Wednesday, June 16, 2004
A.G.’s Office Declines to Act on Issue of Delgadillo Qualifications
Top Deputy Opines Actions as City Attorney Validated by ‘De Facto Officer’ Doctrine
By DAVID WATSON, Staff Writer
Attorney General Bill Lockyer’s office will not take independent action to force a court ruling on whether Los Angeles City Attorney Rocky Delgadillo is qualified to hold office, a top official with the office said in a letter made public yesterday.
In the letter to Los Angeles Superior Court Criminal Courts Supervising Judge David Wesley, dated Monday, Chief Deputy Attorney General for Legal Affairs Richard M. Frank pointed out that the issue turns on the meaning of Sec. 270 of the Los Angeles City Charter, which requires a candidate for city attorney to 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. He was elected in 2001.
Citing a 1983 opinion by then-Attorney General John Van de Kamp, Frank said the attorney general does not “interpret local charters.” For the same reason, he said, Lockyer would not independently initiate a quo warranto action to enforce a local charter provision.
“Even assuming it could be ascertained what the Los Angeles City electorate means by the phrase ‘qualified to practice,’ it would not be appropriate for the Attorney General to take action to remove the city attorney from office based upon such admittedly ambiguous charter language,” Frank wrote.
Deputy public defenders have been filing demurrers to misdemeanor complaints since late January, contending that Delgadillo lacks authority to bring the prosecutions. Public Defender Michael P. Judge wrote to Lockyer April 6 asking him to act in the controversy.
Last month Wesley issued an order in one of the cases in which a demurrer had been filed urging Lockyer to take action.
Frank’s letter, copies of which went to Delgadillo, Judge, and Superior Court Presiding Judge Robert A. Dukes, said questions of the type raised about Delgadillo’s qualifications are “routinely considered when a proposed relator files an application to sue in quo warranto.” He noted that no one has sought the attorney general’s permission to bring such an action.
“If an application were filed, the Attorney General would treat it like any other quo warranto application,” Frank declared, noting that the procedures for making such a request are detailed on the attorney general’s Web site.
‘De Facto Officer’
But Frank, citing In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21 and other cases, opined that even if Delgadillo were removed from office, “the official acts of Mr. Delgadillo performed as City Attorney prior to the court’s order of removal would nevertheless be deemed valid ‘for grave reasons of public policy’ under the de facto officer doctrine.”
Frank said he had previously expressed his views on the issue in a February letter to Encino attorney Gilda R. Cohen. That letter was not mentioned in Frank’s response last month to Wesley’s order.
Frank’s letter to Cohen declared:
“I understand that in 2000, then Los Angeles City Attorney James Hahn interpreted this provision of the city charter, concluding that inactive status did not disqualify a member of the State Bar from being a candidate for the office of city attorney.”
The purported opinion by Hahn, who is now mayor, was cited in responses to the demurrers filed by deputy city attorneys, though it did not bear Hahn’s signature and was not on office letterhead.
The letter to Cohen also asserted that a Superior Court lawsuit challenging Delgadillo’s qualifications was filed in February.
Neither Cohen nor Wesley could not be reached for comment yesterday. Acting Assistant Public Defender for Operations John Vacca released a statement saying the office had “not yet had a chance to digest the letter and formulate any response.”
Delgadillo spokesperson Eric Moses said Frank’s letter “has confirmed what we have said from the outset,” that is, that “all the actions taken by the city attorney since his election are valid and lawful.
“We trust this will put an end to any effort to create a legal loophole for criminal defendants based upon a hypertechnical, illogical reading of the City Charter.”
Questions about Delgadillo’s qualifications were first raised in a Jan. 9 column in the MetNews, and 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.
Copyright 2004, Metropolitan News Company