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 David Britton. Show all posts
Showing posts with label David Britton. Show all posts
Monday, May 24, 2010
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.
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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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CASINO v RUSTON - DAY ONE MORNING SESSION - OPENING ARGUMENTS, WITNESSES
Monday May 17, 2010 9am 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.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
9-9:40 were taken up by a divorce hearing.
9:41 David Britton asking to call Dan Albertson out of order at 1:30 pm.
Judge - We'll see.
Joan - We have several witnesses here on vacation day.
Judge - four days for trial available.
OPENING ARGUMENTS - Joan Mell for plaintiff (m)
.Gambling Tax Ordinance adopted in violation of State law.
.Illegal action court can void.
David - Object to legal argument.
Judge - That is why we are here.
.Ruston identified Police as enforcement arm.
.Thought they had win win situation with Gambling ordinance.
.Sally Everding as code writer codified ordinance.
.This was a conflict of interest.
.Process used to pass ordinance allowed no public comment.
.Point Defiance Cafe and Casino is the only business affected by the Gambling ordinance.
.Procedures are important as there is an expectation of decorum.
.Jane Hunt, Dan Albertson and Bob Everding were all appointed.
b - Objection - lack of foundation.
Judge - Has been 2 to 3 readings.
.Steve Fabre allowed no input adopted without any public comment whatsoever.
.No attention was paid to enforcement costs, law enforcement needs.
.Council had no clue as to use of tax funds.
.No analysis of costs was done.
.Summary of what available to do none accomplished.
.Wanted elimination of the Town of Ruston.
.Violated limited power court needs to recognize that.
OPENING ARGUMENT - David Britton for defendant.
.Have families jobs businesses. (Ruston officials?)
.Study Session on Gambling tax held in 2008.
.Plaintiff, Mr. Fabre contacted all council members by telephone and email asking to keep sliding scale.
.Ordinance 1253 was enacted.
.Mr. Fabre paying $12,000 per month chose not to pay higher.
.Mr. Fabre lobbied all members personally did not attend.
.Study Session scheduled separately.
.No further action was taken at study session.
Judge - Public attended no comments allowed.
.July 7th was proposed originally brought to council.
.Advocated 20 percent tax rate max.
.Amended to 12 percent by Jane Hunt.
.Annual budget for law enforcement $400 thousand dollars.
.Order of magnitude increase in Gambling Tax needed.
.$32 thousand in Gambling taxes needed.
.Procedural question whether four yes votes required. Stebner absent.
.Ruston not a charter city.
.Wasted quite a bit of time on Ordinance.
Judge - Separation of Powers, interfering with Legislative function.
.Mr. Fabre cannot second guess legislation not my argument.
Judge - two thirds vote was ministerial.
.Procedures were disregarded. Policy not affect of law.
.Whole policy was not conspiracy to raise taxes and put out of business.
Judge- 1453 rule 22 does not have force of law.
.Plaintiff has not come up with ...
Judge- interrupts, What if Everding wants resolution to have Girl Scout week, Gambling week. No resolution to pass bill on first reading. Is that legal?
.No effect, absolutely no authority.
.Could have passed Ordinance but used resolution to wrap up.
Judge- We need to frame issues.
Judge- Call witnesses, reply in summation.
WITNESS Fred Wilson, WA State Gambling Commission sworn in.
.Required to regulate gambling in SW region.
.Know Steve Fabre saw 4-5 times per month.
.Dropped to class F buy in at table games.
.Started in 2004 regulated - 4 to 5 times per month max 4 hours min half hour.
Joan- Mr. Fabre complying with gambling act?
.Made under age checks failed once second OK. Business normal.
.Known Steve (Fabre) for a long time. He would call with questions.
Joan- Ruston filed complaint in 2008?
.Situation new police chief on board got call from her (Sharon Reese).
.Called to ask Gambling Commission to enforce actions.
Joan- To what extent Gambling Commission involved with Local law enforcement?
.Under age emphasis and liquor violations.
Wilson step down.
BREAK- 15 minutes.
WITNESS Karen Pickett Ruston resident (M-Joan Mell . for Karen Pickett)
.Employed by ASARCO 22 years.
.I care about my community and what is going on.
.Public was not allowed to comment at all on gambling tax ordinance.
David- Objection.
Judge- Overruled.
Provide names of council?
David- Objection.
Judge- Stipulated.
.Not allowed to participate in public sessions.
.Public comment gradually eliminated.
.Only general comments not allowed on issues.
.Mayor had police in attendance to hold public.
Mell- When did you get notice of increase in gambling tax?
.At study session.
m-Purpose of tax increase?
.Council indicated to increase revenue.
m-Your impression of ordinance?
.Enforcement of gambling activities.
m-Was ordinance adopted without public input?
.Yes.
