COURT OF APPEALS, STATE OF WASHINGTON, DIVISION II
In re the Estate of ANDREA C. BAROVIC, Deceased. 

DOUGLAS A. SCHAFER and DONALD BAROVIC, Petitioners.



In re the Estate of MIKE BAROVIC a/k/a MICHAEL BAROVIC and MITCHELL BAROVIC, Deceased. 

DOUGLAS A. SCHAFER and DONALD BAROVIC, Petitioners.



In the Matter of the DONALD M. BAROVIC TRUST. 

DOUGLAS A. SCHAFER and DONALD BAROVIC, Petitioners.


 
 
 

       No. 20635-6-II

      MOTION TO UNSEAL COURT
      RECORD
      (GR 15)


        1. Identity of Moving Party: Douglas A. Schafer, attorney and co-Petitioner pro se.

        2. Statement of Relief Sought: I seek an order directing the Court Clerk to unseal the court records (Appendix "D" to Petitioner's Motion for Discretionary Review filed April 26, 1996) that this Court by order entered May 3, 1996 directed the Court Clerk "to file . . . in a separate sealed envelope."

        3. Parts of Record Relevant to Motion:

(1) Ruling Granting Temporary Limited Stay entered May 3, 1996.

(2) Motion for Discretionary Review filed April 26, 1996, including its Appendix "D."

(3) Declaration of Deficiency of Notice of Hearing and Related Matters filed in the trial court on March 27, 1996. [Clerk's Papers page 10-11]

(4) Motion of Prejudice and Supporting Statement filed in the trial court on February 2, 1996. [Clerk's Papers page 1-3]

        4. Grounds for Relief, and Argument: General Rule (GR) 15(c)(2)(B) provides that court records may be sealed only upon motion of a party or the court following a hearing on the motion, with reasonable notice of that hearing given to the nonmoving parties. The requirements of GR15(c)(2)(B) were not followed by the Court when it, on its own initiative, sealed Appendix "D" by its Ruling of May 3, 1996. No motion to seal the appendix was filed. No notice of any hearing of such a motion was given to any party. No hearing was conducted on any motion to seal the appendix.

        On page 5 of the Motion for Discretionary Review, I, as co-petitioner, described the relevance of the material in Appendix "D" as follows:

"I believe that Judge Thompson's true basis for finding that I violated RPC 8.2(a) was my statement that I suspected the "appropriate authorities" would remove Judge Grant L. Anderson from the bench after they investigate his handling of the Estate of Charles C. Hoffman, (Pierce County Sup. Ct. No. 89-4-00326-3). I made that statement in the Motions of Prejudice and Supporting Statements filed in the Barovic cases on February 2, 1996; and I then did, and still do, believe it to be true and well founded based upon documentation, some of which I have included in the appendix to this motion."
        On page 2 of the Declaration of Deficiency of Notice of Hearing and Related Matters that I had filed in the trial court on March 27, 1996 [Clerk's Papers page 10-11], two days before Pierce County Superior Court Judge Donald H. Thompson entered the order that this Court later vacated (by its Opinion filed Nov. 21, 1997), I had offered to show the trial judge, in open court or privately, the documents that I later included in Appendix "D," saying:
"I suspect that the unstated, but actually primary, reason that I have incurred Judge Thompson's wrath is that I have called into question, in publicly filed court documents, the conduct of Judge Anderson for what Judge Thompson assumes are unfounded reasons. If that is, in fact, a factor in Judge Thompson's deliberative process, then I hope he will afford me an opportunity, in camera if desired, to show to him the documentation concerning that matter that I have provided to the Commission on Judicial Conduct and other appropriate authorities."
        The publicly filed court documents there mentioned were my affidavits that I had filed in the trial court on February 2, 1996, captioned "Motion of Prejudice and Supporting Statement" requesting Judge Grant L. Anderson's recusal based on my belief that he had committed such serious misconduct in his administration of the Hoffman Estate that he likely would be removed as a judge. Commissioner Donald G. Meath stated, at page 3 of his Ruling entered May 3, 1996, that he shared my presumption that my statement supporting my request for Judge Anderson's recusal was, in fact, a significant underlying reason why Judge Thompson found me to have acted unethically. Commissioner Meath stated:
"The court found that Schafer's letters (and presumably his affidavit supporting the motion for Judge Anderson's recusal) were 'an apparent violation of the Rules of Professional Conduct, paragraphs 3.5(c), 8.2(a), and 8.4(d).'"
        My inclusion of the material in Appendix "D" supporting my request for Judge Anderson's recusal was relevant to my Motion for Discretionary Review by this Court's of Judge Thompson's order sanctioning me for, presumably, publicly questioning Judge Anderson's judicial fitness. The Appendix "D" material was included in my motion to this Court because, consistent with RAP 17.3(b)(8), it was "other material which would assist the court in determining whether the motion should be granted."

        Among the compelling reasons that I am now asking this Court to unseal Appendix "D" is that it contains material that should, by now, be in the public domain. The Washington State Legislature presently is considering whether to exercise its authority under Article IV, Section 9 of the Washington Constitution to remove Judge Anderson from his judical office. I am arguing that legislative action is needed because events over the last three (3) years have illustrated that members of the judicial branch are more prone to cover-up the misconduct of their judicial colleagues than they are to expose, or permit others to expose, such misconduct. The judicial branch's Commission on Judicial Conduct was given all 59 of the pages included as Appendix "D" (and hundred of more pages) but has concealed most of them from the public, contrary to applicable law. Judge Thompson's unlawful order sanctioning me, this Court's unlawful order summarily sealing Appendix "D," and the refusal of this Court's panel that decided this case to acknowledge the true retaliatory and vindictive nature of Judge Thompson's order against me are further events illustrating the hostility of the members of the judicial branch toward anyone who would dare to challenge the ethics or integrity a fellow jurist. I ask this Court to take judicial notice of Judge Anderson's highly publicized disciplinary proceeding and of the news report last January that he settled the $1 million claim by the Hoffman Estate's beneficiaries for $500,000.
 

March 12, 1999 /s/
Douglas A. Schafer, WSBA No. 8652