Sheriff Keith Swank’s would-be lawyer loses key ruling in court. Details here
AI-generated summary reviewed by our newsroom.
- Judge Ryan rejected Joan Mell’s First Amendment defense and denied her motion to dismiss.
- Court found Mell used UPEPA to delay proceedings and ordered her to pay attorneys’ fees.
- Judge joined Sheriff Swank as a defendant, questioned his right to pick outside counsel.
A King County judge on Dec. 31 rejected a private attorney’s claims that she has a First Amendment right to represent Pierce County Sheriff Keith Swank in his official duties, refusing to grant her motion to dismiss the lawsuit against her.
In a detailed 52-page order, Judge Michael Ryan said attorney Joan Mell’s motion rested on the faulty assumption that she legitimately formed an attorney-client relationship with Swank.
Mell and her attorneys had argued that her work for Swank was protected free speech and petition activity under Washington’s Uniform Public Expression Act (UPEPA), an anti-SLAPP law designed to shield free speech from the threat of lawsuits.
Invoking that law effectively paused elected Prosecutor Mary Robnett’s lawsuit seeking to bar Mell from representing the sheriff. In that and other actions, Ryan found that Mell had used UPEPA’s stay on the proceedings as a “weapon” against the Prosecutor’s Office, that her motion to dismiss the case was not substantially justified and that it was filed with the sole intent of delaying the case. Ryan ordered Mell to pay Robnett’s attorneys fees and costs.
“Ms. Mell did not point this Court to any authority suggesting that she had a First Amendment right to represent Sheriff Swank, and instead relied on rights purportedly possessed by Sheriff Swank,” Ryan wrote.
It’s not yet clear what Robnett’s attorneys fees and costs would be. The parties in the case were ordered to meet and confer within 10 days to see if they can agree on a specific amount.
“We are gratified by the overall ruling,” Adam Faber, a spokesperson for the Prosecutor’s Office, said in an email to The News Tribune. “Our office will be calculating the County’s costs and fees.”
Ryan said that given the nature of Mell’s defense relying almost exclusively on Swanks’ purported rights, Swank is a necessary party to the case and joined him as a defendant. Doing so, Ryan said, is consistent with Swank’s most recent sworn declaration that he believes the law should accommodate a person who had a disagreement with their designated legal advisor chosen by the people in an election.
However, Ryan said he had “significant doubts” that Swank has a right as an elected official to any lawyer of his choosing when he simply disagrees with advice provided by Robnett, particularly where he hasn’t asked Robnett to appoint him counsel or availed himself of other procedures afforded to him under state law.
After being reached by phone late on the afternoon of Dec. 31, Mell texted a statement to The News Tribune.
“We expect to appeal so that the higher courts will have the opportunity to review the King County judge’s ruling and its impact on the Sheriff and people of Pierce County,” Mell said. “No lawyer, particularly an elected one, should have the power to threaten another elected official or anyone else for exercising the right to consult with private counsel. The Sheriff has the right to question the prosecutor’s judgment with counsel he trusts.”
Swank did not immediately return a phone call asking for comment.
Background of Robnett v. Mell
Robnett sued Mell in May after Swank became dissatisfied with Robnett’s legal advice and sought Mell’s help to advance his interests.
That led to a mediation letter Mell sent Robnett and two other county officials describing six issues Swank had set his sights on, including Swank’s intention to work with U.S. Immigration and Customs Enforcement in violation of state law. There also was an assertion that the Sheriff’s Office did not have to comply with orders issued by County Executive Ryan Mello, particularly one that outlined how federal contracts should be reviewed and approved.
Robnett responded to the letter days later by telling Mell to cease and desist her claim that she represented Swank. Mell said she believed Robnett was refusing to recognize that Swank had a conflict with her. Robnett subsequently complained to the court that Mell was unlawfully intruding on the Prosecutor’s Office.
Since then two judges have prohibited Mell from acting as Swank’s attorney in an official capacity, first through a temporary restraining order in May and then a preliminary injunction in June. Before issuing the injunction, Ryan said Mell had harmed voters who elected Robnett to be the chief legal advisor to county officials.
In July, Mell cited UPEPA in an email to Robnett, telling her she would be filing a special motion for expedited relief that would include a request for a $10,000 penalty as well as fees and costs. Over the summer and fall, attorneys for Robnett and Mell sparred over the limits of the stay of the proceedings caused by bringing the anti-SLAPP law into the case.
In September, Ryan ordered that the law’s stay on the discovery process was unconstitutional and ordered limited discovery that led to Mell being subpoenaed to turn over her communications with Swank. Mell resisted doing so, claiming privileges over the documents including attorney-client privilege. She went to the Washington State Supreme Court to fight Ryan’s order, but her petition was denied.
