Frequently Searched

Fee Awards Turned Upside Down

A Threat to Public-Interest Litigation

March 26, 2019

Deborah J. La Fetra



In the past 50 years, public-interest litigation has achieved exalted stature in American law. We laud the brave souls who challenge unconstitutional or otherwise illegal government action, often at great personal cost, to protect fundamental rights or effect social change. Even when such litigation is unsuccessful, it may change the nature of public debate or prompt legislative correction.2 Both federal and state law encourage public-interest litigation by allowing successful plaintiffs to recover their attorney fees from defendant governments that are held to violate constitutional or other rights. Unfortunately, California courts have recently begun awarding fees against unsuccessful plaintiffs in public-interest lawsuits—a trend that threatens to deter such litigation, contrary to the public interest.

This article addresses public-interest fee-shifting statutes in both California law and its federal counterparts. Part I describes the nature of public-interest litigation and the advocacy groups that engage in it. Part II explains why the California Legislature and Congress depart from the “American Rule” whereby parties pay their own fees,3 to permit prevailing parties to recover their fees in public-interest cases.4 Although phrased to permit recovery to “parties” generally, these statutes exist to encourage public- interest plaintiffs to challenge governmental actions that infringe upon constitutional and other rights. Plaintiffs, intervenors aligned with plaintiffs, and other intervenors who could have brought their own lawsuit, and are thus deemed “functional plaintiffs”  all stand to recover fees when they prevail in public- interest litigation.

Part III examines the legal and policy reasons why most courts treat defendants and defendant-intervenors differently when it comes to public-interest fee-shifting statutes. The fee-shifting statutes themselves do not permit governmental defendants to recover fees from plaintiffs in public-interest lawsuits, so the critical issue arises in the context of private intervenors aligned with governmental defendants to defeat the constitutional and other claims of public- interest plaintiffs. As shown below, allowing prevailing defendant-intervenors to recover fees from private plaintiffs subverts the purposes of the fee-shifting statutes and chills plaintiffs’ First Amendment rights to petition the courts. Moreover, in California, defendant-intervenors may be deemed “functional amici” and thus immune from paying fees to a prevailing public-interest plaintiff. This is unfair. Parties who cannot be liable for fees also should not be able to recover them. Finally, the award of fees to defendant-intervenors encourages the government to outsource the defense of laws to outside advocacy groups, creating conflicts between the groups’ ideological goals and the public interest that the government is expected to pursue in court. The article concludes that California courts should adopt the rule established by the federal courts for analogous statutes: Prevailing defendant-intervenors may recover attorney fees from an unsuccessful public-interest plaintiff only when the plaintiff’s lawsuit is found to have been frivolous, unreasonable, or without foundation.

I. Public-Interest Litigation

Public-interest litigants across the political spectrum pursue their ideological goals in court. In such cases, a private plaintiff or group of private plaintiffs (frequently using the class action procedure)5 sue the government for failure to comply with constitutional mandates or statutory requirements.6 Because of the very nature of their claims, which resonate beyond their individual circumstances, public-interest litigation often draws intervenors.7 Usually, intervenors align with private plaintiffs against a public entity defendant.8 Occasionally, intervenors align with a public entity plaintiff against a public entity defendant.9 Plaintiff-intervenors may recover fees under both federal and state “private attorney general” fee-shifting statutes when the intervenors show that their contribution was necessary and important.10

Fee-seeking intervenors who align with public entity defendants, however, present greater concerns, particularly in California. As explained below, under federal law, defendant-intervenors can recover fees against public-interest plaintiffs only under the most narrow circumstances: when the lawsuit was frivolous, unreasonable, or without foundation at the time it was filed.11 California appellate courts have not yet determined when defendant-intervenors are entitled to recover fees from a public-interest plaintiff under California Code of Civil Procedure § 1021.5. The appellate courts’ silence has emboldened trial courts to make such awards, a new development in public- interest litigation. For example:

Charter School Facilities. Adopted in 2000, Proposition 39 requires school districts to provide facilities to charter schools within the districts under certain circumstances.12 The California School Boards Association, a nonprofit private organization,13 sued the California State Board of Education to invalidate regulations implementing Proposition 39. The trial court granted intervention to the California Charter Schools Association, a private advocacy organization that promotes the interests of charter schools statewide, and which was aligned with the defendant State. After extensive litigation resulted in a published decision upholding the regulations,14 the defendant-intervenor Charter Schools Association sought fees from the plaintiff School Boards Association. The trial court awarded $46,250.15 There was no appeal.

