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.

You Can Now Stop Drafting Those Rough Proportionality Instructions

City of Perris v. Stamper, No. S213468 (Cal. Aug. 15, 2016)

The Court of Appeal decision in this case came down more than three years ago. I wrote about it in one of my first posts. Without rehashing too much, it deals with the right to jury trial in eminent domain cases. In particular, certain valuation issues are logically dependent on whether the government can permissibly impose a dedication of land as a development condition under the U.S. Supreme Court’s Nolan/Dolan framework. The Court of Appeal held that the fact issues bound up in that determination had be be tried by a jury under article I, section 19 of the California Constitution, which affords a jury trial right as to the amount of just compensation in eminent domain proceedings.

Justice Liu, writing for a unanimous court on the issue,* thinks differently. The state constitution requires a jury trial only of fact issues that relate to the compensation. It does not require a jury for fact issues not related to compensation, or to issues of law or mixed questions of fact and law where the legal question predominates, even if they are antecedent to the valuation question. 

While the Nolan/Dolan inquiry certainly has a factual underpinning, the inquiry generally entails the application of a constitutional law framework to known facts. Because the court is scrutinizing the sufficiency government agency’s decision and its evidentiary basis, there should be little need to weigh conflicting evidence and engage in the kind of fact-finding that falls within the customary ken of a jury. Instead, the court is called upon to “decide . . . . fundamental questions about the limits of lawmaking power”—legal questions that should rest with the court. That is the case even though, literally speaking, the ultimate valuation question does, to some degree, turn on the answer to the Nolan/Dolan question. That they are “analytically prior” or “sub-issues” to the assessment of the amount of just compensation, does not bring them within the jury trial right.

Court of Appeal reversed.

*Justice Cuellar dissented on a second issue on which the court granted review—a specific and technical issue of eminent domain law called the “project effect rule.” But he concurred in the court’s resolution of the jury trial right issue.