Emerson lawyer tapped to pay Island County’s costs
By JESSIE STENSLAND
Whidbey News Times Assistant editor
July 15, 2011 · 2:53 PM
The attorney representing Island County Commissioner Kelly Emerson and her husband in their lawsuit against the county gave such poor advice that he has to fund a portion of the opposing attorney’s fees, a judge ruled.
Superior Court Judge Alan Hancock sanctioned the attorney, Stephen Pidgeon of Everett, in a decision he filed Thursday along with his answer to the Emersons’ motion for reconsideration of his dismissal of their lawsuit.
Hancock denied the motion for reconsideration in no uncertain terms. That means the Emersons’ lawsuit is dead unless they decide to appeal to a higher court. Kelly Emerson said Thursday that she and her husband have a new attorney and haven’t yet decided if they will appeal.
She doesn’t regret bringing the lawsuit against her own county.
“It’s been an education,” she said. “I got to see the process from a different perspective than most elected officials ever do.”
In his decision regarding attorney fees, Hancock ruled that the Emersons do not have to pay any of the county’s costs for defending the lawsuit because there was no evidence that they knew it was frivolous. He notes that they are not attorneys, but relied on legal advice which he characterized as “bad” and “erroneous.”
Instead, Hancock decided that Pidgeon should pay, but only for the cost of defending against the two claims which were most frivolous and baseless. Specifically, the lawsuit claimed that former Commissioner John Dean defamed Kelly Emerson and violated the Consumer Protection Act by sending out a mailer during last year’s election.
Hancock wrote that Pidgeon violated the Washington State Rules for Superior Court by pursing claims that he knew or should have known were frivolous.
Mark Johnsen, the attorney for the county, said it’s unusual for an attorney to be forced to pay the opposing attorney fees.
“It doesn’t happen very often, but it’s allowed,” he said, adding that a court rule specifically addresses the issue.
Nevertheless, the Emersons didn’t escape criticism from the judge.
“It is difficult to understand how anyone with any familiarity with the Constitution could have believed in good faith that he or she could bring an action for defamation under the circumstances of this case,” Hancock wrote.
The criticism may be especially biting since Emerson, a Republican and Tea Party member, claims to be a champion of the Constitution.
The Emersons also made a number of other claims in their wide-ranging lawsuit, which was filed last November. The lawsuit named the county, two planning department employees and Dean as defendants. The lawsuit claimed that the defendants trespassed and violated the couple’s civil rights, constitutional rights and due process rights.
Hancock ruled that these other claims were without merit, but dealt with issues of “first impression” and that higher courts have established a “strong policy against awards of attorney fees in federal civil rights cases.” As a result, he declined to award attorney fees for the cost of defending against these claims.
Hancock wrote Johnsen will have to figure out how much of his time was spent defending against the defamation and Consumer Protection Act. So far, the county has racked up about $36,000 in attorney fees, so Pidgeon will have to pay some portion of that.
In an interview, Emerson admitted that Pidgeon is no longer her attorney and that he may not have been the right person for the job.
“We were dealing in an area of law that was not in his expertise,” she said.
Kelly and Kenneth Emerson filed their lawsuit Nov. 1, 2010, the day before Kelly Emerson won the election. It revolved around a home-expansion project that Kenneth was building at their Camano Island home without a permit, as well as a campaign mailer that criticized Kelly for ignoring county laws. The lawsuit claimed the county unlawfully slapped a stop-work order on the project and that Dean defamed his political rival.
Besides the lawsuit, there’s also planning department orders that haven’t been resolved. The county already assessed the Emersons $37,000 in January for violations of the county building code, critical areas ordinance and the zoning ordinance. The Emersons filed an injunction to prevent the county from collecting or charging addition assessments, but Hancock ruled that they lost their chance to appeal it long ago.
The Emersons had ignored both a notice of violation and an enforcement order that were sent by the planning department last year. But Emerson said the wetland report, required by the county, is now complete and the hydrogeologist found there’s no wetland in the couple’s backyard. She said she will be submitting the report, along with a letter, to the planning department shortly.
Contact Whidbey News Times Assistant editor Jessie Stensland at email@example.com or 360.675.6611 ext. 5056.