Wednesday, February 4, 2004
Bid for Review of Rulings on Demurrers Challenging Delgadillo Qualifications Could Come This Week
By DAVID WATSON, Staff Writer
The Los Angeles Public Defender will probably be ready to seek review of rulings on demurrers challenging the authority of Los Angeles City Attorney Rocky Delgadillo to bring misdemeanor prosecutions by the end of this week, a senior official with the office said yesterday.
Acting Assistant Public Defender for Operations John Vacca said he expects that by Friday the office will “either have already filed or be in position to file” an appeal or writ petition with the Los Angeles Superior Court Appellate Department.
Meanwhile two experts contacted about the questions first raised about Delgadillo’s qualifications in a Jan. 9 column in the MetNews differed over whether Attorney General Bill Lockyer should initiate a court action which could resolve them.
A law professor who participated in drafting the new City Charter said he believed there was no merit to the claim that the inactive status of Delgadillo’s State Bar membership during a part of the five year period preceding his election made him ineligible for office, and no reason for the attorney general to act on the claim. But a former state attorney general said he believes the questions, once raised, should be resolved.
Deputy public defenders began filing demurrers to all prosecutions initiated by Delgadillo in late January, arguing they were improper because Delgadillo was not “qualified to practice in all the courts of the state...for at least five years immediately preceding his...election” as required by Sec. 270 of the charter. The demurrers have been uniformly overruled.
Vacca said the Public Defender’s Office is reviewing transcripts in several cases filed at the Airport and Long Beach courthouses and will select one or more of them to seek appellate review. At the Airport Courthouse the demurrers were heard before Judge James Brandlin, while those being reviewed from Long Beach were heard by Judge Tomson T. Ong, he said.
Vacca said he did not know whether the cases had already reached disposition, and hence could be appealed, or whether a writ petition would be filed.
Judges ruling on the demurrers did not reach the merits of the claim Delgadillo was unqualified when elected. Prosecutors argued that quo warranto provides the exclusive means for mounting such a challenge and that any deficiency in Delgadillo’s qualifications does not provide a ground for demurrer since it does not appear on the face of the accusatory pleading.
A spokesperson for Lockyer said Jan. 13 the attorney general did not plan to initiate a quo warranto challenge to Delgadillo’s right to hold office. If an application for a quo warranto action is filed, the attorney general’s Opinions Unit will review it and issue an opinion granting or denying the application to sue, the spokesperson said.
USC law professor Erwin Chemerinsky and former Attorney General John Van de Kamp differed when asked whether Lockyer was right to refrain from initiating a challenge.
Chemerinsky, who chaired the charter commission, said he has studied the issue and believes the term “qualified” as used in the charter is “inherently ambiguous.”
The scholar commented:
“There is no legislative history to find. In the charter reform process we didn’t talk about that.”
In the absence of such evidence, the “question is what interpretation better serves the underlying purpose” of the provision, Chemerinsky said, opining that disqualifying a candidate based on inactive status would run counter to the measure’s aim of ensuring that candidates meet the standards demanded for law practice.
A lawyer whose membership is inactive can change that status “just by paying the fee,” Chemerinsky said. That, he said, distinguishes Delgadillo’s situation from the circumstances considered in Felt v. Waughop (1924) 193 Cal. 498, a case involving an identical provision of the Long Beach City Charter.
The candidate whose right to run for Long Beach city attorney was considered in Felt was an Iowa lawyer not admitted to the California bar, Chemerinsky noted, and could not have practiced law in California without subjecting his qualifications to additional scrutiny.
While Chemerinsky said Lockyer has no obligation to independently initiate a quo warranto action, Van de Kamp expressed a different view.
“There should be some kind of resolution,” he said.
Van de Kamp, a current member of the State Bar Board of Governors representing District 7, which consists of Los Angeles County, served as attorney general from 1983 until 1991. The fact that the issue has become a matter of public controversy and an issue in criminal prosecutions brought by Delgadillo should prompt action by the attorney general, he suggested.
“The issue has been raised and it should be answered,” he averred.
Michael Feuer, a city councilman when he finished second to Delgadillo in the 2001 race, also had a period of inactive bar membership. Deputy District Attorney Lea Purwin D’Agostino, who finished third, has said she is looking into the possibility of asking Lockyer for leave to mount a quo warranto challenge.
Code of Civil Procedure Sec. 803 requires the attorney general to bring a quo warranto action “whenever he has reason to believe that [an] office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.”
The attorney general can also commence a quo warranto action “upon a complaint of a private party,” though under Sec. 810 he can require the individual making the request to “enter into an undertaking, with sureties to be approved by the Attorney General, conditioned that such party or the sureties will pay any judgment for costs or damages recovered against the plaintiff, and all the costs and expenses incurred in the prosecution of the action.”
Copyright 2004, Metropolitan News Company