Missoula County's 'cheeky' refusal to cooperate with probe could be costly

2012-07-30T07:20:00Z 2012-07-30T07:54:03Z Missoula County's 'cheeky' refusal to cooperate with probe could be costlyBy GWEN FLORIO Missoulian The Billings Gazette
July 30, 2012 7:20 am  • 

MISSOULA — Missoula County recently beefed up its budget request to accommodate the potential costs of County Attorney Fred Van Valkenburg’s standoff with the U.S. Department of Justice.

But just because Van Valkenburg won’t cooperate with the DOJ investigation into how local law enforcement handles sexual assault cases doesn’t mean the federal government won’t eventually get what it wants. It’s just that it will be a longer and costlier process, said Sam Bagenstos, a University of Michigan law professor.

Bagenstos formerly served as the principal deputy assistant attorney general for civil rights in the Justice Department’s Civil Rights Division. In May, that agency announced its investigation of the Missoula County Attorney’s Office, along with the Missoula Police Department and the University of Montana police.

Although UM and the city Police Department promised cooperation, Van Valkenburg balked immediately, telling the feds at their own news conference that his office had done nothing wrong, and criticizing “the heavy hand of the federal government.”

“Somewhat cheeky,” said Bagenstos, who said he took note of the incident at the time. He cited another county, Erie in New York, that likewise balked at a Justice Department investigation a couple of years ago – and ended up having to make expensive improvements to its jail anyway.

“If I’m the Justice Department … this is going to give me a pretty strong sense that you have something to hide,” he said. “It’s going to lead me to be not very charitable to drawing inferences in your favor.”

The Justice Department has declined comment on Van Valkenburg’s stance.

Although UM and the Missoula Police Department have turned over reams of material to DOJ investigators, Van Valkenburg continues to refuse to provide them with any information, contending the federal agency has no right to seek it.

“I’d give it to them in a minute if they’d persuade me they have the authority, but they don’t,” he said.

The state Attorney General’s office, via the office of Montana U.S. Attorney Mike Cotter, has been in touch with the Department of Justice about its investigation in Missoula.

In a June 27 letter, state Attorney General Steve Bullock told Cotter that if the DOJ investigation uncovers new allegations of sexual assault or new evidence about previous allegations, DOJ will refer those cases to the Attorney General’s Office for review.

Chief prosecutor Brant Light will review such allegations to determine if they warrant new prosecution or reopening a closed case, Bullock wrote. That determination will fall solely to the Attorney General’s Office, according to the agreement between the agencies.

“I am committed to doing whatever is possible to improve the safety of all Montanans and put sex offenders behind bars – it is too important to let turf wars get in the way,” Bullock said last week in an email. “The bottom line is, all of us in the criminal justice system need to cooperate to keep our communities safe.”

Attorney General’s Office spokeswoman Judy Beck added that “we’ve always had a cooperative relationship with the Missoula County Attorney’s Office. We don’t expect that to change.”

Missoula County recently submitted a budget “enhancement” request for $100,000 to cover anticipated costs resulting from Van Valkenburg’s opposition, although that was reduced to $50,000 in the preliminary budget released last week.

County Commission Chairman Bill Carey said that despite the potential cost, he backs Van Valkenburg.

“To my mind, the feds haven’t made the case they have the authority to take this action,” Carey said. Van Valkenburg “is a darn good attorney and he’s been at it for a long time. I’d go with him on this issue.”

Van Valkenburg is an elected official, beholden only to the voters. He doesn’t take his opposition lightly.

“There’s a considerable amount of responsibility associated with it,” he said.

***

The Civil Rights Division’s investigation here is unique because it involves three agencies. But it’s among several cases concerning police practices launched by that division in recent years, the Associated Press reports.

It’s investigating allegations of excessive force by police departments in Newark, N.J., Miami, Fla., and Portland, Ore., and on Friday announced a settlement with Seattle as a result of a lawsuit over excessive force by police there, according to the AP.

The Civil Rights Division has also sued the office of Maricopa County, Ariz., Sheriff Joe Arpaio, and the East Haven, Conn., police department over allegations of discrimination against Hispanics.

Although Van Valkenburg said he thought the federal government would bear the financial brunt if the DOJ sues Missoula County, Bagenstos cautioned against that interpretation.

“A county that refuses to cooperate does itself a big disservice,” he said. “They lose the opportunity to tell their story to the Justice Department and to get information to Justice investigators in a relatively inexpensive way and a relatively non-adversarial way, and instead make it more likely that they’re going to get sued and spend a lot of money.”

Besides, if the Justice Department sues the county attorney’s office, its attorneys can obtain the information they seek anyway through the legal discovery process, he said.

When Erie County, N.Y. – represented by the same attorney now representing Arpaio – refused to cooperate with a Justice Department investigation, the agency sued, Bagenstos said. Erie County ended up with a very expensive settlement, he said. The Buffalo News reported $290,000 to upgrade jail personnel, among other costs associated with that agreement.

“Generally it’s not a smart idea to refuse to cooperate with the Department of Justice,” Bagenstos said. “It’s an interesting way to begin a relationship.”

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