And although both § 1021.11’s and § 30.022’s effect on court access should be constitutionally scrutinized, it is important to note that only § 1021.11 applies to laws affecting a clearly enumerated constitutional right set forth in our nation’s founding documents. Whether these distinctions are enough to save the Texas fee-shifting provision from judicial scrutiny remains to be seen. And although it would be tempting to comment on it, the Texas law is not before this Court for determination.
[B.] The First Amendment Right to Petition and Access the Courts
The principal defect of § 1021.11 is that it threatens to financially punish plaintiffs and their attorneys who seek judicial review of laws impinging on federal constitutional rights. Today, it applies to Second Amendment rights. Tomorrow, with a slight amendment, it could be any other constitutional right including the right to speak freely, to freedom of the press, to practice one’s religion, to restrict cruel and unusual punishment, and to be free from government takings without compensation. Section 1021.11 makes its threat by means of a lopsided, unorthodox attorney’s fee-shifting scheme which ensures the citizen cannot win and may be forced to pay for the government’s attorney’s fees. The fee-shifting provision exacerbates the disincentive to litigation by threatening plaintiff lawyers with joint and several liability for paying the government’s attorney’s fees. By deterring citizens and coercing attorneys from accessing the courts for relief from constitutionally questionable laws, § 1021.11 severely chills both First Amendment rights and Second Amendment rights.
In our ordered system of civil justice, the Second Amendment right, and for that matter all constitutional rights, are ultimately protected by the First Amendment right to identify unconstitutional infringements and seek relief from the courts. “The right of petition is one of the freedoms protected by the Bill of Rights.” “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” “[P]ersons … have the right to petition the Government for redress of grievances which, of course, includes ‘access … to the courts for the purpose of presenting their complaints.'” … “[T]he right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship….”
Where the financial cost is too high to enable a person to access the courts, there is a violation of Due Process and Equal Protection, as well. Due Process requires that a citizen be able to be heard in court…. Laws like § 1021.11 that exact an unaffordable price to be heard in a court of law are intolerable…. Without meaningful access to the courts to peacefully resolve questions about the validity of state laws, frustrated citizens are left to civil disobedience or self-help, neither of which bodes well….
Under the California scheme, for three years after the close of a partially successful gun rights case there exists the specter of government filing an independent action for its attorney’s fees against both the plaintiff and his attorney. That threat of liability has already scared away plaintiffs and attorneys from filing or maintaining cases. The threat of being ordered to pay the government’s attorney’s fees and costs in a non-frivolous § 1983 action to vindicate Second Amendment rights substantially chills First Amendment rights.
A state law that threatens its citizens for questioning the legitimacy of its firearms regulations may be familiar to autocratic and tyrannical governments, but not American government. American law counsels vigilance and suspiciousness of laws that thwart judicial scrutiny. The Supreme Court does not countenance such efforts by Congress. “The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.” How much more problematic are states that enact laws that insulate its own laws from legitimate judicial challenge?
It is true that § 1021.11 does not completely deny access to the courts, yet it threatens to impose a very high price through an unfair procedure for which there are no adequate state remedies. The legislative history of § 1021.11 suggests the legislature understood the punitive effect of the law, but enacted it anyway: “While the goal of repurposing the Texas law may be sound, these problematic provisions may not justify those ends. They insulate government action from meaningful challenge by creating a strong, punitive deterrent for any that try and in the end, may violate due process guarantees.” See S.B. 1327, S. Floor Analysis (Cal. June 28, 2022); see also S.B. 1327,
- Jud. Comm. Analysis (Cal. June 10, 2022) (a “lose-lose scenario for plaintiffs”).
Constitutional litigation can be expensive. While no plaintiff can know how many attorney hours will be spent by government defendants, there are hints that the Attorney General’s costs are high. Among the disclosed hourly consulting rates of expert witnesses hired by the Attorney General’s office in other Second Amendment cases pending in this Court are hourly rates of $500 for reviewing materials and $750 per hour for depositions and court appearances; $600 per hour for testimony (in deposition and in court) and $480 per hour for all other services; $130 per hour; $250 per hour; $500 per hour; $250 per hour; $150 per hour; $350 per hour; and $1,050 per hour. Pursuant to § 1021.11, plaintiffs not only have to bear their own costs of litigation in every case but are also exposed to the genuine possibility of paying large defense fees and costs even when pursuing non-frivolous claims.
