LAKE COUNTY — District Attorney Don Anderson doesn”t think the lawsuit Sheriff Frank Rivero filed against him should be allowed to continue.
Anderson submitted motions Wednesday asking the court to strike the civil complaint filed on Rivero”s behalf, throw out all of the sheriff”s main arguments and issue financial sanctions against Rivero and his lawyer.
“There is absolutely no statutory or case authority to support plaintiff”s position and there is sound case law that is in opposition to this position,” Anderson wrote in one document.
The lawsuit, filed last month, came in the wake of Anderson”s determination that Rivero lied after an on-duty shooting more than five years ago — a finding that could impact the sheriff”s ability to testify as a credible law-enforcement witness.
Rivero, who denies being untruthful, argues the DA”s inquiry into the 2008 incident was insufficient and violated his constitutional rights.
Since Anderson”s findings were released publicly March 4, Rivero received a vote of no confidence from the Board of Supervisors (BOS), denied the supervisors” request for his resignation and became the target of a recall effort.
Rivero declined to comment on the Anderson”s new motions, saying Wednesday, “I have not seen what the DA”s Office has filed, so I can”t intelligently comment on his arguments.”
Attorney Ryan R. Jones, who represents the sheriff, said their side had not been served with copies of Anderson”s filings.
Rivero lost the first court battle in the lawsuit March 4, when retired Butte County Judge William P. Lamb denied Rivero”s requests for materials in the case to be sealed and for a temporary restraining order against Anderson to preclude him from publicly discussing his inquiry and findings.
In response, Anderson filed motions Wednesday in an attempt to end the lawsuit.
The DA argued in one document that the court should throw out Rivero”s four causes of action, including the arguments that the inquiry violated the sheriff”s rights to due process and privacy.
In another motion, Anderson asked the court to strike Rivero”s entire complaint.
If the document weren”t stricken, the DA requested the court remove two specific portions: one that argues the sheriff should receive “more due process rights than a unilateral, arbitrary and informal decision by Anderson” and another claiming Anderson “failed to comport with minimum applicable standards of due process.”
In a third motion, Anderson argued the lawsuit is frivolous, so he should recover attorney fees from Rivero — to the tune of $300 per hour.
The DA also said financial sanctions should be levied against Rivero and his attorney, and the amount should equal the cost county taxpayers have incurred while funding the sheriff”s legal counsel.
The county government paid for the sheriff to have an outside attorney during Anderson”s inquiry, but the BOS obliged only after being ordered by the court.
Rivero asked the supervisors for county-funded independent counsel in March 2012 after County Counsel Anita Grant determined her office had a conflict and could not represent the sheriff or the DA.
The BOS denied the request, so Rivero sued. Assigned Judge Richard J. Henderson sided with the sheriff last summer and ordered the county to cover the legal bills.
The payments stopped last month, when the supervisors held off on paying Rivero”s outstanding legal fees, reportedly at $29,600 as of March 12.
Instead, the BOS asked Grant to initiate proceedings to clarify whether the court order applied only until the DA made his determination or whether it extended to subsequent legal challenges by the sheriff.
In one Wednesday motion, Anderson asked the court to require Rivero to personally pay all attorney fees and sanctions — as opposed to making the county government do so.
Anderson said he planned to continue representing his office during the Rivero lawsuit even though he might be entitled to county-funded outside counsel as well. Anderson asked the court to consider his new motions during a hearing May 7.
The dispute between the DA and sheriff dates back almost two years.
Anderson opened an investigation in 2011 after a former Lake County Sheriff”s deputy came forward claiming Rivero lied after the February 2008 incident during which then-deputy Rivero fired a single shot at a suspect, who was not hit.
Rivero denied identifying what was in the suspect”s hand, but several witnesses said they heard Rivero acknowledge seeing the man hold pepper spray as opposed to some type of life-threatening weapon, according to the DA”s report.
The incident was investigated at the time and no criminal charges were filed against Rivero, who was elected sheriff in 2010.
Anderson, also elected to a first term in 2010, said he had an obligation to investigate Rivero”s official statements in the wake of the 2008 shooting because the alleged untruthfulness could impact the sheriff”s credibility as a witness.
Furthermore, the DA argued he was required to turn over his findings to defendants in any criminal case in which the sheriff could testify, under the precedent set in the U.S. Supreme Court case Brady v. Maryland.
Officers with a documented history of untruthfulness in official matters, which would impact their ability to testify as credible witnesses, are sometimes placed on a “Brady list.”
Rivero”s lawsuit, in part, questions whether prosecutors should be allowed to make “Brady” classifications without allowing an officer a due process hearing or judicial review — an assertion Anderson strongly disagrees with.
Jeremy Walsh is a staff reporter for Lake County Publishing. Reach him at 263-5636, ext. 37 or jwalsh@record-bee.com. Follow his court coverage on Twitter, @JeremyDWalsh, #Rivero or #Lakecourt.
