                                                                        FILED
                                                               C-OURT W.—APPEALS
                                                               .$ TATE OF        D1V- I
                                                                          WASHINGTON
                                                               2010 OCT -8 MI 9:25



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DELVONN HECKARD,                         )       No. 77019-5-1
                                         )
                     Plaintiff,          )       DIVISION ONE
                                         )
       v.                                )
                                         )       PUBLISHED OPINION
MAYOR EDWARD MURRAY,                     )
                                         )
                     Respondent,         )
                                         )
LINCOLN BEAUREGARD,                      )
                                         )
                     Appellant.          )       FILED: October 8, 2018
                                         )
       LEACH, J. — Lincoln Beauregard appeals the trial court's imposition of CR

11 sanctions against him. The trial court found that Beauregard filed documents

with the court for the improper purpose of generating publicity in violation of CR

11. Beauregard claims that he did nothing that could serve as a basis for a CR

11 violation. We disagree and affirm.

                                      FACTS

       This politically charged case began on April 6, 2017, when Delvonn

Heckard, through Beauregard, filed this lawsuit against Edward Murray. At the

time, Murray was the elected mayor of Seattle, serving the last year of his term

and planning to run for reelection. The candidate filing period for this election ran

from May 15 to May 19, 2017. Heckard alleged that Murray had paid him for sex
No. 77019-5-1/ 2



while Heckard was a minor.          Anticipating claims of political motivation,

Beauregard also asserted,

       Natural speculation would lead some people to believe that D.H.'s
       actions are politically motived—which is not exactly true. In this
       regard, D.H. is disturbed that Mr. Murray maintains a position of
       trust and authority, and believes that the public has a right to full
       information when a trusted official exploits a child. To the extent
       that D.H. has any political motivations for outing Mr. Murray, they
       stop there.

       That same day, Murray's attorney, Robert Sulkin, hosted a press

conference on Murray's behalf and publicly denied the allegations against

Murray. The next day, Beauregard sent Sulkin a letter stating that Heckard was

available for a video deposition. On April 9, Beauregard sent Sulkin another

letter asking about discovery and service of process. Sulkin did not reply to

either letter.

       On April 11, Sulkin called another press conference. He stated that the

lawsuit was meritless and Heckard's claims were part of an "anti-gay political

conspiracy." On April 12, Beauregard had the summons and complaint served

on Murray. On April 14, a Seattle newspaper, The Stranger, published a Murray

op-ed stating that the accusations were false and made to advance an anti-gay

political agenda.

       On April 17, the assigned judge's bailiff advised Beauregard, other

counsel of record, and Sulkin of the judge's availability that week "should counsel

                                        -2-
No. 77019-5-1/ 3



wish to address preliminary matters and for planning purposes." The same day,

Beauregard filed an affidavit of prejudice against the assigned judge. The next

day, The Stranger quoted Sulkin saying that Beauregard and his firm were

"question[ing] the integrity of [the] highly regarded judge [assigned to the case]"

and the "integrity of a highly respected doctor[who examined Murray and] whose

conclusions undermine their claim." The case was reassigned to another judge.

        On April 19, Heckard filed an amended complaint. Beauregard attached

to this complaint a letter to Sulkin commenting on the press conferences, the fact

that Sulkin had not yet filed a notice of appearance, and Sulkin's statements

about Beauregard taking issue with the judge originally assigned to the case.

Beauregard and his firm also began copying select documents to the trial court

file.

        Over the course of the proceedings, in addition to the letter attached to the

amended complaint, Beauregard filed with the trial court a number of letters

addressed to Sulkin and subpoenas and/or notices of deposition to three

individuals, including Murray, and the City of Seattle/Seattle Police Department.

In Beauregard's original, amended, and second amended subpoena and notice

of deposition to Murray, he described some topics he intended to explore when

questioning Murray:

        [These include] potential causes of the medical matters referenced
        publicly by [Murray's] attorneys in a news conference on April 11,
                                         -3-
No. 77019-5-1/ 4


      2017. Those medical causes could include multiple medical
      complications stemming from having promiscuous sex with multiple
      child prostitutes. Bumps, warts, and/or moles do not always remain
      30-years, depending upon the root cause. Mr. Murray will also be
      asked about the prior use of campaign funds to extinguish the
      voices of other victims, and all other topics related to this lawsuit.

