Thursday, March 31, 2011

Perry Mason to LA City Council: Please do not allow Trutanich to play the ACE card

Los Angeles City Councilmembers will soon be asked to vote on the Administrative Citations Program, or "ACE" as City Attorney Carmen Trutanich has been calling it, ever since Councilmember Koretz suggested a plan to improve the enforcement of building code violations.

Trutanich may have considered the passage of what seems to have become 'his' ordinance, a done deal, however, an individual who goes by the name 'Perry Mason' may have thrown a wrench in the works.

On Tuesday, March 29, the entice city council, the Mayor, Controller and the press received another email from 'Perry Mason' asking that the brakes be put on Trutanich's "ACE," - something which apparently bears little resemblance to anything Koretz had in mind.

Mason has supplied a lengthy analysis identifying what he (or she?) believes are seven major defects with the Trutanich's "ACE" which will give the City's prosecutor:

1) power to administer what is basically a justice system.
2) power to appoint his prosecutors to be judges.
3) power to instruct his judges on how to decide cases.
4) a financial stake in the outcome of cases.
5) control over the way revenue from fines, penalties and costs are disbursed.
6) Grand Jury-like powers to subpoena witnesses, document and other evidence.
7) power to deny persons forced to appear in his courts the right to a public defender.

Mason makes a compelling case of what appears to be inherent constitutional violations due to conflicts of interest, undue influence and separation of powers issues, and points out that Trutanich's medical marijuana ordinance was recently found to be unconstitutional suggesting that Trutanich's idea of figuring out what is constitutional by asking the judge, was heavily criticized as a violation of separation of powers itself, by Los Angeles Superior Court Judge Mohr.

Regardless of whether Trutanich's "ACE" is unconstitutional, few would disagree that Trutanich's actions when it comes to exercising his prosecutorial powers, should give the Council and Los Angelenos grave concerns should he succeed in gaining additional powers through his ACE program.

Rather than have the council quash Trutanich's "ACE" altogether, Mason suggests removing the City Attorney's Office from having any control over the program, and handing control to an independent body like the City Ethics Commission.

Trutanich will most likely not be pleased by the unwelcome analysis by Mason, and is probably keen to learn whether Mason, who insists on using a pseudonym for fear of retaliation, is an insider - one of his own people who have gone rouge.

If Trutanich is cut out of his "ACE" it will be a major blow to his aspirations to become DA or even be re-elected as CA. It is likely that Trutanich is becoming increasingly concerned about his political future as former supporters are keeping their distance.

Here's the full text of the Perry Mason email:

For some months now City Attorney Trutanich has been bragging about 'his ACE program' and how he will save the City of Los Angeles with his program. As obnoxious as Trutanich's bragging is, there is some truth to the argument that the ordinance proposed well over a year ago by Councilmembers Kortez and Parks could be a valuable tool in enforcing the City's municipal code without resort to the criminal courts system.

However, in the time that Trutanich has taken to write the ordinance, you might well agree that the original one-page proposal has been hijacked and tortured into eighteen pages of complicated legalese that goes far beyond anything originally envisioned, and has likely become as unconstitutional due to his efforts to inject himself into a power-play position in his "ACE."

Be assured, with a multiplicity of well-concealed legalese, Trutanich has created a program that, even if it were constitutional, is nothing short of a grab for power, influence and cash.

Much has already been written about all that is wrong with Trutanich's "ACE" - just Google the phrase "Trutanich ACE Program" to see what I mean. If Trutanich's "ACE" passes as it is currently written, much more will be written; most likely by civil libertarians as well as the courts. It is not hard to imagine the courts expressing their astonishment that the City Attorney of the nation's second largest city did not understand that his "ACE"  undermines Due Process, Separation of Powers, and Conflict of Interest by authorizing the City's chief prosecutor to:

1) Administer what is basically a justice system.
2) Select and appoint judges, I know, he calls them 'administrative hearing officers,' but they are judges and he has been bragging about how he's going to be able to make his prosecutors into judges for the ACE program, so that's what they are.
3) Instruct his judges on how to decide cases.
4) Have a financial interest in the outcome of cases.
5) Have control over the way revenue from the fines, penalties and costs are disbursed.
6) Grant himself Grand Jury-like powers to subpoena witnesses, document and other evidence, perhaps on as flimsy a suspicion as fueled Trutanich's 'criminal aspects' investigation into the Michael Jackson memorial, or his theory that the student political protesters were 'professionals.'
7) Deny people forced to appear in Trutanich's courts the right to a public defender.

