Tuesday, March 16, 2004
Challenge to Delgadillo’s Right to Hold Office Dismissed
By DAVID WATSON, Staff Writer
A federal judge yesterday dismissed a lawsuit filed by Deputy District Attorney Lea Purwin D’Agostino seeking to unseat Los Angeles City Attorney Rocky Delgadillo.
Meanwhile, an official said the Public Defender’s Office is nearing a decision on whether to ask Attorney General Bill Lockyer to seek Delgadillo’s removal through a quo warranto proceeding.
Attorney Sarah Kurtin of Munger, Tolles & Olson, who appeared on behalf of Delgadillo before U.S. District Judge Manuel L. Real, said the judge dismissed the case in which D’Agostino is represented by Venice attorney Stephen Yagman. Real last month rejected D’Agostino’s bid for a temporary restraining order.
Yagman could not be reached for comment, but said last week he has asked the Ninth U.S. Circuit Court of Appeals to overturn the earlier ruling. Real said then he had no jurisdiction to hear the case.
Kurtin said Real yesterday granted a motion to dismiss the case with prejudice after a brief hearing. She called the result “consistent with every other court that has looked at any part of this case and has ruled in favor of the city attorney.”
D’Agostino finished third in balloting for city attorney in 2001, but 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. Then-City Councilman Michael Feuer, who finished second in the voting and lost to Delgadillo in a runoff, also had a period of inactive membership.
D’Agostino’s suit contends that her right to due process was violated when city officials certified Delgadillo the winner of the election.
Acting Assistant Public Defender for Operations John Vacca said yesterday that Public Defender Michael Judge may decide soon whether to ask Lockyer to initiate a quo warranto proceeding which could remove Delgadillo from office.
“I suspect he is getting relatively close to making a decision,” Vacca said. He added that Judge received the “last bits of information” from staff members researching the issues involved early last week.
Deputy public defenders have been filing demurrers challenging Delgadillo’s authority to bring misdemeanor prosecutions since late January. More than 6,000 demurrers have been overruled, and the Los Angeles Superior Court Appellate Division last week rejected a writ petition filed by the public defender seeking to force the court’s judges to reach the merits of the issue as to Delgadillo’s qualifications.
That ruling will be challenged before this district’s Court of Appeal, Vacca said.
He explained that if the office decides to seek Lockyer’s intervention, it would first ask by letter that the attorney general initiate a quo warranto proceeding himself. If Lockyer declines to do so, Vacca said, the attorney general could authorize Judge to bring such an action.
Should the attorney general decline to intervene without authorizing the public defender to bring an action, Judge would have to decide whether to request such authorization, Vacca said.
“We are taking this on a step by step basis,” the acting assistant public defender commented.
At least one private criminal attorney has also raised the issue of Delgadillo’s qualifications in a misdemeanor prosecution.
Beverly Hills lawyer Steven T. Flowers last month filed a motion to dismiss charges of vandalism, loitering, and cruelty to an animal against Enrique R. Acuna. The motion raises the same issues cited by the demurrers and is scheduled to be heard Tuesday before Judge Anne H. Egerton, Flowers said.
In his moving papers, Flowers also contends that city charter provisions purporting to authorize the city attorney to prosecute misdemeanors do not meet the requirements of state law. Government Code Sec. 72193 permits charter cities to create an “office of city prosecutor, or provide that a deputy city attorney shall act as city prosecutor.”
That language does not grant cities the power to authorize their city attorneys to serve as prosecutors, Flowers said. He noted that in Long Beach and other cities the offices are distinct.
The statute reflects a “policy choice” made by the Legislature that city attorneys should not be involved in prosecuting crimes because they have an “inherent conflict of interest,” Flowers declared.
The lawyer said he has been considering raising the issue for some time, but did not wish to do so in a case in which he was serving as court-appointed counsel out of concern a judge might believe he was trying to pad his fees. He is not charging Acuna, a private client, for the time he will spend on the issue, Flowers said.
Flowers said he is undeterred by the fact that the practice he is questioning is of long standing. He asserted that for years the City Attorney’s Office prosecuted misdemeanors which occurred at the Veteran’s Hospital on the West Side until he pointed out that it was not within the city limits.
“Nobody ever cared,” he said.
Deputy district attorneys still complain to him about having to prosecute those cases now, Flowers said.
Copyright 2004, Metropolitan News Company