BREAKING NEWS

BREAKING NEWS - Town of Ruston on website April 27, 2012
Case Number 434598 Filing Date: 05-17-2012

We are pleased to announce that the honorable Judge Edmund Murphy has dismissed all claims brought against the Town of Ruston by Steve Fabre and Pt Defiance Cafe and Casino. The judge's ruling can be found below. This draws to an end years of litigation against the town. Town Attorney Carol Morris recently joined the defense team and successfully argued for summary judgement. Nice work Carol.

http://www.rustonwa.org/services/clerk-records/Newsletter/breakingnews

Except that "It ain't over till it's over".

COURT OF APPEALS DIV II
Ready Status Changed 07-24-12
Filing of VRP by Crt Reporter Filed 07-31-12
Report of Proceedings Received by Court 08-07-12
Clerk's Papers Received by Court 09-10-12
Appellants brief Filed 09-25-12
Motion to Extend Time to File Filed 10-04-12
Ruling on Motions Filed 11-21-12
Supplemental Designation of Clerk's Papers Filed 11-21-12
Respondents/Cross Appellants brief Filed 12-05-12
Supplemental Clerk's Papers Received by Court 12-21-12
Respondents brief Not filed 12-21-12 Status Changed12-21-12
Appellants Reply brief Filed 01-31-13
Screened Status Changed 02-05-13
Appellants Reply brief Received by Court 02-08-13
Appellants brief Received by Court 02-19-13
Check case Information Due

Previous posts RUSTON LAWSUIT:
http://rustonlawsuit.blogspot.com/2008/09/ruston-lawsuits.html

STAY TUNED. Real "Breaking News" as it happens.

CLERK'S MINUTE ENTRY

Steve Fabre v. Town of Ruston June 24,2011 Order on Motions for Summary Judgment.
Pretty perfunctory except one council person had separate counsel.

CASINO v. RUSTON AMENDED COMPLAINT

Here we go again. So far Ruston has got by on the cheap but that maybe coming to an end with $9 million dollar claim filed plus lawsuit for damages.

Took a while but below is the Amended Complaint 16 pages:

Fabre et al. v. Town of Ruston
Pierce County Superior Court No. 10-2-15875-3

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-

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-

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.
-30-

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-