      The Seattle Times published articles about one of the subpoenas and/or

notices of deposition and matters discussed in the correspondence that

Beauregard filed. Sulkin filed a notice of appearance on April 21. He also sent

Beauregard a letter asking that Beauregard stop filing with the court

correspondence addressed to him. Beauregard did not.

      On April 25, Murray asked the court to sanction Beauregard "under CR 11

and the Court's inherent authority for wrongly filing documents for an improper

purpose." Beauregard responded to the request, and Murray replied to this

response. On May 4, the trial court held a hearing to announce its oral decision.

It did not permit oral argument. Neither party objected to the court's decision not

to permit oral argument. Beauregard did not ask the court to reconsider its

decision to proceed without oral argument and has not assigned error to this

decision.

      The court found that Beauregard filed the documents at issue for an

improper purpose in violation of CR 11 and imposed $5,000 in sanctions.

Beauregard promptly paid the sanctions into the registry of the court. In June

2017, after Heckard voluntarily dismissed his lawsuit without prejudice,
                                       -4-
No. 77019-5-1/ 5



Beauregard appealed the sanctions order. The parties completed briefing the

appeal in November 2017.

       In January 2018, the parties entered into a settlement agreement. As part

of the settlement, Murray agreed to stipulate to an order vacating the trial court's

sanctions order. The trial court denied a request to enter the proposed agreed

order and also ordered the disbursal of the $5,000 in sanctions to the King

County Bar Foundation.

       Beauregard asked this court to void the trial court's order denying the

request to vacate the sanctions order. A commissioner of this court denied this

request but stayed the portion of the trial court's order disbursing the funds.

Beauregard then amended the notice of appeal to include the trial court's order

denying the request to vacate the sanctions order. Neither party requested nor

provided supplemental briefing.

                                    ANALYSIS

       Beauregard challenges the scope of the issues and materials considered

by the trial court and the merits of its sanctions decision. We address his

challenges in this order.

           Scope of Materials and Issues Considered by the Trial Court

       Beauregard claims that the trial court should not have considered Murray's

claims that Beauregard violated RPC 3.6 and CR 5(i) and supporting expert

                                        -5-
No. 77019-5-1 /6



declarations because Murray raised these arguments for the first time on reply.

Murray responds that this court should decline to review this claim because

Beauregard did not preserve it for appeal. An appellate court may refuse to

review any claim of error that a party did not raise in the trial court unless one of

three exceptions applies.'     Because Beauregard did not object, he did not

preserve the issue for appeal.

       Also, to the extent that the trial court may have considered material it

should not have, Beauregard has not shown that he was prejudiced. So any

error was harmless. King County Super. Ct. Local Civ. R. (KCLR) 7(b)(4)(G)

states, "[A]ny reply material which is not in strict reply[]will not be considered by

the court over objection of counsel except upon the imposition of appropriate

terms, unless the court orders otherwise." Moreover, "[r]ebuttal documents are

limited to documents which explain, disprove, or contradict the adverse party's

evidence."2

       Beauregard asserts that Murray violated KCLR 7(b)(4)(G) by claiming for

the first time in his reply brief and supporting declarations that Beauregard

violated RPC 3.6 and CR 5(i). The application of court rules is a question of law

that an appellate court reviews de novo.3

      1 RAP 2.5(a).
       2 Whitev. Kent Med. Ctr., Inc., P.S., 61 Wn. App. 163, 168-69, 810 P.2d 4
(1991).
      3 Kim v. Pham,95 Wn. App. 439, 441, 975 P.2d 544 (1999).
                                        -6-
No. 77019-5-1 / 7



       Murray's request for sanctions stated that Beauregard's challenged

conduct was "inconsistent with CR 7 and the Rules of Professional Conduct."

