It wasn't a good sign for Sacramento, Calif., attorney Stuart Somach on Wednesday when California Supreme Court Justice Joyce Kennard told him during oral arguments that he didn't have a single case to support his position.
Except, Kennard noted, one 2003 court of appeal ruling that she and some other justices seemed ready to void.
Somach, a partner with Somach Simmons & Dunn, had come to the San Francisco court to argue that staff attorneys for administrative law agencies shouldn't simultaneously serve as prosecutors in one matter while acting as advisers to the same agency in an unrelated case. Doing so, he said, violates the due process rights of parties that appear before the agencies.
"The goal here," Somach told the court, "is to have a neutral decision-maker."
The court's decision could affect attorneys within all state agencies as well as city attorneys' and county counsel's offices.
In the case before the court Wednesday, the Morongo Band of Mission Indians in 2004 sued the State Water Resources Control Board a year after the board revoked the tribe's water right license for a Southern California tributary for failing to apply the resource to a beneficial use. The Morongo Band accused the agency's five-member board of possible bias in that staff attorney Samantha Olson not only prosecuted the case against the tribe, but also advised the board in an unrelated, separate matter involving the American River. Although the tribe was not involved in the second matter, it was concerned that both cases were being handled by the same lawyer before the same board.
The tribe insisted that even if there wasn't actual bias, there was the appearance of it. After all, the tribe argued, board members could easily find favor with prosecutors who serve as their advisers in other matters.
"It is not that we don't presume decision-makers are not honest," Somach told the high court Wednesday. 'But there are certain influences that will unconsciously play out in their minds."
The state water board has argued all along that it has established an ethical wall that prevents any spillover between cases. Staff attorneys may advise on one matter but aren't even allowed ex parte communications with board members about other cases.
Sacramento County Superior Court Judge Judy Hersher sided with the tribe, citing 2003's Quintero v. City of Santa Ana, 114 Cal.App.4th, in which the 4th District Court of Appeal's Santa Ana branch set a bright-line rule that dual representation within agencies gives the improper appearance of bias and cannot be tolerated.
Sacramento's 3rd District affirmed Hersher. But no other appellate court has followed the Quintero rationale.
On Wednesday, both Kennard and Justice Marvin Baxter asked Deputy Solicitor General Gordon Burns whether the high court should void Quintero. The Sacramento-based lawyer said yes, calling it an "extremely dangerous precedent."
Board members with administrative agencies "decide [cases] on the merits, not on their relationships with employees," Burns said.
Kennard and Baxter also questioned Burns and Somach about the impact on other agencies if the lower court ruling was upheld.
Kennard noted that administrative agencies, such as the water board, likely wouldn't have enough lawyers to conduct business and that, in turn, could delay the boards' decisions.
"Many agencies, as you know," Kennard told Somach, "are under-funded and under-staffed," making it almost impossible financially to fund separate prosecutors and advisers.
Baxter noted that city attorneys' and county counsel's offices could have the same problem, especially in rural areas already facing limited resources.
"It would be very difficult for those small offices," Burns agreed.
Chief Justice Ronald George got in on the debate by telling Somach that it seemed like the water board "went to great pains here to separate out the functions." He asked Somach whether he thought the separation was simply inadequate in this particular case or in all similar situations.
"The latter," Somach said. "There is no situation where you can create sufficient separation," especially involving a single attorney. He argued that the bright-line rule set out in Quintero was the way to go. But Justice Carol Corrigan put a damper on that idea.
"Bright-line rules are terrific -- if they make sense," she said. "Does that bright-line rule [in Quintero ] make sense to you?"
A ruling in Morongo Band of Mission Indians v. State Water Resources Control Board, S155589, is due within 90 days.