Judge Denies Motion to Disqualify City Attorney in Mirkarimi Suspension Case

Written by Luke Thomas. Posted in News, Politics

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Published on April 19, 2012 with 3 Comments

Suspended Sheriff Ross Mirkarimi, trailed by his legal defense team David Waggoner and Shepard Kopp, was today denied a motion in San Francisco Superior Court seeking to disqualify the Office of City Attorney Dennis Herrera from representing Mayor Ed Lee over charges of alleged official misconduct. Photos by Luke Thomas.

By Luke Thomas

April 19, 2012

San Francisco Superior Court Judge Harold Kahn today denied a defense motion seeking to disqualify the Office of City Attorney Dennis Herrera from representing Mayor Ed Lee over charges of alleged official misconduct leveled by Lee against suspended Sheriff Ross Mirkarimi.

Mirkarimi’s defense counsel, Shepard Kopp and David Waggoner, argued in a brief filed April 11 that the City Charter requires the City Attorney to defend the City and County of San Francisco; that no Charter provision exists for the City Attorney to defend a specific office within the city. If that were the case, then the City Attorney would also be obligated to defend the Office of Sheriff as well.

“The City Attorney’s job is to represent the city,” Kahn said before denying the motion.  “The mayor is effectively the city.”

Kahn noted that Herrera’s office, in response to the defense motion, authorized outside counsel last week to represent the Ethics Commission and the Board of Supervisors in an upcoming Ethics Commission administrative hearing set to begin Monday.  That step was taken “out of an abundance of caution” to overcome a conflict of interest.

“Sheriff Mirkarimi was arguing that the City Attorney doesn’t have the authority to defend the city and the mayor when the mayor acts in his official capacity, and the judge concluded that’s not true,” said Deputy City Attorney John Givner, one of several co-counsel involved in prosecuting the case on behalf of Mayor Lee. “City attorneys all over the state always defend acts taken by mayors in their official capacity.”

“It seemed like a tactical maneuver, not uncommon in high-profile cases,” Givner added. “But the motion did not have merit.”

Deputy City Attorney John  Givner.

Kopp said he wasn’t surprised by the judge’s decision.

“I think it would have been a bold step for the judge to remove the city attorney from the case.  Not withstanding that fact, it remains our belief that the city attorney seems to think that he can disregard the Charter of the City and County of San Francisco, which is the constitution by which this city is supposed to run, in favor of what looks like a very partisan prosecution of Sheriff Mirkarimi.  The Charter says the city attorney is supposed to represent the Ethics Commission.  They decided they didn’t want to do that.  They’d rather carry water for Mayor Ed Lee. We think that’s wrong.”

Kopp called the prosecution of Mirkarimi, “A travesty, gross overreaching by the Mayor, an abuse of the power to remove elected officials,” adding, “When this charter provision was enacted that lets the mayor remove public officials for misconduct, it was never intended to apply to this kind of a situation.  It’s supposed to apply to official misconduct which occurs while you’re in office and is typically related to some sort of corruption or fraud.”

Kopp noted that when former Sheriff Richard Hongisto “willfully disobeyed a lawful court order – and that’s one of the duties of the sheriff – nobody tried to remove him from office.”

Mirkarimi defense counsel Shepard Kopp.

Lee suspended Mirkarimi without pay March 21 after Mirkarimi pleaded guilty March 19 to one count of misdemeanor false imprisonment stemming from an alleged domestic violence incident involving his wife, Eliana Lopez, on New Year’s Eve. Mirkarimi was sworn into office January 8.

A second defense motion filed March 27 that seeks to reinstate Mirkarimi as the lawfully elected Sheriff of San Francisco is set to be heard tomorrow by Judge Kahn at 9:30 am. That motion argues Mayor Lee acted outside his legal authority in suspending Mirkarimi.

“Sheriff Mirkarimi in tomorrow’s motion is just challenging the authority of the city to go forward with its own charter process which is what we do when we have concerns that the official has dishonored the office that he was elected to serve,” said Deputy City Attorney Sherri Kaiser.  “So the court isn’t going to be deciding the merits of the argument tomorrow.  It’s simply going to be deciding if there’s any reason why the city can’t proceed, and we believe the city can absolutely proceed.”

Deputy City Attorney Sherri Kaiser.

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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  • http://www.anngarrison.com/ Ann Garrison

    One thing no one seems to be talking about: Willie Brown wrote, in his Chronicle column, that if Ed Lee chose to suspend Mirkarimi, he must publish City Attorney Dennis Herrera’s opinion as to the legal defensibility of the suspension.

    Someone please correct me if I’m wrong, but I do not believe that Herrera’s opinion was published.

  • http://www.anngarrison.com/ Ann Garrison

    Here . . . I’ll correct myself. . . I didn’t remember that precisely. Willie Brown wrote:

    “At the very least, if Lee opts not to pursue the case, he should make the city attorney’s opinion public. At least that way, he could point the finger elsewhere.” http://www.sfgate.com/cgi-bin/article.cgif=/c/a/2012/03/17/BA5M1NLKGV.DTL#ixzz1saMXK9Lj

  • http://www.facebook.com/profile.php?id=1103672366 Marc Salomon

    The judge denied the motion because the City Attorney had admitted that he could not represent all parties and had the Board of Supervisors and Ethics Commission seek outside counsel.

    Herrera did not do this of his own volition. No, Herrera waited until Waggoner and Kopp sued him and prior to being slapped down by the court, acceded to the demands of Mirkarimi’s attorneys.

    Step 1:  Herrera wants to have his cake and eat it too.
    Step 2:  Waggoner and Kopp sue to force Herrera to make a choice
    Step 3:  Herrera makes his choice, represent the Mayor
    Step 4:  Judge concludes nothing to see here, the conflict has been resolved

    Waggoner/Kopp +1
    Herrera -1