Washington State Bar

5 Association for the provision of public defense services (the "WSBA Standards") is attached

6 hereto as Exhibit A.

7

32. Defendants have failed to comply with RCW 10.101.030. Instead, Defendants

B have established a public defense system that falls short of the requirements ofRCW

9 I0.101.030 and deviates in important respects from the WSBA Standards.

10 B. Overview of Defendants' Publlc Defense Contract System

11

33. For nearly a decade, Defendants have jointly maintained a contract system of

12 providing for the defense of indigent persons charged with crimes in the municipal courts of

13 Mount Vernon and Burlington.

14

34. Under that system, Defendants have contracted with two attorneys-Richard

15 Sybrandy and Morgan Witt-to provide all indigent defense services in the municipal courts of

16 Mount Vernon and Burlington except where those attorneys detennine there is an actual legal,

17 ethical or professional conflict of interest as prohibited by RPC 1.6- 1.8.

18

35. The current contract between Defendants and Sybrandy/Witt is dated January I,

19 2009 and titled as follows:

20

City ofMount Vernon

21

City ofBurlington

Public Defense Services 2009-2010

22

Contract for Services

23 (the "Contract"). A copy of the Contract is attached hereto as Exhibit B.

24

36. On December 15, 2010, pursuant to the First Amendment to City of Mount

25 Vernon and City of Burlington Public Defense Services Contract (the "Amendment"),

26

COMPLAINT FOR fNJUNCTIVE AND DECLARATORY RELIEF -7

TERRELL MARSHALL DAt:DT &: Wllllli PLLC
836 Nonlr 3-4Ur Slrnl, SUite 4()()
S -. WQ!hingtoo 9a103-&889 TEL. 206 116 66v3 • FAX 206 350.3528
www.lmllwtaw.corn

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 9 of 100

Defendants and Sybrandy/Witt agreed to extend the duration of the Contract by two years to

2 December 31, 2012. A copy of the Amendment is attached hereto as Exhibit C.

3

37. Under the Contract, Sybrandy and Witt arc referred to as the single "Public

4 Defender." The Public Defender's clients include all indigent persons who are assigned to the

5 Public Defender by the City of Mount Vernon, the City of Burlington, the Office of Assigned

6 Counsel, or the municipal courts of Mount Vernon and Burlington.

7

38. Pursuant to the Contract, Mount Vernon pays Sybrandy/Witt (as the Public

8 Defender) "$117,400/year for combined services, or $121,750/year if arraignment is necessary

9 as described [in the Contract]." Burlington pays Sybrandy/Witt (as the Public Defender)

10 "$57,600/year for combined services, or $60,750/year if arraignment is necessary as described

11 [in the Contract]." The Contract provides "[t]he Public Defender shall invoice each City on a

12 monthly basis," and "[t]he cities shall divide each monthly amount equally between each

13 primary defender who is a signatory to [the Contract]."

14

39. Pursuant to the Contract, the Public Defender "shall provide adequate

15 investigative, paralegal, and clerical services and facilities necessary for representation of

16 indigent defendants," and these services shall be paid out of the compensation provided to the

17 Public Defender. Likewise, "[a]dministrative expenses shall be paid out ofcompensation

18 provided to the Public Defender." Finally, expert services must be paid out of the Public

19 Defender's compensation unless those services have been approved by a court.

20 c.
21

Defendants Ha'\'e Failed to Impose Reasonable Caseload Limits on Sybrandy and Witt

22

40. Defendants have failed to impose reasonable caseload limits on Sybrandy and

23 Witt. As a result, the indigent defense caseloads of Sybrnndy and Witt are excessive.

24

41. The WSBA Standards provide that"[a] case is defined as the filing of a

25 document with the court naming a person as defendant or respondent, to which a public defense

26 attorney is appointed in order to provide representation."

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 8

TERRELL MARSHALL DAUDT & WILLI£ PLLC
D36 Nc!M34th Sb'oel, Sullo ~00
Sealt!e, W ashington 9811Xl-1861 TEL 206 8 16.66~ 3 • FAX 20~U50 J528
www.tniCIWIIowoom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 10 of 100

42. The WSBA Standards provide that "[t)he caseload of a full-time public defense

2 attorney or assigned counsel shall not exceed ... 300 misdemeanor cases per attorney per

3 year." This caseload "may be adjusted to no more than 400 cases depending upon .. . [t]he

4 caseload distribution between simple misdemeanors and complex misdemeanors."

5

43. The WSBA Standards provide that "[i]njurisdictions where assigned counsel or

6 contract attorneys also maintain private law practices, the contracting agency should ensure that

7 attorneys not accept more cases than they can reasonably discharge. In these situations, the

8 caseload should be based on the percentage of time the lawyer devotes to public defense."

9

44. Sybrandy and Witt spend a substantial amount of their professional time on

10 private practice. This includes both criminal cases and civil cases for paying clients.

11

45. On the legal directory Avvo.com, Sybrandy lists his "Practice Areas" as follows:

12 "40% Family"; "20% Criminal Defense"; "20% DUI/DWI"; "10%

13 Construction/Development"; "5% Landlordffenant"; and "5% Foreclosure." On his website,

14 \\Ww.sybrandv-law.org, Sybrandy also lists "Bankruptcy" as a practice area.1

15

46. On the legal directory Avvo.com, Witt lists his "Practice Areas" as follows:

16 "67% Litigation" and "33% Criminal Defense." On his website, www.lcgahvitt.com, Witt lists

17 the following practice areas in this order: "Civil Disputes"; "Real Estate Matters"; "Estate

18 Planning Services"; "Dissolutions/Divorces"; "Traffic lnfractions"; "D.U.L"; and "Criminal 19 Matters."2

20

47. Pursuant to the WSBA Standards, the caseload limit for an attorney who devotes

21 only 33 percent ofhis time to public defense work is 100 to 133, depending on the complexity

22 of those cases.

23

48. The public defense caseloads of Sybrandy and Witt greatly exceed the limits

24 established by the WSBA Standards. In 2010, Sybrandy handled more than 950 public defense 25 26 1Websites last v1sited on June 8, 2011.
~ Websites last visited on June 8, 2011.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 9

TERRELL MARSIIALL DAI!DT & WILLIE PLLC
--cam 938 NMh:Wih Stroer, sune AOO
SeetM . 1/\'ashongtO<l 98103-8869
TEL 20f Stti 6603 • FAX 206 350 3528

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 11 of 100

cases, and Witt handled more than 1,150 public defense cases. These figures are limited to

2 cases involving indigent defendants and do not include the criminal or civil cases that Sybrandy 3 and Witt handled for private clients. On information and belief, Sybrandy and Witt had

4 similarly large public defense caseloads in prior years.

5

49. Defendants have knowingly permitted the public defense caseloads of Sybrandy

6 and Witt to exceed the WSBA standards. Indeed, the Contract specifically allows each attorney

7 to handle as many as I ,200 cases per year. This is because Defendants only grant " 1/3" of a

8 case credit for the following charges: driving while license suspended third degree (first two

9 offenses); theft third degree (first two offenses); NVOL without identification (first three

10 offenses); malicious mischiefunder $50 (first offense); unlawful issuance of bank checks; or

11 any other "misdemeanor case of similar complexity as determined by the Contract

12 Administrator." Likewise, Defendants grant only "l /2" of a case credit for several other 13 charges, including driving while license suspended third degree (third or greater offense); 14 driving while license suspended second degree; malicious mischief under $50 (second or 15 greater offense); malicious mischief over $50; negligent driving first degree; theft third degree 16 (third or greater offense); or any other "misdemeanor case of similar complexity as determined 17 by the Contract Administrator."

18

50. Furthennore, the Contract does not prohibit the attorneys from taking private

19 cases, nor does it reduce the maximum number ofpublic defense cases that may be handled by 20 an amount proportional to the time spent on private cases. Thus, Defendants have failed to 21 place "limitations on private practice of contract attorneys," as required by RCW I0.10 1.030. 22 Likewise, Defendant Mount Vemon has failed to set a "caseload ceiling . .. based on the

23 percentage of time the lawyer devotes to public defense," as required by Mount Vernon

24 Municipal Code § 2.62.030.
25

26

COMPLAINT FOR INJUNCTIVE AND DECLAR.ATORY REUEF - I0

TERRELL M9!A!6RNSMHhA:LJ.ClD. IDSAtrUMDl.TS&utt•W•oILo LIF. PLLC Seanle, IVo\hlngtD<1 88103-116~ TEL 206 816.683) • F~ 206.360 ~$21 wwwt.lndwtliw.oom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 12 of 100

1 D.
2

Defendants Are Systematically Failing to Provide Assistance of Counsel to Indigent Defendants Who Have Cases Pending in the Municipal Courts of Mount Vernon and Burlington

3

51. Defendants are systematically failing to provide assistance ofcounsel to indigent

4 defendants who have cases pending in the municipal courts of Mount Vernon and Burlington.

5

52. As noted above, Defendants have hired two attorneys-Sybrandy and Witt-to

6 provide the indigent defense services in their cities. Sybrandy and Witt fail to provide the

7 services to which indigent defendants are entitled under the United States Constitution and the

8 Washington State Constitution. Among other things:

9

a.

Sybrandy and Witt rarely, if ever, meet with indigent defendants while

10 those defendants are in custody. Indigent defendants who have cases pending in the municipal

11 courts ofBurlington and Mount Vernon are jailed at the Skagit County jail. In 2010, Sybrandy

12 and Witt made only six visits to the jail, meeting with a total of seven clients? By contrast,

13 attorneys from the Skagit County Public Defender's Office made 750 visits to the jail and met

14 with 1,551 clients. The results were similar for 2009. Sybrandy and Witt made five visits to

15 the Skagit County jail and met with eight clients, whereas attorneys from the Skagit County

16 Public Defender's Office made 691 visits to the jail and met with 1,232 clients;

17

b.

Sybrandy and Witt regularly fail to return calls from indigent defendants

18 in a timely manner, if at all;

19

c.

Sybrandy and Witt regularly fail to meet with indigent defendants in

20 advance of court hearings;

21

d. Sybrandy and Witt regularly fail to devote sufficient time to

22 interviewing and counseling indigent defendants;

23

e.

Sybrandy and Witt rarely, if ever, investigate the charges made against

24 indigent defendants;

25

26 3 It is not known whether those clients were indigent defendants or private clients.

COMPLAINT FOR INJUNCfiVE AND DECLARATORY RELIEF- II

TERRELL MARSHALL DAUDT & WILLIE PLLC
830 Nullh 34!11 Sitwt. Suita 400
s...ruo. """'~'"9'"" 9610J-M611
TE L 206 616 6e03 • FAX 2Q6 350.352!
W'Vffl.trn dw!ow.CO'I"''

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 13 of 100

f.

Sybrandy and Witt regularly fail to pursue or review discovery from the

2 prosecution in public defense cases;

3

g. Sybrandy and Witt regularly fail to make sufficient preparations for

4 court hearings involving indigent defendants;

5

h. Sybrandy and Witt regularly fail to stand with indigent defendants

6 during court hearings. Moreover, Sybrandy and Witt often pay no attention to those

7 proceedings because they are busy talking with other clients; and

8

1.

Sybrandy and Witt rarely, if ever, take cases to trial on behalf of indigent

9 defendants.

10

53. Under Defendants' public defense contract system, indigent persons are being

II deprived ofadequate consultation and communication with attorneys.

12

54. Under Defendants' public defense contract system, indigent defendants must

13 make decisions about their rights and contest issues without adequate factual or legal

14 investigation by attorneys.

15

55. Under Defendants' public defense contract system, indigent defendants are

16 being deprived of meaningful opportunities to present defenses.

17

56. Under Defendants' public defense contract system, indigent defendants are

I8 waiving their rights without proper consultation with or advice from attorneys.

19

57. Under Defendants' public defense contract system, indigent defendants are not

20 receiving accurate information regarding jail alternatives, plea alternatives, dispositional

21 alternatives, plea consequences, and consequences associated with immigration status.

22

58. Defendants have breached their constitutional duties by establishing and

23 perpetuating a public defense system that deprives indigent persons of the constitutional right

24 to assistance of counsel.

25

26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 12

TERRELl. MARSIIA!.l I>AUDT & WILLif: I'LLC 236 Noolh 3-4111 Street. S\ll1ll 400
Seatlle. Wa•h•nl!lon 981D3-88M TEL 206 8\6 6603 • FAX 2Q6 350 3528
- lmdwlaw.oom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 14 of 100

1 E.

Defendants Have Received Numerous Complaints Regarding Their Failure to Provide Assistance of Counsel to Indigent Defendants

2 59. On December 31, 2008, the director of the Skagit County Office of Assigned

3 Counsel emailed Sybrandy and Witt to inform them that indigent defendants in Mount Vernon

4 and Burlington would "go to court, come to our office, and [go] again to court with no attorney

5 there to represent them even though counsel has been appointed." The director told Sybrandy

6
and Witt that "lack of attorney contact or communication has been a major complaint from the

7 [Mount Vernon] clients." Finally, the director stated that "representation complaints ... will

8 no longer be forward[ed] ... to the court" but instead "will now be forwarded to the contract

9 manager who will be monitoring [the public defense] contract for the cit(ies] of Mount Vernon

10 and Burlington." Copied on the email to Sybrandy and Witt were the Honorable David A.

I 1 Svaren and the Honorable Warren M. Gilbert, judges in the municipal courts of Mount Vernon

12 and Burlington; the Honorable Lindford Smith, a commissioner in the municipal courts of

13
Mount Vernon and Burlington; Jon Aarstad, city administrator for Burlington; and Eric

14 Stendal, Mount Vernon Project Administrator and public defense contract manager. In

15 response to the director's email, Witt acknowledged that he often "get[s] blamed by [his]

16 clients or others for lack of communication." In an attempt to excuse his behavior, Witt stated:

17 "[J]n most cases we are not in any position to talk to clients about their respective cases until

18 just before the next assigned pretrial conference date" because "we do not get police reports

19 until just before the next assigned pretrial conference date."

20
60. On May l I, 2009, an indigent defendant with the initials A.A. submitted a

21 written complaint to Mount Vernon regarding Sybrandy. In the complaint, A.A. stated that he

22 visited Sybrandy's office and left contact information, but Sybrandy never called him.
23
Moreover, Sybrandy failed to appear at A.A.'s first hearing. When he eventually spoke to
24
A.A., Sybrandy asked A.A. whether he was guilty. A.A. said no, and Sybrandy responded,

25 "come on ...." A.A. told Sybrandy that he felt as though Sybrandy was "on the side of[the]
26
Mount Vernon Police Department." Sybrandy responded by saying, "I[' II) see you in the court

COMPLAINT FOR lNJVNCTIVE AND DECLARATORY RELIEF- 13

TERRELL MARSHM.L DAIJOT & WILLIE PLLC 838 Nor!h 34!11 S""-'. Su•t• 400 ScaHio. Wa •~ington 118toa.e86i
TEl. 206.B1S 6603 • F~ 206.350 3521
www.- w.com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 15 of 100

house," and then he hung-up. A.A.'s complaint was processed by Eric Stendal. In a responsive

2 letter to Mr. Stendal, Sybrandy stated: ''Overall, I just do not see anything to substantively

3 respond to in his complaint."

4

61. On May 19, 2009, an indigent defendant with the initials K.M. submitted a

5 written complaint to Mount Vernon regarding both Sybrandy and Witt. In the complaint, K.M.

6 stated that Sybrandy and Witt failed to meet with her regarding her case: "I have not been fairly

7 represented by either [Morgan Witt or Richard Sybrandy]. They have neglected to help my

8 case at all. 1 would like a new public defender appointed to my cases please. Someone who

9 will go over my case w/ me, discuss my options, meet w/ me before court e[tc.]." In response

10 to the complaint, Witt asserted that K.M. "arrived at the Skagit County Jail ... on or about May

11 15, 2009" and that he "filed a Notice of Appearance on May 21, 2009." Witt did not deny that

12 he failed to meet or talk with K.M. before June 2, 2009. Witt acknowledged that K.M. had a

13 probation review hearing on May 26, 2009, but he asserted that he was "out of town" that day

14 and that "Sybrandy continued the case to June 2, 2009." Though he took over for Witt at the

15 May 26, 2009 hearing, Sybrandy's response to the complaint stated as follows: "I do not

16 represent [K.M.] in her current proceedings .... (l]t has been Mr. Witt who represents her.

17 That being the case, her complaint against me is without merit and I have no way or need to

18 respond." K.M.'s complaint was processed by Eric Stendal.

19

62. On September 4, 2009, an indigent defendant with the initials J.B. submitted a

20 wTitten complaint to Mount Vernon regarding Sybrandy. In the complaint, J.B. stated that

21 Sybrandy failed to return her calls or meet with her in advance of her court appearance: ''I

22 call(ed] Sybrandy 3 time[s) before court and left 2 rnessage[s) asking for him to call me back so

23 we may talk about my case. He did not respond back. I waited about 2 weeks for a call." J.B.

24 also stated that when she appeared in court, she asked for Sybrandy. He identified himself and

25 told her to sit down and wait for him to call her. Approximately 15 minutes later, Sybrandy

26 read her file and then asked her about the charges. When J.B. started to explain her position,

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 14

TERRELL MARSHALL DAUDT It WILLIE PLLC 1136 Narlh 34111 s~. Sullo 400
S••lll e, W~•hl:lgloh 9810~
TEl 208 816 6603 • FAX 20e 350 3528
www.~. cam

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 16 of 100

Sybrandy told her she was "not special" and "need[ed] to face what [she) did." He also told her

2 that she was "luck[y)" to only have been charged with a misdemeanor and recommended that

3 she "should just end [it) today." Feeling she had "no cho(ic)e," J.B. pled guilty to the charge.

4 J.B.'s complaint was processed by Eric Stendal.

5

63. On September 16, 2009, an indigent defendant with the initials V.M. submitted

6 a written complaint to Mount Vernon regarding Sybrandy. In the complaint, V.M. stated that

7 she met with Sybrandy at her court hearing, and Sybrandy asked her whether she was guilty.

8 V.M. answered, "I'm not and I'm not going to sign anything that is not true." Sybrandy then

9 asked, "So you want to take it to trial[?)" When V.M. answered yes, Sybrandy told her "good

10 luck with that" and said she was "going to wa[ste] (everyone's] time and his but it's ok."

11 Sybrandy then asked, "Who do you think the judge is going to believe: you or the officer?"

12 {Punctuation added.) Sybrandy answered his own question with "the officer." When V.M.

13 again said that she was not going to plead guilty because she was innocent, Sybrandy told her

14 that she would be convicted and "was going to be in jail for a very long time." V.M.'s

15 complaint was processed by Eric Stendal.

16

64. In November 2009, Eric Stendal received a series of emails from Mount

17 Vernon's ChiefofPolice, Ken Bergsma, and City Attorney, Kevin Rogerson, regarding

18 complaints that Mount Vernon police officers bad been making about "the public defender

19 services being provided by Witt and Sybrandy." Those complaints included the following

20 statement from Detective Toby Ruxton:

21

Officer Cohen was assisting defendant in calling a public

22

Defender for DUI arrest. He was unable to make any contact by

the phone numbers supplied by them. This isn't an isolated case.

23

I also had difficulty contacting Public Defenders S(y]brandy and

Witt. My discussions with other officers was the same on

24

previous incidents. Since they arc contracted through the city,

25

can this issue be brought to their attention that we are not getting the service that is their obligation to perform[?]

26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF· 15

TERRELL MARSHALL DAliDT & WILLIE PLLC
S36 No:lnh 341h Stnoet. S<llle 400
Sean!&. WM~IrtQIOO 981~
:zoe TIOL ~06 B' £ 66~~ • FAX 350 3528
-lmdwlow.oom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 17 of 100

(Emphasis added.) Also included in the emails was the following statement from Lieutenant

2 Greg Booth: " [There] has been a pretty consistent inability to contact them after hours. After

3 this initial e-mail from Toby, several other officers have come forward to say they've

4 experienced the same thing and have then had to spend time trying to call some other attorneys

5 in the phone book."

6

65. On December 8, 2009, the husband of an indigent defendant with the initials

7 L.G. emailed a complainl to Mount Vernon Mayor Bud Norris regarding the public defender

8 assigned to his wife's case. In the email, the husband stated:

9

In June of 2009 my wife was arrested for shoplifting . . .. [W]e

10

hoped that the legal system would clear the matter up. We both

have college degrees and neither of us have any record or

11

smidgen of problems with the law .. .. The prosecutor[']s office

would not discuss the matter with us unless we had an attorney.

12

We wanted to hire an attorney to fight the matter but . . . we

13

could not afford the large retainer required. We appeared at the arraignment and she pleaded not guilty. We sought a public

14

defender . . .. The assigned attorney did not appear at the [next]

hearing. Another attorney came and told us that we could settle

15

the matter quick and easy with a bail for[f]eiture. This was

offered to usO at the [prior] arraignment. They told us if we paid

16

$100 the matter would be dropped. We were angry enough to

17

want a trial ... . This time we were told it was $250 as the amount had [gone] up July Ist. We still wanted to go to trial but

18

[were] concerned .. . since our assigned attorney would not meet

with us prior to the hearing and then didn't even show up at the

19

hearing. We avoided trial by paying bail forfeiture.

20 The husband also stated that he and his wife "spent no more than 5 minutes with [the second]

21 attorney," and "[i]n that time [the second attomey] called a half dozen others from the court

22 room offering them the same paper to sign." The mayor's office forwarded the email to
23 Sybrandy, who gave the following response: "Please advise both Mr. Stendal and Mayor

24 Norris that this was not my case, it was [Witt's] .. . . Quite honestly, I looked at the file, and

25 the result ... was excellent.''

26

COMPLAINT FOR £NJVNCTIVE AND DECLARATORY RELIEF · 16

TERRELL MARSHALL D-I.LDT & WILLI£ PLLC
936 Nor1h 34th Stroe:. SUI111 <100
S..atUe Vl'ashlnQ:"" ~61 03-8869
TEl 70!\ 816 6M 3 • FAX 206 350 3528 "N"'Nt.tmdwfaw cotn

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 18 of 100

66. On June 18, 2010, an indigent defendant with the initials J.F. submitted a written

2 complaint to Burlington regarding Sybrandy. The complaint referenced an attached letter from

3 three days earlier to an unnamed judge. In the letter, J.F. \Yrote: "I am very concerned with my

4 case. I don't feel like my lawyer is adequate counsel for this case. Reason being is he has yet

5 to come to see me to speak of my case. So I have no knowledge ofthis case or its status. And

6 when I did see him a couple of minutes before my last court date, be told me he couldn't help

7 me because of me being in c[u]stody and my past record." (Capitalization altered from

8 original.) For these reasons, J.F. asked the judge to appoint him "new counsel, one that will at

9 least try and help me in this situation I regret putting myself into." (Capitalization altered from

10 original.) The complaint was directed to Burlington Mayor Edward J. Brunz, who forwarded it

11 to Sybrandy. In a responsive letter to Mayor Brunz, Sybrandy wrote: "As a preliminary matter,

12 what [J.F.] alleges in his complaint does not amount to a violation oflegal standards of

13 practice, a violation of ethical rules, or a breach of my contract with the City of Burlington . . ..

14 [A]ssuming everything he says is true, it does not amount to a matter which should require a

15 response from me."

16

67. On June 28, 2010, an indigent defendant with the initials T.G. submitted a

17 written complaint to Mount Vernon regarding Sybrandy. In the complaint, T.G. wrote: "Prior

18 to cour~ I had my girlfriend ... contact Mr. Sybrandy's office. We were making sure Mr.

19 Sybrandy would talk to us prior to court and obtain the police records. He did not obtain the

20 police records. His secretary stated that he could not and would not obtain the police records.

21 When Mr. Sybrandy's secretary called back, she stated that Mr. Sybrandy only discusses cases

22 at Mount Vernon Municipal Court the day of a court appearance. Upon the date of court, we

23 arrived early. Mr. Sybrandy did not want to give us any of his time, nor did he receive the

24 police reports about this case. Then, it was my turn to go before the Judge. [Sybrandy] told me

25 to plea[d] guilty. Take the 20 days ofjail and $1000.00 fine. The amount of time Mr.

26 Sybrandy spent defending me, if you can call it that, before the Judge was less than 3 minutes

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 17

TEIIRELL MARSIIALL DAUOT& WILUE PLLC
-.-com 936 Nonh34!11SUM!. SuiWI 400
SeMI<. VYa•hiniiiOn 118103.aai!U
TEl. 206 B1o.st;03 • FAA 206.3511 3528

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 19 of 100

total on my case." T.G. 's complaint was processed by Eric Stendal. Mr. Stendal forwarded the

2 complaint to Sybrandy, who responded: "[T.G.] is greatly confused about his case, principally

3 because if he does not hear what he thinks he wants to hear, he refuses to listen." In his

4 response, Sybrandy did not deny that he only discusses cases with clients on the day of the

5 court appearance, and he admitted that his office told T.G. it would not obtain the police

6 records. Nevertheless, Sybrandy concluded: "I don't think I really have to explain to anyone

7 why it is that we were unable to make [T.G.) happy," and "1 hope ... this demonstrates why

8 [T.G. 's] complaint should be directed at himself, not me." Mr. Stendal sent Sybrandy's letter

9 to T.G. along with a note stating, "I am satisfied with Mr. Sybrandy's response and will not be

I 0 taking any further action."

II

68. On October 26,2010, an indigent defendant with the initials B.C. submitted a

12 written complaint to Mount Vernon regarding Witt a.nd Sybrandy. In the complaint, B.C. stated

13 that Witt was assigned to defend him. On the day ofhis hearing, B.C. asked to speak to Witt

14 before his case was called but the other attorney at the table "flipped out" on B.C., told B.C. "to

15 leave him alone,'' and said "that he would call [B.C.] to review [the] case." Nobody called,

16 however. In response to the complaint, Witt stated as follows: "I was meeting with another

17 client when [B.C.] walked up to counsel's table. He spoke with Mr. Sybrandy, who was the

18 one who 'flipped out.' At that time, I did not know who [B.C.) was and believed he was Mr.

19 Sybrandy's client .... [T)he Court called the case before I had a chance to review the case with

20 the client." B.C.'s complaint was processed by Eric Stendal.

21

69. On December 13, 2010, the mother of an indigent defendant with the initials

22 A.G. submitted a written complaint to Burlington regarding Witt. In the complaint, the mother

23 stated that Witt "doesn't answer" the flyers her son sends from jail or the calls she makes.

24 After the mother went to visit Witt in person and explain that her son believed he was not

25 getting credit for time served, Witt said he would help. When he met with the son, however,

26 Witt failed to discuss the situation. The mother's complaint was processed by Eric StendaL

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 18

TERRELL !\IARSHA.Ll. DAl!DT & WIU.rt: PLLC
i36 Nort!T :Wih St""" 9d!.t 40o 56olne, w~ 98103-8!!69
TEL.2011 !16.6803 • FI>J/. 20U51l 3528 www.lmciWttw a>m

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 20 of 100

After calling and discussing the issue with Witt, who informed Stendal that he "will call back

2 the mother," Stendal wrote: "I am satisfied with [Witt's] responses."

3

70. On January 20, 2011, the director of the Skagit County Office of Assigned

4 Counsel wrote to Eric Stendal, Mount Vernon Project Administrator and public defense

5 contract manager, and notified Mr. Stendal that the Office of Assigned Counsel "continues to

6 receive complaints" about public defense services, "especially from clients who are in

7 custody."

8

71. On information and belief, numerous other complaints have been made

9 regarding Sybrandy and Witt and the lack of public defense services in Mount Vernon and

10 Burlington. These complaints include the repeated failure of Sybrandy and Witt to do the

ll following: make themselves readily accessible to indigent defendants; return phone calls or

12 respond to inquiries from indigent defendants; meet with indigent defendants in advance of

13 court hearings; meet with clients in custody; investigate the charges against indigent

14 defendants; prepare for court hearings involving indigent defendants; attend court hearings with

15 indigent defendants; adequately represent indigent defendants; and assist indigent defendants in

16 making informed decisions as to whether to plead guilty or proceed to trial. The failure to

17 assist indigent defendants in making informed decisions includes the failure to provide accurate

I8 information regarding jail alternatives, plea alternatives, dispositional alternatives, plea

19 consequences, and consequences associated with immigration status.

20

72. On March 22, 2011, Sybrandy wrote to Eric Stendal in response to a complaint

21 by an indigent defendant with the initials M.B. At the end ofhis letter, Sybrandy stated: "I

22 would request that the City ofMount Vernon, as administrator for our [public defense]

23 contract, INSTRUCT the office of assigned counsel to stop their involvement in providing the

24 "PUBLIC DEFENDER COMPLAINT FORM" to criminal defendants." (Emphasis in

25 original.)

26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF · 19

TERRELL !'tiAitSHAJ.l. DAUOT &: WILLIE PLLC
g36 NoriiO 3<111> Stroot, SuiC. 400 Soen.o. W..'ingt«1 G8l03·8869 TEL 2()(i e>s SW3 • FAX 200 350 3528
www.lmctwt1Jw.llll'11

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 21 of 100

73. In addition to filing complaints, indigent defendants incarcerated at the Skagit

2 County jail have sent numerous "Public Defender Request Form[s]" to Sybrandy and Witt, and

3 those forms demonstrate the failure of the attorneys to provide assistance of counsel. Copies of

4 the forms, also known as "kites," are maintained by the Skagit County Office of Assigned

5 Counsel.

6

74. For example, between January 6 and 11, 20 l 0, an incarcerated indigent

7 defendant with the initials J.M. sent 10 separate Public Defender Request Forms to Witt asking

8 him to call. In one of the kites, J.M. wrote: "I am having problems with my Public Defender

9 [Witt] .... (H]e promise[d) me if I sign I would get out for [C]hris[t]mas and he wasn[']t

10 honest to me and J(']ve been trying to get a hold ofhim for 3 weeks and my mom has called his

11 office ever[y] day and he never returns her call . . . ." Notes kept by the Skagit County Office

12 of Assigned Counsel confirm that J.M.'s mother left messages with Witt, but he did not call her

13 back.

14

75. On January 12,2010, an incarcerated indigent defendant with the initials F.S.

15 sent a Public Defender Request Form to the Skagit County Office of Assigned Counsel, making

16 the following complaint about Sybrandy and Witt: "I need a different attorney who can

17 properly represent me please. I have been here since December 25th and have yet to speak to

18 Sybandy and Witt. I have sent countless kites and [have had] family members call them but to

19 no use."

20

76. On May 20, 20 I0, an incarcerated indigent defendant with the initials M.A. sent

21 a Public Defender Request Fonns to Sybrandy and Witt, stating "I need to [k]no[w] who my

22 Public Defender is and if he can contact me please." Though she sent a second kite to

23 Sybrandy and Witt on May 24, 2010, M.A. had still not heard from them as ofMay 26, 2010,

24 six days after the original request for contact was made.

25

77. On December 30, 2010, an incarcerated indigent defendant with the initials A.C.

26 sent a Public Defender Request Form to Sybrandy and Witt that stated: "I need to speak to you.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF· 20

__ .., TERRELL MARSHALL DAlJDT & WILLIE PlLC 1136 North 34111 Sroet. SUllo 400 Seanae, Was!'lir'\gton i81Dl-M8i TEl. :'06 8i6.6693 • FAX 208 350 3526

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 22 of 100

I have been here since Dec 20 2010 and have court Jan 4th or 5th .. .. Please don't leave me

2 hanging like last time. 1 would really like to know what's going on."

3

78. On January 16, 2011, an incarcerated indigent defendant with the initials A.M.

4 sent a Public Defender Request Form to Sybrandy regarding the fact that A.M. had been in

5 custody for nearly five weeks but hadn't been contacted by Sybrandy. Two days later, A.M.'s

6 case was continued by Witt, who did not speak to A.M. at the court appearance. On January

7 26, 2011, having still not heard from his attorney, A.M. sent a kite to Witt with the following

8 message: "I have 6 weeks [iJn here and I want to know what's going to happen in my next

9 court date. Can you please come see me or at least give me a call[?]"

10

79. On January 17, 2011, an incarcerated indigent defendant with the initials M.S.

II sent a Public Defender Request Form to Sybrandy that stated: "I have been here 20 days and

12 you have yet come to see me, call or write. In my eyes that is completely disrespectful and

13 completely dehumanizing [and] you really should be ashamed ofyourse1fl!!" Four days

14 earlier, M.S. sent a separate kite to Sybrandy that stated: "1 need either a global resolution or

15 bail reduction hearing as soon as possible [because] I will be homeless+ posse[ssiJonless and

16 veh[icle]less [unless 1 can get out ofjail and take care of my affairs]."

17

80. On January 26, 20 11, an incarcerated indigent defendant with the initials G.P.

18 sent a Public Defender Request Form to Sybrandy that stated: "I have cases that you were

19 appointed to me and would appreciate you following up with me about the cases you are

20 supposed to be representing me on."

21

81. Despite the serious complaints made against Sybrandy and Witt, Defendants

22 have failed to take reasonable steps to protect indigent persons and secure their constitutional

23

rights.
1

Among other things, Defendants have not terminated the Contract with Sybrandy and

24 Witt. To the contrary, Defendants recently extended the Contract by two years.

25

26

COMPLAlNT FOR INJUNCTIVE AND DECLARATORY RELIEF· 21

l'ERRI::Ll. MARSHALL DAUDT &: WILLIE PLLC
-.-com 1136 Ncrtt 3-4111 Sueot. Suite ~00
Soatde. Wa•hin~1oo 981 03·8M9 TEL 2C16 81~.66<)3 • FAX 206 3$0.3528

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 23 of 100

F. Defendants Have Failed to Adequately Monitor or Oversee Their PubUc Defense System
2 82. Defendants have not implemented effective mechanisms for monitoring the
3 performance ofpublic defenders.
4 83. Defendants have not adopted meaningful publicized criteria for evaluating
5 public defenders.
6 84. Defendants do not engage in systematic monitoring and evaluation of the
7 performance of public defenders based on published criteria.
8 85. Defendants collect only the most basic of information from Sybrandy and Witt
9 regarding public defense services. Specifically, Defendants ask Sybrandy and Witt to submit
10 monthly reports on all completed cases with client names, case numbers, charges, dispositions,
11 custody and probation statuses, and time spent on cases. Though he is obligated under the
12 Contract to provide these basic reports, Witt regularly fails to do so. Instead, he often submits
13 his reports months after they are due. Sybrandy also submits reports in an untimely manner.
14 86. Defendants do not obtain the meaningful infonnation essential to fulfilling their
15 constitutional duties ofproviding indigent defense services.
16 87. Defendants have not established any system for ensuring that Sybrandy and Witt
17 investigate cases, prepare for trial, and communicate timely and adequately with clients.
18 88. Defendants do not take reasonable steps to ensure that the private practices of
19 Sybrandy and Witt do not impair the public defense system.
20
89. Defendants have failed to establish an effective system for preventing conflicts
21 of interest.
22 90. Defendants have failed to adequately respond to complaints about their public
23
defense system, including complaints regarding Sybrandy and Witt. 24
91. IfDefendants adequately monitored Sybrandy and Witt, Defendants would have 25
found that Sybrandy and Witt rarely, if ever, meet with indigent defendants in custody. 26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 22

TERRF.Lt "'ARSHAtl DAl'DT & WILLIE PLLC 936 Honh 3<41!1 SlfOet. S..!e ~00
Seam.. Washmgton 98103-81169
TEL 206 816 66~3 • FAX 2!le.350 3~28
www.~wcom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 24 of 100

92. If Defendants adequately monitored Sybrandy and Witt, Defendants would have 2 found that Sybrandy and Witt regularly fail to return calls from indigent defendants in a timely 3 manner, if at all.

4

93. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

5 found that Sybrandy and Witt regularly fail to meet with indigent defendants in advance of

6 court hearings.

7

94. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

8 found that Sybrandy and Witt regularly fail to devote sufficient time to interviewing and

9 counseling indigent defendants.

10

95. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

II found that Sybrandy and Witt rarely, if ever, investigate the charges made against indigent

12 defendants.

13

96. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

14 found that Sybrandy and Witt regularly fail to pursue or review discovery from the prosecution

15 in public defense cases.

16

97. If Defendants adequately monitored Sybrandy and \Yitt, Defendants would have

I7 found that Sybrandy and Witt regularly fail to make sufficient preparations for court hearings

18 involving indigent defendants.

19

98. If Defendants adequately monitored Sybrandy and Win, Defendants would have

20 found that Sybrandy and Witt regularly fail to stand with indigent defendants during court

21 hearings.

22

99. lfDefendants adequately monitored Sybrandy and Witt, Defendants would have

23 found that Sybrandy and Witt rarely. if ever, take cases to trial on behalf of indigent

24 defendants.

25

100. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

26 found that Sybrandy and Witt fail to report the actual amount of time that they spend on

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 23

TERRELL M/lRSHALL DAUOT & Wn.LIE Pl.I.C
il6 Natlh 3<1111 Stre~t. Sutt• •OO S..anlo . Wosnlnglon 98 103-1>869 TEL ~ ~16 6603 • F'N< 20e.350 352e
WflNI.lmdWbtw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 25 of 100

indigent defense cases. In Paragraph 67 above, for example, the complainant wrote that "[t)he

2 amount of time Mr. Sybrandy spent defending me, if you can call it that .. . was less than 3

3 minutes total on my case." In his report to Mount Vernon, however, Sybrandy claimed that he

4 spent one hour working on the case. Likewise, in Paragraph 65 above, the complainant stated

5 that Witt was assigned to his wife's case but failed to appear at the hearing. At that point,

6 Sybrandy took over but "spent no more than 5 minutes" with the wife, who ultimately pled

7 guilty. Though Witt never met with the client and did not appear at the hearing, he submitted a

8 report to Mount Vernon in which he claimed that he spent one hour working on the case. A

9 review of the reports submitted to Defendants shows that Sybrandy and Witt routinely record

10 the same amount oftime per charge-either 30 minute or one hour. Not only is this recorded

11 time often insufficient to provide assistance of counsel but also, as shown above, it often

12 overstates the actual amount of time spent on the matter.

13

101. IfDefendants adequately monitored Sybrandy and Witt, Defendants would have

14 found that Sybrandy and Witt devote a substantial portion (if not a majority) of their time to

15 working on private cases, whether civil or criminal.

16

102. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

17 found that the private work performed by Sybrandy and Witt is performed to the detriment of

18 public defense services.

19 G. Defendants Have Failed to Provide Adequate Funds for Public Defense

20

103. Defendants are responsible for funding the public defense system in the

21 municipal courts of Mount Vernon and Burlington.

22

104. Defendants have consistently failed to fund indigent defense services at a level

23 that is sufficient to ensure constitutionally adequate representation.

24

I05. Under the Contract, the total amount of funds available to pay for all aspects of

25 indigent defense services in the municipal courts of Mount Vernon is capped at $121,750 per

26 year. The total amount of funds available to pay for all aspects of indigent defense services in

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 24

TERRELL i't1AR.~HALL DAUDT 8:. WJLUE PLLC
036 Notth 34111 SliMI, SuKe 400
S•a~lc. Wa 5hln(jl<>n 88103-&869
TEL 2Nl. B16 Gl> ~3 • FAX 208.350.3528 .,_,lrndWiaw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 26 of 100

the municipal courts of Burlington is capped at $60,750 per year. \Vhen Defendants recently

2 extended the Contract with Sybrandy and Witt by an additional two years, Defendants did so

3 without any increase in compensation.

4

106. The amounts paid under the Contract must cover attomeys' fees, investigation

5 costs, administrative costs, and all other costs other than approved expert fees for all

6 proceedings in which indigent persons were entitled to court-appointed counsel.

7

107. These amounts are not sufficient to ensure constitutionally adequate

8 representation. Moreover, the inadequate funding creates a conflict of interest for Sybrandy

9 and Witt, whose income is diminished by the amount of any funds expended in the defense of a

10 client, including investigator, consulting expert and non-court-approved expert fees.

11

108. Rule 1.8(m) of the Washington Rules ofProfessional Conduct provides that "(a}

12 lawyer shall not: (1) make or participate in making an agreement with a governmental entity for

13 the delivery of indigent defense services if the terms of the agreement obligate the contracting

14 lawyer . . . to bear the cost ofproviding investigation or expert services, unless a fair and

15 reasonable amount for such costs is specifically designated in the agreement in a manner that

16 does not adversely affect the income or compensation allocated to the lawyer ...." This

17 provision "prohibits agreements that do not provide that such services are to be funded

18 separately from the amounts designated as compensation to the contracting lawyer or law

19 firm." RPC 1.8, Cmt. 28. Furthermore, "a conflict of interest exists [where] there is significant

20 risk that the lawyers representation of the client will be materially limited by the lawyer's own

21 interest in the fee arrangement ...." RPC 1. 8, Cmt. 12.

22

l09. Pursuant to RCW 10.101.050, Defendants are entitled to apply for moneys to

23 fund indigent defense services pursuant to the grant program set forth in RCW 10.101.080. In

24 order to receive such funds, however, Defendants must require that attorneys providing public

25 defense services attend training approved by the Office of Public Defense at least once per

26 calendar year. Moreover, Defendants must report the expenditure for all public defense

COMPLArNT FOR INJUNCTIVE AND DECLARATORY RELIEF - 25

TERRELL MARSHALL DAUDT & WILLIE PLLC
~36 liortlllollll Strte1 511114 400 Seetlle . Vla•hmgtcn 9610~ 8869
TEL 208 b 16.6603 • FAX 206 350 352e
www tmdwl.lw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 27 of 100

1 services in the previous calendar year, as well as case statistics for that year, including per

2 attorney caseloads, and must provide a copy of each current public defense contract to the

3 office of public defense with their application. Finally, each individual that contracts to

4 perform public defense services for Defendants must report to the city hours billed for

5 nonpublic defense legal services in the previous calendar year, including number and types of

6 private cases. On information and belief, Defendants have never applied for funds pursuant to

7 the grant program established in RCW Chapter 10.101 .

8 H.
9

Defendant Mount Vernon Has Violated RCW 10.101.040 and Created a Conflict of Interest in the Selection of Public Defenders

10

110. Pursuant to RCW 10.101.040, "[c]ity attorneys ... shall not select the attorneys

11 who will provide indigent defense services."

12

111. The City Attorney for Mount Vernon is Kevin Rogerson. As City Attorney, Mr.

13 Rogerson supervises the prosecution of criminal matters.

14

112. ln December 2010, while acting as Mount Vernon's City Attorney, Mr.

15 Rogerson recommended that the city council authorize the mayor to extend the public defense

16 contract with Sybrandy/Witt by two years. He did this despite his knowledge of the complaints

17 made against Sybrandy and Witt for their failure to take calls from and meet with indigent

18 defendants. In his recommendation, Mr. Rogerson noted that there would be "no raise in the

19 amount of consideration for the provision of these services." He concluded that an extension of

20 the Contract without any increase in compensation "is within the best interests of the City."

21 Mr. Rogerson presented his recommendation to the city council on December 15, 2010, and the

22 cily council voted unanimously to adopt his recommendation and extend the Contract.

23

113. In his capacity as City Attorney of Mount Vernon, Mr. Rogerson was involved

24 in selecting Sybrandy and Witt as the attorneys who will provide indigent defense services in

25 Mount Vernon in 2011 and 2012.

26

114. By allowing Mr. Rogerson to be involved in the selection ofSybrandy and Witt

as public defenders, Defendant Mount Vernon has violated RCW 10.101.040 and created a

COMPLAINT FOR INJUNCfiVE AND DECLARATORY RELIEF - 26

TERRELL MARSHALL DAUDT & WILLIE PLLC
ll:lll '*>nil ;\4th S t•eo1, SUite 400
Seattl6. W..htn9ton 9810~-886P TEL. 2ll6 ij 16.6603 • FAX 2011 350 3628
. . -.tmdwWw a)m

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 28 of 100

conflict of interest. Mount Vernon is prosecuting criminal charges against indigent defendants

2 who lack assistance of counsel because of Mount Vernon's decision to maintain a contract with

3 Sybrandy and Witt and Mount Vernon 's decision to inadequately fund its public defense

4 system, among other things.

5 J. Defendants Have Failed to Provide Assistance of Counsel to Class Plaintiffs

6

(i) Plaintiff Joseph Jerome Wilbur

7

115. On or about November 12,2008, Plaintiff Wilbur was charged in Burlington

8 Municipal Court with driving a motor vehicle while license suspended in the third degree and

9 operating a motor vehicle that is not equipped with a required interlock device. These charges

10 were filed under case number BUC11136, which is currently pending. Defendant Burlington

11 has assigned an attorney to represent Plaintiff Wilbur on these charges, and that attorney is

12 Richard Sybrandy.

13

116. On or about August 28, 2009, Plaintiff Wilbur was charged in Burlington

14 Municipal Court with theft in the third degree. This charge was filed under case nwnber

15 BUC12231, which is currently pending. Defendant Burlington has assigned an attorney to

16 represent Plaintiff Wilbur on this charge, and that attorney is Richard Sybrandy.

17

117. On or about March 25,2010, Plaintiff Wilbur was charged in Burlington

18 Municipal Court with two counts of theft in the third degree. These charges were filed under

19 case numbers BUC12486 and BUC13018, both of which are currently pending. Defendant

20 Burlington has assigned an attorney to represent PlaintiffWilbur on these charges, and that

21 attorney is Richard Sybrandy.

22

1l 8. On or about February 14, 2011, Plaintiff Wilbur was charged in Burlington

23 Municipal Court with bail jumping. This charge was filed under case number BUC005013 ,

24 which is currently pending. Defendant Burlington has assigned an attorney to represent

25 Plaintiff Wilbur on this charge, and that attorney is Richard Sybrandy.

26

COMPLAINT FOR INJU!'\CTIVE AND DECLARATORY REUEF ~ 27

TERllEI.L :MARSHALl. DAUDT & WILliE PI..LC
e36 North 34th Streel. S1111e 400 s• • ~ re . wa.~ing1M 9&103·8869
-...- .com TEl. 20e 81 6 5603 • FAX 20& 350 3~8

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 29 of 100

1

119. Plaintiff Wilbur has been incarcerated in the Skagit County jail at various times

2 in relation to these charges. While in jail, Plaintiff Wilbur made numerous efforts to contact

3 Sybrandy in advance of court hearings, but Sybrandy never responded. Plaintiff Wilbur's

4 mother and grandmother also made efforts to contact Sybrandy, but Sybrandy never responded

5 to them as well. Assistants at Sybrandy's office told Plaintiff Wilbur's mother that Sybrandy

6 was "too busy" to communicate or meet with Plaintiff Wilbur.

7

120. Sybrandy regularly failed to communicate the circumstances of Plaintiff

8 Wilbur's cases or the charges filed against him during court hearings.

9

121 . Plaintiff Wilbur understands that he is entitled to enter in-patient treatment on or

I0 about June 20, 2011, and that he must first obtain a treatment order from the court before he

l l can do so. Plaintiff Wilbur has attempted to contact Sybrandy to get his assistance with this,

12 but Sybrandy has failed to respond to Plaintiff Wilbur. A drug and alcohol counselor has also

13 tried to contact Sybrandy on Plaintiff Wilbur's behalf regarding this issue, but Sybrandy has

14 failed to respond to the counselor.

15

122. Plaintiff Wilbur was previously charged with crimes in Mount Vernon

16 municipal court, and Mount Vernon assigned Sybrandy to represent him. Plaintiff Wilbur

17 experienced the same problems with Sybrandy in regard to the Mount Vernon charges as he has

18 experienced with Sybrandy in regard to the Burlington charges.

19

123. Defendants Mount Vernon and Burlington have failed to assign an attorney to

20 Plaintiff Wilbur who will communicate or meet with him while in custody.

21

124. Defendants Mount Vernon and Burlington have failed to assign an attorney to

22 Plaintiff Wilbur who will communicate or meet with him in advance of court hearings.

23

125. Defendants Mount Vernon and Burlington have failed to assign an attorney to

24 Plaintiff Wilbur who will respond to his requests for assistance of counsel. 25

26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 28

TERRElL

MARSHALL DAUDT & WILLI£
i36 Norlh 34111 sv.,.,:. Sutt<t •OO

PLLC

See!tle Wa<n ington 98 103-8869

T El ~ 81 6 66CJ • FAX ~.350 352e

wwwlmdwlawmm

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 30 of 100

126. Defendants Mount Vernon and Burlington have failed to assign an attorney to 2 Plaintiff Wilbur who will devote time to interviewing and counseling his on the charges filed 3 against his or the substantive legal issues related to his case.

4

127. Defendants Mount Vernon and Burlington have failed to assign an attorney to

5 Plaintiff Wilbur who will provide his with the representation to which he is entitled under the

6 constitutions of the United States and Washington.

7

128. The attorneys that Defendants Mount Vemon and Burlington have assigned to

8 Plaintiff Wilbur's cases have had excessive caseloads.

9

129. The attorneys that Defendants Mount Vernon and Burlington have assigned to

10 Plaintiff Wilbur's cases have not been adequately funded.

11

130. The attorneys that Defendants Mount Vernon and Burlington have assigned to

12 Plaintiff Wilbur's cases have not been adequately monitored.

13

131 . Plaintiff Wilbur has had to make decisions about his rights without adequate

14 factual or legal investigation by his attorneys.

15

132. Plaintiff Wilbur has been deprived of meaningful opportunities to present

16 defenses.

17

133. Plaintiff Wilbur has waived his rights without proper consultation and advice.

18

134. Plaintiff Wilbur has not received meaningful benefits in exchange for guilty

19 pleas.

20

135. Defendants Mount Vernon and Burlington have constructively deprived Plaintiff

21 Wilbur of his right to the assistance of counsel.

22

(ii) Plaintiff Jeremiah Ray Moon

23

136. On or about May 21,2011, Plaintiff Moon was charged in Mount Vernon

24 Municipal Court with assault in the fourth degree and interfering with reporting. These charges

25 were filed under case number BUC009935, which is currently pending. Defendant Mount

26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 29

Tf.RREt.L fttARSHAI,l. DAUDT &. WILU£ PLLC
D3e North 34111 Slroel. Sullo .00 SootUo. Wa•~iogiOo 118103·11889 Tli.L 206 8>6.~03 • FM 206.3!50 3~28
WfliW \rndwiaw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 31 of 100

1 Vernon has assigned an attorney to represent Plaintiff Moon on these charges, and that attorney 2 is Morgan Witt.

3

137. Mount Vernon has assigned Witt to represent Plaintiff Moon on previous

4 charges, including the charge of driving a motor vehicle while under the influence of alcohol or

5 drugs. PlaintiffMoon attempted to contact Witt numerous times in relation to that charge, but

6 Witt failed to respond to him. The only time Witt spoke with Plaintiff Moon was during court

7 proceedings. Because numerous other individuals were present during those proceedings-

8 including the judge, the prosecutor, other indigent defendants, and members of the public-

9 Plaintiff Moon was not able to communicate in private with Witt. Furthermore, Plaintiff Moon

10 did not have sufficient time to discuss with Witt the circumstances of his case or the charges

11 filed against him.

12

138 . As of June 8, 2011, Plaintiff Moon has been confined in the Skagit County jail

13 for several weeks, serving a commitment on a different charge. Plaintiff Moon has contacted

14 Witt in an effort to get credit toward for time spent on work crew. Though he is currently

15 assigned to represent Plaintiff Moon, Witt has failed to respond to Plaintiff Moon.

16

139. Witt has not contacted PlaintiffMoon to discuss the currently pending charge of

17 assault in the fourth degree. A hearing on that charge is scheduled for June 21, 2011.

18

140. Defendant Mount Vernon has failed to assign an attorney to PlaintiffMoon who

19 will communicate or meet with him while in custody.

20

141. Defendant Mount Vernon has failed to assign an attorney to Plaintiff Moon who

21 will communicate or meet with him in advance of court hearings.

22

142. Defendant Mount Vernon has failed to assign an attorney to Plaintiff Moon who

23 will respond to his requests for assistance of counsel.

24

143. Defendant Mount Vernon has failed to assign an attorney to Plaintiff Moon who

25 will devote time to interviewing and counseling his on the charges filed against his or the

26 substantive legal issues related to his case.

COMPLAINT FOR INJUNCfJVE AND DECLARATORY RELIEF· 30

T'ER.REI.L MARSHALL DAUDT &. WILLIE PLLC 836 Har1h 34111 sv..t. Suit. ~110
Seallle. Wl!$1\lf\Q too 118103-WII TEL. 20€.81 6.6603 • FAA 208 3!10.~28
wwwtmdwlaw com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 32 of 100

1

144. Defendant Mount Vernon has failed to assign an attorney to Plaintiff Moon who

2 will provide his with the representation to which he is entitled under the constitutions of the

3 United States and Washington.

4

145. The attorneys that Defendant Mount Vernon has assigned to Plaintiff Moon's

5 cases have had excessive caseloads.

6

146. The attorneys that Defendant Mount Vernon has assigned to Plaintiff Moon's

7 cases have not been adequately funded.

8

147. The attorneys that Defendant Mount Vernon has assigned to Plaintiff Moon's

9 cases have not been adequately monitored.

10

148. Plaintiff Moon has had to make decisions about his rights without adequate

11 factual or legal investigation by his attorneys.

12

149. PlaintiffMoon has been deprived of meaningful opportunities to present

13 defenses.

14

150. Plaintiff Moon has waived his rights without proper consultation and advice.

15

151. Plaintiff Moon has not received meaningful benefits in exchange for guilty

16 pleas.

17

152. Defendant Mount Vernon has constructively deprived Plaintiff Moon of his right

18 to the assistance of counsel.

19

(iii) Plaintiff Angela Marie Montague

20

153. On or about July 9, 2007, Plaintiff Montague was charged in Burlington

21 Municipal Court with driving a motor vehicle while license suspended in the third degree and 22 driving a motor vehicle while under the influence of alcohol or drugs. These charges were filed 23 under case number BUC009935. Defendant Burlington assigned an attorney to represent 24 PlaintiffMontague on these charges, and that attorney was Richard Sybrandy.

25

154. In November 2008, while in custody at the Skagit County jail, Plaintiff

26 Montague tried multiple times to contact Sybrandy regarding a court appearance scheduled for

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 31

TERRELL MARSHALL DAUl>T & WILLIE PLLC
938 Nor1h Sollh Slmot. Suitt 400 S.able, Wash ,ogton 98103·8869 TE L. ~C6 8 16 6603 • FAX 2011.350.3528
--~"""'

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 33 of 100

December 3, 2008. Sybrandy failed to respond to her. The only time Sybrandy spoke with 2 Plaintiff Montague was during court proceedings. Because numerous other individuals were 3 present during those proceedings- including the judge, the prosecutor, other indigent

4 defendants, and members of the public-Plaintiff Montague was not able to communicate in 5 private with Sybrandy. Furthermore, Plaintiff Montague did not have sufficient time to discuss

6 with Sybrandy the circumstances of her case or the charges filed against her.

7

155. Because Sybrandy was not providing her with assistance of counsel, Plaintiff

8 Montague asked to have another attorney appointed to her case. Shortly thereafter, Defendant

9 Burlington assigned Morgan Witt as Plaintiff Montague's attorney.

10

156. Like Sybrandy, Witt failed to provide Plaintiff Montague with assistance of

11 counsel. Witt did not respond to efforts by PlaintiffMontague to speak with her in advance of 12 court appearances. The only time Witt spoke with Plaintiff Montague was during court

13 proceedings, which did not allow for private communications or sufficient time to discuss the 14 circumstances of the case or the charges filed against Plaintiff Montague.

15

157. On December 2, 2009, Plaintiff Montague entered into a deferred prosecution

16 agreement regarding the charges brought against her in Burlington. At some point it became

17 difficult for Plaintiff Montague to meet the tenns of that agreement, so she tried to contact Witt

18 to resolve her issues in a proactive manner with the court. Witt failed to respond to her.

19 Because Plaintiff Montague was unable to work out a resolution with the court, a warrant was

20 issued for her arrest.

21

158. PlaintiffMontague was arrested and brought back to court to be sentenced on

22 the underlying charges. Witt did not talk with PlaintiffMontague before the court sentenced

23 her. Though he was present at the hearing, Witt did not stand with Plaintiff Montague while 24 she was being sentenced. Witt did not explain the circumstances ofPiaintiffMontague's

25 situation to the court or to ask the court to credit PlaintiffMontague for time served.
26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF • 32

TERJU:LL MARSHALL DAUDT & WILLIE PLLC
838 Nonh lol lh Stmet. ~ 400
Sean~<> . ~/asn.ngtoo !lB1 03-885~
TEL ?06.a 1 6.~3 • FAX 206.360 3528
- ·'""'-·"""'

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 34 of 100

I

159. As of June 8, 2011, Plaintiff Montague has been confined in the Skagit CoW1ty

2 jail for several weeks. Plaintiff Montague has been attempting to get in-patient treatment in

3 lieu ofjail time, but she understands she cannot do so unless she first obtains a treatment order

4 from the court.

5

160. Plaintiff Montague understands that Morgan Witt continues to serve as her

6 assigned attorney and that the assistance of his counsel is necessary for her to obtain a review

7 hearing and treatment order. Over the past two weeks, Plaintiff Montague has sent numerous

8 kites to Witt requesting his assistance, but Witt has not responded to her.

9

161. Defendant Burlington has failed to assign an attorney to Plaintiff Montague who

10 will communicate or meet with her while in custody.

11

162. Defendant Burlington has failed to assign an attorney to Plaintiff Montague who

12 will communicate or meet with her in advance of court hearings.

13

163. Defendant Burlington has failed to assign an attorney to Plaintiff Montague who

14 will respond to her requests for assistance of counsel.

15

164. Defendant Burlington has failed to assign an attorney to Plaintiff Montague who

16 wiJl devote time to interviewing and counseling her on the charges filed against her or the

17 substantive legal issues related to her case.

18

165. Defendant Burlington has failed to assign an attorney to Plaintiff Montague who

19 will provide her with the representation to which she is entitled under the constitutions of the

20 United States and Washington.

21

166. The attorneys that Defendant Burlington has assigned to PlaintiffMontague's

22 cases have had excessive caseloads.

23

167. The attorneys that Defendant Burlington has assigned to Plaintiff Montague's

24 cases have not been adequately funded.

25

168. The attorneys that Defendant Burlington has assigned to Plaintiff Montague's

26 cases have not been adequately monitored.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 33

T£RR£Ll M.<~.RSKALL DAUDT & WILLIE PLLC
~36 North 3411> SlnH!t. S<:llo 4110
S•alllo. Wosnoog~on 9810l-M69 TEl.. 206.818 6603 • FAX 2011350.3521
.........\rndwl.w.oom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 35 of 100

169. Plaintiff Montague has had to make decisions about her rights without adequate 2 factual or legal investigation by her attorneys.

3

170. Plaintiff Montague has been deprived of meaningful opportunities to present

4 defenses.

5

171. Plaintiff Montague has waived her rights without proper consultation and

6 advice.

7

172. Plaintiff Montague has not received meaningful benefits in exchange for guilty

8 pleas.

9

173. Defendant Burlington has constructively deprived Plaintiff Montague of her

10 right to the assistance of counsel.

11 K. 12

Plaintiffs Face a Continuing Risk that their Constitutional Rights Will Be VIolated

13

174. As a result of Defendants' acts and omissions, including the policies, practices

14 and procedures for public defense that Defendants have maintained and countenanced, indigent

15 persons charged with crimes in the municipal courts of Mount Vernon and Burlington have

16 suffered or are at imminent and serious risk of suffering harm. Among other things, these

17 indigent persons are deprived of adequate consultation and communication with their attorneys. 18 These indigent persons must make decisions about their rights or contest issues without 19 adequate factual or legal investigation by their attorneys. These indigent persons are deprived

20 of meaningful opportunities to present defenses. The rights of these indigent persons are 21 waived without proper consultation and advice. These indigent persons are deprived of the

22 services of investigators and expert witnesses. The cases of these indigent persons are not

23 properly prepared for trial. These indigent persons do not receive meaningful benefits in

24 exchange for guilty pleas.

25

I75. There is a substantial risk that Defendants' violations will continue nnd will

26 deprive the Class Plaintiffs and other Class Members of their rights . Among other things:

COMPLAINT FOR JNJUNCfiVE AND DECLARATORY RELIEF- 34

TERRELL M ,.,.RSH.\LL DAUOT & Will.If. Pl.LC
938 Norltt 34 111 Sl~. SoRo .00 SAI!fj!. W~shtnglor, 11&103-SUR TEL 206 815 650~ • FAJ< 2011.350.3528
www llndwiaw.c:om

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 36 of 100

2 years;

a.

Defendants have persisted in a wrongful course of conduct for many

3

b.

Defendants have persisted in a wrongful course of conduct even though

4 Defendants knew or should have known that indigent persons were being deprived of their
5 rights;

6 7 system;

c.

Defendants have failed to take prompt action to fix their public defense

8 9 chaos.

d.

Defendants have allowed their public defense system to descend into

10

VI. CAUSES OF ACTION- COUNT ONE

ll

(Violation of the Sixth and Fourteenth Amendments to the

United States Constitution (42 U.S.C. § 1983)

12

176. The allegations of paragraphs l through 175 above are incorporated herein.

13

177. Acting under color of state law, Defendants have violated and caused violations

14 of the Class Plaintiffs' rights to the assistance of counsel pursuant to the Sixth and Fourteenth

15 Amendments to the United States Constitution.

16

178. Unless enjoined by the Court, Defendants will continue to violate and cause the

17 violation of the constitutional rights ofthe Class Plaintiffs and the Class Members.

