Petition for Writ of Certiorari — David Carl Cottingham, Petitioner v. Washington State Bar Association, et al.

Supreme Court briefNov 14, 2018

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No. ___9 qf

In The

pupreme Court Of TO Nniteb tate

DAVID C. COTTINGHAM,

Petitioner

WASHINGTON STATE BAR ASSOCIATION

BOARD OF BOVERNORS, and WASHINGTON

STATE DISCIPLINARY BOARD,

Respondents

On Petition for Writ of Certiorari to the

Washington State Supreme Court

Petition for Writ of Certiorari

DAVID C. COTTINGHAM

Petitioner and Attorney

Number 9553

P.O. Box 229140

4538 Fremont Street

Bellingham, Washington 98229

NOV 19 2018

ICE OF THE CU

QUESTIONS PRESENTED

A Washington State Bar disciplinary

investigation continued through to suspension,

notwithstanding Attorney David C. Cottingham's

opposition to unlawful conduct, and his insistence

upon judgment descriptions for regulatory approval.

Cottingbam acted pro se in defense of his family

and property title. He had achieved one pretrial

legal description and damages due to absence of

cause for condemning defendants' title claim, but

insisted upon final judgment descriptions locating

condemnation afterward. He is suspended for

efforts essential to finality while he needed

regulatory approval, of an enforceable result

without jeopardy under Washington's criminal

prohibition of sales. In defense against discipline

Cottingham invoked First Amendment protections

and a right to oppose illegal conduct impairing his

future right of sales and marketing.

The questions are:

SHOULD THIS COURT RESOLVE THE SPLIT IN

STATE COURT RESPONSES TO THIS COURT'S

PRESCRIBED OBJECTIVE ANALYSIS

PROTECTING FIRST AMENDMENT

PETITIONING AS DUE PROCESS?

SHOULD STRICT SCRUTINY REQUIRE AN

ARTICULATED COMPELLING STATE

INTEREST BEFORE REGULATING PRO SE

ATTORNEY CONDUCT?

MAY A GENERAL STATE INTEREST IN

REGULATING ATTORNEY CONDUCT

SUBORDINATE FIRST AMENDMENT

PETITIONING OPPOSING ILLEGAL CONDUCT?

PARTIES TO THE PROCEEDING

DAVID C. COTTINGHAM, Petitioner

Washington State Attorney Number 9553

P.O. Box 229140

4538 Fremont Street

Bellingham, Washington 98229

WASHINGTON STATE BOARD OF GOVERNORS

and

WASHINGTON STATE DISCIPLINARY Board

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

(206) 727-8207

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................

PARTIES TO THE PROCEEDING ........................ii

TABLE OF CONTENTS .........................................

TABLE OF AUTHORITIES ................................. viii

PETITION FOR A WRIT OF

CERTIORARI ...........................................................1

REPORTS, OPINIONS AND ORDERS...................1

JURISDICTION .......................................................2

JUDGMENT TO BE REVIEWED: .......................... 2

STATUTORY AUTHORITY.....................................2

CONSTITUTIONAL AND STATUTORY

PROVISIONS............................................................2

INTRODUCTION .....................................................4

STATEMENT OF THE CASE.................................. 7

A LUPA PETITION JUDGE RESERVED

JUDGMENT REGARDING LAND DIVISION

AND OTHER DECISIONS BEYOND BUILDING

PERMITTING AS NONFRIVOLOUS. .................. 11

ERROR WAS ASSIGNED, REMEDIAL

FEES WERE REQUESTED, AND MATERIAL

WITHHOLDING OBVIATED A STIPULATION.. 13

WASHINGTON DISREGARDS

LEGISLATIVE ENCOURAGEMENT AND

STANDARDS PROTECTING BREATHING

ROOM. 14

REASONS REVIEW SHOULD BE GRANTED

A. WASHINGTON'S SUSPENSION

METHOD DIRECTLY CONTRAVENES THIS

COURT'S PRESCRIBED OBJECTIVE

ANALYSIS PROTECTING PETITIONING,

DUE PROCESS, AND EQUAL PROTECTION

111

....

B. WASHINGTON'S DECISION

CONFLICTS WITH OTHER STATES, AND

CERTIORARI SHOULD BE GRANTED TO

ESTABLISH UNIFORMITY AMONG THE

STATES ON PROTECTION OF FIRST

AMENDMENT PETITIONING AND ACCESS

TOCOURTS . .......................................................... 21

COLORADO CLEARLY APPLIES THIS

COURT'S PRESCRIBED BALANCING FOR

PROTECTION OF FIRST AMENDMENT

PARTICIPATION, APPLYING PREI AND

BE&K..................................................................21

KANSAS REQUIRES BALANCING

AND ADEQUATE STATE INTEREST AND

IDENTIFICATION OF THE INTERESTS

OF JUSTICE TO PROTECT FIRST

AMENDMENT PETITIONING.........................24

NEVADA MINIMIZES STATE

INTERESTS WHEN ABUSE OF

AUTHORITY MUST BE CONFRONTED . ....... 25

C. WASHINGTON SWEEPS INTO

PROTRACTED DISCIPLINE WHAT RPC 3.1

AND COMMENT TWO ENCOURAGE AS

LEGITIMATE. ........................................................ 26

D. EQUAL PROTECTION IS DENIED

WITHOUT OPPORTUNITY FOR PROMPT

DETERMINATION OF CONSTITUTIONAL

MERIT, FOR IRREPARABLE

CONSTITUTIONAL HARMS WITHOUT THE

PROTECTION OF MOTION PRACTICE .............28

E. REGULATION CAN BE NARROWLY

DRAWN...................................................................29

F. WASHINGTON HAS ARTICULATED

NO HEIGHTENED INTEREST IN

REGULATING LAWYER CONDUCT

JUSTIFYING LOSS OF THE PERSONAL

EXERCISE OF FIRST AMENDMENT

REDRESS PETITIONING ESSENTIAL TO

PROTECTION OF TITLE AND FAMILY . ............ 31

G. WASHINGTON ENFORCEMENT

METHODS EMPLOYED ARE NOT THE

LEAST RESTRICTIVE MEANS OF

ACHIEVING REGULATORY GOALS . ................. 32

H. WASHINGTON'S INTEREST IN

REGULATION OF LAWYER CONDUCT IS

INSUFFICIENT TO INTRUDE UPON THE

PERSONAL RIGHT TO PETITION, SEEK

ACCESS TO COURTS AND OPPOSE

ILLEGAL CONDUCT.............................................33

I. UNTIL A JUDGMENT ENTRY

DESCRIBES THE LOCATION OF

CONDEMNATION, SUSPENSION IS

ARBITRARY PUNISHMENT FOR

PERSISTENT OPPOSITION TO ILLEGAL

CONDUCT, ADMINISTERED WITHOUT

CLEAR STANDARDS OR FINALITY...................35

CONCLUSION.......................................................38

APPENDIX A OPINIONS, ORDERS,

WASHINGTON STATE DISCIPLINE

SUSPENSION OPINION, AUGUST 16,2018 .... la

CORRECTION OF SUSPENSION OPINION

AUGUST 17, 2018 ..............................................25a

VACATION, CORRECTION RESCINDED,

WASHINGTON SUSPENSION OPINION

AUGUST 29, 2018 ..............................................26a

I!A

27a

ORDER AMENDING OPINION

ORDER DENYING FURTHER

RECONSIDERATION........................................29a

APPENDIX B COLORADO STATE

DISCIPLINE APPLYING BE&K .....................30a

COLORADO SUPREME COURT OPINION, In

Re Steven James Foster, 105A89, 253 P.3rd

1244 (Cob. May 23, 2011) ..................................30a

APPENDIX C HEARING OFFICER AND

DISCIPLINARY BOARD PROCEEDINGS.......60a

HEARING OFFICER PROCEEDING RECORD

DECEMBER 20, 2016 ........................................60a

DISCIPLINARY BOARD PROCEEDING

RECORD SEPTEMBER 8, 2017........................66a

DISCIPLINARY BOARD ORDER AFFIRMING

HEARING EXAMINER .....................................77a

PETITIONER COTTINGHAM'S BRIEF

ASSIGNING ERRORS, TO DISCIPLINARY

BOARD................................................................79a

HEARING OFFICER FINDINGS OF FACT,

CONCLUSIONS OF LAW, MITIGATING

FACTS, AND RECOMMENDED SANCTION 166a

APPENDIX E DISCIPLINE PLEADINGS.... 189a

COTTINGHAM MOTION TO DISMISS ...........189a

DISCIPLINARY COUNSEL RESPONSE TO

COTTINGHAM MOTION TO DISMISS.........195a

DISCIPLINARY COUNSEL'S FORMAL

COMPLAINT....................................................197a

COTTINGHAM ANSWER TO FORMAL

COMPLAINT....................................................203a

APPENDIX F CONDEMNATION AND

LUPA LITIGATION.........................................227a

PRETRIAL TITLE JUDGMENT, COMPLETE

LEGAL DESCRIPTION, January 11, 2011 227a

LUPA PETITION, FINDINGS OF FACT AND

ORDERS ON ALL PENDING MOTIONS.......232a

....

ORDER, LUPA COURT, GRANTING TERMS

AND SANCTIONS............................................240a

ORDER ON REMAND [From Opinion 68202-4I, Court of Appeals]...........................................245a

RCW 4.64.030(2)(b) Entry of judgment—

Form of judgment summary.............................247a

RCW 84.40.042 Valuation and

assessment of divided or combined

property.............................................................249a

RCW 58.17.0 10 public health, safety and,

plat regulation ..................................................251a

RCW 58.17.040(6) and Governor's Veto,

chapter 134, Washington Laws 1974...............252a

RCW 58.17.2 15 Alteration of

sub division—Procedure .................................... 256a

RCW 58.17.300 misdemeanor violation of

plat regulations.................................................258a

Chapter 232, Washington Laws 2002,

Revised Code of Washington [Protecting

Advocacy To Gov't, Regardless Of

Content Or Motive]...........................................259a

Chapter 234, Washington Laws 1989, pg.

