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       1


          1      IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

          2                   IN AND FOR KING COUNTY

          3  _______________________________________________________

          4  ISSAQUAH SCHOOL DISTRICT   )
             NO. 411, A WASHINGTON      )
          5  MUNICIPAL CORPORATION,     )
                                        )
          6                 PLAINTIFF,  )      KING COUNTY CAUSE
                                        )      NO. 02-2-26066-7 SEA
          7           VS.               )
                                        )
          8  ISSAQUAH EDUCATION         )
             ASSOCIATION, AN EMPLOYEE   )
          9  ORGANIZATION, ET AL.,      )
                                        )
         10                 DEFENDANTS. )
             _______________________________________________________
         11

         12                 EXCERPTED FROM PROCEEDINGS
                                 SEPTEMBER 23, 2002
         13
             _______________________________________________________
         14             BEFORE THE HONORABLE JOAN DUBUQUE

         15

         16  APPEARANCES:

         17  FOR THE PLAINTIFF:        THOMAS KELLY AND
                                       CHRISTOPHER HIRST
         18                            ATTORNEYS AT LAW
                                       PRESTON GATES & ELLIS LLP
         19                            701 FIFTH AVENUE #5000
                                       SEATTLE, WASHINGTON 98104
         20

         21  FOR THE DEFENDANTS:       KATHY O'TOOLE AND
                                       FAITH HANNA,
         22                            ATTORNEYS AT LAW
                                       33434 EIGHTH AVENUE SOUTH
         23                            FEDERAL WAY, WASHINGTON 98003

