Wednesday, August 29, 2001
Court of Appeal Revives Reinstatement Bid by Ousted City Clerk
By a MetNews Staff Writer
The former city clerk of Lawndale—ousted by the city council on the ground he doesn’t live in the municipality—may sue to get his job back, but only if he gets the attorney general’s consent to sue in quo warranto, the Court of Appeal for this district ruled yesterday.
Presiding Justice Charles Vogel, writing for Div. Four, agreed with Los Angeles Superior Court Judge Dzintra Janavs that Stephen Nicolopulos cannot sue for mandamus, injunctive or declaratory relief, or damages. The panel chose to reverse the dismissal of Nicolopulos’ suit, however, in order to allow him to amend it to plead the correct cause of action if he obtains the necessary consent.
The council declared the clerk’s office, which is an elected position in Lawndale, vacant in February of last year. It found that Nicolopulos didn’t live in the city and appointed Pamela Giarmario as acting city clerk pending a special election.
The election was held last November, and was won by Paula Hartwill, whose term ends in April of next year.
The city demurred to Nicolopulos’ complaint on the ground that the exclusive remedy for an official who claims that a usurper wrongfully occupies an office belonging to the complaining party is quo warranto. Nicolopulos responded that quo warranto doesn’t apply because at the time he filed suit, the office was occupied by an acting city clerk, rather than by an appointed or elected official.
Even if that argument were correct, Vogel noted, there is no question that quo warranto is the exclusive remedy now that there is an elected city clerk.
Vogel went on to reject the argument that Nicolopulos’ claim that his right to due process was violated by the ouster was properly pled as a federal civil rights claim, and thus an exception to the exclusivity of quo warranto. There is, the presiding justice explained, no procedural due process violation under federal law when the state provides an adequate post-deprivation remedy.
Quo warranto is an adequate remedy, the presiding justice concluding, rejecting the contention that the requirement of obtaining the attorney general’s consent renders it inadequate.
Vogel noted that the attorney general has granted leave to sue in quo warranto in several cases similar to Nicolopulos’.
“We have no reason to suppose that the Attorney General would deny an application by appellant for leave to sue in quo warranto….And if the circumstances were such that the Attorney General abused his discretion by denying leave, appellant would have a remedy by mandamus against the Attorney General….The quo warranto procedure satisfies constitutional due process for remedying any claimed procedural irregularities leading to the City Council’s declaration of a vacancy in appellant’s office….Appellant is wrong, therefore, in asserting that by couching one cause of action under the federal Civil Rights Act he can ignore the quo warranto procedure.”
Attorneys on appeal were Fredric D. Woocher, Michael J. Strumwasser, and Harrison M. Pollak of Strumwasser & Woocher for Nicolopulos and William W. Wynder and Anthony R. Taylor of Burke, Williams & Sorensen for the city.
The case is Nicolopulos v. City of Lawndale, B144311.
Copyright 2001, Metropolitan News Company