1120 [Providing immunity for report to

any agency of federal, state, or local

government regarding any matter

reasonably of concern to that agency.].............261a

Chapter 118, Washington Laws of 2010

[Protection Of Public Interest

Participation In Matters Of Public

Concern By Informing Public Entities

And Citizens On Public Issues That

Without Fear Of Reprisal Through

Abuse Of The Judicial Process.].......................265a

vii

RCW 36.70C.020(2)(a) [Definition of

"Land Use Decision Including "Other

Governmental Approval Required By

Law" Before Property May Be Sold.] ...............272a

RCW 36.70C.030 [Exclusive Path To

Review]..............................................................274a

RCW 36.70c.110 [Agency Records Return

In Petition Actions]...........................................275a

RCW 2.48.190 [Pro Se Allowance] .....................279a

RCW 2.48.210 [Oath Of Washington

Admission] ........................................................280a

RCW 2.48.060 [Board Authority] .......................282a

RCW 36.70c.040 [Timing of Preclusion

From Access To Washington Courts For

Review Of Agency Records] ................................282

RCW 2.48.190 Preserving Petition Access

Without Licensing ............................................284a

APPENDIX I ENFORCEMENT AND

RULES OF PROFESSIONAL

CONDUCT........................................................285a

RPC 3.1 AND COMMENT TWO

[Nonfrivolous Effort While Anticipating

Discovery, Anticipating Failure.] .....................284a

WASHINGTON ENFORCEMENT

RULES..............................................................286a

ELC 10.1(a) [Denying Summary

Judgment In Discipline] ...................................286a

ELC 10.10 [Motion For Failure To State

Claim Only If Before Filing Of The

Answer] .............................................................287a

ECL 10.11 [Discovery By Permission

Only] .................................................................. 288a

ELC 10.14 [Burden By A Clear

Preponderance] .................................................289a

ECL 12.1 [Applicability Of Rules Of

Appellate Procedure] ........................................290a

viii

ELC 12.6 [Briefs, Objections Only To

Washington Supreme Court] ...........................290a

ELC 12.9 [Sanction For Violation Of

Rules] ................................................................290a

ELC 12.3 [No Other Appeal] ..............................290a

TABLE OF AUTHORITIES

United States Constitution

First Amendment ...2, 3, 5, 11, 13, 18, 19, 20, 22, 23,

26, 27, 29, 30, 31, 33, 34, 35, 37, 38, 39, 40, 41

Fourteenth Amendment ..................................... 2, 34

Washington Constitution

Wash. Const. Art 1 §16...........................................35

Cases

Bates v. State Bar of Arizona, 433 U.S. 350,

97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) 18, 29, 40, 42

BE&K Constr. Co. v. Nat'l Labor Relations

Bd., 536 U.S. 516, 122 S. Ct. 2390, 153 L.

Ed. 2d 499 (2002) ................5, 8, 23, 32, 37, 42, 43

Bill Johnson's Rests., Inc. v. Nat'l Labor

Relations Bd., 461 U.S. 731, 103 S. Ct.

2161, 76 L. Ed. 2d 277 (1983) .....................6, 8, 21

Borough of Duryea v. Guarnieri, 564 U.S.

379, 131 S. Ct. 2488, 180 L. Ed. 2d 408

(2011) ...................................................................37

Bose v. Consumers Union Of United States,

Inc, 466 U.S. 485, 104 S.Ct. 1949, 80

L.Ed.2d 502 ...................................5, 15, 22, 42, 45

Broadrick v. Oklahoma, 413 U.S. 601, 903 S.

Ct. 2908 (1973) ....................................................31

Cal. Retail Liquor Dealers Ass 'n v. Midcal

Aluminum, Inc., 445 U.S. 97 (1980)...................46

California Motor Transport Co. v. Trucking

Unlimited, 404 U. S. 508, (1972) ........................37

City of Houston Texas v. Hill, 482 U.S. 451 at

467, 107 S.Ct 2502, 96 L.Ed.398 (1987) ............. 36

Clipper Exxpress v. Rocky Mountain Motor

Tariff Bureau, Inc., 690 F.2d 1240 (9th

Cir.1982)..............................................................12

Eugster v. Washington State Bar Ass 'n. 198

Wn. App. 758, 397 P.3rd 131 (2017)...................15

Freeman v. Lasky, Haas & Cohier, 410 F.3d

1180, 1185 (9th Cir.2005) ...................................11

Gentile v. State Bar of Nevada, 501 U.S.

1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888

(1991) ...........................................17, 29, 34, 42, 45

Goldfarb v. Virginia State Bar, 421 U.S. 773

(1975) ............................................................. 45,46

Henne v. City of Yakima, 182 Wn. 2d, 447,

341 P.3d 284 (2015).............................................44

Hoffman Estates v. The Flips ide, Hoffman

Estates, Inc., 455 U.S. 489, 494, 102 S.Ct.

1186, 1191, 71 L.Ed.2d 362 (1982) ......................39

In Re Donohoe, 90 Wn.2d 173, 580 P.2d 1093

(1978) ................................................................... 23

In Re Sawyer, 360 U.S. 622, 3 L.Ed.2d 1473,

79 S.Ct. 1376 (1959)......................................28, 43

Kates v. Seattle, 44 Wn. App. 754; 723 P.2d

493 (1986) ......................................................12, 42

Kearney v. Foley & Lard ner, LLP, 590 F.3d

639 (9th Cir. 2009) ........................................11, 38

Kolender v. Lawson, 461 U.S. 352, 359, n. 8,

103 S.Ct. 1855, 1859, n. 8, 75 L.Ed.2d 903

(1983) ...................................................................40

Konigsberg v. State Bar, 353 U.S. 252, 77

S.Ct. 772, 1 L.Ed.2d 810 (1957).............. 25, 28, 44

Kottle v. Northwest Kidney Centers, 146 F.3d

1056, 1060 (9th Cir. 1998) ..................................11

Kuhn v. Tribune—Republican Pub. Co., 637

P.2d 315 (Colo.1981) .....................................26, 38

Louisiana ex rel. Gremillion v. NAACP, 366

U.S. 293 (1961)....................................................25

Mathews v. Eldridge, 424 U.S. 319 (1976).............39

Matter of Steven James Foster, 253 P.3rd

1244 (Cob. May 23, 2011).................18, 24, 32, 33

Mendocino Environmental Ctr. v. Mendocino

County, 192 F.3d 1283 (9th Cir. 1999) ...............36

NAACP v. Button, 371 U.S. 415 (1963)............21, 43

North Carolina Dental Board Examiners v.

F.T.C., 135 S.Ct. 1101, 191 L.Ed. 2d 35

(2015) ............................................................. 44,46

Ohralik v. Ohio State Bar Ass'n., 436 U.S.

447 (1978) ................................................29,41,43

Pickering v. Bd. of Educ.,391 U.S. 563, 573,

88 S. Ct. 1731,20 L. Ed. 2d 811 (1968)..............34

Prof'l Real Estate mv 'rs, Inc. v. Columbia

Pictures Indus., Inc., 508 U.S. 49,, 113 S.

Ct. 1920, 123 L. Ed. 2d 611 (1993). 5, 8, 26, 33, 43

Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004) ..................................39

Schware v. Bd. of Bar Exam'rs, 353 U.S. 232

(1957) .......................................................25, 28, 44

Seattle Times Co. v. Rhinehart, 467 U.S. 20

(1984) ...................................................................30

Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th

Cir.2006)..............................................................11

Speiser v. Randall, 357 U.S. 513 (1958) ................31

State v. Russell, 227 Kan. 897, 610 P.2d 1122,

1126 (1980) ..........................................................29

Sure-Tan, Inc. v. Nat'l Labor Relations Bd.,

467 U.S. 883, 104 S. Ct. 2803, 81 L. Ed. 2d

732(1984) ............................................................ 37

Thornhill v. Alabama, 310 U.S. 88 (1940).............34

White v. Lee, 227 F.3d 1214 (9th Cir. 2000).....35, 39

Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5,

21 L.Ed.2d 24 (1968) ............................................33

Statutes

118 Washington Laws 2010 .............................17, 22

28 U.S.C. §1257(a) ....................................................2

42 U.S.C. § 1983......................................................13

Ch, 134 Laws of 1974..............................................16

Chapter 118, Laws of 2010 ............................... 14, 17

Chapter 232 Laws of 2002......................................16

Chapter 234, Washington Laws 1989....................16

RCW 36.70c.020......................................................14

RCW 36.70c.020(2)(b) .............................................11

RCW4.24.50 ...........................................................14

RCW4.24.510 ..........................................................14

RCW 4.24.525 .........................................................14

RCW 4.64.030(2)(b).............................................4, 35

RCW 58.17.040(6) .............................................12, 16

RCW 58.17.300 ....................................4, 5, 12, 35, 37

Rules

ELC1O....................................................................... 9

ELC12.6..................................................................13

RAP10.3(a)(4).........................................................10

RPC3.1....................................................8, 14, 26, 38

RPC4.4....................................................................38

RPC8.4....................................................................38

RPC8.4(d) ...............................................................23

xii

PETITION FOR A WRIT OF CERTIORARI

David C. Cottingham hereby petitions the

Court for A Writ of Certiorari directed to the

Washington State Supreme Court for review of the

following Judgment.

REPORTS, OPINIONS AND ORDERS.

