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Island County judge skeptical of Emerson lawsuit

Kenneth Emerson, at left, attorney Stephen Pidgeon and Island County Commissioner Kelly Emerson discuss their lawsuit outside of a hearing at Island County Superior Court. - Jessie Stensland / Whidbey News-Times
Kenneth Emerson, at left, attorney Stephen Pidgeon and Island County Commissioner Kelly Emerson discuss their lawsuit outside of a hearing at Island County Superior Court.
— image credit: Jessie Stensland / Whidbey News-Times

Things did not go well Wednesday afternoon for the attorney representing Island County Commissioner Kelly Emerson and her husband.

Superior Court Judge Alan Hancock listened to arguments over a motion seeking to dismiss the Emersons’ lawsuit against the county. The couple’s attorney, Stephen Pidgeon of Everett, argued ardently about Fourth Amendment rights, but his legal analysis didn’t seem to have any sway with the judge.

Hancok ruled against Pidgeon’s motion for a continuance, criticized Pidgeon for not following basic court rules, and appeared incredulous as he grilled the attorney about the substance of the lawsuit.

“Are you really making that argument?” Hancock asked Pidgeon various times and in various ways.

Pidgeon, under penetrating questioning by the judge, announced that he was abandoning the bulk of the lawsuit. The only issue left for Hancock to decide is an allegation that the county violated the couple’s Fourth Amendment rights with an illegal search and seizure.

Hancock said he would file a written decision within the next two weeks on whether this issue can continue to be litigated.

It appears that the Emersons may be on the hook for at least $37,000 in fines for violations of the county building code, critical areas ordinances and zoning ordinance. They sought an injunction to prevent the county from collecting or continuing the fines, but Hancock made it clear that the county’s enforcement order was intact because the Emersons hadn’t challenged it appropriately.

Hancock emphasized that the state Supreme Court has ruled such orders couldn’t be undone, even when enacted illegally, if not appealed in a timely and correct manner.

“The enforcement order stands,” he said. “... It’s a valid and enforceable order.”

The Emersons filed their lawsuit Nov. 1, 2010, against former Commissioner John Dean, Planning Director Bob Pederson and building inspector Ron Slechta, alleging defamation, trespass, violation of the Consumer Protection Act, violations of due process and an illegal search. It was later amended to include Island County as a defendant and an injunction request was added.

The litigation surrounds a sunroom Kenneth Emerson started building onto the couple’s Camano Island house without a permit last year. The issue came to light during the campaign season; Kelly Emerson, a Tea Party Republican, ran against and beat Dean, the Democratic incumbent commissioner. The Emersons claim that Dean and the county employees improperly pursued action, including a stop-work order, against them for political purposes.

Last month, the county’s attorney filed a motion for summary judgment, asking the judge to dismiss the lawsuit. In response, Pidgeon filed a motion, ultimately unsuccessfully, to delay the hearing on summary judgment.

Wednesday, Commissioner Emerson appeared in court with her husband and a supporter. On the other side of the aisle sat Dean, Pederson, Island County Prosecutor Greg Banks, Commissioner Angie Homola, a couple of environmental activists and a few others.

The hearing started out badly for the Emersons and never got much better. Pidgeon had made a motion to continue the hearing in order to complete a deposition, depose another witness and give a hydrogeologist time to complete a report.

Hancock questioned Pidgeon about what specific evidence he would be able to gain with a continuance and how it would be relevant to the motion for summary judgment. When Pidgeon couldn’t offer anything specific, Hancock ruled against the motion to dismiss, citing a dozen higher court rulings on the issue.

Hancock apparently wasn’t happy that Pidgeon neglected to file anything else in response to the summary judgment. Hancock said Pidgeon had a duty to file a response and submit all the relevant evidence he has so far, even if he’s asking for a continuance that may or may not be granted.

“At some point, people have to take personal responsibility for complying with court rules,” the judge said.

Mark Johnsen, the attorney for the county, argued that there’s no legal substance to any of the allegations in the lawsuit and that the judge should summarily dismiss it.

“There’s just no reason for us to be here,” he said.

Pidgeon was handicapped at the hearing since he hadn’t submitted any memoranda or evidence in response to the motion for summary judgment and seemed surprised when asked to make oral arguments.

Nevertheless, he argued his points vigorously and didn’t shy away from criticizing county officials for “slipshod activity” and allegedly violating the Emersons’ rights. He argued that a county employee illegally went onto the Emersons’ property years ago and made a wetland determination, even though he wasn’t qualified to do such under state law.

Moreover, Pidgeon argued that the building inspector illegally went into the Emersons’ backyard last fall, in violation of the Fourth Amendment and at the urging of politically motivated officials.

“Does the Fourth Amendment have any meaning anymore?” he asked rhetorically.

While he held firm on the constitutional argument, Pidgeon gave up on the other elements of the lawsuit. Hancock, for example, questioned him about the accusation that Dean had defamed Emerson with a campaign mailer, which featured an older couple reading a phony newspaper with the headline, “Emerson Ignores County Law.”

Hancock asked how that could be defamatory when the headline is true; he pointed out that Ken Emerson admitted in a deposition that he knowingly built without a permit. After arguing for awhile, Pidgeon said he were abandoning the defamatory and Consumer Protection claim.

After the hearing, Pidgeon said he respects Judge Hancock and holds out hope that the judge will side with him on the constitutional issue.

Commissioner Emerson said she doesn’t regret filing the lawsuit and doesn’t rule out a possible appeal if the judgment doesn’t go her way.

“It’s an extremely, extremely important issue for us,” she said. “I believe strongly in constitutional rights for people.”

 

 

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