Hahn Misinterprets Charter Provision on Eligibility for City Attorney Post

Tuesday, January 13, 2004

Page 7

PERSPECTIVES (Column)

Hahn Misinterprets Charter Provision on Eligibility for City Attorney Post

By ROGER M. GRACE

In the aftermath of my column on Friday suggesting that Rocky Delgadillo was unlawfully elected Los Angeles city attorney in light of a charter provision, Delgadillo’s office has released a Feb. 23, 2000 letter in which then-City Attorney Jim Hahn interpreted the provision in a contrary manner.

Hahn’s reading of charter section, in my view, contravenes the plain meaning rule.

The provision in issue is §270. 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.”

Hahn, now mayor, expressed the view in his two-and-a-half-page letter that inactive bar status was not an impediment to running for city attorney. That letter was addressed to then-City Councilman Mike Feuer, who wound up in a 2001 run-off for the post with Rocky Delgadillo, at the time a deputy mayor.

Feuer was on voluntary inactive status from Jan. 1, 1995 to Jan. 19, 1999. What’s more significant is that Delgadillo was on such status from Jan. 1, 1995 until July 1, 1999.

Hahn wrote:

Making a voluntary decision to go on “inactive status” as a member of the State Bar does not affect an attorney’s qualification to practice in all courts of the state for several reasons. The decision to go on inactive status is entirely voluntary and unilateral on the part of an attorney. Similarly, it can be reversed ay any point in time. An attorney on inactive status simply pays a reduced amount in dues to the State Bar and, although not ‘entitled’ to practice law while on that status, the attorney can unilaterally reinstate active status simply by paying the requisite dues….Thus, an attorney who voluntarily takes inactive status has all of the qualifications to practice in the courts of the State and may practice simply by paying the required dues.

This is a twisting of the law to reach a result. The fact that a person may reactivate his or her law license does not negate the reality that while on inactive status, that person is not “qualified to practice.”

The Los Angeles City Charter also requires that a candidate for city attorney be a resident of the city for at least 30 days before the filing season opens. If a candidate lived in Santa Monica, it would hardly be an answer to say that he or she could have moved in Los Angeles but simply didn’t. Having the power to do something is hardly the same as doing it.

Yes, Feuer could have reactivated his law license before the five-year period commenced. The fact, however, is that he didn’t. During the first half of the five-year period preceding the 2001 election, Feuer lacked an active bar license, hence was not qualified to practice law.

And Delgadillo lacked the capacity to practice law for three years of the five-year period.

Hahn’s letter commented in a footnote:

“We note that the Code says that inactive members are not ‘entitled’ to practice law, rather than not being ‘qualified’ to do so.”

That’s playing games with words.

The Miriam Webster online dictionary defines qualified as follows:

“1a : fitted (as by training or experience) for a given purpose : COMPETENT b : having complied with the specific requirements or precedent conditions (as for an office or employment) : ELIGIBLE

“2: limited or modified in some way <qualified approval>.”

The first definition, 1a, relates to capability. It cannot be assumed that the charter provision contemplates that definition. If so, a transactional lawyer who is not “fitted” to practice in a court would be disqualified from running while a proficient trial lawyer who was disbarred would be able to run.

Obviously, the second definition, relating to eligibility, is what the drafters of the provision had in mind. A lawyer who has not paid the fees as an active member and has not met the MCLE requirements has not “complied with the specific requirements or precedent conditions” to practicing law, and is therefore not “qualified” to do so.

The Webster’s Dictionary in our newsroom, copyrighted in 1983, lists “having met conditions or qualifications set” as the first definition for “qualified.”

Clearly, to be qualified to run for city attorney, a person must have been qualified to practice law during the entirety of the five-year period preceding the election—and a person on inactive membership is disqualified from practicing law.

Hahn went on to say in his letter:

Moreover, in the case of an attorney who holds a City office, such as Mayor, Controller or a member of the Council, there is one additional consideration. Those City officers are required to devote their entire time to duties related to their offices and are, therefore, prohibited from practicing law or engaging in any other occupation while they are also City officers….It would be absurd to require that such officers, in order to qualify to serve as City Attorney, maintain an active State Bar membership while being prohibited from practicing law. Such absurd results are to be avoided in construing legal provisions, particularly where, as here, the provisions are susceptible to a more reasonable interpretation. (Civil Code Section 3542.)

That Civil Code section merely says: “Interpretation must be reasonable.”

In essence, Hahn was suggesting that inactive membership in the State Bar would suffice because an elected city official might be a candidate, and requiring active membership for that person would be unduly burdensome.

If the requirement is unfair to city officials, somebody ought to have thought of that when the new charter was drafted, and exceptions made. The clear meaning of a provision should not be contorted simply because it might create a minor hardship for a small segment of the population.

Certainly, there is no inability to comply. While the charter might bar a city official such as the mayor, controller, or member of the council from moonlighting as a lawyer, there is nothing to preclude such an officeholder from paying the full amount of bar dues and thus maintain active status. The person would be well advised to do so if considering the possibility of running for city attorney given that five continuous years of active status is a requirement for candidacy, under the charter. Indeed, adherence to the MCLE requirement would stand the person in better stead should he or she become elected city attorney.

Lea D’Agostino, who came in third in the 2001 primary election for city attorney, told me yesterday she has not yet decided if she will seek leave of Attorney General Bill Lockyer to file a quo warranto action.

Lockyer should, as I see it, file such an action himself. Delgadillo lacked the legal qualifications for office; he should not be allowed to continue occupying space in which he is trespassing.

While Lockyer should act, it’s doubtful he will.