Justices Sanction Diversion Projects on Minor Offenses

The state Supreme Court on Thursday cleared the way for cities and counties to allow defendants in minor misdemeanor cases to avoid prosecution by participating in rehabilitative and community service programs.

The court unanimously upheld a state law authorizing local pretrial misdemeanor diversion programs, ruling that a provision giving prosecutors veto power over such projects did not violate the constitutional separation of powers.

The justices rejected a 1985 ruling by a state Court of Appeal that the law improperly delegated legislative power to district attorneys, who are members of the executive branch.

The appellate decision had threatened several existing misdemeanor diversion programs throughout the state--and had forced postponement of proposed programs in Los Angeles and other cities.

Diversion programs for drug users and certain other offenders that were established under different laws were not affected by the ruling.

Proposed by Reiner

In 1984, then-City Atty. Ira Reiner proposed diverting from prosecution certain misdemeanor cases that did not involve repeat offenders, violent crimes, deadly weapons or children.

The plan was endorsed by a Los Angeles County Grand Jury, which found that it would ease the burden that nearly 350,000 misdemeanor cases filed annually placed on the justice system, while allowing officials to redirect more than $2 million a year in court resources to prosecuting more serious cases.

Attorneys for the city joined other government officials in urging the justices to overturn the Court of Appeal ruling, saying that it had forced Los Angeles to delay and consider abandoning its program.

Los Angeles City Atty. James K. Hahn welcomed Thursday’s ruling and said city and county authorities will confer soon to decide whether to go forward with a misdemeanor diversion program.

“The concept can be a good one if the guidelines are narrowly crafted,” Hahn said. But he added that he had “some reservations” about such programs after “some less than satisfactory results” in drug and family violence diversion projects.

Some defendants fail to satisfactorily complete diversion programs, and when prosecutors later decide to press charges, it is difficult to reassemble evidence and witnesses.

William H. Bartlett, an assistant district attorney who supervises a misdemeanor diversion program in Contra Costa County, said the prosecutorial controls upheld by the court were essential to such programs.

“Basically, these programs are for decent people who do dumb things,” Bartlett said. “It’s important that we have control over just what kind of offenders are allowed to participate.”

In Orange County, Assistant Dist. Atty. Edward J. Merrilees said the county already has pretrial misdemeanor diversion programs for people involved in minor domestic violence and drug cases.

Merrilees, who runs his office’s Municipal Court operations, said neither of those two programs has ever been challenged, so the county is not affected by Thursday’s ruling.

The case before the court involved a challenge to a misdemeanor diversion program in San Francisco brought by Jennifer Davis, a defendant in a prostitution and grand theft case who had been rejected for pretrial diversion.

Davis’ case was a “wobbler”--a crime that can be treated either as a felony or a misdemeanor. Because she originally was charged with a felony, Davis, under a policy followed by the San Francisco district attorney’s office, was held ineligible for the program even though a trial judge had reduced the charge to a misdemeanor.

Lawyers for Davis filed suit, contending that the law authorizing the program improperly gave prosecutors power that was legislative in nature and that the local district attorney’s policy unlawfully invaded the authority of the courts.

A state Court of Appeal in San Francisco agreed with both contentions. But the state high court on Thursday reversed the appellate decision, finding unanimously that the state law was constitutional and, by a 4-3 vote, that the local policy was lawful.

Justice John A. Arguelles, in an opinion joined by Chief Justice Malcolm M. Lucas and Justices Allen E. Broussard and David N. Eagleson, said the Legislature had not improperly expanded the kind of “quasi-legislative” authority routinely given to both the executive and judicial branches in a wide range of governmental activity.

3 Justices Dissent

But Justice Stanley Mosk, while agreeing that the state law is constitutional, said in a separate dissenting opinion that the San Francisco rule improperly interfered with a judge’s power to declare a defendant charged with a “wobbler” eligible for diversion. Justice Marcus M. Kaufman, joined by Justice Edward A. Panelli, also dissented on similar grounds.

In another case, the court let stand a decision permitting a conservator to halt life support for a man who has been in a coma five years with no chance of recovery, even though the patient had not signed a document authorizing such a step. The high court’s action came in the case of Michael Drabick III, 44, who has been in a Cupertino nursing home since 1983. Attorneys for Drabick had said that they would take the issue to federal court if the justices did not reverse the lower court decision.