08/13/2007: "With, or Without, Prejudice?"

Words are important, and phrase can be confusing. Some more than others. When the County Council voted five to one to let the stormwater referendum appear on the ballot by instructing SJC Prosecutor Randy Gaylord to drop the lawsuit they had filed to keep the measure off of the ballot, it seemed like a simple order.

After Gaylord learned of the Council’s action, he informed them he would go to Superior Court and ask for an “order of dismissal without prejudice”. At the time no one seemed to give too much thought to the fact that such an order would allow the County to take up the lawsuit again -or to join in with someone else- and go back to court to try and keep the Referendum off of the ballot.

After the Council vote on Tuesday, August 7th, Gaylord informed Alex Gavora (the named party in the lawsuit, since it was she who had filed the signature petitions with the Auditor) that he would prepare the order for dismissal for her to sign on Wednesday. Gavora, a retired tax attorney, had asked local attorney Carla J. Higginson to review the draft order, and Higginson left a message on Tuesday with Gaylord advising him she would be the one signing for Gavora.

Higginson said Gaylord did not respond, and so on Wednesday the 8th, a letter was sent to him, and then later a phone message left for him, and then again on Thursday the 9th. Higginson said on late Thursday Gaylord made contact and informed her he would have the order ready for her signature the next day, Friday morning. Higginson said that on Friday “when I arrived in court on August 10th for another case involving the prosecutor's office (a criminal case), Randy handed me a proposed order which provided that the case would be dismissed ‘without prejudice’."

Higginson said she was taken aback by this and “I told him that I understood the case should be dismissed "with prejudice" meaning that it could not be refiled at a later time. Randy insisted that the Council had instructed him to dismiss it ‘without prejudice’”.

Our notes of the meeting indicated that it was Gaylord who had told the Council he would file it “without prejudice”, and that the term had not been part of Councilman Lichter’s motion. (“Council drops lawsuit”)

In a phone interview, first with Lichter, and then with Councilman Rich Peterson -who had seconded the motion- we were told they had both intended the suit to be dismissed “with prejudice”. Lichter said reserving the right to file the lawsuit at a later date had not been part of his motion, and was not discussed prior to his making of the motion; or as Peterson stated it: “I wanted that lawsuit to be shot in the heart, dead, final, and never to be seen again”.

According to both Higginson and Peterson, Gaylord had called council members to ask what their intent had been, and after being told by at least four of them they wanted the suit dismissed “with prejudice”, Gaylord dropped the word “without” from the sentence.

The revised order was signed by Higginson, returned to Gaylord’s office, and then filed and approved by Superior Court Judge Vickie Churchill on Friday afternoon.

Higginson said that had Gavora not objected to Gaylord’s interpretation of the order by the Council to dismiss the lawsuit, “the case would have been dismissed in a manner that left the door open to sue her again, over the same issue, that the Council had tried to put to rest.”

It has cost both the County and Gavora some money, but now the voters of San Juan County will be able to decide if County government should continue to use the current method to fund stormwater programs in San Juan County, or require them to come up with a new program that is more acceptable to the voters.