         24
             COURT REPORTER: JANE LAMERLE, CSR
         25

                                                                     2


          1                     AFTERNOON SESSION

          2                                      SEPTEMBER 23, 2002

          3              *   *   *

          4              THE COURT:  PLEASE BE SEATED.  AND IF YOU

          5       WILL JUST GIVE ME A MINUTE TO ARRANGE MYSELF

          6       HERE, I'D LIKE IS TO STRUCTURE THIS IN THE

          7       FOLLOWING WAY:  FIRST, THERE ARE SOME PRELIMINARY

          8       REMARKS THAT I WOULD LIKE TO MAKE.  SECONDLY, I

          9       WILL BE RECITING SOME ESSENTIAL FACTS REGARDING THE

         10       JURISDICTION OF THE COURT AND THE BACKGROUND OF

         11       THIS CASE.  AND THEN FINALLY I WILL ADDRESS THE LAW

         12       AND APPLY THE LAW TO THE FACTS THAT ARE BEFORE THE

         13       COURT.

         14              FIRST OFF, I THINK I HAD MENTIONED EARLIER

         15       THIS MORNING THAT THIS ISSUE IS VERY IMPORTANT TO

         16       THE TEACHERS, TO THE COMMUNITY, AND TO THE PARENTS,

         17              I UNDERSTAND HOW SERIOUS AND IMPORTANT IT

         18       IS.  I ALSO UNDERSTAND THAT FEELINGS ARE STRONG,

         19       POSITIONS HAVE BEEN TAKEN, AND I THINK FROM READING

         20       THE VOLUMINOUS RECORD BEFORE THE COURT AND

         21       LISTENING TO THE WITNESSES, IT'S CLEAR, TO THIS

         22       COURT ANYWAY, THAT THE ISSAQUAH SCHOOL DISTRICT,

         23       COMMUNITY, PARENTS AND TEACHERS ARE VITALLY

         24       CONCERNED ABOUT PROVIDING FAIR AND ADEQUATE

         25       COMPENSATION TO THEIR TEACHERS, AND ALSO VERY

                                                                     3


          1       CONCERNED ABOUT PROVIDING A HIGH QUALITY EDUCATION

          2       TO THEIR STUDENTS.

          3              THROUGHOUT THE PLEADINGS THAT HAVE BEEN

          4       SUBMITTED, INCLUDING THE VAST NUMBER OF PARENT

          5       DECLARATIONS, DECLARATIONS FROM TAXPAYERS,

          6       DECLARATIONS FROM INDIVIDUALS DIRECTLY AND

          7       INDIRECTLY AFFECTED BY THIS STRIKE, IT IS APPARENT

          8       THERE IS A CONSENSUS THAT THE COMMUNITY BELIEVES

          9       THAT THE TEACHERS DESERVE FAIR, ADEQUATE AND

         10       REASONABLE COMPENSATION.  IT IS ALSO APPARENT THAT

         11       THERE IS A MARKED DIFFERENCE AS TO WHAT IS THE

         12       APPROPRIATE MEANS TO THAT END, WHAT AND WHOSE

         13       INTERESTS ARE PARAMOUNT, AND IF AND HOW MUCH CAN BE

         14       FUNDED WITH THE EXISTING RESOURCES.

         15              NO ONE CAN SERIOUSLY DOUBT THE SINCERITY AND

         16       THE HONESTLY-HELD POSITIONS OF THE PARTIES BEFORE

         17       THIS COURT.   NEITHER CAN ANYONE DOUBT THE SERIOUS

         18       CONSEQUENCES OF THE CONTINUED IMPASSE BETWEEN THE

         19       TEACHERS AND THE SCHOOL DISTRICT INSOFAR AS IT

         20       AFFECTS THE RIGHTS OF THE CHILDREN TO BE EDUCATED

         21       AND THE RIGHTS OF THE PARENTS TO SEE THAT THEIR TAX

         22       DOLLARS ARE GOING TOWARDS THE EDUCATION OF THEIR

         23       CHILDREN.

         24              THE PARENTS HAVE SPOKEN, PRO AND CON, AND

         25       THE PARENTS ARE SPLIT.  RESORT TO JUDICIAL

                                                                     4


          1       INTERVENTION IN THIS DISPUTE HAS TRULY BEEN A LAST

          2       RESORT.

          3              I WOULD LIKE NOW TO GO TO SOME OF THE

          4       FINDINGS THAT ARE IMPORTANT FOR THE COURT TO MAKE

          5       IN TERMS OF THE FACTS AND THE JURISDICTIONAL

          6       ISSUES.  THE PLAINTIFF, ISSAQUAH SCHOOL DISTRICT,

          7       IS A MUNICIPAL CORPORATION WITHIN THE STATE OF

          8       WASHINGTON OPERATING A PUBLIC SCHOOL DISTRICT IN

          9       KING COUNTY UNDER R.C.W. TITLE 28A.

         10              THE DEFENDANT, ISSAQUAH EDUCATION

         11       ASSOCIATION, IS AN EMPLOYEE ASSOCIATION AND THE

         12       EXCLUSIVE BARGAINING REPRESENTATIVE OF TEACHERS AND

         13       OTHER NONSUPERVISORY CERTIFICATED EMPLOYEES OF THE

         14       DISTRICT, IN ACCORDANCE WITH THE PROVISIONS OF

         15       R.C.W. CHAPTER 41.59.

         16              THE DISTRICT OPERATES A TOTAL OF 21 SCHOOLS,

         17       AND PROVIDES A COMPREHENSIVE EDUCATIONAL PROGRAM

         18       FOR APPROXIMATELY 14,000 STUDENTS, AS IS REQUIRED

         19       BY WASHINGTON STATE LAW.  THE DISTRICT EMPLOYS

         20       APPROXIMATELY 1,400 PERSONS, OF WHICH 850 ARE

         21       NONSUPERVISORY CERTIFICATED EMPLOYEES REPRESENTED

         22       BY THE ISSAQUAH EDUCATIONAL ASSOCIATION.

         23              OF THE 14,000 STUDENTS, OR APPROXIMATELY

         24       14,000 STUDENTS IN THIS SCHOOL DISTRICT, 1,570 ARE

         25       STUDENTS WHO HAVE DISABILITIES REQUIRING SPECIAL

                                                                     5


          1       EDUCATIONAL SERVICES.

          2              THE DEFENDANT ASSOCIATION AND ITS PRESIDENT,

          3       KATHY LINDERMAN -- SHE IS THE NAMED DEFENDANT,

          4       WHICH IS WHY I'M SPECIFICALLY REFERENCING

          5       MS. LINDERMAN -- AND ALL THE UNNAMED DEFENDANTS,

          6       ARE EMPLOYED BY THE SCHOOL DISTRICT PURSUANT TO

          7       INDIVIDUAL CONTRACTS OF EMPLOYMENT FOR THE YEAR

          8       2002-2003.  THOSE CONTRACTS REQUIRE THE EMPLOYEE TO

          9       PERFORM SPECIFIED PROFESSIONAL CERTIFICATED

         10       SERVICES FOR THE SCHOOL DISTRICT DURING THE 2002-

         11       2003 SCHOOL YEAR.

