Ruling Upholds Power of Supervisors to Name D.A. : Election: Judge’s decision gives the advantage of incumbency in June vote to Michael R. Capizzi, who was appointed to the post.

A Superior Court judge ruled Thursday that the Board of Supervisors had complete authority to appoint Michael R. Capizzi as district attorney to replace Cecil Hicks, who accepted a judgeship.

The decision by Superior Court Judge Eileen C. Moore now moves the challenge by two prosecutors, who seek the district attorney’s job, to the 4th District Court of Appeal.

“I’m disappointed but not discouraged,” said Chief Deputy Dist. Atty. James G. Enright, one of the prosecutors who is challenging the board’s action.

Enright and Deputy Dist. Atty. Thomas Avdeef, who initiated the lawsuit against the supervisors, claim that the board had no right to appoint anyone to replace Hicks before a new district attorney is picked by voters in the June 5 election. Instead, they argued, the district attorney’s duties should simply be passed to the next-highest authority in the office. That would be Enright.

For Enright, a successful challenge would mean the right to run in June as an incumbent, or at least as acting district attorney. For Avdeef, it would mean a chance to keep that title away from Capizzi, who has already outdistanced his opponents in both major endorsements and campaign contributions.

Capizzi said Thursday that it came as no surprise that Moore ruled against the challengers.

“But it’s always pleasant to get something like this behind you,” Capizzi said.

Avdeef and Enright argued that a section of the government code, bolstered by the passage of Proposition 59 in 1986 calling for election of district attorneys statewide, denies the supervisors the authority to appoint a district attorney.

But Avdeef and Enright were also aware that their lawsuit is a long shot. County supervisors throughout California have been making such appointments for years when a vacancy occurs before an election. And the county counsel’s office has assured the supervisors that they not only had the right to replace Hicks, but the duty.

“We recognize that Judge Moore would have been going against the way things are being done,” Enright said. “We hope the court of appeal will take a look at it, though, and maybe see our side of it.”

However, Enright added, “it’s always better to win at the Superior Court level. There’s no question whoever wins there is going to have the advantage.”

Enright said that he expects Kevin McDermott, Avdeef’s attorney, to file a writ with the state appellate court immediately and ask the justices for an early hearing date.

The deadline for filing to run for district attorney is March 9. The court’s decision would effect the candidates’ titles as they are listed on the ballot. Unless Judge Moore’s ruling is overturned, for example, Capizzi would be able to run with the title “district attorney” next to his name.

Traditionally, incumbents are almost never defeated in nonpartisan races in Orange County, unless they run against a well-known figure or someone benefitting from major campaign contributions. Even most of Enright and Avdeef’s supporters say that unless the two can win their challenge, Capizzi would be unbeatable running as an incumbent. Enright, who has not yet declared his candidacy, said that he probably would not run under those conditions.