Last Week In Ukiah

Intricate and costly legal maneuvers delay proceedings in the high-stakes criminal case Mendocino County District Attorney David Eyster filed last Fall against a fellow elected official, county Auditor Chamise Cubbison.

Because of a new Eyster-triggered delay, Cubbison’s preliminary hearing, initially scheduled for this week, has been pushed to mid-May.

The latest setback stems from Superior Court Judge Victoria Shanahan’s voluntary decision on Tuesday to formally recuse herself because of her personal and professional ties to a special prosecutor Eyster hired in March to try the Cubbison case.

In a formal filing on Tuesday, Shanahan cited a state code for removing herself as the trial judge. A court spokeswoman declined to offer any specifics on Thursday. 

Cubbison’s attorney, Chris Andrian, who knows all the parties involved, said the latest delay is disappointing, but “Judge Shanahan did the right thing.” 

“The judge and the DA’s choice for special prosecutor know each other and have worked together in Sonoma County,” said Andrian. “Judge Shanahan acted in an abundance of caution. I do not quarrel with her decision.”

Judge Ann Moorman will now oversee the Cubbison case, which has been moving slowly in the legal system for six months.

The DA’s decision to engage Santa Rosa attorney Traci Carrillo as a special prosecutor is blamed for this latest delay in the Cubbison case and it has raised concerns about the financial burden being placed on Mendocino County taxpayers. If the case proceeds to trial as anticipated, the bill could reach tens of thousands of dollars, with Carrillo charging $400 per hour. A $10,000 retainer has already been authorized.

Eyster claims to be short-staffed, and the County’s former Assistant District Attorney Dale Trigg left on March 1 for a prosecutor post in Sonoma County.

Eyster did not respond to a written request for comment on his decision to abandon his plans to prosecute Cubbison personally and to hire a special prosecutor in a case that has rocked Mendocino County politics and embroiled Eyster in the most serious political crisis of his 13-year tenure.

Eyster’s decision to turn to an outside prosecutor in the Cubbison case contrasts sharply with his stance three months ago, when he publicly resisted defense moves to recuse him from the politically charged case. After being challenged for waging a political vendetta against Cubbison because of her questioning of DA office expenses, Eyster received the support of the state Attorney General’s Office and eventually Superior Court Judge Keith Faulder, who ruled on Jan. 12 that there was “insufficient evidence” to remove the DA. 

However, the case took another twist when Judge Faulder, a month later, was recused from the Cubbison case on a preemptory challenge afforded to the auditor’s co-defendant, former county Payroll Manager Paula June Kennedy. Public Defender Mary LeClair, who represents Kennedy, did not have to offer a reason under court rules.

Cubbison and Kennedy, veteran county employees, each face a felony charge of misappropriating public funds, stemming from an estimated $68,000 in extra pay to Kennedy over three years during the Covid pandemic. Cubbison said former Auditor Lloyd Weer authorized the extra pay before she was elected Auditor. Weer and Kennedy claim it was Cubbison who told them to use an obscure payroll code to make the unauthorized extra salary payments, according to Eyster.

As the case bogged down in early legal challenges, Shanahan stepped in as trial judge after Faulder was recused.

But then, another challenge. 

DA Eyster’s decision to hire attorney Carrillo forced Judge Shanahan to declare her possible conflict because of past personal and professional ties with Carrillo. The two attorneys worked together in the Sonoma County District Attorney’s Office, and are friends.

Shanahan, a native of Willits, was a deputy district attorney in Sonoma County from 2007 to 2014. Before that, she served five years as chief deputy district attorney in Mendocino County under the late District Attorney Norm Vroman.

Since taking office in 2011, DA Eyster has clashed with three auditors, including Cubbison, over his use of asset forfeiture funds, including paying for staff dinners at a local steak house around the holidays. Office parties are officially banned under county policies. Eyster labeled them “training sessions” even though spouses and partners of staff members were guests.

In August of 2021 Eyster publicly denounced Cubbison before the Board of Supervisors, succeeding in blocking her interim appointment as County Auditor when Weer retired early. The board, backed by Eyster, went ahead with a controversial plan to consolidate the county Auditor/Controller office with the Treasure/Tax Collector. A few months later, Cubbison was elected by county voters to lead the consolidated departments despite the opposition of the board and the DA.

Cubbison, in addition to denying any criminal wrongdoing, has filed a civil lawsuit against the Board of Supervisors, declaring she was suspended without hearing and lost pay and benefits because of Eyster’s criminal filing in mid-October. That lawsuit is pending.

Carrillo is well known in Sonoma County for her roles as a prosecutor, criminal defense attorney, and civil litigator. 

This Saturday, Carrillo is helping women who say former Windsor Mayor Dominic Foppoli sexually assaulted them hold a press conference in the wake of a state Attorney General’s Office’s decision not to file criminal charges in that case.

