Judge to Rule Next Week on Challenge to Capizzi’s Appointment as County’s D.A.

The two prosecutors challenging the county supervisors’ appointment of Michael R. Capizzi as district attorney left court Friday happy that Superior Court Judge Eileen C. Moore had given them a thorough hearing. But they’ll have to wait until next week to see if their bid to thwart the Capizzi appointment succeeded.

Moore took the issue under submission after hearing arguments and said she would have her ruling ready within a week.

Chief Deputy Dist. Atty. James G. Enright and Deputy Dist. Atty. Thomas Avdeef claim that the supervisors lacked the authority to appoint Capizzi on Jan. 2 to replace Cecil Hicks, who accepted a judgeship. They contend that Enright, as second-in-command in the office, should assume the duties until a new district attorney is elected on June 5.

But the two prosecutors have no precedent in the state to back their position that changes to the government code since 1986 bar the supervisors from making pre-election appointments to fill out terms of such offices. And few lawyers in the County Courthouse give them any chance of winning.

“It’s going to take a lot of (nerve) for a judge to go against the way the system has been operating,” Enright said later. “But I think this judge has the courage to do it.”

The prosecutors are joined in the suit for different reasons. Enright would take over running the office. He acknowledged for the first time Friday that if the suit is successful, it would probably propel him into the June 5 race against Capizzi.

Avdeef, who is an announced candidate in the June race, needs to win the lawsuit to try to slow Capizzi’s campaign, which is rolling along with big-name endorsements and a flood of donations. Capizzi already has raised more than $100,000, over 10 times the amount collected by Avdeef.

Capizzi did not attend the hearing and has called the Avdeef/Enright lawsuit a “ridiculous” misinterpretation of the law.

Deputy County Counsel Stephen H. Weiss, representing the supervisors, was no less blunt at the hearing.

The challengers claim that Proposition 59, passed by the voters in 1986, calls for elected rather than appointed district attorneys. They further contend that new code sections since then provide for the orderly transfer of the district attorney’s duties to the next in line in the office--until an election is held.

“They can’t have it both ways,” Weiss countered to Judge Moore. “How can they say on one hand that the district attorney has to be elected, yet have a caretaker (Enright, as next-in-line) until then. He’s not elected. It’s illogical. It doesn’t make sense.”

But Avdeef attorney Kevin McDermott argued that the challengers’ position is in line with the spirit of the voters’ intentions in passing Proposition 59.

The board appointed Capizzi to fill the rest of Hicks’ term, which runs to the end of the year. The district attorney elected in June would take over Jan. 1.

Avdeef and Enright did not sound like underdogs in the lawsuit after leaving Moore’s courtroom.

“I feel great about it,” Avdeef said. “I think she gave us a very fair hearing.”

Whichever side wins, it won’t be Moore who makes the final decision. Both the county counsel’s office and the two challenging prosecutors have vowed to immediately take the case to the 4th District Court of Appeal should they lose.