By Marcy Stamper
In a six-page letter countering charges of favoritism and a failure to defend the public interest, Okanogan County Prosecuting Attorney Karl Sloan has declined a request that he and his deputy recuse themselves from a lawsuit against the county that seeks to declare a road private property through the quiet-title process.
“The request [for recusal] is without any legitimate legal or factual basis,” wrote Sloan in his March 22 response to attorney Barnett Kalikow, who represents the Okanogan Open Roads Coalition.
Sloan said requests by Kalikow’s clients to Chief Civil Deputy Prosecutor Albert Lin to be notified if a quiet-title lawsuit were filed against the county did not qualify as a request for public records. A governmental body cannot create records to fulfill a request, but can only provide existing records, wrote Sloan.
Lin had said the request for information amounted to a request for legal advice and told the individuals to submit a public-records request for the information. Kalikow characterized this stance as “legal nonsense” in the letter asking Lin and Sloan to recuse themselves.
The quiet-title lawsuit was filed against the county earlier this month by Gamble Land and Timber. The lawsuit claims that a nearly 8-mile portion of French Creek Road is Gamble’s private property because Gamble built the road and the county did not compensate the landowners when it adopted the road by resolution in 1955. A quiet-title action is typically used when two parties claim a title or interest in the same piece of real property.
Because the coalition members who sought notification are not parties to the quiet-title suit, they are not entitled to special notification, wrote Sloan.
Nevertheless, Lin directed those individuals to websites where they could do their own research. After the quiet-title suit was filed, Lin asked his secretary to provide a case number to a coalition member so that she could obtain a copy of the lawsuit from Okanogan County Superior Court, said Sloan. All documents filed in court are a matter of public record.
Kalikow contended that Lin “was happy to provide legal counsel” to Jon Wyss, an agent of Gamble Land, when he gave Wyss a list of provisions in state law for removing a road from a county system.
Contrary to Kalikow’s allegations that this showed Lin treated requests for information differently depending on the requester, Sloan said Lin had merely provided a copy of relevant state law to Wyss.
Not taking sides
“Contrary to your assertion, the Okanogan County Prosecutor is not taking sides in this matter, or in any dispute between your clients and the Plaintiffs. The Prosecutor is interested in the facts, evidence, and law, and reviews these matters independent of any outside parties’ agenda or interest,” wrote Sloan.
Sloan also disputed allegations that Lin’s acceptance of the summons in the quiet-title case created a conflict of interest. That charge is “a fairly dramatic reading for whomever your target audience is, but it is baseless in light of the relevant case law and statute,” wrote Sloan.
Kalikow charged that Lin had bypassed state law by personally accepting service of Gamble’s lawsuit on behalf of the county. Kalikow said state law requires legal complaints against a governmental body to be served on the auditor.
No parties’ rights were affected by Lin’s acceptance of the legal documents and that the burden of ensuring proper service is on the plaintiff (Gamble Land), not the defendant (the county), said Sloan.
Sloan said that Kalikow’s clients, the Open Roads Coalition, are not parties to the French Creek Road lawsuit and do not have standing in that case.
Sloan also pointed to a recent decision in a separate lawsuit over Gamble’s efforts to close Three Devils Road through the road-vacation process. In that case, the state Court of Appeals found that the plaintiffs, the Chiliwist Residents & Friends, do not have standing because none of them live on the road. That case is not connected with the French Creek Road case, although Kalikow also represents the Chiliwist group that appealed the county commissioners’ decision to close Three Devils Road.
Sloan suggested that Kalikow and his clients had other motives in seeking the recusal. The lack of factual basis, “coupled with the fact that your request letter was also submitted to the local media, makes it appear your request letter is more an effort to disparage the County or to posture for some future anticipated litigation,” wrote Sloan.
The Methow Valley News published an article last week about the matter after receiving an unsolicited copy of the recusal request from a member of the public.
The county is defending against the French Creek quiet-title suit and may amend or supplement its initial response after further investigation, wrote Sloan.
“[W]e are also charged with defending the legally enforceable decisions made by the Board of County’s commissioners. As such, our office has no personal stake in those legislative decisions,” wrote Sloan.
Kalikow said this week that he is consulting with his clients about next steps.