Mell formally filed her UPEPA motion Sept. 5, seven weeks after she told Robnett it was coming. Attorneys for Mell have denied that Mell filed it solely for delay or that it wasn’t substantially justified.
Free speech? Or unlawful trespass?
Mell’s UPEPA motion essentially argued she has a First Amendment right to represent whomever she chooses, and that that right trumps Washington statutes and constitutional provisions that say providing legal advice to county officials is a primary function of the Prosecuting Attorney’s Office.
Attorneys for Mell have argued that Robnett’s lawsuit targeted the private attorney for writing the mediation letter.
At oral arguments in October, attorneys for Robnett countered by telling Ryan that the lawsuit wasn’t about speech, it was about Mell not having the authority to act as a government official’s formal attorney.
“I want to dismiss, in detail if I can, this concept that this is about a mediation letter,” said Michelle Luna, the assistant chief civil deputy for the Prosecutor’s Office in court Oct. 31. “A trespass is an ongoing criminal and civil act, and this trespass began before the mediation letter, and it continued after this court’s preliminary injunction.”
Luna said her primary argument was that allowing UPEPA to interrupt that proceeding is either unconstitutional or an absurd analysis of the law.
“Here, entertainment of a UPEPA motion leads to an absurd and dangerous result – that a usurper may continue in trespass against a constitutional public office while advancing personal claims …,” attorneys for Robnett wrote in a court filing responding to Mell’s motion for dismissal.
Eric Stahl, an attorney for Mell, described his client’s legal representation of Swank as a necessary step in the sheriff’s path toward suing county officials if the six issues raised in the mediation letter weren’t resolved to his satisfaction. The mediation letter referenced RCW 36.46.010, a state law that requires elected officials to attempt to work out a dispute before they can sue each other.
“This lawsuit is against the sheriff’s outside attorney, sure, but the effect of it is to deprive Sheriff Swank of his right to pursue his claims,” Stahl said in court Oct. 31.
Communications between Swank, Mell cited as evidence
Part of the arguments over whether Mell has a First Amendment right to represent Swank has centered on hundreds of pages of emails and text messages sent between the private attorney and the sheriff, as well as a recent deposition of Swank.
Attorneys for Robnett contended that the communications depicted an “ongoing invasion” of Robnett’s office and refuted Mell’s claim that her actions concerned public petition or redress. Mell’s attorneys said the documents were evidence that the opposite was true, that representing Swank was a lawful and protected exercise of petition rights and was limited to issues involving Swank’s conflicts with Robnett and other county officials.
Robnett’s attorneys pointed to instances that they said revealed a pattern of Swank changing his official position on aspects of the underlying lawsuit sometimes minutes after he forwarded documents to Mell.
For example, in August, Mell asserted in court filings that Swank should be joined to the lawsuit as a cross defendant. The Prosecutor’s Office subsequently appointed former San Juan County Prosecuting Attorney Randy Gaylord to defend the sheriff. Gaylord moved to dismiss Swank from the case because Robnett had not made a claim against him. When Gaylord communicated to Swank on Aug. 19 that he was filing documents to support that, Swank forwarded Gaylord’s email to Mell.
Within about 20 minutes, Swank emailed Robnett saying he didn’t agree with what Gaylord had filed. Swank then forwarded some of Gaylord’s legal advice to Mell in an email, and about an hour later Mell contacted Gaylord, warning him that she believed he was duty-bound to inform the court that Swank hadn’t authorized Gaylord’s pleadings to remove him from the lawsuit.
Swank was cc’ed on the email, and the exchange led Ryan to warn Mell at an August court hearing on Zoom that she was attempting to give Swank legal advice in violation of the preliminary injunction.
Stahl, on the other hand, wrote in a court filing that the communications showed Swank was seeking a legal “second opinion” because he didn’t trust the advice of the Prosecutor’s Office. He cited an email Swank sent to Mell on May 6 — in advance of the mediation letter — where he referred to Luna as his “incompetent” legal advisor and a “leftist political hack.”
“When [Robnett] failed to provide Swank with non-conflicted counsel, Swank made good on his promise to ‘get one’ and reached out to Mell regarding his claims and a list of issues that ‘need to be challenged in court,’ all related to the scope of his authority and his independence from the County Council, County Executive, and Prosecutor’s Office,” Stahl wrote.
In sworn declarations filed in court, Robnett has said she would provide conflict counsel to Swank if there were an actual conflict of interest between them, but there isn’t one. She also said she wouldn’t consider appointing Mell, in part because she is in active litigation against Pierce County.
Ryan seemed to agree with Robnett on that issue, noting that she has never refused to provide Swank with legal advice and that disagreeing with her advice is not a conflict of interest. Ryan also referred to Mell’s representation of former members of a Special Investigations Unit in the Sheriff’s Office in a lawsuit against Pierce County as a conflict of interest.
This story was originally published January 2, 2026 at 5:00 AM.
