Metropolitan News-Enterprise

 

Monday, December 3, 2012

 

Page 6

 

PERSPECTIVES (Column)

Lacey Becomes 42nd District Attorney of Los Angeles County

 

By ROGER M. GRACE

 

151st in a Series

Jackie Lacey today becomes district attorney of Los Angeles County—and, fittingly, attention is centered on two significant “firsts”: she’s the first female to attain that office and the first non-white. She’ll be the 37th person to serve as DA of Los Angeles County and the 39th person to function as DA for the county; though it appears at first blush to contradict the foregoing, Lacey will be DA #42 of L.A. County and #44 for the county.

The significant number, I would think, would be “42.”

This does call for an explanation.

William C. Ferrell on April 1, 1850—before statehood was attained (on Sept. 9)—was elected as the first district attorney of California’s First District, comprised of Los Angeles and San Diego counties. As related here before—contrary to standard historical works but confirmed by records—Thomas Sutherland succeeded Ferrell in that dual-county role in late 1850. (Sutherland is erroneously thought to have been the first district attorney of San Diego County, alone, when each county in October, 1851, gained a DA all its own…but, in fact, he was by then practicing law in San Francisco.)

If you count Ferrell and Sutherland among Los Angeles County district attorneys, the total number of holders of the office, once Lacey takes the oath today, will be 39. However, Ferrell and Sutherland were no more county officials than Court of Appeal justices today are, even those members of a division serving a single county. The two would be more sensibly listed, separately from Los Angeles County DAs, as First District officials, which makes Lacey the 37th person to fill the office of Los Angeles County district attorney.

And, if you exclude Ferrell and Sutherland, Lacey’s spot in the list of DAs is that of #42.

The reason that figure exceeds the number of persons who have served in the office is that there were four early DAs whose terms were non-contiguous. They were Cameron Thom (later a mayor of Los Angeles and a founder of Glendale); Ezra Drown (two-time member of Los Angeles’s city council, then known as the “Common Council”); Alfred B. Chapman (a former Los Angeles city attorney and a founder of the City of Orange in Orange County); and Volney Howard (previously a member of the U.S. House of Representatives from Texas, in later years one of the first two members of the Los Angeles Superior Court when it opened up shop in 1880).

Just as Grover Cleveland was both the 22nd and 24th president owing to non-contiguous terms, Thom was the fifth, 12th and 15th DA; Drown was the sixth and eighth; Chapman was the ninth and 11th; and Howard was the 10th and 13th.

Forty-three men have served as U.S. president; however, counting Cleveland twice, Barack Obama comes to be listed as the 44th president. Similarly, Lacey will be the 37th person to serve as Los Angeles County district attorney but, counting the second non-contiguous terms of Drown, Chapman and Howard and the two returns to office of Thom, Lacey emerges as DA #42.

The website of the Los Angeles County District Attorney’s Office accurately lists the incumbent, Steve Cooley, as #41. It initially had him down as #40, but the website was updated after this column unearthed the fact of Chapman’s second stint, a partial term. Chapman was appointed by the Board of Supervisors on Aug. 26, 1863, to fill the unexpired term of Drown, who had died. (That body, established in 1852, has had the power to fill vacancies in the office since 1855.)

Although Cooley can correctly be labeled #41 only if both Ferrell and Sutherland are eliminated from the tally, the DA website includes Ferrell, makes no mention of Sutherland, yet comes up with the right number by ignoring the service of early DA Lewis Granger, a former preacher and innkeeper. It credits Isaac K. Ogier with having served from 1851-52 when, in truth, he quit within a month of taking office, reportedly convinced that the district judge, Oliver S. Witherby, was frustrating prosecutions.

Granger, who had lost to Ogier in the Sept. 3, 1851 election, by a vote of 285-192, was appointed to the empty post by Witherby—who had, the year before, tapped Sutherland to succeed Ferrell. The district judge was the only possible appointing authority in those days (other than the governor or the Legislature) because he was the only official of the district other than the DA. “AN ACT concerning Offices” enacted on April 11, 1850, provided that officials would include “One District Judge and one District Attorney for each Judicial District into which the State may be divided by law.”