August 16, 2018 Washington State Supreme

Court Opinion No. 201,704-5 re David C.

Cottingham, Washington Supreme Court, 191

Wn.2d 450, 423 P.3d 818 (2018). (App. la 24a)

August 17, 2018 Correction as to prevailing

party in adverse possession, Memorandum from the

Temple Of Justice, Interim Reporter of Decisions,

"Correction In re Disciplinary Proceeding Against

Cottingham, No. 201,704-5 (filed August 16, 2018),"

August 17, 2018," at App. 25a.

August 29, 2018 Vacation of Correction

Memorandum as to prevailing party in adverse

possession, Change Memorandum from the Temple

Of Justice, Interim Reporter of Decisions, to

Supreme Court Clerk's Office at App. 26a.

October 11, 2018 Washington State Supreme

Court Order Denying Further Reconsideration,

Washington Supreme Court, at App. 29a.

October 10, 2018 Washington State Supreme

Court Order Amending Opinion at App. 27a.

September 27, 2017, Disciplinary Board's

Order Adopting Hearing Officer's Decision And

Denying Respondent's Motion For Notice Of

Judicial And Legislative Fact (App. 77a).

January 20, 2017, hearing officer Findings of

Fact, Conclusions Of Law, Mitigating Facts and

Recommended Sanction. At App. 166a

JURISDICTION

JUDGMENT TO BE REVIEWED:

August 16, 2018 In re Disciplinary

Proceeding Against Cottingham, 191 Wn.2d 450,

423 P.3d 818 (App. 1-24a); Amended October 10,

2018 (Order Amending Opinion (App. 27a)),

Reconsideration denied (Order Denying Further

Reconsideration (App. 29a)).

STATUTORY AUTHORITY.

This Court has jurisdiction to review final

judgments or decrees rendered by the Washington

State's highest court of last resort, its Supreme

Court, under 28 U.S.C. §1257(a) when title, right,

privilege, First Amendment immunity and

Fourteenth Amendment due process and equal

protection are claimed.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fourteenth Amendment, United States

Constitution.

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

First Amendment, United States Constitution.

Congress shall make no law .abridging the

freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to

petition the government for a redress of

grievances.

. .

RCW 4.64.030(2)(b) "If the judgment provides for

the award of any right, title, or interest in real

property, the first page must also include an

abbreviated legal description of the property

.awarded by the judgment, .and reference to

.where the full legal description is included...."

• .

The clerk may not enter a

RCW 4.64.030(3), "

judgment, and a judgment does not take effect,

until the judgment has a summary in compliance

with this section...."

...

RCW 58.17.040(6), Governor's Statement with Veto,

Legislative intent rejecting judicially divided

land, House Bill No. 383, chapter 134,

Washington Laws 1974: "I am returning

herewith without my approval as to items House

Bill No. 383 entitled: 'An Act Relating to plats

and subdivisions." [chapter 134, sec. 2, 4,

"Divisions made by court order"]... some

developers who have subdivided without

receiving an approved plat have gone to court

would

asked for and received a dissolution and

put the county in an advisory capacity only and

would afford no real protection against the kind

of land development practices which are so

destructive of county land use planning.

Accordingly, I have vetoed that item."

...

RCW 58.17.300, Misdemeanor Declaration. "Any

person, .who violates any provision of this

chapter or any local regulations adopted

pursuant thereto relating to the sale, offer for

sale, lease, or transfer of any lot, tract or parcel

of land, shall be guilty of a gross misdemeanor

and each sale, offer for sale, lease or transfer of

each separate lot, tract, or parcel of land in

violation of any provision of this chapter or any

local regulation adopted pursuant thereto, shall

be deemed a separate and distinct offense."

RCW 2.48.2 10 Washington Attorney's Oath "I will

support the Constitution of the United States

and the Constitution of the state of Washington."

INTRODUCTION

This petition reviews lawyer discipline

applied to true First Amendment petitioning

litigation that became necessary only when two

statutory condemnation judgment location

descriptions could not enter to describe the

resulting locations due to material nondisclosure.'

Washington disciplines in a manner allowing

sham litigation introducing substantive illegality.

Discipline deadens the oath to support both

constitutions, and retaliates against obedience., as

it clears a way for discrimination against federal

claims in state courts. During discipline

proceedings examining condemnation litigation

against Cottingham, Judgment entry was shown

obstructed by an opposing counsel's attention to

other unpleaded interests without presentation of

condemnation judgment finality for local agency

approval. Cottingham's opposition to illegal conduct

is now disciplined without any compelling state

interest tailored to protect petitioning by deafening

an ear to objective evidence of unlawful conduct in

the regulated field. Washington statutes prohibit

sale of platted land without agency approval,

requiring judgment descriptions.2

Cottingham's successful petitioning won a pretrial

described location by Summary Judgment. After trial he

won treble damages for wrongful waste against

defendants, available when claimants show no probable

cause "to believe that land trespass was committed [on]

was his or her own." RCW 64. 12.040.

2 RCW 4.64.030(2)(b) App. 247a; RCW 58.17.300, App.

Washington's disciplinary office acted

without Modification Judgments3 describing a final

location but sought inference of malice without

"PREJ"4 and "BE&K'5 analysis and Bose6 review,

and directed a hearing officer that Cottingham's

motion raising a first amendment defense was

"unauthorized."

The Washington Supreme Court Opinion

follows dicta from Bill Johnson's Restaurants,

allowing its hearing officer to infer improper motive

"in part," and suspend Attorney David Cottingham

for his pro se insistence upon regulatory approval

by such condemnation judgment locations.

First Amendment protections were urged by

Cottingham at each stage of discipline, with citation

to authority rendering platted lot sales unlawful.

Burdens applicable to First Amendment protection

are unapplied. Objective statutory support for

genuine belief remains unconsidered and this

court's decisions are subordinated by Washington.

To reach and regulate true petitioning, for

258a.

To avoid confusion with the pretrial Summary

Judgement won by Cottingham including a precise

location description, "Modified Judgments" refers to the

judgments that normally enter after trial modifies a

Summary Judgment including condemnation, due to

RCW 4.64.030(2)(b) (App. 247a).

Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures

Indus., Inc., 508 U.S. 49, 56.63, 113 S. Ct. 1920, 1926.30,

123 L. Ed. 2d 611 (1993).

BE & K Const. Co. v. NL.R.B., 536 U.S. 516, 524-26,

122 S. Ct. 2390, 2395-96, 153 L. Ed. 2d 499 (2002)

6 Bose v. Consumers Union Of United States, I nc, 466

U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (independent

appellate review)

discipline of an attorney defending his own family

and property title, pro se, Washington State

disciplinary proceedings disregarded regulatory

proof that illegal conduct was opposed by attorney

Cottingham, supplying citation to RCW 58.17.300

(App. 258a), supportive briefing to the Disciplinary

Board,7 and testimony as well.8

Discipline proceedings received striking

evidence from opposing counsel rendering

interpretation of the conclusions from the

condemnation court impossible (App. 62a) without

Modified Judgments. He admitted that untried

interests related to conclusions and, being withheld,

had been untried. He had admitted9 confusion less

specifically to the Washington Court of Appeals.

Counsel's disclosure met elements of an

unprotected sham condemnation, by material

nondisclosure of other interests concretely

impairing a final location.

Washington's discipline avoided this court's

guidance, instead employing Bill Johnson's

Restaurant's dicta, to support a subjective,

circumstantial inference of malice "in part," without

protective analysis. A judgment description's

location is the sine qua non of condemnation. In

Washington agency approval is the sine qua non for

Respondent's Corrected Opening Brief, App. 79a.

8 App. 64a, "Land division that's unapproved by the

legislature can't be sold," Cottingham testified.

9 Interpretation was not possible for Washington's

Court of Appeals, which had to remand the conclusions

without aid of judgment's legal description, because of

conflicting conclusions. Opinion No. 68202-4-I, 177 Wn.

App. 1010 (2013); LEXIS 2486, Unpublished.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinion

s. show Opinion &fi1ename682024MAJ

plat change finality. Petitioning was caused by their

absence.

"The United States supreme court has made

it clear that, as long as the petitioning is

aimed at procuring favorable government

action, result, product, or outcome, it is

protected and the case should be dismissed.

This bill amends Washington law to bring it

in line with these court decisions which

recognizes that the United States

Constitution protects advocacy to

government, regardless of content or

motive, so long as it is designed to have

some effect on government decision

making."

Section 1, Chapter 232, Washington Laws 2002.

This court's pronouncement, correcting Bill

Johnson's Restaurants dicta, is stronger than the

forgoing restatement by Washington's legislature:

"As long as a plaintiff 's purpose is to stop

conduct he reasonably believes is illegal,

petitioning is genuine both objectively and

subjectively.

BE&K Constr. Co. v. Nat? Labor Relations Bd., 536

U.S. 516, 534, 122 S. Ct. 2390, 2401, 153 L. Ed. 2d

499 (2002)("BE&K'), citing Professional Real Estate

Investors v. Columbia Pictures, 508 U.S. 49 at 60619 (1993); ("PREI').

STATEMENT OF THE CASE

Discipline is directed at silencing advocacy

for a lawful result after sham condemnation

proceedings failing to enter two judgment

descriptions for agency approval. Washington

encourages both advocacy and reporting as vital to

effective government. The Suspension Opinion

(App. la-24a) passed over the Governor's veto;

passed over Washington's ardent protection of

advocacy as vital to effective law enforcement; and

particularly ignored the ABA standard defining

frivolous effort, adopted in Washington,'° protecting

advocacy:

"[2] The filing of an action or defense or

similar action taken for a client is not

frivolous merely because the facts have not

first been fully substantiated or because the

lawyer expects to develop vital evidence only

by discovery. What is required of lawyers,

however, is that they inform themselves

about the, facts of their clients' cases and the

applicable law and determine that they can

make good faith arguments in support of

their clients' positions. Such action is not

frivolous even though the lawyer believes

that the client's position ultimately will not

prevail. The action is frivolous, however, if

the lawyer is unable either to make a good

faith argument on the merits of the action

taken or to support the action taken by a

good faith argument for an extension,

modification or reversal of existing law."

