Friday, January 23, 2004
Page 7
PERSPECTIVES (Column)
City Attorney’s Office Draws Attention to Case Establishing Delgadillo’s Ineligibility for Office
By ROGER M. GRACE
Unwittingly, the Office of Los Angeles City Attorney has pointed to the very case that shatters its contention that City Attorney Rockard J. “Rocky” Delgadillo holds his post lawfully.
The case is Felt v. Waughop (1924) 193 Cal. 498. Though the case is old, its holding is that of the state’s highest court and is a holding that’s never been narrowed or otherwise altered.
As I pointed out Jan. 9, Delgadillo was on inactive bar status during part of the five-year period preceding his election. That renders his election invalid, I’ve contended, given the Los Angeles City Charter provision which ordains:
“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.”
The City Attorney’s Office has responded by equating the word “qualified” with fitness or prowess. Even though Delgadillo lacked entitlement to practice law while on inactive status, his defenders have asserted, he had the wherewithal to practice, and could easily have regained the entitlement by paying active-member dues.
One dictionary definition of “qualified” does relate to ability or competence. That’s the definition relied upon by Delgadillo. Another definition—the one I suggest is pertinent—has to do with meeting prescribed criteria. A third definition is clearly irrelevant, used in the sense of partial or conditional, such as “qualified immunity.”
The case to which the City Attorney’s Office has drawn attention establishes, contrary to Delgadillo’s interests, that “qualified,” in the relevant context, connotes eligibility under pertinent criteria—and not the general fitness standard which Delgadillo’s champions have argued.
Los Angeles County Public Defender Michael Judge is contesting the legality of any prosecutions brought by Delgadillo, filing a demurrer in every new case. The City Attorney’s Office initially filed written opposition in each misdemeanor case making no reference to Felt. However, on Tuesday afternoon, it revamped its opposition, attaching to each new memorandum of points and authorities a Nov. 18, 1999 Los Angeles City Attorney’s Office internal memo which cites Felt.
A faithful reading of that case does not affect the office’s immediate position that quo warranto is the exclusive means by which an elected official’s entitlement to hold office may be attacked. But it does destroy its ultimate contention that Delgadillo was validly elected.
The city charter whose provision was in issue in Felt was that of Long Beach. The provision said that the city attorney “must be qualified to practice in all the courts of the State of California and must have been so qualified for at least five years next preceding the day of his election.”
The internal memo I just mentioned, from Assistant City Attorney Anthony Saul Alperin (since deceased) and Deputy City Attorney Mary Strobel (now a Los Angeles Superior Court judge), observed that the Long Beach language “is nearly identical to the language in the Los Angeles City Charter.”
True.
The memo recited the fact situation in Felt as follows:
“The candidate in question was not admitted or licensed to practice law in California for the previous five years. He argued, however, that he was duly admitted, qualified and licensed to practice in all courts of Iowa for the requisite time period and possessed the necessary intellectual and moral qualifications to entitle him to be admitted to practice law in California.”
The memo proceeded to quote this language from Felt, appearing at page 503:
We are satisfied that the requirement of the charter that “he must be qualified to practice in all courts of the State of California, and must have been so qualified for at least five years next preceding the day of his election,” requires something in addition to the mere possession of the intellectual and moral qualifications above mentioned. It requires that in addition thereto he must have been actually and formally admitted to practice by an order entered by a court possessing the requisite jurisdiction, and must have taken the prescribed oath requisite to entitle him to practice law in the courts of this state.
The memo provided emphasis in the last sentence as follows:
“It requires that in addition thereto he must have been actually and formally admitted to practice by an order entered by a court possessing the requisite jurisdiction, and must have taken the prescribed oath requisite to entitle him to practice law in the courts of this state.”
It’s true that Delgadillo was “admitted to practice” in California. That occurred Dec. 11, 1986.
The memo proclaimed:
“It is a fair reading of this case that one is ‘qualified’ to practice law if he or she has been admitted to practice and has signed the required oath.”
Oh?
Under that supposedly “fair reading,” someone who had at some point been admitted to practice and had signed an oath, but who had become disbarred or suspended, would, simply by virtue of the admission and oath-signing, meet the charter’s requirement of being “qualified to practice in all the courts of the state.”