Once each county got its own DA in 1851, rendering the DA a county official, the county’s Court of Sessions—a legislative/judicial/executive body comprised of the district judge and two justices of the peace—became empowered to fill vacancies in the office. The Court of Sessions here did so in July, 1852 when Granger resigned, and was replaced by Kimball H. Dimmick (elected to the office on Nov. 2 of that year).

Here’s how the DA’s website lists the initial district attorneys:

1

William C. Ferrell

1850 - 1851

2

Isaac K. Ogier

1851 - 1852

3

Kimball H. Dimmick

1852 - 1853

Newspaper reports of the time and District Court minutes show this to be erroneous. While not discounting the possibility of error in the following—given that much of the early history of California is unrecorded or encased in fog—the following is at least closer to the truth, if not exact:

 

District Attorneys of California’s First District

(Los Angeles and San Diego Counties)

1

William C. Ferrell

1850

2

Thomas Sutherland

1851

 

District Attorneys of Los Angeles County

1

Isaac S.K. Ogier

1851

2

Lewis Granger

1851 – 1852

3

Kimball H. Dimmick

1852 – 1853

 

(If anyone undertakes to revise the website’s register of past district attorneys to include Sutherland and Granger, that person might also correct a boner with respect to DA Robert H. Philibosian. His administration spanned only two years—1982-84—not 1981-84, as listed. It’s a shame it wasn’t longer.)

This puts Jackie Lacey into historical perspective so far as her number in the list of DAs. Far more significant is putting her into perspective with respect to being the first non-white (African American) and first woman to attain the office.

When William Ferrell won his First District post in 1850, theoretically a black woman could have held office as district attorney.

No woman and no non-white could have been elected to the Legislature because the Constitution provided, in Art. IV, §4, that “Senators and Members of Assembly shall be duly qualified electors,” and to be an elector, a person had to be, under Art. II, Sec. 1, a “white male.” However, there was no requirement that other constitutional office-holders be electors, and no express requirement of being a white or a male (although there were references to office-holders as “he” or “him.”)

It happens that there were no women attorneys and no black attorneys in the California at that time, but that isn’t relevant to constitutional eligibility. In any event, it wasn’t clear at the time that a district attorney even had to be an attorney. It appears that one First District candidate in 1850 wasn’t.

By the time Ogier was elected the first DA of the county, having been admitted to practice was not a requirement for holding the office, according to an opinion rendered by the California Supreme Court in 1867. It declared valid the election of a non-attorney as district attorney in Tuolumne County, explaining:

The first Act which was passed in relation to the office of District Attorney contained an expression which may possibly give some color to the theory of the appellant, that, in the judgment of the first Legislature, the office should be filled only by licensed attorneys. It provided that, in the absence of the District Attorney, or in the event of his being disqualified in any case, the Court should appoint “some other attorney” to perform his duties. (Statutes 1850, p. 113, Sec. 3.) The most that can be claimed for that provision is, that it implied that none but licensed attorneys should hold the office. Admit this to be so; in the subsequent Act, passed in 1851, this expression was amended so as to read “some other person,” thus doing away with the implication, if any, to which the former language might have given rise. (Statutes 1851, p. 187, Sec. 5.)

The result seems difficult to reconcile with a statute enacted in 1851 declaring “[i]f any person shall practise Law in any Court, except a Justice’s or Recorder’s Court, without having received a license as Attorney and Counsellor, he shall be deemed guilty of a contempt of Court, and punished as in other cases of contempt.”

That same statute, “AN ACT concerning Attorneys and Counsellors at Law,” passed Feb. 10, restricted bar admission by a County Court, District Court, or the Supreme Court to a “white male citizen of the age of twenty-one years….” However, if a district attorney—though statutory obliged to represent the People in prosecutions and defending the county in civil actions—need not have been licensed as an attorney, it followed that the DA, legally, need not have been a male or a white.

This wasn’t tested. Persons who could not vote were commonly viewed as ineligible for office, and surely would have been unelectable even if allowed to run.

A Nov. 19, 1866 editorial in San Francisco’s Daily Alta California says:

“With Mr. [John] Stuart Mill on one side of the Atlantic urging the right of women to vote, and women on this side attempting practically to test the possibility of the election of a woman to Congress, who dare prophesy that there will never come a day when women will have all the rights which the strong-minded sisters claim for them?”

That was a long time coming.

