Pearsall-Stipek violated law, judge rules
PUBLIC ACCESS CASE: Related defamation judgment thrown out

By Paula Lavigne Sullivan
The News Tribune
10/23/2000

A judge ruled Friday that Pierce County Auditor Cathy Pearsall-Stipek violated state law when she stopped two activists from entering a ballot-processing center without visitor badges.

The incident nearly four years ago has prompted a glut of litigation, including a case filed by a Pierce County sheriff's deputy who said the activists wrongly defamed him in their published accounts of what happened.

The deputy won that case in August and was awarded $240,000 in damages.

But Friday, Thurston County Superior Court Judge Christine Pomeroy threw out that judgment after the defendants' attorneys argued the decision was the result of juror misconduct.

Pomeroy said she would decide in a week whether she will order a new trial on the damages alone or whether the entire defamation case would need to be retried.

Both cases stem from a confrontation Oct. 31, 1996, when activists Sherry Bockwinkel and Susan Coffey entered the auditor's warehouse where election workers were processing ballots. The two belong to the citizen-activist group Citizens for Leaders with Ethics and Accountability Now!, and went to the warehouse to watch election workers handle returned mail ballots.

They headed down a hallway and started taking pictures when they were confronted by sheriff's deputy James Loeffelholz, who with election worker Billy Joe Arends forcibly removed the women because they refused to sign in and get visitor badges.

The activist group's attorney, Shawn Newman, cited two copies of Auditor Pearsall-Stipek's rules governing access to ballot-processing procedures. One copy says visitors must sign in and get visitor badges before entering the warehouse, but the other copy doesn't mention the warehouse at all.

The parties disputed which set of rules applied at the time of the incident. Though Pomeroy said little when announcing her ruling, she did refer to the rules as being "inconsistent" and said the action violated open public meeting laws.

As for reversing the jury's decision in the defamation case, Pomeroy said it was only the second time in her eight years on the bench that she's granted a new trial.

"I do it reluctantly," she said. "I am very sad to do it."

The jury in August agreed that the activist group, Bockwinkel, Coffey and Coffey's husband, Tom Richeson, each pay $60,000 to Loeffelholz for defaming him in the group's November 1996 newsletter, published online and in print.

Tom West, Loeffelholz's attorney, said the newsletter alleged the deputy made a false police report and that he stood by while Arends struggled with Coffey. West argued that the activists acted with malice and showed a "reckless disregard for the truth."

At the time of the jury's decision, there was no indication as to how panelists came up with $240,000 - a figure that stunned Newman, considering the deputy testified that he suffered no cut in pay, had no medical expenses related to the case and had actually received a position at work with more responsibility.

Newman said he found out later that one of the jurors had come into the deliberations saying he could figure out how much public employees made and estimated the deputy's salary at $30,000. (Loeffelholz actually makes about $55,000.)

Another juror said in an affidavit that the jurors multiplied the $30,000 by the two years the suit has been going on and then by the four defendants to come up with $240,000.

West argued that Newman's statements were hearsay and that juries routinely discuss salaries when deciding damages. However, Pomeroy agreed with Newman's argument that the salary information was outside evidence wrongly introduced to the jury.

"I believe there was jury misconduct," the judge said.

Newman also asked Pomeroy to throw out the jury's verdict based on other statements made during the trial that Newman said were unfair, and because of an audio tape that West failed to deliver on time for the jury to hear. Pomeroy said she would consider the evidence and make a decision next week.

She also said she would decide who pays whose attorney fees at a separate hearing Nov. 17. Pomeroy also hinted that the attorneys consider settling out of court. That has not happened in this saga of lawsuits as appeal follows appeal and suit prompts counter suit.

The county likely will appeal Pomeroy's decision on the open public meetings law issue, West said. Pearsall-Stipek was not present Friday when Pomeroy announced her decision.

Newman said he plans to use the ruling to argue the case again in federal court.

In 1997, U.S. District Court Judge Robert J. Bryan dismissed Bockwinkel and Coffey's claims that their ejection from the warehouse violated their First Amendment rights.

He did direct a jury to decide whether Arends used excessive force in removing Coffey. The jury ruled in her favor, but the U.S. District Judge Jack Tanner tossed out the verdict.

Coffey appealed, and the 9th U.S. Circuit Court of Appeals reinstated the verdict and sent it back to Tanner's court for a jury to set damages.

Jurors on Sept. 19 awarded Coffey $1 in compensatory damages and $1 in punitive damages.

Friday's ruling was the second court setback for Pearsall-Stipek in as many months. On Sept. 28, the state Supreme Court ruled that her longtime critic, Dale Washam, may begin gathering signatures to force a recall election based on her false statements in court.

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Staff writer Paula Lavigne Sullivan covers Pierce County, Reach her at 253-597-8542 or [email protected].

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