The Volokh Conspiracy
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$130,000 Attorney Fee in Pomona College's Denial of Due Process
The California Court of Appeal upheld the fee, awarded to a student who had been accused of sexual misconduct.
From Doe v. Pomona College, decided Thursday:
A college student was successful in obtaining a writ overturning his college's finding that he had engaged in sexual misconduct against another student. Pursuant to Code of Civil Procedure section 1021.5, the court issuing the writ also awarded the student $130,000 in attorney fees…. The college challenges the fee award. Concluding there was no abuse of discretion, we affirm….
L.A. Superior Court Judge Mary H. Strobel had held for Doe on the merits, because it concluded that Pomona College's disciplinary hearings denied Doe due process:
The 2016 Policy, which supplied the procedural framework for the investigation and prosecution of Roe's complaint, purported to provide the accused with two opportunities to indirectly pose questions to the complainant—namely, (1) the accused could ask the External Adjudicator to overturn the Title IX Coordinator's finding and to outline further investigatory steps to be taken, including having the investigators pose further questions to the complainant, and (2) the accused could submit questions for the External Adjudicator to ask the complainant at the hearing.
Rather than allow Doe either opportunity, the External Adjudicator rejected Doe's request to have the investigators pose additional questions to Roe as part of a continued investigation because it was "more appropriate[]" to question her "at [the] hearing," but when Roe elected not to attend the hearing, faulted Doe for not submitting "questions in advance." The net result of the External Adjudicator's rulings, [Judge Strobel] found, was to deny Doe any opportunity to question Roe "directly or indirectly" and thus to deny Doe a fair hearing.
The trial court went on to find that this denial was prejudicial. Noting that the question of Roe's consent turned chiefly on the credibility of the only two percipient witnesses to the incident, the court found it "entirely unclear whether the [External Adjudicator] would have made the same credibility determination had Roe been questioned," especially in light of Roe's inconsistent accounts of the parties' sexual contact.
On appeal, the question was solely whether the $130,000 attorney fee award to Doe was within the trial court's discretion, and the Court of Appeal (per Justice Brian Hoffstadt, joined by Justices Judith Ashmann-Gerst and Victoria M. Chavez), said it was:
As a general rule, parties in litigation pay their own attorney fees. Section 1021.5 is an exception to that rule. Derived from the judicially crafted "private attorney general doctrine," section 1021.5 is aimed at encouraging litigants to pursue meritorious litigation vindicating important rights and benefitting a broad swath of citizens, and it achieves this aim by compensating successful litigants with an award of attorney fees.
To obtain attorney fees under section 1021.5, the moving party must establish that (1) it is "a successful party" in an "action," (2) the action "has resulted in the enforcement of an important right affecting the public interest," (3) the action has "conferred" "a significant benefit" "on the general public or a large class of persons," and (4) an award of attorney fees is "appropriate" in light of "the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity." Because the College does not dispute that Doe is a "successful party" or that an award of fees is "appropriate" in light of the "necessity and financial burden of private enforcement," our analysis is confined to asking whether the trial court abused its discretion in concluding that Doe met the remaining two eligibility requirements.
Enforcement of an important right affecting the public interest
The trial court did not abuse its discretion in ruling that Doe's action enforced an important right affecting the public interest. Courts have "broadly interpreted the important right concept" to encompass constitutional rights as well as statutory rights that further "important" rather than "trivial or peripheral public policies."
Doe's action enforced two important rights. First, it enforced the right to a fair hearing. "[D]ue process undoubtedly is an important right affecting the public interest," and is so critical that our Legislature and courts have required the administrative decisions of even private institutions to afford some modicum of due process. (§ 1094.5, subds. (a) & (b) [courts may grant writ of administrative mandamus where a "final administrative … decision" was not the product of "a fair trial"]; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 247-248; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1061, fn. 30.) Second, Doe's action enforced the right to have "'universit[ies] … comply with [their] own policies and procedures'" "'[w]here student discipline is at issue.'"
Conferring significant benefit on a large class of persons
… The [trial] court had a reasonable basis for concluding that the action conferred a significant benefit because, as noted above, the action effectuated the constitutionally grounded and statutorily enforced right to a fair hearing in administrative proceedings. The court also had a reasonable basis for concluding that Doe's action conferred this benefit upon a large class of persons—namely, the universe of the College's students subject to the College's misapplication of the 2016 Policy due to the College's refusal to rectify such misapplication.
The College proffers two reasons why the trial court nevertheless abused its discretion in concluding that Doe's action conferred a significant benefit upon a large class of persons.
First, the College asserts that Doe's lawsuit did not allege any intrinsic defects in the 2016 Policy and that the misapplication of that policy in Doe's case arose from a "unique set of circumstances" unlikely to arise again (that is, the External Adjudicator's misunderstanding of Doe's right to ask the investigators to ask follow-up questions of Roe prior to the hearing combined with Roe's last-minute failure to attend the hearing). We reject this assertion. Doe's decision not to challenge the 2016 Policy itself is irrelevant because what deprived Doe of a fair hearing was not the policy but its implementation. As noted above, a lawsuit that forces an entity to follow its own rules can confer a substantial benefit.
The trial court also had a reasonable basis for concluding that the denial of a fair hearing that happened to Doe would recur: Although the particular circumstances leading to the denial in Doe's case might not recur in exactly the same way, the College's refusal to rectify that denial through its internal appeals process, even when the denial was specifically called to its attention, demonstrated an insensitivity to due process concerns that was likely to recur. The College's further assertion that the External Adjudicator and the Dean of Students will not make the same mistakes twice ignores that the reason they will not is because of Doe's action….
