C.A. Asked to Rule on Challenges to Delgadillo Qualifications

Wednesday, March 24, 2004

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C.A. Asked to Rule on Challenges to Delgadillo Qualifications

Public Defender to Delay Quo Warranto Decision Pending Outcome of Writ Petition

By DAVID WATSON, Staff Writer

Public Defender Michael Judge yesterday asked this district’s Court of Appeal to force Los Angeles Superior Court judges to address the merits of claims that City Attorney Rocky Delgadillo is not authorized to bring misdemeanor prosecutions.

Acting Assistant Public Defender for Operations John Vacca said Judge also decided yesterday to put off until the appellate court rules on the issue a determination whether he will ask Attorney General Bill Lockyer to seek Delgadillo’s removal through a quo warranto proceeding.

The writ petition filed yesterday substantially duplicates the petition rejected in a brief order March 10 by the Superior Court Appellate Division. It 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.

Vacca said yesterday that Judge will not decide until after the Court of Appeal rules on the writ petition whether to ask Lockyer to initiate a quo warranto proceeding which could remove Delgadillo from office.

If the appellate court rules that quo warranto is the only manner in which Delgadillo’s qualifications can be challenged—an argument made by deputy city attorneys opposing the demurrers—that could strengthen the public defender’s hand in seeking Lockyer’s intervention, Vacca said.

“It sort of gives us a little bit more credence in terms of our letter to the attorney general,” he explained. A favorable decision from the Court of Appeal, on the other hand, could make a quo warranto proceeding unnecessary, Vacca observed.

Under state law, Lockyer could initiate a quo warranto proceeding himself. If Lockyer declines to do so, the attorney general could authorize Judge to bring such an action.

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.

In points and authorities supporting the writ 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—.”

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 filed in the Appellate Division, 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.”

The issue of Delgadillo’s qualifications is also being litigated in federal court. A lawsuit filed by Deputy District Attorney Lea Purwin D’Agostino seeking to unseat Los Delgadillo was dismissed by U.S. District Judge Manuel L. Real of the Central District of California.

D’Agostino’s attorney, Stephen Yagman, has asked the Ninth U.S. Circuit Court of Appeals to overturn that ruling.

D’Agostino finished third in balloting for city attorney in 2001. 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.

At least one private attorney has also mounted a challenge to Delgadillo’s authority to prosecute a misdemeanor defendant.

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.

It was scheduled for hearing yesterday before Judge Anne H. Egerton, but Flowers said the matter was postponed until April 13.

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.