Eugster v. WSBA and Justices of the Washington Supreme Court

Pleadings on appeal:

  1. Doc_6_ Opening_Brief_and_Appendix
  2. Doc_13_Answering Brief
  3. Doc_16_Reply Appellant
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Supreme Court Workgroup and Fleck v. Wetch

Members of the Spokane County Bar Association, December 7, 2018, from Steve Eugster*

The Washington Supreme Court recently created the Supreme Court Workgroup to Review WSBA Structure.[1] The duration of the workgroup is six to eight weeks with meetings every three to four weeks.  The first meeting will be in January 2019. It will be held at WSBA offices in Seattle and will be open to the public.

The workgroup will undertake a “comprehensive review of the structure of the bar in light of recent case law of the First Amendment and antitrust implications for bar associations.”  Id.

Recent case law is Fleck v. Wetch, a Petition for Writ of  Certiorari to the United States Supreme Court.  Mr. Fleck contends it is a violation of his rights under First and Fourteenth Amendments to be forced to pay dues to the North Dakota Bar Association unless he opted in, (consented) to pay.

He filed his petition on December 21, 2017.  On June 27, 2018, Janus v. AFSCME was decided.

Mr. Fleck’s petition was granted on December 3, 2018. When it was, the first act of the United States Supreme Court was to vacate the lower court judgment and remand the case to the 8th Circuit for “further consideration in light of Janus v. State, County, and Municipal  Employees, 585 U. S. ___ (2018).”

Janus held a person could not be forced to pay money to the state, or a union contracting with the state, to secure a right to work. The practice violated the worker’s rights under the First and Fourteenth Amendments.

Fleck v. Wetch is not the only case the Supreme Court Workgroup will have to consider.  I too have a case; it is  Eugster v. WSBA and Justices of the Washington Supreme Court, No. 2:17-cv-000392-TOR, Eastern District of Washington. Appeal Pleadings.

Unlike the bar association in Fleck, the “bar association  (WSBA) is an integrated association of lawyers and others. The case is now before the 9th Circuit. It seeks to have the court apply the ruling in Janus to the facts of the case.

Soon Fleck v.Wetch will be considered by the 8th Circuit.  Additional briefing may be called for by the court.  Eugster v. WSBA and Justices is now before 9th Circuit.  The briefs have been filed. Appeal Pleadings. There will be a setting of the hearing in the next several weeks. The two cases will likely be decided near in time to the other.

Janus v. AFSCME will have a significant impact on integrated or unified bar associations.  When applied to such associations it is likely that the court will also overturn Lathrop v. Donohue and Keller v. State Bar of California. Why? Because of Janus, and because Janus overruled Abood v. Detroit Teachers Association, the mainstay of Keller which operates as support of the result in Lathrop.

Janus will also have a significant impact on the WSBA as it is today, that is, no longer an integrated bar association of just lawyers. A circumstance which brings into play the First Amendment jurisprudence of today.  Infringements of lawyer’s rights under the First and Fourteenth Amendments will not be allowed unless they pass exact or strict constitutional scrutiny.

Thoughts about the future:  (1) The Washington lawyer discipline system will be independent of the WSBA and the Washington Supreme Court.  (2)  The WSBA will become a voluntary association of lawyers only. (3)  Lawyers will be able to practice their profession without being compelled to belong to and pay dues to the WSBA.

Steve Eugster

WSBA # 2003

eugster@eugsterlaw.com

509-624-5566

 

* Practicing lawyer Spokane, Washington.  B.A. University of Denver 1966; J.D. University of Washington School of Law 1969.  Admitted to the Bar of the Washington Supreme Court, January 31, 1970.  Order of The Coif; Washington Law Review 1967-69, Managing Editor 1968-69.

[1] https://www.wsba.org/legal-community/committees-boards-and-other-groups/bar-structure-work-group

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Case IX Prefiling Motion of WSBA

WSBA Motion for Prefiling Order

The attorneys for the WSBA Defendants have filed a “prefiling” motion.  The purpose is to compel Eugster to prefile certain pleadings for court approval before they may be filed.

Trial Docket

  1. doc_61 Motion_Prefiling Order
  2. doc_62_Declaration Flevaris
  3. Doc_63_Response to Motion_Pre-Filing
  4. Doc_64_Motion to Disqualify
  5. doc_65_Order Denying Motion Disqualify
  6. Doc-66 Reply
  7. Doc_67_Order re No Disqualification
  8. Doc_68_Order re Pre-filing
  9. Doc_69_Notice of Appeal

9th Circuit, Opening Brief is due October 12, 2018

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Janus v. AFSCME

It looks like Janus v. AFSCME may have direct application to the issue of whether the Washington Supreme Court/ WSBA  (see General Rule 12.2) meets exacting scrutiny under the First Amendment. See also, Arnold Fleck v. North Dakota Bar Association (Wetch) petition for writ of certiorari.  Go here.

