Alleging the sitting judge fired her without cause, a former Municipal Court judge is suing the city of Missoula for wrongful discharge, violation of civil rights, defamation and other allegations.
Marie Andersen, appointed in 2006 to serve as assistant judge, declined Thursday to comment on the case filed in Missoula County District Court. The complaint names as defendants the city of Missoula and “John Does 1-10,” and it outlines the events surrounding Andersen’s departure from City Hall in the fall of 2012.
“The city of Missoula and its employees and agents, acting in their official capacity and under color of state law, terminated plaintiff from her employment as the assistant municipal judge, thereby depriving plaintiff of her constitutionally protected rights,” reads the lawsuit, filed this week and posted online with this story.
In response, City Attorney Jim Nugent said part of the claim in the suit “defies common sense.” Nugent, who had read only part of the lawsuit, said the former judge makes the “nonsensical” argument she should have remained in her job through the end of the head judge’s term, even if the judge leaves office.
“And that kind of defies common sense a little bit,” said Nugent, noting relationships between assistants and superiors don’t always work out.
The lawsuit alleges head Judge Kathleen Jenks and the court administrator met with Andersen on Oct. 11, 2012, to terminate her employment. Jenks was appointed as municipal judge in November 2011 after the elected judge retired mid-term.
“In response to Judge Andersen’s verbal request for the rationale for her termination, Judge Jenks said that it was because of the newspaper stories in the Missoulian regarding Judge Jenks’ decision to discontinue participation in Co-Occurring Court,” or Treatment Court, reads the complaint.
Jenks is completing the remainder of the term to which Judge Donald Louden was elected in 2009. The position of Municipal Court judge is up for election this year, and Jenks is on the ballot.
Judge Jenks said she had not read the complaint in full, and she could not comment on the allegations. In October, Jenks denied firing Andersen; on Thursday, she referred questions to Nugent.
“I hope that we litigate it fully, but I don’t know what the plan will be. It’s not really something that would be my decision. It would be the city’s decision,” Jenks said.
According to the City Attorney’s Office, defendants had not been served with the lawsuit as of Thursday. Nugent said he would submit the complaint to the city’s insurance provider to see who would provide legal defense. The complaint does not identify defendants other than as John Does, but its narrative refers to Jenks, Mayor John Engen, Chief Administrative Officer Bruce Bender and Court Administrator Tina Schmaus, as well as other city officials.
In the complaint, Andersen seeks damages and a jury trial for allegations including the following: wrongful discharge, violation of civil rights to due process, tortious interference with employment, defamation, negligence and infliction of emotional distress.
The city of Missoula has one elected Municipal Court judge who serves a term of four years. This judge works full time as head of Municipal Court and may appoint a part-time assistant judge “to serve during the municipal court judge’s term of office,” reads the lawsuit, citing MCA 3-6-204.
The events leading up to Andersen’s termination began with a growing workload due to absences by the elected municipal judge, the lawsuit says. The elected judge worked full time, and the appointed judge’s time was limited to 30 hours a week.
“As a result of the elected municipal judge’s approved extended absences, plaintiff’s workload became heavier and entailed job duties which should have otherwise been performed by the elected municipal judge,” the court document reads. “In July 2011, plaintiff was injured and hospitalized as a result. She had surgery, as well as complications from surgery.”
Andersen returned to work in August 2011, and the head judge left in November 2011, reads the complaint. “Plaintiff was informed that she will likely be appointed to fill the retiring judge’s seat by a number of sources, including the city attorney, at least one City Council person, and other representatives of the city.”
City Attorney Nugent said someone in his office may have spoken with Andersen, but he makes it a policy to never speculate on what actions the Missoula City Council might take. He said he has no insight into their thinking and risks damaging his credibility if he gossips about appointments.
The complaint also said Andersen had observed wrongful arrests, and she began working on a project to quash illegal warrants in the court system. She requested help from the court administrator, “but the court administrator resisted the effort,” the lawsuit said.
In a letter dated Oct. 14, 2011, Mayor Engen cautioned Judge Andersen against making “permanent changes” to court operations, the lawsuit said. The mayor directed her to “utilize the services of the court administrator if she had questions or concerns regarding operations,” and it was copied to Schmaus, “a subordinate,” as well as to officials from the Missoula Police Department, Judge Louden, Nugent and Bender.
“Executive officers of the city did not have the authority to discipline or reprimand Judge Andersen, or any municipal court employee,” reads the complaint. “Further, executive officers of the city did not have a valid basis for reprimanding Judge Andersen for her performance as assistant judge or implying to others that she had engaged in misconduct or insubordination in the performance of her duties.”
In October 2011, Andersen applied to be appointed as head judge; according to the lawsuit, Jenks applied as well, and she told Andersen and the Missoula City Council she would keep Judge Andersen on as assistant judge should the council appoint Jenks.
On Nov. 21, 2011, the council appointed Jenks. Three days earlier, Judge Andersen had been hit by a car while attending a court conference in Helena, and she reported the injury to the court administrator because it “occurred in the employment context,” the complaint said.
As a result of the accident and on doctor’s orders, Andersen was working limited hours, and “the court administrator made derogatory comments” about her absence in front of Judge Jenks, the lawsuit said. It said the administrator and others began criticizing her “absenteeism.”
“On May 22, 2012, Judge Jenks arbitrarily changed Judge Andersen’s schedule, making it more difficult for Judge Andersen to make medical appointments for treatment of her work-related injury,” the court document said. “Judge Andersen pointed out the difficulties with the arbitrary changes, but with no response or adjustment from Judge Jenks.”
On Oct. 11, 2012, Jenks and Schmaus met with Andersen and fired her, reads the complaint. It said Jenks had never reprimanded Andersen for her performance before, “other than continued and contradictory references to absenteeism” and compensatory time.
The city then changed the nature of her dismissal, the lawsuit said. “Following her termination, Judge Andersen requested that her termination be withdrawn in favor of paid administrative leave. The city assented to this request.”
When Andersen cleaned out her office, a law enforcement officer accompanied her on a “civil assist” requested by Jenks, the lawsuit said. “The presence of the law enforcement officer was humiliating and embarrassing to Judge Andersen.”
After her termination, the city requested Andersen return to work on the effort to quash bad warrants, “the very project that Judge Andersen initiated in one of Judge Louden’s absences, and for which she was reprimanded by the mayor and chief administrative officer in October 2011.”