Friday, May 18, 2007 | When a Superior Court judge issued a ruling last week booting City Attorney Mike Aguirre from a high-profile prosecution, he didn’t just leave the criminal charges against a development executive hanging in the balance.
Judge Michael Wellington’s ruling also handed an 11-page playbook to any political consultant looking to challenge Aguirre in next year’s election. It serves as a biting rebuke of the City Attorney’s Office under the self-described guardian of good government.
The judge hammered Aguirre for falling short in a department for which he has long prided himself as an advocate — ethics. Before the ruling, criticism that Aguirre used his position to wrongly attack his political enemies came either from those directly in his sights or those who had left his office. He brushed off those barbs as simple political attacks.
But last week’s ruling chiseled a distinct chink into Aguirre’s armor. This time, the critique came from a third-party arbiter sworn by law to decide objectively and impartially on conflicts.
“Instead of from one politician to another politician, you’ve got a neutral, trusted source in a judge,” Democratic political consultant Christopher Crotty said. “That’s the type of thing, as a political consultant, that you’d love to have. It’s the stuff you live for when you’re looking to bang your opponent over the head.”
Public attorneys are forbidden from using criminal prosecution to gain an advantage in a civil lawsuit. The judge said Aguirre breached that code in prosecuting Sunroad Enterprises executive Tom Story for allegedly violating the city’s lobbying laws.
The judge argued that “there can be little doubt that the City Attorney has a conflict of interest” while at the same time suing Story’s employer for constructing an office building near Montgomery Field that has been deemed hazardous by federal and state officials.
Aguirre’s allegations against officials — ranging from resigned Mayor Dick Murphy and a majority of the City Council to several city and labor officials — has become part of the daily political landscape in San Diego. He has tirelessly chronicled alleged wrongdoing in the 17 interim reports since taking office in December 2004.
But last week, the tide turned on Aguirre, leaving the public to view his own dirty laundry as opposed to others.
“It’s the first time that the internal workings of his office have been open to public view,” said John Kaheny, a former deputy city attorney who runs an e-mail network dedicated to criticizing Aguirre.
For Aguirre, the judge’s ruling fits perfectly with his view that conspiratorial forces are at work against him. Perceiving the judge as a neutral party is incorrect, he said.
Wellington, like other Superior Court judges, is elected. The judge authored a politicized decision to curry favor with an “old-boy establishment” that he will rely on for campaign support the next time he stands reelection, Aguirre said.
“There is an establishment in San Diego that for a long time has named the judges, has been instrumental in putting people into political office, and putting people on the mayor’s charter commission,” Aguirre said in an interview.
Much like he has done before, Aguirre is trying to make a political issue out of a matter that doesn’t immediately seem to be one.
In the case, Story claimed Aguirre failed to set up the correct barriers between his office’s civil and criminal wings to prevent one case from influencing the outcome of the other. Further, the judge said there “legitimate questions [were] raised about the abuse of prosecutorial authority,” as Story alleged that Aguirre’s disdain for Murphy, Story’s boss, amounted to prosecutorial bias.
In the ruling, Wellington found that the barrier needed to keep the cases separate, known as an “ethical wall,” had significant holes. He cited testimony and evidence showing that Aguirre and his deputies worked on both cases; that Aguirre frequently meshed the two sets of allegations together in statements he made to the press and on his blog; and that immunity 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 three-day hearing over the issue provided a unique peek into the operation of the City Attorney’s Office under Aguirre.
Aguirre and his aides, current and past, testified about Aguirre’s management of the civil and criminal cases. Some vouched that a strict wall existed to maintain the integrity of each case. But the judge sided with others who claimed Aguirre used all of the resources at his disposal to launch a legal assault against Sunroad’s construction near Montgomery Field airport, which has unfolded to become the most visible controversy that Aguirre is fighting right now.
It marks a blow to an elected official who has publicly prided himself in attacking conflicts of interest that he claimed embodied the corruption of local government, most visibly in his trademark pension lawsuit.
In the pension case, Aguirre claimed self-interested city officials gamed the system in order to line their own pockets. He has sought to roll back $900 million worth of pension enhancements that were created by those pension deals, and has claimed that the overwhelming number of his City Hall detractors criticize him in order to protect themselves in the pension litigation.
But even with the pension case, which has been significantly trimmed down to minimal stakes by the courts, Aguirre has deflected blame by pointing a finger toward his City Hall opponents. He notes that the judge commended the City Attorney’s Office for presenting a good case, but that the City Council had entered into past settlements that barred the legal attack from moving forward.
In the case of Aguirre’s dismissal, the city attorney was free from any taint that could have infected his case. Aguirre’s own handling of the case was the issue on display, and the judge handed down a diagnosis that he acted improperly.
“To have a judge say that is stunning,” Council President Scott Peters said. “While I know this is arcane lawyer stuff, it’s something I’ve been concerned with for a long time.”
Aguirre slapped back, saying that the judge’s comments “have no credibility.” He said they are unnecessarily harsh and read more like an editorial than a legal opinion.
He claims a letter District Attorney Bonnie Dumanis filed with the judge the day before Wellington issued his ruling indicated how the establishment wanted the judge to rule. The subject of Dumanis’ filing was her desire to not pick up the case should the City Attorney’s Office be dismissed, and it did not explicitly state that Aguirre should be kicked off the prosecution.
Aguirre added a new wrinkle to his defense as well. It’s Story attorney Pam Naughton, not him, who holds a conflict of interest, he said. Naughton also represents Peters, who has expressed some interest in running for city attorney against Aguirre in 2008. Aguirre alleged Naughton filed the motion to disqualify the City Attorney’s Office in order to embarrass him politically.
But Aguirre, like he has so many times, shrugs off the insinuation that the ruling will damage him politically. He said the feedback his office has received about his fight against Sunroad and its officials has been overwhelmingly positive, and the letters to the editor found in various publications around town sing his praises as well.
“The people who have been critical have been primarily establishment people,” Aguirre said. “This is the high-water mark for the people who have tried to politicize this. But it blew up on them because enough facts have come out to show that there was nothing wrong with what I did.”
Aguirre plans to appeal Wellington’s decision in the coming weeks.