Judge Sets Back ACLU’s Push for Prop. F Police Panel

A Superior Court judge dealt the ACLU a setback Thursday in its effort to force the city to implement a police review board with investigative powers.

Superior Court Judge Kevin M. Midlam issued a narrow ruling against the American Civil Liberties Union, which is trying to get one of two ballot measures on police review panels put into effect. Both measures were passed by voters in November.

However, the judge expressed concern that voters were confused by the competing ballot measures. One of the measures called for a review panel with investigative powers, the other for a panel without the powers.

Method of Challenge

Midlam ruled that state law requires, in matters involving changes in city charters such as the creation of the review board, that the legal challenge be brought by the state attorney general or with his approval. The ACLU had argued that such action is not necessary in this case.

“We believe the route we’ve taken with the court is the proper one,” said Betty Wheeler, legal director for the ACLU of San Diego and Imperial counties, after the decision. “We do not believe this is a case that requires the attorney general.”

Wheeler said the group is undecided about its next step. But she said that, rather than turn to the attorney general, it is more likely that the organization will appeal Midlam’s ruling.

The ruling is a blow to the ACLU’s attempt to force the city to implement Proposition F, which would set up a police review board with the power to subpoena officers to testify in closed hearings about allegations of misconduct. A competing measure, City Council-sponsored Proposition G, sets up a review panel that has no subpoena or other investigative powers.

Both ballot proposals received majority “yes” votes in November.

A ‘Killer Clause’

Proposition F passed by a 179,102 to 155,341 vote, and Proposition G passed 179,917 to 160,166. But the city attorney ruled that, because Proposition G received more “yes” votes and contained a “killer clause” calling for its implementation should both measures pass, its board was the one that should be created.

Midlam ruled only on the narrow issue of whether the suit had to be brought by the attorney general or with his approval. He said he could not rule on the question of which or how many boards should be created unless the case is brought with the participation or approval of the attorney general.

But, in comments accompanying his ruling, he indicated that he is frustrated by the confusion voters faced in choos ing between the two propositions. Midlam rejected Wheeler’s contention that the panels could exist simultaneously.

He called the proposals poorly drafted legislation, but said that to create a second panel would “add insult to injury.”

Midlam said that, although the wording of Proposition G appeared to mean that its passage took precedence over Proposition F, nothing in the ballot arguments that accompanied the propositions made that point clear to voters. He suggested that setting aside the results and holding another election might be one way to settle the dispute.

Harry Eastus, general manager of the San Diego Police Officers Assn., said his organization welcomed the ruling, but he expects the legal challenges to continue.

“It is only Round 1, so to speak,” said Eastus, whose group has joined the city in its defense of the suit.

The suit has not stopped the city from trying to implement the weaker board required by Proposition G. The city manager’s office has narrowed a group of about 75 to 100 board applicants to fewer than 25 finalists, said George Penn, an assistant to the city manager. Penn said board members could be appointed next week and the panel could hold its first meeting in June.