         12              ON AUGUST 29TH, 2002, MEMBERS OF THE

         13       ISSAQUAH EDUCATION ASSOCIATION VOTED TO STRIKE.

         14       THE TEACHERS REPORTED FOR SERVICE ON SEPTEMBER 3RD;

         15       HOWEVER, BEGINNING SEPTEMBER 4TH, 2002, THE

         16       ASSOCIATION AND ITS MEMBERS WENT ON STRIKE AND HAVE

         17       BEEN ON STRIKE AGAINST THE SCHOOL DISTRICT WITH THE

         18       AUTHORIZATION AND APPROVAL OF THE OFFICERS,

         19       REPRESENTATIVES AND AGENTS OF THIS ASSOCIATION.

         20              THAT STRIKE HAS CONTINUED TO THE PRESENT

         21       DATE.  THE PARTIES HAVE BEEN IN LABOR NEGOTIATIONS

         22       RELATING TO THE TEACHERS' CONTRACT SINCE MARCH OF

         23       2002.  THEY HAVE BEEN BARGAINING IN EXCESS OF 23

         24       DAYS, AND MORE THAN 189 HOURS.

         25              THAT WAS AS OF THE TIME THAT I HAVE RECEIVED

                                                                     6


          1       DECLARATIONS LAST WEEK, I AM CONFIDENT THEY HAVE

          2       BEEN BARGAINING BEYOND THAT, BASED UPON THE

          3       REPRESENTATIONS THAT WERE MADE TO THE COURT ON

          4       THURSDAY OF LAST WEEK.

          5              THE TEACHERS' UNION REQUESTED MEDIATION ON

          6       AUGUST 13TH, 2002.  THE PARTIES HAVE BEEN

          7       PROCEEDING IN THAT PROCESS SINCE THAT TIME.

          8              THE TEACHERS HAVE ALSO FILED UNFAIR LABOR

          9       PRACTICE COMPLAINTS WITH THE PUBLIC EMPLOYMENT

         10       RELATIONS COMMISSION.  THESE COMPLAINTS APPARENTLY

         11       REMAIN PENDING BEFORE THE COMMISSION AND HAVE

         12       FORMED THE BASIS OF THE TEACHERS' ASSERTION OF

         13       UNCLEAN HANDS BY THE SCHOOL DISTRICT.

         14              AS PREVIOUSLY NOTED BY THIS COURT, THE COURT

         15       IS DECLINING TO ADDRESS THOSE COMPLAINTS BECAUSE

         16       THEY ARE PENDING BEFORE PERC.  UNDER THE RULE OF

         17       PRIOR JURISDICTION, IT IS THE RESPONSIBILITY OF THE

         18       COURT TO DECLINE TO DO SO.

         19              AS I NOTED EARLIER, ON SEPTEMBER 3RD, 2002,

         20       THE ISSAQUAH SCHOOL DISTRICT BOARD OF DIRECTORS

         21       AUTHORIZED THE DISTRICT SUPERINTENDENT TO FILE A

         22       SUIT SEEKING DECLARATORY JUDGMENT, INJUNCTIVE

         23       RELIEF AND A TEMPORARY RESTRAINING ORDER CONCERNING

         24       THE THREATENED STRIKE.

         25              THAT LAWSUIT WAS NOT FILED UNTIL SEPTEMBER

                                                                     7


          1       12, 2002.  WHILE ORIGINALLY THE HEARING WAS

          2       SCHEDULED FOR TUESDAY, SEPTEMBER 17TH, IT WAS SET

          3       OVER AT MY REQUEST, DUE TO MY NEED TO REVIEW THE

          4       AMOUNT OF MATERIAL THAT HAS BEEN PROVIDED TO THE

          5       COURT, AND TO DO WHAT I FELT WAS A NECESSARY AND

          6       APPROPRIATE JOB OF RESEARCHING THE LEGAL ISSUES.

          7              ON THURSDAY MORNING, AS WE ALL KNOW, I WAS

          8       ADVISED THERE HAD BEEN A TENTATIVE RESOLUTION OF

          9       THE STRIKE.  THAT DID NOT TURN OUT TO BE ACCURATE,

         10       AND WE ARE HERE TODAY.

         11              COUNSEL HAVE ALREADY LAID OUT VERY CLEARLY

         12       AND APTLY AND COGENTLY THE FACTORS THAT THE COURT

         13       HAS TO CONSIDER IN TERMS OF WHETHER OR NOT I SHOULD

         14       ISSUE A TEMPORARY RESTRAINING ORDER.  AND NOT TO

         15       RESTATE THEM, BUT JUST BRIEFLY TO GIVE US ANOTHER

         16       OVERVIEW, UNDER CIVIL RULE 65 AND OUR CASE LAW, THE

         17       PARTY SEEKING A TEMPORARY RESTRAINING ORDER MUST

         18       HAVE A CLEAR LEGAL OR EQUITABLE RIGHT, THAT THAT

         19       PARTY HAS A WELL-GROUNDED FEAR OF IMMEDIATE

         20       INVASION OF THEIR RIGHTS, AND THAT THE ACTS

         21       COMPLAINED OF, THAT IS THE ACT FOR WHICH AN

         22       INJUNCTION OR TEMPORARY RESTRAINING ORDER IS BEING

         23       SOUGHT OR EITHER RESULTING OR WILL RESULT IN ACTUAL

         24       OR SUBSTANTIAL INJURY -- OR IN OTHER WORDS, AS

