Judge dismisses Emerson lawsuit against Island County
May 28, 2011 · Updated 1:46 PM
A one-of-a-kind lawsuit that Island County Commissioner Kelly Emerson and her husband brought against the county, two county employees and a former commissioner was dismissed Friday.
The only issues remaining to be resolved are whether the Emersons will appeal and how much the county planning department will fine them.
Friday afternoon, Kelly Emerson said she plans to confer with her current attorney and another lawyer before deciding whether to appeal to a higher court. She said the decision by Island County Superior Court Judge Alan Hancock wasn’t what she had hoped for and goes against what she feels are her constitutional rights.
“It doesn’t seem like we’re living under the same Constitution I was born under,” she said.
Technically, the Emersons could face fines of more than $100,000 under a supplemental enforcement order that Andrew Hicks, the county’s code enforcement officer, sent them in January for violations of county building codes and critical areas ordinances. They didn’t respond to the order, which included a $500-a-day fine.
Hicks previously said he was waiting for the resolution of the lawsuit before taking any further steps against the Emersons, which could include another enforcement order or even a lien. Negotiating a settlement of the fines with the Emersons will be touchy for county staff members who have plenty of potential conflicts of interest; Emerson, as a commissioner, is essentially their boss, but also sued them.
“We’re in uncharted territory,” Prosecutor Greg Banks said Friday.
Hancock granted the county’s motion for summary judgment and dismissed the lawsuit in a 19-page decision. He wrote at one point that “none of the Emersons’ claims have any merit.”
Hancock chopped apart legal arguments made by the Emersons and their attorney, Stephen Pidgeon of Everett, and even tactfully criticized their legal maneuvering. Hancock noted that during the hearing on the summary judgment motion, Pidgeon said he was abandoning all of the federal claims except alleged violations of the Fourth Amendment, which is the right against unreasonable search and seizure.
“Curiously, the Emersons do not make any claim under the Fourth Amendment in their amended complaint, and, in fact, never even refer to the Fourth Amendment,” Hancock wrote.
Commissioner Emerson and her husband, Kenneth, filed their wide-ranging lawsuit Nov. 1, 2010, against Planning Director Bob Pederson, former Commissioner John Dean and building inspector Ron Slechta. They later amended it to include Island County and added an injunction request to prevent the county from fining them any further.
The lawsuit centered on a sunroom that Kenneth Emerson started building without a permit last fall. A county official went to the property and issued a stop-work order. Kelly Emerson, a Republican, was in the midst of a campaign against incumbent Commissioner John Dean, a Democrat, and accused him and county officials of being politically motivated.
Mark Johnsen, the attorney representing the county, previously said that he’s never heard of another case in which a commissioner sued his or her own county.
Pidgeon agreed to drop many of the claims, including violations of due process, defamation and the Consumer Protection Act, during the hearing on summary judgment. Hancock was left to consider the Fourth Amendment violation, as well as a related claim of trespassing. He also ruled against the injunction, though he made it clear during the hearing that the request for injunction had no merit because the Emersons failed to appeal appropriately.
Hancock laid out the “undisputed facts” of the case. The Emersons own a home on Camano Island and applied for a building permit in 2008 to construct a garage. A member of the planning department issued the permit, but also noted on the permit that there’s a wetland on the property and that any further development needed to be approved by the planning department. The Emersons never appealed the permit.
Between 2008 and 2010, the Emersons added a number of improvements to their property without applying for permits or notifying the county. In August 2010, Emerson started building a sunroom without a permit. A neighbor emailed Dean, complaining about the unpermitted project. Dean forwarded the email to Pederson, who sent Slechta to inspect the property.
Slechta knocked on the door, and getting no answer, went around to the back and placed a stop-work order on the project. On Nov. 1, the planning department issued an initial enforcement order, finding the Emersons to be in violation of the county code by constructing the sunroom without a permit, as well as a deck and a retaining wall within a stream buffer.
During the court hearing earlier this month, Pidgeon argued that Slechta violated the Emersons’ Fourth Amendment rights by entering their property without a permit. But Hancock, citing numerous cases, ruled that under the “open view doctrine” the building inspector had a right to enter the property to check on suspected code violations.
Hancock also threw out the trespassing claim. He wrote that the Emersons’ property was not damaged by Slechta’s stop-work order, so “their trespass claim must fall.” Also the entry was privileged, he wrote, because the authority was created by legislative action.
“There are no genuine issues of material fact, and the defendants are entitled to dismissal of the Emersons’ claims as a matter of law,” Hancock concluded.