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Tuesday, November 12, 2019  Spokane, Washington  Est. May 19, 1883
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Second judge recuses himself from Spokane County cat pee case as scholar argues sealed records violate First Amendment

UPDATED: Tue., Dec. 11, 2018

This aerial photo shows the Spokane County Courthouse on Oct. 26, 2013, in front of the Public Safety Building and the Spokane County Jail. Spokane police say an intern in the city prosecutor’s office was assaulted Tuesday morning in a women’s restroom in the Public Safety Building. (Jesse Tinsley / The Spokesman-Review)
This aerial photo shows the Spokane County Courthouse on Oct. 26, 2013, in front of the Public Safety Building and the Spokane County Jail. Spokane police say an intern in the city prosecutor’s office was assaulted Tuesday morning in a women’s restroom in the Public Safety Building. (Jesse Tinsley / The Spokesman-Review)

A second judge has recused himself from a secretive case in which a Spokane County judge sued his neighbor over cat excrement and pee on his porch.

Judge Gary Libey, who usually presides in Whitman County Superior Court, had been expected to visit Spokane for a hearing Tuesday, but shortly before it was scheduled to begin, the Whitman County court administrator, Ginger Devorak, said the judge had recused himself. She did not give a reason, and no record of the recusal was immediately available in the Spokane County clerk’s office.

Libey had been expected to decide whether to unseal records in the case, in which Michael Price, the presiding judge in Spokane County Superior Court, sued a cat owner, Jennifer Tanaka-Fees, who lived behind him on the South Hill.

In May, attorney Bob Dunn, who was representing Price, gave a general description of the case to The Spokesman-Review, saying the cat problem “got to the point where the Price family couldn’t go outside and enjoy themselves because of the smell.” Dunn called the case “a silly dispute between neighbors.”

But details of the litigation – perhaps juicy, perhaps mundane – remain shrouded in secrecy because of an unusual order to seal nearly all case records from public view. A prominent legal scholar, Eugene Volokh, has intervened in the case, arguing the records should be unsealed on First Amendment grounds.

Dunn has said Price sought privacy because he presided over felony cases and feared retaliation from those he sent to prison. Price’s phone number and home address, however, can be found on several websites.

The sealing order was granted in November 2017 by Stevens County Superior Court Judge Patrick Monasmith, who had been assigned to the case to avoid the potential for a conflict of interest involving one of Price’s fellow Spokane County judges. But Monasmith had his own conflict of interest, and ethical rules prohibited him from taking action on Volokh’s motion.

During a hearing in early May, Monasmith recused himself from the case, revealing that Dunn had been hired to represent him in pleadings before the state Supreme Court. (Those pleadings related to a jurisdictional dispute between the Stevens County District and Superior courts.)

A different attorney had represented Price throughout most of the litigation. Though Dunn’s involvement led Monasmith to recuse himself, delaying a resolution by at least eight months, that conflict of interest has seemingly gone away: Dunn said Tuesday he no longer represents Price and has not been involved in the case for months.

A message left with Price’s chambers was not returned Tuesday. Volokh, a law professor at the University of California, Los Angeles, declined to comment, saying he did not feel comfortable discussing the case because of the sealing order.

Devorak, the Whitman County court administrator, said Judge Libey’s recusal means a third judge will have to be assigned to the case.

Maybe that judge will break the seal.

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