Tuesday, April 6, 2004
Appeals Court Turns Down Bid for Review of Ruling On Demurrer Challenging Delgadillo Qualifications
By DAVID WATSON, Staff Writer
This district’s Court of Appeal has declined to review a judge’s decision overruling a demurrer challenging the authority of City Attorney Rocky Delgadillo to prosecute misdemeanors.
Acting Assistant Public Defender for Operations John Vacca said he learned yesterday that the writ petition filed by the Public Defender’s Office last month was summarily denied on Friday. Vacca said Public Defender Michael Judge will probably decide today whether to ask Attorney General Bill Lockyer to challenge Delgadillo’s right to hold office in a quo warranto proceeding.
“It’s my expectation that we will request of the attorney general that he file a writ of quo warranto,” Vacca said.
Under state law, Lockyer could initiate a quo warranto proceeding himself. If Lockyer declines to do so, Vacca has said, the attorney general could authorize Judge to bring such an action.
Deputy public defenders have been demurring to misdemeanor complaints filed by Delgadillo since late January, arguing he cannot prosecute their clients because he was not legally qualified to hold office at the time he was elected. The demurrers have been uniformly rejected by Los Angeles Superior Court judges.
Questions about Delgadillo’s qualifications 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.
The writ petition denied Friday substantially duplicated a 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.
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.
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.
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, had a similar 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.
Copyright 2004, Metropolitan News Company