Traffic camera company sought Mukilteo officials’ help in filing lawsuit

  • By Scott North and Rikki King Herald Writers
  • Sunday, August 7, 2011 12:01am
  • Local NewsMukilteo

MUKILTEO — A former vice president for an Arizona-based traffic enforcement-camera company last year tried to enlist Mukilteo’s mayor in finding somebody from the community “to use” in bringing a lawsuit that attempted to block a vote on an anti-camera initiative.

The evidence is in an email

from Bill Kroske, then a top executive at American Traffic Solutions, Inc. It was sent July 14, 2010, to Mukilteo Mayor Joe Marine.

The mayor said he ignored the message, but critics of the camera company say the email shows just how far the company was wi

lling to go in trying to block voters from having a say on the devices, which are used to issue tickets to the owners of vehicles caught rolling through red-lights and speeding in school zones.

The battle over the future of lucrative camera contracts has been playing out around Washington this year in city council chambers and courtrooms, all the way to the state Supreme Court.

Mukilteo provided The Herald with the camera company email under a public records request. The city last year negotiated a camera contract with American Traffic Solutions and then dumped the project after voters in November lined up 71 percent against having the devices in town.

The vote came after Mukilteo initiative activist Tim Eyman gathered enough signatures to get the measure on the ballot.

Kroske, who last summer was vice president for business development at American Traffic Solutions, told the mayor by email that the camera company had retained the law firm Stoel Rives in Seattle to challenge Eyman’s initiative, the first of its kind in the state.

“We would like to get the Eyman initiative stopped before it goes to vote,” Kroske wrote at the time. “It is a bad president (sic) to have a vote over police powers, and weakens the elected positions. We have hired a strong Seattle attorney firm … but they need a Mukilteo resident to use for the filing.”

Kroske’s email identified Vanessa Power, a partner at Stoel Rives, as the lawyer representing American Traffic Solutions. Kroske said the lawyer could mount the challenge by filing a lawsuit naming Marine as a defendant, but bringing the action in the name of “a resident might look better.”

Power has been the camera company’s chief attorney in state and federal cases around Washington. That includes litigation American Traffic Solutions brought just days ago against the city of Bellingham, where another Eyman-supported anti-camera initiative has qualified for the ballot.

Power repeatedly has said in court papers — and under close questioning by a state Supreme Court justice — that her sole client in the Mukilteo case is an organization called Mukilteo Citizens for Simple Government. To date, only one person who lives in Mukilteo, a Boeing worker named Christine Preston, has formally acknowledged membership.

Preston did not respond after reporters went to her home last week and delivered a message seeking an interview. Last summer, Power failed to convince a Snohomish County Superior Court judge to block the vote. Preston at the time refused to be interviewed or to explain how her legal bills were being paid.

Power this week was polite but firm in refusing to answer questions, saying she can’t discuss pending litigation. In May, she argued before the state’s high court that the Mukilteo initiative is legally flawed and must be declared invalid. If she’s right, the high court’s ruling could set precedent that would block similar votes on the cameras in Monroe, Bellingham, Wenatchee, Longview and elsewhere. The court has yet to rule.

Marine last week said no one at the city of Mukilteo responded to Kroske’s July 2010 request for help in launching the legal challenge since spearheaded by Power. Kroske was seeking Marine’s help in bringing a lawsuit against his own city, the mayor noted.

“I basically just ignored it,” Marine said. “I didn’t want to get involved in the middle of that.”

The mayor said some in Mukilteo have wrongly connected him to Preston. They go to the same church, he said, and she lists him as a “friend” on Facebook. But Marine said he didn’t know her before the lawsuit was filed. She introduced herself afterward.

Kroske did not respond to phone calls and electronic messages sent by The Herald. Until recently he was the public face of American Traffic Solutions for camera contracts with Washington cities. The company said Kroske was suspended in May after The Herald reported how he anonymously posted dozens of online comments under newspaper stories about cameras. Using the screen name “W Howard,” Kroske attacked camera detractors, particularly Eyman. In his posts, “W Howard” repeatedly claimed to live in Snohomish County. Instead, the Internet trail led back to Kroske’s office in Arizona.

Charles Territo, a spokesman for American Traffic Solutions, last week would not discuss whether Kroske’s Mukilteo email accurately represented the camera company’s litigation plans.

“Mr. Kroske is no longer employed by American Traffic Solutions,” he said. “As you know, ATS is not a party to the Mukilteo litigation. Any questions about that lawsuit should be directed to the attorneys for the plaintiff.”

