Metropolitan News-Enterprise


Friday, March 3, 2006


Page 3


Anti-Proposition 209 Groups Do Not Have to Pay Ward Connerly’s Lawyers—Supreme Court


By a MetNews Staff Writer


Several groups that fought a Ward Connerly lawsuit attacking state affirmative action programs do not have to pay any part of  Connerly’s attorney fees, the California Supreme Court ruled yesterday.

The groups, which came into the litigation as amicus curiae because the administration of then-Gov. Pete Wilson had no desire to defend the programs, were not “parties” in the sense contemplated by the “private attorney general” statute, Code of Civil Procedure Sec. 1021.5, Justice Carlos Moreno wrote for a unanimous court.

The ruling overturns an order by Sacramento Superior Court Judge Lloyd Connelly, upheld by the Third District Court of Appeal, that would have required 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, to pay about $82,000 in fees—one-sixth of the $488,000 awarded to Connerly’s Pacific Legal Foundation lawyers.

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.

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, except as required by federal law—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 Connerly had standing.

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.

Moreno, however, said the ruling was inconsistent with the policy of allowing amici to participate in litigation to which they are not parties.

“Amici curiae, literally ‘friends of the court,’ perform a valuable role for the judiciary precisely because they are nonparties who often have a different perspective from the principal litigants,” the justice wrote. Having participated in the litigation to defend the statutes and programs rather than any personal interests, Moreno wrote, the organizations were not “authentic real parties,” however they were designated by the trial court.

The case is Connerly v. State Personnel Board, 06 S.O.S. 1136.


Copyright 2006, Metropolitan News Company