18

VII. CAUSES OF ACTION- COUNT TWO

19

(Violation of Article I, §§ 3, 12 and 22 of the Washington State

Constitution 20
179. The allegations of paragraphs 1 through 178 above are incorporated herein.

21 180. Acting under color of state law, Defendants have violated and caused violations

22 of the Class Plaintiffs' rights to the assistance of counsel pursuant to Article I, Sections 3, 12,

23 I ' and 22 ofthe Washington State Constitution.

24

181. Unless enjoined by the Court, Defendants wil1 continue to violate and cause the

25

violation of the constitutional rights of the Class Plaintiffs and the Class Members.
26

COMPLAINT FOR fNJUNCTlVE AND DECLARATORY RELIEF- 35

T£RREU. !11ARSH-\LL DAUDT &: WILI.IE PLLC
936 Ncw1h 341h Slnlet Sulte •DO Seo !IM, Wotl*lglon UII10).&e60
TEL 206 81!.8603 • FAA 206 350 3!i28 ..,_ lln<!wtaw.com

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 37 of 100

1

VIII. PRAYER FOR RELIEF

2

WHEREFORE, the Plaintiffs pray for relief as follows:

3

A. For certification ofa class as defined above;

4

B. For a declaration that Defendants are depriving Class Members of their rights to

5 the assistance of counsel pursuant to the Sixth and Fourteenth Amendments to the United States

6 Constitution and Sections 3, 12, and 22 of Article I of the Washington State Constitution;

7

c. For the issuance of preliminary and permanent injunctions restraining

8 Defendants from violating the Sixth and Fourteenth Amendments to the United States

9 Constitution and Sections 3, 12, and 22 of Article 1 of the Washington State Constitution in the

10 provision of indigent defense services;

II

D. For a preliminary and permanent injunction enjoining defendant Defendants

12 from making expenditures of funds on indigent defense services likely to result in

13 constitutional violations;

14

E. For an award ofplaintiffs' costs and attorneys' fees; and

15

F.

For such other and further relief as the Court may deem just and proper.

16

DATED this 9th day of June, 2011.

17

TERRELL MARSHALL DAUDT & WILLIE PLLC

18

19

20 By: _________________________

21

Beth E. Terrell, WSBA #26759

22

Email: htcrrdl(u:tmthvlaw.com Toby J. Marshall, WSBA #32726

23

Email: tmarshall!a·tmdwlaw.cnm

Jennifer Rust Murray, WSBA #36983

24

Email: jmun·ay(a·tmdwlaw.com

936 North 34th Street, Suite 400

25

Seattle, Washington 981 03·8869

26

Telephone: 206.816.6603

II COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF- 36

T£Ril£Ll M9JAeRNSoInIhA)L41L11DsA~U....Dt.TS&uireW40J0LIJE PlLC Sullie, W;u:hlogton i8103.a&6i
TEL 200 81 &66 03 • FAA 206 350 3528
www~wcorn

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 38 of 100

Darrell W. Scott, WSBA #20241

Email: ~cottq;roup(cl.,mac.com

2

Matthew J. Zuchetto, WSBA #33404

Email : matthewzU<.:hi!Uolii~mac .com

3

SCOTI LAW GROUP

4

926 W Sprague Avenue, Suite 583 Spokane, Washington 9920 1

5

Telephone: 509.455.3966

6

Attorneysfor Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

COMPLAINT FOR fNJUNCTIVE AND DECLARATORY RELIEF- 37

TERRELL M..I.RSHALL DAI ~IJT & WILLIE PLLC
936 Nol1h ~~~~ Sueol, Sul1e 400 Saellle. Wast,ngloo 98 !03~69
TEL 206 1<16 6603 • FAX 208 350 3518
WNW tmewtaw oom

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 39 of 100
EXHIBIT A

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 40 of 100
Washington State Bar Association Standards for Indigent Defense Services
On September 20, 2007, the Washington State Bar Association Board of Governors adopted updated Standards for indigent defense services as proposed by the WSBA Committee on Public Defense. STANDARD ONE: Compensation Standard: Public defense attorneys and staff should be compensated at a rate commensurate with their training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff In prosecutorial offices in the area. For assigned counsel, reasonable compensation should be provided. Compensation should reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the case. Assigned counsel should be compensated for out-of-pocket expenses. Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation, including, but not limited to, death penalty cases. Services which require extraordinary fees should be defined in the contract. Attorneys who have a conflict of interest should not have to compensate the new, substituted attorney out of their own funds.

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 41 of 100
Flat fees , caps on compensation, and lump-sum contracts for trial attorneys are improper in death penalty cases. Private practice attorneys appointed in death penalty cases should be fully compensated for actual time and service performed at a reasonable hourly rate with no distinction between rates for services performed in court and out of court. Periodic billing and payment should be available. The hourly rate established for lead counsel in a particular case should be based on the circumstances of the case and the attorney being appointed, including the following factors: the anticipated time and labor required in the case, the complexity of the case, the skill and experience required to provide adequate legal representation, the attorney's overhead expenses, and the exclusion of other work by the attorney during the case. Under no circumstances should the hourly rate for lead counsel, whether private or public defender, appointed in a death penalty case be less than $125 per hour (in 2006 dollars). Related Standards : American Bar Association, Standards for Criminal Justice, 5-2.4 and 5-3.1. American Bar Association, Guidelines for the Appointment and Performance in Death Penalty Cases, 1988, Standard 10-1. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standards 13.7 and 13.11 . National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-4. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard 111-10 and 111-11. 1 Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline No. 6.

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 42 of 100
STANDARD TWO: Duties and Responsibilities of Counsel Standard:
The legal representation plan shall require that defense services be provided to all clients in a professional, skilled manner consistent with minimum standards set forth by the American Bar Association, applicable state bar association standards, the Rules of Professional Conduct, case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. Counsel's primary and most fundamental responsibility is to promote and protect the best interests of the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1 .1, 5-5.1 and 5-1.1 . National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standards 13.1.
National Legal Aid and Defender Association, Standards for Defender Services, Standard 11-2.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Guideline 111-18. American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases http://www.abanet.org/deathpenaltv/quidelines.odf

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 43 of 100
STANDARD THREE: Caseload Limits and Types of Cases Standard:
The contract or other employment agreement or government budget shall specify the types of cases for which representation shall be provided and the maximum number of cases which each attorney shall be expected to handle. The caseload of public defense attorneys should allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation. The caseload of a full-time public defense attorney or assigned counsel shall not exceed the following: 150 Felonies per attorney per year; or 300 misdemeanor cases per attorney per year; or in certain circumstances described below the caseload may be adjusted to no more than 400 cases, depending upon:
• The caseload distribution between simple misdemeanors and complex misdemeanors; or
• Jurisdictional policies such as post-filing diversion and opportunity to negotiate resolution of large number of cases as non-criminal violations;
• Other court administrative procedures that permit a defense lawyer to handle more cases
250 Juvenile Offender cases per attorney per year; or 80 open Juvenile dependency cases per attorney; or 250 Civil Commitment cases per attorney per year; or 1 Active Death Penalty cases at a time; or 36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year. (The 36 standard assumes experienced appellate attorneys handling cases with transcripts of an average length of 350 pages. If attorneys do not have significant appelfate experience and/or the average transcript length is greater than 350 pages, the caseload should be accordingly reduced.)

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 44 of 100

Definition of Case:

A case is defined as the filing of a document with the court naming a person as defendant or respondent, to which a public defense attorney is appointed in order to provide representation.

General Considerations:

Caseload limits should be determined by the number of cases being accepted and on the local prosecutor's charging and plea bargaining practices. If a defender or assigned counsel is carrying a mixed caseload including cases from more than one category of cases, these standards should be applied proportionately to determine a full caseload. In jurisdictions where assigned counsel or contract attorneys also maintain private law practices, the contracting agency should ensure that attorneys not accept more cases than they can reasonably discharge. In these situations, the caseload should be based on the percentage of time the lawyer devotes to public defense.

Related and Source Standards

American Bar Association, Standards for Criminal Justice, 4-1.2, 5-4.3. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. http://www.abanet.org/deathpenalty/quidelines.pdf

National Advisory Commission on Criminal Standards and Goals, Task Force on Courts, 1973, Standard 13.12.

American Bar Association Disciplinary Rule 6-101.

American Bar Association Ten Principles of a Public Defense Delivery System. See, http:/www.abanet,orq/leqalservices/downloads/sclaid/indiqentdefense/tenprincipl esbooklet.pdf (2002).

ABA Standards of Practice for Lawyers who Represent Children in Abuse & Neglect Cases, (1996) American Bar Association, Chicago, IL

The American Council of Chief Defenders Ethical Opinion 03-01 (2003). National Legal Aid and Defender Association, Standards for Defender Services, Standards IV-I.

National Legal Aid and Defender Association, Model Contract for Public Defense

Services

(2002),

available

on

line

at

www.nlada .org/DMS/Documents/1 025702469/Full%20volume.doc

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NACC Recommendations for Representation of Children in Abuse and Neglect Cases_(2001, available online at http://naccchildlaw.org/training/standards.html) City of Seattle Ordinance Number: 12501 (2004). Seattle-King County Bar Association Indigent Defense Services Task Force, Guideline Number 1. Washington State Office of Public Defense, Proposed Standards for Dependency and Termination Defense Attorneys (1999), available online at http://www.opd.wa .gov/Publications/Dependency%20&%20Termination%20Repo rts/1999%20Cost%20of%20Defense%20Dep%20&%20Ter.pdf

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STANDARD FOUR: Responsibility for Expert Witnesses Standard: Reasonable compensation for expert witnesses necessary to preparation and presentation of the defense case shall be provided. Expert witness fees should be maintained and allocated from funds separate from those provided for defender services. Requests for expert witness fees should be made through an ex parte
motion. The defense should be free to retain the expert of its choosing and in no
cases should be forced to select experts from a list pre-approved by either the court or the prosecution. Related Standards: American Bar Assodation, Standards for Criminal Justice, 5-1.4. National Legal Aid and Defender Association, Standards for Defender Services, Standard IV 2d, 3. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1983, Standard 111-Bd. National Advisory Commission, Task Force on Courts, 1973, Standard 13.14.

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STANDARD FIVE: Administrative costs Standard: Contracts for public defense services shall provide for or include administrative costs associated with providing legal representation. These costs should include but are not limited to travel, telephones, law library, including electronic legal research , financial accounting, case management systems, computers and software, office space and supplies, training, meeting the reporting requirements imposed by these standards, and other costs necessarily incurred in the day-today management of the contract. Public defense attorneys should have an office that accommodates confidential meetings with clients and receipt of mail, and adequate telephone services to ensure prompt response to client contact. Related Standards: American Bar Association, Standards for Criminal Justice, Providing Defense Services. National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, (1976), Guideline 3.4. National Legal Aid and Defender Association, Standards for Defender Services, 1976 1-3, IV 2a-e, IV 5.

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STANDARD SIX: Investigators Standard: Public defender offices, assigned counsel, and private law firms holding public defense contracts should employ investigators with investigation training and experience. A minimum of one investigator should be employed for every four attorneys. Related Standards: American Bar Association, Standards for Criminal Justice, 4-4.1 and 5-1.14. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.14. National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-3. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard 111-9. Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 8.

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STANDARD SEVEN: Support Services
Standard:
The legal representation plan should provide for adequate numbers of investigators, secretaries, word processing staff, paralegals, social work staff, mental health professionals and other support services, including computer system_staff and network administrators. These professionals are essential to ensure the effective performance of defense counsel during trial preparation, in the preparation of dispositional plans, and at sentencing.
1. Legal Assistants - At least one full-time legal assistant should be employed for every four attorneys. Fewer legal assistants may be necessary, however, if the agency has access to word processing staff, or other additional staff performing clerical work. Defenders should have a combination of technology and personnel that will meet their needs.
2. Social Work Staff - Social work staff should be available to assist in developing release, treatment, and dispositional alternatives.
3. Mental Health Professionals - Each agency should have access to mental health professionals to perform mental health evaluations.
4. Investigation staff should be available as provided in Standard Six. 5. Each agency or attorney providing public defense services should have
access to adequate and competent interpreters to facilitate communication with non-English speaking and hearing-impaired dients for attorneys, investigators, social workers, and administrative staff.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-8.1 and 5-1.4. National Advisory Committee on Criminal Justice Standards and Goals, Task Force on Courts, Standard 13.14.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard 111-8. Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 7.

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STANDARD EIGHT: Reports of Attorney Activity Standard: The legal representation plan shall require that the defense attorney or office maintain a case-reporting and management information system which includes number and type of cases, attorney hours and disposition. This information shall be provided regularly to the Contracting Authority and shall also be made available to the Office of the Administrator of the Courts. Any such system shall be maintained independently from client files so as to disclose no privileged information. A standardized voucher form shall be used by assigned counsel attorneys seeking payment upon completion of a case. For attorneys under contract, payment should be made monthly, or at times agreed to by the parties, without regard to the number of cases closed in the period. Related Standards : American Bar Association, Standards for Criminal Justice, 5-3.3. (b) xii, The Report to the Criminal Justice Section Council from the Criminal Justice Standards Committee, 1989. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984 Standard 111-22. National Study Commission on Defense Services, Guidelines for Legal Defense Systems In the United States, 1976, Guideline 3.4, 4.1, and 5.2.

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STANDARD NINE: Training Standard: The legal representation plan shall require that attorneys providing public defense services participate in regular training programs on criminal defense law, including a minimum of seven hours of continuing legal education annually in areas relating to their public defense practice. In offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held to inform them of office procedure and policy. All attorneys should be required to attend regular in-house training programs on developments in criminal law, criminal procedure and the forensic sciences. Attorneys in civil commitment and dependency practices should attend training programs in these areas. Offices should also develop manuals to inform new attorneys of the rules and procedures of the courts within their jurisdiction. Every attorney providing counsel to indigent accused should have the opportunity to attend courses that foster trial advocacy skills and to review professional publications and other media. Related Standards: American Bar Association, Standards for Criminal Justice, 5-1.4. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.16. National Legal Aid and Defender Association, Standards for Defender Services, Standard V. National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, 1984, Standard 111-17.
Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 3. National Legal Aid and Defender Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 1988, Standard 9.1.

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STANDARD TEN: Supervision Standard: Each agency or firm providing public defense services should provide one full-time supervisor for every ten staff lawyers or one half-time supervisor for every five lawyers. Supervisors should be chosen from among those lawyers in the office qualified under these guidelines to try Class A felonies. Supervisors should serve on a rotating basis, and except when supervising fewer than ten lawyers, should not cany caseloads. Related Standards: National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.9. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contract, 1984, Standard 111-16. Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 4.

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STANDARD ELEVEN: Monitoring and Evaluation of Attorneys Standard: The legal representation plan for prov1s1on of public defense services should establish a procedure for systematic monitoring and evaluation of attorney performance based upon publicized criteria. Supervision and evaluation efforts should include review of time and caseload records, review and inspection of transcripts, in-court observations, and periodic conferences. Performance evaluations made by a supervising attorney should be supplemented by comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be evaluated on their skill and effectiveness as criminal lawyers or as dependency or civil commitment advocates. Related Standards: National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard 111-16. National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, 1976, Recommendations 5.4 and 5.5. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.9.

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STANDARD TWELVE: Substitution of Counsel Standard: The attorney engaged by local government to provide public defense services should not sub-contract with another firm or attorney to provide representation and should remain directly involved in the provision of representation. If the contract is with a firm or office, the contracting authority should request the names and experience levels of those attorneys who will actually be providing the services, to ensure they meet minimum qualifications. The employment agreement shall address the procedures for continuing representation of clients upon the conclusion of the agreement. Alternate or conflict counsel should be available for substitution in conflict situations at no cost to the counsel declaring the conflict. Related Standards: American Bar Association, Standards for Criminal Justice, Standard 5-5.2. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.1. National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Guideline 111-23.

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STANDARD THIRTEEN: Limitations on Private Practice of Contract Attorneys Standard: Contracts for public defense representation with private attorneys or finns shall set limits on the amount of privately retained work which can be accepted by the contracting attorney. These limits shall be based on the percentage of a full-time caseload which the public defense cases represent. Related Standards: American Bar Association, Standards for Criminal Justice, 4-1.2(d), 5-3.2. American Bar Association, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With
Competent and Diligent Representation, May 13, 2006, Formal Opinion OBM1.
http://www.abanet.org/cpr/pubslethicopinions.html National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.7. National Legal Aid and Defender Association, Standards for Defender Services,
Standard 111-3 and JV-1. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Guideline 111-6.

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STANDARD FOURTEEN:
QUALIFICATIONS OF ATTORNEYS
1. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services should meet the following minimum professional qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; B. and be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and C. be familiar with the collateral consequences of a conviction, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and D. Be familiar with mental health issues and be able to identify the need to obtain expert services; and E. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.
2. Trial attorneys' qualifications according to severity or type of case:
A. Death Penalty Representation. Each attorney acting as lead counsel in a death penalty case or an aggravated homicide case in which the decision to seek the death penalty has not yet been made shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and ii. at least five years criminal trial experience; and iii. have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and iv. have served as lead or co-rounselln at least one jury trial in which the death penalty was sought; and v. have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases; and vi. have completed at least one death penalty defense seminar within the previous two years; and vii. meet the requirements of SPRC 2.1
SPRC2 APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 57 of 100

The defense team in a death penalty case should include, at a minimum, the two attorneys appointed pursuant to SPRC 2, a mitigation specialist and an investigator. Psychiatrists, psychologists and other experts and support personnel should be added as needed.

B. Adult Felony Cases- Class A. Each staff attorney representing a defendant

accused of a Class A felony as defined in RCW 9A.20.020 shall meet the

following

requirements:

i. Minimum requirements set forth in Section 1, and

responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2(f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements of proficiency and experience, and who have demonstrated that they are teamed in the law of capital punishment by virtue of training or experience, and thus are qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. Both counsel at trial must have five years' experience in the practice of criminal law be familiar with and experienced in the utilization of expert witnesses and evidence, and not be presently serving as appointed counsel in another active trial level death penalty case. One counsel must be, and both may be, qualified for appointment in capital trials on the list, unless circumstances exist such that it is in the defendant's interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial court shall make findings of fact if good cause is found for not appointing list counsel.
At least one counsel on appeal must have three years' experience In the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience. In appointing counsel on appeal, lhe Supreme Court will consider the list, but will have the final discretion in the appointment of counsel.
Available al htp://www.courts.wa.govfcourt 1'\Jies/?fa=court rules.displav&group-=sup&set=SPRC&ruleid=supspr c2.

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 58 of 100

ii. Either: has served two years as a prosecutor; or a. has served two years as a public defender; or two years in a private criminal practice, and
b. has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.

C. Adult Felony Cases - Class B. Violent Offense or Sexual Offense. Each attorney representing a defendant accused of a Class B violent offense or sexual offense as defined in RCW 9A.20.020 shall meet the following requirements:
i. Minimum requirements set forth in section 1, and ii. Either:

a. has served one year as prosecutor; or
b. has served one year as public defender; or one year in a private criminal practice; and

iii. Has been trial counsel alone or with other counsel and handled a

significant portion of the trial in two Class C felony cases that have been

submitted

to

a

jury.

D. Adult Felony Cases- All other Class B Felonies. Class C Felonies. Probation

or Parole Revocation. Each staff attorney representing a defendant accused of a

Class B felony not defined in c above or a Class C felony, as defined in RCW

9A.20.020, or involved in a probation or parole revocation hearing shall meet the

following

requirements:

i. Minimum requirements set forth in section 1, and ii. Either:
a. has served one year as a prosecutor; or b. has served one year as a public defender; or one year in a private criminal practice; and iii. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and iv: Each attorney shall be accompanied at his or her first felony trial by a supervisor if available.

E. Persistent Offender (Life Without Possibility of Release) Representation. Each attorney acting as lead counsel in a "two-strikes" or "three strikes" case in which a conviction will result in a mandatory sentence of life in prison without parole shall meet the following requirements:
i. The minimum requirements set forth in Section 1; 2 and

2

RCW 10.01 .060 provides that counties receiving funding from the state Office of

Public Defense under that statute must require "attorneys who handle the most serious

cases to meet specified qualifications as set forth in the Washington state bar

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 59 of 100
ii. Have at least: a. four years criminal trial experience; and b. one year experience as a felony defense attorney; and c. experience as lead counsel in at least one Class A felony trial; and d. experience as counsel in cases involving each of the following: 1) Mental health issues; and 2) Sexual offenses, if the current offense or a prior conviction that is one of the predicate cases resulting in the possibility of life in prison without parole is a sex offense; and 3) Expert witnesses; and 4} One year of appellate experience or demonstrated legal writing ability.
F. Juvenile Cases- Class A- Each attorney representing a juvenile accused of
a Class A felony shall meet the following requirements:
i. Minimum requirements set forth in section 1, and ii. Either:
a. has served one year as a prosecutor; or b. has served one year as a public defender; one year in a
private criminal practice and iii. Has been trial counsel alone of record in five Class B and C felony
trials; and iv. Each attorney shall be accompanied at his or her first juvenile trial by
a supervisor, if available.
G. Juvenile Cases - Classes B and C - Each attomey representing a juvenile accused of a Class B or C felony shall meet the following requirements:
1. Minimum requirements set forth in Section 1; and
ii. Either: a. has served one year as a prosecutor; or b. has served one year as a public defender; or one year in a private criminal practice, and
association endorsed standards for public defense services or participate in at least one case consultation per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second degree, persistent offender cases, and class A felonies.

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 60 of 100

c. as been trial counsel alone in five misdemeanor cases brought to a final resolution: and
iii. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor if available.

H. Juvenile Status Offenses Cases. Each attorney representing a client in a KBecca" matter shall meet the following requirements:

i. The minimum requirements as outlined in Section 1; and

ii. Either:

a. have represented clients in at least two similar cases under

the supervision of a more experienced attorney or completed

offense"

at least three hours of CLE training specific to "status cases or

b. have participated in at least one consultation per case with a

section .

more experienced attorney who Is qualified under this

I. Misdemeanor Cases. Each attorney representing a defendant involved in
a matter concerning a gross misdemeanor or condition of confinement, shall
meet the requirements as outlined in Section 1.

J . Dependency Cases. Each attorney representing a client in a dependency

matter shall meet the following requirements:

i. The minimum requirements as outlined in Section 1: and

ii. Attorneys handling termination hearings shall have six months

dependency experience or have significant experience in

handling

complex litigation.

iii. Attorneys In dependency matters should be familiar with expert

services and treatment resources for substance abuse.

iv. Attorneys representing children in dependency matters should have

knowledge, training, experience, and ability in communicating

effectively with children. or have participated in at least

one

consultation per case either with a state Office of

Public Defense

resource attorney or other attorney

qualified under this section.

K. Civil Commitment Cases. Each attorney representing a respondent shall

meet

the following requirements:

i. Minimum requirements set forth in Section 1: and ii. Each staff attorney shall be accompanied at his or her first 90 or 180
day commitment hearing by a supervisor; and
iii. Shall not represent a respondent in a 90 or 180 day commitment
hearing unless he or she has either:

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a. served one year as a prosecutor, or

b. served one year as a public defender, or one year in a private

civil commitment practice, and

c. been trial counsel in five civil commitment initial hearings; and

iv. Shall not represent a respondent in a jury trial unless he or she has

conducted a felony jury trial as lead counsel; or been co-

counsel with

a more experienced attorney in a

90 or 180 day commitment hearing,

L. Sex Offender MPredator'' Commitment Cases

Generally, there should be two counsel on each sex offender commitment case. The lead counsel shall meet the following requirements:

i. The minimum requirements set forth in Section 1; and

ii. Have at least:

a. Three years criminal trial experience; and

b. One year experience as a felony defense attorney or one

year

experience as a criminal appeals attorney; and

c. Experience as lead counsel in at least one felony trial; and

d. Experience as counsel in cases involving each of the

following :

1) Mental health issues; and

2) Sexual offenses; and

3) Expert witnesses; and

e. Familiarity with the Civil Rules; and

f. One year of appellate experience or demonstrated legal

writing ability.

Other counsel working on a sex offender commitment cases should meet the Minimum Requirements in Section 1 and have either one year experience as a public defender or significant experience in the preparation of criminal cases,
including legal research and writing and training in trial advocacy.
M. Contempt of Court Cases
Each attorney representing a respondent shall meet the following requirements:

i. Minimum requirements set forth in Section 1; and

ii. Each staff attorney shall be accompanied at his or her first three

contempt of court hearings by a supervisor or more experienced

attorney, or participate in

at least one consultation per case with a

state Office of Public Defense

resource attorney or other attorney

qualified in this area of practice.

N. Specialtv Courts

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Each attorney representing a client in a specialty court (e.g., mental health
court, drug diversion court, homelessness court) shall meet the following requirements:

i. Minimum requirements set forth in Section 1; and ii. The requirements set forth above for representation in the type of
practice involved in the specialty court (e.g., felony, misdemeanor, juvenile); and iii. Be familiar with mental health and substance abuse issues and treatment alternatives.
3. Appellate Representation.
Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall meet the following requirements:

A. The minimum requirements as outlined in Section 1: and

B. Either:

i. has filed a brief with the Washington Supreme Court or any

Washington Court

of Appeals in at least one criminal case within the

past two years; or

ii. has equivalent appellate experience, including filing appellate briefs in

other jurisdictions, at least one year as an appellate court or federal

court cler1<,

extensive trial level briefing or other comparable wor1<.

iii. Attorneys with primary responsibility for handling a death penalty

appeal shall have at least five years' criminal experience, preferably

induding at least one homicide trial and at least six appeals from felony

convictions.

RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a case on appeal to the Superior Court from a Court of Limited Jurisdiction should meet the minimum requirements as outlined in Section 1, and have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, cler1<ing for an appellate judge, or assisting a more experienced attorney in preparing and arguing an RALJ appeal.
4. Legal Interns.
A. Legal interns must meet the requirements set out in APR 9. B. Legal interns shall receive training pursuant to APR 9 and Standard Nine, Training.
Related Standards:

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National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Standard 13.15. National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Public Defense Contracts, 1984, Standard 111-7.
National Legal Aid and Defender Association, Standards for the Appointment and Performance of Counsel in Death Penalty Cases , 1987, Standard 5.1.

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STANDARD FIFTEEN: Disposition of Client Complaints Standard: Each agency or firm or individual contract attorney providing public defense services shall have a method to respond promptly to client complaints. Complaints should first be directed to the attorney, firm or agency which provided representation . If the client feels that he or she has not received an adequate response, the contracting authority or public defense administrator should designate a person or agency to evaluate the legitimacy of complaints and to follow up meritorious ones. The complaining client should be informed as to the disposition of his or her complaint within one week. Related Standards: The American Bar Association, Standards for Criminal Justice, 4-5.1 and 4-5.2.

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STANDARD SIXTEEN: Cause for Termination of Defender Services and

Removal

of

Attorney

Standard: Contracts for indigent defense services shall include the grounds for termination of the contract by the parties. Termination of a provider's contract should only be for good cause. Termination for good cause shall include the failure of the attorney to render adequate representation to clients; the willful disregard of the rights and best interests of the client; and the willful disregard of the standards herein addressed. Removal by the court of counsel from representation normally should not occur over the objection of the attorney and the client.

Related Standards: American Bar Association, Standards for Criminal Justice, Standard 5-1 .3, 55.3. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Guideline 111-5. National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, 1976, Recommendations 2.12 and 2.14. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.8.

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STANDARD SEVENTEEN: Non-Discrimination Standard: Neither the Contracting Authority, in its selection of an attorney, firm or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, gender, sexual orientation or disability. Both the contracting authority and the contractor shall comply with all federal, state, and local non-discrimination requirements. Related Standards: American Bar Association, Standards for Criminal Justice, Providing Defense Services, Standard 5-3.1. National Legal Aid and Defender Association, Standards for Defender Services, 1976, Standard 111-8.

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STANDARD EIGHTEEN: Guidelines for Awarding Defense Contracts Standard: The county or city should award contracts for public defense services only after determining that the attorney or firm chosen can meet accepted professional standards. Under no circumstances should a contract be awarded on the basis of cost alone. Attorneys or firms bidding for contracts must demonstrate their ability to meet these standards. Contracts should only be awarded to a) attorneys who have at least one year's criminal trial experience in the jurisdiction covered by the contract (i.e., City and District Courts, Superior Court or Juvenile Court), or b) to a firm where at least one attorney has one year's trial experience. City attorneys, county prosecutors, and law enforcement officers should not select the attorneys who will provide indigent defense services. Related Standards: National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard IV-3. King County Ba~ Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Statement of Purpose.

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EXHIBIT B

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 69 of 100
",. /

City of Bur1ington Contract/Agreement Coversheet

CONTRACT NO. 2009-06

DEPARTMENT Administration

FEDERAL TAXPAYER I.D ._ _ _ _ _ _...;..•_.- - - - - - - - - - - - - - - -

GRANTEE /CONSULTANT: Richard M. Sybrandy & Morgan M. Witt

SERVICES PROVIDED Public Defense Services 2009-2010

AMOUNT $57,600/year for combined services or $60,750 rr arraignment is necessary

FUNDSOURCE --------------------------------------

DURATION FROM: January 1. 2009

TO December 31. 2010

Original: City of Mount Vernon

Copies:

City of Burlington Finance Department Municipal Court

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City of Mount Vernon City of Burlington
Public Defense Services 2009 - 2010 Contract for Services
January,_L_ 2009 ·

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I Table of Contents Section l : DEFINITIONS ......... ................................................................................. Section 2: PUBLIC DEFENSE STANDARDS............................................................ Section 3: DURATION OF CONTRACT........................... ........................................ Section 4: SCOPE OF WORK...................................................................................... Section 5: PERFORMANCE AND QUALIFICATIONS .......................................... Section 6: PAYMENT..................................................................................................... Section 7: REPORTING REQUIREME:I\t'fS................................................ .............. Section 8: INTERNAL CONTROL AND ACCOUNTING SYSTEM...................... Section 9: ADDRESSES FOR NOTICES AND DELIVERABLE MATERIALS. Section 10: CORRECTIVE ACTION.......................................................................... Section 11 TERMINATION AND SUSPENSION .................................................... Section 12: DISPUTES (OTHER THAN SUSPENSION OR TERMINATION)..... Section 13: EQUAL EMPLOYMENT OPPORTUNITY AND OUTREACH.......... Section 14: SECONDARY DEFENDER......................................................................... Section 15: OTHER LEGAL REQUIREMENTS ...................................................... Section 16: INDE~ICATION..............................................:................................. Section 17: INSURANCE............................................................................................... Section 18: ESTABLISHMENT AND MAINTENANCE OF RECORDS................ Section 19: AUDITS, RECORDS, AND ANNUAL FINANCIAL STATEMENTS Section 20: CONTRACTUAL RELATIONSHIP........................................................ Section 21: ASSIGNMENT AND SUBCONTRACTING........................................... Section 22: ERRORS & OMISSIONS; CORRECTION ........................................... Section 23: CONFIDENTIALITY................................................................................. Section 24: MISCELLANEOUS PROVISIONS........................................................ .. AITACHMENT 1- PUBLIC DEFENDER PAYMENT SCHEDULE...................... AITACHMENT 2- SECONDARY DEFENDER PAYMENT SCHEDULE ...........
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2009- 2010 CONTRACT FOR CITY OF MOUNT VERNON PUBLIC DEFENSE SERVICES
CITY OF BUIU...INGON PUBLIC DEFENSE SERVICES WHEREAS, this Contract is made and entered into by and belween the City of Mount Vernon ("Mount Vernon"), a Washington municipal corporation, the City of Burlington ("Burlington"), a Washington municipal corporation collectively referred to herein as "the Cities" or individually as "the City" and Richard M. Sybrandy, P.O. Box 175 Mount Vernon, WA 98273-0175, and Morgan M. Win, P.O. Box 726, Mount Vernon, WA 98273-0726 (together, the "Public Defender"), who are licensed to practice law within the State of Washington. WHEREAS, the Cities desire to have legal services, as described in the Contract, performed for indigent persons legally entitled to appointed representation in the City of Mount Vernon, and the City of Burlington by the Public Defender as an independent contractor. WHEREAS, the Cities and the Public Defender agree that any and all funds provided pursuant to this Contract are provided for the sole purpose ofprovision of legal services to indigent persons charged with crimes in the Municipal Department ofthe Skagit County District Court. NOW, TI!EREFORE, in consideration of the mutual benefits to be derived, the promises and covenants contained herein, and other good and valuable consideration, the Parties CONTRACT AND AGREE as follows: Section 1: DEFINITIONS A. Case Assignment: A case assigrunent is that particular case assigned by the Cities, the Office of Assigned Counsel, or the Court to the Public Defender. B. Case Credit: Case credit is a unit ofwork computed as follows. The Public Defender will receive no credit for a misdemeanor case when the Court dismisses the case upon the motion of the prosecuting attorney before any legal services have been provided. The Public Defender will receive no credit for work done on cases which are subsequently identified as conflicts with the exception of cases in which (after work has been perfonned) the client obtains a new attorney at his own expense or through a request to the Court, or for other extraordinary circumstances approved by lhe City including, but not limited to, infonnation or evidence which Public Defender could not have reasonably known or discovered at the time of the initial conflicts check. Each pre-trial case is counted once only, irrespective of any subsequent reappointments pursuant to when a client fails to appear (FTA). They will be counted at the time of first appointment. Cases where a defendant was previously represented by the Public Defender, that were previously counted when they were in a pre-trial status, will not be counted again unJess the defendant FTA's at a post-conviction hearing. Post-conviction cases where
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defendants FTA and are subsequently reappointed to the Public Defender will be counted again; however, this will occur only once. No matter how many times a defendant FTA's and the Public Defender is reappointed when the case is in a post-conviction status, the case will be recounted on1y once.

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The Parties recognize that there exists a distinction in types ofmisdemeanors which

require different time and effort to ensure effective representations. Moreover court

administrative procedures and jurisdictional policies are in place for certain simple

misdemeanors such a.s bail forfeitures, po~ aod· forfeiture stipulations, and civil

compromises for offenders of certain misdemeanors that permit a Public Defender to

handle more misdemeanor cases. Therefore the following units of credits shall be

considered when determining case credit workload standards:

1. Driving While License Suspended Third Degree first three offenses, Theft Third

Degree first or second offense, NVOL w/o Identification fint three offenses,

Malicious Mischief under $50 first offense, Unlawful Issuance of Bank Checks

[other] or misdemeanor case of similar complexity as determined by the Contract

Administrator shall be 1/3 a case credit.

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2. Driving While License Suspended Third Degree third or greater offense, Driving While License Suspended Second Degree, Malicious Mischief under $50 second or greater offense, Malicious Mischief over $50, Negligent Driving First Degree, Theft Third Degree third or greater offense, or misdemeanor case of similar complexity a.s
determined by the Contract Administrator sl)all be Yz a case credit.
3. All other misdemeanors shall be 1 case credit. Under no circumstances shall the crimes of Driving under the Influence, Physical Contra~ Reckless Driving, Assault Fourth Degree (either Non-Domestic or Domestic Violence), Violation of a No Contact Order, Protection Order, or Restraining Order, or any appeal of any misdemeanor be considered less than l case credit.

C. Cities/Cjty: Cities or City refers to both the City ofMount Vernon and the City of Burlington.

D. Client: An indigent person who has been assigned to the Public Defender by a City, the Office ofAssigned Counsel, or the Court.

E. Completed Case: A completed case involves all necessary legal acdon from nrraignment through disposition or the necessary withdrawal of counsel after the substantial delivery of legal services. This includes the filing of a notice of appeal upon the client's request, application to proceed in forma pauperis on appeal, and a motion for appointment of appellare coWtSel. It shall not include a misdemeanor probation review unless such review occurs within forty-five (45) days of disposition. Additionally, it shall not include any hearing ordered at the conclusion of a deferred sentence unless such hearing occurs within forty-five (45) days of sentencing.

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F. Contract .AdmiDistratpr: The Contract Administrator for the City ofMount Vernon shall be the Project Administrator in the Office of the Mayor; the Contract Administrator for the City of Burlington shall be the City Administrator G. Court: Court is the Municipal Court ofBurlington and the Municipal Court of Moun< Vernon; both are municipal departments of the Skagit County District Court. H. Criminal Case: A case is any one charge or series ofrelated charges filed against one · defendant/respondent set for one court hearing that will ultimately lead to one disposition. Ifadditional charges are filed against a defendant/respondent while the initia..! assignment remains pending, the additional charges shall be counted as _a new case only ifthe charges arise out ofa separate incident. I. Criminal Case Disposition: Case disposition shall mean the dismissal of charges, the entering of an order ofdeferred prosecution, an order or result requiring a new trial, imposition of sentence or deferral ofsame, or dispositional continuance and further hearing on that cause number, entry ofan order for deferral of sentence, or exhaustion of appellate rights. A restitution hearing ordered at the time of original disposition, whether it is held within forty-five (45) days or subsequently, shall be included as part of the case
as defined by this disposition description. It shall include the filing of a notice ofappeal,
if applicable. It shall not include a misdemeanor probation review unless such review occurs within forty-five (45) days of disposition, or a review set at the time of sentencing. Additionally, it shall not include any hearing ordered at the conclusion of a deferred sentence unless such bearing occurs within forty-five (45) days of sentencing. J. Discovery: Discovery consists ofthose reports, letters, memorandums, after-action reports, incidents reports, witness statements, officers' statements, expert witness reports which the City Prosecutor is obligated to provide on a continuing basis under State law or court rule and pursuant to State and Federal Constitutional requirements. K. Legal Service: Legal service is legal representation provided by an individual licensed attorney and associated paraprofessional staff to an individual client, pursuant to a case assigmnent or court appointment. The attorney is required by the Public Defender lo satisfy the Code ofProfessional Responsibility, the law of the State ofWashington and the United States in the full discharge ofthe attorney's duties to each individual client under this Contract. L. Indigent Defend®t: An indigent defendant is a person who has been determined to be indigent by the Court, the City, or the Office ofAssigned Counsel as being eligible for a court-appointed attorney, pursuant to RCW 10.101. M. Mayor: Mayor is the Mayor of Mount Vernon or designee and the Mayor of Burlington or designee.
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N. Misdemeanor Practice Area:

1. Misdemeanor Case: Any criminal case filed by the Mount Vernon or Burlington
City Attorney in their respective Municipal Courts whether a misdemeanor or a gross misdemeanor.

2. Misdemeanor Appeal: A misdemeanor appeal involves filing the notice of appeal, if necessary, perfecting the record following the filing of the notice of appeal, preparation ofthe transcript pursuant to Rule 6.3a RALJ, pr~paring such briefs and
memoranda as are required, arguing the case in superior court. and handling such paperwork as ilie superior court's decision nnd orders direct.

3. Misdemeanor Writ: A writ involves filing notice, perfecting the record, preparing such briefs and memoranda as required, arguing the case in superior court and handling such paperwork as the superior court's decision and orders direct.
0. Paraprofessional Staff: Investigators, social workers and paralegals.

P. Public Defender: The Public Defender is Richard M. Sybrandy, P.0. Box 175 MoWlt
Vernon, WA 98273-0175, and Morgan M. Win, P.0. Box. 726, Mount Vernon, WA 98273-0726

IMUJ Q. Second.a~ Defender: The
address is ~! If\} ~VVt( d

Secondary Defender is Glen Hoff-Attorney
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at

Law-

whose

Section 2: PUBLIC DEFENSE STANDARDS
The City adopts the following standards for the delivery ofPublic Defense Services, pursuant to RCW 10.101.030:
A. Compensation of Counsel: Compensation of counsel shall be in accordance with the schedule set forth in Attachment 1.
B. Duties and Responsibi1ities of Counsel: The duties and responsibilities ofcounsel shall be in accordance with Section 4 F as well as the -practice standards required by Section 5 A.
C. Caseload Limits. The maximum nwnber of cases which each Public Defender serving under the Contract shall handle shall not exceed 400 caseload credits per year.
D. Responsibilitv for Expert Wimess Costs: After approval by the CoUrt, expert witness fees will be paid by the City.
E. Administrative Expenses: Administrative e":penses shall be paid out of compensation provided to the Public Defender as described in Attachment I.

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F. Support Services: The Public Defender warrants that it shall provide adequate investigative, paralegal, and clerical services and facilities necessary for representation of indigent defendants. The Public Defender shall establish reasonable office hours in which to meet with defendants prior to the day of hearing or trial. The Public Defender shall be responsible for ensuring that they are able to properly communicate with defendants. Parties acknowledge that many clients will speak English as a second language or not at all. G. Twenty-Four How- Telephone Access: At the time ofexecution of this agreement, the Public Defender shall provide to the police departments of the Cities the telephone number or numbers at which the Public Defender can be reached for critical stage advice to defendant during the cow-se ofpolice investigation and/or arrests twenty-four (24) hours each day. H. Supervision. The Public Defender shall provide for appropriate and competent supervision of attorneys, if necessary, depending on their experience, skill and the simplicity or complexity ofthe cases they are assigned. The Public Defender shall ensure compliance with RPC 5.1 and 5.3. I. Non-discrimination. The Public Defender in their representations ofdefendants shall not discriminate on the grounds ofrace, color, religion, national origin, age, marital status, gender, sexual orientation, or disability. The Public Defender shall comply with all federal, state, and local non-discrimination requirements, including RPC 8.4 (h). Section 3: DUR.L\.TION OF CONTRACT This Contract shall commence on the ftrst (1st) day ofJanuary 2009 and terminate the thirty-first (31st) day of December 2010 unless extended or terminated earlier pursuant to the tenns and conditions of this Contract. The Parties may mutually agree to extend the Contract for an additional term oftwo (2) years, terminating on December 21,2012. The Public Defender shall notify the Cities on or before September 1, 201 0 in the event the Public Defender desires to extend the Contract. Section 4: SCOPE OF WORK The Scope of Work of this Contract is as described in Lhe RFP and the Response to the RFP which are attached to and made a part ofthis Contract A. Purnose: Tbe purpose of this Contract is to provide legal services through effective assistance of counsel to indigent persons. Legal Services shall be statutorily and constitutionally based, within the framework of an efficient and fiscally responsible independent Public Defender. B. Professional Conduct: L. The Public Defender shall provide the services ofattorneys and staff members in compliance with all ofthe applicable laws and administrative regulations of the State
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of Washington, the United States, MoWlt Vernon MWlicipal Code, Burlington Municipal Code, and the Washington State Rules for Professional Conduct (RPC). 2. Nothing in this Contract shall be construed to impair or inhibit the exercise of independent, professional judgment by an attorney employed by the Public Defender with respect to any client wherein an attorney-client relationship has been established pursuant to the terms ofthis Contract. 3. Nothing in this Contract shall require or permit, without the consent of the • defendant, access to, or disclosure of, any confidential communication made by a defendant to any attorney employed by the Public Defender or any such confidential communications made to agents or employees ofthe Public Defender for such attorney; the advice given by an attorney to a defendant; or any other statements and materials privileged from disclosure in a court of law, provided, however, that the Public Defender me.y disclose such information in accordance with RPC 1.6. 4. Attorneys and staff employed by the Public Defender shall not solicit or accept any compensation, gifts, gratuities, or services from any defendant. C. Eligible Population: The population served shall be indigent persons legally entitled to appointed legal services in Mount Vemon Municipal Court and Burlington Municipal Court as assigned by the Court or by the Office of Assigned Counsel on behalf of the Court. D. Conflicts: The Public Defender reserves the right to decline to advise or represent any person on the basis ofactual legal, ethical, or professional conflict of interest as is prohibited by RPC 1.6- 1.8. The Public Defender shall perform a conflicts check before any substantial work is done on the case. No payment shall be made for work done on cases which are subsequently identified as conflicts with the exception of extraordinary circumstances approved by the City including, but not limited to, information or evidence which the Public Defender could not have reasonably known or discovered at the time of the initial conflicts check. E. Duties and Responsibilities of the Public Defender-Independent Contractor: The Public Defender shall: I. Hire all Public Defender personnel; 2. Provide fiscal management; establish compensation ofpersonnel; maintain payroil records and provide payments for all personnel including withholding of income taxes, payment of social security taxes, payment ofworker compensation and industrial insurance taxes (where applicable), and fiinge benefits; 3. Supervise and maintain the quality of staff and services received or perfonned, and provide internal evaluation sessions as necessary;
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4. Suspend, remove, or terminate personnel not adequately performing the duties and responsibilities assigned, mishandling funds, engaging or condoning misconduct, or whose conduct or continued performance of duties is detrimental to the Public Defender program; 5. Accept and represent all cases and defendants officially referred by the Court (or by the Office of Assigned Counsel on behalf of the Court) w1less \\ithdrawal from
. such representation is allowed in accordance with provisions as stated above;
6. In the event that this Contract is terminated or not renewed, continue the representation of all defendants who have been referred by the Court during the period in which the Contract is in effect for the compensation received or receivable under the terms of the Contract, provided that completed representation is not made impossible by a client's failure to appear, until withdrawal or termination of representation is permissible Wlder RPC 1.16 as now or hereafter amended including obtaining permission by the Court for withdrawal when required .. F. Duties and Responsibilities of Public Defender Attorneys: In order to perform their duties under this Contract, staff attorneys of the Public Defender shall: 1. Counsel and represent in all ensuing criminal proceedings before appeal those defendants who are officially referred by the Court. Such services include, but are not limited to: preparation for a.nd representation of the client at the pre·trial hearings, trial, sentencing, post conviction review, and any appeals to Superior Court of Washington Appellate Courts, and attending all coW1 hearings required by the Washington Court or Local Court Rules now or hereafter adopted. 2. Use City funding to represent defendants only in criminal matters in Mount Vernon and Burlington municipal courts. Attorneys shall not use City funding to represent persons in any matter which is civil in nature, including civil infractions and property forfeiture actions brought pursuant to Chapter 59.50 RCW. 3. Counsel defendants with regard to their rights to appellate review and file any necessary notice for appellate review when requested by a defendant. 4. The Public Defender will be available to talk and meet in person with indigent defendants in the Skagit County Jail and/or an appropriate location in either the City of Burlington or the City ofMount Vernon that provides adequate assurances of privacy. Section 5: PERFORMANCE AND QUALIFICATIONS A. Practice Standards and. Records I. The Public Defender shall ensure that all attorneys, paraprofessional staff, and supervisors shall maintain contemporaneous records ofall legal sen.-ices provided on
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a specific case. The records shall provide a factual description ofthe work done and shall be sufficiently detailed to allow monitoring oflegal service activity by the Contract Adrninjstrator. 2..The Public Defender agrees that, within availabJe resources, reasonable efforts will be made by the Public Defender to continue the initial attorney assigned to a defendant throughout any case in which representation is undertaken. The Public Defender is not prohibited from rotating attorneys or from assigning a single attorney to handle various aspects oflegal proceedings for all indigent pe~ons where such method of assiglllllent is the most reasonable method of obtaining effective legal representation for indigent persons. 3. A member ofthe Public Defender staffsbalJ obtain basic contact and other fundamental intake information for a bail hearing within one ( 1) court day from notification to the Public Defender ofthe assignment of the case and the in-custody status of the defendant. 4. The Public Defender shall provide defendants with contact information for availability during office hours. The Public Defender will also rerum phone calls or other attempts to contact the Public Defender within forty-eight (48) hours, excluding weekends. 5. Discovery. Each City shall provide through their City Attorney's Office to the Public Defender at no cost to the Public Defender or the defendant one (1) copy of all discoverable materials concerning each assigned case with the exception of audio and video tapes which shall be made available for inspection in accordance with rules for discovery. 6. Discovery shall be reviewed.within five (5) days after receipt for purposes of determining any conflicts of interest. The Public Defender shall notify the Contract Administrator ofany conflict of interest as defined by the Washington State Rules of Professional Conduct. The Public Defender shall provide the Contract Administrator with a written explanation stating the basis for the conflict in its notification. 7. The Public Defender shall establish and enforce policies and procedures to ensure that attorney time and other Defender resources funded by this Contract shall only be
used for work which is authorized by this Contract.
8. The Public Defender shall ensure that a preliminary written response to any wrinen complaints concerning services provided by the employees ofthe Defender or the Defender itselfshall be submitted to the Contract Adnrinistrator within three (3) working days of the date the complaint is received by the Public Defender. Written complaints include e-mail communications from the Contract Administrator. 9. The Public Defender shall establish policies and procedures for other work that may be provided by staff or attorneys of the Public Defender. These policies and
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procedures shall assure that any such work is not provided to the exclusion or detriment oflegal services that are the subject of this Contract. 10. The Public Defender shall provide defense services in a professional, skilled mwmer consistent with the Rules of Professional Conduct, case Jaw and applicable court rules defining the duties of counsel and the right of defendants in criminal cases and will act with reasonable diligence and promptness in representing a defendant.
B. Minimtun Auorney Qualifications: 1. Every Public Defender auomey providing indigent defense services must be a licensed member ofthe Washington State Bar and be a member in good standing of the Bar. 2. Every Public Defender attorney shall sailifY the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; seven (7) hours of each year's required continuing legal education credits shall be in courses relating to criminal law practice or other areas of law in which the Public Defender provides legal services to defendants under the terms of this Contract. The Public Defender will maintain for inspection on its premises records of compliance with this provision. 3. The Public Defender may employ interns pursuant to Admission to Practice Rule (APR) 9. No more than 30% ofthe cases handled by the Public Defender may be assigned to Rule 9 interns. 4. Any Public Defender attorney who supervises a misdemeanor attorney must have at least three years of criminal defense experience in superior, district or municipal courts in Washington State. 5. Unless prior written approval has been granted by the Contract Administrator, no
attorney may provide services under this Contract ifthat attorney has been removed from representation in a case for failure to perform basic services necessary to the case or person, or in any manner has been found to be ineffective on appeal by either an ethics panel or by an appellate court. C. Monitoring and Evaluations: With respect to a nonlawyer employed or retained by or associated with the Public Defender, the Public Defender shall ensure that the Public Defender has in effect measures giving reasonable assurance that the persons conduct is compatible with professional obligation of the Public Defender required under RPC 5.3 as now or hereafter amended including performing professional performance evaluations of paraprofessional staff when warranted and engaging in appropriate discipline when the Public Defender knows of specific conduct that would be e. violation of the Rules of
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Professional Conduct. The Public Defender shall submit to the City a report of any discipline arising out of the performance ofthis agreement by paraprofessional staff. Subordinate attorneys may not be employed by the Public Defender to be used in the performance of this agreement unless agreed to by the parties and a systematic monitoring and evaluation ofattorney perfoiiilBilce is established
Section 6: PAYMENT
A The Cities shall reimburse the Public Defender for the services as specified in Section 4, Scope ofWork, in accordance with the fee schedule set forth in Attachment 1. B. The Public Defender shall provide the Cities with a certification of completed case assignments twenty (20) working days after the close of each calendar month. C. Should the Contract terminate prior to December 31, 2010, the Public Defender will refund any pro-rated portion ofpayments back to the City.
D. No payment shall be made for work done on cases whlch are subsequently identified as conflicts with the exception ofext:raordinaiy circumstances approved by the Contract Administrator ofthe applicable City including, but not limited to, information or evidence which Public Defender could not have reasonably known or discovered at the time of the initial conflicts check
E. In the event of failure to comply with any items and conditions ofthis Contract or to provide in any manner the work or services as agreed to herein, the City reserves the right :o withhold any payment until the City is satisfied that corrective action has been taken or completed. This option is in addition to and not in lieu ofthe City's right to tennination as provided in Section 11 ofthls Contract.
Section 7: REPORTING REQUIREMENTS Case Management System: The Public Defender will implement a case management system that will allow them to file the monthly reports described below.
Reporting: The Public Defender will provide the City with monthly reports in spreadsheet format on all completed cases. These reports must contain:
~ Defendant's name
> Cause number(s)
~ Criminal charges filed
:r Ifit was e. probation review hearing
> Disposition of each charge
~ Defendant's jail custody status prior to sentencing
> Bench Trial, Jury Trial, Plea or Dismissal
» Whether an appeal was filed
)> Attomey(s) name(s)
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}> Hours spent by attorney
The City, or any of its duly authorized representatives, shall have access to any such books, records and documents for inspection, audit and copying. The report is due on or before the twentieth (20~ day of the following month for services of the prior month. Payment may be withheld until such reports are submitted. The Public Defender wilt immediately notify the Contract Administratoi; in .writing when it becomes aware that a complaint lodged with the Bar Association has resulted in reprimand, suspension, or disbarment of an attorney providing services under this Contract. Section 8: INTERNAL CONTROL AND ACCOUNTING SYSTEM The Public Defender shall establish and maintain a system of accounting and internal controls that comply with generally accepted accoWlting principles and financial reporting standards applicable to publicly supported corporations as prescribed by the Financial Accounting Standards Board. Section 9: ADDRESSES FOR NOTICES AND DELIVERABLE MATERIALS All official notices under this Contract shall be delivered to the foJlowing addresses (or such other address(es) as either party may designate in writing: lfto City ofBurlington: City Administrator 833 S. Spruce Street Burlington, WA 98233-1945 lfto the City of Mount Vernon: Project Administrator 910 Cleveland Avenue Mount Vernon, WA 98273 If to the Public Defender: Richard M. Sybrandy P.O. Box 175 Mount Vernon, WA 98273-0175, and Morgan M. Witt P. O. Box 726 Mount Vernon, WA 98273-0726
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Section 10: CORRECTIVE ACTION

If the City believes that a breach of this Contract has occurred, and if the City believes said breach to warrant corrective action, the following sequential procedure shall apply:
A. The City will notify the Public Defender in writing the nature of the breach;
B. The Public Defender shall respond in writing within three (3) working days of its receipt of such notification, which response shall indicate the steps beic.g taken to correct the specified deficiencies, and the proposed completion date for bringing the Contract into compliance, which date shall not be more than ten (I 0) working days from the date ofthe Public Defender's response;

C. The City will notify the Public Defender in writing of the City's determination as lo the sufficiency ofthe Public Defender's corrective action plan. The determination of the sufficiency of the Public Defender's corrective action plan will be at the sole discretion of the City; however, the City's detennination ofthe sufficiency ofthe Public Defender's corrective action plan shall take into consideration the reasonableness ofthe proposed corrective action, in light of the alleged breach. In all cases where corrective action is determined by the City to be appropriate, the City shall ·work with the Public Defender to implement the plan;

D. In the event that the Public Defender does not respond within the appropriate time with the corrective action plan, or the Public Defender's corrective action plan is determined by the City to be insufficient, the City may commence termination of this Contract in whole or in part pursuant to Section 11 (A) Termination and Suspension;
E. In addition, the City may withhold any payment owed the Public Defender or prohibit the Public Defender from incurring additional obligations of funds until the City is satisfied the corrective action has been taken or completed; and

F. Nothing herein shall be deemed to affect or waive any rights the Parties may have pursuant to Section 11 Termination and Suspension.

Section 11: TERMINATION AND SUSPENSION

A. Either Burlington or Mount Vernon may terminate this Contract in whole or in pllrt

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upon ten (1 0) days' written notice to the Public Defender in the event: ·

I
I

J. The Public Defender substantially breaches any duty, obligation, or service required pursuant to this Contract including the failure to render adequate

representation to defendants; the willful disregard of the rights and best interests of

the defendant; and the willful disregard of the standards set out in this Contract. Any

violation of the Rules of Professional Conduct, as detennined by the WSBA, will be

cause for Contract termination.