         25       PEOPLE HAVE OFTEN USED THE TERMINOLOGY, IRREPARABLE

                                                                     8


          1       HARM -- AND THERE IS NO ADEQUATE REMEDY AT LAW.

          2              CASE LAW HAS INDICATED AN ADDED ADDITIONAL

          3       FACTOR THAT THERE MUST BE A SHOWING THAT THERE IS A

          4       SUBSTANTIAL LIKELIHOOD OF PREVAILING ON THE MERITS.

          5              IT IS IMPORTANT FOR EVERYONE TO NOTE THAT

          6       INSOFAR AS STRIKES BY TEACHERS, THE MAJORITY OF THE

          7       COURTS ADDRESSING THIS ISSUE HAVE HELD THAT

          8       TEACHERS DO NOT HAVE THE RIGHT TO STRIKE, AND THAT

          9       IS NOT INCUMBENT UPON A SCHOOL DISTRICT TO SHOW

         10       IRREPARABLE HARM BEFORE A TEMPORARY RESTRAINING

         11       ORDER MAY ISSUE.

         12              IT IS THE DISTINCT MINORITY OF COURTS THAT

         13       HAVE HELD OTHERWISE.  AND IN FACT ONE OF THOSE

         14       COURTS, MORE THAN TWO YEARS AFTER IT SAID THAT YOU

         15       NEED TO HAVE A SHOWING OF HARM, REJECTED THAT AND

         16       SAID WE WERE WRONG.

         17              AND THAT IS THE RHODE ISLAND CASE OF

         18       WESTERLY.  THEY REJECTED AND REITERATED THAT IN

         19       EXETER-WEST.  THOSE CASES ALL STAND FOR THE

         20       PROPOSITION THAT WHEN IT COMES TO TEACHERS'

         21       STRIKES, THAT THERE SHOULD NOT BE A BALANCING OF

         22       THE NEGOTIATION PROCESS, THE GOOD FAITH BETWEEN THE

         23       PARTIES BECAUSE OF THE ULTIMATE PUBLIC IMPORTANCE

         24       OF THE COMMON LAW ISSUE OF TEACHERS NOT HAVING A

         25       RIGHT TO STRIKE, WHICH GETS US BACK TO WASHINGTON

                                                                     9


          1       LAW.

          2              COUNSEL IS CORRECT.  I NEED NOT LOOK TO THE

          3       LAW OF ANY OTHER JURISDICTION TO ADDRESS THIS

          4       ISSUE.  AT COMMON LAW IN THE STATE OF WASHINGTON,

          5       OUR SUPREME COURT HAS SPOKEN ON AT LEAST THREE

          6       SEPARATE OCCASIONS, AND HAS MADE IT ABUNDANTLY

          7       CLEAR:  STRIKES BY PUBLIC EMPLOYEES ARE ILLEGAL.

          8              PORT OF SEATTLE WAS DECIDED IN 1958; ROZA

          9       WAS DECIDED IN 1972; BURKE AND THOMAS WAS DECIDED

         10       IN 1979.  WHILE BURKE AND THOMAS DID NOT

         11       SPECIFICALLY INVOLVE THE ISSUE OF AN INJUNCTION,

         12       BURKE AND THOMAS, AS COUNSEL NOTED, INVOLVED THE

         13       ISSUE OF WHETHER THIRD PARTIES MAY SUE STRIKING

         14       WORKERS FOR PROPERTY DAMAGE.

         15              WHAT IS CLEAR IS THAT THE SUPREME COURT HELD

         16       THERE THAT WE DON'T WANT TO BE GIVING A DAMAGE

         17       REMEDY IN CIRCUMSTANCES SUCH AS THIS WHEN THERE IS

         18       ANOTHER SPEEDY AND MORE APPROPRIATE REMEDY, AND

         19       THAT'S THE ISSUE OF INJUNCTION.

         20              OUR SUPREME COURT, OVER THE COURSE OF THE

         21       PAST SEVERAL YEARS, AS I INDICATED, HAS EXPRESSLY

         22       INVITED THE LEGISLATURE TO TAKE A LOOK AT THIS

         23       AREA, AND SPECIFICALLY, AS COUNSEL RECITED, SAID IN

         24       PORT OF SEATTLE, WE INVITE THE LEGISLATURE TO DELVE

         25       INTO THIS ISSUE OF IMPORTANT SOCIAL AND PUBLIC

                                                                    10


          1       POLICY.

          2              BUT AT THIS TIME, BASED UPON THE COMMON LAW

          3       OF THIS STATE, STRIKES BY PUBLIC EMPLOYEES ARE

          4       ILLEGAL.  THERE IS NO EXPRESS OR EXPLICIT STATUTORY

          5       RIGHT FOR TEACHERS TO STRIKE.

          6              TO THE CONTRARY, ONE OF THE AGENCIES THAT IS

          7       PARTICULARLY EXPERIENCED IN DEALING WITH ISSUES OF

          8       PUBLIC EMPLOYMENT, AND THAT IS THE PUBLIC

          9       EMPLOYMENT RELATIONS COMMISSION, IN THE SPOKANE

         10       CASE THAT HAS BEEN MENTIONED TO THE COURT, STATED

         11       THAT THE STRIKE WAS NOT A PROTECTED ACTIVITY BY

         12       TEACHERS UNDER THE PROVISIONS OF THE STATUTE, AND

