Stanford Law School - Robert Crown Law Library

Filed 3/2/06

IN THE SUPREME COURT OF CALIFORNIA

WARD CONNERLY,
Plaintiff and Appellant,
S125502
v.
) Ct.App.
3
C043329
STATE PERSONNEL BOARD et al.,
Sacramento
County
Defendants and Respondents;
Super. Ct. No. 96CS01082
THE CALIFORNIA BUSINESS COUNCIL )
FOR EQUAL OPPORTUNITY et al.,
Real Parties in Interest and Appellants. )

This case involves litigation over private attorney general fees awarded
pursuant to Code of Civil Procedure section 1021.51 in an action “which has
resulted in the enforcement of an important right affecting the public interest . . . .”
Here, plaintiff Ward Connerly successfully pursued litigation to invalidate several
state statutes as unconstitutional under article I, section 31 of the California
Constitution, enacted in 1996 as Proposition 209, which outlawed governmental
preferential treatment by race, sex, and other categories. The state agencies that

1
All statutory references are to this code unless otherwise stated.
1

---

were the respondents in this writ of mandate action for the most part opted not to
defend the statutes, or to litigate only issues of standing and justiciability. It fell to
various amici curiae advocacy groups that were in favor of affirmative action to
defend the state programs and statutes on the merits. At some point in the
litigation, as will be elaborated below, the amici curiae were redesignated real
parties in interest. After the litigation concluded, the trial court awarded section
1021.5 attorney fees, to be paid both by the state agencies and the advocacy
groups as real parties. The award was upheld by the Court of Appeal.
The advocacy groups contend that they were in essence amici curiae, and
were not liable for attorney fees in litigation to declare unconstitutional statutes
they were not responsible for enacting or enforcing. Connerly, on the other hand,
contends that the advocacy groups should be liable for such fees because they
were authentic real parties in interest, inasmuch as they had a direct interest in the
litigation and were active participants that often shaped the defense of the statutes.
We conclude that the advocacy groups were not “opposing parties” within the
meaning of section 1021.5, and therefore reverse the Court of Appeal’s judgment.
I. STATEMENT OF FACTS
The
underlying
litigation involved state and federal constitutional
challenges to five statutory programs that fall within the general rubric of
“affirmative action.” (Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16,
27.) The litigation challenged the programs of six state agencies and officials: the
State Personnel Board, the State Treasurer, the California Community Colleges,
the Department of General Services, the State Controller, and the Lottery
Commission. Pete Wilson, in his capacity as the Governor of California,
2

---

commenced the litigation by filing, in the Court of Appeal, a petition for writ of
mandate against these agencies and their officials.
A group of organizations and associations who were generally in favor of
the challenged programs, the California Business Council for Equal Opportunity,
California Coalition of Hispanic Organizations, California Hispanic Chamber of
Commerce, California Teachers Association, Hispanic Contractors Association,
and Society of Hispanic Professional Engineers, Greater Los Angeles Chapter2
obtained permission from the Court of Appeal to appear as amicus curiae. Amicus
curiae asserted, among other things, that there was no justiciable controversy
because the action was between the Governor and his subordinate executive
officers and agencies, and because no real parties in interest had been named. In
response, the Governor filed an amended petition for writ of mandate naming the
amici curiae as real parties in interest. The California Business Council argued
that such designation did not cure the justiciability problem because it was not an
authentic real party in interest, with a direct interest in litigation, but rather an
amicus curiae that disagreed with the Governor’s policies and positions on
affirmative action.
The Court of Appeal summarily denied the petition, and this court denied
review without prejudice to filing in superior court. Governor Wilson then filed
his petition for a writ of mandate in the superior court. In so doing, he again

2
Originally, there were 14 organizations and associations who joined
together to appear as amici curiae in this court. Only the above six groups actively
participated in the litigation on the merits. Because the six organizations can for
present purposes be treated as a single association, we generally will refer to them
collectively in the singular as the “California Business Council.”
3

