I write to set out the facts in the Parks Bay case, the one in which a
judge made an oral ruling regarding sanctions against the County. This
matter was widely reported 11 years ago as it unfolded. Today, there is
widespread speculation and misunderstanding about its significance.
I have always been comfortable providing the facts on the motion for
sanctions because they were explained in writing and documented in a
Settlement Agreement. Briefly, the issue of sanctions was raised, the
court made a preliminary ruling, that ruling was disputed in a motion for
reconsideration, and then settled. An affidavit in support of the motion
for reconsideration was provided by Richard Settle, and is available at
http://www.rgaylord.org/parksbaySettleAff.PDF The Settlement Agreement,
signed and initialed by all attorneys is available at
No Order mentions sanctions. No findings were made. The only document
signed by the judge after the oral ruling is the Judgment, which is
available at http://www.rgaylord.org/ParksBayStipulationandJudgment.pdf
This omission is significant because a written order controls over an oral
ruling. A judge’s oral decision is no more than a verbal expression of his
informal opinion at that time. It is necessarily subject to further study
and consideration, and may be altered, modified, or completely abandoned.
It has no final or binding effect, unless formally incorporated into the
findings, conclusions, and judgment.
What is the public to do? First, consider that if a court desires to
impose sanctions, it is incumbent on the court to make findings in an
order. This rule exists to guard against the type of misunderstandings
that can arise years later.
Second, consider that an informal ruling of sanctions against a county
pursuant to a civil rule is not a finding of “professional
misconduct” on the part of the attorney. A mistake under a court
rule is a legal error. This is said to categorize the type of error, and
not to make light of it. I regret that the judge said there was an error,
and it was promptly compromised and settled at the direction of the
County’s Risk Management Committee.
If you have additional questions or believe additional documents would
help your understanding, please call me at 360-376-3076.