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Judge backtracks, issues new order in Board of Health lawsuit


By Michael Howell

In an Opinion and Order issued on January 11, Ravalli County District Court Judge Jeffrey Langton vacates an order he issued last September that directed the Board of Health and rental property owners Timothy and Elaine Burt to reduce their agreement over alleged violations of the County wastewater regulations and State trailer court regulations on their property near Florence into writing and then execute it. In his recent revised opinion, he orders that agreement rescinded and awards attorney’s fees, expenses and costs in defending themselves from county charges as damages owed to the Burts.

“After reevaluation of its order in light of the Burts’ persuasive arguments for amending the order,” wrote Langton, “and upon the consideration of attorney’s fees, the Court concludes its sua sponte order directing the parties to execute (and, impliedly, specifically perform) the Final Agreement was not legally sound, would not serve the interest of justice, and must be amended.”

After a year and half of on and off and on again meetings with the Burts, at a Board of Health meeting in August, 2016, a detailed “Final Agreement” was hammered out that resolved the alleged sanitation and trailer court law violations and included a fine assessment of $8,400 (negotiated down from an initial assessment of $24,000) with a payment plan. There was some discussion of an additional requirement that the Burts admit guilt, but the Burts made it clear at the meeting that they were not in agreement on that. The Board approved the negotiated agreement and directed the County Attorney’s office to draw up the document.

Then, in December 2016, without any document being signed, 2,134 criminal counts were filed against the Burts.

According to Langton’s order, “Ultimately, the Board of Health refused to honor the Final Agreement because the Burts would not agree to a new term – that they would admit to having violated Ravalli County wastewater regulations in a document that would be recorded – and directed that criminal charges be filed against the Burts.”

Arguing prosecutorial vindictiveness, the Burts moved in Justice Court for dismissal of the charges and Judge Jim Bailey ruled in their favor. The State appealed to District Court and the Burts again argued prosecutorial vindictiveness. That’s when, in September 2017, Langton issued his first Opinion and Order in the case.

In his most recent order, Langton does not buy into the legal arguments about prosecutorial vindictiveness, but he does find that the Board of Health made an oral agreement with the Burts which it then effectively breached by filing criminal charges.

“The Burts have failed to cite to any legal authority that extends the application of the doctrine of prosecutorial vindictiveness to the initial filing of charges. Moreover, the BOH’s decision to breach the partially performed Final Agreement and direct the filing of criminal charges appears to have been based on a legal misunderstanding of the binding nature of the Final Agreement that had not yet been reduced to writing and signed,” wrote Langton.

The recent order also rescinds the Final Agreement and though the statutory provision allows the court to require the party rescinding, which is the Burts, “to make compensation or restoration to the County which justice may require. Here, justice does not require the Burts to make any compensation to the County.”

The remedy for material breach, on the other hand, is damages and the Court finds that the Burts are entitled to an award of damages, but that this award is to be offset by what they agreed to pay in terms of a fine in the Final Agreement. The Burts’ claims for defending themselves against the criminal charges were assessed at $13,338.48. The offsetting fines were set at $8,400. The County will have to pay the Burts the difference.

The Court gave the County ten days from the date of the order to file an objection to the reasonableness of the fees and request a hearing.

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