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COU RT O F APPEA LS DIVISION IIFOR THE STATE O F WASHINGTON

ARTHUR WEST,Appellant

THURSTON CO UNTY , MICHAEL PATTERSON,LEE, SM ART, COOK, MARTIN and PATTERSON,

Respondents,

Appeal of the rulings of the H onorable Toni Sheldon,of the M ason C ounty Superior Court

6 REPLY BRIEF OF APPELLANT WEST

AR THUR W ESTOlympia, Washington 9850 1

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TABLE OF CONTENTSI. TABLE O F AUTHORITIES.. .......................................................................... 111. PRELIMINARY OBJECTION TO APPEARANCE...................................... .2

........................................................................................D. NTRODUCTION - 3

VI CONCLUSION............................................................................................. 16

TABL E OF AUTHORITIESCASES

Barfield v. Seattle, 10 0 Wn.2d 87 8, 676 P.2d 43 8, (1 98 4) ...Bushman v. New Holland Div., 8 3 W n.2d 429, 4 34, 5 18 P.2d 1078 (1 974) .Chilcot v. Washington State colonization Board 45W ash. 148, 88 Pac. 1 13

Felix A. Thillet, Inc. v. Kelly-Springfield Tire Co., 41 F.R.D. 55 (D.P.R. 19 66) .Harr is v . Nelson, 394 U.S. 2 86, 22 L. Ed. 2d 281, 8 9 S. Ct . 1082 (196 9)Hickman v. Taylor , 329 U.S. 495, 50 7, 91 L. Ed. 451 , 67 S. Ct . 385 (1947):Honan v. Ris torante I tal ia , 66 Wn . App. 262, 8 32 P.2d 89, (1992)Lurus v. Bristol Laboratories, Inc. , 89 W n.2d 632 , 5 74 P .2d 3 9 1 (1 978)Roderick Timber v . W ilapa Harbor Center , 29 W n. App. 3 11, 62 7 P.2d 1352 (198 1)Weightman v. Washington, 1 Black(U.S.) 39,STATUTES AND RULES

L a w s of 2 0 0 7 , Chapter 391RCW 3 6 . 3 2 . 2 0 0

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RCW 42.56.290C R 2 6 ( b ) ( l )C R 3 3 (b )C R 6 ( b)C O N S T I T U T I O N A L P R O V IS I ON S , E T C .Article I , section 1 of the Washington State ConstitutionArticle I, section 5 of the Washington State ConstitutionEncyclopedia o f English and A merican L aw, 417 , et sequ..Restatement (Second) of Agency 26 8, comment C (1 9 5 8 )4 L. Orland, Wash . Prac., Rules Practice, 530 5 (3d ed. 198 3)

PRELIM INARY OBJECTION- NO SINGLE RESPONDENTHAS PROPERLY APP EARE D IN THIS APPEAL

As a preliminary c onsideration, appellant requests that notice be taken of the complete failu reo f respondents Lee Sm art or Michael Patterson to argue or file a brief in this matter. Th e o nl yrespondent's brief filed is entitled and submitted solely on behalf of Thurston County, without anyreference on its face to L ee Sm ar t or Mr. Patterson as respondents at all . This default in any properappearance or attempt at argu ment by Lee Sm art and Patterson removes all question as to the proprietyof this court granting a ll relief requested by plaintiff again st these non-a ppearin g respondents.

Then there is the undisputed evidence in the record that counsel Patterson is not legallyauthorized to appear for Thursto n County or la w hl ly appo inted under the mandatory terms of R CWTitle 36.32. 20 0. Neither th e C ounty nor M r. Patterson have controverted clear evidence in the recordappearing at C P 54-58 that Mr . Patterson is not la w hl ly au thorized to represent Thurston Coun ty eitheras a Deputy Prosecutor or a lawful judicial appointee und er the mandatory terms of RCW 3 6.32 .200 .

Even without consideration of the conflict o f interest posed by Patterson representing Thurs tonCounty when he is also properly a respondent, Thursto n Co unty , as a public entity, may not properly

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represen t the interests of private parties such as Patterson o r Lee Sm art. Faced with these defaults, therelief requeste d against these non-appearing respondents should be granted by this Court.

Based up on the com plete failure of any of the respondents to appear in any lawful ma nne r, thebrief submitted by Mr. Patterson for the County in violation o f RCW 36.32.20 0 should be stricken, andthe relief requested by appellant should be granted. Under these circumstances it is difficult even tocrea te apro pe r nomenc lature for respondent, which will henceforth be denominated "Patterson C oun ty".

