Washington Courts

On Tuesday this week I observed a hearing before the Washington State Supreme Court.  Three of the justices asked questions of the attorney for the appellant — the appellant was a young woman lawyer who is said to be a lawyer who should be disciplined.  The Washington State Bar Association, says that the young woman should be suspended for some minor non-action in Superior Court. Suspended from practicing and making a living for three, hopefully they wish, six months. 

(The complaint against her was a complaint filed by her opposing counsel.  The Bar has taken sides in the dispute — a common occurrence these days.  The bar has lawyers it favors and other lawyers it does not favor — this is today’s WSBA Lawyer Discipline System.)

What impressed me was that the justices asking the questions seemed to be saying that they thought the young woman lawyer was a “bad person.”  That is to say, they were seemingly saying or implying that the lawyer in the dock was not just  a lawyer who may have made a mistake, not just a  lawyer who should have conducted herself otherwise, but a person who was “bad.”  That is to say, the demeanor of the justices and the tone of their questioning seemed to say “counsel, we think your client is a bad person.”  That certainly is what Justice Alexander and Justice Fairhurst were saying as far as I could tell.

Interesting.  That perhaps is what our system is becoming.  The people who are the Platonic Elite of our society have devolved into name calling and personal judgment making.  It seemed to me these questioners had no idea that what was before them was humanity in its variations and that there was no grand good and evil being displayed.  The situation before the court was a societal reality and the solution had nothing to do with name calling and the infliction of revenge and pain and economic and social distress. 

I feared for the lawyer in the dock and the lawyer representing the lawyer in the dock.   I feared for them because they were not only witnessing the devolution of our society, our polity, they were the subjects of  a devolution in our society,our polity —  our community, our history, the history of mankind.  They, in this drama, were the subjects of an historical retrogression.  

There is trouble afoot.  Some of our leaders, our “wise ones”,  are not what they should be, not what we need.  Not what the community needs. to be a community.  Where has reason and righteousness and justice gone these days? Or, perhaps not so grand a comment — where are the adults?

These two — the young woman and her lawyer — were the beneficiaries of ignorance and churlishness by some of our grand leaders.  What explains this?  Maybe it is a truth that community and the truths which make community  – compassion, understanding, love  – go backward rather than forward from time to time.

Thoughts about the Sandra Ferguson WSBA Disciplinary Action. The hearing officer in the Ferguson case was not qualified to act. He did not have jurisdiction.

At the time of the proceedings against Sandra Ferguson, Stanley Bastian was the president elect, president and/or past president of the Bar Association. Prior to that, Mr. Bastion was a member of the Bar Board of Governors. Mr. Bastian was also a member of firm of Jeffers - Danielson and a fellow shareholder and employee, of James M. Danielson.ELC 2.6 (e)(4)(a) “[h]earing officers should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, . . . ” Surely, Jeffers - Danielson and James M. Danielson’s “impartiality might reasonably be questioned” and objectively so under the circumstances. They were disqualified. And any action of them or by them as chief hearing officer was without jurisdiction, even the discretionary appointment of a hearing officer from a list of hearing officers the chief hearing officer controlled and had duties with respect of. ELC 2.5(f).

Plaintiff has filed his opening brief in Eugster v. Washington and the Washington Court of Appeals.  Find it here  — Opening Brief of Appellant.

What might happen as a result of the case is this:  The legislature, which has the power under the constitution to provide for the “manner of election” of the judges to the Washington Court of Appeals, will devise a plan whereby a commission will be established to select qualified lawyers who wish to become judges.  The commission would then provide a list of nominees for a position on the court. The governor would then appoint from such list of qualified nominees.  She or he would not be allowed to go outside of the list.  Then, at the next election, the judge would stand for retention.  This is the something like the Missouri Plan.

It would be highly doubtful if the legislature would try to amend the constitution to provide for the strict appointment of judges in the case of the Court of Appeals and the other courts – Superior Courts (trial courts) and State Supreme Court.  

See my article  at this link.  See also The Walsh Commission Report.

The Supreme Court heard the Referendum 71 signature and address disclosure case yesterday.  The eminences on the Supreme Court were not very cordial to the attorney for the people who seek signature privacy. 

The disclosure was not sought for the purpose of verifying the legitimacy of the signatories.  It was sought for the purpose of outing people so that political pressure could be brought to bear on them, so that they could be the targets of what — general knowledge, or was it something else, something that might have something to do with ridicule and recrimination, bad stuff.  Bad stuff not good stuff, not neutral stuff.

