Prison Phone Justice

HONORABLE BETH ANDRUS

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IN THE SUPERIOR COURT OF WASHINGTON
FOR KING COUNTY

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SANDY JUDD, TARA HERlVEL and
COLUMBIA LEGAL SERVICES, for
themselves, and on behalf of all similarly
situated persons,

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Case No.: 00-2-17565-5 SEA
AT&T'S APRlL 2, 2013 LETTER TO
THE COURT

Plaintiff,
v.
AMERICANTELEPHONEAND
TELEGRAPH COMPANY; GTE
NORTHWEST INC.; CENTURYTEL
TELEPHONE UTILITIES, INC;
NORTHWEST TELECOMMUNICATIONS,
INC., d/b/a PTI COMMUNICATIONS, INC.;
U.S. WEST COMMUNICATIONS, INC.; TNETIX, INC.,

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Defendants.
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Attached for the court file is a copy of the April 2, 2013 letter from AT&T to the Court.
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AT&T'S APRIL 2, 2013 LETTER TO THE COURT - 1
01000-006 \ 1612900J docx
STOKES LAWRENCE, P.S.
1420 FIFTH AVENUE, SUITE 3000
SEATTLE. WASHINGTON 98101
(206) 626-6000

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DATED this 2nd day of April, 2013.
STOKES LAWRENCE, P.S.

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BY: ~

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Bradford J.
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1420 Fifth Avenue, Suite 3000
Seattle, WA 98101
Telephone: (206) 626-6000
Fax: (206) 464-1496

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Attorneys for Defendant AT&T Corp.
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AT&T'S APRIL 2, 2013 LETTER TO THE COURT - 2
01000-006 \ 1612900_2.docx

STOKES LAWRENCE, P.S.
1420 FIFTH AVENUE. SUITE 3000
SEATTLE. WASHINGTON 98101
(206) 626-6000

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DECLARATION OF SERVICE
I do hereby certify that on this 2nd day of April, 2013, I caused to be served a true and

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correct copy of the foregoing AT&T's April 2, 2013 Letter to the Court by the method indicated

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below and addressed to the following:

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Via Email
Chris Youtz
Richard E. Spoonemore
Sirianni Youtz Meier & Spoonemore
999 Third Avenue, Suite 3650
Seattle, Washington 98104
chris@sylaw.com
rspoonemore@sylaw.com

Via Email
Arthur A. Butler
Ater Wynne LLP
601 Union Street, Suite 1501
Seattle, Washington 98101-2341
aab@aterwynne.com

Via Email
Stephanie A. Joyce
Arent Fox LLP
1050 Connecticut Avenue NW
Washington, D.C. 20036
joyce.stephanie@arentfox.com

Via Email
Donald H Mullins
Duncan Turner
Badgley-Mullins Law Group PLLC
701 Fifth Avenue, Suite 4750
Seattle, W A 98104
donmullins@badgleymullins.com
duncanturner@badgleymullins.com

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I declare under penalty of perjury under the laws ofthe State of Washington that the

foregoing is true and correct.
EXECUTED at Seattle, King County, Washington, this 2nd day of April, 2013.

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Bradford J. Axel

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AT&T'S APRIL 2,2013 LETTER TO THE COURT - 3
01000-006 \ 1612900_2.docx

STOKES LAWRENCE, P.S.
1420 FIFTH AVENUE. SUITE 3000
SEATTLE. WASHINGTON 98101
(206) 626-6000

ISIq

STOKES

LAWRENCE

Bradford J. Axel
(206) 892-2102

bradford.axel@stokeslaw.com

April 2, 2013 .

Via Messenger
Honorable Beth M. Andrus
King County Superior Court
516 Third Avenue, Court Room W-719
Seattle, Washington 98104
Re:

Judd v. AT&T, et aI., Case No. 00-2-17565-5 SEA

Dear Judge Andrus:
Enclosed is a copy of AT&T's Motion/or Clarification o/the Court's Order o/March
21,2013 or, in the Alternative,/or Modification o/the Order to Permit Approval o/a Settlement
by the King County Superior Court, which AT&T filed yesterday with the Court of Appeals.
Sincerely,
STOKES LAWRENCE, P.S.

