By PETER HUSSMANN
Attorneys for the former City of Mingo attorney being sued for his role in the malicious prosecution lawsuit brought by the city's former city clerk is asking that he be dismissed from the litigation because he was not directly involved in the filing of criminal charges against the woman.
Attorneys for Richard Phelps filed a motion for summary judgment in Jasper County District Court this week seeking dismissal from the lawsuit currently set for trial in August.
Phelps is one of several defendants - the City of Mingo, Jasper County, Dennis Stevenson, Brady Lewis and Harley Steenhoek are the others - in the lawsuit filed by Mingo's former city clerk, Amy Berkey, who was charged with first degree theft after a state audit report in April 2008 concluded the City of Mingo's utility deposits were short nearly $14,000 and nearly $33,000 in payments from the city checking account were not properly documented.
Berkey contends that while the audit report did not assign blame for the missing funds and did not conclude that she was responsible for the missing money, the defendants conspired to bring about the charges against her even though they knew they were false.
After the criminal charges were filed in November 2008, local prosecutors turned the criminal matter over to the Iowa Attorney's General Office for prosecution. In September of 2009, the charges against Berkey were dismissed after state prosecutors determined insufficient evidence existed to pursue the matter.
Berkey contends in her allegations against Phelps that he was able to exert pressure and influence on the Jasper County Attorneys Office to pursue the criminal charges. She further contends that he made slanderous statements about her.
Attorneys for Phelps argue that he only provided information to the Jasper County Attorneys Office and Jasper County Sheriffs Office and those agencies conducted the investigation and ultimately decided to file the charges. They also deny the contentions of slander.
Earlier this year, District Court Judge Brad McCall denied the City of Mingo's motion for summary judgment on the issues of malicious prosecution and false arrest, but granted it concerning Berkey's abuse of process claim against her former employer, a ruling which could prove instructive on the eventual outcome of Phelps' motion before the court.
The city contended that Berkey is "unable to prove that the City instigated or procured the filing of the criminal charge" against her. It argued that the City and its employees did "nothing more than provide information to the Jasper County Sheriff's department and the Jasper County Attorney, and those agencies conducted the investigation and ultimately made the charging decision."
McCall ruled that in order for Berkey to prevail on her malicious prosecution claim, she must establish "either that the City's desire to have the criminal charges initiated, expressed by direction, request or pressure on the part of its agents or employees, was the determining factor to the County Attorney in the filing of the charges or that the City's agents or employees knowingly provided false information to the Jasper County Sheriff or the Jasper County Attorney."
In denying the motion for summary judgment on the claim, McCall noted that Berkey contends she "can establish that the City provided false information to both the State Auditor and the Jasper County Attorney, and that the City Attorney, by reason of his close connections with the Jasper County Attorney, was able to exert pressure and influence in bringing about the filing of the charge.
"Whether a jury will ultimately conclude the City unduly influenced the County Attorney or knowingly provided false information about Plaintiff remains to be seen," the ruling continues. "In the context of the pending motion for summary judgment, however, the facts ... preclude entry of summary judgment on the claim of malicious prosecution."
Judge McCall also denied the City of Mingo's request for dismissal on the matter of false arrest. He notes in his ruling the deposition of Mr. Phelps where he describes a meeting that occurred at the County Attorney's office that included two members of the State Auditor's office, former Jasper County Attorney Steve Johnson, then-Assistant Jasper County Attorney Mike Jacobsen, Jasper County Deputy Sheriff's John Halferty, Stevenson and Lewis and Phelps.
"According to Phelps, the purpose of the meeting was to determine whether or not a criminal charge should be filed against Plaintiff," Judge McCall's ruling states. "According to Phelps, all present at the meeting agreed that a criminal charge should be filed. Plaintiff claims that agents and employees of the City, as well as agents and employees of the County, provided false information regarding the Plaintiff's culpability with respect to the missing funds.
"As with the malicious prosecution claim, it remains to be seen whether a jury will ultimately conclude that the City, through its agents, conspired to bring about the Plaintiff's false arrest. When the issue is viewed in a light most favorable to the Plaintiff, however, genuine issues as to relevant material facts exist wich preclude entry of summary judgment in favor of the City of Mingo on the plaintiff's theory of conspiracy to commit false imprisonment."