The people placed on the dais of the Law Palace were not very kind to Mr. Bopp.  That was not surprising, one goes before the court with the sense that one is exposing oneself to fellow law students and professors who like a good argument.  Mr. Bopp got a bit of meanness, in addition to argument.  But that is all right too.  Especially when one understands the childishness of the work of the eminences.

When one reads the transcript of the oral argument one gets the impression that the Justices were a bit petulant.  That’s a good word for it.

The upshot of all this is that the signatures and addresses of the people who sign initiative and referendum and recall petitions in those states which allow for such participation are going to find that their petitioning of the government is no longer going to have any sort of zone of privacy.  You are now fair game you citizens of the revolution, you citizens who question your government! 

I was wondering whether these highly placed people who have been anointed with extraordinary power (Justices of the United States Supreme Court)  are thinking to themselves something like — “that will show those upstarts who would like to start a revolution against the Government Party!”

John Bradbury is an Idaho Second District Court Judge.  He is running for a seat on the Idaho Supreme Court.  He has run before and almost got elected.  Judge Bradbury has challenged the Idaho judicial-legal fraternity.  Finally, he has been able to gain a forum for debate about the judiciary in Idaho.  See this article in the Times News.

The case claiming that the Washington Court of Appeals judicial elections are subject to the one person one vote principles of the Washington State Constitution Art. I, Section 19 is on its way to the Washington Supreme Court. 

The Statement of Grounds for Direct Review and the Answer to the Statement of Grounds for Direct Review have now been filed with the Supreme Court.

Appellant’s Brief will be filed by the end of April, or thereabouts.

The witnesses for Morning Star Boys Ranch were, to a person, decent, forthright, and caring. They were people who did their work as care-givers to the young boys at Morning Star over the years in concern and simple dedication. They were people who cooked, cleaned, wrangled the horses, took the boys on outings, tutored them when they came back to the ranch after school and played games with them in the evenings.

Two of these innocents were people who came together in respect and love of one another, came together free of any sort of artificiality, as a result of meeting at the ranch. And, who in innocence began to make a life together. The two we learned about during the trial were Doyle Gillum and Tricia Gillum.

Tricia grew up in Washington in the Anacortes area of Puget Sound. She came to Spokane after high school and worked at a bank on the South Hill. Doyle had grown up in the Omak - Okanagan area just east of the Cascades – an area connected to Canada and surprisingly to Seattle, yet a farming - ranching area. Tricia enjoyed doing volunteer work. When she came to Spokane she began volunteering at Morning Star Boys Ranch after becoming aware of Morning Star at the bank.

Afer work, she went to the to the ranch 2 - 3 times a week to help with dinner, play games with the boys, help them with their homework. Doyle Gillum was there every time she was there. He was on the evening shift. They worked together. She came to know Doyle. They became friends and after she stopped volunteering, they started to go out. She went back to the West Side — “the Coast” we say over here.  Doyle visited her every weekend. Their love grew.

That Christmas she came over to Spokane and she and Doyle went horseback riding at the Ranch. It was then he proposed. And, they were married.

Doyle went into the Air Force. After Doyle’s training, they moved to Omaha, Nebraska. In late 1994 Doyle went bird hunting with a friend, a neighbor. The men were accidentally caught up in a train accident – Doyle was killed.

Tricia gradually put her life together again. She married and now has an 11-year old daughter. She teaches 3rd grade at a Christian school and lives with her husband and daughter in South Carolina where her husband, Michael Schmidt, works for the Federal Bureau of Prisons.

This person, Tricia, is a fine and good person. She loved Doyle Gillum. She was drawn to him because of his goodness, his love for others, his integrity and essential decency. There was nothing but good in Doyle. She knew, she testified. Even the darkest of souls would not have questioned the goodness and truth of Tricia Schmidt.

One wondered how could anyone pursue accusations against Doyle, against the goodness of this man, against what was the goodness of the choice Tricia had made in Doyle.

To those observing there was a strange unreality taking place. One wondered whether the plaintiff and his attorney were just trying to impress a lie on the jury, on the court, on the public mind – to gain what? Money? That could be it, but may be there was something more, it may be that it was an insidious desire to do injury. A desire to presume good people were bad people and to get a jury and a court to join them in what could only be false taking of money from a good institution and to get a jury and a court to indulge in some sort of great lie that decent people were instead – well, instead, – evil people.

Tim Kosnoff, the attorney for the plaintiff, the attorney advancing the absurd claims of his client, tried to besmirch the character of Tricia Schmidt. He tried to suggest there was something odd in Doyle Gillum’s going into the Air force and not seeing her more often than weekends when he was in training across the state from her. He tried to suggest there was something wrong in relocating to Omaha. He tried to raise suspicion as to Doyle’s tragic death.