INTRODUCTION

This c ase presents the issue of whether the public 's interest in open, accountable governm entincludes disclosure and a n accounting ofattorney invoices for counsel representing a public agency su chas Thurston County, and whether it was appropriate for the Mason County Superior court to denydisclosure of Hund reds of pages of such inv oices, o n an all or nothing basis, sight unseen, withou tinspection or any pretense of review, based upon the alleged preclusive effect of an order issued in adifferent proceed ing entirely in which the appellan t was not afforded an opportunity to participate.

I t is apparent f rom the PRA, the Laws of 20 07 -an d from the very exemption of R C W42.56.2 90cited by the C ourt and the pretrial discovery an d evidence rules it purports to incorporate-thatthe guiding policy of both the PRA a nd the pretrial discovery process is to insure broad disclosure ofinform ation subject to only narrowly construed specific claim s of privilege.

In ruling that the Broyles invoices were privileged in their entirety under RCW 42.56.290without any citation of specific exemption or a ny consideration whether it was appropriate, the Su periorCourt completely abdicated its responsibility und er both the PR A and the discovery rules to promotebroad discovery ofinform ation and adjudicative facts and to allow exemptions to this public policy onlyupon specifically asserted, carefully weighed, an d na rrowly construed applicable claims of privilege.

W hile an "all or nothing" ruling based upo n the determination of a different magistrate in adifferent proceeding is possibly convenient for the Court, the public and litigants are not well servedwhen the actual determination to grant or deny disclosure o f public records is made in a n artificial exparte manner without a meaningful opportunity to participate or arg ue before the court where the actualdeterminative and preclusive ruling is made.

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In reg ard to the issues of the propriety of private counsel such as Mr. Patterson a ttem pting tostraddle the dividing l ine between public and private representation, i t is apparent from thecircums tances of this case that the eg regio us conflicts of interest and contravention of sound pu b li cpolicy stemm ing from Mr. Patterson's conflicting roles ofp ub lic Disclosure Officer, Ex officio D e f ac toProsecu ting Attorne y, private corporate counsel and ind ividual respondent profiteer are so con trar y tosound government as to render his representation a travesty. While private corporate counsel areallow ed to contraven e te clear terms ofla w in order to usu rp legit imate governmental functions in re ga rdto disclosu re o f records, the intent of the PR A that the people retain control of the agencies that s er vethem h as already becom e meaningless. In this case, the selfsame individual was allowed to pose a s aCounty Prosecutor to rack up a multimill ion dollar bil l , then pose as a disclosure officer to denydisclosure, an d then pose as a private cou nsel representing the Co unty to again to seek sanctions fro ma cit izen under color of County authority for having the temerity to seek to inspect the invoices.

In this case the legal fict ion presented by Patterson C ounty strikes at the heart of the inten tionof the Act .

(T)h e people insist on remaining informed so that they may maintain control over theinstrumen ts that they have created. Th e public reco rds subdivisions of this chapter shallbe l iberally construed an d i ts exemp tions narrowly construed to prom ote this publicpoli cy . RCW 42.56 .030Mr. Patterson's actions and posit ion in this case reject the very fundamental precepts that

separate our demo cratic republic from those of a totali tarian regime. W here private corporations an dthe public State merge, there is no democr acy, but o nly totali tarianism and fascism. Three hun de rdYe ars Ago, Lois the XIV stated "L'etat c'est Moi". In 20 07 , Respondents maintain "L'etat c'est Mike".Th e statement is just as offensive now as i t w as 3 centuries ago. The County is not properly M icha elPat terson, and M ichael Pat terson is not properly the County-especial ly not wi thout a lawful app ointmentunde r R C W 36 . 32 . 290

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A R G U M E N TP A T T E R S O N C O U N T Y P R O C E DU R A L

I S S U ES C O N T R O V E R T C L E A R L E T T E R O F C R 5 4 .On th e very first page of its response bri ef , in conformity with a pattern of misrepresenting the

Cou rt Rules on appeal1 , Patterson County attempts to raise completely spurious procedural iss ue sregarding an interlocutory order of March 12 . This argument, that appeal ofth e March 12 order is t imebarred since Appellant did no t file an appeal within 3 0 days o fMa rch 12, is completely and shamelesslyat varian ce with the clear lang uag e of CR 54 , which states in pertinent part,

W hen mo re than on e claim for relief is presented in an action,.. or when mu ltipleparties are involved, the court ma y direct the entry of a final judgment as to one or morebut fewer than al l o f the claims or parties only upon an express determination in thejudgm ent, supported by w ritten findings, that there is no just reason for delay and upo nan express direction for the entry of judg me nt. ... n the absence of such findings,... nyorder or other form o f decision, however d esignated, which adjudicates fewer than allthe claims or the rights and liabilities of fewer than a ll the parties shall not terminate theaction as to any of the claims or parties ...Since the March 12 ord er did not resolve all claims as to all parties, it was not a final orde r

under CR 54, and the appeal of the March 12 decision was properly combined with the appeal of thefinal order issued on M arch 26 . This second attempt by Patterson County to attempt to misrepresent the

clear language of the court rules is a waste of this courts t ime and resources for which a m otion forsanctions would be approp riate if appellan ts main co ncern w as not for disclosure of records.

