“[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…. Equality of treatment in this respect is not left
to depend upon comity between the states, but is granted and protected by the Federal Constitution.
— Judge Roger Benitez in his order enjoining California’s gun control challenge fee-shifting law
“It is cynical.” “It is an abomination.” “It is outrageous and objectionable.” “There is no dispute that it raises serious constitutional questions.” “It is an unprecedented attempt to thwart judicial review.” Such are the Intervenor-Defendant Governor’s expressed views regarding the fee-shifting provisions of a Texas law (S.B. 8) and, at least by implication, of California’s § 1021.11. It is “blatantly unconstitutional,” says Defendant Attorney General Rob Bonta. {To his credit, given the obvious, the Attorney General has refused to defend § 1021.11.} For the reasons that follow, as they may apply to S.B. 8, but apply clearly to § 1021.11, § 1021.11 is declared unconstitutional. Therefore, Defendants are permanently enjoined throughout the state from enforcing or taking any action to seek attorney’s fees and costs pursuant to § 1021.11.
[A.] Texas S.B. 8 (§ 30.022) and California S.B. 1327 (§ 1021.11)
The Intervenor-Defendant Governor describes the California law as identical or virtually identical to a Texas law known as S.B. 8. But that is not quite accurate. S.B. 8, among other things, creates a fee-shifting provision that applies only to cases challenging abortion restrictions. It is codified at Texas Civil Practice & Remedies Code § 30.022. California’s Code of Civil Procedure § 1021.11 applies only to cases challenging firearm restrictions. Both provisions tend to insulate laws from judicial review by permitting fee awards in favor of the government, tilting the table in the government’s favor, and making a plaintiff’s attorney jointly and severally liable for fee awards.
California’s law then goes even further. As a matter of law, a California plaintiff cannot be a prevailing party. See § 1021.11(e). The Texas statute has no similar provision and thus it appears that a Texas prevailing plaintiff can be awarded his attorney’s fees. The California provision, on the other hand, denies prevailing party status to a plaintiff, even a plaintiff who is entirely successful, and thus denies any possibility of recovering his attorney’s fees. The California plaintiffs-never-prevail provision is not insignificant.
By Grace Stevens
