For immediate release June 2, 2023
Contact: Sarah Spier, Director of External Relations
DOH failed to disclose material facts to get a TRO. Daybreak files a motion to strike DOH’s TRO due to “ethical lapses”
Daybreak Youth Services filed a motion today in Thurston County Superior Court to strike the Court’s order that yesterday granted the Washington Department of Health a TRO against Daybreak Youth Services. The motion out lines ethical and legal violations including a key “ethical lapse.”
“Ethical lapse,” is legalese for “outrageous conduct.” In this case, Assistant Attorney General Jack Bucknell, acting on behalf of the DOH, had a duty to inform the Court of adverse material facts that he was aware of. But Bucknell withheld them from the Court. Bucknell was aware that David H Smith, attorney for Daybreak was going to file a temporary restraining order against the DOH and did so on June 1st, the same day that Bucknell filed for DOH against Daybreak.
Bucknell made both verbal and written promises to Smith that he would inform the Court about Daybreak’s intent to file a TRO against DOH if he filed for TRO against Daybreak. On the morning of May 31st, Bucknell said in an email to Smith, “If the Department proceeds this morning, I will let the Court know about this matter,” referring to Daybreak’s TRO.
But that’s not what happened. Bucknell later tried to justify his failure by saying, “Because the presentation was ex parte, I was unable to provide the Court with any information that was not in the motion we sent you by email on the evening of the 30th…” referring to his motion for a TRO.
It’s not clear why Bucknell was “unable” to provide information that he had a legal obligation to disclose to the Court. Applicable law related to ex parte hearings states, “In ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” (see attached motion)
Bucknell did not have to have an ex parte hearing. Ex parte hearings are generally used when there are no unsettled issues or the parties agree. In this case, dealings between Daybreak and DOH have been contentious.
This raises the question as to whether the reason Bucknell chose an ex parte hearing was to avoid having to disclose adverse facts to the Court. Whatever the reason, Bucknell violated the rules governing ex parte hearings and the rules of professional conduct.
Smith has a hearing before Superior Court Judge Indu Thomas on Monday morning. “The AG’s office on behalf of DOH has repeatedly trampled Daybreak’s due process rights,” said Smith. “I hope the Court will strike DOH’s TRO gained through unethical and unlawful behavior.”
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Note: Daybreak provides an indispensable suite of services that help some of Washington’s most vulnerable youth including:
- Two residential inpatient facilities for substance use disorder (Spokane and Vancouver);
- A Restorative Receiving center, focusing on stabilizing youth that have been or who are at risk of being commercially and sexually exploited;
- An Evaluation & Treatment Center, focusing on mental health crises and suicide;
- Three WISE teams in Spokane (family-focused wrap around intensive services for clients and their families);
- Fully accredited schools in both Spokane & Vancouver.