Metropolitan News-Enterprise


Friday, January 25, 2008


Page 1


In Case Spawned by Lesbians’ Breakup:

S.C. Limits Scope of Private Attorney General Statute


By a MetNews Staff Writer


California’s private attorney general statute does not permit an award of fees against a party who merely asserted private rights, even if the case resulted in an appellate ruling affecting a large number of people, the California Supreme Court ruled yesterday.

The justices unanimously affirmed a Fourth District Court of Appeal ruling that a  San Diego woman who—in a case that ended at the U.S. Supreme Court—successfully defended her right to adopt her former lover’s child as a “second parent” cannot recover attorney fees from the birth mother.

The Court of Appeal ruled that Annette F.—the parties were identified only by initials throughout the proceedings—cannot recover fees from Sharon S. because she had a significant personal stake in the outcome, part of the traditional analysis under Civil Code Sec. 1021.5.

The high court, however, based its decision on the fact that Sharon S. was only asserting her own interest in remaining her child’s sole legal parent and was not addressing broader public issues.

The women, former classmates at Harvard Business School, became involved in an often-volatile lesbian relationship in 1989 and moved to San Diego the following year. While they were together, Sharon S. had two children through artificial insemination using sperm donated by the same anonymous man.

The first child, Zachary, was born in October 1996. The two women completed a second-parent adoption the following year.

The second child, Joshua, was born in June 1999. A second-parent adoption petition was filed in September of that year, but the couple separated while the petition was pending.

The Court of Appeal eventually ruled that the adoption was illegal. It said that while stepparents could adopt pursuant to statute, other forms of adoption require severing the relationship between the child and the biological mother.

Legislation allowing second-parent adoptions by registered domestic partners did not take effect until Jan. 1, 2002.

The California Supreme Court reversed in 2003, saying Sharon S. validly waived her right to object to the adoption and upholding the trial judge’s finding that her consent was not obtained by fraud or duress.

The U.S. Supreme Court denied the birth mother’s petition for certiorari, which was based on a U.S. Supreme Court decision that struck down Washington state’s grandparent visitation law as an interference with fundamental parental rights.

Annette F.’s attorney, Charles Bird, then moved for attorney fees under Sec. 1021.5, which authorizes such an award “in any action which has resulted in the enforcement of an important right affecting the public interest” if, among other things,  “the necessity and financial burden of private enforcement...are such as to make the award appropriate.”

The trial judge awarded $92,000 in fees, but the Court of Appeal reversed and the high court yesterday agreed.

Sharon S., Justice Carlos Moreno wrote, “is not the type of party on whom private attorney general fees were intended to be imposed.” It would be inequitable, and contrary to legislative intent, to depart from the “American rule” that parties generally bear their own attorney fees where party from whom fees are sought litigated the issue for purely private reasons, the justice said.

Moreno elaborated:

“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.  It does not appear to encompass the award of attorney fees against an individual who has done nothing to curtail a public right other than raise an issue in the context of private litigation that results in important legal precedent.”

Moreno cited the 1977 state Senate committee testimony of John R. Phillips, a prominent public interest attorney—he now practices in Washington, D.C.—who helped spearhead the effort to pass the private attorney general law.

Phillips said the statute woould “effectuate the enforcement of laws enacted by the legislature of the state in the public interest.”  That statement, Moreno wrote, suggests that lawmakers were “focused on public interest litigation in the conventional sense: litigation designed to promote the public interest by enforcing laws that a governmental or private entity was violating, rather than private litigation that happened to establish an important precedent.”

Moreno also cited his own opinion in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, in which a unanimous court held that amicus curiae could not be ordered to pay fees under Sec. 1021.5.

The case ruled on yesterday was argued in the high court by the same attorneys who argued the earlier appeals, Bird for Annette F. and John Dodd for Sharon S.

A number of groups filed amicus briefs in support of Annette F.’s bid for fees, including Children of Lesbians and Gays Everywhere, Lambda Legal Defense & Education Fund, the Lesbian & Gay Lawyers Association of Los Angeles, the National Center for Lesbian Rights, the American Civil Liberties Union, the Western Center on Law & Poverty, the Planning and Conservation League, the Natural Resources Defense Council, the Los Angeles County Bar Association and the Beverly Hills Bar Association.

The case is Adoption of Joshua S., 08 S.O.S. 547.


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