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Friday, Nov. 14, 2008 | Outgoing City Attorney Mike Aguirre saw what was almost certainly the last vestige of his flagship pension lawsuit vaporize on Thursday as an appeals court shut down his appeal of an earlier trial judge’s ruling on procedural grounds.

Aguirre had appealed a 2007 decision by Superior Court Judge Jeffrey Barton to throw out his lawsuit, which claimed that the city entered into illegal pension deals with the San Diego City Employees’ Retirement System and the city’s employee unions. But the appeals court refused to hear the claim because the lawsuit it is part of has not yet been fully resolved at the trial court level.

The decision was a death knell not just for the political legacy of Aguirre, who was still licking his wounds from a trouncing at the polls last Tuesday, but also for the lawsuit that has defined his tenure in San Diego and has taken up much of the city attorney and his staff’s time for the last four years.

Aguirre had appealed Barton’s 2007 decision, but that ruling was only part of a larger, tangled web of litigation that has spun out of the city’s pension deals. The city, the unions and SDCERS went to trial on that litigation in 2007 and, in the first phase of that trial, Barton ruled against Aguirre.

Instead of proceeding to the next two phases of the trial, which concern other aspects of the litigation, Aguirre decided to appeal Barton’s decision, since it had decimated his case against SDCERS and the unions. That effectively put the rest of the litigation on hold until the appellate court ruled on Aguirre’s argument.

On Thursday, the Court of Appeal decided that it wouldn’t hear Aguirre’s appeal because Barton’s decision wasn’t a final judgment of the entire trial. The court essentially ruled that the appeal was premature, and that Aguirre can’t appeal until the full trial is complete.

In the course of the pension litigation, SDCERS brought a complaint against the city for prior unfunding of the city’s pension system. That complaint, which would have been the next phase of the trial to be heard before it was put on hold by Aguirre’s appeal, will now be heard by Barton.

Rebecca Wilson, SDCERS’ chief of staff, said the agency plans to pursue that lawsuit against the city. It is conceivable that SDCERS could drop the case or settle it, Wilson said, but the plan right now is to continue with the original lawsuit.

“There are questions to be answered in terms of how this resolves itself and that is something that the lawyers are looking into and will be feverishly looking at,” Wilson said.

While it’s possible that Aguirre’s appeal argument could resurface in coming years, the Court of Appeal’s decision makes it highly unlikely that the city attorney’s central arguments in the lawsuit will ever be heard in a courtroom.

The city attorney’s lawsuit has been continuously shot down by the courts on technicalities and the core of his argument — that the city entered into pension deals that were illegal and must therefore be rescinded — has never been argued in court.

If SDCERS decides to continue pursuing its lawsuit, rather than settling it or simply dropping it, there will eventually be a final ruling in favor of one of the two parties. Theoretically, at that point, the city could resurrect Aguirre’s appeal and direct it towards Barton’s final decision, but that’s highly unlikely.

City attorney-elect Jan Goldmsith has publicly derided Aguirre’s arguments. He has said that once he takes office he will provide the City Council with a cost-benefit analysis of continuing the litigation, but at the same time he’s made it clear that he thinks pursuing the litigation is a waste of time and money.

The current City Council has also been highly skeptical of Aguirre’s lawsuit, and Council President Scott Peters has opined several times that the case should be scrapped. With Aguirre gone from office, there will be little political appetite at City Hall to continue the litigation.

Aguirre held a defiant press conference at City Hall Thursday, at which he talked at length about the finer details of the lawsuit but refused to answer a number of questions about the case.

After the press conference, pressed on the questions he had refused to answer, Aguirre lost his temper, shouting obscenities and suggesting that the media had ignored his four-year long battle to tackle the city’s ballooning pension deficit in the courts.

Goldsmith was on vacation and unavailable for comment.

Please contact Will Carless directly at will.carless@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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