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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Judge’s Case Poses Rare Legal Points Mcdonald Wants Government To Pay For Defense

U.S. District Judge Alan McDonald wants taxpayers to pay to defend him against charges by his former court reporter that he abused his office and altered official court transcripts.

McDonald, a senior federal judge and a millionaire Yakima businessman, wants the U.S. Department of Justice to represent him in the high-profile case.

The judge is worth from $1.9 million to $5 million and owns real estate, ranches, orchards and other businesses, according to his most recent annual financial disclosure statement.

But McDonald argues he’s entitled to a government lawyer because he is being sued for “actions taken by the court and its clerk in their official capacities,” he said in a March 7 letter to Jeffrey Barr, general counsel in the federal courts’ administrative offices in Washington, D.C.

Barr will decide whether to refer McDonald’s request to the Justice Department, which may have to choose between defending McDonald and investigating his conduct as a federal judge.

The unusual lawsuit against a sitting judge poses potential conflicts of interest - and not only for the Justice Department.

It also means awkward choices for the U.S. attorney’s office in Spokane and for the four other federal judges and two magistrates in the federal court’s Eastern District, which covers all of Washington state east of the Cascades.

“In my 14 years here, this is the only time I recall this happening,” said Jim Shively, assistant U.S. attorney in Spokane.

McDonald asked for a government lawyer shortly after his former court reporter, Kathryn Blankenship of Yakima, filed a lawsuit on Feb. 28.

Blankenship, who had worked for McDonald for nearly a decade, says he retaliated against her after she testified before McDonald’s colleague, U.S. District Judge Justin Quackenbush, in the 1994 wrongful termination case of Christine Mearns, another Yakima federal court employee.

McDonald forced court employees to work on his private businesses on court time, altered official court transcripts and forced her to provide false information in a government audit of court expenses, Blankenship charged.

McDonald also created a hostile work environment by passing “racist” and “sexual” notes to his court clerk about people appearing in his courtroom, Blankenship alleged.

When serious allegations are made against a high-level federal official, headquarters officials from the Justice Department and the FBI call the shots on the confidential investigation, said Burdena Pasenelli, regional FBI supervisor in Seattle.

“When charges are filed against a federal judge, we are definitely interested,” Pasenelli said.

That complicates McDonald’s request for representation, Shively said.

In most cases in which federal officials are sued, they are entitled to government representation, Shively said.

“The test is: Was the employee acting within the scope of his or her employment? But if it’s a gray area, Justice may say no,” Shively said.

McDonald should not get a government lawyer, said Len Schroeter, a Seattle attorney and founder of Trial Lawyers for Public Justice.

“It turns on whether it’s within his official duties. I’d argue it’s not. It’s either illegal or improper to ask a court employee to take care of his private business or alter court records,” Schroeter said.

The legal doctrine is whether the conduct is “ultra vires,” or beyond the scope of official powers, Schroeter said.

He used an analogy involving another high government official.

“Should ex-Gov. Bill Clinton be represented by the attorney general of Arkansas for allegedly assaulting Paula Jones?” Schroeter said. “It’s clearly ultra vires, and he shouldn’t get a government lawyer.”

McDonald and James Larsen, the federal court clerk in Spokane who also is named in the suit, are blaming Blankenship’s litigation on sour grapes after she was terminated. They say she was fired for poor work performance, not retaliation for her testimony before Quackenbush.

McDonald did not reply Monday to The Spokesman-Review’s request for comment on his decision to seek representation from the government.

Larsen also is seeking a government lawyer for the same reasons.

Blankenship’s attorneys have filed a motion asking for all federal judges in the Eastern District to be disqualified due to conflicts of interest.

The attorneys have asked that an outside judge be appointed to hear the case. That motion will be heard on May 5.

Her lawsuit was brought by two Seattle law firms.

Blankenship was fired in 1995 after she refused a transfer from Yakima to Spokane.

McDonald was nominated for a federal judgeship by President Reagan. He was confirmed by the Senate in 1985.

Last December, he went on senior status, allowing him to retain some cases while still drawing his full $133,600-a-year salary.

Among the cases he has decided to keep are the Spokane Gypsy civil rights case and the Hanford downwinder litigation, the largest toxic tort case in Eastern Washington.

, DataTimes