Gallegos' REQUEST FOR OPINION

Attempting to implement Salzman's Plan:
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office.

As you read it, consider this: THE REAL QUESTION. No matter how carefully couched in legalese, the real question is whether or not the Humboldt County District Attorney can SOLICIT and accept SPECIAL INTEREST MONEY to fund the public prosecution of Pacific Lumber Company.

It is my contention that allowing politically motivated activist groups to hijack the public judicial system, using similarly inclined public officials to act on their behalf in pursuit of their political agendas should never be permitted. Allowing a District Attorney to pursue a specific case above all others, funded by special interest groups, in pursuit of fulfillment of campaign backer's political agendas should never be permitted. The detrimental effects on society and on the public judicial system are immeasurable.

Note: While Gallegos withdrew his Request on September 23, 2004. I am told that this may be because he was given a heads up that the Opinion to be rendered would not be in his favor. Nevertheless, if you read Salzman's Plan (complete text on previous post) you will see that Gallegos continued to set about implementing portions of that plan, specifically the plan to bring in "pro-bono" attorneys to work on the PL case.
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The Request for Opinion:

Off ice of the District Attorney of Humboldt County letterhead

pg. 1 of 3

To:

Honorable Bill Lockyer Date: March 29, 2004
Attorney General of California
P.O. Box 944255
Sacramento, CA 94244-2550

Re: Request for Formal Opinion - Authority of a board of supervisors to establish a trust fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular cases.

Dear Mr. Attorney general:

Our office is considering the making of a request to the Humboldt County Board of Supervisors to establish a Trust Fund under Government Code section 23555 for the purpose of receiving donations from the public to subsidize district attorney operations. In addition to general gifts, that section authorizes a board to dispose of such property "for those lawful uses and purposes as are prescribed in the terms of the gift, bequest, or devise."

Because we anticipate that some members of the public will be making gifts earmarked for the district attorney to use in the prosecution of particular cases, including both criminal actions and Unfair Competition Law civil actions, we are requesting a formal opinion from you as to whether this is acceptable.

I.
Question presented

Does a board of supervisors have the authority to establish a Trust Fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular criminal and civil cases?

pg.2 of 3

Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 2

II.
Discussion

Our reading of the law is that such earmarked gifts would be upheld under the leading case of Hambarian v. Superior Court (2002) 27 Cal.4th 826. In that case the California Supreme Court refused to recuse a district attorney from a case where it received $450,000 worth of forensic accounting services from a victim city. In our situation, it appears there would be even less possibility of undue influence when the financial assistance comes from members of the general public who will not be direct victims in the earmarked case.

In Hambarian the Supreme Court adopted, as the test for recual, the same as it had used in People v. Eubanks (1996) 14 Cal.4th 580: whether the financial assistance if of "a nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party" (Hambarian, at p. 835) In doing so, it distinguished its holding from Eubanks, in which it had ordered recusal:

Our decision in Eubanks did not purport to fix a limit on the financial assistance that may be provided by an aggrieved victim. Rather we stated that the trial court would have been within its discretion to find a likelihood of unfairness where the crime victim, Borland International (Borland), was asked to pay for substantial investigative expenses already incurred by the prosecutor. The problem was not the 'fact' of the investigatory assistance itself, but the 'potential bias arising out of the district attorney's sense of obligation to Borland...."

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"In discussing the existence of the disabling conflict, we did not rely merely on 'the fact of investigatory assistance itself" and consequently declined to hold that a victim's financial assistance of any amount 'necessarily subjects the defendant to unfair prosecutorial treatment.' [Citation] We required the defendant instead to show that the financial assistance is of a "nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party." [Citation] That likelihood existed in Eubanks from 'the...


pg. 3 of 3

Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 3

... possible sense of obligation the district attorney would feel for Borland's payment of a debt owed by the district attorney's office,' an obligation derived from the fact that the district attorney had asked Borland to discharged a sizable debt the office had already incurred. [Citation]

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In Eubanks, the victim, Borland, was a competitor of the Symantec Corporation, whose president and chief executive officer was one of the defendants in the criminal prosecution. [Citation] One risk of Borland's involvement in the district attorney's prosecution was that the prosecution itself could be used as a strategic weapon to disrupt and distract competitor fro reasons wholly unrelated to the public administration of justice."

(Hambarian, 27 Cal4th at pp. 834, 835, 837, italics as in the opinion.)

III.
Conclusion

Based on Hambarian, it appears that our board of supervisors could establish a trust account able to accept earmarked funds for particular cases from members of the general public, who would not, either under that case or Eubanks, be deemed "an interested party," To make sure there could be no possible "interested party" issue, we would propose that such an ordinance prohibit earmarked gifts from any direct competitors of the persons being prosecuted.

We would greatly appreciate your being willing to provide us a formal opinion at your earliest convenience.

Very truly yours,

Paul V. Gallegos
District Attorney

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