Ballot Access Initiative. Six individual activists who promoted ballot access for new and minor parties and independent candidates sued California elections officials to overturn Proposition 14, the “top two law” that permits only the candidates who received the first and second highest vote totals in the primary to run in the subsequent general election.16 As a practical matter, this means that the general election often features two candidates from the same party. Although the California Attorney General’s office defended the law on behalf of the election officials, the initiative’s sponsors17 moved to intervene to share in the law’s defense. The trial court upheld the law and the Court of Appeal affirmed.18 The plaintiffs chose not to petition the California Supreme Court for review and undoubtedly thought the litigation was over. However, the defendant-intervenors moved for attorney fees. Over plaintiffs’ objections, the Superior Court awarded nearly $245,000.19 There was no appeal.

Inclusive Housing Ordinance. The city of San Jose adopted an inclusive housing ordinance in response to the lack of affordable housing in the area. The ordinance requires residential developers to set aside a certain percentage of new units to sell at below-market rates, or to pay an in-lieu fee. The California Building Industry Association (CBIA), a private trade association representing businesses throughout the homebuilding and development sector, sued the city on behalf of its members, arguing that the ordinance violated the takings clauses of the state and federal Constitutions.20 Although the city committed to defending the ordinance, and even hired outside counsel to that end,21 several affordable housing advocacy groups sought to intervene in defense of the law.22 Over CBIA’s objection, the trial court granted intervention. The trial court agreed with CBIA’s claims and enjoined the ordinance, but the Court of Appeal reversed and the California Supreme Court ultimately upheld the law.23 The U.S. Supreme Court denied CBIA’s petition for a writ of certiorari.24 The defendant-intervenors subsequently moved for attorney fees against CBIA, which the trial court awarded to them in an amount of over $826,000.25 CBIA appealed, then settled.

In all three cases, private public-interest plaintiffs sued public agency defendants and objected to the intervention of private advocacy groups that, for the most part, duplicated the state’s efforts to defend the challenged laws. When the plaintiffs filed their lawsuits against the government, they bore no risk of paying attorney fees in the event that they were  unsuccessful, because California’s state fee-shifting statute explicitly forbids recovery by a public agency against a private plaintiff.26 And until these very recent cases, plaintiffs had no reason to expect that the introduction of defendant-intervenors into the lawsuit changed that calculus.27 However, the recent trend of courts allowing private intervenors to participate as defendants in these cases, and then to recover an award of fees, poses a real threat to public-interest litigation in California. If defendant-intervenors are able to establish the right to attorney fees under Section 1021.5 for assisting in the defense of a public- interest plaintiff’s unsuccessful constitutional suit, it will have a profound chilling effect on public-interest legal organizations’ ability to retain clients willing to accept the risk of loser-pays.28 This inverts the purpose of section 1021.5 and presents significant First Amendment problems.

II. The Purpose of Fee-shifting in Public-Interest Litigation

The primary public-interest litigation fee-shifting statute in California is Code of Civil Procedure Section 1021.5. It provides for an award of “substantial” attorney fees to attorneys who work in the public interest in order to ensure that there are lawyers willing do so.29 Under Section 1021.5, a court “may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest.” A fee award to a successful plaintiff is appropriate where the lawsuit “has resulted in the enforcement of an important right affecting the public interest,” has conferred “a significant benefit, whether pecuniary or nonpecuniary…on the general public or a large class of persons,” and where “the necessity and financial burden of private enforcement are such as to make the award appropriate.”30  The need for private enforcement is key both for state and federal fee-shifting statutes.31 The California Legislature and Congress both recognized that the private enforcement of civil rights is the only mechanism for ensuring constitutional protections when state agencies decline to enforce them.32 As the California Supreme Court explained:

The [private attorney general] doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce . . . important public policies will as a practical matter frequently be infeasible.

