Judge denies Mirkarimi motions; city process begins Monday

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Ross Mirkarimi and attorney David Waggoner (background) addressed reporters after today's hearing.
Guardian photo by Steven T. Jones

Superior Court Judge Harold Kahn today denied all motions by Sheriff Ross Mirkarimi's legal team challenging his suspension without pay, city procedures, and the constitutionality of the city's official misconduct charter language, saying it's premature to conclude Mirkarimi isn't being treated fairly.

“But the courthouse door remains open,” Kahn concluded, inviting Mirkarimi to return after the Ethics Commission establishes rules of procedure and evidence, which it will begin doing on Monday. Today's rulings, and another yesterday, in which Kahn ruled against a motion to disqualify the City Attorney's Office from overseeing the proceedings, clears the way for the Ethics Commission to consider recommending to the Board of Supervisors that Mirkarimi be removed from office.

Kahn also seemed to agree with Mirkarimi's team that Mayor Ed Lee didn't give him a fair hearing before suspending him or that he made an argument for suspending him without pay. But Kahn sided with the city on the legal question of whether Mirkarimi has a “property interest” in his salary, which would have triggered the right to a hearing before being suspended, making such procedural questions moot.

“If there was a property right, what the mayor stated would not be adequate due process,” Kahn said, referring to Lee's affidavit describing their March 19 meeting, where Lee told Mirkarimi to resign or be suspended. Lee claims he gave Mirkarimi the opportunity to tell his side of the story, which Mirkarimi denies, saying the mayor had made up his mind and wasn't interested in the real story. On the salary question, Deputy City Attorney Sherri Kaiser said Mirkarimi would be entitled to full back pay from his suspension period if the supervisors vote to keep him in office, arguing that he isn't being harmed.

Mirkarimi was suspended based on language in the city charter that was adopted in 1996 – banning “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers” – that has never been reviewed by the courts and which Mirkarimi attorney David Waggoner contends is unconstitutionally vague.

But Kahn didn't agree, saying, “The charter is not so clearly outside the bounds of California law that I should preempt the processes.”

Waggoner complained that the city procedures didn't set rules of evidence or procedure or standards of guilt, making it difficult to prepare a defense, a point to which Kahn seemed sympathetic, noting the variety of legal standards for different types of cases, from “beyond reasonable doubt” to “a preponderance of evidence.”

“We don't know which of any of those is going to apply here. Is that a problem?” Kahn asked Kaiser.

She said no, that Mirkarimi and his legal team could return to court for help “if the commissioners really mess up” in the work they'll begin on Monday. “That summarizes my view. It is hypothetical to say the procedures are going to be unfair,” Kahn agreed. 

Addressing reporters after the hearing, Kaiser praised the judge's rulings and offered a small window into what will likely transpire in the coming months: “Certainly, the sheriff is going to have to testify under oath and not just to the media.” (Waggoner told reporters “no comment” when asked whether Mirkarimi will indeed testify under oath).

Kaiser's apparent dig at the various media interviews that Mirkarimi has just started to grant this week echoes statements that have come from District Attorney George Gascón, who has criticized Mirkarimi's characterization of his guilty plea and the behaviors that constituted false imprisonment, calling the media accounts “disturbing and telling.”

But Mirkarimi shot back at Gascón today, noting that the two men “have had some very high-profile disagreements” when Gascón was police chief and Mirkarimi chaired the Board of Supervisors Public Safety Committee. They had high-profile clashes over requiring police to do foot patrols, the crime lab controversy, budget issues (including Mirkarimi's unsuccessful efforts to find out how much Mayor Gavin Newsom's police security detail was costing the city as he ran for governor), and Gascón's controversial public statement equating people of Middle Eastern descent (such as Mirkarimi, who is Persian) with terrorists.

“It sometimes bubbles up in the course of these proceedings,” Mirkarimi said of Gascón's alleged personal or political animosity toward him.

Asked for a response, District Attorney's Office spokeperson Stephanie Ong Stillman wrote, "“It is the duty of the San Francisco District Attorney to uphold the law,
regardless of who violates it and without political motivation.  Ross Mirkarimi was afforded the same rights as any defendant. We treated his case no differently than any of the 776 domestic violence cases our office charged and reviewed last year."