Pity? Glimmer of an explanation...

Perhaps someone looked at Gallegos' brief and realized how absolutely pathetic it was, and took pity on him, so submitted this amicus brief to try to bail him out,

S.F. comes to county's defence

The San Francisco city attorney added a chapter to District Attorney Paul Gallegos’ alleged fraud case against Pacific Lumber Co. Tuesday, when he filed an amicus curiae brief with the appellate court.

Gallegos said that an amicus brief is usually filed by a third party interested in the outcome of a legal case as a “friend of the court.” The purpose of such briefs is to comment on issues not raised in the appellant’s opening brief, or lend additional weight to those arguments.

He said the filing of such briefs is common practice, mentioning the fact that his office wrote a similar brief for a case in Los Angeles, which may limit the ability to enforce regulations on long-term care facilities.

Gallegos confirmed that he sent confidential e-mails to district attorney’s offices throughout the state soliciting comment on the PALCO case.

The amicus brief, submitted by San Francisco City Attorney Daniel Herrera, focused on the trial judge’s use of Noerr-Pennington doctrine to justify PALCO’s alleged fraud as free speech.

Noerr-Pennington doctrine is a legal expansion of the First Amendment right to petition the government. The amicus brief states that while Noerr-Pennington may apply, what is relevant is the sham exception to the doctrine.

The sham exception, which alleges that fraudulent speech cannot be used while petitioning the government, has been upheld in federal court, according to the brief.

Danny Chou, San Francisco’s chief of appellate litigation, prepared the amicus brief.

“We were concerned with the trial court’s finding,” Chou said. “Because petitioning, like the right to free speech, is not absolute.”

“Specifically concerning fraudulent statements to administrative agencies that affect their decisions,” he said, “our concern is less related to particular facts and more concerned with the general legal concept.”

The trial court ruled in favor of PALCO in June 2005. Gallegos later filed his appeal, which alleged that PALCO committed fraud by submitting faulty documents and lying to state and federal agencies during the Headwaters negotiations in 1999.

Gallegos said his briefs have been filed with the appellate court and he is waiting for the announcement of a date to begin oral arguments.

The district attorney reiterated his position that Noerr-Pennington does not apply in this case, but recognized how the amicus brief is helpful in addressing that aspect.

“When you deprive an administrative agency of their ability to do their job (by allowing fraudulent speech), you render that process a sham,” Gallegos said. “If the trial court’s ruling is correct, then it really limits law enforcement, district attorneys and the Attorney General’s Office from enforcing honesty and candor in administrative procedure.”

Edgar Washburn, attorney for PALCO, had little to say when reached Wednesday. He said his office will respond to the brief within the required 20 days, but that he hasn’t had time to review it.
by Steve Spain, The Eureka Reporter, 11/1/2007
Copyright (C) 2005, The Eureka Reporter. All rights reserved.