Island County wants Emerson to pay its lawyer fees
By JESSIE STENSLAND
Whidbey News Times Assistant editor
June 24, 2011 · Updated 2:50 PM
Island County Commissioner Kelly Emerson’s legal battle against Island County may become even more expensive for her.
The attorney representing Island County is asking a judge to force Emerson and her husband to pay the county’s cost of defending against the couple’s lawsuit. The county’s current tab for legal defense is $35,915.
Emerson said she will fight the county’s request for attorney fees and costs, which was filed in Island County Superior Court on June 16. She said it’s simply unfair.
“I wouldn’t ask them to give up money they worked hard for without justification,” she said. “This is all about a violation of critical areas that we don’t even have.”
Island County Superior Court Judge Alan Hancock dismissed the Emerson’s lawsuit against the county last month. The Emersons, however, filed a motion asking the judge to reconsider.
Mark Johnsen, the county’s attorney, explained that state law allows defendants in a lawsuit to recover attorneys fees if a lawsuit is deemed to be frivolous or if it’s not grounded in fact or law.
In his motion, Johnsen writes that it’s “painfully obvious” that the case was grounded in neither.
“Further, it is clear,” he wrote, “that the lawsuit was in large part motivated by a desire to punish and harass Kelly Emerson’s campaign opponent, and the county employees who she falsely alleged had conspired with him.”
In addition, Johnsen said he’s arguing for fees under a federal civil rights law which allows attorneys fees to be awarded if a lawsuit is “frivolous, unreasonable or without foundation.”
Johnsen said the decision by the Emersons’ attorney to voluntarily dismiss the bulk of the lawsuit during the summary judgment hearing supports the notion that it was frivolous.
“If it was without merit, they shouldn’t have filed the lawsuit or they should have dismissed it promptly, not waited until after all the fees have been incurred,” he said.
According to an affidavit, Johnsen worked 142 hours on the case at an initial rate of $230 an hour, which jumped to $255 in February. Johnsen said he charged the county well below his standard fee.
Johnsen also submitted a brief response to the Emersons’ motion for reconsideration. He explained that there’s really nothing new to argue and that the judge’s decision to dismiss was correct.
The couple filed their lawsuit last November, just before Emerson won the election. It claimed county officials trespassed and violated the Emersons’ constitutional rights when a stop-work order was slapped on a home-expansion project that Kenneth Emerson was building without a permit. The lawsuit also named former Commissioner John Dean and claimed he defamed Emerson in a campaign flyer.
Yet the Emersons still haven’t contacted the planning department about their ongoing code violations. The county has already assessed the Emersons $37,000 in January for violations of the county building code, critical areas ordinance and the zoning ordinance.
“That was my ‘welcome-to-office present,’” Emerson said.
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 they do, the Emersons could face more than $100,000 in fines and fees.
Likewise, Emerson said she and her husband haven’t decided yet whether they plan to challenge the judge’s dismissal at the appeals court level, but she did say she and her husband have a new attorney working on the issue. They hired Justin Park, an attorney from the Bellevue firm Romero Park & Wiggins.Contact Whidbey News Times Assistant editor Jessie Stensland at firstname.lastname@example.org or 360.675.6611 ext. 5056.