The Law Is Not Evidence.

Contractors’ State Licensing Bd. v. Superior Court,  No. A153684 (D1d1 May 9, 2018)

An electrical contractor is in a disciplinary proceeding with Contractors’ State License Board. That’s before an ALJ. But Contractor sued the Board in superior court for declaratory relief, seeking definition of some terms as used in the Labor Code. Contractor noticed the depo of the head of the Board, contending that he could be questioned about the Board’s working definitions of those terms. The Board moved to quash, arguing that the testimony was irrelevant and, in any event, Contractor was seeking an inappropriate apex deposition of a government official. The superior court denied the motion. But the Board took a writ. 

Generally, the heads of government agencies are not subject to deposition in their official capacities. There are, of course, exceptions. The principal one is when the official is a percipient witness with factual information that can’t be gleaned through other sources. That, quite clearly, isn’t satisfied when a party wants to ask the official what he thinks the law means. What an agency head—or anyone else for that matter—thinks the law means is not evidence.

Just like you don’t establish legislative history by deposing individual legislators, you don’t establish regulatory history or administrative construction by deposing agency officials. As the court explains here, Contractor “is not permitted to ask agency officials how they personally interpret statutes administered by the Board, since their personal views are irrelevant to the purely legal issue of statutory construction.”

Writ granted.

Indeed, the same point—that various individuals’ beliefs about what a law means is not evidence—applies equally to party witnesses and experts. Viz., getting the defendant’s PMQ to admit in a depo that he thinks the law is red when the statute says it is green does not make the law any redder than it is. And just because some law professor or revolving-door government type will be happy to take your client’s money to sign an “expert” declaration attesting to what his professorship thinks the law means, that does not make his testimony admissible or relevant to anything. So try and resist the urge, however hard it might be, even when the other side does it. That’s what amicus briefs are for.