Thursday, May 13, 2004
Supervising Judge Urges Lockyer to Act in Delgadillo Matter
Wesley Says Demurrers Clog Courts While Issue of City Attorney’s Qualifications Remains Unresolved
By DAVID WATSON, Staff Writer
Criminal Courts Supervising Judge David Wesley said yesterday he has asked Attorney General Bill Lockyer to “take prompt action” on a request by the Public Defender’s Office to initiate a quo warranto action which could oust City Attorney Rocky Delgadillo from office.
Wesley said he acted because misdemeanor prosecutions are being slowed by demurrers being filed by deputy public defenders. The demurrers contend the city attorney holds office illegally and lacks authority to bring criminal charges.
In an order dated May 6, Wesley noted that defense lawyers are continuing to file the demurrers, although Los Angeles Superior Court judges have uniformly overruled them and both the Superior Court Appellate Division and this district’s Court of Appeal have summarily denied writ petitions filed by the public defender.
Wesley wrote in the order—a copy of which he directed the court clerk to send to Lockyer—that it is “apparent that the Public Defender and other defense counsel will continue to file these motions to preserve the defense in all cases until the matter is resolved on the merits.”
He appealed to Lockyer to act on the request, which Public Defender Michael Judge made in an April 6 letter to the attorney general.
“Unless and until this matter is resolved on the merits, the continued filing of these motions will have a significant impact upon scarce judicial resources,” Wesley wrote.
In ruling on the demurrers, judges have not determined whether or not Delgadillo was qualified to run for city attorney when he was elected in 2001. Instead, they have ruled that the issue is not one which may be raised via demurrer, but could be litigated only in a quo warranto proceeding.
Judge’s letter asked Lockyer to initiate such a proceeding.
Questions about Delgadillo’s qualifications were first 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, but Delgadillo’s State Bar membership was inactive between Jan. 1, 1995 and July 1, 1999.
In his order, Wesley said that because of the nature of the trial court rulings “there has been no determination on the merits of the motions.”
He added that the court had been “informed that both the Public Defender and the Los Angeles City Attorney are anxious to have this matter resolved on the merits as soon as possible.”
Wesley said yesterday that his statement that Delgadillo’s office supports action by Lockyer on Judge’s request was based on meetings held with city prosecutors and representatives of the Public Defender’s Office soon after deputy public defenders began filing the demurrers in January. At those meetings, he said, both sides appeared to favor a resolution that would avoid the repetitive filings that are now taking place.
‘Makes No Sense’
“All they’re doing is filing paper,” the judge commented. “It just makes no sense to keep filing these motions ad infinitum. It seems to me this should be resolved.”
A spokesperson for Lockyer said Wesley’s request was being considered.
“We’ll review it and obviously because of the court’s interest it’s something that we’ll take very seriously,” Lockyer press aide Nathan Barankin said. But Barankin also pointed out that Wesley had not made a formal request for an opinion on the matter from the attorney general.
A spokesperson for Delgadillo did not return a call seeking comment on Wesley’s order yesterday. In his April letter to Lockyer, Judge said meetings with Wesley to “streamline” paperwork related to the demurrers proved unproductive after the City Attorney’s Office insisted that any agreement be conditioned on Judge’s office “simultaneously and...expeditiously” pursuing both an appeal and a quo warranto action.
Code of Civil Procedure Sec. 803 requires the attorney general to bring a quo warranto proceeding “whenever he has reason to believe that any...office…has been usurped, intruded into, or unlawfully held or exercised by any person.”
The statute authorizes a private party, with the consent of the attorney general, to bring a quo warranto action, and the attorney general’s Web site describes that as the method by which such actions are “usually” prosecuted. But Judge did not ask Lockyer for leave to bring a quo warranto action.
Regulations promulgated by the attorney general’s office require that an application for “leave to sue” in quo warranto be in the form of a complaint accompanied by points and authorities.
The issue of Delgadillo’s qualifications is also being litigated in federal court. A lawsuit filed by Deputy District Attorney Lea Purwin D’Agostino contends that her right to due process was violated when city officials certified Delgadillo the winner of the election.
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 State Bar membership within the five years preceding the vote.
D’Agostino is represented in federal court by Venice attorney Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield. Her suit was dismissed by U.S. District Judge Manuel Real and is now before the Ninth U.S. Circuit Court of Appeals.
Copyright 2004, Metropolitan News Company