by statute , did in fact constitute an office. As the Rapsey Court

recognized, the "te1ms 'officer' and 'office' are paronymous, and in their

original and proper sense are to be regarded as strictly correlative." Id. at

640. "[O]ne of the prime requisites is that the office be created by the

constitution or authorized by some statute." Id. (emphasis added).

Here, there is clearly absent in any statutory reference any office of

"city prosecutor." In fact, the Judgment acknowledges that "there is no

public office of 'city prosecutor' in the City of Costa Mesa." (Judgment

at

p. 3, 11. 4-5). Thus, the Court's conclusion that there was an improper or

ineffective attempt to create an office is contrary to Supreme Comt

precedent in Ra, which clearly provides that a public office is

dependent upon the existence of a statute creating such office.

The State statutory scheme applicable to cities indicates entirely

otherwise. There are created only the following city officers: members of

the legislative body, the mayor, the city clerk, the city treasurer, the city

assessor, city judge and city coutt [sections repealed in 1951], the chief of

police, the city attorney, and board of education in fifth class cities [sections

repealed in 1955]. Cal. Govt. Code, Title 4 (Gov't. of Cities), Div. 3

10

(Officers), Parts 2 (Legislative Body) and 3 (Other Officers).2 A city is

also permitted to "appoint a city attorney." Cal. Govt. Code § 36505.

Notably, the absence of a "city prosecutor" as an officer or office of

a city is in direct contrast to the provisions of the code designating the

district attorney of the county and the fact that he is the public prosecutor

of the county. Cal. Govt. Code § 26500 . See also, Cal. Const. art. XI, §

l(b). Furthermore, Government Code Section 36900, referring to city

prosecutorial powers, specifically permits that "[t]he violation of a city

ordinance may be prosecuted by city authorities . . . ." Cal. Govt. Code

§36900 (a). This section, directly relevant to the authority of a city to

prosecute misdemeanor violations, does not designate any officer, any

employee, or any specific individual whatsoever. Instead, the Section uses

the very generic tenn "city authorities." The Judgment dismisses this term

as necessarily not including the City's prosecutor Danny L. Peelman or his

law firm "as that term is commonly understood." (Judgment at p. 3, 11. 6-

9). In doing this, the Judgment drastically alters the City's statutory

authority, consistent with Supreme Court authority, that a city has the

general ability

2 In fact, "[t]he government of a general law city is vested in: (a) A city council of at least five members . (b) A city clerk. (c) A city treasurer.(d) A chief of police. (e) A fire chief. [and] (f) Any subordinate officers or employees, provided_ by law." Cal. Govt . Code § 36501.

11

to prosecute municipal code violations , with wide discretion to determine

by whom and in what manner.

The Court's holding also fails to account for California

Government Code sections 41803.5, 41803 .7 and 41805. Section

41803.5 permits the city attorney to prosecute misdemeanors arising

out of state law with the District Attorney's consent, and gives anyone

"charged with the duty of prosecuting misdemeanor charges"the same

"powers or access to information" that the district attorney has . Section

41803 .7 gives the city attorney acting as prosecutor the power to issue

subpoenas just as the

district attorney may. Section 41805 makes clear that city attorneys or

their "partner[s] or associate[s]" may serve as defense counsel for persons

accused of crime only where the "city or cities by which [the city attorney]

is employed expressly relieve him of any and all prosecutorial

responsibilities on its or their behalf."3 Costa Mesa has not relieved its

City

3

This provision is particularly relevant to the Appellate Panel's apparentconclusion that a "contract" city attorney is somehow different from a "regular" city attorney in connection with her powers or duties. Section 41805 recognizes the long-standing and pervasive practice of cities to contract with private law firn1s for city attorney and prosecutorial services, recognizing that a city attorney may be employed by multiple cities ("The city or cities by which he is employed . . . .") and that city attorneys have partners and associates whose actions must conform to the rights and responsibilities of the city attorney ("no partner or associate of a city attorney shall be prevented from . . . ."). Cal. Gov't Code § 41805 (a)(l) and (b).

12

Attorney from prosecutorial responsibilities; it has expressly charged Jones

& Mayer with that function by contract formally adopted by the City

Council.

3. Fleming v. Hance; D ix v. Superior Court.

The Judgment also relies upon the Supreme Court opinions in

Fleming v. Hance, 153 Cal. 162, 167 (1908), and Dix v. Superior Court, 53

Cal. 3d 442 (1991), neither of which support the conclusion that a city

prosecutor must be a public officer. Fleming addressed the issues of

whether the salary of a city prosecutor was required to be paid by the city or

state. An individual's authority to act as a city prosecutor and by what

means such authority is obtained was not considered by the Fleming Court.

The Fleming opinion, then, is not authority for a proposition it did not

espouse and was not considered. In D ix, the Court referenced public

prosecutors only with respect to district attorneys. Dix, at 451 (citing Cal.