The AG’s Office said it doesn’t have enough evidence to file charges. At least three civil cases against Foppoli are still active, including one that seven women joined in April 2022.

Carrillo told The Press Democrat that she is engaged in planning Saturday’s press conference at the Sonoma County Civil Courthouse on Cleveland Avenue in Santa Rosa because “It is important to provide a platform for these brave women to know their voices will be heard.”

Carrillo was a deputy district attorney in Riverside County before taking a similar position in Sonoma County in 2008. Until leaving the Sonoma County District Attorney’s Office in 2015, Carrillo was a senior trial prosecutor managing high-profile and complex trials, including a four-defendant gang murder case.

In 2017 Carrillo left the Sonoma County DA’s Office and opened a private practice before joining the Santa Rosa law firm of Perry, Johnson, Anderson, Miller, and Moskowitz.

* * *

Supervisor Williams Accused Of Bias In Redwood Valley Gas Station Controversy

A developer’s attorney claims Mendocino County Supervisor Ted Wiliams is biased and should either recuse himself or be disqualified from voting May 7 at a crucial county Board of Supervisors hearing on a use permit for a hotly debated 10-pump Redwood Valley gasoline station.

“Supervisor William’s comments on the record clearly demonstrate that Faizan [the permit applicant] cannot receive the due process required under California law that the hearing be fair, that the decision-makers not be biased or committed to a certain result, and that the decision-makers do not abuse their discretion,” said Brian Momsen, who represents Haji M. Alam, Faizan corporate president.

Williams is seen as the possible majority vote to deny the permit, which has received stiff opposition from some Redwood Valley residents.

In an April 10 letter demanding Williams either recuse himself or be barred from voting at any further hearings on the application, attorney Momsen ripped multiple Williams’ statements from the March 26 hearing. 

Momsen argued that board members are to recognize the hearings as “quasi-judicial” based on California law overseeing land use decisions.

“This is not a case of the appearance of bias or potential bias. Instead, Supervisor Williams exhibited actual bias on the record,” declared Momsen. 

Williams publicly has sided with Redwood Valley residents who have rallied in opposition to the project, first approved in 2016 but delayed because of the Covid pandemic, and then revived by Alam. 

Alam’s Faizan Corp. owns numerous gasoline stations/market operations in Mendocino, Lake, Sonoma, Marin, Alameda, Contra Costa, and Yolo counties. The proposed Redwood Valley project is located on the east side of Highway 101 in a strip mall and is seen by proponents as an anchor tenant. The Redwood Valley Municipal Advisory Committee and some neighbors oppose the development, fearing its scale will create traffic issues.

The county Planning Commission denied Alam’s permit on Jan. 5, and the decision was appealed to the Board of Supervisors on March 26. 

The Board then decided to continue its review pending a county analysis of a recent traffic study, which disputed Caltrans’s belief that the new station could generate 5,300 daily trips. Based on activity at another Chevron station he owns nearby, Alam says that the daily count is likely to be under 1,000. Also at issue is Caltrans’s insistence for safety reasons that if the station is permitted, Alam should pay to close the highway median north of the proposed station, a cost estimated to be $2 million.

Attorney Momsen cited numerous Williams’ comments during the March 26 hearing and blasted the supervisor’s “half-baked conclusions.” Among them were Williams’ declarations that the Board, despite deciding to review the issue further, doesn’t have an obligation “to find the reason to deny it” or “I’m not going to approve this. My vote is not to issue a use permit.”

Williams on Friday defended his comments. 

“I attended the hearing with an open mind,” said Williams.

Williams also offered a post March 26 hearing observation: “The applicant challenged their own traffic study, which they had originally submitted. At the last minute, they introduced a new study based on a sample size of just one—another station they own. I questioned their traffic study expert about whether this approach is standard practice in her professional experience, and she confirmed that it is not.”

Momsen, however, said Wiliams “simply does not want to hear the evidence, even further evidence on the key issue of how much traffic the project will generate. If the scientific studies show that the project will only generate ten trips per day, this evidence will not affect his decision because, in his mind, the people of Redwood Valley ‘have spoken’ against the project. He ‘knows how Redwood Valley feels’.”

“Factual findings do not matter to Supervisor Williams either. These are something that someone can ‘cobble together’ later after he has made his decision already on God only knows what basis,” complained Momsen.

Momsen said, “He even thinks he does not have to have any reason to justify denying a permit application, and apparently has no clue that he is supposed to be acting as a quasi-judicial hearing officer following well-established law and basing whatever decision he makes on substantial evidence in the record.”

Momsen, on behalf of Alam, wrote that he wants Williams “disqualified from further participation, deliberation or voting regarding this permit application or that he recuse himself.”