I sat and listened in amazement to this slick lawyer as he tried to raise doubts. Somehow it seemed to me he must be thinking he could create some negative aspect by asking questions, as if there was something sordid behind the question – that all he had to do was to ask the question and somehow connect it to a public prejudice, connect it to some sort of negative spirits in the minds of the jurors. I shuddered.

There were no public responses to these efforts by Mr. Kosnoff. But, some were watching. Some caught up on what he was doing. Some did not think his conduct was appropriate –

In fact, it was not even appropriate as far as those who would use our judicial system as some sort of personal injury lottery – a lottery where you try to get a jury or a judge to join in plays for money.

This sort of law is the “legal enterprise phenomenon” of plays on “public prejudice.” Kosnoff and Company are masters of the process, it seems. Sad. What is the process of law becoming?

Despite the efforts of Kosnoff and Company, the jury saw the truth, the innocence and good will, of Doyle and Tricia Gillum.

It is time to replace Spokane County Prosecuting Attorney Steve Tucker and his Chief Civil Deputy, James Emacio. Mr. Tucker is in charge of the entire office of prosecuting attorney but he defers completely to Mr. Emacio regarding the civil side of the office. We now know there are grave problems in the Office of the Spokane County Prosecuting Attorney. Here is a listing of a few of these problems:

Morning Star Boys Ranch – Fraudulent Claims? Mr. Tucker has been asked to seek a special inquiry judge to look into whether there is not a conspiracy to defraud Morning Star Boys Ranch with false sex abuse claims. See this letter to Mr. Tucker.

River Park Square. River Park Square has been a critical point in the history of the city and county of Spokane. Mr. Tucker was asked to take action, to call for a special inquiry judge, to cause a grand jury to be empaneled, to explore whether the state RICO act had been violated, was implicated. He failed to take action. He failed to even really consider taking action. See this Brief Summary of River Park Square dated May 14, 2007.

The Yates Case – for years we had a serial killer of young women in our midst. Mr. Tucker avoided the serious issue of the death penalty in the matter, passing it on to others.

The Death of Jo Ellen Savage. Without a doubt there were strong indications that a crime had been committed regarding the tragic death of Jo Ellen Savage at the River Park Square Parking Garage. The facts were clear that the spandrels did not act as safety barriers, that they were defective, that they had failed in the past, that the owners knew of the failures, that the owners had been advised by engineers that the spandrels were a danger, and it was apparent that the spandrel which failed was improperly designed or manufactured. Mr. Tucker was asked to take action. He did not. Now he is being asked again. He will not act. See materials under the heading Jo Ellen Savage Death at River Park Square at this link.

Prosecution of Eileen Jensen, Yet No Prosecution of RPS Garage Owners. See this letter regarding the disconnect of prosecutorial morality. Letter to S. Tucker of February 9, 2009.

Mortgage Skimming and Fraud. Over the past several years there has been a good deal of mortgage fraud taking place in Spokane County. Mr. Tucker has turned a blind eye to the problem and has relied on the United States Attorney to take action.

Conservation Futures Taxes and the Downtown YMCA. The law of the state of Washington does not allow precious conservation futures tax revenues to be used for the purchase of developed property which is to be torn down. Yet, Mr. Tucker and Mr. Emacio think it does. When they should be enforcing the law and protecting tax resources and ensuring they are used for proper purposes, they wish to bend the law and help who?– a politically correct faction in Spokane which thinks tax revenue can be spent for any “Government Party” purpose? Just how much political correctness, political faddishness, can our community sustain? See the materials at this link. Mr. Emacio is at the heart of this Machiavellian power grab.

The Spokane Airways Case – a great deal of trouble is brewing regarding the Spokane Airport Board, a joint venture of the County of Spokane and the City of Spokane. Spokane Airways has filed a claim with the County for the ill treatment it has received and which it is enduring. At the center of the complaint is a host of attorney conflicts of interest which have cost the city and the county hundreds of thousands of dollars – Mr. Emacio is in the center of this dust-up. See the Claim Filed by Spokane Airways dated January 11, 2010.

The Orville Moe Raceway – this property never should have been purchased. It is an environmental hazard, the business the county seeks to be in with regard to it is simply not the sort of business a public entity should be involved in, it is a vanity project on the part of county commissioners drunk with the power to spend public money, and it is a project Mr. Tucker and Mr. Emacio have no business providing legal services for – it is way out of their league. Way out of their realm of expertise. You may ask, why is the county on the hook for debts the previous operator ran up? That’s bad legal work folks.