Govt. Code §§ 26500 (DA is a public prosecutor); 26501 (DA shall institute

criminal proceedings); Cal. Const., art. V, § 13 (Attorney General is "chief

law officer"; supervises every District Attorney, sheriff and other law

enforcement officers; and shall have power of District Attorney under

certain circumstances.).

Despite the limited scope of the above authorities, the Judgment

13

concludes that municipal prosecutions must be by apublic officer. The

Judgment goes on fo conclude that the City does not have authority, by

ordinance or contract, to determine what "city authorities" may prosecute

municipal code violations. It also appears to conclude that even when a

City has appointed a, City Attorney, a public officer, specially charged with

the duties to prosecute municipal code violations , that the City Attorney is

nonetheless without any power to delegate those functions to other

attorneys, whether or not employees of the City.

In fact, city prosecut ion of city municipa l codes has been found to

be a municipal affair. See Sloane v. Hammond, 81 Cal. App. 590, 598

(1927). The Court of Appeal in Sloane recognized thc_lt ccthe enforcement of

penal ordinances passed by city councils and boards of supervisors may

involve action which is for a city or for a county and not, strictly, for the

state." The Attorney General has also opined that ''[t]he prosecution of

violations of

city ordinances is a municipal affair." 20 Cal. Op. Atty. Gen. 234, 236

(1952).

B. Th e Jud gment Ignores the Statutory Au thority of Cities to

Define P r o s ecu t or ia l Dut ies and to C on t ract fo r S uch Ser v i c e s .

1. Penal Code Section 691: Definition of Prosecuting Attorn ey.

The Judgment additionally relies upon California Penal Code Section

14

691 for the conclusion that city prosecutions must be by a city officer,

emphasizing that a "prosecuting attorney" is defined as one who has the/"

legal right or duty to prosecute. However, nothing the Judgment points to

in Section 691 prohibits a city from contractually giving the legal right or

duty to a private attorney to prosecute its municipal code violations. In fact,

cities have the power, pursuant to Government Code Section 36900 , to

contractually designate what "city authorities" may prosecute its

misdemeanor violations.

As the Court of Appeal in Montgomery v. Superior Court of

Solano County, 46 Cal. App. 3d 657, 669 (1975),' recognized, Section 691

"does not purport to vest such [prosecutorial] 'right or duty' in anyone."

In fact,

the Montgomery Court specifically noted of Section 691 that "[t]he words

prosecuting attorney include any attorney, whether designated as district

attorney, city attorney, city prosecutor, prosecuting attorney, or by any

other title, having by law the right or duty to prosecute, in behalf of the

people, any charge of a public offense." Id. at 669 n. l 0 (italics in

original) (internal quotations omitted). Government Code Section 36900

pennits cities to define who may qualify as "city authorities" for purposes

of prosecuting code violations, as well as the manner in which such

designation or granting of authority is made.

15

The Legislature has given prosecutorial powers to "city authorities,"

by way of the enactment of Section 36900, and in doing so has notably not

required any election, appointment or oath as to such individuals. Section

36900 does not require that "city authorities" be officers or employees of

cities. Contrast Cal. Govt. Code § 25203 (requiring 2/3 approval of county

legal counsel). The Legislature clearly intended that cities have the

maximum discretion to define, direct and oversee the carrying out of the

general prosecutorial authority granted to it by the State. To allow the

Judgment to stand has significant and far-reaching consequences to cities'

authority to contract out for prosecutorial services and to define the .

parameters of the broad prosecutorial authority granted by Section 36900.

2. Government Code Sections 37103 and 53060: Contracts

for Special Services.

There are also other statutes which support the conclusion that cities

may contract for prosecutoria l services without the creation of an "office."

Government Code Sections 37103 and 53060 provide that a city legislative

body may contract for prosecutorial services to be provided by special

counsel. The Judgment acknowledges the existence of the 2004 contract

between Jones & Mayer and the City of Costa Mesa, but dismisses that

specific granting of prosecutorial authority by finding that no "office" of

16

city prosecutor is created by the agreement. Judgment at p. 3, 11. 9-12.

There is no basis in the law for the requirement that prosecutorial authority

may only be given by contract if an "office" of city prosecutor is thereby

created.

Instead, Montgomery specifically holds that "special counsel"

may be hired by a city to conduct prosecutorial services . Id. at 669. As

set forth above, the City here has engaged Jones & Mayer to conduct

prosecutorial services as "special counsel" and, therefore, Mr. Peelman,

as a member of Jones & Mayer, has properly exercised those rights and

duties on behalf of Jones & Mayer and pursuant to its contract with the

City for such services. Montgomery points out that when prosecutorial

duties have been given to "special counsel," then "there is no regularly

employed city officer whose duties preclude the employment of a

prosecutor pursuant to sections 37103 and 53060; his services are

'special' because no one else in the employ of the city is 'qualified' to

perform them." Id. at 669. Where, as here, Jones

& Mayer, and not exclusively the "named" city attorney, Kimberly Hall

Barlow, is charged with the City's prosecutorial duties pursuant to

contract, those duties are properly exercised by, and have been specifically

given to, any member of Jones & Mayer.

