Thursday, June 17, 2004
Attorney General Fails to Abide by Statutory Command
California Attorney General Bill Lockyer’s refusal to institute an action in quo warranto to remove Los Angeles City Attorney Rocky Delgadillo from office constitutes a dereliction of duty.
Under the Los Angeles City Charter, a person is not eligible for that office unless he or she has been “qualified” to practice law “for at least five years immediately preceding his or her election.” Delgadillo was not qualified to practice law during a portion of the five-year period preceding his election, having assumed inactive status.
Chief Deputy Attorney General for Legal Affairs Richard M. Frank on Monday wrote to Los Angeles Superior Court Criminal Departments Supervising Judge David Wesley announcing that Lockyer would not commence an action in quo warranto on his own. Wesley has an interest in the matter in light of demurrers by the Office of Public Defender to each misdemeanor complaint filed under Delgadillo’s authority.
Frank’s letter does not address the merits of the contention that Delgadillo holds office unlawfully—in contravention of a May 25 pledge by Lockyer, in a letter to Public Defender Michael Judge, to respond “substantively” to Judge’s call for a quo warranto action.
Frank cited a 1983 proclamation by then-attorney general John Van de Kamp that attorney general opinions should not be issued with respect to interpretations of local laws, the purpose of such opinions being to secure uniform application of state laws.
That pronouncement, aside from being nothing more than a comment in a preface to a volume of attorney general opinions, is irrelevant to an attorney general’s duties vis-à-vis actions in quo warranto. Such actions may be brought only by the attorney general, or by a relator acting with the consent and under the supervision of the attorney general. The fact that the unlawful occupancy of office stems from non-compliance with a local law is simply not germane.
Lockyer is acting in defiance of his statutory duty by not bringing the action. Code of Civil Procedure §803 provides that “the attorney-general must bring the action, whenever he has reason to believe that any...[public] office...has been usurped, intruded into, or unlawfully held or exercised by any person....”
“Must” connotes a mandatory duty, not leaving room for discretion. Only by proclaiming that he does not believe Delgadillo holds office unlawfully could Lockyer justify non-action on his part. To so declare would make him appear incompetent as a lawyer given the clear command of the charter provision.
But by not acting, when he is statutorily obliged to do so, he shows himself to be unwilling to follow the law—an inappropriate trait for the state’s chief law enforcement officer. It may also betray cowardice.
Lockyer is a sly politico who has skirted his duty by disingenuously purporting to rely on an utterance by a predecessor of his when that utterance is plainly not in point—as Lockyer and Frank surely realize.
The attorney general is also apparently relying on a factual misconception which Delgadillo has spawned. That misconception is parroted in a letter Lockyer wrote to a lawyer on Feb. 23. The letter is attached to Frank’s missive to Wesley and is, in essence, incorporated by reference, thus implying that its content is relevant to the attorney general’s decision not to act. In his letter to Encino attorney Gilda R. Cohen, Lockyer noted: “I understand that in 2000, then City Attorney James Hahn interpreted this provision of the city charter, concluding that inactive status did not disqualify a member of the State Bar from being a candidate for the office of city attorney.”
Lockyer is a Democrat, with aspirations of being governor. Delgadillo is a Democrat, also with sights on higher office. (The Democratic Leadership Council in the District of Columbia named Delgadillo “New Democrat of the Week for the week of June 7, 2004.”) Lockyer’s non-action looks very much like an act of kindness for a ambitious politician of the same party who is now in his debt.
Whatever the primary motivation may be for Lockyer’s decision, the decision is wrong, and the attorney general is, much to his discredit, failing to act in conformity with the law.
Copyright 2004, Metropolitan News Company