Respondent Patterson Co unty does not and can not cite to any Cou rt Rule that stands for theproposition that the April 25 Notice o fA pp eal wa s untimely or improperly filed in any way, shape, ormanner. Their repeated spurious and pedantic pleadings do not relate to any material issue and aresubmitted for the improper purpose o fun reas ona bly protracting a nd complicating this case without anymeritorious basis.

Patterson County attempted to argu e that RAP 8.1 prohibited a narrative transcript in allcases unless the transcripts were unavailab le. Th is argum ent was rejected by the court, but notbefore appellant was required to pay for an unn ecessary transcript.

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A P R I L 2 5 A P P E A L O F M A R C H 2 6 F IN A L O R D E R W A S T I M E L Y A N D P R E S E R V E D A L LI S SU E S N O T W I T H S T A N D I N G R E S P O N D E N T S IN C O M P R E H E N S IB L E , I N T E R N A L L YI N C O N S I S T E N T , A N D S P U R I O U S A RG U M E N T R E G A RD IN G F I N A L IT Y O F M A R C H 1 2O R D E RRespondents own brief even acknowledges that the interlocutory order of March 12 was t ak en"reserving. . The public records act c la im against Thurston County" CP 61-62." No CR 5 4findings authorizing im me diate app eal were made. As such, by respondents own citation, and the cle arlanguage of C R 54 , the Marc h 12 order was interlocutory in nature and any appeal of its terms w ou ldhav e been impossible to begin with until a final order was entered.

RA P 2.2 authoriz es and requires appea l to be taken of the final order resolving all issues, in thiscase, the order of March 26, which resolved all claims against all parties in a final order. SinceRespondents admit an ap peal was taken in a timely manner of the March 26 order, there is no bon a fidedispute that all of the issues are properly before the court. Ag ain, while this blatantly false arg um en tpresents a proper c ase for terms, appellan t seeks to have the court concentrate on the substantive issu eof disclosure of the recor ds at issue.P A T T E R S O N C O U N T Y ' S U N D I S P U T E D F A C T S A R E N O T U N D I S P U T E D O R F A C T S

Just as M r. Patterson does not properly represent the County a nd the Cou nty does not properlyrepresent Lee-Smart or Patterson, respondents "undisputed facts" are not undisputed or facts.Respondent asserts ...

"The Coun ty only possesses attorney fee invoices related to the first $250 ,000 .00 ofthe representation, which is the insurance deductible, an d any invoice bey ond thisamount is not in the County's possession and is therefore not the Countys' publicrecords." (sic)This is a completely m isleading representation of both fact and law. S ince Mr. Patterson is an

integral portion of resp ond ent Paterson Coun ty, and since he is the one that issued or directed thepreparation of the invoices to begin with, there can be n o dispute that Thu rston C ounty, through its defacto officer Michael P atterson is in possession of the invoices that he, himself, sent out. As an ag ent

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of the principal, Patterson is under the direction and control of the County, and so are his invoices,under the clearly established doctrine of Agent and Principal See Weightman v. Washington, 1Black(U .S.) 39 , See Title Agency I, Encyclopedia of English and Am erican Law , 41 7, et sequ. Ch ilc otv. W ashington State colonization B oard 45 Wa sh. 148 , 88 Pac. 1 13.

As a gene ral rule, the know ledge of the agent will be imputed to the principal wh ere it isrelevant to the agenc y and the matters entrusted to the agent. Restatement (Second) of Agency 2 6 8 ,comment C (1958 ) , ci ted in Roderick Timber v . Wilapa Harbor Center , 29 W n. App. 3 11 ,6 27 P .2d1352 (1981)

. Therefo re, it is beyond an y possible arg um ent that the knowledge and invoices of Pa tte rso nare known and controlled by the County.

Th e aun dice d lega l shell game played by Patterson Cou nty to evade responsibility for invoic essent out by the sam e individu al who asserts to lack access to them illustrates better than an yth ing theimproper and abusive nature of the whole concept of Patterson County. A public entity such asThurston C ounty should not be able to veil i ts public h nct ion s and records behind a duplicitous cloakof falsely claimed p rivate status.