         13       SPECIFICALLY STATED THE RIGHT TO STRIKE IS NOT

         14       GRANTED NOR IS IT PROHIBITED BY ANY STATUTE

         15       AFFECTING CERTIFICATED EMPLOYEES.

         16              THEREFORE, WE MUST RESORT TO THE COMMON LAW.

         17       AND THE COMMON LAW SAYS THAT STRIKES BY PUBLIC

         18       EMPLOYEES ARE ILLEGAL.

         19              UNDER OUR STATE CONSTITUTION, ARTICLE IX,

         20       SECTION 1, IT IS CLEAR THAT THE STATE HAS INDICATED

         21       AND SAID EXPRESSLY THAT THE PARAMOUNT DUTY OF THIS

         22       STATE IS TO PROVIDE A PUBLIC EDUCATION.  THERE IS

         23       STATUTORY AUTHORITY IMPLEMENTING THAT PARAMOUNT

         24       INTEREST OF THE STATE, AND THAT IS THE MANDATORY

         25       EDUCATION PROVISIONS THAT WE HAVE FOR ALL CHILDREN.

                                                                    11


          1              AS I HAVE INDICATED, OUR SUPREME COURT, IN

          2       DECISIONS RANGING FROM 1958 FORWARD HAS AFFIRMED

          3       HAS REITERATED AND HAS EXPRESSLY STATED THE

          4       FUNDAMENTAL PRECEPT THAT THERE SHALL BE NO PUBLIC

          5       EMPLOYEE STRIKES, AND THERE HAS BEEN NO LEGISLATIVE

          6       ACTION BY THE LEGISLATURE TO OVERRULE THIS COMMON

          7       LAW.

          8              IT IS NOT SOMETHING BY NECESSARY IMPLICATION

          9       BECAUSE THE LEGISLATURE CLEARLY KNEW WHAT THE

         10       COURT'S RULINGS WERE.  AND IF THE LEGISLATURE IN

         11       ITS WISDOM WOULD DECIDE TO ALTER THE COMMON LAW

         12       PRINCIPLES, IT SHOULD SO ACT.

         13              THAT IS A BASIC PRECEPT OF STATUTORY AND

         14       CONSTITUTIONAL INTERPRETATION WHEN WE RELATE TO

         15       COMMON LAW POLICIES ISSUES.  THE REASONS FOR THAT

         16       ARE SOUND, AND I THINK ARE SIMPLY AND ELOQUENTLY

         17       SET FORTH IN TWO OF THE CASES THAT HAVE BEEN CITED

         18       TO THE COURT.

         19              THE FIRST IS THE WESTERLY OPINION IN WHICH

         20       THAT APPELLATE COURT SAID:  "THE STATE HAS A

         21       COMPELLING INTEREST THAT ONE OF ITS MOST PRECIOUS

         22       ASSETS, ITS YOUTH, HAVE THE OPPORTUNITY TO DRINK AT

         23       THE FONT OF KNOWLEDGE SO THEY MAY BE NURTURED AND

         24       DEVELOP INTO RESPONSIBLE CITIZENS TOMORROW.  NO ONE

         25       HAS THE RIGHT TO TURN OFF THE FOUNTAIN'S SPIGOT AND

                                                                    12


          1       KEEP IT IN A CLOSED POSITION.

          2              LIKEWISE, THE EQUAL PROTECTION AFFORDED BY

          3       THE 14TH AMENDMENT DOES NOT GUARANTEE PERFECT

          4       EQUALITY.  THERE IS A DIFFERENCE BETWEEN A PRIVATE

          5       EMPLOYEE AND A PUBLIC EMPLOYEE, SUCH AS A TEACHER

          6       WHO PLAYS SUCH AN IMPORTANT PART IN ENABLING THE

          7       STATE TO DISCHARGE ITS CONSTITUTIONAL RESPONSI-

          8       BILITY.  THE NEED OF PREVENTING GOVERNMENTAL

          9       PARALYSIS JUSTIFIES THE NO STRIKE DISTINCTION WE

         10       HAVE DRAWN BETWEEN THE PUBLIC EMPLOYEE AND HIS

         11       COUNTERPART WHO WORKS FOR THE PRIVATE SECTOR WITHIN

         12       OUR LABOR."

         13              THE ANCHORAGE CASE -- AND BY THE WAY, THE

         14       ANCHORAGE CASE CITED PORT OF SEATTLE VS. THE

         15       INTERNATIONAL LONGSHOREMEN'S UNION -- STATES AS

         16       FOLLOWS:  AGAINST THE BACKGROUND OF THE COMMON LAW

         17       PROHIBITION OF PUBLIC STRIKES, WE CANNOT SAY THAT

         18       THE ABSENCE OF LEGISLATIVE ACTION IMPLIES

         19       PERMISSION TO STRIKE.  RATHER, IT IS MORE

         20       REASONABLE TO ASSUME THAT THE LEGISLATURE INTENDED

         21       BY ITS SILENCE THAT THE GENERALLY-HELD RULE WOULD

         22       BE FOLLOWED.  HAD IT WANTED TO ALLOW TEACHERS TO

         23       HAVE THE LEGAL ABILITY TO STRIKE, IT COULD HAVE

         24       EXPLICITLY MADE THE DEFINITION SECTION OF THE

         25       RELEVANT STATUTE INAPPLICABLE.  AND AS THAT COURT