Eyman and others have long maintained that the Arizona company created Mukilteo Citizens for Simple Government to serve as its legal proxy, providing a means for its lawyers to challenge the right of people here to vote on an initiative.

State Public Disclosure Commission records show ATS reported spending $23,500 on a failed campaign opposing the Mukilteo initiative. The campaign spending reports indicate no legal expenses.

When The Herald contacted Eyman last week about the Kroske email, he was preparing legal papers to file against American Traffic Solutions in the Bellingham case. In those documents, Eyman said he asserted that Power and the camera company misled the legal system.

Part of Eyman’s argument focused on an exchange between Power and state Supreme Court Justice Jim Johnson at a May 24 hearing. Power was arguing that Mukilteo’s anti-camera initiative must be tossed. The hearing was less than four minutes along before the justice began to grill Power about her client.

“Who are your plaintiffs? Which plaintiffs have standing for prospective relief? As I understand it, you or someone in your firm certified that all the plaintiffs were residents of and voters in Mukilteo,” Johnson said.

Power said that was true.

“So get to your standing issue here,” Johnson said, “because I’m really troubled by the proposition that you are looking for statewide relief, prospectively, and your plaintiffs don’t have standing to ask for that.”

Power directed the judge to paperwork she’d filed naming Christine Preston as the lead plaintiff with the Mukilteo citizens group.

“So she is the plaintiff? We don’t have any hidden plaintiffs here, someone (sic) other party at interest?” Johnson asked.

Power: “No, your honor. The client here is the plaintiff, which is the citizen group. The lead plaintiff, again, is Christine Preston.”

Johnson: “And I rely on you and your firm’s representations to that respect.”

Power last week declined to answer questions about Kroske’s email and the statements made to Justice Johnson.

“There’s nothing to say beyond the fact that my client in that case is Mukilteo Citizens for Simple Government,” she said.

Eyman said he believes Kroske’s email confirms his suspicions. He said it was surprising to him that Mukilteo officials didn’t immediately send the camera company packing after getting Kroske’s message about lawsuit plans.

“These would be considered red flags,” Eyman said. “You are actually thinking about getting in bed with a guy who says in an email, ‘Hey, I want to collude with you.'”

Mukilteo was named as a defendant in the lawsuit. So far, defending the city’s decision to vote on cameras has cost Mukilteo taxpayers nearly $24,000 in legal fees, Marine said.

Snohomish County also was named as a defendant because it certified the petition signatures and included the measure on the November ballot.

Defending those actions have cost the county in time and effort, not cash, because in-house attorneys handled the county’s defense, said Jason Cummings, the county’s chief civil deputy prosecutor.

He declined to comment on whether he believed it was proper for the camera company to seek a Mukilteo resident for its case. However, Cummings said he finds Kroske’s email “very interesting,” particularly in relation to the answers Power provided the Supreme Court.

Companies legitimately can pay legal bills for an individual and not be reported as the client, said Royce Ferguson, a longtime Everett attorney who handles civil and criminal cases. Likewise, parties can seek plaintiffs to press a case. That’s why some lawyers advertise on television seeking prospective clients for class-action lawsuits, Ferguson said.

However, lawyers also face strict rules of professional conduct that govern their interaction with prospective clients. He wondered how lawyers for an Arizona-based camera company managed to swiftly connect with somebody in Mukilteo, particularly when Kroske’s email suggested the company was under a tight deadline.

Shawn Newman is an Olympia attorney who has argued many cases in front of the state Supreme Court. He also is state director of the Initiative and Referendum Institute based at the University of Southern California.

He noted that the rules governing lawyers specify that attorneys must “demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.”

Newman said he listened to Power being questioned by Justice Johnson.

“I would have serious concerns,” he said, particularly in light of Kroske’s email.

Mukilteo never put up cameras, but other cities in Snohomish County did.

Lynnwood’s contract with ATS nets that city millions a year. Monroe put up cameras through a contract with Redflex Traffic Systems, also based in Arizona. The city is taking an anti-camera Eyman initiative there to court.

Mukilteo still has traffic problems, including people speeding in school zones, Marine said. They’re considering speed-detector machines to flash warnings at drivers. Having police officers posted at school zones and intersections proved more expensive than effective, Marine said.

Mukilteo has no plans to resurrect the traffic-camera issue.

If it’s not dead legally, it is politically, Marine said.

“I can barely see it in my rearview mirror,” he said. “It’s behind me.”

Scott North: 425-339-3431; north@heraldnet.com.

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