I am currently involve in a case before the California Supreme Court (representing amici) that raises this interesting issue. (The case concerns whether a charge imposed on water rights applicants is a fee or a tax under Proposition 13.)
The petitioners have located a brief filed by a different state agency in a different case that argues for a particular analysis on whether a charge is a fee or a tax. The problem is that this analysis is very different from what the state is arguing in the current case. Petitioners have lodged this contrary analysis with the Supreme Court as part of a motion for judicial notice.
The state, of course, objects to judicial notice in this instance. One of the arguments they raise is that judicial estoppel cannot apply because “Agencies of the State of California are separate legal entities and cannot bind each other in litigation.”
I find that argument troubling on a number of different levels. First, unless we are talking about different constitutionalagencies, the agencies involved are part of the Governor’s executive staff. In that instance, it is hard to understand how the agencies could be treated as separate legal entities — especially where they are all represented by the Attorney General who takes an active role in formulating the legal policy argued in the brief.
At a more fundamental level, how do we explain to the public that state agency A can make an argument to the California Supreme Court regarding interpretation of the California Constitution that is diametrically opposed to the argument being made by state agency B?
On the other hand, I suppose, we need to worry about centralizing all legal policy-making authority in the hands of the Attorney General. The Supreme Court has already ruled that as between the Governor and the Attorney General, the Governor is the final arbiter of the state’s public policy position in litigation. People ex rel. Deukmejian v. Brown, 29 Cal. 3d 150 (1981).
Perhaps we need a “Solicitory General” at the state level that can represent all executive state agencies before the State Supreme Court. The next question, however, is whether the SG would answer to the Governor or the Attorney General — and that is a whole different debate.