A measure of courage
by Shane Wilson
The Rio Dell Volunteer Fire Department and the Rio Dell Fire Protection District would like to offer our deepest condolences to the Rodoni family for the tremendous loss they have suffered. Roger was a true friend to our department and we will miss him. His smiling face and humorous persona while volunteering during our Wildwood Days Bar-B-Que will be a lasting memory for all of us.
I find this column very difficult to write, even though many days have past since that tragic afternoon. I wanted to say these things during Roger's memorial service; however, I knew that I would have been too emotional to speak. Putting this into words will be difficult, but here it goes:
I will start by saying how proud I am of our volunteer firefighters who were at the scene of the accident that day. Four people from our department just happened to be passing by, and stopped to assist the victims in this fairly large accident. Their actions that day are an inspiration to volunteers and Samaritans everywhere.
This was a test of courage that cannot be measured, but can be greatly appreciated by everyone in our community. I am truly honored to be a member of a fire department with such selfless and professional personnel.
Rogers last seconds were the epitome of strength and courage.
Everyone has heard the main ingredients in this tragic story: Roger was going to his rally in Fortuna. He was talking to his beloved wife Johanna on his cell phone. Johanna and Roger had just passed each other going opposite directions seconds before the accident.
Here are some of the details that only a few people know about:
Roger's Ford F250 came to rest over the bank on its wheels after rolling numerous times. The cab of the pickup was severely crushed, and the trauma that Roger sustained was immense. He was also trapped in the driver's side doorway of the vehicle.
Amber Bowlds, one of the above-mentioned firefighters, was the first to make contact with Roger. Shockingly, she found that he had a pulse. However, he was not breathing.
Feeling helpless, Amber could not initiate CPR due to Roger's position in the vehicle. She tried to manage his airway by holding his head a position to breathe. Within a few minutes, Amber saw someone standing beside the vehicle who she recognized immediately. It was Johanna.
Johanna, sensing something was wrong, had turned her vehicle around and returned to check on her husband. She asked Amber about the condition Roger was in. Amber told her that it was not good.
Johanna asked if she could go to him, and Amber told her that it was her decision, but she should know that he was hurt very badly.
Bravely, Johanna went to her husband's side and held his hand. She spoke to him in private for the last time. Johanna told him that she loved him, and his pulse was soon lost. I do not know the words that she chose, but I know that Roger waited to hear them before he let go.
Roger Rodoni is the utmost measure of courage. This impact should have caused his death immediately, but Roger knew that his wife would soon return. He was strong enough to hold on for several minutes so they could share one last goodbye. He gave her that final moment with him, truly an inspiring moment for us all.
Roger was many different things to many different people: Friend, colleague, mentor and teacher, just to name a few. For me, in those final minutes of his life, he also became an inspiration.
Shane Wilson is chief of the Rio Dell Volunteer Fire Department.
5.23.2008
5.01.2008
ER - Gallegos sidesteps questions about possible conflict of interest in Bowman charges
Gallegos sidesteps questions about possible conflict of interest in Bowman charges
A large contribution to the successful 2006 re-election campaign of Humboldt County District Attorney Paul Gallegos has raised questions the DA has so far declined to answer, after it was learned that the son of the man chiefly responsible for the contribution subsequently escaped punishment on numerous criminal charges, including one alleging the statutory rape of a 14-year-old girl.
According to Fair Political Practices Commission filings, the donation, in the amount of $10,000, was the single largest monetary contribution received by the campaign of the incumbent DA from any contributor whose last name was not Gallegos.
FPPC documents indicate that the contribution was recorded April 29, and attributed to the Bear River Band of Rohnerville Rancheria, which is chaired by Leonard Bowman, father of Derek Bowman, 25, both of Loleta.
The younger Bowman’s association with law enforcement spans two states and 11 years, and includes as many as 40 criminal charges ranging from assault with a deadly weapon as a juvenile to three charges alleging violence against one adult and two juvenile females in 2006.
But on July 19, less than six weeks after Gallegos was re-elected, the DA’s Office gathered nine felonies and a handful of misdemeanors pending against Derek, and dismissed or suspended sentence on all of them in a single day.
