Mirkarimi Defense Files Writ to Overturn Lee’s Suspension

Written by Luke Thomas. Posted in News, Politics

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Published on March 27, 2012 with 22 Comments

Defense counsel filed a motion today in San Francisco Superior Court seeking to overturn Mayor Ed Lee's suspension of Sheriff Ross Mirkarimi. File photo by Luke Thomas.

By Luke Thomas

Editor’s Note: This report has been updated with a response from City Attorney Dennis Herrera spokesperson Matt Dorsey.

March 27, 2012, 9:00 am.

Defense counsel representing suspended Sheriff Ross Mirkarimi filed a writ today in Superior Court seeking to reinstate the former District 5 supervisor as the lawfully elected Sheriff of San Francisco, Fog City Journal can report.

Mayor Ed Lee “acted outside his legal authority” when he suspended Sheriff Mirkarimi, according to Mirkarimi’s new defense attorney, David Waggoner.

“There is no basis in law to justify charges of official misconduct,” Waggoner told FCJ, “And there’s no evidence to support that my client misused the office of sheriff.”

Mirkarimi pleaded guilty last week to one count of misdemeanor false imprisonment stemming from an alleged domestic violence incident involving his wife, Eliana Lopez, on New Year’s Eve.  He was sworn into office January 8.

Lee, who suspended Mirkarimi last Wednesday – without pay – said, “Sheriff Mirkarimi’s actions and confession of guilt clearly fall below these standards of decency and good faith, rightly required of all public officials,” referring to an untested component of official misconduct, as defined in the city Charter:

[“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law. When any City law provides that a violation of the law constitutes or is deemed official misconduct, the conduct is covered by this definition and may subject the person to discipline and/or removal from office.” (Emphasis added)]

The writ of mandamus makes three legal arguments as to why Mirkarimi’s suspension is illegal:

- The conduct at issue occurred before Mirkarimi assumed the Sheriff’s office and cannot be the basis for suspension.

- Mayor Lee’s summary suspension of Mirkarimi, without pay, for a misdemeanor which does not constitute moral turpitude, is a denial of due process.

- The language of the Charter defining “official misconduct” is unconstitutionally vague.

According to Waggoner, “Because Mirkarimi was not sheriff at the time of the alleged misconduct, Lee’s suspension amounts to an abuse of discretion.  We are a city and nation of laws, and there is a legal standard that must be followed.  By suspending the Sheriff for conduct that occurred before he assumed office and is not directly related to his job duties, Mayor Lee failed to follow the law.”

Mirkarimi defense attorney David Waggoner.

Waggoner, a litigation attorney who enjoys a reputation for leaving no stone unturned, has successfully defended several high-profile clients before the city’s Ethics Commission, a five-member quasi-judicial body consisting of political appointees.

Waggoner will ask the Superior Court to set a court date to hear arguments on the writ in the next week.

If Mirkarimi is unsuccessful in Superior Court, the city’s Ethics Commission is charged with holding a hearing – expected to begin in late April when Ms. Lopez returns from a court-approved visit to her native homeland, Venezuela – and submit its findings to the Board of Supervisors for a vote.  Nine of eleven supervisors, or three-fourths of the Board’s sitting members, must vote in the affirmative to remove an elected official from public office.

The Ethics Commission proceeding is without precedent and could involve an interesting witness list, Waggoner said.

Responding to the writ filing, City Attorney Dennis Herrera spokesperson Matt Dorsey said, “We’re aware of the news report in Fog City Journal about today’s Superior Court filing. We haven’t seen the actual pleading yet, but we intend to confine our comments to the formal legal brief we’ll file in response.”

Luke Thomas

Luke Thomas

Luke Thomas is a former software developer and computer consultant who proudly hails from London, England. In 2001, Thomas took a yearlong sabbatical to travel and develop a photographic portfolio. Upon his return to the US, Thomas studied photojournalism to pursue a career in journalism. In 2004, Thomas worked for several neighborhood newspapers in San Francisco before accepting a partnership agreement with the SanFranciscoSentinel.com, a news website formerly covering local, state and national politics. In September 2006, Thomas launched FogCityJournal.com. The BBC, CNN, ABC, NBC, CBS, Fox News, New York Times, Der Spiegel, San Francisco Chronicle, San Francisco Magazine, 7x7, San Francisco Examiner, San Francisco Bay Guardian and the San Francisco Weekly, among other publications and news outlets, have published his work. Thomas is a member of the Freelance Unit of the Pacific Media Workers Guild, TNG-CWA Local 39521 and is a member of the Society of Professional Journalists.

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  • OccupyMyUterus

    Awesome SCOOP, FCJ!

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    That’s why they call him Luke the Scoop, or should, where City Hall’s concerned.

    I’m also interested in seeing David Waggoner in action for the first time, if there’s any way I can find time to attend one of these hearings. IMHO, this stands a very good chance.