Comment Two, RPC 3.1 amended effective April 14,

2015.

The Suspension Opinion employs a different

definition of "frivolous" after the hearing officer

Three acts of Washington's legislature arrive at

protection from abuse in judicial proceedings. App. pp.

259a, Laws of 2002; App. 261a, Laws of 1989; and App.

265a, Laws of 2010.

[I]

['1

employed none. It identifies no judgment

description approved by county planning. It reports

only a quantity of property as "condemned,"

meaning conclusions of law alone, not by entry of

descriptions

condemnation judgment location

entered in satisfaction of RCW 4.64.030(2)(b)"

allowing notice, regulatory approval, county

assessment, and lawful sales. Finality by mere

conclusions, rather than Modified Judgment

location descriptions, could not evoke certainty even

from the claimant's attorney during discipline:

"I don't believe that portion was ever

given to us in any of the findings of fact

and conclusions of law because I told the

judge not to do it because there may be

other people that had an interest in that

portion and we were not going to get into

litigation with other neighbors...."

Testimony in Washington's enforcement

proceedings under "ELC 10," by claimant's counsel

December 20, 2016. (App. 62a).

Opposing counsel referred to unpleaded

condemnation interests withheld, and untried.

Final judgment location descriptions had been

interfered with and caüsèd all Cottingham efforts.

He had just disclosed information which, if

presented in pleadings would have eliminated

delay and adverse determinations below.

The remand order from the condemnation

court much later revealed success, holding that

Washington's assessor investigation cannot proceed

(App. 249a) without plat regulation satisfaction, after

judgment statute description compliance and agency

approval of judicial change. (RCW 58.17.040(6) and

Governor's veto of judicial action disturbing plats).

Cottinghams proved their title.12 The Washington

Supreme Court Suspension Opinion correctly holds

that initial petitioning was not frivolous (App.7a)

but ignores admissions by opposing counsel that

reflect loss of opportunity for trial to finality of all

interests. (App. 62a, and in Opinion 68202-4-I at fn.

11)), and added effort at attaining a lawful result.

Without disclosure of the unpleaded interests

and Modification Judgment locations, Cottingham

was as limited in his ability to defend against

sanctions as he was to raise injury by

misrepresentation and fraud (See, Kearney-'3).

Testimony (App. 62a). The absence of Modification

Judgments and agency approval was strong

evidence that that no finality was intended by the

condemnation claimants.

The Washington Court's opinion assumes its

Determination that Cottingham had not proven

anything was reversed on remand by the condemnation

court. (Order on Remand, App. 245a; Opinion No.

68202-4-I Unpublished, Pretrial Summary Judgment).

http://www.courts.wa.gov/opinions/index.cfm?fa =opinion

s .showOpinion&filename682024MAJ

13 Material nondisclosure in condemnation states a

prima facie case for civil rights and civil RICO violation

as depriving the "litigation of its legitimacy." Kearney v.

Foley & Lard ner, LLP, 590 F.3d 639, 896, 905-906 (9th

Cir. 2009)(citing Sosa v. DIRECTV, Inc., 437 F.3d 923,

940 (9th Cir.2006); Kottle v. Northwest Kidney Centers,

146 F.3d 1056, 1060 (9th Cir. 1998); also, Freeman v.

Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th

Cir.2005); See Clipper Exxpress v. Rocky Mountain

Motor Tariff Bureau, Inc., 690 F.2d 1240, 907 1261 (9th

Cir.1982) (holding there is "no first amendment

protection for furnishing with predatory intent false

information to an. adjudicative body")).

hearing officer addressed subdivision as an

argument without allocating a burden of proof (App.

1a).14 But disciplinary counsel had informed that

hearing officer that Cottingham's motion and the

authority cited were unauthorized. Disciplinary

counsel reminded him of limited authority,

preventing him from considering dismissal in

application of this nation's First Amendment

priority. (App. 189a, 195a). The officer's opinion

does not address the authorities from Cottingham's

motion in the slightest. No record applies any

burden to protect petitioning or to assess

Cottingham's genuine belief that he was opposing

unlawful, unapproved, land division conduct which

carried a capacity to deny future authority for

sales.15

A. A LUPA PETITION JUDGE

RESERVED JUDGMENT REGARDING

LAND DIVISION AND OTHER DECISIONS

BEYOND BUILDING PERMITTING AS

NONFRIVOLOUS, FOR LATER PROOF.

The opposition to plat compliance violations

was not found frivolous. An underlying "LUPA"

court judge specifically preserved evidence that he

did not regard pursuit of "all other" decisions

including plat regulation compliance as frivolous,

excepting "all other pleaded decisions" beyond

building permitting when dismissing Cottingham's

LUPA petition (App. 236a). The judge protected

against future use of its findings as any kind of

decision that he considered any "other

The interest in compliance is "fundamental" in

Washington. Kates. V. Seattle, infra.

App. 64a, "Land division that's unapproved by the

legislature can't be sold," Cottingham testified.

governmental approval required... before [sale]" in

petitioning preserved by statute16 a frivolous

inquiry, by excluding "other decisions:

Cottinghams were not personally served

with written notice of [interlineation follows

quotes:] "any decision of' Whatcom County's

issuance of the 2006 building permit [sic]

[initials applied]"

"It is likely that written notice of the

building permit and all other [sic] decision [sic]

of Whatcom County required no written or

actual notice to Cottinghams, [initials applied]

pursuant to RCW 36.70C.040(4)(c) and time for

Cottinghams to seek judicial review of any the

County's [interlineations in follows quotes:]

"building permit decision" action began to run

on August 17, 2006. [initials applied]."

Para. 2 and 3, App. 236a (pp. 4 and 5, Findings and

Conclusions [of Land Use Petition Court]).

The message silenced in Cottingham's motion

to dismiss (App. 189a) and his Answer (App. 203a)

to Washington disciplinary proceedings is his belief

that Washington has long notified that agency

approval is required for platted lot change,17 and

has long notified that without agency approval

every offer of sale is a gross misdemeanor.18

Cottingham cannot satisfy regulators and

Washington preserves the possibility of agency

entries affecting" other governmental approval required

by law before real property may be improved, developed,

modified, sold, transferred, or used," as proper for

petitioning at RCW 36.70c.020(2)(b). App. 272a.

17 Governor's veto message, Ch, 134 Laws of 1974, and

RCW 58.17.040(6), App 252a.

18 RCW 58.17.300 (1969 ex.s. c 271

§ 32), App. 258a.

avoid sale restrictions with a mere quantity to

represent for agency due process, approval,

rejection and finality. Division, whether including

untried other interests or not, is thus far private,

unapproved, allocation and unlawful conduct

without approval.19

Objective evidence that protected petitioning

effort genuinely opposed unlawful conduct without

regulatory compliance is manifest but unaddressed.

B. ERROR WAS ASSIGNED, REMEDIAL

FEES WERE REQUESTED, AND MATERIAL

WITHHOLDING OBVIATED A

STIPULATION.

The Washington Suspension Opinion

erroneously reports that findings were verities,

unchallenged. This is incorrect. Findings were

challenged by substantial assignments of error

165a). Briefing to the State Supreme

(App. 79a

Court must state "objections" and was met by

"objections." Review according to the scope

appropriate for First Amendment encroachment

should certainly have reached them as challenged

findings. Bose v. Consumers Union Of United

States, Inc, 466 U.S. 485, 104 S.Ct. 1949, 80

L.Ed.2d 502 (independent appellate review). The

rule applicable to briefing to the Supreme Court is

specific as to "objections," and is backed by

authority for sanctions. (ELC 12.6(a), App. 290a).

As to remedial fees the court's Opinion

informs that "[t]his action was not a civil rights

action brought under 42 U.S.C. § 1983." (App. 24a).

But Cottingham's briefing to the Disciplinary Board

raised and requested this remedy (App. pp.151a,

152a, 164a, and 164a) after First Amendment

RCW 58.17.300 atApp.258a.

protection was denied. Washington's high court has

reported 42 U.S.C. § 1983 remedies as properly

raised and lost in discipline See Eugster v.

Washington State Bar Ass'n. 198 Wn. App. 758, 397

P.3rd 131 (2017)( 42 U.S.C. §1983 remedies apply

and are lost if not raised in disciplinary

proceedings).20 They are an appropriate remedy for

quasi criminal discipline continued in denial of

Petitioning immunity, ignored and punished, here.

As to a stipulation that underlying decisions

were correct, it could not include decisions that

were not made because claimants withheld notice of

the existence of others interested and private

allocation of property to them, as reflected at App.

62a.

C. WASHINGTON DISREGARDS

LEGISLATIVE ENCOURAGEMENT AND

STANDARDS PROTECTING BREATHING

ROOM.

Petitioning is legislatively protected as

proper in Washington under several statutes.2 ' And

encouraged under the proper standard. During all

underlying efforts charged, "frivolous" had the

Washington definition found in Comment Two to

RPC 3.1. That definition was not applied in

discipline. (See, instead, at App. ha. "A frivolous

position is one that a lawyer of ordinary competence

In Answer (App. 203a) and Briefing to the Board, the

issue was raised and preserved. (App. 79a)

21 RCW 36.70c.020, et seq.; RCW 4.24.50, infra (legislative

intent, sec. 1, 2, chapter 234, Washington Laws 1989); RCW

4.24.5 10, (legislative intent adopting language of U.S. Supreme

Court, sec. 1, 2, chapter 232, Washington Laws 2002); RCW

4.24.525, (legislative intent, sec 1, Chapter 118, Washington

Laws of 2010, etseq.)

would recognize as being devoid of merit.").

