Lea Purwin D’Agostino Has Entitlement to Post

By ROGER M. GRACE

Rockard J. “Rocky” Delgadillo is illegally holding office as Los Angeles city attorney and could be removed should a quo warranto proceeding be instituted. The office lawfully belongs to Deputy District Attorney Lea Purwin D’Agostino, who came in third in the April 10, 2001 primary election.

Neither Delgadillo nor his opponent in the June 5 run-off election, then-City Councilman Michael Feuer, met the qualifications for the office as set forth in the City Charter. Somehow the press, this newspaper included, missed that at the time of the election.

Sec. 270 of the charter, adopted in 2000, provides:

“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.”

Sec. 42 of the previous charter, adopted in 1925, had a similar provision.

However, had Delgadillo practiced law in any court of this state between Jan. 1, 1995 and July 1, 1999 (other than as a pro per), he would have been engaged in the unauthorized practice of law. He was, during that time, on voluntary inactive status, performing non-legal duties in the administration of Mayor Richard Riordan, eventually as a deputy mayor (as of July, 1997).

Feuer was on voluntary inactive status from Jan. 1, 1995 to Jan. 19, 1999.

While both candidates were eligible to reclaim their standing as active lawyers, it remains that, while on inactive status, they were not “qualified to practice” in any California courtroom. “No person shall practice law in California unless the person is an active member of the State Bar,” according to Bus. & Prof. Code §6125.

Indeed, §6126 provides: “Any person…practicing law…who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor.”

Too, §6127 declares “practicing law in any court, without being an active member of the State Bar” to be a contempt.

It cannot seriously be argued that either candidate was “qualified” to perform an act—practicing in a court—which would have constituted a misdemeanor and a contempt.

Had the charter provision been drafted to say merely that the city attorney must have been an “attorney” for at least five years, it might be different. The court in People v. Medler (1986) 177 Cal.App.3d 927 observed at 930 that “an attorney who has been suspended from membership to the State Bar remains an attorney at law, but is precluded from practicing law.”

However, the charter provision does not merely require status as an attorney for five years, but the qualification to practice during the five-year period immediately preceding the election. This, neither Delgadillo nor Feuer could do.

In short, once they went on inactive status, they were no longer qualified to practice law; when they each returned to active status in 1999, by making application and paying fees (pursuant to §6006), they were, once again, qualified; at the time of the election in 2001, neither candidate met the requirement of having been qualified to practice law during the entire preceding five-year period.

It might well be anticipated that judges, as public officials themselves, would not be eager to grant a petition to remove Delgadillo from office, notwithstanding a clear lack of entitlement to hold his post.

Nonetheless, Attorney General Bill Lockyer is legally obliged to bring a proceeding in quo warranto. 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 mine. Lockyer “may” authorize a relator (D’Agostino or someone else) to bring an action in quo warranto, but “must” do so himself when he has reason to believe someone is holding an office unlawfully.

Records posted on the State Bar website show that Delgadillo lacked entitlement to practice law during three out of the five years preceding his election. The Los Angeles City Charter requires that a city attorney be qualified to practice law “for at least five years immediately preceding his or her election.” From these facts, Lockyer could not reasonably form any belief other than that Delgadillo holds office unlawfully.

The case that clinches the conclusion that Delgadillo unlawfully holds office is one which, I’m embarrassed to say, I erroneously relied upon in asserting in a recent column that a campaign rival to Los Angeles Superior Court Judge David Wesley is unqualified to run.

The case is Johnson v. State Bar of California (1937) 10 Cal.2d 212. The court said, at 216:

Article 6, § 23, of the California Constitution provides that: ‘No person shall be eligible to the office of * * * a judge of a superior court, * * * unless he shall have been admitted to practice before the supreme court of the State for a period of at least five years immediately preceding his election or appointment to such office.’ It follows that no one is eligible to hold the office of superior judge who has not been an admitted practitioner before the Supreme Court of this state for a period of five consecutive years immediately preceding his election or appointment to such office. Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible….It is self-evident, we think, that said provision requires as a fundamental qualification for the office of superior judge, that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts….

In my Dec. 15 column, I suggested that Los Angeles Police Sergeant Kevin Burke, one of Wesley’s three challengers, lacked the constitutional qualifications for a judgeship, based on Johnson, because he was on voluntary inactive status from Dec. 20, 1996 to Feb. 15, 2001.

In taking a further look at the case, however, I do see a fallacy in my analysis. The current state constitutional provision, Art. VI, §15, does not mirror the predecessor provision interpreted in Johnson. The present section says:

“A person is ineligible to be a judge of a court of record unless for 10 years immediately preceding selection, the person has been a member of the State Bar or served as a judge of a court of record in this State.”

