San Diego In attempting to get records of City Attorney Mike Aguirre's 1989 divorce unsealed, the Union-Tribune has proved definitively that it doesn't read its own newspaper. On a deeper level, the missteps the newspaper has made in its effort, and the initial willingness of the judge to go along, raise more questions about the cozy relationship of the establishment and Superior Court.
The divorce papers of Aguirre and his ex-wife, now named Kathleen Jones-Raya, were sealed in 1991. She was a lawyer in San Diego for nine years but is no longer practicing. "In 1991 you could just request to have a document sealed; there was no need to show anything," says Jones-Raya, now married to attorney Kevin Raya. Aguirre says the main reason to seal them then was to protect the privacy of the couple's two children.
But after 15 years of those documents sitting on a shelf, and with Aguirre tied up in a lawsuit with the pension system, the U-T was in a huge hurry, purportedly because a reporter had just learned about the sealed records. On Friday, June 30, the U-T's outside attorney, Guylyn Cummins of the law firm Sheppard Mullin Richter & Hampton (remember the name of that law firm), filed papers with William J. Howatt, supervising judge of Family Court, asking that a hearing on unsealing be held at the earliest possible time.
The judge set July 5 as a hearing date -- just two working days after the papers were filed. Aguirre was not given a phone call, a fax, or personal service, Cummins admits. A representative of the law firm Sheppard Mullin sent the notice by snail mail to the city attorney's office, to his personal attention. Cummins thinks it should have arrived Monday, the day before the July 4 holiday. Since his assistant took that Monday off, Aguirre didn't see it.
On July 5, Aguirre was slated to be in court to argue a key point in his long-running case to have pension benefit increases of 1996 and 2002 ruled illegal. Cummins, who professes to be a media lawyer, should have known that Aguirre would be busy July 5; it was written up in her client's newspaper. The U-T's other lawyers certainly should have known it if they read their own paper.
When Aguirre returned from court July 5, he was told that he was supposed to have been at the unsealing hearing at 9 a.m. Since he hadn't shown up, the court ruled that the unsealing should go forward.
There should have been another party summoned to this hearing: Jones-Raya, Aguirre's ex-spouse. She should have been notified for two reasons: she was not only a party to the divorce but also represented herself in the matter. "I didn't know Kathy's name," insists Cummins.
"There was absolutely no reason not to give me notice. My address hasn't changed since the last hearing [in the divorce] that we had," Jones-Raya says. "Michael called me to tell me about it. I said, 'Am I invisible?' I don't understand how they can get away with this." She may complain to the California Bar.
The judge "can set a hearing without talking to the other side," claims Cummins, saying that it's justified by "the public's right to know."
After he learned belatedly of the hearing, Aguirre hired attorney Mark Mazzarella. "There was no compelling reason to try to act that fast," says Mazzarella. "They could have called Mike, faxed him, personally served him. Mike is not a hard person to find. To drop it in the mail before the Fourth of July weekend was inexcusable."
Then Mazzarella raises a disquieting point: "I am concerned that they did this in a way that they knew Mike would not get notice," he says. He blames that on the Copley Press and its attorneys, including Cummins, Harold W. Fuson, Jr., Scott Wahrenbrock, and Judith J. Fanshaw. Cummins denies Mazzarella's charge. I called Fanshaw and Wahrenbrock and was told they would not be available to comment. I placed three calls to Fuson to no avail.
There is more. Even before he had held a hearing on the matter, Howatt took home the divorce records to study over the holiday. Aguirre questions that.
He can't understand how the filing was rushed to the judge so rapidly on June 30, the day it was filed. Aguirre believes there may have been an ex parte hearing -- otherwise, how could the judge move so quickly? "How did she [Cummins] get to the judge?" he asks. "That document should never have gotten to the judge without me getting notice."
Howatt was reading the divorce documents over the holiday to give guidelines on how they should be redacted. Incredibly, he left the redaction job to Cummins. "I did the redactions," she admits. "The court marked the redactions it wanted made," primarily bank account and Social Security numbers that might make the parties vulnerable to identity theft.
This means Cummins saw the unredacted document. And she works for Sheppard Mullin, which represents Councilmember Scott Peters in the pension investigations, including Aguirre's. More to the point, in late April, Sheppard Mullin, representing Scott Peters and former Mayor Dick Murphy, asked a judge to disqualify Aguirre from the pension case he is arguing. The U-T wrote about the suit, too.
Before one of their lawyers goes into a case, intelligently managed law firms initiate what are called "conflicts tests" or "conflicts searches." If the law firm is pursuing a case against a person, it should think carefully about having another of its lawyers launch a different attack against the same person on a different front. At the very least, it should let the judge know that it has such a conflict. The conflicts test "is pretty elementary," says Jones-Raya.
But Cummins claims she had no idea that her law firm is representing Peters in battles against his arch-enemy, Aguirre. The U-T should have known that, too; it has written about it more than once.
After Mazzarella entered the case, Howatt decided to hold another hearing on the unsealing July 13. But "I have never been told of a new date," says Jones-Raya. Cummins "has never given me the courtesy of a letter, a callback, anything." After getting a request, Cummins did fax Jones-Raya the initial demand for an unsealing hearing.
Howatt says he cannot comment.
Says Aguirre, "It's clear there were illegal activities. I am now reviewing the actions of the Copley executives who were involved, and the others, to determine the appropriate legal action to be taken." He adds, "The privacy rights of every San Diegan are implicated by these types of practices. The episode raises serious questions about the moral leadership of the newspaper and may provide explanations for why it has been so insensitive to the corruption problems of the city."
After he learned that he had missed the hearing, Aguirre made calls to two court clerks, including Howatt's. Their stories did not add up, he complains. The judge says Aguirre was rude to his clerk and must apologize. "I am not apologizing," he says. "People in my office listened to everything I said," and agreed that his remarks were not inappropriate.
Finally, what is in those divorce documents? "There is nothing in them," says Jones-Raya, remembering a call she got from a reporter several years ago who assumed that since the documents were sealed, they must contain something like allegations of spousal abuse. But there is nothing remotely like that, she says. Aguirre and Mazzarella agree. The U-T's hurry-up bullying, possible attempt to make sure Aguirre didn't attend the hearing, and sloppy legal practice may go for naught but cause its legal team big problems.