Thursday, January 22, 2004
Defender: City’s Argument Would Bar Demurrer to Pleadings Filed by Anyone Posing as City Attorney
By DAVID WATSON, Staff Writer
Arguments presented by City Attorney Rocky Delgadillo in support of his authority to continue prosecuting misdemeanors would, if accepted, bar challenging by demurrer a pleading filed by anyone posing as city attorney, legal papers filed by the Public Defender’s Office yesterday contend.
The new contention appears in an expanded reply to the expanded opposition being filed by deputy city attorneys in litigation over demurrers filed on behalf of misdemeanor defendants. The Public Defender’s Office last week began filing the demurrers in every new case, arguing that Delgadillo lacks authority to bring the prosecutions because at the time he was elected in 2001 he did not meet the qualifications for office set forth in the city charter.
Acting Assistant Public Defender for Operations John Vacca said his office began using the new reply pleading yesterday. He said the office considered seeking continuances after the City Attorney’s Office introduced its revised opposition document, but was able to prepare its new pleading by yesterday morning and began using it instead.
Vacca said Tuesday the number of cases involved could reach 500 or 1,000 by tomorrow.
Yesterday Vacca said some additional judges had overruled the demurrers, following the lead of Los Angeles Superior Court Judge Richard Rico. Rico ruled Tuesday the issue of Delgadillo’s qualifications could be raised only in a quo warranto proceeding, not by demurrer.
Vacca said some judges in the Metropolitan and Van Nuys courts had overruled demurrers. None of the demurrers have been sustained, but a hearing consolidating demurrers in cases at the Airport court is to take place today, he said.
The revised reply attacks the city attorney’s contention that a demurrer cannot be used to question Delgadillo’s right to bring the prosecutions because any deficiency in his qualifications is not apparent on the face of the accusatory pleading.
“It would, apparently, be the People’s position that if anybody filed a document charging a crime, and titling himself as the ‘City Attorney’ or ‘District Attorney,’ the court could not, in response to a demurrer, take judicial notice that the person filing the document is not, in fact, that prosecutor—the mere statement of a title alone is sufficient,” the document argues. “This is obviously absurd, and plainly shows the invalidity of the People’s position. That Mr. Delgadillo was on ‘inactive’ status during some of the five-year period before the election is a proposition not reasonably subject to dispute, and is a fact which this court may consider in ruling upon the demurrer.”
The Public Defender’s Office is not using the demurrers to collaterally attack Delgadillo’s right to hold office, the reply states, but is challenging the “validity of actions taken by Mr. Delgadillo which may be taken only by the authorized prosecutor.”
A spokesperson for the City Attorney’s Office said late yesterday that the demurrers have been filed in “several hundred” cases. Hearings have been held in seven of eight facilities in which filings take place, the exception being the Pacific court, he said.
The spokesperson said “more than 225” demurrers have been overruled and none have been sustained.
Copyright 2004, Metropolitan News Company