O’Neill prosecution seems over


The case of People vs. Remy O’Neill and the Road Worriers for violation of the Malibu campaign ordinance came to a sudden halt last week when Los Angeles Superior Court Judge Richard Neidorf, sitting in Santa Monica, threw the case out of court, ruling the Statute of Limitations had run.

Either the judge was wrong on the law and made a bad decision or the contract city prosecutors, the law firm of Dapeer, Rosenblitt and Litvak, who handle criminal cases on behalf of the city, had erred in calculating the Statute of Limitations, waiting too long before filing the criminal case against O’Neill and the Road Worriers.

The attorney handling the case, William Litvak, did not respond to The Malibu Times’ several telephone requests for information or an explanation, and neither he nor his firm has issued a press release reporting the decision, which is in itself unusual in a case of high public interest.

The prosecutors must decide within 30 days of the court’s ruling, rendered July 19, whether or not they intend to appeal that ruling. Up to now, this case and the FPPC cases, both of which relate to alleged campaign violations during the 1998 City Council campaign, have been hard fought by all the parties involved, with every court ruling in the case appealed to a higher court. Observers are looking to this case to see if the city prosecution team has lost its thirst for battle since the departure of former City Attorney Christi Hogin.

The decision whether to appeal is supposedly one made by the prosecutor, irrespective of political considerations and without consultation with the City Council, either individually or collectively.

If they don’t appeal, the matter ends and the case is never heard on its merits.

Defense counsel for O’Neill and the Road Worriers, Bradley Hertz, was quoted in the press last week as saying, “We are pleased that the city’s misguided and politically motivated prosecution of O’Neill and the Road Worriers has been dismissed by the court.” To date, the prosecutors have not responded to that charge, nor issued any statement of their own, nor taken the opportunity to communicate their side with the press.

The judge decided the case based on a demurrer, a procedure in which a judge is legally required to assume all of the plaintiff’s allegations — in this case, the city’s allegations — are true. A defense based on the Statute of Limitations argues that even if everything in the complaint is true, the complaint was filed too late. Apparently, in this case the judge agreed with the defense.

It is unusual for a judge to sustain a demurrer without first giving the losing side an opportunity to correct the complaint. Although the opportunity does not always mean the complaint can be corrected, it is usual to give a party one or more opportunities to make the corrections if the party so requests.

Whether the city prosecutors have lost that fire in their belly will probably be answered when the 30 days runs out. If they file a notice of appeal, they mean to stay in the battle. If they don’t, it would appear they’ve given up.