Thursday, April 8, 2004
Lockyer Should Institute a Quo Warranto Proceeding
Los Angeles Public Defender Michael P. Judge has dispatched a letter to California Attorney General Bill Lockyer urging that he bring an action in quo warranto seeking the ouster of Rockard J. Delgadillo from the post of Los Angeles city attorney. Lockyer should heed that advice.
That he has not already instituted such a proceeding is to his discredit.
The long and the short of it is that Delgadillo was elected in June, 2001 notwithstanding that he was ineligible for office. As a column in this newspaper pointed out on Jan. 9, the Los Angeles City Charter requires that a candidate for city attorney have been eligible to practice law during the entirety of the five-year period preceding the election. Delgadillo wasn’t. He was on inactive status during a large portion of the five year period—specifically, from Jan. 1, 1995 until July 1, 1999.
But even if his sojourn from active membership had lasted only a day, that would have been a disqualifying factor. City Charter §270 is not ambiguous. It says:
“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.”
While on inactive status, Delgadillo was not “qualified” to practice law. Business & Professions Code §6125 makes that clear. It says: “No person shall practice law in California unless the person is an active member of the State Bar.” Practicing law while not an active member is a misdemeanor under §6126 and a contempt of court under §6127.
Judge is correct in his observation that there is a “narrow yet momentous issue” that needs to be resolved. And Lockyer is the person who is not only authorized, but legally compelled, to seek the resolution.
Code of Civil Procedure §803 says:
“An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office….And the attorney-general must bring the action, whenever he has reason to believe that any such office…has been usurped, intruded into, or unlawfully held or exercised by any person….”
The emphasis was added. The word “must” is significant. It means that under the present circumstances, Lockyer is compelled to bring the action—unless, of course, he does not think there is “reason to believe” that the charter means what it plainly says.
Delgadillo’s office has been ballyhooing supposed advice from then-City Attorney (now Mayor) James Hahn to Delgadillo before Delgadillo entered the race for city attorney that his candidacy would be lawful. There is no evidence Hahn ever gave that advice. What Delgadillo’s office produced as supposed proof was a letter from Hahn to another candidate in the 2001 contest, then-City Councilman Michael Feuer, saying that inactive bar membership did not affect his eligibility to run. Feuer, too, had been on inactive status during part of the five-year period. A copy of that letter was attached to each opposition to each demurrer filed by Judge’s office to misdemeanor complaints brought by Delgadillo after it surfaced that he holds office unlawfully. Yet, the letter was bogus. As this newspaper ascertained, it was never signed by Hahn; it was never sent. There was merely oral advice to Feuer from a deputy in the City Attorney’s Office.
Even if Hahn had given such advice to Delgadillo, and Delgadillo had relied on it in becoming a candidate, that would hardly affect the viability of an action in quo warranto. A lawyer does not, by virtue of giving infirm advice to a client that he or she may do something the law forbids, create a license to do it.
Certainly, any advice from one lawyer/politician to another lawyer/politician cannot realistically be viewed as meaningful.
Delgadillo, as a lawyer, should have been able to discern the clear meaning of the provision. Yet, he entered the race, and executed an election document under penalty of perjury declaring that he met the qualifications. He didn’t meet the qualifications; he did, or should have, known that.
John Van de Kamp, a former attorney general of this state, has publicly stated that he thinks Lockyer should act.
For the attorney general to continue to ignore the unlawful holding of office by a city attorney would be an unconscionable condonation of cheating in elections, and a clear dereliction of his duty under Code of Civil Procedure §803.
We urge the attorney general to proceed to file an action in quo warranto in Los Angeles Superior Court.
Copyright 2004, Metropolitan News Company