Metropolitan News-Enterprise


Thursday, January 13, 2005


Page 1


Plaintiff in Taxpayer Suit Not Entitled to Depose Attorney General, Controller—Court of Appeal


By a MetNews Staff Writer


Candace Cates, an enforcement officer for the California Division of Gambling Control will not be allowed to take the depositions of state Controller Steve Westly or Attorney General Bill Lockyer, the Fourth District Court of Appeal ruled yesterday.

A San Diego Superior Court judge abused his discretion when it denied the request for protective orders by Westly and Lockyer, Presiding Justice Judith McConnell wrote, in an opinion concurred in by Justices Joan Irion and Cynthia Aaron.

Cates filed a taxpayer’s action for injunctive and declaratory relief against Lockyer, Westly, and the Gambling Control Commission seeking to require the state to collect and account for money under 1999 compacts that require tribal casinos to pay money to the state, McConnell said.  Cates alleged that the defendants were not fulfilling their statutory duties to collect or require the tribal casinos to account for this money, he noted. 

Westly and Lockyer filed motions for summary judgment claiming their offices were not responsible for collecting or accounting for these contributions pursuant to an executive order signed by then-Gov. Gray Davis that delegated those responsibilities to the California Gambling Commission. At that point, Cates served deposition notices on Lockyer and Westly. 

The state officials requested that Cates withdraw the notices based on the general rule of law that top governmental executives are not subject to deposition, but Cates refused.  Lockyer and Westly then sought protective order to prevent the depositions, but Judge John S. Meyer denied the request citing a concern that Lockyer filed a declaration in support of the motion for summary judgment and that a subordinate who also filed a declaration had only worked in the Controller’s Office for a year and a half.

After Lockyer and Westly filed writ petitions, the Court of Appeal stayed the depositions pending a response. 

McConnell noted that the general rule is that top government officials are not subject to deposition without a compelling reason, because to allow the depositions would impede the officials’ performance of  their duties and would be contrary to the public interest.  The only exception to the rule is if the official has direct personal factual information pertaining to material issues and the information is not available from another source, McConnell wrote.

Because Cates named Lockyer and Westly in their official capacities and charged the officials with violation of statutory duties, the issues are a matter of law and not personal factual information, thus the officials fall within the general rule denying their depositions, the court held.

“The court’s concerns?discomfort with the length of time that Chief Korach has served in his present post and a belief that Controller Westly would be in a better position than Chief Korach to know the duties of the office?are speculative at best and unenlightening on the critical issue of whether the information may not be available through any other source,”  McConnell wrote.  Although the attorney general did file a declaration in the summary judgment motion, McConnell said that the declaration did not contain any facts other than the dates of Lockyer’s term,  and the failure to raise any factual issues defeated the reason for a deposition.

The court held that Judge Meyer abused his discretion when he denied the request for protective orders and issued a peremptory writ of mandate directing the superior court to vacate its September 3, 2004 ruling and enter protective orders precluding the depositions, with the parties to bear their own costs for the writ proceedings, McConnell said.

The case is Westly v. Superior Court ( Cates)  D045075.


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