Wednesday May 19, 2010 12:10 pm courtroom 2A Judge Fred Cuthbertson
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
David Britton CLOSING ARGUMENT
Please the court plaintiff letter of claims others without merit. Will not talk about oligarchies. Will address declaratory judgment not entitled to.
1-Legal equable right.
2-Immediate invasion of privacy.
3-Immediate injury.
Even with favorable tax rate losing money continues to operate.
Validity of Ordinance 1253.
Every imaginable theory retaliation not legal authority RCW 94613 gambling enforcement argues exactly opposite of their argument.
Municipal Ordinance presumed to be effective must have overwhelming argument.
Judge-Plaintiff believe burden of proof is.
b-Ordinance was active retaliation fear. Must prove beyond reasonable doubt is unconstitutional.
New argument referred to is ordinance not provided to me. Difficult to respond to. Ask court to disregard in interest of fairness.
Two WA Supreme Court cases:
1-BROWN
2-AMERICAN LEGION POST v WALLA WALLA.
Court whether mayor Everding passed was ministerial or discretionary. Discretionary not subject to review. Language from BROWN holding lies in to facts.
Petitioner claim to respondent not subject to mandamus whether votes legally counted.
What Ruston mayor does: calls for vote, counts votes. signs passed by council. Mayor signs clerk attests. Under BROWN discretionary function.
Judge-Describe function of mayor?
b-That particular section says signs small towns not updated. Lots of cases RCW does not sat a lot exercise police power under 3527.
Council person Hunt testifies not town attorney.
Judge- mayor not parliamentarian?
b- Town attorney is parliamentarian. Town attorney does little unless requested.
Provision called rules of procedure defined by resolution not same force as ordinance.
WA State legislature both houses have parliamentarian.
BROWN no no authority to intercede or second guess.
Judge- switch to- appropriate to invalidate taxing ordinance appealed to Superior Court and ruled invalid.
b-Applicable to Charter cities. First class cities to pass home rule authority.
Cited Seattle, Vancouver supports the within city organic law of state.
No analogous provided by plan has to follow its resolution.
People of Spokane were denied right of referendum.
Argument that city adopts for other cities Division of Appeals rules does not apply not fourth class cities.
Judge- Several holdings improperly enacted ordinance is void. Question really trying to get at argument extends to separation of powers court is concerned about. Sure I have been able to find or ascertain difference between fourth class city like Ruston or Charter Spokane.
b-spokane charter violated own charter.
city charter is law of the state.
This whole case is based on Spokane Charter limited to legal effect of charter prescriptive effect on city council.
Judge-Difficulty for me council can adopt resolution of Rules of Procedure for elected council. Rules of Procedure apply to law enforcement. Police enforce resolution when citizens speak. Nobody has power and isn't law.
b-Legal authority binding on court. Resolution is statement not policy, chose to adopt policy. Has to be fundamental choice council not bind itself.
Citizen in audience pop up silence person or allow to talk not enforce.
Judge-Review opinion on majority can vote.
b-Says two is enough. Problem here if court distinguish serious not serious.
Children's bike ride if wanted to enact ordinance could of done that.
Comes back to deference from judicial branch creating right by third party to pick apart ordinance.
Based on BROWN 165 court has abstained from proceedings, separation of powers court restrained whether requisite number of votes. What court is being asked to do is court play parliamentarian.
Tell our backwards little town how to govern itself.
Judge-Cog in law of intrusion into legislative body court has right to protect individual from oppression by 3 or 5 or whatever. When levy passed when does it take effect? Has right to know.
Hunt amended ordinance. Amendment does not appear in ordinance. Do I have to show license?
b-That amendment applies to prospective gambling establishment, not ambiguous even if improperly codified. Required to have Book of Ordinances. Do have that law.
Judge-Question is not book of ordinances, book of warrants,... If ordinance does what required.
b-Supreme court requires that court understands violation of due process.
Pointing out that all gambling tax no legislation enforce to gambling act enforcement.
Walla Walla has low gambling enforcement costs due to general law enforcement. Entire budget came from general fund not line item. No allegations spent on other items than gambling tax enforcement.
Case law on generally quiet. Reinhold did walk throughs quieted crime hourly walk throughs. Walla Walla number of calls 1985-1987 exactly same worse than Unicorn.
Judge-Let me ask you about that.
American Legion case tax was placed in police budget. In this case went to general fund whereas clauses of ordinance to meet annual budget shortfall.
Not reasonable under 946 that town has sufficient revenue to support town operation in police force.
Went into general fund no line item to police. Not specific to gambling but went to police department.
Only one gambling issue. 619 to alcohol. 495 alcohol less to gambling. Do not have those facts here.
Walla Walla had additional training in gambling and vice.
Can be drawing around parking lot nobody on Pearl street playing dice at midnight.
No evidence of that here at all.
David - Mr. Fabre cheating.
Judge-Extra $9 thousand dollars a month. A pretty penny going to gambling to general fund.
Judge-Where is evidence of $5 thousand dollars going to gambling enforcement to gambling act?
Where in any deliberation of council. Where in recitals is that?
b-Adoption by reference is in our ordinance. Ordinance on its face complied with act. Supreme court that position is untenable general police presence.
Tax is placed in police budget is indisputable. Continuous acts of police deter illegal gambling. Goes into general fund no line item.
Goes into general fund not police budget. Comes from general fund all could be said to go to police.
Judge-What else came out of general fund?
b-All activities except sewer harbor. All except required by statute to be separate.
Judge-Ruston have fire department.
b-Yes volunteer. Police very important to Ruston. Makes Ruston Ruston.
Judge-I think that point is established. Hypothetical either on face of ordinance 1435 during any deliberation to suggest that legislative intent was for purposed described in 946 or to suggest things we could tax.
b-We are allowed to use gambling taxes for above and beyond if not required for gambling enforcement. Do have by reference every chapter is in our reference.
Too far afield in answering forgot part of question asked.
Remind court ordinance presumed valid guidance to lower court.
Respectfully disagree entire case decided on Spokane charter if legal force of charter allows court to step in not general enforcement. Charter separate level than resolution to provide procedures.
Judge-One other question referring back to AMERICAN LEGION case defining primarily no statutory we go to dictionary at first instance.
Random House in Webster first instance no part as substantially tax must be first to enforce gambling act. If five percent required that is all they can tax. Any suggestion tax utilized first of all to enforce gambling act?
b-Unenforceable.
Judge-First of all Supreme Court.
b-Presumption of ordinance validity. Nothing have to prove that tax as to be traceable.
Judge-Law enforcement budget is undefined part of general fund.
b-Probably 30 to 40 percent of budget.
REBUTTAL Joan Mell
m-Ruston did not do basic act to enforce gambling act already had enough money.
Judge-Section K Mr. Britton arguing.
m-Relates to pull tabs, punch cards.
Public has right to know.
Desirable limitations not enforceable when authority by 946 RCW have never been destined for gambling enforcement. Never done that.
Only Ruston can enforce separately have to define. Decision made to refer to gambling commission.
Judge-Chief Reese policy?
m-Her policy when Mr. Fabre requested. She has authority to decline unless Ruston specifies.
Judge-Nobody plays dice in alley shoots when playing pull tabs.
m-Unless council says spend it all under BROWN to understand arbitrary and capricious.
1:15 pm Judge-
Obviously important and difficult case. After lunch go over exhibits render decision quickly.
Comment: This is a tedious undertaking. Hard to keep up with counsels speaking, not slowing down as judge recommend so blog may have gaps. Make out of it what you can. So far ahead of Judge's decision.
Judge's comments are notable.
Comment: No decision as of yet.
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Showing posts with label Cuthbertson. Show all posts
Showing posts with label Cuthbertson. Show all posts
Monday, May 24, 2010
CASINO v RUSTON -DAY THREE - CLOSING ARGUMENT - JOAN MELL
Wednesday May 19, 2010 11:00 am courtroom 2A Judge Fred Cuthbertson
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
Judge CLOSING ARGUMENTS Ready to proceed?
JOAN MELL (m)
m-Plaintiff exhibits 33 and 34 entered. Pl exh 59 card room rates.
j- Admitted without objection.
m-July 7, 2008 two citizens convinced third to take 400 percent increase in gambling tax rate. Increase allowed them to act outside of power to tax. An oligarchy behind scenes to control local businesses.
No opportunity for Mr. Fabre to be heard to be less detrimental on his business.
There were hearing discussions but not in public. Only June 23 Dan Albertson wanted maximum tax now.
Ruston has limited power to tax due to due process concerns.
Resolution 415 Procedures elected not to follow.Dan Albertson, Jane Hunt and Bradley Huson violated principles two months before deliberations on tax increase.
Ignored WA State regulations under Gambling Act regarding enforcement.Mr. Fabre largest taxpayer in Ruston targeted social card games.
Legislature enabled Gambling tax primarily for enforcement by local police authority not public safety as rejected by legislature. Law enforcement expensive spending on other businesses besides casino.
In the deliberative process no determination of enforcement costs.
Did not contact gambling commission or talk to police chief former deputy director of Gambling Commission, particularly impressive.
Supreme Court decision not need to know primary for law enforcement. To protect Supreme court from Separation of Powers definition of law enforcement.
First instance revenue for law enforcement can spend all.
Second Walla Walla decision - not enforcing Sharon Reese delegating to Gambling commission.
Go beyond to Ruston as public safety. Legislature rejected this argument.
No determination for enforcement or to increase gambling act enforcement.
Police activity logs did not know. Line item for police budget $400 thousand dollars.
Under statute in proceedings or process to increase tax.
More than needed per Kim Wheeler.
Dan Albertson wanted maximum.
Jane Hunt as deterrent. A ban could stay in business two years.
Raised to 20 percent to deter gambling. Not what tax is for to mitigate gambling act only enforcement. Tax was improper.
Walk through procedural violations:
1-Lack of effective date.
2-Not two readings, not enough votes.
3-No public comments.
Essential component for any tax unless you know ordinance effective date. Makes ordinance unenforceable. Council did adopt 414 Procedures page 30 rule 22 rules should specify effective date. Should not shall. Should is a derivative of shall and is mandatory.
California Racing Commission sanctioned party for should.
Dictionary definition of should - must.
No debate effective date is compulsory.If required and none what do we do. City will give effective date if presumptive. None for town - steps into separation of powers. Everding mayor July 14 publication date.
Vague and ambiguous ordinances are void.
Subject to reasonable publication date published on date passed.
Only legislature can do Court needs to send back as void.
Judge- Vague and ambiguous in brief?
m-Did cite law legal effective resolution Ruston.
Dan Albertson resolution not law.
Resolution 415 formally voted on and adopted made available to public requiring law enforcement more than simple guidelines formal resolution.
Resolution under Ruston code have authority of ordinance. Meaning of Resolution.
Parties have litigated over Resolution when effective.