Prevailing private defendants in public-interest litigation may be entitled to recover fees under Section 1021.5, but the statute explicitly forbids fee awards in favor of public entity defendants.34 California’s appellate courts have not yet decided whether an intervenor, siding with a public defendant, may recover private attorney general fees if it aids in the defeat of a public-interest lawsuit.35 Given the general proposition that intervenors step into the shoes of the party they support,36 and Section 1021.5’s express prohibition of the public defendant obtaining fees, the answer should be no. Under federal law interpreting 42 U.S.C. § 1988 and other public-interest fee-shifting statutes,37 the answer is not a categorical no, but the bar is very high: A prevailing defendant-intervenor must prove that the plaintiff’s lawsuit was frivolous, unreasonable, or without foundation.38

Encouraged by the fee-award incentive, public-interest litigation thrives in California, with advocates across the political spectrum pursuing their goals in court.39 The CBIA case, described above, is an example of associations with competing ideologies and goals repeatedly facing off in court. Who are these litigants? Founded in 1943, the California Building Industry Association is a statewide trade association representing thousands of member companies including homebuilders, trade contractors, architects, engineers, designers, suppliers, and industry professionals in the homebuilding, multifamily, and mixed-use development markets. It supports policies that bolster the construction industry and challenges laws that adversely affect the new construction and homebuilding sector. The group lobbies and, when necessary, challenges enacted legislation in court. As is the nature of such public-interest litigation, sometimes CBIA prevails, successfully invalidating unlawful legislation and government policies,40 and sometimes CBIA loses, and the legislation stands.41

The defendant-intervenors in the CBIA case included the Affordable Housing Network of Santa Clara County, California Coalition for Rural Housing, Housing California, and San Diego Housing Federation, organizations that advocate for policies that promote the development of affordable housing for moderate-, low-, and very low-income families, both locally and statewide.  Other defendant-intervenors were trade organizations of nonprofit affordable housing developers (Non-Profit Housing Association of Northern California and Southern California Association of Nonprofit Housing) that described themselves as the “intended beneficiaries” of San Jose’s inclusionary zoning ordinance.42 When they litigate as plaintiffs, these housing advocacy groups and their usual counsel (The Public Interest Law Project, The Law Foundation of Silicon Valley, and others) have a similar record to that of CBIA in court: They win some; they lose some.43

Even though success if far from guaranteed, civil rights statutes and corresponding fee-shifting provisions are meant to encourage such litigation, creating an incentive for plaintiffs to challenge government action and, often, the status quo. Regardless of the ultimate outcome in public-interest litigation, civil rights statutes and private attorney general fee-shifts reflect the benefits to the public from the courts’ consideration and interpretation of the law in response to lawsuits challenging government actions.

A. Section 1021.5 Is Meant to Encourage Public-Interest Lawsuits, Not Punish Them

The purpose of Section 1021.5 is to reward attorneys who successfully prosecute cases in the public interest and thereby “prevent worthy claimants from being silenced or stifled because of a lack of legal resources.”44 Section 1021.5 authorizes fees for “any action which has resulted in the enforcement of an important right affecting the public interest.”45 The enforcement of an important right affecting the public interest implies that “those on whom attorney fees are imposed have acted, or failed to act, in such a way as to violate or compromise that right, thereby requiring its enforcement through litigation.”46 That is, “the party against whom such fees are awarded must have done or failed to do something, in good faith or not, that compromised public rights.”47 The usual circumstance is one “where private attorney general fees are sought from a party ‘at least partly responsible for the policy or practice that gave rise to the litigation.’”48

In unsuccessful public-interest cases, in which the court rules in favor of defendants and aligned defendant-intervenors to uphold the challenged governmental action, the plaintiffs from whom defendant-intervenors may seek fees have no role whatsoever in causing the potential violation of constitutional or statutory rights.49 And the same is true for the defendant-intervenors themselves. Fee-shifting statutes like Section 1021.5 “encourag[e] victims to make the wrongdoers pay at law—assuring that the incentive to such suits will not be reduced by the prospect of attorneys’ fees that consume the recovery.”50 For this reason, courts most often decline to assess fees against defendant-intervenors, as they have worked no legal wrong against the plaintiffs. In this regard, the defendant-intervenors (at least those who have suffered no injury and could not have filed their own case as plaintiffs) share a trait with the public-interest plaintiff. In the CBIA case, for example, the public-interest groups on both sides of the case (CBIA and the housing advocacy groups) had no ability whatsoever to enact or enforce affordable housing laws. All these organizations were simply pursuing their vision of the public interest through litigation.51 Only the city of San Jose had any role in enacting and enforcing the ordinance challenged in the lawsuit, and it is therefore the only party in the case against whom any other party should have be able to obtain attorney fees under Section 1021.5.