---

named the California Business Council as real party in interest. Later, plaintiff
Ward Connerly was permitted to join the litigation as a taxpayer litigant.
(Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 27.) Connerly
continued the litigation after Governor Wilson left office. (Ibid.)
The California Business Council actively participated in the litigation. It
initially sought to remove the case to federal court, an action in which the state
defendants did not join, and which was rejected because of the state defendants’
lack of concurrence. Once back in superior court, the California Business Council
filed a motion to peremptorily challenge the trial judge, Thomas Cecil, which
ultimately was successful. (See California Business Council v. Superior Court
(1997) 52 Cal.App.4th 1100, 1107-1108.) It sought discovery regarding the
affirmative action policies and practices of the various state agencies named in the
litigation, and filed a successful motion to compel discovery when the Governor
was not forthcoming.
Shortly after the case was returned to the superior court, the voters passed
Proposition 209, adding article I, section 31 to the California Constitution,
prohibiting the state, inter alia, from granting “preferential treatment to . . . any
individual or group on the basis of race . . . .” Three of the six state agencies and
officials that were sued, the State Personnel Board, the Department of General
Services, and the State Controller, took no position on the litigation, claiming only
that they were compelled to enforce existing statutes under article III, section 3.5
of the California Constitution. The State Treasurer and the Lottery Commission
opposed the lawsuit on grounds of standing, justiciability, and lack of adversity,
but did not otherwise defend on the merits any affirmative action program or
statute. The Board of Governors of the California Community Colleges is the only
4

---

state agency that appears to have defended its programs and the pertinent statutes
on the merits as well as on issues of standing and justiciability.
Eventually, the trial court entered a judgment invalidating one of the
statutory schemes, as well as a portion of another, but otherwise upholding them.
(Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 27.) Connerly
appealed and the California Business Council cross-appealed those portions of the
judgment at variance with its members’ respective positions. (Id. at p. 28.)
The Court of Appeal held that the statutory schemes were unconstitutional
for the most part, but that certain portions of three of those schemes could be
severed and upheld. (Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p.
28.) After judgment was entered, Connerly moved for an award of attorney fees
pursuant to section 1021.5. The trial court determined that this was an appropriate
case in which to make an award of attorney fees pursuant to section 1021.5, a
ruling that was not challenged on appeal. The total attorney fee award was
eventually calculated at $488,067.64. The trial court ordered that the State
Personnel Board, the California Community Colleges, the State Treasurer, the
Lottery Commission, the Department of General Services, and the California
Business Council each pay one-sixth of the total amount of attorney fees, rejecting
the California Business Council’s contention that it should not be liable for such
fees. The California Business Council appealed, and plaintiff Connerly cross-
appealed to challenge the disallowance of a portion of the fees claimed by his
attorneys.
The Court of Appeal affirmed the trial court’s attorney fee award. It
reviewed various Court of Appeal cases, discussed below, holding that real parties
in interest that actively participate in litigation may be assessed attorney fees, even
5

---

though they were not responsible for initiating or enforcing the policies that were
the subject of the underlying litigation. The Court of Appeal focused on the trial
court’s finding that the California Business Council groups “participated in the
litigation as full-fledged parties,” distinguishing themselves from the typical
amicus curiae. The Court of Appeal also rejected Connerly’s cross-appeal. We
granted the California Business Council’s petition for review.3
II. DISCUSSION

A. Standard of Review
The Court of Appeal reviewed the trial court’s award of fees under an abuse
of discretion standard. The parties argue about the proper standard, with the
California Business Council contending that the issue before us should be
reviewed de novo, and Connerly arguing in favor of the abuse of discretion
standard.
The proper standard of review was set forth in Carver v. Chevron USA, Inc.
(2002) 97 Cal.App.4th 132, 142: “On review of an award of attorney fees after
trial, the normal standard of review is abuse of discretion. However, de novo
review of such a trial court order is warranted where the determination of whether

3
Connerly acknowledges that the state respondents have paid the entire
$581,376 award to his counsel, which represents the total fee and costs awarded
plus interest at the government rate of 7 percent. Connerly contends the appeal is
not moot, however, because if his counsel had recovered from the California
Business Council, that portion of the award would have been calculated at the
legal interest rate of 10 percent. He also seeks fees related to proceedings in this
court and the Court of Appeal. Because there is at least the potential of a greater
recovery for Connerly if he prevails, we conclude that the appeal is not moot.
6

---

the criteria for an award of attorney fees and costs in this context have been
satisfied amounts to statutory construction and a question of law.”
Here, the question is whether the California Business Council can be
assessed attorney fees under section 1021.5 as an “opposing party[]” within the
meaning of that statute. Under some circumstances, this may be a mixed question
of law and fact and, if factual questions predominate, may warrant a deferential
standard of review. (See Crocker National Bank v. City and County of San
Francisco (1989) 49 Cal.3d 881, 888.) As will become clear below, however, the
material facts in the present case are largely undisputed. The controversy is over
whether a litigant in the California Business Council’s somewhat unusual position
can be considered an “opposing party.” This is a question of law and is reviewed
by us de novo. (See ibid.)