However Washington Professional Rules

encourage a meaning less likely to end in discipline,

inspired by the developed expectations of the

litigator. Comment Two of RPC 3.1 (App. 284a)

'The filing .is not frivolous merely because

the facts have not first been fully

substantiated or because the lawyer expects

to develop vital evidence only by discovery

[and] is not frivolous even though the

lawyer believes that the client's position

ultimately will not prevail. The action is

frivolous, however, if the lawyer is unable

either to make a good faith argument on the

merits of the action taken or to support the

action taken by a good faith argument."

. .

The position that RCW 4.64.030(2(b)

judgment location definitions have not entered and

condemnation appears to have been misused

without a plan for legitimate agency approval or

any judgement's location description for entry is

supported by the record, and by the admission to

interests of others from opposing counsel in the

discipline proceedings. So is the argument that no

court has found pursuit of plat regulation notice

and compliance frivolous.

If a lawyer should not anticipate the need to

pursue judgment finality when only conclusions

have located condemnation the diligence rule must

change, but not at the expense of First Amendment

Protection. Cottingham should not be disciplined to

another standard after the fact of his service under

another, leaving that comment's assurance as a

"trap for the wary as well as the unwary."

(Gentile).22 Great distance lies between assuring

before discipline that "action is not frivolous even

though the lawyer believes that the client's position

ultimately will not prevail," and afterward that a

frivolous "position is one that a lawyer of ordinary

competence would recognize as being devoid of

merit."

Washington was also encouraging reporting

the public concern to any branch of government.23

Reporting of plat regulation violation as unlawful

conduct is assured Washington's protection.

Washington had long restricted judicial finality as

to whether an additional lot was created.24

Washington acted to encourage security for

reporting to any branch of government, assuring of

its policy that "[i]nformation provided by citizens

concerning potential wrongdoing is vital to effective

law enforcement and the efficient operation of

government...." Sec. 1, Chapter 234, Washington

Laws 1989, pg. 1120 (App. 261a). It granted

immunity to encourage reporting "regarding any

matter reasonably of concern" to any branch of

government (sec. 2, id.), to "protect the free flow of

information from citizens to their government" (sec.

4, id.). In 2002 Washington extended its safe

22 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054,

111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)Gentile, v. State

Bar of Nevada, 501 U.S. 1030, 1054, pp. 1065.1075, 111

S. Ct. 2720, 115 L. Ed. 2d 888 (1991) and Matter of

Steven James Foster, 253 P.3rd 1244 (Cob. May 23,

2011)(citing Bates v. State Bar of Arizona, 433 U.S. 350,

97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)).

23 Sec. 2, Ch. 232, Washington Laws 2002; Section 1(a),

(d) Chapter 118, Washington Laws 2010 App. 118a.

24 (Governor's veto message, Ch, 134 Laws of 1974, and

RCW 58.17.040(6), App 252a)

harbor, assuring that protection of petitioning

extends "as long as the petitioning is aimed at

procuring favorable government action, result,

product, or outcome" (Section 1, Chapter 232 Laws

of 2002 regular session laws of Washington State,

57th legislature, SHB 2699, App. 259a).

Washington was encouraging "advocacy to

government, regardless of content or motive, (App.

259a) so long as it is designed to have some effect

on government decision making." (Sec. 1, ch. 232

Laws of 2002) (App. 261a).

Washington's legislature desired to quell fear

of judicial system abuse (App. 265a) protecting the

exercise of "constitutional rights of freedom of

speech and petition for the redress of grievances"

(sec. 1, ch. 118 Washington Laws 2010, App. 265a)

and to protect the right of citizens "to participate in

matters of public concern and provide information

to public entities and other citizens on public issues

that affect them without fear of reprisal through

abuse of the judicial process." (sec. 1(d), [bid).

Washington's encouragement extends to "[a]ny oral

statement made, or written statement or other

judicial proceeding or

document submitted, in a

other governmental proceeding authorized by law,"

id. sec. 2, (2)(a) Chapter 118, Laws of 2010 (App.

265a).

...

REASONS REVIEW SHOULD BE GRANTED

A. WASHINGTON'S SUSPENSION

METHOD DIRECTLY CONTRAVENES THIS

COURT'S PRESCRIBED OBJECTIVE

ANALYSIS PROTECTING PETITIONING,

DUE PROCESS, AND EQUAL

PROTECTION.

Non-attorneys always enjoy protection for

report of, and opposition to, unlawful conduct in

Washington. They enjoy freedom to speak on

matters affecting their livelihood and right to

defend their homes and families. Washington's

discipline would intrude upon these rights only

against attorneys as a class without articulating

any enhanced interest, such that many of these

rights may be lost to fear. Intrusive delay,

regulation and second guessing by regulators an

exercise of the right of petition after efforts serving

constitutional values is injury. The denial of equal

protection is unanticipated when taking the oath of

office.

Although protection has already been

announced and successfully applied in other fields

and states, Washington authorizes itself to apply a

label assuring that no weight be assigned to the

need for First Amendment protection if a single a

hearing officer can be found to regard effort as

frivolous, unguided by sham evidence and First

Amendment jurisprudence. This court should grant

certiorari and review the extent to which lawyer

discipline burdens the right of petition in

Washington, in order to declare the exercise

substantially and unconstitutionally burdened,

requiring remedial care. This court's BE&K and

PREI appraisals should be prescribed for

preservation of the right of petition in Washington.

Due process requires immediate and continuing

dismissal opportunity.

Uniformity in the protection accorded the

right of petition for lawyers requires that the states

employ predictable manner of assessment whether

their conduct may be appraised as frivolous,

interfering with the administration of justice have

attorneys lose the right to protect family and title in

Washington, ignoring any obligation to articulate a

!sJ

compelling state interest, contrary to this court's

pronouncements. NAACP v. Button, 371 U.S. 415,

435 (1963) (rejecting loss of equal protection for

attorneys).

Washington encourages reports to every

branch of government that as the pursuit of needed

integrity. But Washington has decided against

balancing the State interest in regulating lawyers'

First Amendment petitioning protection. Its

decision conflicts with decisions of this court

protecting First Amendment petitioning. If allowed

in this nonuniform manner, any state's highest

courts might inappropriately use Bill Johnson's

Restaurants25 dicta result-oriented discipline

giving. States which wish to take leave from

objective evidence to employ the various "frivolous"

litigation labels, including dismissals from

shortened LUPA deadlines hostile to federal

guaranteed notice may be predicted without

assessment of the parts that finding the parts that

are objectively reasonable, and without contribution

to the vitality of debate and integrity of the courts,

even without Bose26 review, PREI assessment and

BE&K balancing. To say the least, use of a

"frivolous" label guarantees the absence of

discussion essential in democratic society and

public concern litigation.

The ease of a "but for" test, which this court

did not prohibit in BE&K as a charging option

would impose at least some appearance of a burden

in Washington Discipline.

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S.

731, 747 (1983).

26 Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d

502 (1984).

Here, "frivolous" label avoided the essential

public protection arrived at by allowing discussion

and action upon a belief that an attorney is

opposing unlawful conduct under the appraisal

required under BE&K Construction, and rolled

unacceptably forward toward other counts to

presume damage to justice without appearance of

testimony from the condemnation claimants.

A Washington court's plenary authority to

regulate attorney conduct must not by rule or

otherwise avoid constitutional protection and must

not do so after strong evidence that due process was

denied in a manner indicating sham denial of

opportunity for trial. (App. 62a). But Washington's

Court and this Suspension Opinion holds to

previous Washington rulings that free speech

guaranties do apply in disciplinary cases. In Re

Donohoe, 90 Wn.2d 173, 580 P.2d 1093 (1978).

Certiorari should declare the BE&K and

PREI analysis as required for protection of

petitioning from circumstantial inference in the

presence of a statutory scheme

This court's BE&K Constr. Co. v. NLRB, 536

U.S. 516, 246 F.3d 619 (2002) assessment remains

the better protection for public concern litigation

amidst regulatory complexities:

"As long as a plaintiff 's purpose is to stop

conduct he reasonably believes is illegal,

petitioning is genuine both objectively and

subjectively. See, Id. at 60-61,"

BE&K, at 534, citing Professional Real Estate

Investors, 508 U. S., at 60-61.

This court should require that First

Amendment protection conform to the BE&K and

FRET assessments to render attorney discipline

predictable and to avoid use of inference when

readily available objective evidence allows

appropriate protection.

"Moreover, the ability to lawfully prosecute

even unsuccessful suits adds legitimacy to the

court system as a designated alternative to

force."

Id. (BE&K) at 532 (citations omitted).

By appraising efforts as "in part" frivolous,

Washington informs of great risk that the judiciary

will control the vitality of debate

B. WASHINGTON'S DECISION

CONFLICTS WITH OTHER STATES, AND

CERTIORARI SHOULD BE GRANTED TO

ESTABLISH UNIFORMITY AMONG THE

STATES ON PROTECTION OF FIRST

AMENDMENT PETITIONING AND ACCESS

TO COURTS.

1. COLORADO CLEARLY APPLIES

THIS COURT'S PRESCRIBED BALANCING

FOR PROTECTION OF FIRST

AMENDMENT PARTICIPATION,

APPLYING PREI AND BE&K.

