Last week, the California Senate passed a bill sponsored by Sen. Gil Cedillo (D- Los Angeles) that would vastly inflate the authority of the Los Angeles city attorney. If the Assembly passes the bill and it is signed into law by the governor, the city attorney will be empowered to ask a state judge to empanel a grand jury and issue subpoenas to investigate potential criminal activity, a power now held in California only by the state attorney general and county district attorneys.
The proposed law, introduced at the urging of Los Angeles City Atty. Carmen Trutanich, is an ill-advised end run around the right of the people of Los Angeles, through their city charter, to decide the powers and authorities of elected officials. The bill's language is convoluted. Rather than stating outright that this is a state law aimed at a single city, it instead grants new powers to the "prosecuting city attorney of any city within the County of Los Angeles having a population in excess of 3,000,000 people." Of course there is only one city that meets those criteria — Los Angeles — and the law would profoundly change the structure of power in its city government.
There is a reason city attorneys can't empanel grand juries and district attorneys can. The city attorney provides legal advice to all sectors of city government, defends the city in court on a wide range of civil matters and is on the alert to protect the city from legal liability. At the same time, some city attorneys, as in Los Angeles, prosecute criminal misdemeanors. This allows city attorneys to have a broad impact on such diverse issues as billboards, gang violence and code enforcement. But felonies are handled by the county district attorney, who is not the county government's legal advisor; that role is filled by the county counsel.
District attorneys would be lost without grand juries. They are used in complex criminal cases to determine whether there is sufficient cause to bring charges, and they allow prosecutors to call people to testify and subpoena documents to inform filing decisions. Because by law city attorneys can only file misdemeanors in California, they rarely handle the kind of complex cases that require these tools before charges are filed.
Moreover, a city attorney with a grand jury would be a potential threat to the structure of city government, as public officials must rely on the city attorney for sound judgment as their official lawyer. A city attorney with a grand jury could roam through City Hall and subpoena officials to testify in secret proceedings. Not only does this have the potential for tearing the government apart, it could also be quite costly, because public officials called to testify would probably hire their own lawyers at public expense. It also would be tempting for a city attorney to ignore the workaday but essential duties of advising the city government for the headline-grabbing work of grand jury investigation.
The proposed law is a clear end run around the city charter, the basic governing document of Los Angeles. The charter can be amended only by the city's voters. In the city's comprehensive charter reform from 1997 to 1999, the absence of this power never arose as an issue. If the mayor, the City Council and the voters of Los Angeles haven't sought to change the charter and grant this additional power to the city attorney, why is the Legislature now seeking to force it on the city?
The last time the state tried to pass a bill altering the local authority structure laid out in the charter, it didn't end well. In 2006, the courts invalidated a state law passed to give Mayor Antonio Villaraigosa partial control of L.A. schools. Judge Dzintra Janavs ruled, however, that only the city's voters could determine how the school district should be governed in the absence of an extraordinary emergency. The law that gave some of that power to the mayor of Los Angeles was ruled a violation of the rights of a charter city. The state court of appeals upheld the judge's decision.
The Legislature can override the city charter only in areas of statewide concern. If a major disaster or other calamity totally disrupted the normal structures of government, then perhaps the Legislature would carefully review the statewide impact and in an extreme case consider overriding the people's right to determine their own form of government. But one local official's case of subpoena envy hardly qualifies as such a crisis.
Any city attorney who tries to go around voters and lobby the Legislature for additional, novel and unnecessary power is exactly the wrong person to be entrusted with it. Trutanich is a textbook case of a city attorney whose actions have raised questions about how wisely he has used the power he already has.
Since his election in 2009, Trutanich has threatened city officials and private citizens with jail when they get in his way, and has abused his bail authority. One can only imagine what Trutanich would do with a secret grand jury.
There is no excuse in this case for trying to get around the voters and leaders of Los Angeles and damaging the hard-earned, locally driven, charter-based governance of Los Angeles. Mayors and council members occasionally try to test the boundaries of their formal powers, and the city attorney's often uncomfortable job is to tell them when they have overstepped. But who watches the watcher?
Raphael J. Sonenshein, chair of the division of politics, administration and justice at Cal State Fullerton, served as executive director of the Los Angeles (Appointed ) Charter Reform Commission.