CROSS EXAMINATION David Britton
b- You were on Ruston Town Council? (b for Britton)
k- Yes, also Civil Service. (k for Karen)
b- Not on Council in 2008?
k- Civil Service commission
k- Study session 2008 way meeting was run audience was restless.
b- Agenda was published for council meeting?
. Study session notice published?
k- General tax notice no gambling tax notice.
Judge- If there is a question who do they go to?
k- Town Attorney.
WITNESS Jim Reinhold former Police Chief in Ruston
r- Police officer in Ruston 2002-2008. (r for Reinhold)
r- Mr. Fabre purchased building town was excited to have Cafe and Casino.
m- Shows Reinhold picture of Casino. (m for Mell)
r- Before it had psychedelic pictures outside, Rock n Roll.
m- Lighting?
r- Poker neon lighting. Rear parking lot no lighting.
m- Security cameras?
r- Yes. Mr. Fabre installed. Caught 20 seconds on Pearl street. Caught crime off of facility.
m- How many calls there?
r- Very minimal not often. More calls at Unicorn tavern.
r- Administrative hearing referred to gambling commission.
r- Our policy walk thrus also Ruston Inn. More calls Unicorn tavern.
r- Had no separate budget for Point Defiance Cafe and Casino (PDC&C).
r- Came out of annual budget. 24 hours for town.
r- Did bar checks, note of presence, left.
m- Did Town council ask for activity logs?
r- No.
m- Did Ruston rely on your knowledge?
r- No.
r- My budget, cost of living, special authorization or circumstances.
r- Mr. Fabre cooperated absolutely. One incident.
m- Was that in alley way behind Casino?
r- Shooting, not relevant to Casino. Person was robbed by three persons walking down alley. Walked back into Casino for help. Casino security called 911. Had nothing to do with Casino.
b- Why?
r- Part of law enforcement activity.
b- Your presence helps with crime prevention.
b- Funds, no line item for gambling.
r- Can't recall.
b- Do you draft law enforcement activity and report to council? Do you recall submitting report, commentary during weekend?
Judge- Objects to line of questioning.
m- Not part of duties.
r- Recollect yes, my report.
r- Document, philosophy, moratorium in Tacoma weren't sure of affect on Ruston. Silver Dollar sixth avenue, establishment on Ruston Way closed.
b- Are you attorney?
r- No.
b- Any legal training?
r- Training yes.
Judge- Memo anticipating influx of gamblers same as Taste of Tacoma.
r- My anticipation, memo only. I had to accommodate gambling moratorium.
Judge- Unicorn has gambling?
r- no.
12:10 RECESS until 1:30 pm.
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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.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
9-9:40 were taken up by a divorce hearing.
9:41 David Britton asking to call Dan Albertson out of order at 1:30 pm.
Judge - We'll see.
Joan - We have several witnesses here on vacation day.
Judge - four days for trial available.
OPENING ARGUMENTS - Joan Mell for plaintiff (m)
.Gambling Tax Ordinance adopted in violation of State law.
.Illegal action court can void.
David - Object to legal argument.
Judge - That is why we are here.
.Ruston identified Police as enforcement arm.
.Thought they had win win situation with Gambling ordinance.
.Sally Everding as code writer codified ordinance.
.This was a conflict of interest.
.Process used to pass ordinance allowed no public comment.
.Point Defiance Cafe and Casino is the only business affected by the Gambling ordinance.
.Procedures are important as there is an expectation of decorum.
.Jane Hunt, Dan Albertson and Bob Everding were all appointed.
b - Objection - lack of foundation.
Judge - Has been 2 to 3 readings.
.Steve Fabre allowed no input adopted without any public comment whatsoever.
.No attention was paid to enforcement costs, law enforcement needs.
.Council had no clue as to use of tax funds.
.No analysis of costs was done.
.Summary of what available to do none accomplished.
.Wanted elimination of the Town of Ruston.
.Violated limited power court needs to recognize that.
OPENING ARGUMENT - David Britton for defendant.
.Have families jobs businesses. (Ruston officials?)
.Study Session on Gambling tax held in 2008.
.Plaintiff, Mr. Fabre contacted all council members by telephone and email asking to keep sliding scale.
.Ordinance 1253 was enacted.
.Mr. Fabre paying $12,000 per month chose not to pay higher.
.Mr. Fabre lobbied all members personally did not attend.
.Study Session scheduled separately.
.No further action was taken at study session.
Judge - Public attended no comments allowed.
.July 7th was proposed originally brought to council.
.Advocated 20 percent tax rate max.
.Amended to 12 percent by Jane Hunt.
.Annual budget for law enforcement $400 thousand dollars.
.Order of magnitude increase in Gambling Tax needed.
.$32 thousand in Gambling taxes needed.
.Procedural question whether four yes votes required. Stebner absent.
.Ruston not a charter city.
.Wasted quite a bit of time on Ordinance.
