Motion filed to hold city in contempt

A motion filed in District Court Thursday afternoon seeks to hold the City of Libby and City Attorney Allan Payne, jointly and individually, in contempt of court and asks the court to award attorney costs and fees stemming from the action.

The motion, filed by attorney David Cotner of the Missoula firm of Datsopoulos, MacDonald & Lind, alleges Payne and the city have not only failed to produce documents required by the subpoena issued March 10, but have also deliberately delayed court proceedings. The subpoena covers documents related to the city’s involvement with Stinger Welding and the Lincoln County Port Authority. In addition to his role as City Attorney, Payne also represents the port authority in its ongoing litigation with Stinger.

“There is no question that Mr. Payne and the City are acting unreasonably and vexatiously, and multiplying the proceedings in this case,” Cotner wrote in the motion. “This conduct is even more vexatious and unreasonable in light of the elapsed time and ample opportunity for Mr. Payne to comply with Rule 45. Lincoln County Port Authority’s Motion to Quash failed to specify withheld documents, and March 20 objection letters were invalid for the same failure. The court’s April 30 and May 26 orders identified this deficiency and permitted Lincoln County Port Authority to re-file a motion to quash that identified specific documents. LCPA has not filed such a motion. Neither has the city filed remedial objections due to Mr. Payne’s untenable position that Stinger bears the initial burden of proving the subpoenas are enforceable. Rather than amend his client’s objections, Mr. Payne has chosen to ‘double down’ on the invalid objections that this court has expressly rejected, and demand that Stinger prove its subpoenas are enforceable. This conduct unreasonably and vexatiously multiplies litigation, and therefore, Stinger is entitled to the costs and fees incurred because of such conduct.”

Payne said the subpoena has been satisfied.

“The city has complied with the subpoena,” he wrote in an email to The Western News. “As I have told Stinger’s counsel, the city does not have responsive documents that Stinger does not already have except perhaps for some council meeting minutes that are available online. Just because Stinger does not like the result does not mean the city has not complied with the subpoena.”

The motion amends a previous one, filed June 22, 2015, which included Lincoln County in the action. Lincoln County Attorney Bernard Cassidy has filed documents with the court indicating the county’s willingness to comply with the subpoenas.

Libby City Council members Brent Teske, Allen Olsen, Barb Desch, Peggy Williams and Dejon Raines all indicated they were not aware of either motion.

Payne said he didn’t deem it necessary to notify the council of the issue, as he responds to motions on a regular basis on their behalf.

“On behalf of the city I respond to scores of motions in dozens of cases,” Payne wrote. “If I discussed every motion with the council that is all we would talk about. Even if the worst happens and the city loses the motion the court might require the city to produce its files for Stinger’s review so Stinger can be satisfied the city has no responsive documents. The public going through city files is something that happens with some frequency and not something the council usually concerns itself with. Any financial assessment will be mine to bear.”

A similar subpoena was issued to Lincoln County Commissioner Mark Peck as representative of the county, March 10.

Payne responded to the county subpoenas with a letter to Cotner dated March 20, 2015. In the letter, Payne claimed to represent Lincoln County in the matter and, on behalf of the county, objected to the subpoenas.

“I am writing, pursuant to Mont.R.Civ.P. 45(d)(2)(B), as counsel for Lincoln County on this matter, to formally object to the subpoenas sent by your firm to Commissioner Mark Peck on behalf of Lincoln County,” Payne wrote.

In the letter, Payne indicated he would be filing a motion to quash the subpoena on the grounds that it was unduly burdensome on the county.

The judge denied Payne’s motion to quash the subpoenas, but the requested documents were still not delivered.

A motion for contempt against the City of Libby and Lincoln County was filed June 22.

According to the brief filed in support of Thursday’s motion, Cotner received a telephone call from Lincoln County Attorney Bernard Cassidy July 2, indicating Payne did not represent the county on this matter and that the county intended to comply with the subpoena. Cassidy filed a praecipe with the court July 30 to that effect.

“It appears there may be some confusion as to whether or not Mr. Payne represents Lincoln County in this suit. The purpose of this letter is to notify all concerned that there is no retainer agreement between Lincoln County and Mr. Payne,” Cassidy wrote. “The Port, who is represented by Mr. Payne, as well as the City of Libby may have interests in conflict with that of Lincoln County.”

Payne said he was asked to represent the county by the commissioners at the time, but because he took the case without pay no retainer agreement was required.

“In his filing Bernie did not say I did not represent the county,” Payne wrote. “I was asked to represent the county in this litigation by the then commissioners. At the time there were three plaintiffs in the case and I have obtained dismissals from two of those plaintiffs. I agreed to represent the county in this matter without pay, and as I was representing the county on other matters there was no need for a retainer agreement for this one. If the present commissioners now want Bernie to represent the county in this matter, that is their right.”

Peck said he was unaware of Payne being asked to represent the county, but couldn’t speak to what previous commissioners may have done.

“As far as I know, the commissioners did not authorize this representation,” he said. “I can’t speak to what the previous commissioners may have done. I can say that without a retainer agreement, I find the situation extremely concerning, that this action could have happened without our knowledge and that there was no follow up or notification of the judge’s denial of the quash motion.”

Peck said he is frustrated with the situation, and accepts some level of responsibility in the matter.

“I’ll take the blame for not following up on it personally, shame on me,” Peck said. “I’m the one who received the subpoena, I should have followed up on it. I never had a sit-down meeting with a legal team or with the other commissioners as to how we should proceed. It just happened without my knowledge. That’s what I find most troubling.”

Payne did not specify which two plaintiffs in the case provided dismissals, but said he would release them if Cassidy gave his permission.  Cassidy did not return messages left with his office about the matter.

The county was excused from the contempt motion, as Cassidy has committed to Cotner that the county will comply with the subpoena and provide the requested documents by Sept. 1.