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2. The Public Defender engages in misappropriation of funds or fraudulent disbursement of funds. 3. The duties, obligations, or services herein become impossibie, illegal, or not feasible. A termination by either Burlington or Mount Vernon shall constitute a termination of the entire Contract including the rights and obligations under the Contract for both Cities. Should the non-terminating City wish to have the Public Defender continue providing services, it shall enter into a separate Contract with the Public Defender. Before a City terminates this Contract pursuant to subsection 11. A. -Termination e.nd Suspension, the City shall provide all Parties written notice of termination, which notice shall include the reasons for termination and the effective date of termination. The Public Defender shall have the opportunity to submit a written response to the City within (1 0) working days from the date of the City's notice. ffthe Public Defender elects to submit a written response, the Contract Administrator will review the response and make a determination within ten (10) days after receipt ofthe Public Defender's response. In the event the Public Defender does not concur with the determination, the Public Defender may request a review of the decision by the Mayor. In the event the Mayor reaffirms termination, the Contract shall terminate in ten (1 0) days from the date ofthe final decision of the Mayor. If the Mayor does not make a final determination within twenty (20) days provided herein, the Contract shall remain in full force and effect until such decision is mttde and communicated to the Public Defender. Once a .final determination is made by the Mayor, and if such determination sustains the decision oftermination, said decision shall become effective ten (10) days from the date the final determination is made and communicated to the Public Defender. In the event this Contract is terminated in whole or in part pursuant to Subsection A of this Section, the Public Defender shall be liable for damages, including the reasonable costs of the procurement ofsimilar services from another source unless it is detennined by the Contract Administrator that (i) no default actually occurred, or (ii) the failure to perform was without the Public Defender's control, fault or negligence. B. In the event ofthe termination or suspension ofthis Contract, the Public Defender shall remit any unexpended balance of funds paid for cases assigned and not completed, less the amount the City and the Public Defender agree shall be necessary to deliver services in those cases. The Contract Administrator may request the Public Defender to attempt to withdraw from any case assigned and not completed. Provided that, should a court require, after the Public Defender has attempted to withdraw, the appearance of counsel from the Public Defender for any defendant previously represented by the Pubiic Defender where such representation is no longer the obligation of the Public Defender pursuant lo L~e terms of this Contract, the City will honor payment to the Public Defender upon judicial verification that continued representation is required. The amount to be paid 10 the Public Defender shaU be on the same basis as assigned counsel payments.
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C. The Public Defender reserves the right to terminate this Contract with cause with
thirty (30) days wrinen notice should the City substantially breach any duty, obligation or service pursuant to this Contract. In the event that the Public Defender terminates this
Contract for reasons other than cause resulting from substantial breach of this Contract by
the City, the Public Defender shall be liable for damages, including the excess costs of the procurement of similar services from another source, unless it is determined by the Contract Administrator that (i) no default actually occurred, or (ii) the failure to perfonn was without the Public Defender's controJ••fauit ·or negligence. A termination by the Public Defender shall constitute a termination ofthe entire Contract including the rights and obligations under the Contract for both Cities. Should a City and the Public
Defender desire to have the Public Defender continue providing public defender services, lhe Parties shall enter into a separate Contract.
D. In the event that termination is due to misappropriation of funds, non-performance of
the scope of services, or fiscal mismanagement, the Public Defender shall return to the
City those funds, unexpended or misappropriated, which, at the time of termination, have been paid to the Public Defender by the City.
E. OtheiWise, this Conuact shall terminate on the date specified herein, and shall be subject to extension only by mutual agreement of the Parties hereto in writing.
F. Nothing herein shall be deemed to constitute a waiver by either Party of any legal right
or remedy for wrongful tennination or suspension of the Contract. In the event that legal remedies are pursued for wrongful termination or suspension or for any other reason, the
nonpprevailing Party shall be required to reimburse the prevailing Party for 1111 attorneys'
fees.
G. In the event oftermination, suspension, or nonprenewal of this Contract, all cases not required to be completed by the Public Defender shall be returned to the Contract
Administrator for reassignment.
Section 12: DISPUTES (OTHER THAN SUSPENSION OR TERMINATION)
A. The Public Defender shall address questions or claims regarding meaning and intent of
the Contract or arising from this Contract in writing to both Cities Contract Administrators, within ten (10) calendar days of the date in which the Public Defender
knows or should know of the question or claim. The Cities will ordinarily respond to the
Public Defender in writing with a decision, but absent such written response, the question or claim shall be deemed denied upon the thirtieth (301h) day following receipt by the City.
B. In the event the Public Defender disagrees with any determination or decision oft he
City, the Public Defender may, within len (I 0) caJendar days of the date of such
determination or decision, appeal the determinat1on or decision in writing to both
Contract Administrators. Such written notice of appeal shall include all documents and
!6

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 86 of 100
other infonnation necessa.ry to substantiate the appeal. The Contract Administrators will review the appeal and transmit a decision or determination in writing. The decision v.'ill be considered final. Appeal to the Contract Administrators shall be a condition precedent to litigation hereunder.
C. Pending final decision of a dispute hereunder, the Public Defender shaJl proceed
diligently with the performance of the Contract and in accordance with the direction of the Cities. Failure to comply precisely with the time deadlines under this subsection as to - · any claim shall operate as a waiver and release ofthat claim and an acknowledgment of prejudice to the Cities. Section 13: EQUAL EMPLOYMENT OPPORTUNITY AND OUTREACH The Public Defender shall not discriminate against any employee or applicant for employment because ofrace, religion, creed, age, color, sex, marital status, sexual orientation, gender identity, political ideology, ancestry, national origin, or the presence of any sensory, mental or physical handicap, unless based upon a boca fide occupational qualification. The Public Defender shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their creed, religion, race, age, color, sex, national origin, marital status, political ideology, ancestry, sexual orientation, gender identity, or the presence of any sensory, mental or physical handicap. Section 14: SECONDARY DEFENDER In the event the Public Defender must withdraw from a case because of a conflict of interest, the Public Defender shall refer the Defendant to the secondary Defender who shall provide another attorney competent and able to provide legal services to indigents. The cost of conflict counsel shell be paid according to the schedule set forth in Attachment 2. Section I 5: OTHER LEGAL REQUIREMENTS A. General Requirement: The Public Defender, at no expense to the City, shall comply with all applicable laws of the Urrited States and the State ofWashington; the ordinances of The City of Mount Vernon Rnd The City of Burlington; rules, regulations, orders, and directives of their administrative agencies and the officers thereof. Without limiting the generality of this paragraph, the Public Defender shall specifically comply with the following requirements of this section. B. Licenses and Similar Authorizations: The Public Defender, at no expense to the City, shall secure and maintain in full force and effect during the term of this Contract all required licenses, pennits, and similar legal authorizations, and comply with all requirements thereof.
17

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 87 of 100
C. Americans with Disabilities Act: The Public Defender shall comply with all applicable provisions of the Americans with Disabilities Act of 1990 (ADA) in performing its obligations under this Contract. Failure to comply with the provisions of the ADA shall be a material breach of: and grounds for the inunediate tennination of, this Contract.
Section 16: INDEMNIFICATION
The Public Defender does hereby release and shall defend, indemnifY, and hold the Cities and its employees, officers and agents harmless from all losses, liabilities, claims (including claims arising under federal, state or local environmental laws), costs (including attorneys' fees), actions or damages ofany sort whatsoever arising out of the Public Defender's performance of the services contemplated by this Contract to the extent attributable to the negligent acts or omissions, willful misconduct or breach of this Contract by the Public Defender, its servants, agents, and employees. In furtherance of these obligations, and only with respect to the Cities, its employees, officers and agents, the Public Defender waives any immunity it may have or limitation on the amount or type of damages imposed under any industrial insurance, worker's compensation, disability, employee benefit or similar laws. The Public Defender acknowledges that the foregoing waiver of immunity was mutually negotiated and agrees that the indemrufication provided for in this section shall survive any termination or expiration of this Contract.
Section 17: INSURANCE
Insurance certification required. The Public Defender must carry the following coverages and limits of liability, nllJlling the Cities as e.n additional insureds:
• General Liability with a minimum limit of liability of $1 ,000,000 combined single limit each occurrence bodily injury and property damage.
• Automobile Liability covering owned and non-owned vehicles with a minimum limit of liability of$1,000,000 combined single limit each occurrence bodily injury and property damage.
• Professional Liability (Errors, and Omissions) for attorneys with a minimum limit of liability ofS1,000,000 each claim.
• Workers' Compensation per statutory requirements of <he Washington industrial insunmce RCW Title 51.
Written proof of the insurance policy for calendar year 2009 shall be filed with the Cities at the inception of this Contract and no later than December 31. 2008, and a11ain no later than Januarv 1 of each succeeding year of the Contract. The Public Defender shall provide the Cities with proof of insurance for "tail coverage" no later than December 31, 2008. The purpose of''ta.il coverage" is to provide insurance coverage for all claims that might arise from occurrences during the tenn of the Contract or extension(s) thereof, but not filed during the term of the Contract.
Section 18: ESTABLISHMENT AND MAINTENANCE OF RECORDS
18

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 88 of 100
A. The Public Defender covenants and agrees that it shall maintain all records which sufficiently and properly reflect all costs and indirect costs of any nature for any subcontracts or personal service contracts. Srud records shall include, but not be limited to, documentation of any funds expended by the Public Defender for said personal service contracts or subcontracts, documentation of the nature of the service which is rendered, and records which demonstrate the amount of time spent by each subcontractor or personal service contractor rendering service pursuant to the subcontract or personal service contract. · B. These records shall be maintained for a period of (6) years after tennination hereof unless permission to destroy them is granted by the Office of the Archivist in accordance with RCW Chapter 40.14. C. Willful failure to maintain or produce records or other required documentation during the time for maintenance ofre,cords may result in specific, related costs being disallowed. In the event the City has reason to believe that such a failure exists, notice shall be given to the Public Defender and the Public Defender shall respond in writing. The time for notification and response shall be the same as set forth in Section 10. Ifthe Public Defender's response is deemed unacceptable, the question ofwhether or not specific costs are disallowed shall be determined by a City appointed, qualified independent Certified Public Accountant, in a manner consistent with generally accepted auditing standards and accounting principles. Disallowed costs may be recovered from . the Public Defender by the City. Section 19: AUDITS. RECORDS. AND ANNUAL FINANCIAL STATEMENTS A. The Public Defender shall maintain records and accounts in accordance with Section 7 of this agreement, including records of the time spent by the Public Defender on each case. The Public Defender must ensure that the City has full access to materials necessary to verify compliance with all tenns of this Contract. At any time, upon reasonable notlce during business hours and as often as the City may deem necessary for a period of six (6) years, the Public Defender shall provide to the City right of access to ils facilities, including those of any subcontractor, to auditing records, data, invoices, materials, payrolls and other data relating to all matters covered by this Contract. Provided that if any such data, records or materials are subject to any privilege or rules of confidentiality the Public Defender must maintain such data in a form or manner to provide same to the City that will not breach such confidentiality or privilege. The Public Defender shall maintain such data and records in an accessible location and condition for a period of not less than !)ix (6) years following the receipt of final payment under this Contract, unless the City agrees in writing to an earlier disposition . The Public Defender agrees to cooperate with the City or its agent in the evaluation of the Public
!9

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 89 of 100
Defender's perlbnnance under this Contract and to make available all information reasonably required by any such evaluation process or ongoing reporting requirements established by the City. The results and records of said evaluations and reports shall be maintained and disclosed in accordance with RCW Chapter 42.17. ·
Notwithstanding any ofthe above provisions of this paragraph, all Constitutional, statutory, and common law rights and privileges of any indigent client are not waived. Provided further that nothing in this section shall require the disclosure ofthe names of any persons represented pursuant to RCW 13.34 et seq, or RCW 71.02 et seq, or RCW · 71.05 et seq.
B. All such reports as are required under the tenns of this Contract shall be submitted to the City via electronic media (e-mail attachment or diskette) within the time limits for each report.
Section lO: CONTRACTUAL RELATIONSHIP
The relationship ofthe Public Defender to the City by reason of this Contract shall be that ofan independent contractor. This Contract does not authorize the Public Defender to act as the agent or legal representative of the City for any purpose whatsoever and neither the Public Defender nor its employees shall be deemed employees ofthe City. The Public
Defender is not granted any express or implied right or authority to assume or create any
obligation or responsibility on behalf of or in the ·name ofthe City or to bind the City in any manner or 'thing whatsoever. It is expressly understood and agreed that the Public Defender and the Public Defender's employees shall in no event be entitled to any benefits to which City employees are entitled, including, but not limited to overtime, any retirement benefits, worker's compensation benefits, injUIY leave or leave benefits. The Public Defender shall complete this Contract according to the Public Defender's own means and methods of work, which shall be in the exclusive charge and control of the Public Defender and which shall not be subject to control or supervision by the City, except such requiiements for performance as are specified in this Agreement.
The Public Defender agrees that it has secured or will secure at the Public Defender's ovm expense, all persons, employees, and equipment required to perform the services contemplated/required under this Contract. The Public Defender further agrees that any equipment or materials acquired with funds provided by this Contract shall be utilized for the purpose ofperforming the services contemplated/required by this Contract.
Section 21: ASSIGNMENT AND SUBCONTRACTING
The Public Defender shall not assign or subcontract any of its obligations under this Contract without the Cities' written consen~ which may be granted or withheld ic the Cities' sole discretion. Said consent must be sought in ·writing by the Public Defender not less than fifteen (15) days prior to the date of any proposed assignment. Arly subcontnct made by the Public Defender shall incorporate by reference all the terms ofthis Contract.
20

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 90 of 100
The Public Defender shall ensure that all subcontractors comply with the obligations and requirements ofthe subcontract. The City's consent to any assignment or subcontract shall not release the Public Defender from liability Wlder this Contract, or from any obligation to be performed under this Contract, whether occurring before or after such consent, assignment, or subcontract. Section 22: ERRORS & OMISSIONS; CORRECTION The Public Defender shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by or on the behalf of the Public Defender Wlder this Contract. The Public Defender, without additional compensation, shall correct or revise any errors or omissions in the designs, drawings, specifications, and/or other Public Defender services immediately upon notification by the City. The obligation provided for in this section with respect to any acts or omissions during the term of this Contract shall survive any termination or expiration of this Contract. Section 23: CONFIDENTIALITY The Parties agree that they will not permit the duplication or disclosure of any information designated in advance by the other Party as "Confidential and Proprietary" to any person (other than its own employee, agent, or representative who must have such information for the perfonnance of that Party's obligations hereWlder) unless such duplication, use or disclosure is specifically authorized in writing by the other Party or is required by law. "Confidential and Proprietary" infonnation does not include ideas, concepts, know-how, or techniques related to information that, at the time of disclosure, is in the public domain unless the entry of that information into the public domain is a result of any breach of this Contract. Likewise, "Confidential and Proprietary" information does not apply to information that is independently developed, already possessed without obligation of confidentiality, or rightfully obtained from a third party without an obligation ofconfidentiality. Section 24: MISCELLANEOUS PROVISIONS A. Affiendments: No modification of this Contract shall be effective unless in miting and signed by an authorized representative of each of the Parties hereto. B. Binding Contract: This Contract shall not be binding W\til signed by the Parties. The provisions, covenants, and conditions in this Contract shall bind the Parties, their legal heirs, representatives; successors, and assigns. C. Applicable LawNenue: This Contract shall be construed and interpreted in accordance with the laws ofthe State of Washington. The venue of any action brought hereunder shall be in the Superior Court for Skagit CoWlty.
21

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 91 of 100
D. Remedies Cumulative: Rights under this Contract are cumulative and nonexclusive of any other remedy at law or in equity. E. Captions: The titles of sections are for convenience only and do not define or limit the contents. F. Severability: If any term or provision of this Contract is determined by a court of competent jurisdiction co be invalid or unenforceable, the remainder of this Contract shall not be affected !hereby, and each term and provision of this Contract shall be valid and enforceable to the fullest extent pemritted by Jaw. G. Waiver. No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the Parry against whom the waiver is claimed, and any waiver of the breach of any covennnt, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Neither the acceptance by the City of any performance by the Public Defender after the time the same shall have become due nor paymenr to the Public Defender for any portion of the Work shall constitute a waiver by the City of tbe breach or default of any covenant, term or condition unless otherwise expressly agreed to by the City, in writing. H. Entire Contract: This document, along with any exhibits and attachments, constitutes the entire Contract between the Parties with respect to rhe Work. No verbal agreement or conversation between any officer, agent, associate, or employee of the Ciry and any officer, Public Defender, employee or associate of rhe Public Defender prior to the execution of this Contract shall affect or modify any of rhe tenns or obligations contained in this Contract. I. Negotiated Agreem.ent: The Parties acknowledge that this is a negodated Contract, that they have had the opportunity to have this Contract reviewed by their respective legal counsel, and that the terms and conditions of this Contract are not to be construed against any Party on the basis of such Pany's draftsmanship thereof. IN WITNESS WHEREOF, in consideration of the terms, conditions, and covenants contained herein, or attached and incorporated and made a part hereof, the Parties have executed this Contract by having their representatives a,ffix their signatures below.
22

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 92 of 100

SECONDARY DEFENDER

BY:~ (~,, "~" .,._,;~) G<k., h•<'f

•"ME• "'•rv. Jl:A< .r c.•.,.-, Pv.1.

Title: A-1~ b "- u ~t A 'r LALJ

APPROVED: CITY OF MOUNT VERNON
(
---......._ ;pa~

Approved as to Fonn:
·/- z - - - - - - - -
Kevin Rogerson, City Attorney

Attest:
Alicia D. Huschka, Finance Director
APPROVED: CITY OF BURLINGTON

Attest:

23

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 93 of 100
ATTACHMENT 1 (Primary Public Defender Compensation) Mount Vernon shall compensate the Primary Public Defender in the amount of $117,400/year for combined services, or $121,750/year if arraignment is necessary as described herein. BDrlington shllll compensate the Primary Public Defender in the amount of $57,600/year for combined services, or$ 60,750 if arraignment is necessary as described herein. The Public Defender shall invoice each City on a monthly basis. Electronic invoices
will be accepted. In the event arraignment is necessary, the tnvoice shaH so reflect
arraignment as an additional cb.arge. The cities shall divide each monthly amount equally between each primary defender who is a signatory to this agreement.
24

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 94 of 100
ATTACHMENT 2 (Secondary Defender Compensation) The Secondary Public Defender shall be compensated directly by the Cities in the event a case for indigent defense is assigned as a result of a conflict of interest with the Primary Public Defender. The Secondary Public Defender shaH submit an invoice at the conclusion of the case to the City in which indigent defense services are provided. The lnvqice.sball reflect the time spent on the matter. The Secondary Public Defender shall be reimbursed by tbe City in which indigent defense services are provided for time spent on the case at an hourly rate of fifty five dollars per hour ($55.00/hr).
25

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 95 of 100
EXHIBIT C

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 96 of 100

City of Burlington ContracVAgreement Coversheet

CONTRACT NO. 2010-59

DEPARTMENT Administration

FEDERAL TAXPAYER I.D · - - - - - - - - - - - - - - - GRANTOR: ___~M~o~r~ga~n~w~~~&~R~Ic~h~ar~d~S~v~br~a~n~dv~------------SERVICES PROVIDED Extension of agreement Public Defender Services

AMT/FUND SOURCE - - - - - - - - - - - - - - - - DURATJON FROM: _1..!..!,/.!!.1/=.;20:!...;1!....!1_ _ _ __ TO 12/31/2011

Original :

City of Burlington City of Mount Vernon

Copies:

Finance Department

BURL_PDR-000217

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 97 of 100

FIRST AMENDMENT TO CITY OF MOUNT VERNON AND CITY OF BURLINGTON PUBLIC DEFENSE SERVICES CONTRACT
THIS AMENDMENT, entered into this~ day of hetrnb.e-£, 2010, by and
between City of Mount Vernon ("Mount Vernon"), a Washington municipal corporation, the City of Burlington ("Burlington"}, a Washington municipal corporation collectively
referred to herein as "the Cities" or individually as "the City" and Richard M. Sybrandy,
P.O. Box 175 Mount Vernon, WA 98273-0175, and Morgan M. Witt, P.O. Box 726, · Mount Vernon, WA 98273-0726 (together, the "Public Defender''), who are licensed to
practice law within the State of Washington.
W I T N E 5 5 E T H:
WHEREAS the Cities entered into an Agreement with the Public Defender dated January 1, 2009 for Indigent Defense Services which is set to expire December 31 51, 2010; and
WHEREAS the Agreement allows that the Parties may extend the term for an additional two years terminating on December 31, 2012; and
WHEREAS, the Parties hereto wish to extend the Agreement for the additional two years and amend the agreement as set forth below.
NOW, THEREFORE, the Parties hereby amend said Agreement, as follows:
1. Section 3 entitled DURATION OF CONTRACT of the Agreement is hereby amended to read as follows:
Section 3: DURATION OF CONTRACT This Contract shall commence on the first (1st) day of January 2009 and terminate the thirty-first (31st) day of December 2-Q4.Q 2012 unless extended or terminated ear1ier pursuant to the terms and conditions of this Contract. In addition. either Party may opt to shorten the tem of the Agreement to terminate on the thirty-first (31 51) day of December 2011: provided, however that the Partr. electing to earlier terminate provides written notice on or before the thirtieth (30th·) day of September 2011. The Parties may fRijtl:lally aeree te o>Etend tl:le Contrast for an additional term of two (2) years, ter~nating en Desember J1, 2012. Tl:le Publis Defender shall notify the Cities en or before Septelf!ber 1, 2010..JA--.tRe ev~t the Pl:lblie Defender desires to e~end the Centraet.
2. All other tenns and conditions of the original Agreement remain the same.
IN WITNESS WHEREOF the Parties hereto have executed this document as of the day and year first written above.

Amendmenl lo Public Defender Agreement, Page 1 of 3

BURL_PDR-000218

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 98 of 100
Date: !q·l4· 10
SECO~Y.~~~
TBiYtl:e-:_,.,~\o~n~R'~-~ li-~'tc....,'f-JC+C+lJlA.-V!).-J,- l---
h\) 1j Date: ) '2..

Amendment lo Public Defender Agreement, Page 2 of 3

BURL_PDR-000219

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 99 of 100

APPROVED :
Approved as to Form: Kevin Rogerson, City Attorney

CITY OF MOUNT VERNON Bud Norris, Mayor Attest:
Alicia D. Huschka, Finance Director

APPROVED:

CITY OF BURLINGTON

Attest:

Amendment to Public Defender Agreement, Page 3 of 3

BURL_PDR-000220

Case 2:11-cv-01100-RSL Document 1-1 Filed 07/05/11 Page 100 of 100

APPROVED:

••• #
CITY OF MOUNT VERNON

Approved as to Form:
..... ~ -·-------·
Kevin Rogerson, City Attorney

Attest: Alicia D. Huschka, Finance Director

APPROVED:
Approved as to Form: Scott G. Thomas, Cfty Attorney

CITY OF BURLINGTON
Edward J. Brunz. Mayor
Attest: Greg. Thramer, Finance Director

Amendment to Public Defender Agreemen~ Page 3 of 3

B U R L_ PDR-000221

 
 Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 1 of 100

1

THE HONORABLE ROBERT S. LASNIK

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

9 JOSEPH JEROME WILBUR, a Washington resident; JEREMIAH RAY MOON, a
10 Washington resident; and ANGELA MARIE MONTAGUE, a Washington resident,
11 individually and on behalf of all others 12 similarly situated,

NO. 2:11-cv-01100 RSL
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

13

Plaintiffs,

JURY DEMAND

14

v.

15 CITY OF MOUNT VERNON, a Washington municipal corporation; and CITY OF
16 BURLINGTON, a Washington municipal
corporation, 17

18

Defendants.

19

20

Plaintiffs Joseph Jerome Wilbur, Jeremiah Ray Moon, and Angela Marie Montague

21 (“Plaintiffs”), by and through their respective undersigned counsel, upon knowledge with

22 respect to their own acts and circumstances, and on information and belief as to other matters,

23 allege as follows:

24

I. INTRODUCTION

25

1. The Sixth and Fourteenth Amendments to the United States Constitution and

26 Sections 3 (due process), 12 (equal protection), and 22 (right to counsel) of Article I of the

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 1 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 2 of 100

1 Washington State Constitution guarantee indigent persons charged with crimes the right to

2 effective assistance of counsel. This right is fundamental and is essential to a fair trial. See

3 Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963);

4 Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

5

2. Defendant City of Mount Vernon (“Mount Vernon”) and Defendant City of

6 Burlington (“Burlington”) (collectively “Defendants”) have a constitutional duty to operate a

7 public defense system that provides effective assistance of counsel to indigent persons charged

8 with crimes.

9

3. Mayor Bud Norris is the executive officer of Mount Vernon and is responsible

10 for the execution of policies set by Mount Vernon’s city council. Mayor Norris is assisted in

11 the performance of his duties by Project Administrator Eric Stendal and City Attorney Kevin

12 Rogerson. The members of Mount Vernon’s city council are Bob Fiedler, Joe Lindquist, Scott

13 McMullen, Gary Molenaar, Ken Quam, Dale Ragan, and Mike Urban.

14

4. Mayor Edward J. Brunz is the executive officer of Burlington and is responsible

15 for the execution of policies set by Burlington’s city council. Mayor Brunz is assisted in the

16 performance of his duties by City Attorney Scott G. Thomas. The members of Burlington’s

17 city council are Ted Montgomery, Edie Edmundson, Joanne Valentine, Tonya Bieche, Chris

18 Loving, Bill Aslett, and Steve Sexton.

19

5. The mayors of Mount Vernon and Burlington, the mayors’ assistants, and the

20 city council members are responsible for establishing, implementing, and maintaining their

21 public defense system.

22

6. Defendants, under the direction of their respective mayors and city councils,

23 have breached their constitutional duties by operating a public defense system that regularly

24 and systematically deprives indigent persons of the right to assistance of counsel. Among other

25 things, Defendants have failed to impose reasonable caseload limits on public defenders, have

26 failed to monitor and oversee the public defense system, have failed to provide adequate funds

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 2 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 3 of 100

1 for public defense, and have failed to provide representation at all critical stages of prosecution.

2 As a result of these systemic and structural deficiencies, Defendants have constructively denied

3 indigent defendants of the right to counsel that is guaranteed under Gideon.

4

7. Defendants, through their officers, representatives and employees, have known

5 of the structural deficiencies of their public defense system for many years. Numerous

6 complaints have been lodged regarding Richard M. Sybrandy and Morgan M. Witt, both of

7 whom have long provided the primary public defender services for Mount Vernon and

8 Burlington under contracts with Defendants. Those complaints detail a systemic denial of the

9 constitutional right to assistance of counsel. Furthermore, Sybrandy and Witt have submitted

10 reports to Defendants showing that each attorney handles between 950 and 1,150 public

11 defense cases per year, if not more, while also maintaining a busy private practice.

12 Remarkably, Defendants’ contract with Sybrandy and Witt allows each attorney to handle up to

13 1,200 cases per year even though such a caseload is three times the maximum allowable

14 amount for a full-time public defender pursuant to standards established by the Washington

15 State Bar Association. Despite being aware of the extensive number of indigent defendants

16 who need assistance of counsel each year, Defendants have failed to provide adequate funding

17 for their public defense system.

18

8. Despite knowing of the deficiencies in their public defense system, Defendants

19 have failed to take reasonable steps to protect the constitutional rights of indigent persons.

20 Indeed, Defendants recently chose to extend their contract with Sybrandy and Witt by two

21 years.

22

9. Indigent persons have suffered and continue to suffer harm as a result of

23 Defendants’ violations of constitutional rights. Among other things, indigent persons are

24 deprived of adequate consultation and communication with their attorneys; indigent persons

25 must make decisions about their rights or contest issues without adequate factual or legal

26 investigation by their attorneys; indigent persons are deprived of meaningful opportunities to

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 3 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 4 of 100

1 present defenses; the rights of indigent persons are waived without proper consultation and

2 advice; indigent persons are deprived of the services of investigators and expert witnesses; the

3 cases of indigent persons are not properly prepared for trial; and indigent persons do not

4 receive meaningful benefits in exchange for guilty pleas.

5

10. Pursuant to 42 U.S.C. § 1983, the Sixth and Fourteenth Amendments to the

6 United States Constitution, and Sections 3, 12, and 22 of Article I of the Washington State

7 Constitution, Plaintiffs bring this class action lawsuit to ask this Court for injunctive and

8 declaratory relief to prevent further violations and to protect the constitutional rights of all

9 indigent persons charged with crimes in the municipal courts of Mount Vernon and Burlington.

10

II. JURISDICTION AND VENUE

11

11. The Court has jurisdiction over this action pursuant to 42 U.S.C. § 1983 in that

12 this is an action for deprivation of rights, privileges and immunities secured by the United

13 States Constitution.

14

12. The Court has jurisdiction over this action pursuant to Article IV, Section 6 of

15 the Washington State Constitution and RCW 2.08.010 in that this is a case in equity.

16

13. The Court has jurisdiction over this action pursuant to Article IV, Section 6 of

17 the Washington State Constitution and RCW 2.08.010 in that exclusive jurisdiction over this

18 matter has not been vested in some other court.

19

14. Venue is proper in this Court pursuant to RCW 4.12.025(1) because Defendants

20 are located and reside in Skagit County.

21

III. THE PARTIES

22

15. Plaintiff Joseph Jerome Wilbur is an indigent person who has been charged with

23 crimes in Burlington Municipal Court. Plaintiff Wilbur has been assigned a public defender

24 and, as of the date of the filing of the original complaint, that public defender was Richard

25 Sybrandy. Plaintiff Wilbur’s case in Burlington Municipal Court is currently pending.

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 4 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 5 of 100

1

16. Plaintiff Jeremiah Ray Moon is an indigent person who has been charged with

2 crimes in Mount Vernon Municipal Court. Plaintiff Moon has been assigned a public defender

3 and, as of the date of the filing of the original complaint, that public defender was Morgan Witt.

4 Plaintiff Moon’s case in Mount Vernon Municipal Court is currently pending.

5

17. Plaintiff Angela Marie Montague is an indigent person who has been charged

6 with crimes in Burlington Municipal Court. Plaintiff Montague has been assigned a public

7 defender and, as of the date of the filing of the original complaint, that public defender was

8 Morgan Witt. Plaintiff Montague has been sentenced in relation to the charges filed in

9 Burlington Municipal Court, but her case remains in active status.

10

18. Defendant City of Mount Vernon is a Washington municipal corporation located

11 in Skagit County.

12

19. Defendant City of Burlington is a Washington municipal corporation located in

13 Skagit County.

14

IV. CLASS ACTION ALLEGATIONS

15

20. Plaintiffs Wilbur, Moon, and Montague (collectively, the “Class Plaintiffs”)

16 bring this action pursuant to Civil Rule 23(a) and (b)(2) on behalf of themselves and all others

17 similarly situated (collectively, the “Class Members”) as members of the following proposed

18 plaintiff class (the “Class”):

19

All indigent persons wh o have been or will b e charged with one

or more crimes in the municipal courts of either Mount Vernon or

20

Burlington, who have been o r will b e ap pointed a public

defender, and who continue to have or will have a public

21

defender appearing in their cases.

22

21. The Class is so numerous that the individual joinder of all members is

23 impracticable. At any point in time, scores of indigent persons are charged with one or more

24 crimes in the municipal courts of Mount Vernon or Burlington, are appointed a public defender,

25 and continue to have a public defender appearing in their cases.

26

22. There are questions of law and fact common to the Class.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 5 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 6 of 100

1

23. The questions of law and fact common to all members of the Class include but

2 are not limited to: (a) whether Defendants have a duty to provide indigent persons charged with

3 crimes with assistance of counsel; and (b) whether Defendants have breached their duties.

4

24. The Class Plaintiffs’ claims are typical of the claims of the Class.

5

25. The Class Plaintiffs will fairly and adequately protect the interests of the Class.

6 There are no conflicts of interest between the Class Plaintiffs and other Class Members. The

7 Class Plaintiffs will vigorously prosecute this action on behalf of the Class. The Class

8 Plaintiffs are represented by competent counsel who will vigorously prosecute the case on

9 behalf of the Class.

10

26. Defendants have acted or refused to act on grounds generally applicable to the

11 entire Class.

12

27. The claims asserted herein are capable of repetition while evading review.

13 There is a continuing and substantial public interest in these matters.

14

V. FACTS ENTITLING PLAINTIFFS TO RELIEF

15 A. 16

Defendants’ Duty to Provide Effective Assistance of Counsel for Indigent Persons Charged with Crimes

28. The Sixth and Fourteenth Amendments to the United States Constitution and 17

Sections 3, 12, and 22 of Article I of the Washington State Constitution guarantee to every 18

indigent person charged with a crime the right to effective assistance of counsel. 19

29. Each Defendant has a constitutional duty to provide every indigent person 20

charged with a crime in that city’s municipal court with effective assistance of counsel. 21

30. The Washington State Legislature has specifically found that effective legal 22

representation should be provided for all indigent persons where the right to counsel attaches: 23

“The legislature finds that effective legal representation should be provided for indigent 24

persons and persons who are indigent and able to contribute, consistent with the constitutional 25

requirements of fairness, equal protection, and due process in all cases where the right to 26

counsel attaches.” RCW 10.101.005.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 6 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 7 of 100

1

31. Washington law requires cities to adopt specific standards for the delivery of

2 public defense services and provides that “the standards endorsed by the Washington State Bar

3 Association for the provision of public defense services may serve as guidelines to contracting

4 authorities.” RCW 10.101.030. A copy of the standards endorsed by the Washington State Bar

5 Association for the provision of public defense services (the “WSBA Standards”) is attached

6 hereto as Exhibit A.

7

32. Defendants have failed to comply with RCW 10.101.030. Instead, Defendants

8 have established a public defense system that falls short of the requirements of RCW

9 10.101.030 and deviates in important respects from the WSBA Standards.

10 B. Overview of Defendants’ Public Defense Contract System

11

33. For nearly a decade, Defendants have jointly maintained a contract system of

12 providing for the defense of indigent persons charged with crimes in the municipal courts of

13 Mount Vernon and Burlington.

14

34. Under that system, Defendants have contracted with two attorneys—Richard

15 Sybrandy and Morgan Witt—to provide all indigent defense services in the municipal courts of

16 Mount Vernon and Burlington except where those attorneys determine there is an actual legal,

17 ethical, or professional conflict of interest as prohibited by RPC 1.6 – 1.8.

18

35. The current contract between Defendants and Sybrandy/Witt is dated January 1,

19 2009 and titled as follows:

20

City of Mount Vernon

21

City of Burlington Public Defense Services 2009 – 2010

22

Contract for Services

23 (the “Contract”). A copy of the Contract is attached hereto as Exhibit B.

24

36. On December 15, 2010, pursuant to the First Amendment to City of Mount

25 Vernon and City of Burlington Public Defense Services Contract (the “Amendment”),

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 7 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 8 of 100

1 Defendants and Sybrandy/Witt agreed to extend the duration of the Contract by two years to

2 December 31, 2012. A copy of the Amendment is attached hereto as Exhibit C.

3

37. Under the Contract, Sybrandy and Witt are referred to as the single “Public

4 Defender.” The Public Defender’s clients include all indigent persons who are assigned to the

5 Public Defender by the City of Mount Vernon, the City of Burlington, the Office of Assigned

6 Counsel, or the municipal courts of Mount Vernon and Burlington.

7

38. Pursuant to the Contract, Mount Vernon pays Sybrandy/Witt (as the Public

8 Defender) “$117,400/year for combined services, or $121,750/year if arraignment is necessary

9 as described [in the Contract].” Burlington pays Sybrandy/Witt (as the Public Defender)

10 “$57,600/year for combined services, or $60,750/year if arraignment is necessary as described

11 [in the Contract].” The Contract provides “[t]he Public Defender shall invoice each City on a

12 monthly basis,” and “[t]he cities shall divide each monthly amount equally between each

13 primary defender who is a signatory to [the Contract].”

14

39. Pursuant to the Contract, the Public Defender “shall provide adequate

15 investigative, paralegal, and clerical services and facilities necessary for representation of

16 indigent defendants,” and these services shall be paid out of the compensation provided to the

17 Public Defender. Likewise, “[a]dministrative expenses shall be paid out of compensation

18 provided to the Public Defender.” Finally, expert services must be paid out of the Public

19 Defender’s compensation unless those services have been approved by a court.

20 C. 21

Defendants Have Failed to Impose Reasonable Caseload Limits on Sybrandy and Witt

22

40. Defendants have failed to impose reasonable caseload limits on Sybrandy and

23 Witt. As a result, the indigent defense caseloads of Sybrandy and Witt are excessive.

24

41. The WSBA Standards provide that “[a] case is defined as the filing of a

25 document with the court naming a person as defendant or respondent, to which a public defense

26 attorney is appointed in order to provide representation.”

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 8 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 9 of 100

1

42. The WSBA Standards provide that “[t]he caseload of a full-time public defense

2 attorney or assigned counsel shall not exceed . . . 300 misdemeanor cases per attorney per

3 year.” This caseload “may be adjusted to no more than 400 cases depending upon . . . [t]he

4 caseload distribution between simple misdemeanors and complex misdemeanors.”

5

43. The WSBA Standards provide that “[i]n jurisdictions where assigned counsel or

6 contract attorneys also maintain private law practices, the contracting agency should ensure that

7 attorneys not accept more cases than they can reasonably discharge. In these situations, the

8 caseload should be based on the percentage of time the lawyer devotes to public defense.”

9

44. Sybrandy and Witt spend a substantial amount of their professional time on

10 private practice. This includes both criminal cases and civil cases for paying clients.

11

45. On the legal directory Avvo.com, Sybrandy lists his “Practice Areas” as follows:

12 “40% Family”; “20% Criminal Defense”; “20% DUI/DWI”; “10%

13 Construction/Development”; “5% Landlord/Tenant”; and “5% Foreclosure.” On his website,

14 www.sybrandy-law.org, Sybrandy also lists “Bankruptcy” as a practice area.1

15

46. On the legal directory Avvo.com, Witt lists his “Practice Areas” as follows:

16 “67% Litigation” and “33% Criminal Defense.” On his website, www.legalwitt.com, Witt lists

17 the following practice areas in this order: “Civil Disputes”; “Real Estate Matters”; “Estate

18 Planning Services”; “Dissolutions/Divorces”; “Traffic Infractions”; “D.U.I.”; and “Criminal

19 Matters.”2

20

47. Pursuant to the WSBA Standards, the caseload limit for an attorney who devotes

21 only 33 percent of his time to public defense work is 100 to 133, depending on the complexity

22 of those cases.

23

48. The public defense caseloads of Sybrandy and Witt greatly exceed the limits

24 established by the WSBA Standards. In 2010, Sybrandy handled more than 950 public defense

25

26 1 Websites last visited on June 8, 2011.
2 Websites last visited on June 8, 2011.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 9 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 10 of 100

1 cases, and Witt handled more than 1,150 public defense cases. These figures are limited to

2 cases involving indigent defendants and do not include the criminal or civil cases that Sybrandy

3 and Witt handled for private clients. On information and belief, Sybrandy and Witt had

4 similarly large public defense caseloads in prior years.

5

49. Defendants have knowingly permitted the public defense caseloads of Sybrandy

6 and Witt to exceed the WSBA standards. Indeed, the Contract specifically allows each attorney

7 to handle as many as 1,200 cases per year. This is because Defendants only grant “1/3” of a

8 case credit for the following charges: driving while license suspended third degree (first two

9 offenses); theft third degree (first two offenses); NVOL without identification (first three

10 offenses); malicious mischief under $50 (first offense); unlawful issuance of bank checks; or

11 any other “misdemeanor case of similar complexity as determined by the Contract

12 Administrator.” Likewise, Defendants grant only “1/2” of a case credit for several other

13 charges, including driving while license suspended third degree (third or greater offense);

14 driving while license suspended second degree; malicious mischief under $50 (second or

15 greater offense); malicious mischief over $50; negligent driving first degree; theft third degree

16 (third or greater offense); or any other “misdemeanor case of similar complexity as determined

17 by the Contract Administrator.”

18

50. Furthermore, the Contract does not prohibit the attorneys from taking private

19 cases, nor does it reduce the maximum number of public defense cases that may be handled by

20 an amount proportional to the time spent on private cases. Thus, Defendants have failed to

21 place “limitations on private practice of contract attorneys,” as required by RCW 10.101.030.

22 Likewise, Defendant Mount Vernon has failed to set a “caseload ceiling . . . based on the

23 percentage of time the lawyer devotes to public defense,” as required by Mount Vernon

24 Municipal Code § 2.62.030.

25

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 10 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 11 of 100

1 D. 2

Defendants Are Systematically Failing to Provide Assistance of Counsel to Indigent Defendants Who Have Cases Pending in the Municipal Courts of Mount Vernon and Burlington

3

51. Defendants are systematically failing to provide assistance of counsel to indigent

4 defendants who have cases pending in the municipal courts of Mount Vernon and Burlington.

5

52. As noted above, Defendants have hired two attorneys—Sybrandy and Witt—to

6 provide the indigent defense services in their cities. Sybrandy and Witt fail to provide the

7 services to which indigent defendants are entitled under the United States Constitution and the

8 Washington State Constitution. Among other things:

9

a. Sybrandy and Witt rarely, if ever, meet with indigent defendants while

10 those defendants are in custody. Indigent defendants who have cases pending in the municipal

11 courts of Burlington and Mount Vernon are jailed at the Skagit County jail. In 2010, Sybrandy 12 and Witt made only six visits to the jail, meeting with a total of seven clients.3 By contrast,

13 attorneys from the Skagit County Public Defender’s Office made 750 visits to the jail and met

14 with 1,551 clients. The results were similar for 2009. Sybrandy and Witt made five visits to

15 the Skagit County jail and met with eight clients, whereas attorneys from the Skagit County

16 Public Defender’s Office made 691 visits to the jail and met with 1,232 clients;

17

b. Sybrandy and Witt regularly fail to return calls from indigent defendants

18 in a timely manner, if at all;

19

c. Sybrandy and Witt regularly fail to meet with indigent defendants in

20 advance of court hearings;

21

d. Sybrandy and Witt regularly fail to devote sufficient time to

22 interviewing and counseling indigent defendants;

23

e. Sybrandy and Witt rarely, if ever, investigate the charges made against

24 indigent defendants;

25

26
3 It is not known whether those clients were indigent defendants or private clients.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 11 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 12 of 100

1

f. Sybrandy and Witt regularly fail to pursue or review discovery from the

2 prosecution in public defense cases;

3

g. Sybrandy and Witt regularly fail to make sufficient preparations for

4 court hearings involving indigent defendants;

5

h. Sybrandy and Witt regularly fail to stand with indigent defendants

6 during court hearings. Moreover, Sybrandy and Witt often pay no attention to those

7 proceedings because they are busy talking with other clients; and

8

i. Sybrandy and Witt rarely, if ever, take cases to trial on behalf of indigent

9 defendants.

10

53. Under Defendants’ public defense contract system, indigent persons are being

11 deprived of adequate consultation and communication with attorneys.

12

54. Under Defendants’ public defense contract system, indigent defendants must

13 make decisions about their rights and contest issues without adequate factual or legal

14 investigation by attorneys.

15

55. Under Defendants’ public defense contract system, indigent defendants are

16 being deprived of meaningful opportunities to present defenses.

17

56. Under Defendants’ public defense contract system, indigent defendants are

18 waiving their rights without proper consultation with or advice from attorneys.

19

57. Under Defendants’ public defense contract system, indigent defendants are not

20 receiving accurate information regarding jail alternatives, plea alternatives, dispositional

21 alternatives, plea consequences, and consequences associated with immigration status.

22

58. Defendants have breached their constitutional duties by establishing and

23 perpetuating a public defense system that deprives indigent persons of the constitutional right

24 to assistance of counsel.

25

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 12 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 13 of 100

1 E.

Defendants Have Received Numerous Complaints Regarding Their Failure to Provide Assistance of Counsel to Indigent Defendants

2 59. On December 31, 2008, the director of the Skagit County Office of Assigned

3 Counsel emailed Sybrandy and Witt to inform them that indigent defendants in Mount Vernon

4 and Burlington would “go to court, come to our office, and [go] again to court with no attorney

5 there to represent them even though counsel has been appointed.” The director told Sybrandy

6 and Witt that “lack of attorney contact or communication has been a major complaint from the

7 [Mount Vernon] clients.” Finally, the director stated that “representation complaints . . . will

8 no longer be forward[ed] . . . to the court” but instead “will now be forwarded to the contract

9 manager who will be monitoring [the public defense] contract for the cit[ies] of Mount Vernon

10 and Burlington.” Copied on the email to Sybrandy and Witt were the Honorable David A.

11 Svaren and the Honorable Warren M. Gilbert, judges in the municipal courts of Mount Vernon

12 and Burlington; the Honorable Lindford Smith, a commissioner in the municipal courts of

13 Mount Vernon and Burlington; Jon Aarstad, city administrator for Burlington; and Eric

14 Stendal, Mount Vernon Project Administrator and public defense contract manager. In

15 response to the director’s email, Witt acknowledged that he often “get[s] blamed by [his]

16 clients or others for lack of communication.” In an attempt to excuse his behavior, Witt stated:

17 “[I]n most cases we are not in any position to talk to clients about their respective cases until

18 just before the next assigned pretrial conference date” because “we do not get police reports

19 until just before the next assigned pretrial conference date.”

20 60. On May 11, 2009, an indigent defendant with the initials A.A. submitted a

21 written complaint to Mount Vernon regarding Sybrandy. In the complaint, A.A. stated that he

22 visited Sybrandy’s office and left contact information, but Sybrandy never called him.

23 Moreover, Sybrandy failed to appear at A.A.’s first hearing. When he eventually spoke to

24 A.A., Sybrandy asked A.A. whether he was guilty. A.A. said no, and Sybrandy responded,

25 “come on . . . .” A.A. told Sybrandy that he felt as though Sybrandy was “on the side of [the]

26 Mount Vernon Police Department.” Sybrandy responded by saying, “I[’ll] see you in the court

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 13 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 14 of 100

1 house,” and then he hung-up. A.A.’s complaint was processed by Eric Stendal. In a responsive

2 letter to Mr. Stendal, Sybrandy stated: “Overall, I just do not see anything to substantively

3 respond to in his complaint.”

4

61. On May 19, 2009, an indigent defendant with the initials K.M. submitted a

5 written complaint to Mount Vernon regarding both Sybrandy and Witt. In the complaint, K.M.

6 stated that Sybrandy and Witt failed to meet with her regarding her case: “I have not been fairly

7 represented by either [Morgan Witt or Richard Sybrandy]. They have neglected to help my

8 case at all. I would like a new public defender appointed to my cases please. Someone who

9 will go over my case w/ me, discuss my options, meet w/ me before court e[tc.].” In response

10 to the complaint, Witt asserted that K.M. “arrived at the Skagit County Jail . . . on or about May

11 15, 2009” and that he “filed a Notice of Appearance on May 21, 2009.” Witt did not deny that

12 he failed to meet or talk with K.M. before June 2, 2009. Witt acknowledged that K.M. had a

13 probation review hearing on May 26, 2009, but he asserted that he was “out of town” that day

14 and that “Sybrandy continued the case to June 2, 2009.” Though he took over for Witt at the

15 May 26, 2009 hearing, Sybrandy’s response to the complaint stated as follows: “I do not

16 represent [K.M.] in her current proceedings . . . . [I]t has been Mr. Witt who represents her.

17 That being the case, her complaint against me is without merit and I have no way or need to

18 respond.” K.M.’s complaint was processed by Eric Stendal.

19

62. On September 4, 2009, an indigent defendant with the initials J.B. submitted a

20 written complaint to Mount Vernon regarding Sybrandy. In the complaint, J.B. stated that

21 Sybrandy failed to return her calls or meet with her in advance of her court appearance: “I

22 call[ed] Sybrandy 3 time[s] before court and left 2 message[s] asking for him to call me back so

23 we may talk about my case. He did not respond back. I waited about 2 weeks for a call.” J.B.

24 also stated that when she appeared in court, she asked for Sybrandy. He identified himself and

25 told her to sit down and wait for him to call her. Approximately 15 minutes later, Sybrandy

26 read her file and then asked her about the charges. When J.B. started to explain her position,

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 14 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 15 of 100

1 Sybrandy told her she was “not special” and “need[ed] to face what [she] did.” He also told her

2 that she was “luck[y]” to only have been charged with a misdemeanor and recommended that

3 she “should just end [it] today.” Feeling she had “no cho[ic]e,” J.B. pled guilty to the charge.

4 J.B.’s complaint was processed by Eric Stendal.

5

63. On September 16, 2009, an indigent defendant with the initials V.M. submitted

6 a written complaint to Mount Vernon regarding Sybrandy. In the complaint, V.M. stated that

7 she met with Sybrandy at her court hearing, and Sybrandy asked her whether she was guilty.

8 V.M. answered, “I’m not and I’m not going to sign anything that is not true.” Sybrandy then

9 asked, “So you want to take it to trial[?]” When V.M. answered yes, Sybrandy told her “good

10 luck with that” and said she was “going to wa[ste] [everyone’s] time and his but it’s ok.”

11 Sybrandy then asked, “Who do you think the judge is going to believe: you or the officer?”

12 (Punctuation added.) Sybrandy answered his own question with “the officer.” When V.M.

13 again said that she was not going to plead guilty because she was innocent, Sybrandy told her

14 that she would be convicted and “was going to be in jail for a very long time.” V.M.’s

15 complaint was processed by Eric Stendal.

16

64. In November 2009, Eric Stendal received a series of emails from Mount

17 Vernon’s Chief of Police, Ken Bergsma, and City Attorney, Kevin Rogerson, regarding

18 complaints that Mount Vernon police officers had been making about “the public defender

19 services being provided by Witt and Sybrandy.” Those complaints included the following

20 statement from Detective Toby Ruxton:

21

Officer Cohen was assisting de fendant in calling a public

22

Defender for DUI arrest. He was unable to m ake any contact by the phone numbers supplied by them. This isn’t an isolated case.

23

I also had difficulty contacting Pu blic Defenders S[y]brandy and

Witt. My discussion s with othe r of ficers was the sa me on

24

previous incidents. S ince they are contracted through the city,

can this issue be brough t to their attention th at we are not getting

25

the service that is their obligation to perform[?]

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 15 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 16 of 100

1 (Emphasis added.) Also included in the emails was the following statement from Lieutenant

2 Greg Booth: “[There] has been a pretty consistent inability to contact them after hours. After

3 this initial e-mail from Toby, several other officers have come forward to say they’ve

4 experienced the same thing and have then had to spend time trying to call some other attorneys

5 in the phone book.”

6

65. On December 8, 2009, the husband of an indigent defendant with the initials

7 L.G. emailed a complaint to Mount Vernon Mayor Bud Norris regarding the public defender

8 assigned to his wife’s case. In the email, the husband stated:

9

In June of 2009 m y wife was arre sted for shoplifting . . . . [W]e

10

hoped that the legal system would clear the m atter up. W e both have college degrees and neither of us have any record or

11

smidgen of problem s with the law . . . . The prosecutor[’]s office

would not discuss the matter with us unless we had an attorney.

12

We wanted to hire an attorney to fight the m atter but . . . we

could not afford the larg e retainer required. W e appeared at the

13

arraignment and she pleaded not guilty. W e sought a public

14

defender . . . . The assigned attorney did not appear at the [next] hearing. A nother attorney came and told us that we could settle

15

the mat ter qui ck and easy wi th a bai l for[f]ei ture. Thi s was

offered to us[] at the [prior] arraignment. They told us if we paid

16

$100 the m atter would be dropped. W e were angry enough to

want a trial . . . . This tim e we we re told it was $250 as the

17

amount had [gone] up July 1st. W e still wanted to go to trial but

18

[were] concerned . . . since our assigned attorney would not m eet with us prio r to the h earing and then didn’t even show up at the

19

hearing. We avoided trial by paying bail forfeiture.

20 The husband also stated that he and his wife “spent no more than 5 minutes with [the second]

21 attorney,” and “[i]n that time [the second attorney] called a half dozen others from the court

22 room offering them the same paper to sign.” The mayor’s office forwarded the email to

23 Sybrandy, who gave the following response: “Please advise both Mr. Stendal and Mayor

24 Norris that this was not my case, it was [Witt’s] . . . . Quite honestly, I looked at the file, and

25 the result . . . was excellent.”

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 16 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 17 of 100

1

66. On June 18, 2010, an indigent defendant with the initials J.F. submitted a written

2 complaint to Burlington regarding Sybrandy. The complaint referenced an attached letter from

3 three days earlier to an unnamed judge. In the letter, J.F. wrote: “I am very concerned with my

4 case. I don’t feel like my lawyer is adequate counsel for this case. Reason being is he has yet

5 to come to see me to speak of my case. So I have no knowledge of this case or its status. And

6 when I did see him a couple of minutes before my last court date, he told me he couldn’t help

7 me because of me being in c[u]stody and my past record.” (Capitalization altered from

8 original.) For these reasons, J.F. asked the judge to appoint him “new counsel, one that will at

9 least try and help me in this situation I regret putting myself into.” (Capitalization altered from

10 original.) The complaint was directed to Burlington Mayor Edward J. Brunz, who forwarded it

11 to Sybrandy. In a responsive letter to Mayor Brunz, Sybrandy wrote: “As a preliminary matter,

12 what [J.F.] alleges in his complaint does not amount to a violation of legal standards of

13 practice, a violation of ethical rules, or a breach of my contract with the City of Burlington . . . .

14 [A]ssuming everything he says is true, it does not amount to a matter which should require a

15 response from me.”

16

67. On June 28, 2010, an indigent defendant with the initials T.G. submitted a

17 written complaint to Mount Vernon regarding Sybrandy. In the complaint, T.G. wrote: “Prior

18 to court, I had my girlfriend . . . contact Mr. Sybrandy’s office. We were making sure Mr.

19 Sybrandy would talk to us prior to court and obtain the police records. He did not obtain the

20 police records. His secretary stated that he could not and would not obtain the police records.

21 When Mr. Sybrandy’s secretary called back, she stated that Mr. Sybrandy only discusses cases

22 at Mount Vernon Municipal Court the day of a court appearance. Upon the date of court, we

23 arrived early. Mr. Sybrandy did not want to give us any of his time, nor did he receive the

24 police reports about this case. Then, it was my turn to go before the Judge. [Sybrandy] told me

25 to plea[d] guilty. Take the 20 days of jail and $1000.00 fine. The amount of time Mr.

26 Sybrandy spent defending me, if you can call it that, before the Judge was less than 3 minutes

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 17 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 18 of 100

1 total on my case.” T.G.’s complaint was processed by Eric Stendal. Mr. Stendal forwarded the

2 complaint to Sybrandy, who responded: “[T.G.] is greatly confused about his case, principally

3 because if he does not hear what he thinks he wants to hear, he refuses to listen.” In his

4 response, Sybrandy did not deny that he only discusses cases with clients on the day of the

5 court appearance, and he admitted that his office told T.G. it would not obtain the police

6 records. Nevertheless, Sybrandy concluded: “I don’t think I really have to explain to anyone

7 why it is that we were unable to make [T.G.] happy,” and “I hope . . . this demonstrates why

8 [T.G.’s] complaint should be directed at himself, not me.” Mr. Stendal sent Sybrandy’s letter

9 to T.G. along with a note stating, “I am satisfied with Mr. Sybrandy’s response and will not be

10 taking any further action.”

11

68. On October 26, 2010, an indigent defendant with the initials B.C. submitted a

12 written complaint to Mount Vernon regarding Witt and Sybrandy. In the complaint, B.C. stated

13 that Witt was assigned to defend him. On the day of his hearing, B.C. asked to speak to Witt

14 before his case was called but the other attorney at the table “flipped out” on B.C., told B.C. “to

15 leave him alone,” and said “that he would call [B.C.] to review [the] case.” Nobody called,

16 however. In response to the complaint, Witt stated as follows: “I was meeting with another

17 client when [B.C.] walked up to counsel’s table. He spoke with Mr. Sybrandy, who was the

18 one who ‘flipped out.’ At that time, I did not know who [B.C.] was and believed he was Mr.

19 Sybrandy’s client . . . . [T]he Court called the case before I had a chance to review the case with

20 the client.” B.C.’s complaint was processed by Eric Stendal.

21

69. On December 13, 2010, the mother of an indigent defendant with the initials

22 A.G. submitted a written complaint to Burlington regarding Witt. In the complaint, the mother

23 stated that Witt “doesn’t answer” the flyers her son sends from jail or the calls she makes.

24 After the mother went to visit Witt in person and explain that her son believed he was not

25 getting credit for time served, Witt said he would help. When he met with the son, however,

26 Witt failed to discuss the situation. The mother’s complaint was processed by Eric Stendal.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 18 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 19 of 100

1 After calling and discussing the issue with Witt, who informed Stendal that he “will call back

2 the mother,” Stendal wrote: “I am satisfied with [Witt’s] responses.”

3

70. On January 20, 2011, the director of the Skagit County Office of Assigned

4 Counsel wrote to Eric Stendal, Mount Vernon Project Administrator and public defense

5 contract manager, and notified Mr. Stendal that the Office of Assigned Counsel “continues to

6 receive complaints” about public defense services, “especially from clients who are in

7 custody.”

8

71. On information and belief, numerous other complaints have been made

9 regarding Sybrandy and Witt and the lack of public defense services in Mount Vernon and

10 Burlington. These complaints include the repeated failure of Sybrandy and Witt to do the

11 following: make themselves readily accessible to indigent defendants; return phone calls or

12 respond to inquiries from indigent defendants; meet with indigent defendants in advance of

13 court hearings; meet with clients in custody; investigate the charges against indigent

14 defendants; prepare for court hearings involving indigent defendants; attend court hearings with

15 indigent defendants; adequately represent indigent defendants; and assist indigent defendants in

16 making informed decisions as to whether to plead guilty or proceed to trial. The failure to

17 assist indigent defendants in making informed decisions includes the failure to provide accurate

18 information regarding jail alternatives, plea alternatives, dispositional alternatives, plea

19 consequences, and consequences associated with immigration status.

20

72. On March 22, 2011, Sybrandy wrote to Eric Stendal in response to a complaint

21 by an indigent defendant with the initials M.B. At the end of his letter, Sybrandy stated: “I

22 would request that the City of Mount Vernon, as administrator for our [public defense]

23 contract, INSTRUCT the office of assigned counsel to stop their involvement in providing the

24 “PUBLIC DEFENDER COMPLAINT FORM” to criminal defendants.” (Emphasis in

25 original.)

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 19 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 20 of 100

1

73. In addition to filing complaints, indigent defendants incarcerated at the Skagit

2 County jail have sent numerous “Public Defender Request Form[s]” to Sybrandy and Witt, and

3 those forms demonstrate the failure of the attorneys to provide assistance of counsel. Copies of

4 the forms, also known as “kites,” are maintained by the Skagit County Office of Assigned

5 Counsel.

6

74. For example, between January 6 and 11, 2010, an incarcerated indigent

7 defendant with the initials J.M. sent 10 separate Public Defender Request Forms to Witt asking

8 him to call. In one of the kites, J.M. wrote: “I am having problems with my Public Defender

9 [Witt] . . . . [H]e promise[d] me if I sign I would get out for [C]hris[t]mas and he wasn[’]t

10 honest to me and I[’]ve been trying to get a hold of him for 3 weeks and my mom has called his

11 office ever[y] day and he never returns her call . . . .” Notes kept by the Skagit County Office

12 of Assigned Counsel confirm that J.M.’s mother left messages with Witt, but he did not call her

13 back.

14

75. On January 12, 2010, an incarcerated indigent defendant with the initials F.S.

15 sent a Public Defender Request Form to the Skagit County Office of Assigned Counsel, making

16 the following complaint about Sybrandy and Witt: “I need a different attorney who can

17 properly represent me please. I have been here since December 25th and have yet to speak to

18 Sybrandy and Witt. I have sent countless kites and [have had] family members call them but to

19 no use.”

20

76. On May 20, 2010, an incarcerated indigent defendant with the initials M.A. sent

21 a Public Defender Request Forms to Sybrandy and Witt, stating “I need to [k]no[w] who my

22 Public Defender is and if he can contact me please.” Though she sent a second kite to

23 Sybrandy and Witt on May 24, 2010, M.A. had still not heard from them as of May 26, 2010,

24 six days after the original request for contact was made.

25

77. On December 30, 2010, an incarcerated indigent defendant with the initials A.C.

26 sent a Public Defender Request Form to Sybrandy and Witt that stated: “I need to speak to you.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 20 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 21 of 100

1 I have been here since Dec 20 2010 and have court Jan 4th or 5th . . . . Please don’t leave me

2 hanging like last time. I would really like to know what’s going on.”

3

78. On January 16, 2011, an incarcerated indigent defendant with the initials A.M.

4 sent a Public Defender Request Form to Sybrandy regarding the fact that A.M. had been in

5 custody for nearly five weeks but hadn’t been contacted by Sybrandy. Two days later, A.M.’s

6 case was continued by Witt, who did not speak to A.M. at the court appearance. On January

7 26, 2011, having still not heard from his attorney, A.M. sent a kite to Witt with the following

8 message: “I have 6 weeks [i]n here and I want to know what’s going to happen in my next

9 court date. Can you please come see me or at least give me a call[?]”

10

79. On January 17, 2011, an incarcerated indigent defendant with the initials M.S.

11 sent a Public Defender Request Form to Sybrandy that stated: “I have been here 20 days and

12 you have yet come to see me, call or write. In my eyes that is completely disrespectful and

13 completely dehumanizing [and] you really should be ashamed of yourself!!!” Four days

14 earlier, M.S. sent a separate kite to Sybrandy that stated: “I need either a global resolution or

15 bail reduction hearing as soon as possible [because] I will be homeless + posse[ssi]onless and

16 veh[icle]less [unless I can get out of jail and take care of my affairs].”

17

80. On January 26, 2011, an incarcerated indigent defendant with the initials G.P.

18 sent a Public Defender Request Form to Sybrandy that stated: “I have cases that you were

19 appointed to me and would appreciate you following up with me about the cases you are

20 supposed to be representing me on.”

21

81. Despite the serious complaints made against Sybrandy and Witt, Defendants

22 have failed to take reasonable steps to protect indigent persons and secure their constitutional

23 rights. Among other things, Defendants have not terminated the Contract with Sybrandy and

24 Witt. To the contrary, Defendants recently extended the Contract by two years.

25

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 21 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 22 of 100

1 F.

Defendants Have Failed to Adequately Monitor or Oversee Their Public Defense System

2 82. Defendants have not implemented effective mechanisms for monitoring the

3 performance of public defenders.

4 83. Defendants have not adopted meaningful publicized criteria for evaluating

5 public defenders.

6 84. Defendants do not engage in systematic monitoring and evaluation of the

7 performance of public defenders based on published criteria.

8 85. Defendants collect only the most basic of information from Sybrandy and Witt

9 regarding public defense services. Specifically, Defendants ask Sybrandy and Witt to submit

10 monthly reports on all completed cases with client names, case numbers, charges, dispositions,

11 custody and probation statuses, and time spent on cases. Though he is obligated under the

12 Contract to provide these basic reports, Witt regularly fails to do so. Instead, he often submits

13 his reports months after they are due. Sybrandy also submits reports in an untimely manner.

14 86. Defendants do not obtain the meaningful information essential to fulfilling their

15 constitutional duties of providing indigent defense services.

16 87. Defendants have not established any system for ensuring that Sybrandy and Witt

17 investigate cases, prepare for trial, and communicate timely and adequately with clients.

18 88. Defendants do not take reasonable steps to ensure that the private practices of

19 Sybrandy and Witt do not impair the public defense system.

20 89. Defendants have failed to establish an effective system for preventing conflicts

21 of interest.

22 90. Defendants have failed to adequately respond to complaints about their public

23 defense system, including complaints regarding Sybrandy and Witt.

24 91. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

25 found that Sybrandy and Witt rarely, if ever, meet with indigent defendants in custody.

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 22 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 23 of 100

1

92. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

2 found that Sybrandy and Witt regularly fail to return calls from indigent defendants in a timely

3 manner, if at all.

4

93. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

5 found that Sybrandy and Witt regularly fail to meet with indigent defendants in advance of

6 court hearings.

7

94. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

8 found that Sybrandy and Witt regularly fail to devote sufficient time to interviewing and

9 counseling indigent defendants.

10

95. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

11 found that Sybrandy and Witt rarely, if ever, investigate the charges made against indigent

12 defendants.

13

96. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

14 found that Sybrandy and Witt regularly fail to pursue or review discovery from the prosecution

15 in public defense cases.

16

97. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

17 found that Sybrandy and Witt regularly fail to make sufficient preparations for court hearings

18 involving indigent defendants.

19

98. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

20 found that Sybrandy and Witt regularly fail to stand with indigent defendants during court

21 hearings.

22

99. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

23 found that Sybrandy and Witt rarely, if ever, take cases to trial on behalf of indigent

24 defendants.

25

100. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

26 found that Sybrandy and Witt fail to report the actual amount of time that they spend on

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 23 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 24 of 100

1 indigent defense cases. In Paragraph 67 above, for example, the complainant wrote that “[t]he

2 amount of time Mr. Sybrandy spent defending me, if you can call it that . . . was less than 3

3 minutes total on my case.” In his report to Mount Vernon, however, Sybrandy claimed that he

4 spent one hour working on the case. Likewise, in Paragraph 65 above, the complainant stated

5 that Witt was assigned to his wife’s case but failed to appear at the hearing. At that point,

6 Sybrandy took over but “spent no more than 5 minutes” with the wife, who ultimately pled

7 guilty. Though Witt never met with the client and did not appear at the hearing, he submitted a

8 report to Mount Vernon in which he claimed that he spent one hour working on the case. A

9 review of the reports submitted to Defendants shows that Sybrandy and Witt routinely record

10 the same amount of time per charge—either 30 minute or one hour. Not only is this recorded

11 time often insufficient to provide assistance of counsel but also, as shown above, it often

12 overstates the actual amount of time spent on the matter.

13

101. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

14 found that Sybrandy and Witt devote a substantial portion (if not a majority) of their time to

15 working on private cases, whether civil or criminal.

16

102. If Defendants adequately monitored Sybrandy and Witt, Defendants would have

17 found that the private work performed by Sybrandy and Witt is performed to the detriment of

18 public defense services.

19 G. Defendants Have Failed to Provide Adequate Funds for Public Defense

20

103. Defendants are responsible for funding the public defense system in the

21 municipal courts of Mount Vernon and Burlington.

22

104. Defendants have consistently failed to fund indigent defense services at a level

23 that is sufficient to ensure constitutionally adequate representation.

24

105. Under the Contract, the total amount of funds available to pay for all aspects of

25 indigent defense services in the municipal courts of Mount Vernon is capped at $121,750 per

26 year. The total amount of funds available to pay for all aspects of indigent defense services in

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 24 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 25 of 100

1 the municipal courts of Burlington is capped at $60,750 per year. When Defendants recently

2 extended the Contract with Sybrandy and Witt by an additional two years, Defendants did so

3 without any increase in compensation.

4

106. The amounts paid under the Contract must cover attorneys’ fees, investigation

5 costs, administrative costs, and all other costs other than approved expert fees for all

6 proceedings in which indigent persons were entitled to court-appointed counsel.

7

107. These amounts are not sufficient to ensure constitutionally adequate

8 representation. Moreover, the inadequate funding creates a conflict of interest for Sybrandy

9 and Witt, whose income is diminished by the amount of any funds expended in the defense of a

10 client, including investigator, consulting expert, and non-court-approved expert fees.

