Does section 41803 of the California Code of Civil Procedure require a city attorney to prosecute a criminal defendant?

California, United States of America


The following excerpt is from Montgomery v. Superior Court, 121 Cal.Rptr. 44, 46 Cal.App.3d 657 (Cal. App. 1975):

The Rhodes court made the unqualified statement that '(t)he responsibilities of a city attorney include, inter alia, the prosecution of persons accused of violating city ordinances.' (People v. Rhodes, Supra, 12 Cal.3d 180 at p. 182, 115 Cal.Rptr. at p. 236, 524 P.2d at p. 364.) Although the authorities it cited for the statement included section 41803 (ibid.), the court did not hold that the statute irrevocably imposed prosecutorial 'responsibilities' upon a city attorney, nor did it analyze the statute itself. As we interpret section 41803, the Rhodes statement may properly be read to the effect that the 'responsibilities' of a city include 'the prosecution of persons accused of violating city ordinances,' in a general law city, if the city council has 'required' that he discharge this function but not otherwise. (We are not here attempting to rewrite the Rhodes court's statement as quoted: we are reading it in light of our interpretation of section 41803.)

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