Metropolitan News-Enterprise


Thursday, July 8, 2004


Page 1


Defender Tells Lockyer He’s Wrong on ‘De Facto Officer’ Law




Attorney General Bill Lockyer’s insistence that the “de facto officer doctrine” validates prosecutions by City Attorney Rocky Delgadillo is misguided, Public Defender Michael Judge said.

Acting Assistant Public Defender for Operations John Vacca provided the MetNews with a copy of a letter, dated this past Monday, in which Judge urged Lockyer to reconsider his decision not to bring a quo warranto action that would remove Delgadillo from office.

Vacca yesterday said the letter was part of a “last ditch” effort to get Lockyer to change his mind. He did not express optimism.

But the public defender wrote, Vacca said, “to remind the attorney general of what we believe are the attorney general’s responsibilities in this matter.”

If Lockyer maintains his stance, which was explained in a letter to Judge from Chief Deputy Attorney General for Legal Affairs Richard M. Frank last week, “that will be the end of the matter,” Vacca said, meaning that the public defender will not challenge Delgadillo through quo warranto, by filing further demurrers in individual cases, or by seeking further review in the appellate courts.

Judge’s office has filed demurrers in 15,000 cases alleging that Delgadillo was not, as of the time the cases were filed, qualified to prosecute them.

State Bar Membership

But Judge said last week he has told deputies not to file demurrers in cases filed since July 1, because Delgadillo had as of that date been an active member of the State Bar for a continuous period of five years and could be appointed city attorney even if it was determined that he was not qualified for the post when elected in 2001.

Prosecutors have argued that Delgadillo is qualified under the City Charter, and that in any event, his right to prosecute is not subject to collateral attack by defendants. Those arguments have been uniformly accepted by trial judges, and both the Los Angeles Superior Court Appellate Division and a panel of this district’s Court of Appeal have declined to intervene.

While Delgadillo’s qualifications for the office are no longer in issue, Judge told the attorney general Monday, the right of prospective challengers to the city attorney in next year’s election could be implicated.

A quo warranto action seeking to remove a public official from an office which he is alleged to hold illegally can only be brought by the attorney general or by a private party—a relator, in legal parlance—acting with his authorization. In his June 29 letter to Judge, Frank left open the possibility the attorney general would allow Judge to bring the action.

Lockyer’s ‘Discretion’

But Judge reiterated Monday that he would not apply for leave to bring the action himself, because his clients are indigent and his budget does not include funds to maintain such an action.

Frank acknowledged in his letter that the attorney general has the authority to bring an action challenging Delgadillo’s right to be city attorney. But he said Lockyer was exercising his “discretion” to require “an application to be filed by a proposed relator” because the charter provision, which requires a candidate for city attorney to have been “qualified to practice” for the five year period preceding election, is “admittedly vague.”

Frank noted that neither Judge “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.” He also cited the “de facto officer” doctrine, which holds that the official acts of a public officer will not be set aside due to a later determination that the person was unqualified to hold office at the time.

In his letter Monday, Judge questioned whether the doctrine can be applied to a prosecutor whose right to bring criminal actions is being challenged by those charged.

“I am aware of no instance in which the actions of a so-called de facto officer are defended by the same challenged officer through invocation of the de facto doctrine,” he wrote. “The de facto doctrine derives from equity jurisdiction, and should therefore be subject to the doctrine of unclean hands. I raise this issue with you as the highest law enforcement officer in the State of California because of my belief that the State ought to intervene to invoke legal procedures to insure the continued legal validity of local prosecutions brought in the State’s name.”

Judge also took issue with Frank’s assertion that not seeking quo warranto in these circumstances is consistent with the practice of past attorneys general. The public defender noted that former Attorney General John Van de Kamp, now president-elect of the State Bar, has said he thinks the attorney general should seek quo warranto in the matter.

“Obviously, when the person whose legitimacy is being challenged is the one who will determine whether the claim is valid, it is time for the Attorney General to intervene and insist that a court decide,” Judge wrote.

Delgadillo’s right to hold office is also being contested in a federal civil rights action by Deputy District Attorney Lea Purwin D’Agostino, who finished third in balloting for city attorney in 2001. D’Agostino’s lawsuit was dismissed by U.S. District Judge Manuel Real of the Central District of California, whose ruling has been appealed to the Ninth U.S. Circuit Court of Appeals.


Copyright 2004, Metropolitan News Company