11

108. Rule 1.8(m) of the Washington Rules of Professional Conduct provides that “[a]

12 lawyer shall not: (1) make or participate in making an agreement with a governmental entity for

13 the delivery of indigent defense services if the terms of the agreement obligate the contracting

14 lawyer . . . to bear the cost of providing investigation or expert services, unless a fair and

15 reasonable amount for such costs is specifically designated in the agreement in a manner that

16 does not adversely affect the income or compensation allocated to the lawyer . . . .” This

17 provision “prohibits agreements that do not provide that such services are to be funded

18 separately from the amounts designated as compensation to the contracting lawyer or law

19 firm.” RPC 1.8, Cmt. 28. Furthermore, “a conflict of interest exists [where] there is significant

20 risk that the lawyers representation of the client will be materially limited by the lawyer’s own

21 interest in the fee arrangement . . . .” RPC 1.8, Cmt. 12.

22

109. Pursuant to RCW 10.101.050, Defendants are entitled to apply for moneys to

23 fund indigent defense services pursuant to the grant program set forth in RCW 10.101.080. In

24 order to receive such funds, however, Defendants must require that attorneys providing public

25 defense services attend training approved by the Office of Public Defense at least once per

26 calendar year. Moreover, Defendants must report the expenditure for all public defense

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 25 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 26 of 100

1 services in the previous calendar year, as well as case statistics for that year, including per

2 attorney caseloads, and must provide a copy of each current public defense contract to the

3 office of public defense with their application. Finally, each individual that contracts to

4 perform public defense services for Defendants must report to the city hours billed for

5 nonpublic defense legal services in the previous calendar year, including number and types of

6 private cases. On information and belief, Defendants have never applied for funds pursuant to

7 the grant program established in RCW Chapter 10.101.

8 H. 9

Defendant Mount Vernon Has Violated RCW 10.101.040 and Created a Conflict of Interest in the Selection of Public Defenders

10

110. Pursuant to RCW 10.101.040, “[c]ity attorneys . . . shall not select the attorneys

11 who will provide indigent defense services.”

12

111. The City Attorney for Mount Vernon is Kevin Rogerson. As City Attorney, Mr.

13 Rogerson supervises the prosecution of criminal matters.

14

112. In December 2010, while acting as Mount Vernon’s City Attorney, Mr.

15 Rogerson recommended that the city council authorize the mayor to extend the public defense

16 contract with Sybrandy/Witt by two years. He did this despite his knowledge of the complaints

17 made against Sybrandy and Witt for their failure to take calls from and meet with indigent

18 defendants. In his recommendation, Mr. Rogerson noted that there would be “no raise in the

19 amount of consideration for the provision of these services.” He concluded that an extension of

20 the Contract without any increase in compensation “is within the best interests of the City.”

21 Mr. Rogerson presented his recommendation to the city council on December 15, 2010, and the

22 city council voted unanimously to adopt his recommendation and extend the Contract.

23

113. In his capacity as City Attorney of Mount Vernon, Mr. Rogerson was involved

24 in selecting Sybrandy and Witt as the attorneys who will provide indigent defense services in

25 Mount Vernon in 2011 and 2012.

26

114. By allowing Mr. Rogerson to be involved in the selection of Sybrandy and Witt

as public defenders, Defendant Mount Vernon has violated RCW 10.101.040 and created a

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 26 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 27 of 100

1 conflict of interest. Mount Vernon is prosecuting criminal charges against indigent defendants

2 who lack assistance of counsel because of Mount Vernon’s decision to maintain a contract with

3 Sybrandy and Witt and Mount Vernon’s decision to inadequately fund its public defense

4 system, among other things.

5 J. Defendants Have Failed to Provide Assistance of Counsel to Class Plaintiffs

6

(i) Plaintiff Joseph Jerome Wilbur

7

115. On or about November 12, 2008, Plaintiff Wilbur was charged in Burlington

8 Municipal Court with driving a motor vehicle while license suspended in the third degree and

9 operating a motor vehicle that is not equipped with a required interlock device. These charges

10 were filed under case number BUC11136, which is currently pending. An attorney was

11 assigned to represent Plaintiff Wilbur on these charges and as of the date of the filing of the

12 original complaint, that attorney was Richard Sybrandy.

13

116. On or about August 28, 2009, Plaintiff Wilbur was charged in Burlington

14 Municipal Court with theft in the third degree. This charge was filed under case number

15 BUC12231, which is currently pending. An attorney was assigned to represent Plaintiff Wilbur

16 on this charge and as of the date of the filing of the original complaint, that attorney was

17 Richard Sybrandy.

18

117. On or about March 24, 2010, Plaintiff Wilbur was charged in Burlington

19 Municipal Court with two counts of theft in the third degree. These charges were filed under

20 case numbers BUC12486 and BUC13018, both of which are currently pending. An attorney

21 was assigned to represent Plaintiff Wilbur on these charges and as of the date of the filing of

22 the original complaint, that attorney was Richard Sybrandy.

23

118. On or about February 16, 2011, Plaintiff Wilbur was charged in Burlington

24 Municipal Court with bail jumping. This charge was filed under case number BUC005013,

25 which is currently pending. An attorney was assigned to represent Plaintiff Wilbur on this

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 27 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 28 of 100

1 charge and as of the date of the filing of the original complaint, that attorney was Richard

2 Sybrandy.

3

119. Plaintiff Wilbur has been incarcerated in the Skagit County jail at various times

4 in relation to these charges. While in jail, Plaintiff Wilbur made numerous efforts to contact

5 Sybrandy in advance of court hearings, but Sybrandy never responded. Plaintiff Wilbur’s

6 mother and grandmother also made efforts to contact Sybrandy, but Sybrandy never responded

7 to them as well. Assistants at Sybrandy’s office told Plaintiff Wilbur’s mother that Sybrandy

8 was “too busy” to communicate or meet with Plaintiff Wilbur.

9

120. Sybrandy regularly failed to communicate the circumstances of Plaintiff

10 Wilbur’s cases or the charges filed against him during court hearings.

11

121. Prior to filing this lawsuit, Plaintiff Wilbur understood that he could enter in-

12 patient treatment if he obtained a treatment order from the court. Plaintiff Wilbur attempted to

13 contact Sybrandy to get his assistance with this, but Sybrandy failed to respond to Plaintiff

14 Wilbur. A drug and alcohol counselor also tried to contact Sybrandy on Plaintiff Wilbur’s

15 behalf regarding this issue, but Sybrandy failed to respond to the counselor.

16

122. Plaintiff Wilbur was previously charged with crimes in Mount Vernon

17 municipal court, and Sybrandy was assigned to represent him. Plaintiff Wilbur experienced the

18 same problems with Sybrandy in regard to the Mount Vernon charges as he experienced with

19 Sybrandy in regard to the Burlington charges.

20

123. Defendants Mount Vernon and Burlington failed to provide an attorney to

21 Plaintiff Wilbur who would communicate or meet with him while in custody.

22

124. Defendants Mount Vernon and Burlington failed to provide an attorney to

23 Plaintiff Wilbur who would communicate or meet with him in advance of court hearings.

24

125. Defendants Mount Vernon and Burlington failed to provide an attorney to

25 Plaintiff Wilbur who would respond to his requests for assistance of counsel.

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 28 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 29 of 100

1

126. Defendants Mount Vernon and Burlington failed to provide an attorney to

2 Plaintiff Wilbur who would devote time to interviewing and counseling his on the charges filed

3 against his or the substantive legal issues related to his case.

4

127. Defendants Mount Vernon and Burlington failed to provide an attorney to

5 Plaintiff Wilbur who would provide him with the representation to which he was entitled under

6 the constitutions of the United States and Washington.

7

128. The attorneys that Defendants Mount Vernon and Burlington provided for

8 Plaintiff Wilbur’s cases had excessive caseloads.

9

129. The attorneys that Defendants Mount Vernon and Burlington provided for

10 Plaintiff Wilbur’s cases were not adequately funded.

11

130. The attorneys that Defendants Mount Vernon and Burlington provided for

12 Plaintiff Wilbur’s cases were not adequately monitored.

13

131. Plaintiff Wilbur has had to make decisions about his rights without adequate

14 factual or legal investigation by his attorneys.

15

132. Plaintiff Wilbur has been deprived of meaningful opportunities to present

16 defenses.

17

133. Plaintiff Wilbur has waived his rights without proper consultation and advice.

18

134. Plaintiff Wilbur has not received meaningful benefits in exchange for guilty

19 pleas.

20

135. Defendants Mount Vernon and Burlington have constructively deprived Plaintiff

21 Wilbur of his right to the assistance of counsel.

22

(ii) Plaintiff Jeremiah Ray Moon

23

136. On or about April 24, 2011, Plaintiff Moon was charged in Mount Vernon

24 Municipal Court with assault in the fourth degree and interfering with reporting. These charges

25 were filed under case number MC25866, which is currently pending. An attorney was assigned

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 29 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 30 of 100

1 to represent Plaintiff Moon on these charges and as of the date of the filing of the original

2 complaint, that attorney was Morgan Witt.

3

137. Witt was assigned to represent Plaintiff Moon on a previous charge. Plaintiff

4 Moon attempted to contact Witt numerous times in relation to that charge, but Witt failed to

5 respond to him. The only time Witt spoke with Plaintiff Moon was during court proceedings.

6 Because numerous other individuals were present during those proceedings—including the

7 judge, the prosecutor, other indigent defendants, and members of the public—Plaintiff Moon

8 was not able to communicate in private with Witt. Furthermore, Plaintiff Moon did not have

9 sufficient time to discuss with Witt the circumstances of his case or the charges filed against

10 him.

11

138. As of the date of the filing of the original complaint, Plaintiff Moon had been

12 confined in the Skagit County jail for several weeks, serving a commitment on a different

13 charge. Plaintiff Moon had contacted Witt in an effort to get credit toward for time spent on

14 work crew. Though Witt was assigned at that time to represent Plaintiff Moon, Witt failed to

15 respond to Plaintiff Moon.

16

139. As of the date of the filing of the original complaint, Witt had not contacted

17 Plaintiff Moon to discuss the currently pending charge of assault in the fourth degree.

18

140. Defendant Mount Vernon failed to provide an attorney to Plaintiff Moon who

19 would communicate or meet with him while in custody.

20

141. Defendant Mount Vernon failed to provide an attorney to Plaintiff Moon who

21 would communicate or meet with him in advance of court hearings.

22

142. Defendant Mount Vernon failed to provide an attorney to Plaintiff Moon who

23 would respond to his requests for assistance of counsel.

24

143. Defendant Mount Vernon failed to provide an attorney to Plaintiff Moon who

25 would devote time to interviewing and counseling his on the charges filed against his or the

26 substantive legal issues related to his case.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 30 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 31 of 100

1

144. Defendant Mount Vernon failed to provide an attorney to Plaintiff Moon who

2 would provide his with the representation to which he is entitled under the constitutions of the

3 United States and Washington.

4

145. The attorneys that Defendant Mount Vernon provided for Plaintiff Moon’s cases

5 had excessive caseloads.

6

146. The attorneys that Defendant Mount Vernon provided for Plaintiff Moon’s cases

7 were not adequately funded.

8

147. The attorneys that Defendant Mount Vernon provided for Plaintiff Moon’s cases

9 were not adequately monitored.

10

148. Plaintiff Moon has had to make decisions about his rights without adequate

11 factual or legal investigation by his attorneys.

12

149. Plaintiff Moon has been deprived of meaningful opportunities to present

13 defenses.

14

150. Plaintiff Moon has waived his rights without proper consultation and advice.

15

151. Plaintiff Moon has not received meaningful benefits in exchange for guilty

16 pleas.

17

152. Defendant Mount Vernon has constructively deprived Plaintiff Moon of his right

18 to the assistance of counsel.

19

(iii) Plaintiff Angela Marie Montague

20

153. On or about July 9, 2007, Plaintiff Montague was charged in Burlington

21 Municipal Court with driving a motor vehicle while license suspended in the third degree and

22 driving a motor vehicle while under the influence of alcohol or drugs. These charges were filed

23 under case number BUC009935. An attorney was assigned to represent Plaintiff Montague on

24 these charges, and that attorney was Richard Sybrandy.

25

154. In November 2008, while in custody at the Skagit County jail, Plaintiff

26 Montague tried multiple times to contact Sybrandy regarding a court appearance scheduled for

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 31 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 32 of 100

1 December 3, 2008. Sybrandy failed to respond to her. The only time Sybrandy spoke with

2 Plaintiff Montague was during court proceedings. Because numerous other individuals were

3 present during those proceedings—including the judge, the prosecutor, other indigent

4 defendants, and members of the public—Plaintiff Montague was not able to communicate in

5 private with Sybrandy. Furthermore, Plaintiff Montague did not have sufficient time to discuss

6 with Sybrandy the circumstances of her case or the charges filed against her.

7

155. Because Sybrandy was not providing her with assistance of counsel, Plaintiff

8 Montague asked to have another attorney appointed to her case. Shortly thereafter, Morgan

9 Witt was assigned as Plaintiff Montague’s attorney. Witt filed a notice of appearance in July

10 2009.

11

156. Like Sybrandy, Witt failed to provide Plaintiff Montague with assistance of

12 counsel. Witt did not respond to efforts by Plaintiff Montague to speak with her in advance of

13 court appearances. The only time Witt spoke with Plaintiff Montague was during court

14 proceedings, which did not allow for private communications or sufficient time to discuss the

15 circumstances of the case or the charges filed against Plaintiff Montague.

16

157. On December 2, 2009, Plaintiff Montague entered into a deferred prosecution

17 agreement regarding the charges brought against her in Burlington. At some point it became

18 difficult for Plaintiff Montague to meet the terms of that agreement, so she tried to contact Witt

19 to resolve her issues in a proactive manner with the court. Witt failed to respond to her.

20 Because Plaintiff Montague was unable to work out a resolution with the court, a warrant was

21 issued for her arrest.

22

158. Plaintiff Montague was arrested and brought back to court to be sentenced on

23 the underlying charges. Witt did not talk with Plaintiff Montague before the court sentenced

24 her. Though he was present at the hearing, Witt did not stand with Plaintiff Montague while

25 she was being sentenced. Witt did not explain the circumstances of Plaintiff Montague’s

26 situation to the court or to ask the court to credit Plaintiff Montague for time served.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 32 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 33 of 100

1

159. As of the date of the filing of the original complaint, Plaintiff Montague had

2 been confined in the Skagit County jail for several weeks. Plaintiff Montague had been

3 attempting to get in-patient treatment in lieu of jail time but understood she could not do so

4 unless she first obtained a treatment order from the court.

5

160. As of the date of the filing of the original complaint, Plaintiff Montague

6 understood that Morgan Witt continued to serve as her assigned attorney and that the assistance

7 of his counsel was necessary for her to obtain a review hearing and treatment order. In the two

8 weeks leading up to the filing of the original complaint, Plaintiff Montague sent numerous kites

9 to Witt requesting his assistance, but Witt did not respond to her.

10

161. On or about June 15, 2011, after the filing of the original complaint, Witt

11 contacted Montague and informed her that he was still her public defender. Witt added that he

12 had obtained an order the day before allowing Plaintiff Montague to leave jail in order to attend

13 in-patient treatment.

14

162. Defendant Burlington failed to provide an attorney to Plaintiff Montague who

15 would communicate or meet with her while in custody.

16

163. Defendant Burlington failed to provide an attorney to Plaintiff Montague who

17 would communicate or meet with her in advance of court hearings.

18

164. Defendant Burlington failed to provide an attorney to Plaintiff Montague who

19 would respond to her requests for assistance of counsel.

20

165. Defendant Burlington failed to provide an attorney to Plaintiff Montague who

21 would devote time to interviewing and counseling her on the charges filed against her or the

22 substantive legal issues related to her case.

23

166. Defendant Burlington failed to provide an attorney to Plaintiff Montague who

24 would provide her with the representation to which she is entitled under the constitutions of the

25 United States and Washington.

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 33 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 34 of 100

1

167. The attorneys that Defendant Burlington provided for Plaintiff Montague’s cases

2 had excessive caseloads.

3

168. The attorneys that Defendant Burlington provided for Plaintiff Montague’s cases

4 were not adequately funded.

5

169. The attorneys that Defendant Burlington provided for Plaintiff Montague’s cases

6 were not adequately monitored.

7

170. Plaintiff Montague has had to make decisions about her rights without adequate

8 factual or legal investigation by her attorneys.

9

171. Plaintiff Montague has been deprived of meaningful opportunities to present

10 defenses.

11

172. Plaintiff Montague has waived her rights without proper consultation and

12 advice.

13

173. Plaintiff Montague has not received meaningful benefits in exchange for guilty

14 pleas.

15

174. Defendant Burlington has constructively deprived Plaintiff Montague of her

16 right to the assistance of counsel.

17 K. 18

Plaintiffs Face a Continuing Risk that their Constitutional Rights Will Be Violated

19

175. As a result of Defendants’ acts and omissions, including the policies, practices,

20 and procedures for public defense that Defendants have maintained and countenanced, indigent

21 persons charged with crimes in the municipal courts of Mount Vernon and Burlington have

22 suffered or are at imminent and serious risk of suffering harm. Among other things, these

23 indigent persons are deprived of adequate consultation and communication with their attorneys.

24 These indigent persons must make decisions about their rights or contest issues without

25 adequate factual or legal investigation by their attorneys. These indigent persons are deprived

26 of meaningful opportunities to present defenses. The rights of these indigent persons are

waived without proper consultation and advice. These indigent persons are deprived of the

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 34 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 35 of 100

1 services of investigators and expert witnesses. The cases of these indigent persons are not

2 properly prepared for trial. These indigent persons do not receive meaningful benefits in

3 exchange for guilty pleas.

4

176. There is a substantial risk that Defendants’ violations will continue and will

5 deprive the Class Plaintiffs and other Class Members of their rights. Among other things:

6

a. Defendants have persisted in a wrongful course of conduct for many

7 years;

8

b. Defendants have persisted in a wrongful course of conduct even though

9 Defendants knew or should have known that indigent persons were being deprived of their

10 rights;

11

c. Defendants have failed to take prompt action to fix their public defense

12 system;

13

d. Defendants have allowed their public defense system to descend into

14 chaos.

15

VI. CAUSES OF ACTION – COUNT ONE

16

(Violation of the Sixth and Fourteenth Amendments to the United States Constitution (42 U.S.C. § 1983))

17

177. The allegations of paragraphs 1 through 175 above are incorporated herein.

18

178. Acting under color of state law, Defendants have violated and caused violations

19 of the Class Plaintiffs’ rights to the assistance of counsel pursuant to the Sixth and Fourteenth

20 Amendments to the United States Constitution.

21

179. Unless enjoined by the Court, Defendants will continue to violate and cause the

22 violation of the constitutional rights of the Class Plaintiffs and the Class Members.

23

VII. CAUSES OF ACTION – COUNT TWO

24

(Violation of Article I, §§ 3, 12 and 22 of the Washington State

Constitution)

25 180. The allegations of paragraphs 1 through 178 above are incorporated herein.

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 35 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 36 of 100

1

181. Acting under color of state law, Defendants have violated and caused violations

2 of the Class Plaintiffs’ rights to the assistance of counsel pursuant to Article I, Sections 3, 12,

3 and 22 of the Washington State Constitution.

4

182. Unless enjoined by the Court, Defendants will continue to violate and cause the

5 violation of the constitutional rights of the Class Plaintiffs and the Class Members.

6

VIII. PRAYER FOR RELIEF

7

WHEREFORE, the Plaintiffs pray for relief as follows:

8

A. For certification of a class as defined above;

9

B. For a declaration that Defendants are depriving Class Members of their rights to

10 the assistance of counsel pursuant to the Sixth and Fourteenth Amendments to the United States

11 Constitution and Sections 3, 12, and 22 of Article I of the Washington State Constitution;

12

C. For the issuance of preliminary and permanent injunctions restraining

13 Defendants from violating the Sixth and Fourteenth Amendments to the United States

14 Constitution and Sections 3, 12, and 22 of Article I of the Washington State Constitution in the

15 provision of indigent defense services;

16

D. For an award of Plaintiffs’ costs and attorneys’ fees; and

17

E. For such other and further relief as the Court may deem just and proper.

18

DATED this 10th day of November, 2011.

19

Respectfully submitted,

20

TERRELL MARSHALL DAUDT & WILLIE PLLC

21

By: /s/ Toby J. Marshall, WSBA #32726

22

Beth E. Terrell, WSBA #26759

Email: bterrell@tmdwlaw.com

23

Toby J. Marshall, WSBA #32726

Email: tmarshall@tmdwlaw.com

24

Jennifer Rust Murray, WSBA #36983

25

Email: jmurray@tmdwlaw.com 936 North 34th Street, Suite 400

26

Seattle, Washington 98103-8869

Telephone: 206.816.6603

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 36 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 37 of 100

1

Darrell W. Scott, WSBA #20241

2

Email: scottgroup@mac.com

Matthew J. Zuchetto, WSBA #33404

3

Email: matthewzuchetto@mac.com

SCOTT LAW GROUP

4

926 W. Sprague Avenue, Suite 583

5

Spokane, Washington 99201

Telephone: 509.455.3966

6

Sarah A. Dunne, WSBA #34869

7

Email: dunne@aclu-wa.org

8

Nancy L. Talner, WSBA #11196 Email: talner@aclu-wa.org

9

ACLU OF WASHINGTON FOUNDATION

901 Fifth Avenue, Suite 630

10

Seattle, Washington 98164

Telephone: 206.624.2184 11

12

James F. Williams, WSBA #23613 Email: jwilliams@perkinscoie.com

13

J. Camille Fisher, WSBA #41809

Email: cfisher@perkinscoie.com

14

PERKINS COIE LLP

1201 Third Avenue, Suite 4800

15

Seattle, Washington 98101-3029

16

Telephone: 206.359.8000

17

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 37 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 38 of 100

1

CERTIFICATE OF SERVICE

2

I, Toby J. Marshall, hereby certify that on November 10, 2011, I electronically filed the

3 foregoing with the Clerk of the Court using the CM/ECF system which will send notification of

4 such filing to the following:

5

Kevin Rogerson, WSBA #31664

Email: kevinr@mountvernonwa.gov

6

CITY OF MOUNT VERNON

910 Cleveland Avenue

7

Mount Vernon, Washington 98273-4212

8 Attorneys for Defendant City of Mount Vernon, Washington

9

Scott G. Thomas, WSBA #23079

10

Email: sthomas@ci.burlington.wa.us

11

CITY OF BURLINGTON 833 South Spruce Street

12

Burlington, Washington 98233-2810

13

Attorneys for Defendant City of Burlington, Washington

14

Andrew G. Cooley, WSBA #15189

15

Email: acooley@kbmlawyers.com Adam L. Rosenberg, WSBA #39256

16

Email: arosenberg@kbmlawyers.com

KEATING, BUCKLIN & MCCORMACK, INC., P.S.

17

800 Fifth Avenue, Suite 4141

Seattle, Washington 98104-3175 18

19

Attorneys for Defendants Cities of Burlington, Washington and Mount Vernon, Washington

20

DATED this 10th day of November, 2011.

21

TERRELL MARSHALL DAUDT & WILLIE PLLC

22 By: /s/ Toby J. Marshall, WSBA #32726

23

Toby J. Marshall, WSBA #32726

Email: tmarshall@tmdwlaw.com

24

936 North 34th Street, Suite 400

25

Seattle, Washington 98103-8869 Telephone: (206) 816-6603

26 Attorneys for Plaintiffs

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 38 CASE NO. 2:11-cv-01100 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 400
Seattle, Washington 98103-8869 TEL. 206.816.6603  FAX 206.350.3528
www.tmdwlaw.com

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 39 of 100
— EXHIBIT A —

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 40 of 100
Washington State Bar Association
Standards for Indigent Defense Services
On September 20, 2007, the Washington State Bar Association Board of Governors adopted updated Standards for indigent defense services as proposed by the WSBA Committee on Public Defense.
STANDARD ONE: Compensation Standard: Public defense attorneys and staff should be compensated at a rate commensurate with their training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff in prosecutorial offices in the area. For assigned counsel, reasonable compensation should be provided. Compensation should reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the case. Assigned counsel should be compensated for out-of-pocket expenses. Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation, including, but not limited to, death penalty cases. Services which require extraordinary fees should be defined in the contract. Attorneys who have a conflict of interest should not have to compensate the new, substituted attorney out of their own funds.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 41 of 100
Flat fees, caps on compensation, and lump-sum contracts for trial attorneys are improper in death penalty cases. Private practice attorneys appointed in death penalty cases should be fully compensated for actual time and service performed at a reasonable hourly rate with no distinction between rates for services performed in court and out of court. Periodic billing and payment should be available. The hourly rate established for lead counsel in a particular case should be based on the circumstances of the case and the attorney being appointed, including the following factors: the anticipated time and labor required in the case, the complexity of the case, the skill and experience required to provide adequate legal representation, the attorney's overhead expenses, and the exclusion of other work by the attorney during the case. Under no circumstances should the hourly rate for lead counsel, whether private or public defender, appointed in a death penalty case be less than $125 per hour (in 2006 dollars).
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-2.4 and 5-3.1.
American Bar Association, Guidelines for the Appointment and Performance in Death Penalty Cases, 1988, Standard 10-1.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standards 13.7 and 13.11.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-4.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard III-10 and III-11. 1
Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline No. 6.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 42 of 100
STANDARD TWO: Duties and Responsibilities of Counsel
Standard:
The legal representation plan shall require that defense services be provided to all clients in a professional, skilled manner consistent with minimum standards set forth by the American Bar Association, applicable state bar association standards, the Rules of Professional Conduct, case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. Counsel's primary and most fundamental responsibility is to promote and protect the best interests of the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.1, 5-5.1 and 5-1.1.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standards 13.1.
National Legal Aid and Defender Association, Standards for Defender Services, Standard II-2.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Guideline III-18.
American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases http://www.abanet.org/deathpenalty/guidelines.pdf

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 43 of 100
STANDARD THREE: Caseload Limits and Types of Cases
Standard:
The contract or other employment agreement or government budget shall specify the types of cases for which representation shall be provided and the maximum number of cases which each attorney shall be expected to handle. The caseload of public defense attorneys should allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation.
The caseload of a full-time public defense attorney or assigned counsel shall not exceed the following:
150 Felonies per attorney per year; or
300 misdemeanor cases per attorney per year; or in certain circumstances described below the caseload may be adjusted to no more than 400 cases, depending upon:
• The caseload distribution between simple misdemeanors and complex misdemeanors; or
• Jurisdictional policies such as post-filing diversion and opportunity to negotiate resolution of large number of cases as non-criminal violations;
• Other court administrative procedures that permit a defense lawyer to handle more cases
250 Juvenile Offender cases per attorney per year; or
80 open Juvenile dependency cases per attorney; or
250 Civil Commitment cases per attorney per year; or
1 Active Death Penalty cases at a time; or
36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year. (The 36 standard assumes experienced appellate attorneys handling cases with transcripts of an average length of 350 pages. If attorneys do not have significant appellate experience and/or the average transcript length is greater than 350 pages, the caseload should be accordingly reduced.)

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 44 of 100

Definition of Case:

A case is defined as the filing of a document with the court naming a person as defendant or respondent, to which a public defense attorney is appointed in order to provide representation.

General Considerations:

Caseload limits should be determined by the number of cases being accepted and on the local prosecutor’s charging and plea bargaining practices. If a defender or assigned counsel is carrying a mixed caseload including cases from more than one category of cases, these standards should be applied proportionately to determine a full caseload. In jurisdictions where assigned counsel or contract attorneys also maintain private law practices, the contracting agency should ensure that attorneys not accept more cases than they can reasonably discharge. In these situations, the caseload should be based on the percentage of time the lawyer devotes to public defense.

Related and Source Standards

American Bar Association, Standards for Criminal Justice, 4-1.2, 5-4.3.

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. http://www.abanet.org/deathpenalty/guidelines.pdf

National Advisory Commission on Criminal Standards and Goals, Task Force on Courts, 1973, Standard 13.12.

American Bar Association Disciplinary Rule 6-101.

American Bar Association Ten Principles of a Public Defense Delivery System. See, http:/www.abanet,org/legalservices/downloads/sclaid/indigentdefense/tenprincipl esbooklet.pdf (2002).

ABA Standards of Practice for Lawyers who Represent Children in Abuse & Neglect Cases, (1996) American Bar Association, Chicago, IL

The American Council of Chief Defenders Ethical Opinion 03-01 (2003). National Legal Aid and Defender Association, Standards for Defender Services, Standards IV-I.

National Legal Aid and Defender Association, Model Contract for Public Defense

Services

(2002),

available

on

line

at

www.nlada.org/DMS/Documents/1025702469/Full%20volume.doc

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 45 of 100
NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001, available online at http://naccchildlaw.org/training/standards.html)
City of Seattle Ordinance Number: 12501 (2004).
Seattle-King County Bar Association Indigent Defense Services Task Force, Guideline Number 1.
Washington State Office of Public Defense, Proposed Standards for Dependency and Termination Defense Attorneys (1999), available online at http://www.opd.wa.gov/Publications/Dependency%20&%20Termination%20Repo rts/1999%20Cost%20of%20Defense%20Dep%20&%20Ter.pdf

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 46 of 100
STANDARD FOUR: Responsibility for Expert Witnesses
Standard:
Reasonable compensation for expert witnesses necessary to preparation and presentation of the defense case shall be provided. Expert witness fees should be maintained and allocated from funds separate from those provided for defender services. Requests for expert witness fees should be made through an ex parte motion. The defense should be free to retain the expert of its choosing and in no cases should be forced to select experts from a list pre-approved by either the court or the prosecution.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV 2d, 3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1983, Standard III-8d.
National Advisory Commission, Task Force on Courts, 1973, Standard 13.14.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 47 of 100
STANDARD FIVE: Administrative costs
Standard:
Contracts for public defense services shall provide for or include administrative costs associated with providing legal representation. These costs should include but are not limited to travel, telephones, law library, including electronic legal research, financial accounting, case management systems, computers and software, office space and supplies, training, meeting the reporting requirements imposed by these standards, and other costs necessarily incurred in the day-today management of the contract. Public defense attorneys should have an office that accommodates confidential meetings with clients and receipt of mail, and adequate telephone services to ensure prompt response to client contact.
Related Standards:
American Bar Association, Standards for Criminal Justice, Providing Defense Services.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, (1976), Guideline 3.4.
National Legal Aid and Defender Association, Standards for Defender Services, 1976 I-3, IV 2a-e, IV 5.

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STANDARD SIX: Investigators
Standard: Public defender offices, assigned counsel, and private law firms holding public defense contracts should employ investigators with investigation training and experience. A minimum of one investigator should be employed for every four attorneys. Related Standards: American Bar Association, Standards for Criminal Justice, 4-4.1 and 5-1.14. National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.14. National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-3. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard III-9. Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 8.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 49 of 100
STANDARD SEVEN: Support Services
Standard:
The legal representation plan should provide for adequate numbers of investigators, secretaries, word processing staff, paralegals, social work staff, mental health professionals and other support services, including computer system staff and network administrators. These professionals are essential to ensure the effective performance of defense counsel during trial preparation, in the preparation of dispositional plans, and at sentencing.
1. Legal Assistants - At least one full-time legal assistant should be employed for every four attorneys. Fewer legal assistants may be necessary, however, if the agency has access to word processing staff, or other additional staff performing clerical work. Defenders should have a combination of technology and personnel that will meet their needs.
2. Social Work Staff - Social work staff should be available to assist in developing release, treatment, and dispositional alternatives.
3. Mental Health Professionals - Each agency should have access to mental health professionals to perform mental health evaluations.
4. Investigation staff should be available as provided in Standard Six. 5. Each agency or attorney providing public defense services should have
access to adequate and competent interpreters to facilitate communication with non-English speaking and hearing-impaired clients for attorneys, investigators, social workers, and administrative staff.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-8.1 and 5-1.4.
National Advisory Committee on Criminal Justice Standards and Goals, Task Force on Courts, Standard 13.14.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard III-8.
Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 7.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 50 of 100
STANDARD EIGHT: Reports of Attorney Activity
Standard:
The legal representation plan shall require that the defense attorney or office maintain a case-reporting and management information system which includes number and type of cases, attorney hours and disposition. This information shall be provided regularly to the Contracting Authority and shall also be made available to the Office of the Administrator of the Courts. Any such system shall be maintained independently from client files so as to disclose no privileged information.
A standardized voucher form shall be used by assigned counsel attorneys seeking payment upon completion of a case. For attorneys under contract, payment should be made monthly, or at times agreed to by the parties, without regard to the number of cases closed in the period.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-3.3. (b) xii, The Report to the Criminal Justice Section Council from the Criminal Justice Standards Committee, 1989.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984 Standard III-22.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, 1976, Guideline 3.4, 4.1, and 5.2.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 51 of 100
STANDARD NINE: Training
Standard:
The legal representation plan shall require that attorneys providing public defense services participate in regular training programs on criminal defense law, including a minimum of seven hours of continuing legal education annually in areas relating to their public defense practice.
In offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held to inform them of office procedure and policy. All attorneys should be required to attend regular in-house training programs on developments in criminal law, criminal procedure and the forensic sciences.
Attorneys in civil commitment and dependency practices should attend training programs in these areas. Offices should also develop manuals to inform new attorneys of the rules and procedures of the courts within their jurisdiction.
Every attorney providing counsel to indigent accused should have the opportunity to attend courses that foster trial advocacy skills and to review professional publications and other media.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.16.
National Legal Aid and Defender Association, Standards for Defender Services, Standard V.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard III-17.
Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 3.
National Legal Aid and Defender Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 1988, Standard 9.1.

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STANDARD TEN: Supervision
Standard:
Each agency or firm providing public defense services should provide one full-time supervisor for every ten staff lawyers or one half-time supervisor for every five lawyers. Supervisors should be chosen from among those lawyers in the office qualified under these guidelines to try Class A felonies. Supervisors should serve on a rotating basis, and except when supervising fewer than ten lawyers, should not carry caseloads.
Related Standards:
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.9.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contract, 1984, Standard III-16.
Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 4.

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STANDARD ELEVEN: Monitoring and Evaluation of Attorneys
Standard:
The legal representation plan for provision of public defense services should establish a procedure for systematic monitoring and evaluation of attorney performance based upon publicized criteria. Supervision and evaluation efforts should include review of time and caseload records, review and inspection of transcripts, in-court observations, and periodic conferences.
Performance evaluations made by a supervising attorney should be supplemented by comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be evaluated on their skill and effectiveness as criminal lawyers or as dependency or civil commitment advocates.
Related Standards:
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Standard III-16.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, 1976, Recommendations 5.4 and 5.5.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.9.

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STANDARD TWELVE: Substitution of Counsel
Standard:
The attorney engaged by local government to provide public defense services should not sub-contract with another firm or attorney to provide representation and should remain directly involved in the provision of representation. If the contract is with a firm or office, the contracting authority should request the names and experience levels of those attorneys who will actually be providing the services, to ensure they meet minimum qualifications. The employment agreement shall address the procedures for continuing representation of clients upon the conclusion of the agreement. Alternate or conflict counsel should be available for substitution in conflict situations at no cost to the counsel declaring the conflict.
Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-5.2.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.1.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Guideline III-23.

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STANDARD THIRTEEN: Limitations on Private Practice of Contract Attorneys
Standard:
Contracts for public defense representation with private attorneys or firms shall set limits on the amount of privately retained work which can be accepted by the contracting attorney. These limits shall be based on the percentage of a full-time caseload which the public defense cases represent.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.2(d), 5-3.2.
American Bar Association, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation, May 13, 2006, Formal Opinion 06-441. http://www.abanet.org/cpr/pubs/ethicopinions.html
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.7.
National Legal Aid and Defender Association, Standards for Defender Services, Standard III-3 and IV-1.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Guideline III-6.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 56 of 100

STANDARD FOURTEEN:
QUALIFICATIONS OF ATTORNEYS
1. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services should meet the following minimum professional qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; B. and be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and C. be familiar with the collateral consequences of a conviction, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and D. Be familiar with mental health issues and be able to identify the need to obtain expert services; and E. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.
2. Trial attorneys' qualifications according to severity or type of case:
A. Death Penalty Representation. Each attorney acting as lead counsel in a death penalty case or an aggravated homicide case in which the decision to seek the death penalty has not yet been made shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and ii. at least five years criminal trial experience; and iii. have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and iv. have served as lead or co-counsel in at least one jury trial in which the death penalty was sought; and v. have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases; and vi. have completed at least one death penalty defense seminar within the previous two years; and vii. meet the requirements of SPRC 2.1

1

SPRC 2

APPOINTMENT OF COUNSEL

At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain

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The defense team in a death penalty case should include, at a minimum, the two attorneys appointed pursuant to SPRC 2, a mitigation specialist and an investigator. Psychiatrists, psychologists and other experts and support personnel should be added as needed.

B. Adult Felony Cases - Class A. Each staff attorney representing a defendant

accused of a Class A felony as defined in RCW 9A.20.020 shall meet the

following

requirements:

i. Minimum requirements set forth in Section 1, and

responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2(f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements of proficiency and experience, and who have demonstrated that they are learned in the law of capital punishment by virtue of training or experience, and thus are qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. Both counsel at trial must have five years’ experience in the practice of criminal law be familiar with and experienced in the utilization of expert witnesses and evidence, and not be presently serving as appointed counsel in another active trial level death penalty case. One counsel must be, and both may be, qualified for appointment in capital trials on the list, unless circumstances exist such that it is in the defendant’s interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial court shall make findings of fact if good cause is found for not appointing list counsel.
At least one counsel on appeal must have three years’ experience in the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience. In appointing counsel on appeal, the Supreme Court will consider the list, but will have the final discretion in the appointment of counsel.
Available at htp://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=SPRC&ruleid=supspr c2.

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ii. Either: has served two years as a prosecutor; or a. has served two years as a public defender; or two years in a private criminal practice, and b. has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.

C. Adult Felony Cases - Class B. Violent Offense or Sexual Offense. Each

attorney representing a defendant accused of a Class B violent offense or sexual

offense as defined in RCW 9A.20.020 shall meet the following requirements:

i. Minimum requirements set forth in section 1, and

ii. Either:

a. has served one year as prosecutor; or

b. has served one year as public defender; or one year in a private

criminal practice; and

iii. Has been trial counsel alone or with other counsel and handled a

significant portion of the trial in two Class C felony cases that have been

submitted

to

a

jury.

D. Adult Felony Cases - All other Class B Felonies, Class C Felonies, Probation

or Parole Revocation. Each staff attorney representing a defendant accused of a

Class B felony not defined in c above or a Class C felony, as defined in RCW

9A.20.020, or involved in a probation or parole revocation hearing shall meet the

following

requirements:

i. Minimum requirements set forth in section 1, and ii. Either:
a. has served one year as a prosecutor; or b. has served one year as a public defender; or one year in a private criminal practice; and iii. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and iv. Each attorney shall be accompanied at his or her first felony trial by a supervisor if available.

E. Persistent Offender (Life Without Possibility of Release) Representation. Each attorney acting as lead counsel in a “two-strikes” or “three strikes” case in which a conviction will result in a mandatory sentence of life in prison without parole shall meet the following requirements:
i. The minimum requirements set forth in Section 1; 2 and

2

RCW 10.01.060 provides that counties receiving funding from the state Office of

Public Defense under that statute must require “attorneys who handle the most serious

cases to meet specified qualifications as set forth in the Washington state bar

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 59 of 100
ii. Have at least: a. four years criminal trial experience; and b. one year experience as a felony defense attorney; and c. experience as lead counsel in at least one Class A felony trial; and d. experience as counsel in cases involving each of the following: 1) Mental health issues; and 2) Sexual offenses, if the current offense or a prior conviction that is one of the predicate cases resulting in the possibility of life in prison without parole is a sex offense; and 3) Expert witnesses; and 4) One year of appellate experience or demonstrated legal writing ability.
F. Juvenile Cases - Class A - Each attorney representing a juvenile accused of
a Class A felony shall meet the following requirements:
i. Minimum requirements set forth in section 1, and ii. Either:
a. has served one year as a prosecutor; or b. has served one year as a public defender; one year in a
private criminal practice and iii. Has been trial counsel alone of record in five Class B and C felony
trials; and iv. Each attorney shall be accompanied at his or her first juvenile trial by
a supervisor, if available.
G. Juvenile Cases - Classes B and C - Each attorney representing a juvenile accused of a Class B or C felony shall meet the following requirements:
i. Minimum requirements set forth in Section 1; and
ii. Either: a. has served one year as a prosecutor; or b. has served one year as a public defender; or one year in a private criminal practice, and
association endorsed standards for public defense services or participate in at least one case consultation per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second degree, persistent offender cases, and class A felonies.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 60 of 100

c. as been trial counsel alone in five misdemeanor cases brought to a final resolution; and

iii. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor if available.

H. Juvenile Status Offenses Cases. Each attorney representing a client in a “Becca” matter shall meet the following requirements:

i. The minimum requirements as outlined in Section 1; and

ii. Either:

a. have represented clients in at least two similar cases under

the supervision of a more experienced attorney or completed

at least three hours of CLE training specific to “status

offense”

cases or

b. have participated in at least one consultation per case with a

more experienced attorney who is qualified under this

section.

I. Misdemeanor Cases. Each attorney representing a defendant involved in a matter concerning a gross misdemeanor or condition of confinement, shall meet the requirements as outlined in Section 1.

J. Dependency Cases. Each attorney representing a client in a dependency

matter shall meet the following requirements:

i. The minimum requirements as outlined in Section 1; and

ii. Attorneys handling termination hearings shall have six months

dependency experience or have significant experience in

handling

complex litigation.

iii. Attorneys in dependency matters should be familiar with expert

services and treatment resources for substance abuse.

iv. Attorneys representing children in dependency matters should have

knowledge, training, experience, and ability in communicating

effectively with children, or have participated in at least

one

consultation per case either with a state Office of

Public Defense

resource attorney or other attorney

qualified under this section.

K. Civil Commitment Cases. Each attorney representing a respondent shall

meet

the following requirements:

i. Minimum requirements set forth in Section 1; and ii. Each staff attorney shall be accompanied at his or her first 90 or 180
day commitment hearing by a supervisor; and iii. Shall not represent a respondent in a 90 or 180 day commitment
hearing unless he or she has either:

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a. served one year as a prosecutor, or

b. served one year as a public defender, or one year in a private

civil commitment practice, and

c. been trial counsel in five civil commitment initial hearings; and

iv. Shall not represent a respondent in a jury trial unless he or she has

conducted a felony jury trial as lead counsel; or been co-

counsel with

a more experienced attorney in a

90 or 180 day commitment hearing,

L. Sex Offender “Predator” Commitment Cases

Generally, there should be two counsel on each sex offender commitment case. The lead counsel shall meet the following requirements:

i. The minimum requirements set forth in Section 1; and

ii. Have at least:

a. Three years criminal trial experience; and

b. One year experience as a felony defense attorney or one

year

experience as a criminal appeals attorney; and

c. Experience as lead counsel in at least one felony trial; and

d. Experience as counsel in cases involving each of the

following:

1) Mental health issues; and

2) Sexual offenses; and

3) Expert witnesses; and

e. Familiarity with the Civil Rules; and

f. One year of appellate experience or demonstrated legal

writing ability.

Other counsel working on a sex offender commitment cases should meet the Minimum Requirements in Section 1 and have either one year experience as a public defender or significant experience in the preparation of criminal cases,
including legal research and writing and training in trial advocacy.

M. Contempt of Court Cases

Each attorney representing a respondent shall meet the following requirements:

i. Minimum requirements set forth in Section 1; and

ii. Each staff attorney shall be accompanied at his or her first three

contempt of court hearings by a supervisor or more experienced

attorney, or participate in at least one consultation per case with a

state Office of Public Defense

resource attorney or other attorney

qualified in this area of practice.

N. Specialty Courts

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Each attorney representing a client in a specialty court (e.g., mental health court, drug diversion court, homelessness court) shall meet the following requirements:

i. Minimum requirements set forth in Section 1; and ii. The requirements set forth above for representation in the type of
practice involved in the specialty court (e.g., felony, misdemeanor, juvenile); and iii. Be familiar with mental health and substance abuse issues and treatment alternatives.

3. Appellate Representation.

Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall meet the following requirements:

A. The minimum requirements as outlined in Section 1; and

B. Either:

i. has filed a brief with the Washington Supreme Court or any

Washington Court of Appeals in at least one criminal case within the

past two years; or

ii. has equivalent appellate experience, including filing appellate briefs in

other jurisdictions, at least one year as an appellate court or federal

court clerk,

extensive trial level briefing or other comparable work.

iii. Attorneys with primary responsibility for handling a death penalty

appeal shall have at least five years' criminal experience, preferably

including at least one homicide trial and at least six appeals from felony

convictions.

RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a case on appeal to the Superior Court from a Court of Limited Jurisdiction should meet the minimum requirements as outlined in Section 1, and have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an appellate judge, or assisting a more experienced attorney in preparing and arguing an RALJ appeal.
4. Legal Interns.
A. Legal interns must meet the requirements set out in APR 9. B. Legal interns shall receive training pursuant to APR 9 and Standard Nine, Training.
Related Standards:

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 63 of 100
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Standard 13.15. National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Public Defense Contracts, 1984, Standard III-7. National Legal Aid and Defender Association, Standards for the Appointment and Performance of Counsel in Death Penalty Cases, 1987, Standard 5.1.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 64 of 100
STANDARD FIFTEEN: Disposition of Client Complaints
Standard: Each agency or firm or individual contract attorney providing public defense services shall have a method to respond promptly to client complaints. Complaints should first be directed to the attorney, firm or agency which provided representation. If the client feels that he or she has not received an adequate response, the contracting authority or public defense administrator should designate a person or agency to evaluate the legitimacy of complaints and to follow up meritorious ones. The complaining client should be informed as to the disposition of his or her complaint within one week.
Related Standards: The American Bar Association, Standards for Criminal Justice, 4-5.1 and 4-5.2.

Case 2:11-cv-01100-RSL Document 80 Filed 11/10/11 Page 65 of 100

STANDARD SIXTEEN: Cause for Termination of Defender Services and

Removal

of

Attorney

Standard:
Contracts for indigent defense services shall include the grounds for termination of the contract by the parties. Termination of a provider's contract should only be for good cause. Termination for good cause shall include the failure of the attorney to render adequate representation to clients; the willful disregard of the rights and best interests of the client; and the willful disregard of the standards herein addressed.
Removal by the court of counsel from representation normally should not occur over the objection of the attorney and the client.

Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-1.3, 55.3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1984, Guideline III-5.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States, 1976, Recommendations 2.12 and 2.14.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standard 13.8.

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STANDARD SEVENTEEN: Non-Discrimination Standard: Neither the Contracting Authority, in its selection of an attorney, firm or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, gender, sexual orientation or disability. Both the contracting authority and the contractor shall comply with all federal, state, and local non-discrimination requirements.
Related Standards: American Bar Association, Standards for Criminal Justice, Providing Defense Services, Standard 5-3.1. National Legal Aid and Defender Association, Standards for Defender Services, 1976, Standard III-8.

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STANDARD EIGHTEEN: Guidelines for Awarding Defense Contracts
Standard: The county or city should award contracts for public defense services only after determining that the attorney or firm chosen can meet accepted professional standards. Under no circumstances should a contract be awarded on the basis of cost alone. Attorneys or firms bidding for contracts must demonstrate their ability to meet these standards. Contracts should only be awarded to a) attorneys who have at least one year's criminal trial experience in the jurisdiction covered by the contract (i.e., City and District Courts, Superior Court or Juvenile Court), or b) to a firm where at least one attorney has one year's trial experience. City attorneys, county prosecutors, and law enforcement officers should not select the attorneys who will provide indigent defense services.
Related Standards: National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard IV-3. King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Statement of Purpose.

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— EXHIBIT C —

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BURL_PDR-000217

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BURL_PDR-000218

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BURL_PDR-000219

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BURL_PDR-000220

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BURL_PDR-000221

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

13 This matter comes before the Court on defendants’ motions for summary judgment
14 related to the claims of the three named plaintiffs, Joseph Jerome Wilbur (Dkt. # 25), Jeremiah
15 Ray Moon (Dkt. # 27), and Angela Montague (Dkt. # 32), plaintiffs’ cross-motion for
16 preliminary injunction (Dkt. # 45), and the “Brief of Amicus Curiae Washington State
17 Association of Municipal Attorneys” (Dkt. # 74). Plaintiffs allege that the City of Mount
18 Vernon and the City of Burlington have regularly and systematically failed to provide effective
19 assistance of counsel to indigent persons charged with crimes, thereby violating both the federal
20 and state constitutions. Specifically, plaintiffs allege that Mount Vernon and Burlington have
21 implemented a system of public defense that is inadequately funded, imposes unreasonable case
22 loads on the individual attorneys, fails to provide representation at critical stages of the
23

24

25

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 prosecution, and is not properly monitored.1 Plaintiffs also allege that the municipalities have

2 known of the structural deficiencies in their public defense systems for many years and yet

3 continue the system without substantive change.

4

Having reviewed the memoranda, declarations, and exhibits submitted by the

5 parties and having heard the arguments of counsel, the Court finds as follows:

6 A. Motions to Strike

7

Defendants raise hearsay and authenticity objections to most if not all of the

8 declarations and exhibits submitted by plaintiffs in opposition to the motion for summary

9 judgment and in support of their motion for preliminary injunction. Reply (Dkt. # 65) at 4.2

10 Defendants have not articulated any reason to doubt the authenticity or admissibility of many of

11 the exhibits provided, including court documents, published performance standards, the

12 contracts under which the public defender system is operated, and defendants’ business records.

13

Defendants mention only three documents (or types of documents) with any level

14 of specificity. The first, a collection of complaints regarding the services provided by the public

15 1 Defendants take issue with plaintiffs’ assertions that the public defenders, Messrs. Sybrandy
16 and Witt, spend only 40% and 33% of their time, respectively, in public defense, that they are assigned 17 to handle approximately 1000 misdemeanor cases per year, that counsel spends on average less than 35
minutes on each case, and that the public defenders took only two cases to trial in 2010. Reply (Dkt. 18 # 65) at 5-7. Although some of these assertions are not supported by admissible evidence (for example,
the percentages stated on the AVVO printouts appear to be hearsay), there is evidence supporting 19 plaintiffs’ overarching argument that counsels’ workload is unmanageable. To the extent defendants 20 dispute that assertion and have produced declarations to contradict the case assignment data, time
records, and annual reports on which plaintiffs rely, the Court declines to decide disputed issues of fact 21 in the context of a summary judgment motion.

22

2 Plaintiffs’ sur-reply in response to defendants’ first motion to strike (Dkt. # 71) is

unauthorized. Local Civil Rule 7(g) permits the filing of a sur-reply only for the purpose of objecting to 23 material contained in or attached to a reply brief, not to respond to another party’s motion to strike. In

24 fact, responses to motions to strike “shall not be filed unless requested by the court.” CR 7(g)(4). No such request was made in this instance. Plaintiffs’ response has therefore not been considered in ruling

25 on defendants’ evidentiary objections.

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -2-

1 defenders, was apparently produced by the municipalities and is offered to show that defendants

2 had knowledge of the problems in the public defender system. Decl. of Toby J. Marshall (Dkt.

3 # 57) at Ex. 18. Because the documents appear to be what plaintiffs claim and are not offered to

4 establish the truth of the matters asserted therein, defendants’ objections are overruled. The

5 second document is described as “a sensationalist newspaper article, recounting what a non-

6 party supposedly said.” Reply (Dkt. # 65) at 4. The offending document is not identified by

7 docket or exhibit number. The Court assumes that defendants are referring to the article that

8 makes up a portion of Ex. 15 to Mr. Marshall’s declaration and that the non-party statements are

9 those of public defender Richard Sybrandy. Because the Court is unable to ascertain which, if

10 any, hearsay exceptions might apply, the Court has not considered this article in ruling on the

11 underlying motions. Finally, defendants object to the expert opinion of David Boerner on the

12 ground that he offers no support for his conclusion that “the prosecution’s previously

13 enumerated expectations for the Right to Counsel are not being met with respect to the public

14 defense services” provided by defendants. Decl. of David Boerner (Dkt. # 53) at ¶16. To the

15 contrary, Mr. Boerner sets forth his experience as a prosecutor in both the federal and state

16 systems, identifies the services and communications a prosecutor would expect an accused to

17 receive from his attorney, and lists the documents he reviewed regarding the system in Mount

18 Vernon and Burlington. Defendants may take issue with Mr. Boerner’s conclusion, but they

19 offer no basis on which to exclude it from evidence.

20

In their opposition to plaintiffs’ motion for preliminary injunction, defendants

21 include a ten-line motion to strike significant portions of plaintiffs’ evidence, including the

22 declaration of plaintiff Wilbur, “[a]ll confidential communications improperly obtained from

23 Skagit County,” and all expert opinions that rely on such information. Dkt. # 115 at 33. Two

24 separate motions have been filed regarding the declaration and confidential communications

25 (Dkt. # 78 and Dkt. # 87 respectively): the Court declines to incorporate and decide those

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -3-

1 motions here.

2

Finally, defendants object to arguments asserted by plaintiff in support of their

3 motion for preliminary injunction. Dkt. # 128. Arguments of counsel are not evidence and will

4 not be considered as such by the Court or the ultimate factfinder. If an argument is wholly

5 unsupported and/or conflicts with the available evidence, it will be disregarded. Arguments can,

6 however, be based on common sense inferences or limited/equivocal evidence. In such

7 instances, the weight given the argument will depend on many factors, but the argument is not

8 per se inadmissible. Because there is evidence from which one could infer that indigent criminal

9 defendants are unfamiliar with the attorney substitution options available to them, the objection

10 to that argument is overruled. See Decl. of J. Camille Fisher (Dkt. # 122), Ex. 1 at 102:8-11, Ex.

11 11. Plaintiffs’ contention that defendants conceded that they do not supervise, monitor, or

12 evaluate their public defenders is not adequately supported, however. The only citation is to a

13 memorandum in which plaintiffs set forth their related argument that complaints have been

14 lodged regarding the public defenders’ failure to be responsive and/or to provide representation.

15 There is no evidence of a concession, and the argument has not been considered.

16 B. Availability of Injunctive and/or Declaratory Relief

17

Plaintiffs are seeking only prospective equitable relief in the above-captioned

18 matter. Defendants argue that neither injunctive nor declaratory relief is available, however,

19 because the law provides adequate remedies for the constitutional violation alleged. In

20 particular, defendants argue that, if an indigent criminal defendant is unhappy with the

21 representation afforded by his public defender, he could request the appointment of new counsel,

22 assert an ineffective assistance of counsel claim on appeal, and/or sue the public defender for

23 malpractice. While these remedies would be sufficient if plaintiffs’ claims were limited to

24 ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984),

25 plaintiffs are not simply challenging counsels’ conduct in their individual cases. Rather,

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -4-

1 plaintiffs argue that the City of Mount Vernon and the City of Burlington are systematically

2 depriving indigent criminal defendants of the right to counsel promised in Gideon v.

3 Wainwright, 372 U.S. 335 (1963).

4

Plaintiffs allege that municipal policymakers have made deliberate choices

5 regarding the funding of, contracting for, and monitoring of the public defense system that

6 directly and predictably deprived plaintiffs of their Sixth Amendment right to the assistance of

7 counsel. At this early stage of the litigation, the evidence, including plaintiffs’ declarations

8 regarding their own experiences within the system, could support a finding that indigent

9 defendants in Mount Vernon and Burlington are deprived of counsel at critical stages of the

10 prosecution and that the assignment of public defenders is little more than a sham. See Avery v.

11 State of Alabama, 308 U.S. 444, 446 (the absence of “an opportunity for appointed counsel to

12 confer, to consult with the accused and to prepare his defense, could convert the appointment of

13 counsel into a sham and nothing more than a formal compliance with the Constitution’s

14 requirement that an accused be given the assistance of counsel.”). See also Hurrell-Harring v.

15 State of New York, 930 N.E.2d 217, 224 (N.Y. 2010) (recognizing that “[a]ctual representation

16 assumes a certain basic representational relationship,” such that the failure to communicate

17 and/or appear at critical stages of the prosecution may be reasonably interpreted as

18 nonrepresentation rather than ineffective representation).

19

Faced with a government system that arguably violates a constitutional guarantee

20 on a regular basis, plaintiffs appeal to equity for a systemic remedy. Such requests are not new

21 to the federal courts. Where official government policies trample rights guaranteed by the

22 Constitution, the courts have not hesitated to use their equitable powers to correct the underlying

23 policies or systems. See, e.g., Brown v. Bd. of Educ., 349 U.S. 294 (1955) (calling on district

24 courts to use equitable principles to achieve the desegregation promised in the first Brown v. Bd.

25 of Educ. decision); Brown v. Plata, __ U.S. __, 131 S. Ct. 1910 (2011) (affirming federal

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -5-

1 oversight of California state prisons to remedy systemic Eighth Amendment violations). The

2 Court finds that case-by-case requests for new counsel, appeals, and/or malpractice actions

3 would not resolve the systemic problems identified by plaintiffs, making a request for injunctive

4 and declaratory relief necessary.

5

Defendants, relying on Strickland and its progeny, also argue that plaintiffs cannot

6 seek a systemic remedy because a Sixth Amendment claim will not lie unless and until they have

7 suffered actual prejudice at trial. Under this theory, plaintiffs would have to wait until they were

8 wrongfully convicted or sentenced before they could assert a Sixth Amendment claim. Courts

9 have long recognized, however, that indigent criminal defendants have a right to counsel “from

10 the time of their arraignment until the beginning of their trial, when consultation, thorough-going

11 investigation and preparation [are] vitally important . . . .” Powell v. State of Alabama, 287 U.S.

12 45, 57 (1932). If a request for counsel is rejected or counsel’s overall representation is so

13 defective that the prosecution’s case cannot be tested through a truly adversarial process, the

14 right to a fair trial – which is the underlying goal of the Sixth Amendment – is at risk. United

15 States v. Cronic, 466 U.S. 648, 655-57 (1984). As discussed above, plaintiffs’ allegations can be

16 reasonably understood to assert a lack of representation. In such circumstances, there is no

17 presumption of harmless error or requirement that the indigent defendant plod on towards

18 judgment in order to establish harm: the constitutional violation is clear and a remedy is

19 available. Contrary to defendants’ argument, the Court will not “indulge in nice calculations as

20 to the amount of prejudice” attributable to the lack of counsel – a hypothetical undertaking akin

21 to trying to prove a negative – where the denial of representation itself demonstrates a

22 constitutional violation. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (summarizing Glasser v.

23 United States, 315 U.S. 60 (1942)).

24

In this case, plaintiffs allege that the public defense system in Mount Vernon and

25 Burlington leaves indigent criminal defendants without representation at critical points during

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -6-

1 the prosecution. Specifically, plaintiffs have provided evidence (a) that appointed counsel refuse

2 to engage in confidential attorney-client communications regarding the charges, possible

3 defenses, litigation options, and sentencing, (b) that the criminal defendant is left to face the

4 judge and prosecutor alone and unaided, and (c) that defendants are advised to plead guilty in the

5 absence of any investigation or analysis, seemingly for case management reasons rather than

6 reasons germane to the merits of the case. If plaintiffs are able to prove their claims, they may

7 be able to establish a breakdown in the adversarial process such that the eventual outcomes of

8 their cases, whatever they may be, would be suspect. Having realized that they were effectively

9 unrepresented against the prosecuting municipalities, plaintiffs can seek judicial intervention.

10 They do not have to persevere through trial and a potentially disastrous outcome in order to

11 perfect their Sixth Amendment claims.

12 C. Standing and Mootness

13

On October 17, 2011, the Court denied plaintiffs’ motion to amend their complaint

14 to add Ryan Osborne as a named plaintiff on standing grounds.

15

In order for Mr. Osborne to be added as a named plaintiff, he must “allege

personal injury fairly traceable to the defendant’s allegedly unlawful conduct and

16

likely to be redressed by the requested relief.” Hein v. Freedom From Religion

17

Foundation, Inc., 551 U.S. 587, 598 (2007) (quoting Allen v. Wright, 468 U.S.

737, 751 (1984)). In other words, he must satisfy the “irreducible constitutional

18

minimum of standing.” Steel Co. v. Citizens for a Better Environment, 523 U.S.

19

83, 102 (1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Now that the City of Mount Vernon has dismissed the charges against

20

him, Mr. Osborne is no longer represented by a public defender or otherwise

21

threatened by the alleged systemic deprivation of counsel. Thus, any prospective relief obtained in this litigation will not enure to Mr. Osborne’s benefit.

22

23 Dkt. # 44 at 2-3. Defendants argue that the same analysis should result in the dismissal of all the

24 named plaintiffs’ claims because they are no longer represented by the public defender. To the

25

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -7-

1 extent this change in representation is relevant, it did not occur until after the complaint was

2 filed. Defendants offer no facts or argument from which one could conclude that plaintiffs

3 lacked the requisite personal interest (i.e., standing) at the commencement of the litigation.

4

Defendants’ challenge is more appropriately characterized as an assertion of

5 mootness. In order to “qualify for adjudication in a federal court, a live controversy must exist

6 at all stages of the litigation . . . .” Vasquez v. Los Angeles County, 487 F.3d 1246, 1253 (9th

7 Cir. 2007). Where the named plaintiffs have lost their personal interest in the outcome of the

8 case, they are generally precluded from pursuing relief either for their own benefit or on behalf

9 of a class.

