County attorney stepping out of Mitchell case

By LYNNETTE HINTZE

Daily Inter Lake

The Flathead County Attorney’s Office has agreed to recuse itself from prosecuting County Commissioner Phil Mitchell on a felony criminal mischief charge at the request of Mitchell’s attorneys.

The Montana Attorney General’s office has agreed to appoint a special prosecutor and will file a substitution of legal counsel in the case involving Mitchell’s alleged “girdling” of six cottonwood trees in a county park on Whitefish Lake that caused the trees to die.

The case is scheduled to go to trial next year, but it apparently won’t be heard by any of the four Flathead District Court judges. Mitchell’s case was assigned to Judge Heidi Ulbricht, but Mitchell’s attorneys — Sean Frampton of Whitefish and Todd Glazier of Kalispell, — asked for a substitute judge.

It was then assigned to Judge Dan Wilson, but County Attorney Ed Corrigan asked for a substitution. When the case shifted to Judge Amy Eddy; she recused herself. The case finally landed with Judge Robert Allison, who disqualified himself and asked for reassignment back to Ulbricht’s court.

In their motion to disqualify the Flathead County Attorney’s Office from prosecuting Mitchell’s case, Mitchell’s attorneys pointed to a conflict of interest, maintaining that because County Attorney Ed Corrigan represents Mitchell in his position as a county commissioner it is inappropriate for Corrigan to file charges against him. The County Attorney’s Office also provides legal representation to the county in the prosecution of Mitchell, the motion to disqualify notes.

“An attorney cannot sue his own client,” the motion states. “Nor can an attorney represent anyone that would be adverse to another client.”

An affidavit filed by Mitchell indicates that he now feels “very uncomfortable” speaking with the County Attorney’s Office about commissioner issues since that office has been prosecuting him.

“In fact, I now hesitate to contact the County Attorney on questions that I have concerning the issues before me,” Mitchell wrote.

Mitchell was charged with felony criminal mischief and pleaded not guilty in Flathead District Court on Aug. 31.

However, after a county parks employee discovered the dead or dying trees this summer in the small county-owned Lake Park Addition next to Mitchell’s home, Mitchell issued written apologies to county officials for what he had done to the trees.

The Sheriff’s Office investigated and called in an arborist to evaluate the trees and come up with a cost to replace them. Sheriff Chuck Curry said the cost was substantial, more than $30,000 to remove and replace the dead trees.

Mitchell reportedly killed the trees by “girdling” them and pouring herbicide on one or more of them, according to court documents. Girdling is a method by which a strip of bark is removed around the circumference of the tree. If the ring is wide and deep enough the tree cannot heal, nor can it transport nutrients to leaves or roots.

In a letter to Flathead County Parks and Recreation Director Jed Fisher, Mitchell stated, “I recently girdled five remaining cottonwoods in the county parkland and put Roundup on one. I was wrong to harm the trees without county permission.”

Mitchell offered to make restitution to the county.

“I regret my actions and I apologize to everyone in Flathead County for my wrongful conduct. I will work with you and the Park Board to ensure that the parkland is improved beyond its prior condition at my expense,” Mitchell further wrote.

Features editor Lynnette Hintze may be reached at 758-4421 or lhintze@dailyinterlake.com.