Violation of constitutional rights. Not a wish list.Ambiguity Jane Hunt amended license from Gambling Commission ask for business license.
Ordinance 1253 always had license requirement.
Judge-Testimony was after license from Wa Gambling Commission not underlined. Jane made sure had effective license for gambling Act or local business license.
m-Vague and ambiguous definitely, lack of enforceability.
Section D and C have to do with pull tabs. Added social card games provision without including in enforcement.
No authority for town clerk to make sure taxes paid or collected.
Enforcement and specificity tax B and C by clerk treasurer as adopted by Pierce County or WA State gambling commission.
Pierce County makes effective date. Bypass usual effective date and make emergency makes for unreasonable tax.
Cannot equate Charter and Constitution. Town can operate certain ways, Rules of procedure allowed. They are enforceable.
Judge-Never said what makes emergency.
m-Clearly tell us what is emergency?
Mirror language in 3533091 important statute to look at.
Ability of tax payer to be heard absolute right.
Emergency not defined.
Dan Albertson testimony bypassing second reading.
Judge- Is emergency defined in Ruston Code?
m-Not arguing emergency but what citizens expect. Closest is tax measure. Have to be justified.
Steve Fabre footing large part of tax revenue.
Employing hundreds of people not lobby, send letters, but in open public forum.
Open meetings act people do not delegate authority. People may reclaim control, deliberate, discuss and offer amendments.
Only ordinance amendments on second reading.
Albertson set rate at 20 percent.Did not follow procedures, no public input, emergency. Becomes oligarchy.
Judge-One other question. Assume arguably has been no formal legislative declaration of critical facts seem to be pursuant to 946 that tax is primarily for gambling act enforcement testimony Mrs. Hunt Mr Albertson that was really what it was for.
m-Did not state that.
Judge- Important for court to recognize that if they thought that.
m-Testimony legislative members that is what I was thinking Ruston argued Ruston.
Dan and Jane do not represent Ruston, define what intent was.
Judge-Wrap it up.
m-Vote count is indisputable. May present rule 22 enforcement finaln passage one more than majority of council.
Dan Albertson not a dumb guy.
One more than majority of members or members of majority. Jim Hedrick thought should be argued and debated. Still no logic for two members not good government.
Judge-Interpreting rule 22. Isn't that the province of Mayor Everding? Take us to BROWN if it does interpreting rule 22 discretionary act of mayor.
m-No parliamentary rule. Ruston not mayor council rule 12 no discussion either way.
BROWN not decide whether measure passed. Asked to void due process violation as unconstitutional. Allowed to look at procedural rules. Did not do it right.
Vote count unconstitutional declaratory act not do that.
Under Superior court is certainly in a position to determine if parliamentarian erred. Described as arbitrary and capricious WALKER decision as well as BROWN decision.
Ask court to do, apply what did occur to what required.
Rules allowed to be set aside by motion. Have to be uniform and predictable or discretionary.
Ruston failed to meet it's burden.
11:55 am Judge BREAK for five minutes.
Comment: This is a tedious undertaking. Hard to keep up with counsels speaking, not slowing down as judge recommend so blog may have gaps. Make out of it what you can. So far ahead of Judges's decision.
Judge's comments are notable.
Next David Britton CLOSING and REBUTTALS.
-30-
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
Judge CLOSING ARGUMENTS Ready to proceed?
JOAN MELL (m)
m-Plaintiff exhibits 33 and 34 entered. Pl exh 59 card room rates.
j- Admitted without objection.
m-July 7, 2008 two citizens convinced third to take 400 percent increase in gambling tax rate. Increase allowed them to act outside of power to tax. An oligarchy behind scenes to control local businesses.
No opportunity for Mr. Fabre to be heard to be less detrimental on his business.
There were hearing discussions but not in public. Only June 23 Dan Albertson wanted maximum tax now.
Ruston has limited power to tax due to due process concerns.
Resolution 415 Procedures elected not to follow.Dan Albertson, Jane Hunt and Bradley Huson violated principles two months before deliberations on tax increase.
Ignored WA State regulations under Gambling Act regarding enforcement.Mr. Fabre largest taxpayer in Ruston targeted social card games.
Legislature enabled Gambling tax primarily for enforcement by local police authority not public safety as rejected by legislature. Law enforcement expensive spending on other businesses besides casino.
In the deliberative process no determination of enforcement costs.
Did not contact gambling commission or talk to police chief former deputy director of Gambling Commission, particularly impressive.
Supreme Court decision not need to know primary for law enforcement. To protect Supreme court from Separation of Powers definition of law enforcement.
First instance revenue for law enforcement can spend all.
Second Walla Walla decision - not enforcing Sharon Reese delegating to Gambling commission.
Go beyond to Ruston as public safety. Legislature rejected this argument.
No determination for enforcement or to increase gambling act enforcement.
Police activity logs did not know. Line item for police budget $400 thousand dollars.
Under statute in proceedings or process to increase tax.
More than needed per Kim Wheeler.
Dan Albertson wanted maximum.
Jane Hunt as deterrent. A ban could stay in business two years.
Raised to 20 percent to deter gambling. Not what tax is for to mitigate gambling act only enforcement. Tax was improper.
Walk through procedural violations:
1-Lack of effective date.
2-Not two readings, not enough votes.
3-No public comments.
Essential component for any tax unless you know ordinance effective date. Makes ordinance unenforceable. Council did adopt 414 Procedures page 30 rule 22 rules should specify effective date. Should not shall. Should is a derivative of shall and is mandatory.
California Racing Commission sanctioned party for should.
Dictionary definition of should - must.
No debate effective date is compulsory.If required and none what do we do. City will give effective date if presumptive. None for town - steps into separation of powers. Everding mayor July 14 publication date.
Vague and ambiguous ordinances are void.
Subject to reasonable publication date published on date passed.
Only legislature can do Court needs to send back as void.
Judge- Vague and ambiguous in brief?
m-Did cite law legal effective resolution Ruston.
Dan Albertson resolution not law.
Resolution 415 formally voted on and adopted made available to public requiring law enforcement more than simple guidelines formal resolution.
Resolution under Ruston code have authority of ordinance. Meaning of Resolution.
Parties have litigated over Resolution when effective.
Violation of constitutional rights. Not a wish list.Ambiguity Jane Hunt amended license from Gambling Commission ask for business license.
Ordinance 1253 always had license requirement.
Judge-Testimony was after license from Wa Gambling Commission not underlined. Jane made sure had effective license for gambling Act or local business license.
m-Vague and ambiguous definitely, lack of enforceability.
Section D and C have to do with pull tabs. Added social card games provision without including in enforcement.
No authority for town clerk to make sure taxes paid or collected.
Enforcement and specificity tax B and C by clerk treasurer as adopted by Pierce County or WA State gambling commission.
Pierce County makes effective date. Bypass usual effective date and make emergency makes for unreasonable tax.
Cannot equate Charter and Constitution. Town can operate certain ways, Rules of procedure allowed. They are enforceable.
Judge-Never said what makes emergency.
m-Clearly tell us what is emergency?
Mirror language in 3533091 important statute to look at.
Ability of tax payer to be heard absolute right.
Emergency not defined.
Dan Albertson testimony bypassing second reading.
Judge- Is emergency defined in Ruston Code?
m-Not arguing emergency but what citizens expect. Closest is tax measure. Have to be justified.
Steve Fabre footing large part of tax revenue.
Employing hundreds of people not lobby, send letters, but in open public forum.
Open meetings act people do not delegate authority. People may reclaim control, deliberate, discuss and offer amendments.
Only ordinance amendments on second reading.
Albertson set rate at 20 percent.Did not follow procedures, no public input, emergency. Becomes oligarchy.
Judge-One other question. Assume arguably has been no formal legislative declaration of critical facts seem to be pursuant to 946 that tax is primarily for gambling act enforcement testimony Mrs. Hunt Mr Albertson that was really what it was for.
m-Did not state that.
Judge- Important for court to recognize that if they thought that.
m-Testimony legislative members that is what I was thinking Ruston argued Ruston.
Dan and Jane do not represent Ruston, define what intent was.
Judge-Wrap it up.
m-Vote count is indisputable. May present rule 22 enforcement finaln passage one more than majority of council.
Dan Albertson not a dumb guy.
One more than majority of members or members of majority. Jim Hedrick thought should be argued and debated. Still no logic for two members not good government.
Judge-Interpreting rule 22. Isn't that the province of Mayor Everding? Take us to BROWN if it does interpreting rule 22 discretionary act of mayor.
m-No parliamentary rule. Ruston not mayor council rule 12 no discussion either way.
BROWN not decide whether measure passed. Asked to void due process violation as unconstitutional. Allowed to look at procedural rules. Did not do it right.
Vote count unconstitutional declaratory act not do that.
Under Superior court is certainly in a position to determine if parliamentarian erred. Described as arbitrary and capricious WALKER decision as well as BROWN decision.
Ask court to do, apply what did occur to what required.
Rules allowed to be set aside by motion. Have to be uniform and predictable or discretionary.
Ruston failed to meet it's burden.
11:55 am Judge BREAK for five minutes.
Comment: This is a tedious undertaking. Hard to keep up with counsels speaking, not slowing down as judge recommend so blog may have gaps. Make out of it what you can. So far ahead of Judges's decision.
Judge's comments are notable.
Next David Britton CLOSING and REBUTTALS.
-30-
Saturday, May 22, 2010
CASINO v RUSTON - DAY TWO - AFTERNOON SESSION - STEVE FABRE
Tuesday May 18, 2010 1:30 pm courtroom 2A Judge Fred Cuthbertson
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
WITNESS Steven Fabre, owner Point defiance Cafe and Casino sworn in
m- Briefly tell the court about yourself.
Fabre (f)-
Also own Cassidys Pub.
Bought Showboat and converted to Casino.
Attended Curtis HS, Degree in Communications University of Washington.
Working with public officials active politically.
Flannigan, Darnielle, county council and
Ruston Mayor Wheeler
No other law issues.
Freedom of Information in Ruston to clear name.
