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Appellate court sides with Rivero in appeal over scope of 'Brady' officer legal representation

LAKE COUNTY, Calif. – A state appellate court has ruled that Lake County's outgoing sheriff was entitled to a more extended period of outside legal representation – and, therefore, more attorney's fees – in his effort to dispute the district attorney's decision to place him on a list of officers with credibility issues.

In an unsigned decision issued Friday morning, justices with the First Appellate District Division Three ruled in favor of Sheriff Frank Rivero, who contended that he was entitled to representation coverage beyond District Attorney Don Anderson's decision to place him on the “Brady” list of officers in early 2013.

Starting shortly after Rivero took office in January 2011, Anderson – who also had just taken over district attorney duties – investigated Rivero for having allegedly given conflicting statements to investigators about his actions during a February 2008 incident in which he shot at an unarmed man. The man was not injured.

The lengthy investigation resulted in Anderson placing Rivero on the “Brady list” in February 2013. Anderson’s investigation found that Rivero had lied to investigators about the circumstances of the shooting.

The “Brady list” is named for the 1963 US Supreme Court decision, Brady v. Maryland, which requires the government to release to criminal defendants any potentially exculpatory evidence, including information about the credibility of peace officers involved in their cases.

Days after the Brady ruling, Rivero sought a restraining order against Anderson to block the disclosure of his Brady listing. However, in early March 2013 retired Butte County Superior Court Judge William Lamb denied Rivero's request for the restraining order but allowed him to move forward with seeking a preliminary injunction and writ of mandate.

In May 2013, Lamb would throw out Rivero's case against Anderson, who filed an Anti-SLAPP motion, meant to address “strategic lawsuits against public participation.”

That same month, visiting Mendocino County Judge Richard Henderson offered a clarification of a ruling he made in 2012 in which he had required the Board of Supervisors to hire outside counsel for Rivero because of a conflict of interest in the County Counsel's Office.

In that 2013 ruling, Henderson said it hadn't been his intention to require the county to continue paying for Rivero's legal counsel past the final Brady determination, and he ordered an amended judgment and writ of mandate stating that the independent counsel he had directed the county to hire for Rivero “shall not extend to any post-determination representation or litigation,” as Lake County News has reported.

Two months later, Rivero filed the appeal of Henderson's decision.

The current decision

Rivero's attorney, Paul Coble of the Southern California-based Jones and Mayer law firm, and Thomas Creggar of Cregger & Chalfant LLP, the firm representing the county – which the board is paying for partially through funds it transferred from the sheriff's own accounts in July 2013 – argued and submitted their sides of the case on Dec. 10.

During those oral arguments, Rivero's counsel stated “that there is no longer any pending legal challenge to the district attorney’s decision to designate Rivero as a Brady officer. According to counsel, that legal challenge came to a conclusion at around the same time the trial court issued its amended judgment in this case.”

The appellate decision – rendered by Administrative Presiding Justice William McGuiness and associate justices Stuart Pollak and Peter Siggins – reversed Henderson's amended judgment and writ of mandate.

The justices agreed with Rivero, who had argued that the trial court erred in limiting the scope of the representation to which he was entitled.

“His right to independent counsel should have extended to a legal challenge to the district attorney’s designation of the sheriff as a Brady officer while Rivero served as sheriff,” the opinion said.

The court also agreed with Rivero that “once the court has made the necessary findings supporting the county’s duty to provide independent counsel for the assessor or sheriff, the court generally cannot place limitations on the manner in which independent counsel carries out its representation, except to define the issue or matter that is the subject of the representation.”

The ruling orders the trial court to enter “a new and different judgment providing that Rivero is entitled to a peremptory writ of mandate commanding the board of supervisors to contract with and employ independent counsel” pursuant to California Government Code Section 31000.6.

That code covers circumstances in which a board of supervisors should employ legal legal counsel to assist the assessor or the sheriff in the performance of their duties in any case where the county counsel or the district attorney would have a conflict of interest in offering the sheriff or assess representation.

That independent counsel, the appellate court said, is “to represent Rivero during his tenure as sheriff in challenging the district attorney's announced intention and final decision to identify and list Rivero as a Brady officer. The amended judgment and writ of mandate shall specify that the county's duty pursuant to section 31000.6 extends to reimbursing Rivero for fees and costs incurred by him in employing independent counsel for this purpose while he was serving as sheriff. Rivero shall recover his costs on appeal.”

The decision also states, “For purposes of clarification, although our disposition commands the board of supervisors to employ independent counsel for Rivero, that directive relates back to the judgment originally entered by the trial court. Therefore, the practical effect of our disposition is to require the county to pay for the attorney fees and costs previously incurred by Rivero in employing independent counsel to challenge the district attorney’s Brady officer designation.”

County Counsel Anita Grant told Lake County News on Friday that she didn't know if the county would take further action – such as an appeal of the ruling.

“That is up to the Board of Supervisors,” she said.

Grant also didn't have a full dollar figure for what Rivero's legal fees would cost the county.

The last specific dollar amount that the county was able to offer was just over $70,300 through June 30, 2013.

However, it's expected that the amount has far surpassed that previous figure due to the cost of the appellate process.

“I would expect some sort of itemized billing,” Grant said.

The case won't go before the Board of Supervisors until next month at the earliest, as the board had its last meeting of the year on Tuesday.

By the time the board does make a decision, Rivero will no longer be sheriff.

He was defeated in his bid for a second term in June, with Sheriff-elect Brian Martin to be sworn in on Jan. 6.

Email Elizabeth Larson at [email protected] . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

121914 First District Appellate decision on Rivero attorney fees

030413 Lake County District Attorney's Final Report Regarding Sheriff Rivero Brady determination by LakeCoNews

 

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