Washington Courts

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.

To those who attended the Putnam v. Morning Star Boys Ranch trial and who listened carefully to the story of the life of Kenneth Putman, a great sense of sadness for the young man was, had to be, felt. 

Kenneth Putnam is one of those people who, as a newborn, was rejected by those who should have loved him.  I sensed there was a great rift in his spirit, his soul – a great deep pain and an unrequited longing.  I sensed that the real cause of this was the rejection and the emotional and physical suffering he experienced in the “care” of his mother and father.

Things might have been different for Mr. Putnam if the state, as parens patriae, had stepped in at his birth and put him in the hands of loving people.  That did not happen. The state simply did not do that, though it could have.  It had the power, but it did not have the will.  I wonder if the state has the will to take such steps today?  One wonders how many children are terribly damaged due to the lack of real love from parents.

Is it possible for the broken soul of Kenneth Putnam to be repaired today?  I think it is, but I think it will only come about as a choice by Mr. Putnam.  The choice, if he is to make it, is a choice to see the substance of being in himself.   The choice will be made when he chooses to live and and when he chooses to stop denying the “death” he experienced as an infant, a small child.   The choice will have nothing to do with self-discipline or being tough.  It will have everything to do with a quiet, unspoken, acceptance of that which is transcendent.

Kosnoff and Company go through the state of Washington telling people who are alleged to have suffered as children at the hands of those who may have sexually abused them that they should sign contingent fee agreements to let them bring an action damages here or there against this or that “evil” entity — for example, the whole of the Catholic Diocese of Spokane or Morning Star Boys Ranch or some other organization which was 30 years ago or more  being taken advantage of by a bad person.  They say they will get justice, that their efforts will make their lives better.  

This, of course, is nonsense.  Money damages may be gotten but money is not going to repair the damage which might have taken place.  Kosnoff and Company pitch a falsehood, an impossibility.

And, in doing so they make millions.  One wonders how much of the $50 million paid out of the Bishop of Spokane Bankruptcy went to Kosnoff and Company?  Was it $20 million.   Maybe more?

Kosnoff and Company are running a money gathering enterprise by which they get a percentage of the money they can obtain.  This enterprise may be dressed up in the words of justice and so on but it does not provide true help to those who suffer.  And, the enterprise certainly does not help those who make false claims.

Tim Kosnoff has not helped Kenneth Putnam.  Not at all.

Supreme Court Justice Tom Chambers’ six-year term is up at the end of 2012.  So, his judicial position is up for election this fall  (Nov. 2012). 

The word on the street in Olympia is that Justice Chambers may not be running again.

Perhaps a well-respected and talented lawyer like Shawn Newman of Olympia will throw his hat in the ring.

Judicial elections are coming under increasing scrutiny these days.  In Colorado the judges seeking to be retained may well face some opposition against their retention.  It seems there are some in the state who think the judges up for retention have been a bit too political.  The Denver Post has a story, Four Supreme Court justices face a tough vote in elections.

Supreme Court elections are coming up this fall in Colorado, just as they are in Washington.  In Washington, three Supreme Court positions are up for election.  The positions are for six-year terms.

What do we know about judges running for office.  What do we know about judges who have been in office and are running again?  Not much really.  Yet we trust that election of judges is the proper way to go about filling these important positions.

In Colorado some seek better understanding of judicial candidates.  Go to the Denver Post and this “guest opinion”  Evaluating the performance of justices, by William Benta.  Mr. Benta is a former commissioner of two Colorado Judicial Performance Commissions.

When one sends a document to another person via the internet or files a document in an electronic case filing system the document, unless it is scrubbed, may include information you might not want others to know about.  The information is not visible, but it is still there.  It is metadata.

Let’s say you are going to convert a document to pdf so you can file it with the court which has an electronic filing system.  You may want to be sure the metadata is erased from the document.  The Acrobat program may have this ability.  If you do not have the right program, scan the document and then file the scanned document.  Adobe has some information.

If you are sending a WordPerfect document save it without metadata.  There is a save routine in the program.  First you save the document and then you save it again but this time using the “Save Without Metadata” routine under File.

If you are using Word, see this from Microsoft.

The ABA has some materials on ethics and metada.  Review and Use of Metadata.  See also this piece.  No doubt, there will be much litigation in coming years regarding metadata getting into the wrong hands,

The contempt hearing coming up on February 22, 2010 in Bankruptcy Court before Judge Patricia Williams at 1:30 P.M. is more than a tempest in a teapot. What appears to be a minor sort of tiff between attorneys goes to the heart of the legal system. Beneath the surface, a significant matter is at stake – truth telling.

Who are the players? The man who sent the email message of January 13, 2010 is Greg Arpin, an attorney at Paine Hamblen in Spokane who represents the Spokane Diocese (the Reorganization Debtor). The woman who received the email and is threatened by it is Gloria Nagler, an attorney at Nagler & Associates in Seattle. She is the Plan Trustee of the Spokane Diocese Bankruptcy. 

Over the past several months there has been a dispute between the Plan Trustee and the Spokane Diocese regarding the payment of claims regarded as “future tort claims” out of the Plan Trust. The Tort Claims Receiver has received certain claims and has approved them. The Reorganization Debtor (the Spokane Diocese and its attorney Greg Arpin) disputed the payment of some of the claims as claims which have been approved improperly under the plan.

Whether these claims should have been paid or should not have been paid is a question which is winding its way through the judicial system. If the claims were ultra vires claims and they were paid, the Plan Trustee might have personal liability for a breach of her fiduciary duties to the Plan.

There will be more of such claims; claims not a part of the claims proceeding through the appeal process.

The Plan Trustee, apparently, does not have malpractice insurance regarding this potential liability. When she took on the Plan Trustee position she apparently understood that she might be personally liable for breach of trust re payment of ultra vires claims.

The Plan Trustee’s motion for contempt says that the Greg Arpin is threatening her from complying with a court order, the payment of some of the claims approved in the future tort claims category. See Plan Trustee’s Motion for Order to Show Cause . . . and related pleadings.

The court orders did not do away with the Plan Trustee’s liability. Her possible liability is simply a truth, a fact. She has no right to feel threatened by the fact that Mr. Arpin has reminded her of her possible liability. And, even if the court imposes contempt against Mr. Arpin, her liability will not go away. If it exists, it will continue to exist despite an order of contempt.

So here is the interesting point: In coming the court on February 22, 2010 to show cause why contempt should not be imposed, is truth a defense? Or simply put, how can one be held in contempt for simply speaking the truth?

It would not make sense to hold one in contempt for truth speaking.

This case will not be the first to address the issue. For those interested in it the old California case of McClatchy v. Superior Court, 119 Cal. 413, 51 Pac. 696 (1897) might be of some interest. In this case the court cited the editor of a newspaper with contempt for the way a trial was described. The newspaper’s counsel tried to put on testimony that what was said was true. The court rejected the proof which was proffered. On appeal, the case was reversed. Truth is a defense to contempt. See also, Contempt- What Constitutes - Defence-Jurisdiction- Review-Mc- Clatchy v. Superior Court of Sacramento County, 7 Yale L. J. 281 (October 1897-June 1898).