B. Fees Awarded to Plaintiff-Intervenors and “Functional Plaintiffs” Present Less Concern than Fees Awarded to Defendant-Intervenors

Although Section 1021.5 does not prohibit an award of fees to intervenors generally, the far more typical award is to plaintiff-intervenors.52 Defendant-intervenors, on the other hand, should have a very steep hill to climb. In addition to the chilling effect of such awards, when a private party litigates on the same side as the government, “significant questions arise as to whether its private participation was needed given the public entity’s parallel advocacy.”53 The private party may recover fees only upon “a significant showing that its participation was material to the result, i.e., that it proffered significant factual and legal theories, and produced substantial material evidence, and that these contributions were not merely duplicative of or cumulative to what was advanced by the governmental agency.”54

Analogous federal cases55 deciding whether to award fees to defendant-intervenors under 42 U.S.C. § 1988 support this approach, particularly Christiansburg Garment Co. v. EEOC, which held that defendants and defendant-intervenors may receive fees only if the plaintiff’s action was “frivolous, unreasonable, or without foundation.”56 The federal cases explain that the purpose of a private attorney general fee-shifting statute is “not advanced by an award of attorney’s fees under prevailing plaintiff standards to a defendant-intervenor, who, like the other defendants in the case, opposed the plaintiffs’ attempt to assert their federal constitutional rights.”57 The Third Circuit Court of Appeals found it would be “unprecedented” to force an unsuccessful plaintiff to pay even 25 percent of the fees awarded to defendant-intervenors.58

Only defendant-intervenors who, as a practical matter, act in the manner of plaintiffs may be entitled to fees.59 As “functional plaintiffs,” defendant-intervenors who assert their own constitutional claims, and who would have standing to bring their own lawsuit,60 are treated the same as plaintiffs under Christiansburg Garment: They are entitled to fees if they prevail, and they are protected from any payment of fees if they do not, unless their complaint in intervention was frivolous, unreasonable, or without foundation.61

The application of Christiansburg Garment to defendant-intervenors who acted as functional plaintiffs found early purchase in a New York district court case. In Kirkland v. New York State Department of Correctional Services,62 minority corrections officers challenged the constitutionality of the state’s civil service examination for promotion to Correction Sergeant, alleging it discriminated on the basis of race.63 The officers prevailed after a trial, but the court deferred a decision on the remedy. At that stage of the proceedings, nonminority provisional sergeants who would have received permanent positions but for the prior order of the court successfully moved to intervene aligned with the defendants, alleging that the proposed remedial plan would violate their own constitutional rights.64 The court ultimately upheld the remedial decree, and then the plaintiffs requested fees from the defendant-intervenors.65 The court held that the purpose of the Civil Rights Act (including its fee-shifting provision) was to encourage plaintiffs to bring constitutional claims to court. Because the defendant-intervenors were “functionally plaintiffs” who brought claims alleging violation of their own constitutional rights, the court reasoned, they should be protected the same as plaintiffs would be from being forced to pay fees without a finding of frivolous or meritless action.66

The Seventh Circuit Court of Appeals applied the same “functional plaintiff” principle in King v. State Board of Elections,67 a redistricting case. In 1990, when the Illinois Legislature failed to redraw congressional districts following the census, plaintiffs sued the state to have the existing district map declared unconstitutional.68 African American and Hispanic individuals and advocacy groups intervened to protect their interests under the Voting Rights Act, and served as the primary opposition to the plaintiffs. The state remained a passive spectator.69 Ultimately, the court issued an order containing a new redistricting plan that it required the state to use until the Legislature reapportioned the districts.70

In subsequent fee litigation, the defendant-intervenors were deemed analogous to plaintiffs because they could have “brought, and prevailed in, a separate action” to challenge the redistricting plan, rather than intervening in the existing case.71 The court sought to avoid the waste of judicial resources that would occur if parties who might otherwise intervene in ongoing cases chose instead to file their own.72 For this reason, the Seventh Circuit held that “it is entirely logical to assess attorneys’ fees against the State in this case, particularly since all other potential sources of the intervenors’ attorneys’ fees have been foreclosed by the decisions of the Supreme Court.”73 The King court refused to assess attorney fees against the plaintiffs for the benefit of defendant-intervenors, fearing that “future civil rights plaintiffs would be deterred from bringing potentially meritorious claims, out of the fear that they would have to pay a defendant’s legal fees if they could not establish their claim.”74 In other words, when defendant-intervenors act as functional plaintiffs, they may recover fees from the original defendants, rather than from the plaintiffs.75