                                                                    13


          1       NOTED, NO COURT HAS HELD THAT THE COMMON LAW

          2       PERMITS PUBLIC EMPLOYEES TO LEGALLY STRIKE IN THE

          3       ABSENCE OF EXPLICIT STATUTORY CONSENT.

          4              IT IS THIS COURT'S DETERMINATION, AFTER

          5       REVIEWING THE SUPREME COURT PRECEDENTS OF THIS

          6       STATE AS WELL AS THE LAWS OF THIS STATE, THAT

          7       TEACHERS DO NOT HAVE THE RIGHT TO STRIKE, AND WHAT

          8       IS GOING ON IS AN ILLEGAL STRIKE AT THIS TIME.

          9              THE RECORD BEFORE THIS COURT, INCLUDING ALL

         10       THE DECLARATIONS THAT HAVE BEEN SUBMITTED, INDICATE

         11       THAT THE DISTRICT HAS ESTABLISHED BY SUBSTANTIAL

         12       EVIDENCE THE INVASION OF A CLEAR, LEGAL AND

         13       EQUITABLE RIGHT, THE DAMAGE AND HARM THAT IS

         14       REQUIRED UNDER LAW IN THIS RESPECT.

         15              THE STRIKE HAS DISRUPTED THE LIVES AND THE

         16       EDUCATIONAL CIRCUMSTANCES OF A NUMBER OF CHILDREN

         17       AND PARENTS.  THERE ARE PARENTS WHO SPOKE ABOUT THE

         18       NECESSITY AT THIS POINT TO PAY AN ADDITIONAL $600

         19       TO $800 PER MONTH IN DAYCARE COSTS, WHICH IS

         20       CAUSING THEM ECONOMIC HARDSHIP.

         21              AND THERE ARE PARENTS BEING REQUIRED TO

         22       LEAVE THEIR CHILDREN AT HOME BECAUSE THEY HAVE NO

         23       OTHER ALTERNATIVE.  THERE ARE PARENTS WHO ARE BEING

         24       REQUIRED TO TAKE THEIR CHILDREN TO WORK AND HOPING

         25       FOR THE GOOD SUFFERANCE OF THEIR EMPLOYERS.  THERE

                                                                    14


          1       IN PARTICULAR WAS ONE MOTHER WHO SPOKE ABOUT THE

          2       FACT THAT SHE HAD JUST MOVED TO THE ISSAQUAH AREA

          3       TO FIND EMPLOYMENT BECAUSE THINGS ARE SO DEPRESSED

          4       IN SPOKANE, ONLY TO HAVE TO SEND HER 9-YEAR-OLD

          5       CHILD BACK TO LIVE WITH HER PARENTS IN SPOKANE

          6       BECAUSE THE CHILD COULDN'T GO TO SCHOOL, AND SHE

          7       HAD NO ALTERNATIVES AVAILABLE TO HER.

          8              THE ACADEMIC IMPACT HAS ALSO BEEN

          9       ESTABLISHED, AND IN PARTICULAR WITH REGARD TO THE

         10       TESTS THAT NEED TO BE ADMINISTERED ON OCTOBER 10TH,

         11       2002, AND THE SPECIAL NEEDS OF THOSE SPECIAL NEEDS

         12       STUDENTS.

         13              I HAVE NOT FOCUSED STRONGLY OR DIRECTLY ON

         14       WHAT THE DISTRICT HAS TALKED ABOUT, ITS ECONOMIC

         15       IMPACT TO THEM, BECAUSE I TRULY AND HONESTLY

         16       BELIEVE THAT THE ISSUE IS NOT THE ECONOMIC IMPACT

         17       ON THE DISTRICT.  THE ISSUE IS THE RIGHT OF THE

         18       CHILDREN OF THIS DISTRICT TO BE EDUCATED BY THEIR

         19       PUBLIC EMPLOYEE TEACHERS AND TO HAVE THE PROCESS

         20       CONTINUE AS IT SHOULD.

         21              I AM GOING TO GRANT THE TEMPORARY

         22       RESTRAINING ORDER REQUIRING THE TEACHERS TO RETURN

         23       TO STATUS QUO PENDENTE LITE.

         24              I THINK IT IS IMPORTANT FOR THE COURT TO

         25       MAKE THIS STATEMENT.  THE COURT IS NOT A PUBLIC

                                                                    15


          1       POLICY MAKER.  THE COURT'S FUNCTION IS TO ENFORCE

          2       THE LAW OF THE STATE OF WASHINGTON.  NUMEROUS

          3       COURTS HAVE RECOGNIZED THAT SOME OF THE SOCIAL

          4       POLICY AND PUBLIC POLICY ISSUES THAT ARE

          5       LEGITIMATELY BEING RAISED, SUCH AS THE LIMITATIONS

          6       ON THE STATE FUNDING OF APPROPRIATE EDUCATION FOR

          7       ALL SCHOOL DISTRICTS, MUST BE MADE BY THOSE WHO

          8       CONTROL THE PUBLIC FIST, AND THOSE INDIVIDUALS ARE

          9       THE LEGISLATIVE BODY NOT THE COURT.

         10              I MUST ENFORCE THE LAW.  AND THE LAW, IN MY

         11       ASSESSMENT BASED UPON AN EXTENSIVE SEARCH OF

         12       WASHINGTON LAW, IS CLEAR.  PUBLIC EMPLOYEES MAY NOT

         13       STRIKE.

