Wednesday, January 28, 2004
Stop the Journalistic Shenanigans
The Los Angeles Times expressed its view yesterday on the controversy over challenges by the county’s Office of Public Defender to the entitlement of Rocky Delgadillo to hold his post as Los Angeles city attorney. Its editorial, titled “Stop the Legal Shenanigans,” was based on giant-sized misconceptions of fact and law.
The editorial writer derived the facts primarily from the Times’ news story on Saturday. Unfortunately, that was not a reliable source of information.
The editorial began:
“So grim are state and local finances that some trial courts could close their doors this year and lay off more employees. Yet for two weeks now, county public defenders have filed hundreds of time-consuming motions arguing that because Rocky Delgadillo was not an active member of the California bar when he worked for Mayor Richard Riordan, he is not qualified to be city attorney. Their clients, they add, should thus be set free. They’re not arguing that Delgadillo lacks qualification as a lawyer, only that he hadn’t paid extra dues to keep his bar membership active between 1995 and 1999.”
It went on to say:
“Public defenders have made this silly argument in at least 500 cases over the last two weeks. Not one judge has bought it. But as of Monday, they were still at it.”
This is rubbish.
No judge, to our knowledge, has addressed the contention that Delgadillo is legally unqualified for his post. Rather, the judges have ruled that demurrers do not lie to misdemeanor complaints based on a challenge to the city attorney’s entitlement to office. They have found that such a challenge may only be made in an action in quo warranto.
THE ARGUMENT THAT THE TIMES trivialized—first put forth Jan. 9 in a column in this newspaper—is that Delgadillo did not meet the criteria for office when he ran, and was elected, in 2001. The City Charter provides:
“The City Attorney must be qualified to practice in all the courts of the state, and must have been so qualified for at least five years immediately preceding his or her election.”
Delgadillo was on inactive status during part of the preceding five-year period, meaning that it would have been a misdemeanor and a contempt for him to have practiced law. He was not legally “qualified to practice” for the entire five-year period, hence he did not meet the requirement for running for city attorney.
The Times editorial went on to say:
“The idea to challenge Delgadillo’s qualifications came from a recent article on Deputy Dist. Atty. Lea Purwin D’Agostino in a local legal newspaper. D’Agostino, who finished third in the 2001 city attorney’s race that Delgadillo won, called on the state attorney general to review whether Delgadillo could serve, because he was not practicing law when he ran for office.”
No one has suggested—not she, not columns in this newspaper, and certainly not the memoranda of points and authorities filed by the Office of Public Defender—that Delgadillo was unqualified for office because he was not practicing law when he ran for the post of city attorney. He did not meet the criteria set forth in the charter because he was not legally qualified to practice law during that portion of the five-year period preceding the June 5, 2001 election when he was on inactive status. An active bar license is a qualification.
THE TIMES PROCLAIMED THAT Mayor James Hahn, while city attorney, “ruled” that a person on inactive status may run for city attorney. To begin with, city attorneys do not make rulings. Judges “rule”; lawyers don’t.
City attorneys do sometimes issue opinions. In responding to the demurrers, the Office of City Attorney sought to create the illusion that Hahn had promulgated an opinion in response to an inquiry from then-City Councilman Mike Feuer. The writing that was attached, dated Feb. 23, 2000, bore a space for Hahn’s signature, but no signature. Last week, as reported in this newspaper, the mayor’s office said that Hahn did not sign or send the letter/opinion. Saturday’s Times story reflected an awareness of that fact. Accordingly, the Times editorial was off base in declaring that Hahn had made a pronouncement on the matter.
(In response to a Public Records Act request, Chief Deputy City Attorney Pedro B. “Pete” Echevarria late Monday advised the MetNews that he wrote the letter—contrary to the express representation by his office in its points and authorities that Hahn drafted it—and that the draft was “in electronic form.” In other words, it was merely a print-out from his computer of a letter/opinion to which Hahn had not seen fit, for whatever reason, to affix his signature.)
THE TIMES EDITORIAL REASONED:
“Even for judicial candidates, the California Constitution requires them to have been bar members for the 10 previous years but does not require them to be on active status. Still, Chief Public Defender Michael Judge, who otherwise has a respectable record, says he wants an appeals court to rule on the legality of his challenge.”
The charter provision requires that a candidate for city attorney have been “qualified to practice” during the entirety of the five-year period preceding the election. A person on inactive status is not “qualified to practice”; in order to be qualified to appear in court or file documents, except as a pro per, it is necessary to be an active member in good standing. The California constitutional provision on qualifications for the Superior Court, by contrast, provides: “A person is ineligible to be a judge of a court of record unless for 10 years immediately preceding selection, the person has been a member of the State Bar or served as a judge of a court of record in this State.” That provision, Art. VI, §15, does not require that the person have been qualified to practice law for 10 years, but only that membership in the State Bar have been maintained, which includes inactive membership.
The qualifications for a judgeship are distinct from the qualifications for city attorney, and an utter irrelevancy.
The editorial concludes:
“Maybe public defenders think they’re being smart by trying to get defendants off the hook wholesale, no matter what the merits of the cases. In that event, they should hear from taxpayers, who have to pay for this trick as well as put up with street crime.”
Those criminal defendants who are factually guilty are, of course, persons who commit crimes—whether on streets or in offices or elsewhere. Under our system, they are entitled to adequate representation. That’s what Judge is seeking to provide his clients. He is not seeking to promote street crime or unnecessary burdens for taxpayers.
WE AGREE WITH THE OFFICE OF THE CITY ATTORNEY that case law establishes that the demurrers do not lie. To ascertain Delgadillo’s qualification for his office, a quo warranto proceeding is necessary.
Attorney General Bill Lockyer, for whatever reason, is not concerned enough about upholding the integrity of the election process to institute such a proceeding on his own. If leave to launch such a proceeding were sought by another, he would be utterly derelict in saying “no.” Perhaps D’Agostino will seek leave. Perhaps John Smith will. Maybe Judge will, once the Appellate Division of the Superior Court has spoken on the demurrers.
Assistant Public Defender John J. Vacca said Monday that if Delgadillo were to be removed through an action in quo warranto, it would be a “validation of our position” and inure to the benefit of the defendants in whose cases demurrers were filed.
There is no case law directly in point. Cases involving de facto judges, for example, have arisen under various circumstances, such as where it was contended that because of a change in boundaries, a justice of the peace no longer lived in the township and was therefore ineligible for his office. Or where it was argued that the judge who had presided had been unqualified because he was not a citizen. Rulings that had already been made were upheld under the de facto officials doctrine.
We are unable to find any case where the qualifications of a judge or other public official were challenged at the outset—before actions were taken—and the official was subsequently removed through a quo warranto proceeding.
Would that removal invalidate acts that were undertaken which affect the rights of a party who had challenged the official’s entitlement to office before those acts occurred?
That, we believe, constitutes an issue that would be of first impression for the courts.
Given the patent lack of legal entitlement of Delgadillo to hold office, and the uncertainty as to whether ultimate removal of him through an action in quo warranto would benefit the defendants on whose behalf the demurrers are being filed, Judge’s actions are not frivolous. They are the acts of an able lawyer who is simply seeking to protect the interests of his clients.
The Times editorial is based on a misunderstanding of the facts, and confusion as to the law. That newspaper should re-examine the issues.
It can do better than it’s done.
Copyright 2004, Metropolitan News Company