Ruston Connection monthly newsletter free, Issue resolved itself March 2008.
m-In 2008 Ruston enforcing gambling act?
f-Had employee stealing promotion chips. Gambling commission was closed.
f-Called Officer Lawless Ruston PD and Police chief Reese.
f-Respnse was sorry Steve turning over to gambling commission.
m-What were gambling taxes for?
f-To enforce gambling act.
f-Had to keep up with rules/regulations else strict penalties.
f-Had 14 tables license $24 thousand dollars per year.
m-Municipalities association with other owners at gambling commission meetings?
f-President Gambling Association of owners.
m-You had graduated rate in Ruston?
f-Worked with Mayor Wheeler decided best.
m-Gambling Commission requires 6 month forecast of earnings.
f-first six months broke even. Seventy thousand exempt. More I made more I paid.
m-Beneficial to you graduated rate?
f-Yes stayed open employed 100s of people put to work, good for Ruston.
m-Rely on graduated rate?
f-Yes, no talk of temporary.
m-Never any indication graduated rate temporary?
f-Absolutely not.
m-Rate to 12 percent with Ruston because of enforcement costs?
f-No.
m-More than needed?
f-Ruston police never enforced gambling act.
m-Use your surveillance tapes for gambling act?
f-No. Ruston police did use for other purposes.
f-Previously police said casino less of an impact than Showboat tavern.
m-Plaintiff exhibit (pl exh) 76 Picture photograph of Pont Defiance Cafe and Casino?
f-Parking lot facing east to Everding's property with light pole.
m-Any contact Bob Everding?
f-Yes, complained light was bothering his wife. Left instructions to lower light, very expensive, next upgrade.
m-When were you notified of 20 percent tax increase?
f-Yes, Mr. Wheeler notified me next May 5 council meeting.
m-Enter exh 76.
j-Admitted without objection.
f- Attended May 5 council meeting ready to testify.
m-What happened?
f-Nothing talked about. Article in The News Tribune they were reacting to that. Council members would look bad cost me $9 thousand dollars per month close me down dozens lose jobs.
m-Did you contribute to Ruston community? Were you a benefit to town?
f-Good clientele based on previous owner. My clientele older reserved more mature.
m-Issue never brought up may 5? Next?
f-June 23 study session in front of town hall. Went to study session.
m-Who was at study session?
f- Council and two other people. I was not allowed to speak.
m-Any problems. Any council person ask you to speak? Were you provided opportunity to speak?
f-No. Dan Albertson spoke. Said we were white elephant and needed to end it now. Didn't look at tax rate, State of Washington tax rate 1.4 percent and didn't look at ban moratorium.
m-Any discussion other than twenty percent?
f-No.
m-Any discussion about RCW 946 113 Gambling Act enforcement? Next meeting?
f-Did not attend July 7 meeting not listening to me. Huson, Albertson, Hunt never responded.
f-Gathered information for decision investors et al involved.
f-Pierce County alsways got a return call, always start a dialogue. Response from Pierce County and the State of Washington very good.
m-Council cooperative in Ruston?
f-Albertson picked up phone told me to write a letter. Dialogue none.
m-any attend July 7 council meeting?
f-Sent investors, employees to meeting. They would not listen to me. They were losing jobs and investment.
m-Up to 20 percent OK if graduated rate?
f-Twenty percent is highest anywhere. Lakewood down Fife down to 4 percent.
m-Why decrease rate?
f-To keep businesses open.
CROSS EXAMINATION David Britton (b)
b-Employed literally hundreds of people?
f-We literally put hundreds of people to work first several years.
b-Review complaint to refresh memory. Turn to page 8 of complaint does your signature appear? By signing you verify allegations to be true?
f-Yes.
b-Turn to page 6 read over. You say tax increase not valid as no input by Cafe. On April 4 and July 2 you sent letter to town council mayor and attached partnership returns?
f-Assumed input would be public input.
b-Letter is not input?
f-Letter is input.
b-Familiar with letter?
f-Have not read in a long time since I wrote them.
Provides letter to Steve Fabre Pl exh 49. And when you say in second paragraph tax increase will force foreclosure and cost tax revenue of $40 thousand dollars?
m-Objection. Letter communication without reading.
J-Sustained.
b-Read whole letter.
f-OK.
b-did you write Town of Ruston not putting you out of business- Hip Hop club. Telling council not putting you out of business open Hip Hop club?
f-Hired entertainment promoter. Had Hip Hop on weekends. Was now class F using small area. Put in stage, promotion included Hip Hop.
b-Approach witness Pl exh 50 (David reads Pl exh 50). All right in that letter you stated tax increase was 700 percent?
f-Was 667 percent rounded to 700 percent.
b-Doesn't increase depend on council?
f-Had not seen July 7 only seen 20 percent. Rate was changed at meeting I did not know. My actual tax was two percent and highest paid was three percent. Actual increase was 1,000 percent.
b-Documentation call to all?
f-Talked to Albertson, Hunt and Hedrick. Hunt picked phone up but got no return calls.
b-Bob Everding came over?
f-Yes. Bob very cooperative came over several times.
b-Did increase happen because you were suing town?
f-No. Signed complaint against Ruston Connection.
b-Complaint not strictly accurate?
f-Different interpretation, asked to appear before council.
b-You attended study session May 5 and council meeting July23?
m-Objection. Credibility.
j-Sustained.
b-You did have time to communicate with council have meeting with mayor- non voting?
Judge-Did you have comment on amended ordinance?
f-No.
b-Would you object to 20 percent reduced to 12 percent?
f-Pretty sure I would have objected.
b-Pl exh 50 letter stating if gambling tax only gambling would be pull tabs?
f-Originally pull tabs would increase final did not. New ordinance July 7 did not have increase on pull tabs.
b-Did not close poker?
f-Planned on closing but kept open had free tournaments. Poker kept open to employ people.
b-Mayor Hopkins say take out card tables?
f-No he did not.
b-Did you lease tables pay operators salary of $125 dollars per week? Did you lose $18 thousand dollars customer wins? Did you lose $9 thousand customer wins?
f-Yes.
b-Did gambling tax close tables?
f-Business extremely volatile had bad second quarter. Came back in third quarter to 26 percent average.
b-Losses were smaller?
f-Losing annually not monthly, losses getting smaller.
b-Casino closed August to December 2008?
f-House bank part of casino closed. Lions share of business yes.
b-Did I depose you in my office in 2006?
m-Objection. no question.
judge-Overruled. Inconsistent statement.
b-Try again. You only told me card room?
f-House banked card room.
b-Closed August to December...
Judge-Enter deposition in evidence. Not sure of line of questioning.
m-Include page and line cross reference.
b-Page 36 line 7 you accurately said, did say casino closed?
f-Yes. Casino equals house banked.
b-You did file B&O (Business and Occupation) tax during that period. Some gambling tax revenue. Gambling tax fatal to business? How much more in gambling tax at 20 percent?
f-Opinion on 2007 $80 thousand dollars per month.
b-Why not 2008?
f-2007 was last full year.
b-Revenue down 2008?
f-In first quarter. July up 60 percent over June. Lot of fluctuations especially in second quarter.
f-Gambling commission raised betting limit to $200 dollars.
b-Had been losing money before town increased tax.
>2005 net loss $262 thousand.
>2006 net loss $347 thousand.
Those kind of losses didn't close casino?
f-No.
b-Put you out of business?
f-No Tacoma closed gambling in 2005 willing to wait to get ten percent of Tacoma business. Then Tacoma stayed open another year due to court case.
b-Gambling closed in Tacoma 2006?
f-Yes.
b-Did not make money?
f-Business going much better.
b-2007 net loss. 2008 net loss closed house bank?
Judge-Where are you going with this?
b-Have you paid higher tax rate? You set your own rate?
f-Worked with mayor/council.
b-Never lost $9.7 million on casino?
f-No.
b-How do you know Kim Wheeler?
f-Mayor of Ruston.
b-Did you employ Kim Wheeler?
f-Yes as interface with workers at Point Ruston.
b-How long?
f-Months.
b-Did Kim Wheeler have job title? How much did he make?
f-$12-$13 dollars hour. Worked 2-3 months 2006 or 2007.
b-Donate to Wheeler's campaign?
f-Yes. Raised money for him.
m-Rate increase was partially unfavorable to you?
m-Call back Karen Pickett for testimony on study session.
Judge-Transcript and recording?
m-Disc has entire session gambling portion much smaller.
b-Prefer whole tape listened to.
m-Whole meeting 50 minutes.
b-No objection if authenticated.
m-Call Karen Pickett. (k)
k-sworn in apologizes for wearing jeans.
m-You attended June 23 study session did you record?
k-Yes I did.
m-Plaintiff exhibit 77 do you recognize?
k-Yes I do.
m-A true and correct information on Ruston study session June 23?
m-Move to offer into exhibit 77. No objection.
m-Your honor listen to.
Judge-excuse Karen Pickett.
b-No further witnesses.
j-15 minute break. Closing statements 15 minutes each and rebuttal.
m-Secret to playing this?
Clerk- Play on my player I have speakers.
Judge-How long is portion on gambling?
j-Play relevant portion of study session tape.
m-Pl exh 77 for record.
Tape-Delay cannot start tape.
m-Sound not able to be heard.
Judge-No need to transcribe. Would need to download software to my computer.
m-Willing to do closing now.
j-How long closing statements?
m-15 minutes.
b-30 minutes.
Judge-Forgo playing it, been testimony about what was discussed.
m-June 23 study session no public comment.
j-Try on Miss Mendes computer (bailiff).
m-Go to 1836 can hear now.
Judge-Ready, back on record play relevant portion of exhibit 77 tape of gambling tax discussion by council.
Voice of Dan Albertson heard: Raise Gambling tax. Look at gambling tax and other areas. Is lower here than other states. Why are we so low? Most ridiculous, absurd I have ever heard. What are revenues and expenses and how to bridge the gap. Question is gambling tax an appropriate thing to look at, irresponsible. Find sources of revenue. Virtually every other jurisdiction does, astounds me. Does it have an ordinance number? Looking at every item. Looking at it 2 out of 3, need to do, call Department of Revenue.
(Very brief seven minutes)
m-Done with gambling tax portion.
Judge-Did you listen to this Mr. Britton?
b-Just now.
j-BREAK. Talk to staff.
3:30 pm Judge-
Will not rush through closing. Resume at 10:30 am tomorrow. Arguments to sum up. Not a problem I hope.
m-Need to clear calendar.
b-Already cleared for trial.
Comment: All witness testimony finished only closing arguments left. ps They took quite longer than estimates.
First Joan Mell attorney for plaintiff Steve Fabre, Point Defiance Cafe and Casino.
Next David Britton for defendant Town of Ruston.
-30-
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
WITNESS Steven Fabre, owner Point defiance Cafe and Casino sworn in
m- Briefly tell the court about yourself.
Fabre (f)-
Also own Cassidys Pub.
Bought Showboat and converted to Casino.
Attended Curtis HS, Degree in Communications University of Washington.
Working with public officials active politically.
Flannigan, Darnielle, county council and
Ruston Mayor Wheeler
No other law issues.
Freedom of Information in Ruston to clear name.