    Cheerleading aside, I’m grateful to Ross for hanging in, defending himself, because I hate the thought of the cynicism and fear that will prevail if the machine prevails in grinding him and his family up and spitting them out like so much cat chow.

    If Theo grows up to understand that his father not only went to counseling, got control of his anger, and stuck by his family, but also beat the machine, he’s likely to be one very proud kid.

  • Lou Gordon

    As a registered SF voter I voted for Ross Mirkarimi to become the new sheriff of SF. The endorsement of Michael Hennessey was a major factor in my decision to support him. I do not agree with the suspension and I do not think the trial in the court of public opinion was proper. This whole thing smells like political persecution and as a registered voter I am not in agreement with any part of this trial or the results so far. the amount of financial taxpayer dollars spent on this case is not appropriate and those dollars should be spent to prosecute some of the drug cases that were thrown out of court for cases botched when Gascon was SF Police Chief. Let’s call a spade a spade. He resigned as police chief and was immediately appointed DA so the DA could assume her new role in Sacramento. In my opinion make no mistake about it referring any case to her is tainted fruit no how you look at it. Her endorsement of Gascon is never going to get a fair result!!

  • Lou Gordon

    As a registered SF voter I voted for Ross Mirkarimi to become the new sheriff of SF. The endorsement of Michael Hennessey was a major factor in my decision to support him. I do not agree with the suspension and I do not think the trial in the court of public opinion was proper. This whole thing smells like political persecution and as a registered voter I am not in agreement with any part of this trial or the results so far. the amount of financial taxpayer dollars spent on this case is not appropriate and those dollars should be spent to prosecute some of the drug cases that were thrown out of court for cases botched when Gascon was SF Police Chief. Let’s call a spade a spade. He resigned as police chief and was immediately appointed DA so the DA could assume her new role in Sacramento. In my opinion make no mistake about it referring any case to her is tainted fruit no matter how you look at it. Her endorsement of Gascon is never going to get a fair result!!

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    Also, though it’s irrelevant to this pleading, I’d like to know whether Aaron Peskin, when he called on Ross to resign, was speaking with the authority of the DCCC.

  • barry eisenberg

    I am in total agreement with Lou Gordon and with Ann Garrison, above. This case reeks and if you can’t smell the corruption you’d better get your nose checked. Ross is fighting the good fight, at great personal and financial cost, and he is a hero for doing so. But this is about far more than Ross Mirkarimi and his family.

    Every so often a political machine will overreach itself so egregiously that it becomes plain for even the common citizen to see. I believe we are at such a turning point in SF. Despite all the salaciousness, vicious reporting and the prejudices stirred by those few with an axe to grind in the women’s rights movement, and from a segment of the law enforcement community who could not stomach the defeat of their preferred candidate for sheriff, despite all these forces aligned against Mirkarimi, it is beginning to seep into public consciousness that something is rotten in Denmark. The forces that have long controlled City Hall have grown very accustomed to the log rolling, political patronage and maneuverings around resignations and their replacements and the chain reaction effect thereof that they think it is the only way city business can be transacted. With them it’s my way or the highway. Mayor Lee is only the latest in a parade of marketable personalities the regime uses to fix things according to their agenda. Any local policy wonk or sophisticated follower of the political scene here knows what I’m talking about. I don’t have the time or space to fill in the details going back through the disastrous Newsom mayoralty, the Brown administrations and before. It’s real, folks, and the upshot is known as the golden rule: those who have the gold make the rules.

    The Occupy movement has stirred political awareness. I’m reminded of what was in the air back in the sixties and seventies when outrage over the vile and neverending war in Vietnam boiled over everywhere and people poured into the streets to express their rage. These youngsters nowadays who have seen what is going down with their own futures, are educating people everywhere and they won’t stop until there is real change. From the bottom of my heart I say more power to them. All power to the people. This is America and this is my beloved San Francisco and we have some serious housecleaning to do. So I urge everyone to look beyond the personal aspects of the Mirkarimi case to the bigger picture of what is being attempted: a vile power grab by any means possible of the office of Sheriff, which is just business as usual by the downtown interests, the San Francisco Chronicle and the entrenched machine in City Hall. This shall not stand, and furthermore it must lead to real reform of the way things have been done for far too long now. STOP THE MACHINE–A committee for the defense of Ross Mirkarimi– that is our vehicle. You’ll be hearing more about this as time goes along.

  • http://sfbulldog h

    Annie,

    Waggoner stopped Downtown/Jim Sutton/Ethics Commission railroad jobs of Carolyn Knee who was attacked for miniscule paperwork shortcomings when she was unpaid volunteer treasurer of a Public Power measure a few years back and after that he pulled them off Tony Hall’s throat. In both cases the Mabel Ng run (behind the scenes she’s in charge) … the commission settled for a few dollars after much bluster and threats. In Hall’s case Waggoner revealed in open ‘court’ that a key piece of evidence (a check) had been altered to frame Hall and Newsom’s star witness took the 5th on the stand.

