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Perspectives (Column)
Ineligible Candidate Seeks Election As Los Angeles City Attorney
By Roger M. Grace
It stands to reason that if a person has been admitted to the State Bar of California and has gone on inactive status, that person is not “qualified” while on that status to practice law in the state.
That has relevance to someone seeking election as Los Angeles city attorney. Sec. 270 of the city charter sets forth the requisite for candidacy:
“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.”
Now—as in 2001, when that provision was overlooked—a lawyer who has not been on active status during the entirety of the five-year period preceding an election for city attorney is ineligible for candidacy. It’s plain and simple, I would think.
But City Clerk Holly L. Wolcott has a different notion, and litigation over the question, I’m told, is in the offing. Wolcott expressed her view in a Feb. 10 letter to Rick Taylor, campaign consultant to Richard Kim, a deputy city attorney who is a candidate for the top spot in his office. She opined that Marina Torres—who bills herself as a “Federal Corruption Prosecutor”—is not precluded from also seeking that office.
Here’s what the State Bar website shows as to Torres’s status since she was licensed to practice in the state:
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Whether the next city attorney is elected in the June primary (which seems unlikely, with six candidates in the race) or in a November run-off, it is incontestable that Torres will have been on inactive status during a chunk of the five-year period preceding that election. She was not “qualified” to practice law during that period because doing so would have constituted the misdemeanor of practicing law without a license, and representing a client in a courtroom would have constituted a contempt.
Yet, here’s what Wolcott wrote to Taylor:
“The historical application of Charter Section 270 is that voluntary inactive bar status does not disqualify a person from running for City Attorney. For example, in 2001, then candidates Rocky Delgadillo and Mike Feuer both had been voluntarily inactive in their bar status for a period of time within the five years prior to the Election, and both were deemed eligible to run for City Attorney under Charter Section 270. Similarly, former Attorney General Xavier Becerra was eligible to run for that Office where he had taken voluntary inactive bar status within the five years prior to being elected in 2018.
“I hope this resolves any concerns you may have.”
That doesn’t resolve Kim’s concerns—and shouldn’t.
After Delgadillo assumed office as city attorney, the question of his eligibility to hold that office was raised by this column and although litigation ensued, there was no judicial determination as to whether he properly held office or not. The outcome of litigation over the requirements for seeking the office of state attorney general is an irrelevancy because a statute governs there, and its wording is unlike that of the city charter provision.
On Jan. 4, 2004, this column asserted:
“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.”
I remember phoning D’Agostino after I came across the charter provision. I said something along the lines of:
“I don’t believe we’ve ever met, and you’ll probably think I’m a crackpot—but I think you won the election for city attorney.” My impression was that, initially, she did perceive me to be a crackpot.
I explained why I thought Feuer and Delgadillio, a deputy mayor, had been ineligible for the office.
“You’re catching me so unexpectedly,” she said.
D’Agostino told me she would be contacting a lawyer. Unfortunately, once the matter became publicized, a lawyer contacted her, offering free services, and put her on the wrong litigation path.
Stephen Yagman (since disbarred for reasons unrelated to his representation of D’Agostino) filed a meritless and ill-fated federal civil rights suit on her behalf. The Ninth U.S. Circuit Court of Appeals on Oct. 1, 2004 affirmed the District Court’s dismissal of the action.
The exclusive remedy where someone holds office unlawfully is a proceeding in quo warranto. The late Joe Cerrell, a political consultant, related to me that then-state Attorney General Bill Lockyer had told him that if the requisite consent for bringing such an action were requested of him, he would give it. But D’Agostino, whose knowledge of criminal law was unparalleled—she was a 26-year veteran of her office and was known as the “Dragon Lady” in light of her tenacity and effectiveness—relied in her civil matter on Yagman.
As an aside, she and her husband Joe D’Agostino (now deceased) became friends of my wife and mine, and I talked by phone with her twice last week on a matter that had nothing to do with the Torres situation. She had seen coverage in the METNEWS of a case in the courtroom of Los Angeles Superior Court Judge William C. Ryan in which the family of a murder victim—represented by former District Attorney Steve Cooley and victims’ rights lawyer Kathy Cady—is opposing the judicial commutation of a death sentence to life imprisonment.
