IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

         IN AND FOR THE COUNTY OF KING





DOUGLAS WYMAN,                          )
                                        )
                                        )
                  Plaintiff,            )
                                        )    No. 791101
                                        )
    -vs-                                )
                                        )
THE WASHINGTON STATE                    )
PATROL and THE STATE                    )
OF WASHINGTON.                          )
                                        )
                 Defendants             )



TRANSCRIPT OF OPINION OF THE. COURT




            February 3, 1976


BEFORE:                HONORABLE: EDWARD E. HENRY, Judge.


APPEARANCES:           CHRISTOPHER E. YOUNG attorney at law,
                       on behalf of Plaintiff.

                       KEVIN RYAN, Attorney at Law,
                       on behalf of Defendants .



  
     THE COURT:  We are concerned here about the discharge 
of the plaintiff, Douglas Wyman.  And as the Court has heard 
the testimony, it is understandable that the officers who 
participated in the removal of Mr. Wyman did what they did.  
I am not condemning them for doing what they did because 
this has been a historical problem since time immemorial, 
since, as counsel points out, the days of Sodom and Gomorrah 
down to the present.  This is not a recent activity.  It has 
been with us for generations, for hundreds of years, and it 
is an activity that the majority of the public does not 
approve.  So I am not condemning them for it. 

     But the question now is whether or not Mr. Wyman, the 
person here involved, should be removed, under the evidence.  
I have been rather impressed hy the evidence that he 
presents, which is not contradicted, that when he was in the 
Army as a young man, in Army Intelligence, and served for 
sometime, when he reached Seattle after having served time 
in Southeast Asia and Okinawa, he came to the conclusion 
that he Was a homosexual, and he confided in his commanding 
officer to this effect.  And the reason why I was impressed 
with this is because one of the problems in this area, 
according to the experience of mankind and this is a 
problem, frankly, that I will have to give my own personal 
feelings on, having been a young man in the Merchant Marine 
many, many years ago.  It was a problem that bothered many 
of us, that these persons were universally subject to 
blackmail because, no matter how good their work was for 
their employer, they could be robbed and blackmailed by 
saying, "If you don't give me some money, if you don't do 
this, I'll tell your employer and you will be fired."

     Now, this is an historical cultural problem that he was 
concerned with, and I thought, because he left the service 
as he did, that he did so not so much because he was a 
homosexual but because he was honest, he was the victim of 
his own honesty.  He told his commanding officer. 
"Because I am a homosexual I may be blackmailed, and it 
could be possible that some of the information I have should 
not be discussed."   That impressed me as being an honest, 
concerned young man, because the Army did not 
discover that he was; he told them himself.  

     That again is what occurred here.  The Department did 
not determine from his activities that he was a homosexual.  
He revealed that to the officer.  And also there was this 
affair that he revealed to Sgt. Killian, that about a year 
ago he was at a party and he smoked a marijuana cigarette.  
Now, he didn't have to tell the officer that. He was honest; 
he leveled with him.  And yet they held that against him.

     So I feel that we are concerned here with not the 
average, or not any homosexual We are concerned with Douglas 
Wyman. The evidence indicates that it had no effect upon his 
work. He was a good technician, he was doing a good job. The 
only concern of the Department was the fact that if it was 
known that he was a homosexual that it would affect the 
morale of the State Patrol.

   It has been called to the Court' s attention, and the 
Court has observed that there is a trend now, I think it 
started officially in England, I'm not sure just exactly 
what act of Parliament it was, but when the common law 
of England was amended, I think it was as a result of a 
royal commission report about ten years ago, that the common 
law oŁ England was amended that sexual activity between 
consenting adults was no longer a crime. I mean that started 
the trend in the United States. And that trend has emerged 
in the United States to such an extent that in a decision of 
our Supreme Court-and this was a decision that actually 
surprised me when I read it first, when it came out last 
year. That's the case of Gaylord v. Tacoma School District, 
85 Wn. 2d. 348. In that case it was a school teacher who was 
known to be a homosexual, and he was discharged because he 
was a homosexual. And our Supreme Court stated on page 349:

    "The sole basis for his discharge is James Gaylord's 
status as a homosexual.'  He argues to this court that 
expert testimony showed ovewhelmingly that, even if 
knowledge of his status as a homosexual became public, he 
would be able to function efficiently as a teacher without 
risk of harm to the school or to the pupils.  The school 
district, on the other hand, presented testimony at trial by 
its administrative staff that when knowledge of the 
appellant's status as a homosexual became known to the 
Students and their parents, the resulting complaints would 
affect appellant's teaching efficiency and injure the 
school." 