At the very least, the Judgment specifically acknowledges the legal

17

/lI

authority of the city attorney, who there is no question is a city officer, to

exercise prosecutorial duties. (Judgment at p. 2, 1. 25 -p. 3, 1. 3 (quoting

Montgomery, 46 Cal. App . 3d at 668); at p. 3, 11. 15-19 (noting that

contract designates two individuals as city attorney and assistant city

attorney, "but does not designate anyone else to exercise the powers and

perform the duties of a public prosecutorial office.").4 The Judgment,

however, concludes that the two individuals designated in the contract,

although themselves clothed with prosecutorial authority, did not have any

authority to delegate their powers. This is completely contrary to the terms

of the contract itself and governing law.

The contract specifically .requires, as pati of Jones & Mayer's

scope of work, that it "[p]erfonn all work related to advising staff on, and

prosecuting, all violations of City's municipal code." (See Attachment).

The two named individuals in the contract, then, were not required to

"delegate" any prosecutorial authority to Peelman or any other member of

4 The Attorney General has recognized that powers and duties of a city attorney are inherently included by a contract, "even though such matters were not mentioned in the purported contract." 29 Cal. Op. Atty. Gen. 362, 364 (1956). In fact, even the Trial Court in this matter recognized that city prosecutor authority may inherently be included withinthe office of the city attorney. (Reporter's Transcript, p . 438, 11. 11-15 ("by inference, the court believes that the city attorney, also, encompasses th.e city prosecutors" ).

18

Jones & Mayer. Instead, the contract clearly contemplates that Jones &

Mayer will provide such services, necessarily through any of its members.

After all, an entity can only act through its employees and authorized

agents. This is precisely what Jones & Mayer did by virtue of having one

of its members, Danny Peelman provi de prosecutorial services pursuant to

the contract.

3. Government Code Section 36505: Appointment of Subordinate

Officers and Employees

Delegation of prosecutorial services to Danny Peelman is in

compliance with the Govenunent Code; there is no statutory bar to the

delegation of prosecutorial services by either Jones & Mayer or the City

Attorney. The Appellate Division misconstrues the scope and meaning of

Govenunent Code Section 36505 to conclude that appointment or

delegation to Danny Peelman of prosecutorial services could only be done

by the City Council. (Judgment at p. 3, 1. 25 - p. 4, 1. 3).

Section 36505 relates to the City Council's authority to appoint those

officers subordinate to it, not those officers, employees or others acting

subordinate to another officer which it appoints. Inother words, Section

36505 does not prohibit appointed officers from themselves appointi ng

19

officers, employees or others subordinates to the appointed officer.5 The

cited statutory provision simply does not support the assertion that there is

no authority for an officer or employee to delegate resp onsibil ities to a

subordinate officer or employee. In fact, as noted below, this interpretation

would completely destroy the meaning of Government Code sections 1990

and 1994 as to city attorneys, which was clearly not intended in either the

text or history of Section 36505.

In addition, Section 36505 does not interfere with the City's ability

to employ "special counsel," as discussed above. Nor does Section 36505

require that the city attorney may only designate a "subordinate"to conduct

such services if an ordinance or resolution gives the city attorney

appointment or hiring authority. See Coz z oli n o v. Fontana, 136 Cal. App.

2d 608, 611 (1955) (appointments under Section 36505 not required to be

made by resolution or ordinance of city council); Staheli v. Redondo Beach,

131 Cal. App. 71, 77-78 ( 1933) (designating particular engineer duties to

consultant engineer did not create new city officer, but was "ordinary

contract by which a city engages the services of an expert").

Interpreting Section 36505 in this maIUler would effectively require the City Council to ratify the hiring decisions for hundreds of employees under the charge of the City Manager or other city officers, from pol ice officers to firefighters to secretaries. This is neither practical nor necessary.