D’Agostino had been the prosecutor in the case, People v. Scott Forrest Collins. She told me of the strong empathy she had for the family members, who had attended the trial.
★
In 2004, Los Angeles County had a chief defense lawyer and a top prosecutor who was each upright and devoted to making the justice system work. Public Defender Michael P. Judge (since deceased) defied pressure by others in county government by proceeding to file a demurrer in every case in which Delgadillo’s office alleged the commission of a misdemeanor.
He said of the language in the charter provision:
“It seems pretty clear to me.”
Judge noted that “based on the article that appeared in the Metropolitan News and the authorities cited” he asked his office’s Appellate Division to consider whether prosecutions by Delgadillo’s office are lawful, and related:
“They concluded there was a meritorious argument that we were obliged to bring forth on behalf of our clients.”
A memorandum of points and authorities accompanying each demurrer asserted that “the current prosecution is under the auspices of a City Attorney who has not been ‘qualified to practice in all the courts of the state…for at least five years immediately preceding his…election.’ ”
★
The Los Angeles Times on Jan. 24, 2004, reported:
“Over the last week, Los Angeles County Public Defender Michael Judge has sought to have hundreds of cases filed by Los Angeles City Atty. Rocky Delgadillo dismissed on the grounds that Delgadillo is not qualified for the job.”
That was true. The article continued:
“The argument, which judges have rejected more than 600 times in the last three days, is based on the fact that Delgadillo let his membership in the State Bar of California lapse while he worked for former Mayor Richard Riordan.”
Wrong. The judges, relying on a script prepared by the court hierarchy, did not pass on whether Delgadillo met the qualifications for office or not; that question, they held, could only be determined appropriately in an action in quo warranto, not in response to a demurrer.
Judge urged Lockyer to institute such a proceeding, but the attorney general declined. While he was willing to give the go-ahead to D’Agostino or someone else to bring such an action, the politico was not about to lead the charge.
Filing of the demurrers ceased when the point was reached that Delgadillo had been an active member (now termed “licensee”) for five years and, even if removed from office, could have been appointed by the City Council.
Another aside: Michael Judge was a guy with class. It cannot be doubted that the current public defender, Ricardo Garcia, would not have the pluck to take sort of action that Judge did. For that matter, Judge’s counterpart in the D.A.’s Office, Steve Cooley, did not expend office resources, as the current office-holder does, seeking reduced sentences for those who had been convicted.
★
No judge, to my knowledge, has embraced the argument by Delgadillo’s office that Delgadillo had been “qualified” to practice law—even while on inactive status—because he had a law degree from Columbia and passed the bar exam. Delgadillo had demonstrated his fitness to practice law by passing the bar exam (and the moral fitness review) but this does not mean he was legally qualified to practice law while on inactive status.
That he was not, is seen from provisions of the Government Code.
Sec. 6125 provides:
“No person shall practice law in California unless the person is an active licensee of the State Bar.”
Sec. 6126(a) adds: “Any person…practicing law…who is not an active licensee 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….”
And under §6127, “practicing law in any court, without being an active licensee of the State Bar” to be a contempt.
Can it sensibly be said that Torres was “qualified” to practice law in a California court during those periods when doing so would have constituted a misdemeanor and a contempt?
★
In an email of March 11, 2021, Torres sought an assurance from the City Clerk’s Office that she would be eligible to run for city attorney. She recited that “…I voluntarily went ‘inactive’ from 2/1/2016 to 1/1/2018 when was living and working in Washington, DC.”
Torres noted that “this issue has come up several times before” with respect to Delgadillo and Feuer “and, more recently, with former Attorney General Xavier Becerra.” She declared:
“The overwhelming conclusion has been that periods of ‘inactive’ status do not render one ‘unqualified’ to run for City Attorney…but obviously I thought it best to confirm.”
She was told by an email of March 17 of last year: “The City Clerk will not reject your candidate filings based on your inactive bar status and requirements of Charter Section 270.”