According to publicly available court documents, recent charges against Derek included felony statutory rape, five counts of felony check fraud against local businesses, felony burglary, felony threats, felony battery, misdemeanor battery and misdemeanor resisting arrest.
Restitution orders for the check fraud cases were part of the July 19 deals, but the documents show that no jail time for any of the alleged offenses was requested by the DA’s Office.
For violation of probation on a previous charge, Derek was sentenced in July to 180 days, less time served, in the Humboldt County jail.
FOLLOWING THE MONEY
In a declaration in support of an arrest warrant on one of the charges against Derek, Humboldt County Sheriff’s Deputy Troy Garey wrote on June 26 that Cheree Bowie, the mother of Derek’s 17-year-old wife, told him that Derek had “been bragging that even if he was arrested, his dad would get him out of jail.”
In his report, Garey stated that he asked Bowie how she knew this.
“Bowie said the suspect’s father, Leonard Bowman, is the tribal chairperson on the Bear River reservation,” Garey wrote, “and he and the tribe and the Bear River Casino gave District Attorney Paul Gallegos $10,000 in his recent re-election campaign for DA. Bowie then hung up the phone.”
When The Eureka Reporter attempted to contact Bowman at the tribal office, a woman who answered the phone said that Bowman had no comment when he was told the call was regarding campaign contributions.
In all, the Bowmans, the tribe and an attorney employed by the casino contributed $11,100 to Gallegos’ campaign coffers, just under 10 percent of the total of all funds raised by the incumbent during the campaign, according to FPPC filings.
In addition to the $10,000 contribution in the name of the Rancheria, Leonard and his wife personally contributed $100, the FPPC documents show.
The same documents indicate Bear River attorney Michael Acosta contributed $1,000.
Contained in the court records is a letter to the Humboldt County Probation Department, dated Aug. 7 and written on Bear River Gaming Agency letterhead, in which Acosta requested that Derek be granted probation in lieu of the 180-day sentence.
Acosta stated in the letter that he would recommend reinstatement of Derek’s employment in the casino’s surveillance department should probation be granted.
Court documents state that Derek has been charged with violating the terms of his probation seven times in the past nine years.
FOLLOWING THE RULES
While there is no direct evidence that indicates Derek was treated differently because of the contributions, neither did Gallegos exercise any of the options available to him to avoid the appearance of a conflict of interest.
The simple explanation may be that he was not legally required to do so.
According to Del Norte County District Attorney Mike Riese, there is no rule requiring the removal or “recusal” of a DA from cases in which a possible conflict of interest is perceived.
Riese, who has no involvement in the Bowman cases and spoke only in general terms about recusal, said, “District attorneys have unfettered discretion under the government code. If we choose, we can recuse ourselves, we can ask the attorney general to come in or we can appoint a special prosecutor.”
But Riese reiterated that no district attorney in California would be under any legal obligation to choose any of those alternatives.
It is not known if Gallegos attempted to recuse himself from Derek’s criminal cases, but none of the 232 pages of court documents contained in the court files makes reference to a recusal.
Neither does Gallegos appear to have referred Derek’s cases for prosecution by the California State Attorney General’s Office, which retains concurrent jurisdiction in all cases prosecuted by California district attorneys and their deputies.
FOLLOWING COURT PRECEDENT
There is no evidence in any of the files that Gallegos was personally involved in Derek’s prosecution. However, according to numerous legal precedents, in cases in which there exists a possible conflict of interest, an entire DA’s Office is commonly recused.
In a recent example that presented a possible conflict for the Los Angeles County District Attorney, Deputy DA Matthew Monforton wrote a memorandum to county officials demanding recusal of all L.A. County prosecutors and referral of the case to the attorney general.
When a district attorney suffers from a conflict of interest, Monforton wrote, “appellate courts have imputed the conflict to all deputy district attorneys in the same county.”
Monforton cited People v. Lepe, a 1985 Imperial County case in which a conflict was perceived between District Attorney Thomas Storey and a defendant he had once represented as a defense attorney. The California Court of Appeals disqualified Storey, but didn’t stop there.
“As the deputies are hired by Storey, promoted by Storey and fired by Storey,” the court concluded, “we cannot say the office can be sanitized such to assume the deputy who prosecutes the case will not be influenced by the considerations that bar Storey himself from participation in the case.”
