Hart et al v. Weyrich et al, No. 2:2023cv00884 - Document 29 (W.D. Wash. 2023)
Court Description: ORDER denying Plaintiffs' 9 Motion for Contempt and 27 Motion to Disqualify. Signed by Judge Marsha J. Pechman. (SB) (cc: Plaintiff via USPS)
Download PDF
<![CDATA[
Hart et al v. Weyrich et al Doc. 29 Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 1 of 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 CODY HART, et al., CASE NO. C23-884 MJP Plaintiffs, 11 v. 12 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY RICHARD WEYRICH, et al., 13 Defendants. 14 15 16 This matter comes before the Court on Plaintiffs’ Motion for Contempt (Dkt. No. 9) and 17 Motion to Disqualify (Dkt. Nos. 27). Having reviewed the Motions, Defendants’ Opposition to 18 the Motion for Contempt (Dkt. No. 14), and all supporting materials, the Court DENIES the 19 Motions. 20 21 BACKGROUND A. Motion for Contempt 22 In their Motion for Contempt, Plaintiffs seek an “order of criminal contempt, pursuant to 23 Federal Rule of Civil Procedure 42(b)” for alleged violations of “18 U.S.C. § 1001, and 18 U.S. 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 1 Dockets.Justia.com Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 2 of 6 1 Code § 402.” (Mot. for Contempt at 1 (Dkt. No. 9).) Plaintiffs believe that Defendants’ counsel, 2 Deputy Skagit County Prosecutor, Erik Pedersen, lacks authority to represent Defendants. They 3 believe that the Skagit County Prosecutor, Richard Weyrich, and Pedersen failed to obtain and 4 deposit a public bond before January 1, 2023 and that this caused Weyrich to vacate his office. 5 Plaintiffs then argue that if Weyrich was no longer in office, he could not appoint Pedersen as 6 counsel and that Pedersen therefore lacks authority to represent Defendants. Plaintiffs have submitted a Request for Judicial Notice and cite to its exhibits in support 7 8 of the Motion for Contempt. (See Memorandum ISO Mot. for Contempt (Dkt. No. 10), and 9 Plaintiffs’ Request for Judicial Notice (RJN) (Dkt. No. 15).) And with their Complaint, Plaintiffs 10 have filed a copy of Weyrich’s public bond, which was obtained on December 27, 2022 and filed 11 with Skagit County on February 1, 2023. (Compl. Ex. 6 (Dkt. No. 1).) 12 B. Motions to Disqualify 13 Plaintiffs seek to disqualify the Skagit County Prosecuting Attorney on the theory that he 14 has a conflict of interest under Washington Rule of Professional Conduct 1.7 that prevents them 15 from representing Defendants. Plaintiffs argue that the Prosecuting Attorney cannot represent 16 Defendants because doing so is outside of the Prosecuting Attorney’s powers and would be a 17 misuse of public funds, particularly since they believe the County did not timely authorize the 18 representation. 19 20 ANALYSIS A. Motion for Contempt 21 There are several problems with Plaintiffs’ Motion for Contempt. First, Plaintiffs invoke 22 two sections of Title 18 of the United States Code, which are federal criminal statutes. Plaintiffs 23 lack standing to enforce federal criminal laws. Allen v. Gold Country Casino, 464 F.3d 1044, 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 2 Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 3 of 6 1 1048 (9th Cir. 2006) (no private right of action for violation of criminal statutes). Second, even if 2 Plaintiffs did have standing, they have failed to show any criminal action. There is no merit to 3 Plaintiffs’ theory that Weyrich lacked a bond and therefore vacated his office. Weyrich obtained 4 a bond before January 1, 2023, though he deposited it with the County on February 1, 2023. The 5 fact that the bond was deposited after January 1, 2023, does not mean he vacated his office under 6 RCW 42.12.010(6). As the Washington Supreme Court has held, not even the failure to obtain a 7 bond supports a finding of vacancy unless there is also evidence of “intended to violate the law 8 or wilfully [sic] failed to perform his duty to secure a bond.” Recall of Sandhaus, 134 Wn.2d 9 662, 670 (1998). Here, the bond was obtained and there is no evidence that Weyrich intentionally 10 or willfully violated the requirement to deposit them before January 1, 2023. This undermines 11 Plaintiffs’ claim that Weyrich violated any provision RCW Title 42 or vacated his office. His 12 appointment of Pedersen as deputy is not invalid. Third, Pedersen, as a deputy prosecutor, was 13 not required to obtain a public bond under RCW 36.16.050 and -.060 because the bonding 14 requirement applies only to officers. “A deputy county clerk is not a county officer.” Nelson v. 15 Troy, 11 Wash. 435, 442 (1895); see also Lee ex rel. Office of Grant Cnty. Prosecuting Attorney 16 v. Jasman, 183 Wn. App. 27, 48 (2014). Accordingly, this theory lacks merit. The Court finds no merit in Plaintiffs’ Motion for Contempt, and DENIES it. 17 18 19 B. Motions to Disqualify Washington courts are reluctant to disqualify an attorney absent compelling 20 circumstances. Pub. Util. Dist. No. 1 of Klickitat Co. v. Int’l Ins. Co., 124 Wn.2d 789, 812, 881 21 P.2d 1020 (1994). Disqualification is considered “a drastic measure which courts should hesitate 22 to impose except when absolutely necessary.” United States ex rel. Lord Elec. Co., Inc. v. Titan 23 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 3 Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 4 of 6 1 Pac. Constr. Corp., 637 F. Supp. 1556, 1562 (W.D. Wash. 1986) (citing Freeman v. Chicago 2 Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982)). 