Ruston Connection monthly newsletter free, Issue resolved itself March 2008.
m-In 2008 Ruston enforcing gambling act?
f-Had employee stealing promotion chips. Gambling commission was closed.
f-Called Officer Lawless Ruston PD and Police chief Reese.
f-Respnse was sorry Steve turning over to gambling commission.
m-What were gambling taxes for?
f-To enforce gambling act.
f-Had to keep up with rules/regulations else strict penalties.
f-Had 14 tables license $24 thousand dollars per year.
m-Municipalities association with other owners at gambling commission meetings?
f-President Gambling Association of owners.
m-You had graduated rate in Ruston?
f-Worked with Mayor Wheeler decided best.
m-Gambling Commission requires 6 month forecast of earnings.
f-first six months broke even. Seventy thousand exempt. More I made more I paid.
m-Beneficial to you graduated rate?
f-Yes stayed open employed 100s of people put to work, good for Ruston.
m-Rely on graduated rate?
f-Yes, no talk of temporary.
m-Never any indication graduated rate temporary?
f-Absolutely not.
m-Rate to 12 percent with Ruston because of enforcement costs?
f-No.
m-More than needed?
f-Ruston police never enforced gambling act.
m-Use your surveillance tapes for gambling act?
f-No. Ruston police did use for other purposes.
f-Previously police said casino less of an impact than Showboat tavern.
m-Plaintiff exhibit (pl exh) 76 Picture photograph of Pont Defiance Cafe and Casino?
f-Parking lot facing east to Everding's property with light pole.
m-Any contact Bob Everding?
f-Yes, complained light was bothering his wife. Left instructions to lower light, very expensive, next upgrade.
m-When were you notified of 20 percent tax increase?
f-Yes, Mr. Wheeler notified me next May 5 council meeting.
m-Enter exh 76.
j-Admitted without objection.
f- Attended May 5 council meeting ready to testify.
m-What happened?
f-Nothing talked about. Article in The News Tribune they were reacting to that. Council members would look bad cost me $9 thousand dollars per month close me down dozens lose jobs.
m-Did you contribute to Ruston community? Were you a benefit to town?
f-Good clientele based on previous owner. My clientele older reserved more mature.
m-Issue never brought up may 5? Next?
f-June 23 study session in front of town hall. Went to study session.
m-Who was at study session?
f- Council and two other people. I was not allowed to speak.
m-Any problems. Any council person ask you to speak? Were you provided opportunity to speak?
f-No. Dan Albertson spoke. Said we were white elephant and needed to end it now. Didn't look at tax rate, State of Washington tax rate 1.4 percent and didn't look at ban moratorium.
m-Any discussion other than twenty percent?
f-No.
m-Any discussion about RCW 946 113 Gambling Act enforcement? Next meeting?
f-Did not attend July 7 meeting not listening to me. Huson, Albertson, Hunt never responded.
f-Gathered information for decision investors et al involved.
f-Pierce County alsways got a return call, always start a dialogue. Response from Pierce County and the State of Washington very good.
m-Council cooperative in Ruston?
f-Albertson picked up phone told me to write a letter. Dialogue none.
m-any attend July 7 council meeting?
f-Sent investors, employees to meeting. They would not listen to me. They were losing jobs and investment.
m-Up to 20 percent OK if graduated rate?
f-Twenty percent is highest anywhere. Lakewood down Fife down to 4 percent.
m-Why decrease rate?
f-To keep businesses open.
CROSS EXAMINATION David Britton (b)
b-Employed literally hundreds of people?
f-We literally put hundreds of people to work first several years.
b-Review complaint to refresh memory. Turn to page 8 of complaint does your signature appear? By signing you verify allegations to be true?
f-Yes.
b-Turn to page 6 read over. You say tax increase not valid as no input by Cafe. On April 4 and July 2 you sent letter to town council mayor and attached partnership returns?
f-Assumed input would be public input.
b-Letter is not input?
f-Letter is input.
b-Familiar with letter?
f-Have not read in a long time since I wrote them.
Provides letter to Steve Fabre Pl exh 49. And when you say in second paragraph tax increase will force foreclosure and cost tax revenue of $40 thousand dollars?
m-Objection. Letter communication without reading.
J-Sustained.
b-Read whole letter.
f-OK.
b-did you write Town of Ruston not putting you out of business- Hip Hop club. Telling council not putting you out of business open Hip Hop club?
f-Hired entertainment promoter. Had Hip Hop on weekends. Was now class F using small area. Put in stage, promotion included Hip Hop.
b-Approach witness Pl exh 50 (David reads Pl exh 50). All right in that letter you stated tax increase was 700 percent?
f-Was 667 percent rounded to 700 percent.
b-Doesn't increase depend on council?
f-Had not seen July 7 only seen 20 percent. Rate was changed at meeting I did not know. My actual tax was two percent and highest paid was three percent. Actual increase was 1,000 percent.
b-Documentation call to all?
f-Talked to Albertson, Hunt and Hedrick. Hunt picked phone up but got no return calls.
b-Bob Everding came over?
f-Yes. Bob very cooperative came over several times.
b-Did increase happen because you were suing town?
f-No. Signed complaint against Ruston Connection.
b-Complaint not strictly accurate?
f-Different interpretation, asked to appear before council.
b-You attended study session May 5 and council meeting July23?
m-Objection. Credibility.
j-Sustained.
b-You did have time to communicate with council have meeting with mayor- non voting?
Judge-Did you have comment on amended ordinance?
f-No.
b-Would you object to 20 percent reduced to 12 percent?
f-Pretty sure I would have objected.
b-Pl exh 50 letter stating if gambling tax only gambling would be pull tabs?
f-Originally pull tabs would increase final did not. New ordinance July 7 did not have increase on pull tabs.
b-Did not close poker?
f-Planned on closing but kept open had free tournaments. Poker kept open to employ people.
b-Mayor Hopkins say take out card tables?
f-No he did not.
b-Did you lease tables pay operators salary of $125 dollars per week? Did you lose $18 thousand dollars customer wins? Did you lose $9 thousand customer wins?
f-Yes.
b-Did gambling tax close tables?
f-Business extremely volatile had bad second quarter. Came back in third quarter to 26 percent average.
b-Losses were smaller?
f-Losing annually not monthly, losses getting smaller.
b-Casino closed August to December 2008?
f-House bank part of casino closed. Lions share of business yes.
b-Did I depose you in my office in 2006?
m-Objection. no question.
judge-Overruled. Inconsistent statement.
b-Try again. You only told me card room?
f-House banked card room.
b-Closed August to December...
Judge-Enter deposition in evidence. Not sure of line of questioning.
m-Include page and line cross reference.
b-Page 36 line 7 you accurately said, did say casino closed?
f-Yes. Casino equals house banked.
b-You did file B&O (Business and Occupation) tax during that period. Some gambling tax revenue. Gambling tax fatal to business? How much more in gambling tax at 20 percent?
f-Opinion on 2007 $80 thousand dollars per month.
b-Why not 2008?
f-2007 was last full year.
b-Revenue down 2008?
f-In first quarter. July up 60 percent over June. Lot of fluctuations especially in second quarter.
f-Gambling commission raised betting limit to $200 dollars.
b-Had been losing money before town increased tax.
>2005 net loss $262 thousand.
>2006 net loss $347 thousand.
Those kind of losses didn't close casino?
f-No.
b-Put you out of business?
f-No Tacoma closed gambling in 2005 willing to wait to get ten percent of Tacoma business. Then Tacoma stayed open another year due to court case.
b-Gambling closed in Tacoma 2006?
f-Yes.
b-Did not make money?
f-Business going much better.
b-2007 net loss. 2008 net loss closed house bank?
Judge-Where are you going with this?
b-Have you paid higher tax rate? You set your own rate?
f-Worked with mayor/council.
b-Never lost $9.7 million on casino?
f-No.
b-How do you know Kim Wheeler?
f-Mayor of Ruston.
b-Did you employ Kim Wheeler?
f-Yes as interface with workers at Point Ruston.
b-How long?
f-Months.
b-Did Kim Wheeler have job title? How much did he make?
f-$12-$13 dollars hour. Worked 2-3 months 2006 or 2007.
b-Donate to Wheeler's campaign?
f-Yes. Raised money for him.
m-Rate increase was partially unfavorable to you?
m-Call back Karen Pickett for testimony on study session.
Judge-Transcript and recording?
m-Disc has entire session gambling portion much smaller.
b-Prefer whole tape listened to.
m-Whole meeting 50 minutes.
b-No objection if authenticated.
m-Call Karen Pickett. (k)
k-sworn in apologizes for wearing jeans.
m-You attended June 23 study session did you record?
k-Yes I did.
m-Plaintiff exhibit 77 do you recognize?
k-Yes I do.
m-A true and correct information on Ruston study session June 23?
m-Move to offer into exhibit 77. No objection.
m-Your honor listen to.
Judge-excuse Karen Pickett.
b-No further witnesses.
j-15 minute break. Closing statements 15 minutes each and rebuttal.
m-Secret to playing this?
Clerk- Play on my player I have speakers.
Judge-How long is portion on gambling?
j-Play relevant portion of study session tape.
m-Pl exh 77 for record.
Tape-Delay cannot start tape.
m-Sound not able to be heard.
Judge-No need to transcribe. Would need to download software to my computer.
m-Willing to do closing now.
j-How long closing statements?
m-15 minutes.
b-30 minutes.
Judge-Forgo playing it, been testimony about what was discussed.
m-June 23 study session no public comment.
j-Try on Miss Mendes computer (bailiff).
m-Go to 1836 can hear now.
Judge-Ready, back on record play relevant portion of exhibit 77 tape of gambling tax discussion by council.
Voice of Dan Albertson heard: Raise Gambling tax. Look at gambling tax and other areas. Is lower here than other states. Why are we so low? Most ridiculous, absurd I have ever heard. What are revenues and expenses and how to bridge the gap. Question is gambling tax an appropriate thing to look at, irresponsible. Find sources of revenue. Virtually every other jurisdiction does, astounds me. Does it have an ordinance number? Looking at every item. Looking at it 2 out of 3, need to do, call Department of Revenue.
(Very brief seven minutes)
m-Done with gambling tax portion.
Judge-Did you listen to this Mr. Britton?
b-Just now.
j-BREAK. Talk to staff.
3:30 pm Judge-
Will not rush through closing. Resume at 10:30 am tomorrow. Arguments to sum up. Not a problem I hope.
m-Need to clear calendar.
b-Already cleared for trial.
Comment: All witness testimony finished only closing arguments left. ps They took quite longer than estimates.
First Joan Mell attorney for plaintiff Steve Fabre, Point Defiance Cafe and Casino.
Next David Britton for defendant Town of Ruston.
-30-
Friday, May 21, 2010
CASINO v RUSTON - DAY TWO - MORNING SESSION - JANE HUNT
Tuesday May 18, 2010 9:00 am courtroom 2A Judge Fred Cuthbertson
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
m- Bench trial not Jury trial.
Statement of Judge Cuthbertson-
.Pre trial party briefs, proposed jury instructions as well as brief including stipulated facts.
. Most of facts stipulated, relief:
1-Declatory judgment.
2-Injunctive relief from imposing tax on Mr. Fabre.
.Relief same as opening as well as stipulated facts properly before a judge not jury.
.Jury not qualified to provide declatory relief not injunctive relief.