King relied on the District of Columbia Circuit Court decision in Donnell v. United States,76 which was strongly influenced by the policy considerations against awarding fees to a defendant-intervenor: “[T]he critical goal of enabling private citizens to serve as ‘private attorneys general’ . . . is far less compelling when” an intervenor participates on the side of the United States and “the actual Attorney General . . . defends a suit . . . on behalf of those whose rights are affected.”77 Having found no “divergence” between the roles played by the federal defendant and the private defendant-intervenor, the court denied the defendant-intervenors’ request for fees.78

Thus, to the extent that defendant-intervenors ever are eligible for fees under a public-interest or private attorney general fee-shifting statute, the fees should be awarded only when the defendant-intervenors act as “functional plaintiffs” and can recover fees from a governmental defendant.

III. Allowing Defendant-Intervenors to Recover Fees from Public-Interest Plaintiffs Subverts the Purposes of the Fee-Shifting Statutes

C.  Fee Awards to Defendant-Intervenors Chill First Amendment Rights

Whether by design or not, a fee award to defendant-intervenors inevitably chills valuable First Amendment activity by dissuading public-interest plaintiffs from providing a necessary check on government by challenging its laws and policies.79 Fee awards to defendant-intervenors frighten potential litigants away from court including nonprofit public- interest organizations that have limited resources, and might advance innovative legal theories in defense of their rights.80 They could be deterred from petitioning for their rights for fear of a financial backlash as their reward.81

The right to petition the government for redress of grievances is protected by both the federal and state constitutions.82 As guaranteed by the First Amendment, the petition right encompasses not just “the act of filing a lawsuit . . . to obtain monetary compensation for individualized wrongs, [but also] filing suit to draw attention to issues of broader public-interest or political significance.”83 In NAACP v. Button,84 the U.S. Supreme Court explained that public-interest litigation “is a means for achieving lawful objectives . . . by all government, federal, state and local . . . It is thus a form of political expression.”85 These freedoms, the Court continued, “are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.”86 The petition right protected by the California Constitution, Article I, Section 3, is “at least as broad as the First Amendment right of petition.”87

1. Public-interest litigation requires a long-term commitment

Public-interest plaintiffs often must commit to a long haul of litigation because lower courts do not always reach correct decisions, particularly in cases of first impression. For example, in Sackett v. Environmental Protection Agency (EPA),88 the U.S. Supreme Court held that landowners may sue to challenge an EPA compliance order, despite prior unanimity among lower courts to the contrary.89 Every lower court had rejected the Sacketts’ attempts to be heard, yet the Supreme Court unanimously held that they were entitled to pursue their claims in court.90

Similarly, plaintiffs in constitutional takings cases often litigate for many years before obtaining judicial recognition that the government violated their property rights.91 In Koontz v. St. Johns River Water Management District,92 the Supreme Court for the first time accepted a takings claim based on government demands that a property owner fund offsite mitigation projects on public lands as a condition for a permit to do work on his own land.93 The decision in Koontz relied in large part on two other groundbreaking Supreme Court decisions: Nollan v. California Coastal Commission,94 which upheld a Fifth Amendment takings theory based on the unconstitutional conditions doctrine,95 and Dolan v. City of Tigard,96 which held that permit conditions that are not “roughly proportional” to the harm that in the government’s eyes warrant such conditions also qualify as unconstitutional takings.97 Koontz, Nollan, and Dolan all reversed lower court decisions that were mainstream at the time and ushered in a new era of takings law.