Bradford J. Axel
cc:

All Counsel of Record (via email)

01000-006 \ 715355.docx

Slokes Lawrence, Ie.\'.
Slakes Lawrence

11420 Fifth Avenue, Suite 3000 1Seattle,

Sloke, Lawrmre Velikanje Moore & Shore 1120 N. Naches Avenue

Washington 98101-2393
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1206.626.6000 reception

206.464.1496 facsimile

Yakima, Washington 98901-2757 1509.853.3000 reception 509.895.0060 facsimile

www.stokeslaw.com

No. 42966-7

IN THE COURT OF APPEALS
STATE OF WASHINGTON
DIVISION II

AT&T COMMUNICATIONS OF THE PACIFIC NORTHWEST, INC.,
Appellant,
v.
WASHINGTON UTILITIES AND TRANSPORTATION
COMMISSION,
Respondent,
and
SANDY JUDD and TARAHERIVEL,
Intervenors/Respondents,
and
T -NETIX, INC.,
Interested Party.

APPELLANT'S MOTION FOR CLARIFICATION OF THE COURT'S
ORDER OF MARCH 21, 2013 OR, IN THE ALTERNATIVE, FOR
MODIFICATION OF THE ORDER TO PERMIT APPROVAL OF A
SETTLEMENT BY THE KING COUNTY SUPERIOR COURT
David W. Carpenter (Pro Hac
Vice)
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
(312) 853-7000 (tel.)
Joseph R. Guena (Pro Hac
Vice)
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
(202) 736-8000 (tel.)

Bradford J. Axel (WSBA #29269)
Kelly Twiss Noonan( WSBS #19096)
STOKES LAWRENCE, P.S.
800 Fifth Avenue, Suite 4000
Seattle, Washington 98104-3099
(206) 626-6000 (tel.)
Attorneys for AT&T
Communications of the Pacific
Northwest, Inc.

Appellant AT&T Corp. respectfully moves for a determination
whether the Court's March 21, 2013 Order and RAP 7.2 permit the King
County trial cOUlt to approve a settlement between plaintiffs and AT&T in
the underlying litigation.
In the Court's March 21,2013 Order, it stayed the King County
trial court's February 24,2012 Order that vacated the primary jurisdiction
referral to the WUTC of the second question that had previously been
referred to it. This second referred question was whether the WUTC's
rate disclosure regulations had been violated by whichever entity was the
Operator Service Provider ("OSP").

AT&T's sole objective in this motion is to detennine whether the
King County Superior Court may now proceed to approve a settlement
entered between the plaintiffs and AT&T in the underlying litigation. This
settlement moots the second referred question - which is not now being
litigated. By contrast, the King County Court's approval of the
settlements will have no effect on this Court's review of the only question
raised in AT&T's pending appeal: the lawfulness of the WUTC's
detennination that AT&T was the OSP. That was the first question
referred to the WUTC, and the answer to that question is central to the
determination of the indemnification dispute between AT&T and T-Netix,

which has not been settled and which will require decision by this Court in
all events.
AT&T provided a detailed summary of the background to the King
County trial court's February 24,2012 order and of the subsequent
proceedings in that court in the supplemental brief that it has
simultaneously filed today in response to the Court's separate Order of
March 22,2013. But to summarize the key point in that filing, AT&T's
respect for this Court's jurisdiction is absolute. Prior to February 2012,
AT&T had moved to stay all proceedings in the King County Superior
Court until the appeals from the WUTC's Final Order were concluded.
The King County trial court denied that motion because of its concerns
about the lengthy delays in the underlying litigation, and when the King
County court later suggested the withdrawal of the primary jurisdiction
referral of the second question, AT&T filed a motion seeking that
withdrawal on February 14,2012. AT&T proceeded in good faith.

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not believe that withdrawal of the referral ofthis question was inconsistent
with RAP 7.2. Similarly, while plaintiffs opposed AT&T's motion,
neither plaintiffs nor any other party to the case raised an issue under RAP
7.2, much less argued that RAP 7.2 would bar the King County court from
granting the motion in the absence of this Court's prior permission.