Indeed, the request did not mention either RPC 3.6 or CR 5(i). But Beauregard's

response claimed that Murray's counsel was "unable" to cite any rule that he

violated. Beauregard also stated that RPC 3.6 gave him license to "publicly

discuss matters that have been filed with the Court." In direct reply to this

argument, Murray responded that Beauregard violated RPC 3.6.

       Beauregard also claimed in his response that there is "no rule that

precludes filing discovery related correspondence and/or subpoenas." Again, in

direct response, Murray asserted that Beauregard violated CR 5(i), which

generally forbids filing discovery documents with the court.

       Murray also submitted with his reply two expert ethics witnesses'

declarations supporting his claims that Beauregard violated RPC 3.6 and CR 5(i).

We conclude that Murray's counterarguments in his reply brief sufficiently

answered Beauregard's arguments. The expert declarations, however, were not

necessary to "explain, disprove, or contradict" Beauregard's claims and were

outside of the scope of a "strict reply." Even so, the trial court's consideration of

these declarations was harmless. The trial court did not find that Beauregard

violated RPC 3.6, as discussed below, so it did not rely on the declarations to

support its decision.

                                        -7-
No. 77019-5-1/ 8



                               CR 11 Sanctions

      Beauregard next claims that the trial court abused its discretion by

imposing sanctions under CR 11 because no rule prohibits an attorney from filing

with the trial court correspondence addressed to opposing counsel or subpoenas

and/or notices of deposition. We disagree. Beauregard's conduct violated CR

5(i) and CR 11.

      CR 11 requires that attorneys sign all pleadings, motions, and legal

memoranda. This signature constitutes the attorney's certification that to the

best of the attorney's "knowledge, information, and belief," formed after a

reasonable inquiry, the pleading, motion, or memorandum is

      (1)... well grounded in fact; (2). . . warranted by existing law or a
      good faith argument for the extension, modification, or reversal of
      existing law or the establishment of new law; [and] (3). . . not
      interposed for any improper purpose, such as to harass or to cause
      unnecessary delay or needless increase in the cost of litigation.[4]

      If an attorney signs a pleading, motion, or memorandum in violation of this

rule, "the court, upon motion or upon its own initiative, may impose upon the

person who signed it. . . an appropriate sanction."5 An appellate court reviews a

trial court's imposition of CR 11 sanctions for an abuse of discretion.6 A trial

court abuses its discretion when "the decision is manifestly unreasonable or


      4 CR 11(a)(1)-(3)(emphasis added).
      5 CR 11(a)(4).
      6 Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994).
                                       -8-
No. 77019-5-1/9



exercised on untenable grounds or for untenable reasons."7 When reviewing CR

11 sanctions, an appellate court "must keep in mind that g[t]he purpose behind

CR 11 is to deter baseless filings and to curb abuses of the judicial system.'"8

       At issue here is whether Beauregard filed documents for an improper

purpose. Beauregard claims that the trial court did not "find, precisely" what was

the improper purpose. When a trial court imposes CR 11 sanctions, it must

"specify the sanctionable conduct in its order" and make a finding that the

document is either not grounded in fact or law or the attorney filed the document

for an improper purpose.8 The written findings requirement exists to allow the

appellate court to review the issues raised on appeal, so a trial court's failure to

enter written findings does not require reversal "where the court's comprehensive

oral ruling is sufficient to allow appellate review."10

       Here, the trial court stated,

              In reviewing these documents, the court finds troubling not
       only the subject matter of the filings proffered by the plaintiff, but
       the manner in which this occurred.

              Plaintiff was clearly aware that his behavior was the subject
       of a motion, and, nevertheless, willfully and with a flagrant
       disregard for established legal norms, continued to file documents
       that were irrelevant to the matter before the court, nonresponsive to

             v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001).
       7 State
       8Biggs, 124 Wn.2d at 197 (quoting Bryant v. Joseph Tree, Inc., 119
Wn.2d 210, 219, 829 P.2d 1099 (1992)).
     9 Biggs, 124 Wn.2d at 201.
     10 State v. Bynum, 76 Wn. App. 262, 266, 884 P.2d 10 (1994).
                                      -9-
No. 77019-5-1/10


      the pleadings at issue, and for the sole purpose and intent—
      apparent intent of generating publicity that has the potential of
      prejudicing the administration of justice.
             Therefore, the defense motion for sanctions pursuant to CR
      11 is granted. The court is imposing sanctions in the amount of
      $5,000.

