Metropolitan News-Enterprise


Tuesday, March 7, 2017


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Taxpayer’s Suit Challenges State’s Use of Counsel Outside Attorney General’s Office


By a MetNews Staff Writer


A taxpayer has filed suit in Alameda Superior Court challenging the state agencies’ use of counsel from outside the Attorney General’s Office, saying the practice is illegal in the absence of express statutory authorization.

The action, filed Friday, names Attorney General Xavier Becerra and a dozen departments as defendants, and suggests that additional departments will be added later. Becerra’s office could not be reached for comment late yesterday.

Plaintiff Gabriel Cervantes cites Government Code sections dating back to 1933, prohibiting all but a few of the state’s agencies from employing their own lawyers. “For any state agency not exempted by Government Code section 11041, subdivision (a), the absence of a statute expressly authorizing its employment of counsel deprives it of the authority to employ legal counsel other than the Attorney General,” the complaint alleges.

A statutory provision allowing agency’s to use outside counsel for litigation, with the attorney general’s consent, does not permit the attorney general to give “blanket consent” to an agency’s employment of its own legal staff, the complaint asserts.

If the Legislature had intended to allow the defendant agencies, including the Department of Motor Vehicles and the California Highway Patrol, to employ their own lawyers, it would have granted such authority explicitly, as it has to the Department of General Services, the State Auditor’s Office, and the Department of Water Resources, the plaintiff adds.

The complaint cites a 1948 attorney general’s opinion concluding that what was then the California Department of Corrections had no authority to employ legal counsel, saying the department illegally employs “nine teams of lawyers,” citing its website. It also questions the State Board of Equalization’s employment of about 100 lawyers, at an annual cost of about $30 million, when the only statutes the board is authorized to employ its own lawyers to enforce are two sections dealing with motor vehicle fuel tax and diesel use fuel tax.

The plaintiff argues that the attorney general has breached a mandatory duty to enforce the statutory limitations on use of other counsel, and alleges that former Attorney General Kamala Harris failed to respond to the plaintiff’s request for an explanation of the “illegal practice.” The complaint requests “an injunction requiring the Attorney General to enforce the law,” mandamus relief, an injunction requiring the agencies to end the employment of their own counsel, declaratory relief, and attorney fees under the private attorney general statute.

The plaintiff is represented by Prometheus Partners L.L.P. of San Francisco.

The case is Cervantez v. Becerra, RG17848408.


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