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Judge denies county’s motion to reconsider Cunan case

Delaine Fragnoli
Managing Editor

In scathing terms, a judge has rejected the county’s request for reconsideration of its lawsuit against former District Attorney Jeff Cunan.

In comments during a hearing April 28, visiting Judge Ersel Edwards called County Counsel Craig Settlemire “unprofessional,” suggested he had “other motivations” and chastised him for not doing his due diligence.

Last fall the county filed suit alleging Cunan did not follow proper procedure with funds from the bad check diversion program and was personally liable for around $15,000.

In January, Edwards granted Cunan’s demurrer, a challenge to the legal adequacy of a suit. In essence, Edwards said the county had no case.

Edwards concluded, “The Court does not see any reasonable possibility that County could amend its complaint … to cure the identified defects.” Still, Settlemire tried again.

He filed an amended complaint alleging new information, and on the basis of that asked the court to reconsider its ruling on the demurrer.

Edwards found that the information was not “new,” that it should have been uncovered before the original complaint was filed.

Supervisors Lori Simpson and Jon Kennedy said they were surprised by the decision — because they did not know about the most recent legal maneuvers. Nor were they aware of a settlement offer from the Cunan camp in March. As a result of Edwards’ latest ruling, the county could be on the hook for Cunan’s legal fees, about $5,000. Cunan has retained Quincy attorney Jennifer McQuarrie. They had offered to take the fees off the table if the county would drop the motion for reconsideration.

Agendas and minutes from the Board of Supervisors bear out Simpson’s and Kennedy’s claims that they didn’t know about the motion for reconsideration. The board met in closed session Feb. 15 to discuss the case, following Edwards’ dismissal. Both supervisors said the board made no decision about how to proceed. Minutes from the meeting record that no reportable action was taken. The issue does not appear again on any board agenda.

So who made the decision to try again?

In the original suit, the County of Plumas is named as the plaintiff. In the latest filings County Treasurer Julie White is the named plaintiff.

District Attorney David Hollister has publicly argued that government code stipulated the county treasurer as the one to bring an action in a case like this. In a document posted on the Office of the District Attorney website titled “DA Bad Check Revenue: How things should be done,” Hollister quotes government code 26505: “No order of the board of supervisors is necessary to bring the action.”

As an elected official, White does not answer to the Board of Supervisors and, according to the code Hollister cites, could have brought the latest actions on her own accord. Despite a day and a half of phone tag, Feather Publishing was unable to reach White for comment before press time.

Settlemire, who prepared the original complaint and all subsequent court filings, declined to comment, citing attorney-client privilege. He did note the topic would be on the May 17 board agenda.

Although White and Settlemire appear to have been acting within their powers, why, as a courtesy, weren’t the supervisors kept in the loop, especially in regard to the settlement letter?

From the beginning, Cunan has characterized the county’s suit as “frivolous” and “wasteful,” and has pointed his finger at “disgruntled,” “incompetent” and “vindictive” county officials, including County Administrative Officer Jack Ingstad and Hollister, who was Cunan’s assistant DA.

Ingstad said Friday that he was as in the dark as the supervisors when it came to the motion to reconsider.

Hollister, in a written statement to Feather Publishing, said, “This action has been between Jeff and the county. I have not been involved in any closed-door Board of Supervisor discussions, any decision making processes, any court appearances nor been asked (or given the opportunity) to review any legal documents prior to their filing. The county has not shared with me their investigation or returned items they received from the DA’s office. In short, I have no material part in the action between Jeff and the county and an attempt to draw me into this litigation is inaccurate and unfair.”

There are, however, notable similarities between Hollister’s “DA Bad Check Revenue” website document and Settlemire’s second amended complaint.

Hollister cites three sections of government code that he says the county should have alleged in its original complaint. Those same three code sections appear in Settlemire’s amended complaint in support of the motion to reconsider.

Hollister’s document and Settlemire’s motion are both dated Feb. 18. Hollister made similar comments in open session at the supervisors’ Feb. 15 meeting, and he has spoken in a number of venues around the county about the bad check program and how he intends to manage it differently.

In his website document, Hollister says he found in Cunan’s former office a training manual for new DAs which talks about proper depositing of receipts. The training manual also makes an appearance in Settlemire’s amended complaint. Both men quote from the same section of the manual.  In places the quotes are exactly the same.

But none of it — the code sections or the training manual — made much of an impression on Judge Edwards. During the hearing on the motion to dismiss, Edwards told Settlemire, “I want you to know that I was aware of those (code) sections when we were looking … at this the first time. I don’t know why you didn’t use them the first time. That’s the first place I went.”

Edwards went on to deny Settlemire’s motion: “I don’t think the analysis changes, based upon the introduction of the new law.”

Having struck out twice, will Settlemire try a third time? Will he add former District Attorney James Reichle to the mix? Sources say the county has now turned up Reichle’s check register for the bad check diversion program. Cunan has claimed that he was just following office precedent when he took over from Reichle.

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