Although the trial court did not make written findings specifying the sanctionable

conduct, its oral ruling makes clear that it found Beauregard filed the documents

at issue for the improper purpose of "generating publicity that has the potential of

prejudicing the administration of justice."

       Beauregard next claims that he did not violate CR 11 because filing

documents to generate pretrial publicity does not violate RPC 3.6 or any other

civil rule and is not an improper purpose. We disagree.

A.     RPC 3.6

       Beauregard contends that the trial court erred in using an RPC 3.6

violation as a basis for imposing CR 11 sanctions because he did not violate

RPC 3.6.

       The relevant provisions of RPC 3.6 are as follows:

             (a) A lawyer who is participating or has participated in the
      investigation or litigation of a matter shall not make an extrajudicial
      statement that the lawyer knows or reasonably should know will be
      disseminated by means of public communication and will have a
      substantial likelihood of materially prejudicing an adjudicative
      proceeding in the matter.
             (b) Notwithstanding paragraph (a), a lawyer may state:

             (2) information contained in a public record.

                                        -10-
No. 77019-5-1 / 11



       RPC 3.6 restricts lawyers' extrajudicial communications with the media. In

its oral ruling, the trial court explained that RPC 3.6(b)(2) exempts lawyers from

these restrictions if they state information contained in a public record. The court

stated, "Unless specifically sealed by a court, items contained in court files are

matters of public record." And Beauregard filed the documents at issue in the

trial court file. After implicitly recognizing that Beauregard's conduct may qualify

under an exception clause of RPC 3.6., the court did not frame the issue as

whether his extrajudicial statements were proper. Rather, the court defined the

issue as a "question of what documents are properly filed before this court." The

court did not find that Beauregard violated RPC 3.6.

B.     CR 5(i)

       Beauregard also contends that he did not violate CR 5(i). With limited

exceptions, CR 5(i) prohibits parties from filing discovery material with the court:
       Depositions upon oral examinations, depositions upon written
       questions, interrogatories and responses thereto, requests for
       production or inspection and responses thereto, requests for
       admission and responses thereto, and other discovery requests
       and responses thereto shall not be filed with the court unless for
       use in a proceeding or trial or on order of the court.

(Emphasis added.)

       First, Beauregard claims that he did not violate CR 5(i) because it does

not prohibit filing with the court correspondence to opposing counsel or

subpoenas and/or notices of deposition when counsel believes he must do so to

                                        -11-
No. 77019-5-1 / 12



make a record. Beauregard asserts that he was justified in filing with the court

the documents at issue to make a record on two grounds: (1) Sulkin did not file

his notice of appearance stating that he was Murray's counsel until two weeks

after Heckard filed his lawsuit and (2) Sulkin did not respond to either of the two

letters that Beauregard sent him within three days of Heckard filing his lawsuit.

       Beauregard relies on Gronquist v. Department of Licensing" to support

the proposition that the CR 5(i) filing restrictions do not apply when a party

believes it is necessary to file select documents to make a record. Gronquist,

however, does not support this proposition.

       Gronquist sought review of the trial court's refusal to allow him to file

deposition transcripts that he claimed supported his pending motions and

undermined the opposing party's motion for summary judgment. Division Two of

this court held that Gronquist was entitled to file the depositions, but the court did

not decide that a need to make a record overrode the restrictions of CR 5(i).12

Instead, the court reasoned that CR 5(i) permitted the filing of the depositions

because they were "'for use in a proceeding or trial or on order of the court.'"13

       Alternatively, Beauregard contends that similar to Gronquist, CR 5(i)

permits filing the documents at issue because they related to upcoming motions


       11 175 Wn. App. 729, 309 P.3d 538 (2013).
       12 Gronquist, 175 Wn. App. at 759.
       13 Gronquist, 175 Wn. App. at 759 (quoting CR 5(i)).
                                      -12-
No. 77019-5-1 / 13



practice about scheduling depositions, Murray's deposition questions, and

contested subpoenas.      But these documents did not relate to any pending

motions when Beauregard filed them. No discovery disputes had arisen. No

party had sought relief through a pending motion.