As seen in Matter of Steven James Foster, 253

P.3rd 1244 (Cob. May 23, 2011), The Supreme

Court of Colorad027 (App. 30a 59a) will not allow

detailed but perfunctory conclusions as establishing

improper motivation without specific evidence that

an attorney actually desired to vex and annoy.

Colorado's high court rejects board conclusions

resting on the "unfortunate attributes" of litigation

which would aptly describe many cases.

Colorado follows this court in emphatically

Matter of Steven James Foster, (unpub.), 253 P.3rd

1244 (Cob. May 23, 2011).

rejecting the loss of immunity28 by the fact of

licensing as an attorney, accepting full de novo

review.

"In its decision, however, the Board ruled

that attorneys' First Amendment

protections "do not immunize [them] from

the application of the Colorado Rules of

Professional Conduct," intimating that

attorneys may in fact be disciplined for

conduct protected by the First Amendment.

We categorically reject this conclusion. The

U.S. Supreme Court plainly stated in

NAACP v. Button that "a State may not,

under the guise of prohibiting professional

misconduct, ignore constitutional rights."

371 U.S. 415, 439 (1963) (citing In Re

Sawyer, 360 U.S. 622 (1959); Schware v. Bd.

of Bar Exam 'rs, 353 U.S. 232 (1957);

Konigsberg v. State Bar, 353 U.S. 252, 77

S.Ct. 772, 1 L.Ed.2d 810 (1957). Moreover,

the rights protected by the First

Amendment are at the very heart of conduct

protected against regulatory infringement.

See Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293, 297 (1961) ("[R]egulatory

measures, no matter how sophisticated,

cannot be employed in purpose or in effect

to stifle, penalize, or curb the exercise of

First Amendment rights."), quoted with

approval in Button, 371 U.S. at 439."

"Because the Board's decision implicates

questions of constitutional fact and law, we

must evaluate de novo whether the

N.A.A.C.P. v. Button, 371 U.S. 415, 9 L.Ed.2d 405, 83

S.Ct. 328 (1963).

proceedings below properly afforded Foster

the substantive and procedural protections

of the First Amendment. See Kuhn v.

Tribune—Republican Pub. Co., 637 P.2d 315,

318 (Cob. 1981) (citations omitted)."

(App. 36a). Colorado first recognizes according to

FRET that consideration of the subjective prong of

the sham exception is improper if the objective

prong is not first satisfied, citing Prof. Real Estate

Investors, Inc., v. Columbia Pictures, 508 U.S. 49,

60-61 (1993). The Colorado demonstrates

reluctance to circumstantially infer frivolousness on

"evidence of a litigant's genuine desire to secure

favorable relief, unless the litigant's argument is so

wholly devoid of conceivable merit that the

litigant's proffer of proper motivation has no

credibility."

First Amendment protection in Colorado

meets this court's BE&K standard applied to

unsuccessful lawsuits.

Colorado's court will not tolerate aggregate

conduct assessment as proof that conduct

prejudicially affected the administration of justice,

as it questions a "mosaic" theory can collectively

rise to the level of baselessness." Colorado

scrutinizes to determine whether the Board

actually found "aggregate conduct was sufficiently

non-frivolous to satisfy the objective prong of the

sham exception to the First Amendment." Colorado

dismissed when it could not find cumulative or

aggregate conduct prejudicial to justice." It will

dismiss the charges violated under RPC 8.4(d)

aggregate and/or mosaic theory of misconduct

through the course of litigation charging a

cumulative effect prejudicial to the administration

of justice."

Colorado discipline allows summary

judgment. However, its high court still expresses

concern that early determinations should have

shown constitutional merit, followed by opportunity

for dismissal in protection of first amendment

petitioning, as well as balancing after requiring a

specific articulated, adequate state interest.

2. KANSAS REQUIRES BALANCING

AND ADEQUATE STATE INTEREST AND

IDENTIFICATION OF THE INTERESTS

OF JUSTICE TO PROTECT FIRST

AMENDMENT PETITIONING

"It is only in those instances where

unbridled speech amounts to misconduct

which threatens a significant state interest,

that a state may restrict a lawyer's exercise

of personal rights guaranteed by the

Constitutions. Spevack v. Klein, 385 U.S.

511, 17 L.Ed.2d 574, 87 S.Ct. 625 (1967);

N.A.A.C.P. v. Button, 371 U.S. 415, 9

L.Ed.2d 405, 83 S.Ct. 328 (1963); Schware v.

Board of Bar Examiners, 353 U.S. 232, 1

L.Ed.2d 796, 77 S.Ct. 752, 64 A.L.R.2d 288

(1957); Konigsberg v. State Bar, 353 U.S.

252, 1 L.Ed.2d 810, 77 S.Ct. 772 (1957); In

re Sawyer, 360 U.S. 622, 3 L.Ed.2d 1473, 79

S.Ct. 1376 (1959)."

"When conflict occurs between the

regulatory powers of government, as for

example the subsequent imposition of

discipline for misconduct by a state-licensed

attorney, and the individual liberty to speak

and publish, a reconciliation must be

effected requiring a careful weighing and

balancing of the respective interests. Such

measures of regulation are not prohibited

where justified by a valid governmental

interest within the administration of

justice, and when the measures are not

intended to control the content of speech but

only incidentally limit its unfettered

exercise."

State v. Russell, 227 Kan. 897, 900-901, 610 P.2d

1122, 1126 (1980).

3. NEVADA MINIMIZES STATE

INTERESTS WHEN ABUSE OF

AUTHORITY MUST BE CONFRONTED.

Pertinent latitude would likely allow

response to sham litigation in Nevada, which

rejects any lower standard of scrutiny when an

attorney finds it necessary to confront abuse of

authority, adjusting the professional standard to

accommodate needs of justice when justice appears

misused. Gentile v. State Bar of Nevada, 501 U.S.

1030, 1054, 111 S. Ct. 2720, 115 L. Ed. 2d 888

(1991). Balancing of the state interest was even

discussed as inappropriate against the prejudice to

administration of justice:

"The cases cited by our colleagues to

support this balancing, Bates v. State Bar of

Arizona, 433 U.S. 350 (1977); Peel v.

Attorney Registration and Disciplinary

Comm'n of Ill., 496 U.S. 91 (1990); Ohralih

v. Ohio State Bar Assn., 436 U.S. 447

(1978); and Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984), involved either

commercial speech by attorneys or

restrictions upon release of information that

the attorney could gain only by use of the

court's discovery process. Neither of those

categories, nor the underlying interests

which justified their creation, were

implicated here. Petitioner was disciplined

because he proclaimed to the community

what he thought to. be a misuse of the

prosecutorial and police powers. Wide-open

balancing of interests is not appropriate in

this context.'

Id. at 1052.

Nevada requires regulators to demonstrate

the least limitation of liberty that is required to

achieve an end supported by a legitimate state

interest,

At the very least, however, we can say

that the Rule which punished petitioner's

statements represents a limitation of First

Amendment freedoms greater than is

necessary or essential to the protection of

the particular governmental interest, and

does not protect against a danger of the

necessary gravity, imminence, or likelihood.

Id. at 1058.

C. WASHINGTON SWEEPS INTO

PROTRACTED DISCIPLINE WHAT RPC 3.1

AND COMMENT TWO ENCOURAGE AS

LEGITIMATE.

This Court should grant certiorari in review

of uncontrolled lawyer discipline in Washington.

Washington adopted ABA standards creating a safe

harbor for litigation's breathing room, and

Washington adopted Comment Two of RPC 3.1,

encouraging petitioning without concern for failing.

(App. 284a). Washington legislation is equally

protective. By denying hearing to Cottingham's

First Amendment dismissal motion (App. 189a,

195A) Washington demonstrates that it will sweep

all encouraged petitioning exercise into prolonged

investigation after encouraging a safe harbor for

petitioning. Nothing could chill the will of attorneys

or stifle vitality of debate any more than this.

Attempts to restrict or burden the exercise of

First Amendment rights must be narrowly drawn."

Broadrick v. Oklahoma, 413 U.S. 601, 611, 903 S.

Ct. 2908 (1973). When a State undertakes to

restrain unlawful advocacy, it must provide

procedures which are adequate to safeguard against

infringement of constitutionally protected rights.

Speiser v. Randall, 357 U.S. 513, 520-29 (1958).

The constitutional defect of an overbroad

restraint on speech lies in the risk that the wide

sweep of the restraint may chill protected

expression.

Washington provides no clearly articulated

policy protecting First Amendment petitioning and

proceeds no farther than the "frivolous" exception

standard, citing Bill Johnson's Rests., 461 U.S. at

741; (1983). By ending its assessment without

balancing its interests against the national interest

in Washington discipline demonstrates no limits

upon encroachment into the field of protected

petitioning, even when sham use of condemnation

has been testified to have included interests of

untried others. Dismissal motions cannot apply any

degree of protection in Washington. (App. 195), and

federal protection from this court is required

This court has prescribed that regulatory

efforts should cease for the impact upon petitioning

when conduct being opposed is illegal. BE&K

Constr. Co. v. Nat'l Labor Relations Bd., 536 U.S.

516, 525, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002).

Proper petitioning protection will rarely disregard

genuine desire to test the legality of the conduct.

This Court's latest pronouncement asserts that

belief in opposition to illegal conduct complete

defense against punishment of unsuccessful efforts,

regardless of motive. BE&K, 527, 536-3 7. So does

Washington's legislature.29 So does Colorado in

lawyer discipline. Matter of Steven James Foster,

253 P. 3rd 1244 (Cob. May 23, 2011)

Petitioning insisting upon a final judgment's

described location is redress following public

concern and in the public interest. Participation for

agency appeal and agency approval or rejection

records is also the direct target of Washington

regulation, preclusion by timing30 for access made

most difficult without a final judgment location.

