The progressive district attorney may face a recall in November
In The Association of Deputy District Attorneys for Los Angeles County v. George Gascón, as District Attorney, voters elected George Gascón as district attorney of Los Angeles County in November 2020. The next month, he adopted “Special Directives” on sentencing, sentence enhancements, and resentencing.
The special directives, which amended his predecessor’s policies, did the following:
- generally prohibited deputy district attorneys from alleging prior serious or violent felony convictions, commonly known as “strikes,” under the three strikes law or sentence enhancements;
- required deputy DAs in pending cases to move to dismiss or to seek leave to remove allegations of strikes and sentence enhancements from charging documents.
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ADDA – the certified exclusive bargaining representative for Bargaining Unit 801, comprising around 800 deputy district attorneys in the county – asked the court for a writ of mandate and a preliminary injunction to stop Gascón from enforcing the special directives.
ADDA argued that the special directives violated the following duties of a prosecutor:
- to plead and to prove prior strikes under the three strikes law;
- to exercise prosecutorial discretion in alleging and in moving to dismiss, under section 1385 of the Penal Code, prior strikes and sentence enhancements on a case-by-case basis;
- to keep prosecuting alleged strikes and sentence enhancements after a court has denied a motion to dismiss under section 1385;
- to prosecute certain allegations of special circumstances.
The trial court mostly agreed with ADDA and issued a preliminary injunction, which prevented Gascón from enforcing some aspects of the special directives. The court found that:
- ADDA had associational and public interest standing to pursue its claims against Gascón;
- ADDA was attempting to protect interests germane to its purpose of protecting its members’ working conditions, given that the directives exposed its members to court sanctions, contempt of court, and ethical violations.
The California Court of Appeal for the Second District partly affirmed and partly reversed the trial court’s order.
ADDA was seeking to protect interests germane to its purpose, the appellate court determined. Thus, it had associational standing to challenge the special directives, to try to compel the district attorney to comply with his enforceable duties under state law, and to seek relief on behalf of its members.
Gascón argued that ADDA had no authority to represent its members in disputes over managerial policies such as the special directives. Under section 3504 of the Government Code, the definition of “scope of representation” includes all matters relating to employment conditions and employer-employee relations, including wages, hours, and other terms and conditions of employment.
However, the definition excludes consideration of the merits, necessity, or organization of any service or activity provided by law or by executive order. This exception aims to show that “wages, hours and working conditions” would not include more general managerial policy decisions.
The Supreme Court has previously created a three-part test to resolve the overlap between an employer’s policy-making discretion and an employer’s action affecting its employees’ working conditions. However, the appellate court found that this test was not suitable for deciding whether ADDA had associational standing in this case.
Organizations generally recognized under the Meyers-Milias-Brown Act have standing to represent their members in litigation, the appellate court noted.
The Act does not clarify whether ADDA’s statutory scope of representation included issues arising from the district attorney’s implementation of special directives and does not limit the scope of ADDA’s associational standing, the appellate court added.
Apart from tackling the issue of associational standing, the appellate court found that the voters and the Legislature imposed on prosecutors a duty, which was enforceable via mandamus, to plead prior serious or violent felony convictions to ensure that the alternative sentencing scheme under the three strikes law would apply to repeat offenders.
This duty affirmed the voters’ and the Legislature’s authority to more severely punish certain recidivists and did not breach the separation of powers doctrine, the appellate court said.
The appellate court then concluded that the voters and the Legislature could not create a duty enforceable through the remedy of mandamus to require a prosecutor to prove allegations of prior serious or violent felony convictions.