.Issues:
>Use of Police department to regulate Point Defiance Cafe and Casino.
>Also issues raised about motivation of some council members.
>One Ruston annexed to Tacoma freezing out Mr. Fabre's business.
>Neighbors had grudge.
>Secondary to legal and equitable to due process whether declatory or injunctive relief should take place.
>Whether council acted outside of authority when they passed gambling tax.
>Gambling tax voted on after first reading.
>Legal issues clearly predominate.
>Believe parties have made their case.
m- Prior ruling agree with judge. RCW 946 Gambling Tax only spent for local gambling law enforcement.
m-Return jury fee?
b-Object to that.
b-Huge conundrum, I don't know if average juror could understand. More of a bench trial.
WITNESS Jane Hunt, Ruston council person sworn in.
h-Built house five years ago. Home in Ruston since 1996 lived there since 2000.
h-Worked for JC Penney.
h-Developed strip mall properties.
m-You were initially on Planning commission. Did you consider buying property or Commencement devlopment property in Ruston?
b-Objection not relevant.
Judge-sustained. Restate question.
m-Did you have interest in commercial partnership?
h-No. Rachman Investments development company interested primarily in lease.
h-Interest ended on Planning commission and in 2008 new role as a council member.
h- I was appointed as council person 2008.
m-Bradley Huson asked you to join council?
b-Objection.
J-Restate question.
m-Bradley Huson ask co planning commission member?
h-First term appointed second term elected.
m-Interest in Ruston politics published Ruston Connection?
b-Objection to this line of questioning.
m-Mr. Fabre suing Ruston Connection?
h-Virginia Carpio editor. Heard but not from her.
m-You were concerned lack of rules? You spent several hours promulgating procedures. What do you gain?
m-Council mayor disruptive also disruption came from people in audience eliminating public comment at study sessions and regular council meetings?
h-Comments never allowed at study sessions.
h-Eliminated at regular session then put comments at end of session then moned to front of session.
m-After gambling tax increase increase you formalized rules and procedures?
h-Yes.
m-Adopted by way of Resolution each council member voted on following them?
h-Sometimes if we remember we vote on.
m-You expected public to follow? You expected public to follow? You expected Mayor to enforce?
h-Yes.
m-Do you recall study session when gambling tax gambling tax discussed? Were public comments allowed?
h-Twenty people showed up stood up and identified themselves.
m-May 5th not on agenda?
h-Taken off at meeting.
m-Plaintiff exhibit 73 Agenda Regular Council meeting May 5, 2008.
Review meeting minutes. Do you recall ordinance was tabled not heard? No public comment allowed?
h-Probably not. All comments not listed.
m- She (town clerk) just pick and choose comments?
Judge-Read past comments to prompt witness testimony.
m- May 5 section called Public Comments:
(name of commentor) (witness response)
Jim Wingard spoke? Yes.
John Schroeder spoke? Yes.
Sherri Forsch spoke? Yes.
John Andersen spoke? Yes.
Terry Knapp spoke? Yes.
Kevin Moser spoke? Yes.
m- None spoke of gambling tax?
h-Yes.
m-End of meeting comments. Agenda item moved to study session not noted?
h-Tabled to future study session.
m-No date though?
h-Can't remember. Moved to study session to look into.
m-You had a motion for 20 percent gambling tax increase at one time?
h-Yes. Kim Wheeler lowered rate.
m-Did you talk about graduated tax rate?
h-Yes.
m-Do you look at gambling ordinance?
h-Ruston no. State of Washington had it.
m-If you have not seen 20 percent tax what are you relying on?
m-Changes by Wheeler, two, handed to Jane.
h-Reviewing. ten percent 1974 Ordinance 660.
m-What are you referencing? Read it.
h-Whole thing?
h-Not sure if in another Ordinance since 1974. This one Wheeler lowered it.
m-It was 10 percent not 20 percent correct?
h-Yes.
m-Try to focus on chronology after May. Refer to meeting minutes June 23, 2008 study session. Review that document.
m-No reference to Ordinance or 20 percent increase?
Judge-Say again.
h-We were looking at deficit all possible tax increases, gambling was one of them.
h-Since then we have had utility, gas tax increases.
m-Did you have an ordinance in front of you?
h-Reviewing all sources, hotel motel tax. Will have 200,000 square feet down below. New sewer tax 2009.
m-In 2008 gambling tax only?
h-In 2009 increased all of them. In 2008 increase B&O tax, gambling tax and B&O tax. Utility, gas and sewer taxes in 2009.
m-Dedicated to funds?
h-Gambling to general fund for police enforcement. Monies we needed. My bible AWC (Association Washington Cities).
m-Who gave you the bible?
Judge- Marked as exhibit. Brief 3 minute RECESS.
h-AWC class on revenue. Toni emailed me a list of taxes.
m-Got gambling tax training class before gambling tax increase?
m-Gambling tax used primarily for gambling tax enforcement?
h-$400 thousand dollars for law enforcement.
m-Any discussion before vote? Read RCW (Revised Code of Washington) before?
h-Read all RCW.
m-Explore gambling act provisions unfamiliar with?
h-No in review.
b-Objection. Not evidence.
Judge-Overruled.
m-Are all decisions explained to you? Ruston required additional gambling tax enforcement?
h-Get budget. Line item $400 thousand dollars for overall expenditures.
m-Did you look at police gambling tax needs?
m-Did you have concern about deficit spending before 400 percent gambling tax increase?
h-One of the reasons no gambling tax enforcement.
m-
>Did tou talk to police?
>Did you look at police activity list?
>Did you do comparison with other communities?
>Did you talk to Washington State gambling commission?
>Did you talk to recreation commission?
>Did you talk to Steve Fabre?
h-Yes not about that.
b- Objection
Judge- Overruled.
m-No study session from Gambling commission, law enforcement?
h-Don't remember.
m-Was police budget sufficient to enforce gambling act?
h-No.
m-Mr. Fabre not allowed to speak June 23 meeting?
h-Don't remember.
m-Did he give testimony at special session?
h-Not sure. Don't know if he (Fabre) was there.
m-No testimony given before June 23.
h-Yes.
m-Plaintiff exhibit 74 add meeting minutes.
m-Gambling tax enforcement mentioned before July 7? No reference correct?
h-Right, no reference to.
b-Objection. Offer to prove to extent no.
Judge-Going to admit Pl Exh 74 over objection.
m-No public comment on Ordinance 1253 allowed?
h-Not that I remember.
m-Did you talk to (Police Chief) Sharon Reese?
b-Objection.
Judge-Overruled.
m-On July 7 no talk of enforcement of gambling act?
h-I don't remember.
m-Review staff report Pl exh 32 printout (also on disc)?
h-Reviewing document for gambling enforcement?
h-No.
Judge-Pl Exh 32 admitted over objection.
m-Disc as part of 32.
m-Budget deficit $400 thousand dollars?
h-Not sure.
m-How much was for gambling enforcement?
h-Don't know.
m-Unicorn used law enforcement?
h-Yes.
m-At July 7 meeting was first reading Ordinance 1253?
h-Don't remember.
m-Remember talk of bypassing second reading?
h-Ordinance emailed to me.
m-Was it posted?
h-Posted at Town Hall.
m-Public got first notice at posting not before?
h-Yes.
m-Rules and Procedures admitted?
Judge-Admitted under Pl exh 30.
m-Procedures of Ruston require vote to waive second reading? Requires super majority?
h-Don't know.
m-I direct you to rule 22.
h-Reviews. The intent to go by. Not law, can disregard.
m-So you can bypass if you wish?
m-does it require super majority?
h- No.
m-How many votes on that issue?
h-One more than majority. Had three.
m-One more than majority of council?
h-Yes. Rules for Fircrest.
m-If 4 majority 3?
h-No, I guess.
m-Shows Pl exh 59.
h-Don't know where this came from. Council person Albertson did a lot of the research report referred to.
1050am Judge takes both counsels into adjoining room.
h-Asking about report did elaborate study something about it.
m-Document was in there specifically? Did not indicate effective date?
h-Five days after passage.
b-Objection.
Judge-Overruled. Reasonable cause five days.
m- Is that state law? Normally counsel advises? Usually written in Ordinance?
h-Don't remember.
CROSS EXAMINATION David Britton
b-Uhm. There was talk about meeting minutes. Do they always report everything?
h-Awful job.
b-Possibly missed, same for agenda. Added at beginning of Council meeting?
h-Yes.
b-Ordinance 1253 tabled at April 5 meeting, brought up at study session, brought up at July 7 regular council meeting?
h-Yes. Town running at deficit?
b-Impact consideration of gambling tax?
h-Looking at all taxes.
b-Who presides at meetings?
h-Mayor.
b-Who calls for vote?
h-Mayor.
Who records?
h-Town clerk.
h-Town attorney provides answers.
b-How often Town Attorney asked?
h-Don't remember that issue.
b-Who is responsible for rules?
h-Not sure.
b-At town council?
m-Objection.
b-Any exhibits?
m-Objection.
b-Guest speakers- public comments allowed?
h-Yes at presentation not meeting.
b-Anyone in audience ask questions?
m-Objection.
Judge- Uphold. Not relevant to time period.
b-Rules adopted. Discretion when to enforce? This or that rule to be enforced?
h-No.
b-How many annual budgets did you work on?
h-Three.
b-Familiar with budget?
h-Yes.
b-Shows transcript of July 7 meeting. No mention of gambling tax enforcement. Testify as to legality at July 7 meeting?
Judge-Hold on a second. Question is ambiguous.
b-Transcript of July 7 meeting. Discussion of legal aspects of gambling tax enforcement?
h-Discussed at July 7 meeting? I guess I say no.
b-Did you discuss at study session?
h-Police enforcement.
b-Apology, that was what I was getting at.
b-Employment?
h-JC Penney, regional staff manager.
b-Any other position at JC Penney?
h-Regional sales manager.
b-Require travel? How many stores?
h-Decorating. Closed 11 kept 2 closed decorating.
b-Did you intend to tax Mr. Fabre out of business?
h-Mr. Fabre responsible for going out of business. Not tax increase.
Judge-Any testimony on direct outside of scope and qualifying witness as expert unless reviewed books of Casino.
b-Withdraw question.
b-Regularly attend Town council meetings?
h-Yes for five years. Almost all of them. All when Kim mayor. He testified town in black.
b-Funds for gambling enforcement?
h-In general budget.
b-See Mr. Fabre at meeting? At study session June 23 or council meeting July 7?
h-Don't remember.
b-What did you discuss with him?
h-Told him not my responsibility to run his business. He needed to run it on his own.
