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Baer v. City of Auburn

January 21, 1997

DOUGLAS G. BAER, PETITIONER,
v.
CITY OF AUBURN, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-1-01541-3. Date filed: 09/08/95. Judge signing: Hon. Jo Anne Alumbaugh.

PER CURIAM. Petitioner Douglas J. Baer challenges the superior court's order dismissing his RALJ appeal on the ground he failed to diligently pursue the appeal. In his motion for discretionary review, Baer asks this Court to accept review and to reverse the order because he was deprived of his constitutional right to the assistance of counsel. A commissioner of this Court referred the motion to a panel of Judges. We grant Baer's motion, reverse the order and remand for reinstatement of the appeal.

According to Auburn Municipal Court docket entries, the City of Auburn charged Baer with resisting arrest on June 24, 1994. After two continuances were allowed so Baer could obtain counsel, Timothy Jenkins was appointed on November 1 to represent Baer. On November 22, Jenkins was permitted to withdraw due to a conflict and David Kirshenbaum was appointed. On December 13, Kirshenbaum filed a motion to withdraw due to a conflict. *fn1 On January 11, 1995, Baer appeared pro se. A jury trial commenced and Baer was convicted of resisting arrest and obstructing a police officer. *fn2 Baer was sentenced February 16. He filed a pro se notice of appeal February 28.

The Auburn city attorney sent Baer a letter dated March 27. The letter stated as follows:

The City of Auburn can no longer provide you with a public defender.

The City, as you are aware, has contracts with a number of public defenders. Apparently the public defenders on contract have been requested by you or they will not represent you [sic]. The City has no further obligation to provide any further public defenders.

On March 31, Baer, acting pro se, and the City of Auburn, appeared before King County Superior Judge Brian Gain for Baer's RALJ appeal. Baer explained his past experiences with appointed counsel in the Auburn Municipal Court in other cases and the problems he had having counsel appointed to represent him. Baer requested the appointment of counsel. He said he did not understand the procedures and did not have the training necessary to handle his appeal. Baer explained he had contacted attorney Sue Freeborn, who told Baer she was willing to represent him. He said "an attorney could be appointed very easily for me in the city of Auburn" but that the city attorney would not authorize Freeborn to represent him.

The city prosecutor stated "the City's position is, we have afforded Mr. Baer every opportunity, putting him in touch with and appointing him with every attorney that is contracted with the City of Auburn" and that none of the attorneys were available to represent Baer, either because of conflicts of interest or other undisclosed reasons. The prosecutor said Freeborn "was not in a position to represent" Baer and would not do so.

Judge Gain told Baer if Freeborn was willing to represent him, he would appoint her. Judge Gain said, "I am satisfied that the City's . . . obligation [to provide counsel] does not end just because the people that are on their list are for some reason disqualified." Baer asked the Judge what he should do in the event Freeborn did not represent him. Judge Gain said if there was a dispute between the city and Freeborn as to conditions of appointment, "that is not something I am going to get involved in."

In response to the city's request that he admonish Baer on the RALJ deadlines, Judge Gain said he would provide Baer a copy of the case schedule. Judge Gain said, "The longer you wait, the more likely that you are going to end up in the same situation, where you missed the dates that are required for you to meet to keep this appeal [alive]." *fn3 On April 14, Baer filed a pro se motion to continue in the Auburn Municipal Court. He alleged the city of Auburn refused to provide him with counsel and that he had not yet received materials he had requested for his appeal.

On May 2, Baer filed a pro se motion in King County Superior Court, alleging he was incapable of prosecuting his appeal and asking for the appointment of counsel and for an extension of time to allow appointed counsel to review his case.

On June 5, Baer appeared before King County Superior Court Judge Ricardo Martinez. *fn4 Baer said Freeborn was not representing him, apparently because of a fee dispute between her and the city of Auburn. Baer explained he had been in touch with a private attorney, John Henry Browne, who said he could assist.

Judge Martinez expressed his doubt Browne would agree to take the case, but agreed to continue the matter to a dismissal calendar until August 11. Judge Martinez told Baer if he perfected the appeal before then, it would be removed from the dismissal calendar and set for oral argument. He said if Browne declined to represent him, "you're going to have to perfect the appeals on your own and argue them yourself. Otherwise, they'll be dismissed on August 11th of 1995."

Baer asked Judge Martinez how he could obtain counsel if Browne was unwilling to represent him. Apparently referring to the city's March 27 letter, Judge Martinez said, "Then you're going to be stuck. You'll have to do it on your own or else find some money to pay an attorney."

Baer's RALJ appeal was dismissed by order signed September 8. *fn5 On September 21, Baer filed a pro se motion and "order" for discretionary review in the King County Superior Court. Therein Baer again ...


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