Tuesday, January 20, 2004
Page 7
PERSPECTIVES (Column)
Public Defender Asserts Delgadillo Prosecutions Are Unlawful
Michael Judge’s Deputies Are Demurring to Misdemeanor Complaints
on Ground That City Attorney Lacks Legal Qualifications for Office
By ROGER M. GRACE
The county Public Defender’s Office is taking the stance that every misdemeanor complaint filed by the office of Los Angeles City Attorney Rocky Delgadillo is invalid based on Delgadillo’s unlawful occupation of his post.
Delgadillo had been on inactive bar status during part of the five-year period preceding his election in 2001. As I’ve pointed out in previous columns, that rendered him ineligible for office under §270 of the city charter which 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.”
Public Defender Michael Judge on Friday said of that language:
“It seems pretty clear to me.”
Judge advised:
“Demurrers are being filed, for now, in all new cases that challenge the legality of the complaints filed in [Delgadillo’s] name.”
He said that began Thursday.
The public defender noted that “for sure, more than 100,000 cases are filed by the city attorney that we defend every year,” and the number, he said, could be as many as 150,000.
A more accurate estimate is being worked on, Judge mentioned.
More significant is another matter which he said is being researched: whether Delgadillo’s unlawful occupation of his office mars convictions that have already occurred.
For now, Judge said, the focus is on getting “a demurrer filed in every case” initiated by Delgadillo’s office.
He told me he received a phone call from Chief Deputy City Attorney Terree Bowers urging “some form of coordination” of the challenges to the prosecutions. Judge recited:
“I told Terree Bowers I would not oppose trying to have an efficient way of conducting the litigation.”
Pointing to one possible approach, he said:
“At each site, perhaps, they could be heard in a single courtroom.”
I was unable to reach Bowers late Friday afternoon, and yesterday, government offices were closed for Martin Luther King Jr. Day.
Judge noted that “based on the article that appeared in the Metropolitan News and the authorities cited,” he asked members of his office’s Appellate Division to consider whether prosecutions by Delgadillo’s office are lawful.
He reported:
“They concluded there was a meritorious argument that we were obliged to bring forth on behalf of our clients.”
The demurrers being filed assert that “charges have not been filed by a legally authorized prosecutor.”
Accompanying each demurrer is a memorandum of points and authorities which quotes the charter provision and continues:
“According to the California State Bar website,...Mr. Rockard Delgadillo, the City Attorney now purporting to hold the elected post, was admitted to the Bar in 1986, but changed to inactive status on January 1, 1995, not becoming active again until July 1, 1999. As a result, the current prosecution is under the auspices of a City Attorney who has not been ‘qualified to practice in all the courts of the state…for at least five years immediately preceding his…election.’ ”
The P&As go on to say:
“The review and filing of charges by an ‘authorized prosecutor’ is a basic element of due process which must be given to defendants. It has been firmly established in the law of California that it is the prosecuting attorney, and the prosecuting attorney alone, who has the power and authority to bring criminal charges.”
Cases are discussed relating to the need for the head of the prosecutorial office to make each call as to whether a person will be prosecuted. The memorandum concludes:
If the person purporting to act as City Attorney is not, in fact, qualified to hold that Office, then the defendant has been deprived of the exercise of discretion by a properly authorized prosecutor, and thus has been denied constitutionally required due process of law. Even if Mr. Delgadillo did not personally sign the complaint or personally exercise discretion in deciding whether to initiate this particular prosecution, the City Attorney is the responsible official, and it must be presumed that his deputies are carrying out his policies and that the exercise of discretion by deputies is in accordance with overall management of the office by the City Attorney. Thus, ultimately, it is the exercise of discretion by the City Attorney which is required by due process.
Judge would not say whether he might seek leave of Attorney General Bill Lockyer to bring an action in quo warranto challenging Delgadillo’s entitlement to hold office. Lockyer has declared, through a spokesperson, that he will not initiate such an action on his own. Nonetheless, anyone else could bring such a proceeding if the state’s top prosecutor gives the go-ahead.
“At this point, I don’t want to speculate as to what I might do that might be taken as a direct attack on the city attorney,” Judge said. He added, however, that he’s obliged to do “everything that’s ethically appropriate to protect the interests of my clients.”
Indeed, an action in quo warranto might prove to be the exclusive means of attacking Delgadillo’s entitlement to hold office.
If such a proceeding were instituted, the court could, under Code of Civil Procedure §804, declare the right of another 2001 candidate to assume the office. The candidate placing second in the June 5 run-off election was then-City Councilman Michael Feuer—but Feuer, also, had been on inactive status during part of the preceding five-year period. The candidate who came in third in the April 10 primary, Deputy District Attorney Lea Purwin D’Agostino, was the highest placing eligible candidate and, I would think, is entitled to the office.
In the event litigation occurs, it’s likely that there will be citation to the case of D’Agostino v. Superior Court (1995) 33 Cal.App.4th 107. The petitioner in that case was, yes, Lea Purwin D’Agostino. She wanted the Court of Appeal for this district to order the Los Angeles city clerk to put her name on the ballot in the 1995 special election to fill a vacancy on the City Council. D’Agostino’s nominating petition fell short of the required 500 valid signatures. Rejecting her claim of “substantial compliance,” Div. Three of the appeals court said:
“In the instant case the lack of 500 valid signatures is not a ‘technical deficiency’ but rather noncompliance with a substantive requirement for qualification for the ballot.”
Likewise, here, the lack of active bar membership for the five-year period preceding the 2001 election is not a “technical deficiency” but rather noncompliance with a substantive requirement for qualification for the office.
