Tuesday, June 26, 2007
Woolwine: County Counsel Is Subservient to District Attorney
By ROGER M. GRACE
Forty-First in a Series
THOMAS LEE WOOLWINE, district attorney of Los Angeles County, wasn’t opposed to the existence of the Office of County Counsel—just so it was understood that the county counsel was his underling.
That notion of his led, not surprisingly, to a clash with the first county counsel of this county, Alferd J. Hill. That’s how he spelled his first name...but he generally went by “A.J. Hill.” Hill was to be the victor in a court tussle with Woolwine which reached the state Supreme Court. He went on to become founder of the law firm known since 1950 as Hill, Farrer & Burrill.
Hill’s post was created by the county charter that was approved by voters on Nov. 5, 1912, ratified by the Legislature Jan. 29, 1913, and which went into effect June 2, 1913. Under the charter, representation of the county in civil matters—handled under state law since 1851 by the district attorney—was to be entrusted to the county counsel. Hill, who had been advising the board as a deputy under District Attorney John D. Fredericks, simply assumed a new title on June 2, performing the same duties as before, but now comprising a one-man county department.
(The same charter created the position of county public defender.)
Woolwine assumed office on Jan. 4, 1915. Right at first, there was no discord between him and Hill; in fact, they had something in common: being targets of E.T. Earl, publisher of the Express and the Tribune.
It was a request to Woolwine by Sheriff John Cline that led to the first confrontation. Cline objected to new accounting rules that would have required that his department’s books be maintained by the county auditor as of Feb. 1, 1917. After Hill advised the Board of Supervisors that those rules were fully applicable to the Sheriff’s Department, the sheriff turned to Woolwine for his opinion.
Woolwine sent one of his deputies, George E. Cryer, to Sacramento to ascertain from the state attorney general whether it was the district attorney or the county counsel who should be dispensing legal advice to county officials. (Cryer was to serve as mayor of Los Angeles from July, 1921-July 1929.) Attorney General U.S. Webb prepared a written opinion in which he said that either could provide legal counseling. He explained:
“The provisions of the county charter relating to the powers of the county counsel are valid to the extent that they do not conflict with the provisions of the general laws relating to the powers and duties of the District Attorney. The fact that the same or similar duties are imposed on both officers does not, however, mean that the provisions of either law should necessarily fail for that reason. For the purposes of illustration, the Political Code requires the District Attorney to give, ‘when required,’ his opinion to county, district and township officers. Section 21 of the county charter requires the county counsel to advise the Board of Supervisors and all county, township and school district officers. Thus, as to such officers advice may be given by either the District Attorney or county counsel, and such officers are authorized to call upon either of such officers for advice.”
The Feb. 20, 1916 edition of the Times reports:
“Dist.-Arty. Woolwine announced yesterday that he interprets the ruling of Atty-Gen. Webb on the elasticity of the county charter as it relates to various offices to mean that the department of the county counsel is a branch of the District Attorney’s office.”
That proposition was Woolwine’s, not Webb’s.
Hill deferred to Woolwine’s authority on an occasion in April, 1917.
County Auditor Walter A. Lewis inquired of Hill as to the employment status of Richard A. Norton, who had been elected as a Los Angeles County supervisor in 1912 and reelected in 1916. After he first assumed office on Jan. 6, 1913, Norton was paid at the rate then in effect for supervisors—$3,000 a year, or $250 a month. The new term to which Norton was elected commenced on Dec. 4, 1916, and Lewis paid him for January, February and March, 1917, at the boosted rate of $5,000-a-year, or $416.66 a month. But, Lewis queried, was Norton entitled to that amount? It seems that the supervisor had failed to take his oath of office or file a bond.
In a written opinion, Hill responded that Norton’s post was “vacant” and that he was a “holdover” supervisor, entitled to remain in office only until a successor was chosen at the general election in November 1918, unless the governor appointed a replacement before then. As to the rate of pay, the county counsel advised that it must be at the level that existed when Norton lawfully entered office in 1913.
That meant that Norton had been overpaid by roughly $500.
Here’s the part where Hill deferred to Woolwine: he told Lewis that “a cause of action exists in favor of the county against Mr. Norton to recover the excess amount [of salary] so overpaid” but that there was a statutory duty imposed on the district attorney, alone, to seek a reimbursement.
“…I suggest that you take the matter up with him,” Hill said.
The county counsel no doubt had reference to §8 of the County Government Act which provided that where a county has paid out money it shouldn’t have, “the district attorney of such county is hereby empowered, and it is hereby made his duty, to institute suit, in the name of the county, against such person or persons, to recover the money so paid, and twenty per cent. damages for the use thereof.”
Spring of 1917 was not a good season for Norton. On May 18, the Grand Jury acceded to Woolwine’s urging and indicted Norton and two other supervisors on charges of misfeasance. Allegations in the true bill centered on mismanagement of funds by the trio which resulted in a $1.25 million-or-so county deficit. A minor count said that the supervisors improperly approved Norton’s claims for an allowance of 10 cents a mile for the three miles he traveled each day to and from work, and for mileage to and from San Francisco in connection with an event to which the board had sent him.
The district attorney followed up by filing actions to remove the lawmakers from office, with Norton (an Earl puppet and persistent thorn in Woolwine’s side) to be tried first.
A day after the Court of Appeal affirmed the Superior Court’s denial of Norton’s writ petition to force payment of his salary at the $5,000-a-year level—backing up Hill’s view that Norton was a “holdover” official—and with the trial aimed at ousting him from office four days off, Norton on Sept. 13 resigned in a letter to the governor.
In an incredible display of gall, Norton, though under indictment, asked Gov. William D. Stephens in that letter to appoint him to the vacancy. Earl’s Express and the Tribune portrayed the existence of a groundswell of support for such a move. A headline in the Tribune the following morning read, “THOUSANDS TO ASK FOR NORTON REAPPOINTMENT.”
