Attorney Mike Aguirre sues CityBeat for libel

Publication telescoped 112-page legal opinion

Mike Aguirre, former city attorney, knows that he is a public figure in San Diego, but he nonetheless sued the publication CityBeat for libel today (December 5) in Superior Court.

A public figure has a high hill to climb in a libel suit — in fact, if someone calls him or her a jerk or a fool, it's futile to sue for libel; it's an opinion.

Aguirre says that CityBeat published an item with reckless disregard for the truth. On November 12, the publication ran an article that panned Carl DeMaio, Bob Filner, and Aguirre — although DeMaio was the main person skewered. In his suit, Aguirre focuses on one sentence: "Aguirre frequently considered one's academic underpinnings as an accurate measuring stick of culpability — among council members, he considered [now Representative Scott] Peters most liable in the city's underfunding debacle because he attended Duke University." (Italics mine.)

As he pointed out in the libel suit, Aguirre, when he was city attorney, issued a 112-page report on San Diego's pension mess — on February 9 of 2005. It was full of charts, graphs, copies of emails, and myriad material as he made the case that people in San Diego government were responsible for the crisis. In that document, Aguirre said two city-council officials, mayor Dick Murphy and then-council member Scott Peters, were the most to blame because they had the education and sophistication to understand what the city was doing.

The paragraph read, "The Mayor and Council Member Scott Peters have the most relevant training for understanding the complex facts and circumstances. Both are Phi Beta Kappa graduates with economic degrees. Mayor Murphy holds a Masters of Business Administration Degree from the Harvard Business School. Peters is a graduate of Duke University. Mayor Murphy has a law degree from Stanford. Member Peters has a law degree from New York University. Mayor Murphy was an associate of the law firm of Luce, Forward, Hamilton & Scripps. Council Member Peters was an associate at the firm of Baker & McKenzie."

The document went on to say that "Mr. Peters had considerably less experience than Mayor Murphy." That was boiled down to "he considered Peters most liable in the city's underfunding debacle because he attended Duke University."

Without question, that was an egregiously misleading telescoping. But a judge will have to decide if it is libel.

Earlier this week, Aguirre sent CityBeat his libel threat, demanding a correction. He got a letter but not a correction, so he filed the suit.

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Comments

I don't like Citybeat because the articles read like a bad high school newspaper. But Aguirre is a jerk (in my opinion) and I hope he loses.

Sjtorres: Aguirre has been called a jerk many times. The Union-Tribune dispiteously hammered him -- often completely inaccurately -- while he was in office.Those attacks didn't generate a lawsuit.

I think any intelligent person realizes that City Beat telescoped a carefully worded document ridiculously. "Because he attended Duke University." Pathetic, given what was actually said. But is it libelous? This will be interesting to watch. Best, Don Bauder

What? The UT is inaccurate? Wow who knew? Like the internet if it's in the paper it must be true!

AlexClarke: Mike Aguirre and Bob Filner both felt the sting of an establishment that didn't want anybody taking money away from corporate welfare projects downtown. (Note that Malin Burnham already has a plan for a subsidized Chargers stadium. Anybody surprised?) The plot to smear Filner began even before he was elected. The U-T smeared Aguirre throughout his incumbency.

The message is that even if the majority of San Diego voters want money going to infrastructure and neighborhoods, it isn't going to happen. Anybody wanting reform will be smeared, and a press that is kept by the establishment will be part of the conspiracy.

The trouble is that it's not just business that wants corporate welfare. Many of the unions, such as those in construction and the hospitality industry, want corporate welfare projects, too. How do you stop this juggernaut? Best, Don Bauder

Don: Comparing Filner to Aguirre in any way is a great disservice to Aguirre. Mike is abrasive, but I think he wanted want was best for the city. Filner, on the other hand--let's just say that Filner did enough that even his own party turned against him in the end.

aardvark: The article in question slammed DeMaio, Filner, and Aguirre. Generally, it was effective invective until it got to the sentence telescoping Aguirre's statement. Then it got laughable.

