Janet Capps - an assistant attorney general blamed for failing to file an appeal in a major civil verdict against the state - says she didn't miss the appeal deadline intentionally.
Capps said in sworn depositions released to The Seattle Times yesterday that she does not recall seeing the official notice warning her the deadline clock for the appeal was ticking. And, she said, she thought she had been removed from the case.
Capps' depositions, provided to the Attorney General's Office on June 1, 6 and 23, contradict an explanation for the foul-up offered to the Court of Appeals by Attorney General Christine Gregoire - namely that Capps caused the problem by intentionally sitting on documents that would have warned her colleagues that a 30-day appeal period was beginning to run.
The state failed to file the appeal in a $17.8 million verdict won by three developmentally disabled men who were sexually abused by a state-licensed caretaker.
Following the verdict, court papers delivered by the plaintiffs' attorneys to the Attorney General's Office on April 4 would have signaled the clock was running, but they sat untended in Capps' office for six weeks while the deadline passed.
The appeal deadline in the case lapsed in mid-May, with no action taken by the attorney general.
An investigator hired by the Attorney General's Office reported that Capps appears to have "intentionally chose not to forward these particular . . . documents in a timely manner at the time she first saw them."
The investigator theorized that Capps had bickered throughout the trial with her co-counsel, Assistant Attorney General Loretta Lamb, and was feeling left out of the process after the verdict.
The investigator also said Capps had provided conflicting accounts right after the mistake was discovered. Most notably, the report said, on May 31, she told one of her supervisors she might have seen the documents but had not paid attention to them, speculating that "what happened might have been caused by a personal problem she was experiencing," the report said.
Capps noted in her declarations released yesterday that she suffers from symptoms of attention deficit disorder. But she said the disorder - diagnosed in January - had not affected her work.
Capps in her declarations stated that following the verdict, she thought she had been removed from the case and passed on all documents that arrived at her desk to Lamb. She acknowledges, however, that the April 4 notice sat in her office and had been moved to a spot that was not where she kept papers from that case.
"I did not knowingly, intentionally or recklessly fail to act on the notice of entry of judgment," she said. "I have no affirmative recollection of knowing of such a document; had I seen it I would have forwarded it to lead counsel on the case, Loretta Lamb. I did not intentionally keep it from her or anyone else."
No copy to court
Capps submitted three declarations to the attorney general. Gregoire's office notified the court that it would not submit the statements to the court unless they were requested.
On the day Capps submitted her last statement, she was admonished by Howard Goodfriend, an attorney representing Gregoire's office in its attempt to convince the state Court of Appeals to allow it to proceed with the appeal.
Goodfriend told Capps' attorney the state would not submit her statements to the court, as Capps had requested, and would move to strike them if Capps tried to submit them herself.
"Should your client persist in taking self serving and unauthorized steps in derogation of her former client's interests and express direction, she does so at her peril," he wrote to Capps' attorney.
The attorney for the plaintiffs in the underlying civil case says the declarations show the state misrepresented the facts of the bungled appeal in briefs to the court.
"That runs completely contrary to what they knew Capps said all along," said attorney David Moody. "They lied to the court."
Chief Deputy Attorney General Kathleen Mix disagrees.
"That's nonsense. That's false," she said. "We have not misrepresented anything to the court. Our briefs to the court rely on the information we had at the time we filed."
Mix said her office does not intend to change the briefs because they rely on their investigation, which was conducted by former federal prosecutor Susan Barnes.
Millions at stake
At stake is more than $18 million, with interest, plus an estimated $2 million in attorneys' fees. The case arose when three severely retarded men were abused in a state-licensed home while Department of Social and Health Services officials ignored warnings, according to an investigation conducted by the Attorney General's Office.
That office must thread a fine needle in its effort to get the court to allow another chance at appeal. By court rule, the attorney general must prove that "extraordinary circumstances" caused her office to miss the appeal deadline.
The documents released yesterday indicate the attorney general's office may have initially hoped to argue that Capps' attention deficit disorder was an extraordinary circumstance, but Capps withdrew her permission to use her private medical records.
The attorney general has stated that another extraordinary circumstance is that Capps intentionally sat on the papers. Apparently if Capps ignored the documents because of simple negligence, it isn't an extraordinary circumstance.
Three members of the seven-member court will hear arguments July 14 on whether to allow the state to appeal, despite the missed deadline.
The attorney general also claims the plaintiffs' attorneys are partly to blame for not warning the state more forcefully about the deadline. In addition, the attorney general points out that her office wasn't given a copy of the final judgment after the judge signed it.
Gregoire has said that as a result of the case, she is reorganizing the division that handled the case and speeding up installation of a new $1.2 million case-management system. The investigative report described an office that lacked fail-safe systems for keeping track of deadlines. It also said the office has had problems keeping a good clerical and support staff.
Capps, 39, has resigned from the attorney general's office, effective today.
If Barnes' report turns out to be accurate - that Capps intentionally withheld the documents - Capps could face discipline by the Washington State Bar Association, which licenses lawyers.
Kurt Bulmer, former disciplinary counsel for the bar and an expert on attorney discipline, said it is likely the bar will open a case against Capps. The process will be secret unless formal charges are filed.
Bulmer said if the bar were to determine that Capps intentionally or neglectfully caused the attorney general to miss the appeal deadline, she could face suspension but wouldn't likely lose her license to practice law.
Eric Nalder's phone message number is 206-464-2056. His e-mail address is email@example.com.