Man charged in DUI death settles lawsuit with state for $100,000

By Whitney Bermes, Bozeman Daily Chronicle, March 23, 2017

A man accused of killing his wife in a 2012 drunk driving crash near Bozeman — but whose charge was later dismissed — will receive $100,000 after settling a lawsuit with the state over what his attorney called “outrageous conduct” by investigators and prosecutors.

The settlement approved by a Gallatin County judge this week awards 44-year-old Michael Soule $100,000 from the state.

The settlement is not considered an admission of liability, documents say.

Soule’s attorney, Todd Shea, filed the suit in July, alleging negligence, malicious prosecution, violation of constitutional rights, and intentional and negligent infliction of emotional distress, among others, stemming from the investigation and prosecution of the crash that killed his 37-year-old wife Jennifer Soule.

Defendants named in the suit included the Montana Highway Patrol, Attorney General Tim Fox, Gallatin County Attorney Marty Lambert, former Gallatin County Chief Deputy Attorney Todd Whipple and MHP troopers Josh Brown, Glen Barcus, Josh Giddings, Patrick McCarthy and Ace Meskimen.

Soule was charged with felony vehicular homicide while under the influence months after Jennifer’s death in a crash on Interstate 90 west of Bozeman during the early morning hours of Jan. 25, 2012.

The case was later dismissed after former Gallatin County District Court Judge Mike Salvagni ruled that investigators failed to preserve key evidence and that the prosecution didn’t have probable cause to charge Soule with his wife’s death.

Charging documents alleged that Soule was driving a pickup up to 103 mph with a blood-alcohol content of 0.231, nearly three times the legal limit, when the vehicle crashed into a guardrail. Documents also claimed that Soule had marijuana and cocaine in his system at the time.

Soule pleaded no contest to the charge as part of a plea deal that gave him 10 years of probation and no prison time.

However, Salvagni rejected the agreement, and Soule then withdrew his plea and pleaded not guilty.

But following a flurry of motions by Soule’s defense attorney, Al Avignone, as well as testimony from troopers who investigated the crash, Salvagni dismissed the case.
In his ruling, Salvagni said that the highway patrol failed to preserve evidence, which included a long, brown hair consistent with Jennifer’s that was photographed near the driver’s door, as well as multiple recordings of witness interviews at the scene of the crash and a swab of DNA evidence taken from the driver’s side dashboard. That evidence was exculpatory and could have been used by Soule to rebut prosecutors’ theory that he was driving and that Jennifer was ejected from the sunroof in the crash.

In addition, Salvagni ruled that the affidavit of probable cause filed by Whipple contained a number of omissions, which included:

Jennifer’s DNA and Soule’s DNA were both found on the driver’s side airbag, but only Soule’s was found on the passenger side airbag.

A long, brown hair consistent with Jennifer’s hair was found on the driver’s door.

There were no fingerprints recovered from the keys or steering wheel that could have indicated who was driving.

No witnesses could identify who was driving.

Neither person was wearing a seat belt.

Both were found outside the vehicle.

Salvagni’s ruling also said that investigating troopers conducted a number of warrantless searches and seizures in Soule’s hospital room the morning of the crash.

Troopers went into the trauma room where Soule was unconscious and obtained health care information, removed his hospital gown and sheet, examined his body and took photographs of his injuries and personal items, all without permission from Soule’s family or hospital staff.

And while a screening test of Soule’s urine at the hospital tested positive for marijuana and cocaine, a confirmation test was never done, and his blood was never tested for the two drugs. The only legal blood draw tested by the Montana State Crime Lab showed Soule’s BAC was 0.07, under the legal limit for driving, and the amount of marijuana in his system was below the legal limit for medical marijuana cardholders, which Soule was.

Shea declined to comment on the settlement. A call for comment to a spokesperson with the Montana Attorney General’s Office was not returned.

