Public-interest litigants across the political spectrum pursue their ideological goals in court. In such cases, a private plaintiff or group of private plaintiffs (frequently using the class action procedure)5 sue the government for failure to comply with constitutional mandates or statutory requirements.6 Because of the very nature of their claims, which resonate beyond their individual circumstances, public-interest litigation often draws intervenors.7 Usually, intervenors align with private plaintiffs against a public entity defendant.8 Occasionally, intervenors align with a public entity plaintiff against a public entity defendant.9 Plaintiff-intervenors may recover fees under both federal and state “private attorney general” fee-shifting statutes when the intervenors show that their contribution was necessary and important.10

Fee-seeking intervenors who align with public entity defendants, however, present greater concerns, particularly in California. As explained below, under federal law, defendant-intervenors can recover fees against public-interest plaintiffs only under the most narrow circumstances: when the lawsuit was frivolous, unreasonable, or without foundation at the time it was filed.11 California appellate courts have not yet determined when defendant-intervenors are entitled to recover fees from a public-interest plaintiff under California Code of Civil Procedure § 1021.5. The appellate courts’ silence has emboldened trial courts to make such awards, a new development in public- interest litigation. For example:

Charter School Facilities. Adopted in 2000, Proposition 39 requires school districts to provide facilities to charter schools within the districts under certain circumstances.12 The California School Boards Association, a nonprofit private organization,13 sued the California State Board of Education to invalidate regulations implementing Proposition 39. The trial court granted intervention to the California Charter Schools Association, a private advocacy organization that promotes the interests of charter schools statewide, and which was aligned with the defendant State. After extensive litigation resulted in a published decision upholding the regulations,14 the defendant-intervenor Charter Schools Association sought fees from the plaintiff School Boards Association. The trial court awarded $46,250.15 There was no appeal.

Ballot Access Initiative. Six individual activists who promoted ballot access for new and minor parties and independent candidates sued California elections officials to overturn Proposition 14, the “top two law” that permits only the candidates who received the first and second highest vote totals in the primary to run in the subsequent general election.16 As a practical matter, this means that the general election often features two candidates from the same party. Although the California Attorney General’s office defended the law on behalf of the election officials, the initiative’s sponsors17 moved to intervene to share in the law’s defense. The trial court upheld the law and the Court of Appeal affirmed.18 The plaintiffs chose not to petition the California Supreme Court for review and undoubtedly thought the litigation was over. However, the defendant-intervenors moved for attorney fees. Over plaintiffs’ objections, the Superior Court awarded nearly $245,000.19 There was no appeal.

Inclusive Housing Ordinance. The city of San Jose adopted an inclusive housing ordinance in response to the lack of affordable housing in the area. The ordinance requires residential developers to set aside a certain percentage of new units to sell at below-market rates, or to pay an in-lieu fee. The California Building Industry Association (CBIA), a private trade association representing businesses throughout the homebuilding and development sector, sued the city on behalf of its members, arguing that the ordinance violated the takings clauses of the state and federal Constitutions.20 Although the city committed to defending the ordinance, and even hired outside counsel to that end,21 several affordable housing advocacy groups sought to intervene in defense of the law.22 Over CBIA’s objection, the trial court granted intervention. The trial court agreed with CBIA’s claims and enjoined the ordinance, but the Court of Appeal reversed and the California Supreme Court ultimately upheld the law.23 The U.S. Supreme Court denied CBIA’s petition for a writ of certiorari.24 The defendant-intervenors subsequently moved for attorney fees against CBIA, which the trial court awarded to them in an amount of over $826,000.25 CBIA appealed, then settled.

In all three cases, private public-interest plaintiffs sued public agency defendants and objected to the intervention of private advocacy groups that, for the most part, duplicated the state’s efforts to defend the challenged laws. When the plaintiffs filed their lawsuits against the government, they bore no risk of paying attorney fees in the event that they were unsuccessful, because California’s state fee-shifting statute explicitly forbids recovery by a public agency against a private plaintiff.26 And until these very recent cases, plaintiffs had no reason to expect that the introduction of defendant-intervenors into the lawsuit changed that calculus.27 However, the recent trend of courts allowing private intervenors to participate as defendants in these cases, and then to recover an award of fees, poses a real threat to public-interest litigation in California. If defendant-intervenors are able to establish the right to attorney fees under Section 1021.5 for assisting in the defense of a public- interest plaintiff’s unsuccessful constitutional suit, it will have a profound chilling effect on public-interest legal organizations’ ability to retain clients willing to accept the risk of loser-pays.28 This inverts the purpose of section 1021.5 and presents significant First Amendment problems.