         14              THERE HAS BEEN A REQUEST, NOT DIRECTLY

         15       ADDRESSED, BUT THERE HAS BEEN A REQUEST IN THE

         16       TEMPORARY RESTRAINING ORDER THAT THE COURT SET OUT

         17       A MONETARY FINE FOR EACH DAY THAT THE STRIKE

         18       CONTINUES CONTRARY TO THIS COURT ORDER.

         19              DO YOU WISH TO ADDRESS THAT NOW?

         20              MR. HIRST:  YOUR HONOR, IN OUR PROPOSED

         21       ORDER THAT WE SUBMITTED TO YOU, THERE ARE BLANKS.

         22       FOR INDIVIDUAL MEMBERS OF THE ASSOCIATION, WE

         23       PROPOSE $250 PER DAY.  FOR THE ASSOCIATION

         24       PRESIDENT AND THE ASSOCIATION, $500 PER DAY.

         25              THE COURT:  MS. O'TOOLE?

                                                                    16


          1              MS. O'TOOLE:  YOUR HONOR, I WOULD ASSERT TO

          2       YOU THAT UNDER R.C.W. 7.40.150 THAT THE COURT NEEDS

          3       TO WAIT TO SEE WHETHER THE COURT'S ORDER TO RETURN

          4       TO WORK IS DISOBEYED BEFORE THE COURT CAN SET THE

          5       PENALTY FOR SUCH DISOBEDIENCE.  AND, THEREFORE, I

          6       BELIEVE THAT THE FINES PROPOSED BY THE DISTRICT

          7       WOULD BE INAPPROPRIATE FOR THE COURT TO ISSUE AT

          8       THIS TIME.

          9              ADDITIONALLY, YOUR HONOR, THOSE FINES FOR

         10       THE SCHOOL BOARD ARE EXCEEDINGLY HIGH.  THEY HAVE

         11       BEEN ON STRIKE; THEY DON'T HAVE A LOT OF MONEY.

         12       THEY ARE NOT PAID VERY MUCH TO START WITH, AND THIS

         13       MONTH THEY ARE GOING TO BE PAID LESS, AND THOSE

         14       FINES ARE EXORBITANT AND UNFAIR.

         15              THE COURT:  ANY RESPONSE, COUNSEL?

         16              MR. HIRST:  MY ONLY RESPONSE, YOUR HONOR, IS

         17       THAT THE REASON WE ARE PROPOSING THE SANCTION IS SO

         18       THAT PEOPLE WILL KNOW -- BECAUSE FROM WHAT WE SEE

         19       IN THE MEDIA, THERE ARE SOME PEOPLE SAYING THEY

         20       WILL IGNORE THE COURT ORDER.  AND WE HOPE THEY

         21       WON'T, BUT JUST SO THEY HAVE NOTICE OF WHAT WE ARE

         22       THINKING MIGHT HAPPEN --

         23              THE COURT:  I THINK THEN IT IS IMPORTANT FOR

         24       ME TO RELATE THE FOLLOWING:  WHEN THE COURT DOES

         25       ISSUE A TEMPORARY RESTRAINING ORDER, IT DOES SO

                                                                    17


          1       WITH THE UNDERSTANDING THAT IT WILL BE OBEYED.

          2              UNDER R.C.W. 7.21 WHICH IS THE GENERAL CIVIL

          3       CONTEMPT STATUTE, THE COURT HAS THE AUTHORITY TO

          4       IMPOSE A NUMBER OF COERCIVE REMEDIES.  THOSE

          5       COERCIVE REMEDIES INCLUDE IMPOSITION OF JAIL TIME,

          6       WHICH I THINK ALL OF US HERE AGREE WOULD BE THE

          7       LAST RESORT.

          8              WE SIMPLY WANT THIS TO BE A SITUATION WHERE

          9       PEOPLE UNDERSTAND WHAT THE COURT HAS ORDERED AND

         10       PEOPLE COMPLY.  YOU CAN DISAGREE WITH MY RULING,

         11       BUT THERE ARE APPELLATE AVENUES AVAILABLE, AND THAT

         12       IS THE RIGHT WAY TO DO THINGS.

         13              THE COURT HAS THE REMEDY OF IMPOSING JAIL

         14       TIME, OR THE COURT HAS THE OPTION OF IMPOSING UP TO

         15       $2,000 PER DAY FOR EACH CONTEMPT VIOLATION.

         16              I WILL NOT AT THIS TIME IMPOSE A SPECIFIED

         17       MONETARY SANCTION OTHER THAN TO ADVISE EVERYONE

         18       THAT THAT IS WITHIN THE SCOPE OF THE COURT'S

         19       AUTHORITY, TO IMPOSE SUCH A SANCTION AND FINE.

         20              AND SO THAT MUST BE CONSIDERED IN TERMS OF

         21       ADDRESSING ANY BEHAVIOR THAT GOES FORWARD, AND I

         22       WILL BE IMMEDIATELY AVAILABLE TO SET A NECESSARY

         23       HEARING.

         24              WHAT IS IMPORTANT IS THAT THE SCHOOL

         25       EDUCATION ASSOCIATION WILL HAVE THE RESPONSIBILITY

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          1       TO INSURE THAT EACH AND EVERY CERTIFICATED EMPLOYEE