Gallatin County ordered to pay more than $125,000 to wrongfully fired deputy

By Whitney Bermes, Bozeman Daily Chronicle, March 21, 2017

A District Court judge has ordered that Gallatin County pay more than $125,000 for lost wages and benefits to a deputy wrongfully fired by the sheriff in 2014.

In a judgment issued Friday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that Gallatin County must award David Johnston $125,786 for lost wages and benefits from his July 23, 2014, firing through December of last year.

And the county was also ordered to pay about $3,450 for costs incurred as part of the case.

In addition, Johnston will receive interest payments as well as a $247 per diem payment that he will receive until he is reinstated in the Gallatin County Sheriff’s Office or when the case is settled otherwise.

Johnston has yet to be reinstated.

Johnston sued the county following his firing. The case went to trial for three days in December 2015 before Gilbert, who later ruled in favor of Johnston and ordered that he be reinstated as a deputy and receive damages.

In the more than a year since Gilbert ruled in favor of Johnston, attorneys have battled over how much money Johnston was due.

Johnston’s attorney Todd Shea argued for more than $125,000 for back pay and benefits. But Gallatin County’s attorney Calvin Stacey argued that Johnston was only entitled to about $38,520 before taxes.

Since Johnston’s firing, he has received unemployment benefits and has been employed. By allowing Johnston to be reinstated and receive backpay from when he was fired, all while having earned money in that time frame, would be an “obvious windfall” for the deputy, Stacey argued.

Gilbert issued her final judgment Friday, agreeing with Shea’s proposed judgement.
Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder when Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Gootkin’s office asked Johnston to turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio. Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property and needed to be returned as soon as possible but that Johnston refused to comply with Gootkin’s order.

Shea, on the other hand, argued that Johnston’s firing was “cooked up” by the sheriff’s office command staff to get rid of Johnston, a 10-year department veteran who had prior bad incidents with Munter following their breakup.

Edward Jones Files Interpleader Over Disputed Investment Funds

Source: Montana Law Week

INTERPLEADER: Investment entity granted interpleader in Tribal Court dispute over funds in account, awarded fees & costs… Best.

Edward D. Jones seeks an interpleader to join Lisa Copiskey and Dennis Bohnert because they have claims against each other which may expose Jones to double or multiple liability based on their competing claims for funds in a Jones account. Jones asserts the following, which neither Defendant disputes: Blackfeet Tribal Court issued an order prohibiting Jones from using, reducing, diminishing, transferring, disposing of, and/or in any respect dissipating any funds in Bohnert’s Jones account. Bohnert and Copiskey have appealed several Tribal Court orders relating to distribution of the funds and have disputed its jurisdiction at various times. In light of her appeals, Copiskey has asked Jones not to distribute funds to Bohnert until the appeals are resolved and all underlying claims are heard by Tribal Court. Bohnert has disputed Tribal Court jurisdiction, alleged procedural errors, and disputed Copiskey’s right to execute against the funds.

In Bohnert’s argument to this Court, most of which is inconsistent and difficult to follow logically, he seems to want to have his cake and eat it too: to require Jones to follow Tribal Court orders which favor him, but not follow Tribal Court orders which favor Copiskey. This is patently absurd and points up the problem Jones seeks to solve with this interpleader. None of Bohnert’s arguments, even were they logical, go to the questions this Court must answer. His counterclaim flies in the face of the policy reasons for Rule 22 and is unsupported by the law. There are no legal claims — nor do there appear to be any specific allegations — in support of his counterclaim. Bringing a valid interpleader shields a plaintiff from liability for counterclaims where they are based on a plaintiff bringing an interpleader rather than having to choose between competing claimants. Comyne (ED Wis. 2002).

The Court may in its discretion award attorney fees & costs in bringing the interpleader against the stake. Soha (Mont. 1981). Jones appears to be a disinterested stakeholder, which the parties concede. It is entitled to an award of fees & costs from the stake.
Jones and the parties agree that it has in its possession or control money which is the subject of litigation, held in trust for Bohnert. §25-8-101. The funds in the Bohnert account are ordered to be deposited with the Court. Jones is dismissed with prejudice following payment of the funds into the Court’s registry and determination of fees & costs following a hearing.