Judge- BREAK 15 minutes running over.
b-Rate on proposed tax tax rate initially?
h-20 percent.
b-How did it get to 12 percent.
h-I did that. Intention was to eventually raise to 20 percent.
b-Did you intend to close business?
h-No.
b-Did you follow procedures?
h-Yes.
m-Require law enforcement if public comment during business?
h-Up to mayor. If belligerent or outspoken tells them to be quiet.
m- Whole list of of taxes but discussed gambling tax only?
m-Approved minutes at next meeting?
h-Meetings June, July approved later in year. Yes.
m-You didn't challenge meeting minutes?
h-Don't remember.
b-Sometimes months later. Do you remember them?
h-No.
Judge- Cuthbertson to jane Hunt. Judge- (j)
j-I have a couple of questions.
j-Ask you about plaintiff exhibit 41 Ordinance.
j-Give you my copy to look at Mrs. Hunt. Suggest looking at Exhibit 31 minutes of council meeting amendment you offered. What was your other amendment?
h-20 percent to 12 percent.
j-Verbatim, exhibit 32, report of proceedings. Had to do with state license. Major amendment.
h-Amended with State of Washington and business license.
j-Casino license and family license. Did it pass?
h-I think it did. not sure. Shows up here. They did get it in here.
j-Looks like second. Guess what is confusing all other amended portions underlined that section not underlined.
j-Any other application for gambling in 2008?
h-I don't think so.
j-When was requirement to be effective?
h-Had to have a license to date.
j-When presented to clerk in Ruston I guess my question so somebody came in on july 8 and said I am going to open up and I am licensed permit approved they wouldn't know to present that to clerk?
h-Not unless clerk told them.
j-Not codified until August, clerk not notified?
h-She should know that. Codified into book.
j-You didn't know on July 7 when Ordinance would take effect?
h-Thought, assumption, 5 days after signed.
j-When deliberating about this tax Mr. Hedrick only council person opposed. His consideration when revenues low raising his taxes 400 percent would drive him out of business and town would lose it's largest taxpayer.
h-We had two options:
1-Wait two years.
2-Raise taxes and help town.
h-Marcotte study said town near dead end needed to liven it up.
j-Risks and rewards in business. You are a business person.
j-Did council discuss 400 percent increase might lose business? You compromised at 12 percent.
j-Was there discussion about whether Mr. Fabre would close and you would lose biggest taxpayer?
j-We (Tacoma) lost Frank Russell. Did you discuss losing largest taxpayer?
h-I did get five phone calls that brought that up don't want to drive business away.
h-Down below 60 acres, 200,000 square feet retail. Had more potential could have casino on waterfront.
j-Have you looked back at this?
h-No state law.
j-Purpose of tax? Primary purpose of tax dedicated to gambling law enforcement?
Did discuss that but not at open meeting. Maybe at special session. Big proponent of.
j-Did you get legal opinion on reliability of revenue source?
h-Counsel was there responsible for being written correctly.
j-Did the town of Ruston request legal opinion? Can we do this?
h-Don't know.
j-Further discussion on further casino operations?
h-We could do like Tacoma but would require two year notice to Mr. Fabre.
j-Discussed that at special session?
h-Yes.
J- Don't know minutes incomplete.
j-Did you discuss moratorium outside of council?
h-I personally did not.
j-It seems at council meeting lots of things discussed prior to July 7?
h-Ready to go July 7. Mr. Hedrick said we needed more time.
j-No we are ready to go? Do you feel it was thoroughly vetted before you voted July 7?
h-Yes.
j-I assume that happened April 5?
h-Some council persons did on their owm. Not Mr. Hedrick.
m-Clarify dates:
>First date proposed May 25 tabled.
>Second date June 23 study session.
>No discussion May 25 tabled? Only discussion June 23 right?
h-Yes.
12:00 noon. Judge- ALL RISE lunch resume 1:30 pm.
Comment Jane Hunt witness took the whole morning session.
-30-
Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
m- Bench trial not Jury trial.
Statement of Judge Cuthbertson-
.Pre trial party briefs, proposed jury instructions as well as brief including stipulated facts.
. Most of facts stipulated, relief:
1-Declatory judgment.
2-Injunctive relief from imposing tax on Mr. Fabre.
.Relief same as opening as well as stipulated facts properly before a judge not jury.
.Jury not qualified to provide declatory relief not injunctive relief.
.Issues:
>Use of Police department to regulate Point Defiance Cafe and Casino.
>Also issues raised about motivation of some council members.
>One Ruston annexed to Tacoma freezing out Mr. Fabre's business.
>Neighbors had grudge.
>Secondary to legal and equitable to due process whether declatory or injunctive relief should take place.
>Whether council acted outside of authority when they passed gambling tax.
>Gambling tax voted on after first reading.
>Legal issues clearly predominate.
>Believe parties have made their case.
m- Prior ruling agree with judge. RCW 946 Gambling Tax only spent for local gambling law enforcement.
m-Return jury fee?
b-Object to that.
b-Huge conundrum, I don't know if average juror could understand. More of a bench trial.
WITNESS Jane Hunt, Ruston council person sworn in.
h-Built house five years ago. Home in Ruston since 1996 lived there since 2000.
h-Worked for JC Penney.
h-Developed strip mall properties.
m-You were initially on Planning commission. Did you consider buying property or Commencement devlopment property in Ruston?
b-Objection not relevant.
Judge-sustained. Restate question.
m-Did you have interest in commercial partnership?
h-No. Rachman Investments development company interested primarily in lease.
h-Interest ended on Planning commission and in 2008 new role as a council member.
h- I was appointed as council person 2008.
m-Bradley Huson asked you to join council?
b-Objection.
J-Restate question.
m-Bradley Huson ask co planning commission member?
h-First term appointed second term elected.
m-Interest in Ruston politics published Ruston Connection?
b-Objection to this line of questioning.
m-Mr. Fabre suing Ruston Connection?
h-Virginia Carpio editor. Heard but not from her.
m-You were concerned lack of rules? You spent several hours promulgating procedures. What do you gain?
m-Council mayor disruptive also disruption came from people in audience eliminating public comment at study sessions and regular council meetings?
h-Comments never allowed at study sessions.
h-Eliminated at regular session then put comments at end of session then moned to front of session.
m-After gambling tax increase increase you formalized rules and procedures?
h-Yes.
m-Adopted by way of Resolution each council member voted on following them?
h-Sometimes if we remember we vote on.
m-You expected public to follow? You expected public to follow? You expected Mayor to enforce?
h-Yes.
m-Do you recall study session when gambling tax gambling tax discussed? Were public comments allowed?
h-Twenty people showed up stood up and identified themselves.
m-May 5th not on agenda?
h-Taken off at meeting.
m-Plaintiff exhibit 73 Agenda Regular Council meeting May 5, 2008.
Review meeting minutes. Do you recall ordinance was tabled not heard? No public comment allowed?
h-Probably not. All comments not listed.
m- She (town clerk) just pick and choose comments?
Judge-Read past comments to prompt witness testimony.
m- May 5 section called Public Comments:
(name of commentor) (witness response)
Jim Wingard spoke? Yes.
John Schroeder spoke? Yes.
Sherri Forsch spoke? Yes.
John Andersen spoke? Yes.
Terry Knapp spoke? Yes.
Kevin Moser spoke? Yes.
m- None spoke of gambling tax?
h-Yes.
m-End of meeting comments. Agenda item moved to study session not noted?
h-Tabled to future study session.
m-No date though?
h-Can't remember. Moved to study session to look into.
m-You had a motion for 20 percent gambling tax increase at one time?
h-Yes. Kim Wheeler lowered rate.
m-Did you talk about graduated tax rate?
h-Yes.
m-Do you look at gambling ordinance?
h-Ruston no. State of Washington had it.
m-If you have not seen 20 percent tax what are you relying on?
m-Changes by Wheeler, two, handed to Jane.
h-Reviewing. ten percent 1974 Ordinance 660.
m-What are you referencing? Read it.
h-Whole thing?
h-Not sure if in another Ordinance since 1974. This one Wheeler lowered it.
m-It was 10 percent not 20 percent correct?
h-Yes.
m-Try to focus on chronology after May. Refer to meeting minutes June 23, 2008 study session. Review that document.
m-No reference to Ordinance or 20 percent increase?
Judge-Say again.
h-We were looking at deficit all possible tax increases, gambling was one of them.
h-Since then we have had utility, gas tax increases.
m-Did you have an ordinance in front of you?
h-Reviewing all sources, hotel motel tax. Will have 200,000 square feet down below. New sewer tax 2009.
m-In 2008 gambling tax only?
h-In 2009 increased all of them. In 2008 increase B&O tax, gambling tax and B&O tax. Utility, gas and sewer taxes in 2009.
m-Dedicated to funds?
h-Gambling to general fund for police enforcement. Monies we needed. My bible AWC (Association Washington Cities).
m-Who gave you the bible?
Judge- Marked as exhibit. Brief 3 minute RECESS.
h-AWC class on revenue. Toni emailed me a list of taxes.
m-Got gambling tax training class before gambling tax increase?
m-Gambling tax used primarily for gambling tax enforcement?
h-$400 thousand dollars for law enforcement.
m-Any discussion before vote? Read RCW (Revised Code of Washington) before?
h-Read all RCW.
m-Explore gambling act provisions unfamiliar with?
h-No in review.
b-Objection. Not evidence.
Judge-Overruled.
m-Are all decisions explained to you? Ruston required additional gambling tax enforcement?
h-Get budget. Line item $400 thousand dollars for overall expenditures.
m-Did you look at police gambling tax needs?
m-Did you have concern about deficit spending before 400 percent gambling tax increase?
h-One of the reasons no gambling tax enforcement.
m-
>Did tou talk to police?
>Did you look at police activity list?
>Did you do comparison with other communities?
>Did you talk to Washington State gambling commission?
>Did you talk to recreation commission?
>Did you talk to Steve Fabre?
h-Yes not about that.
b- Objection
Judge- Overruled.
m-No study session from Gambling commission, law enforcement?
h-Don't remember.
m-Was police budget sufficient to enforce gambling act?
h-No.
m-Mr. Fabre not allowed to speak June 23 meeting?
h-Don't remember.
m-Did he give testimony at special session?
h-Not sure. Don't know if he (Fabre) was there.
m-No testimony given before June 23.
h-Yes.
m-Plaintiff exhibit 74 add meeting minutes.
m-Gambling tax enforcement mentioned before July 7? No reference correct?
h-Right, no reference to.
b-Objection. Offer to prove to extent no.
Judge-Going to admit Pl Exh 74 over objection.
m-No public comment on Ordinance 1253 allowed?
h-Not that I remember.
m-Did you talk to (Police Chief) Sharon Reese?
b-Objection.
Judge-Overruled.
m-On July 7 no talk of enforcement of gambling act?
h-I don't remember.
m-Review staff report Pl exh 32 printout (also on disc)?
h-Reviewing document for gambling enforcement?
h-No.
