Lawsuits of the Year!

THE MORE THINGS CHANGE DEPARTMENT…

Seeking closure
Williams v. Seattle School District
Busing. Overcrowding. Unreinforced masonry. Racial tiebreakers for school assignments. And now (and again), school closures.

Crisis mode is nothing new to the Seattle School District. Through the years, it has been dragged into the courtroom—or threatened with legal action—over a mixed bag of issues. The school-assignment matter made it to the U.S. Supreme Court, which gave a thumbs-down in 2007 to using race as a final tiebreaker.

The district is headed back to the courtroom after closing several schools. The same thing happened three years ago. This time, an announcement was made in January that schools would be closed because of a $24 million deficit. Outraged parents appealed, accusing the board of making racially motivated decisions, undermining the local community and damaging enrollment.

 “It’s like what happened in 2006,” says school district counsel Shannon McMinimee. “We had two lawsuits filed over closures then. They were dismissed on procedural grounds.”

The initial progress of these new appeals seems to justify McMinimee’s optimism. One seems to be on hold; in another, a request for summary judgment was denied. A lawyer for parents in the latter case says the district violated its rules by not holding public hearings when closing Cooper Elementary. “The district is supposed to have a hearing when closing a school,” says Rick Aramburu with Aramburu & Eustis. In the Cooper case, the argument is over the definition of the word “school.”

“They say they didn’t need to [hold a hearing] because they’re not closing a school building, just eliminating a school,” says Aramburu. (The district moved its alternative Pathfinder program to Cooper.)
The courtroom showdown is set for the end of the year.
—Bob Geballe

WON’T YOU BE MY NEIGHBOR?

A Pharisee by Any Other Name …
Denny and Bernadene Dochnahl v. Inez Somerville Petersen
Whether it’s dimwit, fatso, pea brain or doofus, name-calling raises hackles. In Bernadene Dochnahl’s case, the slur was old-school: She got called a pharisee. Dochnahl sued the blogging name-caller—and lost.

First, a definition (from the online Urban Dictionary): Pharisee: “a hypocrite (as seen in the Bible); can also be used as a verb, such as ‘pharisyzing.’”

Dochnahl, a board member of the Renton Community Foundation, took offense when civic activist Inez Somerville Petersen used the word in her blog back in 2007. Dochnahl was a supporter of Renton’s business initiatives, which included developing high-end condos in low-income areas. This would have meant tearing down affordable housing. After Dochnahl was prominently featured in Renton Magazine, grass-roots agitator Petersen blogged, “What a haughty and proud Pharisee she is.”

Dochnahl and her husband, Denny, filed a defamation lawsuit for “false, vindictive, malicious, and defamatory statements”—not to mention the topper, “intentional infliction of emotional distress.” Dochnahl wanted damages, court fees and the seizure of that darn blasphemous computer.

Attorney Peter Buck, representing Petersen pro bono, says, “We found that the last time that a court has considered the word ‘pharisee’ defamatory was in the early part of the last century.”

The spat originated in Renton Highlands. Problem: If ya wanna develop the Highlands into High Rent, ya gotta condemn the homes of the folks who live there, and in 2005 the city began the process of declaring the neighborhood blighted.

“The city leaders couldn’t deny their plans for a Declaration of Blight,” notes Petersen, “because the Planning and Development secretary accidentally uploaded it to the city’s Web site, and I happened to copy the Web page before they removed it.” Petersen filed appeals and joined a lawsuit to stop the city. She suggested on her Web site that the slander/libel lawsuit filed by Dochnahl was a SLAPP—Strategic Lawsuit Against Public Participation—designed to curb her pesky activism.

The case came to a swift resolution in February, when King County Superior Court Judge Laura Gene Middaugh ruled that the suit against Petersen was frivolous. The judge noted that, while Petersen’s blogging comments were “clearly not flattering opinions about the plaintiffs … they are also clearly opinions.” And, according to the judge, “Calling someone a ‘pharisee’ is not grounds for a suit.” The ruling also required the Dochnahls’ attorney to pay $75,000 to Petersen’s lawyers, the Buck Law Group.

