Stirling v. Brown

January 4, 2018 by Justia

At issue in this case is the scope of the Governor’s responsibilities upon receiving an allegation brought under the California Military Whistleblower Protection Act, Military and Veterans Code section 56 (Section 56), referred by the inspector general. Major Dwight Stirling, a part-time judge advocate in the California National Guard, brought a petition for writ of mandate in the trial court to compel Governor Edmund Brown, Jr. (the Governor) to act on Stirling’s whistleblower allegation in accordance with Section 56, subdivisions (d) and (f)(1). Stirling argued that Section 56(e) required the Governor to undertake the same preliminary determination, investigation, and reporting that was required of the inspector general under Section 56, subdivisions (d) and (f)(1). The Attorney General, representing the Governor, argued Section 56(e) did not require the Governor to take any particular action on a whistleblower allegation and permitted the Governor to defer to the Chief of the National Guard Bureau, who was a federal military officer responsible for heading the federal agency that controlled the United States Army National Guard. The trial court sustained without leave to amend the Attorney General’s demurrer to Stirling’s amended petition for writ of mandate. Because the Court of Appeal was reviewing a judgment following an order sustaining a demurrer without leave to amend, its analysis was necessarily limited to the pleadings and matters of which it could take judicial notice. The Court concluded Section 56 was unambiguous, and its plain language did not require the Governor to undertake the procedures required of the inspector general in response to a whistleblower allegation. The Court of Appeal also concluded, based on the appellate record, that Section 56 did not violate California’s equal protection clause because in all cases a whistleblower allegation is referred to an impartial decision maker who has discretion whether to undertake a full investigation. View "Stirling v. Brown" on Justia Law