M ichael Patterson responded to appellant W est 's original public records request, despite thefact that the request was directed to the County. Michael Patterson prepared or directed thepreparation of the invoices in question. Michael Patterson openly acted as a de facto officer ofThurs ton Co unty subject to its direction and control. For Mic hae l Patterson to falsely assert th at he,as the representative Thur ston Cou nty does not have the invoices that he himself prepared goes beyon dmisrepresentation into actual d eliberate deception und er the guise o fa transparent and fraud ulent legaltechnicality. As acting de facto public records officer for the Cou nty, M ichael Patterson canno t bald-facedly maintain that he does not have his own invoices or re h s e to disclose them based upon h is lackof control over them. It is significant to not in this vein that Mr, Patterson is attempting to argue in

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ano ther case presently before this Court that Thurston C oun ty Lacks authority to Control even the d u lyelected Coun ty prosecutor Ed Holm. T his pattern ofat tempted evasion ofpu bl ic responsibil ity su bv ertsthe de mo cratic system and shou ld be rejected by this Co urt .

T H E " A L L O R N O T H IN G " R U LI NG O F T H E T R I A L C O U R T D EN IE D P U B L I CD I S C L O SU R E W I T H O U T AN Y R E A SO N A BL E R E V I E W O R C O N S ID E R A T I O N O F A N YS P E C IF I C E X E M P T I O N

This cas e concerns the propriety of a M arch 2 6 rul ing denying disclosure of Thurston Co un tyattorney fee invoices. The record in this case demonstrates that the "a ll o r no th ing" analysis theSupe rior Cou rt applied on Marc h 26 was incorrectly based solely upo n the perceived preclusive effec tof a ruling made "without prejudice" in a separate case that the appellant had no notice of, o ropportunity to appear in.

Th e t ranscript ofth e March 26 hearing, (and respondent Pat terson County 's exhibi ts) show thatthe tr ial court based i ts rul ing ent irely upon a January 12 ,2 00 7 order in Mason C ounty cause No . 0 4 -2 -004 11-3 without any independent analysis at al l . As the transcript states on Page 1, line 6- P a g e 2l ine 14 ..

T h e C o u r t s ee s t h a t R C W 4 2.5 6.2 90 r e a d s : r e c o r d s t h a t a r e r e l e v a n t t oa c o n t r o v e r s y t o w h i c h a n a g e nc y is a p a r t y , b u t w h i ch r e c o r d s w o ul d n o t b ea v a i la b l e u n d e r t h e r u l e s o f p r e t r i a l d i s c o v e r y f o r c a u s e s p e n d i n g in t h e S u p e r i o rC o u r t s a r e e x e m p t f r o m t h is c h a p t e r.

A n d i n a p p l y i n g th is , m o r e o f t e n t h a n n o t w e 'r e l o o ki n g a t a c a s e w h e r ew e ' re t r y i n g t o g u e ss w h a t a t r i a l j u d g e w o u l d d o i n a n o t h e r ca se . We d o n ' t h a v et o d o t h a t h e r e . T h e r e w as a m o t io n t o c o m p e l th o s e e x ac t r e c o r d s t h a t a r e b e i n ga s k e d f o r t o d a y a n d w e k n o w w h a t t h e t r i a l j u d g e d i d w i th t h a t m o t i o n ; h e d e n i e di t. A n d s o, i t f it s s q u a r e l y w i th i n t h e e x e m p t i o n u n d e r R C W 4 2.5 6.2 90 , a n d t h eC o u r t will d e n y t h e r e q u e s t .T h e f a c t t h a t t h e g o v e r n m e n t a g e n c y h a s c h o s e n t o d i sc l os e s o m e o f t h o s er e c o r d s d o e s n 't w a iv e t h e t h e b a l a n c e o f t h o s e r e c o r d s , a n d t h e y m a y d i s cl o se a sm a n y o r a s fe w a s t h ey w ish . T h e y a r e n o t r e q u i r e d t o d i s cl o se a n y u n d e r t h a texempt ion .

W i t h r e g a r d t o t h e r e q u es t f o r a n i o n c a m e r a h e a r i n g ... h e C o u r t s ee s n oreason fo r an in ca m era rev iew in th i s pa r t i c u la r case. ..I t's bas ical ly a n a l l o rn o t h i n g c a s e a n d t h e c o u r t f i n d s t h a t i t a l l fa l ls w i t h in R C W 4 2.5 6.2 90 .

