Washington Courts

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.

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.

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).

The contempt sought against Greg Arpin, the attorney for the Spokane Diocese in the bankruptcy proceeding in Spokane seems to be a tempest in a tea pot.  Here is the January 13, 2010 email which supposedly is the basis for the order to show cause:

Gloria [Nagler] and David [Kerruish]:

The Diocese has determined not to request from the District Court a stay of the claim payments pending its appeal.  It does intend however on pursuing its appeal of the issues raised by Judge Williams’ determinations regarding review of the TCR’s claims decisions.  If during the course of that appeal, the TCR issues any rulings allowing additional claims which allowances we feel are in violation of the terms and conditions of the Plan regarding future claims, we will move at that time with the District Court for stay of payments on any such claims pending resolution of the issues on appeal.  Further, if it ultimately prevails on its appeal that the TCR determinations can and should be reviewed for ultra vires acts and abuse of discretion, the Diocese reserves all rights to look to the Trustee to reimburse the FC Fund for money paid out on claims that do not qualify under the Plan as Future Claims.  

 Greg [Arpin]

See Nagler Associates.

In the Spokesman Review, Spokane Diocese lawyer faces court action piece it is said that Ms. Nagler says she does not have insurance to cover the claim if one is made.  This is an odd bit.  Ms. Nagler seems to be saying she should not have to have professional insurance for her negligence as a trustee and that because she does not Mr. Arpin should be held in contempt because he has asserted she has to be sure she meets the proper standard of care in her dealings.

Something is quite troublesome here.  More work to understand this contempt request needs to be undertaken.

A man says another man sexually abused him in private over 20 years ago. The accused man denies the accusation and also denies he ever was in a private place alone with the man making the accusation.

The crowd hears of the accusation and the denial. The crowd has a presumption the accuser is telling the truth. The crowd also has a presumption the man denying the accusation is not telling the truth. Have I stated the truth about the crowd? I think I have.

I have tested this analysis. My experience of the crowd presented with the scenario is always the same. The accuser is presumed to be telling the truth. The denier is presumed to be telling an untruth.

The “presumption” is irrational. Yet, it is there.

The only way to work against it is to tell the truth. To do as much as one can to prove that the person who denies the accusation is trustworthy, sincere, that his character is such that he would not lie. To do everything which assists a person in making a rational decision about the truth or untruth of the accusation and the truth and untruth of the denial.

The purpose of a trial is to get at the truth. One would hope the presumption I have talked about above is not a part of the thinking and emotions of the jurors in the Putnam v. Morning Star case. If this irrational presumption is in the minds of some on the jury one would hope reason and facts will convince the persons holding the presumption to overcome it and to do the right and true thing.

It will take 10 jurors to go along with the claims of Kenneth Putnam and his attorneys.

Today, Judge O’Connor gave each juror a set of the final jury instructions.  At the same time she read the instructions to the jurors.  These are the instructions the jury is to follow in its deliberations and in reaching its verdict.  Here are the instructions.  Jury Instructions.

The jury was delivered to the charge of Ashley Koedding, Judge O’Connor’s Judicial Assistant, at about 3:15 this afternoon.  Ms. Knoedding is responsible for the jury. She took an oath to take charge of the jury and to protect it during its deliberations.  She took her charge quite seriously and with interest and pleasure, one could see that. 

One could also see that Judge O’Connor has great respect fot her.  Ms. Knoedding will deliver the jury back to Judge O’Connor and the court when the jury has reached its verdict – when the jury is ready to “return a verdict.”

The verdict form can be found at the end of the Jury Instructions.

One has to admire and respect this process.  It is a tribute to the evolutiom of human-kind.  we will make it even better as time goes on.

Judge Richard Hicks has decided to dismiss the case and deny plaintiff’s motion for summary judgment.  See Jim Camden’s article in The Spokesman - Review. Appeals Court System Challenged.

As soon as the order on Judge Hicks’ decision is entered, Plaintiff will file a Notice of Appeal and a Petiton for Direct Review to the state Supreme Court.  The goal wiil be to get the case completely briefed to the Supreme Court as quickly as possibe.

The presentation of evidence part of the trial came to an end just before noon today. This afternoon Judge Kathleen M. O’Connor took steps to ready the case for the next to final step, giving the case to the jury.

Judge O’Connor excused the jury when Attorney Kosnoff, for the plaintiff, told the court he would not be presenting any rebuttal witnesses. There is a story there and I tell it in a later post. The jury will return tomorrow.

This afternoon the judge, along with the attorneys, took care of an number of items. There were some final motions which had to be dealt with. Next, all of the exhibits had to be put in order. This meant that the court wanted to be sure it had full agreement with counsel regarding the exhibits which were admitted during trial. Some items were not admitted and they were taken out of the exhibit books.

After this task was accomplished, judge and counsel worked through the jury instructions to be given to the jury tomorrow. This took the rest of the afternoon. Each side presents jury instructions for consideration and use. The court, too, will present instructions. The instructions tell the jury what must be done and what various presumptions and standards are. The court will send a copy of the final instructions to me and I will put them up on this site.

Tomorrow morning, the judge will instruct the jury on the instructions and will give the jury a working copy of all of them.

Then counsel will make their closing arguments to the jury. This will take the rest of the morning. The jury should begin its deliberations in the afternoon. The jury members have not discussed the case amongst themselves. They will begin that task when the jury is given the case for deliberations.