Friday, April 9, 2004
Page 7
PERSPECTIVES (Column)
How Will Lockyer Respond to PD’s Call for Quo Warranto?
By ROGER M. GRACE
Today marks three months since this column revealed that City Attorney Rocky Delgadillo is holding office unlawfully. Perhaps state Attorney General Bill Lockyer will at last be inclined to file a quo warranto petition in the Los Angeles Superior Court in light of a letter Tuesday from County Public Defender Michael P. Judge calling upon him to act.
Judge wants the attorney general to “pursue the matter of quo warranto in order to cause this important public controversy to be resolved.”
So far, the AG has been sitting on his hands, doing nothing to threaten the continued unlawful occupancy of office by his fellow Democrat. Delgadillo is known to have aspirations for higher office, as does Lockyer, and it is, of course, safer to have an ambitious politico of the same party as an ally, rather than a foe.
In light of an official request from a Los Angeles County official that he act, it would be brazen, indeed, for Lockyer to continue ignoring the matter. But brazenness is not unknown among politicians.
There cannot be serious doubt as to Delgadillo’s ineligibility for office when he ran in 2001. As I’ve pointed out, City Charter §270 provides:
“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.”
During part of the five years preceding the election, Delgadillo was on inactive status, hence not qualified to practice in any court in the state, except as a pro per.
Delgadillo’s spokespersons—Delgadillo has not personally deigned to address the matter—have trumpeted his matriculation at Harvard and Columbia and his erstwhile membership in the prestigious Los Angeles law firm of O’Melveny & Myers, and queried rhetorically how such an achiever could possibly be thought of as unqualified. That ploy worked with the Los Angeles Times which, in a Jan. 27 editorial, sided with Delgadillo.
What the Times failed to grasp was that the issue is not whether Delgadillo is qualified in the sense of being “fit” for office, but whether he meets the legal qualifications set forth in the charter. He doesn’t.
Several persons have asked me how I came upon the fact that Delgadillo had been unqualified to run.
It was by chance.
I was doing some research on the Internet, and Delgadillo was not the subject of it. City Clerk J. Michael Carey was. I wanted to take a fresh look at the clerk’s powers, as set forth in the City Charter, believing that Carey has exceeded them. Two years ago, following competitive bidding on a legal advertising contract, he rejected both bids (ours was lower) and administratively awarded a de facto contract to the Daily Journal by adopting a policy of placing the notices in that newspaper. It’s called favoritism, and a few other things.
The website I went to offered the charter in chunks. While scrolling down, on my way to the portion on the city clerk, I happened upon the segment pertaining to the city attorney. I noticed the requirement of continuous active membership in the State Bar for the five-year period preceding election.
The person who came to mind in connection with that proviso was not Delgadillo, but his run-off opponent, then-City Councilman Mike Feuer. Feuer in 1997 chaired the committee that passed on the recommendation that this newspaper be awarded a city legal advertising contract. (The Daily Journal had been publishing the notices for about 50 years, without competitive bidding, and without a contract—a situation that’s now been reinstated.) Lobbyist/attorney/blusterer Neil Papiano was representing the Daily Journal in proceedings before the committee and was raising spurious legal points. At the time, I wondered if Feuer was a lawyer, and thus presumably able to spot the flaws in the arguments. I looked him up on the State Bar website, and saw that he was on inactive status. (By the way, we got the contract, holding it from March 1, 1998 until June 30, 2002.)
So, last January, when I spotted the provision on the city attorney, the immediate realization I had was that Feuer had been ineligible to run—a matter merely of academic interest.
It would have seemed quite unlikely that Delgadillo, too, had been ineligible, but journalistic instinct—a compass that more often than not leads to dead ends—compelled that I look him up.
I was astonished to find that Delgadillo, also, had been on inactive status during part of the five-year period preceding his election, and was therefore holding office unlawfully.
My surprise paled in comparison to that of Deputy District Attorney Lea Purwin D’Agostino—who had come in third in the March, 2001 primary election for city attorney—when I telephoned her and asked if she had been aware of the ineligibility for office of Delgadillo and Feuer. She hadn’t, and was flabbergasted.
I had never, to the best of my recollection, met or spoken to D’Agostino before then, though I have met her twice since. She and her husband (who’s Italian) joined my wife and me at last month’s meeting of the Italian American Lawyers Assn. They are both charming people, enjoyable to talk with. I’m sorry I didn’t vote for her for city attorney. (I voted for Delgadillo.)
I do question the legitimacy of the federal action filed for D’Agostino by renegade lawyer Stephen Yagman. There is, after all, an adequate state remedy: quo warranto.
That’s the remedy which Lockyer is remiss in not having pursued, on his own, long before this. But maybe, just maybe, he’ll budge now, in light of Judge’s prodding.
A spokesman for Lockyer told METNEWS staff writer David Watson yesterday that the authority for an attorney general to bring such an action on his own exists “but has not been exercised in the living memories of anyone that’s currently working here,” but added, “We’re evaluating it.”
The rarity of such an action is an irrelevancy. It could well be that the situation has not arisen before where a person who failed to meet the qualifications for office has been elected and a rival candidate has not stepped forward to request leave to file an action in quo warranto. Indeed, if such a circumstance did present itself on some past occasion and the attorney general failed to act, that dereliction could not reasonably be said to justify a dereliction in the present instance.
