A judge in Island County Superior Court denied a defense attorney’s motion to disqualify the elected county prosecutor from participating in a case against a woman facing charges for allegedly disrupting the Elections Office by defying a mask mandate, according to court documents.
Yet Judge Christon Skinner granted other parts of the attorney’s motion, specifically ordering Island County Prosecutor Greg Banks to produce records for review and for Island County Auditor Sheilah Crider to obtain independent counsel to advise her about attorney-client privilege.
Camano Island resident Tracy Abuhl, the 62-year-old former vice chairperson of the Island County Republican Party, is facing charges of unauthorized access to a voting center, disorderly conduct and criminal trespass in the first degree in connection with her alleged refusal to wear a mask while observing ballot counting in the 2024 general election.
Island County Auditor Sheilah Crider mandated masks in the ballot counting room after COVID spread through the group of elderly volunteers during the counting of the primary election ballots.
Tim Hazelo, the former chairperson of the party, was facing the same charges, although a judge threw out the disorderly conduct charge. He went to trial in July, and the jury found him guilty of unauthorized access to a voting center, a felony charge, and a gross misdemeanor trespassing charge.
Snohomish County Superior Court Judge Joseph Wilson did not sentence Hazelo to any jail time, but ordered him to perform 40 hours of community service with a non-political nonprofit group and pay $700 in fines and fees. Hazelo told the News-Times that he lost his job on the Navy base because of the felony conviction.
Hazelo appealed his conviction to the state Court of Appeals. In addition, Hazelo and Abuhl are appealing Wilson’s decision to dismiss their related civil lawsuit against the Island County auditor and the canvassing board.
While Hazelo’s case garnered attention from Seattle media, the reaction to Abuhl’s case has been quieter. Her defense, however, has been aggressive. She is represented by attorneys Joel Ard and D. Angus Lee, according to court documents.
In a motion filed Nov. 14, Ard asked Skinner to disqualify Banks and to appoint a special prosecutor in the case. He argued that Banks has a conflict of interest since he represented the state in the criminal case and represented Crider and the county in the civil lawsuit.
As Skinner explained in his decision, Ard argued that “these duties are irreconcilable and that the conflict has already manifested in selective document production and inadequate discovery responses.”
Banks countered that there is no conflict because, among other reasons, the interests of the state and the auditor are aligned.
“According to this view,” Skinner wrote in his Dec. 31 decision, “there is no material limitation on Mr. Banks’s ability to represent either client because success for one client means success for the other.”
Skinner wrote in his Dec. 31 decision that both positions have merits, but he resolved that disqualification is too drastic a remedy.
“The court is mindful that Mr. Banks is an elected official chosen by the voters of this county to exercise prosecutorial discretion and that courts should be cautious about displacing elected prosecutors absent compelling justification,” Skinner wrote.
Nevertheless, Skinner wrote that he has concerns about the discovery process in the case, ruling that Banks’ handling of potentially discoverable material has been inadequate. He found that Banks did not provide the defense meaningful communication about what information was withheld or redacted and why.
In addition, he wrote that Banks made unilateral decisions about what documents to withhold because of attorney-client privilege. The judge noted that the privilege belongs to the client, not the attorney.
“The auditor, not Mr. Banks, has the right to decide whether to assert or waive privilege with respect to her communications,” Skinner wrote.
As a result, the judge ruled that Crider should obtain her own attorney for the sole and limited purpose of advising her regarding assertions of attorney-client privilege in connection with the case.
“The purpose of this requirement,” Skinner wrote, “is to ensure that the auditor receives objective legal advice regarding her privilege rights without the complication of her attorney’s concurrent role as prosecutor.”
In addition, Skinner ordered Banks to provide a privilege log of all documents and communications between him, Crider, Elections Supervisor Michele Reagan and any member of the canvassing board concerning the case and related matters. In addition, he ordered Banks to hand over all the documents identified in the log for in camera review, which means Skinner will look at the documents in his chamber and determine whether privilege applies.
Finally, the judge struck the Jan. 27 trial date and wrote that it should be rescheduled.
