Aguirre Barred from Prosecuting Sunroad Exec

Wednesday, May 9, 2007 | A judge barred City Attorney Mike Aguirre and his office from prosecuting Sunroad Enterprises executive Tom Story on Tuesday, claiming Aguirre improperly blurred the lines of the criminal case with a civil lawsuit attacking Sunroad for constructing a hazardous office building.

If upheld, the 11-page decision by Superior Court Judge Michael Wellington will cast uncertainty over whether the high-profile case is pursued and leave standing a stinging rebuke of the City Attorney’s Office under Aguirre.

Wellington’s decision said Aguirre’s conduct made it impossible for Story to receive a fair trial in the misdemeanor criminal case and that his ability to bring charges against Story was used to gain leverage in the civil litigation. In April, Aguirre charged Story with violating the city of San Diego’s lobbying rules, claiming the development executive illegally lobbied city officials for his company’s Kearny Mesa-area project within a year of departing the city government.

Aguirre said he will appeal the judge’s ruling. He said he wasn’t confident that any other agency would take up the criminal case against Story if the City Attorney’s Office was thrown off it.

At issue in Monday’s ruling was Aguirre’s management of the civil and criminal cases against Sunroad and Story, respectively. The two cases were to remain separate within the office by an “ethical wall” to ensure that neither case influenced the other.

Instead, the judge determined, the barrier between the two cases “has significant holes” because Aguirre and his deputies were found to be working on both cases; Aguirre frequently meshed the two sets of allegations together in public statements; and immunity in future criminal proceedings was being traded for witnesses’ cooperation in the civil case.

“Many of these factors individually would be sufficient to warrant recusal,” the judge stated. “Taken together, they demonstrate clearly that the conflict is so significant that is unlikely the defendant will receive a fair trial if the City Attorney prosecutes.”

The judge said Aguirre’s rebuttal to the disqualification motion, which was filed by Story’s attorneys, “misses the point entirely.” Aguirre had argued that a conflict did not exist because the parties in the civil case — the city of San Diego and Sunroad — were not the same as the criminal case’s — the people of the state of California and Story. He claimed that his office’s arrangement was OK because information only flowed from the Civil Division to the Criminal Division and that any joint meetings between the two branches occurred before criminal charges were filed.

The judge disagreed with Aguirre’s criteria. He noted state law dictated that the conflict had to be “real or apparent” to warrant the removal of Aguirre, deciding that the witness testimony and evidence presented in the case showed that the City Attorney’s Office was conflicted.

During the three-day hearing last week, Story’s attorneys put the inner workings of the City Attorney’s Office on display. Criminal Division Chief Chris Morris claimed the two branches “maintain separate attorneys, supervisors, support staff, and do not share information regarding cases.” However, Story’s attorneys highlighted instances where attorneys, including Aguirre, would work on both sides of the office’s virtual divide.

An ex-deputy attorney in the office testified that Aguirre said he would not be satisfied with any resolution to his dispute over the height of Sunroad’s office building short of a full-blown trial. Former Deputy City Attorney David Miller testified that Aguirre himself directed the lawsuit, which declares that the building is an illegal nuisance to pilots flying in and out of nearby Montgomery Field, after saying “there was no way that he was going to settle for anything less than that building being taken down.”

In addition to Aguirre’s involvement in the civil case, evidence was presented that Aguirre personally offered or was present when his deputies offered immunity to Sunroad associates or members of the city’s Development Services Department, which regulated the development of the building, if a criminal case was to be filed.

“The offer of immunity simultaneously offers the potential witness shelter from criminal liability and implies that he may well need it. This is an extremely potent combination of carrot and stick that is completely unavailable to the civil practitioner,” Wellington wrote. “To the extent the immunized witnesses’ testimony benefits the civil case rather than the criminal case, legitimate questions are raised about the abuse of prosecutorial authority.”

In addition, Story’s attorneys cited media statements Aguirre made, pointing out instances where he merged the two cases in public interviews, declared it was his personal decision to file the civil suit, threatened to prosecute Sunroad and argued the merits of criminal case.

Aguirre was quoted in an NBC 7/39 interview saying, “Not only did [Story] lobby the city, but it resulted in a building going up that’s created a potential multi-million dollar liability for the city.”

The city attorney continued his defense of his office’s conduct Tuesday after the ruling was issued. He called technical aspects of the ruling “flawed” and said the judge didn’t cite proper legal authority for his conclusions. Aguirre said he would fight Wellington’s decision to the state Supreme Court if he had to.

“I will not go quietly into the night,” Aguirre said.

If Aguirre can’t carry out the rest of Story’s prosecution, it is uncertain which agency would take up the case.

District Attorney Bonnie Dumanis filed a request with the court Monday to make the city hire “special counsel” to continue the prosecution of Story, who was charged with breaking the city’s lobbying rules. The district attorney said her office has no jurisdiction over the San Diego Municipal Code, where the lobbying rules are outlined.

Dumanis spokesman Paul Levikow called later in the day to say that Dumanis would field the case if the City Council selected the District Attorney’s Office and paid for the prosecution.

Aguirre claimed the prosecution would wilt in the City Council’s hands because the elected officials would bow to political pressure to abandon the case. “It politicizes the case,” he said. “The City Council has taken substantial campaign contributions.”

He made similar remarks about Dumanis, saying, “Everyone knows what she’s up to. She’s in with the old boys’ club.”

Calls placed to the Attorney General’s Office, the state’s law-enforcement agency, were not returned by press time.

The San Diego Ethics Commission has the ability to pursue allegations over the city’s lobbying ordinance and impose fines if a violation is found. Executive Director Stacey Fulhorst said she wouldn’t comment on whether the commission will investigate the Story matter.

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