San Bernardino County and its sheriff’s department have parted ways with the City of Hesperia over their shared defense against the federal government’s 2019 lawsuit alleging the city and the department discriminated against African Americans and Latinos with the 2017 passage and subsequent enforcement of Hesperia’s “Crime Free Rental Housing Ordinance.”
Throughout the first 31 months that the case was being litigated, the city and county shared the same law firm, Aleshire & Wynder, as their legal representative. Aleshire & Wynder is the firm in which Hesperia City Attorney Eric Dunn is a founding partner. With the city and sheriff’s department, which provides contract law enforcement services to the city, as well as the county represented by the same firm, the defense being put on was, at least ostensibly, coordinated and complimentary, with no showing of inconsistent or conflicting assertions of fact or legal theory as the case was progressing toward trial. In July, however, the county filed for a substitution of attorney, replacing Aleshire & Wynder with the law firm of Lynberg & Watkins. Thereafter, attorneys with Lynberg & Watson, asserting that a conflict between the sheriff’s department and the city had existed from the initiation of the litigation onward that Aleshire & Wynder failed to disclose and deal with forthrightly, sought to have the court, in the person of Federal Judge Andre Birotte, Jr., remove Aleshire & Wynder as the city’s legal representative in the case.
At this point, some 34 months after the federal lawsuit was filed and less than five-and-a-half months before the matter is scheduled to go to trial on March 22, 2022, the contretemps between the city and the county has thrown the defense of both into disarray. With 80 filings already made in the case, some of them quite substantial, it will be a daunting, and expensive, task for the lawyers that will be representing the county, the city and the department to come up to speed with regard to the issues dealt with so far while contending with new filings by the government. Compounding that, the possibility that the two primary defendant agencies – the city and the sheriff’s department – will be sniping at each other both before and during the trial renders doubtful that the matter will ultimately be resolved positively for either the city or the county. Accordingly, the city is looking to settle the case by negotiation with the U.S. Attorney’s Office perhaps as early as next week.
In December 2019, the U.S. Justice Department, through the Civil Rights Section in the Civil Division of the United States Attorney’s Office and the Housing and Civil Enforcement Section of the Justice Department’s Civil Rights Division, filed a lawsuit alleging that the City of Hesperia and the San Bernardino County Sheriff’s Department misused the City of Hesperia’s so-called Crime Free Rental Housing Ordinance, which was in effect between January 1, 2016 and its amendment on July 18, 2017, to unfairly banish from the city African American and Latino renters in violation of the Fair Housing Act.
The Crime Free Rental Housing Ordinance required all rental property owners to evict tenants upon notice by the sheriff’s department that the tenants had engaged in any alleged criminal activity on or near the property. The federal lawsuit alleged that the sheriff’s department exercised its substantial discretion in enforcement to target African American and Latino renters and areas of Hesperia inhabited in the main by racial and ethnic minorities. The U.S. Attorney’s Office maintained in its suit that although the ordinance purported to target “criminal activity,” the sheriff’s department notified landlords to begin evictions of entire families – including children – for conduct involving one tenant or even non-tenants, evictions of victims of domestic violence, and evictions based on mere allegations and without evidence of criminal activity.
The federal lawsuit alleged that the city, with substantial support from the sheriff’s department, enacted the ordinance with the intent of addressing what one city councilmember called a “demographical problem” – the city’s increasing African American and Latino population. The ordinance resulted in the evictions of numerous African American and Latino renters.
The lawsuit was based on an investigation and charge of discrimination by the federal Department of Housing and Urban Development, which found that African American and Latino renters were significantly more likely to be evicted under the ordinance than white renters, and that evictions disproportionately occurred in parts of Hesperia where the majority of homeowners or renters were members of a racial or ethnic minority. According to the complaint, the Department of Housing and Urban Development determined that African American renters were almost four times as likely as non-Hispanic white renters to be evicted because of the ordinance, and Latino renters were 29 percent more likely than non-Hispanic white renters to be evicted. Sheriff’s department data showed that 96 percent of the people the sheriff’s department targeted for eviction under the ordinance in 2016 had lived in census blocks where racial and ethnic minority members constituted a majority of the residents.
Citing statements by city officials who expressed a desire to reverse “demographic” changes in Hesperia and persuade recent arrivals from Los Angeles County to get “the hell out of our town,” the lawsuit alleged that city officials enacted the ordinance to drive African American and Latino renters out of Hesperia.
Included among the plaintiff’s attorneys involved in the case are Assistant Attorney General Kristen Clarke, Head of the Housing and Civil Enforcement Section Sameena Shina Majeed, Deputy Chief of the Housing and Civil Enforcement Section R. Tamar Hagler, Acting Deputy Chief of the Federal Coordination and Compliance Section Anna Medina, trial attorneys Aurora Bryant, Christopher D. Belen, Abigail A. Nurse and Alyssa C. Lareau, Acting United States Attorney in Los Angeles Tracy L. Wilkison, Chief of the Los Angeles Civil Division David Harris, Chief of the Los Angeles Civil Rights Division Karen Ruckert, Assistant United States Attorney Matthew Nickell and Assistant United States Attorney Katherine M. Hikida
In July, lawyers with Aleshire & Wynder raised an unspecified issue they thought might represent a conflict between the city and the sheriff’s department, and sought to withdraw from representing the county entities, those being the sheriff’s department and the county itself.