The state Constitution was amended by voters on Oct. 10, 1911. Masculine references in Art. I, §1 were changed to “her or she” and “him or her.”

Nonetheless, women only slowly gained local offices here (or elsewhere in the state).

Estelle Lawton Lindsey, a socialist, was the first woman to win election to the Los Angeles City Council. The website of the Office of Los Angeles City Clerk says she served from July 1, 1915 to July 1, 1917. Rosalind Wiener Wyman was elected to that body in 1953.

The Nov. 16, 1918 issue of the Los Angeles Times identifies Sadie D. Anderson as “the first woman Trustee of the city of Redondo Beach, and probably of Southern California.”

Zelma Bogue was elected to the Glendale City Council in 1953, and served as mayor from 1957-59.

The July 11, 1954 edition of the Times terms Ruth Bach the “first woman elected to the Long Beach City Council.”

Georgia Bullock was the first female judge of a court of record in California when she became a judge of the newly formed Los Angeles Municipal Court in 1926. The court was created through unification of local courts, including the Police Court on which she had served since 1925. Bullock failed to gain election to the Superior Court in 1928, but was appointed to it in 1931, and beat off an election challenge in 1932. She is thus the first woman elected to that court

Kathleen Parker in 1962 became the first woman to gain her judgeship on the Los Angeles Superior Court through election.

Gloria Molina in February 1991 became the first woman elected to the Los Angeles County Board of Supervisors (in a special election), though Yvonne Brathwaite Burke had served earlier (1979-80), by gubernatorial appointment. Burke in 1992 gained election to the board.

Burke was the first African American to serve on the board and the first to be elected to it. Earlier, she had been the first black woman to be elected to the state Assembly (1963) and the first black woman elected from California to Congress (1972).

Restricting the franchise to whites had been halted by the 15th Amendment to the U.S. Constitution, providing in Sec. 1 that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Though ratified in 1870, elections of black as public officials, just as elections of women, came slowly.

Edwin Jefferson, the first black judge west of the Mississippi, gained his appointment to the Los Angeles Municipal Court in 1941. He then became the first black elected to a judgeship in the county when voters returned him to office in 1947, rejecting the challenge by Donald Kotz. In 1950, he was the first black to be elected to the Los Angeles Superior Court, a post he had held since his appointment to it in 1949. Jefferson went on to serve on the Court of Appeal from 1961-75.

In January 1962, Gilbert W. Lindsay became the first black to serve in the Los Angeles City Council, having been appointed to a vacancy. That year, he and fellow African Americans Billy G. Mills (later a Los Angeles Superior Court judge) and Tom Bradley were elected to council seats. 

In 1963, Bradley was elected the city’s first black mayor.

Incumbent Mark Ridley-Thomas is the first black male to be elected to the Los Angeles County Board of Supervisors, gaining office in 2008.

While I recognize that Lacey is highly competent, I didn’t vote for her—simply because I find myself philosophically more in tune with her adversary in the run-off, Deputy District Attorney Alan Jackson. By the end of the campaign, however, the choice was a tough one.

Jackson’s television commercial accusing Lacey of having committed the felony of perjury was rash and irresponsible. The fact that, in testifying before a county hearing officer in a personnel matter, she corrected earlier testimony did not evidence her having previously lied under oath.

Jackson appeared to have been overly influenced by his young and overly aggressive campaign strategist, John Thomas, whose commitment to fair play is doubtful.

Lacey, who began her campaign with meekness—and was described by some as lacking fire in the belly—has gained the self-assurance and polish she initially lacked.

Former District Attorney Robert H. Philibosian, at one of the MetNews “Person of the Year” dinners he emceed, referred to Cooley as the greatest district attorney in the history of the county. Having researched the administrations of each of them, I find myself in partial agreement with him.

I’d rate Cooley and Evelle J. Younger at the top.

Cooley once referred to himself as the “functional equivalent” of Younger.

Except for one blunder (in raiding our newspaper office), Cooley has performed impressively, rendering his office a pioneer in development of DNA evidence, and doggedly going after crooked politicos.

My hope is that Lacey will perform on a par with her predecessor, becoming the “functional equivalent” of Cooley.

Good luck, #42!

 

Copyright 2012, Metropolitan News Company

 

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