B. The Merits
Section 1021.5 provides in pertinent part: “Upon motion, a court may
award attorneys’ fees to a successful party against one or more opposing parties in
any action which has resulted in the enforcement of an important right affecting
the public interest . . . .” 4 (Italics added.) Thus, only an opposing party can be
liable for attorney fees under section 1021.5.

4
In its entirety, section 1021.5 provides: “Upon motion, a court may award
attorneys’ fees to a successful party against one or more opposing parties in any
action which has resulted in the enforcement of an important right affecting the
public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award appropriate, and
(c) such fees should not in the interest of justice be paid out of the recovery, if any.
With respect to actions involving public entities, this section applies to allowances

(footnote continued on next page)
7

---

Whether the California Business Council was an opposing party within the
meaning of section 1021.5 is ultimately a question of statutory construction.
“ ‘The fundamental purpose of statutory construction is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the law. . . . In order to determine
this intent, we begin by examining the language of the statute.’ ” (In re Marriage
of Harris (2004) 34 Cal.4th 210, 221.) Because the term “opposing parties” is not
defined, it can be assumed that the Legislature was referring to the conventional
definition of that term. As we have recognized, the edition of Black’s Law
Dictionary current at the time that section 1021.5 was drafted states that “ ‘[p]arty’
is a technical term having a precise meaning in legal parlance; it refers to ‘those by
or against whom a suit is brought . . . , the party plaintiff or defendant . . . .’ ”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 570, citing Black’s
Law Dict. (4th rev. ed. 1968) p. 1278.)
Generally speaking, the opposing party liable for attorney fees under
section 1021.5 has been the defendant person or agency sued, which is responsible
for initiating and maintaining actions or policies that are deemed harmful to the
public interest and that gave rise to the litigation. (See, e.g., Graham v.

(footnote continued from previous page)

against, but not in favor of, public entities, and no claim shall be filed therefor,
unless one or more successful parties and one or more opposing parties are public
entities, in which case no claim shall be required to be filed therefor under Part 3
(commencing with Section 900) of Division 3.6 of Title 1 of the Government
Code.
“Attorneys’ fees awarded to a public entity pursuant to this section shall not
be increased or decreased by a multiplier based upon extrinsic circumstances, as
discussed in Serrano v. Priest, 20 Cal.3d 25, 49.”
8

---

DaimlerChrysler Corp., supra, 34 Cal.4th 553; Tipton-Whittingham v. City of Los
Angeles (2005) 34 Cal.4th 604; Maria P. v. Riles (1987) 43 Cal.3d 1281.) By this
standard, the California Business Council clearly is not an “opposing party”
because it was responsible neither for enacting nor enforcing the statutes that were
judged to be unconstitutional in the underlying litigation.
Moreover, amici curiae traditionally have not been considered parties liable
for attorney fees. (See, e.g., Choudhry v. Free (1976) 17 Cal.3d 660, 662, 669
[attorney fees and costs assessed against the real party under federal statute
awarding attorney fees to prevailing parties in voting rights cases even though
amicus curiae, rather than the respondent or the real party in interest, litigated the
case].) Amici curiae, literally “friends of the court,” perform a valuable role for
the judiciary precisely because they are nonparties who often have a different
perspective from the principal litigants. “Amicus curiae presentations assist the
court by broadening its perspective on the issues raised by the parties. Among
other services, they facilitate informed judicial consideration of a wide variety of
information and points of view that may bear on important legal questions.” (Bily
v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.)
The California Rules of Court formalize the distinct role of amici curiae by
making separate provisions for receipt of amicus curiae briefs. (See Cal. Rules of
Court, rules 13(c), 29.1(f).) The range of groups that may be granted amicus
curiae status is well illustrated by the participants in the present case. The
California Business Council and the other advocacy groups initially appearing as
amici curiae in this case are groups generally interested in the protection of
minority and civil rights. Appearing on their behalf as amicus curiae before this
court is the Product Liability Advisory Council, Inc., which seeks to reform
9

