C.A.: Anti-Proposition 209 Groups Must Pay Connerly’s Lawyers

Thursday, May 6, 2004

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C.A.: Anti-Proposition 209 Groups Must Pay Connerly’s Lawyers

By KENNETH OFGANG, Staff Writer/Appellate Courts

A Sacramento Superior Court judge did not abuse his discretion in ordering several groups that fought a Ward Connerly lawsuit attacking state affirmative action programs to pay a portion of Connerly’s attorney fees, the Third District Court of Appeal has ruled.

The state’s “private attorney general” statute, Code of Civil Procedure Sec. 1021.5, permits a judge to assess fees against any losing party in public interest litigation, not just government entities and not just parties who advance frivolous claims, Presiding Justice Arthur Scotland wrote Tuesday in an unpublished opinion.

The attorney for the groups—the California Business Council for Equal Opportunity, California Teachers Association, California Hispanic Chamber of Commerce, California Coalition of Hispanic Organizations, Hispanic Contractors Association, and Society of Hispanic Engineers, Greater Los Angeles Chapter—said yesterday that he does not know if his clients will review in the Supreme Court.

Jeffrey Bleich of Munger, Tolles & Olson said yesterday his clients would have to divide up responsibility for about $82,000 in fees—one-sixth of the $488,000 awarded to Connerly’s Pacific Legal Foundation lawyers by Judge Lloyd Connelly. The remainder of the fees will be paid by the state, which did not appeal the award, although it was a respondent on Connerly’s cross-appeal, in which he argued that the total award should have been higher.

It is possible the PLF attorneys could seek additional fees for the appeal. But Bleich said those fees might be disallowed because his clients prevailed on the cross-appeal.

The fee award arises out of a mandate proceeding that was commenced in 1996 by then-Gov. Pete Wilson, naming five public entities as respondents.

Statutes Challenged

Wilson challenged five statutes on grounds that they violated the state and federal equal protection clauses. The laws imposed specific outreach requirements, including in some cases goals and timetables to achieve racial balance, on the California Community Colleges, State Personnel Board, the State Lottery, the office of the State Treasurer, and the Department of General Services.

After Proposition 209—which bans all racial preferences in state employment, education, and contracting—passed later in 1996, it became an additional basis for the litigation.

When first filed, the suit was derided as “Wilson v. Wilson” by opponents, who argued that the governor couldn’t sue to invalidate laws that he was required by reason of his office to enforce. But Connerly, the prime sponsor of Proposition 209, was permitted to join the litigation as a taxpayer.

All five of the laws were eventually invalidated, in whole or in part. Connerly then sought to recovery attorney fees under Sec. 1021.5, not only from the state but also from the private groups.

Those six groups were among some 14 organizations who originally appeared in the litigation as amicus curiae, only to be named by Wilson as real parties in interest. The other eight groups dropped out of the suit rather than contest the merits after it was held that Connelly had standing.

Fees Awarded

The PLF attorneys claimed nearly 1,500 hours of work in their fee motion. Connelly disallowed some 50 hours, then multiplied the remaining hours by reasonable hourly rates and added a 30 percent enhancement, for a total of $451,000.

He then added $37,000 for the lawyers’ work on their fee motion, and concluded that in fairness, the private groups should pay one-sixth of the fees, with the remainder divided equally among the five state entities.

Connelly’s fee allocation was consistent with the purpose of the private attorney general statute, Scotland said. It was also equitable, he concluded, because the groups chose to stay in the litigation and defend the laws that were ultimately held unconstitutional.

Scotland distinguished a U.S. Supreme Court decision holding that an intervenor in a Title VII employment discrimination case could not be ordered to pay attorney fees of a prevailing party unless the intervenor’s position was frivolous.

That ruling, Scotland explained, was based on precedent holding that federal fee-shifting statutes are to be read narrowly. Sec. 1021.5, on the other hand, must be construed according to its legislative intent and history.

‘The imposition of attorney fee awards under section 1021.5 is not limited to public entities; it is well established that such an award may be imposed against private parties,” Scotland wrote.