State Water Resources v. Superior Court
| Decision Date | 28 March 2002 |
| Docket Number | No. C039614.,C039614. |
| Court | California Court of Appeals Court of Appeals |
| Parties | STATE WATER RESOURCES CONTROL BOARD, Petitioner, v. The SUPERIOR COURT of Yuba County, Respondent; Browns Valley Irrigation District et al., Real Parties in Interest. |
Control Board, Craig Wilson, Chief Counsel, Andrew H. Sawyer, Assistant Chief Counsel and Daniel N. Frink, Senior Staff Counsel, for Petitioner.
No appearance for Respondent.
Bartkiewicz, Kronick & Shanahan, Alan B. Lilly, Sacramento, and Ryan S. Bezerra, for Real Parties in Interest Yuba County Water Agency and Browns Valley Irrigation District.
In this water law action, the State Water Resources Control Board (the Board) seeks a writ of mandate to vacate the order of respondent superior court disqualifying the California Attorney General's Office from further representing the Board because the Attorney General also is representing the Department of Fish and Game (DF & G) in the litigation.
The disqualification order was based on Water Code section 186 (hereafter § 186), which provides in pail:
As we will explain, respondent superior court correctly held that section 186 precludes the Attorney General from simultaneously representing the Board and DF & G, another state agency, in litigation concerning affairs of the Board. However, the court incorrectly concluded that DF & G may not choose to retain separate counsel, thus avoiding the prohibited dual representation.
Hence, we shall issue a peremptory writ of mandate directing respondent superior court to vacate its order disqualifying the Attorney General from representing the Board and to reconsider the motion, taking into account whether DF & G obtains counsel to substitute for the Attorney General in the underlying superior court proceedings.
In 1991, DF & G completed a fisheries management plan for the lower Yuba River and asked the Board to conduct an administrative hearing to review and revise stream flow and temperature requirements on the river.
The Board conducted hearings in 1992 and 2000, during which DF & G was represented by Deputy Attorneys General assigned from the Sacramento office of the Attorney General's natural resources section.
In March 2001, the Board adopted its Water Right Decision No. 1644, which amends several water right permits and licenses and requires other actions to protect fish in the lower Yuba River.
The Yuba County Water Agency (YCWA) and the Browns Valley Irrigation District (Browns Valley) then commenced litigation challenging Water Right Decision No. 1644. YCWA and Browns Valley filed two petitions for writs of mandate each in the respondent superior court (the court); one of the petitions was combined with a complaint for inverse condemnation. All four of the petitions named DF & G as a real party in interest. Other parties filed three additional petitions challenging Water Right Decision No. 1644. The court ordered the seven cases consolidated.
In May 2001, YCWA and Browns Valley separately filed motions to disqualify the Attorney General from representing the Board in the consolidated cases. They argued section 186 precludes the Attorney General from representing the Board because Deputy Attorneys General had entered appearances on behalf of both the Board and DF & G. YCWA and Browns Valley also argued section 186 requires the Board's legal counsel to represent the Board in the consolidated cases.
The Board, represented by Deputy Attorneys General from the Attorney General's San Francisco Office, filed opposition to the motion. Among other things, the Board asserted that the Attorney General had advised the Board and DF & G of the potential conflicts of interest which might arise as a result of the Attorney General's representation of both agencies; that both agencies had consented to continued representation by the Attorney General; and that the "consent agreements" memorializing the agencies' agreement would be provided to the court during the hearing on the motion to disqualify. The Board further asserted that, even if section 186 disqualifies the Attorney General from simultaneously representing DF & G and the Board, it does not require disqualification "[i]f [DF & G] obtains outside counsel to represent it in these cases...."
DF & G, represented by Deputy Attorneys General from the Attorney General's Sacramento Office, also opposed the motion to disqualify the Attorney General. DF & G supported its opposition with a declaration stating that, since 1991, the deputy attorneys general from the Attorney General's Sacramento Office assigned to represent DF & G and the deputy attorneys general from the Attorney General's San Francisco office assigned to represent the Board "have not had any discussions nor exchanged or circulated any document relating to the Board's lower Yuba River adjudicatory proceedings that reflect any attorney-client or work-product materials or that would have resulted in any ex parte communications as described in section 11430.10 of the Government Code."1
During the hearing on the motion to disqualify, the court allowed the Board to file under seal a copy of the consent agreement between the Board and the Attorney General—although the court stated it would not admit the agreement into evidence and did not intend to look at it. DF & G then asked to file under seal a copy of the consent agreement between DF & G and the Attorney General, but the court did not rule on DF & G's request.
After hearing argument, the court granted the motion to disqualify the Attorney General from representing the Board. DF & G and the Board then asked the court to allow DF & G to obtain separate counsel in order to permit the Attorney General to continue to represent the Board. The court replied that it would not change the order.
The Board has challenged the court's order by filing both a notice of appeal and a petition for writ of mandate. We stayed further superior court proceedings in the consolidated cases pending filing of opposition and further order of this court. The appeal is pending in Browns Valley Irrigation Dist. v. State Water Resources Control Board, case No. C039613.
While an order disqualifying an attorney is appealable (e.g., Truck Ins. Exchange v. Fireman's Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 1052-1053, fn. 1, 8 Cal.Rptr.2d 228), the order also is subject to review by an extraordinary writ petition (Chambers v. Superior Court (1981) 121 Cal.App.3d 893, 896-897, 175 Cal.Rptr. 575). Indeed, (Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455, opn. mod. 92 Cal.App.4th 1346b, 111 Cal.Rptr.2d 842.)
Accordingly, this case is appropriate for extraordinary writ review. It also is appropriate for issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178, 203 Cal.Rptr. 626, 681 P.2d 893 (Palma); see Ng v. Superior Court (1992) 4 Cal.4th 29, 35, 13 Cal. Rptr.2d 856, 840 P.2d 961 [].) Not only is the disqualification issue resolved by application of an unambiguous statute, a delay caused by protracted consideration of the issue may cause substantial harm to YCWA and Browns Valley.2
After receiving opposition to the writ petition, we notified the parties that we were considering the issuance of a peremptory writ of mandate in the first instance. We have now received the joint supplemental opposition filed by YCWA and Browns Valley. Thus, we have complied with the procedures delineated in Palma, supra, 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.3
The Board begins by contending the order must be reversed because YCWA and Browns Valley lacked standing to seek the Attorney General's disqualification pursuant to section 186. We disagree.
In general, a party has standing to challenge governmental action if the party is adversely affected by the action. (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-797, 166 Cal.Rptr. 844, 614 P.2d 276, citing Davis, 3 Administrative Law Treatise (1958) p. 291.) "The purpose of a standing requirement is to ensure that the courts will decide only actual controversies between parties with a sufficient interest in the subject matter of the dispute to press their case with vigor." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal. Rptr. 574, 777 P.2d 610.
This court recently addressed the requirements for personal standing in the analogous context of a mandamus action brought to compel a governmental entity to comply with a statute. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 94 Cal.Rptr.2d 740 (Waste Management).) ...
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