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By basin g i ts "all or nothing" ruling upon the preclusive effect of a determination ma de in adifferent case that Appellant West was not a party to, the Court on M arch 2 6 failed to afford a ful l andfai r chan ce for adjudicat ion o fthe appl icat ion ofth e exempt ion-or any actual independent considerat ionof the prop riety of the exemption at al l .

By ruling on a n "All or nothing" "Blind justice" basis, the Court failed to construe exe mp tionsnarr ow ly or require any particular exemption to be asserted, since it excluded the entirety o f thereques ted records from the pub lic's oversight and review without any consideration of any partic ularclaim of privilege.T H E " A LL O R N O T H I N G " M I N D S E T O F T H E T R IA L C O U R T O V E R B R O A D L YC O N S T R U E D A N E X E M P T I O N IN A M A N N E R A T V A R I A N CE W I T H T H E R U L E S O FP R E T R I A L D I S C O V E R Y T H A T R E Q U I R E B R O A D D I S C O V E R Y W I T H O N L YN A R R O W E X E M P T IO N S

The Court ' s "Al l or nothing" appl icat ion of the exempt ion contained in RCW 42.56.290incorrectly created a broad exemption where n one actually exists in the rules of pretrial discove ry

The t r ial Court correct ly ci ted R CW 42.5 6.29 0 to state:"(R)ecords that are relevant to a controv ersy to which an age ncy is a party, but whichrecords would not be available under the rules ofpr etrial discovery for causes pendingin the Su perior Courts ar e exempt from this chapter."However, the C ourt com pletely failed to conduct a ny ac tual ana lysis of the rules of pretrial

discovery it based i t rul ing upon or provide any di rect basis why they might apply. This i s all the m oreobjectionab le in that the pretrial discovery rules which were co nstrued to limit disclosure ar e actua llya broa d m andate co mpelling disclosure absent the assert ion of any l imited specific statutory exem ption.

As the Supreme Court ruled in Barfield v. Seat t le , 10 0 Wn.2d 8 78 , 676 P .2d 438 , (1984 ) ...CR 26 has been labeled as the "Gene ral Provisions Governing Discovery." Section (b) statesas follows:

(b) Sco pe of Discovery. Unless otherwise l imited by order o fth e court in accord ance with these rules,

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the scope ofd iscov ery is as follows: The general rule addressing the scope of discovery is CR 2 6 (b )( l) ,which states:

" Parties may obtain discovery regarding any matter, not privileged, which isrelevant to the subject matter involved in the pending action . . . including theexistence, description, nature, custody, condition and location of any books,docum ents, or other tangible things ... It is not gro und for objection that the informationsough t will be inadm issible at the trial if the information sought ap pears reasonablycalculated to lead to the discovery of admissible evidence.This rule is designed to permit a broad scope of discovery. Bushm an v. New Holland Div. , 83

Wn .2d 4 29 ,4 34 ,5 18 P .2d 107 8 (1 974) . See Lurus v . Br is to l Labora tor ies , Inc . , 89 W n .2d 632 , 5 74P.2d 39 1 (19 78); 4 L. Orland, Wash. Prac. , Rules Pract ice, 5305 (3d ed. 1983)." As the Court furthernoted ..."The threshold issue is whether the (records) ar e privileged. "Privilege, within the mea nin g ofthe Rule, is privilege as i t exists in the law of evidence." 4 L . Orland, at 23." CR 33(b) states tha t:

"[i]nterrogatories may relate to any matters which can be inquired into under Rule6 (b ) , . . ." The Washington rules were patterned after the Federal Rules of CivilProcedure which were established to permit broad discovery. Harris v. Nelson, 394U.S. 286, 22 L. Ed. 2d 28 1, 89 S. Ct . 1 082 (196 9). Th e only limi tat ion is relevancyto the subject ma tter involved in the action, not to the p recise issues fi-amed by thepleadings; and inquiry as to any matter which is or may becom e relevant to the subjectmatter of the ac tion shou ld be allowed , subject only to the objection ofp rivileg e. FelixA. Thi l let, Inc. v. Kelly-Springfield T ire Co. , 41 F .R.D. 5 5 (D .P.R. 1 966 ).As stated by the Su preme C ourt over 60 years ago ...[T lhe deposition-discovery rules are to be accorde d a broad and l iberal treatment. Nolonger can the t ime-honored cry of "fishing expedition" s erve to preclude a party frominquiring into the facts underlying his opp onent 's case. M utu al know ledge of all therelevant facts gathered by both parties is essential to proper l i t igation. To that end,either party ma y com pel the other to disgorge wha tever facts he has in his possession.Hickman v . Taylor, 329 U.S . 495 , 507 , 91 L . Ed . 451 , 67 S . Ct . 385 (1947) :