Again, in People v. Choi, Monforton wrote, San Francisco County District Attorney Terrence Hallinan recused himself to avoid a potential conflict, but the California Court of Appeals went further, stating that Hallinan’s entire office should have been recused because prosecutors are “hired, evaluated and promoted by the district attorney.”
The court documents indicate that Derek was at various times defended by what is called “conflict counsel,” meaning an alternative defense attorney was assigned to a particular case after the original public defender disclosed a possible conflict in handling the case.
But the same documents show that similar steps were not taken by prosecutors. Derek’s charges were handled by several prosecutors in the DA’s Office, including Assistant District Attorney Wes Keat, Deputy District Attorneys Maggie Fleming and Max Cardoza and former Deputy District Attorneys Nicole Hansen and Heather Gimle.
Gallegos declined to return repeated phone calls requesting comment for this report, and also declined to answer questions about the matter by e-mail.
In response to several specific inquiries regarding the $10,000 campaign contribution and the subsequent handling of Derek’s criminal cases, Gallegos stated in an e-mail only the following: “This office operates without fear or favor.”
FOLLOWING UP
During the 2006 DA campaign, former Deputy District Attorney Worth Dikeman, Gallegos’ opponent, called on the incumbent to recuse the DA’s Office in the Cheri Moore homicide and refer the case to the attorney general, accusing Gallegos of “making political hay” of the investigation.
“(Gallegos) has a history of rewarding his allies and punishing those who oppose him,” Dikeman said at a May 25 press conference.
“His history of questionable practices, his failure to expeditiously resolve this matter and his strained relationship with the rest of the law enforcement community, including the Eureka Police Officers Association, make this an appropriate case for the attorney general to exercise his discretion under the government code and take full charge of the investigation,” Dikeman said.
Dikeman has acknowledged that one possible factor in his most recent defeat by Gallegos was the extended protest in front of the Courthouse staged by Ellie Bowman, who is Derek’s mother and Leonard’s wife.
“It certainly isn’t helping,” Dikeman said in June.
Ellie was protesting comments Dikeman had made about prospective Native American jurors in the now infamous 1992 murder case against former Fortuna resident Richard Kesser.
The 9th Circuit Court of Appeals found Sept. 11 in a six-to-five vote that some of Dikeman’s statements contained racial bias, and Kesser’s conviction could be headed for retrial as a result.
But Dikeman said at the time that Ellie had another reason to protest his candidacy. The deputy DA successfully prosecuted Ellie’s other son, Jeffrey Bowman, for the 1999 murder of Trinidad Rancheria member Julius Aubrey.
Jeffrey is currently serving a prison term of 25 years to life.
Jail officials said Friday that Derek was no longer in custody. Technically still booked, he was released Sept. 11 to serve the balance of his 180-day sentence in the Humboldt County Sheriff’s Work Alternative Program.
(Diane M. Batley, Rebecca S. Bender and Megan McCulloch contributed to this report.)
By Heather Muller, The Eureka Reporter
Published: Sep 26 2006, 12:19 AM · Updated: Sep 26 2006, 9:38 AM
Related stories:
ER - Bear River members seek chairperson's recall
ER - Gallegos sidesteps questions about possible conflict of interest in Bowman charges
ER - Questions without answers hinder our newsgathering
ER - Bowman story not accurate
ER - Contribution made because Gallegos was the better of the two
ER - Questions remain in DA's handling of Bowman charges
ER - Bear River official discusses financial contributions from tribe
ER - Tribe's contribution to DA's campaign was made by the Tribal Council, not Bowman
ER - Gallegos is 'public servant,' not Legal Spiegel
ER - It's telling that Gallegos witch hunt didn't start until firing of Dikeman
ER - Writer appreciates editor's note that identifies writers
ER - Residents deserve answers to questions asked of DA's Office
ER - Bitter? You bet!
TS - Donations not improper, says Bear River Band
TS - DA's office: State OK'd handling of plea deal
A large contribution to the successful 2006 re-election campaign of Humboldt County District Attorney Paul Gallegos has raised questions the DA has so far declined to answer, after it was learned that the son of the man chiefly responsible for the contribution subsequently escaped punishment on numerous criminal charges, including one alleging the statutory rape of a 14-year-old girl.