Judge - Separation of Powers, interfering with Legislative function.
.Mr. Fabre cannot second guess legislation not my argument.
Judge - two thirds vote was ministerial.
.Procedures were disregarded. Policy not affect of law.
.Whole policy was not conspiracy to raise taxes and put out of business.
Judge- 1453 rule 22 does not have force of law.
.Plaintiff has not come up with ...
Judge- interrupts, What if Everding wants resolution to have Girl Scout week, Gambling week. No resolution to pass bill on first reading. Is that legal?
.No effect, absolutely no authority.
.Could have passed Ordinance but used resolution to wrap up.
Judge- We need to frame issues.
Judge- Call witnesses, reply in summation.
WITNESS Fred Wilson, WA State Gambling Commission sworn in.
.Required to regulate gambling in SW region.
.Know Steve Fabre saw 4-5 times per month.
.Dropped to class F buy in at table games.
.Started in 2004 regulated - 4 to 5 times per month max 4 hours min half hour.
Joan- Mr. Fabre complying with gambling act?
.Made under age checks failed once second OK. Business normal.
.Known Steve (Fabre) for a long time. He would call with questions.
Joan- Ruston filed complaint in 2008?
.Situation new police chief on board got call from her (Sharon Reese).
.Called to ask Gambling Commission to enforce actions.
Joan- To what extent Gambling Commission involved with Local law enforcement?
.Under age emphasis and liquor violations.
Wilson step down.
BREAK- 15 minutes.
WITNESS Karen Pickett Ruston resident (M-Joan Mell . for Karen Pickett)
.Employed by ASARCO 22 years.
.I care about my community and what is going on.
.Public was not allowed to comment at all on gambling tax ordinance.
David- Objection.
Judge- Overruled.
Provide names of council?
David- Objection.
Judge- Stipulated.
.Not allowed to participate in public sessions.
.Public comment gradually eliminated.
.Only general comments not allowed on issues.
.Mayor had police in attendance to hold public.
Mell- When did you get notice of increase in gambling tax?
.At study session.
m-Purpose of tax increase?
.Council indicated to increase revenue.
m-Your impression of ordinance?
.Enforcement of gambling activities.
m-Was ordinance adopted without public input?
.Yes.
CROSS EXAMINATION David Britton
b- You were on Ruston Town Council? (b for Britton)
k- Yes, also Civil Service. (k for Karen)
b- Not on Council in 2008?
k- Civil Service commission
k- Study session 2008 way meeting was run audience was restless.
b- Agenda was published for council meeting?
. Study session notice published?
k- General tax notice no gambling tax notice.
Judge- If there is a question who do they go to?
k- Town Attorney.
WITNESS Jim Reinhold former Police Chief in Ruston
r- Police officer in Ruston 2002-2008. (r for Reinhold)
r- Mr. Fabre purchased building town was excited to have Cafe and Casino.
m- Shows Reinhold picture of Casino. (m for Mell)
r- Before it had psychedelic pictures outside, Rock n Roll.
m- Lighting?
r- Poker neon lighting. Rear parking lot no lighting.
m- Security cameras?
r- Yes. Mr. Fabre installed. Caught 20 seconds on Pearl street. Caught crime off of facility.
m- How many calls there?
r- Very minimal not often. More calls at Unicorn tavern.
r- Administrative hearing referred to gambling commission.
r- Our policy walk thrus also Ruston Inn. More calls Unicorn tavern.
r- Had no separate budget for Point Defiance Cafe and Casino (PDC&C).
r- Came out of annual budget. 24 hours for town.
r- Did bar checks, note of presence, left.
m- Did Town council ask for activity logs?
r- No.
m- Did Ruston rely on your knowledge?
r- No.
r- My budget, cost of living, special authorization or circumstances.
r- Mr. Fabre cooperated absolutely. One incident.
m- Was that in alley way behind Casino?
r- Shooting, not relevant to Casino. Person was robbed by three persons walking down alley. Walked back into Casino for help. Casino security called 911. Had nothing to do with Casino.
b- Why?
r- Part of law enforcement activity.
b- Your presence helps with crime prevention.
b- Funds, no line item for gambling.
r- Can't recall.
b- Do you draft law enforcement activity and report to council? Do you recall submitting report, commentary during weekend?
Judge- Objects to line of questioning.
m- Not part of duties.
r- Recollect yes, my report.
r- Document, philosophy, moratorium in Tacoma weren't sure of affect on Ruston. Silver Dollar sixth avenue, establishment on Ruston Way closed.
b- Are you attorney?
r- No.
b- Any legal training?
r- Training yes.
Judge- Memo anticipating influx of gamblers same as Taste of Tacoma.
r- My anticipation, memo only. I had to accommodate gambling moratorium.
Judge- Unicorn has gambling?
r- no.
12:10 RECESS until 1:30 pm.
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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.
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