Metropolitan News-Enterprise


Wednesday, February 18, 2004


Page 1


Review of Rulings on Demurrers Challenging Delgadillo Sought

Public Defender Seeks Writ in Appellate Division as D’Agostino Appeals Federal Court Decision


By DAVID WATSON, Staff Writer


Los Angeles Public Defender Michael Judge has asked the Appellate Division of the Superior Court to order the court’s judges to address the merits of claims City Attorney Rocky Delgadillo is not authorized to bring misdemeanor prosecutions, one of his deputies said yesterday.

Deputy Public Defender John Scott said a writ petition was filed Friday on behalf of Nigel Dennis Stuart, a misdemeanor defendant whose demurrer was overruled by Judge James Brandlin at the Airport courthouse Jan. 22. Deputy public defenders have been demurring to misdemeanor complaints filed by Delgadillo since late January.

Venice attorney Stephen Yagman, whose challenge to Delgadillo’s right to hold office was rejected by a federal judge Friday, said he filed a notice of appeal in that litigation yesterday and expects to have an appellate brief ready for the Ninth U.S. Circuit Court of Appeals this week. Yagman is representing Deputy District Attorney Lea Purwin D’Agostino, who was a candidate for the post in 2001, losing to Delgadillo.Questions about Delgadillo’s qualifications to hold office were raised in a Jan. 9 column in the MetNews. A City Charter provision requires that the city attorney have been “qualified to practice” for the five year period preceding election.

Delgadillo’s State Bar membership was inactive between Jan. 1, 1995 and July 1, 1999.

Demurrer Overruled

Brandlin ruled Stuart’s demurrer to charges of driving under the influence, hit and run, driving without a license, and having no proof of insurance was not a proper means by which to raise the issue of whether Delgadillo had legitimate authority to prosecute him. The City Attorney’s Office argued that an official’s qualifications to hold office can only be challenged in a quo warranto proceeding.

Stuart’s writ petition asks the Appellate Division to order Brandlin to address the merits of the demurrer.

In points and authorities supporting the petition, Judge argued that Brandlin erred in ruling that a quo warranto action, rather than a demurrer, would be the proper way for Stuart to assert his claims.

“Petitioner is not attempting to remove Mr. Delgadillo from office, which is the sole function of a quo warranto proceeding,” the public defender declared. “If the demurrer is sustained, Mr. Delgadillo will retain the office of City Attorney until such time as proceedings are taken for his removal. Rather, petitioner challenged the validity of actions taken by Mr. Delgadillo which may be taken only by an authorized prosecutor. If, as petitioner contends, Mr. Delgadillo is not qualified for the office he purports to occupy, he cannot be found to be an authorized prosecutor.”

 Judge went on to assert:

That issue could not be determined in a quo warranto actionóthe validity of actions taken by a person unlawfully occupying an office is not determined in such a proceeding.”

A quo warranto proceeding “would not suffice to settle that issue even if pursued,” the public defender declared.

Judge cited People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 for the proposition that a “criminal charge which is not filed by an authorized prosecutor is a nullity.” Pellegrino involved an improperly appointed special prosecutor.

“The Court of Appeal—recognized that it was proper to bring an attack upon the pleading itself, rather than merely launching a proceeding to remove the ‘special prosecutor’ from office,” Judge argued. “The Court of Appeal ruled that due process had been violated by the filing of a charge by an unauthorized prosecutor....”

Due Process

Initiation of a prosecution by an improperly elected city attorney is a due process violation, the public defender contended.

“Even if Mr. Delgadillo did not personally sign the complaint or personally exercise discretion in deciding whether to initiate this particular prosecution, the City Attorney is the responsible official, and it must be presumed that his deputies are carrying out his policies and that the exercise of discretion by deputies is in accordance with the overall management of the office by the City Attorney,” Judge wrote. “Thus, ultimately, it is an exercise of discretion by the City Attorney which is required by due process.”

  Scott, who prepared the writ petition, said he did not spend much time discussing the issue of whether judges ruling on the demurrers could take judicial notice of the fact Delgadillo’s membership was inactive for more than four years because he did not believe that issue was in serious dispute.

  “I don’t think anybody’s really arguing” that a court cannot take notice of bar membership records, he said. The writ petition describes Delgadillo’s membership status as “common knowledge, of which a court must take judicial notice.”

In a footnote, the writ petition points out that Delgadillo’s right to act as city attorney in the writ proceeding is not being challenged.

“In order to avoid a reductio ad absurdum, and because no constitutional right of petitioner to be opposed by an authorized prosecutor is presented in this litigation, petitioner will raise no objection to the qualifications of Rockard J. Delgadillo to act as City Attorney in this mandamus proceeding,” the footnote states.

Scott commented:

“Otherwise you get into just absolute weirdness.”

He declined to predict how soon the Appellate Division might act.

“They could act quickly, they could act slowly; I’ve had them do both,” he said.

Yagman said yesterday he was pleased that U.S. District Judge Manuel Real of the Central District of California wasted little time Friday in ruling he lacked jurisdiction to hear D’Agosinto’s challenge. D’Agostino finished third in the primary voting for city attorney.

Former City Councilman Mike Feuer, who finished first in the primary and lost to Delgadillo in a runoff, had a similar period of bar membership inactivity.

Real ruled after a brief hearing.

“I had hoped for no time with Judge Real, and that’s exactly what happened,” Yagman, who has had well-publicized clashes with Real in the past, said. “The worst thing for our plaintiff would have been for the case to have languished in the district court.”

Yagman said he will ask the Ninth Circuit to expedite the appeal of Real’s disposition of the case, and will also file a petition with the appeals court for a writ of mandamus.

He said he and D’Agostino chose to bring the case in federal court because it was “the most efficient, experienced and apolitical forum that was available.”

  The essence of D’Agostino’s claim is that her right to due process was violated when city officials certified Delgadillo the winner of the election, Yagman said.

He elaborated:

“The issue is a federal constitutional one, and federal courts are better equipped to deal with federal due process issues than are state courts.”

The attorney added that he believes state court judges are more likely than federal jurists to be influenced by political considerations.

“It seems to make sense to keep a hot political question out of the hands of political appointees,” he declared.

Yagman also said the federal courts are likely to resolve the matter more quickly than state courts could.


Copyright 2004, Metropolitan News Company