According to Fair Political Practices Commission filings, the donation, in the amount of $10,000, was the single largest monetary contribution received by the campaign of the incumbent DA from any contributor whose last name was not Gallegos.
FPPC documents indicate that the contribution was recorded April 29, and attributed to the Bear River Band of Rohnerville Rancheria, which is chaired by Leonard Bowman, father of Derek Bowman, 25, both of Loleta.
The younger Bowman’s association with law enforcement spans two states and 11 years, and includes as many as 40 criminal charges ranging from assault with a deadly weapon as a juvenile to three charges alleging violence against one adult and two juvenile females in 2006.
But on July 19, less than six weeks after Gallegos was re-elected, the DA’s Office gathered nine felonies and a handful of misdemeanors pending against Derek, and dismissed or suspended sentence on all of them in a single day.
According to publicly available court documents, recent charges against Derek included felony statutory rape, five counts of felony check fraud against local businesses, felony burglary, felony threats, felony battery, misdemeanor battery and misdemeanor resisting arrest.
Restitution orders for the check fraud cases were part of the July 19 deals, but the documents show that no jail time for any of the alleged offenses was requested by the DA’s Office.
For violation of probation on a previous charge, Derek was sentenced in July to 180 days, less time served, in the Humboldt County jail.
FOLLOWING THE MONEY
In a declaration in support of an arrest warrant on one of the charges against Derek, Humboldt County Sheriff’s Deputy Troy Garey wrote on June 26 that Cheree Bowie, the mother of Derek’s 17-year-old wife, told him that Derek had “been bragging that even if he was arrested, his dad would get him out of jail.”
In his report, Garey stated that he asked Bowie how she knew this.
“Bowie said the suspect’s father, Leonard Bowman, is the tribal chairperson on the Bear River reservation,” Garey wrote, “and he and the tribe and the Bear River Casino gave District Attorney Paul Gallegos $10,000 in his recent re-election campaign for DA. Bowie then hung up the phone.”
When The Eureka Reporter attempted to contact Bowman at the tribal office, a woman who answered the phone said that Bowman had no comment when he was told the call was regarding campaign contributions.
In all, the Bowmans, the tribe and an attorney employed by the casino contributed $11,100 to Gallegos’ campaign coffers, just under 10 percent of the total of all funds raised by the incumbent during the campaign, according to FPPC filings.
In addition to the $10,000 contribution in the name of the Rancheria, Leonard and his wife personally contributed $100, the FPPC documents show.
The same documents indicate Bear River attorney Michael Acosta contributed $1,000.
Contained in the court records is a letter to the Humboldt County Probation Department, dated Aug. 7 and written on Bear River Gaming Agency letterhead, in which Acosta requested that Derek be granted probation in lieu of the 180-day sentence.
Acosta stated in the letter that he would recommend reinstatement of Derek’s employment in the casino’s surveillance department should probation be granted.
Court documents state that Derek has been charged with violating the terms of his probation seven times in the past nine years.
FOLLOWING THE RULES
While there is no direct evidence that indicates Derek was treated differently because of the contributions, neither did Gallegos exercise any of the options available to him to avoid the appearance of a conflict of interest.
The simple explanation may be that he was not legally required to do so.
According to Del Norte County District Attorney Mike Riese, there is no rule requiring the removal or “recusal” of a DA from cases in which a possible conflict of interest is perceived.
Riese, who has no involvement in the Bowman cases and spoke only in general terms about recusal, said, “District attorneys have unfettered discretion under the government code. If we choose, we can recuse ourselves, we can ask the attorney general to come in or we can appoint a special prosecutor.”
But Riese reiterated that no district attorney in California would be under any legal obligation to choose any of those alternatives.
It is not known if Gallegos attempted to recuse himself from Derek’s criminal cases, but none of the 232 pages of court documents contained in the court files makes reference to a recusal.
Neither does Gallegos appear to have referred Derek’s cases for prosecution by the California State Attorney General’s Office, which retains concurrent jurisdiction in all cases prosecuted by California district attorneys and their deputies.
FOLLOWING COURT PRECEDENT
There is no evidence in any of the files that Gallegos was personally involved in Derek’s prosecution. However, according to numerous legal precedents, in cases in which there exists a possible conflict of interest, an entire DA’s Office is commonly recused.
