Head, In re

Decision Date24 July 1986
Citation42 Cal.3d 223,721 P.2d 65,228 Cal.Rptr. 184
Parties, 721 P.2d 65 In re Joel HEAD et al., on Habeas Corpus. Crim. 24619.
CourtCalifornia Supreme Court

Donald Specter and Margaret Littlefield, Prison Law Office, San Quentin, for petitioners.

John H. Hagar, Jr., Marina Del Rey, and Paul Hoffman, as amici curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., Karl S. Mayer, Asst. Atty. Gen., Kenneth C. Young, Elizabeth Edwards, Paul Gifford, Catherine Rivlin and Thomas P. Dove, Deputy Attys. Gen., San Francisco, for respondent.

GRODIN, Justice.

Three prison inmates represented by the Prison Law Office 1 challenged the procedures under which the Department of Corrections implemented the work furlough program authorized by Penal Code sections 6260-6265. After consolidating the petitions the superior court found the procedures to be constitutionally inadequate. That court ordered individualized consideration of inmates to determine eligibility for participation in the program under procedures that would afford due process. The ruling was affirmed on appeal (In re Head (1983) 147 Cal.App.3d 1125, 195 Cal.Rptr. 593) after which the Prison Law Office requested, and pursuant to Code of Civil Procedure section 1021.5 (section 1021.5 hereafter), 2 the superior court awarded attorney fees of $3,350.

On appeal by respondent Director of Corrections, the Court of Appeal reversed the order awarding attorney fees. The court held that section 1021.5 applies only to civil cases, and that because habeas corpus is a special proceeding of a criminal nature and not a civil action, an award of attorney fees to the Prison Law Office for its services in representing the petitioners in this case was not authorized by that section. We granted the petition of the Prison Law Office for review of that decision. (Cal.Rules of Court, rule 28(a)(2).) 3

We shall conclude that the nature of the relief sought, not the label or procedural device by which the action is brought, is determinative of the right to seek fees under section 1021.5. The petitions here presented issues related to the conditions of confinement in a state prison and involved the rights of prison inmates generally. Vindication of these rights is not analogous to a defense against a criminal prosecution. Rather, as respondent concedes, the petitioners' claim is of such a nature that it might have been presented in a purely civil proceeding--by petition for writ of mandate or action for declaratory relief--in which case no question would be raised as to the propriety of the award. 4 That petitioners elected to utilize the more expeditious, simplified and less expensive procedure of habeas corpus to vindicate their rights, should not affect the availability of a fee award. We therefore hold that the award of attorney fees in this case was proper under section 1021.5, and reverse the decision of the Court of Appeal.


Section 1021.5 was added to the Code of Civil Procedure in 1977. (Stats.1977, ch. 1197, § 1, p. 3979.) The statute is a legislative codification of the doctrine under which courts had exercised their inherent power to award attorney fees under the "private attorney general" rationale. "As we explained in Serrano III [Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303], the fundamental objective of the private attorney general doctrine of attorney fees is ' "to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens." ' (20 Cal.3d at p. 43, 141 Cal.Rptr. 315, 569 P.2d 1303 (quoting D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 27, 112 Cal.Rptr. 786, 520 P.2d 10).) The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.)

Since the enactment of section 1021.5, which created the right to attorney fees for actions vindicating statutory rights as well as the constitutional rights at issue in Serrano III, this court and the Court of Appeal have approved its application in a variety of contexts. (E.g., Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 193 Cal.Rptr. 900, 667 P.2d 704 [the right of free expression and petition guaranteed by Cal. Const.]; Serrano v. Unruh (1982) 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985 [the right under § 1021.5 itself to an attorney fee award]; Woodland Hills, supra, 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200 [the right under the Subdivision Map Act (Gov.Code, §§ 66473.5, 66474.60) to specific findings that a proposed subdivision was consistent with the city's general plan].)