 

 

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Case 9 Judge Ricardo S. Martinez imposed a Pre-filing Order on me today.

This afternoon I received word that the Honorable Ricardo S. Martinez has imposed a pre-filing order on me.  Doc_68_Order re Pre-filing.

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Case XIX — WSBA Email Addresses

I have a hearing before Judge Ray Clary of the Spokane Superior Court.  It is on my motion the WSBA and Executive Director Littlewood be ordered to give me (a member of the WSBA) a data file of email addresses of WSBA members.  The basis for the motion is common law and the right of members of an association to obtain information of other members for association purposes.

The WSBA resists saying such records fall under GR 12.4 WSBA Access to Records, the “public records” section of the General Rules.  I have tried that before. 

Here is what I say:

  1. 2018_01_22_Motion_Summary_Judgment
  2. 2018_01_22_Brief_Support_Motion_Summary_Judgment
  3. 2018_01_22_Declaration_Eugster
  4. 2018_02_19_Reply Response to Motion to Dismiss_Final
  5. Motion to Dismiss 2018_07_02_
  6. Memo ISO Motion to Dismiss
  7. Order Granting Motion to Dismiss
  8. Notice of Appeal 2018_06_15_16_17_51

Motion for Attorney Fees, RCW 4.84.185 

  1. Motion for attorney fees and expenses (final) (1)
  2. Memo ISO motion for attorney fees and expenses (final)
  3. 2018_09_13_Response_Fees_Motion
  4. 2018_09_13_Response_Respondents_Motion for Fees — Corrected

 

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Case 9:  Robert Caruso and Sandra Ferguson v. WSBA, WAWD #2:17-cv-0003-RSM

Case 9:  Robert Caruso and Sandra Ferguson v. WSBA, WAWD #2:17-cv-0003-RSM

Issues:  Whether New WSBA 2017 violates freedom of non-association and expression (First Amendment) and right to procedural due process (Fifth Amendment) and the New WSBA has the power to discipline lawyers under the current Rules for Enforcement of Lawyer Conduct (ELC).

The trial judge dismissed the case (all of Plaintiffs’ claims) and ordered Steve Eugster to pay the WSBA over $28,000.00 in attorneys fees under Fed. R. Civ. P. 11(b).

There are two Appeals to the 9th Circuit Court of Appeals, Caruso v. WSBA   No. 17-55410 and Eugster v. WSBA No. 17-35529.

 Caruso v. WSBA   No. 17-55410

  1. Opening Brief  2017_09 20_Opening_Brief_Corrected
  2. Response Brief Not filed yet.  (Scheduling order of court said it was due on October 20,  2017.)
  3.  WSBA’s Motion to Consolidate

Eugster v. WSBA No. 17-35529

  1. Opening Brief 2017_10_31_Opening_Brief_WP

Trial Court — Caruso & Ferguson v. WSBA

  1. Doc_1 Complaintwashlawyerdefense.com/…/2017_10_31_Opening_Brief_WP.pdf
  2. Doc_4_First Amended Complaint
  3. Doc_8_Motion for Summary Judgment
  4. Doc_9_Declaration_SKE
  5. Doc  16 WSBA Motion to Dismiss
  6. Doc_18_Response to Motion to Dismiss
  7. Doc_19_Declaration of Stephen Eugster
  8. WSBA Motion for Fees (Not filed))
  9. Doc_21 Reply in Support of Motion to Dismiss
  10. Doc_28 Decision
  11. Notice of Appeal filed on May 12, 2017
  12. Doc_33  Decision on Rule 11 etc. Motion of Defendants

Appeals

The 9th Circuit affirmed the decision in each appeal Appellants have filed Petitions for Re-hearing Enbanc

Motion for Pre-Filing Order

The WSBA has filed a vexatious litigation motion seeking the requirement of a pre-filing order directed to Eugster.  Judge Matinez has not been disqualified, thus he will make the decision about the necessity of a pre-filing order.

  1. doc_61 Motion_Prefiling Order
  2. doc_62_Declaration Flevaris
  3. Doc_63_Response to Motion_Pre-Filing
  4. Doc_64_Motion to Disqualify
  5. doc_65_Order Denying Motion Disqualify
  6. Doc-66 Reply
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Washington Lawyer Defense Project

Washington Lawyer Defense is now Washington Lawyer Defense Project.

