A former San Bernardino county political operator is trying to revive his dismissed malicious prosecution case against former San Bernardino County District Attorney Michael Ramos.
Alan Yockelson, lawyer for James Erwin, the former chief of staff to a San Bernardino County Supervisor, orally argued for the appeal Feb. 14, claiming the district attorney’s investigation into Erwin was politically motivated.
Background
The long-fought litigation began in 2002, when developer Jeffrey Burum’s company, Colonies, initiated civil litigation against the county against easements for flood control and water conservation next to a Colonies development, according to the ruling for summary judgment that Erwin appealed.
In 2006, the San Bernardino County Board of Supervisors voted 3 to 2 to settle the lawsuits with a $102 million settlement agreement, after lobbying by Erwin, according to Erwin’s appellate brief.
The District Attorney’s Office began to investigate the settlement agreement, with a suspicion that the settlement was approved through corruption or a bribe, according to the court ruling.
The District Attorney’s Office charged former Assistant Assessor Adam Aleman with six felony counts in June, 2008, on seemingly unrelated cases of destroying county property and records, according to the ruling.
During a 2008 interview, which is summarized in the ruling, Aleman said Erwin showed him political hit pieces that would be released if the lawsuit was not settled, and that Erwin threatened to expose a supervisor’s homosexuality and drug use and another supervisor’s financial issues, if they did not vote to settle the lawsuit.
Aleman also claimed Burum took Erwin on a trip to New York City, where he bought Erwin a Rolex watch and provided money for prostitution.
In Erwin’s brief, he said Burum’s company did provide him with a private jet trip to New York City, and a Rolex watch. He accidentally neglected to report the donations on required government forms, he said.
He denied the prostitution allegation.
Ramos’ office said he began investigating Erwin after Aleman’s allegations. Erwin said Ramos’ office had already begun investigating him because of his lobbying and relationship with Burum.
Erwin was acquitted in 2017 after years of charges and accusations from multiple parties against Burum, Erwin, Aleman and others.
He, and others whom Ramos had charged, filed a suit against the county, Ramos and county employees in federal court, alleging they maliciously prosecuted him for First Amendment conduct, including running a political action committee in the county and lobbying in favor of the settlement.
Erwin’s complaint listed retaliation, malicious prosecution, Monell municipal liability, supervisorial liability, conspiracy, malicious prosecution under California Law, negligence and intentional infliction of emotional distress.
California Central District Judge Jesus Bernal granted a motion for summary judgment in July, 2020, and found no triable issues in Erwin’s claims.
Erwin’s appeal challenged the court’s ruling as to his retaliation claim against Ramos and Assistant District Attorney James Hackleman, his Monell municipal liability claim, his malicious prosecution claim, his conspiracy claim and his supervisorial liability claim.
Oral argument
Yockelson, Erwin’s attorney, argued that the first sign of animus against Erwin was in the District Attorney’s prosecution of him for not disclosing the watch and the private-jet trip to New York City.
“Even when it’s not appropriate to allow for a resubmission, those cases are usually charged as misdemeanors, and here it was charged as a felony, and I think it defies logic to think that the appellees were doing anything other than attempting to put pressure on Mr. Erwin to flip and to present testimony against what they saw as the corrupt developers in this case,” Yockelson said.
Ninth Circuit Appellate Judge Eric Miller questioned Yockelson’s argument.
“What you’ve described doesn’t really sound like animus. It sounds like they thought there was corruption, and they were investigating one of the players in that, in an effort to get at the other people. Those are legitimate prosecutorial–maybe they were wrong–-but those are legitimate prosecutorial motives, aren’t they?” Miller said.
Yockelson argued that in this specific case, the District Attorney’s motives were political, based on a mailer sent by Ramos’ wife, Gretchen Ramos, for Ramos’ re-election campaign. The mailer repeated the allegations against Erwin, and Erwin’s brief argued that Ramos’ opposition to Erwin was a pillar of Ramos’ re-election campaign.
Charles Slyngstad of Burke, Williams & Sorensen, LLP represented Ramos during oral argument. He argued that the District Attorney’s Office gained probable cause to investigate Erwin after Erwin failed to include his trip to New York City and his Rolex watches, paid for by Burum, on his Form 700 government disclosure forms. That probable cause preempted any claim that he was investigated for protected speech, Slyngstad argued.
Ramos’ conduct was objectively reasonable, and the cause to investigate breaks any change of causation from protected speech to the investigation that someone could try to establish, Slyngstad said.
Parties
Ninth Circuit Judges John Owens and Eric Miller, and United States District court for the District of Montana Judge Dana Christensen heard the appeal.
District case number 5:18-cv-00420
Appellate case number 20-55903
Read Bernal’s ruling here.
Read Erwin’s appellate brief here.
Watch the oral argument here.
