Metropolitan News-Enterprise


Friday, March 12, 2004


Page 1


Appellate Division Rejects Demurrer Rulings Challenge In Spat Over Delgadillo Qualifications


By DAVID WATSON, Staff Writer


The Los Angeles Superior Court’s Appellate Division has rejected a bid by Public Defender Michael Judge to force the court’s judges to address the merits of claims City Attorney Rocky Delgadillo is not authorized to bring misdemeanor prosecutions.

  In a brief order Wednesday, Judges Charles C. Lee, Patti Jo McKay and Susan E. Isacoff denied the writ petition Judge filed last month. Acting Assistant Public Defender for Operations John Vacca said a petition for review by this district’s Court of Appeal will be filed “fairly quickly.”

  A spokesman for Delgadillo expressed confidence that court would reach a similar result.

  “Judges have ruled on the demurrers in more than 6,000 cases,” Eric Moses said. “Now that the Superior Court has denied the writ of mandate petition, we believe that any other writ that is brought to the court will be denied.”

The petition rejected Wednesday was filed 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.

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.

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.

The writ petition asked 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 action—the 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—.”

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.”

In a preliminary opposition to the petition, Delgadillo argued Brandlin’s ruling was “compelled by case law which uniformly prohibits a defendant from collaterally challenging the qualifications of a public official.” Only a quo warranto proceeding may be used to mount such a challenge, he argued.

Delgadillo cited People v. Bowen, 231 Cal.App.3d 783, a 1991 decision he described as rejecting an argument “nearly identical” to that advanced by Judge. Bowen involved a judge who allegedly was not in compliance with statutory tenure-residency requirements at the time of trial.

The court in Bowen declared:

“Under the ‘de facto’ officer doctrine, the attack on the judge’s qualifications is deemed collateral and must be raised separately.”


Copyright 2004, Metropolitan News Company