by Elias E. Guzman

In Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, the California Supreme Court recently held that amicus curiae were not liable for private attorney general fees because they were not an “opposing party” under Code of Civil Procedure section 1021.5. This opinion provides significant protection to an amicus curiae from having to pay attorney’s fees under the private attorney general statute.

Although this opinion did not arise out of a land use dispute, it offers important guidance regarding an amicus curiae’s liability for payment of section 1021.5 attorney fees. The underlying litigation, brought by former Governor Pete Wilson, involved constitutional challenges to the affirmative action programs of several state agencies. Ward Connerly, widely known as the architect of Proposition 209, later joined the litigation as a taxpayer litigant petitioner. The petition named six state agencies as respondents. Among the state agencies sued, the Board of Governors of the California Community Colleges was the only one to defend its program on the merits. The petition also named a number of special interest organizations as real parties in interest (hereinafter “Groups”). However, these same Groups were amici curiae in previous litigation between the parties. The Court of Appeal held that parts of the programs were unconstitutional and parts were constitutional. The court also affirmed the trial court’s ruling that Connerly was entitled to 1021.5 attorneys fees from the Groups. The Supreme Court reversed this attorney fees award.

Section 1021.5 provides, in part, that a court may award attorney’s fees to a successful party against one or more opposing parties in any action that involves the enforcement of an important right affecting the public interest. The opposing party, under 1021.5, is the party responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that give rise to litigation. The Groups argued they were not responsible for enacting nor enforcing the statutes or programs that were found unconstitutional. Further, the Groups were amici curiae in the previous litigation between the parties and were only now named as real parties in interest because petitioner sued them in that capacity.

Traditionally amici curiae are not considered parties liable for attorneys fees. Amici curiae are literally “friends of the court” and perform a valuable role for the judiciary in that they often provide a different and often broader perspective from the principal litigants, which enriches the decision making process. Rules of Court, rule 13(c) formalizes the role of amici curiae by making separate provisions for receipt of amicus curiae briefs. Amici curiae by definition have a particular ideological or policy focus that motivates them to participate in certain litigation, notwithstanding a direct interest in the litigation’s outcome.

Real parties in interest are generally defined as any person or entity whose direct interest will be directly affected by the proceeding. The direct interest must be a special interest to be served or some particular right to be protected over and above the interest held in common with the public at large.

The Court held that the Groups interest in maintaining affirmative action programs was no different than the typical amicus curiae and no different in substance from like-minded members of the general public. Even if an amicus curiae actively participates in litigation, as one of the members of the Groups did, there is no indication that the Legislature contemplated that someone in such a circumstance could be an opposing party under section 1021.5. Moreover, the role of an amicus curiae becomes more important when a opposing party curtails or withdrawals from participation in the litigation, like the five out of six agencies sued in this lawsuit did. The policy of encouraging amicus curiae participation is not compatible with a rules that would place such a litigant at risk of attorney fees. In the realm of land use disputes, this case opens the door for interest groups such as building and environmental organizations to participate in litigation without risk of exposure to attorney’s fees.

Elias E. Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.