Bohnert and Copiskey are ordered to interplead and litigate among themselves their claims to the funds. Jones is discharged from any liability on account of Defendants’ claims in interpleader.

Gardiner Water and Sewer District Sues NPS Over Arsenic

Source: Liz Kearney, Enterprise Staff Writer

The Gardiner Water and Sewer District has filed a lawsuit against the National Park Service over the amount of arsenic flowing into the District’s sewage treatment plant.
In the lawsuit, filed Dec. 21 in U.S. District Court in Billings, the Water and Sewer District alleges that wastewater coming from Mammoth Hot Springs is carrying such a large amount of naturally occurring arsenic that it will cost the district more than $2 million to remove arsenic-laden sludge from its sewage treatment ponds, per a requirement from the Montana Department of Environmental Quality.

The Gardiner Water and Sewer District has treated the sewage from Mammoth for many years, according to the complaint filed by the district’s attorney, Todd Shea, of Bozeman.
The district’s engineer believes the arsenic gets into the system through leaking pipes or manholes from within the park, “and that such conditions are likely prevalent along the route” from the park to the district’s sewage treatment plant, according to the complaint.

The complaint states that arsenic levels in drinking water in both Mammoth and Gardiner, as reported to the district by its engineer, test below the allowable limits.
The NPS needs to address the excess arsenic, the complaint states, because there’s no point in removing the sludge and replacing sewage ponds liners only to have more arsenic accumulate.

The complaint further states that the district wrote several letters to the NPS beginning in February of 2015 that went unanswered before the park agreed to contribute toward the sludge removal and lining replacement. But the park indicated it may not have any funds available until sometime in the year 2020, according to the complaint.

“Given that the District has been directed by the DEQ to dispose of the sludge and replace the liners in its treatment ponds and cannot wait for the Park Service’s responses any longer, it has been compelled to file suit,” the complaint states.

The complaint brings five charges against Yellowstone National Park:

• Breach of contract, for failing to follow through on addressing the high levels of arsenic and failing to contribute funds toward the repair process.
• Trespass. The complaint alleges the park is committing a “continuing trespass,” as the arsenic damage is ongoing and will continue until the park locates the areas of infiltration and repairs them.
• Public nuisance. The park “created a danger to public safety by permitting high levels of arsenic to flow into the District’s sewer treatment plant,” the complaint states.
• Private nuisance. The arsenic from the park forces the district to be responsible for removing and disposing of sludge with a high arsenic level.
• Negligence. The complaint alleges the park failed to monitor the condition of the pipes emptying sewage into the district’s plant, causing the district to suffer damages.

The Gardiner Water and Sewer District is asking the court to issue a mandatory injunction requiring the park to address and correct the high levels of arsenic; that the park contribute funds to the district’s sludge removal project “commensurate with their responsibility for the high levels of arsenic;” that the park pay financial damages and any other relief the court “deems to be just and proper;” and to pay attorneys’ fees and costs.

Representatives from the Water and Sewer District, Yellowstone National Park and the DEQ did not immediately return calls Monday seeking comment.

Morgan Stanley Smith Barney Recovers $258,983

Source: Montana Law Week

Morgan Stanley recovered a $258,983.72 judgment against Paul Stafford in 8/15 in Billings Federal Court for a loan he had not repaid. Stafford requested a Hearing on Claimed Exemptions — $6,200.31 in an HSA at First Interstate Bank. The issue is whether an HSA is exempt from execution under §25-13-608(1)(f):
A judgment debtor is entitled to exemption from execution of the following:
(f) Benefits payable for medical, surgical, or hospital care to the extent they are                      used or will be used to pay for the care;