10

The record in the above-captioned matter does not support a finding that plaintiffs

11 have lost their personal interest. Although plaintiff Montague has already been sentenced in her

12 criminal matter, she is currently on probation, has a hearing scheduled (at least as of November

13 2011), and is being represented by the “conflict” public defender, Hoff. Dkt. # 116, Ex. D at 26.

14 Attorney Hoff’s position as “secondary defender” is expressly prescribed in the public defense

15 services contract. Dkt. # 57-1 at 17. Plaintiff Moon has one or more open criminal matters, has

16 pending court dates (at least as of November 2011), and is also being represented by attorney

17 Hoff. Dkt. # 116, Ex. E at 50-51, 106. Plaintiff Wilbur had a pretrial conference scheduled for

18 December 7, 2011, but apparently failed to appear and continues to be represented by conflict

19 counsel. Dkt. # 122 at 72. Because plaintiffs continue to be represented by a public defender

20 provided by the municipalities pursuant to the public defense services contract at issue in this

21 lawsuit, the claims of the named plaintiffs are not moot.

22

Even if, for purposes of this motion, the Court assumes that the assignment of an

23 alternate public defender mooted the named plaintiffs’ claims, this case falls into an exception to

24 the mootness doctrine. Where the class of plaintiffs at issue is transitory (meaning that there is a

25 constant class of persons suffering from the alleged deprivation, but that individuals within the

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -8-

1 class will likely lose their interest while the case is pending), the Court may “validly certify a

2 class . . . even though the named plaintiff’s claims are already moot, since the ‘relation back’

3 doctrine will relate to [the named plaintiffs’] standing at the outset of the case in order ‘to

4 preserve the merits of the case for judicial resolution.’” Wade v. Kirkland, 118 F.3d 667, 670

5 (9th Cir. 1997). See also See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Pitts v. Terrible

6 Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (applying “relations back” doctrine where

7 defendant’s litigation strategy of settling the small claims of the named plaintiffs made the class

8 “transitory”).

9

The Court finds that the proposed class is transitory for purposes of the mootness

10 analysis. It is virtually impossible to predict which individual members of the proposed class, if

11 any, will have a live controversy at the time the class is certified, much less at the time this case

12 is finally resolved. When the named plaintiffs came to the conclusion that they were not getting

13 the assistance of counsel promised by the state and federal constitutions, they not surprisingly

14 sought counsel elsewhere. The record shows that defendants dismissed the charges against at

15 least one potential class member, apparently in a successful effort to keep him from becoming a

16 named plaintiff. Others individuals will plead guilty, have their charges dismissed, or go to trial

17 before the merits of this case can be reached. In these circumstances, even if the claims of the

18 three named plaintiffs became moot, the Court would still proceed to the class certification

19 determination before deciding whether the action should be dismissed for mootness.

20 D. Municipal Liability Under § 1983

21

Under 42 U.S.C. § 1983, a municipality such as Mount Vernon or Burlington may

22 be held liable for constitutional violations only when the violation occurs as a result of the

23 municipality’s official “policy or custom.” Monell v. New York City Dept. Soc. Servs., 436

24 U.S. 658, 694 (1978). This rule ensures that municipalities are liable only for “acts that are,

25 properly speaking, acts of the municipality.” Pembauer v. City of Cincinnati, 475 U.S. 469, 480

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -9-

1 (1986) (internal quotation marks omitted). Plaintiffs allege that defendants have made funding,

2 contracting, and monitoring decisions which directly and predictably deprive indigent criminal

3 defendants of their Sixth Amendment right to counsel. These decisions by the municipalities

4 serve as “policymaking” for purposes of Monell. See Miranda v. Clark County, 319 F.3d 465,

5 470 (9th Cir. 2003) (county’s resource allocation policy can be the basis for a § 1983 claim

6 against the municipality). If plaintiffs are able to show that municipal policy caused the alleged

7 constitutional violations, municipal liability may exist under § 1983.

8

Defendants argue that, because the public defenders are not “state actors” for

9 purposes of § 1983, the claim against the municipalities must fail. It is clear that plaintiffs

10 cannot seek to impose § 1983 liability on the public defenders for the performance of traditional

11 lawyerly functions. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). To the extent

12 plaintiffs’ claims against Mount Vernon and Burlington are derivative of potential claims against

13 the public defenders, defendants’ argument may have some merit. Plaintiffs, however, are

14 seeking to hold the municipalities liable for the ineffective public defense system they created

15 through their affirmative decisions, acts, and policies, regardless of any individualized error in

16 which the public defenders may or may not have engaged in particular cases. As discussed

17 above, the municipalities may be held responsible for their own conduct to the extent it deprived

18 plaintiffs of their constitutional rights.

19

Defendants’ “deliberate indifference” argument is misplaced. Plaintiffs have

20 provided evidence that defendants’ official municipal acts and affirmative policies caused a

21 constitutional deprivation. That is all that is required for municipal liability under Monell. See

22 Brass v. County of Los Angeles, 328 F.3d 1192, 1198 (9th Cir. 2003). Other theories under

23 which a municipality can be held liable, such as a failure to act or a failure to train theory, are

24 less direct. In the absence of an affirmative municipal act or policy, courts will require evidence

25 that the municipality made a conscious or deliberate choice reflecting indifference to the

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -10-

1 constitutional rights of its citizens in order to ensure that the municipality is held liable only for

2 its own wrongdoing. See Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). Even

3 if deliberate indifference were required when the acts or affirmative policies of the municipality

4 are at issue, plaintiffs have provided evidence that could support such a finding. Deliberate

5 indifference exists when the need for different or remedial action “is so obvious, and the

6 inadequacy so likely to result in the violation of constitutional rights, that the policymakers of

7 the city can reasonably be said to have been deliberately indifferent to the need.” City of Canton

8 v. Harris, 489 U.S. 378, 390 (1989). Plaintiffs have provided evidence from which a reasonable

9 jury could conclude that defendants knew indigent criminal defendants were not receiving

10 representation at key stages of the prosecution and were deliberately indifferent to their plight.

11

Finally, defendants argue that federal courts must refrain from constitutionalizing

12 specific performance standards or otherwise interfering with the attorney-client relationship.

13 Federal courts should not attempt to specify a code of conduct that is universally required of all

14 criminal defense counsel under the Sixth Amendment. See Strickland, 466 U.S. at 688-89; Nix

15 v. Whiteside, 475 U.S. 157, 165 (1986). Nevertheless, the courts clearly have the power, if not

16 the constitutional obligation, to evaluate the representation that was provided to the class and to

17 declare it sufficient or insufficient. Where the underlying right to representation is at issue, the

18 appropriate relief does not necessarily require a detailed code of conduct, but rather a more

19 general directive to remedy the situation so that the guarantee of assistance has meaning. See

20 Powell v. State of Alabama, 287 U.S. 45 (1932).

21 E. Equitable Bars to Relief

22

Defendants argue that the doctrine of judicial estoppel bars plaintiffs from

23 challenging the reasonableness of the public defenders’ actions. In particular, defendants argue

24 that plaintiffs’ written consent to continuances of their criminal trials precludes their current

25 argument that the consent was uninformed and/or that counsel acted unreasonably. Plaintiffs’

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -11-

1 positions do not necessarily contradict each other, however. Plaintiffs allege that they were

2 compelled to accept continuances because counsel was unprepared and unable to proceed at their

3 various court dates. In such circumstances, a request for a continuance is not approval of the

4 conduct which made the request unavoidable. In addition, judicial estoppel should not be used

5 to bar a Sixth Amendment claim when the attorney’s conduct precipitated the earlier statements.

6 See Morris v. State of Cal., 966 F.2d 448, 453 (9th Cir. 1991). The Court therefore declines to

7 apply the doctrine of judicial estoppel in these circumstances.

8

Defendants also argue that plaintiffs should be precluded from seeking equitable

9 relief because they have unclean hands. Defendants assert that all three named plaintiffs have

10 failed to appear for court hearings related to their criminal proceedings and/or are the subject of

11 bench warrants for their arrests. Under a doctrine developed in the 1800's, appellate courts have

12 discretion to dismiss appeals of convicted criminals or illegal aliens who have fled and cannot be

13 located when their appeals are heard. See Smith v. United States, 94 U.S. 97 (1876); Antonio-

14 Martinez v. INS, 317 F.3d 1089, 1092 (9th Cir. 2003). The justifications for the doctrine are:

15 “(1) the pragmatic concern with ensuring that the court’s judgment will be enforceable against

16 the appellant; and (2) the equitable notion that a person who flouts the authority of the court

17 waives his entitlement to have his appeal considered.” Sun v. Mukasey, 555 F.3d 802, 804 (9th

18 Cir. 2009).

19

All of the cases identified by defendants involve the dismissal of a direct appeal of

20 an underlying conviction or immigration order after the appellant has escaped from custody.

21 Defendants have not identified, and the Court has not found, any case in which an unconvicted,

22 non-custodial citizen was barred from seeking relief in a separate civil suit because he had an

23 outstanding bench warrant. The underlying doctrine of unclean hands suggests that the fugitive

24 disentitlement doctrine should not be extended to the situation presented here. When

25 determining whether a claimant’s unclean hands bar recovery, “[w]hat is material is not that the

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -12-

1 plaintiff’s hands are dirty, but that he dirtied them in acquiring the right he now asserts, or that

2 the manner of dirtying renders inequitable the assertion of such rights against the defendants.”

3 Ellenburg v. Brockway, Inc., 763 F.2d 1091,1097 (9th Cir. 1985) (citation omitted). While the

4 Court does not approve of plaintiffs’ respective failures to appear as ordered by the municipal

5 courts, those failures did not give rise to the constitutional right plaintiffs seek to enforce in this

6 litigation, there is a separation and disconnect between the municipal criminal proceedings and

7 this action that did not exist in any of the cases relied upon by defendants, and there is no

8 indication that plaintiffs’ fugitive status will impede their ability to pursue this case or preclude

9 enforcement of this Court’s judgment. The Court declines to disentitle plaintiffs from pursuing

10 their constitutional claims on the ground that they have failed to appear in their criminal

11 proceedings.

12 F. Preliminary Injunction

13

In order to obtain preliminary injunctive relief, plaintiff must establish “that he is

14 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

15 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

16 public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008).

17 In addition, “serious questions going to the merits and a hardship balance that tips sharply

18 towards the plaintiff can support issuance of an injunction, so long as the plaintiff also shows a

19 likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the

20 Wild Rockies v. Cottrell, 622 F.3d 1045, 1053 (9th Cir. 2010) (internal quotation marks

21 omitted).

22

Plaintiffs have raised serious questions regarding the constitutional adequacy of

23 the public defender systems in place in Mount Vernon and Burlington, but the incomplete

24 factual records makes it impossible to conclude at this stage that they are likely to succeed on the

25 merits. Where likelihood of success is in doubt, plaintiffs must show that the balance of

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -13-

1 hardships tips sharply in favor of issuing the injunction. This they cannot do. Although the 2 deprivation of counsel at critical stages of a criminal prosecution would, of course, create 3 hardships for proposed class members, the wholesale restructuring of the cities’ public defense 4 systems would also impose significant hardships on defendants, their budgetary priorities, and 5 their citizenry. Where the balance of hardships does not tip decidedly in plaintiffs’ favor, they 6 must wait until they have proven their right to relief in order to obtain an injunction.

7

8

For all of the foregoing reasons, defendants’ motions for summary judgment (Dkt.

9 # 25, # 27, and # 32) and plaintiffs’ cross-motion for preliminary injunction (Dkt. # 45) are

10 DENIED.

11

12

Dated this 23rd day of February, 2012.

13

A

14

Robert S. Lasnik United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26 ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION -14-

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL ORDER CERTIFYING CLASS

13

This matter comes before the Court on “Plaintiffs’ Motion for Class Certification.”

14

Dkt. # 82. The three named plaintiffs seek to go forward with this litigation as representatives of

15

a class, described as follows:

16

All indigent persons who have been or will be charged with one or more crimes in

17

the municipal courts of either Mount Vernon or Burlington, who have been or will

18

be appointed a public defender, and who continue to have or will have a public

defender appearing in their cases.

19

20 Defendants argue that indigent criminal defendants cannot form a “coherent class” because the

21 individuals are too diverse and not all of them have suffered injury. With regards to the specific

22 requirements of Fed. R. Civ. P. 23, defendants apparently agree that the proposed class is

23 numerous, but challenge plaintiffs’ assertions regarding commonality, typicality, and adequacy

24 of representation.1

25 1 Defendants also challenge the named plaintiffs’ standing to assert the claims set forth in the
26 amended complaint. As discussed in the “Order Denying Defendants’ Motions for Summary

ORDER CERTIFYING CLASS

1 A. Diversity of Proposed Class

2

Defendants spend half of the “fact” section of their memorandum establishing that

3 indigent defendants in Mount Vernon and Burlington are a diverse population, varying in

4 ethnicity, economics, gender, language, cultures, criminal history, knowledge of the legal

5 process, and expectations of their lawyers. Defendants do not, however, explain how this

6 diversity impacts the class certification analysis under Rule 23. Class certification does not

7 require uniformity. If that were the case, no class would ever be certified because, as defendants

8 succinctly state, “people are diverse.” Opposition (Dkt. # 124) at 6. The certification of a class

9 of California prisoners with serious mental disorders (see Brown v. Plata, __ U.S. __, 131 S. Ct.

10 1910 (2011)) sweeps within its parameters individuals at least as diverse (if not more so) than

11 the class proposed here. The issue, then, is whether the proposed class satisfies the enumerated

12 elements of Rule 23, not whether the individuals in the class are in all ways homogeneous.

13

Defendants also argue that the proposed class is too broad because it includes

14 people who are no longer represented by the public defenders and/or are not unhappy with the

15 representation they received. Defendants misapprehend the class definition. Class members

16 must satisfy all three prongs of the class definition, which means that they either have a public

17 defender representing them at the moment or will have such representation during the course of

18 this litigation. Nor does membership in the class turn on the interpretation of an ambiguous term

19 or an individual’s state of mind. See, e.g., Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981).

20 Under plaintiffs’ theory of the case, all indigent defendants in Mount Vernon and Burlington

21 suffer from a lack of representation because the public defender system adopted by the

22 municipalities makes it impossible for counsel to engage in confidential attorney-client

23 communications or to fill the role of advocate. The fact that some indigent defendants are able

24
25 Judgment,” of even date, plaintiffs had the requisite personal interest at the time this litigation commenced. Defendants’ challenge is more appropriately characterized as an assertion of mootness and
26 has been considered in the typicality section.

ORDER CERTIFYING CLASS

-2-

1 to navigate the system efficiently and effectively with a five-minute consultation in the

2 courtroom does not necessarily mean that they obtained constitutionally adequate representation.

3 The Court finds that the members of the proposed class are readily identifiable and that the class

4 includes only those people who have a claim under the theory advanced by the named plaintiffs.

5 See Vigus v. S. Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235 (S.D. Ill. 2011).

6 B. Fed. R. Civ. P. 23(a)(2): Commonality

7

Because the principal purpose of class certification is to litigate issues that affect a

8 large number of individuals in an efficient and economical manner, there must be questions of

9 law and/or fact that are common to the proposed class in order to justify certification. Not all of

10 the triable questions need be common, however. As long as there are substantial questions

11 which, if tried separately, would have to be answered as to each potential class member, this

12 element is satisfied. See Rodriguez v. Hayes, 591 F.3d 1105, 1122-23 (9th Cir. 2010). As the

13 class is defined, there are a number of common questions of both law and fact, including:

14

a) Determining the demand for public defender services in Mount Vernon and Burlington

15

and the level of resources provided to meet that demand.

16

b) Determining which, if any, stages of the criminal pre-trial process are critical and

17

whether indigent defendants are represented during those stages.

18

c) Determining whether the public defender system established by the municipalities

19

affords indigent defendants constitutionally adequate representation.

20

d) Determining whether the municipalities have a duty to monitor the public defenders or

21

to ensure that the defenders satisfy the minimum requirements of their contract and

22

the state and federal constitutions.

23 The answers to most, if not all, of these questions will be capable of classwide resolution. Wal-

24 Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2551 (2011).

25 C. Fed. R. Civ. P. 23(a)(3) : Typicality

26

The proposed class is comprised of individuals charged with a crime in the

ORDER CERTIFYING CLASS

-3-

1 municipal courts of Mount Vernon or Burlington who are represented by the public defender.

2 The parties dispute whether the three named plaintiffs fall within this class definition.

3 Defendants argue that they do not and that plaintiffs are therefore not typical of the class they

4 seek to represent. In addition, defendants argue that the three named plaintiffs are attempting to

5 mandate a level of involvement with counsel that “might very well be antagonistic to members

6 of the class that prefer a different sort of relationship.” Opposition (Dkt. # 124) at 15-16.2

7

Defendants assert that plaintiffs’ criminal matters have been resolved and/or that

8 they are no longer represented by the public defenders. The record does not support these

9 assertions. Plaintiff Montague has already been sentenced in her criminal matter, but she is

10 currently on probation, has a hearing scheduled (at least as of November 2011), and is being

11 represented by the “conflict” public defender, Hoff. Dkt. # 116, Ex. D at 26. Attorney Hoff’s

12 position as “secondary defender” is expressly prescribed in the public defense services contract.

13 Dkt. # 57-1 at 17. Plaintiff Moon has one or more open criminal matters, has pending court

14 dates (at least as of November 2011), and is also being represented by attorney Hoff. Dkt. # 116,

15 Ex. E at 50-51, 106. Plaintiff Wilbur had a pretrial conference scheduled for December 7, 2011,

16 but apparently failed to appear and continues to be represented by conflict counsel. Dkt. # 122

17 at 72. Contrary to defendants’ argument, the fact that Ms. Montague and Mr. Moon refused to

18 discuss the details of their pending criminal matters with defense counsel at deposition does not

19 suggest that there are no pending matters. Because plaintiffs continue to be represented by a

20 public defender provided by the municipalities pursuant to the public defense services contract at

21 issue in this lawsuit, the Court finds that the named plaintiffs fall within the proposed class

22 definition and retain their personal interest in the outcome of this litigation. They are, therefore,

23

24

2 Defendants also argue that the claims of the named plaintiffs are subject to unique, atypical

25 defenses. The Court has already determined that plaintiffs’ claims survive defendants’ standing, judicial

estoppel, unclean hands, and fugitive disentitlement arguments. See “Order Denying Defendants’ 26 Motions for Summary Judgment,” of even date.

ORDER CERTIFYING CLASS

-4-

1 typical of the class.

2

Even if, for purposes of this motion, the Court assumes that the assignment of an

3 alternate public defender mooted the named plaintiffs’ claims, typicality would nonetheless

4 exist. Although a loss of personal interest in the outcome of the case generally precludes

5 plaintiff from pursuing relief either for his own benefit or on behalf of a class, if the issues raised

6 remain alive, courts apply the mootness doctrine flexibly. Pitts v. Terrible Herbst, Inc., 653 F.3d

7 1081, 1087 (9th Cir. 2011). An exception to the doctrine has been created to deal with situations

8 where, as here, the class of plaintiffs is transitory (meaning that there is a constant class of

9 persons suffering from the alleged deprivation, but that individuals within the class will likely

10 lose their interest while the case is pending). See Gerstein v. Pugh, 420 U.S. 103, 110 n.11

11 (1975). In such cases, the Court may “validly certify a class . . . even though the named

12 plaintiff’s claims are already moot, since the ‘relation back’ doctrine will relate to [the named

13 plaintiffs’] standing at the outset of the case in order ‘to preserve the merits of the case for

14 judicial resolution.’” Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997). See also Pitts, 653

15 F.3d at 1091 (applying “relations back” doctrine where defendant’s litigation strategy of settling

16 the small claims of the named plaintiffs made the class “transitory”).

17

The Court finds that the proposed class is transitory for purposes of the mootness

18 analysis. When this action was filed, it was virtually impossible to predict which individual

19 members of the proposed class, if any, would have a live controversy at the time the class

20 certification issue was decided, much less at the time this case is finally resolved. When the

21 named plaintiffs came to the conclusion that they were not getting the assistance of counsel

22 promised by the state and federal constitutions, they not surprisingly requested conflict counsel.

23 This same dynamic would undoubtedly repeat itself as each potential class representative

24 attempts to avoid harm in his or her underlying criminal matter. In addition, the record shows

25 that defendants dismissed the charges against at least one potential class member, apparently in a

26 successful effort to keep him from becoming a named plaintiff. Other individuals who currently

ORDER CERTIFYING CLASS

-5-

1 satisfy the class definition will plead guilty or have the charges against them dismissed before

2 the merits of this case can be reached. Nevertheless, “the constant existence of a class of

3 persons suffering the deprivation is certain.” Gerstein, 420 U.S. at 110 n. 11. In these

4 circumstances, the fact that the named plaintiffs’ claims may have become moot during the

5 pendency of this litigation does not foreclose the possibility of class certification. U.S. Parole

6 Comm’n v. Geraghty, 445 U.S. 388, 397-99 (1980).

7

As for defendants’ argument that the named plaintiffs are seeking an attorney-

8 client relationship that may be “antagonistic” to the wishes of other class members, defendants

9 misapprehend the nature of plaintiffs’ claim. Plaintiffs are not seeking a detailed schedule of

10 phone calls, conferences, or hand-holding that must occur in each and every case. Rather, they

11 seek a court order requiring Mount Vernon and Burlington to provide constitutionally adequate

12 representation to indigent defendants. Since each member of the proposed class affirmatively

13 requested the appointment of counsel, it is hard to imagine that a class member exists who does

14 not want the minimum protections guaranteed by the state and federal constitutions,

15 D. Fed. R. Civ. P. 23(a)(4) : Adequacy of Representation

16

Rule 23(a)(4) ensures that the class representatives “fairly and adequately protect

17 the interests of the class.” In order to make that determination, the Court “must resolve two

18 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other

19 class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

20 on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011)

21 (internal quotation marks and citation omitted). The Court has no concerns regarding the

22 adequacy of counsel: they have and will undoubtedly continue to competently, vigorously, and

23 ethically pursue this litigation.

24

The Court does have concerns regarding the adequacy of Mr. Wilbur as a class

25 representative and, to a lesser extent, the adequacy of Ms. Montague. Mr. Wilbur’s failure to

26 appear for deposition raises significant concerns regarding his commitment to this litigation.

ORDER CERTIFYING CLASS

-6-

1 Questions regarding Ms. Montague’s credibility, while not nearly as important to the underlying

2 legal issues as defendants seem to believe, may prove to be a distraction that could easily be

3 avoided. Nevertheless, Rule 23(a)(4) “is satisfied as long as one of the class representatives is

4 an adequate class representative.” Rodriguez v. West Publ. Corp., 563 F.3d 948, 961 (9th Cir.

5 2009). The Court therefore finds that at least one named plaintiff and his chosen counsel are

6 adequate representatives of the proposed class.

7 E. Fed. R. Civ. P. 23(b)(2)

8

A class that satisfies the requirements of Rule 23(a) may be certified if defendants

9 have “acted or refused to act on grounds that apply generally to the class, so that final injunctive

10 relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

11 Civ. P. 23(b)(2). Plaintiffs allege that Mount Vernon and Burlington affirmatively created and

12 continued a system of public defense that, by its very nature, deprives indigent criminal

13 defendants of their constitutional right to counsel. Plaintiffs seek a court order requiring the

14 municipalities to establish a public defense system that satisfies the basic elements of the right to

15 counsel. Because the relief sought is systemic, rather than individual, classwide injunctive or

16 declaratory relief may be appropriate. Certification under Rule 23(b)(2) is also appropriate.

17

18

For all of the foregoing reasons, plaintiffs’ motion for class certification (Dkt.

19 # 82) is GRANTED.

20

21

Dated this 23rd day of February, 2012.

22

A

23

Robert S. Lasnik United States District Judge

24

25

26

ORDER CERTIFYING CLASS

-7-

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

13 This matter comes before the Court on “Defendant Cities of Mount Vernon and
14 Burlington’s Motion for Summary Judgment” (Dkt. # 235) and “Plaintiffs’ Motion for Summary
15 Judgment” (Dkt. # 242). Summary judgment is appropriate when, viewing the facts in the light
16 most favorable to the nonmoving party, there is no genuine dispute as to any material fact that
17 would preclude the entry of judgment as a matter of law. L.A. Printex Indus., Inc. v.
18 Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The party seeking summary dismissal of
19 the case “bears the initial responsibility of informing the district court of the basis for its motion”
20 (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and identifying those portions of the
21 materials in the record that show the absence of a genuine issue of material fact (Fed. R. Civ. P.
22 56(c)(1)). Once the moving party has satisfied its burden, it is entitled to summary judgment if
23 the non-moving party fails to identify specific factual disputes that must be resolved at trial.
24 Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1059 (9th Cir. 2012). The mere existence
25 of a scintilla of evidence in support of the non-moving party’s position will not preclude
26
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

1 summary judgment, however, unless a reasonable jury viewing the evidence in the light most

2 favorable to the non-moving party could return a verdict in its favor. U.S. v. Arango, 670 F.3d

3 988, 992 (9th Cir. 2012).

4

Having reviewed the memoranda, declarations, and exhibits submitted by the

5 parties,1 the Court finds as follows:

6

7

Plaintiffs allege that the City of Mount Vernon and the City of Burlington have

8 regularly and systematically failed to provide effective assistance of counsel to indigent persons

9 charged with crimes, thereby violating both the federal and state constitutions. Plaintiffs have

10 produced evidence that Mount Vernon and Burlington implemented and knowingly maintained a

11 system of public defense that is inadequately funded, imposes unreasonable case loads on the

12 individual attorneys, fails to provide representation at critical stages of the prosecution, and is

13 not properly monitored. Much of the anecdotal evidence focuses on the period of time during

14 which Messrs. Sybrandy and Witt provided public defense services, however. Since that time,

15 defendants have taken significant steps to change their system of public defense, including hiring

16 additional public defenders and paying them more for their services. Defendants therefore argue

17 that plaintiffs’ claims must be dismissed as moot because the changes defendants made to their

18 public defense system in 2012 resolved any shortcomings inherent in the prior system. In the

19 alternative, defendants assert that there are genuine issues of material fact regarding the

20 constitutional adequacy of the public defense system now in place in Mount Vernon and

21 Burlington that must be determined by the jury.

22

A pending action becomes moot only when a change in circumstances has made it

23 “impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v.

24

25

1 This matter can be decided on the papers submitted. Plaintiffs’ request for oral argument

regarding defendants’ motion for summary judgment is therefore DENIED. 26

ORDER DENYING MOTIONS

FOR SUMMARY JUDGMENT

-2-

1 Chafin, __ U.S. __, 133 S. Ct. 1017, 1023 (2013). The record contains evidence from which a 2 reasonable jury could conclude that indigent defendants in Mount Vernon and Burlington are 3 currently being deprived of counsel in violation of constitutional mandates. Although such a 4 finding is not the only reasonable conclusion that can be drawn from the evidence, the fact that 5 injunctive relief may yet be available means that the case is not moot. Because there are 6 disputed issues of fact regarding the indigent criminal defense system currently offered by 7 defendants, the jury will have to determine whether the changes defendants made satisfy the 8 constitutional requirements or whether indigent defendants continue to suffer the effects of 9 intentional funding and monitoring choices attributable to defendants. The cross-motions for 10 summary judgment are DENIED.

11

12

Defendants have raised a number of evidentiary objections. Each is considered

13 below.

14

1. Daubert Challenge to Expert Opinion of Christine Jackson

15

Defendants argue that the opinions of attorney Christine Jackson are unreliable

16 because (a) they are based on factual assumptions that are incorrect and (b) her methodology for

17 evaluating the constitutional adequacy of the representation provided has not been accepted by

18 the legal community. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the

19 Supreme Court charged trial judges with the responsibility of acting as gatekeepers to prevent

20 unreliable expert testimony from reaching the jury. The gatekeeping function applies to all

21 expert testimony, not just testimony based on science. Kumho Tire Co. v. Carmichael, 526 U.S.

22 137 (1999). To be admissible, expert testimony must be both reliable and helpful. The

23 reliability of expert testimony is judged not on the substance of the opinions offered, but on the

24 methods employed in developing those opinions. Daubert, 509 U.S. at 594-95. In general, the

25 expert’s opinion must be based on principles, techniques, or theories that are generally accepted

26

ORDER DENYING MOTIONS

FOR SUMMARY JUDGMENT

-3-

1 in his or her profession and must reflect something more than subjective belief and/or

2 unsupported speculation. Daubert, 509 U.S. at 590.

3

Defendants’ first objection, that Jackson relied on faulty data when developing her

4 opinions, is unpersuasive for a number of reasons. First, defendants have not shown that the

5 facts upon which Jackson relied are false. For example, the statement “I did not see evidence of

6 any legal research” is virtually unchallenged. Defendants may be able to show that Mountain

7 Law did, in fact, conduct research that was not mentioned in the time records and is not reflected

8 in the file, but the statement that there is no evidence of legal research in the file is not seriously

9 contested. Second, while defendants are free to challenge the accuracy of certain facts

10 underlying Jackson’s opinion at trial, such a challenge will go to the weight to be given the

11 testimony, rather than its admissibility.

12

Defendants’ objections to the method Jackson used to evaluate the constitutional

13 adequacy of Mountain Law’s representation are also overruled. Jackson reviewed fifty

14 randomly-chosen case files, the statements of indigent defendants represented by Mountain Law,

15 depositions of witnesses in this case (including the Mountain Law witnesses), and defendants’

16 documents regarding their public defense systems. Despite the breadth of this investigation,

17 defendants accuse Jackson of drawing constitutional conclusions based only on the average time

18 Mountain Law spends on each indigent representation. Although Jackson clearly found the

19 average time analysis compelling, she reviewed other aspects of the representations and made

20 assumptions and adjustments based on her own experiences as a public defender before opining

21 regarding the constitutional adequacy of the public defense systems of Mount Vernon and

22 Burlington. Short of personally observing client interactions with counsel from start to finish,

23 the methodology Jackson chose to evaluate the adequacy of the representation on a system-wide

24 basis is reasonable.

25

Defendants may cross-examine Jackson regarding the factual basis for her

26

ORDER DENYING MOTIONS

FOR SUMMARY JUDGMENT

-4-

1 opinions and the effects alternative assumptions would have had on her opinions, but they have

2 not shown that her testimony is inadmissible under Daubert.

3

2. The Court has not considered the Declaration of Jennifer J. Boschen in the context of

4 plaintiff’s summary judgment motion. The exact number of cases handled by the previous

5 public defenders is not dispositive. The Court has considered the underlying case reports

6 submitted by Messrs. Sybrandy and Witt and their responses to discovery requests in this action.

7 Defendants may raise their specific objections to the method Boschen used to calculate case

8 loads if and when her summary is offered at trial in lieu of the underlying case reports.

9

3. Defendants object to consideration of the jail kites on numerous grounds. The Court

10 finds, however, that their authenticity and foundation are not reasonably disputed, they are

11 offered for a non-hearsay purpose, and they are relevant to the issue of whether there was an

12 unmet need for attorney-client communications. Defendants’ objections are overruled.

13

4. Defendants’ objections to the jail log are also overruled. The log is what it purports to

14 be, and the basis of defendants’ hearsay objection is not clear. Defendants may be able to show

15 that the log is not completely accurate, but that goes to the weight of the evidence, not its

16 admissibility

17 For all of the foregoing reasons, defendants’ motions for summary judgment (Dkt.
18 #235) and plaintiffs’ motion for summary judgment (Dkt. # 242) are DENIED.
19

20

Dated this 25th day of April, 2013.

21

22

A

Robert S. Lasnik

23

United States District Judge

24

25

26

ORDER DENYING MOTIONS

FOR SUMMARY JUDGMENT

-5-

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL MEMORANDUM OF DECISION

13 The Sixth Amendment to the United States Constitution provides that “[i]n all
14 criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
15 his defense.” Plaintiffs filed this lawsuit in Skagit County Superior Court in order to challenge
16 the constitutional adequacy of the public defense system provided by the City of Mount Vernon
17 and the City of Burlington. The defendant municipalities removed the case to federal court on
18 July 5, 2011. Testimony on this matter was heard by the Court commencing on June 3, 2013,
19 and concluding on June 18, 2013. Additional briefing closed in August of 2013.1
20 At trial, plaintiffs set out to prove that the Cities of Mount Vernon and Burlington
21 are regularly and systematically failing to provide effective assistance of counsel to indigent
22 persons charged with crimes, thereby violating both the federal and state constitutions and
23

24

1 In addition to the evidence presented at trial, the Court has considered the post-trial

25 submissions of the parties, the Washington Defender Association, and the United States. The “Motion

of Washington Defender Association For Leave to File Amicus Curiae Brief” (Dkt. # 321) is 26 GRANTED.

MEMORANDUM OF DECISION

1 necessitating injunctive relief. Defendants took the position that, whatever defects may have

2 existed in their public defense systems before 2012, they have taken significant steps to improve

3 the representation provided, including contracting with a different law firm to provide defense

4 services, hiring additional public defenders, and paying them more. The Court must determine

5 whether a constitutional right has been violated, whether the Cities are responsible for the

6 violation, and what the appropriate remedy is.

7

FINDINGS OF FACT

8

Plaintiffs have shown, by a preponderance of the evidence, that indigent criminal

9 defendants in Mount Vernon and Burlington are systematically deprived of the assistance of

10 counsel at critical stages of the prosecution and that municipal policymakers have made

11 deliberate choices regarding the funding, contracting, and monitoring of the public defense

12 system that directly and predictably caused the deprivation. The period of time during which

13 Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense

14 services for the Cities was marked by an almost complete absence of opportunities for the

15 accused to confer with appointed counsel in a confidential setting. Most interactions occurred in

16 the courtroom: discussions regarding possible defenses, the need for investigation, existing

17 physical or mental health issues, immigration status, client goals, and potential dispositions

18 were, if they occurred at all, perfunctory and/or public. There is almost no evidence that

19 Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any

20 suggestion that they did legal analysis regarding the elements of the crime charged or possible

21 defenses or that they discussed such issues with their clients. Substantive hearings and trials

22 during that era were rare. In general, counsel presumed that the police officers had done their 23 jobs correctly and negotiated a plea bargain based on that assumption.2 The appointment of

24

25 2 When asked to explain why there were so few trials during his tenure as public defender, Mr.
26 Witt essentially said that trials were unnecessary because “we all knew where we were going.”

MEMORANDUM OF DECISION

-2-

1 counsel was, for the most part, little more than a formality, a stepping stone on the way to a case

2 closure or plea bargain having almost nothing to do with the individual indigent defendant. To

3 the extent that “adequate representation” presumes a certain basic representational relationship,

4 there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the

5 government’s case was so infrequent that it was virtually a non-factor in the functioning of the

6 Cities’ criminal justice system.

7

This situation was the natural, foreseeable, and expected result of the caseloads the

8 attorneys handled. Sybrandy and Witt, both of whom also had private practices (Mr. Witt spent

9 only 40% of his time providing public defense services), each closed approximately 1,000 public

10 defense cases per year in 2009, 2010, and 2011 and often spent less than an hour on each case.

11 Although both counsel testified that they did not feel rushed or overworked, it is clear that, in

12 light of the sheer number of cases they handled, the services they offered to their indigent clients

13 amounted to little more than a “meet and plead” system. While this resulted in a workload that

14 was manageable for the public defenders, the indigent defendants had virtually no relationship

15 with their assigned counsel and could not fairly be said to have been “represented” by them at

16 all. The Cities, which were fully aware of the number of public defenders under contract,

17 remained wilfully blind regarding their overall caseloads and their case processing techniques.

18 The City officials who administered the public defense contracts did not feel it was necessary for

19 them to know how many non-public defense cases Sybrandy and Witt were handling, the

20 number of public defense cases they were assigned, or even whether the defenders were

21 complying with the standards for defense counsel set forth in the Cities’ own ordinances and

22 contracts. Even when Sybrandy and Witt expressly declined to provide basic services requested

23 by the Cities – such as initiating contact with their clients and/or visiting in-custody defendants –

24

25

26

MEMORANDUM OF DECISION

-3-

1 the Cities were not particularly concerned.3 Eric Stendal, the contract administrator for the City

2 of Mount Vernon, testified that as long as things were “quiet and good” and there was no

3 significant increase in the costs the Cities incurred for their public defense system, defendants

4 were happy with the arrangement and continued to contract with Sybrandy and Witt.

5

After this lawsuit was filed, Sybrandy and Witt were no longer willing to provide

6 public defense services for the Cities. The Cities issued a request for proposals and ultimately

7 hired Mountain Law to provide the necessary services. Mountain Law came on-line in April

8 2012 with two attorneys. The evidence regarding initial caseloads varies significantly: the

9 Cities negotiated the new public defense contract on the assumption that over 1,700 cases would

10 be transferred from Sybrandy and Witt during the transition period, but Mountain Law’s

11 caseload statistics show that it was assigned approximately 1,100 cases. Whatever the true

12 numbers, it is clear that by the end of May each of the two public defenders was handling well

13 over 400 cases. By the end of 2012, Mountain Law had added a third attorney and another 963

14 cases. The Cities were kept apprised of these numbers. They were also aware that, on June 15,

15 2012, the Supreme Court of Washington established 400 unweighted misdemeanor cases per

16 year as “the maximum caseload[] for fully supported full-time defense attorneys for cases of

17 average complexity and effort,” assuming a “reasonably even distribution of cases throughout

18 the year.” Because the 400 caseload limit would not be effective until September 1, 2013,

19 neither Mountain Law nor the Cities were particularly concerned that Michael Laws and Jesse

20 Collins were each handling over 500 cases at any given time between April and August 2012.

21 The mantra during that period and continuing through trial was that Mountain Law would

22

23

3 While negotiating the public defense contract in 2008, Mr. Sybrandy notified the Cities that

24

“[t]here is much in the proposed contract which is not possible for us to comply with, at least at the level of compensation we have proposed.” Tr. Ex. 36. Rather than raise the level of compensation to obtain

25 the level of services required under Ordinance 3436 and, by extension, the standards endorsed by the

Washington State Bar Association for the provision of public defense services, the Cities simply struck 26 or ignored requirements related to, among other things, client interactions and reporting/monitoring.

MEMORANDUM OF DECISION

-4-

1 continue to work toward the 400 annual caseload limit by adding attorneys as needed. As of the

2 time of trial, Mountain Law had added two additional attorneys (one in August 2012 and another

3 in March 2013), presumably reducing the per attorney caseload to some extent. The

4 preponderance of the evidence shows, however, that Mountain Law continues to handle

5 caseloads far in excess of the per attorney limits set forth in the Supreme Court’s guidelines.4

6

The Court does not presume to establish fixed numerical standards or a checklist

7 by which the constitutional adequacy of counsel’s representation can be judged. The experts,

8 public defenders, and prosecutors who testified at trial made clear that there are myriad factors

9 that must be considered when determining whether a system of public defense provides indigent

10 criminal defendants the assistance required by the Sixth Amendment. Factors such as the mix

11 and complexity of cases, counsel’s experience, and the prosecutorial and judicial resources

12 available were mentioned throughout trial. The Washington Supreme Court took many of the

13 relevant factors into consideration when it imposed a hard cap on the number of cases a public

14 defender can handle over the course of a year:5 the 400 caseload limit applies as long as counsel

15

16

4 The parties generally agree that the Standards for Indigent Defense adopted by the Washington

17 Supreme Court provide a sort of best practices to which the Cities aspire. The evidence in the record strongly suggests that, even with the addition of Sade Smith and Stacy DeMass to the public defender

18 ranks, defendants still run afoul of the per annum limitation. The question is not whether, on any

particular day, a public defender has more or less than 400 open cases. No attorney can reasonably be 19 expected to handle 400 criminal cases at once. Pursuant to the Standards, the goal is to have no more

20

than 400 cases assigned to each public defender over the course of an entire year, with the assignments temporally spaced so that he or she can give each client the representation that is constitutionally

21 required. Mountain Law opened 2,070 cases between April and December 2012 – even if all four attorneys had been on board during the entire period (and they were not), they would have far exceeded

22 the Supreme Court’s guidelines.

23

5 The Washington Defender Association (“WDA”), a statewide organization of public defenders

24 and public defender agencies that first proposed the caseload limits, argues that:

25

Caseload levels are the single biggest predictor of the quality of public defense

representation. Not even the most able and industrious lawyers can provide effective

26

representation when their workloads are unmanageable. Without reasonable caseloads,

MEMORANDUM OF DECISION

-5-

1 handles only misdemeanor cases, is employed full-time in public defense, is handling cases of

2 average complexity and effort, counts every matter to which he or she is assigned to provide 3 representation,6 is fully supported, and has relevant experience. Where counsel diverges from

4 these assumptions, the caseload limit must be lowered in an attempt to protect the quality of the

5 representation provided.

6

While a hard caseload limit will obviously have beneficial effects and the

7 Washington Supreme Court’s efforts in this area are laudable, the issue for this Court is whether

8 the system of public defense provided by the defendant municipalities allows appointed counsel

9 to give each case the time and effort necessary to ensure constitutionally adequate representation

10 for the client and to retain the integrity of our adversarial criminal justice system. Mount

11 Vernon and Burlington fail this test. Timely and confidential input from the client regarding

12 such things as possible defenses, the need for investigation, mental and physical health issues,

13 immigration status, client goals, and potential dispositions are essential to an informed

14 representational relationship. Public defenders are not required to accept their clients’

15 statements at face value or to follow every lead suggested, but they cannot simply presume that

16 the police officers and prosecutor have done their jobs correctly or that investigation would be

17 futile. The nature and scope of the investigation, legal research, and pretrial motions practice in

18 a particular case should reflect counsel’s informed judgment based on the information obtained

19

20

even the most dedicated lawyers cannot do a consistently effective job for their clients. A warm body with a law degree, able to affix his or her name to a plea agreement, is not

21

an acceptable substitute for the effective advocate envisioned when the Supreme Court

extended the right to counsel to all persons facing incarceration.

22

23

WDA 2007 Final Standards for Public Defense Services with Commentary at 13 (http://www.defensenet.org/about-wda/standards).

24

6 If the Cities adopt a numerical case weighting system that recognizes the greater or lesser

25 workload required for various types of cases (and therefore more accurately estimates workload rather

than just case counts), the Supreme Court’s standards would limit each public defender to 300 weighted 26 misdemeanor cases.

MEMORANDUM OF DECISION

-6-

1 through timely and confidential communications with the client. A failure of communication

2 precludes the possibility of informed judgment. If actual, individualized representation occurs –

3 as opposed to a meet and plead system – the systemic result is likely to be more adversarial

4 testing of the prosecutor’s case throughout the proceeding and a healthier criminal justice system

5 overall. Again, no hard and fast number of pretrial motions or trials is expected, but when the

6 number of cases going to trial is both incredibly small (in absolute and comparative terms) and

7 wildly out of line with the number of trials that occurred in nearby (and sometimes overlapping)

8 jurisdictions, it may be, and in this case is, a sign of a deeper systemic problem.

9

A number of defendants’ witnesses, including former Pierce County Executive and

10 Prosecutor John Ladenburg, pointed out that the adequacy of counsel cannot fairly be judged in a

11 vacuum: the Court must also take into consideration the resources available to the other side. If,

12 in a time of fiscal constraint, the prosecutor is also overwhelmed and/or the municipal jail cannot

13 accommodate any more inmates, the resulting plea offers are likely to be as good as or better

14 than the public defender could negotiate even if he or she spent untold hours on legal research 15 and investigation.7 The Court does not dispute the fact that many, if not the vast majority, of the

16 plaintiff class obtained a reasonable resolution of the charges against them. The problem is not

17 the ultimate disposition: if plaintiffs were alleging that counsel had affirmatively erred and

18 obtained a deleterious result, the Sixth Amendment challenge would have been brought under

19 Strickland v. Washington, 466 U.S. 668 (1984), rather than Gideon v. Wainwright, 372 U.S. 335

20

21

7 It is clear from the testimony of a former city attorney assigned to prosecute misdemeanor

cases for one of the municipalities that the people of the City received even more ineffective

22 representation than the individuals charged with crimes. There is no constitutional right regarding the

quality of the people’s lawyer, however, and the Court is not in a position to address the negative 23 impacts that budgetary constraints have had on any part of the criminal justice system other than the

24

provision of indigent defense. While the city attorney’s willingness to grant overly-lenient plea agreements may explain Sybrandy and Witt’s determination that investigation, research, and

25 communication were unnecessary impediments to the expeditious resolution of their cases, it does not

excuse their consistent failure to establish a meaningful attorney/client relationship with the people they 26 represented.

MEMORANDUM OF DECISION

-7-

1 (1963). The point here is that the system is broken to such an extent that confidential

2 attorney/client communications are rare, the individual defendant is not represented in any

3 meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.

4 Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence

5 case may appear to be effective advocacy, but not if the client is innocent, the charge is

6 defective, or the plea would have disastrous consequences for his or her immigration status. It is

7 the lack of a representational relationship that would allow counsel to evaluate and protect the

8 client’s interests that makes the situation in Mount Vernon and Burlington so troubling and gives

9 rise to the Sixth Amendment violation in this case.

10

Given the fiscal constraints imposed on both sides of the criminal justice equation

11 in Mount Vernon and Burlington, it is not surprising that the Mountain Law attorneys had to

12 adopt some of the same time-saving and “efficient” case management practices that dominated

13 the Sybrandy and Witt era in order to handle the caseload they inherited in April 2012 and the

14 additional cases that have been assigned to them each and every month thereafter. The evidence

15 is clear that Mountain Law, while more willing to conduct an initial interview with their clients,

16 is simply unable to do so in a majority of cases. Although Mountain Law staff schedule a

17 meeting with the client as soon as the case is assigned, the attorneys’ courtroom and other

18 commitments often make it impossible to hold the meeting before the client’s first appearance.

19 Thus, the public defenders often meet their clients for the first time in the courtroom, sometimes

20 with a plea offer already in hand. At that point, there is really no opportunity for a confidential

21 interview, the client may or may not understand the proceedings, and the public defender is

22 unprepared to go forward on the merits of the case. The client is given a choice between

23 continuing the hearing so he or she can meet with the public defender or to accept whatever offer

24

25

26

MEMORANDUM OF DECISION

-8-

1 happens to be on the table.8 While there is some evidence of investigations, legal research, and

2 an uptick in the number of cases set for trials in Mount Vernon and Burlington since Mountain

3 Law took over, the numbers are still shockingly low. Mr. Laws apparently spoke to only three

4 or four witnesses in the whole of 2012, a review of fifty Mountain Law case files showed no

5 documentation of any legal analysis or research, and there is evidence of only one pre-trial

6 motion and five or six trials in 2012.

7

The Court finds that, as of the date of trial, the representation provided to indigent

8 defendants in Mount Vernon and Burlington remains inadequate. The Court would have to

9 make several unsupported assumptions regarding Mountain Law’s ability to clear the backlog of

10 cases it inherited, the distribution of cases within the office, counsels’ experience and

11 proficiency, and the number of new cases opened each month to conclude that the defenders’

12 current caseloads allow the kind of individualized client representation that every indigent

13 criminal defendant deserves and on which our adversarial system of criminal justice depends.

14 Even if the Court were willing to make those assumptions, there is no evidence that Mountain

15 Law has rethought or restructured the case management procedures that were developed during

16 the first few hectic months of its contract with the Cities. Rather than providing an opportunity

17 for a representational relationship to develop and following up as appropriate given the facts of

18 each case, Mountain Law allowed the massive caseload to determine the level of representation

19

20

8 Defendants made much of the fact that other professionals involved in the criminal justice

21 system – the judges and prosecutors – did not see anything wrong with the representation provided in any particular case. As the Court has already noted, the result obtained in an individual case would

22 likely appear reasonable, especially when the client assures the presiding judicial officer that he or she is

making a knowing and informed decision to plead guilty. But what the judges and prosecutors had no 23 way of knowing was whether the client ever had a chance to meet with the public defender in a

24

confidential setting, whether the attorney conducted an investigation or knew anything about the case other than what was in the charging document and/or police report, or whether a meaningful

25 attorney/client relationship actually existed. No indigent criminal defendant testified that they enjoyed a

representational relationship with Sybrandy, Witt, or Mountain Law, despite having positive things to 26 say about certain conflict counsel and/or the Skagit County public defenders.

MEMORANDUM OF DECISION

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1 that would be afforded and has continued those practices even after adding additional attorneys.

2

The Court’s findings should not be interpreted as an indictment of Mountain Law,

3 its attorneys, or their legal acumen. The Court is encouraged by some of the changes Mountain

4 Law is making in Mount Vernon and Burlington: the public defense system is definitely

5 trending in the right direction, and the Court sees great promise in Mountain Law’s dedicated

6 young lawyers. By accepting a contract with the Cities of Mount Vernon and Burlington,

7 however, Mountain Law became embroiled in an ongoing debate regarding the adequacy of our

8 public defense systems in times of fiscal constraint and the meaning of the right to counsel fifty

9 years after it was promised in Gideon v. Wainwright, 372 U.S. 335 (1963). Although the right to

10 the assistance of counsel regardless of economic status is established by the Constitution,

11 legislative enactments are required to ensure that the right is maintained, and funding limitations

12 imposed over the past few years are having a cumulative and adverse impact at both the state and

13 national levels.9 In the State of Washington, there are undoubtedly a number of municipalities

14

15

9 The federal judiciary’s system of indigent public defense services, long considered the gold

standard in the United States, has been adversely affected by successive years of reduced budgets and 16 the 2013 sequestration cuts. For the first time, federal public defenders were forced to take furlough

17

days, making them unavailable to their clients and unable to attend court hearings. More cases were shifted to private lawyers, whose pay was reduced and delayed in an effort to cut costs. On November

18 6, 2013, fifty-eight Members of Congress sent a letter to the Speaker of the House and the Minority Leader indicating their grave concern that the underfunding of public defense at the federal level was

19 placing the Sixth Amendment right to counsel in jeopardy (http://quigley.house.gov/uploads/

20

FederalDefenderLetter1.pdf ). At the intersection of staggering caseloads and insufficient resources we even find federal courts

21 struggling to justify procedures that simply do not hold up under constitutional scrutiny. For instance, United States Magistrate Judges in Arizona faced with an explosion in the number of illegal entry cases

22 across the Mexican border started doing “mass” plea proceedings with up to seventy defendants

pleading guilty at the same time. United States v. Arqueta-Ramos, 730 F.3d 1133, 1135-36 (9th Cir. 23 2013). During one such hearing, there were fifteen defense attorneys present, each representing

24

between three and five defendants. Id. at 1136. The court advised the large group of defendants of their rights and then questioned them in groups of five, collectively asking questions to ascertain whether

25 they understood their rights and the consequences of pleading guilty. Id. at 1139. The Ninth Circuit

Court of Appeals struck down the court’s collective group questioning because the court did not address 26 any defendant personally during its advisement of rights or the small group questioning. Id. (“We act

MEMORANDUM OF DECISION

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1 whose public defense systems would, if put under a microscope, be found wanting. As defense

2 counsel rightly pointed out, this is a test case that cannot properly be laid at Mountain Law’s

3 door. It was the confluence of factors in place in Mount Vernon and Burlington in 2011 - long

4 before Mountain Law began providing public defense services - that brought the Cities to the

5 attention of the ACLU and prompted this Sixth Amendment challenge.

6

CONCLUSIONS OF LAW

7 A. Right to Counsel

8

The Sixth Amendment to the United States Constitution provides that “[i]n all

9 criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for 10 his defense.”10 Such assistance is vital to the proper functioning of our criminal justice system:

11 in the absence of adequate representation, the prosecution’s case may not be subjected to

12 meaningful adversarial testing and the defendant may be unable to assert other rights he may

13 have or to pursue valid defenses. U.S. v. Cronic, 466 U.S. 648, 654, 659 (1984). See also

14 Powell v. Alabama, 287 U.S. 45, 68-69 (1932) (“The right to be heard would be, in many cases,

15 of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and

16 educated layman has small and sometimes no skill in the science of law. If charged with crime,

17 he is incapable, generally, of determining for himself whether the indictment is good or bad. He

18 is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial

19 without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the

20 issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his

21 defense, even though he have a perfect one. He requires the guiding hand of counsel at every

22

23

within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure.” (quoting United States v. Roblero-Solis, 588 F.3d 692, 693 (9th

24 Cir. 2009)).

25

10 Plaintiffs have also asserted a claim under Article I, Section 22 of the Washington State

Constitution. Because the parties did not offer any evidence or legal argument peculiar to that claim, it

26 has not been separately analyzed.

MEMORANDUM OF DECISION

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1 step in the proceedings against him. Without it, though he be not guilty, he faces the danger of

2 conviction because he does not know how to establish his innocence.”). The United States

3 Supreme Court has determined that the right to counsel is “fundamental and essential to a fair

4 trial” and applies in both federal and state proceedings. Gideon v. Wainwright, 372 U.S. 335,

5 343-44 (1963) (“[I]n our adversary system of criminal justice, any person haled into court, who

6 is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.

7 This seems to us to be an obvious truth.”).

8

Despite the broad language of the Sixth Amendment, Powell, and Gideon, it was

9 not until 1972 that the Supreme Court made clear that the right to counsel extends to all cases in

10 which the accused may be deprived of his liberty, whether characterized as a felony or a

11 misdemeanor. In Argersinger v. Hamlin, 407 U.S. 25, 33 (1972), the Supreme Court noted that

12 the legal and constitutional questions involved in the prosecution of petty offenses are not

13 necessarily any less complex than those that arise in felony cases. In addition, the sheer volume

14 of misdemeanor cases may give rise to unique procedural challenges that threaten the fairness of

15 the criminal justice system:

16

The volume of misdemeanor cases, far greater in number than felony prosecutions,

may create an obsession for speedy dispositions, regardless of the fairness of the

17

result. . . . An inevitable consequence of volume that large is the almost total

18

preoccupation in such a court with the movement of cases. The calendar is long,

speed often is substituted for care, and casually arranged out-of-court compromise

19

too often is substituted for adjudication. Inadequate attention tends to be given to

20

the individual defendant, whether in protecting his rights, sifting the facts at trial,

deciding the social risk he presents, or determining how to deal with him after

21

conviction. . . . Suddenly it becomes clear that for most defendants in the criminal

22

process, there is scant regard for them as individuals. They are numbers on

dockets, faceless ones to be processed and sent on their way. The gap between the

23

theory and the reality is enormous. . . . One study concluded that misdemeanants

24

represented by attorneys are five times as likely to emerge from police court with

all charges dismissed as are defendants who face similar charges without counsel.

25

26 Id. at 34-36 (internal quotation marks and citations omitted). The Washington Supreme Court

MEMORANDUM OF DECISION

-12-

1 recognized the primacy of the Argersinger decision in McInturf v. Horton, 85 Wn.2d 704, 707

2 (1975), overruling an earlier opinion that held there was no right to appointment of counsel in

3 misdemeanor prosecutions. See also Washington Criminal Rule for Courts of Limited

4 Jurisdiction 3.1 (“The right to a lawyer shall extend to all criminal proceedings for offenses

5 punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or

6 otherwise.”).

7

Mere appointment of counsel to represent an indigent defendant is not enough to

8 satisfy the Sixth Amendment’s promise of the assistance of counsel. While the outright failure

9 to appoint counsel will invalidate a resulting criminal conviction, less extreme circumstances

10 will also give rise to a presumption that the outcome was not reliable. For example, if counsel

11 entirely fails to subject the prosecution’s case to meaningful adversarial testing, if there is no

12 opportunity for appointed counsel to confer with the accused to prepare a defense, or

13 circumstances exist that make it highly unlikely that any lawyer, no matter how competent,

14 would be able to provide effective assistance, the appointment of counsel may be little more than

15 a sham and an adverse effect on the reliability of the trial process will be presumed. Cronic, 466

16 U.S. at 658-60; Avery v. Alabama, 308 U.S. 444, 446 (1940).

17 B. Municipal Liability under Section 1983

18

Under 42 U.S.C. § 1983, a municipality is a person and may therefore be liable for

19 a constitutional deprivation. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 20 2006).11 Although a municipality may not be sued under § 1983 simply because an employee

21 inflicted constitutional injury, where the injury is the result of a policy or custom of the

22 municipality, the injury-generating acts are “properly speaking, acts of the municipality – that is,

23 acts which the municipality has officially sanctioned or ordered.” Pembauer v. City of

24

25

11 Plaintiffs are not suing the individual public defenders for the way in which they performed a

lawyer’s traditional functions (a claim likely precluded by Polk County v. Dodson, 454 U.S. 312, 325

26 (1981)).

MEMORANDUM OF DECISION

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1 Cincinnati, 475 U.S. 469, 480 (1986) (internal quotation marks omitted). Discrete decisions by a

2 government official with ultimate authority over the matter in question generally give rise to

3 official municipal policy for purposes of § 1983. Id. at 480-81.

4

The Court finds that the public defense system in Mount Vernon and Burlington

5 has systemic flaws that deprive indigent criminal defendants of their Sixth Amendment right to

6 the assistance of counsel. Although counsel are appointed in a timely manner, the sheer number

7 of cases has compelled the public defenders to adopt case management practices that result in

8 most defendants going to court for the first time – and sometimes accepting a plea bargain –

9 never having had the opportunity to meet with their attorneys in a confidential setting. The

10 attorney represents the client in name only in these circumstances, having no idea what the

11 client’s goals are, whether there are any defenses or mitigating circumstances that require

12 investigation, or whether special considerations regarding immigration status, mental or physical

13 conditions, or criminal history exist. Such perfunctory “representation” does not satisfy the

14 Sixth Amendment. See Strickland, 466 U.S. at 691 (counsel have a Sixth Amendment duty to

15 conduct a reasonable investigation or to make a decision, based “on informed strategic choices

16 made by the defendant and on information supplied by the defendant,” that a particular

17 investigation is unnecessary); Cronic, 466 U.S. at 658-60; Avery, 308 U.S. at 446; Powell, 287

18 U.S. at 58 (“It is not enough to assume that counsel thus precipitated into the case thought there

19 was no defense, and exercised their best judgment in proceeding to trial without preparation.

20 Nether they nor the court could say what a prompt and thorough-going investigation might

21 disclose as to the facts.”); Hurrell-Harring v. State of New York, 930 N.E.2d 217, 224 (N.Y.

22 2010) (recognizing that “[a]ctual representation assumes a certain basic representational

23 relationship,” such that the failure to communicate and/or appear at critical stages of the

24 prosecution may be reasonably interpreted as nonrepresentation rather than ineffective

25 representation).

26

Having found that plaintiffs’ Sixth Amendment rights were violated, the Court

MEMORANDUM OF DECISION

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1 must determine whether the Cities are responsible for the constitutional deprivation. Plaintiffs

2 have shown that the constitutional deprivations at issue here were the direct and predictable

3 result of the deliberate choices of City officials charged with the administration of the public

4 defense system. Intentional choices made while negotiating the public defender contracts and

5 allocating funds to the public defender system left the defenders compensated at such a paltry

6 level that even a brief meeting at the outset of the representation would likely make the venture

7 unprofitable. And the Cities knew it. When Mountain Law took over the public defense

8 contract, the Cities estimated there would be approximately 1,700 cases transferred from

9 Sybrandy and Witt and yet chose a proposal pursuant to which they would pay only $17,500 per

10 month. That works out to $10 per case for April 2012, with the per case rate reduced in future

11 months by each additional case assigned to Mountain Law. Mountain Law had (and still has)

12 every incentive to close cases as quickly as possible and to minimize the time spent on each

13 case. While every attorney, whether privately or publicly retained, must be cognizant of costs

14 when choosing a course of action, defending an indigent criminal defendant – any indigent

15 criminal defendant – on $10 per month inclusive of staff, overhead, and routine investigation

16 costs makes it virtually impossible that the lawyer, no matter how competent or diligent, will be 17 able to provide effective assistance.12

18

Legislative and monitoring decisions made by the policymaking authorities of the

19 Cities ensured that any defects in the public defense system would go undetected or could be

20 easily ignored. Despite receiving monthly reports listing case assignments, types of cases,

21 dispositions, and hours worked on each case, the administrators made no effort to calculate the

22 number of cases assigned to Mountain Law or to evaluate the nature or extent of the services

23 provided under the contract. After this litigation was filed, the City of Mount Vernon twice

24

25

12 The Court recognizes that approximately 1,100 cases were transferred from Sybrandy and

Witt to Mountain Law, making the actual pay per case closer to $16 for April 2012. Nevertheless, the

26 conclusion that the Cities knowingly underfunded their public defense system remains inescapable.

MEMORANDUM OF DECISION

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1 amended its ordinance related to the provision of public defender services, both times removing

2 what little “teeth” the previous ordinances had. For example, in January 2012, the City

3 jettisoned its previously acknowledged obligation to develop “a procedure for systematic

4 monitoring and evaluation of attorney performance based on published criteria” in favor of a

5 newly-found concern that such monitoring and evaluation “is not practical nor consistent with

6 attorney/client privilege nor the constitutional rights of indigent defendants.” Tr. Exs. 45 and

7 147. In November 2012, Mount Vernon deleted references to specific duties of the public

8 defenders, redefined “case” to exclude from the caseload calculation matters that would clearly

9 count toward the 400 unweighted limit under the Supreme Court’s Standards for Indigent

10 Defense, and removed the requirement that the public defenders report hours worked on and the

11 disposition of each case.

12

The Court finds that the combination of contracting, funding, legislating, and

13 monitoring decisions made by the policymaking authorities for the Cities directly caused the

14 truncated case handling procedures that have deprived indigent criminal defendants in Mount

15 Vernon and Burlington of private attorney/client consultation, reasonable investigation and

16 advocacy, and the adversarial testing of the prosecutor’s case. The Cities are therefore liable

17 under § 1983 for the systemic Sixth Amendment violation proved by plaintiffs. See Miranda v.