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AT&T's counsel has understood that RAP 7.2 applied only when
trial court action could affect judgments that are currently being reviewed
by appellate courts. Because no party had appealed the Thurston County
court decision that remanded the second question to the WUTC on
procedural grounds, AT&T believed that both the telIDS and purposes of
RAP 7.2 were inapplicable. AT&T also did not believe that RAP 7.2
would restrict a King County trial court from acting in a case when no
decision of that court was being reviewed by this Court. AT&T would not
have proceeded in the way it did if it had recognized that this Court might
later conclude that this violated RAP 7.2.
And now that Commissioner Schmidt has provisionally so ruled
and stayed the February 24, 2012 Order of the King County trial court,
AT&T wants to assure that there are no further violations of this Court's
interpretation of RAP 7.2 and no violation of the Court's stay order.
AT&T files the instant motion because there is now pending before the
King County trial court a motion for preliminary approval of a settlement
between the plaintiffs in the underlying action and AT&T. Although this
motion was filed by plaintiffs - and not AT&T - the motion obviously
affects an agreement to which AT&T is a party, and AT&T wants to be
certain that the King County trial court's decision on this motion does not
violate the Court's Order or its interpretation of RAP 7.2. AT&T believes

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that there are two grounds on which the King County court can be
authorized to proceed .
. First, it is not clear whether the King County court's decision
granting the motion for approval would in fact violate the Court's stay
order, and AT&T moves for clarification whether the Order bars this
approval. Specifically, the Court's March 21, 2013 Order stays only the
February 24,2012 Order of the King County court that vacated the referral
to the WUTC of the question whether the WUTC's rate disclosure rules
had been violated by whichever pmties were the

asps on long distance

intrastate inmate collect calls completed in Washington between June 20,
1996 and December 31; 2000. To be sure, it would be inconsistent with
. the stay if the court were now to litigate that issue.
However, the King County court is not doing so. It previously
determined that the rate disclosure rules were violated, and while AT&T
has substantial claims that this determination was incorrect, those claims
have been compromised in the settlement with plaintiffs. Further, the
parties could have entered into a settlement in the absence of any litigation
of these issues. Therefore, there appears to be grounds for a conclusion
. ':_ ':~$at approval ofthe settlement would not violate the stay order, and if this
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Court agrees, AT&T respectfully requests that the Court enter an order
clarifying that the King County Court may approve the settlement.

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Second, if the Court concludes that the stay order would prohibit
approval of the settlement agreement - or if the Court concludes that RAP
7.2(e) requires its permission before the settlement agreement may be
approved - the Court could, in the alternative, modify the stay order and
grant the King County trial court permission.to rule upon the motion for
preliminary approval of the settlement.
By its terms, RAP 7.2(e) authorizes appellate courts to grant
permission to trial courts to address issues in cases that are also pending
On appeal. This appears to be an appropriate circumstance for the Court to
grant this permission. The only issue that any aggrieved party has
appealed - and the only issue addressed in the opening and reply briefsis whether the WUTC correctly held that AT&T is the OSP on the calls in
question, and courts hold that the only issues that they will decide are
those that were appealed by a party. If the King County trial court now
approves the settlement between plaintiffs and AT&T, the issue of the
identity of the OSP will still be required to be decided and wil1 be in
precisely the same posture, both procedurally and substantively, as it
would have been ifthere were no settlement. Thlis, granting the requested
permission to the King County
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will not present the evil that RAP 7.2

designed to prevent, for this is not a case in which a trial court's

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action will in any way alter an issue that has been properly appealed and
that the appellate court has invested resources in addressing.
To be sure, it is legitimate for the Court to consider the WUTC's
decision on the second referred question in determining whether the
WUTC committed reversible enor in its resolution of the first referred
question. As AT&T has demonstrated in its brief filed today, the decision
on the second referred question (like the decision on the first referred
question on the identify of the OSP) reflects a determination to impose
liability on AT&T and a disregard of settled principles. But the approval
of the settlement will not affect the Court's ability to consider the
WUTC's Order as a whole in connection with its determination whether
the only issue appealed - the OSP issue - was lawfully decided.
A final practical consideration is that the violation of RAP 7.2 that
the Court has found was a result of a good faith belief that the rule did not
apply. No party to the case even argued otherwise in February 2012, and
the parties conducted extensive further proceedings in the King County
Superior Court based on the good faith belief that the refenal of the
second question had been vacated. In addition, they have now entered into
settlements that could have been agreed to even if none of these
proceedings had occurred. Because the law encourages settlements and
because approval of the settlement will not affect the only issue that has

