Hey L.A. Mayor Garcetti, you can’t turn off people’s utilities as a punishment

September 10, 2020 | By OLIVER DUNFORD
LA Mayor Eric Garcetti

In 2017, Los Angeles Mayor Eric Garcetti unveiled a “Bill of Rights” for customers of the Los Angeles Department of Water and Power (LADWP). Back then, he professed that “reliable, affordable, and accountable service from LADWP is not a privilege—it is a right to every Angeleno who relies on our utility.”

That was then, this is now: today the mayor is threatening to terminate customers’ water and power service if they should fail to abide by his strict COVID-19 lockdown restrictions called “Safer L.A.” Los Angeles residents who fail to abide by these restrictions will face misdemeanor charges, along with potential fines and even prison sentences. Among the punishments for failing to comply is the threat of having your utilities shut off. While customers must be notified before a utility may be disconnected, they are not afforded a hearing to defend their right to uninterrupted utility services.

Sadly, this isn’t the first example of Los Angeles authorizing arbitrary power to control the citizenry. Last year, the City Council passed an ordinance authorizing the LADWP to disconnect utilities at “unlawful” commercial cannabis establishments. Like Garcetti’s COVID-related order, this ordinance authorizes the LADWP to disconnect utilities without due process. All that’s needed is written “confirmation” from a city department that an unlawful establishment is operating at a location, along with written “confirmation” from the Department of Cannabis Regulation that the establishment has not received a license to operate.

A few weeks ago, Garcetti authorized the LADWP to disconnect utility service at a house in Hollywood Hills “to stop the large parties there.” Of course, it is appropriate for the City to take action against those who violate the law. And the City has brought criminal charges against the hosts of the Hollywood Hills parties. To enforce these criminal penalties, however, the City must follow strict procedural rules and prove its case in front of a neutral judge—procedures that protect citizens against arbitrary abuses of power.

But the City ignores these protections when it comes to shutting off people’s utilities. The mayor and City Council should acquaint themselves with the real Bill of Rights.

The Supreme Court has recognized a property interest in a customer’s ability to connect with a public utility, like water, when local government protects against arbitrary termination. Therefore, when a municipal utility may not terminate utility service except “for cause,” customers have a “legitimate claim of entitlement” within the protection of the Due Process Clause.

And under that clause, one may not be deprived of a property interest without (1) notice, (2) an opportunity to be heard, and (3) a decision by a neutral judge. The mayor’s notice-only service interruption is, therefore, a gross abuse of power.

State and local laws prevent arbitrary termination of utility services. Under California’s Water Shutoff Protection Act, all water systems with at least 200 service connections—which includes LADWP—are required to have policies protecting utility customers. Under LADWP’s plan, it may not terminate residential water service for nonpayment unless a customer’s account has been delinquent for 60 days, the customer has been notified, and the customer is given an opportunity to challenge the amount billed.

LADWP offers further protections against unilateral service termination. For example, it won’t cut off service without notice—even if a customer fails to provide access for a meter reading. Indeed, because Los Angeles has declared that “the providing of essential public utilities to residential real property is necessary to the health and welfare of the occupants of residential rental property,” the City may seek criminal penalties against landlords whose nonpayment causes the interruption of their tenants’ utility services.

These protections prove that as far as California and the City of Los Angeles are concerned, utility customers have a property interest in continued services that may not be terminated without good cause.

Emergencies do not trump due process protections. The government may, of course, take action to respond to a pandemic, but it may not do so arbitrarily and unreasonably. In these situations, therefore, as one judge recently explained, “courts must remain vigilant, mindful that government claims of emergency have served in the past as excuses to curtail constitutional freedoms.”

The mayor’s order is so unreasonable that it flies in the face of a decision by all of California’s publicly owned utilities—including the LADWP—to suspend shutoffs during the COVID-19 pandemic, the LADWP’s assurances, Governor Gavin Newsom’s executive order, and the mayor’s own recent promise.

Angelenos have a due process right against the arbitrary termination of their utility services. Garcetti should rescind his abusive order immediately—if the City must enforce draconian lockdown restrictions, they should find ways to do so that respect Angelenos’ constitutional rights.