Judge-Pl Exh 32 admitted over objection.
m-Disc as part of 32.
m-Budget deficit $400 thousand dollars?
h-Not sure.
m-How much was for gambling enforcement?
h-Don't know.
m-Unicorn used law enforcement?
h-Yes.
m-At July 7 meeting was first reading Ordinance 1253?
h-Don't remember.
m-Remember talk of bypassing second reading?
h-Ordinance emailed to me.
m-Was it posted?
h-Posted at Town Hall.
m-Public got first notice at posting not before?
h-Yes.
m-Rules and Procedures admitted?
Judge-Admitted under Pl exh 30.
m-Procedures of Ruston require vote to waive second reading? Requires super majority?
h-Don't know.
m-I direct you to rule 22.
h-Reviews. The intent to go by. Not law, can disregard.
m-So you can bypass if you wish?
m-does it require super majority?
h- No.
m-How many votes on that issue?
h-One more than majority. Had three.
m-One more than majority of council?
h-Yes. Rules for Fircrest.
m-If 4 majority 3?
h-No, I guess.
m-Shows Pl exh 59.
h-Don't know where this came from. Council person Albertson did a lot of the research report referred to.
1050am Judge takes both counsels into adjoining room.
h-Asking about report did elaborate study something about it.
m-Document was in there specifically? Did not indicate effective date?
h-Five days after passage.
b-Objection.
Judge-Overruled. Reasonable cause five days.
m- Is that state law? Normally counsel advises? Usually written in Ordinance?
h-Don't remember.
CROSS EXAMINATION David Britton
b-Uhm. There was talk about meeting minutes. Do they always report everything?
h-Awful job.
b-Possibly missed, same for agenda. Added at beginning of Council meeting?
h-Yes.
b-Ordinance 1253 tabled at April 5 meeting, brought up at study session, brought up at July 7 regular council meeting?
h-Yes. Town running at deficit?
b-Impact consideration of gambling tax?
h-Looking at all taxes.
b-Who presides at meetings?
h-Mayor.
b-Who calls for vote?
h-Mayor.
Who records?
h-Town clerk.
h-Town attorney provides answers.
b-How often Town Attorney asked?
h-Don't remember that issue.
b-Who is responsible for rules?
h-Not sure.
b-At town council?
m-Objection.
b-Any exhibits?
m-Objection.
b-Guest speakers- public comments allowed?
h-Yes at presentation not meeting.
b-Anyone in audience ask questions?
m-Objection.
Judge- Uphold. Not relevant to time period.
b-Rules adopted. Discretion when to enforce? This or that rule to be enforced?
h-No.
b-How many annual budgets did you work on?
h-Three.
b-Familiar with budget?
h-Yes.
b-Shows transcript of July 7 meeting. No mention of gambling tax enforcement. Testify as to legality at July 7 meeting?
Judge-Hold on a second. Question is ambiguous.
b-Transcript of July 7 meeting. Discussion of legal aspects of gambling tax enforcement?
h-Discussed at July 7 meeting? I guess I say no.
b-Did you discuss at study session?
h-Police enforcement.
b-Apology, that was what I was getting at.
b-Employment?
h-JC Penney, regional staff manager.
b-Any other position at JC Penney?
h-Regional sales manager.
b-Require travel? How many stores?
h-Decorating. Closed 11 kept 2 closed decorating.
b-Did you intend to tax Mr. Fabre out of business?
h-Mr. Fabre responsible for going out of business. Not tax increase.
Judge-Any testimony on direct outside of scope and qualifying witness as expert unless reviewed books of Casino.
b-Withdraw question.
b-Regularly attend Town council meetings?
h-Yes for five years. Almost all of them. All when Kim mayor. He testified town in black.
b-Funds for gambling enforcement?
h-In general budget.
b-See Mr. Fabre at meeting? At study session June 23 or council meeting July 7?
h-Don't remember.
b-What did you discuss with him?
h-Told him not my responsibility to run his business. He needed to run it on his own.
Judge- BREAK 15 minutes running over.
b-Rate on proposed tax tax rate initially?
h-20 percent.
b-How did it get to 12 percent.
h-I did that. Intention was to eventually raise to 20 percent.
b-Did you intend to close business?
h-No.
b-Did you follow procedures?
h-Yes.
m-Require law enforcement if public comment during business?
h-Up to mayor. If belligerent or outspoken tells them to be quiet.
m- Whole list of of taxes but discussed gambling tax only?
m-Approved minutes at next meeting?
h-Meetings June, July approved later in year. Yes.
m-You didn't challenge meeting minutes?
h-Don't remember.
b-Sometimes months later. Do you remember them?
h-No.
Judge- Cuthbertson to jane Hunt. Judge- (j)
j-I have a couple of questions.
j-Ask you about plaintiff exhibit 41 Ordinance.
j-Give you my copy to look at Mrs. Hunt. Suggest looking at Exhibit 31 minutes of council meeting amendment you offered. What was your other amendment?
h-20 percent to 12 percent.
j-Verbatim, exhibit 32, report of proceedings. Had to do with state license. Major amendment.
h-Amended with State of Washington and business license.
j-Casino license and family license. Did it pass?
h-I think it did. not sure. Shows up here. They did get it in here.
j-Looks like second. Guess what is confusing all other amended portions underlined that section not underlined.
j-Any other application for gambling in 2008?
h-I don't think so.
j-When was requirement to be effective?
h-Had to have a license to date.
j-When presented to clerk in Ruston I guess my question so somebody came in on july 8 and said I am going to open up and I am licensed permit approved they wouldn't know to present that to clerk?
h-Not unless clerk told them.
j-Not codified until August, clerk not notified?
h-She should know that. Codified into book.
j-You didn't know on July 7 when Ordinance would take effect?
h-Thought, assumption, 5 days after signed.
j-When deliberating about this tax Mr. Hedrick only council person opposed. His consideration when revenues low raising his taxes 400 percent would drive him out of business and town would lose it's largest taxpayer.
h-We had two options:
1-Wait two years.
2-Raise taxes and help town.
h-Marcotte study said town near dead end needed to liven it up.
j-Risks and rewards in business. You are a business person.
j-Did council discuss 400 percent increase might lose business? You compromised at 12 percent.
j-Was there discussion about whether Mr. Fabre would close and you would lose biggest taxpayer?
j-We (Tacoma) lost Frank Russell. Did you discuss losing largest taxpayer?
h-I did get five phone calls that brought that up don't want to drive business away.
h-Down below 60 acres, 200,000 square feet retail. Had more potential could have casino on waterfront.
j-Have you looked back at this?
h-No state law.
j-Purpose of tax? Primary purpose of tax dedicated to gambling law enforcement?
Did discuss that but not at open meeting. Maybe at special session. Big proponent of.
j-Did you get legal opinion on reliability of revenue source?
h-Counsel was there responsible for being written correctly.
j-Did the town of Ruston request legal opinion? Can we do this?
h-Don't know.
j-Further discussion on further casino operations?
h-We could do like Tacoma but would require two year notice to Mr. Fabre.
j-Discussed that at special session?
h-Yes.
J- Don't know minutes incomplete.
j-Did you discuss moratorium outside of council?
h-I personally did not.
j-It seems at council meeting lots of things discussed prior to July 7?
h-Ready to go July 7. Mr. Hedrick said we needed more time.
j-No we are ready to go? Do you feel it was thoroughly vetted before you voted July 7?
h-Yes.
j-I assume that happened April 5?
h-Some council persons did on their owm. Not Mr. Hedrick.
m-Clarify dates:
>First date proposed May 25 tabled.
>Second date June 23 study session.
>No discussion May 25 tabled? Only discussion June 23 right?
h-Yes.
12:00 noon. Judge- ALL RISE lunch resume 1:30 pm.
Comment Jane Hunt witness took the whole morning session.
-30-
Wednesday, May 19, 2010
CASINO v RUSTON - DAY ONE AFTERNOON SESSION -WHEELER, EVERDING
Monday May 17, 2010 1:30 pm courtroom 2A Judge Fred Cuthbertson
Please note:No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
RE ADJOURN
Judge- to attorneys take a break between question and answer. Humorous holds hands in front of mouth.
Britton (b)- Council Person Albertson?
Judge- Will take Dan Albertson out of order.
WITNESS Kim Wheeler, former Police Chief of Ruston and former Mayor of Ruston.
k- Lived in Ruston nine years.
k- Had training in 1988 became Police Chief in 1990.
k- Mayor of Ruston 2002 to 2005.
k- 2005 still active applied for vacancy in mayor's office.
k- Up until last year aware of budget. Previously worked on budget.
k- As Mayor all reserves exhausted. Down to general fund access money.
k- When I left better off than ever before.
k- When I left law enforcement budget around $280 to $300 thousand dollars.
k- Gave up when they tried to burn through money, frivolous lawsuits ...
Judge- Strike last comment.
m- Mr. Fabre what was his intent on gambling?
k- Council thought it would be beneficial, help business area.
m- Mr Fabre as to taxation?
k- Negotiated plan for graduated tax based on revenue generated. Both do well or he pays minimum.
m- Ordinance 1132 for Social card games. Made graduated rates more efficient?
k- Yes, greater benefit to town if greater volume.
m- Initial category zero percent up to seventy thousand dollars.
k- Seventy thousand leaves no net income point to begin taxation.
m- Tax profit generated revenue for town, benefit to town? Was he only taxpayer for this tax?
k- Yes for this tax.
m- After negotiations with owner and council was Mr. Fabre relying on that graduated rate to do business in Ruston?
k- Yes, in best interest of both else not keeping business open we get nothing.
m- Was graduated tax temporary?
k- No. Graduated rate was for years to come.
m- Revenue to affect tax enforcement requirements nothing. Has local knowledge of budget. Prior business was heavy metal. Card room tax needed none.
m- Things changed in 2008.
m- Ability of Ruston to tax based on limit of enforcement.
m- Was there more tax raised than needed?
k- Yes.
m- Any changes in law enforcement since gambling?
k- No change in activity for 15 years.
m- More tax needed to enforce gambling act?
k- No. Mr. Fabre complied with taxes.
m- Did you attend July 7 hearing?
k- Don't know. Went to council after tax increase was of no benefit to Ruston.
m- Benefits decreased markedly?
k- Yes
CROSS EXAMINATION
David Britton (b) You applied for mayor when Hopkins appointed. What other meetings have you attended?
k- Don't know haven't kept calendar.
b- Wasn't town running half million dollar deficit? Wasn't revenue less than expenses?
k- No. Had 4 to 5 million in bank. Were putting money back into funds.
b- Revenue exceeded expenses?
k- Yes we had balanced budget.
b- Testified direct that Mr. Fabre made profit?
k- Excess of 70 thousand gross revenue he paid taxes.
b- Did you tell Mr. Fabre graduated tax rate was in perpetuity?
k- No not in perpetuity.
m- Card room games only not overall business.
k- Yes.
WITNESS Sally Everding, Ruston Codifier.
m- Live down the alley from the PDC&Casino?