3 This Court’s Local Civil Rule 83.3 (a)(2) directs that “attorneys appearing in this district 4 shall . . . comply with . . . the Washington Rules of Professional Conduct (RPC).” Rule 1.7 5 states, in full: 6 7 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 8 9 10 11 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures). 12 13 14 15 16 17 18 RPC 1.7. Plaintiffs argue that the Skagit County Prosecuting Attorney cannot represent Defendants 19 because doing so is prohibited by law and therefore in violation of RPC 1.7(b)(2). (Mot. to 20 Disqualify at 4 (Dkt. No. 33).) The argument misses the mark. RPC 1.7 deals with conflicts of 21 interest, and Plaintiffs have not identified any conflict of interest. This is fatal to their motion. 22 Moreover, Plaintiffs have not shown how the representation is prohibited by law. Skagit County 23 Code permits Skagit County to “provide legal services for the defense of any of its officers, 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 4 Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 5 of 6 1 employees or volunteers when a lawsuit against them arises out of an official act or omission if 2 the requirements of this section are met.” Skagit County Code (SCC) 2.20.030(1). And the 3 defense may be provided in cases such as the one Plaintiffs have filed, which arise out of “acts or 4 omissions occurring during their tenure of office or employment.” SCC 2.20.030(2). Plaintiffs 5 suggest that the defense is improper because the Skagit County Code forbids the County to 6 “defend a charge of official misconduct, willful misconduct or to defend the right to hold office.” 7 SCC 2.20.030(2). But Plaintiffs’ complaint does not constitute a charge of official or willful 8 misconduct or the right to hold office. Though undefined in the Skagit County Code, the term 9 “charge” is generally understood to mean “[a] formal accusation of an offense as a preliminary 10 step to prosecution.” CHARGE, Black's Law Dictionary (11th ed. 2019). Plaintiffs’ complaint 11 does not constitute a preliminary step to prosecution, given that Plaintiffs are citizens without the 12 authority to enforce the criminal code provisions they have identified. And even if their 13 complaint could be considered a “charge,” it does not contain colorable allegations of official or 14 willful misconduct or that Defendants are “defend[ing] the right to hold office,” as the Court has 15 explained in its separate Order of Dismissal. 16 The Court also finds no merit in Plaintiffs’ argument that it should disqualify the Skagit 17 County Prosecuting Attorney for not obtaining County approval to represent the Defendants. 18 County Commissioners cannot unilaterally hire another attorney because “county boards of 19 commissioners do not possess statutory authority to appoint outside counsel over the objection of 20 an able and willing prosecuting attorney.” State ex rel. Banks v. Drummond, 87 Wn.2d 157, 182 21 (2016) as amended (Feb. 8. 2017). There is thus a presumption that Defendants had to utilize the 22 prosecutor’s office for their representation. And the County has authorized the Prosecuting 23 Attorney to represent the individuals Plaintiffs have sued under the same or similar misguided 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 5 Case 2:23-cv-00884-MJP Document 29 Filed 08/31/23 Page 6 of 6 1 theories. (See Hart v. Janicki, C23-832 MJP, Plaintiffs’ Request for Judicial Notice Ex. 1 (Dkt. 2 No. 14 at 9-12) (W.D. Wash.).) Plaintiffs identify no reason why such approvals would not be 3 obtained here. The lack of a formal County-level approval, which may be a state requirement, 4 has not been shown to be grounds for this Court to disqualify the Skagit County Prosecuting 5 Attorney. Plaintiffs have not met their heavy burden to justify their request. 6 7 CONCLUSION Plaintiffs’ Motion for Contempt and Motion to Disqualify fail to present a colorable basis 8 on which to disqualify defense counsel or hold them in contempt. The Motions are not well 9 founded, and the Court DENIES them. 10 The clerk is ordered to provide copies of this order to Plaintiff and all counsel. 11 Dated August 31, 2023. 12 A 13 Marsha J. Pechman United States Senior District Judge 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING PLAINTIFFS’ MOTION FOR CONTEMPT AND MOTION TO DISQUALIFY - 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