Think I'm joking? Take a real close look at Trutanich's ACE, it's under Council File 10-0085 "Report from City Attorney." Here's the link:

And here's what you will find:

Points 1) 2) & 3) above are contained in Section 11.2.09 of Trutanich's ACE which gives him the power to create the system and staff it with his own judges. Section 11.2.09 in fact reads "The City Attorney shall develop written policies and procedures for the hearing and appeals process in addition to developing written policies and procedures for the selection and appointment of one or more independent Administrative Hearing Officers to hear and decide administrative citation appeals. The administrative hearing shall be conducted in accordance with the procedures promulgated by the City Attorney."

It seems highly likely that there is an inherent conflict of interest and violation of Due Process in allowing the City's prosecutor to set up a court system, staff it with prosecutor-judges, and tell them what to do.

Points 4) & 5) are contained in Section 5.121.11 of Trutanich's ACE, where the conflict of interest would seem to be even more problematic because of Trutanich's ability to control the disposition of money collected by his prosecutor-judges. Section 5.121.11(a) of Trutanich's ACE, called the "Creation and Administration of Fund" reads as follows "There is hereby created and established in the Treasury of the City of Los Angeles a special fund to be known as the Code Compliance Fund (the "Fund"). All monies collected pursuant to Chapter 1, Article 1.2, Sections 11.2.1 and following, of the Los Angeles Municipal Code shall be deposited into the Fund. The fund shall be administered by the City Attorney's Office." So it does at least appear that Trutanich has a considerable financial interest in his ACE because he has the power to disburse those funds after paying himself for the costs of running his Program. Ask yourself, how much of the money that should go to the General Fund will end up paying for Trutanich's prosecutor-judges? My guess is that there won't be much left after all Trutanich's costs are paid.

Point 6) Under Section 11.2.09(B)(6) of Trutanich's ACE, he has given himself Grand Jury-like subpoena powers. The Section allows Trutanich's prosecutor-judge to "subpoena witnesses, documents and other evidence in accordance with the policies and procedures established by the City Attorney." This power to order the production of documents, evidence that he otherwise has no power to obtain, presents a very real problem as there is virtually no limit as to what one of his prosecutor-judges can be ordered to force a resident or a corporation to disclose, provided that some obscure violation of the LAMC is alleged.

Point 7) I cannot refer you to any portion of Trutanich's ACE that deals with the provision of a public defender for persons who are forced by citation or subpoena to appear in Trutanich's kangaroo courts. That is because there is no provision in Trutanich's ACE for free legal defense representation. Only those who can afford to pay a defense attorney have that right, it's just too bad for anyone else. You might question why the Office of the Public Defender will not provide their services in Trutanich's ACE courts? The answer is that because the ACE program is essentially a civil proceeding, the Public Defenders Office cannot represent defendants there.

Despite the apparent unconstitutionality of Trutanich's ACE, he has peppered his proposed ordinance with language claiming his "ACE" to be "consistent with due process principles." However, you might recall that key portions of Trutanich's medical marijuana ordinance were recently found to be unconstitutional, suggesting that just because Trutanich says it is constitutional, does not mean that it is. That tends to be decided in real courts of law where Trutanich does not get to choose the judges, or tell them what to do.

Indeed, the Los Angeles Times recently reported on Trutanich's failure to understand why his medical marijuana ordinance was unconstitutional. Trutanich apparently had his deputy ask Los Angeles County Superior Court Judge Anthony J. Mohr  for a little guidance, a hint maybe, as to how badly they had done, and how they could fix the problem.

