Stinger releases city from contempt claim; Attorney asserts Payne and Doney Crowley P.C. should be held accountable

Stinger Welding Montana, through its counsel David B. Cotner, has officially withdrawn a motion to hold the City of Libby in contempt of court and seeking attorney costs and fees from the city for failing to produce documents required under a subpoena.

In the notice of withdrawal filed Monday in Montana’s 19th Judicial District Court, Cotner requested the city be released from the motion for contempt because the City Council was not made aware of City Attorney Richard A. Payne’s decision to not produce the required documents, and hence should not be held accountable for the failure to do so.

Cotner cited a Nov. 17 report in The Western News detailing a complaint filed with the Montana Office of Disciplinary Counsel against Payne by Libby City Council members Gary Neff and Allen Olsen as evidence of the city’s lack of involvement in the decision to disregard the subpoena.

“Comes now the defendants, by and through its counsel of record, and hereby withdraws their request that the court issue an order holding the City of Libby in contempt of the Subpoena Duces Tecum of March 10, 2015, and of this court’s April 20, 2015, order denying Lincoln County Port Authority’s motion to quash the subpoena; and further withdraws its request that the City of Libby be responsible for Stinger’s counsel fees associated with obtaining compliance with the subpoena,” Cotner wrote.

“Stinger Montana withdraws the request for the following reasons: Stinger Montana has been provided a copy of an article published in The Western News. A copy of that article is attached hereto as ‘Exhibit A.’ The article notes as follows:

“The councilmen allege Payne violated the rule by failing to inform the City Council about a subpoena issued March 10, 2015, requiring the production of documents related to the lawsuit between the Lincoln County Port Authority and Stinger Welding.

“Neff and Olsen claimed in the complaint Payne not only had a legal and ethical obligation to notify the City Council of the subpoena, but was required by the rules to allow the city to make the decision as to how to proceed.”

Because the City Council was neither informed of, nor involved in, the decision to not produce the required documents, Cotner requested the contempt motion filed against the City of Libby and Richard A. Payne and his firm, Doney Crowley P.C., be amended to exclude the city.

Payne said the withdrawal of the motion against the city proved his previous assertion that the motion was frivolous.

“As I have advised all along, Stinger’s withdrawal of its motion just demonstrates it never had a legitimate basis to seek an order holding the city in contempt of court,” Payne said. “Having conceded it should not have brought its motion in the first place, Stinger now appears to be following the cynic’s advice: When the law is against you, argue the facts. When the facts are against you, argue the law. And when the law and facts are against you, pound the table and yell like hell. Stinger’s yelling just gets louder and louder.”

Payne made similar remarks in an email sent to Libby Mayor Doug Roll and the members of the Libby City Council Monday afternoon.

“Despite my advice to the contrary, certain council members have become concerned about Stinger’s motion for contempt against the city,” Payne wrote. “So I provide the attached which I received today: Notice for Withdrawal as to Stinger’s motion for contempt of court against the city. This confirms what I have maintained from the start, that Stinger’s motion for contempt was frivolous and not worthy of the council’s time or concern. Stinger now claims ignorance of facts it was under a duty to ascertain prior to bringing its motion for contempt, facts never asserted as a basis to bring the motion against the city, facts they would have known had they asked and facts implied in the city’s opposition to the motion for contempt.”

Cotner said the motion against the city was withdrawn not because it was frivolous or unfounded, but because the revelation of the council’s lack of knowledge about the subpoena meant the appropriate parties to hold accountable are Payne and his firm, not the city.

“Given the representations of Libby City Council members it appears to Stinger Montana that the City of Libby, much like Lincoln County, had no knowledge or involvement in the decision not to produce documents,” he wrote. “As such, defendant Stinger Montana hereby withdraws its request for a contempt order or an award of sanctions against the City of Libby. Stinger reserved all other relief requested, including sanctions to be imposed against Lincoln County Port Authority’s counsel.”

Stinger’s counsel first filed the motion for contempt against the City of Libby, Lincoln County and Payne, who had attempted and failed to quash the subpoena in his multiple roles as Libby City Attorney, counsel for the port authority and claiming to be counsel for Lincoln County in the matter. After the motion for contempt was served upon Lincoln County Commissioner Mark Peck, Lincoln County Attorney Bernard Cassidy filed a praecipe with the court denying Payne’s claim to represent the county and agreeing to comply with the subpoena. Based upon Cassidy’s filing, Stinger amended its motion for contempt releasing Lincoln County on Aug. 20.

Cotner said given the City Council’s lack of involvement in the decision to not comply, Stinger decided to release the city from the claim and pursue Payne and his firm for relief. Payne’s assessment of the reasons for the amended filing, he said, were erroneous.

“I am sorry that Stinger’s act to hold the appropriate party in contempt can be so greatly misconstrued by Mr. Payne,” Cotner said. “First, Stinger only acknowledges that the city should not be held responsible for contempt or sanctions given the fact they had no knowledge of the requests made. Stinger has not withdrawn the motion against Mr. Payne and his firm.

“Second, we had no ability to contact the city to verify anything as Payne indicated he represented the city. Under professional and ethical rules all our contact with the city was required to be through its attorney, who we understood to be Mr. Payne. We cannot be ignorant of any facts when we were relying on Mr. Payne’s representation that he represented the city. Are we to believe that Payne would tell us that he really wasn’t representing the city?

“Third, we stand by our motion.

“Mr. Payne’s interpretation or spin could not be farther from reality.”