In a recent example that presented a possible conflict for the Los Angeles County District Attorney, Deputy DA Matthew Monforton wrote a memorandum to county officials demanding recusal of all L.A. County prosecutors and referral of the case to the attorney general.
When a district attorney suffers from a conflict of interest, Monforton wrote, “appellate courts have imputed the conflict to all deputy district attorneys in the same county.”
Monforton cited People v. Lepe, a 1985 Imperial County case in which a conflict was perceived between District Attorney Thomas Storey and a defendant he had once represented as a defense attorney. The California Court of Appeals disqualified Storey, but didn’t stop there.
“As the deputies are hired by Storey, promoted by Storey and fired by Storey,” the court concluded, “we cannot say the office can be sanitized such to assume the deputy who prosecutes the case will not be influenced by the considerations that bar Storey himself from participation in the case.”
Again, in People v. Choi, Monforton wrote, San Francisco County District Attorney Terrence Hallinan recused himself to avoid a potential conflict, but the California Court of Appeals went further, stating that Hallinan’s entire office should have been recused because prosecutors are “hired, evaluated and promoted by the district attorney.”
The court documents indicate that Derek was at various times defended by what is called “conflict counsel,” meaning an alternative defense attorney was assigned to a particular case after the original public defender disclosed a possible conflict in handling the case.
But the same documents show that similar steps were not taken by prosecutors. Derek’s charges were handled by several prosecutors in the DA’s Office, including Assistant District Attorney Wes Keat, Deputy District Attorneys Maggie Fleming and Max Cardoza and former Deputy District Attorneys Nicole Hansen and Heather Gimle.
Gallegos declined to return repeated phone calls requesting comment for this report, and also declined to answer questions about the matter by e-mail.
In response to several specific inquiries regarding the $10,000 campaign contribution and the subsequent handling of Derek’s criminal cases, Gallegos stated in an e-mail only the following: “This office operates without fear or favor.”
FOLLOWING UP
During the 2006 DA campaign, former Deputy District Attorney Worth Dikeman, Gallegos’ opponent, called on the incumbent to recuse the DA’s Office in the Cheri Moore homicide and refer the case to the attorney general, accusing Gallegos of “making political hay” of the investigation.
“(Gallegos) has a history of rewarding his allies and punishing those who oppose him,” Dikeman said at a May 25 press conference.
“His history of questionable practices, his failure to expeditiously resolve this matter and his strained relationship with the rest of the law enforcement community, including the Eureka Police Officers Association, make this an appropriate case for the attorney general to exercise his discretion under the government code and take full charge of the investigation,” Dikeman said.
Dikeman has acknowledged that one possible factor in his most recent defeat by Gallegos was the extended protest in front of the Courthouse staged by Ellie Bowman, who is Derek’s mother and Leonard’s wife.
“It certainly isn’t helping,” Dikeman said in June.
Ellie was protesting comments Dikeman had made about prospective Native American jurors in the now infamous 1992 murder case against former Fortuna resident Richard Kesser.
The 9th Circuit Court of Appeals found Sept. 11 in a six-to-five vote that some of Dikeman’s statements contained racial bias, and Kesser’s conviction could be headed for retrial as a result.
But Dikeman said at the time that Ellie had another reason to protest his candidacy. The deputy DA successfully prosecuted Ellie’s other son, Jeffrey Bowman, for the 1999 murder of Trinidad Rancheria member Julius Aubrey.
Jeffrey is currently serving a prison term of 25 years to life.
Jail officials said Friday that Derek was no longer in custody. Technically still booked, he was released Sept. 11 to serve the balance of his 180-day sentence in the Humboldt County Sheriff’s Work Alternative Program.
(Diane M. Batley, Rebecca S. Bender and Megan McCulloch contributed to this report.)