---

product liability law, and counts among its members Chevron Corporation, the
Dow Chemical Company, and General Motors Corporation. The law firm
representing Connerly, the Pacific Legal Foundation, has often appeared in this
court as amicus curiae to advocate for individual property rights and limited
government. (See, e.g., Marine Forests Society v. California Coastal Com. (2005)
36 Cal.4th 1, 12.) The availability of such diverse views through amicus curiae
participation enriches the judicial decisionmaking process.
Connerly does not dispute that a conventional amicus curiae that files briefs
on behalf of one of the parties and may participate in oral argument is not an
opposing party within the meaning of section 1021.5. Nor does he argue that the
mere designation of an amicus curiae by one of the parties to litigation as a “real
party in interest” necessarily makes that amicus an opposing party. He contends,
however, that real parties in interest may be considered “opposing parties,” and
that the California Business Council was a real party in the present case. The
California Business Council for its part does not argue against the general
proposition that real parties can be held liable for attorney fees, but contends that
they were not authentic real parties.
To address this issue, we begin by examining the meaning of “real party in
interest.” As was stated in Sonoma County Nuclear Free Zone ’86 v. Superior
Court (1987) 189 Cal.App.3d 167, 173 (Sonoma County Nuclear Free Zone):
“ ‘Real party in interest’ has been generally defined as ‘any person or entity whose
interest will be directly affected by the proceeding . . . .’ [Citation.] While the
real party in interest is ‘usually the other party to the lawsuit or proceeding being
challenged [citation], it may be ‘the person or entity in whose favor the acts
complained of [operate]’ or ‘anyone having a direct interest in the result’
10

---

[citation], or ‘the real adverse party . . . in whose favor the act complained of has
been done.’ ”
Connerly
cites
Sonoma County Nuclear Free Zone in support of his
position that the California Business Council had an interest that was directly
affected by the litigation. In that case, involving the Sonoma County Nuclear Free
Zone Initiative on the November 1986 ballot, the opponent of the initiative
(dubbed “Con-NFZ” by the Court of Appeal) had requested that the county clerk
accept its ballot argument after the clerk’s deadline, and was refused. Con-NFZ
then filed a petition for writ of mandate in superior court to compel the county
clerk to accept the late filing, but failed to notify the initiative proponent, Pro-
NFZ. The superior court granted the writ petition. Pro-NFZ subsequently filed a
petition for writ of mandate of its own, claiming the superior court erred, in part
because Pro-NFZ was a real party in interest in the previous mandate action and
should have received notice of Con-NFZ’s petition for writ of mandate.
The Court of Appeal agreed. Stating, as discussed above, that a real party
is defined as “ ‘any person or entity whose interest will be directly affected by the
proceeding’ ” (Sonoma County Nuclear Free Zone, supra, 189 Cal.App.3d at
p. 173), the court concluded that Pro-NFZ met that definition. “Pro-NFZ and Con-
NFZ were two cognizable groups contesting the merits of a county initiative. As
the group who had authored and filed a direct pro argument for the November
ballot, Pro-NFZ had a clear, direct interest in the question whether Con-NFZ
should be permitted a late filing. Con-NFZ’s writ petition sought relief from
deadlines set to ensure reasonable time for distribution of sample ballots. Even
though the trial court happened to find that the late filing would not jeopardize the
11

---

printing process, Pro-NFZ had a direct interest in litigating the question and
participating in the hearing.” (Id. at p. 174.)
Con-NFZ also made the related argument that Pro-NFZ was not
“beneficially interested” in the litigation and could not bring the writ of mandate
action pursuant to section 1086, which requires such interest. The Court of
Appeal observed that “[u]nder the circumstances of this case, whether Pro-NFZ
had a ‘direct interest’ sufficient to make it a real party below, and whether it has a
‘beneficial interest’ to permit it to file a petition for writ of mandate with this
court, is essentially the same question resolved by a single analysis.” (Sonoma
County Nuclear Freeze Zone, supra, 189 Cal.App.3d at p. 174.) Quoting our
definition in Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796,
that a beneficial interest is a “special interest to be served or some particular right
to be preserved or protected over and above the interest held in common with the
public at large,” the Court of Appeal concluded that Pro-NFZ clearly met that test
as the proponent of an initiative potentially jeopardized by the late filing of an
opposition ballot argument. (Sonoma County Nuclear Freeze Zone, supra, 189
Cal.App.3d at p. 175.)
Thus,
Sonoma County Nuclear Free Zone does not support Connerly’s
position. Inasmuch as a real party’s direct interest must be, like a beneficial
interest, 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,” then Pro-
NFZ as the proponent of the ballot initiative clearly met that definition when it
came to litigation involving that initiative. Connerly identifies no comparable
special interest for the California Business Council in the present case. Of course,
amici curiae almost by definition have a particular ideological or policy focus that
12

