Public Defender Asks Lockyer to Seek Ruling on Delgadillo

Thursday, April 8, 2004

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Public Defender Asks Lockyer to Seek Ruling on Delgadillo

By DAVID WATSON, Staff Writer

Los Angeles Public Defender Michael Judge has asked Attorney General Bill Lockyer to initiate a quo warranto action which could oust City Attorney Rocky Delgadillo from office.

Deputy public defenders have been demurring since late January to misdemeanor complaints filed by Delgadillo’s office, contending the city attorney holds office illegally and lacks authority to bring the charges.

Los Angeles Superior Court judges have uniformly overruled those demurrers and writ petitions challenging those ruling were rejected both by the court’s Appellate Division and this district’s Court of Appeal.

In a letter to Lockyer dated Tuesday, a copy of which was obtained by the MetNews yesterday, Judge called the issue “narrow but momentous,” and declared:

“It appears prudent at this time to refer the matter to you in order that you pursue the matter of quo warranto in order to cause this important legal controversy to be resolved for the needs and benefits of all concerned.”

Code of Civil Procedure Sec. 803 requires the attorney general to bring a quo warranto proceeding “whenever he has reason to believe that any...office...has been usurped, intruded into, or unlawfully held or exercised by any person.”

Charter Provision

Questions about Delgadillo’s qualifications were raised in a Jan. 9 column in the MetNews. A City Charter provision requires that the city attorney have been “qualified to practice” for the five year period preceding election, but Delgadillo’s State Bar membership was inactive between Jan. 1, 1995 and July 1, 1999.

The statute authorizes a private party, with the consent of the attorney general, to bring a quo warranto action, and the attorney general’s Web site describes that as the method by which such actions are “usually” prosecuted. But Judge did not ask Lockyer for leave to bring a quo warranto action.

Regulations promulgated by the attorney general’s office require that an application for “leave to sue” in quo warranto be in the form of a complaint accompanied by points and authorities.

“My client’s indigency prevents me from being in a position to incur or pay any costs or charges for any quo warranto action that may be brought,” Judge wrote.

Sec. 810 provides that when a private party applies to bring a quo warranto action, the attorney general may require the party to “enter into an undertaking...conditioned that such party...will pay any judgment for costs or damages recovered against the plaintiff, and all the costs and expenses incurred in the prosecution of the action.” A regulation provides that an applicant must execute an “undertaking— in the sum of $500” within 10 days of being granted leave to sue.

Application Not Ruled Out

Acting Assistant Public Defender for Operations John Vacca said yesterday that Judge has not ruled out making a formal application, adding that the public defender felt, given the limited budget of his office, that it would be more “appropriate” for the attorney general to bring the action himself.

Vacca said the letter was faxed and mailed to the attorney general Tuesday. A spokesman for Lockyer did not return a call from the MetNews seeking comment yesterday.

Delgadillo spokesman Eric Moses said the letter showed Judge was seeking to “walk away” from the issue by “dumping” it “in the lap of the attorney general.”

Moses declared:

“If you read the public defender’s letter closely, it shows that he’s washing his hands of this matter after wasting the taxpayers’ money by filing and losing more than 8,300 demurrers and having his argument rejected by the court of appeal.”

The letter, Moses asserted, did not even explicitly urge Lockyer to file a quo warranto action.

In his letter, Judge asserted that his efforts to resolve the issue of Delgadillo’s qualifications “within the processes of the criminal courts” have “heretofore been thwarted by the legal argument of the Los Angeles City Attorney and the rulings of the courts that the sole remedy available to address this issue is quo warranto.”

The four-page letter contained a detailed account of negotiations between Judge, Vacca, and Senior City Attorney Terree Bowers seeking to consolidate litigation over the demurrers before a single judge or a single judges at each court location. Judge said he believed agreement had been reached, but found that “[a]t approximately half of the locations my staff reported that the local supervisors of the City Attorney’s Office refused to honor the protocol that I thought had been established.”

He added:

“Almost immediately upon the initial demurrers being scheduled for court hearings the Planning and Research Unit...of the Superior Court promulgated a memo to all bench officers advising them that the motions should be denied citing quo warranto as the sole remedy available. All of the trial level courts in Los Angeles County ruled in consonance with the PRU...Likewise, the Appellate Department of the L.A. Superior Court cited quo warranto as the only remedy as has the Court of Appeals....”

The issue of Delgadillo’s qualifications is also being litigated in federal court. A lawsuit filed by Deputy District Attorney Lea Purwin D’Agostino contends that her right to due process was violated when city officials certified Delgadillo the winner of the election.

D’Agostino finished third in balloting for city attorney in 2001. Then-City Councilman Michael Feuer, who finished second in the voting and lost to Delgadillo in a runoff, also had a period of inactive State Bar membership within the five years preceding the vote.

A lawyer representing Delgadillo in that action, which was dismissed by U.S. District Judge Manuel Real and now before the Ninth U.S. Circuit Court of Appeals, took issue yesterday with a claim by D’Agostino’s attorney, Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield, that a recent order by the appeals court upheld federal jurisdiction over the action.

Real had dismissed the suit partly on jurisdictional grounds.

John Spiegel of Munger, Tolles & Olson conceded that the court had denied his motion to dismiss the appeal, but said the only issue posed by the motion was the appealability of Real’s decision to deny a temporary restraining order sought by D’Agostino.

The Ninth Circuit only ruled that since D’Agostino has now appealed Real’s dismissal of the action, it was unnecessary to decide whether the TRO could be appealed, Spiegel said.

Spiegel also took issue with Yagman’s contention, in a brief filed last month, that D’Agostino’s suit was “shanghaied and taken over” by Real after being initially assigned to Senior Judge William J. Rea.

The brief cited what it called “odd” entries in the docket and accused Real—with whom Yagman has had run-ins in the past—of issuing a minute order to create “a false appearance that there had been a hearing—at which counsel had appeared” on Feb. 9.

“[T]he only speculation plaintiff has as to this minute order is that Judge Real had decided on February 9, 2004 what would occur in future, and drafted a minute order in anticipation of that,” the brief asserted.

Spiegel said there was “no basis”for the claim that Real acted improperly, calling it “another irresponsible allegation from Mr. Yagman.”

He added:

“There’s been no shortage of those in this litigation.”

Delgadillo’s reply to the brief, in which D’Agostino asked the Ninth Circuit to rule as a matter of law that Delgadillo is not entitled to hold office and also asked that if the matter is remanded it not be returned to Real’s courtroom, is due May 3.