An attorney challenging Benton County's decision to terminate his public defense contract lost his first battle in court Thursday.
Scott Johnson sought an injunction to keep his job while he goes through mediation over the contract dispute. The Kennewick lawyer contended county officials breached his contract by terminating him nine days after he rescinded his resignation.
The county's lawyer, Tim Klashke of Pasco, argued that Judge William Acey shouldn't even hear Johnson's arguments because the proper procedures weren't followed to file the lawsuit against the county.
Acey, who presided over the Benton County Superior Court hearing by phone from a Garfield County courtroom, ruled that he did have the power to issue an injunction even though the issue of the rescinded resignation should be handled through mediation, then binding arbitration, if mediation fails to resolve the issue.
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Still, he denied Johnson's motion, saying he had a hard time providing relief from the court to someone "when they allegedly are the author of their own misfortune."
"I find that the plaintiff created the emergency requiring the court to consider the injunctive relief," the judge said. "I'm not at all comfortable awarding any injunctive relief when he created the problem."
Acey -- of the Hells Canyon Circuit Court covering Asotin, Columbia and Garfield counties -- also said that the issue over the validity of Johnson's attempt to rescind his resignation clearly is a contract dispute, and the contract outlines dispute resolution procedures.
Johnson told the Herald after court that he is appealing Acey's ruling, and intends to ask the state Court of Appeals for an expedited review.
Johnson is one of six defense attorneys who resigned, effective Sept. 5, from their contracts to represent poor court-appointed defendants in Benton County Superior Court. Four of the lawyers -- Dan Arnold, Kevin Holt, Gary Metro and Johnson -- later rescinded their resignations because county officials had not officially accepted the notices.
Sal Mendoza Jr. and Larry Zeigler did not attempt to take back their notices.
The resignations stemmed from a breakdown in negotiations with the county over compensation and new caseload restrictions mandated by the state Supreme Court.
On Sept. 25, the county commissioners approved resolutions accepting the six resignations, but it's not clear if they knew the four attorneys had taken back the resignations. Eric Hsu, the county's indigent defense coordinator, acknowledged receiving the notice to rescind the resignation but has not said if that was presented to the commissioners.
Johnson said county officials are selectively choosing to ignore the notice.
"They're doing the ostrich move, sticking their head in the sand and saying, 'We're going to pretend he didn't do that,' " Johnson said. "They attached my resignation to the resolution, but for reasons I can't explain, they don't attach my rescinded" notice.
Johnson, who has had a defense contract for three years and spent 11 years as a deputy prosecutor for the county, then filed his case against the county. The other attorneys are not included in Johnson's legal action, but Holt and Arnold were in court Thursday for the hearing.
Hsu also was in court.
Before Acey issued his ruling, Johnson argued that this case is more than just a contract case because of the bigger public policy issue that it creates.
"What we're talking about is the effective representation of indigent clients in Benton County," he said. "Benton County has turned their back on that."
He said the county's main concern is about doing what it can to save money, "but it can't be done on the backs of indigent defendants."
Johnson, who has 45 open indigent felony cases, said the contract issue also has left his clients concerned about getting effective representation and feeling undermined by the county's actions.
"This has thrown the whole system into peril," Johnson said. "The county's actions, which are just inexplicable in this case, leave the whole system -- especially the rights of indigent defendants -- with no certainty whatsoever."
Johnson said he hopes to resolve the contract dispute through mediation or arbitration, but said until then, "the court needs to freeze everything where it's at to protect that certainty." Mediation is scheduled for early November.
Klashke, the county's attorney, did not respond to Johnson's arguments in court after asking Acey to rule first on whether the court had jurisdiction. He also asked that Johnson be required to pay for the county's legal fees, but that was denied.
In court documents filed in response to Johnson's motion, Klashke argued that the county didn't terminate Johnson, but rather simply accepted the resignation that he submitted.
He also said there would be a "significant hardship" on the county if Johnson was allowed to continue to be appointed to indigent cases until the issue was resolved.
If an arbitrator eventually ruled against Johnson, the county would have to abruptly reassign his cases, causing confusion to his clients and extra expense to the county, Klashke wrote.
Hsu previously told the Herald that he was working with the defense attorneys to make the transition smooth by reassigning cases that would not be resolved before January. He also said he was hoping to get new public defenders in court by November.
On Wednesday, Hsu declined to provide details about the attorneys because the contracts had not been finalized.
Kennewick lawyer Ryan Swinburnson, however, confirmed to the Herald that indigent defense contracts have been offered to him and his law partner, Catherine Harkins. Swinburnson said they were just waiting to sign the contracts.
The Herald also learned from multiple sources that three other attorneys have been offered contracts in Benton County Superior Court: Karla Kane and Shelley Ajax, who both currently have public defense contracts in Franklin County Superior Court; and Jennifer Azure of Kennewick.
-- Paula Horton: 582-1556; email@example.com