It is therefore clear that the rules of pretrial discovery, l ike the PRA itself, compel broaddisclosure of any relevant evidence, subject only to the object ion o f pr iv il ege . Even wi thout theclarification of law made in H B 1897 , no reasonable construct ion of the ru les o f pretr ia ld i scovery has ever a l lowed the wholesa le concea lment o f re l evant ev idence such as at torney fee

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invoices ab sent specifically asserted narrowly co nstrued claim s ofpriv ilege interpreted in l ight of th ebro ad policy favoring full discovery of all potentially relevant evidence as essential to proper l i t iga tion.

T H E C I VI L C O U R T A N D E V I D E N C E R U L E S R E Q U I R IN G B R O A D D IS C O VE R Y A N DD O N O T C R E A T E A D D I TI O N A L P R I V IL E G E N O T A L R E A D Y E X I S TI N G IN S T A T U T EA N D C O M M O N L AW

Specific examina tion of the actual rules of evidence demonstrate incontrovertibly that theysuppo rt a broad policy o f disclosure with only narrowly draw n and specifically asserted exem ption s.

U nde r E R 4 0 1"Relevan t evidence" mean s evidence having any tendency to m ake the ex istenc e

of any fact that is of consequenc e to the determination of the action mo re probable or less probable th anit wou ld be without the evidence.

ER 4 02 provides ...All relevant evidence is admissible, except as l imited by consti tutional requirements or as

otherwise provided by statute, by these rules, or by other rules or regulations applicable in the c ou rtsof this state. Evidence which is not relevant is not admissible.

ER 50 1 states in pertinent part ...Th e following citations are to certain statutes and case law that ma ke reference to privileges

or privileged communications. This l ist is not intended to create any privilege, nor to abrogate anyprivilege by implication or om ission.

It was error for the tr ial court to over broadly const rue R C W 42 .56 .29 0 in a manner thatcreated a broad new privilege in direct contradiction w ith the actual rules that the statutory exem ptionwas purportedly based upon.

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T H E L A W S O F W A S H I N G T O N 2 0 0 7 , C H A P T E R 3 9 1 A R E R E M ED IA L A N DR E T R O A C T I V E IN T H E IR E X P L IC I T T E R M S A N D R E QU I R E D I S C L O SU R E O FP U B L I C A T T O R N E Y IN V O IC E S S U B J E C T T O O N L Y N A R R O W L Y D R A W N A N DS P E C I F I C L Y A S S E R T ED E X E M P T I O N S I N T H E S A M E M A N N E R A S A FA IR R E A D I N GO F T H E P R E T R I A L D IS C O V ER Y R U L E S

From the c lear language of the laws of2 00 7, Chapter 39 1 , it is beyond question that the in te ntof the legislature w as to require disclosure of public attorney fee invoices in a retroactive and re m ed ia lmanner .

In addition , it is appare nt in the proceedings before the Local Government an d Indian Af fa ir scom mittee th at the intent of the law was to requ ire disclosure of the precise records at issue in this ca se ,sinc e the scandal created by the County's attempt to conceal even these billings outraged a b r o a dspectrum o f Me dia, Government, Lawy ers, Trade Associations, and citizens such as appellant W es t,wh o all testified for the bill.

In applying the Laws of Washington, 2007, Chapter 391 in the manner that i t was clearlyintended , it is not necessary to break new legal gro und. It is merely necessary to realize that the pretr ialdiscovery process, just as the Public Disclosure Act, is founded upon a broad policy full disclos ure o frelevant evidence with only a small number of possible exclusions based up on narrow ly con strue dexemptions. Indeed, when one compares the burgeoning number of exemptions tacked onto the P R Ato the brief l ist of applicable privilege exemptions in ER 501 , an argum ent could be made f o r theposition that the rules of pretrial discovery require a higher standard of disclosure than the PR A , andthat the scope of exemption of RCW 42.5 6.29 0 is less than that of the PRA.

Ha d these concerns been argued to the Court that actually issued the pretrial order in C au seNo. 04-2-0041 1-3 that forms the basis of the March 26 ruling, it is almost certain a different resultwould have been incorpora ted into the order of January 22 , 2007. H owever , West was d enied thisopportunity.

R E J E C T I O N O F T H E C O N T R A CT U A L R U L E O F L AW A N D T H E M E R G E R O F T H EP R I V A T E C O R P O R A T I O N W I T H T H E S TA T E IS T H E H A L L M A R K O FT O T A L I T A R IA N S O C I A L O R D E R

Additionally, in regard to the "co ntract" that Patterson County denies, he obvio usly isunfamiliar with the founding contract of our Am erican Republic or the State of W ashingto n. As theDeclaration of Independence states ...

