Stirling v. Brown
G053998
Cal. Ct. App.Jan 4, 2018Background
- Major Dwight D. Stirling, a part-time judge advocate in the California National Guard, alleged retaliation (a personnel "flag") after reporting nonattorneys practicing law and filed a whistleblower allegation under California Military Whistleblower Protection Act (Mil. & Vet. Code §56).
- Stirling submitted his allegation to the California Military Department (CMD) inspector general, but the inspector general was within Stirling’s chain of command and therefore referred the allegation to the Chief of the National Guard Bureau and the Governor under §56(e).
- The Chief of the National Guard Bureau referred the matter to the Department of the Army Inspector General, which initiated an investigation; the Governor did not perform the investigatory steps required of the state inspector general under §56(d) and (f)(1).
- Stirling petitioned for writ of mandate to compel the Governor to perform the inspector general’s investigatory duties (preliminary sufficiency determination, investigation, and report) or, alternatively, to declare §56 unconstitutional under the California equal protection clause if the Governor was not so obligated.
- The trial court sustained the Governor’s demurrer without leave to amend; the Court of Appeal affirmed, holding §56(e) does not impose investigatory duties on the Governor and that §56 does not violate equal protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §56(e) requires the Governor to perform the inspector general’s duties (preliminary evidence determination, investigation, report) when an allegation is referred | Stirling: §56(e) means the Governor steps into the inspector general’s role and must perform the procedures mandated in §56(d) and (f)(1) | Governor: §56(e) merely requires referral; it imposes no additional obligations on the Governor and permits referral to the federal Chief of the National Guard Bureau | Court: §56(e) is unambiguous and does not impose investigatory duties on the Governor; the statute only mandates referral |
| Whether reading §56(e) to impose investigatory duties on the Governor is required by statutory purpose or prevented by separation of powers | Stirling: Legislative purpose of protecting whistleblowers supports imputing duties to the Governor to ensure investigations occur | Governor: Imposing duties on Governor would conflict with separation of powers and federal/state dual-control of the Guard | Court: No need to alter plain language; implying duties would conflict with separation of powers and is unjustified when statute is unambiguous |
| Whether §56, as interpreted, violates California equal protection by treating members within the inspector general’s chain of command differently | Stirling: Members within inspector general’s chain get less protection because the inspector general must refer to Governor rather than conduct the investigation | Governor: Both groups receive referral to an impartial decisionmaker; neither is guaranteed an investigation under §56(d) | Court: No violation—both groups are similarly protected because referrals go to neutral decisionmakers who have discretion to investigate; no unequal substantive rights |
| Whether §56(d)(1)’s reference to "federal regulations governing federal inspectors general" requires full application of Army Reg. No. 20-1 seven-step IGAP by state inspector general | Stirling: That language requires the state inspector general to follow AR 20-1’s seven-step investigation process | Governor: §56(d)(1) concerns only the preliminary sufficiency determination and does not import the full seven-step AR 20-1 procedure for state inspector general | Court: §56(d)(1) pertains to preliminary determination (at most steps 1–2 of AR 20-1); full AR 20-1 process applies where the federal IG (e.g., Army IG) accepts and investigates the referral |
Key Cases Cited
- Perpich v. Department of Defense, 496 U.S. 334 (federal/state dual enlistment and Guard status)
- Holmes v. California Nat. Guard, 90 Cal.App.4th 297 (Title 32/state employment status and control)
- Knutson v. Wisconsin Air Nat. Guard, 995 F.2d 765 (dual federal/state characteristics of Guard)
- Fluor Corp. v. Superior Court, 61 Cal.4th 1175 (statutory interpretation; plain meaning rule)
- In re Rosenkrantz, 29 Cal.4th 616 (separation of powers considerations)
- Serrano v. Priest, 18 Cal.3d 728 (equal protection framework)
- In re Sealed Cases, 551 F.3d 1047 (federal recognition and organization of Army National Guard)