      Then the court goes on to say that the trial judge 
found the public knowledge of Gaylord's status would impair 
the optimum learninq atmosphere in the classroom.'"  Now, it 
is quite understandable that if you are concerned about the 
morale of the students, and you have here a teacher that is 
known to be a homosexual teaching the students that you 
could see why the school board would be quite concerned. 
But, nevertheless, our Supreme Court said that, no, that 
fact alone is not grounds for a discharge.  In this case the 
trial court waS reversed and the case was referred back to 
the trial Court to determine whether or not the fact that he 
was a homosexual affected his teaching ability.

      As Justice Utter asserted:
      "The facts must show that the terminated teacher's 
conduct affects that teacher's efficiency. " Now, that is a 
strong assertion and test that it seems to me this Court is 
bound to follow.  The test is:  Because Mr. Wyman informed 
Sgt. Killian that he was a homosexual, did that affect his 
ability to perform the technical services he  was performing 
as a technician in the communications department where he 
worked?         
      
     There is no evidence that that did affect his work.  As 
I said at the start, I understand why the officers did what 
they did, because it has been a part of our culture to 
discharge a person who is known to be a homosexual. On the 
other hand, Mr. Wyman was concerned about the problems that 
one has when he is a homosexual, that he can be blackmailed 
if it is kept secret, and someone tells him, " If you don't 
do what I want you to do, I'm going to inform someone." So, 
in order to avoid that great concern in our society which 
has plagued these people for centuries, in order to avoid 
that he comes out and admits it. Now, maybe that's the right 
way to do it. I don't know. I don't want anyone to feel that 
this Court condones that activity of being a homosexual, but 
I understand that is a problem that I think modern society 
is beginning to recognize, and that's the reason the 
legislature decriminalized this activity in their recent 
criminal code, and that's the reason why the civil service 
rules referred to by Ms. Young, the United States Civil 
Service rules, indicated that this conduct as such, without  
offending anyone in public, is not grounds for a discharge.  
And the city ordinance of the City of Seattle has also 
asserted that, unless the activities of such person are 
offensibe to someone, it would not be grounds for a 
discharge.
     
     That seems to be the modern trend.  And I believe that 
the Court is then governed by the philosophy of our Supreme 
Court in Gaylord vs. Tacoma School District, in rendering 
judgment in favor of the plaintiff here, until there is some 
evidence that these activities affect his ability to do his 
work properly.
       
     Is there anything else?

     MS. YOUNG: Your Honor, can he also be awarded damages?  
That's what we're concerned about, is that he not only be 
ordered reinstated, but also awarded damages for this 
period.

     THE COURT: I don't know. That question has not been 
called to my attention.

     MS. YOUNG: Your Honor, he testified that he took the 
job with the State Patrol because it offered him a 
significant increase in salary. He then started with the 
Patrol at a salary of $950.

THE COURT:  What do you say about that, Mr. Ryan?
Now, you don't have to concede that I am rignt, but if
the Court is right he would be entitled to damages, wouln't
he?

        MR. RYAN: If the Court is right .
        THE COURT: Very well. Then he would be entitled
to damages, of course, as prayed for.
want it strictly understood that the Court is
not condemning the officers of the State Patrol for doing
this. That's perfectly understandable. And from now on
they can say, "Well, the Court says we have to do this.
So, therefore, we can't be criticized for doing it."

         MS. YOUNG: I would like to clarify this, Your
Honor. By prevailing would he then be entitled to an order
reinstating him, subject to any appeal that may be taken?

-     THE COURT: Yes .
           And I also want this understood-and this applies
to Mr. Wyman, it doesn't apply to everybody-that he impressed
me as being a very honest person.

        Anything else ?

        MS. YOUNG: No, your Honor. Thank you.

        MR. RYAN: Nothing else, your Honor.