Forget ‘Balance of Powers,’ Council Has the Authority

The argument that the power of (the) City Council to control all aspects of litigation is subordinate to the power of the Board (the Police Commission) to supervise, control, regulate and manage the department is not valid.

Some of the attorneys have suggested that the Charter is to the City of Los Angeles as the Constitution is to the United States, and that concepts used in federal constitutional litigation are directly applicable. That assertion is true only in a limited sense. The reality is that the structure of the government established by the City Charter is significantly different from that of the federal government and from that of the government of California. Concepts which might be applicable to litigation between agencies, officials or branches of other governments are not fully transferable to the intra-governmental dispute involved in the cases at bench.

The Constitution of the United States established a certain form of government at the national level, based on notions including federalism, representative democracy, checks and balances, and separation of powers. In theory, the principle of separation of powers requires that one branch generally cannot exercise the functions of either of the others or interfere with the exercise of powers by either of the others.

But the principle of separation of powers in its most rigid form does not apply to California’s municipalities and counties. It has long been the law of California that the Legislature can establish such governments without regard to separation of powers.

Under the Charter the City Council has more than purely “legislative” powers; its powers are also administrative and even quasi-executive. This is not an extraordinary combination in municipal law. The pattern in municipal government--rather than the exception--is that power is concentrated in the council and mayor, rather than in police commissioners.

The Charter gives the Council the power to act as it did and to instruct the City Attorney to settle (the Gates) case.

It was rational and prudent for the City Council to consider and select the option of settlement rather than that of full-bore litigation to avoid the risk of an adverse outcome on those issues, and equally rational and prudent for the Charter to give exclusive authority to do so to the City Council.

There are numerous instances in the American system in which the governmental monopoly on the lawful use of force is subject to civilian control, but unthinking repetition of the catch phrase “civilian control of the police” is not helpful. Few would quarrel with the notion that there is general merit in that slogan, but all would agree that the slogan does not furnish enough guidance to resolve these cases. Some deeper questions are: (a) What person or body among the “civilian” public will exercise “control”--an appointed body or an elected body? (b) How is control exercised--summary proceedings, symbolic gestures, and legally risky acts, or acts taken after reasonable investigation and deliberation based on established precedent? (c) What checks and balances exist--those established in the Charter as part of control of litigation, or others? (d) Is “civilian control” vitiated or strengthened by adherence to the structure of interlocking powers established by the Charter? The Charter deals with the problems of civilian control presented in the case at bench by distinguishing between control over non-litigation and litigation situations. This court’s order vindicates maximal civilian control by carrying out the structure created by the Charter--confirming authority to settle litigation in those officials directly elected by the voters of Los Angeles without impairing the power of the Board to exercise control in the areas in which the Charter gives it such power.

Some might cynically call the action of the Board or of the Council “mere politics.” That reductionism misses the point. There may well be political factors involved in these cases. If so, it is highly beneficial that the directly elected and politically sensitive organs of government make such crucial and ultimate decisions. The City Council must, of course, be fully answerable to the voters for its decision. The City Council has asserted its authority; it is now required to shoulder the corresponding responsibility.