“Hopefully, the sanctions imposed will be a lesson for attorneys or parties that want to harass citizens legitimately exercising their right to participate at the local government level,” says Buck.

The Dochnahls, whose attorney did not return calls, are appealing.

The whole phariseein’ episode made Petersen split town—because she decided to come out of retirement and attend law school at Ave Maria School of Law in Naples, Florida (started by the founder of Domino’s Pizza) to represent people who can’t afford lawyers. “I made it through the first year of law school,” she says. “I thank the Dochnahls for this, because without that lawsuit, I’d still be just a grassroots community activist.”
—Michael A. Stusser

Turbulent Times
Bearse et al. v. Port of Seattle
Barely a year into operation, Sea-Tac’s third runway has developed a large pothole—the legal kind. In June, neighbors who live under and near the runway’s flight path filed a class action suit against the Port of Seattle. The plaintiffs—residents of Des Moines, Normandy Park and the city of Sea-Tac—could number as many as 10,000.

This brings to about 2 dozen the number of lawsuits filed over the runway. The only one still pending is a continuation of the grassroots movement that over the years has filed lawsuit after lawsuit—unsuccessfully—to prevent the runway’s construction, says Darrell Cochran with Pfau Cochran Vertetis Kosnoff, the firm representing the plaintiffs. “This is the last option in that opposition,” he says. (Given the runway’s lawsuit-laden history, don’t count on that.)

The suit accuses the Port of operating the third runway in ways that lower plaintiffs’ property values and entitle them to compensation. In effect, plaintiffs claim inverse condemnation, the “taking” of private property (plaintiffs’ homes) for a public purpose (the airport) without a formal legal proceeding.

Before the new runway began operating, says Cochran, plaintiffs were two to three miles from Sea-Tac’s flight path. “That’s different than having planes fly 1,500 feet above, rattling your house and waking you up at night,” he says, underscoring his point with an analogy: “Say I live in Seattle’s Green Lake neighborhood, several blocks from I-5. Then one day the Department of Transportation moves the interstate into my back yard.”

In addition to damages, the suit seeks significant changes involving the new runway. Plaintiffs want to bar planes that lack the latest anti-pollution and noise-reduction technology. They also want the runway shut down from 10 p.m. to 9 a.m.

No way the Port can do this without Federal Aviation Authority involvement and approval, counters Port spokesperson Perry Cooper. He claims the Port has one of the nation’s leading noise-reduction programs, adding, “We’ve been trying to be a good neighbor.”

Fasten your seat belts. There’s sure to be more turbulence ahead.
—Paul Freeman


CITY LIGHTS

Boom and Bust
Benjamin S. Schroeter v. City of Seattle; One Reel Productions
Talk about a party pooper. Who’d want to cancel fireworks on the Fourth of July?

There are those who think the “bombs bursting in air” may not be the most important element of our country’s independence. Fireworks pollute the atmosphere, litter the area, cost a bundle and scare the hell out of dogs each year. None of those were Benjamin Schroeter’s argument, however. An environmental activist, Schroeter filed a lawsuit in King County Superior Court attempting to stop the fireworks display at Gas Works Park, claiming the city failed to conduct a review in accordance with the state Environmental Policy Act. (You probably didn’t either, when you fired up your non-permitted backyard fireworks.)

In Schroeter’s defense, he was concerned with the particular venue, Gas Works Park, an old toxic-waste site. Once a coal-to-gas plant, Gas Works has been closed with various eco-scares since being turned into a park, including a five-month closure in 1984, a tar-removal project in ’97 and having underground clouds of benzene sucked out in 2000.

“I’m an old tie-dye hippie, so I like all the pretty colors like everyone else,” Schroeter says, “but this has nothing to do with fireworks. It’s about avoiding our exposure to toxic chemicals, and the city doing some kind of review.” With patriotic (and drunk) revelers sprinting all over Gas Works to get the best view of the explosive fireworks display booming over the lake, the concern was that the protective soil cap might be torn up, disturbing tainted sediment there from the 1950s.