It is clear that this section does not specifically exempt HSAs. If the Legislature intended them to be exempt, it could have put them in the law. Further, while HSAs may be used for medical, surgical, or hospital care, they are not required to be used for those purposes; they may be used to pay for long-term care insurance or for health insurance if the person is receiving unemployment comp. 26 USC §223(d)(2)(C)(ii). Most importantly, they may be used for non-medical purposes, although subject to a 20% tax. 223(f)(4)(A). Primarily due to this last exemption, the Court does not find that 25-13-608(1)(f) exempts HSAs from execution. Although a penalty may be imposed, they may be used for non-medical purposes. This fact, coupled with the fact that the Legislature has not specifically exempted HSAs, leads to the conclusion that they are subject to execution. Morgan Stanley’s writ of execution on the $6,200.31 in Stafford’s HSA is allowed.

Judge reinstates wrongfully fired Gallatin County deputy

By Whitney Bermes Chronicle Staff Writer Whitney Bermes – March  2, 2016

A judge has reinstated a former Gallatin County sheriff’s deputy and ruled that Sheriff Brian Gootkin wrongfully fired him in 2014.

In her ruling issued Wednesday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that David Johnston can be reinstated as a deputy and be awarded damages for his lost salary and benefits from his July 23, 2014, firing through the end of the case.

While no exact cost of damages has been decided, Johnston’s attorney, Todd Shea, said Johnston’s lost salary and benefits will be at least $126,000.

Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder after Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Lt. Jake Wagner requested that Johnston turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over to Wagner.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio for himself.

Later that month, following a disciplinary hearing, Johnston was fired.

During a three-day judge trial in December, Gootkin testified that the recorder was county property that needed to be returned as soon as possible. But Johnston refused to comply with Gootkin’s order, the sheriff said.

Shea, on the other hand, argued that Johnston’s firing was a “punishment (that) simply didn’t fit this crime” and that Johnston was entitled to get a copy of the recorder’s contents. The firing was “cooked up” by the sheriff’s office command staff as a way to get rid of Johnston, who had prior bad incidents with Munter following their breakup, Shea said.

Gilbert sided with Johnston, saying Johnston’s firing was contrary to sheriff’s office policies and state law.

Case Dismissed in Wrongful Termination of Transgender Server

Source: Montana Law Week

SEX DISCRIMINATION: No reasonable cause to believe unlawful discrimination in termination of transgender server.

Nash Walden was hired by Silver Star Steak Co., Helena, in 4/13 as a server. In early 8/14 he requested a 4-week leave from GM Jeff Hiel to complete his transition from female to male (look into legal & medical issues and return to work as Nash rather than Natt, short for Natalie, by which most co-workers referred to him). Hiel stated that Walden could return to work if a position was available, but no guarantees. Walden said he is aware of other instances in which Silver Star granted extended leaves for non-transgender employees. On 8/30/14 Walden had an emergency and needed to take the day off. He followed protocol in alerting Silver Star at least 2 hours before his shift. The manager on duty said he needed to find someone to cover his shift or he would have to work. Walden said he texted other employees to ask if they could cover and continued to advise Silver Star of his progress. He was unable to find a replacement and arrived to work about 12 minutes late. The manager on duty told him to clock out and go home. Later that day he was told to attend a meeting 3 days later. At that meeting, Hiel terminated him. Walden said one of the reasons given is that he ruined the manager’s morning on 8/30 because he called multiple times to discuss his leave request. Silver Star cited this as insubordination, he said, although he is aware of other instances in which non-transgenders were allowed to miss shifts for personal reasons. He alleges that Silver Star discriminated against him because of his sex.

According to Silver Star, Walden was terminated for well-documented performance problems and his transgender status had “no impact” on it. He had been given a written warning in early 4/14 over poor work, conduct with guests, and policy & procedure violations. It requires an employee to find a replacement at least 2 hours prior to a shift, which Walden did not do. It said the software it provides for employees to view their shifts and make arrangements for coverage shows his first attempt to find coverage at 9:43 a.m. for the shift scheduled to start at 10:30 a.m. A reprimand was written that day by food & beverage director Joey Balbas. Silver Star said Walden was suspended for attendance, attitude toward his supervisor, tardiness, and a policy/procedure violation over the incident, and was terminated for insubordination, disrespect, disorderly conduct, and repeated profanity.