20

Moreover, in the City Manager form of government, which is

reflected in the applicable municipal code provisions of the City of Costa

Mesa, cited herein, the City Council only has direct authority over the City

Manager and the City Attorney. The City Council does not have direct

authority over the other employees and officers of the City; the City

Manager does. See Cal. Govt. Code § 34856 ("The city manager may

appoint and dismiss the chief of police and other subordinate appointive

officers and employees except the city attorney. When the offices of city

clerk and city treasurer are made appointive, appointments to such offices

shall be made by the city council unless the city council vests such

appointing power in the city manager by ordinance."). This is entirely

appropriate in the case of city prosecutor, whose ethical obligations

transcend the interests of any "client" direction. It wou ld be

impermissible for a city prosecutor to be subject to anything other than the

dictates of fairness and justic e. See Peopl e ex rel. Cl ancy v. Sup er ior

Court of Riverside County, 39 Cal. 3d 740 (1985). The Clancy Court

recognized

that when "[o]ccupying a position analogous to a publ ic prosecutor, the

government attorney is possessed of important governmental powers that

are pledged to the accomplishment of one objective only, that of impartial

justice." Id. at 748-49 (internal omissions, additions and quotations

2 1

it

;f

I. '

j"j" omitted).·"'l

,' 4. Governmen t Code Section 1190, et seq.: Depu ties

Notwithstand ing the Appellate Division,s conclusion that the city

attorney possesses prosecutor ial authority, and even that the contract city

attorney and the contract assistant city attorney were permitted by the

agreement to exercise such power, the Court found that there was no legal

authority for the delegation of those powers by those individuals.

(Judgment, at p. 4, 11. 1-11). However, the city attorney, as an officer of the

city, has specific state statutory authority to appoint deputies.

The California Government Code provides that "[a]ll assistants,

deputies, and other subordinate officers, whose appointments are not

otherwise provided for, shall be appointed by the officer or body to whom

they are respectively subordinate." Cal. Govt. Code § 1190. An officer

may appoint any number of deputies, if there is no number specified by law.

Cal. Govt. Code § 1193. Moreover, "[w]hen not otherwise provided for,

each deputy possesses the powers and may perform the duties attached by

law to the office of his principal." Cal. Govt. Code § 1194. 6 The Judgment

6 Although adjacent Government Code sections do require a written appointment and an oath of office for deputies and other subordinate officers, the technical failure to follow any such procedures does not affect the validity of an officer,s actions, as discussed infra, under the de facto office doctrine. Even if there is no proper appointment authority and no

22

is improper in light of state law, to the extent it concludes that there is

no legal authority for the named City Attorney to delegate prosecutorial

authority.

Moreover, perhaps in part because the Court seems to have shifted

the evidentiary burden to Appellant on the issue of the prosecutor's

authority to act, the Court did not request or receive evidence concerning

the powers of the contract City Attorney's predecessor. Had the Court done

so, it would have found that the "in-house" City Attorney who preceded

Jones & Mayer and Ms. Barlow had deputies who prosecuted municipal

code violations for years before the contract for City Attorney services was

entered into with Jones & Mayer. It would also have had the opportunity to

consider California Government Code Section 1777, which explicitly

provides that: "After filing his official oath and bond, any person elected or

appointed to fill a vacancy possesses all the rights and powers and is

subject to all the liabilities, duties and obligations of the officer whose

vacancy he fills." Thus, whether one considers Jones & Mayeror Ms.

Barlow as the City Attorney, the City Attorney had exactly the same rights

of appointment

actual office, the de facto officer doctrine has been applied. See, e.g., Anderson v. Lewis, 29 Cal. App. 24, 26-27 (1915) ("The acts of a person performing assumed duties as an officer de facto ordinarily are regular and valid.").

23

of subordinates as did the in-house city attorney, including the right to

delegate duties under both the Government Code and section 1-9 of the

municipal code. In addition, any and all deputies or subordinates of Ms.

Barlow had exactly the same rights to prosecute as did she. Cal. Gov't

Code § 1194; Costa Mesa Muni. Code § 1-9.

5. City Municipal Code Sections.

In addition to State statutory authority applicable to the issues

herein, the City of Costa Mesa's Municipal Code provides sufficient

authority for Peelman to act as the City's prosecutor. The Code specifically

grants authority to the City Manager to appoint officers and employees and

grants him direct power to control enforcement of the City's ordinances.

The City Manager is specifically given by ordinance very broad "power to

see that the laws of the State of California pe1iaining to the city and all

laws and ordinances of the city are duly enforced . . . ." Costa Mesa

Municipal Code

§ 2-114. There is no evidence that the City Manager has not authorized

Jones & Mayer and/or Danny Peelman to conduct the prosecution in

question.

Costa Mesa Municipal Code section 1-97 also provides as follows:

7 A true and correct copy of this Costa Mesa Municipal Code Section is in the Attachment herein.

24

Exercise of power or duty by assistant or deputy. Whenever a power is granted to or a duty imposed upon a city officer by this Code or any other ordinance of the city, the power may be exercised or the duty performed by an assistant or a deputy of the officer or by a person authorized pursuant to law by the officer, unless this code or the ordinance expressly otherwise provides.