The provision also makes attorneys and law firms that represent non-prevailing plaintiffs jointly and severally liable to pay defense attorney’s fees and costs. The threat of losing discourages the airing of novel claims, even if the claims are substantial. The suppression of novel claims, in turn, does a disservice to the courts, as was noted about another defective statute that discouraged attorneys from asserting constitutional claims. “By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.” “The restriction imposed by the statute here threatens severe impairment of the judicial function. Section 504(a)(16) sifts out cases presenting constitutional challenges in order to insulate the Government’s laws from judicial inquiry.”
This Court concludes that the purpose and effect of § 1021.11 is to trench on a citizen’s right of access to the courts and to discourage the peaceful vindication of an enumerated constitutional right. Because the state fee-shifting statute undermines a citizen’s constitutional rights, it is this Court’s role to declare its invalidity and enjoin its threat….
[C.] The Supremacy Clause and 42 U.S.C. § 1988
Section 1021.11 is defective for another reason. Through its unfair legal stratagems, the state law chills the First Amendment right to petition government for the redress of grievances, which, in turn, chills the Second Amendment right. The chill is deepened by the extraordinary provision that declares a plaintiff shall not be a prevailing party. In the end, this state statute undercuts and attempts to nullify 42 U.S.C. § 1988.
Section 1988 is a fee-shifting statute that is intended to encourage the protection of constitutional rights by rewarding plaintiffs who successfully challenge constitutionally- defective statutes. This is accomplished through the Civil Rights Act of 1866 (codified at
42 U.S.C. § 1983). “The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances.” Under § 1988, a plaintiff may be a prevailing party, in contrast to § 1021.11(e). A prevailing party is normally entitled to attorney’s fees. The Supreme Court teaches that a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” So, a citizen plaintiff who files a § 1983 action can look forward to recouping her attorney’s fees if she is successful, thus furthering Congress’ intent to encourage the vindication of federal constitutional rights. After all, the vindication of federal constitutional rights and the striking down of unconstitutional laws inures to the benefit of all citizens.
On the other side of the coin, § 1988 also encourages the vindication of federal constitutional rights by removing the threat to plaintiffs of an adverse fee award for the government’s attorney’s fees. Where the federal government is a defendant, Congress has precluded the government from being awarded fees. Where state or local governments are defendants, the Supreme Court construes § 1988 as permitting defense fees only where the plaintiff’s claim is “vexatious, frivolous, or brought to harass or embarrass the defendant.” Only then does a plaintiff risk an adverse attorney’s fee award. Thus, attorney’s fees for defendants are presumptively unavailable unless a showing is made that the underlying civil rights suit was vexatious, frivolous, or otherwise without merit.
In the middle ground of § 1988, where a § 1983 plaintiff brings several claims for relief but dismisses or loses on some claims while winning on others, the plaintiff may yet be considered a prevailing party and awarded her attorney’s fees. A plaintiff challenging a regulation as unconstitutional will be a “prevailing party” and entitled to attorney’s fees if he or she succeeds on any significant issue in litigation which achieves some of the benefit sought. “[P]laintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. This is a generous formulation….'”
The prevailing party formulation is consistent with the First Amendment right to petition. “Nor does the text of the First Amendment speak in terms of successful petitioning—it speaks simply of ‘the right of the people to petition the Government for a redress of grievances.'” This makes sense because even unsuccessful but substantial claims advance First Amendment interests. “Like successful suits, unsuccessful suits allow the public airing of disputed facts, and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around. The ability to lawfully prosecute even unsuccessful suits adds legitimacy to the court system as a designated alternative to force.”