Comedian Stephen Colbert probably explained the environmental argument best (yes, this grabbed national headlines), via his pseudo-outrage punditry: “I say an abandoned gas plant is the perfect place to shoot off fireworks. The pyrotechnics could last for weeks. Plus, thanks to the underground plumes of carcinogenic benzene, you don’t have to bring pot.”

This year, the show went on—and a good thing, too. With Ivar’s canceling its Elliott Bay display, it was the only show in town. The lawsuit ran out of time before any injunction could have been granted. According to the city, the annual fireworks show is exempt from environmental-review requirements.

This isn’t Schroeter’s first dance when it comes to Gas Works lawsuits: “Strange thing is,” Schroeter notes, “that the Gas Works lawsuit was a carbon copy of the [successful] Summer Night’s [concerts] lawsuit a few years earlier—which the city agreed to stop. People couldn’t drive on the grass or put grandstands there, I assumed for the safety [purpose] of not dislodging chemicals.” Partly in response to the 2006 lawsuit by a group Schroeter belongs to, Friends of Gas Works Park—who claimed concerns over noise, parking and traffic—the city canceled plans to move the popular concert series to the park when it could no longer be held at previous locations because of renovations and construction.

Christopher Williams of the Seattle Parks and Recreation Department told The Seattle Times, “Thousands of people use Gas Works every year without something going wrong. The reality is the other 364 days of the year, it functions as a park. And looking at fireworks in Seattle is a tradition.”

Next year, Schroeter may get his ducks lined up before the pyrotechnicians have a chance to blast them out of the water with 18 tons of colorful TNT. Gotta admit, it takes guts to ruin a city’s Independence Day tradition. Better be careful, or things might get explosive. Or not.
—Michael A. Stusser

When the Smoke Clears
Health Dept. v. Med Market Corporation
For some, Dec. 8, 2005 was a dark day. Well, to be fair, it was actually lighter, due to the fact that cigarette smoke was no longer allowed in Washington restaurants. Still, some miss the smoky environs of pool halls, dive bars and old-school Italian joints. Zaina Café owner Shaher Abuelkhair is among that group: He fought King County till the bitter end, closing his hookah bar only after health officials fined him $100 a day for violating the smoking ban. They finally sued him for offering his customers hookahs—Middle Eastern pipes with long, flexible tubes through which tobacco smoke is drawn after being cooled in a bowl of water or fruit juice.

While the population prospered with healthier lungs, for those establishments that specifically catered to smokers—including hookah bars—the ban was a death sentence. Though 99 percent of the hookah bars bit the dust, one rose above the ashes to make more ashes: Zaina. How’d they do it? By setting up a swank outside courtyard that seemed to follow the law. Though Initiative 901 prohibits smokers from lighting up inside, Zaina moved twice, finally settling in a spot on First Avenue in Seattle, where it built a large, comfortable outdoor patio for firing up hookahs in all sort of flavors: lemon, banana, pomegranate, crisp apple-mint.

“I got the place so I could legally use the courtyard,” Abuelkhair says, while serving up a slice of the best baklava in town. “But health officials, for some reason, don’t like me. … They started coming every week and fined me $100 a day for two straight years.”

The law says smokers have to stay at least 25 feet from business entrances. The lawsuit filed by the health department claims, among other things, that Zaina failed to post “NO SMOKING” signs at the entrance, that employees were seen smoking at a back door and that health officials repeatedly observed customers smoking. But there’s a secondary issue, making the smoking gun (or, in this case, courtyard) a moot point.

“Smoking is banned in public places and workplaces,” notes Scott Neal of King County’s Tobacco Prevention Program. “And in the case of the Zaina courtyard, employees had to pass through it, causing issues with second-hand smoke.”

Claims Abuelkhair, “For Seattle I am doing a favor. The 18-to-21-year-old age group, they have nowhere to go on weekends. They do drugs or drink and drive. With hookah, these boys socialize, have fun and learn about a new culture.” (For those who worry that youngsters might get hooked on hookah, the price makes it tough to be too addicting; at $20 per bowl, you’ll go broke before your lungs give out.)