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"We hold these truths to be self evident ... That to secure these rights, Governments areinsti tuted am on g M en, deriving their just powers fiom the consent of the governed ...

Sim ilarly, the Wash ington S tate Consti tution provides ..."All po li t ical power is inherent in the people, and governments derive their just powers fr o m

the consent of the governed, an d are established to protect and maintain individual rights."As a common law doctrine breach of contract sounds in equi ty and includes natural and

inherent rights, the sa me rights protected in Article I, section 1 of the Washington State Con st i tut ion.It is this basic and prim ordial contract of submission to the law by both the government and the pe op lethat the ent i re concept of Pat terson County stands in diametric opposi t ion to. By refusing toacknowledge his true role as a public officer for the County, (not to mention refusing to obtain thelawful appointment required by Ti t l e 3 6.32 . 200 for his representat ion not to const itute a cri m e)Mic hae l Patterson has breached the funda men tal "social con tractC'of ivil society that al l of the re st o fthe st ructure of democracy is founded upon.

For a n officer of the Government , (even in a de facto capacity) to maintain that he has n o dutyto follow the law or abide by an y standard s of condu ct in reference to the cit izenry who he is appoin tedto protect and represent goes beyond the ludicrou s into the frightening.

Th e "Patterson C oun ty Line" that is being covertly advance d in this case, that an undisp utab lepublic ag ency can hide behind the fiction of private entity to evad e all the requirements of law, is on eof the most dangerous threats to democracy and soun d publ ic policy in this State. All mem bers of ou rsociety are contractua lly bou nd to follow the law s that our representatives prom ulgate, of whic h therequirements of RCW 42.56 are only one portion.

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R E S P O N D E N T ' S C O N T R A C T A R G U M E N T I G N O R E S T H E E X P L I C I T C O N T R A C TR E Q U I R E D O F P U B L I C O F F I C E R S IN T H E IR O A T H O F O F F I C E T O U P H OL D T H EL A W S In contracting to perform governmental duties, public officers are required to execute a n oa th

of office, swe aring to uphold the consti tution and laws of Washington and the United States. I n thisCirc uit , the publi c and op posing parties are entit led to conscientious service by government c ou ns elas a clearly established right. In M eza v. DSH S, the 9th Circuit Court of appea ls established th at thepublic and o pposing parties h ave a right to conscientious service by Gov ernme nt counsel. I t doe s nottake any rigo rous analysis to establish that this clearly established right has been violated in this ca se ,since Patterson C oun ty denies that such a right exists to begin w ith.

It mu st be observed that nowhere do es respondent Patterson or any other respond ent inan y way deny that that patterson's representat ion o f the C oun ty is i llegal und er th eunambiguous t erms o f RC W 36 .32 .200. W hile i t is perhaps possible to maintain that there is nolegal contract per se, the admittedly i l legal nature ofcounsel 's actions plows new g round in co ntrac tualviolation of public policy. App ellant 's init ial confusion in this regard wa s not negligent, forgovernm ental officers are presum ed to be acting lawfully until unlawful action is shown.

M C K A S S O N A N D T R A S K A R E I N AP P O SI TE T O T H E C I R C U M S T A N C E S O F T H I SC A S E W H E R E C O U N S E L D O E S N O T D E N Y U N L A W F UL L Y A C T I N G A S A T BE S T A D EF A C T 0 O F FI CE RTh e cases cited by Pa tterson Coun ty are inapposite as they both con cern private counsel actinglawfully for their private clients. These circumstances have absolutely no relevance to theci rcumstances of this case where cou nsel was act ing i llegally a s a d e facto officer to begin w i th .Fur ther , the County cannot represent Mr. Pat terson. H ad Mr. P at terson ma de this argument it wou ldbe possible to consider i t, but P atterson Co unty is without authority to represent or a pu rely privateindividual, rendering i t not only frivolous but completely improp er.

