EVERETT — A Monroe animal rights activist won’t be allowed to file criminal animal cruelty charges against three men in the scalding death of a monkey at an Everett animal testing lab.

Everett District Court Judge Roger Fisher ruled Wednesday there isn’t enough evidence to support allegations that lab workers committed a crime when they failed to remove a cynomolgus monkey from her cage before sterilizing the enclosure.

Prosecutors from the city of Everett and Snohomish County also opted not to file charges.

“I believe the facts as presented do not rise to the level of a citizen’s complaint,” Fisher said.

Susan Michaels, co-founder of Pasado’s Safe Haven, asked Fisher’s permission to bring a private criminal prosecution against three former workers at SNBL USA. She worried the case would slip through the cracks if she didn’t pursue criminal charges herself, her attorney, Adam Karp, said.

The Bellingham attorney, who specializes in animal law, petitioned to file misdemeanor animal cruelty charges. He alleged that the men were criminally reckless when they caused the monkey’s death.

A former lab manager said the men couldn’t miss seeing the monkey in her cage unless they were “intoxicated” or “really reckless,” Karp said. There is no evidence that they intended to kill the animal, he said.

Michaels was concerned that the one-year statute of limitations to file a misdemeanor charge would run out before prosecutors made a decision, Karp said. The monkey died in November 2007.

Fisher initially delayed making a decision after learning that Everett police were investigating. Police had received the complaint in February. Fisher ordered county prosecutors to follow up with Everett’s city prosecutor and police.

Snohomish County chief criminal deputy prosecutor Joan Cavagnaro on Wednesday told the judge her office was declining to file charges. There isn’t a sufficient basis to prove the men intended to kill the monkey or even that they knowingly and recklessly caused the animal’s death, she said.

Everett city attorney Mike Fisher reached a similar conclusion.

“I can’t create a crime out of a bad outcome,” he said.

He called the animal’s death a tragic mistake likely attributed to poor job performance — not criminal behavior that could be proved beyond a reasonable doubt in court.

John Wolfe, an attorney for SNBL, also was at Wednesday’s hearing. SNBL filed an objection to the petition on the grounds that the court rule allowing for private prosecution usurps the powers of an elected prosecutor and gives improper power to the judicial branch.

Fisher said he wasn’t ruling that the bringing a private prosecution is unconstitutional. He noted that a case focusing on that question is pending before the state Supreme Court. Fisher said he was concerned, however, about being asked to substitute his judgment for the judgment of the prosecutors.

“I’d rather see that court rule utilized where there haven’t been diligent efforts on the part of police and the prosecutor’s office,” he said.

Fisher said he was convinced prosecutors thoroughly reviewed the police investigation into the monkey’s death.

The citizen’s complaint process is expected to be reviewed by the state’s high court next year. In that case, Karp asked the court to overturn a Spokane judge’s ruling that disallowed the private prosecution of two sheriff’s deputies after their use of stun guns on an escaped calf killed the animal.

The judge in Spokane determined a citizen’s filing of criminal complaints violates the separation of powers between branches of government.

Karp said Michaels will not appeal Wednesday’s ruling with the Snohomish County Superior Court. Instead, Karp said he will be looking at possible civil remedies.

Reporter Diana Hefley: 425-339-3463 or hefley@heraldnet.com.