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Tuesday, August 22, 2000 - Page updated at 12:00 AM

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No excuse for missed appeal, court says

Seattle Times staff reporter

The state Court of Appeals yesterday refused Attorney General Christine Gregoire's request for another chance to appeal the largest jury verdict ever against the state.

In a strongly worded 3-0 decision, the appeals court rejected the state's excuses for missing its original May deadline to appeal. Instead, the court blamed the error - a paperwork snafu - on poor case management in Gregoire's office.

The attorney general can now turn to the state Supreme Court for another chance and may do so, given the amount of money at stake. The original verdict was $17.8 million, an amount that has grown with interest at $5,800 per day to more than $18.5 million.

But given the unanimous and unambiguous Court of Appeals ruling, the state Supreme Court might decline to accept the case. And given the accruing interest and the public outrage over the missed deadline, Gregoire may choose simply to pay the plaintiffs at this point.

Chief Deputy Attorney General Kathleen Mix said that decision hasn't been made. But she sounded ready to leave the controversial case behind.

"I'm disappointed, but we have to move on," Mix said. "The people in this office are very proud of the work they do. I think they were chagrined to see that a mistake was made. They are ready to improve the way they do business. They have all taken a hard look at how they can make sure nothing like this happens again."

Seattle attorney David P. Moody, who represented the plaintiffs, said, "I'm just ecstatic for my clients."

They are three developmentally disabled men, Damon Beckman, Eric Busch and William Coalter. Their families sued the state Department of Social and Health Services in 1998, alleging the men were sexually and physically abused in a Bremerton state-licensed home, and a Pierce County jury in March awarded them the record damages.

Immediately after the verdict was announced, the Attorney General's Office said it would appeal. The planned grounds: The judge had found the state negligent by summary judgment before trial began, had allowed punitive damages under the federal civil-rights law, had held the state liable for the actions of private citizens who operated the home, and had allowed the plaintiff's attorney to tell jurors they could "send a message to the state."

But after announcing the intention to appeal, Gregoire's attorneys didn't check again with the court to determine whether the judge had signed the final judgment, which starts the clock running on the 30-day deadline for appeal.

Unbeknownst to the state's lead attorney, Moody, the plaintiffs' attorney, had sent a notification to the Attorney General's Office on April 4 announcing that the judge would sign the final judgment on April 14. The letter was stamped "Received," and sat in the office of Assistant Attorney General Janet Capps for six weeks - during which time the state's deadline for appeal passed. The Attorney General's Office discovered its mistake on May 25 - 10 days after the deadline - after receiving a note from Moody asking for his clients' money.

Gregoire hired a former federal prosecutor, Susan Barnes of Seattle, to do an internal investigation of the missed deadline. Barnes' report said Capps, one of the lawyers defending the state, bore primary blame for the mistake.

Capps and another assistant attorney general working on the case, Loretta Lamb, had been in a dispute, Barnes found, and Barnes believed Capps intentionally ignored the notification as part of that. In papers submitted to the court, Capps denied any such intention, saying she could not remember seeing the papers.

Gregoire also blamed the plaintiffs' attorneys, saying they should have mailed a copy of the final judgment to the state.

But the appeals court used other wording in Barnes' report in rejecting the state's arguments and lay the blame squarely on Gregoire.

"Capps' conduct impaired the State's timely filing of an appeal only because the Attorney General's Office lacked any reasonable procedure for calendaring hearings," the court stated. "The State's own internal investigation, which it asked us to consider, details the problems."

Regarding the state's attempt to blame the other side, the court said Moody "was not legally obligated to bring the state's mistake, if any, to the state's attention."

The three judges in the case were David Armstrong, C.C. Bridgewater and Robin Hunt.

Capps, who was forced to resign over the mistake, was shopping at a hardware store yesterday when her attorney called with news of the decision. She is fixing up her house to sell it because she is out of work.

"The court's ruling completely vindicates Ms. Capps," said her attorney, Suzanne Thomas. "Even considering all of the one-sided information that the state put before the court, the court flat-out rejected the state's argument that Ms. Capps acted intentionally."

Howard Goodfriend, a private attorney who argued the case for the state, said he wasn't surprised by the decision. But he said it is unfortunate that the case might open the door for other attorneys to slip judgments past the attention of opposing counsel.

"I would hope that when people think about the consequences of this decision that they would share my disappointment," he said. "It's not a good policy."

Moody disputed Goodfriend's interpretation.

"The order takes the attorney general to task," he said. "It certainly does not buy or give any credence to the state's argument that I should have given a courtesy call."

Several other prominent lawyers agreed with Moody. Jeff Robinson, a Seattle criminal-defense lawyer, noted that the attorney general frequently argues against death-penalty appeals by citing failures to meet deadlines.

"If people who are facing execution are held to that standard, then the state should be held to that standard when all that is at stake is money," Robinson said.

Damon Beckman, 27, one of the plaintiffs, was at his parents' home in Council Bluff, Iowa, when a reporter called with the news. His mother, Judith Beckman, said he'll probably never fully understand what has transpired, but he'll now have help recovering from the abuse.

Plaintiff Eric Busch might have the most at stake; he is dying of a rare kidney disease. Moody said Busch's condition is one reason his office asked the appeals court to move swiftly with its decision.

In the wake of this case, Gregoire has created a division to handle future appeals rather than leaving that job to trial attorneys. Her office also is installing a $1.2 million computer system to improve case tracking and procedures.

"This unfortunate incident will make the office even stronger and more professional with the new measures we will be implementing," Gregoire said in a written statement.

Eric Nalder's phone: 206-464-2056. E-mail: enalder@seattletimes.com.

Copyright (c) 2000 Seattle Times Company, All Rights Reserved.

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