Yes, the leadership of Filner's party turned against him, and that was a major cause of an establishment toady, Faulconer, getting into the mayor's chair. Just watch as Faulconer leads the charge for a subsidized Chargers stadium. He has to pay off his backers -- with taxpayer money, of course. Best, Don Bauder

Don: On the stadium issue, I fear you are correct. I still wonder if the delay on putting a stadium proposal on the ballot (until 2016) has less to do with coming up with an actual plan, or more to do with the "powers that be" trying to find a way to completely avoid the voters.

aardvark: After the appellate court rebuke on the attempt to avoid the voters on the convention center expansion, the downtown establishment will have to be very careful. But I agree with you: they would like to find a way to get around putting the question on the ballot. Best, Don Bauder

Mike is becoming the city's nag, and emerges as a hell-raiser. Does he think he can win? Who knows. But he'll rattle some cages at City Beat, and might get them to think about the stuff they print before they print it. Yeah, many people think Mike's a jerk, but he's taking on forces that have had scant scrutiny or opposition for far too long. We'll see what comes of his efforts in coming months. Mike may be our local Don Quixote, tilting at SDG&E windmills, or he may actually prevail. Anyone living in the county should be grateful that he's willing to tackle abuses on his own, usually with little prospect of even being paid for his time and effort.

Visduh: As I stated above, the business establishment and much of the labor movement (particularly construction and the hospitality industry) want corporate welfare. That is a lot of votes. The U-T was a prostitute for the downtown group long before Manchester took over. Manchester has only made it more blatant.

The U-T is permitting SDG&E to run its own stories under its own byline. That's money in the U-T's frayed pockets. San Diegans who want democracy and reform are in a difficult position. Best, Don Bauder

Aguirre should be used to bad press by now. Since we're speaking of education, he is well-enough educated to let a CityBeat slur (albeit based on Aguirre's own words from when? 2005? wasn't that the pre-Columbian era?) pass without further publicity for that slim wannabe journal. Christmas is a slow season for adrenalin highs -- more of a time for quiet reflection on the past, lost love and the relentless passage of time. Mikey is overcompensating with this lawsuit.

monaghan: Yes, Aguirre's desire to whack a marginal paper is hard to understand.

However, don't think that the issue of 2005 -- the near-bankruptcy of the pension system -- has gone away. All Sanders did was stop funding maintenance and infrastructure and then convince the public that he had balanced the books. It was a fraud. The most important point: THE PENSION PROBLEMS HAS NOT GONE AWAY. Aguirre wants to call that to San Diego's attention. Best, Don Bauder

Jerry Sanders, faker and a fraudster, has not gone away. City pension problems have not gone away. Aguirre, in a lull between legal proceedings against utility giants and the corrupt CPUC, needs to reassure himself that HE hasn't gone away, so he sues snarky struggling CityBeat. It's overkill.

monaghan: I certainly hope Aguirre doesn't abandon his pursuit of CPUC corruption to chase this case. Best, Don Bauder

I think Mike is still seeking revenge for all the swirlies he got in jr. high

( the "I think" makes it non libel )

Murphyjunk: What are swirlies? Aren't they ice/fruit drinks? Best, Don Bauder

The Swirlie is a prank in which one's head is dunked into the toilet bowl and flushed.

Murphyjunkk: I have never been a victim of such a prank and hope I never am. Best, Don Bauder

Aguire is a consecration, saving prostituting papers and their illegitimate offspring.

shirleyberan: If you are talking about saving prostituting newspapers, I don't think he is trying to save them. Best, Don Bauder

Paul Regis: It's possible that in the end, CityBeat will get more publicity than it has ever had. Today, I don't think many people are aware of the paper's existence. Aguirre could be doing the publication a favor. On the other hand, this could die out quickly and the paper won't get the attention it believes it deserves. Best, Don Bauder

shirleyberan: Noted. We all make typos on this blog. Best, Don Bauder

Saving papers from having to prostitute themselves, whatever. Pretty sure there's a mission of the fourth estate involved somehow too. I have head clog from a rotten cold, can't keep up even worse than usual but I like Mike's controversial character.

shirleyberan: Get some rest and get over that cold. We will keep the colloquy hot while you beat the cold. Best, Don Bauder

shirleyberan: Trouble is, if you want to save a paper from prostituting itself, you have to have the commitment of the owner. Best, Don Bauder

I tend to agree with the notion that the more expertise you have the more liable you are if something goes wrong. But on the other hand, if you are going to run for a major public office you need to make sure you understand what's going on.

ImJustABill: I think Aguirre's conclusion that Murphy and Peters had more education and sophistication, and hence were more culpable, was reasonable. Best, Don Bauder

"Murph" was the best educated mayor in the city's history. His CV was impeccable. Yet he was likely the biggest flop in the city's history as an elected mayor. All that goes to show that formal education, even in the most prestigious universities in the nation, doesn't guarantee success. In fact, there might be a few people who would say that all that education is a contra-indicator for common-sense and political acumen.