That’s not what the case said.
It said that because the candidate in question had not been admitted in California and taken the oath, he was not qualified to practice law, hence was not qualified for office. It did not say that anyone who had been admitted and taken the oath was qualified, without respect to subsequent changes in status.
The real relevance of the case is that it refutes the stance of the Delgadillo forces that “qualified” connotes capability, rather than the meeting of specified criteria.
The court recited that the would-be candidate “was duly admitted, qualified, and licensed to practice law in all courts of the state of Iowa in 1911, and that ever since said time he has possessed the necessary intellectual and moral qualifications to entitle him to be admitted to practice law in the courts of this state.” The court responded that the charter provision “requires something in addition to the mere possession of the intellectual and moral qualifications above mentioned.”
It thus rejected the notion that “qualified” merely means fit.
Interviewed on Fox/11 News, Josh Pertula, special assistant to Delgadillo, declared on behalf of his boss:
“Rocky Delgadillo went to a 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’s speaking of “qualified” in terms of general fitness. Under Felt, that’s the wrong standard.
In his opposition to the demurrers being filed by the Office of Public Defender, Supervising Deputy City Attorney Lawrence F. Webster wrote:
“The City Attorney’s brief inactive status in no way diminished his qualifications to practice law. He met all of the requirements for admission to practice law in California (see Bus. & Prof. Code, § 6060), including attending and graduating from Harvard University with honors and receiving his Juris Doctor degree from Columbia School of Law. Indeed, in addition to his distinguished educational background, the City Attorney’s career is equally notable. Prior to serving the City of Los Angeles as Deputy Mayor for Economic Development, City Attorney Delgadillo was employed as an attorney at the prestigious law firm of O’Melveny and Myers and was Director of Business Development for Rebuild L.A.”
Webster, too, used the word “qualified” in the sense repudiated in Felt.
When all is said and done, this fact remains: Business and Professions Code §6125 declares: “No person shall practice law in California unless the person is an active member of the State Bar.” The Los Angeles City Charter requires that a candidate for city attorney have been “qualified to practice” during the five-year period preceding the election. An inactive member is not “qualified to practice” during the period of inactive status; Delgadillo was an inactive member during part of the five-year period preceding his election. No amount of inventive argumentation and word manipulation can avert the conclusion compelled by logic that Delgadillo did not meet the requirement of the city charter.
A SILLY PHRASE—The phrase “qualified to practice in all the courts of the state” is one often used, but is a legal sillism. It’s silly because there’s no such thing as a license to practice in one or more courts of the state, but not all. There are no lawyers qualified to practice, say, in the Court of Appeal but not the Superior Court or the Supreme Court.
Other sillisms include the continued use of the description “superior court” for what is now the lowest court in the state. And there’s the phrase “true and correct” appearing in declarations, when statements can hardly be false and correct, or true and incorrect.
As to the entitlement of any active California lawyer to “practice in all the courts of the state,” that was established when California’s jurisprudence was in its infancy—in fact, in the first volume of the appellate reports. In People ex rel. Field v. Turner (1850) 1 Cal. 190, the Supreme Court countermanded an order of a Sutter County judge disbarring three attorneys. Chief Justice S. Clinton Hastings wrote:
“The proceedings of the Court are irregular; and, inasmuch as the relators have received from this Court a license to practice as attorneys at law in the Supreme Court, and by the rules of Court are authorized by virtue thereof, to practice in all the Courts of this State, we are called upon to afford relief.”
ILLUSTRIOUS LITIGANT—The relator in People ex rel. Field, and one of the supposedly disbarred attorneys, was Stephen J. Field. The action against him and the others—their second local “disbarment”—was taken by a judge who, upon California gaining statehood in 1850, had replaced Field as alcalde (judge) in Maryville. Field had a feud going with his successor, who on one occasion jailed him for contempt.
The Sutter County judge’s name, William R. Turner, is not immediately recognizable. Field’s name is. He became chief justice of California and, later, an associate justice of the United States Supreme Court.
In a future column, I’ll take a look at this fascinating historical figure.
Copyright 2004, Metropolitan News Company