The building is the home office of the law firm of Best, Best & Krieger, a genuine Riverside success story. Founded by Raymond Best in 1915, the firm—commonly known as BBK—grew from a two-attorney shop into one of the state’s most powerful legal enterprises, presently employing more than 180 lawyers. Some 33 California cities and townships—including six in the Inland Empire— contract BBK lawyers to serve as their official city attorneys. Call those cities and ask to speak with the city attorney, and you’ll be transferred to a BBK office.
Several BBK lawyers serve as city attorneys for multiple municipalities. Partner Stephen P. Deitsch, for example, is the official city attorney for the cities of Arcadia, Big Bear Lake and Indian Wells. He’s also counsel for those cities’ redevelopment agencies and those of Fontana, Ontario and Westminster.
What does this have to do with pot? Of the 33 cities with BBK lawyers serving as city attorneys, more than 20 have adopted moratoriums or outright bans on medical-marijuana dispensaries. Several others have imposed severe restrictions on the operations.
JUST A LEGAL ADVISOR
The firm argues that all those prohibitions have nothing to do with one another, other than they represent a general trend (more than 190 California cities have adopted similar measures) and the will of the city councils that enacted them.
“BBK is a legal advisor to the cities,” wrote Sonia Carvalho, a BBK partner contracted as city attorney for Claremont, in response to my request for an interview with the firm. “We advise the cities on what the law says. We do not make public policy, the city councils do. We are always very sensitive to understanding our role and not becoming involved in the public policy debates.”
The firm’s website actively solicits anyone “dealing with Medical-Marijuana issues” to contact BBK attorneys.
Best, Best & Krieger has offices across the state, but its power base is unquestionably in Southern California, where cities have been grappling with the issue of storefront pot dispensaries since the passage of Prop. 215 more than 13 years ago. That combination—municipal discontent with dispensaries and BBK’s omnipresence in the Southland—has led to situations where legal challenges to medical marijuana appear to be coming from multiple fronts but can be traced back to one source—BBK.
Take the case of Darrell Kruse, who in 1997 was sued by the city of Claremont for opening a dispensary in violation of its pot moratorium. Claremont had adopted the prohibition a few months earlier with Carvalho, in her capacity as city attorney, advising the council. Carvalho is also city attorney for Azusa, which bans dispensaries, and Yorba Linda, which greatly restricts them.
The case was prosecuted by BBK partner Jeffrey Dunn, described in his bio on the firm’s website as an expert in complex litigation issues. The city ultimately prevailed, resulting in the recently published Claremont vs. Kruse decision by the 2nd District Court of Appeal. Dunn immediately declared that the ruling affirms the right of cities to prohibit dispensaries by using “traditional zoning or business license decisions.”
Within days of the decision, Lake Forest City Attorney (and BBK partner) Scott Smith announced the filing of civil complaints against 35 people in an effort to shut down 14 medical-marijuana dispensaries operating in the city (Smith is also city attorney for Aliso Viejo, which bans dispensaries). The reason:
“We will initiate prosecution against the operators and landlords of these dispensaries operating in violation of federal law and violation of the city’s zoning code,” Smith was quoted in a Sept. 1 The Orange County Register article.
Prosecuting the complaints against the dispensaries: Jeffrey Dunn. The Register and several other newspapers that reported the story failed to note the common connection—BBK—between Lake Forest’s move and the Claremont decision.
A CASE FOR OUTSOURCING
Several legal and government experts I contacted for this story said they saw no inherent problems with BBK’s actions or the practice of private firms contracting out city attorneys. John Cioffi, a political science professor at UC Riverside, says both issues boil down to cost efficiency.
“I don’t have any evidence or knowledge that the representation of all these governments by a single firm has altered the policy positions of these governments,” says Cioffi, who has a law degree in civil litigation. “As far as I know, the cities’ policy positions are ones they would have taken anyway.
“Very often, governmental units will have their own attorneys, but they handle more routine work—that’s cost-effective,” he says. “But when you get some odd, more complex situation, it may be more cost-effective and you may get better results to contract that work to some outside law firm.”
Peter Scheer, executive director of the First Amendment Coalition, a San Rafael watchdog group that advocates public access to government, agrees. He stresses, however, that government officials need to constantly evaluate its contracts with private firms to ensure such arrangements are, in fact, cost-effective. And he cautions private firms like BBK that their city-attorney work is just as subject to public scrutiny as that of in-house city attorneys.
“If any lawyer is declining to disclose public records on the grounds that the lawyer is not a government employee, that argument is completely specious, and I would like to hear about it,” Scheer says.
I wasn’t allowed to personally interview BBK lawyers on Scheer’s point. Carvalho noted in her emailed comments that city council actions on medical-marijuana are subject to public scrutiny.