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been appealed and fully briefed in this Court, there are substantial grounds
for granting the King County trial court permission to approve the
settlement if the Court determines that its approval is required.
CONCLUSION
For the foregoing reasons, AT&T respectfully requests that the
Court consider either (1) clarifying that its permission is not required for
the King County trial court to approve the settlement between plaintiffs
and AT&T or (2) granting this permission to the King County trial court.

Dated: April 1, 2013

Respectfully submitted,

-~
David W. Carpenter (Pro Hac
Vice)
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
(312) 853-7000 (tel.)

Bradford J. Axel (WSBA #29269)
Kelly Twiss Noonan( WSBS #19096)
STOKES LAWRENCE, P.S.
800 Fifth Avenue, Suite 4000
Seattle, Washington 98104-3099
(206) 626-6000 (tel.)

Joseph R. Guerra (Pro Hac
Vice)
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
(202) 736-8000 (tel.)

Attorneys for AT&T
Communications of the Pacific
Northwest, Inc.

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CERTIFICATE OF SERVICE
I do hereby certify that on this 1st day of April,

~013,

I caused to

be served a true and correct copy of the foregoing as follows:

Via Email and Us. Mail
Chris Youtz
Richard E. Spoonemore
Sirianni Youtz Meier &
Spoonemore
999 Third Avenue, Suite 3650
Seattle, Washington 98104
chris@sylaw.com
rspoonemore@sylaw.com

Via Email and Us. Mail
Arthur A. Butler
Ater Wynne LLP
601 Union Street, Suite 1501
Seattle, Washington 98101-2341
aab@aterwynne.com
Attorneys for T-Netix, Inc.

Attorneys for Sandy Judd and
Tara Herivel
Via Email and Us. Mail
Gregory J. Trautman
Office ofthe Attorney General
Utilities & Transportation
Division
1400 S. Evergreen Park Drive
SW
PO Box 40128
Olympia, WA 98504-0128
gtrautma@utc.wa.gov
Attorneys for Washington
State Utilities &
Transportation Commission

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Via Email and Us. Mail
Donald H Mullins
Duncan Turner
Badgley-Mullins Law Group PLLC
701-Fifth Avenue, Suite 4750
Seattle, WA 98104
dorunullins@badgleymullins.com
duncanturner@badgleymullins.com
Attorneysfor T-Netix, Inc.

Via Email and Us. Mail
Stephanie A. Joyce
Arent Fox LLP
1050 Connecticut Avenue NW
Washington, D.C. 20036
joyce.stephanie@arentfox.com
Attorneys for T-Netix, Inc.

Via Email and us. Mail
Charles R. Peters
David C. Scott
Brian L. J osias
SCHIFF HARDIN LLP
233 S. Wacker Dr. Suite 6600
Chicago, Illinois 60606
cpeters@schiffuardin.com
dscott@schiffhardin.com
bjosias@schiffhardin.com
Attorneys/or AT&T

Via Email and Us. Mail
Judith S. Roth
Attorney at Law
666 Fifth A venue
New York, NY 10103
jroth@schiffhardin.com

Via Email and us. Mail
Leah Ward Sears
Attorney at Law
One Atlantic Center, Ste 2300
1201 West Peachtree Street NW
Atlanta, GA 30309
Isears@schiffllardin.com

Attorneys for AT&T

Attorneysfor AT&T

Via Email and Us. Mail
David W. Carpenter
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
dcarpenter@sidley.com

Via Email and Us. Mail
Joseph R. Guerra
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
j guerra@sidley.com

A ttorneys for AT&T

Attorneys/or AT&T

I declare under penalty of perjury under the laws of the State of
Washington that the foregoing is true and con·ect.

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EXECUTED at Seattle, King County, Washington, this 1st day of April,
2013 .

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