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F A I L U R E OF T R I A L C O U R T T O G R A N T L E A VE T O A M E N D IN LI G H T O FR E L E V A T I O N S O F C O U N S EL S U N L A W F U L C O N D U C T W AS R EV E R SI BL E E R R O R

As this very cour t has ruled in Honan v. Ris torante I tal ia, 66 W n. A pp . 262 , 832 P.2 d 89 ,(1 99 2) the failure to grant leave to amend is an abu se of discretion when the danger of preju dice islow. The failure of a the Mason County tr ial court to allow amendment of pleadings to assert anunconscionable contract in violation of public policy was an abuse of discretion, particularly in acomp licated ca se involving a private cit izen challenging Gove rnmen tal action. In this case, app ellantwa s initially un aw are ofco unse ls unlaw ful failure to secure a legal appointment. Th e public has a r ig htto presume lawful action by government actors. Any failure by appellant to properly plead that theil legal failure to be duly certified was unconscionable co ntract void for violation of public d uty m us tbe excu sed by respond ents ' improp er actions. Sanctions should also be barred in this respect d u e torespondents lac k of clean hands.

R E S P O N D E N T S F E E R E Q U E ST F O R C L A I M S R E L A T E D T O L E E S M A R T IS W H O L L YI M P R O P E R S I NC E L E E S M A R T HA S N O T R E S P O N D E D T O T H E A PP EA L A N DC A N N O T P R O P E R L Y B E R E P R E S E N TE D B Y T H U R S T O N C O U N T Y

App ellant is uncertain wh at Patterson Cou nty refers to on pag e 35 of thei r br iefwhen they seekto have fees awarde d to "respondents" when only the Co unty h as responded. Even if there were a ba sisfor an award to Lee-smart, Lee-smart has not f i led any response in an y way o r incurred any expen se.Thurs ton Co un ty canno t reques t or accept fees for a defense that was never made by Lee-Smart tobegin with.

Th e vituperative knee-jerk request for fees when the re is no basis in fact or law is abu sive an dwasteful of precious judicial resources. If i t were possible to determine with certainty which ofcounsel ' s mutual ly incompat ible capaci ties this improper and abusive reques t was mad e f rom, anaward of sanctions would be appropr iate.

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Ho we ve r, the situation is so confused it is not ccrtain whether the Co unty sho uld be sanc tion edfor an imp rope r request for Lee-smart, whether lee-smart should be sanctioned for allowing Patterso nto ac t in the guise of the county to ma ke improper requests, or whether Patterson himself sho uld besanctioned for attemp ting to act in an evident conflict of interest to seek sanctions posing as a d e f act oofficer from appellant for the offense of attempting to draw attention to the impropriety of thesemu ltiple con flicts of interest.

CONCLUS IONT he public's interest in open, accountable governm ent includes disclosure an d an acc oun ting

of at torney invoices for counsel represent ing a publ ic agency such as Thurs ton County. I t wasinapprop riate for the Mason Cou nty Su perior court to deny disclosure of Hun dreds of pages of suc hinvoices, sight unseen, withou t inspection or any pretense ofreview , based upon th e alleged preclusiveeffect of an order issued in a different proceeding entirely in which the appellant and requestor ofrecords was no t afforded an opportunity to participate.

Disclosure of the invoices of those public officers exercising governm ental powers entrustedto them by the soveriegn cit izenry is indisputably necessary for the exercise of the public policy ofreasonab le public oversight over the officers of a just and democratic social order. While reason ableredactions, based upon n arrowly asserted exem ptions ma y be ap propriate, this is not wh at occurred inthe tr ial court . Suc h an a ction is in contrast to the requirem ents of both the law and the rules of pretrialdiscovery that respondents attemp t to assert to evad e the statutory man date of disclosure.

Th e order of March 26 denied disclosure o f hund reds of pages of attorney in vo ice s in theirentirety, without any review or analysis, or adheren ce to the broad scope of discovery in the evidencerules . The rul ing was also defective s ince i t was com pletely founded upon a rul ing m ade in anothercourt without or notice to appe llant or oppo rtunity to object.

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In this case the legal f iction presented by Patterson Cou nty str ikes at the heart of the in te nt oft he PRA .

Mr. Patterson's actions and position in this case reject the very fundamental precepts thatseparate our dem ocratic republic from those of a totali tarian regime. Whe re private corp orations a ndthe public Stat e merge , there is no demo cracy, but only totali tarianism and fascism. Three Hu nd re dyears ago Lois the XIV stated "L'etat cest Moi". In 200 7, Respondents maintain "L'etat c'est M ike ".T he state me nt is just a s offensive now as i t was 3 centuries ago. Th e State is not properly M ich ae lPat terson, and M ichael Pat terson is not proper ly the State-especial ly not wi thout a la w h l appointme ntunde r RCW 36 . 32 .

This Co urt shou ld disregard the improperly interposed brief ofpa tterson C ounty and direc t theTrial C ourt to issue a ll of the relief requested by ap pellant.

D one N ovem ber 2 1 , 2 00 7 .

ARTHUR WEST