Thursday, June 17, 2004
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Public Defender Asks Lockyer to Reconsider Decision To Bow Out of Dispute Over Delgadillo Qualifications
By DAVID WATSON, Staff Writer
Los Angeles Public Defender Michael P. Judge yesterday asked Attorney General Bill Lockyer to reconsider his decision not to bring a quo warranto action to determine whether Los Angeles City Attorney Rocky Delgadillo holds office legally.
In a four-page, footnoted letter to Lockyer, Judge disputed the rationale for the decision provided by Chief Deputy Attorney General for Legal Affairs Richard M. Frank in a Monday letter to Los Angeles Superior Court Criminal Courts Supervising Judge David Wesley.
Frank said that because 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, Lockyer would not independently initiate a quo warranto action. He cited then-Attorney General John Van de Kamp’s foreward to a 1983 volume of attorney general opinions, in which Van de Kamp said the office “declines opinion requests calling for the interpretation of local charters, ordinances, resolutions, regulations or rules.”
For the same reasons the attorney general does not “interpret local charters,” Frank said, “quo warranto actions are not filed by the Attorney General to enforce local charter provisions.”
Questions about Delgadillo’s qualifications were first raised in a Jan. 9 column in the MetNews, and deputy public defenders have been filing demurrers challenging his right to prosecute misdemeanor cases since later that month. The demurrers have been uniformly overruled, and both the court’s Appellate Division and this district’s Court of Appeal have declined to intervene.
Judge asked Lockyer in April to initiate a quo warranto action, and last month Wesley, citing the effect of the demurrers on court operations, issued an order in one of the cases urging the attorney general to “take prompt action” on that request.
Van de Kamp’s statement, Judge said, was “grounded in the belief that ‘local counsel’ has the principal responsibility for interpreting and enforcing local measures.” But he said Delgadillo would “be presented with a conflict of interest in interpreting the Los Angeles City Charter, for it is his own personal eligibility which is the subject of inquiry.”
Judge also took issue with Frank’s application of the rationale expressed by Van de Kamp to the question of whether the attorney general should initiate a quo warranto action, which could result in Delgadillo’s removal from office.
“This extension of the policy to quo warranto actions seems to fly in the face” of Code of Civil Procedure Sec. 803, which authorizes the attorney general to bring a quo warranto action against “any person who usurps, intrudes into, or unlawfully holds” any public office, Judge said.
Frank’s letter suggested that Lockyer would consider granting a third party the authority, as a relator, to bring a quo warranto action. But Judge argued that if an action by a relator would be appropriate, one initiated by the attorney general himself would be equally so.
“[I]f the Attorney General were actually disabled from bringing quo warranto regarding local officials, then the Attorney General would likewise lack the power to authorize a relator to do so,” Judge declared. “Would that mean that only Mr. Delgadillo could challenge or authorize a challenge of his right to hold office?”
Judge noted that Frank called the charter provision “ambiguous.” The public defender cited an attorney general opinion stating that one of the factors to be considered in deciding whether leave to sue in quo warranto should be granted is whether there is “a substantial issue of law or fact—that requires judicial resolution.”
He commented:
“The existence of the ambiguity in section 270 of the City Charter clearly constitutes a substantial issue of law;...a court is the proper forum for resolution of the ambiguity.”
Citing the discussion of quo warranto in the treatise California Jurisprudence, Judge said Lockyer should consider not how the issue should be resolved, but whether judicial resolution of it would serve the public interest.
“I suggest that the integrity of the prosecutorial process for misdemeanors within the largest city of the state, a process which results in hundreds of thousands of prosecutions per year, a process which impact the liberty interests of a like number of residents of the city, is of such public importance that the public interest will be served by judicial resolution of the issue,” Judge wrote.
One of the footnotes in Judge’s letter noted that Frank’s response was addressed to Wesley, not to him.
“I have not received a response to my request...that your office institute quo warranto proceedings,” the footnote said.
Frank’s letter asserted that the issue is already being litigated in Superior Court, but a spokesperson for the Attorney General’s Office conceded yesterday that statement was probably an error. Frank most likely intended to refer to a federal court action brought by Deputy District Attorney Lea Purwin D’Agostino, the spokesperson explained.
In another footnote, Judge said it “seems doubtful the federal court will address the issues,” since ouster from public office is limited to quo warranto.
D’Agostino, who finished third in balloting for city attorney in 2001, contends that her right to due process was violated when city officials certified Delgadillo the winner of the election. 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.
D’Agostino’s lawsuit was dismissed by a federal judge, but that ruling has been appealed to the Ninth U.S. Circuit Court of Appeals. Her attorney, Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield in Venice, said yesterday he expects oral argument before the Ninth Circuit to take place in September.
Copyright 2004, Metropolitan News Company