Likewise, in Keller v. State Bar of California,98 the Supreme Court reversed a unanimous California Supreme Court decision that permitted the state bar to spend mandatory dues on political and ideological activities, in violation of objectors’ First Amendment rights.99 It was not at all clear at the outset of the litigation that the individual public-interest plaintiffs in those cases would prevail, and they might well have been deterred from suing if they had faced the threat of having to pay fees if unsuccessful.100

The threat of fees particularly chills potential public- interest plaintiffs whose lawsuits test evolving principles and seek to establish new legal precedents.101 “[H]istory makes clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time; what once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom.”102 Such cases have unique importance in our legal system because they establish constitutional doctrines and determine the boundaries of those doctrines’ applications. “The process by which constitutional rights are articulated is messy; battles are lost over fundamental principles for years before they achieve recognition of a constitutional right.”103 It is precisely these cutting-edge constitutional law cases based on novel or creative legal theories that are likely to be deterred by the kind of fee shifts California courts have begun allowing.

2. California courts recognize counter-litigation as a “chill” on First Amendment petition rights

Whether an action chills First Amendment rights can be determined by looking to California cases applying the state’s “anti-SLAPP” statute.104 “SLAPP” is short for Strategic Litigation Against Public Participation, and refers to lawsuits that are filed, not to win, but to suppress someone’s speech by forcing them to the expense and stress of defending themselves in court.105 In California, a speaker subjected to a SLAPP suit may file a special “anti-SLAPP” motion that, if granted, immediately dismisses the case and awards fees to the movant.106 The hallmark of a SLAPP suit is its intent to “punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances, rather than to prevail on the suit.”107 The anti-SLAPP statutes shield “constitutionally protected conduct from the undue burden of frivolous litigation.”108 The term “chill,” in the anti-SLAPP context, “refers not to a direct interference with ongoing speech by injunctive or similar relief but to the inhibiting effect on speakers of the threat posed by possible lawsuits.”109

California law strongly disfavors lawsuits that chill the constitutional right of petition or free speech. Similarly, allowing defendant-intervenors to recover attorney fees from a private, public-interest plaintiff can only be viewed as equivalent to a SLAPP: to “punish” those who challenge government action, and to chill further challenges.110

D. In Many Cases, Defendant-Intervenors in Public-Interest Litigation Function as Amici Curiae, Who Cannot Recover Fees

California law construes the function of amici curiae very broadly. In Connerly v. State Personnel Board,111 advocacy groups that favor affirmative action participated as defendants alongside the government, as real parties in interest, to defend statutes that mandated preferential treatment for women- and minority-owned businesses. When the plaintiff prevailed in his lawsuit to invalidate these statutes as violating the California Constitution’s prohibition on discriminatory and preferential treatment in education, employment, and contracting,112 he sought attorney fees against both the defendant government agencies and the advocacy groups. The advocacy groups argued that, despite their official party status, they should be considered nothing more than glorified amici. Amici, of course, are not liable for attorney fees.113

The Connerly court found the advocacy groups’ arguments compelling, primarily because they neither enacted nor enforced the challenged statutes.114 The court described their interest as an “ideological” preference for affirmative action programs, an interest the court described as “no different in kind from that of the typical amicus curiae and no different in substance from like-minded members of the general public.”115 The court summarized the real parties’ role: “Although the [advocacy groups’] role in the litigation was greater than that of the typical amicus curiae, its basic function was the same: to advocate a position not out of a direct interest in the litigation but from its own views of what is legally correct and beneficial to the public interest.”116

The housing advocacy groups in the CBIA case were in much the same position—although they actually had a less determinative role in the litigation than the affirmative action advocacy groups in Connerly.117  The advocacy groups in Connerly “acted in many respects as lead counsel on the litigation, answering the petition for writ of mandate, seeking discovery and litigating a discovery motion, seeking to remove the case to federal court, winning recusal of a judge, and providing the most substantive briefing on the issue.” The groups in CBIA, by contrast, were allowed to participate only on the conditions that there be no changes to the trial date; that they not engage in discovery; or introduce new facts or evidence, or address any legal issues other than the validity of the challenged ordinance.118

These limits on the scope of the intervention in CBIA meant that the advocacy groups acted as functional amici. The housing advocacy groups filed briefs, and argued, based on those briefs, at trial and in appellate proceedings. As intervenors, they were entitled to file more briefs than a typical amicus curiae, but filing briefs was still the main extent of their participation. Their participation, therefore, was analogous to—and less than—the function performed by the real parties in interest in Connerly. Because the doctrine adopted by the California Supreme Court in Connerly immunizes ideological advocacy groups from paying fees to a prevailing plaintiff, the housing advocacy groups in the CBIA case would not have been liable for fees had CBIA prevailed. As a matter of symmetry and fairness, if ideological 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.119