Why won’t the county drop the suit? Abuelkhair ponders, then says, “I closed down [the hookah courtyard]; there’s no reason to continue. I was never trying to violate the law.”

A hookah hangs in the window at the Zaina location across from the Nordstrom Rack, but there’s no smoking in sight, only tasty gyros and tzatziki. Maybe the way to solve this apparent cultural and political conflict is to sit the parties down over a nice peace pipe and share a hookah—25 feet away from any retail entrance, of course.
—Michael A. Stusser

Say Cheese
Todd et al. v. City of Aberdeen et al.
It’s kind of like a game of Monopoly, but with a twist: Pass “Go” at the wrong time and not only do you not collect $200, you owe about a hundred bucks. In this game, “go” is a camera-monitored intersection. If you run a red light, your license plate is automatically photographed and the registered owner of the car is mailed the incriminating photos and a ticket.

Cities across the state are finding the game irresistible. Seattle, one of 22 Washington municipalities to use the technology, has installed 30 red-light cameras at 21 busy intersections since the state Legislature approved their use in 2005.

It’s not a bad gambit—Seattle has collected upwards of $5 million in fines. But some of the players say the cities are cheating, and they want their money back. David Breskin (Breskin Johnson & Townsend), who represents complainants in a statewide class action suit, says the 22 cities are bending the rules. “The Legislature made clear the maximum extent of fines [no more than a parking ticket], but the cities have set fines in excess of that; the notices of infractions don’t meet the proper form, and due process isn’t being followed,” says Breskin. The owner of the car is ticketed, no matter who was driving, he says.

Breskin notes that the program was supposed to be revenue-neutral, but says “some of the contracts [with camera manufacturers Redflex Traffic Systems and American Traffic Solutions] created an incentive by generating revenue.”

Seattle City Attorney Tom Carr says it’s all a question of interpretation. “As a parking violation, we thought the amount should be set at what a policeman would ticket you at. The maximum for that is $250, and we issue tickets for $124.” Carr maintains the cameras weren’t bought with the idea of raising revenue. “You usually get a big bump in revenue in the first year, but then it drops off after that, as people figure it out,” he says. “The city’s goal is to stop people from running red lights, not generate revenue.” To that end, Seattle, at least, publishes a list of the photo-op intersections (www.seattle.gov/police/programs/technology/redlight.htm).

A hearing is set for January 2010 in front of U.S. District Court Judge Coughenour.
—Bob Geballe

BUSINESS BEAT

Try the YMCA Instead
In Re: Expedia Hotel Taxes and Fees Litigation
Click on Expedia’s Web site and you’ll spot the seductive sales pitches. “Best Deals Delivered.” “Save on Top Travel Deals.”

But according to a class action filed in King County Superior Court, for several years the Bellevue-based Internet travel giant hid a dirty little secret: billing that made it virtually impossible for consumers purchasing hotel rooms through Expedia to understand how much they were paying in taxes and service charges.

Here’s how plaintiffs say it worked: Expedia bought rooms from hotels at wholesale, selling them to consumers at marked-up retail, plus extra for taxes. Expedia then paid the hotels, which were legally liable for the taxes, enough to cover them. From 2001 to 2003, however, Expedia is accused of calculating these payments on the wholesale price, charging consumers taxes on the retail price, and pocketing the difference.

Beginning in 2003, Expedia allegedly added a new twist: padding bills with a service fee, and bundling these fees and taxes into a single charge. Consumers say they couldn’t tell how much they were paying for each.

The alleged scheme is history, thanks to a settlement in July. If a judge approves the deal, Expedia will shell out $123.4 million in cash and hotel purchase credits to as many as 4 million customers who purchased hotel rooms from 2001 through 2006. Plus $10 million for plaintiffs’ lawyers.

