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.

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.

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.