Land acquisitions in the West Plains Area. What is this all about? As best one can tell, the land acquisition and new railroad is a highly expensive open space which will be kept out of the hands of private capital. But, I forgot, it looks as though the railroad line is being used as a storage yard for various railroad cars which are not in use – many are tankers (one wonders whether they are filled with something?). Senseless, all unless of course one thinks that the legal leadership of the county should be actively involved in helping the county take more land out of the hands of private property owners. The public as entrepreneur? Heaven help us all!

Judge Williams’ decision comes as a surprise, and not as a surprise.  See the Spokesman - Review piece by John Stucke, Judge Orders Diocese to Pay.

It is a surprise because Diocese attorney Greg Arpin did not do, or say, anything which could be said to be contempt of court.

It was not a surprise because it seemed the court was going to lean over backwards to find for the proponent of the contempt claim, the Plan Trustee and her attorney David Kerruish, and not so tacitly, the other attorney at the table with them, Dillon Jackson, the attorney for nine of the new claimants. To me it seemed Mr. Jackson had courtroom rights to a certain informality with Judge Williams. He acted a bit like a bright little boy who knew he was liked and could say what he liked and could instruct the judge. This was all the more troublesome because he is tied to Kosnoff and Company.

I wondered, “what is this contempt motion really all about?” Greg Arpin had a right to say what he said. What he said was the truth. And, he has a first amendment right to speak, he had a right not to have his speech censured just because it might offend. The law does not subject a person to contempt just because another person in the court proceedings might take offense.

Offense, that is what the contempt motion was about. Ms. Nagler was offended. She then raised her offended state to a “federal case.” I suspect she was being a bit opportunistic.

I think what was happening was that Ms. Nagler (and Dillon Jackson and Kosnoff and Company?) wanted to scare Mr. Arpin and the Catholic Diocese away from raising future objections to the payment of the new claims of sex abuse, which have been filed in the final hour of the bankruptcy proceedings. These claims may be quite suspect, yet they may be approved. They may be approved despite the fact they fall outside of the claims which can be approved under the plan. If they are outside of the plan, they might be ultra vires and if so Ms. Nagler may have liability if she pays them.

Obviously, she does not want to be questioned. Obviously, Dillon Jackson does not want to have her questioned. Obviously, Kosnoff and Company do not want to have her questioned.

Dillon Jackson rather supercharged the proceedings on Monday by saying the Diocese should not have been discharged. It was surprising to hear this. It was completely improper and calculated, I thought, to play on some sympathies the court may have. He said it as if he was saying “we both know, don’t we judge, that the Diocese should be punished more for what has happened.”

It seems there is an ongoing effort to make the Spokane Diocese and the people who make up the Diocese into some vast evil essence. How absurd, and how very out of line.  It may be time for a bit of truth here. 

One trusts the contempt decision will be appealed.

Tomorrow, Monday, February 22, 2010, at 1:30 pm Spokane Diocese attorney Greg Arpin will go before Judge Patricia Williams. He has been ordered to come to court to show cause why he should not be held in contempt. What did he do? He sent an email message to Gloria Nagler, the Plan Trustee of the Spokane Diocese bankruptcy. This is the bankruptcy wherein Kosnoff and Company are making millions in contingent fees in the processing of sex abuse claims. Some of the claims have just recently come in, and some of these have been approved.

Ms. Nagler has a duty to be certain that claims which are ultra vires are not paid out. She has professional liability if an ultra vires claim is paid. If a wrongful claim is paid the claims of those who are legitimately making claims will be paid less.  Mr. Arpin advised her of her responsibility.  She responds by getting the court to order Mr. Arpin to show cause why he should not be held in contempt and fined $10,000 (I think that was the amount.)

Kosnoff and Company make lots of money on claims paid out of the plan.

The attorney for Gloria Nagler is a Seattle attorney by the name of David S. Kerruish. I have been told by a reputable source that Mr. Kerruish may have represented a member of Kosnoff and Company on a real estate matter, his name is Michael Pfau.

It is possible that the Plan Trustee is using the same lawyer who advises a person who gains great benefit from the plan? Maybe we should all naively and hopefully say “isn’t it a small world.” But maybe we should all say a bit more. How does this sort of closeness portray the legal system in the state of Washington? It does not engender trust and respect for the system.

Of the 25,000 plus lawyers in the state could it be considered reasonable that Mr. Kerruish would be the one who would represent the Plan Trustee and also have some relationship with one of the men gaining enormous benefits from the plan and the distributions of the Plan Trustee?  One’s credulity has to be a bit overtaxed on this one.