Metropolitan News-Enterprise


Thursday, July 23, 2015


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C.A. Denies Lawyer Fees for Successful Defense of Ballot Challenge




A political candidate who defeated his opponent’s challenge to his ballot designation is not entitled to recover his attorney fees, the Fourth District Court of Appeal has ruled.

Div. Three Tuesday ordered publication of its June 29 opinion affirming an Orange Superior Court judge’s ruling denying Eric Woolery’s motion for attorney fees, which was made under Government Code §1021.5, commonly referred to as the private attorney general statute.

Woolery was elected auditor-controller of Orange County last year, defeating four opponents, including John Willard, who brought a mandate petition seeking to prevent Woolery from referring to himself as “Orange Treasurer/CPA.” Woolery at the time was both treasurer of the City of Orange and a top administrator at the Riverside County District Attorney’s Office.

He is also a certified public accountant, and had previously managed an accounting firm and served on the Orange County Board of Education.

‘True Occupation’

Willard contended in his petition that Woolery’s “true and/or principal ‘occupation’ is ‘Deputy Director of Administration for the Riverside County District Attorney’s Office’” and that “[b]ecause ‘Orange Treasurer/CPA’ is not Woolery’s true and/or principal ‘occupation,’ [Registrar of Voters Neal Kelley] is prohibited from accepting Woolery’s Candidate Statement and is required to reject the ballot designation as unacceptable pursuant to California Election Code §13107(b).”

Judge William Claster denied the petition, citing Woolery’s declaration that he devoted 10 to 15 hours each week to his duties as Orange treasurer. The fact that he also had another position, in which he spent more hours and for which he was paid more money, “does not preclude the Orange Treasurer designation under the applicable statute and regulations,” which only require that the amount of time the candidate spends in the designated office, occupation, or vocation be “more than ‘nominal,’” the judge explained.

Woolery then moved for an award of attorney fees in the total amount of $8,320 under §1021.5, which Claster denied.

The trial judge was correct, Justice Richard Fybel wrote for the Court of Appeal, “because Woolery’s successful defense in this matter neither resulted in the enforcement of an important right affecting the public interest, nor conferred a significant benefit on the general public or a large class of persons, within the meaning of section 1021.5.”

Case Cited

The justice distinguished Hammond v. Agran (2002) 99 Cal.App.4th 115, holding that a candidate who won the right to include his views on issues in his official campaign statement was entitled to recover fees under the statute. The panel said the candidate had vindicated an “important public right” when he persuaded the court that a candidate’s “education and qualifications,” which by statute may be included in the candidate statement distributed with the sample ballot, include his positions on public controversies and not merely “resume material.”

Fybel noted the Hammond opinion’s admonition that the case dealt with important questions of public policy and “not with the typical, mundane squabbles over the factual accuracy of a statement peculiar to one candidate’s personal history.”

In contrast, the justice wrote:

“Woolery’s victory did not confer a significant benefit to the electorate.  It did not shed light on his views as a candidate, but briefly related one aspect of his work experience….As cited by the trial court in its minute order, the litigation regarding the petition more closely resembled the ‘mundane squabbles over the factual accuracy of a statement peculiar to one candidate’s personal history,’ described in Hammond…and did not confer a significant benefit on the electorate.”

The case is Willard v. Kelley (Woolery), 15 S.O.S. 3735.


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