---

motivates them to participate in certain litigation, notwithstanding the lack of a
direct interest in the litigation’s outcome. But the California Business Council’s
policy interest in the present case in maintaining some affirmative action programs
is no different in kind from that of the typical amicus curiae and no different in
substance from like-minded members of the general public.
Connerly cites a number of cases in which real parties were awarded
section 1021.5 attorney fees. These cases also do not support his position. In
Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, attorney fees were
imposed against the author of a contested ballot argument in support of a local
initiative that gave rise to the litigation. Plaintiffs filed a petition for writ of
mandate against the City of Berkeley challenging the ballot argument as false and
misleading under Elections Code section 5025. After entry of a stipulated
judgment that required several changes to the ballot argument, attorney fees were
assessed against the author under section 1021.5. (Washburn, supra, at p. 581.)
As in Sonoma County Nuclear Free Zone, the initiative proponent and author of
the offending ballot argument was deemed a real party in interest because she
signed the argument at issue in favor of the recycling measure. (Washburn, supra,
at p. 582.) Moreover, as the author of the partially misleading ballot argument,
she was largely responsible for causing the conditions that gave rise to the
litigation.
In
Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493,
517-518, the court awarded attorney fees not only against the Coastal Commission
in a challenge to a defective local coastal plan (LCP), but against two landowners,
real parties in interest, whose developments were authorized by the plan and who
participated in the litigation. Although it is unclear to what extent the landowners
13

---

participated in devising the LCP, it can be reasonably inferred they had a direct
interest in the plan, which authorized extensive development. Thus, although we
have no occasion to determine whether the case was correctly decided, we note
that it is distinguishable from the present one inasmuch as the landowners in that
case, unlike the California Business Council, were bona fide real parties with a
direct interest in the litigation that differed from the general public.
In
San Bernardino Valley Audubon Society, Inc. v. County of San
Bernardino (1984) 155 Cal.App.3d 738, plaintiff Audubon Society successfully
challenged the approval of a cemetery on the grounds that the environmental
impact report was inadequate. The trial court awarded attorney fees to be paid by
the county and real party in interest Gold Mountain Memorial Park, Inc., the
owner and would-be developer of the property in question. Gold Mountain argued
on appeal that the county alone was found to have acted improperly. As the court
further stated: “As noted in Wilderness Society v. Morton (D.C. Cir. 1974) 495
F.2d 1026, fees granted under the private attorney general theory are not intended
to punish those who violate the law but rather to ensure that those who have acted
to protect public interest will not be forced to shoulder the cost of litigation. In
this case, Gold Mountain was a major party, actively litigating from the inception
of the action in order to protect its interests. As the real party in interest, it had the
most to gain. When a private party is a real party in interest and actively
participates in litigation along with the governmental agency, it is fair for that
party to bear half the fees.” (San Bernardino Valley Audubon Society, Inc., supra,
155 Cal.App.3d at p. 756.) Thus, it was real party’s pursuit of its direct interest
that gave rise to the underlying litigation.
14

---

In
Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810 (Blasius),
members of the public sought via a lawsuit to maintain public access to a road on
private property adjacent to a canal and to quiet title to the public easement, after
the property owner put up gates blocking such access. The Nevada Irrigation
District (NID), which had its own easement giving it access to the canal, was not a
real party in the action, but a named defendant. It joined the property owner in
defending the public access closure, presumably because it was opposed to sharing
its easement with the public. (Id. at pp. 826-827 [landowners argue that NID
easement is incompatible with public easement].) The trial court entered a
judgment granting an easement for a public right-of-way “subordinate to the
easement rights . . . held by the defendant [NID].” (Id. at p. 819.)
After the plaintiffs prevailed on the public access issue, the trial court
awarded attorney fees against both the landowner and NID. NID argued on appeal
against such fees, not on the grounds that it was not an opposing party, but that the
plaintiffs were not a “successful” party with respect to NID, because the removal
of the gate affected the landowner’s property interest, not NID’s. The Court of
Appeal, in upholding the attorney fee award, stressed NID’s active role in the
litigation. (Blasius, supra, 78 Cal.App.4th at p. 836.) Furthermore, the court, in
upholding the award of costs to the plaintiff as a prevailing party pursuant to
section 1032, clarified that plaintiffs’ success in quieting title to the public
easement made it a prevailing party over NID, which sought to have exclusive
easement rights to the property in question. (Id. at p. 839.)
Thus, in all of the above cases, those found liable for section 1021.5 fees
were either real parties in interest that had a direct interest in the litigation, the
furtherance of which was generally at least partly responsible for the policy or
15