Ironically, the opinion that killed D’Agostino’s candidacy in 1995 could boost her long-shot chance of being sworn in as city attorney in 2004.
By the way, the candidate who won the City Council seat coveted by D’Agostino in 1995 was one of her 2001 rivals for the city attorney’s post, Mike Feuer.
A case cited in D’Agostino was Daniels v. Tergeson (1989) 211 Cal.App.3d 1204. There, the Court of Appeal invalidated the election of a county supervisor who had been a resident of the county for 28 days prior to the last day for filing nominating papers while the applicable statute required residency for at least 30 days.
“A violation of a mandatory provision vitiates an election,” the Fifth District Court of Appeal said.
The statute was mandatory, the court held, explaining:
“It prescribes a specific qualification requirement for members of the board of supervisors. It necessarily affects the merits of the election because it determines who is and is not an eligible candidate. Thus, violation of its terms renders a candidate ineligible for office.”
Los Angeles City Charter §270 likewise is mandatory, and it follows that Delgadillo’s violation of it vitiates his election.
Delgadillo, himself, has remained mum about all this, refusing to be interviewed by reporters.
Those speaking on his behalf have resorted to obfuscation. The article on the matter in the Los Angeles Times last Wednesday reflected a degree of success in sidetracking the Times reporter from the relevant inquiries.
But Christina Gonzales, of Fox/11 News, last Tuesday presented a report that was balanced and incisive.
Josh Pertula, special assistant to Delgadillo, was the city attorney’s surrogate in that report. He told Gonzales that if a lawyer is on inactive status, “You are still qualified to practice law,” explaining:
“You would simply pay a fee, which is a very simple thing to do, and walk into a courtroom.”
Yes, it’s a very simple thing to do. The point, however, is that Delgadillo didn’t do it. He could have walked into a courtroom at any time during his inactive years—but would have been relegated to the spectator section. If he had tried to act in the capacity of an attorney, he would have committed a misdemeanor and a contempt.
Pertula also told the KTTV reporter:
“Rocky Delgadillo went to Harvard University, Columbia Law School, passed the bar exam, passed the professional responsibility exam, spent eight years with one of the oldest law firms in Los Angeles, and was deputy mayor. He is clearly qualified.”
He was using the word “qualified” in the sense of being “fit” or “capable.” No qualification for office is cast in terms of such a subjective standard. Clearly, the drafters of the charter provision used “qualified” in the sense of “eligible”—or, in the words of the Miriam-Webster online dictionary, “having complied with the specific requirements or precedent conditions.”
For three of the five years preceding his election, Delgadillo was not eligible—therefore not “qualified”—to practice law.
None of Delgadillo’s background, as reeled off by Pertula, relates in any way to the issue of whether he was “qualified” to practice law, in the relevant sense, while on inactive status. His undergraduate education at Harvard and service as a deputy mayor are even of doubtful relevance to his “fitness” to practice law.
Then there’s the matter of the letter, purportedly sent by then-City Attorney James Hahn to Feuer in 2000 proclaiming that inactive bar status does not disqualify a person from running for city attorney.
I say “purportedly” because uncertainty surrounds the letter. As provided by Delgadillo’s office to reporters, it was on plain paper and lacked a signature. It started low on the first page—just low enough that it would have been properly positioned to be printed onto a letterhead. Thirty years ago, in the days of carbon copies being tucked in files, such a format would not have been unusual. Today, it is. If the letter had been printed onto a letterhead and signed, a photocopy of the letter in its final version presumably would have been filed.
A suspicion arises that the text was simply found in a computer—perhaps in the computer of a particular lawyer in the office who handled such matters and who died last year—and was printed out and provided to the press and others without any reasonable belief that Hahn had signed and sent the letter.
Feuer said Friday that he “can’t recall” whether he received such a letter from Hahn or not. The communications staff working for Hahn, now the mayor, did not respond to an inquiry made Friday as to whether the letter was ever approved and dispatched.
Now in practice with Morrison & Foerster, Feuer said he remembers “the core of the advice” that was proffered by the City Attorney’s Office as to his eligibility to run but added:
“The means by which it was conveyed, I cannot say.”
He expressed the view that “what the mayor may or may not have written” is unimportant, and that “the only thing that matters is: what is the law?”
I disagree with Feuer that it’s unimportant whether the letter was sent. Delgadillo’s office has relied on that letter, as if it were an official pronouncement of the City Attorney’s Office which should simply end the matter.
In truth, even if the letter had been adopted by Hahn and sent by him, it would have been no more than a private communication, not the promulgation of an official, public position and, in any event, something falling far short of an adjudication binding on anyone.
If, however, the then-city attorney did not adopt the position set forth in the letter drafted for his signature, and there was no basis for a belief by Delgadillo that he had, the dissemination of that letter was an act of dishonesty. The keyword in the previous sentence is “if”; it’s premature to make assertions.
In my last column, I did assume that the letter, released by the current city attorney, was genuine, and attributed positions set forth in it to Hahn. In light of its format, the inability of Feuer to confirm that he received it, and the lack of confirmation by Hahn that he sent it, I’m caused to wonder if it was anything more than a proposed letter, never dispatched.
In an effort to resolve the uncertainty, I had a Public Records Act request delivered to Delgadillo’s office on Friday. It sought a copy of the purported Feb. 23, 2000 Hahn-to-Feuer letter, as sent, or, if that could not be produced, any evidence that the missive was actually dispatched, such as a reply letter from Feuer.
I’ll let you know what response I receive.
Copyright 2004, Metropolitan News Company