By Heather Muller, The Eureka Reporter
Published: Sep 26 2006, 12:19 AM · Updated: Sep 26 2006, 9:38 AM
Related stories:
ER - Bear River members seek chairperson's recall
ER - Gallegos sidesteps questions about possible conflict of interest in Bowman charges
ER - Questions without answers hinder our newsgathering
ER - Bowman story not accurate
ER - Contribution made because Gallegos was the better of the two
ER - Questions remain in DA's handling of Bowman charges
ER - Bear River official discusses financial contributions from tribe
ER - Tribe's contribution to DA's campaign was made by the Tribal Council, not Bowman
ER - Gallegos is 'public servant,' not Legal Spiegel
ER - It's telling that Gallegos witch hunt didn't start until firing of Dikeman
ER - Writer appreciates editor's note that identifies writers
ER - Residents deserve answers to questions asked of DA's Office
ER - Bitter? You bet!
TS - Donations not improper, says Bear River Band
TS - DA's office: State OK'd handling of plea deal
Why DA's Palco suit was ill-advised
”All good things must come to an end” is an old saying we all know. With any luck, the same could be said of all bad things, and so it is with the People v. Pacific Lumber Company lawsuit filed by the Humboldt County district attorney.
After being dismissed by the trial court and then having been unanimously rejected by the appeals court, the California Supreme Court has driven a stake through the heart of this ill-advised lawsuit. On April 24, the Supreme Court denied District Attorney Gallegos' petition for review. It also denied his request to have the appellate court decision depublished.
The public deserves an explanation of what all this means.
Before that, I would like to make it clear that I in no way approve of Palco's behavior. I personally prosecuted them twice criminally (obtaining literally every last penny available as penalties under the 15 counts I charged collectively) and once civilly (against Scopac, actually), receiving $80,000 in a settlement, $35,000 of which I sent to schools in the Van Duzen watershed.
And I found Palco's behavior in the recall election astounding and shameful, an incredibly bad set of decisions to fund petition signers and more in an effort to drive out an elected official.
That said, Gallegos' decision to prosecute Palco was a political one, make no mistake. Political prosecutions are never a good idea.
Within days of taking office, Gallegos directed his chief investigator to conduct an investigation. When his investigators reported they could not find evidence of a crime, the suit was filed civilly instead. The day before it was filed, a member of a local watchdog organization sat in the DA's library and read the complaint.
The civil complaint was poorly charged, forcing Gallegos' office to twice amend it during trial. Even so, the trial court ultimately dismissed it on a “demurrer,” which is a motion asserting the case lacks the basic essentials to get to trial. The dismissal was “without leave to amend,” meaning the trial court found the allegations incapable of proceeding. The appellate court was even less kind.
Stating the rule that it must “give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded,” the appellate court examined the only two arguments Gallegos made: (1) the “litigation privilege” in Civil Code section 47(b), which is “absolute,” and (2) the Gallegos-named “right-to-lie” argument (the Noerr-Pennington doctrine, actually). Both went down in flames.
The idea in the “litigation privilege” is that those honestly in court should be allowed to make whatever claims they may without fear of then being sued simply for having made those claims. The principles are (1) protecting access to the courts, and (2) the “chilling effect” that such a fear would have on those with legitimate claims.
The appellate court looked at many cases, as well as the facts of the Palco case, and found that “the same chilling effect would occur here, we fear, were this (Palco) lawsuit to proceed.”
The “Noerr-Pennington doctrine” gives those who attempt to influence the government immunity from liability under federal antitrust law. There is a “sham exception” to this immunity, which Gallegos argued applied to Palco.
The appellate court “decline(d) to hold that the state's fraud-based allegations meet the requirements of the sham exception,” and held that Palco was “undoubtedly immune from liability under Noerr-Pennington.”
The appellate court closed its opinion noting that the court “must determine whether plaintiffs [the state] have demonstrated evidence which, if credited, would justify their prevailing at trial.” It then held that “for the reasons discussed above, we conclude the state's evidence, even if credited, would not justify its prevailing at trial. Further, we conclude the state has failed to prove, on its third try, a reasonable possibility that the (complaint)'s defect can be cured by amendment.”
In short, all arguments advanced by District Attorney Gallegos, both at trial and on appeal, were shot down in their entirety.
It is said that “bad facts make bad law.” And so Gallegos asked to have the appellate court's decision “depublished,” meaning that it would no longer be law. The Supreme Court declined, and we are left with “The People ex rel Paul V. Gallegos, as District Attorney v. the Pacific Lumber Company.”
