Metropolitan News-Enterprise


Friday, May 31, 2002


Page 3


Candidate Who Defeated Challenge to Ballot Statement Entitled to Fees—C.A.


By a MetNews Staff Writer


A candidate who won the right to include his views on issues in his official campaign statement is entitled to recover a portion of his attorney fees on appeal under the private attorney general statute, the Fourth District Court of Appeal has ruled.

Div. Three Wednesday ruled that Irvine Councilman Larry Agran had vindicated an “important public right” when he persuaded the panel in 1999 that a candidate’s “education and qualifications” include his positions on public controversies and not merely “resume material.”

The public benefit from that decision far outweighed Agran’s personal interest, the panel held, especially since he had already won the election.

The case was sent back to the Orange Superior Court to determine a reasonable fee under Code of Civil Procedure Sec. 1021.5 for that portion of the appellate work concerning that issue, including a possible multiplier.

But Agran—represented by his son, Irvine attorney Kenneth Agran—is not entitled to fees for trial work or for that portion of the appeal that concerned a claim that the candidate statement included a misleading assertion, Presiding Justice David Sills wrote.

The panel’s earlier ruling overturned an order by Orange Superior Court Judge John Woolley requiring Larry Agran to change the content of his candidate statement for the 1998 elections.

Agran, who served on the city council from 1978 to 1990, including six years as mayor—and drew 331 votes in the 1992 New Hampshire Democratic presidential primary—ran for the council again in 1998. He filed a candidate statement extolling, among other things, his views that city residents “must stand together to defeat the County’s airport and jail expansion plan.”

 Barry Hammond, a former council member who wasn’t running in the election but is a political opponent of Agran’s, challenged the statement in court. Agran’s views on the airport and jail, Hammond argued, were “not related” to his qualifications for office, as required by Elections Code Sec. 13307.

 Hammond also said it was misleading for Agran to claim he “led” the city council in developing the city’s general plan.

 Woolley agreed as to both issues, allowing Agran to submit a new statement, including a notation that Agran was “voluntary chairman of a non-profit citizens’ organization working to defeat the proposed international airport at El Toro,” along with references to his past council service, Harvard law degree, service as counsel to a legislative committee, work as a college teacher, authorship of a book on the environment, and longtime residence in the city.

 Agran appealed the order, but ran with the revised statement and won the election. He also won his appeal, as the court held that the word “qualifications,” used in its ordinary sense, may include views, and in a single paragraph concluded that there was nothing misleading about how Agran described his role in the adoption of the general plan.

 “No matter whether the candidate be a rabble-rouser on a soapbox who never finished high school, or the appellant in the case before us—an honors graduate of Harvard Law School—his or her ideas are often the most important ‘quality’ in many voters’ minds,” Presiding Justice David K. Sills said at the time.

 On remand, Agran sought nearly $7,000 in fees for the initial trial work, nearly $44,000 for the appeal, and $10,000 for his work in the trial court on remand. Judge William McDonald denied the request in its entirety, citing Agran’s personal stake in the outcome of the litigation.

 Sills, again writing for the court, said “the dissemination of a candidate’s views confers a benefit on the general voting public, many of whom often crave, particularly in local elections, information about what the candidate thinks and what he or she is likely to do in office, which is far more likely to be revealed by the candidate’s positions on issues than his or her work experience.”

 But “the sticking point” with the fee request, the presiding justice explained, is Sec. 1021.5’s requirement that the “necessity and financial burden of private enforcement” be such as to make a fee award appropriate. Past decisions, mostly involving land use, hold that where the litigant has a personal financial incentive, a fee under Sec. 1021.5 is not appropriate, Sills noted.

 Nonfinancial personal interests, Sills reasoned, may also defeat an award of fees under the statute, as indicated by the Legislature’s inclusion of the word “necessity” and by its intent in passing the statute, to enable a prevailing party to obtain fees when there is a “transcendent disproportionality” between the public interest that is vindicated and that of the individual litigant.

Agran’s defense of his candidate statement in the trial court, Sills concluded, “was directly and intimately connected to Agran’s quest for elective office” and did not qualify for fees under the statute. Similarly, his defense of his statement that he “led the council” was primarily an attempt to vindicate his personal reputation rather than a public right, the presiding justice said.

 But in defending the right of all candidates to include statements about their views in their campaign statements on appeal after winning the election, Sills said, Agran was engaged in “the quintessential undertaking of litigation in the public interest removed from one’s own immediate lifestyle benefits.”

The case is Hammond v. Agran, 02 S.O.S. 2623.


Copyright 2002, Metropolitan News Company