The 9th Circuit has affirmed the trial court. Doc_18_1_Memorandum
Case 4 and Case 5
The issue in each case (Case 4 is in Superior Court, Spokane; Case 5 is in US District Court WAED) is whether the WSBA Washington Discipline System is constitutional, does it accord with requirements of procedural due process of law under the Fifth and Fourteenth Amendments.
The superior court judge, Judge Sam Cozza (now deceased), held after exercising some jurisdiction said the court did not have jurisdiction because the Supreme Court has power over the discipline system and that one must raise his constitutional concerns in the discipline process. But, under the state constitution, the superior court does have jurisdiction. The case is on appeal and has been on appeal for about a year. The case was “heard” without argument. The three judge Court of Appeals panel has yet to decide.
Case 5 was decided by Judge Tom Rice. He dismissed the case on res judicata grounds. His decision was wrong because he used the Judge Cozza order of dismissal on jurisdiction grounds as an order on the merits. The case has been appealed to the 9th Circuit. Briefs are in but the case has yet to be scheduled for argument.
Both cases should be overturned on appeal.
The Washington State Bar Association must be placed into a receivership. The Association known as the WSBA or state bar is a legal entity which was created by the Washington state legislature under the State Bar Act of 1933.
The Association is an “integrated Bar Association.” It is a legal entity with the power to sue and be sued and to purchase and sell assets and to pursue the objects of the Association. The objects are the regulation of the legal profession and the improvement of the quality of legal services. The members of the Association are, at any given time, lawyers who have been admitted to the bar of the Washington state Supreme Court. The members are the owners of the assets of the Bar Association.
The Bar Association is no longer able to pursue its objectives. The Association has been taken over by a new Association created by the members of the Board of Governors of the Bar Association. It has also been assumed by the Supreme Court.
The new Association and the Supreme Court are using the assets of the Bar Association. The Association has assets more than $12 million. The Bar Association, its assets, and the property rights of its members must be protected. A receivership is thus called for under the provisions of the Washington receivership laws, RCW Chapter 7.60.
I wrote to Washington State Attorney General Bob Ferguson on the 15th of February about the two associations, one a bar association, the other an association of legal service providers. Go here .
That was on the 15th, I repeat. Today I received a response; a letter from Jeffrey T. Even, Deputy Solicitor General.
My request was rejected. I have to say, I am surprised. Here is the letter from Mr. Even, go here.
It must be remembered that there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage than a new system. For the initiator has the enmity of all who would profit by the preservation of the old institution and merely lukewarm defenders in those who gain by the new ones.
I think the Supreme Court began expanding its power over the Washington State Bar Association of 1913 in 1987 or so when William S. Gates, Sr., in a letter to the Court, wrote about WA General Rule 12. I also think that at that time the Supreme in GR 12.1(b)22 said:
(22) Establish the amount of all license, application, investigation, and other related fees, as well as charges for services provided by the Washington State Bar Association, and collect, allocate, invest, and disburse funds so that its mission, purposes and activities may be effectively and efficiently discharged. The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable.
The power the court thinks it has is shown by this: “The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable.”
I do not know where the Court got this notion. This sentence cannot be characterized as a regulation. Instead, it is a power to say a fee is not reasonable and that it may be modified. This means the court can tell the bar association and its members what the fee should be. This might be permissible with regard to the fee as to the portion which sustains the disciplinary function. But the fee is not so limited. It may be used for other bar purposes, expression? Where does the court get the authority to impose fees for expression of bar members?
The extent to which the Supreme Court thinks it has authority over the Washington State Bar Association is not unrelated to the power the Supreme Court is attempting to exercise over entire state of Washington. See Eugster Law Office.
Case 5 is a US District Court, Eastern District, Washington. The primary issue in the case is whether the WSBA Washington Lawyer Discipline System violates Eugster’s right to procedural due process of law under the Fifth and Fourteenth Amendments.
Yesterday Eugster filed his Reply Brief.
All of the necessary pleadings in the trial court and the 9th Circuit may be found at the Case 5 page of this site.
The Washington State Bar Association, created by the Bar Act of 1933, came to an end on September 30, 2016 when the WSBA Bylaws were significantly amended.
During the afternoon of that day, the WSBA Board of Governors acted to re-form the bar association into an association which includes new mandatory members and mandatory dues payers. The members are lawyers, limited practice officers (APR 12), and limited license legal technicians (APR 28). The “new” WSBA will also operate discipline systems for the groups of new members.
This new association is referred to herein as “WSBA 2017″ or “New WSBA.” The previous association is referred to “WSBA 1933” or “Old WSBA.”