Thus, City Attorney Kimberly Hall Barlow did expressly have the

statutory authority to assign another lawyer employed by Jones & Mayer to

handle the prosecution matters for the City. Nothing in the City's

Municipal Code, or the contract, takes away that power. Nor is there.any

basis for concluding, as the Appellate Panel implicitly seems to have done,

that the appointment of the City Attorney as an independent contractor,

rather than as an employee of the City, in any way changed the applicability

of the City's municipal code to that Officer.

Moreover, the Court's ruling seems to have assumed that fo1mal City

Council approval is required of any hiring of a subordinate or delegation of

responsibility to a subordinate or other firm member by the City Attorney .

This assumption completely ignores both the contract provision that

declares Jones and Mayer to be an independent contractor of the City, (see

Attachment 1 herein), and the City Manager form of government, in

which the Council is responsible only for the direct appointment and

supervision

of a few selected City Officers, usually including the City Manager, the City

25

Treasurer and the City Attorney, with all subordinate officers either selected

by the Officers appointed by the Council or by the City Manager himself.

Cal. Govt. Code § 34856. See also. e.g., Costa Mesa Municipal

Code section 2-1138:

The city manager shall be the administrative head of the city government under the direction and control of the city council except as otherwise provided in this Code. He shall be responsible for the efficient administration of all the affairs of the city which are under his control. In addition to his general powers as administrative head, and not as a limitation thereon, he shall have the powers and duties set forth in sections 2-114 tlu·ough 2-128 inclusive.

The City's Code goes on to provide that the City Manager has the

power to enforce laws and ordinances of the City and the power to appoint,

remove, discipline and remove any officers and employees of the city except

the City Attorney and the City Treasurer. These duties and rights of the

City Manager would, of necessity, permit the City Manager to approve

the selection of a Jones & Mayer employee to perform city prosecutions.9

Moreover, given that the City Attorney has a statutory duty to cooperate

with and assist the City Manager in administering the affairs of the city,

8 True and conect copies of sections 2-1 13 tlu·ough 2-128 of the Costa Mesa Municipal Code are attached as Attachments herein.

9 Obviously, there has been no evidence on this issue below because there was never any reason or opportunity to introduce it. This may be another basis for reversing the appellate panl's decision and remanding the case to the trial court.

26

including enforcement of its laws,10 it would be entirely appropriate for the

prosecutorial function to be delegated by the City Attorney to a particular

individual other than the named City Attorney .11

Based upon the above authorities, City Attorney Kimberly Hall

Barlow did expressly have the contractual and statutory authority to assign

another lawyer employed by Jones & Mayer to handle the prosecution

matters for the City. Nothing in the City's Municipal Code, or the contract,

takes away that power. The Judgment misinterprets or ignores various

statutory authority as well as the provisions of the agreement between the

City and Jones & Mayer. In fact, the Judgment completely ignores both the

10 See Costa Mesa Municipal Code section 2-105: "It shall be the duty of all subordinate officers, including . . . the city attorney to cooperate with and assist the city manager in administering the affairs of the city most efficiently, economically and harmoniously so far as may be consistent with their duties as prescribed by law and the ordinances of the City." A trueand correct copy of this section is in the Attaclunents herein.

11 Itgoes without saying that the law does not demand the impossible. The City Attorney has a legal obligation to protect the due process rights of all citizens who come before the City in connection with land use decisions, constitutional rights, permit decisions , etc. In order to do so, the function of advisement and advocacy (including in a

· prosecutorial capacity) must be legally separated. Quintero v. City of Santa Ana, 108 Cal. App. 4th 81 (2003) and Nightlife Partners v. City of Beverly Hills, 114 Cal. App. 4th 810 (2003). To require that each employee of the City Attorneys Office, whether in-house or contract, be specifically approved or appointed directly by the City Council even though no statute requires this, would sharply inhibit, if not prohibit, the City Attorney's ability to exercise the mandatory functions of his or her office.

27

contract provision that declares Jones and l\fayer to be an independent

contractor of the City, and the basic functioning of a City Manager form of

government, as well as multiple applicable provisions of state statutory law,

as referenced above.

C. The Actions of the Citv's Prosecutor are Entitled to Full

Protection from Challenge in this Matter By the De Fact Officer

Doctrine.

Based on the discussion above, there was sufficient legal basis for

the actions of the City's prosecutor, whether by contract, by delegation from

Jones & Mayer or the City Attorney or by the City's general authority to

designate the manner in which "city authorities" or special counsel are

engaged for legal services. There is no legal basis , therefore, for the

Judgment to conclude that there is no "dejure " office with valid

. prosecutorial authority, by which a technically invalid, but "de facto"

appointment may be made.