Visduh: Agreed. Murphy had all those fancy degrees. But he was an undistinguished lawyer and judge, and very bad mayor. Best, Don Bauder

Yes - I think that issue comes up a lot with financial issues. For example, is a borrower getting a creative loan to buy a house that's 10X his annual income irresponsible? Sure. But maybe an unsophisticated borrower can convince himself/herself it was OK.

Far worse were all the loan officers OK'ing those types of loans - and even worse were the senior leadership of the banks and other financial firms that knew about all of it.

ImJustABill: And worse still were banks that packaged those smelly loans into derivatives and almost drove the world economy off the cliff. None got punished. Best, Don Bauder

Don Bauder. I disagree. I read CityBeat's comment as a facetious editorial comment. Maybe not Twain-grade satire, but sarcasm/hyperbole nonetheless. Yes, it takes a good amount financial literacy, but a CPA from City College could understand the pension mess just fine. To suggest it takes an Ivy League education is pure hyperbole. Ironic that Aguirre is going after hyperbole because it's the favorite tool in his own toolbox. And like many in this forum, I love the guy sometimes....

Trail: If the CityBeat reference was intended to be satirical -- and I do not think so in the slightest -- it didn't come off. Best, Don Bauder

Back in 2005, the Union Tribune came to the same conclusions as City Beat. It would take an advanced degree in Financial Law, Accounting, or Audit rules to analyze the nuances if "a particular person had the requisite scienter to violate fraud laws when conducting an illegal acts review under applicable audit rules AAU 317.10 (a), the "level of sophistication and education" is a key factor."

The American Institute of CPA's AU Section 317 "Illegal Acts by Client" does not mention the words "education" or "sophistication." The first footnote references two case laws: United States v. Estate Preservation Servs, and United State v. Hempfling.

http://www.aicpa.org/research/standards/auditattest/downloadabledocuments/au-00317.pdf

INTERIM REPORT NO. 2. dated February 9, 2005. See Page 108. http://sdcityattorney.com/Interim_Reports/IR-02_Fraud_By_City_Officials_20050209.pdf

http://www.utsandiego.com/uniontrib/20051016/news_1n16aguirre.html

"Frye's name has popped up occasionally in Aguirre reports asserting that the City Council acted improperly by voting in 2002 for pension underfunding and benefit increases. Aguirre cast her as less-culpable, in a backhanded fashion, by dint of education. He concluded that council members who attended elite universities – Murphy graduated from Harvard and Stanford, and Councilman Scott Peters graduated from Duke – were more culpable than those who did not. Frye graduated from National University. So did Sanders."

laplayaheritage: Sanders opposed Aguirre on just about everything -- particularly when Aguirre was peering into Sanders' favoritism toward his donors. Goldsmith, on the other hand, has always been a toady for the downtown corporate welfare establishment, which Sanders has represented for years. Best, Don Bauder

I supported Aguirre and even held a wine 'n cheese for him, but he kicked me in the balls when I tried to help him. He may not be his own worst enemy, but he has far worse ones (don't want to mention any names--those folks play rough).

Even though he doesn't even know that I exist, I still think he is a rare REAL CITIZEN.

I know not what others may say, but I say "give me Mike Aguirre until a better thorn in the side of the robbers-in-office comes along." I ain't holding my breath.

Twister: Others, too, say that Aguirre kicked them in the groin when they tried to help. You have to realize that, unlike other politicians, Aguirre doesn't do favors for friends. He doesn't believe in quid pro quos for donors. That's why he is not a good politician. Best, Don Bauder

Don, you don't understand. I did not say that I had asked for any quid pro quo or favor from Aguirre. I did a lot of volunteer work on some legislation for him, and rather than engage me, he/his staff ignored me after inviting me to help.

I think there's a big difference between this and expecting favors.

I do like his style, but he wouldn't have to violate his conscience to avoid making as many enemies as he does. I still value him highly.

Twister: I am sorry to hear about your experience. But Aguirre is incredibly busy, and sometimes seems curt. He throws too much bait in the water, and then when many fish bite, he doesn't have the time to reel in each one. Best, Don Bauder

Richard Ross: Yes, when he was city attorney, Aguirre represented the interests of the people. For that, he was smeared by the U-T and other media. Aguirre's successor, Goldsmith, represents the downtown corporate welfare interests, and not the people, and gets fawning coverage by the press.

Alas, this is quintessential San Diego. Best, Don Bauder

As long as we put up with it, we deserve it. Like Will Rogers said, "I don't belong to any ORGANIZED political party . . .

Twister: Will Rogers is a comedian from more than 80 years ago whose pithy comments are as relevant today as they were then. Best, Don Bauder

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