The attorney general has not merely the power to act, but has a statutory duty to do so. Code of Civil Procedure §803 sets forth 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….” (Emphasis added.)
Lockyer has reason to believe that Delgadillo unlawfully holds office as Los Angeles city attorney.
If D’Agostino had sought leave from the attorney general to file an action in quo warranto, and gained it, she could have asked in that action for a declaration that she, as top voter getter among the two legally qualified candidates in the March, 2001 primary, is entitled to the office.
Should Lockyer at last file such an action, it is unlikely he would be inclined to do D’Agostino the favor of asking that she be declared the victor.
The prospect does exist of such an action being filed, Delgadillo being removed, and the City Council filling the vacancy by appointing Delgadillo. As of July 1, he will meet the legal qualifications for the office. It was on July 1, 1999, that he switched back to active membership.
For the City Council to do that would represent deference to Delgadillo’s incumbency which would be highly inappropriate given that his incumbency stems from having gained office by cheating. To appoint him would be, well, brazen—but, again, brazenness is not something unknown in City Hall.
There’s a lot that goes on at City Hall that shouldn’t. But I’ll defer a discussion of the city clerk for another day.
The feedback I’m getting is that judges are pretty much in agreement that Delgadillo was not eligible to run in 2001 and that, if a quo warranto action were brought, a writ should be granted.
Contrary to what was reported in the Los Angeles Times in January, no judge has rejected the proposition that Delgadillo lacked a legal qualification for the post. The judges simply spurned demurrers (approximately 8,300) to misdemeanor complaints that were filed by the Public Defender’s Office on the ground that Delgadillo is not lawfully functioning as city attorney.
Given that quo warranto is the exclusive means of attacking an official’s entitlement to office, the overruling of the demurrers was inevitable.
The real question is: if a quo warranto action is brought, and it is determined that Delgadillo unlawfully holds office, would the convictions in the cases in which demurrers were filed be rendered infirm?
There have been cases through the decades involving “de facto” public officials, such as “de facto judges,” who were mistakenly regarded by the parties as being valid holders of office. Actions of the “de facto” officials have been upheld. An extraordinary situation has been created by the filing of the demurrers in Los Angeles County in thousands of misdemeanor cases. A misdemeanor prosecution in the city is done under the authority of the city attorney; there cannot be a prosecution without a city attorney (or acting city attorney) to authorize it. The defendants have said, in essence, “We don’t regard Delgadillo as the lawful holder of office as city attorney.” The unarticulated estoppel theory that underlies the “de facto” officials cases is clearly inapplicable in light of the demurrers.
Judge has been playing a long shot. The odds do seem to be against Lockyer—a politician not known for boldness—bringing an action in quo warranto. And if he did, and Delgadillo were removed, there surely would be public uproar if courts found that any benefit inured to those convicted of misdemeanors on whose behalf Judge’s office had filed demurrers.
Nonetheless, the filing of the ill-starred demurrers was by no means frivolous. After all, Delgadillo is holding office unlawfully and, by objecting to the complaints filed by him, the Office of Public Defender arguably precluded the de facto public officials doctrine from coming into play.
In light of the viability of the argument that the demurrers forestalled application of that doctrine, it was clearly Judge’s duty to his clients to take the action he did—and, I would submit, to seek leave to file a quo warranto action, himself, if Lockyer refuses to file one.
The Times has a contrary view. It holds to the notion that Judge’s duty to taxpayers is a higher one than his duty to clients. It would apparently carve an exception to the strictures in the Code of Professional Conduct for those lawyers who are hired at public expense.
The Times’ Jan. 27 editorial thundered:
“Maybe public defenders think they’re being smart by trying to get defendants off the hook wholesale, no matter what the merits of the cases. In that event, they should hear from taxpayers, who have to pay for this trick as well as put up with street crime.”
What the Times is saying is that taxpayers, who fund the Public Defender’s Office, have a right to balk if efforts are made to get miscreants who commit street crimes—and presumably crimes in other places—off the hook on procedural grounds.
But since privately retained attorneys rely on procedural grounds, the newspaper is, implicitly, saying that taxpayer-funded criminal defense offices should not try as hard as privately retained lawyers in representing their clients. That’s a troubling position.
A front-page column that appeared in a legal trade paper referred to the Office of Public Defender as the “Office of Pettiness and Pettifoggery.”
The columnist, who is not an attorney, declared:
“The demurrers, which judges have rejected wholesale, are based on the incredibly dubious assertion that Delgadillo is not qualified to be city attorney and, therefore, all charges against the defendants are null and void.
“Whee! Let’s fill the streets and freeways with acquitted, fully licensed drunken drivers!”
The point that is missed is that defendants are entitled to get “off the hook,” even if they are factually guilty, if there is a legal impediment to them being prosecuted. Their attorneys are duty-bound to point to such impediments.
With all the hysterical bad-mouthing of Judge for trying to get his clients off, there might be in some future year a pitch by an applicant coming before the Board of Supervisors seeking appointment as public defender, going somewhat like this:
“Oh, don’t worry about me! I’ll just go through the motions. I’m not going to exert myself to get those hoods off. I promise. I’ll barely put forth any effort.”
Judge should be commended for his conscientiousness and his fidelity to the cause of his clients. He should not be denigrated for doing his job.
Copyright 2004, Metropolitan News Company