Tuesday, October 5, 2004
Page 7
PERSPECTIVES (Column)
Delgadillo Has Gotten Away With It
By ROGER M. GRACE
It was foreseeable that the Ninth U.S. Circuit Court of Appeals would uphold, as it did last Friday, the dismissal of a civil rights action to establish Deputy District Attorney Lea Purwin D’Agostino’s entitlement to the office of Los Angeles city attorney.
Rocky Delgadillo unlawfully holds that office. But federal court was not the place to litigate the issue. California law provides a remedy: an action in quo warranto. As the three-judge panel concluded last Friday: “…California provides an adequate remedy to satisfy procedural due process.”
It was this column that first raised the issue of Delgadillo’s ineligibility to run for the office in the 2001 election. As I pointed out on Jan. 9, the Los Angeles City Charter says, in Sec. 270: “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 a large part of the five-year period preceding the 2001 election, Delgadillo was on voluntary inactive status. He was not “qualified to practice” during that period; doing so would have been a misdemeanor and a contempt.
There can be no serious doubt as to Delgadillo’s ineligibility for the office to which he was elected. I would think that a court would have ejected him from office if an action in quo warranto had ever been brought.
But that remedy—the exclusive remedy—was never pursued.
That is to the discredit of Attorney General Bill Lockyer. Los Angeles Public Defender Michael Judge asked Lockyer to bring such an action. He refused. That was a dereliction of his duty.
Code of Civil Procedure §803 provides:
“An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office….And the attorney-general must bring the action, whenever he has reason to believe that any such office…has been usurped, intruded into, or unlawfully held or exercised by any person….”
The emphasis is added.
The statute says “must,” yet the attorney general said “no.” It’s a sad state of affairs when the chief law enforcement officer of the state refuses to enforce the law.
And it’s a sad state of affairs where the official in the City of Los Angeles who brings misdemeanor prosecutions in the name of the People of this state is someone whose ethical standards are lower than many of those he seeks to convict.
•Delgadillo signed a form under penalty of perjury declaring he met the qualifications of office.
•When a question was publicly raised as to whether that was true, he responded by circulating a purported opinion supposedly rendered by Jim Hahn while serving as city attorney saying it was OK to run for the office notwithstanding inactive status during the preceding five-year period. Investigation showed, however, that Hahn never signed or otherwise promulgated that opinion.
•Yet, Delgadillo had his deputies attach that sham document to responses to demurrers filed by Judge’s office (the demurrers being filed based on Delgadillo’s ineligibility for office).
No judge has yet ruled on the core issue of whether Delgadillo is legally qualified for the office he holds. It appears, at this point, that the issue will not be adjudicated.
Hence, Delgadillo will run for reelection next year as an incumbent, enjoying an advantage that is not rightfully his.
News accounts have not quoted the Charter provision, and have in many instances inaccurately sized up the legal contention that was put forth by Judge in filing demurrers and D’Agostino in bringing her civil rights action. It thus unlikely that voters will appreciate the reality that Delgadillo cheated his way into office.
And so, he got by with it—and his success will no doubt be an inspiration to others to ignore legal requirements in the hopes that nobody will notice.
Copyright 2004, Metropolitan News Company