Steve Berman with Seattle’s Hagens Berman Sobol Shapiro, the lead firm representing plaintiffs, says, “I’m pretty sure it’s the largest consumer settlement in Washington state history.”

Expedia, which maintains it did nothing wrong, says it settled to avoid costly and time-consuming litigation.
—Paul Freeman

What the Dickens?
Barnett et al. v. Wal-Mart Stores, Inc.
Altered time records. No rest or lunch breaks. Employees locked in stores at night; forced to continue working after they clocked out.

Something out of Dickens? Nope. Nothing fictional about these practices, according to a class action lawsuit filed against Wal-Mart by Seattle’s Terrell Marshall & Daudt. The complaint, filed on behalf of former and current Wal-Mart employees, alleged the retail giant, which employs about 15,000 people in Washington state, treated hourly employees this way for years.

When Wal-Mart employees began telling attorney Beth Terrell their claims of altered time reports, “at first I didn’t believe it,” she says. But after Terrell filed the lawsuit in 2001, she forced the company to turn over its time records.

“The whole trend and pattern was to keep people from [being paid] for overtime,” she says. The complaint claims that Wal-Mart handed out bonuses and created other financial incentives to encourage managers to keep payroll at bare-bones level.

Under a settlement reached in July, Wal-Mart agreed to pay $35 million to plaintiffs: hourly employees who worked for Wal-Mart in Washington state at any time from September 10, 1997 through February 3, 2009. The class could number as many as 90,000. Wal-Mart also agreed to pay $10.5 million in legal fees and to implement technology (much of it already in place) to prevent abuses.

Terrell speculates that Wal-Mart settled because they’d recently been hit with huge damages awards in cases in two other states—nearly $200 million in Pennsylvania and $172 million in California. Commenting on the settlement in a news release, Wal-Mart spokeswoman Daphne Moore said the allegations “are not representative of the company we are today. Our policy is to pay associates for every hour worked and to make rest and meal breaks available.”
—Paul Freeman

Betcha Can’t … Or Can You?
Internet Community & Entertainment Corp., Betcha.com v. State of Washington and the Washington State Gambling Commission
Give Seattle businessman Nick Jenkins credit for brass cojones in his ongoing fight with the state of Washington over online gambling.

He and the state are facing off before the state Supreme Court over his online betting forum, Internet Community & Entertainment Corp., a.k.a. Betcha.com. Jenkins calls it the “world’s first honor-based betting exchange,” modeled on eBay. The Web site, currently shut down, paired bettors to gamble on anything from sports to the price of rice in India. The company collected a fee for each bet booked. But the loser could click on “I refuse to pay.”

If Jenkins wins, there will be a hole in the state’s ability to enforce its prohibition against online gambling. Jenkins says he’s ready to exploit that narrow opening—OK’d in his case by the state Court of Appeals—and revive what he brashly predicts will become a multibillion-dollar business.

If the state wins, Jenkins could go to jail, possibly for much more than the few days he spent behind bars in Louisiana after an undercover police officer there booked a couple of bets on the Web site. Jenkins negotiated his way to freedom.

In February, Jenkins won a stunning appellate victory when the state Court of Appeals reversed a lower court and ruled that Betcha.com had not violated the state’s online gambling ban because it allowed bettors to welsh on their wagers.

In her dissent, Judge Elaine Houghton said the ruling would result in “absurd consequences,” including having bets being collected through “unlawful means.”

An allusion to broken kneecaps, perhaps? Jenkins said that would be impossible, because his company kept the identities of the bettors confidential. “If you want to collect a $20 bet unlawfully, I don’t know how you’d find out who the person is,” he said.

State Attorney General Rob McKenna and the Washington State Gambling Commission—which shut down the fledgling Betcha.com in June 2007, prompting Jenkins to sue the commission—asked the state Supreme Court to reverse the appellate decision. The high court agreed to take the case.

“No reasonable reading of the statute allows it to be avoided by what is little more than a ‘wink’ acknowledging the possibility of non-payment,” wrote Jerry Ackerman, senior counsel in the AG’s office, in his brief to the Supreme Court.