It is curious that there is reference by Torres and by Wolcott to the upshot of a 2018 writ proceeding aimed at disqualifying Becerra based on his years on inactive status. While the petition was denied in the Sacramento Superior Court and the Third District Court of Appeal affirmed that denial, this has no conceivable bearing on Torres’s edibility for the office of Los Angeles city attorney; it’s a red herring.
★
In the Becerra case, as well as in a failed action in the Sacramento Superior Court in 2006 challenging the eligibility of then-Oakland Mayor Jerry Brown to run for the office of attorney general, the issue was the applicability of Government Code §12503, which (as now phrased) says:
“No person shall be eligible to the office of Attorney General unless that person has been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding that person’s election or appointment to this office.”
In the opinion affirming a determination that Becerra was not barred from running, Third District Court of Appeal Presiding Justice Vance W. Raye said in his April 2, 2020 opinion in Early v. Becerra:
“Both active and inactive attorneys are members of the State Bar….The phrase ‘admitted to practice refers to the event of admission to the bar and the status of being admitted, and does not require engagement in the ‘actual’ or ‘active’ practice of law. Becerra did not cease to be ‘admitted to practice’ in California when he voluntarily changed his status to ‘inactive.’ ”
That opinion perhaps skirted broad language in the California Supreme Court’s 1937 decision in Johnson v. State Bar of California, through the drawing of distinctions not comporting with what the high court intended. It remains, however, that §12503 has now been expressly determined to provide that a person “admitted to practice” in the state for five years means a person currently licensed to practice who has been so, whether on active or voluntary inactive status, for five years.
By contrast, the charter provision does not merely require licensure by the State Bar during the entirety of the preceding five-year period—which Torres had—but the legal capacity to practice law in the courts of this state during the entirety of that period, which Torres cannot claim.
★
There’s a further possible concern as to Torres.
John Schwada, a former reporter for the Los Angeles Times and for KTTV, now with a public relations firm representing Kim—it was he who tipped me off to Torres’s inactive status—advised in an email, with respect to Torres:
“The city clerk’s office okayed her ballot designation as a ‘federal corruption prosecutor.’ Ok, she was an assistant U.S. atty until Dec. 2021. But while a search thru PACER found that Ms. Torres was assigned to about 90 separate cases between 2018 and 2021 none of those cases involved ‘corruption’ prosecutions.
“Yes, Ms. Torres prosecuted lots of drug dealers and immigrants who were caught illegally re-entering the U.S. but no corruption cases.”
On Sunday, I sought a comment from Torres. None came.
Moreover, it would appear that any such ballot designation for Torres would be misleading given that Torres is not presently a prosecutor but is in private law practice.
★
This should not be construed as an indication of an alliance with Kim, someone who, to the best of my knowledge, I have never met, or any antipathy toward Torres, other than that raised by her campaign conduct. I know virtually nothing about any of the candidates in the race for city attorney other than Kevin James, who ran for mayor in 2013 and was endorsed by this newspaper. He later served for several years as president of the Board of Public Works.
Others in the race for city attorney are Teddy Kapur, treasurer of the California Democratic Party, attorney Hydee Feldstein Soto, and civil rights attorney Faisal Gill.
Whatever Torres’s skills are, as a practical matter, the question of whether she is allowed to run for the office of city attorney is critical to the outcome. If her name appears on the June 7 ballot, it will be the only moniker that is distinctively that of a female (Hydee Feldstein Soto is also a woman but that’s not readily discernible) and her surname is Hispanic which, nowadays, creates an election edge. She would be bound to be in a run-off on that basis alone, and if her proposed ballot designation stands, it emerges as a near-certainty.
There has not been, in my view, a competent Los Angeles city attorney since Burt Pines (later a judge of the Los Angeles Superior Court, now serving in the Retired Judges Program) who held the office from 1973-81. The current contemplated six-person race warrants close scrutiny.
From what appears, it ought to be, if the unambiguous language of Los Angeles City Charter §270 is applied, a five-way race, with Torres eliminated.
Copyright 2022, Metropolitan News Company