Dibb v. County of San Diego

KENNARD, J., Concurring.

I agree with the majority that the County of San Diego acted within its authority under the state Constitution when it created the Citizens Law Enforcement Review Board (hereafter Board), and vested it with power to subpoena witnesses and documents. I also agree that the mere existence of the Board and its subpoena power does not obstruct either the county sheriff’s investigative functions or the district attorney’s investigative and prosecutorial responsibilities in violation of Government Code section 25303. And like the majority (maj. opn., ante, p. 1210), I am willing to assume, until the contrary is demonstrated, that the Board will exercise its subpoena powers in ways that avoid any such obstruction or interference.

But I would add a note of caution: because this case presents only a facial challenge to the charter amendment that created the Board, no evidence is before us showing how the Board has used its subpoena power to investigate suspected misconduct by peace officers or jail personnel, and we have not been asked to decide the legality of the Board’s use of its subpoena power in any particular situation. Therefore, our decision should not be misconstrued as evidencing lack of concern with the not inconsiderable risk of conflict between the Board’s investigations and those undertaken by the county sheriff or district attorney, particularly when those investigations are conducted simultaneously. Whether the Board’s use of its subpoena power amounts to illegal interference, for instance, with the sheriff’s investigation into allegations of personnel misconduct (Pen. Code, § 832.5) or with the possible filing of a criminal case will depend largely upon the subject under subpoena and the stage of investigation being conducted by the sheriff or the district attorney, and will necessarily be a fact-intensive determination.

With this caveat, I join the majority opinion.