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.
Cali: Consistent state agency positions…
Since the First isn’t up to anything good, theThe Opening Brief has an interesting post about whether, in California, at least, the different state agencies are required to take consistent positions. The answer to this might be quit complex and…
Very interesting post.
This is one of those questions that makes me scratch my head and say to myself, “I can’t believe this issue has never been decided before!”
Your analysis makes sense. The executive is the executive, regardless of the agency through which the executive acts. I’d be curious to see the state’s arguments.
The language of your post illustrates the difficulty the state is in here. You write that “the state” objects to judicial notice. Is that how the agency refers to itself in the papers? “The state” is, by definition, a single entity.
The first commenter raises an interesting issue in his post, too. Is an agency under a successor administration bound by the positions taken by the agency during a predecessor administration, at least in the same matter? I often read about successor agencies dropping cases (or opposition thereto) because of a shift in policy implemented by tghe new administration, but I don’t think I’ve ver read of a state agency staying in a case but changing its position in that case with a change in administration.
I’d also be curious how this principle translates into the private sector. Can one wholly-owned subsidiary of a corporation take a position contrary to a second wholly-owned subsidiary of the same parent corporation? They are clearly separate legal entities, yet they answer to the same legal “person.”
Is the government required to maintain consistent legal positions?…
My old boss, Tom Caso, has a very interesting post on his blog about a case before the California Supreme Court. The question in the case is, is the government required to maintain a consistent position on legal issues between…