E. Awarding Fees to Defendant-Intervenors Encourages the Government to Outsource Its Defense of Laws and Policies to Advocacy Groups

As a policy matter, if advocacy groups joining litigation as defendant-intervenors can recover fees from unsuccessful public-interest plaintiffs, then government defendants will be encouraged to sit by passively while private organizations intervene for the purpose of defending laws, and are later rewarded by fees that would have been prohibited by Section 1021.5 if the state defendants had actively defended themselves.120

The California Supreme Court decision in County of Santa Clara v. Superior Court121 enumerates several serious policy concerns generated by outsourcing defense of the laws in this way. In that case, the county hired a private firm, on a contingent fee basis, to litigate public nuisance abatement actions, and defendant manufacturers sued. Because this type of litigation was not a routine contract dispute or slip-and-fall on government property, but was instead “prosecuted on behalf of the public,” the court held that the attorneys prosecuting the case, “although not subject to the same stringent conflict-of-interest rules governing the conduct of criminal prosecutors or adjudicators, are subject to a heightened standard of ethical conduct applicable to public officials.”122 This is because of the “bedrock principle that a government attorney prosecuting a public action on behalf of the government must not be motivated solely by a desire to win a case, but instead owes a duty to the public to ensure that justice will be done.”123 Ideological advocacy groups operate under no such “bedrock principle” and are not accountable to the public at all for pursuing their own agendas. 

The availability of fee awards against public-interest plaintiffs and in favor of advocacy groups that intervene to act as defendants is likely to encourage government agencies to preserve their own resources by letting such intervenors guide the litigation, on the assumption that the intervenors will be rewarded with fees if they defeat the plaintiffs’ claims. Government agencies can invite advocacy group intervention by filing “non-objections” in court.124 Advocacy groups, although undoubtedly doing what they believe is in the public interest, are motivated by their ideological purposes and driven to win.125 They are not subject to the “heightened standard of ethical conduct” or conflict-of-interest rules that govern public attorneys. And litigation-by-advocacy-group risks eroding public confidence that litigation involving the government will be steered by accountable public officials rather than by private entities’ own preferences—preferences which may not align with public policy and for which they cannot be held accountable by the public.126

Conclusion: Christiansburg Garment Strikes the Right Balance

Defendant-intervenor motions for attorney fees arise from public-interest plaintiffs’ exercise of fundamental free speech and petition rights protected by the First Amendment. Fee awards to such defendant-intervenors consequently chill good-faith claims that are necessary to vindicate constitutional and other rights and promote the public good. This complete inversion of the private attorney general public-interest fee-shifting statutes should not stand.

In Christiansburg Garment,127 the Supreme Court set the standard for an award of attorney fees to a prevailing civil rights defendant. “[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a [civil rights] case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in bad faith.”128 The Court has applied that standard to actions for attorney fees brought under Section 1988.129 In seeking to determine whether a suit is frivolous, unreasonable, or groundless, as required by Christiansburg, courts have focused on several factors: “whether the issue is one of first impression requiring judicial resolution; whether the controversy is sufficiently based upon a real threat of injury to plaintiff; whether the trial court has made a finding that the suit was frivolous under Christiansburg guidelines, and whether the record would support such a finding.”130 The “defendant bears the burden of establishing that the fees for which it is asking are in fact incurred solely by virtue of the need to defend against those frivolous claims.”131

California courts have adopted the Christiansburg standard in fee-shifting cases other than Section 1021.5.132 Section 1021.5 draws no distinctions among parties that might invoke its terms for a fee-shift, other than to forbid fee awards to

governments.133 However, to align California’s public-interest fee-shifting statute with its federal analog, state courts should interpret Section 1021.5 to forbid fee awards to prevailing private party defendants and defendant-intervenors except in cases in which the plaintiff’s lawsuit was frivolous.134 This strikes the proper balance between encouraging public-interest litigation while deterring wholly unwarranted lawsuits. The Christiansburg Garment standard does not provide a get-out-of-fees-free card—it still allows courts to penalize vexatious or frivolous lawsuits135 but it strikes a prudent balance between deterring those cases and chilling legitimate public-interest litigation.

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