When the form of proceeding has been mandamus, rather than habeas corpus, the fact that it is the rights of criminal defendants or inmates that are vindicated has proved no bar to recovery. In Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 184 Cal.Rptr. 78, the Court of Appeal ordered fees paid under section 1021.5 to counsel for a misdemeanor defendant who brought a mandate proceeding to vindicate the right of himself and all misdemeanor defendants to sentencing in absentia. (Pen.Code, § 1193, subd. 2.) Later, in Daniels v. McKinney (1983) 146 Cal.App.3d 42, 193 Cal.Rptr. 842, a mandate proceeding treated by the superior court as one for habeas corpus, the Court of Appeal held that counsel for jail inmates who had vindicated their right to exercise while confined, were entitled to an award of fees under section 1021.5. (See also Inmates of Sybil Brand Institute for Women v. County of Los Angeles (1982) 130 Cal.App.3d 89, 112-114, 181 Cal.Rptr. 599.)

Thus, if this proceeding had been brought in mandamus, attorney fees under section 1021.5 would have been available. Nonetheless, the Court of Appeal concluded that section 1021.5 could not have been intended to apply to habeas corpus proceedings because the statutory procedures governing issuance of the writ are found in the Penal Code. (Pt. 2, tit. 12, § 1473 et seq.) In so concluding, the court relied upon language in Fogelson v. Municipal Court (1981) 120 Cal.App.3d 858, 175 Cal.Rptr. 64 to the effect that "attorney fees provisions in the Code of Civil Procedure do not deal with criminal actions, unless the words or context compel a holding that they do." (Id., at p. 862, 175 Cal.Rptr. 64.)

The context of Fogelson was quite different, however. In that case the fees sought were for defense and appeal in a criminal prosecution. Former Justice Kaus, after examining all available legislative history of that section, concluded that "nothing so much as winks at the possibility that section 1021.5 might be applied to attorney's fees incurred in the defense of criminal cases." (Id., at p. 861, 175 Cal.Rptr. 64, italics added.)

Justice Kaus was correct. Both the language of section 1021.5 and the history of the private attorney general doctrine which it codifies reflect a legislative purpose of encouraging the initiation of actions to vindicate statutory and constitutional rights, as well as important public policies, in circumstances in which the expense of litigation would otherwise deter private parties from doing so. The criminal defendant does not initiate the action, and his self interest provides incentive enough to assert available defenses. The criterion of section 1021.5 that "the necessity and financial burden of private enforcement are such as to make the award appropriate" is not met simply because establishing the availability of the defense which is offered incidentally benefits other defendants in similar cases. A decision which has as its primary effect the vindication of the litigant's personal rights is not one which brings into play the attorney fees provisions of section 1021.5. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 167, 188 Cal.Rptr. 104, 655 P.2d 306.)

The reasoning in Fogelson, however, has no application here. That habeas corpus proceedings are governed by provisions of the Penal Code ( § 1473 et seq.) is beside the point. These provisions neither define offenses nor establish defenses. They do create a procedure by which prisoners may vindicate rights related to their confinement and release (see In re Harrell (1970) 2 Cal.3d 675, 682, 87 Cal.Rptr. 504, 470 P.2d 640), which may be utilized as an alternative to actions for declaratory or injunctive relief and/or mandamus. As we said in Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437, albeit in a different context, "[t]he critical fact is the impact of the action, not the manner of its resolution." How the party achieves the goal of enforcing the right in question is not determinative of the right to an award of attorney fees under section 1021.5. The impact of the litigation is.


A prisoner has numerous constitutional rights related to the conditions of his confinement or the lawful execution of his sentence which are independent of the criminal prosecution that led to his status as prisoner. Among these are his state and federal constitutional rights against cruel and/or unusual punishment (U.S. Const., Amend. VIII; Cal. Const., art. I, § 17), and his rights to religious freedom, access to the courts, and freedom from invidious discrimination based on race. (Wolff v. McDonnell (1974) 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, and cases cited.) These fundamental constitutional rights reflect strong public policies, any institutional violation of which of necessity affects a...

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