Thursday, September 16, 2010
C.A.: Appointing Counsel for Local Official Exceeded Judge’s Authority
By KENNETH OFGANG, Staff Writer
An ex parte order appointing independent counsel for a county assessor involved in a dispute with his board of supervisors exceeded the trial court’s authority, the Third District Court of Appeal ruled yesterday.
A divided panel overturned an order by retired Solano Superior Court Judge R. Michael Smith, sitting on assignment in Sutter Superior Court, and sent the matter back to the trial court for further proceedings.
The justices split over the interpretation of Government Code Sec. 31000.6, which requires each county to “contract with and employ legal counsel to assist the assessor...in the performance of his of her duties” if “county counsel...would have a conflict of interest in representing the assessor.”
The section provides a procedure to be followed if the assessor asks for independent counsel, but the board finds that no conflict exists. The process allows the assessor to file an ex parte application in the superior court, which must then determine whether a conflict exists, and if so, whether creation of an “ethical wall” in the county counsel’s office would remedy the situation.
If the judge decides that an ethical wall will not suffice, the board of supervisors must “immediately employ legal counsel to assist the assessor.”
Sutter County Assessor Michael V. Strong sought independent counsel under the statute last year after the board paid nearly $600,000 to settle a refund claim by Rideout Memorial Hospital. The hospital claimed that it overpaid property taxes because Strong wrongly denied its claim that certain real property that it acquired in a merger with another hospital was exempt.
Strong criticized the settlement as having “wrongfully usurped” his constitutional powers.” Through an attorney, Dennis M. Cota, he instituted a Sec. 31000.6 proceeding after the board rejected his request for independent counsel.
The board filed a response, saying that the attack on the settlement was outside the scope of Strong’s duties, and that the court’s authority to rule on the conflict-of-interest issue did not extend to appointing counsel.
The case was assigned to be heard by Smith, who issued an order a year ago finding that Strong was acting within the scope of his duties in trying to set aside the settlement, that the county counsel had a conflict of interest, that an ethical wall would not enable the county counsel to represent Strong, and that the county was required to employ an attorney to represent the assessor in the matter.
But Justice Ronald Robie, writing for the Court of Appeal, said Smith went beyond the plain words of the statute. While the trial judge properly found that county counsel had a conflict that could not be remedied by an ethical wall, the issue of whether Strong was acting within the scope of his office, and the determination as to appointment of counsel, must be made in a mandamus proceeding, the justice said.
The ex parte procedure of Sec. 31000.6, Robie explained, is only necessary when a dispute exists as to whether there is a conflict of interest, which was not the case here.
“If, as here, the assessor and the board of supervisors disagree over whether the purpose for which the assessor seeks legal assistance is within the performance of his duties—with the assessor insisting it is and the board of supervisors insisting it is not—then a regularly noticed mandamus proceeding under Code of Civil Procedure is the appropriate proceeding,” the jurist wrote. “The plain language of section 31000.6 simply does not permit any other result.”
Burden on Assessor
The justice acknowledged that this places the burden on the assessor to commence litigation without counsel, or by hiring counsel at his own expense. But the alternative would be unfair to taxpayers, he said.
“There is no reason a county should have to fund its assessor’s litigation against its board of supervisors to establish the assessor’s right to a county-funded attorney in a matter in which, in the end, it is determined the assessor does not have a right to a county-funded attorney,” he wrote. “Further, if the Legislature had intended an ex parte proceeding under section 31000.6 to provide a vehicle for resolving a dispute over whether the purpose for which the assessor seeks legal assistance is within the scope of his duties, it could have said so.”
Presiding Justice Arthur Scotland concurred, but Justice Richard Sims III dissented.
By adopting “an unnecessarily cramped literal reading of the statute,” Sims wrote, his colleagues were creating “additional time-consuming and expensive litigation” and putting assessors in a disadvantageous position that the Legislature did not contemplate.
“I do not think expertise in statutory interpretation should be expected of an assessor who may be working without any legal advice,” Sims wrote. “Moreover, petitions seeking mandate relief are not easy to prepare – even for members of the bar....In this case, it is a mere fortuity that Strong happened upon legal counsel willing to prepare an ex parte application, appear in superior court, and pursue both an appeal and cross-appeal—all without guarantee of payment.”
Response to Dissent
Robie responded that he and Scotland “do not share the dissent’s cynicism” with respect to how supervisors would respond.
“Given the [Evidence Code Sec. 664] presumption that ‘official duty has been regularly performed’...we reasonably presume, for purposes of construing section 31000.6, that when it loses a proper proceeding under section 31000.6, an official body like a board of supervisors will regularly and promptly perform the duties imposed on it by the statute, assuming the board does not seek appellate review of the presiding judge’s decision. Thus, there is no reason to judicially insert the power to order the appointment of counsel into the statute, as the dissent would do.”
The case is Strong v. Sutter County Board of Supervisors,” 10 S.O.S. 5388.
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