Wednesday, April 7, 2004
Lawyer: Ninth Circuit to Consider Challenge to Delgadillo Qualifications
By a MetNews Staff Writer
An attorney for Deputy District Attorney Lea Purwin D’Agostino said yesterday the Ninth U.S. Circuit Court of Appeals has ordered City Attorney Rocky Delgadillo to file a reply in her bid to overturn a judge’s ruling dismissing her challenge to his election.
In a press release, Venice attorney Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield said the court had rejected Delgadillo’s motion to dismiss the appeal for lack of federal jurisdiction. U.S. District Judge Manuel Real of the Central District of California dismissed D’Agostino’s suit last month on jurisdictional grounds.
Yagman, who could not be reached for comment late yesterday, said in a statement:
“The suit wrongly was dismissed, we promptly appealed, and Delgadillo’s claim there is no jurisdiction is wrong, as the Appeals Court has ruled. It’s only a matter of time until Delgadillo no longer will be City Attorney.”
D’Agostino finished third in balloting for city attorney in 2001. Both Delgadillo and then-City Councilman Michael Feuer, who finished second in the voting and lost to Delgadillo in a runoff, had periods of inactive State Bar membership within the five years preceding the vote.
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.
D’Agostino’s civil rights suit contends that her right to due process was violated when city officials certified Delgadillo the winner of the election.
A lawyer for Delgadillo, Sarah E. Kurtin of Munger, Tolles and Olson in Los Angeles, said yesterday she had not seen an order from the Ninth Circuit in the case.
Yagman’s statement said the court ordered Delgadillo to file an answering brief by May 3.
In her appeal brief, D’Agostino asked the Ninth Circuit to rule as a matter of law that Delgadillo is not entitled to hold office. She also asked that if the matter is remanded it not be returned to Real’s courtroom.
Yagman has a history of run-ins with Real. The brief contended that Real has “demonstrated a long-standing, chronic, obdurate, and mostly unstoppable habit of refusing to follow the orders” of the Ninth Circuit.
If a remand is necessary, it should be to Senior Judge William J. Rea, “who, after all, was the Judge to whom this case actually was assigned,” the brief asserted, citing what it described as “odd entries” in the docket sheet for the case.
The questions about Delgadillo’s qualifications have also prompted Los Angeles deputy public defenders since late January to file demurrers in all misdemeanor prosecutions initiated by the city attorney. The demurrers have been uniformly overruled by Los Angeles Superior Court judges.
A city attorney spokesman said yesterday that more than 8,500 demurrers have been overruled so far. The city attorney has argued that only an action in quo warranto, not a demurrer, is an appropriate means to raise the qualifications issue.
Both the Superior Court Appellate Division and this district’s Court of Appeal have rejected writ petitions seeking to force judges to reach the merits of the qualifications issue.
Public Defender Michael Judge had been expected to decide yesterday whether his office will ask Attorney General Bill Lockyer to initiate a quo warranto proceeding, but no decision was made public.
Copyright 2004, Metropolitan News Company