That section merely requires membership in the State Bar for 10 years, not eligibility to practice law for 10 years. Burke has, in fact, been a “member” for 10 years, albeit, for a part of that time, an inactive member.

By contrast, the earlier constitutional provision required that a person, to be eligible for a judgeship, be “admitted to practice before the supreme court of the State for a period of at least five years immediately preceding his election or appointment to such office.” The keyword there is “practice.” Under that provision, inactive status would have stopped the clock on the relevant qualifying period (then five years) because the person could not have practiced law during that time. The period would have re-started from scratch upon a return to active status.

Though asked by no one to do so, I retract my Dec. 15 column and—borrowing a term from legal parlance unknown in journalism—“depublish” it, to the extent possible, by removing it from our website.

Johnson does, however, bolster the proposition that Delgadillo fails to meet the qualification for the post of city attorney, as contained in the city charter.

The charter provision says that the city attorney “must be qualified to practice in all the courts of the state,” adding that the person “must have been so qualified for at least five years immediately preceding his or her election.” Again, the keyword is “practice.”

The City Charter does not simply say that a city attorney must have been a “member” of the State Bar for five years but, as in the erstwhile constitutional provision dealt with in Johnson, requires that the person have been qualified to practice during that five-year period.

Paraphrasing Johnson, it is self-evident, I think, that the City Charter provision requires as a fundamental qualification for the office of city attorney that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts for a period of five consecutive years immediately preceding his or her election or appointment to such office.

I talked to D’Agostino yesterday. She was, naturally enough, flabbergasted to be told, two-and-a-half years after an opponent was supposedly elected city attorney, that there’s a basis for believing that she actually holds entitlement to the office.

“You’re catching me so unexpectedly,” she said.

The prosecutor told me she had not been aware of the periods of inactive status of Delgadillo and Feuer. She related that she did, however, have someone check to make certain that they were active members of the State Bar at the time they declared their candidacies.

D’Agostino said she will be contacting an attorney to look into her options.

As you’ll probably recall, D’Agostino, a 26-year veteran of her office, is nicknamed the “Dragon Lady” based on her resoluteness and high conviction rate.

Delgadillo was unavailable for comment yesterday. However, a rather snotty press deputy telephoned to respond to a question I posed in a hand-delivered letter asking Delgadillo how he met the criteria of the charter provision in light of his years of inactive status. I was told:

“Our response is that Rocky passed the bar in 1986. Therefore, he’s been qualified to practice in all the courts of the state since then.”

That simplistic reasoning is inane. Passing the bar exam does not, in and of itself, confer perpetual entitlement to practice law. A person who fails the moral fitness review is not qualified to practice. One who is suspended for non-payment of dues or non-compliance with MCLE requirements is not so qualified, nor is one who is involuntarily enrolled as inactive based on health deficiencies. A lawyer whose misconduct results in suspension or disbarment is not qualified to practice. And, as is relevant here, someone who, like Delgadillo, passes the bar exam, is admitted to practice, then voluntarily goes on inactive status, is not qualified to practice law.

Stating the obvious, the California Supreme Court noted in Conway v. State Bar (1989) 47 Cal.3d 1107, at 1111: “An inactive member of the State Bar, of course, is not entitled to practice law.”

The position attributed to Delgadillo that any person who passes the bar exam remains forevermore qualified to practice in all courts of the state is patently without merit.

Feuer, now of counsel to Morrison & Foerster, said yesterday:

“I have presumed that inactive status was an appropriate basis on which to run.”

He said he is “quite sure” that he received an assurance from someone in the City Attorney’s Office that he was right, but said he is not certain who it was.

“My memory on this is very foggy,” he said, noting that it was in 1998 when he formed the decision to run and when he would have examined the issue.

The declaration of candidacy form used in 2001 for the office of Los Angeles city attorney contained this statement:

“I am qualified to practice in all courts of this State, and will have been so qualified for at least five years next preceding my election. [Char. Sec. 42(1)].”

The candidate was obliged to affirm the truth of that statement by signing the form under penalty of perjury.

So it is that the man who holds the office of city attorney swore under penalty of perjury that he had been qualified to practice in all courts in the state from the period from June 5, 1996 to June 6, 2001 when, in truth, he was impotent to practice law during three years and 25 days of that period.

The fact that he could have changed his status to active at any time during that period is irrelevant because the reality is that he didn’t.

He was not qualified to practice law for the entirety of the five year period preceding his election, his contrary statement on his declaration was false, and he entered office without possessing the legal qualifications.

Will anybody do anything about it?