18 Clark County, 319 F.3d 465 (9th Cir. 2003) (finding that county could be liable for constitutional

19 deprivations arising from funding and case assignment policies); Clay v. Friedman, 541 F. Supp.

20 500, 502, 505-06 (N.D. Ill. 1982) (finding that administrative head of public defender’s office

21 could be liable for non-representative decision-making and that county could be liable for 22 promulgating policies and customs that led to the constitutional deprivation).13

23

24

13 To the extent Gausvik v. Perez, 239 F. Supp.2d 1047, 1065 (E.D. Wash. 2002), stands for the

25 proposition that hiring an independent contractor, such as Mountain Law, to provide public defense

services discharges a municipality’s Sixth Amendment obligations, the Court finds it unpersuasive and 26 unsupported by the cited authorities.

MEMORANDUM OF DECISION

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1 C. Injunctive Relief

2

Plaintiffs have succeeded on the merits of their claim, establishing both a systemic

3 deprivation of the right to the assistance of counsel and the Cities’ responsibility for the 4 deprivation.14 In order to obtain injunctive relief, plaintiffs must also show irreparable injury

5 and the inadequacy of available legal remedies. Sierra Club v. Penfold, 857 F.2d 1307, 1318

6 (9th Cir. 1988). This burden is easily met here. A system that makes it impossible for appointed

7 counsel to provide the sort of assistance required by the Sixth Amendment works irreparable

8 harm: the lack of an actual representational relationship and/or adversarial testing injures both

9 the indigent defendant and the criminal justice system as a whole. The exact impacts of the

10 constitutional deprivation are widespread but difficult to measure on a case by case basis,

11 making legal remedies ineffective. See Walters v. Reno, 145 F.3d 1031, 1048 (9th Cir. 1998).

12

This Court has broad authority to fashion an equitable remedy for the

13 constitutional violations at issue in this case. Swann v. Charlotte-Mecklenburg Bd. of Educ.,

14 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of a district

15 court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent

16 in equitable remedies.”). The Court has considered whether merely declaring that a

17 constitutional right has been violated would be enough to work a change in defendants’ conduct,

18 such that affirmative injunctive relief would be unnecessary. Having carefully considered the

19 testimony of the Cities’ officials and reviewed the recent legislative and contractual

20 developments, the Court has grave doubts regarding the Cities’ ability and political will to make

21 the necessary changes on their own. The Cities’ unwillingness to accept that they had any duty

22 to monitor the constitutional adequacy of the representation provided by the public defenders,

23 their steadfast insistence that the defense services offered by Sybrandy and Witt were not just

24

25

14 In Farrow v. Lipetzky, 2013 WL 1915700 (N.D. Cal. May 8, 2013), the case defendants cite

for the proposition that a federal court has declined to use its equitable powers to monitor a public

26 defense agency, the court found that no Sixth Amendment violation had occurred.

MEMORANDUM OF DECISION

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1 adequate, but “outstanding,” their surprisingly slow response to the pendency of this litigation

2 and the Supreme Court’s adoption of specific caseload limits, and their budgetary constraints all

3 lead to the conclusion that a declaration will not be sufficient to compel change.

4

The Court is sensitive to the Cities’ interests in controlling the manner in which

5 they perform their core functions, including the provision of services and the allocation of scarce

6 resources. Having chosen to operate a municipal court system, however, defendants are

7 obligated to comply with the dictates of the Sixth Amendment, and the Court will “not shrink

8 from [its] obligation to enforce the constitutional rights of all persons.” Brown v. Plata, __ U.S.

9 __, 131 S. Ct. 1910, 1928 (2011) (internal quotation marks omitted). A continuing injunction is

10 hereby entered against defendants as follows:

11

– Within seven days of the date of this Order, the officials charged with

12 administering the public defense contracts in Mount Vernon and Burlington and all full- and

13 part-time public defenders in those municipalities shall read the Washington Defender

14 Association’s 2007 Final Standards for Public Defense Services with Commentary

15 (http://www.defensenet.org/about-wda/standards).

16

– The Cities of Mount Vernon and Burlington shall, within thirty days of the date of

17 this Order, re-evaluate their existing contract for the provision of public defense in light of the

18 Court’s findings and ensure that the document encourages and is no way antithetical to a public

19 defense system that allows for private attorney/client communications at the outset of the

20 relationship and the ability to follow up as appropriate given the circumstances, including the

21 client’s status, input, and goals. While the standards adopted by the Washington Supreme Court

22 and the experiences of the Washington Defender Association will undoubtedly inform any

23 evaluation of the adequacy of defendants’ system going forward, the constitutional benchmark

24 cannot be reduced to a number, and the Court declines to adopt a hard caseload limitation. The

25 critical issue is whether the system provides indigent criminal defendants the actual assistance of

26 counsel, such that defendants have the opportunity to assert any rights or defenses that may be

MEMORANDUM OF DECISION

-18-

1 available to them and appropriate adversarial testing occurs.

2

– The Cities shall hire one part-time Public Defense Supervisor to work at least

3 twenty hours per week. The Public Defense Supervisor may be either a contractor or a part-time

4 employee, but the funds for this position shall not come out of the existing budget for public

5 defense services. The parties shall have sixty days from the date of this Order to reach

6 agreement on selection of a Public Defense Supervisor. The Public Defense Supervisor will be

7 part of the attorney/client confidential relationship between Mountain Law and its clients, but

8 will not be part of the Mountain Law firm. The Public Defense Supervisor may not have worked

9 previously for the Cities, Mountain Law, Baker Lewis, or any of the Cities’ witnesses or

10 attorneys. The Public Defense Supervisor must have a minimum of five years of experience as a

11 public defender, including jury trial experience. If the parties fail to reach agreement within

12 sixty days from the date of this Order, each side shall submit the names and resumes of two

13 candidates willing to serve as the Public Defense Supervisor to the Court, which will then select

14 the Public Defense Supervisor.

15

– The duties of the Public Defense Supervisor shall include:

16

1. Supervision and evaluation of whether the public defenders are making contact

17 (in-person or by phone) in a confidential setting with each new client within 72 hours of

18 appointment. If contact cannot be made within that time period, the Public Defense Supervisor

19 shall document the reason(s) for the failure and whether an opportunity for confidential

20 communications occurred prior to the client’s first court hearing. The Public Defense Supervisor

21 will also take steps to ensure that the public defenders perform the following tasks when they

22 first meet with a client following a new case assignment: (i) advise the client of the right to jury

23 trial and right to a speedy trial; (ii) advise the client of the elements of the charge and that the

24 prosecutor must prove each element beyond a reasonable doubt to obtain a conviction;

25 (iii) advise the client of the right to present a defense; (iv) advise the client that it is solely the

26 client’s decision whether to accept or reject any plea offer; and (v) discuss with the client any

MEMORANDUM OF DECISION

-19-

1 potential witnesses or avenues of investigation.

2

2. Monthly supervision and evaluation of the first contact with clients,

3 documenting whether the public defenders are determining if each client: (i) appears competent

4 to proceed with the court process; (ii) has a sufficient literacy level to understand written court

5 documents such as the guilty plea form and sentencing orders; (iii) needs an interpreter; and

6 (iv) is a non-citizen in need of expert immigration advice from the WDA or another source.

7

3. Monthly supervision and evaluation of whether the public defenders are

8 responding appropriately to information provided by the client and discovery obtained in each

9 case, including pursuing additional discussions with the client, investigations, medical

10 evaluations, legal research, motions, etc., as suggested by the circumstances.

11

4. Establishing a policy for public defenders to respond to all client contacts and

12 complaints (including jail kites), including the length of time within which a response must

13 occur. The Public Defense Supervisor shall review any and all client complaints obtained from

14 any source and the public defender’s response. Use or non-use of any particular complaint

15 process shall in no way be considered a waiver of the client’s rights. The Public Defense

16 Supervisor shall establish a process for clients to pursue a complaint if the Public Defense

17 Supervisor fails to resolve it to the client’s satisfaction.

18

5. Monthly supervision and evaluation of whether the public defenders are

19 appropriately using interpreters and translators before any decisions are made by the client.

20

6. Supervision and evaluation of courtroom proceedings to ensure that the public

21 defenders are fulfilling their role as advocate before the court on the client’s behalf.

22

7. Supervision and evaluation of whether the public defenders are fully advising

23 clients of their options regarding possible dispositions, including information on treatment

24 services, any options for a less onerous disposition based on treatment, explanations of plea

25 offers, the consequences of a conviction, conditions that are normally imposed at sentencing, any

26 applicable immigration consequences, and any other consequences about which the client has

MEMORANDUM OF DECISION

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1 expressed concern.

2

8. Supervision and evaluation of whether the public defenders are maintaining

3 contemporaneous records on a daily basis showing the amount of time spent on each task for

4 each case, recorded in tenth-of-an-hour increments.

5

9. Quarterly supervision and evaluation of whether cases are being allocated to

6 each public defender fairly and in consideration of existing workloads, the seriousness of the

7 charge(s), any factors that make the case more complex or time-consuming, and the attorney’s

8 experience level.

9

10. Quarterly selection and review of fifteen randomly chosen files from each

10 public defender to ensure that the necessary tasks are being performed and documented, with

11 appropriate time being spent on each task. The Public Defense Supervisor shall conduct a

12 quarterly meeting with each public defender to advise how their performance can be improved

13 based on the file review.

14

11. Collecting data on a quarterly basis showing: (i) the frequency of use of

15 investigators and expert witnesses; (ii) the number of motions on substantive issues that are filed

16 and the outcome of each motion; (iii) the frequency with which cases are resolved by outright

17 dismissal or a nonconviction disposition; (iv) the frequency of pleas to a lesser charge; and

18 (v) the number of trials (broken down by bench vs. jury trials) conducted and the outcome of the

19 trials.

20

12. Conducting a quarterly analysis of whether the Cities’ public defense system

21 (i) provides actual representation of and assistance to individual criminal defendants, including

22 reasonable investigation and advocacy and, where appropriate, the adversarial testing of the

23 prosecutor’s case and (ii) complies with all provisions of the public defense contract and all

24 applicable provisions of the Cities’ ordinances and regulations. The Public Defense Supervisor

25 shall meet with the officials charged with administering the public defense contract to advise

26 how the Cities’ performance can be improved based on the quarterly analysis.

MEMORANDUM OF DECISION

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1

13. Submission of biannual reports to the parties explaining: (i) whether all of the

2 duties specified above have been performed in the most recent six-month period, and if not, why

3 not, including a specific discussion of each duty that has not been performed and the Public

4 Defense Supervisor’s recommendations for how to achieve compliance; (ii) whether the Cities’

5 public defense system (a) provides actual representation of and assistance to individual criminal

6 defendants, including reasonable investigation and advocacy and, where appropriate, the

7 adversarial testing of the prosecutor’s case and (b) complies with all provisions of the public

8 defense contract and all applicable provisions of the Cities’ ordinances and regulations, and if

9 not, why not, including a specific discussion of each item where the Cities fall short and the

10 Public Defense Supervisor’s recommendations for how to achieve compliance. The Public

11 Defense Supervisor shall submit his or her first report to the parties six months after the date of

12 this Order. The Public Defense Supervisor shall continue to submit a report every six months

13 thereafter for a period of 24 months or until the Court orders otherwise.

14

– Twelve months, 24 months, and 34 months after the entry of this Order, the Cities

15 shall provide fifty case files, randomly selected by the Public Defense Supervisor, to plaintiffs’

16 counsel so that they may evaluate the Cities’ compliance with this Order and whether the Public

17 Defense Supervisor is properly performing his or her duties. This Court shall retain jurisdiction

18 over this case for three years from the date of entry of this Order, and this injunction shall

19 remain in effect for that period. However, if the Public Defense Supervisor’s annual reports

20 show prior to that date that the system provides indigent criminal defendants actual

21 representation by and assistance of counsel, such that defendants have the opportunity to assert

22 any rights or defenses that may be available to them and appropriate adversarial testing occurs,

23 defendants may petition the Court to dismiss the case and terminate the injunction at that point in

24 time.

25

– If plaintiffs believe that the Cities’ efforts to provide an adequate system of public

26 defense are not trending in the right direction or a dispute arises as to compliance with the

MEMORANDUM OF DECISION

-22-

1 injunctive provisions of this Order, plaintiffs’ counsel shall notify defendants in writing of any

2 objections they have regarding the Cities’ efforts or compliance. Within fourteen days of receipt

3 of the objections, the parties shall meet and confer to discuss and attempt to resolve the dispute.

4 If the parties are not able to resolve the objections, plaintiffs may file a motion seeking

5 appropriate relief. The motion shall be noted for consideration on the third Friday after filing,

6 the motion and opposition pages shall not exceed 24 pages, and the reply shall not exceed twelve

7 pages.

8

CONCLUSION

9

It has been fifty years since the United States Supreme Court first recognized that

10 the accused has a right to the assistance of counsel for his defense in all criminal prosecutions

11 and that the state courts must appoint counsel for indigent defendants who cannot afford to retain

12 their own lawyer. The notes of freedom and liberty that emerged from Gideon’s trumpet a half a

13 century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that

14 reduce the promise to a hollow shell of a hallowed right.

15

16

Dated this 4th day of December, 2013.

17

A

18

Robert S. Lasnik

United States District Judge

19

20

21

22

23

24

25

26

MEMORANDUM OF DECISION

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 Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 1 of 11

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL ORDER AWARDING FEES AND COSTS

13 This matter comes before the Court on “Plaintiffs’ Motion for Award of Attorneys’
14 Fees and Expenses.” Dkt. # 331. Having reviewed the memoranda, declarations, and exhibits
15 submitted by the parties,1 the Court finds as follows:
16 Plaintiffs prevailed at trial, convincing a skeptical fact finder that the system of
17 public defense in Mount Vernon and Burlington was constitutionally deficient, that the
18 adjustments the Cities made mid-litigation did not remedy the situation, and that injunctive relief
19 was necessary to ensure that indigent criminal defendants have the assistance of counsel to
20 which they are entitled. Because no monetary relief was requested, plaintiffs’ counsel
21 essentially litigated the case on a pro bono basis. Plaintiffs request an award of $2,439,081.52 in
22 fees plus $43,496.50 in expenses as prevailing parties under 42 U.S.C. § 1988.
23 Section 1988 authorizes an award of “reasonable attorney’s fees” in order to
24

25 1 This matter can be decided on the papers submitted. Plaintiffs’ request for oral argument is
26 DENIED. The Court further finds that notice to the class regarding this motion is unnecessary.

ORDER AWARDING FEES AND COSTS

Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 2 of 11

1 encourage individuals and attorneys to take on the burden of vindicating “important civil and

2 constitutional rights that cannot be valued solely in monetary terms.” City of Riverside v.

3 Rivera, 477 U.S. 561, 574 (1986). See also S. Rep. No. 94-1011, at 2 (1976), reprinted in 1976

4 U.S.C.C.A.N. 5908, 5910 (“If private citizens are to be able to assert their civil rights, and if

5 those who violate the Nation[’s] fundamental laws are not to proceed with impunity, then

6 citizens must have the opportunity to recover what it costs them to vindicate these rights in

7 court.”). In determining a presumptively reasonable fee amount, courts apply the lodestar

8 method of multiplying a reasonable hourly rate by the number of hours reasonably expended on

9 the litigation. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013).

10 A. Reasonable Hourly Rates

11

An hourly rate is reasonable if it falls within the range of “prevailing market rates

12 in the relevant community” given “the experience, skill, and reputation of the attorney.” Dang v.

13 Cross, 422 F.3d 800, 813 (internal citations omitted). “[T]he burden is on the fee applicant to

14 produce satisfactory evidence – in addition to the attorney’s own affidavits – that the requested

15 rates are in line with those prevailing in the community for similar services by lawyers of

16 reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896

17 n.11 (1984). In this case, class counsel have set forth their education, years of experience,

18 practice areas, normal hourly rates, and contribution to the litigation. They have also provided

19 declarations from three experienced and respected members of the bar of this Court to the effect

20 that the rates charged by class counsel are reasonable based on their years of experience and the

21 prevailing range of rates in the Seattle/Tacoma legal community. Two of the three declarants are

22 managing partners of their law firms, one of whom shares responsibility for reviewing the

23 prevailing rates charged in the market and periodically adjusting his firm’s rates accordingly.

24 All three declarants agree that experienced, well-regarded, civil litigators in this community can

25 charge hourly rates above those charged in this case. Of particular relevance is evidence that

26 partners working on behalf of plaintiffs in civil rights cases charge between $400 and $600 per

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 3 of 11

1 hour on both hourly and contingent bases. The rates charged by associates varies greatly with

2 years of experience, but the evidence shows that large and mid-sized firms in the area can charge 3 up to $300 per hour for the work of their associates.2

4

Defendants, for their part, offer evidence showing that their counsel charged $250-

5 265 per hour in this litigation and that other respected and experienced defense lawyers charge

6 $250-275 for their services. While it is undisputed that attorneys who defend civil rights

7 lawsuits for municipalities charge less than $300 per hour, the economic forces that drive that

8 market – including taxpayer financing, long-term defense contracts, and the likelihood of

9 recurring business – are substantially different from the circumstances in which a plaintiff or

10 class of plaintiffs seeks counsel to help them vindicate their rights. Trevino v. Gates, 99 F.3d

11 911, 925 (9th Cir. 1996) (“Private attorneys hired by [the] government . . . are not in the same 12 legal market as private plaintiff’s attorneys who litigate civil rights cases.”).3 Defendants do not

13 challenge plaintiffs’ evidence regarding the fees charged when pursuing consumer protection,

14 wage, or employment discrimination claims. Rather, they argue that civil rights litigation is

15 fundamentally different in some way, such that a different prevailing market rate applies.

16 Whether the cause of action arises under § 1983, Title VII, the Fair Labor Standards Act, or a

17 consumer protection statute, the individual or class of individuals is seeking to vindicate their

18 rights. The scope of work and the services rendered by plaintiffs’ counsel are very similar

19 regardless of the source of the rights. Defendants offer no analysis to support their argument

20 that the market for representation in a civil rights case varies significantly from the market

21 related to these other statutory and constitutional claims.

22

23

2 Although one of the declarants is of the opinion that Ms. Fisher’s charge of $330 per hour is

24 reasonable, the market data provided suggests that associates with four years of experience are generally billed at a lower rate (somewhere around $260 per hour).

25 3 The Court does not, therefore, find Higher Taste v. City of Tacoma, C10-5252BHS (Dkt. # 65)

26 (W.D. Wash. Sept. 3, 2013), persuasive.

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 4 of 11

1

To the extent defendants are implying that persons complaining of excessive force

2 or the deprivation of counsel under § 1983 are simply too poor to pay the market rates, that is

3 exactly why Congress enacted § 1988 – to ensure that they can find competent counsel to help

4 them vindicate important rights. The fact that counsel did not charge the indigent members of

5 the plaintiff class for their services does not and cannot mean that a reasonable rate for those

6 services was $ 0. “Determination of a reasonable hourly rate is not made by reference to rates

7 actually charged the prevailing party.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210

8 (9th Cir. 1986). The reasonable rate for the lodestar analysis, as discussed above, is based on the

9 prevailing market rate for similar services by lawyers of comparable experience, skill, and

10 reputation. Where there is a divergence between the rate negotiated with an individual client and

11 the prevailing market rate, the market rate governs. Welch v. Metropolitan Life Ins. Co., 480

12 F.3d 942 (9th Cir. 2007).

13

Nor is the Court persuaded that awards in other civil rights actions compel the

14 conclusion that $250 or $275 is always the rate at which these cases should be compensated in

15 this community. First, for every Levine v. City of Bothell, C11-1280MJP, in which a fee of

16 $250 per hour was found reasonable, there is an Ostling v. City of Bainbridge Island, C11-

17 5219RBL, in which a survey of attorneys in the greater Seattle area (including one of the law

18 firms involved here) led to an award of $550 per hour. Second, the low rate allowed in Levine

19 was the result of a number of factors not present in this case: prevailing counsel failed to

20 provide any evidence in support of his fee request other than his own declaration, he had

21 previously stated that his hourly rate was only $275, and Judge Pechman was obviously

22 unimpressed with counsel’s performance during the litigation. Levine, C11-1280MJP (Dkt. # 74

23 at 2) (W.D. Wash. Jan. 15, 2013). In this case, class counsel has presented sufficient evidence of

24 the prevailing market rate for prosecuting a civil rights lawsuit, and there is no reason to suspect

25 that counsel fall outside of the category of “experienced, skilled, and respected” litigators

26 referenced in the declarations. In fact, the quality of the representation afforded by class counsel

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 5 of 11

1 throughout the proceeding was superb. The Court has no trouble concluding that counsel’s

2 experience, skill, and reputation would command the highest hourly rate that the market would

3 bear. Finally, the complexity of this litigation was significant, requiring nuanced analyses of the

4 Sixth Amendment case law, privilege and representational issues, and theories of municipal

5 liability in the context of a systemic challenge to a system of public defense. The market would

6 compensate attorneys providing comparable services at the top of the market range.

7

The Court finds that class counsel’s hourly rates are generally within the prevailing

8 market range. Counsel shall be compensated for the reasonable hours billed at the following

9 rates:

10

Matthew Zuchetto

$330

11

Toby Marshall

$375

12

Jennifer Rust Murray $285

13

Nancy Talner

$400

14

Sarah Dunne

$380

15

James F. Williams

$580

16

J. Camille Fisher

$260

17

Beau C. Haynes

$190

18

Breena M. Roos

$465

19

Erika L. Nusser

$225

20

21 With regards to support staff, plaintiffs have provided the education, years of experience, skills,

22 contributions, and hourly rate of each individual. They have not, however, provided any

23 indication of the prevailing market rate for comparable paralegals, legal assistants, and law

24 clerks. Defendants do not oppose a rate of $90 per hour or a lower requested rate. Thus, support

25 staff will be billed at the following rates:

26

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 6 of 11

1

Brianna Bledsoe

$90

2

Jennifer L. Boschen

$90

3

Kristy Bergland

$90

4

Bradford Kinsey

$90

5

Joel Y. Higa

$90

6

Adam Webster

$80

7

Christine Stanley

$90

8 B. Reasonable Hours Expended

9

In order to determine the number of hours to be compensated, the Court must

10 consider “whether, in light of the circumstances, the time could reasonably have been billed to a

11 private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The Court

12 starts with counsel’s billing records, then makes deductions for hours that were not reasonably

13 billed, such as those that are “excessive, redundant, or otherwise unnecessary.” Gonzalez, 729

14 F.3d at 1202-03 (quoting McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2008)).

15 Defendants seek reductions in the number of hours to account for redundant staffing decisions

16 (attributed to the pro bono nature of the representation), unnecessary motions, and pre-litigation

17 investigative activities. Defendants also seek the wholesale exclusion of any fees that were

18 block-billed, related to the fee petition, or reflect counsels’ overhead expenses rather than the 19 costs of litigation.4

20

1. Redundant Staffing

21

Plaintiffs’ counsel have already excluded from the fee petition approximately 18%

22 of their hours after determining that they were duplicative or otherwise could have been spent

23 more efficiently. Defendants identify additional entries as unnecessary or duplicative, focusing

24

25 4 In their margin notes on the billing records, defendants also point out a duplicative entry on
26 September 17, 2012. The second entry for 2.1 hours of Mr. Marshall’s time will be deleted.

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 7 of 11

1 primarily on the time it took for each new timekeeper to review the file (e.g., entries on 4/11/11

2 and 7/29/11), instances in which more than one timekeeper reviewed a document or researched

3 an issue (e.g., entries on 7/5/11 and 5/10/12), multiple billings for meetings or activities in which

4 multiple timekeepers participated (e.g., entries on 8/1/11 and 7/27/12), and time spent keeping

5 abreast of the activities of other timekeepers (e.g., entries on 11/28/11 and 12/1/11). While the

6 Court is left with the overall impression that counsel managed this case efficiently and

7 professionally, it is clear that having four separate organizations involved occasionally resulted

8 in duplication of effort and, at the very least, required many hours of conferencing and

9 correspondence in order to keep everyone informed and on the same page. If this case were

10 being contemporaneously billed to a paying client, such duplication and oversight would likely

11 have been excised by cutting the hours of junior timekeepers or not billing the hours spent

12 updating the senior partner on the case. On the other hand, complex litigation often involves

13 issues and tasks that require the expertise and participation of a number of individuals: some

14 duplication is necessary to produce top notch work product and to achieve success in the

15 litigation. Ultimately, the line between necessary and unnecessary duplication is not bright, but

16 where the timekeeping entry reveals little more than plaintiff-side communication with no

17 strategic input from, substantive value added by, or action items assigned to the timekeeper, the

18 time has been cut. After reviewing the specific entries to which defendants raised objection, a

19 total of 219 additional hours have been cut from the various timekeeper’s records.

20

2. Unnecessary Motions

21

Class counsels’ written advocacy throughout the litigation was superb. The Court

22 would have to search the lengthy docket to find an argument, much less a motion, that was

23 asserted by plaintiffs and could legitimately be labeled “unnecessary.” Plaintiffs’ submissions

24 were eminently reasonable, especially in light of the litigation strategy adopted by defendants,

25 and ultimately informed the way plaintiffs tried and won this case.

26

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 8 of 11

1

3. Pre-Filing Investigation

2

There is no hard and fast rule against compensation for hours spent before the

3 complaint is filed. “The time that is compensable under § 1988 is that reasonably expended on

4 the litigation.” Webb v. Bd. of Educ. of Dyer Cnty., 471 U.S. 234, 242 (1985) (emphasis in

5 original, internal quotation marks omitted). Rule 11 requires counsel to perform a reasonable

6 pre-filing inquiry to ensure that the claims asserted are warranted by both the law and the

7 evidence: conducting this pre-filing inquiry is therefore a necessary part of the litigation and

8 should be compensated. On the other hand, “it is difficult to treat time spent years before the

9 complaint was filed as having been ‘expended on the litigation’ or to be fairly comprehended as

10 ‘part of the costs’ of the civil rights action” for purposes of § 1988. Id.

11

A review of the billing records suggests that the first few months of counsels’

12 investigation involved general research regarding indigent defense funding, reform, and systems

13 in Washington and the potential claims and mechanisms available for correcting deficiencies.

14 While it may be nothing more than a function of cryptic timekeeping entries, the first mention of

15 Mount Vernon occurs at the beginning of 2011. The Court will not presume that generalized

16 research regarding a particular area of law, unrelated to these defendants, was expended “on this

17 litigation.” A total of 45.05 hours expended before January 17, 2011, have been cut.

18

4. Block Billing

19

Where a timekeeper’s billing entry identifies a number of activities but only a

20 single block of time, it makes it very difficult for the Court to separate compensable hours from

21 non-compensable hours and a reduction in the claimed hours may be justified. Mendez v. Cnty. 22 of San Bernardino, 540 F.3d 1109, 1128-29 (9th Cir. 2008).5 The vast majority of the entries to

23

24

5 Even where all of the activities listed in the billing entry are recoverable, block-billing may

have a tendency to increase the overall time recorded. If that is the case, the Court has the authority to

25 reduce block-billed hours by an appropriate percentage to ensure that the hours are reasonable. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). Although defendants identify a number of
26 time entries as “BB” with no other objection stated, they do not request or justify any particular

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 9 of 11

1 which defendants object on this ground are either compensable or can be read in conjunction 2 with the surrounding entries to accurately determine how much time was spent on a particular 3 activity. Where the block-billing has made it impossible to differentiate between compensable

4 and non-compensable time, the entry has been cut, for a total of 38.9 hours.

5

5. Fees Related to the Fee Petition

6

Defendants argue that hours related to the fee petition should be cut because the

7 petition was unnecessary. The argument is factually and legally untenable. There is no rule or

8 procedure which would have required plaintiffs to attempt to resolve the fee issues informally: 9 they had only fourteen days in which to submit the petition and none of the meet and confer 10 requirements apply. Nor is there any reason to suspect that the parties could have reached an 11 agreement on the amount of fees. Defendants have raised numerous objections to the request

12 and the parties remain almost $1.5 million apart in their estimations of the value of class

13 counsels’ services. The fee petition was necessary, and the hours expended are reasonable.

14

6. Travel Time

15

The travel time reflected in the entries is reasonable and would have been billed to

16 a paying client. Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580-81 (9th Cir. 2010). No

17 reduction is warranted.

18

7. Overhead Costs

19

Defendants have identified a significant number of time entries that should be

20 deleted because they reflect the overhead incurred by class counsel to operate their law firms/

21 organizations and would not normally be charged to a paying client. “Overhead” is generally

22 defined as expenses related to the operation of the business that are normally subsumed in the 23 attorneys’ hourly rates rather than being billed as a separate line item. See Nadaraja v. Holder,

24
25 percentage reduction, instead asking that the Court simply exclude all block-billed hours. The case law does not support such a draconian reduction, which would be unrelated to the reasonableness of the
26 hours expended on the identified tasks. Id.

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 10 of 11

1 569 F.3d 906, 921 (9th Cir. 2009). Expenses such as rent, utilities, and stationary are

2 quintessential overhead costs: they are not incurred because of or for an individual client, and

3 yet are necessary to counsel’s ability to provide legal services. Defendants argue that costs

4 related to parking, lodging, meals, postage, telephone, transportation expenses, and computer

5 research fall within the category of “overhead” and should be excluded. These costs were

6 incurred because of the litigation, however, and defendants offer no legal or factual support for

7 the proposition that these costs constitute overhead or are not customarily billed to and paid by

8 clients.

9

Defendants also object to compensation for certain work performed by paralegals

10 and legal assistants. This request has some merit. Where a non-lawyer provides clerical support

11 (data manipulation, word processing, transmitting documents, etc.), clients would reasonably

12 expect that such tasks would be incorporated into the hourly rate charged by counsel. Id. If,

13 however, the non-lawyer provides services that involve legal concepts (substantively reviewing

14 documents, summarizing depositions, etc.), their work serves as a replacement for a more

15 expensive attorney and is appropriately billed. See Missouri v. Jenkins by Agyei, 491 U.S. 274,

16 288 (1989). Having reviewed defendants’ objections, the Court finds that 17.8 hours were spent

17 performing clerical tasks that should not have been billed at an hourly rate.

18

19

For all of the foregoing reasons, the Court finds that the lodestar fee in this case is

20 $2,168,653.70 and the reasonable expenses come to $43,496.50. Once a presumptively

21 reasonable fee amount is identified using the lodestar method, the court may adjust the amount

22 upwards or downward based on factors such as the results obtained and the level of success

23 compared with the initial claims. “Where a plaintiff has obtained excellent results, his attorney

24 should recover a fully compensatory fee. Normally this will encompass all hours reasonably

25 expended on the litigation, and indeed in some cases of exceptional success an enhanced award

26 may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983). Given the scope of the

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 11 of 11

1 relief obtained and the overall excellence of class counsels’ performance in this landmark

2 litigation, they are entitled to a fully compensatory fee.

3

4

Dated this 15th day of April, 2014.

5

A

6

Robert S. Lasnik

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER AWARDING FEES AND COSTS

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 Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 1 of 17

1

2

Judge Robert S. Lasnik

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF WASHINGTON


10

AT SEATTLE


11 -------------------------------------------------------x JOSEPH JEROME WILBUR, et al.,
12 Plaintiffs
13 v.
14 CITY OF MOUNT VERNON, et al.,
15 Defendants.
16 -------------------------------------------------------x

No. C11-1100RSL
STATEMENT OF INTEREST OF THE UNITED STATES

17

18

19

20

21

22

23

24

25
U.S. Statement of Interest Case No. C11-01100 RSL

-i -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 2 of 17 1

2 TABLE OF CONTENTS
3
4 INTEREST OF THE UNITED STATES ....................................................................................... 3


5 BACKGROUND ............................................................................................................................ 4


6 DISCUSSION ................................................................................................................................. 5


7 I. The Court Has Broad Authority to Enter Injunctive Relief, Including the Appointment

8

of an Independent Monitor, if It Finds a Deprivation of the Right to Counsel................ 6

9

II. Appointment of an Independent Monitor Is Critical to Implementing Complex

Remedies to Address Systemic Constitutional Violations............................................... 7

10

III. If the Court Finds Liability in this Case, its Remedy Should Include Workload

11

Controls, Which Are Well-Suited to Implementation by an Independent Monitor......... 9

12 CONCLUSION............................................................................................................................. 10

13

14

15

16

17

18

19

20

21

22

23

24

25

U.S. Statement of Interest Case No. C11-01100 RSL

- ii -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 3 of 17 1


2
 TABLE OF AUTHORITIES
3


4
 Cases

5 Best et al. v. Grant County, No. 04-2-00189-0 (Kittitas Cty. Sup. Ct., filed Dec. 21, 2004)......... 7


6
 Brown v. Bd. of Educ., 349 U.S. 294 (1955)................................................................................... 6


7
 Brown v. Plata, 131 S. Ct. 1910 (2011).......................................................................................... 6

8
 Cruz v. Beto, 405 U.S. 319 (1972).................................................................................................. 7

9
 Eldridge v. Carpenters 46, 94 F.3d 1366 (9th Cir. 1996)............................................................... 7
 Gideon v. Wainwright, 372 U.S. 335 (1963) .......................................................................... 2, 3, 4

10 Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010).......................................................... 5

11
 Labor/Community Strategy Center v. Los Angeles County, 263 F.3d 1041 (9th Cir. 2001) .......... 6

12
 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) ................................................................. 7

13
 Miranda v. Clark County, NV, 319 F.3d 465 (9th Cir. 2003)......................................................... 1

14
 Missouri Public Defender Comm’n v. Waters, 370 S.W.3d 592 (Mo. 2012)................................. 5

15 Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987)................ 7

16
 State v. Citizen, 898 So.2d 325 (La. 2005) ..................................................................................... 5

17
 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)................................................ 6

18
 Thomas v. County of Los Angeles, 978 F.2d 504, 509 (9th Cir. 1992)........................................... 6


19
 United States v. City of Pittsburgh, No. 97-cv-354 (W.D. Pa., filed Feb. 26, 1997)...................... 8


20 United States v. City of Seattle, No. 12-cv-1282 (W.D. Wash., filed July 27, 2012)..................... 8


21
 United States v. Dallas County, No. 3:07-cv-1559-N (N.D. Tex., filed Nov. 6, 2007).................. 8


22
 United States v. Delaware, No. 1-11-cv-591 (D. Del., filed Jun 6, 2011)...................................... 8


23


United States v. King County, Washington, No. 2:09-cv-00059
 (W.D. Wash., filed Jan. 15, 2009) .............................................................................................. 8


24


25

U.S. Statement of Interest Case No. C11-01100 RSL

- iii -

U.S. Department of Justice
 Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW
 Washington, D.C. 20530
 (202) 514-2000


Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 4 of 17 1


2
 Statutes
3
 28 U.S.C. § 517............................................................................................................................... 3

4
 42 U.S.C. § 14141........................................................................................................................... 3

5 42 U.S.C. § 1983............................................................................................................................. 1

6
 Other Authorities
7
 Yale Law Journal Symposium Issue, 122 Yale L.J. __ (June 2013) .............................................. 4

8
 ABA Standing Committee on Legal Aid and Indigent Defendants Report, 
 Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice
9
 (December 2004) .................................................................................................................... 4, 6


10 ABA Standing Committee on Legal Aid and Indigent Defendants, Eight Guidelines
 of Public Defense Workloads (August 2009)............................................................................ 10


11
 ABA Ten Principles of a Public Defense Delivery System ..................................................... 2, 4, 9


12
 Attorney General Eric Holder Speaks at the American Film Institute’s Screening of


13


Gideon’s Army, June 21, 2013, available at

http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130621.html ............................... 4


14
 Attorney General Eric Holder Speaks at the Justice Department’s 50th Anniversary

15

Celebration of the U.S. Supreme Court Decision in Gideon v. Wainwright, March 15, 2013, available at

16


http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1303151.html ............................. 3


17


Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, Final Report (1963) ....................................................................................................... 5


18
 Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. 
 Rev. L. & Soc. Change 427 (2009)......................................................................................... 5, 6

19


http://www.justice.gov/atj/.............................................................................................................. 4
 20

http://www.justice.gov/atj/idp/ ....................................................................................................... 4

21
 http://www.justice.gov/crt/about/spl/findsettle.php........................................................................ 8


22
 Mem. of Agreement Regarding the Juvenile Court of Memphis and Shelby


23


Counties, Tennessee (2012) .................................................................................................. 3, 10


24
 National Right to Counsel Committee, Justice Denied: America’s Continuing 
 Neglect of Our Constitutional Right to Counsel (2009) ............................................................. 4

25

U.S. Statement of Interest Case No. C11-01100 RSL

- iv -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 5 of 17

1


2
 Note, Gideon’s Promise Unfulfilled: The Need for Litigated Reform of 


Indigent Defense, 113 Harv. L. Rev. 2062 (2000)...................................................................... 6


3
 NACDL, Minor Crimes, Massive Waste (2009)............................................................................. 5


4
 Steven W. Perry & Duren Banks, U.S. Bureau of Justice Statistics, 


5

Prosecutors in State Courts, 2007 Statistical Tables (2012)...................................................... 5


6


7


8


9


10

11


12


13


14


15

16


17


18


19


20

21


22


23


24


25
U.S. Statement of Interest Case No. C11-01100 RSL

-v -

U.S. Department of Justice


Civil Rights Division, Special Litigation Section


950 Pennsylvania Avenue, NW


Washington, D.C. 20530


(202) 514-2000


Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 6 of 17

1

2

STATEMENT OF INTEREST OF THE UNITED STATES

3

The United States files this Statement of Interest to assist the Court in answering the

4 question of what remedies are appropriate and within the Court’s powers should it find that the

5 Cities of Mount Vernon and Burlington violate misdemeanor defendants’ right to counsel. The

6 United States did not participate in the trial in this case and takes no position on whether

7 Plaintiffs should prevail on the merits. The United States files this SOI to provide expertise and

8 a perspective that it may uniquely possess. If the Plaintiffs prevail, it is the position of the

9 United States that the Court has discretion to enter injunctive relief aimed at the specific factors

10 that have caused public defender services to fall short of Sixth Amendment guarantees, including

11 the appointment of an independent monitor to assist the Court. The United States has found

12 monitoring arrangements to be critically important in enforcing complex remedies to address

13 systemic constitutional harms.

14

In discussing the remedies available to the Court in this Statement, the United States will

15 address questions (1) and (3) of the Court’s Order for Further Briefing, with particular focus on

16 the role of an independent monitor. (Dkt. # 319.) To answer the Court’s first question, the

17 United States is unaware of any federal court appointing a monitor to oversee reforms of a public

18 defense agency, but the Ninth Circuit has recognized a federal court’s authority in this area under

19 42 U.S.C. § 1983. Miranda v. Clark County, NV, 319 F.3d 465 (9th Cir. 2003). The United

20 States is aware of one case in which a federal court, through a Consent Order instituting reforms

21 of a County public defender agency, received reports from the county regarding the progress of

22 those reforms. Stinson v. Fulton Cnty. Bd. of Comm’rs, No. 1:94-CV-240-GET (N.D. Ga. May

23 21, 1999). However, the Court did not have the benefit of an independent monitor to assist it in

24 assessing the implementation of the reforms.

25
U.S. Statement of Interest Case No. C11-01100 RSL

-1 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 7 of 17

1

2

Also, an independent monitor is currently monitoring systemic reform of a juvenile

3 public defender system through an agreement between the United States and the Shelby County

4 (TN) Juvenile Court (“Shelby County”).

5

Finally, it is worth noting that but for removal to federal court by the Cities here, this

6 matter would have proceeded in state court, and state court litigation over the crisis in indigent

7 defense is not at all unusual. Those cases bear out the practicality—and, at times, the

8 necessity—of court oversight in this area.

9

In answer to the Court’s third question, a number of states have imposed “hard” caseload

10 standards,1 but the United States believes that, should any remedies be warranted, defense

11 counsel’s workload should be controlled to ensure quality representation. “Workload,” as

12 defined by the ABA Ten Principles of a Public Defense Delivery System, takes into account not

13 only a defender’s numerical caseload, but also factors like the complexity of defenders’ cases,

14 their skills and experience, and the resources available to them. Workload controls may require

15 flexibility to accommodate local conditions. Due to this complexity, an independent monitor

16 would provide the Court with indispensible support in ensuring that the remedial purpose of

17 workload controls is achieved.

18

The Washington State Bar’s Standards for Indigent Defense, incorporated by its Supreme

19 Court in its criminal rules, considers the importance of workloads in evaluating the efficacy of

20 defender services. Washington’s move to implement workload controls is a welcome

21 recognition of its obligation under Gideon. The United States recognizes that these standards are

22 the result of work commenced at least since 2003 by the Washington State Bar Association’s

23 Blue Ribbon Commission on Criminal Defense and supported by the State Legislature, the

24

1 For example, Arizona, Georgia, and New Hampshire have specific caseload limitations. A number of states have

“soft” caseload caps by using a weighted system. See attached Exhibit 1 for a description of select jurisdictions.
25

U.S. Statement of Interest Case No. C11-01100 RSL

-2 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 8 of 17

1

2 Washington Defender Association, and the Washington Association of Prosecuting Attorneys,

3

among others. These workload controls are scheduled to go into effect October 2013.2

4

INTEREST OF THE UNITED STATES

5

The United States has authority to file this Statement of Interest pursuant to 28 U.S.C.

6 § 517, which permits the Attorney General to attend to the interests of the United States in any

7 case pending in federal court. The United States has an interest in ensuring that all

8 jurisdictions—federal, state, and local—are fulfilling their obligation under the Constitution to

9 provide effective assistance of counsel to individuals facing criminal charges who cannot afford

10 an attorney, as required by Gideon v. Wainwright, 372 U.S. 335 (1963). The United States can

11 enforce the right to counsel in juvenile delinquency proceedings pursuant the Violent Crime

12 Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (Section 14141). As noted

13 above, the United States is currently enforcing Section 14141’s juvenile justice provision

14

through a comprehensive out-of-court settlement with Shelby County.3 An essential piece of the

15 agreement, which is subject to independent monitoring, is the establishment of a juvenile public

16 defender system with “reasonable workloads” and “sufficient resources to provide independent,

17 ethical, and zealous representation to Children in delinquency matters.” Id. at 14-15.

18

As the Attorney General recently proclaimed, “It’s time to reclaim Gideon’s petition –

19

and resolve to confront the obstacles facing indigent defense providers.”4 In March 2010, the

20 Attorney General launched the Access to Justice Initiative to address the access-to-justice crisis.

21 Indigent defense reform is a critical piece of the office’s work, and the Initiative provides a

22
2 The United States does not by this mean to endorse or detract from the efforts of these entities.


23

3 Mem. of Agreement Regarding the Juvenile Court of Memphis and Shelby Counties, Tennessee (2012), available 


at http://www.justice.gov/crt/about/spl/findsettle.php.


4 Attorney General Eric Holder Speaks at the Justice Department’s 50th Anniversary Celebration of the U.S. 


24

Supreme Court Decision in Gideon v. Wainwright, March 15, 2013, available at


http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1303151.html.


25

U.S. Statement of Interest

-3 -

U.S. Department of Justice

Case No. C11-01100 RSL

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 9 of 17

1

2

centralized focus for carrying out the Department’s commitment to improving indigent defense.5

3

The Department has also sought to address this crisis through a number of grant programs.6 The

4

most recent is a 2012 $1.2 million grant program, Answering Gideon’s Call: Strengthening

5

Indigent Defense Through Implementing the ABA Ten Principles of a Public Defense Delivery

6

System administered by the Bureau of Justice Assistance.7 In light of the United States’ interest

7

in ensuring that any constitutional deficiencies the Court may find are adequately remedied, the

8

United States files this Statement of Interest on the availability of injunctive relief.

9

BACKGROUND

10

The Plaintiffs’ claims of deprivations of the right to counsel, if meritorious, are part of a

11

crisis impacting public defender services nationwide. Fifty years ago, the Supreme Court held

12

that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial

13

unless counsel is provided for him.” Gideon, 372 U.S. at 344. And yet, as the Attorney General

14

recently noted, “despite the undeniable progress our nation has witnessed over the last

15

half-century—America’s indigent defense systems continue to exist in a state of crisis,” and “in

16

some places—do little more than process people in and out of our courts.”8

17

Our national difficulty to meet the obligations recognized in Gideon is well documented.9

18

See, e.g. ABA Standing Committee on Legal Aid and Indigent Defendants Report, Gideon’s

19

Broken Promise: America’s Continuing Quest for Equal Justice, (December 2004). Despite

20

21

5 The office works with federal agencies, and state, local, and tribal justice system stakeholders to increase access to 


counsel, highlight best practices, and improve the justice delivery systems that serve people who are unable to afford 


22

lawyers. More information is available at http://www.justice.gov/atj/.
 6 See Government Accountability Office, Indigent Defense: DOJ Could Increase Awareness of Eligible Funding 11-

14 (May 2012), available at http://www.justice.gov/atj/idp/.


23

7 Grants have been awarded to agencies in Texas, Delaware, Massachusetts, and Michigan.


8 Attorney General Eric Holder Speaks at the American Film Institute’s Screening of Gideon’s Army, June 21, 2013, 


24

available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130621.html.


9 In March 2013, the Yale Law Journal held a symposium on the challenges of meeting Gideon’s promise and 


25

published resulting articles in its most recent issue. See 122 Yale L.J. __ (June 2013).


U.S. Statement of Interest Case No. C11-01100 RSL

-4 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 10 of 17

1

2

long recognition that “the proper performance of the defense function is . . . as vital to the health

3

of the system as the performance of the prosecuting and adjudicatory functions,” Attorney

4

General's Committee on Poverty and the Administration of Federal Criminal Justice, Final

5

Report 11 (1963), public defense agencies nationwide remain at a staggering disadvantage when

6

it comes to resources. Steven W. Perry & Duren Banks, U.S. Bureau of Justice Statistics,

7

Prosecutors in State Courts, 2007 Statistical Tables 1 (2012) (noting that prosecution offices

8

nationwide receive about 2.5 times the funding that defense offices receive); National Right to

9

Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right

10

to Counsel 61-64 (2009) (collecting examples of funding disparities).

11

Due to this lack of resources, states and localities across the country face a crisis in

12

indigent defense. Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33

13

N.Y.U. Rev. L. & Soc. Change 427 (2009) (describing crises nationwide). In many states,

14

remedying the crisis in indigent defense has required court intervention. E.g., State v. Citizen,

15

898 So.2d 325 (La. 2005); Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010); Missouri

16

Public Defender Comm’n v. Waters, 370 S.W.3d 592 (Mo. 2012). The crisis in indigent defense

17

extends to misdemeanor cases where many waive their right to counsel and end up unnecessarily

18

imprisoned. NACDL, Minor Crimes, Massive Waste 21 (2009).10

19

DISCUSSION

20

It is the position of the United States that it would be lawful and appropriate for the Court

21

to enter injunctive relief if this litigation reveals systemic constitutional deficiencies in the

22

Defendants’ provision of public defender services. Indeed, the concept of federal oversight to

23

address the crisis in defender services has gained momentum in recent years. See, e.g,. Gideon’s

24

25

10 The report is available at http://www.opensocietyfoundations.org/reports/minor-crimes-massivewaste.

U.S. Statement of Interest Case No. C11-01100 RSL

-5 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 11 of 17

1

2 Broken Promise, supra, at 41-42 (recommending federal funding); Drinan, The Third Generation

3 of Indigent Defense Litigation, supra (arguing federal judges are well suited to address systemic

4 Sixth Amendment claims); Note, Gideon’s Promise Unfulfilled: The Need for Litigated Reform

5 of Indigent Defense, 113 Harv. L. Rev. 2062 (2000) (advocating systemic litigation). (Again,

6 the United States takes no position on the merits of the underlying suit.)

7

I. The Court Has Broad Authority to Enter Injunctive Relief, Including the

Appointment of an Independent Monitor, if It Finds a Deprivation of the Right to

8

Counsel.

9

If Plaintiffs prevail on the merits of their claims, or as part of a consent decree, this Court

10 has broad authority to order injunctive relief that is adequate to remedy any identified

11 constitutional violations within the Cities’ defender systems. Swann v. Charlotte-Mecklenburg

12 Bd. of Educ., 402 U.S. 1, 15 (1971); see also Thomas v. County of Los Angeles, 978 F.2d 504,

13 509 (9th Cir. 1992) (noting that courts have power to issue “broad injunctive relief” where there

14 exist specific findings of a “persistent pattern of [police] misconduct”). When crafting injunctive

15 relief that requires state officials to alter the manner in which they execute their core functions, a

16 court must be mindful of federalism concerns and avoid unnecessarily intrusive remedies.

17 Labor/Community Strategy Center v. Los Angeles County, 263 F.3d 1041, 1050 (9th Cir. 2001).

18 Courts have long recognized—across a wide range of institutional settings—that equity often

19 requires the implementation of injunctive relief to correct unconstitutional conduct, even where

20 that relief relates to a state’s administrative practices. See, e.g., Brown v. Plata, 131 S. Ct. 1910

21 (2011) (upholding injunctive relief affecting State’s administration of prisons); Brown v. Bd. of

22 Educ., 349 U.S. 294 (1955) (upholding injunctive relief affecting State’s administration of

23 schools). Indeed, while courts “must be sensitive to the State’s interest[s],” courts “nevertheless

24

25
U.S. Statement of Interest Case No. C11-01100 RSL

-6 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 12 of 17

1

2 must not shrink from their obligation to ‘enforce the constitutional rights of all persons.’” Plata,

3 131 S. Ct. at 1928 (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972)).

4

In crafting injunctive relief, the authority of the Court to appoint a monitor is well

5 established. Eldridge v. Carpenters 46, 94 F.3d 1366 (9th Cir. 1996) (holding that district

6 court’s failure to appoint a monitor was an abuse of discretion where defendant insisted on

7 retaining a hiring practice already held to be unlawfully discriminatory); Nat’l Org. for the

8 Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 543 (9th Cir. 1987); Madrid v. Gomez, 889

9 F. Supp. 1146, 1282 (N.D. Cal. 1995) (holding that the “assistance of a Special Master is clearly

10 appropriate” because “[d]eveloping a comprehensive remedy in this case will be a complex

11 undertaking involving issues of a technical and highly charged nature”).

12

II. Appointment of an Independent Monitor Is Critical to Implementing Complex

Remedies to Address Systemic Constitutional Violations. 13

In the experience of the United States, appointing a monitor can provide substantial 14

assistance to courts and parties and can reduce unnecessary delays and litigation over disputes 15

regarding compliance. This is especially true when institutional reform can be expected to take a 16

number of years. A monitor provides the independence and expertise necessary to conduct the 17

objective, credible analysis upon which a court can rely to determine whether its order is being 18

implemented, and that gives the parties and the community confidence in the reform process. A 19

monitor will also save the Court’s time. 20

In Grant County, Washington, an independent monitor was essential to implementing the 21

court’s injunction in a right-to-counsel case. Best et al. v. Grant County, No. 04-2-00189-0 22

(Kittitas Cty. Sup. Ct., filed Dec. 21, 2004). There, the monitor assisted the court and parties for 23

almost six years by conducting site visits, assessing caseloads, and completing quarterly reports 24

on the County’s compliance with court orders. We note that the monitor’s term in Grant County 25

U.S. Statement of Interest Case No. C11-01100 RSL

-7 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 13 of 17

1

2 was limited from the outset to a defined period, and the monitor’s final report noted work that 3 still remained to be done.11 In our experience, it is best to continue monitoring arrangements

4 until the affected parties have demonstrated sustained compliance with the court’s orders.

5

In 2009, the United States entered a Memorandum of Agreement with King County,

6 Washington to reform the King County Correctional Facility. United States v. King County,

7 Washington, No. 2:09-cv-00059 (W.D. Wash., filed Jan. 15, 2009). That successful reform

8 process was assisted by an independent monitor. Other significant cases involving monitors

9 include: United States v. City of Pittsburgh, No. 97-cv-354 (W.D. Pa., filed Feb. 26, 1997)

10 (police; compliance reached in 1999); United States v. Dallas County, No. 3:07-cv-1559-N (N.D.

11 Tex., filed Nov. 6, 2007) (jail); United States v. Delaware, No. 1-11-cv-591 (D. Del., filed Jun 6,

12 2011) (mental health system); United States v. City of Seattle, No. 12-cv-1282 (W.D. Wash.,

13 filed July 27, 2012)(police). In each of these cases, the independent monitor improved efficiency 14 in implementation, decreased collateral litigation, and provided great assistance to the court.12

15

The selection of a monitor need not be a strictly top-down decision by the Court. The

16 parties may agree on who should fill the role of the monitor, but if they cannot, the Court can

17 order them to nominate monitor candidates for the Court’s consideration. In addition, it should

18 be noted that the cost of an independent monitor, however it is paid, should not reduce the funds

19 available for indigent defense.

20

Finally, it should be noted that the appointment of an independent monitor can ensure

21 public confidence in the reform process. With allegiance only to the Court and a duty to report

22 its findings accurately and objectively, the monitor assures the public that the Cities will move

23

24

11 The monitor’s final report and two of its quarterly reports are attached as Exhibit 2. 12 Summaries of those cases, relevant pleadings, and reports from the monitors can be found at

http://www.justice.gov/crt/about/spl/findsettle.php.
25

U.S. Statement of Interest Case No. C11-01100 RSL

-8 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 14 of 17

1

2 forward in implementing the Court’s order, and will not escape notice if they do not. Moreover,

3 the Cities’ progress towards implementing the Court’s order will be more readily accepted by a

4 broader segment of the public if that progress is affirmed by a monitor who is responsible for

5 confirming each claim of compliance asserted by the Cities.

6

III. If the Court Finds Liability in this Case, its Remedy Should Include Workload

Controls, Which Are Well-Suited to Implementation by an Independent Monitor.

7

Achieving systemic reform to ensure meaningful access to counsel is an important, but

8 complex and time-consuming, undertaking. Any remedy imposed by the Court may require

9 years of assessment to determine whether it is accomplishing its purpose, and the Court and the

10 parties may need independent assistance to resolve concerns about compliance.

11 One source of complexity will be how the Court and parties assess whether public

12 defenders are overburdened. In its Order for Further Briefing, the Court asked about “hard”

13 caseload standards, which provide valuable, bright-line rules that define the outer boundaries of

14 what may be reasonably expected of public defenders. ABA Ten Principles, supra. However,

15 caseload limits alone cannot keep public defenders from being overworked into ineffectiveness;

16 two additional protections are required. First, a public defender must have the authority to

17 decline appointments over the caseload limit. Second, caseload limits are no replacement for a

18 careful analysis of a public defender’s workload, a concept that takes into account all of the

19 factors affecting a public defender’s ability to adequately represent clients, such as the

20 complexity of cases on a defender’s docket, the defender’s skill and experience, the support

21 services available to the defender, and the defender’s other duties. See id. Making an accurate

22 assessment of a defender’s workload requires observation, record collection and analysis,

23 interviews with defenders and their supervisors, and so on, all of which must be performed

24 quarterly or every six months over the course of several years to ensure that the Court’s remedies

25

U.S. Statement of Interest Case No. C11-01100 RSL

-9 -

U.S. Department of Justice

Civil Rights Division, Special Litigation Section

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 15 of 17

1

2 are being properly implemented. The monitor can also assess whether, regardless of workload,

3 defenders are carrying out other hallmarks of minimally effective representation, such as visiting

4 clients, conducting investigations, performing legal research, and pursuing discovery. ABA

5 Standing Committee on Legal Aid and Indigent Defendants, Eight Guidelines of Public Defense

6 Workloads (August 2009). These kinds of detailed inquiries, carried out over sufficient time to

7 ensure meaningful and long-lasting reform, are critical to assessing whether the Cities are truly

8 honoring misdemeanor defendants’ right to counsel, and they can be made most efficiently and

9 reliably by an independent monitor. As shown in Exhibit 2, these are the kinds of inquires made

10 by the independent monitor in the Grant County, Washington case. Also, should non-

11 compliance be identified, early and objective detection by the monitor, as well as the

12 identification of barriers to compliance, allow the parties to undertake corrective action.

13

An independent monitor may also obviate the need for the Court to dictate specific and

14 rigid caseload requirements. In the Shelby County juvenile justice enforcement matter, for

15 example, the County is required to establish a juvenile defender program that provides defense

16 attorneys with reasonable workloads, appropriate administrative supports, training, and the

17 resources to provide zealous and independent representation to their clients, but the agreement

18 does not specify a numerical caseload limit. See Mem. of Agreement at 14-15.

19

CONCLUSION

20

Should the Court find for the Plaintiffs, it has broad powers to issue injunctive relief.

21 That power includes the authority to appoint an independent monitor who would assist the

22 Court’s efforts to ensure that any remedies ordered are effective, efficiently implemented, and

23 achieve the intended result.

24

25
U.S. Statement of Interest Case No. C11-01100 RSL

- 10 -

U.S. Department of Justice Civil Rights Division, Special Litigation Section
950 Pennsylvania Avenue, NW Washington, D.C. 20530 (202) 514-2000

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 16 of 17 1

2
3
4
5
6
7 8 Of Counsel:
Deborah Leff (DC 941054)* 9 Acting Senior Counselor for
Access to Justice 10 Telephone: (202) 514-7073
deborah.leff@usdoj.gov 11
Larry Kupers (DC 492450)* 12 Senior Counsel
Access to Justice 13 Telephone: (202) 514-7173
Larry.B.Kupers@usdoj.gov 14
15
16
17
18
19
20
21
22
23
24

Respectfully submitted,
JOCELYN SAMUELS* Acting Assistant Attorney General Civil Rights Division United States Department of Justice
ROY L. AUSTIN, JR. (DC 980360)* Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH (DC 396578) Chief Civil Rights Division Special Litigation Section
JUDY C. PRESTON (MD)*
 Principal Deputy Chief
 Civil Rights Division
 Special Litigation Section 

__/s/_W__in_s_o_m__e_G__. _G_a_y_le__________ WINSOME G. GAYLE (NY 3974193)* Trial Attorney Civil Rights Division Special Litigation Section Winsome.Gayle@usdoj.gov
__/s/_P__au_l_K__il_l_eb_r_e_w_____________ PAUL KILLEBREW (LA 32176)* Trial Attorney Civil Rights Division Special Litigation Section Paul.Killebrew@usdoj.gov
950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 514-2000 Facsimile: (202) 514-6273
Attorneys for the United States of America
*Conditional Admission is Pending

25
U.S. Statement of Interest
 Case No. C11-01100 RSL


U.S. Department of Justice Civil Rights Division, Special Litigation Section
950 Pennsylvania Avenue, NW Washington, D.C. 20530 (202) 353-1077

Case 2:11-cv-01100-RSL Document 322 Filed 08/14/13 Page 17 of 17 1


2
 CERTIFICATE OF SERVICE

3
 I hereby certify that on August 14, 2013, a copy of the foregoing was filed electronically.
4
 Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

5 __/s/_W__i_n_s_o_m_e__G_._G__ay_l_e_________

6


WINSOME G. GAYLE*

Trial Attorney

7


Civil Rights Division

Special Litigation Section

8


U.S. Department of Justice


950 Pennsylvania Avenue, NW


9


Washington, DC 20530


Telephone: (202) 514-2000


10

Facsimile: (202) 514-6273


Winsome.Gayle@usdoj.gov


11
 Attorney for the United States of America

12
 * Conditional Admission is Pending

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U.S. Statement of Interest Case No. C11-01100 RSL

U.S. Department of Justice Civil Rights Division, Special Litigation Section
950 Pennsylvania Avenue, NW
 Washington, D.C. 20530
 (202) 353-1077


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 Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 1 of 11

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 JOSEPH JEROME WILBUR, et al., )

)

9

Plaintiffs, )

v.

)

10

)

CITY OF MOUNT VERNON, et al., )

11

)

Defendants. )

12 _________________________________ )

No. C11-1100RSL ORDER AWARDING FEES AND COSTS

13 This matter comes before the Court on “Plaintiffs’ Motion for Award of Attorneys’
14 Fees and Expenses.” Dkt. # 331. Having reviewed the memoranda, declarations, and exhibits
15 submitted by the parties,1 the Court finds as follows:
16 Plaintiffs prevailed at trial, convincing a skeptical fact finder that the system of
17 public defense in Mount Vernon and Burlington was constitutionally deficient, that the
18 adjustments the Cities made mid-litigation did not remedy the situation, and that injunctive relief
19 was necessary to ensure that indigent criminal defendants have the assistance of counsel to
20 which they are entitled. Because no monetary relief was requested, plaintiffs’ counsel
21 essentially litigated the case on a pro bono basis. Plaintiffs request an award of $2,439,081.52 in
22 fees plus $43,496.50 in expenses as prevailing parties under 42 U.S.C. § 1988.
23 Section 1988 authorizes an award of “reasonable attorney’s fees” in order to
24

25 1 This matter can be decided on the papers submitted. Plaintiffs’ request for oral argument is
26 DENIED. The Court further finds that notice to the class regarding this motion is unnecessary.

ORDER AWARDING FEES AND COSTS

Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 2 of 11

1 encourage individuals and attorneys to take on the burden of vindicating “important civil and

2 constitutional rights that cannot be valued solely in monetary terms.” City of Riverside v.