Unlawful conduct without such a judgment must

remain protected. It was protection of title as well.

Washington's legislature actually encourages

reporting and petitioning. Discipline is commenced

without even a condemnation judgment's

description in Washington.

D. EQUAL PROTECTION IS DENIED

WITHOUT OPPORTUNITY FOR PROMPT

DETERMINATION OF CONSTITUTIONAL

MERIT, FOR IRREPARABLE

CONSTITUTIONAL HARMS WITHOUT THE

PROTECTION OF MOTION PRACTICE

Equal Protection requires that laws affecting

First Amendment interests be narrowly tailored to

their legitimate objectives. Williams v. Rhodes, 393

U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); generally,

Dunn v. Blumstein, 405 U.S., at 342 -343, 92 S.Ct.,

Matter of Steven James Foster, 253 P.3rd 1244 (Cob.

May 23, 2011)(citing NAACP v. Button, 371 U. S. 415,

433 (1963).

30 RCW 36.70c.040(4)(c) App. 252a.

at 1003. Discipline without regard to First

Amendment petition protection denies equal

protection of the laws and marks forbidden

intrusion into the field of free expression. The duty

to preserve First Amendment liberty is

nondelegable.3' It is speech on "matters of public

concern" that is 'at the heart of the First

Amendment's protection. Dun & Bradstreet, 472

U.S. at 758-59 (footnote omitted) (internal

quotation marks omitted) (quoting First Nat'l Bank

of Bos. v. Bellotti, 435 U.S. 765, 776, 98 S. Ct. 1407,

55 L. Ed. 2d 707 (1978)). Speech is entitled to

heightened First Amendment protection. Thornhill

v. Alabama, 310 U.S. 88 (1940); Pickering v. Bd. of

Educ., 391 U.S. 563, 573, 88 S. Ct. 1731, 20 L. Ed.

2d 811 (1968). For non-attorneys, speech on areas

of public concern must remain just as protected as

for citizens.

Yet, when attorney discipline is the issue,

Washington has relaxed its own burden to allow

regulation under a general interest without

demanding any compelling articulated interest in a

different classification.

E. REGULATION CAN BE NARROWLY

DRAWN.

Washington can easily authorize hearing

officers to decide constitutional issues as soon as

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054,

111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)(quoting Bose

Corp. v. Consumers Union of United States, Inc., 466

U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502

(1984))(constitutional responsibility for review cannot be

delegated to the trier of fact, whether that fact finding

be performed in the particular case by a jury or by a trial

judge).

they emerge. It can easily require charging that

establishes probable cause and constitutional merit,

and can easily take a substantial step toward

petition protection by requiring an allegation that

no First Amendment right of petition is involved,

thus framing the inquiry and shouldering an

allegation that no First Amendment right of

petition is involved, thus framing the inquiry and

shouldering the burden of proof. Until it does

however, Washington substantially denies first

amendment liberty by oppressive investigative

delay without guidance to its officers. Washington

denies first amendment liberty by oppressive

investigative delay without guidance to its officers.

With no allegation that Cottingham did not

constantly demonstrate his belief in plat

regulations, beyond building permitting, and

pursue relief from Washington's statutory denial of

authority to sell platted property lawfully without

agency approval of a final judgment's description,

Washington applied years of oppressive

investigative delay that accomplish denial of First

Amendment liberty. White v. Lee32. City of Houston

Texas v. Hill, 482 U.S. 451 at 467, 107 S.Ct 2502, 96

White v. Lee, 227 F.3rd 1214 (9th cir. 2000)

(determining extended investigation as "unquestionably"

having chilled the exercise of their First Amendment

rights in opposing a zoning agency determination).

"Informal measures, such as "the threat of invoking

legal sanctions and other means of coercion, persuasion,

and intimidation," can violate the First Amendment

also." Id "[G]overnment officials violate this provision

when their acts "would chill or silence a person of

ordinary firmness from future First Amendment

activities." Mendocino Environmental Ctr. v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999).

L. Ed. 398 (1987)(delaying federal adjudication of

fundamental First Amendment liberties itself can

itself accomplish denial of those rights.

In Washington attorneys who lose motions

and appeals will never be able to avoid threat of an

entire burdensome discipline process by proof they

believed in the public concern and regulatory

scheme, opposing unlawful conduct by insisting

upon judgment location. In Washington, a burden of

demonstrating wisdom or credibility of the

regulatory scheme will remain assigned to the

attorney charged.

"[T]he right of access to courts for redress of

wrongs is an aspect of the First Amendment right

to petition the government,"' 33 and retaliation by

government for exercise of the right of access to the

courts implicates the Petition Clause as well.

F. WASHINGTON HAS ARTICULATED

NO HEIGHTENED INTEREST IN

REGULATING LAWYER CONDUCT

JUSTIFYING LOSS OF THE PERSONAL

EXERCISE OF FIRST AMENDMENT

REDRESS PETITIONING ESSENTIAL TO

PROTECTION OF TITLE AND FAMILY.

No ambiguity used to exist as to whether

enforcement would appraise litigation as a whole or

33 Borough of Duryea v. Guarnieri, 564 U.S. 379, 387,

131 S. Ct. 2488, 180 L. Ed. 2d 408 (2011)((quoting Sure-

Tan, Inc. v. Nat'l Labor Relations Bd., 467 U.S. 883,

896-97, 104 S. Ct. 2803, 81 L. Ed. 2d 732 (1984) and

citing BE&K Constr. Co. v. Nat'l Labor Relations Bd.,

536 U.S. 516, 525, 122 S. Ct. 2390, 153 L. Ed. 2d 499

(2002); Bill Johnson's Rests., 461 U.S. at 741; 1983);

California Motor Transport Co. v. Trucking Unlimited,

404 U. S. 508, 513 (1972).

its parts before success measured by a judgment's

described result. If enforcement can apply amidst

sham evidence, during denial of due process

delaying final judgment's entry regardless of

objective belief in the regulatory scheme, a

heightened and compelling state interest is

required with the application of strict scrutiny.

Attorneys must otherwise withdraw when doubt as

to success arises, contrary to ethical rules34.

G. WASHINGTON ENFORCEMENT

METHODS EMPLOYED ARE NOT THE

LEAST RESTRICTIVE MEANS OF

ACHIEVING REGULATORY GOALS.

Washington discipline process guarantees

prolonged investigations and unconstitutionally

deficient attention to petitioning protection by

merely restating the fact of sanctions, judicially

applied in the heat of trial for circumstantial

inference of ill will. Absent guidance from this court

Washington's method is friendly to "sham

litigation," and attorneys who race for sanctions,

regardless of a final judgment. Meanwhile the

absence of a judgment result is characteristic of

illegitimacy, as in Kearney v. Foley Lard ner LLP.

Washington will not allow summary

judgment or motions to dismiss after entry of an

answer in ELC proceedings.35 A clear prescription

that preserves constitutional due process without

damaging interference by protracted discipline36

See RPC 3. 1, Comment Two, App 284a.

ELC 10.1(a) App. 286a, ELC 10.10(c) App.287a;

Special Disciplinary Counsel's Response To Motion To

Dismiss, App. 195a.

36 White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

need not offend Washington's preference, but its

practice and require prompt hearings. A look

beyond the complaint to preserve First Amendment

liberty does not convert the motion into one for

summary judgment, so long as the rule is not

perceived as limiting such hearing officer authority.

See, Safe Air for Everyone v. Meyer, 373 F.3d 1035,

1039 (9th Cir. 2004) (explaining the distinction). By

such a procedure a hearing officer need not even

presume the truthfulness of the disciplinary

complaint's allegations, but could pass the timing

analysis under the Fourteenth Amendment

guarantee of due process discussed in Mathews v.

Eldridge, 424 U.S. 319 (1976)

The enforcement rules reach a substantial

amount of constitutionally protected conduct, for

facial invalidity. Hoffman Estates v. The Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct.

1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v.

Lawson, 461 U.S. 352, 359, n. 8, 103 S.Ct. 1855,

1859, n. 8, 75 L.Ed.2d 903 (1983)(cited in Gentile).

Strict scrutiny is required when conduct and

enforcement rules reach personal petitioning, but

also because they usurp Washington's articulation

of a fundamental interest in plat regulations.

Although written to control litigator conduct

for clients, RPC standards and ELC enforcement

procedures broadly threaten enforcement as to

protected public speech under certainty no greater

than mere clear preponderance (ELC 14.1(b)) on

matters of public concern without standards

limiting enforcement.

2000)(investigation alone chills First Amendment

participation).

H. WASHINGTON'S INTEREST IN

REGULATION OF LAWYER CONDUCT IS

INSUFFICIENT TO INTRUDE UPON THE

PERSONAL RIGHT TO PETITION, SEEK

ACCESS TO COURTS AND OPPOSE

ILLEGAL CONDUCT.

Washington's general interest in regulating

attorneys will not justify discipline within the scope

of an attorney's First Amendment rights, acting pro

Se, for his family and property. Bates v. State Bar of

Arizona, 433 U.S. 350 (1977).

Authority to regulate lawyer conduct is all

too easily to silence the message that final

judgment descriptions are required statutory due

process, but the message served finality and state

policy. It is protected and encouraged in

Washington as vital to effective law enforcement.

Washington State has not articulated a

specific interest in mitigating a "substantive evil"

that erodes the goals of "true professionalism"

among lawyers. Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447, 460-62 (1978)(citing Bates, 433 U.S.

at 368).

Washington's Disciplinary Office compelled a

response to protracted investigation and

disciplinary proceedings concerning readily

available litigation records while Attorney

Cottingham asserted that condemnation

proceedings were abused unless aimed at an ending

in a judgment's agency approved description.