If the state wins, says Jenkins, 40, who now manages commercial real estate, “I have no doubt they’ll arrest me.” Ackerman doesn’t deny that possibility.

Meanwhile, state Sen. Margarita Prentice, D-Renton, is trying to close the Betcha.com loophole. Her bill last session died in the House. She’s expected to try again.
—Harris Meyer

SURPRISE ENDINGS

He Said? She Said?
In the Estate of Kitty S. Oakes
Some stories are so strange we couldn’t make them up.

Take the saga of Spokane band leader Billy Tipton, the woman who was ostensibly a man until a paramedic at the scene of the musician’s death told the family that dad was really a she. One son was so embarrassed, he changed his last name; another angrily left town.

 As scandalous as it all was, that would have been that—if Tipton’s former wife, Kitty Oakes, hadn’t died without a will in 2007.

The latest chapter in the strange tale not only revealed that Tipton’s three adopted sons weren’t legally adopted, it also prompted a Washington Superior Court judge to issue an unprecedented ruling on inheritance rights.

Washington judges have typically rejected inheritance claims of children who were not legally adopted. But Superior Court Judge Michael Price found in their favor by relying on the doctrine of equitable adoption—adoption’s equivalent of common-law marriage. The court said the three men were Oakes’ rightful heirs because they were raised as Tipton and Oakes’ sons, even though no legal proceedings formalized the relationship.

The Tiptons may have appeared to be a happy, all-American family, but things turned ugly early, according to a story in Spokane’s Spokesman-Review. The paper said the two oldest boys left home while teens because Oakes began beating them while Tipton was at work. After the bandleader left her and joined the boys, Oakes threw 11-year-old William out as well.

Oakes sought William Tipton’s assistance years later, when he was an adult, to help care for her house, but she accused him of stealing from her and Adult Protective Services evicted him. During the inheritance trial, William Tipton blamed the accusations on the mental condition of Oakes, who suffered from dementia and cancer, according to the Spokesman-Review.

Considering that Spokane attorney Lynn St. Louis had to hire an investigator to find William Tipton’s brothers, John Thomas Clark and Scott L. Miller, it’s unlikely the other two knew about Oakes’ death. In most cases, such a long estrangement would have undercut their inheritance rights.

Once the judge heard the facts, he changed his initial inclination, saying, “The court didn’t [at first] grasp the incredible life ramifications the Tipton children had dealt with … They just tried as best they could to live with the hand they were dealt.”
—David Volk

Open Wide, Bossie
Michael v. Mosquera-Lacy and Bright Now! Dental Inc.
Anyone who’s had a bit of Old Testament training knows the jawbone of an ass can kill 1,000 men. But it took an Olympia periodontist to learn that a human jaw made of cow parts can bring a six-figure legal settlement.

At least, that’s what happened after Dr. Betsy Mosquera-Lacy at Bright Now! Dental Inc. grafted cow parts into the mouth of Mystie Michael, who had told Mosquera-Lacy she wanted a human graft because “she didn’t like the idea of having a cow bone in her jaw,” says her attorney, Lincoln Charles Beauregard with Connelly Law Offices in Tacoma.

The surgery didn’t quite work out that way. Not only did she end up in the emergency room after a complication, says Beauregard, she later learned that Mosquera-Lacy had used cow bone. The periodontist said she ran out of human bone.

Michael sued Mosquera-Lacy and the dental practice for negligence, medical battery and Consumer Protection Act violations. She dropped the negligence and medical battery claims after settling with the periodontist for a sum that Beauregard described as being “six figures.” But she continued to pursue the case against Bright Now!. Although the appeals court found in her favor, the state Supreme Court reversed the decision, saying, in part, that Michael’s case failed to show that there was a “deceptive act or practice that ... impacts the public interest.”

Bright Now! attorney Christopher Tompkins, with Betts Patterson Mines, says, “It was not a case in which my client should be liable [because] it was so unusual … Basically, no one else was likely to be injured in a similar way.”  L&P
—David Volk