Public Defender Drops Challenge to Delgadillo Qualifications

Tuesday, July 6, 2004

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Public Defender Drops Challenge to Delgadillo Qualifications

By DAVID WATSON, Staff Writer

Los Angeles Public Defender Michael Judge is abandoning a months-long challenge to the authority of City Attorney Rocky Delgadillo to bring misdemeanor prosecutions, a senior official in Judge’s office said Friday.

Judge received a letter from Chief Deputy Attorney General for Legal Affairs Richard M. Frank last week rejecting his renewed request that the attorney general initiate a quo warranto action that could remove Delgadillo from office. Though Frank’s letter left open the possibility that Attorney General Bill Lockyer would authorize Judge to bring a quo warranto action, should he apply to do so, the public defender has elected not to pursue that alternative, Acting Assistant Public Defender for Operations John Vacca said.

Vacca said deputy public defenders will also stop filing demurrers challenging prosecutions initiated by Delgadillo. Delgadillo spokesman Eric Moses said more than 15,000 such demurrers have been filed in Los Angeles Superior Court since questions about Delgadillo’s qualifications to hold office were first raised in a Jan. 9 column in the MetNews.

The demurrers have been uniformly overruled, and both the court’s Appellate Division and this district’s Court of Appeal have declined to intervene.

Columnist’s Argument

The column, by MetNews Editor Roger Grace, argued that because Delgadillo’s State Bar membership was inactive between Jan. 1, 1995 and July 1, 1999, he failed to comply with 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 was elected in 2001.

In a memorandum to staff dated July 1, Vacca noted that as of that day five years had passed since Delgadillo reactivated his bar membership.

“Thus, we believe a sufficiently plausible argument could be made that he is now ‘qualified’ under the five year provision of the City Charter to cause us to cease filing demurrers on all cases which bear the filing date of July 1, 2004 or later,” Vacca wrote. He added that demurrers should still be filed in any earlier-filed cases in which arraignments have not yet taken place.

Judge wrote to Lockyer April 6, asking him to initiate quo warranto proceedings. He noted in that letter that judges overruling the demurrers cited quo warranto as the appropriate means for resolving issues about Delgadillo’s qualifications, but said his office could not bring such an action itself.

“My clients’ indigency prevents me from being in a position to incur or pay any costs or charges for any quo warranto action that may be brought,” Judge wrote.

But Vacca said the possibility of applying for permission to bring a quo warranto action remained under consideration until last week. Under state law, such an action can be pursued only by the attorney general or with his authorization.

Wesley Order

In May, Criminal Courts Supervising Judge David Wesley issued an order in one of the cases in which a demurrer had been filed urging Lockyer to “take prompt action to have this question resolved on the merits.” Wesley noted that the filing of the demurrers was having a “significant impact upon scarce judicial resources.”

Frank responded to Wesley last month, saying it would “not be appropriate” for the attorney general to seek removal of the city attorney based on an “admittedly ambiguous” charter provision. But until last week Lockyer’s office had not responded directly to Judge’s letter.

Frank also asserted in his letter to Wesley that even an action which succeeded in removing Delgadillo from office would not affect the validity of misdemeanor prosecutions initiated by the City Attorney’s Office. Citing Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 and other cases, Frank said Delgadillo’s official acts would be protected from attack by the “de facto officer” doctrine.

Frank again cited that doctrine in his June 29 letter to Judge. Judge had written to Lockyer on June 16, taking issue with a number of the points made by Frank in his letter to Wesley and renewing the request that the attorney general initiate a quo warranto proceeding.

While Frank agreed with Judge that the attorney general has the authority to bring an action challenging Delgadillo’s right to be city attorney, he said Lockyer was exercising his “discretion” to require “an application to be filed by a proposed relator—to bring a quo warranto action to remove a local public official from office” because the charter provision was “admittedly vague.”

In reaching that decision, he said, Lockyer was “following the general practice of a number of Attorneys General.”

