Round one to Cheney

CHENEY – Two of six counts in a lawsuit filed in October 2019 against Cheney and Airway Heights’ municipal courts have been dismissed by a Spokane Superior Court judge.

At the City Council’s Feb. 11 meeting, city attorney Stanley Schwartz of the Spokane law firm Witherspoon-Kelley said Superior Court Judge Maryann C. Moreno had dismissed plaintiff Shonto Pete and Monie Tulee’s claims of a writ of mandamus and their claim that court commissioner Terri Cooper — who sits on both courts — is not qualified to serve as a judicial commissioner. Pete originally filed the lawsuit through the law firm of Roberts/Freebourn, PLLC, and sought $20 million in damages, including a $15 million claim against Cheney.

According to a citation from Cornell University Law School, a writ of mandamus is an order from a court instructing an inferior court or government official to properly fulfill their official duties or correct an abuse of discretion. The lawsuit contended that Cooper was not eligible to sit as a judicial officer because she is not a lawyer and a state law making an exemption for non-lawyers to serve as judicial officers upon passing a state exam before Jan. 1, 2003 was only applicable to courts in district or cities with less than 5,000 populations.

Cooper passed the exam in 2002 while serving on the Medical Lake Municipal Court, coming to Cheney’s court in 2004 and serving in Airway Heights through an agreement to provide court commissioner judicial services in December 2018. The writ filed by Roberts/Freebourn, PLLC on behalf of Pete and Tulee asked for Cooper’s removal.

In dismissing the two counts on Jan. 31, Moreno agreed with arguments made by Witherspoon-Kelley attorneys Timothy Lawlor, Casey Bruner and Sawyer Margett — representing Cheney and Airway Heights — that Cooper’s ability to hear cases fell under a Washington statue for municipal court commissioners that carried no population limits and not one for district court judges that did, as alleged by the plaintiffs.

Moreno also sided with the defendants that the Legislature’s leaving off of the population limit from the municipal court commissioner statue did not constitute an oversight applying the limits to both statutes. The attorney’s from Witherspoon-Kelley were also able to show through House and Senate bill reports surrounding passage of the statutes in 1994 that the municipal court commissioner requirements did not carry an “implied population limit” because there was no mention of the 5,000-person limit in those documents.

Schwartz told the council that they filed a motion for summary judgement to dismiss the remaining four claims on Feb. 7, an action they hope to see accomplished within the next 20 days. Those were federal constitutional claims of violation of due process, violation of equal protection and violation of a fair right to trial, along with seeking vacation of sentences, fines and monetary penalties impose by Cooper.

The motion states the claims should be dismissed “because Washington law does not allow Plaintiffs to sue for constitutional torts unless the Legislature has specifically allowed it.” Schwartz said for Pete and Tulee to claim this, they would have to show specific actions on the part of Cheney and Airway Heights courts.

“From our perspective the law is settled,” Schwartz said. “It would be very hard to unwind this.”

Schwartz added they are asking all claims to be dismissed “with prejudice,” meaning they are dismissed permanently and cannot be refiled.

John McCallum can be reached at jmac@cheneyfreepress.com.