California’s fee shifting provision turns this approach upside down. A plaintiff who succeeds on the merits is never a prevailing party (§ 1021.11(e)); government defendants may be entitled to attorney’s fees from plaintiffs even where the claims asserted are not frivolous; anything less than complete success for a plaintiff becomes a win for the government coffers (§ 1021.11(b)). In flipping the tilt of the litigation field from favoring civil rights plaintiffs as Congress intended, California’s statute creates a steep and potentially costly ascent. And a plaintiff might have to face that ascent alone.
The California attorney’s fee-shifting construct goes beyond § 1988 by discouraging attorneys from representing civil rights plaintiffs. When a § 1983 plaintiff needs representation, § 1021.11(a) makes any attorney understandably reluctant, if not terrified. The provisions of § 1021.11(a) would expose the attorney to the risk of joint and several liability for the government’s fees. And unlike typical fee-shifting provisions, the risk would extend for three years after the conclusion of appellate review of the original litigation, as opposed to being part of the judgment in the original litigation. California’s § 1021.11 system of litigation rewards and punishments is completely contrary to that which was intended by Congress as expressed in § 1988.
“Under the Supremacy Clause of the United States Constitution a state cannot
frustrate the intent of section 1988 by setting up state law barriers to block enforcement of an attorney’s fees award.” Spain v. Mountanos (9th Cir. 1982). Compare the generous § 1988 standard to the crabbed § 1021.11(e) standard. Subsection (e) states: “Any person … who seeks declaratory or injunctive relief shall not be deemed a prevailing party under this section or any other provision of this chapter.” Plainly, because of the Supremacy Clause, California’s cramped state law must yield to the federal law. Compare also the claim-encouraging § 1988 allowance for plaintiff-side attorney’s fees even without success on all claims to the punishing language of subsection (b) defining a government defendant as the prevailing party if an otherwise successful plaintiff fails to prevail (regardless of the reason) on any claim for relief…
Like subsections (e) and (b), subsection (d)(3) also runs headlong into the Supremacy Clause through its attempt to ignore or countermand a federal court ruling of invalidity. Subsection (d)(3) frustrates the intent of §1988 and flouts a court’s ruling and award of § 1988 attorney’s fees to a plaintiff. Subsection (d)(3) nakedly declares that it is no defense to a prevailing government party’s action for attorney’s fees if a “court in the underlying action held that any provision of this section is invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.” A state statute clothed with such power has no clothes at all. “Congress has made clear in § 1988 its intent that attorney’s fees be available in any action to enforce a provision of § 1983.” In fact, “[t]he legislative history of [§ 1988] confirms Congress’ intent that an attorney’s fee award be available even when damages would be barred or limited by ‘immunity doctrines and special defenses, available only to public officials.”
In answer to the Supremacy Clause problem, the Intervenor-Defendant Governor offers only one defense: “nothing in S.B. 1327 prevents simultaneous awards of attorney’s fees to a plaintiff under § 1988 and to a defendant under state law in a mixed- result case, so there is no conflict.” But that is not a satisfactory answer. Take a hypothetical § 1983 case where a plaintiff achieves substantial success in challenging an unconstitutional firearm restriction. Under § 1988, he might be entitled to an attorney’s fee award of $10,000. The government could then, three years later, elsewhere obtain its own attorney’s fee award against the plaintiff and his attorney for $10,000, or $20,000, or 30,000 under § 1021.11. How would that not frustrate the Congressional intent of encouraging § 1983 actions to vindicate constitutional rights through § 1988 attorney’s fee awards? …
Congratulations to Brad Benbrook and Steve Duvernay of the Benbrook Law Group and David Thompson, Joseph Masterman, and Peter Patterson of Cooper & Kirk, who represented the plaintiffs. Disclosure: One of the plaintiffs is the Firearms Policy Coalition, for which I have consulted in the past, though I didn’t work on this case.
UPDATE: Judge Benitez set out the same analysis in a companion case, South Bay Rod & Gun Club, Inc. v. Bonta; congratulations to Chuck Michel and Joshua Dale of Michel & Associates, P.C., and to Don Kilmer, who represented the plaintiffs in that case.