3 Rivera, 477 U.S. 561, 574 (1986). See also S. Rep. No. 94-1011, at 2 (1976), reprinted in 1976

4 U.S.C.C.A.N. 5908, 5910 (“If private citizens are to be able to assert their civil rights, and if

5 those who violate the Nation[’s] fundamental laws are not to proceed with impunity, then

6 citizens must have the opportunity to recover what it costs them to vindicate these rights in

7 court.”). In determining a presumptively reasonable fee amount, courts apply the lodestar

8 method of multiplying a reasonable hourly rate by the number of hours reasonably expended on

9 the litigation. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013).

10 A. Reasonable Hourly Rates

11

An hourly rate is reasonable if it falls within the range of “prevailing market rates

12 in the relevant community” given “the experience, skill, and reputation of the attorney.” Dang v.

13 Cross, 422 F.3d 800, 813 (internal citations omitted). “[T]he burden is on the fee applicant to

14 produce satisfactory evidence – in addition to the attorney’s own affidavits – that the requested

15 rates are in line with those prevailing in the community for similar services by lawyers of

16 reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896

17 n.11 (1984). In this case, class counsel have set forth their education, years of experience,

18 practice areas, normal hourly rates, and contribution to the litigation. They have also provided

19 declarations from three experienced and respected members of the bar of this Court to the effect

20 that the rates charged by class counsel are reasonable based on their years of experience and the

21 prevailing range of rates in the Seattle/Tacoma legal community. Two of the three declarants are

22 managing partners of their law firms, one of whom shares responsibility for reviewing the

23 prevailing rates charged in the market and periodically adjusting his firm’s rates accordingly.

24 All three declarants agree that experienced, well-regarded, civil litigators in this community can

25 charge hourly rates above those charged in this case. Of particular relevance is evidence that

26 partners working on behalf of plaintiffs in civil rights cases charge between $400 and $600 per

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 3 of 11

1 hour on both hourly and contingent bases. The rates charged by associates varies greatly with

2 years of experience, but the evidence shows that large and mid-sized firms in the area can charge 3 up to $300 per hour for the work of their associates.2

4

Defendants, for their part, offer evidence showing that their counsel charged $250-

5 265 per hour in this litigation and that other respected and experienced defense lawyers charge

6 $250-275 for their services. While it is undisputed that attorneys who defend civil rights

7 lawsuits for municipalities charge less than $300 per hour, the economic forces that drive that

8 market – including taxpayer financing, long-term defense contracts, and the likelihood of

9 recurring business – are substantially different from the circumstances in which a plaintiff or

10 class of plaintiffs seeks counsel to help them vindicate their rights. Trevino v. Gates, 99 F.3d

11 911, 925 (9th Cir. 1996) (“Private attorneys hired by [the] government . . . are not in the same 12 legal market as private plaintiff’s attorneys who litigate civil rights cases.”).3 Defendants do not

13 challenge plaintiffs’ evidence regarding the fees charged when pursuing consumer protection,

14 wage, or employment discrimination claims. Rather, they argue that civil rights litigation is

15 fundamentally different in some way, such that a different prevailing market rate applies.

16 Whether the cause of action arises under § 1983, Title VII, the Fair Labor Standards Act, or a

17 consumer protection statute, the individual or class of individuals is seeking to vindicate their

18 rights. The scope of work and the services rendered by plaintiffs’ counsel are very similar

19 regardless of the source of the rights. Defendants offer no analysis to support their argument

20 that the market for representation in a civil rights case varies significantly from the market

21 related to these other statutory and constitutional claims.

22

23

2 Although one of the declarants is of the opinion that Ms. Fisher’s charge of $330 per hour is

24 reasonable, the market data provided suggests that associates with four years of experience are generally billed at a lower rate (somewhere around $260 per hour).

25 3 The Court does not, therefore, find Higher Taste v. City of Tacoma, C10-5252BHS (Dkt. # 65)
26 (W.D. Wash. Sept. 3, 2013), persuasive.

ORDER AWARDING FEES AND COSTS

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1

To the extent defendants are implying that persons complaining of excessive force

2 or the deprivation of counsel under § 1983 are simply too poor to pay the market rates, that is

3 exactly why Congress enacted § 1988 – to ensure that they can find competent counsel to help

4 them vindicate important rights. The fact that counsel did not charge the indigent members of

5 the plaintiff class for their services does not and cannot mean that a reasonable rate for those

6 services was $ 0. “Determination of a reasonable hourly rate is not made by reference to rates

7 actually charged the prevailing party.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210

8 (9th Cir. 1986). The reasonable rate for the lodestar analysis, as discussed above, is based on the

9 prevailing market rate for similar services by lawyers of comparable experience, skill, and

10 reputation. Where there is a divergence between the rate negotiated with an individual client and

11 the prevailing market rate, the market rate governs. Welch v. Metropolitan Life Ins. Co., 480

12 F.3d 942 (9th Cir. 2007).

13

Nor is the Court persuaded that awards in other civil rights actions compel the

14 conclusion that $250 or $275 is always the rate at which these cases should be compensated in

15 this community. First, for every Levine v. City of Bothell, C11-1280MJP, in which a fee of

16 $250 per hour was found reasonable, there is an Ostling v. City of Bainbridge Island, C11-

17 5219RBL, in which a survey of attorneys in the greater Seattle area (including one of the law

18 firms involved here) led to an award of $550 per hour. Second, the low rate allowed in Levine

19 was the result of a number of factors not present in this case: prevailing counsel failed to

20 provide any evidence in support of his fee request other than his own declaration, he had

21 previously stated that his hourly rate was only $275, and Judge Pechman was obviously

22 unimpressed with counsel’s performance during the litigation. Levine, C11-1280MJP (Dkt. # 74

23 at 2) (W.D. Wash. Jan. 15, 2013). In this case, class counsel has presented sufficient evidence of

24 the prevailing market rate for prosecuting a civil rights lawsuit, and there is no reason to suspect

25 that counsel fall outside of the category of “experienced, skilled, and respected” litigators

26 referenced in the declarations. In fact, the quality of the representation afforded by class counsel

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 5 of 11

1 throughout the proceeding was superb. The Court has no trouble concluding that counsel’s

2 experience, skill, and reputation would command the highest hourly rate that the market would

3 bear. Finally, the complexity of this litigation was significant, requiring nuanced analyses of the

4 Sixth Amendment case law, privilege and representational issues, and theories of municipal

5 liability in the context of a systemic challenge to a system of public defense. The market would

6 compensate attorneys providing comparable services at the top of the market range.

7

The Court finds that class counsel’s hourly rates are generally within the prevailing

8 market range. Counsel shall be compensated for the reasonable hours billed at the following

9 rates:

10

Matthew Zuchetto

$330

11

Toby Marshall

$375

12

Jennifer Rust Murray $285

13

Nancy Talner

$400

14

Sarah Dunne

$380

15

James F. Williams

$580

16

J. Camille Fisher

$260

17

Beau C. Haynes

$190

18

Breena M. Roos

$465

19

Erika L. Nusser

$225

20

21 With regards to support staff, plaintiffs have provided the education, years of experience, skills,

22 contributions, and hourly rate of each individual. They have not, however, provided any

23 indication of the prevailing market rate for comparable paralegals, legal assistants, and law

24 clerks. Defendants do not oppose a rate of $90 per hour or a lower requested rate. Thus, support

25 staff will be billed at the following rates:

26

ORDER AWARDING FEES AND COSTS

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1

Brianna Bledsoe

$90

2

Jennifer L. Boschen

$90

3

Kristy Bergland

$90

4

Bradford Kinsey

$90

5

Joel Y. Higa

$90

6

Adam Webster

$80

7

Christine Stanley

$90

8 B. Reasonable Hours Expended

9

In order to determine the number of hours to be compensated, the Court must

10 consider “whether, in light of the circumstances, the time could reasonably have been billed to a

11 private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The Court

12 starts with counsel’s billing records, then makes deductions for hours that were not reasonably

13 billed, such as those that are “excessive, redundant, or otherwise unnecessary.” Gonzalez, 729

14 F.3d at 1202-03 (quoting McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2008)).

15 Defendants seek reductions in the number of hours to account for redundant staffing decisions

16 (attributed to the pro bono nature of the representation), unnecessary motions, and pre-litigation

17 investigative activities. Defendants also seek the wholesale exclusion of any fees that were

18 block-billed, related to the fee petition, or reflect counsels’ overhead expenses rather than the 19 costs of litigation.4

20

1. Redundant Staffing

21

Plaintiffs’ counsel have already excluded from the fee petition approximately 18%

22 of their hours after determining that they were duplicative or otherwise could have been spent

23 more efficiently. Defendants identify additional entries as unnecessary or duplicative, focusing

24

25 4 In their margin notes on the billing records, defendants also point out a duplicative entry on
26 September 17, 2012. The second entry for 2.1 hours of Mr. Marshall’s time will be deleted.

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 7 of 11

1 primarily on the time it took for each new timekeeper to review the file (e.g., entries on 4/11/11

2 and 7/29/11), instances in which more than one timekeeper reviewed a document or researched

3 an issue (e.g., entries on 7/5/11 and 5/10/12), multiple billings for meetings or activities in which

4 multiple timekeepers participated (e.g., entries on 8/1/11 and 7/27/12), and time spent keeping

5 abreast of the activities of other timekeepers (e.g., entries on 11/28/11 and 12/1/11). While the

6 Court is left with the overall impression that counsel managed this case efficiently and

7 professionally, it is clear that having four separate organizations involved occasionally resulted

8 in duplication of effort and, at the very least, required many hours of conferencing and

9 correspondence in order to keep everyone informed and on the same page. If this case were

10 being contemporaneously billed to a paying client, such duplication and oversight would likely

11 have been excised by cutting the hours of junior timekeepers or not billing the hours spent

12 updating the senior partner on the case. On the other hand, complex litigation often involves

13 issues and tasks that require the expertise and participation of a number of individuals: some

14 duplication is necessary to produce top notch work product and to achieve success in the

15 litigation. Ultimately, the line between necessary and unnecessary duplication is not bright, but

16 where the timekeeping entry reveals little more than plaintiff-side communication with no

17 strategic input from, substantive value added by, or action items assigned to the timekeeper, the

18 time has been cut. After reviewing the specific entries to which defendants raised objection, a

19 total of 219 additional hours have been cut from the various timekeeper’s records.

20

2. Unnecessary Motions

21

Class counsels’ written advocacy throughout the litigation was superb. The Court

22 would have to search the lengthy docket to find an argument, much less a motion, that was

23 asserted by plaintiffs and could legitimately be labeled “unnecessary.” Plaintiffs’ submissions

24 were eminently reasonable, especially in light of the litigation strategy adopted by defendants,

25 and ultimately informed the way plaintiffs tried and won this case.

26

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 8 of 11

1

3. Pre-Filing Investigation

2

There is no hard and fast rule against compensation for hours spent before the

3 complaint is filed. “The time that is compensable under § 1988 is that reasonably expended on

4 the litigation.” Webb v. Bd. of Educ. of Dyer Cnty., 471 U.S. 234, 242 (1985) (emphasis in

5 original, internal quotation marks omitted). Rule 11 requires counsel to perform a reasonable

6 pre-filing inquiry to ensure that the claims asserted are warranted by both the law and the

7 evidence: conducting this pre-filing inquiry is therefore a necessary part of the litigation and

8 should be compensated. On the other hand, “it is difficult to treat time spent years before the

9 complaint was filed as having been ‘expended on the litigation’ or to be fairly comprehended as

10 ‘part of the costs’ of the civil rights action” for purposes of § 1988. Id.

11

A review of the billing records suggests that the first few months of counsels’

12 investigation involved general research regarding indigent defense funding, reform, and systems

13 in Washington and the potential claims and mechanisms available for correcting deficiencies.

14 While it may be nothing more than a function of cryptic timekeeping entries, the first mention of

15 Mount Vernon occurs at the beginning of 2011. The Court will not presume that generalized

16 research regarding a particular area of law, unrelated to these defendants, was expended “on this

17 litigation.” A total of 45.05 hours expended before January 17, 2011, have been cut.

18

4. Block Billing

19

Where a timekeeper’s billing entry identifies a number of activities but only a

20 single block of time, it makes it very difficult for the Court to separate compensable hours from

21 non-compensable hours and a reduction in the claimed hours may be justified. Mendez v. Cnty. 22 of San Bernardino, 540 F.3d 1109, 1128-29 (9th Cir. 2008).5 The vast majority of the entries to

23

24

5 Even where all of the activities listed in the billing entry are recoverable, block-billing may

have a tendency to increase the overall time recorded. If that is the case, the Court has the authority to

25 reduce block-billed hours by an appropriate percentage to ensure that the hours are reasonable. Welch

v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). Although defendants identify a number of 26 time entries as “BB” with no other objection stated, they do not request or justify any particular

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 9 of 11

1 which defendants object on this ground are either compensable or can be read in conjunction

2 with the surrounding entries to accurately determine how much time was spent on a particular

3 activity. Where the block-billing has made it impossible to differentiate between compensable

4 and non-compensable time, the entry has been cut, for a total of 38.9 hours.

5

5. Fees Related to the Fee Petition

6

Defendants argue that hours related to the fee petition should be cut because the

7 petition was unnecessary. The argument is factually and legally untenable. There is no rule or

8 procedure which would have required plaintiffs to attempt to resolve the fee issues informally:

9 they had only fourteen days in which to submit the petition and none of the meet and confer

10 requirements apply. Nor is there any reason to suspect that the parties could have reached an

11 agreement on the amount of fees. Defendants have raised numerous objections to the request

12 and the parties remain almost $1.5 million apart in their estimations of the value of class

13 counsels’ services. The fee petition was necessary, and the hours expended are reasonable.

14

6. Travel Time

15

The travel time reflected in the entries is reasonable and would have been billed to

16 a paying client. Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580-81 (9th Cir. 2010). No

17 reduction is warranted.

18

7. Overhead Costs

19

Defendants have identified a significant number of time entries that should be

20 deleted because they reflect the overhead incurred by class counsel to operate their law firms/

21 organizations and would not normally be charged to a paying client. “Overhead” is generally

22 defined as expenses related to the operation of the business that are normally subsumed in the

23 attorneys’ hourly rates rather than being billed as a separate line item. See Nadaraja v. Holder,

24
25 percentage reduction, instead asking that the Court simply exclude all block-billed hours. The case law does not support such a draconian reduction, which would be unrelated to the reasonableness of the
26 hours expended on the identified tasks. Id.

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 10 of 11

1 569 F.3d 906, 921 (9th Cir. 2009). Expenses such as rent, utilities, and stationary are

2 quintessential overhead costs: they are not incurred because of or for an individual client, and

3 yet are necessary to counsel’s ability to provide legal services. Defendants argue that costs

4 related to parking, lodging, meals, postage, telephone, transportation expenses, and computer

5 research fall within the category of “overhead” and should be excluded. These costs were

6 incurred because of the litigation, however, and defendants offer no legal or factual support for

7 the proposition that these costs constitute overhead or are not customarily billed to and paid by

8 clients.

9

Defendants also object to compensation for certain work performed by paralegals

10 and legal assistants. This request has some merit. Where a non-lawyer provides clerical support

11 (data manipulation, word processing, transmitting documents, etc.), clients would reasonably

12 expect that such tasks would be incorporated into the hourly rate charged by counsel. Id. If,

13 however, the non-lawyer provides services that involve legal concepts (substantively reviewing

14 documents, summarizing depositions, etc.), their work serves as a replacement for a more

15 expensive attorney and is appropriately billed. See Missouri v. Jenkins by Agyei, 491 U.S. 274,

16 288 (1989). Having reviewed defendants’ objections, the Court finds that 17.8 hours were spent

17 performing clerical tasks that should not have been billed at an hourly rate.

18

19

For all of the foregoing reasons, the Court finds that the lodestar fee in this case is

20 $2,168,653.70 and the reasonable expenses come to $43,496.50. Once a presumptively

21 reasonable fee amount is identified using the lodestar method, the court may adjust the amount

22 upwards or downward based on factors such as the results obtained and the level of success

23 compared with the initial claims. “Where a plaintiff has obtained excellent results, his attorney

24 should recover a fully compensatory fee. Normally this will encompass all hours reasonably

25 expended on the litigation, and indeed in some cases of exceptional success an enhanced award

26 may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983). Given the scope of the

ORDER AWARDING FEES AND COSTS

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Case 2:11-cv-01100-RSL Document 354 Filed 04/15/14 Page 11 of 11

1 relief obtained and the overall excellence of class counsels’ performance in this landmark

2 litigation, they are entitled to a fully compensatory fee.

3

4

Dated this 15th day of April, 2014.

5

A

6

Robert S. Lasnik

7

United States District Judge

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ORDER AWARDING FEES AND COSTS

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 Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 1 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 1 of 19

1 Honorable RobertS. Lasnik
2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11 JOSEPH JEROME WILBUR, eta!.,

Case No. Cll-llOORSL

12

Plaintiffs,

[PROPOSEDtPROTECTIVE ORDER

13

v.

I4 CITY OF MOUNT VERNON, eta!.,

I5

Defendants.

I6

I7

Before the court is an Unopposed Motion for Protective Order filed by the Public Defense

18 Supervisor Eileen Farley (the "Supervisor), by and through her counsel. In advance of filing the

19 motion, the Supervisor conferred with the Plaintiffs Joseph Jerome Wilbur, Jeremiah Ray Moon, and

20 Angela Marie Montegue (the "Plaintiffs"), by and through their counsel of record, the Defendants

21 City of Mount Vernon and City of Burlington (the "Cities"), by and through their counsel of record, 22 Mountain Law (the entity currently providing indigent defense services for the Cities), 1 by and

23 through their counsel of record, and none of those parties object to the entry of this Protective Order.

24 1 Although this Order will refer to Mountain Law, this Protective Order is intended to apply to whichever public 25 defender en'tity provides indigent defense services for the Cities. To the extent that an entity other than Mountain Law
provides those services, that entity will be required to be bound by this Protective Order as a condition of its contractual
26 relationship with the Cities.

PROTECTIVE ORDER [Proposed] -Page I
#29027328_v6

HOLLAND & KN!Gill LLP
111 S.W. Fifth Avenue, 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 2 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 2 of 19

1

The court has reviewed the Unopposed Motion, the Proposed Order and any other pleadings

2 filed in support of, or opposition to, this motion. Based on the interests of the parties and the

3 sensitivity of the client information involved, the COURT ORDERS AS FOLLOWS:

4

I. This Order shall govern the rights, responsibilities, and obligations imposed on the

5 Supervisor, the Cities, and Mountain Law by virtue of the Supervisor's appointment pursuant to the

6 Memorandum of Decision (the "Decision") [Dkt. No. 325, filed 12/04/13]. The Supervisor's duties

7 are outlined in the Order, pages 19-23.

8

2. All parties have agreed to the appointment of Eileen Farley as the Supervisor. The

9 Supervisor will be an independent contractor and will not be an employee of either the Cities or

10 Mountain Law. A copy of her contract with the Cities is attached hereto as Exhibit A, and its terms,

II requirements, conditions and obligations, are incorporated in full into this Protective Order. The

12 Supervisor and Cities have leave to modify or negotiate different contractual terms as they deem

13 appropriate so long as they are consistent with the Decision and this Protective Order. Of note, any

14 renegotiations of financial terms will not need to be approved by, or submitted to, this court.

15

3. The Decision orders Mountain Law to provide certain information relating to the

16 representation of its clients to the Supervisor. Mountain Law is ethically permitted to do so here

17 because Washington Rule of Professional Conduct 1.6(b) allows a lawyer to reveal such

18 information "to comply with a court order." In addition, RPC 1.6(a) allows disclosure to the

19 Supervisor because it would be "impliedly authorized in order to carry out the representation."

20 Since Mountain Law has contracted with the Cities to provide public defense services and since that

21 contract requires compliance with the Decision, Mountain Law is impliedly authorized to disclose

22 information relating to the representation of their clients to the Supervisor if such disclosure is

23 required for the City's compliance with the Decision.

24

4. The Decision orders that the Supervisor "will be part of the attorney/client

25 confidential relationship between Mountain law and its clients, but will not be part of the Mountain

26 Law firm." Decision, page 19. The Supervisor is indispensable to Mountain Law's provision of

PROTECTIVE ORDER [Proposed] -Page 2 #29027328_v6

HOLLAND & KNIGIIT LLP
Ill S.W. Fifth Avenue, 2300 U.S. Bancorp Tower Portland. Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 3 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 3 of 19

1 legal services to their clients and is therefore a necessary third party to the attorney-client

2 relationship. Accordingly, the attorney-client privilege will protect as confidential communications

3 by and between Mountain Law, its clients, and the Supervisor, which are made pursuant to the

4 Supervisor's duties as outlined in the Decision. RCW 5.60.060(2); State v. Martin, 137 Wn.3d 774,

5 787, 975 P.2d 1020 (1999); Broyles v. Thurston County, 147 Wn.App. 409, 442, 195 P.3d 985

6 (2008).

7

5. The Supervisor is prohibited from revealing any information relating to the

8 representation of Mountain Law's clients that she learns in the scope of her duties, except as

9 outlined below in paragraphs 6, 7, 8, and II. Federal Rule of Evidence 502(d) & (e); Washington

10 Rule of Evidence 502(d) & (e). Nothing in this Proposed Order or the underlying contract shall be

II interpreted to permit access to client information by the Cities

12

6. In fulfilling her duties as outlined in the Decision, the Supervisor may be required to

13 file with the court reports and analysis concerning the Cities' public defense system. To the extent

14 the Supervisor is required to use information relating to the representation of Mountain Law's

15 clients in preparing a report, the following apply:

16

a. The Supervisor will scrub all client information from general statistical data to

17

eliminate any risk that a particular client will be identified (and to obviate any need to file

18

that information under seal). If providing general statistical data is so specific that it would

19

identify a particular client, then that information will be marked "CONFIDENTIAL" and

20

will be filed under seaL 2

21

b. If the Supervisor is be required to provide the court specific client information.

22

in order to fulfill her duties under the Decision, then that information must be marked

23

"CONFIDENTIAL" and filed under seaL

24

25 2 For example, if there is only one jury trial in both Cities in the course of one calendar year, any information provided 26 relating to that jury trial would necessarily identify the client.

PROTECTIVE ORDER [Proposed] -Page 3 #29027328_v6

HOLLAND & KNIGHT LLP
Ill S.W. Fifth Avenue, 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 4 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04117114 Page 4 of 19

1

c. To the extent the Supervisor is required to provide to the court information

2

relating to the representation of Mountain Law's clients, the disclosure shall be no greater

3

than she reasonably believes necessary to accomplish the purpose.

4

7. The Supervisor may desire to provide a draft of reports to the Plaintiffs, the Cities, or

5 Mountain Law (collectively, "Interested Parties"), through their counsel, for comments and review

6 prior to submitting a final report to the Court. For example, the Supervisor may want to solicit

7 comments regarding whether the report contains information that should be filed under seal. If the

8 Supervisor chooses to solicit comments before the report is submitted to the court, then each party

9 must agree to maintain the confidentiality of the draft report. For identification purposes, the

10 Supervisor will mark any draft report "DRAFT/CONFIDENTIAL" on the front page of the report.

11 The Interested Parties are not obligated to review, or take possession of, the draft report. If,

12 however, the Interested Parties agree to receive a copy of the draft report, the following apply:

13

a. Each Interested Party must agree that the draft report will be held "attorneys'

14

eyes only." Although the attorneys will be permitted to discuss the contents of the report

15

with the Interested Parties, the attorneys will not provide a copy of the draft report to the

16

Interested Parties.

17

b. Each Interested Party must specifically agree not to further disseminate the

18

contents of the draft report. The attorneys for each Interested Party also must agree to either

19

destroy the draft or return the draft to the Supervisor once the fmal report is filed. Under no

20

circumstances should the attorneys for an Interested Party retain a copy of the draft report.

21

8. The Supervisor will work with Mountain Law to develop an appropriate and

22 meaningful system for responding to client complaints. The Supervisor will initially review all

23 client complaints that relate to Mountain Law's representation and will monitor Mountain Law's 24 compliance with the process. 3 The Supervisor will provide all data collected regarding the

25
3 Mountain Law and the Supervisor will be afforded some leeway to determine what amounts to a "client complaint"
26 requiring review by the Supervisor. Not every voicing of frustration between a client and a lawyer amounts to a

PROTECTIVE ORDER [Proposed] -Page 4 #29027328_v6

HOLLAND & KNIGHT LLP
Ill S.W. Fifth Avenue, 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 5 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 5 of 19

1 complaint process to the court in her reports consistent with paragraph 6, above. After the

2 Supervisor has had ample opportunity to observe and monitor Mountain Law's compliance with the

3 client complaint process, the Supervisor may make a proposal to the court in a future report

4 regarding her continued involvement in the client complaint process, including when and under

5 what circumstances the Supervisor will review a client complaint when the client is not satisfied

6 with Mountain Law's response.

7

9. In performing her duties under the Decision, the Supervisor is allowed to contact the

8 Plaintiffs, the Cities, Mountain Law, and indigent defendants being prosecuted in the Cities, without

9 first having to contact their attorneys; provided, however, that nothing prohibits the Supervisor from 10 first contacting a party's attorney if she chooses.4

11

10. The Supervisor's term began March 31, 2014, and will continue for a period of three

12 (3) years unless the term is altered by the court. At the end of the Supervisor's term, the Supervisor

13 will identify all information collected as part of her duties and submit that to the court under seal in

14 a form most likely to allow efficient and long-term storage (e.g., CD or thumbdrive). The

15 information must be filed under seal because it will contain information protected by Washington 16 RPC 1.6, and separately, the attorney-client privilege, and publicly filing these records could result 17 in great harm to the indigent clients of Mountain Law. The Supervisor will not knowingly maintain 18 any paper or electronic documents or information, including communications between the parties, 19 data that was gathered to provide reports to the court or other parties. The Supervisor may retain 20 copies of reports and supporting materials which were filed with the court but not under seal. After 21 submitting the information to the court as noted in this paragraph, the Supervisor will delete (to the

22 "complaint" and the Supervisor will assist Mountain Law to put in place procedures to determine when a complaint is a
complaint about the legal representation that should be reviewed by the Supervisor.
23 4 The Supervisor agrees to make best efforts to discuss the scope of her intended communications with City employees 24 through the City Administrators (Brian Harrison and Eric Stedal, or their designees). It is, however, not possible to
predict every City employee with whom the Supervisor will need to speak in order to fulfill her obligations under the
25 Decision. This Order requires only best efforts to keep the Cities informed; it is specifically not a violation of this
Protective Order if the Supervisor speaks with a City employee without first having informed one or both of the City
26 Administrators of her intent to do so.

PROTECTIVE ORDER [Proposed] -Page 5 #29027328_v6

HOLLAND & KNIGHT LLP
Ill S.W. Fifth Avenue, 2300 U.S. Ban<Xlrp Tower Portland, Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 6 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 6 of 19

1 extent electronically possible) any electronic data in her possession relating to her duties. To the 2 extent that any third person requests access to that material, he or she will be required to seek that

3 information from the court.

4

11. Nothing in this Protective Order or the Decision is meant to prohibit the Supervisor or

5 the Interested Parties from making public statements regarding the public defense system in general,

6 including how cities and the State of Washington work with that system. The Interested Parties

7 understand that the Supervisor may use her experience as an educational tool and that she may be

8 asked to provide information to courts, parties, and the legislature. The Supervisor is entitled to

9 provide general information from her experience, including observations, conclusions and

10 inferences, but she will not disclose any specific information that would identify Mountain Law

II clients.

12

12. If a dispute arises by and between the Interested Parties and the Supervisor regarding

13 her duties under the Decision or this Protective Order, the parties will make reasonable efforts to

14 resolve the dispute informally before taking the matter the court.

15

16

IT IS SO ORDERED.

17

18

DATED: A~ 2.'L '2014.

19 JUDGE ROBERT S. LASNIK
20

21

22

23

24

25

26

PROTECTIVE ORDER [Proposed] -Page 6 #29027328_v6

HOLLAND & KNIGHT LLP
lll S.W. Fifth Avenue, 2300 U.S. Bancorp Tower Portland, Oregon 97204
Telephone: 503_243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 7 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 7 of 19

1 Submitted by:

2 Dated: Aprill7, 2014

3 s/ Eileen Farley

4

Eileen Farley, WSBA No. 9264 Public Defense Supervisor

5 s/ David J Elkanich
6 David J. Elkanich, WSBA No. 35956
Attorney for Eileen Farley 7 Public Defense Supervisor

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PROTECTIVE ORDER [Proposed] -Page 7 #29027328_v6

HOLLAND & KNIGHT LLP
Ill S.W. Fifth Avenue, 2300 U.S. Banwrp Tower Portland, Oregon 97204 Telephone: 503.243.2300

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 8 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 10 of 19
EXHIBIT A

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 9 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 11 of 19

City of Burlington Contract/Agreement Coversheet

CONTRACT NO. 2014-25

DEPARTMENT Administration

FEDERAL TAXPAYER I.D. - - - - - - - - - - - - - - - - -

GRANTOR : Eileen Farley, City of Mount Vernon. City of Burlington

SERVICES PROVIDED Public Defense Supervision Services

AMT/FUND SOURCE $120,000/year (shared with Mount Vernon)

DURATION FROM: _ _,.,M"'a""rc"'h""3"'-1"'-'=2"'-01.._4,____ TO March 30 2017

Original: City of Burlington

Copies:

Finance Department City of Mount Vernon Eileen Farley

EXHIBIT A 1 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 10 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 12 of 19

CONTRACI' FOR PUBLIC DEFENSE SUPERVISION SERVICES
WHEREAS, the Cities of Burlington and Mount Vernon, Washlogton (hereinafter "Cities") provide public defense services pursuant to a contract with attorneys practicing as Mountain Law, PLLC ("Mountain Law"), and
WHEREAS, the Cities were parties to a lawsuit, Cause No. Cll-1100 RSL, in the
Federal Court, Western District of Washington, before the Honorable Robert Lasnik, who rendered a decision ("Decision"), which directs the Cities to engage the services of a public defense supervisor to monitor the activities of Mountain Law and the Cities, and defines the duties and responsibilities of the part-time position, and
WHEREAS, in consultation with and with the cooperation of representatives of the American Civil Uberties Union and Plaintiff's counsel ("Plaintiffs"), the Plaintiffs and the Cities have asked Judge Lasnik to appoint Eileen Farley to serve as the Public Defense Supervisor and to perform all the duties and responsibilities assigned pursuant to the Decision of December 4, 2013, and any subsequent orders. Such duties are detailed on pp. 19-22 of said Decision. These
duties and responsibilities are incorporated by reference into this agreement as specifically as if
set forth herein and shall be referred to in this agreement as the "Duties and Responsibilities" of the Public Defense Supervisor ("Supervisor"), and
WHEREAS on February 25 Judge Lasnik appointed Eileen Farley as Supervisor lllld
directed that her appointment will be effuctive March 31, 2014
In consideration of the mutual benefits to be derived and the promises contained herein, the Cities of Mount Vernon and Burlington, Washington municipal corporations ("Cities"), lllld Eileen Farley, the "Supervisor" have entered into this Agreement.
l. Scope of Services. The Supervisor is an experienced attorney with both trial experience as a public defender and experience as a supervisor of defense attorneys providing services to indigent defendants. The Supervisor has been appointed due to her experience,
knowledge and skills. The Supervisor will perfunn all Duties and RespollSl'bilities as set forth in the Decision in accordance with the timeframes and timelines set forth therein, as well as any future order of the Court.
It is understood by all parties that the Supervisor is an independent contractor performing duties listed in the Decision lllld in any future orders of the court. She is not an employee of
Mountain Law or the Cities. The Supervisor will act ill a neutral role and does not represent any
clients of Mountain Law or other persons who are represented by appointed counsel in the Burlington and Mount Vernon Municipal Courts and accepts no duties that flow from such representation. The purpcse ofher appointment is to assist the Cities to develop a public defimse system that provides vigorous, effective, and constitutionally adequate representation.

{WSS1157230J:>OCX;3/00005.00Hl061)

I

EXHIBIT A 2 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 11 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 13 of 19

In performing her duties, the Supervisor will gather information including documents and other information related to the representation of indigent defendant clients in the Cities, which
oo typically would protected under Rule of Professional Conduct 1.6(a). The attorneys for these
indigent defendant clients are permitted and required to provide such information to the Supervisor as compelled under court order and as impliedly authorized to carry out their representation.. Procedures outlining how confidentiality of that infonnation will be IIJllintained
will be contained in a protective order fOrwarded to the court for its approval.
The Supervisor's services will be provided beginning on March 31, 2014, and continue for a period of three (3) years uuless terminated as provided herein.. In addition to the services specificaJly referenced, the Supervisor agrees to:
1.1 Be Proactive. Recognizing that the Duties and Responsibilities, aud in particular the reporting duties to the Court, are the primary function and duty ofthe Supervisor, the Supervisor agrees to timely provide oral and/or written input regarding the tasks outlined in Judge Lasnik's decision to Mountain Law and/or to the Cities as may be necessary and
appropriate to improve the existing public defense system, so long as the Supervisor may do so without compromising her primary Duties aud Responsibilities to the Court.
1.2 Complaint Procedures. The Decision at p. 20, 'lf4, requires the Supervisor
to establish "a process for clients to pursue a complaint if the Public Defense Supervisor fails to resolve it to the client's satisfaction" aud the Supervisor will do so.
1.3 Caseload. In addition to the specific duties set forth in the Decision, the parties acknowledge that the Washington State Supreme Court is in the process of establishing
caseload standards which will govern and may affect the provision of services under the Mountain Law contract with the Cities. To the extent appropriate and consistent with the Supervisor's primary duty to perform the Duties and Responsibilities, the Supervisor will provide input to the Cities through their designated representatives regarding compliance with
such standards.
1.4 Right-Sizing. To the extent that the parties may do so without liroiting or impairing service provision, the parties have agreed to review staffing levels on an annual basis. The Supervisor will provide her honest and forthright assessment in the process regarding the appropriate staffing levels necessary to comply with the Decision and Staudsrds as a part ofsuch annual review. To the extent that snch assessment lllllY involve confidential client information it will be provided in accordance with the procedure outlined in the protective order forwarded to the court for approval.
1.5 Confidentiality. In exercising her duties under the Decision, the
Supervisor will receive confidential information from Mountain Law, which would be protected by Rule of Professional Conduct 1.6, the attomey--elient privilege, and/or the work-product doctrine. Except as specified in the Decision and any subsequent order signed by Judge Lasnik, the Supervisor and the Cities agree that the Supervisor will hold this information in confidence

(WSS11S7230.00CX;:J/0000S.00!006/)

2

EXHIBIT A 3 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 12 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 14 of 19
and will not share it with, or convey it in any form to, the Cities, their officers, agents, or employees.
As outlined in the Decision, the Supervisor will he required to report certain information to the Federal District Court. In order to preserve the confidentiality owed to the indigent defendant clients, the Decision ordered the Supervisor to "be part of the attorney/client confidential relationship between Mountain Law and its clients." The Decision specified that the Supervisor "will not be part of the Mountain Law finn," and will not be providing legal services to the defendants. The Supervisor is indispensable to Mountain Law's provision oflegal services to its clients in order to ensure they receive constitutionally adequate representation. As such the Supervisor is a necessary third party part of their attorney-client relationship, who is obligated to maintain the confidentiality of that relationship. The procedures outlining confidentiality procedures will he contained in a protective order forwarded to the court for its approval. The parties acknowledge that the issue of preserving confidentiality shall be of foremost importance, and in the event of any conflict between the duties established under the contract and a potential breach of confidentiality, the Supervisor will err on the side of caution to maintain such
confidentiality and will seek the guidance ofthe Court as she determines appropriate.
2. Compensation. In consideration and support of the services to be provided, the Cities agree to pay the following compensation. In accordance witlt tlte Decision, the services of the Supervisor are to be provided in a part-time fashion an annual average of approximately 20 hours per week, but the actual time spent shall be at the discretion of the Supervisor and be commensurate witlt timely completion oftlte tasks. Time offmay be taken by the Supervisor at her sole discretion for holidays, illness or vacations so long as she perfonns tlte tasks required by the Decision. The parties understand and acknowledge that the actual requirements will :fluctnllte from week to week and montlt to month depending on the Duties and Respons1bilities assigned by the Decision. In consideration thereof, the Cities shall provide tlte following compensation:
2.1 Compensation. The Cities shall pay the Supervisor annually the snm of One hundred Twenty Thousand Dollars ($120,000), or Ten Thousand Dollars ($10,000) per
montlt for her services curing the initial annual term (see Para. 3 below) and all costs associated
with their provision, except as specified herein. This base compensation shall be increased for the second and third annual terms by the CPI-U for the Mount Vernon"Anacortes, Washington
region for the preceding June to June. The base sum includes compensation for the Supervisor's
services, and amounts for ins=ce, travel expense, lodging, office equipment and other
overhead. In the event that the basic cost asswnptions of the parties regarding the unique tasks
assigned to tlte Supervisor prove insufficient to adequately compensate the Supervisor, she may
request adjustment of this base amount on thirty (30) days notice, and the parties agree to
negotiate in good faitlt to adjust the compensation to cover unanticipated or increased costs. The approval of the costs shall not be unreasonably withheld. By way of illustration, and not limitation, unanticipated overhead expenses for IT support, or office expenses uncovered due to the failure of the Cities to provide confidential office space acceptable to fue Supervisor (See subsection 2.3) may result in adjustment ofbase compensation.

{WSSII57230.DOCX;3100005.00J006/}

3

EXHIBIT A 4of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 13 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 15 of 19
2.2 The parties acknowledge that certain unique challenges regarding the preservation of client confidences are raised by the Decision and the tasks assigned the Supervisor. Accordingly, on or about April 15th, the Cities will pay the Supervisor the sum of Eight Thousaod Dollars ($8,000) or the actual cost, whichever is less, to reimburse her for the
reasonable cost of ethical counsel incurred in obtaining a protection order from the Court.
Should other ethical issues present themselves during the term ofthis Agreement, the parties will
negotiate in good faith to reimburse the reasonable costs offuture etbical opinions.
2.3 Support to be Provided. The Cities will provide the Supervisor with office space, acceptable to the Supervisor, which provides reasonable and confidential facilities for ber use.
2.4 Cost Share. The Cities shall share in the annual costs of this contract with Mt. Vernon paying sixty.percent (60"/o) ofthe contract costs and Burlington forty percent (40%).
This cost sharing may be adjusted by the Cities on an annual basis.
3. Term. The term of this agreement shall be from March 31, 2014, through March 30, 2017, unless sooner terminated as provided herein. When used herein, "annual term" means that period from March 31st through March 30th of the following year.
3. I Termination of agreement. This agreement may be tenninated upon petition to the Court and order by the Court.
3.2 Termination of injunction on Court Order. As provided in the Decision, should the Court determine on the application of the Cities that the case may be dismissed and the injunction terminated on a finding that "the system provides indigent criminal defendants
actual representation by the assistance of counsel, such that defendants had the opportunity to assert any rights and defenses that may be available to them and appropriate adversarial testing occurs,'' this contract may be terminated consistent with such Court order.
4. Nondiscrimination. Neither the Supervisor nor any person acting on behalf ofthe Supervisor will discriminate against any person in violstion ofstate or rederallaw.
5. No Indemnification. No indemnification is provided under this contract and the parties' liabilities shall be determined in accordance with the laws ofthe State ofWashington.
6. Insurance. The Supervisor will procure and maintain for the duration of this agreement insurance against claims for injuries to persons or property which may arise from or in connection with the perfonnance of work hereunder by the Attorney, or the agents, representatives, employees, or subcontractors ofthe Attorney.
6.1 Minimum Scqpe of Insurance. The Supervisor will obtain insurance ofthe types described below, naming the City as additional named insureds:

(WSSII57230.00CX;3100005.001006/)

4

EXHIBIT A 5 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 14 of 17
Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17/14 Page 16 of 19

6.1.1 General Liability with a minimum limit of liability of $2,000,000 combined single limit each occurrence bodily injury and property damage.
6.!.2 Automobile Liability covering owned and non-owned vehicles with a minimwn limit of liability of $1,000,000 combined single limit each occurrence bodily injury and property damage.
6.1.3 Professional Liability (Errors and Omissions) for attorneys with a minimwn limit of!iability of$2,000,000 each claim.
62 Verification of Coverage. The Supervisor will furnish the Cities with
original certificates and a copy of the innendatory endorsements, including but not necessarily
limited to the additional insured endorsement, evidencing the insurance requirements of the
Service Provider before commencement of the work. Policies will provide thirty (30) days written notice of cancellation to the cities. The Supervisor will provide the Cities with proof of insurance for "tail coverage" no later than December 31 of the year of termination of the Contract The purpose of ''tail coverage" is to provide insurance coverage for all claims that might arise from occurrences during the term of the Contract or extension(s) therecf, but not filed during the term oftbe Contract
7. Work Performed by Supervisor. In addition to compliance with the Standards, in the performance of work under this Agreement, the Supervisor will comply with all federal, state and municipal laws, ordinances, rules and regulations Vlhich are applicable to Supervisor's business, equipment, l!lld personnel engaged in operations covered by this Agreement or accruing out ofthe performance of such operations.
8. Personal Sezyices. No Subcontracting. This Agreement has been entered iuto in
consideration of the Supervisor's particular skills, qualifications, experience, and ability to perform the Duties and Responsibilities incorporated in this Agreement Therefore, the
Supervisor has personally signed this Agreement below to indicate that she is bound by its terms. Thill Agreement shall not be subcontracted without the express written consent of the Cities, the Plaintiff, and the Court, and refusal to subcontract may be withheld at their sole discretion. Any
assignment of this Agreement by the Supervisor without the express written consent of the
Cities, the Plaintiff and the Court shall be void.. Except that, the Supervisor may consult with individnals with expertise in areas helpful to the peiformance of her duties, including but not
limited to data collection, information technology and appropriate standards of practice.
9. Modification. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by the duly authorized representatives ofthe Cities and by the Supervisor.
10. Entire Agreement; Prior Agreement Superseded. The written provisions and terms of this Agreement, together with any exhibit attached hereto, shall supersede all prior verbal statements of any officer or other representative of the Cities, and such statement(s) shall not be effective or construed as entering into or forming a part of, or altering in any manner
whatsoever, this Agreement.

{WSSI157230.DOCX;3J00005.001006/}

5

EXHIBIT A 6 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 15 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04117/14 Page 17 of 19

II. Written Notice. All communications regarding this Agreement shall be sent to
the parties at the addresses listed below, unless notified to the contrary. Any written notice hereunder shn!I become effective as of the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in the Agreement or such other address as may be hereinafter specified in writing:

CITIES: Bryan Harrison, Contract Adntinistrator
City ofBurlington 833 South Spruce St Burlington WA 9?233

SUPERVISOR:
Eileen Farley 1109 First Avenue, Suite 300 Seattle WA 98101

13. Non-Waiver of Breach. The failure of the Cities or Supervisor to insist upon
strict performance of any of the covenants and agreements contained herein or to exercise any
option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of such covenants, agreements, or options and the same shall be and remain in
full force and effect.
14. Resolutions ofDi:mutes, Governing Law. Any complaint regarding any violation of the Duties and Responsibilities of the Supervisor will be first addressed to the Supervisor. If the matter cannot be resolved the parties may agree to confidential mediation in an effort to . resolve the issues. ifone party requests mediation the other party will have five days in wbich to respond to the request and the time of mediation offered by the proposing party. If matters
cannot be resolved either party may move Judge Lasnik for an order directing how the issues will
be resolved.
15. Confidentiality. Nothing herein shall be construed to obligate, require or permit
the Cities, its officers, agents, or employees to inquire into any protected communication between the Supervisor, Mountain Law and/or any indigent defendant
16. In the event of any litigation arising out of this Agreement, the prevailing party will be reimbursed for reasonable attorneys' fees from the other party. This Agreement will be governed by and construed in accordance with the laws ofthe State of Wasbington and the rules of the Wasbington Supreme Court as applicable. Venue for an action arising out of this Agreement will be in Thurston County Superior Court.
XiJfh IN WITNESS WHEREOF, the parties have executed this Agreement on the day of Mar z..h . 2o14.
CITY OF MOUNT VERNON
By: ~X~~II-J-rut.-_---------

{WSSIIS723Q.DOCX;3100005.0010061 j

6

EXHIBIT A 7 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 16 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed 04/17114 Page 18 of 19

AITEST/AUTIIENTICATED:
By ~)/~
City Clerk

APPROVED AS TO FORM:

OFFICE OJ;'

UNSEL

By:

{WSSll57230 DOCX,31001)05.00l0061}

7

EXHIBIT A 8 of9

Case 2:11-cv-01100-RSL Document 356 Filed 04/22/14 Page 17 of 17 Case 2:11-cv-01100-RSL Document 355-1 Filed. 04/17/14 Page 19 of 19
ATrEST/AUTHENTICATED:
By: ~;;o.~

{WSS I 157230.JJOCX;J/OIJ005 0010061)

8

EXHIBIT A 9 of9

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:11-cv-01100-RSL

Wilbur et al v. City of Mount Vernon et al Assigned to: Judge Robert S. Lasnik Case in other court: Skagit County Superior Court, 11-
00002-01156-1 Cause: 42:1983 Civil Rights Act

Date Filed: 07/05/2011 Date Terminated: 12/04/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Joseph Jerome Wilbur a Washington resident

represented by Beth E Terrell TERRELL MARSHALL LAW GROUP PLLC 936 NORTH 34TH STREET STE 300 SEATTLE, WA 98103-8869 206-816-6603 Fax: 206-319-5450 Email: bterrell@terrellmarshall.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darrell Scott SCOTT LAW GROUP 926 W SPRAGUE AVE STE 583 SPOKANE, WA 99201 509-455-3966 Email: scottgroup@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Breena Michelle Roos PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE, WA 98101-3099 206-359-8000 Email: broos@perkinscoie.com ATTORNEY TO BE NOTICED

J. Camille Fisher PERKINS COIE (SEA)

1201 3RD AVE STE 4800 SEATTLE, WA 98101-3099 206-359-3033 Email: CFisher@perkinscoie.com ATTORNEY TO BE NOTICED
James F Williams PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE, WA 98101-3099 206-359-3543 Email: Jwilliams@perkinscoie.com ATTORNEY TO BE NOTICED
Jennifer Rust Murray TERRELL MARSHALL LAW GROUP PLLC 936 NORTH 34TH STREET STE 300 SEATTLE, WA 98103-8869 206-816-6603 Fax: 206-319-5450 Email: jmurray@terrellmarshall.com ATTORNEY TO BE NOTICED
Matthew J. Zuchetto THE EMPIRE STATE BUILDING 905 WEST RIVERSIDE, STE 505 SPOKANE, WA 99201 509-723-9896 Email: zuchettolaw@gmail.com ATTORNEY TO BE NOTICED
Nancy Lynn Talner ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-682-2184 Email: talner@aclu-wa.org ATTORNEY TO BE NOTICED
Sarah A Dunne ACLU OF WASHINGTON

Plaintiff
Jeremiah Ray Moon a Washington resident

901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: sarahadunne@yahoo.com TERMINATED: 04/03/2015
Toby James Marshall TERRELL MARSHALL LAW GROUP PLLC 936 NORTH 34TH STREET STE 300 SEATTLE, WA 98103-8869 206-816-6603 Fax: 206-319-5450 Email: tmarshall@terrellmarshall.com ATTORNEY TO BE NOTICED
represented by Beth E Terrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darrell Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Breena Michelle Roos (See above for address) ATTORNEY TO BE NOTICED
J. Camille Fisher (See above for address) ATTORNEY TO BE NOTICED
James F Williams (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rust Murray (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Angela Marie Montegue a Washington resident, individually and on behalf of all others similarly situated

Matthew J. Zuchetto (See above for address) ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/03/2015
Toby James Marshall (See above for address) ATTORNEY TO BE NOTICED
represented by Beth E Terrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darrell Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Breena Michelle Roos (See above for address) ATTORNEY TO BE NOTICED
J. Camille Fisher (See above for address) ATTORNEY TO BE NOTICED
James F Williams (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rust Murray (See above for address) ATTORNEY TO BE NOTICED
Matthew J. Zuchetto (See above for address) ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/03/2015
Toby James Marshall (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
City of Mount Vernon a Washington municipal corporation

represented by Andrew G Cooley KEATING BUCKLIN MCCORMACK INC PS 801 SECOND AVENUE SUITE 1210 SEATTLE, WA 98104 206-623-8861 Fax: 206-223-9423 Email: acooley@kbmlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Rosenberg WILLIAMS KASTNER (SEA) TWO UNION SQUARE 601 UNION STREET, STE 4100 SEATTLE, WA 98101 206-628-6600 Email: arosenberg@williamskastner.com ATTORNEY TO BE NOTICED
Brian Christopher Augenthaler KEATING BUCKLIN MCCORMACK INC PS 801 SECOND AVENUE SUITE 1210 SEATTLE, WA 98104 206-623-8861 Fax: 206-223-9423

Defendant
City of Burlington a Washington municipal corporation

Email: baugenthaler@kbmlawyers.com ATTORNEY TO BE NOTICED
Jeremy W Culumber KEATING BUCKLIN MCCORMACK INC PS 801 SECOND AVENUE SUITE 1210 SEATTLE, WA 98104 206-623-8861 Fax: 206-223-9423 Email: jculumber@kbmlawyers.com ATTORNEY TO BE NOTICED
Kevin Lee Rogerson CITY OF MOUNT VERNON PO BOX 809 MOUNT VERNON, WA 98273 360-336-6203 Email: kevinr@mountvernonwa.gov ATTORNEY TO BE NOTICED
represented by Andrew G Cooley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Rosenberg (See above for address) ATTORNEY TO BE NOTICED
Brian Christopher Augenthaler (See above for address) ATTORNEY TO BE NOTICED
Jeremy W Culumber (See above for address) ATTORNEY TO BE NOTICED
Scott Glen Thomas LAW OFFICE OF SCOTT G THOMAS 1204 CLEVELAND AVE MOUNT VERNON, WA 98273

V. Interested Party Mr. Morgan M. Witt
Interested Party Richard M Sybrandy
Interested Party P.D. Supervisor Eileen Farley
Interested Party Jennifer Rancourt Public Defense Auditor

360-503-1042 Email: scott@scottgthomaslaw.com TERMINATED: 11/03/2014
represented by John W. Murphy Brett Murphy Coats Knapp McCandlis & Brown, PLLC 1002 S THIRD ST MOUNT VERNON, WA 98273 360-336-6647 Fax: FAX 1-360-336-3923 Email: JohnMurphy@JWMurphylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard M Sybrandy P.O. Box 175 508 South Second Street Mount Vernon, WA 98273 360-336-5533 Fax: 360-336-5899 Email: rsybrandy@fidalgo.net PRO SE
represented by Eileen Farley 4616 25TH AVE NE #164 SEATTLE, WA 98105-4183 206-719-8951 Email: efarley-mtvb@outlook.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Rancourt 2722 COLBY AVE EVERETT, WA 98201 PRO SE

Amicus Daniel B Heid
Amicus United States of America

represented by Daniel B Heid AUBURN CITY ATTORNEY'S OFFICE 25 W MAIN AUBURN, WA 98001-4998 253-931-3030 Fax: FAX 1-253-931-4007 Email: dheid@auburnwa.gov ATTORNEY TO BE NOTICED
represented by Deborah Leff US DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE, NW WASHINGTON, DC 20530 202-514-7073 Email: deborah.leff@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jocelyn Samuels US DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202-307-6639 Email: jocelyn.samuels@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Smith DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 601 "D" STREET, NW WASHINGTON, DC 20005 202-514-5395 Email: jonathan.smith2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith C Preston US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 601 D STREET, NW WASHINGTON, DC 20004 202-514-6258

Email: judy.preston@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence Kupers ACCESS TO JUSTICE INITIATIVE DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202-514-7173 Email: larry.b.kupers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Killebrew US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 601 D STREET NW WASHINGTON, DC 20004 202-305-3239 Email: paul.killebrew@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roy L Austin , Jr. US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20005 202-514-3847 Email: Roy.Austin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winsome Geraldine Gayle US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 950 PENNSYLVANIA AVENUE NW SPL 601 D ST NW WASHINGTON, DC 20530 202-514-2000 Email: Winsome.Gayle@usdoj.gov

V.
Objector
Mountain Law Party Objecting to Subpoena

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony David Gipe SHATZ LAW GROUP PLLP 999 THIRD AVENUE, STE 3000 SEATTLE, WA 98104 206-265-1225 Email: adgipe@shatzlaw.com ATTORNEY TO BE NOTICED

Date Filed 07/05/2011
07/05/2011 07/06/2011 07/06/2011 07/06/2011 07/13/2011 07/14/2011
07/20/2011

# Docket Text
1 NOTICE OF REMOVAL from Skagit County Superior Court, case number 11-2-01156-1; (Receipt # 0981-2482369), filed by City of Mount Vernon, City of Burlington. (Attachments: # 1 Exhibit Skagit County Superior Court Complaint, # 2 Civil Cover Sheet)(Cooley, Andrew) (Entered: 07/05/2011)
2 CERTIFICATE OF SERVICE by Defendants City of Burlington, City of Mount Vernon re 1 Notice of Removal,. (Cooley, Andrew) (Entered: 07/05/2011)
Judge Robert S. Lasnik added. (PM) (Entered: 07/06/2011)
3 LETTER from Clerk to counsel re receipt of case from Skagit County Superior Court and advising of WAWD case number and judge assignment. (PM) (Entered: 07/06/2011)
4 VERIFICATION OF STATE COURT RECORDS re 1 Notice of Removal, by Defendants City of Burlington, City of Mount Vernon. (Rosenberg, Adam) (Entered: 07/06/2011)
5 NOTICE of Unavailability of counsel Andrew G Cooley for Defendants City of Burlington, City of Mount Vernon (Cooley, Andrew) (Entered: 07/13/2011)
6 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT - CLASS ACTION Joint Status Report due by 8/25/2011, by Judge Robert S. Lasnik. (KERR) (Entered: 07/14/2011)
7 ANSWER to Complaint with JURY DEMAND by City of Burlington, City of Mount Vernon.(Cooley, Andrew) (Entered: 07/20/2011)

07/28/2011 08/10/2011 08/25/2011 08/25/2011 08/25/2011 08/26/2011
09/15/2011 09/15/2011 09/20/2011 09/21/2011

8 NOTICE of Unavailability of counsel Scott Glen Thomas for Defendant City of Burlington from 8/12/2011 to 8/22/2011 and from 12/26/2011 to 01/032012. (Thomas, Scott) (Entered: 07/28/2011)
9 NOTICE of Appearance by attorney J. Camille Fisher on behalf of Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Fisher, J.) (Entered: 08/10/2011)
10 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10-15.. (Marshall, Toby) (Entered: 08/25/2011)
11 RESPONSE by Interested Party Morgan M. Witt Morgan M. Witt's Objections to Suboena Duces tecum. (Murphy, John) (Entered: 08/25/2011)
12 CERTIFICATE OF SERVICE by Interested Party Morgan M. Witt Certificate of Service of Morgan M. Witt's Ojbections to Subpoena Duces Tecum. (Murphy, John) (Entered: 08/25/2011)
13 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 8-15 days. Bench Trial is set for 10/1/2012 at 9:00 AM in Courtroom 15106 before Judge Robert S. Lasnik. Joinder of Parties due by 9/23/2011, Motion for Class Certification due by 12/16/2011, Amended Pleadings due by 4/4/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/4/2012, Discovery completed by 6/3/2012, Dispositive motions due by 7/3/2012, Settlement conference to be held by 8/22/2012, 39.1 mediation to be completed by 9/1/2012, Motions in Limine due by 9/3/2012, Pretrial Order due by 9/19/2012, Trial briefs to be submitted by 9/26/2012 (KERR) (Entered: 08/26/2011)
14 MOTION for Leave to Amend Complaint by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 9/30/2011, (Marshall, Toby) (Entered: 09/15/2011)
15 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 14 MOTION for Leave to Amend Complaint (Marshall, Toby) (Entered: 09/15/2011)
16 MOTION for Leave to File Overlength Summary Judgment Briefs by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 9/20/2011, (Cooley, Andrew) (Entered: 09/20/2011)
17 ORDER regarding dfts' 16 Motion for overlength summary judgment briefs by Judge Robert S. Lasnik.(RS) (Entered: 09/22/2011)

09/21/2011 09/23/2011 09/23/2011 09/26/2011 09/26/2011 09/26/2011 09/27/2011 09/29/2011
09/29/2011
09/29/2011
09/29/2011
09/29/2011

18 ORDER TO SHOW CAUSE directing pltfs to show cause within 5 days by Judge Robert S. Lasnik. (RS) (Entered: 09/22/2011)
19 RESPONSE by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 18 Order to Show Cause. (Marshall, Toby) (Entered: 09/23/2011)
20 ORDER vacating order to show cause by Judge Robert S. Lasnik. (RS) (Entered: 09/23/2011)
21 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 14 MOTION for Leave to Amend Complaint. (Rosenberg, Adam) (Entered: 09/26/2011)
22 DECLARATION of Adam L. Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 14 MOTION for Leave to Amend Complaint (Rosenberg, Adam) (Entered: 09/26/2011)
23 MOTION for Leave to File Excess Pages by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. Noting Date 9/26/2011, (Terrell, Beth) (Entered: 09/26/2011)
24 ORDER granting pltfs' 23 Motion for Leave to File Excess Pages by Judge Robert S. Lasnik.(RS) (Entered: 09/27/2011)
25 MOTION for Summary Judgment by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order Granting Defendants Motion for Summary Judgment re Joseph Wilbur) Noting Date 10/21/2011, (Cooley, Andrew) (Entered: 09/29/2011)
26 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Summary Judgment re Joseph Wilbur filed by Defendants City of Burlington, City of Mount Vernon re 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
27 MOTION for Summary Judgment by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order Granting Defendants' Motion for Summary Judgment re Jeremiah Ray Moon) Noting Date 10/21/2011, (Cooley, Andrew) (Entered: 09/29/2011)
28 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Summary Judgment re Moon, Part 1 of 4 filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
29 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Summary Judgment re Moon, Part 2 of 4 filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)

09/29/2011 09/29/2011 09/29/2011 09/29/2011 09/29/2011 09/30/2011 10/06/2011 10/06/2011 10/06/2011 10/06/2011

30 DECLARATION of Andrew G. Cooley in Support of Motion for Summary Judgment re Moon, Part 3 of 4 filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
31 DECLARATION of Andrew G. Cooley in Support of Motion for Summary Judgment re Moon, Part 4 of 4 filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
32 MOTION for Summary Judgment by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order Granting Defendants' Motion for Summary Judgment re Montague) Noting Date 10/21/2011, (Cooley, Andrew) (Entered: 09/29/2011)
33 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Summary Judgment re Montague, Part 1 of 2 filed by Defendants City of Burlington, City of Mount Vernon re 32 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
34 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Summary Judgment re Montague, Part 2 of 2 filed by Defendants City of Burlington, City of Mount Vernon re 32 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 09/29/2011)
35 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 14 MOTION for Leave to Amend Complaint (Marshall, Toby) (Entered: 09/30/2011)
36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 10/21/2011, (Fisher, J.) (Entered: 10/06/2011)
37 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague (Fisher, J.) (Entered: 10/06/2011)
38 DECLARATION of Jennifer Boschen filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague (Fisher, J.) (Entered: 10/06/2011)
39 MOTION to Stay Preliminary Injunction Hearing by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order

10/06/2011 10/12/2011 10/12/2011
10/13/2011 10/17/2011 10/17/2011
10/17/2011 10/17/2011 10/17/2011 10/17/2011

Staying Hearing on Plaintiffs' Motion for a Preliminary Injunction) Noting Date 10/14/2011, (Rosenberg, Adam) (Entered: 10/06/2011)
40 DECLARATION of Adam L. Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 39 MOTION to Stay Preliminary Injunction Hearing (Rosenberg, Adam) (Entered: 10/06/2011)
41 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 39 MOTION to Stay Preliminary Injunction Hearing. (Fisher, J.) (Entered: 10/12/2011)
42 DECLARATION of J. Camille Fisher in Opposition to Defendants Motion to Stay Preliminary Injunction Hearing or Expedite Discovery filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 39 MOTION to Stay Preliminary Injunction Hearing (Fisher, J.) (Entered: 10/12/2011)
43 ORDER RE-NOTING dfts' 39 MOTION to Stay Preliminary Injunction Hearing ; Noting Date 10/21/2011, by Judge Robert S. Lasnik. (RS) (Entered: 10/13/2011)
44 ORDER granting in part and denying in part pltfs' 14 Motion to amend complaint by Judge Robert S. Lasnik.(RS) (Entered: 10/17/2011)
45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 12/2/2011, (Williams, James) (Entered: 10/17/2011)
46 DECLARATION of Joseph Jerome Wilbur filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
47 DECLARATION of Jeremiah Moon filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
48 DECLARATION of Angela Montague filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
49 DECLARATION of Tina Johnson filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)

10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011
10/17/2011

50 DECLARATION of Bonifacio Sanchez filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
51 DECLARATION of Jaretta Osborne filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
52 DECLARATION of Roy Howson filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
53 DECLARATION of David Boerner filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
54 DECLARATION of John Strait filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
55 DECLARATION of Christine Jackson filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Williams, James) (Entered: 10/17/2011)
56 (DUPLICATE OF DOCUMENT 54) DECLARATION of John Strait filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 27 MOTION for Summary Judgment, 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Dunne, Sarah) Modified on 10/18/2011 (RS). (Entered: 10/17/2011)
57 DECLARATION of Toby Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Attachments: # 1 Exhibit 1-5 pp 10-55, # 2 Exhibit 6-8 pp 5663, # 3 Exhibit 9-11 pp 64-78, # 4 Exhibit 12 pp 79-192, # 5 Exhibit 12 pp 193-267, # 6 Exhibit 12 pp 268-320, # 7 Exhibit 13-16 pp 321-278, # 8 Exhibit 17 pp 379-501, # 9 Exhibit 18 pp 502-531, # 10 Exhibit 19-22 pp 532-552, # 11 Exhibit 23-28 pp 553-609, # 12 Exhibit 29 pp 610-685, # 13 Exhibit 30-36 pp 686-748, # 14 Exhibit 37 pp 749-779, # 15