Washington's highest court adopted a

discipline recommendation arising from a hearing

officer who was told he was not to consider a First

Amendment dismissal motion and its authority,37

App. 195a, App. 286a, ELC 10.10(c) (App. 287a)

because Washington by no rule or guidance accords

a responsibility to hear any balancing of burdens38

protective of First Amendment petitioning. A

party's attorney informed no fees were charged.

Without aiming to address the objective

belief in regulated finality, discipline was pursued

and achieved under the Washington Disciplinary

Board by ignoring Cottingham's motion to dismiss

and its First Amendment petitioning authorities39

evidence 40

statutory

including

objective

Washington's criminal declaration statute (RCW

58.17.300, App. 258a) was cited in Cottingham's

dismissal motion (App. 189a) with authority

revealing the interest in notice of land division

compliance as "fundamental" (Kates v. Seattle, 44

Wn. App. 754; 723 P.2d 493 (1986)).

App. 289a.

39 BE&K Constr. Co. v. NLRB, 536 U.S. 516, 246 F. 3d

619 (2002); Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80

L.Ed.2d 502 (1984); Gentile, v. State Bar of Nevada, 501

U.S. 1030, 1054, pp. 1065-1075, 111 S. Ct. 2720, 115 L.

Ed. 2d 888 (1991); Bates v. State Bar of Arizona, 433

U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

40 RCW 4.64.030(2) (b) (Judgment description); RCW

58.17.300(sales declared criminal without Agency

approval over whether division appears (App. 258);

payment is for owners after a condemnation trial.

Wash. Const. Art 1 §16.

I. UNTIL A JUDGMENT ENTRY•

DESCRIBES THE LOCATION OF

CONDEMNATION, SUSPENSION IS

ARBITRARY PUNISHMENT FOR

PERSISTENT OPPOSITION TO ILLEGAL

CONDUCT, ADMINISTERED WITHOUT

CLEAR STANDARDS OR FINALITY.

Cottingham is the only party with a

judgment's location description for notice, and the

potentially condemning claimants have sold to that

description. Use of the record to suspend

Cottingham denies due process as irrational and

constitutionally arbitrary.

Discipline has been grounded in a notion that

normal ill will, common in litigation, allows a

reasonable man standard.41 The Opinion does not

apply this court's view that "[a] s long as a plaintiff

's purpose is to stop conduct he reasonably believes

is illegal, petitioning is genuine both objectively and

subjectively." BE&K. Cottingham's effort pursued

the public concern.42 The court's finding that his

effort was "in part"43 improperly motivated is

constitutionally insufficient. Cottingham fully

supported the substance of his unheard motion to

Cf. Professional Real Estate Investors, 508 U.S., at

69, 113 5.Ct. 1920, cited in BE&K Constr. Co. v. NLRB,

536 U.S. 516, 534 246 F.3d 619 (2002).

NAACP v. Button, 371 U.S. 415, 433 (1963)( "a State

may not, under the guise of prohibiting professional

misconduct, ignore constitutional rights." 371 U.S. 415,

439 (1963) (citing In re Sawyer, 360 U.S. 622 (1959);

Schware v. Bd. of Bar Exam'rs, 353 U.S. 232 (1957);

Konigsberg v. State Bar, 353 U.S. 252 (1957)).

Suspension Opinion, App. 5a.

dismiss.44 No general state interest in discipline

must subordinate our First Amendment's

contributions.

Except for this discipline Washington has

never retreated from protecting its concern that

costs associated with defending such suits can deter

individuals and entities from fully exercising their

constitutional rights to petition the government and

to speak out on public issues. Henne v. City of

Yakima, 182 Wn. 2d, 447, 341 P.3d 284 (2015).

A Board dominated by market participating

attorney members (Hearing, App. 67a; Order,

App.78) who are competitors45 discharging the

state's sovereignty must only supervise by clearly

articulated policy that protects First Amendment

petitioning.

Objective statutory evidence of plat

regulations and the compliance required for

44 "Land division that's unapproved by an agency isn't

marketable, according to the Legislature", proceedings

December 20, 2016, App.64a; RCW 58.17.300 App. 258a;

Cottingham Answer To Formal Complaint, App.203a;

Cottingham Motion To Dismiss, App. 189a; Board

Hearing Record September 8, 2017, App. 66a).

45 c.f., North Carolina Dental Board Examiners v.

F.T.C., 135 S.Ct. 1101, 191 L.Ed. 2d 35 (2015)(citing

Goldfarb v. Virginia State Bar, 421 U.S. 773, 791 (1975);

Calif. Liqour Dealers Assn. v. Midcal Aluminum, Inc.

445 U.S. 97, 105 (congressional intent expressed in

"state action" doctrine requires demonstration of active

supervision ensure sovereign accountability under

delegated discretion, to avoid the distinct danger that a

state may use color of authority to pursue private

interests in restraining trade in lieu of implementing

goal; and such a Board's burden of recording proof of

discharging the active supervision).

litigated finality supports a First Amendment

defense that cannot be subordinated by

circumstantial inference of improper motive

without loss of federally guaranteed supremacy. A

duty of independent review46 is only delegable to a

hearing officer as accountable, sovereign "state

action" only upon discharge of clear articulation of

state policy and active supervision,47 which must

protect First Amendment petitioning liberty.

Otherwise Washington unaccountably allows

combination of its board in violation of anti-trust

(15 U.S.0 §1- 45).

CONCLUSION

Certiorari must review use of punishment to

quiet use of the personal right of petition for

purposes of judgment-located finality. Washington

has so far departed from ensuring federally

guaranteed access, participation, and petition

liberties as to discriminate against federal claims.

Lawyer discipline here applied what was

frivolous under shortened LUPA bar deadlines

amidst denial of material disclosure impairing

finality.

Washington's highest court has adopted a

discipline recommendation arising after hearing

Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d

502 (1984), cited in Gentile, v. State Bar of Nevada, 501

U.S. 1030, 1054, pp. 1065-1075, 111 S. Ct. 2720, 115 L.

Ed. 2d 888 (1991).

47 North Carolina State Bd. of Dental Examiners v. FTC, 135

S.Ct. 1101 (2015) (citing Goldfarb v. Va. State Bar, 421 U.S.

773, 791, (1975)); Cal. Retail Liquor Dealers Assn V. Midcal

Aluminum, Inc., 445 U.S. 97 (1980);

officer was told he was not to consider the First

Amendment or legal certainty of summary

judgment. Washington guides differently by no rule

requiring its hearing officers authority to determine

constitutional merit or apply any balancing for

report to the court protecting First Amendment

petitioning. The burden essential to First

Amendment protection must be clarified for

national uniformity and breathing room when

opposing illegal conduct.

Washington attorneys obey an oath to

support both constitutions. This court's declaration

should declare Washington procedure unprotective

of First Amendment immunity and invalid, and

require Washington to amend its process to record

its discharge of a preliminary burden by

determinations of constitutional merit after an

articulated state interest before charging

professional misconduct under these three codes

(RPC 3.1, RPC 4.4, and RPC 8.4).

Charging must avoid abuse by including

elements that affirmatively allege the absence of

First Amendment petitioning is not involved in the

conduct disciplined.

Washington must be directed to hear

dismissal motions as soon as they are presented

and to record application of a heightened burden of

proof, assigned to the state, that applies balancing

protective of First Amendment petition,

participation, demonstrating access to courts and

administrative agencies, for misconduct determined

only in the absence objective evidence supporting

belief in the petitioning, and without resort to

subjective inference. Washington therefore be

directed to structurally require and supervise

procedure that assigns a clearly articulated early

charging burden burden raising absence of First

Amendment petition exercise before bringing

professional misconduct proceedings of a quasicriminal nature, and burdening exercise with years

of investigation and discipline.

The court should also remand to the

Washington Superior Court for entry of an order

restraining prosecution of the pending complaint

and adoption of rules to ensure application of

review demonstrating protection of First

Amendment petitioning by application of

appropriately heightened burdens at charging and

proof with opportunity for dismissal and hearing

officers fully authorized.

Respectfully Submitted this 13th day of November,

2018.

DAVID C. COTTINGHAM WSB 9553

Petitioner P.O.Box 229140 4538 Fremont

Street Bellingham, Washington 98229

360 733-6668

APPENDIX A OPINIONS, ORDERS, FINDINGS

OF FACT, AND CONCLUSIONS OF LAW,

WASHINGTON STATE DISCIPLINE,

WASHINGTON

SUSPENSION OPINION, AUGUST 16, 2018

WASHINGTON STATE SUPREME COURT

This opinion was filed

FILED

for record at 8:00 A.M.

IN CLERKS OFFICE

on Aug. 16, 2018

SUPREME COURT a

for, SUSAN L.

STATE OF

CARLSON SUPREME

WASHINGTON

COURT CLERK

AUG 16, 2018

FAIRHURST, J. Chief

Justice

IN THE SUPREME COURT OF THE STATE OF

WASHINGTON

No. 201,704-5

En Banc

File Aug 16,

2018

In the Matter of the

Disciplinary Proceeding

Against

DAVID CARL

COTTINGHAM an

Attorney at Law.

WIGGINS, J.—Attorney David C. Cottingham

embarked on a five-year boundary line dispute

against his neighbor. His pursuit involved two

lawsuits, four judicial appeals, two administrative

appeals, countless motions, years of delay,

unnecessary and wasteful expenditure of judicial

resources, injury to his neighbors, and nearly

$60,000 in sanctions for CR 11 violations. As a result,

the Office of Disciplinary Counsel (ODC) charged

Cottingham with violating the Rules of Professional

Conduct (RPC). At the conclusion of the proceedings,

the Washington State Bar Association (WSBA)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.