    And, Ross … I saw retired Fire Union prez John Hanley on my daily walk through Aquatic Park today (he was swimming) and he said to send you his best and his belief that enough was enough and that you’re being persecuted.

    Giants win on Sandoval’s 9th inning 2 run blast!

    h.

  • Bob

    Mirkarimi continues to display profound arrogance. At what point in any of this process did he NOT attempt to sidestep rule of law with technicalities?
    Tried to have the video thrown out
    Tried to call into question his neighbors character
    Tried to argue that it wasnt a crime because he wasnt in office.

    This is not how someone in his position should act.

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    @h.: Thanks for the rundown on David Waggoner’s accomplishments.

    @Bob: Ross didn’t argue that it wasn’t a crime because he wasn’t in office. He pled guilty to a misdemeanor.

  • Frank

    @ Ann, another story on Mirkarimi and you are jumping to his defense, before you berate me, let me do a preemptive strike;

    “The lady doth protest too much, methinks.”

  • Richmondman

    Ross will not be thrown out of office by the ethics commission or BOS. He will keep his job because this all occurred before he was Sheriff. But this has not been a railroad job, or a conspiracy started by his political opponents – Ross alone is to blame for his mess. He and he alone brought this upon himself and his family. The media have jumped on this, only becaus it helps sales of papers and advertisers, and while others who don’t agree with his views have jumped on the anti-Ross bandwagon, remember – they didn’t create this. Ross did.

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    @Frank: I went through an episode like this with another Frank, who happens to be a friend of mine: Frank Habineza, President of the Rwandan Green Party, such as it existed or, rather, tried to exist in 2010. Frank Habineza is also President of the African Greens Federation.

    The verbal aggressor then, in 2010, was Edmund Kagire, one of Rwandan President Kagame’s scribes on the official Rwandan Newspaper, The New Times. Edmund confronted me on Frank Habineza’s Facebook page, demanding, “Whatsa matter, Annie? You fuck Frank?”

    I told him I didn’t appreciate that and didn’t think that Frank’s wife would either, especially not on International Womens’ Day, which it happened to be.

    Edmund, bty, is also the Associated Press’s stringer in Rwanda, though I know Edmund’s prose well enough by now to see that the words, if not the viewpoint, are rearranged a bit by AP editors.

    Luke, feel free to add a few *&^! if I’m not supposed to say the f-word on your site . . . no, never mind. I just remembered then Supervisor Chris Daly’s editorial, “Profanity vs. the Truly Profane,” published here in January 2010, which included this paragraph also pertinent to the issue of official misconduct:

    “Now, keep in mind, that is the same Gavin Newsom that fucked his appointments secretary. She was his best friend’s wife at the time, so it’s fair to say that he fucked his best friend too.” http://www.fogcityjournal.com/wordpress/1552/profanity-versus-the-truly-profane/

  • http://www.hireLarryFireBobby.com Larry Carter Center

    the world is watching SF…. when political organizations become fiefdoms, such corrupt institutions will be investigated by the FBI ask certain Chicago politicians having served prison time after they ruled with iron fists INSTEAD OF THE CONSENT OF THE GOVERNED… The United States District Attourney will watch what the local court rules whether a bureaucrat or an elected body will decide who their elected sheriff shall be…. is the City Charter “just a piece of paper” as boy Bush said of the US Constitution? http://www.hireLarryFireBobby.com @VoteLarryDis114

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    P.S. Compared to this, Ross Mirkarimi is grace under pressure:

    http://youtu.be/ZUb8Xv6m7lU

  • DavidinSF

    If some people thought Mirkarimi was going to roll over and die they were very, very mistaken. if I was mayor Lee I would be looking of ways of protecting my arse, and see who could take the blame for this cluster f..k.

  • DavidinSF

    Mirkarimi’s wife speaks from Venezuela Sfgate 3/28
    The outcry from the overkill on Mirkarimi coming from people from all walks of life is becoming louder and louder with each passing day,

  • Frank

    @DavidinSF , would you classify Mirkarimi’s wife as “people from all walks of life” ?

  • http://District5Diary Rob Anderson

    I’ve been Ross’s harshest critic in SF, but City Hall’s attempt to destroy him based on this incident is shocking and unacceptable. Mayor Lee’s stated reasons for removing Ross from office are clearly inadequate as a matter of law.

    City Hall should make public the City Attorney’s memo to the mayor to allow the public to evaluate the quality of the legal advice the mayor is getting.

  • http://www.linkedin.com/myprofile?trk=hb_tab_pro Ann Garrison

    Yeah Rob Anderson! And how can you trust a statute, if the City Charter rises to that level, which uses a word that is not only fabulously imprecise but also is not even a word, i.e., “impliedly”:

    ” . . . conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

    Whoever wrote that chunk of the Charter should be removed from whatever office or post he or she holds at City Hall for illiteracy as well as bad lawmaking.

  • DavidinSF

    C