A de facto officer will be found where there is the actual authority to

act and the assumption of actual duties of an office. There is no evidence

whatever that the City's prosecutor did not have authority to act and the

City, presumably, would not permit and authorize this appeal if the City's

prosecutor did not, in fact, have actul, implied or tacit approval and

authority of the City to carry out its prosecutions. See. e.g., Lesem v. Getty,

28

23 Cal. App. 2d 57, 66 (1937) ("It is enough that the office is one

provided for by law, and that the parties have the color of appointment,

assumed to

be and act as such officers, and that they are accepted and acknowledged by

the public as such to the exclusion of all others.").12

When an individual has acted, in fact, in a particular position, the

individual may be deemed a de facto officer, despite having not satisfied all

legal requirements for an office. See People v. Cradlebaugh, 24 Cal. App.

12 See also, Clark v. Manhattan Beach, 175 Cal. 637, 638-39 (1917) (election board members' ineligibility did not render their actions invalid; de facto officers even though two members did not possess all qualifications for office); In re Danford, 157 Cal. 425, 431 (1910) Uudge presiding at trial was alien and ineligible but was still de facto officer); People v. Turner, 85 Cal. 432, 432-433 (1890) (information signed by assistant district attorney, where district attorney failed to make fmmal appointment of assistant was valid as acts of de facto officer, where authority of assistant was recognized by district attorney and assistant acted with his knowledge and approval) ("He was at the time assistant district attorney de facto, if not de jure. No other person was claiming the office. He was acting under and by the directionsof the district attorney. His acts were valid . . . ."); Garrison v. McGowan, 48 Cal. 592, 599 (1874) (attorney admitted to bar in New York but not California was de facto officer of Court "and the val idity of his acts as to third persons cannot collaterally be called in question"; appearance of defendant by attorney was valid); People v. Roberts, 6 .Cal. 214, 215 (1856) (sheriff appointed by improper authority was de facto officer; even with a void appointment, "still his acts as a de facto officer were good. This principle is too old to require argument or authority."); Ensher. A lezander & Barsoom, Inc. v. Ensher, 238 Cal. App. 2d 250, 255-56 (1965) Uudge not qualified for new office by taking oath and giving bond was de facto officer because holding "judicia l place under color of title and with public acquiescence"); People v. Mellon, 40 Cal. 648, 655-56 (1871) Uudge holding court at request of county judge gave color of authority and authority cannot be inquired into collaterally).

29

i

I 489 (1914) (deputy sheriff who has not satisfied requirements of oath ofI

iIl office is a de facto officer when acting as deputy sheriff, and can thus be

convicted of assault by a public officer in violation of Cal. Penal Code §

149); Miller v. Filter, 150 Cal. App. 4th 652 (2007) (lawyer employees of

district attorneys' association who were temporarily made deputy district

attorneys without satisfying legal requirements as to oath of office are de

facto deputy district attorneys as matter of law).

As the Court of Appeal in Miller explained:

A de facto officer is "one who actually assumes and exercises the duties of a public office under color of a known and authorized appointment, but who has failed to comply with all of the requirements and conditions by law prescribed as a precedent to the performance of the duties of the office." (People v. Cradlebaugh (1914) 24 Cal. App. 489, 491 [141 P. 943] [a deputy sheriff who had been appointed by the sheriff and had taken the oath of office, but who had not filed his appointment with the county clerk, was a de facto officer].) Actions of a de facto officer exercising thefunctions of the office " ' "lawfully and with the acquiescence of the public within the scope and by the apparent authority of office [are] valid and binding as if he were the officer legally qualified for the office and in full possession of it." [Citations.]' " (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 54 [30 Cal. Rptr . 3d30, 113 P.3d 1062], quoting In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42 [37 Cal. Rptr. 74, 389 P.2d 538].)In other words, the acts of a de facto official performed under thecolor of title are valid with regard to the public, even if the official's appointment was irregular. (Ryder v. United States (1995) 515 U.S.177, 180 [132 L. Ed. 2d 136, 142, 115 S. Ct. 2031].) " 'The de factodoctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the

30

government despite technical defects in title to office.' [Citation.]" (Ibid.; see also Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 56.)

Id. at 662-663 (italics added) (omissions and additions in original).

Technical deficiencies in any required oath of office, therefore, do not

affect the validity of actions of an officer, assuming arguendo that the city

prosecutor were even determined to be'an officer subject to an oath

requirement.