Walden established a prima facie case of employment discrimination. He is a transgender and falls under the protected class of sex-gender stereotypes based on recent case law and EEOC guidelines. He had been employed since 4/13. He said Silver Star denied extended leave provided others and terminated him in circumstances where others were not terminated. He asserts that he believes others were treated better in requests for extended leave, and highlighted what he perceived to be a harsh denial when Hiel told him to “not make a big deal” of his transition from female to male.

I find no reasonable cause to believe unlawful discrimination occurred. Walden was unable to show that he was treated differently from others because of his transgender status. Hiel, bar manager Eric Anderson, and Balbas described that its policy is to lay off employees who request extended leave and hire them back on their return. While this may appear unusual, Balbas described it in some detail, noting “bookkeeping” concerns, and Hiel and Anderson described what they believed to be practical aspects. Walden’s behavior at the meeting was unprofessional and provided basis for termination. Walden acknowledged that he was “extremely upset” given the circumstances and timing. Silver Star said he came in with a chip on his shoulder. Hiel commented that his behavior was unlike any he had ever seen in an employment setting. Walden acknowledged repeated use of the “F-bomb.” Balbas fired 5 others in 2014 over behavior and performance, and recently fired an employee over violations of call-off procedures. None of the terminated employees was known by Silver Star to be outside the stereotypical gender status.

Former Gallatin County Deputy Sues To Get Job Back

By Whitney Bermes, Bozeman Chronicle, August 22, 2014

A former Gallatin County sheriff’s deputy is suing the office he used to work for and his former boss to get his old job back.

David Johnston filed a suit in Gallatin County District Court on Wednesday against the sheriff’s office and Sheriff Brian Gootkin.

According to the suit:

Johnston had been a deputy in Gallatin County for 10 years.

On July 9, Johnston and his former girlfriend, Deputy Kelly Munter, were working the same shift. Johnston found an unlocked door at Monforton School and Munter responded as backup.

While on scene, Johnston said he had difficulties with Munter. When he asked her to help clear the school, Munter responded, “(Expletive) you, I’m leaving.”  Johnston then called dispatch to request a different deputy as backup.

After the incident, Johnston considered filing a formal complaint against Munter, but ultimately decided he wanted more time to think about it.

On July 15, Undersheriff Dan Springer and Lt. Jake Wagner told Johnston that a complaint had been filed against him with the human resources department and that he would be placed on paid administrative leave. They gave Johnston no details about the nature of the complaint but told him to expect to be out of work for two to three weeks.
On July 17, Wagner requested that Johnston turn over his recorder and its contents form the evening of July 9. Johnston said he wanted to seek advice from an attorney and make a copy of the recording prior to turning it over to Wagner.

“The sheriff’s office and the Bozeman Police Department have both recently been accused of, and acknowledged, deleting select portions of recorded conversations,” Johnston’s attorney Todd Shea wrote in the complaint.

That same day, accompanied by an attorney, Johnston retuned the recorder to the sheriff’s office and a copy of the recording was made for Johnston.

At that time, Johnston was given a letter of discipline advising him that a disciplinary hearing would be held on July 22 on the charge of insubordination because Johnston didn’t immediately surrender the recorder.

The day after Johnston’s disciplinary hearing, Gootkin fired him for not immediately giving the sheriff’s office his recorder.

Johnston said he has still yet to see a copy of the underlying complaint against him and has never been contacted by the human resources department regarding the complaint.
The lawsuit is requesting that Johnston be reinstated as a deputy and receive back pay, reinstatement of seniority, vacation benefits, insurance, sick leave, and all other benefits deputies receive, as well as attorney fees.

The sheriff’s office has not responded to the suit.

