Emerson sticks to her lawsuit against Island County
By JESSIE STENSLAND
Whidbey News Times Assistant editor
June 13, 2011 · Updated 1:59 PM
Island County Commissioner Kelly Emerson hasn’t given up her lawsuit against her own county and defending itself will likely cost the county thousands of dollars more.
The attorney representing Commissioner Emerson and her husband, Kenneth, filed a motion for reconsideration Monday, asking Island County Superior Court Judge Alan Hancock to rethink his dismissal of the lawsuit last month.
“It just seemed like the prudent thing to do,” Commissioner Emerson said Wednesday. “We want to give the judge a little more information that we unfortunately didn’t get in the initial hearing.”
The couple filed a wide-ranging lawsuit last November, just before Emerson won the election, alleging that county officials trespassed and violated their constitutional rights when a stop-work order was slapped on a project that Kenneth Emerson was building without a permit.
This week, Commissioner Emerson said she and her husband consulted with a second attorney, who she wouldn’t name, and decided to ask the judge to reconsider. She said they haven’t decided yet whether to also appeal Hancock’s decision to a higher court.
There’s a lot of money at stake. So far, defending against the Emersons’ lawsuit has cost Island County taxpayers $27,914 in lawyer fees, according to Betty Kemp, the county’s risk management director. The motion for reconsideration and any subsequent appeal will increase that amount. The county has a $50,000 deductible under the risk pool.
On the other side, the county assessed the Emersons $37,000 in January for violations of the county building code, critical areas ordinance and the zoning ordinance. The fines include a $500-a-day penalty for violations of the critical areas ordinance. The Emersons didn’t respond to the planning department’s supplemental enforcement order or appeal it to the hearing examiner, which legally is the only way it could have been appealed.
County officials haven’t decided yet whether to send out another order assessing the Emersons for the $500-a-day fine from January until now. If a new order was sent June 8, for example, the Emersons could be assessed a total of $114,500 for fines accumulated since last fall. They would then have 14 days to appeal to the county’s hearings examiner. If they continued to ignore the orders, the county could put a lien on their property or take other action to recover the fines.
It’s unclear who will decide whether to continue assessing the Emersons. Normally, the county planning director or the code enforcement officer would make the call, but there may be a question of conflicts of interest since the Emersons named the planning director and another planning department employee as defendants in the lawsuit.
Emerson’s two fellow commissioners held an executive session Monday to discuss the lawsuit. Emerson said she was annoyed that Commissioner Angie Homola announced publicly that Emerson wasn’t allowed to attend because of a conflict of interest.
“It really disappointed me not to be able to spend all the time I can with them,” Emerson said sarcastically.
The Emersons’ attorney, Stephen Pidgeon of Everett, noted the motion for reconsideration for oral arguments before Judge Hancock on June 27. Hancock, however, canceled the hearing and ruled that he would only accept written briefs on the issue.
The attorney representing the county, Mark Johnsen of Seattle, said the motion for reconsideration basically rehashes issues that Hancock already ruled on.
“I think the judge’s ruling was very thorough,” he said. “I don’t see anything that would warrant reconsideration of Judge Hancock’s decision.”
In fact, he said, the motion for reconsideration revives claims that Pidgeon himself admitted in court were without merit. During the hearing on summary judgment, Pidgeon agreed to voluntarily dismiss most of the claims in the lawsuit, including claims of due process violations.
The motion for consideration asks Hancock to reverse not only his decision to grant summary judgment dismissing the lawsuit, but also his decision to deny the continuance that Pidgeon had requested. Among the many reasons Hancock cited for denying the continuance is that Pidgeon wasn’t specific about what further information could be gained through a continuance.
In his new motion, Pidgeon again argues that the continuance should have been granted so that he could complete the deposition of Planning Director Bob Pederson. He writes that Pederson specifically refused to answer a question about his political affiliation.
Also, the attorney again states that a mental health counselor in Coupeville, who doesn’t work for the county, has insider knowledge about communications sent within the planning department.
Pidgeon again asserts that Island County code “has a strict search warrant requirement for inspections,” although Hancock has already pointed out that he was misreading or misunderstanding the code.
Hancock filed the final order of dismissal with prejudice June 7. “With prejudice” means the Emersons are not allowed to re-file the lawsuit on the same claims in the future, though the judge agreed to consider the motion for reconsideration.
Contact Whidbey News Times Assistant editor Jessie Stensland at email@example.com or 360.675.6611 ext. 5056.