ACLU Lawsuit Seeks Both S.D. Police Review Panels

The ACLU, contending that two separate police review boards would complement one another in ferreting out police misconduct, filed a lawsuit Thursday to force the city to create both review panels approved by voters in November.

City officials have said that the weaker board approved under Proposition G should be implemented because it received more votes than the tougher panel outlined by Proposition F. But, three months after San Diego voters approved both propositions, the city has implemented neither panel while awaiting the ACLU challenge.

The lawsuit is expected to clear the way for the city to establish one or both of the police review panels.

“We hope this will be a fairly prompt process,” said Betty Wheeler, legal director of the local American Civil Liberties Union. “The facts are pretty much clear, and it’s going to be a matter of the court’s application of legal principles. So I think it is something that will be decided very quickly.”

Final ballot totals showed that both proposals received a majority of “yes” votes. Proposition F’s tally was 179,102 to 155,341, and Proposition G drew 179,917, to 160,166 opposed.

Proposition G surpassed its counterpart by a mere 815 votes.

Based on those figures, the city attorney’s office determined that a review board as spelled out under Proposition G should be created and that the Proposition F board should be scrapped.

The city manager delayed creating the Proposition G board because he was told that a lawsuit challenging the city attorney’s opinion was expected.

The ACLU filed the petition on behalf of Dr. Michael J. Clark, a San Diego resident and operator of a pet hospital in Lemon Grove.

He could not be reached for comment Thursday. But Wheeler said that Clark voted in favor of both Propositions F and G and that, “like many other voters, he believes both of them should be implemented.”

Wheeler said both review boards should be created because they provide review processes that are different in scope, and that the Proposition F panel would actually complement the one under Proposition G.

She said constitutional provisions state that, when two propositions on the same ballot are in conflict, the one receiving the most affirmative votes prevails. “However, we are disputing whether there is indeed a conflict” between the two proposals, she said. “We will argue that, in fact, Propositions F and G are consistent.”

Proposition F calls for a panel appointed by the mayor and City Council. The board would have subpoena power and it could hold private hearings to gather testimony and evidence concerning citizen complaints of police misconduct.

“We believe Proposition F establishes an investigative body,” Wheeler said.

In contrast, the review group under Proposition G would be similar to the existing Civilian Advisory Panel on Police Practices, except that the police chief would not participate in selecting board members. Instead, the members would be chosen solely by the city manager.

“Proposition G essentially only changes the appointment mechanism for an already existing advisory commission,” she said.

She also pointed out that the Proposition G board would have the authority to refer its findings to another investigative body.

“It’s our view that the commission established under Proposition F is just that kind of investigative body,” she said.

The current review board, for example, often examines the same cases that are later brought before the city’s Civil Service Commission, she pointed out.

“There’s nothing to suggest that, because Proposition G passed, the Civil Service Commission can no longer hear matters involving police misconduct,” she said. “Obviously they will continue to do so. Their purposes are complementary.”

But John Kaheny, chief deputy city attorney, insisted Thursday that the two propositions are indeed conflicting. He said the most glaring proof is that Proposition G contained a “killer clause” that automatically eliminated Proposition F if both measures received a majority.

The clause stated that, “notwithstanding any other provision of the City Charter, the city manager shall have exclusive authority” to create a review board under Proposition G.

Kaheny said that clause precludes the City Council from stepping in and establishing a second review board, as would have to happen under Proposition F.

“That tells me the city manager shall have the exclusive authority to create a review board, and that the council cannot interfere with that authority,” he said.

Police Chief Bob Burgreen has declined to state his opinion in the dispute, saying instead that he will work with whichever board is created.