Friday, May 28, 2004
A.G.’s Office Says It Will Act Soon on Delgadillo Qualifications Issue
By DAVID WATSON, Staff Writer
A top deputy to Attorney General Bill Lockyer said in a letter made public yesterday that the office will “respond substantively” in the “immediate future” to questions raised about City Attorney Rocky Delgadillo’s qualifications to hold office.
The letter was dated Tuesday and sent to Los Angeles Public Defender Michael P. Judge by Richard M. Frank, Lockyer’s chief deputy for legal affairs. Judge wrote to Lockyer April 6 asking him to act in the controversy.
Deputy public defenders and some private attorneys have been filing demurrers since late January in cases initiated by Delgadillo, contending the city attorney holds office illegally and lacks authority to bring the charges. Earlier this month Criminal Courts Supervising Judge David Wesley issued in order in one of the cases in which a demurrer had been filed, urging Lockyer to take action
Though Los Angeles Superior Court judges have uniformly overruled the demurrers 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 said 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.”
Meanwhile, the demurrers will continue to tie up scarce court resources, the supervising judge said.
In his letter, Frank acknowledged the order issued by Wesley, and the letter indicated that copies were being sent to Wesley and Delgadillo.
“This office is currently undertaking a thorough review of the matter, and should be able to respond substantively to both Judge Wesley and you in the immediate future,” Frank wrote.
Wesley said yesterday he welcomed the development.
“Since it appears that only the attorney general has the authority to resolve this issue, and thereby relieve the court and the parties of the continuing burden that repetitive filings have created, I am thankful that he has agreed to review the matter and I look forward to his response,” the supervising judge said.
The public defender expressed similar sentiments, his chief deputy said.
Robert Kalunian said he spoke with Judge about Frank’s letter. The public defender “agrees with Judge Wesley that this is an important and critical legitimate issue that warrants the attention of the chief legal officer of the state of California and we are pleased that the attorney general will render a decision on the merits,” Kalunian said.
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.
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