Judge Mohr declined to advise the City Attorney, saying the "request for guidance would violate the separation of powers between the judicial and legislative branches." It is astonishing and troubling that Trutanich would embarrass himself and our City by making such a bizarre request from a judge. I don't think Trutanich understands the role of a judge, and looking at the way he has written his "ACE" to give himself control over his judges, you might also agree.

Here's the link to the LA Times report:

Putting aside for a moment the very serious concerns all Los Angelenos should have in giving Trutanich any more power given his track record of bullying, threatening and flat out failing to grasp basic concepts of civil rights, it just doesn't seem right to put any City's Chief Prosecutor in charge of running a system of justice. That's why we have checks and balances; we don't need another McCarthy armed with J. Edgar Hoover powers.

Of course it would be highly desirable to have an alternate justice system that is separate from the traditional criminal court system which is often too busy to enforce Municipal Code violations. Even better if the fines and penalties collected by that alternate system remain in the City, rather than get taken for the most part by Sacramento. But the alternate system has to be fair and just. Letting Trutanich run that alternate system is the functional equivalent of putting the fox in charge of the hen house, and you know it.

Almost everything Trutanich has said and done since taking office screams at you that he cannot be trusted to administer his "ACE" fairly and in the interests of all Los Angelenos, even the ones that sometimes irritate us. Honorable Councilmembers, we are a tolerant and progressive society, not a third world dictatorship where thugs rule under the pretext of "doing the right thing," but it's generally what is right for them, not us.

I realize that the City could benefit in many ways by a properly administered program such as the one first envisioned by CM's Koretz and Parks, and the delay and confusion that Trutanich has caused by obscuring that original vision makes us all the more anxious to get the thing done. There is, however, still a way that this program can be made to comport with the original intent and be legal, fair and cost effective: Simply remove the City Attorney's Office from any role in the program, and place the responsibility for running the program into the hands of an independent body, much like the City Ethics Commission.

It's not such a far fetched idea, and if the program really is self-financing, what difference does it make whether the City Attorney runs it, or some other body? The costs will be recovered regardless. Bear in mind too, that the costs of having proper Administrative Hearing Officers, or judges, can be a lot less than the salary of one of Trutanich's favored deputy city attorneys. There are literally hundreds of highly qualified lawyers who would gladly volunteer their services to the City to be judges. They would gain the resume value and experience of being a judge, and the City would get the benefit of their services for a nominal cost.

Finally, I believe you should be as concerned that Trutanich appears to have taken your unquestioning support for his "ACE" for granted; not only in the remarks he makes, but also in City correspondence. I refer to what Trutanich recently said in his "Partial Response of the City Attorney's Office to the Third Financial Status Report (FSR) for FY 2010/11" which can be found under Council File 10-0600-S60 in the March 23, 2011 Report from City Attorney.

At page 2, of the report Trutanich says "Interfund transfers of City Attorney personnel from General Fund positions to newly-emerging Special Fund and Proprietary staffed positions, however, will more than offset the previous estimates for the ACE start-up and lower than expected attrition factor." 

It certainly looks like Trutanich considers your approval of his "ACE" to be a mere formality, a done deal and he is already budgeting for it. Please don't do it, there is a better way.

I respectfully write to ask you to put a stop to Trutanich's power-grab and to strip the ordinance of any powers granted to the City Attorney's Office, and instead appoint an independent body  to administer this program. In that way, the City of Los Angeles will have a constitutional, fair and effective program that cannot be abused at the whim of an overly ambitious wannabe tyrant.

Once again, I apologize for having to use a fictitious name to contact you. It is not intended to mislead you, only to protect myself from retaliation.

Respectfully yours,

Perry Mason
A pseudonym for a concerned Los Angeleno

One point Mason fails to make is that Trutanich's ACE recently got the 'Thumbs Up' from CAO Miguel Santana from the Mayor's Office. Did Santana realize exactly what he was approving, or will he change his mind after reading Mason's missive?

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