Motion targets lawyer problem

After the courts have rejected Costa Mesa’s case against a local activist because the city’s prosecutor wasn’t properly sworn in, City Council members will consider a resolution Tuesday that would help prosecutors avoid the same problem in future cases.

The resolution would clarify that the city attorney has the right to delegate responsibilities to other lawyers after a three-judge panel upheld a lower court’s decision to throw out the criminal case against Latino activist Benito Acosta, who goes by the name Coytl Tezcatlipoca, on the grounds that she has no such power.

While City Atty. Kimberly Barlow maintains that the court was wrong in its ruling and the resolution isn’t legally necessary, she recommended the resolution because she said it would be a prudent move to avoid any future issues.

In separate decisions in September and October, the three-judge panel of Greg Prickett, Mary Fingal and Robert Moss upheld Judge Kelly MacEachern’s 2007 decision to throw out the city’s case against Acosta. Acosta was charged with misdemeanors related to a 2006 City Council meeting where he was thrown out after some say he disturbed the meeting by asking his supporters to stand in support of him as he argued that some council members were targeting Latinos by considering a proposal to train Costa Mesa police to work with federal authorities to enforce immigration laws.

MacEachern tossed the misdemeanor case against Acosta after learning that the prosecuting attorney representing Costa Mesa, Dan Peelman, had not been sworn in as a city prosecutor. Lawyers from the Jones & Mayer law firm appealed the decision twice, arguing that the city’s agreement with Barlow and the firm said that she could delegate responsibility to other attorneys.

The court disagreed arguing initially that “a city attorney cannot appoint subordinate officers or employees in the absence of a municipal ordinance or resolution conferring appointment or hiring authority,” and then in a later ruling, “the contract [with the city] designates two other members of the firm ... to serve as [city attorneys] but does not designate anyone else to exercise the powers ... ”

Tonight’s resolution is a sort of catch-all, offering this declaration: “The prosecutorial function of the city attorney has been properly legally delegated to Dan. L. Peelman and other attorneys employed by Jones & Mayer effective as of Nov. 1, 2004.”

It follows that by saying any and all attorneys of the firm performing legal services on behalf of Costa Mesa should be considered a deputy city attorney.

“It’s in order to resolve the controversy or eliminate the issue, [but] it’s not a concession” on the legal merits of the Acosta case, she said. “Given the court’s ruling, it seemed prudent to address this.”

The city is working on presenting its appeal to the state court of appeals.

JOSEPH SERNA may be reached at (714) 966-4619 or at joseph.serna@latimes.com.