Benton County public defender files injunction to keep contract

By Paula Horton and Kristin M. Kraemer, Tri-City HeraldSeptember 29, 2012 

KENNEWICK, Wash. -- A Benton County public defense attorney who tried to rescind his resignation during a contract dispute has filed for an injunction to keep his job.

Six of the county's nine public defenders recently submitted letters of resignation following a stalemate in negotiations about new caseload restrictions mandated by the state Supreme Court.

Four of the attorneys later rescinded their resignations, but it's not clear if Benton County commissioners knew that when they voted this week to accept the resignations of Dan Arnold, Kevin Holt, Scott Johnson, Sal Mendoza Jr., Gary Metro and Larry Zeigler.

Johnson -- who's had a defense contract for three years with Benton County Superior Court and was a county prosecutor for 11 years before that -- filed Friday for a temporary restraining order against the county.

Johnson says the county is in breach of his contract by terminating him since he took the resignation back before the county took official action. His contract to represent poor defendants was to continue through 2013.

This week, the defense contract dispute started to cause confusion in the courtroom when Superior Court Judge Craig Matheson expressed some concerns about whether the current attorneys could be assigned new clients and if the defendants' rights are being protected.

Arnold told the judge he was confused about how to proceed with his cases after learning the day before that his contract was terminated. "This isn't making sense to me," Arnold said. "Nothing is making sense with me about the Office of Public Defense."

Johnson's 87-page injunction, which includes email exchanges with a county official and other lawyers, was filed in Yakima County Superior Court.

Holt, Arnold and Metro also withdrew their resignations, saying that along with Johnson they wanted to try to resolve the contract issues with the county while still representing court-appointed clients.

They are not included in Johnson's legal action against Benton County.

Before the injunction, Johnson emailed Eric Hsu, the indigent defense coordinator, questioning whether the resolution was passed by mistake and asking that it be fixed.

"Eric, this is outrageous and you know it. There has been no good faith on behalf of the Office of Public Defense and Benton County in this matter," Johnson wrote in a Wednesday email. "You should be ashamed of yourselves. As much as Benton County may not like it, you and they have to live by the contract and relevant law."

Hsu was out of town at a conference Friday and could not be reached.

The three Benton County commissioners, Jim Beaver, Shon Small and Leo Bowman, did not return calls Friday about the defense attorney situation.

Beaver briefly addressed the issue Thursday with the Herald's editorial board and said the situation could prompt the county to consider creating a public defender's office with full-time employees, similar to the county prosecutor's office.

"It's all messed up," he said. "It all revolves around money."

There are nine lawyers with public defense contracts in Benton County Superior Court. They get paid $82,105 a year and are limited to taking 150 cases.

The resolutions passed Tuesday by the county commissioners make the six resignations effective Dec. 5.

The six public defenders submitted their resignations effective Sept. 5 after Hsu put out a "Request for Qualifications" seeking attorneys to apply for new contracts.

Johnson and Arnold withdrew their resignations via email on Sept. 16. Holt and Metro's letters were submitted by the following day.

The attorneys wrote that since Benton County had not "formally or informally" accepted their resignations, the emails served as notice that they were rescinding their resignations.

Hsu acknowledged receiving "the communications" from the lawyers, but still moved forward with terminating their contracts, according to court documents filed by Johnson.

Hsu suggested, however, in an email to Johnson that he apply for one of the new positions since it appeared Johnson still was interested in being a public defender.

The current contractors can be appointed cases through Nov. 4, and will be responsible for trying to complete their assigned cases by Jan. 4. Cases that aren't resolved by then will be assigned to a new attorney.

Benton County's presiding criminal judge said he's sorry to hear that six experienced public defenders quit, but hopes the county will work things out so some of the lawyers can keep their contracts.

"We're losing some real talent there and a lot of experience and very dedicated public defenders, so I hate to see that," Matheson said Friday.

Matheson said he wasn't fully aware of the wranglings between the defense attorneys and the county until new information came to light this week.

"When it came up I was a little caught short because I think that was a fairly recent development that we're definitely moving to get some new attorneys on board," he said.

The judges have not been involved in the contract negotiations because it's a matter for the executive branch of the county, not the judicial branch. Matheson said it's the county's job and he's not going to tell them what to do.

"I would hope they'd reconsider, but it's up to them," he said.

The judges do, however, have some input in the hiring.

"We definitely have a duty to make sure that the attorneys coming before us are competent," Matheson said. "We wouldn't appoint somebody who was not. So we have a secondary review, but the actual contracts are done by the county commissioners."

The court recognizes there's always a transition when a public defender leaves the indigent panel, and some complex cases that likely won't be resolved before the new year are being handed over to other attorneys now.

Matheson said losing the six attorneys at once inevitably will cause a slow down as the new defenders get up to speed. Holt, Johnson, Mendoza, Metro, Arnold and Zeigler have more than 100 years of legal experience combined.

"I think there are a number of those guys quite dedicated to the concept of doing a good job for the accused," Matheson said.

* Paula Horton: 509-582-1556; phorton@tricityherald.com

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