       The trial court did not expressly find that Beauregard violated CR 5(i). But

it explained that "[CR 5(i)] indicates that discovery materials [are] not to be filed

except with certain exceptions, none of which exist in this instance."            We

conclude that Beauregard filed notices of deposition in contravention of CR 5(i),

which specifies that "other discovery requests . . . shall not be filed with the court

unless for use in a proceeding or trial." Further, CR 26(h) states, "A party filing

discovery materials. . . for use in a proceeding or trial shall file only those

portions upon which the party relies."

       Although the subpoenas and/or notices of deposition Beauregard filed

related to this case, unlike in Gronquist, the court did not have before it any

pending proceeding where these documents supported or undermined a request

for relief. Beauregard was not relying on them for "use in a proceeding or trial"

as CR 5(i) and CR 26(h) require. Because Beauregard violated CR 5(i), the

court did not abuse its discretion by considering CR 5(i) when making its

determination that Beauregard filed documents with the court for an improper

purpose in violation of CR 11.

                                         -13-
No. 77019-5-1/ 14



C.     Improper Purpose

       Beauregard casts doubt on the trial court's statement that he filed the

documents at issue with the "apparent intent of generating publicity" and

alternatively claims that if he did file the documents to generate publicity, this was

not an improper purpose.

       First, Beauregard has acknowledged that he filed with the court

correspondence addressed to Sulkin and subpoenas and/or notices of deposition

to allow the press access to them and to combat Sulkin's press conferences. In

opposition to Murray's motion for sanctions, Beauregard filed a letter with the trial

court addressed to Sulkin stating, "On the merits, your motion's express purpose

is to intimidate us from making the record that we deem appropriate. By law, you

are effectively asking the Court to seal the files from public view by way of

unlawful strong arm tactics."       And in his response to Murray's motion,

Beauregard stated that he was "abundantly aware that the media [was] watching

this lawsuit. In full accord with Washington's public policy favoring an open court

system, when reporters have questions about the status of the litigation, the

undersigned attorneys avoid hosting press conferences and, instead, just refer

interested individuals to the filings of record." He also stated, "In order to keep a

proper record, the undersigned attorneys began filing correspondence with the

Court to ensure that the litigation history was properly crystalized, and whatever

                                        -14-
No. 77019-5-1/ 15



lawyers ever finally filed a Notice of Appearance would have full information."

Beauregard makes clear that he filed the documents at issue to help facilitate the

media's access to them. He does not claim that the court needed to review

these documents to resolve any pending request for relief.

      Second, filing documents with the court for the purpose of generating

publicity is an improper purpose. The court file is not a bulletin board for

attorneys to post information for the press.        Neither is it an archive for

communications between lawyers. It exists so attorneys may provide the court

with documents relevant to the proceedings pending before it so that the court

can consider this information when resolving a request for relief. Attorneys may

communicate with the press through a number of avenues. But the court file

does not exist for the purpose of facilitating this communication. Beauregard's

written statements provide sufficient support for the trial court's conclusion that

he filed the documents for the improper purpose of generating publicity.

       Beauregard also cites the drop-down menu provided online by the King

County Clerk for electronic filings to justify his actions. This menu provides a

path for filing subpoenas and correspondence. But this menu does not purport to

provide litigants with advice about what documents they may properly file with

the court. As noted above, when subpoenas and correspondence are relevant to

a pending request for relief, the applicable rules permit filing them. Beauregard's

                                       -15-
No. 77019-5-1/ 16



argument fails to consider this threshold criteria. He also fails to provide any

authority supporting his implicit assumption that this drop-down menu could

modify the requirements of applicable court rules.