Similarly, the California Supreme Court found in P eople v. Kempley,

205 Cal. 441 (1928), that a complete failure to take an oath and comp ly

with procedural requirements as to such oath, did not affect the de facto

officer status, for purposes of prosecution, of special counsel appointed by

the Attorney General. The Supreme Court found that the special counsel

did not take an oath of office, after appointment and before prosecuting the

district attorney and assistant district attorney of the county for soliciting

and accepting a bribe. Despite the requirement in then-Political Code

Section 904, requiring applicable officers to take an oath of office, the

Court rejected the argument that the special counsel was without authority

to prosecut e and held that the special counsel "actually assumed and

exercised the duties of a public officer under an authorized appointment,

and as such was at least an officer de facto." Id. at 445-446 (citing People

31

v. Turner, 85 Cal. 432 [24 Pac. 857]; People v. Sehorn, 116 Cal. 503 [48

Pac. 495]; People v. Cradlebaugh, 24 Cal. App. 489 [141 Pac. 943]).It

IMr. Peelman exercised the actual duties of the City's prosecutor in

initiating and prosecuting the underlying misdemeanor criminal complaint -

in this matter. The facts of each of the above cases did not depend upon a

written appointment, an oath actually having been taken, or the filing of an

appointment or oath. Infact, Cradlebaugh specifically indicated that one

can be a de facto officer if one "actually assumes and exercises the duties of

a public office under color of a known and authorized appointment, but who

has failed to comply with all of the requirements and conditions by law

prescribed as a precedent to the performance of the duties of the office."

Cradlebaugh, at 491. An individual failing, then, to satisfy any of the

prerequisites to an office, whether written appointment, oath or filing,

could still be a de facto officer under the rule of law in the above-referenced

authorities. IfMr. Peelman failed to satisfy any oath requirement, he is

entitled to de facto officer status if he actually exercised the duties of city

prosecutor by any form of known and authorized appointment. As in

Miller, there is no legal authority wich would require anything more than

the info1mal asking for, or approving of, Mr. Peelman to act as city

prosecutor by the City Council and/or the City Attorney. Therefore, even if

32

this Court were to find that a city prosecutor is an officer of the City, who is

I required to subscribe to some oath, Mr. Peelman's failure to do so does notfI

undermine his valid legal authority, under color of law, to maintain the

·prosecution in this matter. As quoted above, the Miller Court noted that to

find otherwise would wreak havoc in the finality of criminal prosecutions

by post hoc procedural challenges.

D. The Authority of the City's Prosecutor to Act in this Matter is

Not Properly Challenged in thi s Proceeding, Which is Onl y

Collateral to the I ssu e of Such Authority.

A defendant cannot challenge the validity of an officer's authority by

way of a collateral attack. This is well-settled law for more than 100 years.

Susanville v. Long, 144 Cal. 362, 364 (1904):The Supreme Court has long

recognized that

[t]he law provides machinery for trying the title to an office . .. . To allow every person prosecuted for the violation. of an ordinance, in the proceedings in which he is prosecuted, to question the legality of . . . title to office of its various officers, would lead to endless confusion . . . .

Furthermore, "[t]he de facto doctrine in sustaining official acts is well

established. Persons claiming to be public officers while in possession of

an offic.e, ostensibly exercising their functions lawfully and with the

acquiescence of the public, are de facto officers." Id. at 365. It is also

33

I

"established that the right of a de facto officer to an office cannot be

collaterally attacked." In re Redevelopment Plan for Bunker Hill Urban

Renewal Project lB, 61 Cal. 2d 21, 42-43 (1964).13 As the federal court

recognized, "[t]he reason for this general rule is obvious, i.e.., the

uncertainty that would otherwise cloud all official public acts . . . not only

in the particular pending case and future cases, but also in thousands of past

instances, would be of doubtful validity." Id. Moreover, "[t]he only way in

which the title to the office can be properly raised is in a direct proceeding. "

Id. Notably, in People ex rel. Chap man v. Rapsey, 16 Cal. 2d 639 (1940),

13 See also, In re Danford, 157 Cal. 425, 431 (1910) (right of judge to hold office could not be challenged "collaterally by motion to set aside his official acts"); People v. Sassovich, 29 Cal. 480, 485 (1866) (validity of judge' s authority cannot be questioned collaterally; "His title can only be questioned in an action brought directly for that purpose . . . . The acts of de facto officers must be held valid as respects the public and the rights of third persons. A contrary doctrine, for obvious reasons, would lead to most pernicious results."); County of Los Angeles v. State Water Resources Control Bd . , 143 Cal. App . 4th 985, 1000-1001 (2006) (regional board's authority to act could not be indirectly challenged in permit proceeding);Fair Political Practices Comm. v. Californians Ag:ainst Corruption, 109 Cal. App. 4th 269, 276 (2003) (FPPC officials "acted as public officials, exercising their functions with public acquiescence,""within the scope or apparent authority of the offices they purported to hold," and so "their actions were valid and binding in the face of collateral attack," even though delegation of authority improper, where FPPC ratified their actions); United States v. Nussbaum, 306 F. Supp. 66, 68-69 (N. D. Cal. 1969) (criminal conviction for violation of Selective Services Act upheld even though board member's residency requirement not met) ("the right and title of such de facto officers will be conclusively presumed unless and until they are ousted in a direct proceeding").

34

Ithe authority of a city judge was challenged in a quo warranto proceeding.

