My old boss, Tom Caso, has a very interesting post on his blog about a case before the California Supreme Court. The question in the case is, is the government required to maintain a consistent position on legal issues between different cases? That is, if the government says in one case that law X means such-and-so, is it free in a different case to say that law X means just the opposite of that? More at Appellate Law & Practice.
Now, in this particular case, we’re talking about different arms of the Executive Branch of the state government making opposing arguments more or less simultaneously. That’s different than constitutionally distinct agencies making different arguments, or different administrations making different arguments. The latter, of course, is not only common, but valid: different presidents or governors must have at least some discretion to interpret statutes differently (or, as they would say, to correct the erroneous interpretations of their predecessors). As a big fan of John Adams, the first president to unconscionably violate the freedom of the press through the Sedition Act, Tom is familiar with the Jefferson Administration’s refusal to enforce that law. And today, the Solicitor General’s authority to “confess error” exists precisely to preserve this discretion in courts. But when it comes to intramural legal interpretations, the question is harder.
One thing I’d like to see, though: if res judicata can be used against the government in this way, then the next step is to get the government labeled a vexatious litigant and barred from the courts. That would be sweet.
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