       At oral argument, Beauregard's counsel questioned the trial court's

decision not to hear oral argument before deciding the sanctions motion,

particularly given the significance of the imposition of sanctions. But Beauregard

did not object to this procedure at the trial court, did not assign error to it, and did

not discuss it in his briefing. We decline to consider an issue raised for the first

time at oral argument.

                                  First Amendment

       Last, Beauregard asserts that sanctions based on his alleged violation of

RPC 3.6 violated his First Amendment rights because the trial court retroactively

punished him for his media contacts without finding that his actions created a

demonstrable, substantial likelihood that the trial of the case would be materially

prejudiced as a result of his conduct. This court reviews constitutional issues de

novo.14

       "Under the First Amendment, [no limitation on counsel's speech] is

permissible unless the court finds there is at least 'a reasonable likelihood that




       14 State   v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462(2017).
                                         -16-
No. 77019-5-1/ 17



pretrial publicity will prejudice a fair trial.'"15 Because we decide that the trial

court did not find that Beauregard violated RPC 3.6, we do not review this claim

as it relates to an RPC 3.6 violation. And the trial court did not retroactively

punish Beauregard for his media contacts.

        First, Beauregard had notice that if he continued to file with the court the

documents at issue, his behavior would be subject to a sanctions request. Sulkin

wrote to Beauregard asking him to stop filing letters addressed to him, "Please

confirm you will no longer file letters to me with the Court. If no such confirmation

is immediately forthcoming, we will be forced to take appropriate action." Still,

Beauregard continued to file letters addressed to Sulkin. The trial court noted

this in its ruling.

        Second, the trial court did not restrict Beauregard's ability to communicate

with the media by way of press conference or any other permissible avenue. It

did not restrict the content of his communications with the media. It did not

sanction him for the content of his communications. Instead, it sanctioned him

for improper use of the court file. After the trial court imposed sanctions, it did

enter an order governing media coverage in the courtroom. But Beauregard


       15 State v. Bassett, 128 Wn.2d 612, 615-16, 911 P.2d 385 (1996)(holding
that pretrial orders limiting counsel's ability to communicate with the media
violated the First Amendment because it was a prior restraint on speech, which
was presumptively unconstitutional)(internal quotation marks omitted)(quoting In
re Dow Jones & Co., 842 F.2d 603,610(2nd Cir. 1988)).
                                      -17-
No. 77019-5-1/ 18



does not appeal this order. The trial court did not violate Beauregard's First

Amendment rights by imposing CR 11 sanctions.

                                    Attorney Fees

          Murray asks that this court award him attorney fees under RAP 18.9

because Beauregard's appeal was frivolous. "RAP 18.9(a) permits an appellate

court to award a party attorney fees. . . when the opposing party files a frivolous

action.     An appeal is frivolous if. . . the court is convinced that the appeal

presents no debatable issues upon which reasonable minds might differ."16

Here, although Beauregard's claims lack merit, they are not frivolous. We deny

Murray's request for attorney fees.

          The Trial Court's Denial of the Parties' Stipulated Motion To Vacate

          Beauregard also appeals the trial court's January 2018 order denying the

parties' stipulated motion to vacate the sanctions order. Because the trial court

did not abuse its discretion by imposing sanctions, it did not abuse its discretion

by denying the parties' motion to vacate the sanctions order. The fact that the

parties stipulated to the motion to vacate does not make it binding on the court.17




       16 Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd.,
170 Wn.2d 577, 580, 245 P.3d 764 (2010).
       17 Folsom v. County of Spokane, 111 Wn.2d 256, 261, 759 P.2d 1196
(1988) (recognizing the "long-standing rule that stipulations of law are not
binding").
                                     -18-
No. 77019-5-1/ 19



                                 CONCLUSION

      The trial court did not abuse its discretion by imposing CR 11 sanctions

after finding that Beauregard filed documents with the court for the improper

purpose of generating pretrial publicity. We affirm.




WE CONCUR:



5.C23L.;),-tagz,                                       5eccze_te,




                                       -19-