          2       IS GIVEN NOTICE OF THIS COURT'S ORDER.

          3              MR. HIRST:  YOUR HONOR, I HAVE AN

          4       ALTERNATIVE FORM OF ORDER IN ANTICIPATION YOU MIGHT

          5       DECLINE TO SET SANCTIONS IN ADVANCE.  IT DOES NOT

          6       SET THEM, BUT INSTEAD OF THAT IT SAYS:  FAILURE TO

          7       COMPLY WITH THIS ORDER MAY SUBJECT VIOLATOR TO

          8       CONTEMPT OF COURT SANCTIONS.

          9              THE COURT:  THAT IS CONSISTENT.

         10              MR. HIRST:  I HAVE A COPY FOR COUNSEL.  IT

         11       IS OTHERWISE CONSISTENT WITH THE ONE THAT WE

         12       PRESENTED TO YOU IN OUR MOTION.  AND I PROPOSE THAT

         13       WE ENTER THAT ORDER.

         14              THE COURT:  IF YOU COULD COME FORWARD WITH

         15       THE FORM OF ORDER, PLEASE.

         16              MS. O'TOOLE:  YOUR HONOR, THIS IS DIRECTED

         17       TO DEFENDANTS, AND EACH OF THEM, THAT ALL PERSONS

         18       REPRESENTED BY THE ASSOCIATION BE RESTRAINED AND

         19       ENJOINED --

         20              YOUR HONOR, THERE IS A GROUP OF PEOPLE THAT

         21       ARE REPRESENTED BY THE ASSOCIATION THAT ARE NOT

         22       MEMBERS OF THE ASSOCIATION, THAT CHOOSE NOT TO BE

         23       MEMBERS, THAT DO NOT ATTEND MEETINGS OF THE

         24       ASSOCIATION, THAT I DO NOT REPRESENT BECAUSE I'M

         25       EMPLOYED BY THE ASSOCIATION TO REPRESENT ITS

                                                                    19


          1       MEMBERS.  AND, THEREFORE, I WOULD LIKE THE LANGUAGE

          2       OF THIS TO BE CHANGED, ESPECIALLY IN VIEW OF YOUR

          3       ORDER THAT THE ASSOCIATION IS RESPONSIBLE FOR

          4       NOTIFYING EVERYONE.

          5              MR. HIRST:  YOUR HONOR, AS WE POINTED OUT IN

          6       OUR REPLY BRIEF R.C.W. 41.59.060 SAYS THE

          7       ASSOCIATION ACTS ON BEHALF OF THE FOLKS WHETHER

          8       THEY ARE MEMBERS OR NOT.

          9              THE COURT:  THAT'S CORRECT.  THAT LANGUAGE

         10       WILL STAY IN.

         11              MS. O'TOOLE:  YOUR HONOR, PARAGRAPH 2 OF THE

         12       ORDER SAYS THE ASSOCIATION AND ITS MEMBERS SHALL BE

         13       DEEMED TO HAVE NOTICE OF THIS ORDER UPON SERVICE OF

         14       A COPY OF THE ORDER UPON THE DEFENDANT'S COUNSEL.

         15       IT WILL TAKE SOMETIME FOR US TO GET THIS NOTICE OUT

         16       TO THE INDIVIDUALS WHO THE ASSOCIATION REPRESENTS.

         17              AND, THEREFORE, WE DON'T HAVE ANY PROBLEM

         18       GIVING GENERAL NOTICE TO AS MANY PEOPLE AS WE CAN

         19       WITHIN 24 HOURS, YOUR HONOR.  BUT I WOULD HATE FOR

         20       THE ASSOCIATION TO BE HELD TO GIVING INDIVIDUAL

         21       NOTICE TO EACH AND EVERY PERSON IT REPRESENTS

         22       BECAUSE THAT IS IMPOSSIBLE TO DO IN ANY SITUATION.

         23              AND I DON'T KNOW WHETHER -- I REALLY DON'T

         24       WANT THE INDIVIDUALS TO BE DEEMED TO HAVE NOTICE OF

         25       THIS ORDER MERELY BECAUSE IT IS GIVEN TO ME, OR

                                                                    20


          1       MERELY BECAUSE THE ASSOCIATION ANNOUNCES IT IN OUR

          2       PHONE TREES AND THE OTHER WAYS WE HAVE OF

          3       COMMUNICATING WITH THE MEMBERS.

          4              MR. HIRST:  THE PROPOSED ORDER SIMPLY SAYS

          5       THAT THE ASSOCIATION AND ITS MEMBERS WILL HAVE

          6       NOTICE OF THE ORDER.  THERE IS LOTS OF COVERAGE OF

          7       THIS MATTER.  IT IS NOT VERY HARD TO KNOW WHAT IS

          8       GOING ON HERE AT THIS TIME, YOUR HONOR.  AND THE

          9       ONLY THING ELSE THAT IT DIRECTS THE ASSOCIATION

         10       PRESIDENT TO DO IS TO CALL A MEMBERSHIP MEETING

         11       WITHIN 24 HOURS AND PROVIDE A COPY OF THE ORDER TO

         12       EACH PERSON.

         13              AND I THINK THAT IS A REASONABLE WAY TO

         14       PROVIDE ACTUAL NOTICE OF THIS ORDER.

         15              THE COURT:  MS. O'TOOLE, YOUR INABILITY TO

         16       GIVE SPECIFIC NOTICE WOULD BE A FACTOR I WOULD

         17       CONSIDER IF A PERSON CAME BEFORE ME FOR CONTEMPT.

         18       YOU ARE ORDERED TO DO YOUR BEST EFFORTS TO DO SO.

         19              I ASSUME THERE WILL BE EXTENSIVE COVERAGE OF

         20       THIS IN THE MEDIA AS WELL.  AND THE CASE LAW SAYS

         21       ACTUAL NOTICE IS ALSO ENOUGH IF ONE IS BEING

         22       BROUGHT BACK IN FOR CONTEMPT.

         23              AND SO WHILE IT IS ALWAYS PREFERABLE TO GIVE

         24       NOTICE IN A WRITTEN AND ORGANIZED FASHION, IF A

         25       PERSON HAS ACTUAL NOTICE OF A TEMPORARY RESTRAINING

                                                                    21


          1       ORDER, THEY ARE DEEMED TO BE COVERED BY IT.

          2              MS. O'TOOLE:  NO OTHER OBJECTION TO THE

          3       LANGUAGE OF THIS, YOUR HONOR.

          4              MR. HIRST:  IT HAS A BLANK FOR -- I SHOULD

          5       MENTION SOMETHING ABOUT PARAGRAPH 3, YOUR HONOR.

          6       THE ORDER SAYS THAT THE TEACHERS ARE DUE BACK TO

          7       WORK, OR THE MEMBERS OF THE ASSOCIATION, OR THOSE

          8       REPRESENTED BY IT ARE DUE BACK TO WORK AND

          9       REQUESTED IN WRITTEN COMMUNICATION FROM THE

         10       DISTRICT.

         11              THAT HAS NOW BEEN HANDED TO KATHY LINDERMAN

         12       THAT THEY ARE EXPECTED BACK TO WORK TOMORROW.

         13              THE COURT:  OKAY.

         14              MS. O'TOOLE:  YOUR HONOR, THAT DOESN'T ALLOW

         15       US TO HOLD A MEMBERSHIP OR GIVE SUFFICIENT NOTICE

         16       TO PEOPLE AND FOR ME TO EXPLAIN WHAT THIS MEANS TO

         17       THE INDIVIDUALS.  AND, YOUR HONOR, AS I POINTED OUT

         18       BEFORE, IN MOST OF THE SCHOOL DISTRICT CASES, WHERE

         19       SUPERIOR COURT JUDGES HAVE ISSUED AN INJUNCTION,

         20       THE EFFECT OF THE INJUNCTION HAS BEEN HELD OFF FOR

         21       TWO OR THREE DAYS, OR A WEEK.  AND SO WE WOULD ASK

         22       YOU NOT TO REQUIRE THE EMPLOYEES TO REPORT BACK TO

         23       WORK UNTIL LATER THIS WEEK.

         24              THE COURT:  YOU KNOW, THE LENGTHINESS OF

         25       THIS HEARING HAS, INDEED, IMPEDED SOME ABILITY IN

                                                                    22


          1       THAT REGARD.  AND SO I WILL SAY THEY MUST REPORT BY

          2       WEDNESDAY.

          3              MR. HIRST:  THANK YOU, YOUR HONOR.

          4              THE COURT:  I HAVE SIGNED THE ORDER.

          5                        -     -     -

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