Tuesday, October 5, 2004
Yagman Mulling Request for Review of Ruling D’Agostino Cannot Mount Challenge to Delgadillo Qualifications
By DAVID WATSON, Staff Writer
Stephen Yagman said yesterday that he and his client, Deputy District Attorney Lea Purwin D’Agostino, will probably decide next week whether to seek further review of the Ninth U.S. Circuit Court of Appeal’s Friday ruling rejecting D’Agostino’s challenge to the qualifications of the man who defeated her for city attorney.
Yagman said the unpublished memorandum disposition took him by surprise, coming only two weeks after oral arguments had been cancelled in the wake of his successful bid to remove a member of the Ninth Circuit panel assigned to hear the case.
“It seems what happened is that the prior panel already had made a decision,” Yagman said.
The panel assigned to the case originally included Judge Kim McLane Wardlaw, who Yagman pointed out is married to prominent Los Angeles attorney and behind-the-scenes political figure William Wardlaw. William Wardlaw is widely credited with having played a prominent role in the election of the city’s last two mayors, Richard Riordan and James K. Hahn.
William Wardlaw, Yagman said, has an “avocation of backing people for city government quite successfully,” adding that he made a “significant monetary contribution” to the 2001 campaign of City Attorney Rocky Delgadillo. Delgadillo finished second in the primary that year and defeated then-City Councilman Michael Feuer, who finished first in the voting, in a runoff.
Both Feuer and Delgadillo had periods of inactive State Bar membership during the five years immediately preceding the vote. In a Jan. 9 column, MetNews Editor Roger M. Grace argued that Delgadillo was not qualified to hold office, since Sec. 270 of the Los Angeles City Charter requires a candidate for city attorney to have been “qualified to practice” for the five year period preceding election.
D’Agostino was the third-place finisher in the primary voting. Her federal court lawsuit contended her civil rights were violated when city officials certified Delgadillo the winner of the election.
In another development in the controversy yesterday, a spokesperson for Attorney General Bill Lockyer said the Attorney General’s Office does not plan any further response to a request from Los Angeles Public Defender Michael P. Judge that it pursue a quo warranto action which could test Delgadillo’s qualifications.
Chief Deputy Attorney General for Legal Affairs Richard M. Frank wrote to Judge on June 29 rejecting that request. Frank conceded it was within the power of the Attorney General’s Office to bring a quo warranto action, but said Lockyer has followed the “general practice” of his predecessors by “requiring an application to be filed by a proposed relator—to bring a quo warranto action to remove a local public official from office.”
Judge—whose deputies had been filing demurrers challenging Delgadillo’s authority to initiate misdemeanor prosecutions—responded with a letter July 6. The indigency of the public defender’s clients, Judge said, made them “incapable of satisfying any of the costs associated with the filing and prosecution” of a quo warranto action.
He again urged the attorney general to “fill the void and initiate quo warranto without a private relator.”
Spokesperson Nathan Barankin said yesterday the Attorney General’s Office regards the matter as closed, and Chief Deputy Public Defender Robert Kalunian said Judge is unlikely to press the issue further.
“Even though it, in our opinion, has not been addressed on the merits, it apparently is behind us,” Kalunian said. “No one seems to want to address it and we are certainly not in a position to do so.”
Los Angeles Superior Court judges uniformly overruled the demurrers, and deputy public defenders stopped filing them when the period since Delgadillo reactivated his bar membership reached the five-year mark. The Superior Court Appellate Division and this district’s Court of Appeal declined to intervene.
“There was a group of cases in which there was an issue that we felt should be resolved,” Kalunian declared.
Yagman said he sought to remove Kim Wardlaw from the panel as soon as he learned, less than two weeks before the scheduled hearing, that she had been assigned to the case.
The lawyer said the five-page ruling issued Friday bore earmarks of a “bench memorandum” drafted by a law clerk, speculating that it was prepared for the panel that included Wardlaw and adopted after she was replaced by Judge Ronald M. Gould. The holdover panel members were Judge Barry G. Silverman and Senior Judge Thomas G. Nelson.
The per curiam ruling did not address Delgadillo’s qualifications, but said D’Agostino lacked the property interest in his job required to maintain her challenge.
Citing Board of Regents v. Roth, 408 U.S. 564 (1972), the panel said D’Agostino could establish a property right only if she could show a “legitimate claim of entitlement” to the office.
“Even if California courts annul an election, the courts can disregard only illegal votes....,” the court explained. “The remaining candidate is not automatically entitled to office under California law....As a candidate with less than 16% of the legal primary vote, D’Agostino lacks the ‘legitimate claim of entitlement’ necessary to create a property interest under Roth.”
The judges went on to say that D’Agostino’s due process rights were not violated, since an action in quo warranto provided an “adequate procedure” by which to challenge the city attorney’s right to hold office.
“D’Agostino’s argument that the quo warranto process is inadequate because the Attorney General must approve the suit fails because an arbitrary denial of permission by the Attorney General can be challenged in a state mandamus action,” the court observed, concluding that U.S. District Judge Manuel Real of the Central District of California properly dismissed the suit.
Yagman said D’Agostino might seek rehearing en banc or review by the U.S. Supreme Court.
“I haven’t had an opportunity yet to completely analyze the disposition to decide whether or not any further action should be taken,” he said.
D’Agostino said she would “defer to his judgment and wisdom” on that issue, but added she was willing to take the case further if Yagman believes there is a basis for doing so.
Copyright 2004, Metropolitan News Company