Daily Journal: Does California value public interest litigation?

May 28, 2019 | By DEBORAH LA FETRA

When a school district or a city or a state violates its citizens’ constitutional rights, we applaud when those citizens fight back. But it costs a lot to sue the government. Fortunately, they aren’t alone: Public interest law foundations and attorneys providing pro bono representation exist to help people enforce their rights in court.

Both federal and state laws encourage attorneys to take on public interest litigation by providing that, if they win, the government will pay the plaintiffs’ attorney fees. These laws are known as “private attorney general” statutes because they offer an incentive to private citizens to enforce certain constitutional and statutory rights.

From the progressive ACLU and NAACP to the individualist Pacific Legal Foundation to the conservative Becket Fund for Religious Liberty, public interest attorneys across the political spectrum represent clients free of charge to challenge illegal or unconstitutional government action. When they win, they recover fees. But what happens when they lose?

Given the cutting-edge nature of constitutional litigation, public interest litigators rarely bat a thousand. Typically, plaintiffs who lose a public interest record lick their wounds and head home, with both sides bearing the cost of their own attorney fees. Both federal and California law generally prohibit a losing public agency from seeking fees against an unsuccessful public interest plaintiff.

The matter becomes more complicated, however, when private parties intervene to support challenged laws. For example, an organization that favors charter schools may file a constitutionally grounded lawsuit to invalidate a statute that burdens those schools. Another organization that opposes charter schools may intervene to defend the law alongside the government. If the lawsuit fails, should the charter-opposing advocacy group get to recover fees from losing public interest plaintiff?

In federal court, such a defendant-intervenor would not be eligible for fees unless the original lawsuit was completely frivolous, unreasonable, and utterly lacking in foundation. And for decades, California courts seemed to follow the same rule, albeit without expressly saying so.

This has changed.

In the past few years, private advocacy groups that intervene to defend challenged laws have successfully sought hundreds of thousands of dollars in attorneys’ fees from unsuccessful public interest plaintiffs. This raises serious constitutional concerns. As detailed in my research for a report by the Goldwater Institute, “Fee Awards Turned Upside Down,” allowing prevailing private defendant-intervenors to recover fees from public interest plaintiffs subverts the purposes of the fee-shifting statutes and chills plaintiffs’ First Amendment rights to petition the courts.

Forcing unsuccessful public interest plaintiffs to pay for defendant-intervenors attorney fees inevitably dissuades citizens from suing the government and thereby providing a necessary check on government power. As often happens in the public interest world, these lawsuits may present innovative legal theories — and those theories may have to be presented in many cases over many years before gaining traction in the courts. The evolution of the law would be stopped in its tracks if public interest plaintiffs fear a financial backlash as a result of pursuing their claims.

The California courts’ recent willingness to award fees to defendant-intervenors is particularly chilling because it is not reciprocal. The California Supreme Court ruled in 2006 that advocacy groups that litigate alongside the government to defend challenged statutes may be considered “functional amici” rather than full parties. Connerly v. State Personnel Bd., 37 Cal. 4th 1169. Amici curiae are neither eligible to recover fees nor are they liable to pay them.

The bottom line, then, is that advocacy groups that a court deems to be “functional amici” need not contribute to a prevailing public interest plaintiff’s award of attorney fees. As a matter of symmetry and fairness, if advocacy groups acting as defendant-intervenors (or real parties in interest) could not be liable for fees because their role is too insubstantial, they also should not be able to obtain fees.

Ideally, the California courts should adopt the federal standard, and allow defendant-intervenors to recover fees only if the public interest plaintiff’s claims were frivolous, unreasonable, or utterly without foundation. This continues the incentive to individuals to challenge constitutionally questionable laws and conduct while discouraging vexatious litigation.

This article was originally published by DailyJournal on May 28, 2019.