LAKEPORT, Calif. – A visiting judge is expected to issue a clarification later this week or early next week on his decision from last year to require the county to provide legal counsel to Sheriff Frank Rivero in his legal dispute with District Attorney Don Anderson.
During a half-hour hearing Tuesday afternoon, Mendocino County Judge Richard Henderson heard arguments from Deputy County Counsel Shanda Harry and Paul Coble, a senior associate of the Jones and Mayer law firm, which is representing Rivero in his struggle with Anderson over a determination that he lied during a 2008 shooting investigation.
Coble was one of two attorneys from the firm appearing on Rivero's behalf before separate judges on Tuesday afternoon. In an earlier hearing, retired Butte County Judge William Lamb granted Anderson's anti-SLAPP motion to strike Rivero's civil rights lawsuit over the “Brady” determination.
In February Anderson placed Rivero on a “Brady” list of officers with credibility issues, determining that Rivero had lied to investigators about shooting at a man holding a can of pepper spray while working as a deputy in February 2008. The man was uninjured.
“Brady” comes from the 1963 US Supreme Court case Brady v. Maryland, which requires that prosecutors divulge to criminal defendants information that could help clear them. That includes information relating to the credibility of officers involved in their cases.
In 2012, the supervisors had refused to hire Rivero outside counsel after he alleged a conflict of interest with the County Counsel's Office. Rivero, in turn, filed suit to force the county to hire him an outside attorney, with Henderson determining that a conflict did exist in the County Counsel's Office and ordering the county to hire an outside firm.
The Board of Supervisors in March decided to ask Henderson for clarification on just how far the county needed to go in supplying legal counsel, and held off paying a $29,000 bill submitted by Jones and Mayer.
At that point, total legal fees in the matter were estimated at about $52,000. An updated tally wasn't immediately available from the county on Tuesday.
Henderson acknowledged at the Tuesday hearing that “there is some room for confusion” in his previous judgment, so he agreed to clarify it, noting the underlying issues are still active. He said he wanted to hear arguments from the two sides and would take it under consideration.
Henderson said the court had found the county had an obligation to provide legal representation to Rivero in connection with the Brady determination that, at that time, Anderson was still in the process of considering.
The primary issue, he said, was whether the counsel the county had been required to provide was restricted to the Brady determination or if it could extend beyond to a challenge by Rivero.
Henderson said his tentative ruling was that it had been his intention in that original order to restrict the legal counsel to the proceedings leading up to the Brady decision, and that the representation would not continue in an “open-ended” way in order to allow Rivero to challenge Anderson's final determination.
Harry explained that there had been confusion for the Board of Supervisors over what the ruling actually meant.
She said once a Brady determination is made, there is no appeals process, as it's a matter that is strictly up to the district attorney.
The county wasn't anticipating any litigation or need for Rivero to have an attorney once the matter was decided. “It is no longer pending,” she added.
Harry argued that the need for the representation had ended once Anderson made his decision.
Coble told the court that the dispute between Rivero and Anderson over the Brady issue remained the same. He suggested that the impact of the decision is, in fact, greater now. Consequently, Coble said Rivero's need for legal counsel continued.
He accused the county of being inconsistent, initially refusing to hire Rivero outside legal counsel because nothing bad had happened.
Since then, however, “The bad thing has happened,” Coble said in reference to the Brady decision, and now the county is trying to say the sheriff is no longer entitled to representation.
“The county doesn't like it and doesn't want to pay,” said Coble, pointing out that the county had not paid the $29,000 bill.
He said the firm acted in good faith in relation to the court's original order, which implied that legal counsel was in effect until the dispute had ended, which it has not.
While Coble asked Henderson to consider extending legal representation going forward, he said at the very least the judge should extend the obligation through Tuesday.
Coble argued that the firm should be allowed to pursue the legal challenges on behalf of Rivero until those challenges were exhausted.
In response to Coble, Harry pointed out that case law on Brady “is very clear” that there is no appeal process.
Referencing the statement by Coble that Jones and Mayer had acted in good faith in continuing to represent Rivero after the Brady decision, Harry responded, “It's fairly clear that there is nowhere to go after the Brady determination has been made.”
She also pointed out that the Board of Supervisors had filed the request for clarification at the same time as it decided to hold off on paying the most recent bills.
Henderson told Harry that what the board did or didn't do was not relevant to his intent.
He said the same thing to Coble when Coble suggested that the County Counsel's Office had violated the rules of professional responsibility by taking an adverse position against Rivero.
Coble said that in the law you win some actions and lose others, and the fact that you've lose one doesn't mean you've proceeded in bad faith. The responsibility, he said, is to advance good faith arguments for the application and extension of the law.
Henderson said he would review the matter and try to get his decision finished later this week or next Monday at the latest.
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