Scholars analyze Acosta suit

When it comes to the law, there aren’t always right answers.

The dismissal of Costa Mesa’s criminal case against student protester Benito Acosta last week left some concerned that the city got shortchanged because the merits of case weren’t decided.

Meanwhile, constitutional scholars don’t even agree on whether Judge Kelly MacEachern’s dismissal was appropriate.

“It’s plausible to me that what the judge did was correct, but I just don’t know,” said David Treiman, a professor at Whittier Law School in Costa Mesa.

In short, the city was prosecuting Acosta, who uses the name Coyotl Tezcatlipoca, for allegedly breaking city code by disrupting a Jan. 3, 2006, City Council meeting. He was charged with two misdemeanors.

But in the third day of trial — after the city lost the ability to retry Acosta on the same charges — the judge became aware that City Prosecutor Dan Peelman, a private attorney hired by the city, was never sworn in as a public prosecutor, and she threw the case out on that basis.

MacEachern held that he had to be sworn in to file the charges, while Peelman argued that the state code sections the judge and defense attorneys cited only apply to county officials — not cities.

So how do constitutional experts view the case?

To Chapman University law professor Larry Rosenthal, the city had two simple choices: either give Peelman the oath of office or classify him as a contract employee, in which case he’s not a public official and doesn’t need to be sworn in.

“It’s very well-settled under the law that attorneys are independent contractors,” Rosenthal said.

Treiman said although using private attorneys as prosecutors is “a very old, old practice, generally it’s government officials who prosecute.” That’s because prosecutors are supposed to find the truth, not try to win so they can earn a fee.

So looking at Peelman as a de facto government official, Treiman said, it’s clear that the California Constitution requires an oath of office; except — and there’s always an “except” — for “such inferior officers and employees as may be by law exempted.”

So to Treiman, whether the dismissal was correct hinges on what type of city officer or employee Peelman was, and those categories aren’t clearly defined in law, he said.

Even though the city’s criminal case is dead, the Constitution and its interpretation still matter. In this case it was the state constitution that applied, but the U.S. Constitution will be used in the pending lawsuit Acosta filed against the city to determine if Costa Mesa officials violated his civil rights.

To Treiman, a final analysis of what happened to the criminal case is bound to be inconclusive, because attorneys often can find case law to support opposing outcomes.

“The answer is ultimately what a court would say the answer is,” he said.

In this instance, the answer MacEachern gave Costa Mesa was that the city screwed up.

Rosenthal’s summation of the issue is probably closer to what some Costa Mesans are thinking, with their tax dollars spent to prosecute a case which didn’t get closure.

In a word, he called it dumb.

“I don’t know who to blame without having read all the briefs,” Rosenthal said, but “the whole thing is just kind of an example of how taxpayers’ money is wasted on hyper-technical litigation that accomplishes nothing.”

ALICIA ROBINSON may be reached at (714) 966-4626 or at [email protected].