“All decisions made by cities on whether to permit or ban dispensaries are made by a city council in public in full accordance with the Brown Act,” she wrote, referring to the state law governing public access to government meetings. “Staff reports and draft documents are always made available 72 hours in advance as required by the Brown Act.”
Cost-effective or not, accessible to public scrutiny or not, BBK has earned itself a reputation among pro-medical marijuana activists that Lanny Swerdlow, founder of the Marijuana Anti-Prohibition Project, summed up in two words on the group’s blog: the enemy.
“They’re flaks for city and county law enforcement, and I think their opinions on medical-marijuana law are wrong,” he told me in an interview.
Ryan Michaels, founder of the IE-based consulting company Medical Cannabis Experts and co-founder of the advocacy group Yes We Cannabis, accuses the firm of hypocrisy for its marijuana-law practice.
“Their whole point is to accuse dispensaries of creating a cottage industry with marijuana, and here they are doing the same thing,” he says.
Of particular concern, Michaels says, is what he sees as an uncomfortably close relationship between BBK and law enforcement. He cites as evidence the firm’s dealings with former Riverside County District Attorney Grover Trask. Trask spent the last decade of his 24-year D.A. career as a staunch opponent of medical marijuana, retired in 2006—and then promptly joined BBK as special counsel for its Municipal and Redevelopment Practice Group.
“[The firm] hired Trask right after he wrote his white paper and while in the midst of the Naulls case,” Michaels says. “It’s dirty.”
Michaels refers to two developments that galvanized the IE’s medical-marijuana community like nothing else: Trask’s September 2006 document on marijuana dispensaries and the legal travails of Ronald Naulls, former owner of the Healing Nations Collective in Corona.
The white paper, in which Trask declared that for-profit storefront dispensaries were both illegal and attracted crime, had a profound effect on governmental perception of such operations: A week after it was issued, members of the Riverside County Board of Supervisors cited it when they banned dispensaries in the county.
Naulls was sued by the city of Corona in 2006 for operating Healing Nations without a business permit. Prosecuting the lawsuit were Dunn, BBK associate Marc Ehrlich and Corona City Attorney (and BBK partner) Dean Derleth. Naulls lost the case on trial and on appeal—he still faces possible imprisonment on marijuana-distribution charges stemming from a 2007 federal raid on his home.
BAD FOR DEMOCRACY?
Moreno Valley attorney Richard Ackerman, who specializes in marijuana law, defended Naulls in the civil lawsuit and knows BBK intimately.
“I’ve locked horns with BBK maybe 10 times,” Ackerman says. “One of the things you lose when bringing in a private firm as city attorney is that direct connection with the public. Anything a city attorney does is a matter of public interest, whether it’s environment issues or land use or medical uses, as in the case of medical marijuana. If you talk to the voters, they wouldn’t want their city attorney going after an issue that they voted shouldn’t be an issue. But if you don’t have that direct line between the community and the city attorney purportedly representing the community, you lose sight of that.
“When city councils go to BBK, they just ask what’s the right answer to a question,” he continues, “and BBK gives them an answer that may not necessarily be in the best interest of the people. In that instance, they do influence public policy. If that happens with an elected city attorney, you can vote them out of office. You can’t do that with a private firm.”
Along with their city-attorney services, BBK lawyers provide legal counsel to in-house city attorneys, including Riverside’s Greg Priamos. The firm handled most of the legal grunt work for Riverside City Hall’s downtown eminent-domain cases two years ago. Attorneys for the firm also serve as general counsels to dozens of powerful city, county and regional boards and commissions, such as the San Bernardino, Orange, El Dorado and Merced county Land Formation commissions, the San Bernardino Housing Authority, the March Joint Powers Authority, the Jurupa Unified School District and the Downtown Sacramento Partnership.
Nearly everyone I spoke with, including Ackerman, agrees that BBK is a highly respected law firm—particularly among lawyers. Five BBK attorneys, including Carvalho, were recently named to the 2009 list of “Super Lawyers” by the Minnesota-based magazine of the same name. Several were also included in the 2009 edition of The Best Lawyers in America.
But Ackerman sees all this as yet another reason why BBK’s city-attorney niche is bad for democracy.
“The average citizen doesn’t have this kind of clout,” he says. “They can’t put up a fight against BBK.”
Cioffi agrees with that assessment, but the UCR professor says the notion that you can’t fight City Hall isn’t anything new.
“That’s always the case when you have a citizen going against government,” he says. “I don’t see how having a private law firm representing government bolsters the disparity of power. There are procedural rules in place that are supposed to equalize the power balance.”