---

practice that gave rise to the litigation, or were codefendants with a direct interest
intertwined with that of the principal defendant. In no case did the opposing party
have only an ideological or policy interest typical of an amicus curiae, as the
California Business Council does in the present case. Although some of the courts
above stressed active participation in the litigation as grounds for awarding
attorney fees, no court has held that active participation alone, without a direct
interest in litigation, can be grounds for awarding section 1021.5 fees.
Connerly nonetheless argues, in effect, that a litigant’s active participation
in the litigation by itself can convert an amicus curiae into a real party in interest
liable for attorney fees under section 1021.5. As discussed above, the California
Business Council acted in many respects as lead counsel on the litigation,
answering the petition for writ of mandate, seeking discovery and litigating a
discovery motion, seeking to remove the case to federal court, winning recusal of
a judge, and providing the most substantive briefing on the issue. It played this
active role, however, at plaintiff’s invitation and with the encouragement of the
trial court, in order to conduct litigation that would otherwise not have been
adversarial.5 There is no indication the Legislature contemplated that someone in

5
Connerly asserted in his brief and at oral argument that the trial court had
determined that “sufficient adversity existed between the petitioners and
respondents without the participation of the [California Business Council].” That
assertion is not supported by the record. In fact, the trial court made clear that it
was troubled by the lack of actual adversity in the case. It addressed that issue in
part by quoting Witkin that for the traditional requirement of opposing parties,
“the court has simply substituted the practical requirement of opposing
counsel. . . . The danger of the friendly suit displacing litigation by the real parties
in interest is minimized by a liberal practice of allowing intervention or its
equivalent ⎯ briefs and oral argument by amici curiae.” (3 Witkin, Cal.
Procedure (2005 supp.) Actions, § 77, p. 141, second italics added.) The court

(footnote continued on next page)
16

---

that circumstance, who was neither a defendant nor an authentic real party, could
be considered an opposing party within the meaning of section 1021.5.
Moreover, as we have stated, “ ‘[T]he fundamental objective of the [private
attorney general] doctrine is to encourage suits enforcing important public policies
by providing substantial attorney fees to successful litigants in such cases.’ ”
(Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 565.) Given the
existence of state defendants, and their uncontroverted liability for attorney fees,
making the California Business Council also liable for those fees is not necessary
to fulfill that purpose.
Furthermore, construing section 1021.5 to allow liability against the
California Business Council would be contrary to the judicial policy discussed
above of welcoming amici curiae in order to “facilitate informed judicial
consideration of a wide variety of information and points of view that may bear on
important legal questions.” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p.
405, fn. 14.) The role of an amicus curiae becomes more, not less, important when

(footnote continued from previous page)

then stated that the above analysis “has some application to this case given the
character of the [California Business Council] and the . . . ferocity of their
responses.” When the court nonetheless expressed some uncertainty regarding
adversity with respect to the General Services Administration, Connerly’s counsel
himself stated: “Again, the [California Business Council] we believe provide[s]
the adversity.” In making its final decision that sufficient adversity existed, the
trial court again referenced the above discussion in Witkin and the “vigorousness”
of the arguments presented in the court. It is therefore clear that the California
Business Council’s participation in the lawsuit was integral to the trial court’s
determination that there was sufficient adversity to permit the lawsuit to go
forward.
17