Frank went on to declare:

“While you apparently believe that Mr. Delgadillo’s eligibility to hold office presents ‘an important public legal controversy that needs to be resolved,’ neither you nor anyone else in the City of Los Angeles has seen fit to come forward to act as a relator in filing a quo warranto application. In contrast, proposed relators have applied to remove local public officials from various offices throughout the State when the legal issues were of sufficient significance to them.”

He noted that the attorney general granted leave to sue in quo warranto twice in 2003 and twice in 2002. One of the cases addressed whether the Los Angeles County Charter violated the state Constitution by placing term limits on the sheriff.

The others involved the qualifications of a city councilman, a school board member, and two water district board members in other parts of the state. One of the water board members was challenged under a provision requiring members to be landowners in the district, while the other challenges all centered around residency requirements.

Vacca said Judge is drafting a reply to Frank’s letter and hopes to send it today.

Luis Li, the chief of the Criminal Branch of the City Attorney’s Office, said he and Delgadillo “welcome the decision” to stop filing demurrers. Though judges heard arguments on them only during the first few days of filing, the demurrers were creating a “substantial logistical burden” for prosecutors and the court system, Li said.

“Nothing in the criminal process is just a mere formality,” he explained. “We don’t have a system where we do mass justice.”

He suggested that deputy public defenders will probably also be glad to be free of the burden of filing the demurrers.

“Our prosecutors have been focused on the facts of each case and not on this distraction,” Li declared.

Delgadillo’s right to hold office is also being contested in a federal civil rights action by Deputy District Attorney Lea Purwin D’Agostino. 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.

Then-City Councilman Michael Feuer, who finished first in the voting but lost to Delgadillo in a runoff, also had a period of inactive State Bar membership within the five years preceding the vote.

D’Agostino’s lawsuit was dismissed by U.S. District Judge Manuel Real of the Central District of California. That ruling has been appealed to the Ninth U.S. Circuit Court of Appeals, and D’Agostino’s attorney, Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield in Venice, said he expects oral argument before the Ninth Circuit to take place in September.

While Yagman argued that the issue is purely one of law that can be decided by the Ninth Circuit on appeal, he also contended in his appellate brief that the case was “shanghaied and taken over” by Real after initially being assigned to Senior Judge William J. Rea. If the case is remanded, Yagman contended, it should be to Rea.

Real and Yagman have had well-publicized run-ins over the years, and Yagman’s brief argued that in hearing D’Agostino’s request for a temporary restraining order, Real ruled that he lacked jurisdiction, effectively dismissing the case.

Yagman himself lodged a proposed judgment of dismissal—which was not entered—and filed only “courtesy” responses to Delgadillo’s subsequent motions to dismiss, which Real granted.

John Spiegel of Munger, Tolles & Olson—representing Delgadillo—argued in his Ninth Circuit brief that Yagman’s “courtesy” responses failed to preserve any issues for appeal, and it remains far from clear that the appeals court will reach the merits of the Sec. 207 interpretation issue.

Spiegel also contended that D’Agostino failed to show how the state court remedy of quo warranto is inadequate, and that—if dismissal was improper—abstention under Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941), would be appropriate to allow her to pursue it.

Though Yagman told the MetNews that requiring D’Agostino to seek Lockyer’s authorization to launch a quo warranto proceeding would amount to an invalid state-mandated “precondition” for asserting her civil rights, neither that argument nor any other contention addressing the adequacy of state remedies was contained in his appellate brief.

Spiegel’s brief points out that the interpretation of Sec. 207 advanced by D’Agostino would also make a judge ineligible to leave the bench and run for city attorney, since judges are constitutionally prohibited from practicing law. D’Agostino has improperly equated being “qualified” to practice law with being “permitted” to do so, he argued.

Even if the court decides Delgadillo was unqualified to run, Spiegel added, it should not turn the office over to a candidate who received only 16 percent of the vote in a four-way primary contest.