City Councils Have Limited Authority to Issue Legislative Subpoenas

In Connecticut Indemnity Co. v. Superior Court of San Joaquin County, 98 Cal. Rptr. 2d 221, decided on July 24, 2000, the California Supreme Court confirmed a city council’s authority to issue legislative subpoenas with some limitations.

Groundwater in the City of Lodi was contaminated with carcinogenic substances. The City Council adopted a resolution that established a legislative proceeding to address the contamination problem. The resolution made findings regarding the existence of the groundwater contamination and noted that the City might need to adopt local ordinances to mitigate the contamination. The resolution also authorized the City to issue subpoenas requiring the attendance of witnesses and production of documents in order to investigate the contamination problem and assist the council in determining what local legislation might be appropriate.

The City then issued broad subpoenas to several insurers and businesses, seeking information about the existence, terms, and limits of liability insurance policies that might cover the cleanup of the contamination. The insurers objected to the subpoenas claiming that the City was unfairly seeking to subpoena evidence that would later be used against the insurers in lawsuits designed to clean up the groundwater. The trial court determined the City had authority to issue the subpoenas and the insurers appealed the ruling.

On appeal, the California Supreme Court noted the City, as a legislative body, can "issue subpoenas requiring the attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it." However, the Supreme Court found that such authority is limited. A legislative subpoena is proper only if it meets three requirements: (1) it is authorized by ordinance or similar enactment, (2) it serves a valid legislative purpose, and (3) the witnesses or material subpoenaed are pertinent to the subject matter of the investigation.

The insurers did not contest the first element of the three-part test – authorization to issue the subpoenas. The California Supreme Court noted the City’s resolution clearly authorized the issuance of subpoenas. The second part of the test was met since the City’s investigative purposes were legitimate. That is, the resolution was passed in order to investigate the adequacy of the existing environmental schemes and the potential methods to finance any cleanup of the contamination. The third, and final part of the test, requires that the specific inquiries covered by the subpoenas must be relevant to the subject matter of the investigation. The City’s subpoenas were relevant to the City’s interest in investigating the contamination and future cleanup. Therefore, the City’s use of the legislative subpoena process was upheld.

When considering the use of an investigative subpoena, cities should first confirm that their municipal code or other enactment authorizes the issuance of subpoenas. In addition, cities must be certain that the subpoenas serve a valid legislative purpose and the witnesses and documents subpoenaed must be pertinent to the investigation.

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