Also that next day, Hill made public comments on the matter…which was to lead to a stinging retort by Woolwine.
The county counsel was attributed by the Los Angeles Evening Herald with the view that if Norton were appointed, the trial seeking his ouster would have to be called off. The article quotes the Hill as saying:
“Under the law, a man cannot be tried in one term of office for dereliction during a previous term.”
If Norton had properly qualified after being elected in 1916, Hill is reported to have opined, the prosecution for alleged misconduct in his previous term would have been precluded. The Sept. 14 article continues:
“If reappointed, however, it will be for a new term, which will begin as soon as he qualifies under such appointment, Hill declared.”
A Times article the next morning starts out: “Suit will be filed at once by the county to recover from Supervisor R. H. Norton about $3,000 which he is declared by the grand jury to have illegally collected on mileage accounts, according to County Counsel Hill.” The Examiner’s version that morning says that Hill was “preparing” such a complaint “for the return of approximately $2500,” while the Herald account that night recites that the county counsel had “stated that a suit for $2,500 to $5,000…may be filed on behalf of the county.”
Whether Hill had merely made note of a possible cause of action by the county or was actively involved in drafting a complaint seeking reimbursement (contrary to the view he expressed in April that the district attorney, alone, had the job or recouping mistaken payments), he had riled the excitable Woolwine.
Throughout his career, Woolwine had relished being in a spotlight, and was rankled by anyone slipping into the bright orb cast upon him. Hill, he discerned, had done that; he retaliated. In a public statement, as it appears in the Sept. 15 edition of the Examiner, Woolwine declared that Norton’s “illegal demands for mileage” had not been approved by him, as Norton implied, “but were illegally approved by County Counsel Hill, an appointee of the board of supervisors.” Woolwine continued:
“The statements of County Counsel Hill as to the possible disposition of this matter are wholly voluntary, as he had nothing to do with it and has no authority to speak for the District Attorney or to act in the case at all.”
Refuting Hill’s underlying assumption that the resignation was effective, Woolwine proclaimed that it was meaningless, having been directed to the governor rather the proper recipient, the clerk of the Board of Supervisors.
Norton proceeded to draft a resignation to the clerk but kept it in his coat pocket; under goading by Woolwine in open court the next Monday, he tore it up. The trial proceeded, and Norton was convicted on Oct. 10, 1917 on eight of 10 counts, and was removed from office.
On Dec. 18, 1917, Woolwine’s office brought suit against Norton for $2,675.88; some of the claims, it turned out, were time-barred; a monetary judgment was ultimately attained for $958.36.
Hill subsequently brought an action against Cline on Dec. 11, 1917, for $15,592 in fees the sheriff personally pocketed for transporting persons to state prisons or insane asylums which, according to the complaint, should have been dumped into the county coffers. (This was an action to obtain moneys the county never had, rather than one lunched under §8 of the County Government Act to recoup sums mistakenly remitted…but any such distinction was seemingly not lent attention at the time.)
An article in the Jan. 4, 1918 edition of the Times says:
“Whether the department of County Counsel is to be abolished is to be decided in the courts. This statement was made yesterday by Chief Deputy Cryer of the District Attorney’s Office….
“The creation of a civil department in the District Attorney’s office yesterday was said to be the forerunner of the proposed action in relation to the County Counsel.”
The Times article says that Cryer contended that just as Woolwine had made the decision to institute an action against Norton, it was his call as to launching a proceeding against Cline…or not.
Woolwine on Feb. 11 appeared before the Board of Supervisors, insisting that it order the county counsel to relinquish to him the files in 13 cases filed on behalf of the county—including the action against Cline—and to effect his substitution as attorney of record for the county. On Feb. 18, the Board of Supervisors rebuffed Woolwine’s request.
The district attorney made a motion in the Superior Court to be substituted in, but his motion was denied by Judge Grant Jackson on April 23. The charter provision, designating the county counsel as lawyer for county in civil matters, prevailed over the general law, he ruled. By then, only eight of the 13 actions was still pending.
Woolwine doggedly sought a writ of mandate in the Court of Appeal, which was peremptorily denied on May 27, 1919. An article in the Times the next morning reports that Hill commented that the action “finally disposes of the contention which Mr. Woolwine has made for a number of years that he, instead of the County Counsel, should represent the county in civil cases.”
It was not a final resolution. That didn’t come until the California Supreme Court on March 10, 1920, ruled upon Woolwine’s new petition for a writ of mandate filed in that court.
By then, only three of the 13 cases was pending. Meanwhile, the Legislature had sought to have the last word by providing in 1919 that duties of a district attorney prescribed in the general laws didn’t apply to counties that had county counsels. Undeterred, Woolwine contended in the Supreme Court that the statute was a “special law,” and void.
His pivotal argument was that the general laws entrusted certain tasks to district attorneys, including representation in civil suits, and the state Constitution provided that provisions of county charters relating to county officials “shall be subject to and controlled by general laws.”
“The matter is important,” the Supreme Court said in its unanimous opinion…proceeding to sidestep the issues raised. It held that under Code Civil Procedure §284—which is still in place—a court may order a change in attorneys for a party if the party and/or its attorney so requests. Neither the county, the party, nor its attorney, Hill, made such a request…so, the court said, if Woolwine wanted to pursue the issue, he “must resort to some other method of bringing it before the court”—that is, other than via a motion for a substitution of counsel.
That didn’t happen.
“This decision firmly establishes the right of the County Counsel to proceed with the civil litigation of the county and this battle which has lasted for more than three years has resulted in the County Counsel being left in charge of all such litigation,” Hill declared.
Copyright 2007, Metropolitan News Company