The county’s new legal representatives, lawyers Shannon L. Gustafson and Amy R. Margolies with Lynberg & Watkins, on August 18 filed a motion to disqualify Aleshire & Wynder as Hesperia’s counsel.
According to that motion, “On October 22, 2019, prior to the initiation of this lawsuit, but after HUD [the Department of Housing and Urban Development] issued its charge of discrimination, a precursor to this lawsuit, the county defendants tendered their defense pursuant the contract between the city and the county for law enforcement services in the City of Hesperia, defendant city accepted the tender, setting forth that, ‘The city will accept the tender of defense of the County of San Bernardino in the matter of the discrimination charge.’ Thereafter, all defendants (city, county and sheriff) were collectively represented by city defendant’s attorneys, the law firm Aleshire & Wynder, LLP since the filing of this action by plaintiff. However, on July 6, 2021, more than 19-months into this litigation, Aleshire & Wynder notified the county defendants that an actual conflict of interest exists between the city and the county and abruptly dropped county defendants as clients, indicating that Aleshire & Wynder would no longer represent the county or the sheriff’s department due to the conflict; but, elected to remain as counsel for city defendants. Based on Aleshire & Wynder’s position that it would no longer represent them, the county defendants were forced to retain new counsel and a request for approval of substitution of counsel was filed on July 14, 2021, and approved by the court on July 22, 2021. On July 28, 2021, shortly after being confirmed as counsel of record, new defense counsel pursuant to Central District Local Rule 7-3 initiated the meet and confer process with Aleshire & Wynder, setting forth the county defendants’ position that the conflict of interest required the disqualification of Aleshire & Wynder. The parties met and conferred several times between July 28, 2021 and August 5, 2021 to attempt to resolve the conflict and were unable to do so. Aleshire & Wynder therefore requested time to meet with the Hesperia City Council to request permission to voluntarily withdraw and indicated that they would do so at the next available meeting on August 17, 2021. The county defendants therefore agreed to wait until after this meeting with the sincere hope that Aleshire & Wynder would do the right thing, given its former representation of the county. However, on August 18, 2021, San Bernardino County Counsel was informed that a voluntary withdrawal would not be filed. The county defendants have therefore made a good faith effort pursuant to Local Rule 7-3 to request that Aleshire & Wynder voluntarily withdraw, given its ethical obligations to its former client. It is now evident that this motion is the only recourse the county defendants have to seek disqualification of Aleshire & Wynder for the reasons stated herein. County defendants make their motion on the grounds that city defendant’s counsel has violated California Rule of Professional Conduct 3-310 by failing to obtain the informed written consent of each client as there was a potential conflict of interest from the beginning of the representation.”
Furthermore, according to Gustafson and Margolies, Aleshire & Wynder are responsible “for creating an actual conflict of interest in violation of California Rule of Professional Conduct 1.7 when it ceased representation of the county defendants. Here, by electing to represent all defendants (city, county and sheriff’s department) at the outset, and, for the last nineteen months, Aleshire & Wynder created an actual conflict of interest and sought to avoid this conflict by abruptly dropping county defendants like a hot potato, something the law prohibits. This tactic is a violation of Aleshire & Wynder’s most sacred duties of confidentiality and loyalty. Furthermore, these violations have interfered with the orderly administration of justice and the progress of this case. Accordingly, county defendants request that Aleshire & Wynder be disqualified from continuing to represent any party in this case and for ancillary relief.”
It has not been publicly disclosed what the conflict referenced consisted of. There is some overlap between the sheriff’s department and the city with regard to issues featured in the case. Aside from the sheriff’s department serving as Hesperia’s de facto police department under a contract to provide law enforcement services, the matter is complicated by the consideration that in 2015, Nils Bentsen was the commander of the Hesperia sheriff’s station and was thus serving as what was essentially Hesperia’s police chief. Bentsen was in large measure the architect of the Crime Free Rental Housing Ordinance, which was drafted over an extended period of time in 2015 and enacted by the city council in November 2015. The following month, Bentsen was appointed by the city council to assume the position of city manager, which he formally filled in January 2016 after his retirement from the sheriff’s department. The city did not implement the ordinance and its provisions until Bentsen moved into the city manager’s post. In this way, Bentsen is a central figure in the federal suit in his capacity as both a sheriff’s department and city employee.
On September 16, the court granted the motion to disqualify Aleshire & Wynder as the city’s legal representative, and Aleshire & Wynder submitted its withdrawal intention the following day, but remains, technically, as Hesperia’s legal counsel until the city retains another firm, which it must do under court mandate by October 26. Meanwhile, on October 14, Aleshire & Wynder is scheduled to engage with the U.S. Attorney’s Office, in a settlement conference aimed at bringing the Justice Department’s action against the city to a conclusion prior to trial.
The seriousness with which the situation is viewed by the county was demonstrated by the board of supervisors having been given a briefing on the matter during its closed session with the office of county counsel, the county’s stable of in-house attorneys, during its meeting on Tuesday, October 5.
-Mark Gutglueck