---

a supposedly opposing party curtails or altogether withdraws its participation in
the litigation, as largely occurred in the present case, thereby depriving the court
of reasonable counterarguments to a plaintiff’s position. Although the California
Business Council’s role in the litigation was greater than that of the typical amicus
curiae, its basic function was the same: to advocate a position not out of a direct
interest in the litigation but from its own views of what is legally correct and
beneficial to the public interest. The policy of encouraging amicus curiae
participation is not compatible with a rule that would place such a litigant at risk
for attorney fees. While liability for attorney fees under section 1021.5 is based on
statute rather than judicial policy, we can discern no indication that the Legislature
that enacted section 1021.5 intended to undermine the above policy by penalizing
with attorney fees those in the California Business Council’s position.
Our observation that the state agencies in this case largely declined to
defend the challenged statutes does not imply that these agencies committed
misconduct. Although under article III, section 3.5 of the California Constitution,
state agencies are obliged to continue to enforce statutes that appear to them to be
unconstitutional (see Lockyer v. City and County of San Francisco (2004) 33
Cal.4th 1055, 1082-1084), whether they have an obligation to defend such statutes
in court is a complex issue, which we need not decide here. Nonetheless, the state,
through its elected representatives, possessed the power, and indeed the exclusive
power, to abandon or change the statutory scheme. Because it declined to do so,
the burden of paying Connerly’s attorney fees is properly imposed on the state,
rather than on an amicus curiae that steps into the breach to advocate for the
18

---

undefended statutes.6
We therefore hold that the California Business Council may not be held
liable for section 1021.5 fees.

III.
DISPOSITION
The judgment of the Court of Appeal affirming an award of attorney fees
against the California Business Council is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.

6
Both the California Business Council and Connerly cite in support of their
positions cases involving parties that formally intervened in litigation. (See
Independent Federation of Flight Attendants v. Zipes (1989) 491 U.S. 754 (Zipes);
Charles v. Daley (7th Cir. 1988) 846 F.2d 1057.) Under California law, at least,
an intervenor is considered a full-fledged party to an action by virtue of the order
authorizing the intervention. (Hospital Council of Northern Calif. v. Superior
Court (1973) 30 Cal.App.3d 331, 336; see 4 Witkin, Cal. Procedure (4th ed. 1997)
§ 207, p. 265.) In Charles v. Daley, the intervenor acted on behalf of the
defendant’s position, and the court concluded that attorney fees against the
intervenor pursuant to 42 U.S.C. section 1988 was warranted. In Zipes, the
intervenor union acted more as a plaintiff than as defendant, arguing against the
use of seniority rights as a remedy for past discrimination that would adversely
affect its membership. (Zipes, supra, 491 U.S. at p. 757.) Without deciding issues
not before us, we note that neither of these cases is particular apposite to the
present one. The California Business Council is not an intervenor, and is not
acting as a plaintiff pursuing its own pecuniary interests.
19

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Connerly v. State Personnel Board
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 5/14/04 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125502
Date Filed: March 2, 2006
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Lloyd Connelly

__________________________________________________________________________________

Attorneys for Appellant:

Pacific Legal Foundation, Anthony T. Caso, Deborah J. La Fetra and Timothy Sandefur for Plaintiff and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Ralph D. Black for Defendants and Respondents Board of Governors of the California Community
Colleges and Thomas J. Nussbaum, Chancellor of the California Community Colleges.

Bill Lockyer, Attorney General, Louis R. Mauro, Assistant Attorney General, Catherine Van Aken and
Leslie R. Lopez, Deputy Attorney Generals, for Defendants and Respondents Phil Angelides, Treasurer of
the State of California, Joan Wilson, Director of the California State Lottery and the California State
Lottery Commission.

No appearance for Defendants and Respondents State Personnel Board and Steve Westly, State Controller.

Munger, Tolles & Olson, Jeffrey L. Bleich, Anne M. Voigts and John C. Day for Real Parties in Interest
and Appellants.

Hugh F. Young, Jr., and Harvey M. Grossman for The Product Liability Advisory Council, Inc., as Amicus
Curiae on behalf of Real Parties in Interest and Appellants.
20

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Timothy Sandefur
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA 95834
(916) 419-7111

Jeffrey L. Bleich
Munger, Tolles & Olson
560 Mission Street, 27th Floor
San Francisco, CA 94105-2907
(415) 512-4000

