The Volokh Conspiracy

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Challenge to California Fee-Shifting Statute That Targets Gun Lawsuit Plaintiffs (and Lawyers) Can Proceed

The case is not rendered moot or unripe, the court says, by the California AG's "commitment not to seek attorney's fees or costs under this provision 'unless and until a court ultimately holds that the fee-shifting provision in [a similar Texas law provision related to abortion] is constitutional and enforceable....'"


From Miller v. Bonta, decided yesterday by Judge Roger Benitez (S.D. Cal.):

Plaintiffs seek injunctive relief from a newly-enacted California state law adding an attorney's fees and costs shifting provision codified at California Code Civ. Procedure § 1021.11….

Fee shifting provisions are not unusual in American law. But this one is. This provision applies only to suits challenging a law that regulates or restricts firearms. And while the provision entitles a prevailing party to be awarded its attorney's fees and costs, by the statute's definition, a plaintiff cannot be a prevailing party…. [T]he provision remarkably also makes attorneys and law firms that represent non-prevailing plaintiffs jointly and severally liable to pay defense attorney's fees and costs.

After these Plaintiffs filed the instant actions, the Defendant Attorney General announced his commitment not to seek attorney's fees or costs under this provision "unless and until a court ultimately holds that the fee-shifting provision in [a similar Texas law provision] is constitutional and enforceable…." In view of his commitment, the Defendant Attorney General asserts that this Court lacks Article III jurisdiction. He contends that because of his current commitment to not enforce the fee-shifting provision, the Plaintiffs have not suffered an injury in fact, and the case is not ripe.

This Court takes a different view. The recent commitment by the Office of the Attorney General is not unequivocal and it is not irrevocable. On the contrary, it evinces an intention to enforce the statute if a somewhat similar Texas statute is found to be constitutionally permissible. Consequently, it appears from the pleadings and the Plaintiffs' declarations that there is a ripe case and controversy that is not made moot by the Defendant Attorney General's announcement of non-enforcement….

"[T]he 'chilling effect' associated with a potentially unconstitutional law being 'on the books' is insufficient to 'justify federal intervention' in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right."

[But h]ere, there is a more concrete injury. Plaintiff Firearms Policy Coalition has challenged California firearm regulations in court in the past and is presently involved in cases that will not conclude before the fee-shifting provision takes effect. Because of the risk of fees and costs that could be imposed by virtue of § 1021.11, the Firearms Policy Coalition has dismissed, delayed, or refrained from litigating constitutional claims. It has been forced by the looming fee-shifting provision to dismiss a case that challenged an ordinance regulating firearms passed by the City of San Jose, California. Likewise, it planned to file challenges to other state regulations on firearms but has refrained because of the enactment of § 1021.11. [The same is true of Plaintiffs Second Amendment Foundation and San Diego County Gun Owners and others.] …

Before the Defendant Attorney General filed his opposition brief with his commitment of non-enforcement in this case, his office appears to have bargained for a dismissal of a Commerce Clause claim for a firearm regulation challenge in exchange for the State waiving any § 1021.11 fee claim in a separate case. See Boland v. Bonta, Case No. 8:22-cv-1421-CJC(ADSx), Order Re: Stipulation to Dismiss Second Claim for Relief With Prejudice, (C.D. Cal. Sept. 26, 2022).

Even after the briefing in this case, it could be said that Defendant Attorney General is still leveraging the threat of recouping his attorney's fees under § 1021.11 to persuade other plaintiffs to dismiss a federal court challenge to a California firearm regulation. See Defense Distributed v. Bonta, Case No. 2:22-cv-6200-GW-AGR, Stipulation re: Dismissal of Action With Prejudice and Waiver and Release of Claims (C.D. Cal. Nov. 18, 2022), at ¶ 3 ("The parties now agree that the First Amended Complaint should be dismissed in exchange for a waiver of fees and costs, and that Defendants should waive and release any and all claims they may have under California law against Plaintiff, its principals, agents and attorneys, arising out of Code of Civil Procedure section 1021.11 that could have been brought with respect to the First Amended Complaint.").

Based on these declarations, there was at the filing of the instant action(s) a ripe case or controversy based on actual injuries-in-fact which continues to the present. These adverse effects are neither abstract nor hypothetical. The enactment of § 1021.11 is presently tending to insulate California firearm regulations from constitutional review.

Individuals, associations, and attorneys who ordinarily represent such clients are refraining from seeking judicial relief from California regulations that they believe conflict with federal constitutional rights. The injuries are concrete and particularized, actual and imminent, and not conjectural or hypothetical.

The American court system and its forum for peacefully resolving disputes is the envy of the world. One might question the wisdom of a state law that dissuades gun owners from using the courts to peacefully resolve disagreements over the constitutionality of state laws. The law at issue here is novel. As four concurring Justices recently said in a Texas case with similarities, "where the mere 'commencement of a suit,' and in fact just the threat of it, is the 'actionable injury to another,' the principles underlying [Ex parte] Young authorize relief against the court officials who play an essential role in that scheme. Any novelty in this remedy is a direct result of the novelty of Texas's scheme." The same principles authorize relief against the state officials here….

If Defendant Attorney General committed to not enforcing § 1021.11 and entered into a consent judgment binding himself, his office, his successors and district attorneys, county counsel, and city attorneys, it might be a closer question[, though again], this does not prevent future Attorneys General or other state statutes from being enacted and enforced. But that is not this case. In this case, the commitment of non-enforcement is conditional. The Defendant Attorney General says that his cessation of enforcement in a seeming case of tit-for-tat will end if, and when, a purportedly similar one-sided fee-shifting Texas statute is adjudged to be constitutional. Certainly, that condition may or may not occur.

In the meantime, the statute remains on California's books. And the actual chilling effect on these Plaintiffs' constitutional rights remains. Therefore, the case is not moot.