10/19/2011 10/19/2011 10/20/2011 10/21/2011 10/21/2011 10/21/2011 10/21/2011 10/21/2011 10/21/2011

Exhibit 38 pp 780-787, # 16 Exhibit 39-44 pp 788-821)(Williams, James) (Entered: 10/17/2011)
58 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague. (Rosenberg, Adam) (Entered: 10/19/2011)
59 DECLARATION of Adam L. Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague (Rosenberg, Adam) (Entered: 10/19/2011)
60 DECLARATION of Eric Stendal filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 10/20/2011)
61 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague. (Attachments: # 1 Proposed Order)(Fisher, J.) (Entered: 10/21/2011)
62 DECLARATION of J. CAMILLE FISHER filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague (Fisher, J.) (Entered: 10/21/2011)
63 DECLARATION of ANGELA MONTAGUE filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague (Fisher, J.) (Entered: 10/21/2011)
64 WITHDRAWAL of Motion re 39 MOTION to Stay Preliminary Injunction Hearing ; by Defendants City of Burlington, City of Mount Vernon. (Rosenberg, Adam) (Entered: 10/21/2011)
65 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 27 MOTION for Summary Judgment, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 10/21/2011)
66 DECLARATION of Andrew G. Cooley filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 10/21/2011)

10/21/2011 10/21/2011 10/21/2011 10/25/2011 10/26/2011
10/26/2011
10/28/2011 10/28/2011 10/28/2011 10/31/2011

67 DECLARATION of Patrick A. Eason filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 10/21/2011)
68 DECLARATION of Craig Cammock filed by Defendants City of Burlington, City of Mount Vernon re 27 MOTION for Summary Judgment, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 10/21/2011)
69 WITHDRAWAL of Motion re 36 MOTION for Protective Order on Unilateral Noting of the Depositions of Joseph Wilbur, Jeremiah Moon, and Angela Montague ; by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur.. (Dunne, Sarah) (Entered: 10/21/2011)
70 NOTICE of Intent to File Sureply Addressing Motion to Strike ; filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 10/25/2011)
71 SURREPLY filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 27 MOTION for Summary Judgment, 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment Regarding Defendants' Motion to Strike (Marshall, Toby) (Entered: 10/26/2011)
72 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 27 MOTION for Summary Judgment, 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ, 32 MOTION for Summary Judgment, 25 MOTION for Summary Judgment (Marshall, Toby) (Entered: 10/26/2011)
73 MOTION for Leave to File Amicus WSAMA Brief in Support of Defendants by Amicus Daniel B Heid. Noting Date 12/2/2011, (Heid, Daniel) Text Modified on 10/31/2011 (RS). (Entered: 10/28/2011)
74 BRIEF re 73 MOTION for Leave to File WSAMA Brief in Support of Defendants by Amicus Daniel B Heid. (Heid, Daniel) (Entered: 10/28/2011)
75 CERTIFICATE OF SERVICE by Amicus Daniel B Heid re 73 MOTION for Leave to File WSAMA Brief in Support of Defendants, 74 Brief. (Heid, Daniel) (Entered: 10/28/2011)
76 ERRATA re 74 Brief by Amicus Daniel B Heid. (Heid, Daniel) (Entered: 10/31/2011)

10/31/2011 11/08/2011
11/08/2011
11/10/2011 11/10/2011
11/10/2011 11/10/2011 11/10/2011 11/10/2011 11/10/2011 11/10/2011

77 CERTIFICATE OF SERVICE by Amicus Daniel B Heid re 76 Errata. (Heid, Daniel) (Entered: 10/31/2011)
78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order Granting Defendants' Motion for Sanctions) Noting Date 11/25/2011, (Cooley, Andrew) (Entered: 11/08/2011)
79 DECLARATION of Andrew G. Cooley in Support of Defendants' Motion for Sanctions filed by Defendants City of Burlington, City of Mount Vernon re 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition (Cooley, Andrew) (Entered: 11/08/2011)
80 AMENDED COMPLAINT for Injunctive and Declaratory Relief against defendant(s) City of Burlington, City of Mount Vernon with JURY DEMAND, filed by Joseph Jerome Wilbur, Jeremiah Ray Moon, Angela Marie Montegue.(Marshall, Toby) (Entered: 11/10/2011)
81 PRAECIPE to Replace Page 1 of Amended Complaint for Injunctive and Declaratory Relief by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Amended Complaint for Injunctive and Declaratory Relief - Page 1)(Marshall, Toby) (Entered: 11/10/2011)
82 MOTION to Certify Class by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. Noting Date 12/2/2011, (Marshall, Toby) (Entered: 11/10/2011)
83 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 11/10/2011)
84 DECLARATION of Matthew J. Zuchetto filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 11/10/2011)
85 DECLARATION of James F. Williams filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 11/10/2011)
86 DECLARATION of Sarah A. Dunne filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 11/10/2011)
87 MOTION to Disqualify Counsel and Exclude Experts by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order Disqualifying Counsel and Excluding Experts Boerner, Jackson

11/10/2011 11/10/2011 11/10/2011 11/11/2011 11/14/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011

and Strait) Noting Date 11/25/2011, (Cooley, Andrew) (Entered: 11/10/2011)
88 DECLARATION of Andrew G. Cooley filed by Defendants City of Burlington, City of Mount Vernon re 87 MOTION to Disqualify Counsel and Exclude Experts (Cooley, Andrew) (Entered: 11/10/2011)
89 DECLARATION of Philip A. Talmadge filed by Defendants City of Burlington, City of Mount Vernon re 87 MOTION to Disqualify Counsel and Exclude Experts (Cooley, Andrew) (Entered: 11/10/2011)
90 DECLARATION of Richard Sybrandy filed by Defendants City of Burlington, City of Mount Vernon re 87 MOTION to Disqualify Counsel and Exclude Experts (Cooley, Andrew) (Entered: 11/10/2011)
91 NOTICE of Appearance by attorney Jeremy W Culumber on behalf of Defendants City of Burlington, City of Mount Vernon. (Culumber, Jeremy) (Entered: 11/11/2011)
92 NOTICE of Appearance by attorney Breena Michelle Roos on behalf of Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Roos, Breena) (Entered: 11/14/2011)
93 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition. (Attachments: # 1 Proposed Order)(Fisher, J.) (Entered: 11/21/2011)
94 DECLARATION of Toby Marshall in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition (Fisher, J.) (Entered: 11/21/2011)
95 DECLARATION of J. Camille Fisher in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition (Fisher, J.) (Entered: 11/21/2011)
96 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 87 MOTION to Disqualify Counsel and Exclude Experts. (Attachments: # 1 Proposed Order)(Roos, Breena) (Entered: 11/21/2011)
97 DECLARATION of Breena Roos in Support of Opp to Motion to Disqualify & Exclude filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)

11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/22/2011

98 DECLARATION of Matthew Zuchetto in Support of Opp to Motion to Disqualify & Exclude filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
99 DECLARATION of Professor Robert H. Aronson in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
100 DECLARATION of Cori Russell in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
101 DECLARATION of Sgt Juanita O'Neill in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
102 DECLARATION of Sgt Deanna Randall in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
103 DECLARATION of Elia Bright in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
104 DECLARATION of Tina Johnson in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
105 DECLARATION of Angela Montague in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
106 DECLARATION of Jeremiah Moon in Support of Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Roos, Breena) (Entered: 11/21/2011)
107 NOTICE that the following is RE-NOTED: 82 MOTION to Certify Class. Filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon,

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Joseph Jerome Wilbur. Noting Date 12/9/2011, (Marshall, Toby) (Entered: 11/22/2011)
108 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 87 MOTION to Disqualify Counsel and Exclude Experts (Rosenberg, Adam) (Entered: 11/23/2011)
109 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 87 MOTION to Disqualify Counsel and Exclude Experts (Rosenberg, Adam) (Entered: 11/23/2011)
110 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition (Rosenberg, Adam) (Entered: 11/23/2011)
111 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 78 MOTION for Sanctions For Wilbur's Refusal to Appear at Properly Noted Deposition (Rosenberg, Adam) (Entered: 11/23/2011)
112 NOTICE of Intent to File Surreply ; filed by Plaintiff Angela Marie Montegue. (Marshall, Toby) (Entered: 11/23/2011)
113 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 73 MOTION for Leave to File WSAMA Brief in Support of Defendants. (Marshall, Toby) (Entered: 11/28/2011)
114 SURREPLY filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 87 MOTION to Disqualify Counsel and Exclude Experts (Marshall, Toby) (Entered: 11/28/2011)
115 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ. (Rosenberg, Adam) (Entered: 11/28/2011)
116 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Attachments: # 1 Exhibit Exhibits B and C, # 2 Exhibit Exhibits D and E)(Rosenberg, Adam) (Entered: 11/28/2011)
117 DECLARATION of Craig Cammock filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Rosenberg, Adam) (Entered: 11/28/2011)
118 DECLARATION of Patrick Eason filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary

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Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Rosenberg, Adam) (Entered: 11/28/2011)
119 DECLARATION of John Ladenburg filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Rosenberg, Adam) (Entered: 11/28/2011)
120 DECLARATION of Richard Sybrandy filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Rosenberg, Adam) (Entered: 11/28/2011)
121 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Marshall, Toby) (Entered: 12/02/2011)
122 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Attachments: # 1 Exhibit Exhibit 1-11)(Marshall, Toby) (Entered: 12/02/2011)
123 NOTICE of Intent to File Surreply re 121 Reply to Response to Motion ; filed by Defendants City of Burlington, City of Mount Vernon. (Rosenberg, Adam) (Entered: 12/05/2011)
124 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 82 MOTION to Certify Class. (Attachments: # 1 Certificate of Service)(Rosenberg, Adam) (Entered: 12/05/2011)
125 DECLARATION of Adam Rosenberg re 124 Response to Motion by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Certificate of Service)(Rosenberg, Adam) (Entered: 12/05/2011)
126 DECLARATION of James A. Feldman re 124 Response to Motion by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Certificate of Service)(Rosenberg, Adam) (Entered: 12/05/2011)
127 DECLARATION of Derrick M. Grice re 124 Response to Motion by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Certificate of Service)(Rosenberg, Adam) (Entered: 12/05/2011)
128 SURREPLY filed by Defendants City of Burlington, City of Mount Vernon re 45 MOTION for Preliminary Injunction AND OPPOSITION TO DEFS MOTIONS FOR SJ (Rosenberg, Adam) (Entered: 12/07/2011)

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129 DECLARATION of Adam Rosenberg re 128 Surreply by Defendants City of Burlington, City of Mount Vernon. (Rosenberg, Adam) (Entered: 12/07/2011)
130 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
131 Supplemental DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
132 DECLARATION of Miranda Hasty filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
133 DECLARATION of Evan Robert Fowkes filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
134 DECLARATION of Allisha Barter filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
135 DECLARATION of Rose A. Martineau filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 82 MOTION to Certify Class (Marshall, Toby) (Entered: 12/09/2011)
136 ORDER granting WA State Assoc of Municipal Attys' 73 Motion for Leave to File Amicus Curiae Brief by Judge Robert S. Lasnik.(RS) (Entered: 12/19/2011)
137 RESPONSIVE BRIEF to Brief of Amicus Curiae Washington State Association of Municipal Attorneys re 74 Brief by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur.. (Roos, Breena) (Entered: 01/04/2012)
138 DECLARATION of Breena M. Roos In Support re 137 Brief Responsive by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Roos, Breena) (Entered: 01/04/2012)
139 MINUTE ORDER Setting Hearing on Plaintiffs' 45 MOTION for Preliminary Injunction and Defendants' 32 MOTION for Summary Judgment: Motion Hearing set for 2/15/2012 at 10:00 AM in Courtroom 15106 before Judge Robert S. Lasnik. (KERR) (Entered: 01/24/2012)
140 ORDER denying dfts' 78 Motion for Sanctions by Judge Robert S. Lasnik.(RS) (Entered: 01/25/2012)

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141 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Camille Fisher, Breena Roos, Nancy Talner and Sarah Dunne; Def Counsel: Andrew Cooley and Adam Rosenberg; CR: Nancy Bauer; Time of Hearing: 10:00 a.m.; Courtroom: 15106; Motion Hearing held on 2/15/2012. The Court comments on Defendants' 87 MOTION to Disqualify Counsel and Exclude Experts. The Court DENIES the motion. An Order shall issue. The Court hears argument on Defendants' 32 MOTION for Summary Judgment as to Angela Montegue, Defendants' 27 MOTION for Summary Judgment as to Jeremiah Moon, Defendants' 25 MOTION for Summary Judgment as to Joseph Wilbur and Plaintiffs' 45 MOTION for Preliminary Injunction. The Court takes this matter under advisement. An Order shall issue. (KERR) (Entered: 02/15/2012)
142 ORDER denying dfts' 25 Motion for Summary Judgment; denying dfts' 27 Motion for Summary Judgment; denying dfts' 32 Motion for Summary Judgment; denying pltfs' 45 Cross Motion for Preliminary Injunction by Judge Robert S. Lasnik.(RS) (Entered: 02/23/2012)
143 ORDER granting pltfs' 82 Motion to Certify Class by Judge Robert S. Lasnik.(RS) (Entered: 02/23/2012)
144 ORDER denying dfts' 87 Motion to disqualify counsel and exclude experts by Judge Robert S. Lasnik.(RS) (Entered: 02/23/2012)
145 MOTION to Continue Trial and Modify Scheduling Order by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order Proposed Order Granting Plaintiffs' Motion to Modify Scheduling Order and Continue Trial) Noting Date 4/6/2012, (Marshall, Toby) (Entered: 03/22/2012)
146 DECLARATION of Toby J. Marshall in Support of Plaintiffs' Motion to Modify Scheduling Order and Continue Trial filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 145 MOTION to Continue Trial and Modify Scheduling Order (Marshall, Toby) (Entered: 03/22/2012)
147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 4/6/2012, (Rosenberg, Adam) (Entered: 03/22/2012)
148 DECLARATION of Adam Rosenberg in Support of Motion to Allow Reasonable Communications filed by Defendants City of Burlington, City of Mount Vernon re 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants (Rosenberg, Adam) (Entered: 03/22/2012)

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149 ORDER TO SHOW CAUSE Show Cause Response due within 5 days by Judge Robert S. Lasnik. (RS) (Entered: 03/28/2012)
150 RESPONSE by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 149 Order to Show Cause. (Marshall, Toby) (Entered: 03/29/2012)
151 ORDER VACATING ORDER TO SHOW CAUSE by Judge Robert S. Lasnik. (RS) (Entered: 03/29/2012)
152 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants. (Attachments: # 1 Proposed Order)(Marshall, Toby) (Entered: 04/02/2012)
153 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants (Marshall, Toby) (Entered: 04/02/2012)
154 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants (Marshall, Toby) (Entered: 04/02/2012)
155 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 145 MOTION to Continue Trial and Modify Scheduling Order. (Cooley, Andrew) (Entered: 04/02/2012)
156 DECLARATION of Andrew G. Cooley filed by Defendants City of Burlington, City of Mount Vernon re 145 MOTION to Continue Trial and Modify Scheduling Order (Cooley, Andrew) (Entered: 04/02/2012)
157 PRAECIPE re 154 Declaration, 155 Response to Motion Replacing Page 2 of the Declaration of J. Camille Fisher in Support of Response to Motion by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Corrected Declaration of J. Camille Fisher (Page 2))(Marshall, Toby) (Entered: 04/03/2012)
158 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 145 MOTION to Continue Trial and Modify Scheduling Order (Marshall, Toby) (Entered: 04/06/2012)
159 Supplemental DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 145 MOTION to Continue Trial and Modify Scheduling Order (Marshall, Toby) (Entered: 04/06/2012)

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160 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants (Rosenberg, Adam) (Entered: 04/06/2012)
161 Supplemental DECLARATION of Adam Rosenberg in Support of Motion to Allow Reasonable Communications filed by Defendants City of Burlington, City of Mount Vernon re 147 MOTION to Allow Reasonable Communication with Current and Former Indigent Defendants (Rosenberg, Adam) (Entered: 04/06/2012)
162 CERTIFICATE OF SERVICE by Defendants City of Burlington, City of Mount Vernon re Service of Subpoena on The Defender Association. (Augenthaler, Brian) (Entered: 04/16/2012)
163 AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 8-15 days. Bench Trial is set for 3/4/2013 before Judge Robert S. Lasnik. Amended Pleadings due by 9/5/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 9/5/2012, Discovery completed by 11/4/2012, Dispositive motions due by 12/4/2012, Settlement conference to be held by 1/3/2013, 39.1 mediation to be completed by 2/2/2013, Motions in Limine due by 2/4/2013, Pretrial Order due by 2/20/2013, Trial briefs to be submitted by 2/27/2013, by Judge Robert S. Lasnik. (RS) (Entered: 05/08/2012)
164 ORDER granting in part and denying in part dfts' 147 Motion to allow reasonable communication with current and former indigent dfts by Judge Robert S. Lasnik.(RS) (Entered: 05/10/2012)
165 MOTION to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 6/8/2012, (Zuchetto, Matthew) (Entered: 05/18/2012)
166 DECLARATION of Matthew J. Zuchetto filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 165 MOTION to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Zuchetto, Matthew) (Entered: 05/18/2012)
167 NOTICE of Change of Address of Attorney James F Williams. Filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Williams, James) (Entered: 05/25/2012)
168 NOTICE of Unavailability of counsel Andrew G Cooley for Defendants City of Burlington, City of Mount Vernon (Cooley, Andrew) (Entered: 05/29/2012)

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169 RESPONSE, by Plaintiff Richard M Sybrandy, to 165 MOTION to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum. (Attachments: # 1 Proposed Order)(Sybrandy, Richard) (Entered: 06/06/2012)
170 STIPULATION AND PROPOSED ORDER to Extend Deadline for Plaintiffs' Reply regarding Plaintiffs' Motion to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum by parties re 169 Response to Motion. (Zuchetto, Matthew) (Entered: 06/07/2012)
171 NOTICE of Hearing on Stipulation to Extend Deadline for Plaintiffs' Reply regarding Plaintiffs' Motion to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum re 170 Stipulation ; filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Zuchetto, Matthew) (Entered: 06/07/2012)
172 STIPULATION AND ORDER to extend deadline for pltfs' reply re pltfs' motion to compel Richard Sybrandy's compliance with subpoena duces tecum by Judge Robert S. Lasnik. (RS) (Entered: 06/08/2012)
173 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 165 MOTION to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum (Zuchetto, Matthew) (Entered: 06/12/2012)
174 DECLARATION of Matthew J. Zuchetto filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 165 MOTION to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Zuchetto, Matthew) (Entered: 06/12/2012)
175 STIPULATION AND PROPOSED ORDER Protective Order by parties. (Rosenberg, Adam) (Entered: 06/13/2012)
176 STIPULATED PROTECTIVE ORDER by Judge Robert S. Lasnik. (RS) (Entered: 06/14/2012)
177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 7/6/2012, (Fisher, J.) (Entered: 06/21/2012)
178 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Attachments: # 1 Exhibit)(Fisher, J.) (Entered: 06/21/2012)

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179 ORDER Granting Plaintiffs' 165 Motion to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum, by Judge Robert S. Lasnik. (CL) (Entered: 06/28/2012)
180 RESPONSE, by Interested Party Morgan M. Witt, to 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum. (Murphy, John) (Entered: 07/02/2012)
181 DECLARATION of John W. Murphy filed by Interested Party Morgan M. Witt re 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Murphy, John) (Entered: 07/02/2012)
182 DECLARATION of Morgan M. Witt filed by Interested Party Morgan M. Witt re 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Murphy, John) (Entered: 07/02/2012)
183 DECLARATION of Linda Nevares filed by Interested Party Morgan M. Witt re 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Murphy, John) (Entered: 07/02/2012)
184 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Fisher, J.) (Entered: 07/06/2012)
185 DECLARATION of J. Camille Fisher re Reply filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 177 MOTION to Compel Morgan Witt's Compliance with Subpoena Duces Tecum (Fisher, J.) (Entered: 07/06/2012)
186 ORDER granting pltfs' 177 Motion to Compel by Judge Robert S. Lasnik.(RS) (Entered: 07/27/2012)
187 NOTICE from Mediator Margo Keller, that on July 27, 2012, the parties participated in a mediation. (Marshall, Toby) (Entered: 07/30/2012)
188 STIPULATION AND PROPOSED ORDER of Protection regarding Mountain Law PLLC Subpoena by parties. (Marshall, Toby) (Entered: 08/22/2012)
189 Stipulated MOTION TO MODIFY EXPERT REPORT, DISCOVERY, AND DISPOSITIVE MOTION DEADLINES by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 8/24/2012, (Fisher, J.) (Entered: 08/24/2012)
190 STIPULATED PROTECTIVE ORDER by Judge Robert S. Lasnik. (TF) (Entered: 08/27/2012)

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191 WITHDRAWAL of Motion re 189 Stipulated MOTION TO MODIFY EXPERT REPORT, DISCOVERY, AND DISPOSITIVE MOTION DEADLINES ; by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Fisher, J.) (Entered: 08/29/2012)
192 MOTION to Continue Trial Date and Modify Case Schedule by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 9/21/2012, (Rosenberg, Adam) (Entered: 09/06/2012)
193 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/06/2012)
194 DECLARATION of Brian C. Augenthaler filed by Defendants City of Burlington, City of Mount Vernon re 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/06/2012)
195 NOTICE of Unavailability of counsel Kevin Lee Rogerson for Defendant City of Mount Vernon from October 30, 2012 to November 12, 2012. (Rogerson, Kevin) (Entered: 09/14/2012)
196 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 192 MOTION to Continue Trial Date and Modify Case Schedule. (Attachments: Disregard the attached exhibit. Exhibit re-filed with the Declaration # 1 Exhibit)(Fisher, J.) Modified per counsel request on 9/20/2012 (JJT). (Entered: 09/19/2012)
197 DECLARATION of Carlos Aguilar filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)
198 DECLARATION of Steven Osborn filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)
199 DECLARATION of Mark Reyna filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)
200 DECLARATION of Shawn Delacruz filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)

09/19/2012 09/19/2012 09/21/2012 09/21/2012 09/21/2012 09/21/2012 09/27/2012 09/27/2012
09/27/2012

201 DECLARATION of Jacob C. Norman filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)
202 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 192 MOTION to Continue Trial Date and Modify Case Schedule (Fisher, J.) (Entered: 09/19/2012)
203 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/21/2012)
204 Supplemental DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/21/2012)
205 Supplemental DECLARATION of Bryan Harrison filed by Defendants City of Burlington, City of Mount Vernon re 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/21/2012)
206 Supplemental DECLARATION of Eric Stendal filed by Defendants City of Burlington, City of Mount Vernon re 192 MOTION to Continue Trial Date and Modify Case Schedule (Rosenberg, Adam) (Entered: 09/21/2012)
207 MOTION for Extension of Time to Complete Discovery in Accommodation of Judge Svaren's Schedule by Defendants City of Burlington, City of Mount Vernon. Noting Date 10/5/2012, (Augenthaler, Brian) (Entered: 09/27/2012)
208 DECLARATION of Brian C. Augenthaler filed by Defendants City of Burlington, City of Mount Vernon re 207 MOTION for Extension of Time to Complete Discovery in Accommodation of Judge Svaren's Schedule (Attachments: # 1 Exhibit A and B)(Augenthaler, Brian) (Entered: 09/27/2012)
209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum by Objector Mountain Law. (Attachments: # 1 Declaration of Jon Lewis in Support of Motion for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws, # 2 Declaration of Anthony Gipe in Support of Motion for Protective Order by Mountain Law and Baker Lewis Schwisow Laws) Noting Date 10/5/2012, (Gipe, Anthony) (Entered: 09/27/2012)

09/28/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/05/2012 10/05/2012 10/05/2012

210 WITHDRAWAL of Motion re 207 MOTION for Extension of Time to Complete Discovery in Accommodation of Judge Svaren's Schedule ; by Defendants City of Burlington, City of Mount Vernon. (Augenthaler, Brian) (Entered: 09/28/2012)
211 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum. (Marshall, Toby) (Entered: 10/03/2012)
212 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum (Marshall, Toby) (Entered: 10/03/2012)
213 DECLARATION of Breena M. Roos filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum (Marshall, Toby) (Entered: 10/03/2012)
214 DECLARATION of Professor Robert H. Aronson filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum (Marshall, Toby) (Entered: 10/03/2012)
215 DECLARATION of Andrew Cooley re Indigent Declarations filed by Defendants City of Burlington, City of Mount Vernon re 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum (Cooley, Andrew) (Entered: 10/05/2012)
216 NOTICE of Filing Exhibits A, B and C to Declaration of Andrew Cooley Re: Indigent Declarations [Dkt. 215] in Paper or Physical Form with the Clerk's Office by Defendants City of Burlington, City of Mount Vernon. (Cooley, Andrew) Modified on 10/9/2012/CDs filed on Seattle Filing Shelf (RS). (Entered: 10/05/2012)
217 REPLY, filed by Objector Mountain Law, TO RESPONSE to 209 MOTION for Protective Order by Mountain Law and Baker Lewis Schwisow and Laws Third Party Respondents to Subpoena Duces Tecum (Attachments: # 1 Supplement Decalration of Jon Lewis in Support of Motion for Protective Order, # 2 Declaration of Michael Laws in Support of Motion for Protective Order)(Gipe, Anthony) (Entered: 10/05/2012)

10/09/2012 10/10/2012
10/26/2012
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218 ORDER CONTINUING TRIAL DATE; granting in part and denying in part dfts' 192 Motion to Continue Trial Date by Judge Robert S. Lasnik.(RS) (Entered: 10/09/2012)
219 SECOND AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 8-15 days. Bench Trial is set for 6/3/2013 before Judge Robert S. Lasnik. Discovery completed by 2/3/2013, Dispositive motions due by 3/5/2013, Settlement conference to be held by 4/4/2013, 39.1 mediation to be completed by 5/4/2013, Motions in Limine due by 5/6/2013, Pretrial Order due by 5/22/2013, Trial briefs to be submitted by 5/29/2013, by Judge Robert S. Lasnik. (RS) (Entered: 10/11/2012)
220 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA (First Amended); and Notice of First Amended Videotaped Deposition upon James A. Feldman served on 10-23-12, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Fisher, J.) (Entered: 10/26/2012)
221 MOTION for Relief From Discovery Deadline by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 11/9/2012, (Cooley, Andrew) (Entered: 10/31/2012)
222 DECLARATION of Andrew Cooley filed by Defendants City of Burlington, City of Mount Vernon re 221 MOTION for Relief From Discovery Deadline (Cooley, Andrew) (Entered: 10/31/2012)
223 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 221 MOTION for Relief From Discovery Deadline. (Fisher, J.) (Entered: 11/07/2012)
224 DECLARATION of J. Camille Fisher in Support of Plaintiffs' Opposition filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 221 MOTION for Relief From Discovery Deadline (Fisher, J.) (Entered: 11/07/2012)
225 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 221 MOTION for Relief From Discovery Deadline (Cooley, Andrew) (Entered: 11/09/2012)
226 ORDER compelling Mountain Law and Baker Lew Schwisow & Laws to comply with subpoenas; re 209 Motion for Protective Order by Judge Robert S. Lasnik.(RS) (Entered: 11/09/2012)
227 ORDER Denying Defts' 221 Motion to Extend Discovery Deadline by Judge Robert S. Lasnik.(TF) (Entered: 11/27/2012)
228 NOTICE of release of original deposition transcript (RS) (Entered: 01/07/2013)

01/23/2013 01/31/2013 02/28/2013
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03/05/2013
03/05/2013 03/05/2013 03/05/2013

229 STIPULATION AND PROPOSED ORDER Extending Deadline to Complete Mountain Law Deposition by parties. (Marshall, Toby) (Entered: 01/23/2013)
230 STIPULATION AND ORDER extending deadline to complete Mountain Law deposition by Judge Robert S. Lasnik. (RS) (Entered: 01/31/2013)
231 MOTION for Leave to File Excess Pages in Support of Motion for Summary Judgment by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 2/28/2013, (Marshall, Toby) (Entered: 02/28/2013)
232 ORDER granting pltfs' 231 Motion for Leave to File Excess Pages by Judge Robert S. Lasnik.(RS) (Entered: 03/01/2013)
233 MOTION to File Overlength Brief by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 3/4/2013, (Rosenberg, Adam) (Entered: 03/04/2013)
234 ORDER granting granting dfts' 233 Motion for overlength brief by Judge Robert S. Lasnik.(RS) (Entered: 03/05/2013)
235 MOTION for Summary Judgment by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Proposed Order) Noting Date 3/29/2013, (Rosenberg, Adam) (Entered: 03/05/2013)
236 DECLARATION of Adam Rosenberg in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit)(Rosenberg, Adam) (Entered: 03/05/2013)
237 DECLARATION of Bryan Hamilton Harrison in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit)(Rosenberg, Adam) Modified on 3/6/2013 to correct last name of declarant Harrison per counsel (TF). (Entered: 03/05/2013)
238 DECLARATION of W. Scott Snyder in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/05/2013)
239 DECLARATION of Maria Van De Grift in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/05/2013)
240 DECLARATION of Patrick Eason in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/05/2013)

03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013

241 DECLARATION of Eric Stendal in Support of Motion filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/05/2013)
242 MOTION for Summary Judgment by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 3/29/2013, (Marshall, Toby) (Entered: 03/05/2013)
243 DECLARATION of Christine Jackson (Second Supplemental) filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 242 MOTION for Summary Judgment (Terrell, Beth) (Entered: 03/05/2013)
244 DECLARATION of Jennifer J. Boschen filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 242 MOTION for Summary Judgment (Terrell, Beth) (Entered: 03/05/2013)
245 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 242 MOTION for Summary Judgment (Attachments: # 1 Exhibits 1 through 13)(Marshall, Toby) (Entered: 03/05/2013)
246 EXHIBIT 14 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Exhbiit 14 - Part 2, # 2 Exhibit 14 - Part 3, # 3 Exhibit 14 - Part 4, # 4 Exhibit 14 - Part 5)(Marshall, Toby) (Entered: 03/05/2013)
247 EXHIBIT 16 through 31 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
248 EXHIBIT 15 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Exhibit 15 - Part 2, # 2 Exhibit 15 - Part 3)(Marshall, Toby) (Entered: 03/05/2013)
249 EXHIBIT 34 through 60 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
250 EXHIBIT 61 through 76 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
251 EXHIBIT 77 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)

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252 EXHIBIT 78 through 89 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
253 EXHIBIT 90 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
254 EXHIBIT 91 through 97 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
255 EXHIBIT 98 through 102 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/05/2013)
256 EXHIBIT 32 and 33 re 245 Declaration by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 03/06/2013)
257 PRAECIPE re 244 Declaration of Jennifer J. Boschen in Support of Motion for Summary Judgment by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Corrected Declaration of Jennifer J. Boschen in Support of Plaintiffs' Motion for Summary Judgment)(Marshall, Toby) (Entered: 03/06/2013)
258 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 242 MOTION for Summary Judgment . (Cooley, Andrew) (Entered: 03/25/2013)
259 DECLARATION of Andrew Cooley filed by Defendants City of Burlington, City of Mount Vernon re 242 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 03/25/2013)
260 DECLARATION of James A. Feldman filed by Defendants City of Burlington, City of Mount Vernon re 242 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 03/25/2013)
261 DECLARATION of District Court Judge David Svaren filed by Defendants City of Burlington, City of Mount Vernon re 242 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 03/25/2013)
262 Supplemental DECLARATION of Bryan Harrison filed by Defendants City of Burlington, City of Mount Vernon re 242 MOTION for Summary Judgment (Cooley, Andrew) (Entered: 03/25/2013)
263 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 235 MOTION for Summary Judgment . Oral Argument Requested. (Williams, James) (Entered: 03/25/2013)

03/25/2013
03/28/2013 03/29/2013 03/29/2013 03/29/2013 03/29/2013 04/04/2013 04/08/2013 04/25/2013 05/02/2013

264 DECLARATION of James F. Williams filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 235 MOTION for Summary Judgment (Attachments: # 1 Exhibit Exh A to Williams Decl, # 2 Exhibit Exh B to Williams Decl, # 3 Exhibit Exh C-H to Williams Decl, # 4 Exhibit Exh I-U to Williams Decl, # 5 Exhibit Exh V-DD to Williams Decl, # 6 Exhibit Exh EE-JJ to Williams Decl, # 7 Exhibit Exh S Part 1 to Williams Decl, # 8 Exhibit Exh S Part 2 to Williams Decl, # 9 Exhibit Exh S Part 3 to Williams Decl)(Williams, James) (Entered: 03/25/2013)
265 ORDER appointing Hon. James P. Donohue as settlement judge by Judge Robert S. Lasnik. (RS)cc PV (Entered: 03/29/2013)
266 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/29/2013)
267 Supplemental DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 235 MOTION for Summary Judgment (Rosenberg, Adam) (Entered: 03/29/2013)
268 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 242 MOTION for Summary Judgment (Marshall, Toby) (Entered: 03/29/2013)
269 Supplemental DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 242 MOTION for Summary Judgment (Marshall, Toby) (Entered: 03/29/2013)
270 ORDER SETTING SETTLEMENT CONFERENCE; Settlement Conference set for 5/16/2013 at 09:00 AM in Courtroom 12A before Hon. James P. Donohue by Hon. James P. Donohue. (RS) (Entered: 04/04/2013)
Set Hearing: Pretrial Conference set for 5/2/2013 at 8:30 AM in Courtroom 15106 before Judge Robert S. Lasnik. (KERR) (Entered: 04/08/2013)
271 ORDER denying dft Cities of Mt Vernon and Burlington's 235 Motion for Summary Judgment; denying pltfs' 242 Motion for Summary Judgment by Judge Robert S. Lasnik.(RS) (Entered: 04/25/2013)
272 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Matthew Zuchetto, Breena Roos and Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Scott Thomas, Kevin Rogerson; CR: Nancy Bauer; Time of Hearing: 8:30 a.m.; Courtroom: 15106; Pretrial Conference held on 5/2/2013. The Court and counsel

05/06/2013 05/06/2013 05/06/2013 05/06/2013 05/06/2013 05/16/2013 05/20/2013 05/20/2013 05/20/2013 05/20/2013

discuss the posture of the case including trial length and trial witnesses. Plaintiff shall have 4 days to present their case. Expert declarations shall be filed by 5/29/2013. Trial shall commence on Monday, June 3, 2013 at 9:00 a.m. (KERR) (Entered: 05/02/2013)
273 MOTIONS IN LIMINE by Defendants City of Burlington, City of Mount Vernon. Noting Date 5/24/2013, (Augenthaler, Brian) (Entered: 05/06/2013)
274 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 273 MOTIONS IN LIMINE (Augenthaler, Brian) (Entered: 05/06/2013)
275 Supplemental DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 273 MOTIONS IN LIMINE (Augenthaler, Brian) (Entered: 05/06/2013)
276 MOTIONS IN LIMINE by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/24/2013, (Fisher, J.) (Entered: 05/06/2013)
277 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 276 MOTIONS IN LIMINE (Fisher, J.) (Entered: 05/06/2013)
278 MINUTE ENTRY for proceedings held before Hon. James P. DonohueDep Clerk: phv; Pla Counsel: T Marshall; Def Counsel: A Cooley; Time of Hearing: 9:00am; Courtroom: 12A;Settlement Conference Held(PV) (Entered: 05/17/2013)
279 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 273 MOTIONS IN LIMINE . (Fisher, J.) (Entered: 05/20/2013)
280 DECLARATION of J. Camille Fisher filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 273 MOTIONS IN LIMINE (Attachments: # 1 Exhibit A - D)(Fisher, J.) (Entered: 05/20/2013)
281 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 276 MOTIONS IN LIMINE . (Rosenberg, Adam) (Entered: 05/20/2013)
282 DECLARATION of Adam Rosenberg in Opposition to Motions in Limine filed by Defendants City of Burlington, City of Mount Vernon re 276 MOTIONS IN LIMINE (Rosenberg, Adam) (Entered: 05/20/2013)

05/21/2013 05/22/2013 05/22/2013 05/24/2013 05/28/2013 05/28/2013 05/29/2013 05/29/2013 05/29/2013 05/29/2013

283 MINUTE ENTRY for proceedings held before Hon. James P. DonohueTime of Hearing: 9:00am; Courtroom: 12A;Settlement Conference held on 5/21/2013.. (PV) (Entered: 05/21/2013)
285 Proposed Pretrial Order by Defendants City of Burlington, City of Mount Vernon, Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Appendix A & B)(Fisher, J.) (Entered: 05/22/2013)
286 DESIGNATION OF DEPOSITION TRANSCRIPT Filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Appendix Attachment A, # 2 Appendix Attachment B, # 3 Appendix Attachment C)(Fisher, J.) (Entered: 05/22/2013)
287 REPLY, filed by Defendants City of Burlington, City of Mount Vernon, TO RESPONSE to 273 MOTIONS IN LIMINE (Augenthaler, Brian) (Entered: 05/24/2013)
288 SURREPLY filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 273 MOTIONS IN LIMINE MOVING TO STRIKE DEFENDANTS' REPLY (DKT. 287) (Fisher, J.) (Entered: 05/28/2013)
289 SURREPLY filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 273 MOTIONS IN LIMINE Withdrawal of Surreply filed by Plaintiffs (Fisher, J.) (Entered: 05/28/2013)
290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order) Noting Date 6/3/2013, (Marshall, Toby) (Entered: 05/29/2013)
291 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission (Marshall, Toby) (Entered: 05/29/2013)
292 DECLARATION of Kathleen Glennon filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission (Marshall, Toby) (Entered: 05/29/2013)
293 DECLARATION of Shari Hall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission (Marshall, Toby) (Entered: 05/29/2013)

05/29/2013 05/29/2013 05/29/2013 05/29/2013
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05/31/2013
05/31/2013
05/31/2013 05/31/2013 06/02/2013 06/02/2013

294 TRIAL BRIEF by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 05/29/2013)
295 APPENDIX re 294 Trial Brief by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 05/29/2013)
296 NOTICE of Plaintiffs' Submission of Expert Declaration for Trial ; filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 05/29/2013)
297 TRIAL BRIEF by Defendants City of Burlington, City of Mount Vernon. (Attachments: # 1 Appendix Narrative Direct Exam of James Feldman, # 2 Appendix Narrative Direct Exam of John Ladenburg)(Cooley, Andrew) (Entered: 05/29/2013)
298 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission . (Augenthaler, Brian) (Entered: 05/31/2013)
299 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission (Augenthaler, Brian) (Entered: 05/31/2013)
300 Supplemental DECLARATION of Adam Rosenberg [Exhibits] filed by Defendants City of Burlington, City of Mount Vernon re 290 MOTION to Allow Two Incarcerated Witnesses to Testify via Telephonic Transmission (Augenthaler, Brian) (Entered: 05/31/2013)
301 NOTICE of Filing Exhibits B and C to the Declaration of Adam L. Rosenberg in Paper or Physical Form with the Clerk's Office by Defendants City of Burlington, City of Mount Vernon. (Augenthaler, Brian) (Entered: 05/31/2013)
302 Proposed Pretrial Order by Defendants City of Burlington, City of Mount Vernon. (Augenthaler, Brian) (Entered: 05/31/2013)
309 NOTICE of Filing in Paper or Physical Form with the Clerk's Office : exhibits B and C to Declaration of Adam L Rosenberg filed on disc (RS) (Entered: 06/04/2013)
303 Exhibit List Dep Ex Numbers Corresponding Trial Ex Numbers by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 06/02/2013)
304 Proposed Pretrial Order by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) (Entered: 06/02/2013)

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06/04/2013
06/05/2013

305 ORDER denying dfts' 273 Motions in Limine by Judge Robert S. Lasnik.(RS) (Entered: 06/03/2013)
306 ORDER granting in part and denying in part pltfs' 276 Motions in Limine by Judge Robert S. Lasnik.(RS) (Entered: 06/03/2013)
307 ORDER granting pltfs' 290 Motion to allow two incarcerated witnesses to testify via telephonic transmission by Judge Robert S. Lasnik.(RS) (Entered: 06/03/2013)
308 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley and Adam Rosenberg; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 1 held on 6/3/2013. The Court and counsel discuss pretrial matters. Counsel present opening statements. All exhibits that have been stipulated to in the PTO are admitted into evidence. Plaintiffs' witnesses Letty Alvarez, Jaretta Osborne, Frederick Muenscher and Eric Stendal are sworn and testify. Exhibits 13, 33, 34, 97 and 14 are admitted into evidence. Exhibit 2 is excluded from evidence. The Court reserves ruling on exhibits 5 and 89. Trial shall resume on Tuesday, June 4, 2013 at 9:00 a.m. (KERR) (Entered: 06/03/2013)
310 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 2 held on 6/4/2013. Plaintiffs' witnesses Jacob Norman (via telephone), Jeremiah Moon and Christine Jackson are sworn and testify. Exhibits 501, 608, 628, 238, 876 and 889 are admitted into evidence. Trial shall resume on Wednesday, June 5, 2013 at 9:00 a.m. (KERR) (Entered: 06/05/2013)
311 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 3 held on 6/5/2013. Plaintiffs' witnesses Steve Osborn (via telephone) and Angela Montague are sworn and testify. The testimony of Eric Stendal resumes and concludes. Plaintiffs' witness Bryan Harrison is sworn and testifies. Exhibits 2, 5, 9-10, 16, 18, 36, 45-46, 52, 75, 78, 85, 89, 109, 139, 142, 169, 187, 190, 236, 239, 502, 526-527, 826-827, 830 and 836are admitted into evidence. Trial shall resume on Thursday, June 6, 2013 at 9:00 a.m. (KERR) (Entered: 06/05/2013)

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312 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 4 held on 6/6/2013. Plaintiffs' witnesses Sergeant Juanita ONeill, Jon Aarstad and John Strait are sworn and testify. Exhibits 4, 11, 12, 21, 23-24, 35 and 188 are admitted into evidence. The Court reserves ruling on exhibit 226. Trial shall resume on Monday, June 10, 2013 at 9:00 a.m. (KERR) (Entered: 06/06/2013)
313 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 5 held on 6/10/2013. Defendants' witnesses Walter Scott Snyder, Patrick Hayden, Maria Van De Grift, Jonathan Lewis and Craig Cammock are sworn and testify. Exhibits 149, 168 (pgs. 2-4 only), 223, 505, 818, 823 and 943 are admitted into evidence. Trial shall resume on Tuesday, June 11, 2013 at 9:00 a.m. (KERR) (Entered: 06/11/2013)
314 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 6 held on 6/11/2013. Defendants' witnesses Patrick Eason, Sade Smith, Stacy DeMass, Richard Sybrandy and Morgan Witt are sworn and testify. Exhibits 20, 79, 92, 93, 106, 227, 232, 676 and 677 are admitted into evidence. Trial shall resume on Wednesday, June 12, 2013 at 9:00 a.m. Closing arguments are scheduled for Tuesday, June 18, 2013 at 2:00 p.m. (KERR) (Entered: 06/11/2013)
315 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 7 held on 6/12/2013. Defendants' witnesses John Ladenburg, Jesse Collins, Michael Laws and James Feldman are sworn and testify. Exhibits 178, 185, 208, 218 and 219 are admitted into evidence.Trial shall resume on Thursday, June 13, 2013 at 9:00 a.m. (KERR) (Entered: 06/13/2013)
316 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley,

06/18/2013
06/21/2013 06/28/2013 08/14/2013 08/14/2013
08/14/2013 08/14/2013

Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 9:00 a.m.; Courtroom: 15106; Bench Trial Day 8 held on 6/13/2013. Defendants' witnesses Honorable David Svaren, Honorable Warren Gilbert and Honorable Linford Smith are sworn and testify. Exhibits 108, 114, 175, 226, 244 and 245 areadmitted into evidence. Exhibit 19 is excluded from evidence. Plaintiffs rest. Defendants move for a directed verdict. The motion is DENIED. Defendants rest and renew their motion for a directed verdict. The motion is DENIED. Trial is continued to Tuesday, June 18, 2013 at 2:00 p.m. (KERR) (Entered: 06/13/2013)
317 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: James Williams, Toby Marshall, Breena Roos, Camille Fisher; Def Counsel: Andrew Cooley, Adam Rosenberg, Brian Augenthaler; CR: Kari McGrath; Time of Hearing: 2:00 p.m.; Courtroom: 15106; Bench Trial completed on 6/18/2013. Counsel present closing arguments. An order requesting further briefing shall issue. (KERR) (Entered: 06/18/2013)
318 COURT'S WITNESS AND EXHIBIT LISTS (RS) (Entered: 06/24/2013)
319 ORDER FOR FURTHER BRIEFING; supplemental submissions due 8/14/13 by Judge Robert S. Lasnik. (RS) (Entered: 06/28/2013)
320 NOTICE of Change of Address of Attorney Toby James Marshall. Filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Marshall, Toby) Modified Address on 8/14/2013 (DS). (Entered: 08/14/2013)
321 MOTION for Leave to File Amicus Brief by Washington Defender Association by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Proposed Order Proposed Order Granting Washington Defender Association Leave to File Amicus Curiae Brief)(Stearns, Travis) (Entered: 08/14/2013)
322 STATEMENT re 319 Order Statement of Interest by Amicus United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gayle, Winsome) (Entered: 08/14/2013)
323 SUPPLEMENT re 319 Order Plaintiffs' Post-Trial Brief in Response by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Appendix 1.A-1.E, # 2 Appendix 1.F-1.H, # 3 Appendix 1.I - 1K, # 4 Appendix 1.l - 1M, # 5 Appendix 3.A - 3.I, # 6 Appendix 3.J - 3.P, # 7 Appendix 3.Q - 3.T, # 8 Appendix 3.U, # 9 Appendix 3.V, # 10 Appendix 3.W - 3.Y, # 11 Appendix 3.Z, # 12 Appendix 3.AA, # 13 Appendix 3.BB - 3.EE)(Williams, James) (Entered: 08/14/2013)

08/14/2013 12/04/2013 12/11/2013 12/18/2013 12/18/2013 12/18/2013 12/18/2013 12/18/2013 12/18/2013 12/18/2013 12/18/2013

324 RESPONSE by Defendants City of Burlington, City of Mount Vernon Re Dkt. 319, Order for Further Briefing. (Cooley, Andrew) (Entered: 08/14/2013)
325 MEMORANDUM OF DECISION by Judge Robert S. Lasnik.(RS) (Entered: 12/04/2013)
326 CERTIFICATE of COMPLIANCE re 325 Order on Motion for Leave to File, Terminated Case by Defendants City of Burlington, City of Mount Vernon. (Cooley, Andrew) (Entered: 12/11/2013)
327 MOTION FOR BILL OF COSTS by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Appendix) Noting Date 1/3/2014, (Marshall, Toby) (Entered: 12/18/2013)
328 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 327 MOTION FOR BILL OF COSTS (Marshall, Toby) (Entered: 12/18/2013)
329 DECLARATION of Matthew J. Zuchetto filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 327 MOTION FOR BILL OF COSTS (Marshall, Toby) (Entered: 12/18/2013)
330 DECLARATION of Sarah Dunne filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 327 MOTION FOR BILL OF COSTS (Marshall, Toby) (Entered: 12/18/2013)
331 MOTION for Attorney Fees and Expenses by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. Oral Argument Requested. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix) Noting Date 1/3/2014, (Marshall, Toby) (Entered: 12/18/2013)
332 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Attachments: # 1 Exhibit)(Marshall, Toby) (Entered: 12/18/2013)
333 DECLARATION of Matthew J. Zuchetto filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)
334 DECLARATION of Sarah Dunne filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)

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12/30/2013 12/30/2013 12/30/2013

335 DECLARATION of Bradley S. Keller filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)
336 DECLARATION of Salvador A. Mungia filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)
337 DECLARATION of James F. Williams filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)
338 DECLARATION of Joseph R. Shaeffer filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 12/18/2013)
MOTION(S) REFERRED to Deputy in Charge Joe Whiteley: re 327 MOTION FOR BILL OF COSTS filed by Jeremiah Ray Moon, Joseph Jerome Wilbur, Angela Marie Montegue (RS) (Entered: 12/19/2013)
339 PRAECIPE re 327 MOTION FOR BILL OF COSTS by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Exhibit)(Marshall, Toby) (Entered: 12/19/2013)
340 PRAECIPE re 331 MOTION for Attorney Fees and Expenses by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Attachments: # 1 Exhibit)(Marshall, Toby) (Entered: 12/19/2013)
341 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 331 MOTION for Attorney Fees and Expenses, 327 MOTION FOR BILL OF COSTS . (Attachments: # 1 Appendix Addendum A, # 2 Appendix Addendum B-1, # 3 Appendix Addendum B-2, # 4 Appendix Addendum B-3, # 5 Appendix Addendum C)(Augenthaler, Brian) (Entered: 12/30/2013)
342 DECLARATION of Andrew Cooley filed by Defendants City of Burlington, City of Mount Vernon re 327 MOTION FOR BILL OF COSTS , 331 MOTION for Attorney Fees and Expenses (Augenthaler, Brian) (Entered: 12/30/2013)
343 DECLARATION of Brian Augenthaler filed by Defendants City of Burlington, City of Mount Vernon re 327 MOTION FOR BILL OF COSTS , 331 MOTION for Attorney Fees and Expenses (Augenthaler, Brian) (Entered: 12/30/2013)
344 DECLARATION of Adam Rosenberg filed by Defendants City of Burlington, City of Mount Vernon re 327 MOTION FOR BILL OF

01/03/2014 01/03/2014
01/03/2014
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COSTS , 331 MOTION for Attorney Fees and Expenses (Augenthaler, Brian) (Entered: 12/30/2013)
345 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 327 MOTION FOR BILL OF COSTS (Marshall, Toby) (Entered: 01/03/2014)
346 REPLY, filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, TO RESPONSE to 331 MOTION for Attorney Fees and Expenses (Attachments: # 1 Appendix)(Marshall, Toby) (Entered: 01/03/2014)
347 Supplemental DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 331 MOTION for Attorney Fees and Expenses (Marshall, Toby) (Entered: 01/03/2014)
348 NOTICE of Supplemental Authority re 331 MOTION for Attorney Fees and Expenses by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur (Marshall, Toby) (Entered: 01/15/2014)
349 STIPULATION AND PROPOSED ORDER Extending Deadlines for Selection of Public Defense Supervisor by parties. (Marshall, Toby) (Entered: 01/27/2014)
350 STIPULATION AND ORDER to extend deadline for selection of public defense supervisor by Judge Robert S. Lasnik. (RS) (Entered: 02/03/2014)
351 ORDER granting 327 Plaintiff's Motion for Bill of Costs by Deputy in Charge Joe Whiteley.(JW) (Entered: 02/05/2014)
352 STIPULATION AND PROPOSED ORDER re: Selection of Public Defense Supervisor and Deadlines Related to Supervision by parties. (Attachments: # 1 Exhibit)(Marshall, Toby) (Entered: 02/19/2014)
353 STIPULATION AND ORDER re selection of public defense supervisor and deadlines related to supervision by Judge Robert S. Lasnik. (RS) (Entered: 02/25/2014)
354 ORDER granting pltfs' 331 Motion for Attorney Fees by Judge Robert S. Lasnik.(RS) (Entered: 04/15/2014)
355 Unopposed MOTION for Protective Order by Interested Party Eileen Farley. (Attachments: # 1 Proposed Order) Noting Date 4/25/2014, (Elkanich, David) (Entered: 04/17/2014)
356 PROTECTIVE ORDER by Judge Robert S. Lasnik. (RS) (Entered: 04/22/2014)

10/01/2014
10/08/2014
10/08/2014
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357 ORDER EXTENDING TIME FOR SUBMISSION OF REPORT - The Court has received a request to extend the biannual report deadline for oneweek. The request is GRANTED, by Judge Robert S. Lasnik. (TM) (Entered: 10/01/2014)
358 DECLARATION of Eileen Farley re 325 Order on Motion for Leave to File, Terminated Case by Interested Party Eileen Farley (Attachments: # 1 Public Defense Supervisor's First Biannual Report, # 2 Exhibit s 1-3 to First Biannual Report)(Farley, Eileen) (Entered: 10/08/2014)
359 MOTION Approval of Complaint Process and Form by Interested Party Eileen Farley. (Attachments: # 1 Proposed Comment Complaint Question Form, # 2 Proposed Order Approving Complaint Process and Form) Noting Date 10/24/2014, (Farley, Eileen) (Entered: 10/08/2014)
360 ORDER granting the Public Defense Supervisor's 359 Motion to Approve Complaint Process, by Judge Robert S. Lasnik.(TM) cc: Pro Se (Entered: 10/16/2014)
361 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Scott Glen Thomas for Defendant City of Burlington. (Johnson, Leif) (Entered: 11/03/2014)
362 ORDER Extending Time for Submission of Report by Judge Robert S. Lasnik. (LMK) CC: Eileen Farley (Entered: 04/03/2015)
363 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah A Dunne for Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur. (Talner, Nancy) (Entered: 04/03/2015)
364 DECLARATION of Eileen Farley re 352 Stipulation by Interested Party Eileen Farley (Farley, Eileen) (Entered: 04/17/2015)
365 SEALED DOCUMENT Ex. B to Farley Decl. by Interested Party Eileen Farley re 356 Protective Order (Farley, Eileen) (Entered: 04/17/2015)
366 DECLARATION of (Third) Eileen Farley, Public Defense Supervisor re 352 Stipulation by Interested Party Eileen Farley (Farley, Eileen) (Entered: 04/23/2015)
367 SEALED DOCUMENT Ex. B to Third Farley Decl. by Interested Party Eileen Farley re 356 Protective Order (Farley, Eileen) (Entered: 04/23/2015)
368 DECLARATION (Fourth) of Eileen Farley re 353 Stipulation and Order by Interested Party Eileen Farley (Attachments: # 1 Exhibit A and Exs. 1-3 to Ex. A)(Farley, Eileen) (Entered: 11/04/2015)

11/04/2015 05/23/2016 05/23/2016 07/11/2016

369 SEALED DOCUMENT (Exs. 4-5 to Ex. A to 4th Farley Decl.) by Interested Party Eileen Farley re 356 Protective Order, 368 Declaration (non motion) (Farley, Eileen) (Entered: 11/04/2015)
370 DECLARATION (Fifth) of Eileen Farley re 353 Stipulation and Order by Interested Party Eileen Farley (Attachments: # 1 Exhibit s A, D, E)(Farley, Eileen) (Entered: 05/23/2016)
371 SEALED DOCUMENT Exhibits B & C to 5th Farley Decl. by Interested Party Eileen Farley re 356 Protective Order, 370 Declaration (non motion) (Farley, Eileen) (Entered: 05/23/2016)
372 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Trial Day 8 held on 6/13/2013 before Judge Robert S. Lasnik.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

10/06/2016
11/14/2016 11/17/2016 03/16/2017

To purchase a copy of the transcript, contact court reporter Kari McGrath, Release of Transcript Restriction set for 10/11/2016, (SH) (Entered: 07/11/2016)
373 ORDER EXTENDING TIME FOR SUBMISSION OF REPORT by Judge Robert S. Lasnik. The Court has received a request to extend the Public Defense Supervisor's biannual report deadline until November 14, 2016. The request is GRANTED. (AD) Modified on 10/6/2016 cc: Eileen Farley (AD). (Entered: 10/06/2016)
374 DECLARATION (Sixth) of Eileen Farley re 353 Stipulation and Order by Interested Party Eileen Farley (Attachments: # 1 Exhibit s 17)(Farley, Eileen) (Entered: 11/14/2016)
375 SEALED DOCUMENT Exs A-D to Farley Declaration by Interested Party Eileen Farley re 356 Protective Order, 374 Declaration (non motion) (Farley, Eileen) (Entered: 11/17/2016)
376 DECLARATION (Seventh) of Eileen Farley re 353 Stipulation and Order by Interested Party Eileen Farley (Attachments: # 1 Exhibit s 112)(Farley, Eileen) (Entered: 03/16/2017)

03/16/2017 03/20/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017

377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley, filed by Interested Party Eileen Farley. Noting Date 3/31/2017, (Farley, Eileen) (Entered: 03/16/2017)
378 PROPOSED ORDER (Unsigned) re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Farley, Eileen) (Entered: 03/20/2017)
379 RESPONSE, by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur, to 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley. (Marshall, Toby) (Entered: 03/27/2017)
380 DECLARATION of Toby J. Marshall filed by Plaintiffs Angela Marie Montegue, Jeremiah Ray Moon, Joseph Jerome Wilbur re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Marshall, Toby) (Entered: 03/27/2017)
381 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley. Oral Argument Requested. (Rosenberg, Adam) (Entered: 03/27/2017)
382 DECLARATION of Mayor Jill Boudreau filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
383 DECLARATION of Peter Donovan in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
384 DECLARATION of Juan Farias in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
385 DECLARATION of Leif Johnson in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
386 DECLARATION of Michael Laws in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount

03/27/2017 03/27/2017 03/27/2017 03/28/2017 03/31/2017 04/03/2017 04/19/2017
04/20/2017

Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
387 DECLARATION of Mayor Steve Saxton in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
388 DECLARATION of Bryan Harrison in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
389 DECLARATION of Adam Rosenberg in Response to Motion to Extend Injunction filed by Defendants City of Burlington, City of Mount Vernon re 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Rosenberg, Adam) (Entered: 03/27/2017)
390 RESPONSE, by Defendants City of Burlington, City of Mount Vernon, to 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley. Oral Argument Requested. (Rosenberg, Adam) (Entered: 03/28/2017)
391 REPLY, filed by Interested Party Eileen Farley, TO RESPONSE to 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley (Farley, Eileen) (Entered: 03/31/2017)
392 ORDER Extending Time of Supervision and Setting Oral Argument re Interested Party Eileen Farley's 377 MOTION to Extend Supervision. Oral argument will be heard on April 20, 2017, at 9:30 a.m. The period of supervision is EXTENDED until the end of April. Signed by Judge Robert S. Lasnik. (SWT) (Entered: 04/04/2017)
393 DECLARATION (Eighth) of Eileen Farley re 392 Order Setting Hearing on Motion, 377 MOTION to Extend Supervision re 353 Stipulation and Order, 376 Declaration (non motion) of Eileen Farley, 325 Order on Motion for Leave to File, Terminated Case, 376 Declaration (non motion) by Interested Party Eileen Farley (Attachments: # 1 Attachment to Addendum)(Farley, Eileen) (Entered: 04/19/2017)
394 MINUTE ENTRY for proceedings held before Judge Robert S. LasnikDep Clerk: Kerry Simonds; Pla Counsel: Toby Marshall; Def Counsel:

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Adam Rosenberg; CR: Andrea Ramirez; Time of Hearing: 9:30 a.m.; Public Defense Supervisor: Eileen Farley Courtroom: 15106; Motion Hearing held on 4/20/2017 re 377 MOTION to Extend Supervision of Eileen Farley filed by Eileen Farley. After hearing from counsel and for reasons stated on the record, the Court GRANTS the Motion to Extend Supervision and sets a deadline of July 1, 2017. An Order shall issue. (KERR) (Entered: 04/20/2017)
395 ORDER EXTENDING TIME OF SUPERVISION re Public Defense Supervisor's 377 Motion to Extend Supervision, by Judge Robert S. Lasnik. (SWT) (Entered: 04/20/2017)
396 DECLARATION (Ninth) of Eileen Farley re 353 Stipulation and Order, 356 Protective Order by Interested Party Eileen Farley (Attachments: # 1 Proposed Order re Protected Information Received by Supervisor)(Farley, Eileen) (Entered: 06/27/2017)
Party Eileen Farley added. (See 396 Declaration) (SWT) (Entered: 07/05/2017)
397 ORDER re Supervisor's Final Sixth Report and request to authorize deletion/destruction of information received by the Supervisor that is subject to 356 Protective Order, signed by Judge Robert S. Lasnik. (SWT) (Entered: 07/07/2017)
398 Request Regarding Handling of Information Subject to Protective Order, filed by Interested Party Jennifer Rancourt. (Attachments: # 1 Proposed Order, # 2 SEALED Exhibit A) Noting Date 8/11/2017, (SWT) (Entered: 07/25/2017)
399 ORDER REGARDING PROTECTED INFORMATION RECEIVED BY AUDITOR granting Interested Party Jennifer Rancourt's 398 Motion signed by Judge Robert S. Lasnik.(RS) cc Rancourt (Entered: 08/17/2017)
400 NOTICE of Compliance re 397 Order, by Interested Party Eileen Farley. (Farley, Eileen) (Entered: 08/21/2017)
401 Mail Returned as Undeliverable re 399 Order on Motion for Miscellaneous Relief addressed to Jennifer Rancourt (TH) (Entered: 09/07/2017)

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