21

---

Opinion Information

Date:	Docket Number:
Thu, 03/02/2006	S125502

Disposition
Mar 2 2006	Opinion: Reversed

Dockets
Jun 11 2004	Petition for review filed   by RPIs/Aplts
Jun 16 2004	Received Court of Appeal record   one doghouse
Jun 17 2004	Answer to petition for review filed   (in Sacramento) by counsel for plaintiff and appellant (Ward Connerly)
Jun 25 2004	Reply to answer to petition filed
Jul 29 2004	Time extended to grant or deny review   to and including September 9, 2004
Aug 11 2004	Letter sent to:   All parties enclosing a copy of the grant order and the certification of interested entities and persons form.
Aug 11 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Werdegar, and Moreno, JJ.
Aug 13 2004	Note:
Aug 19 2004	Certification of interested entities or persons filed   Respondent ( Board of Governors of the CA Community Colleges & Chancellor's Office ).
Aug 23 2004	Request for extension of time filed   By RPI {The California Business Council for Equal Opportunity et al.,} requesting a 29-day extension to October 8, 2004.
Aug 25 2004	Extension of time granted   To October 8, 2004 to file RPIS' Opening Brief on the Merits.
Aug 25 2004	Certification of interested entities or persons filed   Appellant ( Connerly).
Aug 26 2004	Certification of interested entities or persons filed   Respondent State Personnel Board
Aug 26 2004	Received:   Letter from the Attorney General dated 8-24-2004 that the State Treasurer and the State Lottery have taken no position on the merits of the petition for review and will not be appearing in this case.
Aug 26 2004	Certification of interested entities or persons filed   Respondent ( Department of General Services).
Aug 26 2004	Certification of interested entities or persons filed   RPI ( Calif. Business Council ).
Sep 13 2004	Received:   Letter from Steve Westly, Cal State Controller dated 9-10-2004, has no position on the merits of the petition for review, and will not be appearing in this case.
Sep 30 2004	Change of contact information filed for:   Law firm of Munger, Tolles & Olson ( for RPI).
Oct 8 2004	Opening brief on the merits filed   RPI ( California Business Council).
Oct 15 2004	Request for extension of time filed   By counsel for Respondent/Cross-Appellant {Ward Connerly} requesting a 30-day extension to and including December 8, 2004 to file Answer Brief on the Merits.
Oct 20 2004	Extension of time granted   to Dec. 8, 2004 for respondent/ cross- appellant ( Connerly) to file the answer brief on the merits.
Oct 29 2004	Association of attorneys filed for:   Timothy Sandefur as counsel for Respondent Ward Connerly.
Dec 8 2004	Answer brief on the merits filed   Respondent ( Connerly).
Dec 15 2004	Request for extension of time filed   RPI (Calif. Business Council ) to file the Reply Brief on the Merits. Asking to Jan. 20,2005
Dec 20 2004	Extension of time granted   to Jan. 20, 2005 for RPI ( Calif. Business Council) to file the reply brief on the merits.
Jan 20 2005	Reply brief filed (case fully briefed)   RPI ( California Business Council.)
Jan 28 2005	Received application to file Amicus Curiae Brief   Product Liability Advisory Council, Inc. [in support of real parties]
Feb 3 2005	Permission to file amicus curiae brief granted   The application of Product Liability Advisory Council, Inc. for permission to file an amicus curiae brief in support of real parties/appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 3 2005	Amicus curiae brief filed   by Product Liability Advisory Council, Inc. in support of real parties/appellants.
Feb 23 2005	Response to amicus curiae brief filed   by Respondent Ward Connerly to Amicus Brief of Products Liability Advisory Council, Inc.
Dec 14 2005	Case ordered on calendar   January 10, 2006, 9:00 a.m., in San Francisco
Dec 19 2005	Request for Extended Media coverage Filed   John Hancock, The California Channel.
Dec 21 2005	Request for Extended Media coverage Granted   subject to the conditions ste forth in rule 980, California Rules of Court.
Jan 10 2006	Filed:   stipulation of counsel regarding Justice Chin's participation in the case.
Jan 10 2006	Cause argued and submitted
Jan 13 2006	Received:   Letter from Timothy Sandefue, Counsel for Respondent Ward Connerly, dated 1/12/2006.
Mar 2 2006	Opinion filed: Judgment reversed   Judgment of the Court of Appeal affirming an award of attorney fees against the California Business Council is reversed. Opinion by: Moreno, J. -- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJS.
Apr 5 2006	Remittitur issued (civil case)
Apr 7 2006	Received:   Receipt for remittitur fromThird Appellate District, signed for by Grace Emero, Deputy.

Briefs
Oct 8 2004	Opening brief on the merits filed
Dec 8 2004	Answer brief on the merits filed
Jan 20 2005	Reply brief filed (case fully briefed)
Feb 3 2005	Amicus curiae brief filed
Feb 23 2005	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website