Momsen warned the County Board that allowing Williams to continue participating in hearings after making his “outrageous comments” on the record could lead to a legal court challenge and a decision remanding “this matter back to the board if William’s vote is the deciding vote that denies the application.”

* * *

Ukiah Justifies Hold On Palace Enforcement Action, Blames State Agencies

Ukiah officials say that even though the city has declared the landmark Palace Hotel a public safety hazard, a hold on enforcement action against the current owner is justified because a sale is still pending.

“Prospective buyers have a plan and are actively working through it,” said Deputy City Manager Shannon Riley in a statement issued to local news media over the weekend. 

Riley acknowledged that the city has yet to initiate any enforcement action against the current owner, Jitu Ishwar, after the City Council declared the historic building a public hazard in danger of collapse in early November.

A Sept. 29 city inspection by building and fire department officials led to the city’s emergency declaration, a move criticized by historic preservation advocates for lacking any supporting structural analysis of the three-story, 50,000-square-foot brick building. 

Riley, in her public statement, described city findings as “alarming” and “well-documented” evidence, referring to a series of widely publicized photographs showing the palace’s deteriorated interior. The Guidiville group seized upon the city’s declaration and has been promoting the notion to the public and the state that the Palace was in danger of collapsing and needed to be torn down at public expense so it could get on with private development.

Riley did not address the issue of the city’s “emergency” effectively blocking a review by the state Office of Historic Preservation and sidestepping a CEQA investigation into the consequences of demolition. The Palace, dating back to the 19th century, is designated a state historical resource listed on the National Register of Historic Places.

The proposed sale between Ishwar, the Guidiville Rancheria, and an unidentified local group of investors has dragged on for months. The historic landmark endures further damage from wet winter rains while the city delays imposing fines or taking allowable criminal action to ensure public safety in the core of downtown. Ishwar has owned the building since 2019 but has done nothing to stem the historic structure’s decline.

Ishwar is reportedly in escrow with the Guidiville Rancheria and an unidentified local group of investors. Tribal consultants initially sought $6.6 million in special state funding from the Department of Toxic Substances Control (DTSC), which is distributing money to tribes, nonprofits, and poor municipalities to study possible ground contamination at sites, pay for cleanup, and prepare sites for new development.

In its state application, the Guidiville group cited the city’s “emergency” action. It contended that the Palace is in “imminent danger of collapse,” needing to be torn down before ground contamination studies could be conducted.

Riley in her statement said a Sept. 29 city inspection by building and fire department officials led to the disputed emergency declaration. 

Riley described the team’s findings as “alarming” and “well-documented” evidence, including widely publicized photographs showing the palace’s deteriorated interior. The Guidiville group immediately seized upon the city’s declaration, promoting the notion to the public and the state that the Palace was in danger of collapsing. 

It is not the first time, however, that the city has declared the Palace a public safety hazard.

In 2011, the city made the same declaration but as in the current case, chose not to impose possible fines or take possible criminal action against then-owner Eladia Gaines of Marin County. 

Despite the city’s current pronouncements about the structure’s safety, no action has been taken against Ishwar other than to serve notice and demand pedestrian safety scaffolding be erected around portions of the building facing public streets. 

Despite a local clamor for demolition by the Guidiville group and its supporters, experts in ground contamination studies and historic preservation work say they believe that is not necessary.

If Guidiville secures a state grant, the North Coast Regional Water Quality Control Board will oversee a contamination study. Senior engineers at that agency have publicly deemed demolition unnecessary to determine whether contamination existed and what might be needed to clean up the site.

Tom Carter, a contractor with experience rehabilitating historic structures including the Tallman Hotel and Blue Wing Saloon in neighboring Lake County, has gone through the Palace on multiple occasions and he said Monday he believes the Palace can still be restored into a viable hotel, restaurant, or retail complex despite its current decrepit state. 

Carolyn Kiernat, a noted historic preservation architect with the firm of Page & Turnbull in San Francisco, agrees. Kiernat and a Page & Turnbull team personally examined the Palace in 2022.

In a weekend op-ed, Kiernat said, “Based on past project experience and consultation with experienced structural engineers, I believe there is an alternative to demolition.”

Kiernat urged city officials to hire a “qualified third-party structural engineer to assess the building and determine objectively what can be done. Perhaps a portion of the building needs to be demolished, or possibly reconstruction of the 1891 corner is in order. We won’t know until a structural assessment is complete.”

Riley in her statement blamed the current uncertainty about the Palace’s fate on the pending state review of Guidiville’s application to use state money to raze the structure.

The Guidiville group’s plans “are constrained by other agencies’ timelines that they cannot control,” said Riley.

Riley said, “We expect to know more soon.” 

The state DTSC said a review of the Guidiville application continues, and a decision is not likely until April.