Some may celebrate the end of this case, finding it bad, while others may lament, seeing the case as good. We are all still left deciding if we approve of further political prosecutions That, I submit, is bad.
Paul Hagen is an attorney in Eureka. He previously served as a deputy district attorney in four northern California counties, including Humboldt county. He resides in Eureka.
Paul Hagen
Article Launched: 05/01/2008 01:27:25 AM PDT
”All good things must come to an end” is an old saying we all know. With any luck, the same could be said of all bad things, and so it is with the People v. Pacific Lumber Company lawsuit filed by the Humboldt County district attorney.
After being dismissed by the trial court and then having been unanimously rejected by the appeals court, the California Supreme Court has driven a stake through the heart of this ill-advised lawsuit. On April 24, the Supreme Court denied District Attorney Gallegos' petition for review. It also denied his request to have the appellate court decision depublished.
The public deserves an explanation of what all this means.
Before that, I would like to make it clear that I in no way approve of Palco's behavior. I personally prosecuted them twice criminally (obtaining literally every last penny available as penalties under the 15 counts I charged collectively) and once civilly (against Scopac, actually), receiving $80,000 in a settlement, $35,000 of which I sent to schools in the Van Duzen watershed.
And I found Palco's behavior in the recall election astounding and shameful, an incredibly bad set of decisions to fund petition signers and more in an effort to drive out an elected official.
That said, Gallegos' decision to prosecute Palco was a political one, make no mistake. Political prosecutions are never a good idea.
Within days of taking office, Gallegos directed his chief investigator to conduct an investigation. When his investigators reported they could not find evidence of a crime, the suit was filed civilly instead. The day before it was filed, a member of a local watchdog organization sat in the DA's library and read the complaint.
The civil complaint was poorly charged, forcing Gallegos' office to twice amend it during trial. Even so, the trial court ultimately dismissed it on a “demurrer,” which is a motion asserting the case lacks the basic essentials to get to trial. The dismissal was “without leave to amend,” meaning the trial court found the allegations incapable of proceeding. The appellate court was even less kind.
Stating the rule that it must “give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded,” the appellate court examined the only two arguments Gallegos made: (1) the “litigation privilege” in Civil Code section 47(b), which is “absolute,” and (2) the Gallegos-named “right-to-lie” argument (the Noerr-Pennington doctrine, actually). Both went down in flames.
The idea in the “litigation privilege” is that those honestly in court should be allowed to make whatever claims they may without fear of then being sued simply for having made those claims. The principles are (1) protecting access to the courts, and (2) the “chilling effect” that such a fear would have on those with legitimate claims.
The appellate court looked at many cases, as well as the facts of the Palco case, and found that “the same chilling effect would occur here, we fear, were this (Palco) lawsuit to proceed.”
The “Noerr-Pennington doctrine” gives those who attempt to influence the government immunity from liability under federal antitrust law. There is a “sham exception” to this immunity, which Gallegos argued applied to Palco.
The appellate court “decline(d) to hold that the state's fraud-based allegations meet the requirements of the sham exception,” and held that Palco was “undoubtedly immune from liability under Noerr-Pennington.”
The appellate court closed its opinion noting that the court “must determine whether plaintiffs [the state] have demonstrated evidence which, if credited, would justify their prevailing at trial.” It then held that “for the reasons discussed above, we conclude the state's evidence, even if credited, would not justify its prevailing at trial. Further, we conclude the state has failed to prove, on its third try, a reasonable possibility that the (complaint)'s defect can be cured by amendment.”
In short, all arguments advanced by District Attorney Gallegos, both at trial and on appeal, were shot down in their entirety.
It is said that “bad facts make bad law.” And so Gallegos asked to have the appellate court's decision “depublished,” meaning that it would no longer be law. The Supreme Court declined, and we are left with “The People ex rel Paul V. Gallegos, as District Attorney v. the Pacific Lumber Company.”
Some may celebrate the end of this case, finding it bad, while others may lament, seeing the case as good. We are all still left deciding if we approve of further political prosecutions That, I submit, is bad.
Paul Hagen is an attorney in Eureka. He previously served as a deputy district attorney in four northern California counties, including Humboldt county. He resides in Eureka.
Paul Hagen
Article Launched: 05/01/2008 01:27:25 AM PDT