Prosecutors to Make Case Against Appointment of Capizzi as D.A.

James G. Enright and Thomas Avdeef may be calling each other names when the June 5 election for district attorney looms closer. But right now they are the office odd couple, joined in a long shot courtroom bid to knock down their primary opponent, newly appointed district attorney Michael R. Capizzi.

On Friday, the two veteran prosecutors will argue in court that the county supervisors lacked jurisdiction when they appointed Capizzi on Jan. 2 to replace Cecil Hicks, who accepted a judgeship. The two claim Enright, as chief deputy, should assume Hicks’ duties until the June 5 election determines his successor.

“They’re wrong,” Capizzi said. “They haven’t read the law correctly.”

The supervisors have always made such appointments, the same as supervisors in every other county in the state. Capizzi will fill out Hicks’ term the rest of this year. The winner of the June 5 election will take over Jan. 1, 1991.

But should Enright and Avdeef’s court challenge succeed, it would certainly cast a new look on an election that most prosecutors within the office now consider a shoo-in for Capizzi.

Capizzi, 50, is now running as the incumbent--traditionally a powerful weapon in Orange County elections--and the only candidate with big-name endorsements and big money.

Capizzi’s opponents complain that Hicks orchestrated his resignation with the supervisors before his term was up to give Capizzi an edge in the June race.

Capizzi, who was Hicks’ chief assistant, gained his mentor’s endorsement before Hicks took the bench. Capizzi also has enthusiastic backing from all five county supervisors and many wealthy Lincoln Club Republicans.

In fact, Capizzi’s lead over his opponents is deemed so huge that Enright backers say that’s why he has so far been leery about even joining the race. Capizzi’s only announced opponents in June are Avdeef and Assistant Dist. Atty. Edgar A. Freeman.

“But if the court decides that the board’s appointment of Capizzi was illegal, you can assume that Jim (Enright) will jump into the race pretty quick,” Avdeef said.

The question then would be: Who would gain the most, Enright or Avdeef?

It would mean Enright could run as, at least, “acting district attorney,” if not with the incumbent title next to his name. Privately, Enright hopes that depriving Capizzi of the incumbent title on the ballot would offset some of Capizzi’s other strengths.

But Avdeef’s campaign would gain much-needed credibility with such a courtroom upset.

Most deputies consider Avdeef a good prosecutor and like him personally. But he is viewed as something of an upstart for running for district attorney.

Avdeef is a “Grade 4” prosecutor--the same level as most veteran trial deputies. He has been prosecuting cases 10 years and was a district attorney investigator for 11 years before that. His specialty in recent years has been narcotics and major gang-related crimes. But his most highly publicized case was prosecution of Charles Rothenberg, who left his young son David burning in a Buena Park motel in 1983.

Still, there are 18 Grade 5’s in the office and a handful of supervisors above them. Most would consider themselves more qualified than Avdeef to run the office.

“It takes more to being a district attorney than just wanting the job,” said one prosecutor. “Tom should get some experience as a supervisor (within the office) first.”

But Avdeef scoffs at such criticism.

“I’m running and those other people aren’t because I’m a leader,” Avdeef said.

It was Avdeef who wrote Supervisor Thomas F. Riley claiming that any appointment to replace Hicks would be illegal--a letter that brought a sharp rebuke from Riley. The supervisor wrote to Avdeef that the prosecutor’s concern that the supervisors were either not informed or misinformed was “not appreciated.” And it was Avdeef who filed the lawsuit challenging the appointment. Enright asked to lend his name to it, which Avdeef welcomed.

Enright is viewed in a different light by many prosecutors in the office. He has been chief deputy for more than 20 years, and during most of that time, he has been in charge of the homicide panel, considered by many the premier group in the office. He is highly popular not only with the homicide deputies, but with many in the defense bar as well.

But Enright and Hicks have never been close, and since the mid-1970s it was Capizzi who ran the office for Hicks, not Enright. Three years ago, Hicks created the title of chief assistant for Capizzi so everyone would know he spoke for the boss.

Although the law still provides that Enright, as chief deputy, runs the office if Capizzi is gone, the real second-in-command now is Maury Evans, whom Capizzi placed in his old job of chief assistant.

So far Capizzi seems to view the Avdeef-Enright lawsuit as less than an annoying fly to be waved away. While Avdeef and Enright prepare for the court challenge, Capizzi has been busy padding his already prestigious list of endorsements. His political consultant, Eileen Padberg, announced last week that Capizzi has been endorsed by 25 mayors and former mayors within the county, and the 4,500-member California Narcotics Officers Assn. Padberg in the past has run successful campaigns for Hicks and Sheriff Brad Gates in their reelection bids.

Financial statements to the county registrar’s office are not due until Jan. 31. But Capizzi already has held one major fund-raiser and has another planned.

“He’s the money man, no doubt about it,” Avdeef said. “But money doesn’t always win elections.”

Enright so far has declined all comment about the race.

Capizzi declines to speculate which challenger would be helped the most if they should unseat him.

“Anybody with a sheet of paper and $150 can file a lawsuit,” Capizzi said. “It’s so ridiculous I can’t answer a question about what would happen if they win, because I can’t conceive of that happening.”

But candidate Freeman, waiting in the wings to see what happens, says Capizzi should be worried.

“It’s a viable lawsuit with merit,” Freeman said. “I think it’s going to be very interesting.” Freeman would have joined in the lawsuit if there had been more time after the supervisors’ appointment.

The Capizzi foes may consider it a good challenge, but even Avdeef in his court papers acknowledges: “There is no California case directly answering the questions posed” in the lawsuit about the supervisors’ authority to replace Hicks.

Avdeef and Enright are relying on a section of the government code that states the chief deputy will take over in the absence of the district attorney. But the county counsel’s office has pointed out to the supervisors that the Legislature never meant that could preclude the supervisors from filling the office when it became vacant. The supervisors point confidently to other language in the government code which cites their authority.

But Avdeef and Enright consider Proposition 59, passed by the voters three years ago, a boon to their cause. It clarifies that in all California counties, the office of district attorney is an elected position. But the county counsel’s office has informed the supervisors that has no bearing on their appointment power to fill an unexpired term.

The Avdeef-Enright hearing is scheduled for Friday morning before Superior Court Judge Eileen C. Moore. Although new to the bench, she is highly respected among her peers. But the final decision is expected to come from the appellate courts.