Wednesday, January 21, 2004
Judge Rules Demurrer Does Not Lie to Challenge Legality of City Attorney Holding Office
By a MetNews Staff Writer
Los Angeles Superior Court Judge Richard Rico yesterday declined to reach the merits of the contention that Los Angeles City Attorney Rocky Delgadillo holds his post unlawfully, ruling that the issue cannot be raised by way of a demurrer to a criminal complaint.
The exclusive means of testing a person’s entitlement to hold office is through an action in quo warranto, he held.
Since last Thursday, the Office of Los Angeles Public Defender has been filing a demurrer in every new case, arguing that the prosecution is invalid because Delgadillo, elected in 2001, did not meet the qualifications for office, set forth in the city charter. Sec 270 provides:
“The City Attorney must be qualified to practice in all the courts of the state, and must have been so qualified for at least five years immediately preceding his or her election.”
Delgadillo was on inactive status during the first three years of the five-year period, a fact that was revealed in a Jan. 9 column in the MetNews.
Rico’s ruling was in conformity with advice in a memo issued by the Superior Court’s Planning and Research Unit.
A Jan. 16 memo to Presiding Judge Robert A. Dukes and Criminal Courts Supervising Judge David Wesley, a copy of which was obtained yesterday, counseled:
“Title to an elective office cannot be litigated by any means other than in quo warranto by the state….A right to hold office may not be collaterally attacked by a challenge to the official acts performed by the person holding the office.”
The same reasoning appeared in a form memorandum of points and authorities filed in response to each of the demurrers.
Additional issues were raised in the opposition which Rico did not reach.
The City Attorney’s Office argued that a demurrer is procedurally improper because the alleged defect does not appear on the face of the pleading. It also maintained that Delgadillo meets the requirement for holding the office because “the requirement that the City Attorney have been ‘qualified to practice’ law clearly refers to the necessary qualifications for membership in the State Bar” which Delgadillo “clearly meets.”
In its reply to the opposition, the Office of Public Defender set forth:
“[T]he defendant is not herein attempting to remove Mr. Delgadillo from office. Such an action lies solely in quo warranto. Instead, the defendant is demurring, challenging the charges against him, on the ground that no qualified prosecutor has filed those charges.”
Responding to Rico’s ruling, Assistant Public Defender John J. Vacca said yesterday:
“I’m certain we’ll take some sort of appellate action.”
He noted that demurrers in eight cases had been set for hearing tomorrow in Rico’s Bauchet Street arraignment court but that the judge yesterday decided to address the issue immediately, picking a case at random in which to do so.
Vacca said hearings on demurrers will proceed in the other downtown Los Angeles courthouses where the Office of City Attorney files cases—Clara Shortridge Foltz and Metro—as well as the facilities in Long Beach (where San Pedro cases are heard), Hollywood, San Fernando, Van Nuys, and Airport.
The assistant city attorney said that so far, his office has filed “a couple of hundred demurrers” based on the contention that Delgadillo unlawfully holds office, and that “by Friday, it could be 500 or a thousand.”
He reported that hearings on demurrers are scheduled for hearing this morning, but that his office might put out the word to deputies to seek continuances based on the City Attorney’s Office filing of an enlarged memorandum of points and authorities in opposition to the demurrers yesterday.
The new memorandum is 13 pages (the initial one was just over six pages) and contains two attachments.
Public Defender Michael Judge on Friday hinted that his office might seek leave to file a quo warranto action.
Vacca yesterday said, “We’re still looking that over as one of the options.”
In order to bring such an action, a would-be litigant must gain permission of the state attorney general. Bill Lockyer has indicated, through a spokesperson, that his office will not bring such a proceeding against Delgadillo on its own initiative—a fact seized upon in the new opposition as an indicator that such an action lacks merit.
Meanwhile, Deputy District Attorney Lea Purwin D’Agostino has not announced whether she will seek leave to file such an action. D’Agostino came in third in the April 2001 primary, behind then-City Council Michael Feuer and Delgadillo, who was then deputy mayor.
However, if inactive status is a disqualifying factor for Delgadillo, it would likewise disqualify Feuer, who was also on inactive status during part of the five-year period preceding the June 2001 general election.
Assistant City Attorney Debbie Lew, who prepared the initial opposition to the demurrer, was not available for comment yesterday. Chief Deputy City Attorney Terree Bowers was reportedly in a meeting and unable to take a call.
Copyright 2004, Metropolitan News Company