Efforts called “Washington Lawyer Defense” begun early on, are still on-going in one way or another.  Today, however, the efforts have expanded into a broader effort, a larger project. So, the name change.   Washington Lawyer Defense Project. 

For example, as the work progressed, other seemingly matters would arise.  E.g., Appellate judges who “retain” jurisdiction of the case before them.  The only jurisdiction had was appellate.  The efforts of the court of appeal had been completed.  When this happens, the Clerk of the Court issues a mandate to the trial court.  When the mandate issues, the trial court is again responsible for all aspects of the case.  Its original jurisdiction is no longer affected by appellate or revision jurisdiction.

You get the idea.  The effort of Washington Lawyer Defense will now be called what it has become, Washington Lawyer Defense Project.

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WSBA Members Need Email Lists and Other Information

RE: WSBA Member Address and Email Records

Dear Ms. Littlewood:
As you know, I am a member of the Washington State Bar Association. Indeed, presently I am a member in good standing with the WSBA. As a member of the WSBA, I am tied to the Fifth Congressional District. I am considering the possibility of running for a position on the WSBA Board of Governors.
The requests I make herein are made as a member of the WSBA. I am not writing to you as a member of the public. The public record laws do not apply to my request. As a member, I am entitled to your fulfillment of my request. See, e.g., McClintock v. Young Republicans of Philadelphia, 210 Pa. 115, 59 A. 691 (1904).
As Executive Director of the WSBA you have (under the WSBA Bylaws, Article III C 2 the following duties:
The Executive Director will keep records of all members of the Washington State Bar Association, including, but not limited to:
a. physical residence address furnished by the member;
b. principal office address, telephone number, and email address furnished by the member;
c. physical street address of any resident agent for the member;
d. date of admittance;
e. type and status of membership;
f. date of transfer(s) from one status to another, if any;
g. date and period(s) of administrative suspensions, if any;
h. date and period of disciplinary actions or sanctions, if any including suspension and disbarment;
i. such other data as the BOG or Washington Supreme Court may from time to time require of each member.

From you, in your capacity as Executive Director, I request in electronic format, the following information regarding my fellow bar association members – names, addresses, email addresses, and Congressional Districts.
Among the purposes for which I seek the records are the following:
(a) To communicate with my fellow members concerning the affairs of the WSBA Board of Governors, and especially those who members who seek to be elected to the WSBA Board of Governors from the Fifth District;
(b) To institute measures and advocate policies which may tend to promote the objects for which the corporation was organized;
(c) To prevent the affairs and property of the corporation from being used to further the private political ambitions of any member or group of members;
(d) To oppose the election or re-election of incompetent officials; and
(e) To aid in the election of officers who will be faithful to the best interests of the members, and who will administer the affairs of the association and control its property in accordance with the purposes for which the association was created. RCW 2.48.010.
The WSBA has a database which includes information about my fellow bar association members. It would be simple and non-time consuming for you to have the proper WSBA employee prepare an electronic data file of the information I can use on my Windows computer and in conjunction with WordPerfect Quattro or Microsoft Excel or some other Windows-based program.
I will pay the reasonable costs of the creation of the data file I ask you to have created and provided to me.
The records will only be used for the purposes above. I will not allow the records to be used for any commercial purposes. I will also make it possible for a member to opt out of any email mailings I might make to the member.
I look forward to the information in the format requested.

Sincerely,
s/ Stephen Kerr Eugster
Stephen Kerr Eugster
WSBA # 2003

 

 

2017_11_12_let_littlewood_email addresses

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Petition for Writs of Mandamus to Justices of Supreme Court of Washington

Steve Eugster has filed a case in the Washinton Supreme Court seeking writs of mandamus to each of the justices of the Supreme Court.

The Supreme Court has original jurisdiction in writs of mandamus against state officers. Wash. Const. Art. IV, Section 4.  The Court will have to create a temporary Supreme Court pursuant to Wash. Const. Art. IV, Section 2(a):

Article IV Section 2(a) SECTION 2(a) TEMPORARY PERFORMANCE OF JUDICIAL DUTIES.

When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court, and to authorize any superior court judge to perform judicial duties in any superior court of this state.

The issue is whether the Supreme Court is acting in violation of Wash. Const. Art. IV, 2017_11_06_McCleary_Docket_linked Section 4.  The court is exercising jurisdiction in excess of its “appellate jurisdiction.”

  1. Summons
  2. Petition Against State Officer
  3. McCleary_Docket_Supreme Court_Linked
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