Employee Rights Case Against Firm Heads to Hearing

By Eddie Gregg at The Billings Gazette March 18, 2014

An investigation by the Montana Human Rights Bureau has determined that a Helena employee of CTA Architects has “reasonable cause” to believe the company discriminated against her because of health conditions.

The investigator in the case found the “preponderance of the evidence” supports Michelle Campbell’s claim that CTA “cut her hours and eliminated her medical insurance benefit in March 2013 because she disclosed she was pregnant and recently diagnosed with MS.”

Scott Wilson, president of CTA, said Monday he couldn’t discuss any employee issues, adding: “We do deny any discrimination or any wrongdoing” in the case.

Campbell started working as a full-time administrative assistant in CTA’s Helena office in 2009. The Billings-based company has 18 offices across the U.S. and in Canada.

According to the Human Rights Bureau report, Campbell’s employer reduced her position from 40 hours a week to 16 hours a week shortly after she informed her superiors of her pregnancy and diagnosis.

The report states that CTA officials told an investigator that Campbell’s job was reduced to part time as part of a companywide office restructuring triggered by budgeting problems and a projected shortage of work.

The eight-page report was signed on Jan. 14, which gave the parties involved 30 days to reach a settlement. No settlement was reached, so the case will go before a hearing examiner appointed by the Hearings Bureau of the state Department of Labor and Industry.

Wilson said the hearing hasn’t been scheduled, but he is confident CTA will prevail.
Campbell’s attorney, Todd Shea, of Bozeman, said that his client hasn’t been terminated from her job, but that she no longer works in the Helena office.

Since her diagnosis, Campbell has racked up more than $25,000 in outstanding medical bills, according to Shea.

Shea said Tuesday the amount of damages sought in the case hasn’t been determined.
“She cannot get her recommended treatment and medication for her MS treatment as she has no insurance and very little money after her hours were reduced,” Shea wrote in an email to The Gazette. “This has resulted in the exacerbation of her MS symptoms.”

Settlement Proposed in Bozeman Police Excessive Force Lawsuit

By Whitney Bermes – Bozeman Chronicle Staff Writer

The Bozeman Police Department has reached a settlement in a federal lawsuit that claimed excessive force against two of its officers.

In a proposed settlement, the city will pay $150,000 in the 2009 lawsuit filed by Jesse Soheil Verdi against the city of Bozeman, the Bozeman Police Department, the former police chief, a former deputy chief, a former officers and a current officer.

The settlement is awaiting approval of Utah Bankruptcy Court. Verdi, who filed for bankruptcy in Utah and failed o include the lawsuit as an asset, was removed as the plaintiff from the case and replaced by a bankruptcy trustee.

The original suit claimed negligence, assault, battery, false imprisonment and intentional infliction of emotional distress, among other accusations. The lawsuit stems from a 2007 incident in which Verdi was tased by police. Verdi’s friend called Bozeman police requesting a welfare check on Verdi. Former Sgt. Greg Megargel and current officer Marek Ziegler responded.

Verdi was naked and intoxicated when he answered the door. Officers claimed Verdi suddenly attacked Megargel, and Ziegler tased Verdi in the back. Verdi fell face down onto his deck outside of the apartment, hitting his head and injuring his skull. Verdi’s attorneys say he’s had three brain surgeries to remove excessive blood on his brain and help remedy headaches.

Former police chief Mark Tymrak and former deputy chief Martin Kent were originally named in the suit, but last month U.S. District Court Judge Dana Christensen dismissed all counts against the two.

The settlement will be covered by the Montana Municipal Inter-local Authority, an insurance pool for cities and towns, including Bozeman. City attorney Greg Sullivan said, despite the proposed settlement, the city stands by its officers.

“We still fully believe the officers did everything right that night in 2007,” Sullivan said. “It’s a business decision.”

While Bozeman police Chief Ron Price was not with the department at that time, Price reviewed the officers’ conduct and is “comfortable with everything they did,” Sullivan said.

Ryan Jackson and Todd Shea, the plaintiff’s attorneys, declined to comment until the settlement is approved.