S. Bay Rod & Gun Club v. Bonta
| Decision Date | 19 December 2022 |
| Docket Number | 22cv1461-BEN (JLB) |
| Parties | SOUTH BAY ROD & GUN CLUB, Inc., et al., Plaintiffs, v. Rob Bonta, Attorney General of California, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
“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.[1]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.
Plaintiffs seek injunctive relief from a newly-enacted California state law adding an attorney's fees and costs-shifting provision enacted as section 2 of Senate Bill 1327, codified at California Code Civil Procedure § 1021.11.[2] The Plaintiffs have Article III standing and there exists a continuing live case or controversy, as this Court found in its previous Order (dated December 1, 2022). The Defendant Attorney General of the State of California declines to defend the law. The Governor of the State of California has been granted leave to intervene to defend the law. The parties were given notice that the hearing on the preliminary injunction would be combined with the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Declarations have been admitted into evidence and the combined preliminary injunction hearing and trial on the merits has taken place.
The Intervenor-Defendant Governor describes the California law as identical or virtually identical to a Texas law known as S.B. 8.[3]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.[4]California's Code of Civil Procedure § 1021.11 applies only to cases challenging firearm restrictions.[5]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. 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.
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.[6] Today, it applies to Second Amendment rights.[7]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.” California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (citation omitted). “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983). “[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.'” Cruz v. Beto, 405 U.S. 319, 321 (1972) (citations omitted).
Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907) (citations omitted). 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.
Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle.
Boddie v. Connecticut, 401 U.S. 371, 375 (1971). Laws like § 1021.11 that exact an unaffordable price to be heard in a court of law are intolerable.
Courts are the central dispute-settling institutions in our society. They are bound to do equal justice under law, to rich and poor alike. They fail to perform their function in accordance with the Equal Protection Clause if they shut their doors to indigent plaintiffs altogether. Where money determines not merely “the kind of trial a man gets,” but whether he gets into court at all, the great principle of equal protection becomes a mockery.
Id. at 388-89 (Brennan, J, concurring) (citations omitted). 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. Chambers and Boddie were concerned with the cost of getting into court, but the principle is equally applicable to the cost of leaving court. 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. Legal Services Corp. v. Velazquez, 531 U.S. 533, 548 (2001).[8]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...
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