Sally s- Drive down here to our driveway (pointing at picture of PDC&C).
b- Objection. Lived not enjoyed your neighborhood?
Judge- overruled.
s- Had objection to light in my bedroom window.
m- background in records, hired to codify records? Jane Bradley asked you?
s- Council yes.
m- Your husband was Mayor for ten days? Records had not been codifying for years?
s- Did some.
m- You have MBA from Stanford?
s- Yes.
m- You had many interests Ruston Connection?
s- Yes.
b- Objection.
Judge- overruled.
m- What is Ruston Connection?
s- Several friends and I worked on newsletter, not advocacy.
m- One article said gambling taxes weren't high enough?
s- Candidate said taxes were lowest in Pierce County.
m Plaintiff exhibit 55. Handed to Sally "This is article you wrote?"
s- I didn't write article Virginia was editor.
m- Your name is at end of article.
s- I posted on website.
m- Information was taken from News Tribune article?
s- There was error. I was not editor at time.
m- Ruston Connection had litigation with Steve Fabre?
s- Aware of it not involved. Virginia editor, Jane Hunt printed.
m- You codified Gambling Tax Ordinance? Plaintiff exhibit 41 Gambling Tax Ordinance.
m- Was that article you codified?
s- She sent me copy.
m- You had minutes?
s- Pl exh 31 document you had. Bradley Huson signed minutes.
Judge- 55 objected to parties. Admit 55 Pl Exh over objections. 41 and 39 admitted.
m- Did you codify, add July 7th date?
m- What if ordinance didn't have effective date?
s- I used date passed.
m- You just picked a date?
b- Objection.
CROSS EXAMINATION
David Britton - no questions.
Step down.
Judge- Deferring to Dan Albertson.
DAN ALBERTSON - former Ruston council member.
TO BE CONTINUED. GETTING LATE. WILL DO EACH WITNESS LEFT AS SEPARATE POST: Dan Albertson, Jane Hunt, Steve Fabre, Bradley Huson. Then each attorney summation.
-30-
Please note:No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each says they have the law on their side but Judge Cuthbertson makes the final determination.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
RE ADJOURN
Judge- to attorneys take a break between question and answer. Humorous holds hands in front of mouth.
Britton (b)- Council Person Albertson?
Judge- Will take Dan Albertson out of order.
WITNESS Kim Wheeler, former Police Chief of Ruston and former Mayor of Ruston.
k- Lived in Ruston nine years.
k- Had training in 1988 became Police Chief in 1990.
k- Mayor of Ruston 2002 to 2005.
k- 2005 still active applied for vacancy in mayor's office.
k- Up until last year aware of budget. Previously worked on budget.
k- As Mayor all reserves exhausted. Down to general fund access money.
k- When I left better off than ever before.
k- When I left law enforcement budget around $280 to $300 thousand dollars.
k- Gave up when they tried to burn through money, frivolous lawsuits ...
Judge- Strike last comment.
m- Mr. Fabre what was his intent on gambling?
k- Council thought it would be beneficial, help business area.
m- Mr Fabre as to taxation?
k- Negotiated plan for graduated tax based on revenue generated. Both do well or he pays minimum.
m- Ordinance 1132 for Social card games. Made graduated rates more efficient?
k- Yes, greater benefit to town if greater volume.
m- Initial category zero percent up to seventy thousand dollars.
k- Seventy thousand leaves no net income point to begin taxation.
m- Tax profit generated revenue for town, benefit to town? Was he only taxpayer for this tax?
k- Yes for this tax.
m- After negotiations with owner and council was Mr. Fabre relying on that graduated rate to do business in Ruston?
k- Yes, in best interest of both else not keeping business open we get nothing.
m- Was graduated tax temporary?
k- No. Graduated rate was for years to come.
m- Revenue to affect tax enforcement requirements nothing. Has local knowledge of budget. Prior business was heavy metal. Card room tax needed none.
m- Things changed in 2008.
m- Ability of Ruston to tax based on limit of enforcement.
m- Was there more tax raised than needed?
k- Yes.
m- Any changes in law enforcement since gambling?
k- No change in activity for 15 years.
m- More tax needed to enforce gambling act?
k- No. Mr. Fabre complied with taxes.
m- Did you attend July 7 hearing?
k- Don't know. Went to council after tax increase was of no benefit to Ruston.
m- Benefits decreased markedly?
k- Yes
CROSS EXAMINATION
David Britton (b) You applied for mayor when Hopkins appointed. What other meetings have you attended?
k- Don't know haven't kept calendar.
b- Wasn't town running half million dollar deficit? Wasn't revenue less than expenses?
k- No. Had 4 to 5 million in bank. Were putting money back into funds.
b- Revenue exceeded expenses?
k- Yes we had balanced budget.
b- Testified direct that Mr. Fabre made profit?
k- Excess of 70 thousand gross revenue he paid taxes.
b- Did you tell Mr. Fabre graduated tax rate was in perpetuity?
k- No not in perpetuity.
m- Card room games only not overall business.
k- Yes.
WITNESS Sally Everding, Ruston Codifier.
m- Live down the alley from the PDC&Casino?
Sally s- Drive down here to our driveway (pointing at picture of PDC&C).
b- Objection. Lived not enjoyed your neighborhood?
Judge- overruled.
s- Had objection to light in my bedroom window.
m- background in records, hired to codify records? Jane Bradley asked you?
s- Council yes.
m- Your husband was Mayor for ten days? Records had not been codifying for years?
s- Did some.
m- You have MBA from Stanford?
s- Yes.
m- You had many interests Ruston Connection?
s- Yes.
b- Objection.
Judge- overruled.
m- What is Ruston Connection?
s- Several friends and I worked on newsletter, not advocacy.
m- One article said gambling taxes weren't high enough?
s- Candidate said taxes were lowest in Pierce County.
m Plaintiff exhibit 55. Handed to Sally "This is article you wrote?"
s- I didn't write article Virginia was editor.
m- Your name is at end of article.
s- I posted on website.
m- Information was taken from News Tribune article?
s- There was error. I was not editor at time.
m- Ruston Connection had litigation with Steve Fabre?
s- Aware of it not involved. Virginia editor, Jane Hunt printed.
m- You codified Gambling Tax Ordinance? Plaintiff exhibit 41 Gambling Tax Ordinance.
m- Was that article you codified?
s- She sent me copy.
m- You had minutes?
s- Pl exh 31 document you had. Bradley Huson signed minutes.
Judge- 55 objected to parties. Admit 55 Pl Exh over objections. 41 and 39 admitted.
m- Did you codify, add July 7th date?
m- What if ordinance didn't have effective date?
s- I used date passed.
m- You just picked a date?
b- Objection.
CROSS EXAMINATION
David Britton - no questions.
Step down.
Judge- Deferring to Dan Albertson.
DAN ALBERTSON - former Ruston council member.
TO BE CONTINUED. GETTING LATE. WILL DO EACH WITNESS LEFT AS SEPARATE POST: Dan Albertson, Jane Hunt, Steve Fabre, Bradley Huson. Then each attorney summation.
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Tuesday, May 18, 2010
CASINO LAWSUIT FINALLY UNDERWAY
I feel like I am starting over but the case of STEVE FABRE VS. TOWN OF RUSTON has re piqued my interest. Steve Fabre dba POINT DEFIANCE CAFE AND CASINO.
Day two finished today at 3:30 pm day one at 4:15 pm.
DAY ONE May 17, 2010 Judge Frank Cuthbertson room 2A 9:00 am.
Cannot say enough about Judge Cuthbertson only outstanding. Has encyclopedic knowledge of case and questions were more direct to the point than either lawyer in my estimation.
Lawyer for plaintiff: Joan Mell for defendant Town of Ruston, David Britton.
Witnesses first day: Fred Wilson, WA state Gambling Commission, former council person Karen Pickett, former police chief Jim Reinhold, former mayor Kim Wheeler in morning session.
Afternoon session, Sally Everding, former council person Dan Albertson, Council person Bradley Huson.
Major impact testimony Fred Wilson.
DAY TWO May 18, 2010 Judge Frank Cuthbertson room 2A 9:00 am.
Witnesses day two: Council person Jane Hunt and plaintiff, Steve Fabre, owner Point Defiance Cafe and Casino.
Long sessions wrapping up tomorrow, DAY THREE, May 19, 2010 at 10:30 am with closing arguments by both attorneys.
This is short as I already have 50 pages of notes and more to come.
Background: Judge on bench, bailiff and Court Reporter below.
Opposing attorneys at separate tables. Plaintiff Steve Fabre at table. No defendant at Ruston table??
In audience ME all by my lonesome. Interesting point first comment defendant attorney referring to me "Mr. Wingard does not live in Ruston!!!"
Place your bet. After two days looking like a win for Casino but Judge must weigh all testimony AND THE LAW. So stay tuned. Final decision may take two weeks.
Will start next post with testimony DAY ONE. Spread the word. You will hear it here first hand.
Case filed 7-18-2008. To purchase or see list of documents click here. Did not work as expected. Under Superior Court type in Town of Ruston and change year to 2008. Be patient ignore blue screen.
-30-
Day two finished today at 3:30 pm day one at 4:15 pm.
DAY ONE May 17, 2010 Judge Frank Cuthbertson room 2A 9:00 am.
Cannot say enough about Judge Cuthbertson only outstanding. Has encyclopedic knowledge of case and questions were more direct to the point than either lawyer in my estimation.
Lawyer for plaintiff: Joan Mell for defendant Town of Ruston, David Britton.
Witnesses first day: Fred Wilson, WA state Gambling Commission, former council person Karen Pickett, former police chief Jim Reinhold, former mayor Kim Wheeler in morning session.
Afternoon session, Sally Everding, former council person Dan Albertson, Council person Bradley Huson.
Major impact testimony Fred Wilson.
DAY TWO May 18, 2010 Judge Frank Cuthbertson room 2A 9:00 am.
Witnesses day two: Council person Jane Hunt and plaintiff, Steve Fabre, owner Point Defiance Cafe and Casino.
Long sessions wrapping up tomorrow, DAY THREE, May 19, 2010 at 10:30 am with closing arguments by both attorneys.
This is short as I already have 50 pages of notes and more to come.
Background: Judge on bench, bailiff and Court Reporter below.
Opposing attorneys at separate tables. Plaintiff Steve Fabre at table. No defendant at Ruston table??
In audience ME all by my lonesome. Interesting point first comment defendant attorney referring to me "Mr. Wingard does not live in Ruston!!!"
Place your bet. After two days looking like a win for Casino but Judge must weigh all testimony AND THE LAW. So stay tuned. Final decision may take two weeks.
Will start next post with testimony DAY ONE. Spread the word. You will hear it here first hand.
Case filed 7-18-2008. To purchase or see list of documents click here. Did not work as expected. Under Superior Court type in Town of Ruston and change year to 2008. Be patient ignore blue screen.
-30-
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