Although the above issue was raised with the Appellate Division, the

Judgment excludes any statement relating to the propriety of a criminal

defendant being permitted to collaterally challenge the authority of the

City's prosecutor to bring a criminal municipal code complaint. This

failure alone wa1Tants this Court's consideration, as this is an issue of

utmost importance to the functioning of the criminal justice system as a

whole. Ifthis type of collateral attack on city prosecutorial authority may

be brought, then cities will be subject to proving their prosecutorial

authority with every single criminal complaint.

V. CONCLUSION

For all the foregoing reasons, Appellant respectfully requests that

this Court transfer the above-referenced matter from the Appellate Division

of the Superior Court of California, in and for the County of Orange, to this

Court.

Dated: November 24, 2008 JONES & MAYER

Michael R. Capizzi Attorneys for Appellan

35

pl-

C I TY O F S O U T H Pi\ S J\ D E N A1 4 14 MISSION STREE T, SOUTH PASADENA, CA 9

1030TEL : 626.403.7200 • FAX ; 626.403.

721 1 W W W .C l.SOU TH·PASA OENA.C A. US

City Prosecutor

July 26, 2011

Mark L. and Roberta Nansen 2145 Hanscom DriveSouth Pasadena, CA 91030

Re: Notice of

Arraignment Dear Mr. and Mrs.

Nansen:

Since you are unlawfully maintaining unperm.itted construction of retaining walls; unlawful l y maintaini ng unpermitted grading; unlawfully maintain ing unperm.ilt ed construction of a swimming pool; unlawfully mai ntai ning unpermi tte<l electrical; unlawfully maintaining unpermitted plumbing; unlawfully maintaining unpermi tted construction of a canopy; unlawfully maintai ning unpcrmi tte<l construction of a covered patio; and you unlawfully violated a stop work order between March 23, 2011 and July l, 2011 at the property known as 2145 Hanscom Drive and the vacant lot adjacent to 2145 Hanscom Drive, parcel number 5308-023-008, the City has filed misdemeanor charges against you.

This is your notice to appear for arraignmen t for violating South Pasadena Municipal Code Sections 36.640.040(a), 103.1, ancl 9.2. l, as adopted by Los An geles County 80-12, and Sou th Pasadena MunJcipal Code Section 9.3, as adopted by Los Angeles County Plumbi ng Code Section 101.4.1, misdemeanors, al the Al hambra Courthou se, 150 W. Com monwealth, Alhambra, California at 8:30 a.m . on August 29, 2011. Your failure to appear at that time and place, either in person or through counsel, will resul t in the Court issu ing a wa1nnt for your arrest.

Very truly yours,

Laar Boyd -Weatl1erbyCity Prosecutor

JBW/jm Enclosurecc: Marlon Ramirez, Commu nity Improvement Coord inator

From: Desiree Jimenez <OJimenez@ci.sou th-pasadena.ca.us> To: mlnbjn@yahoo.comCc: Sally Kilby <SKilby@ci.soutll-pasadena.ca.us> Sent: Wednesday, May 1, 2013 11:14 AMSubject: Public Records Request

Good Morning Mrs. Nansen,

Attached are the Jones and Mayer contracts and amendment for the yea rs of 2007, 2010 , and 2012. Since Jamaar Boyd-Weatherby and Michael Do are employees of Jones ancl Maye r, the Council would not have appointed them under separate action. Add itional l y, the Ci ty Clerk 's Onice is u nable to locate the oath for Joan Stein Jenkins. We will send you an electronic copy once a new oath has been completed.

Desiree Jimenez. Deputy City Clerk City of Sout h Pasadena1414 Mission StreetSouth Pasad ena, CA 91 030(626) 40'.\ -7200 ext. 230www . c i . south-pasade na . c a . us

\0

Pnnt

Subject: Mr. Boyd-Weatherby's oath

From: Sally Kilby (SKilby@ci.south-

pasadena.ca.us) To: mlnbjn@yahoo.com ;

Cc: rla@jones-m ayer.com;

Date: Wednesday, April 24, 2013 4:14 PM

As I mentioned, I knew that this attorney came for his oath prior to the large group of attorneys that we administered oaths to on 8/23/12.Iwas unsure as to when that was and that is why Isuggested we look in older files. But as you know, this current notebook contains oaths going back to 2000, and so all oaths from the time you are interested in would be in this notebook. Ijust verified with City Attorney Adams that the 5/15/12 oath for Mr. Boyd-Weatherby is the one that he came to the office for prior to all the other attorneys being sworn in and that there are no other oaths for him. Iapologize for creating confusion in mentioning that he came in earlier than the rest.

Sally Kilby, City Clerk City of South Pasadena

1414 Mission Street

South Pasadena, CA 91030

Phone 626-403-7232

Cell 626-524-5564

Fax 626-403-721 1skilby@ci.south-pasadena.ca.us

http://us-mg4 .mail.yahoo.com/neo/launch?

.rand=fghkm4cc9hd2v

ti5113/2013