Serrano v. Priest

RICHARDSON, J.

I respectfully dissent. In the absence of any statutory authority therefor, the majority awards substantial attorneys’ fees to plaintiffs on the ground that plaintiffs’ counsel acted in the capacity of “private attorneys general” in vindicating constitutional rights for a large segment of our state’s population. I have previously, in my dissenting opinion in Serrano II (Serrano v. Priest (1976) 18 Cal.3d 728, 777-785 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ]), expressed the reasons for my disagreement with the majority’s premise that plaintiffs were denied equal protection of the laws under the state Constitution.

However, accepting as I must the Serrano II holding of a constitutional infringement, again with due deference, in considering the majority’s proposed “private attorney general” doctrine, I find more persuasive the rationale of the United States Supreme Court expressed recently in Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240 [ 44 L.Ed.2d 141 , 95 S.Ct. 1612 ], in which it declined to approve the doctrine in the absence of statutory guidance in this area. In passing, I note a *51 touch of irony in the fact that very recently we likewise and unanimously refused an invitation to adopt the identical “private attorney general” doctrine herein approved by the majority, observing that “the doctrine is currently under examination by the United States Supreme Court . . . and, pending an announcement by the high court concerning its limits and contours on the federal level, we decline to consider its possible application in this state.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 27 [ 112 Cal.Rptr. 786 , 520 P.2d 10 ].) The Supreme Court now has spoken, but the majority, ignoring its awaited reasoning and lessons, adopts a rule which the high court carefully considered and rejected. To me, Alyeska’s thesis is both compelling and fully applicable here for reasons which I briefly develop.

First, the high court noted that “Although ... Congress has made specific provision for attorneys’ fees under certain federal statutes, it has not changed the general statutory rule that allowances for counsel fees are limited to the sums specified by the costs statute.” (421 U.S. at pp. 254-255 [44 L.Ed.2d at pp. 151-152].) The high tribunal, cognizant of broad congressional authority over the matter of attorneys’ fees and court costs, reasoned further that “Under this scheme of things, it is apparent that the circumstances under which attorneys’ fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine.” (Id., at p. 262 [ 44 L.Ed.2d at p. 156 ], fn. omitted.)

Similarly, California, acting through its Legislature in parallel fashion, has expressly limited the manner of the award of attorneys’ fees. “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation ... is left to the agreement, express or implied, of the parties . . . .” (Code Civ. Proc., § 1021, italics added.) As with the Congress under the federal scheme, the California Legislature has clearly and “specifically provided ... by statute” for attorneys’ fees to be recovered in particular actions; as examples, in the Code of Civil Procedure, defamation (§ 836), condemnation, abandonment and dismissal (§ 1268.610), wage claim in municipal court (§ 1031), partition (§ 874.010, subd. (a)), and, in the Civil Code, dissolution of marriage (§ 4370). It has not elected as yet to provide for such recoveiy in actions such as the present one. The federal and California patterns are closely parallel. I think the better procedure is to accept the Alyeska model and, by recognizing the demonstrated legislative interest, to refrain from developing our own nonstatutory bases for such awards, thus deferring to the Legislature in this area in the same manner as the Supreme Court has deferred to the Congress.

*52 Second, I am further persuaded of the wisdom of the Alyeska reasoning by the high tribunal’s anticipation of the very considerable difficulty which courts would experience in attempting to “pick and choose,” among the multitudinous enactments, those particular statutes in which the public policy at issue is sufficiently “important” to justify recoveiy on a “private attorney general” theory. The Supreme Court voiced its legitimate concern in these words: “[I]t would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former.” (421 U.S. at pp. 263-264 [ 44 L.Ed.2d at p. 157 ].) We face identical obstacles which are not lowered because they are of state rather than federal origin.

Furthermore, and finally, the majority’s proposed refinement, limiting awards to cases involving constitutional rights, fails to avoid the pitfalls readily foreseen in Alyeska. A glance at our state Constitution discloses in article I alone, numerous “rights” of varying degrees of importance, ranging from the inalienable right to life, liberty and property (§ 1) to the right to fish in public waters (§ 25). Each of them presumably is a “constitutional” right.

Will the ambit of “rights” to which the doctrine applies be narrow or wide ranging? The majority recognizes the need for refinement and limitation of the principle but defers the difficult inquiiy for an appropriate case,” finding that the present matter has a constitutional rather than a statutory basis. One’s lingering unease is not entirely allayed, however, since the majority in Serrano II in the course of its determination of those rights which it deemed “fundamental” for equal protection purposes stated, “Suffice it to say that we are constrained no more by inclination than by authority to gauge the importance of rights and interests affected by legislative classifications wholly through determining the extent to which they are ‘explicitly or implicitly guaranteed’ ... by the terms of our compendious, comprehensive, and distinctly mutable state Constitution.” (Serrano v. Priest, supra, 18 Cal.3d 728, 767 , fn. omitted.) The inescapable meaning of the foregoing language is that the “importance,” nature and quality of “constitutional rights,” in the sense used by the majority, is “open ended”—a right is not necessarily “fundamental” merely because it is incorporated in the state Constitution. If such is the case, it is exceedingly difficult to understand why, for purposes of applying the “private attorney general” concept, vindication of every such “constitutional” right will be considered important enough to qualify for an award of attorneys’ fees.

*53 In view of the foregoing considerations and uncertainties, and particularly because of the force and clear legislative expression of section 1021 of the Code of Civil Procedure, and the cogent analysis of the United States Supreme Court in Alyeska, it seems to me much wiser to await further legislative guidance on the matter of attorneys’ fees. In the final analysis, and as a practical matter, it is the Legislature, presumably, that must find the funds to pay the bill. The absence of any specific legislative authorization is especially troublesome in this case, because substantial sums ($800,000) are awarded from the public treasury to publicly or charitably supported attorneys to whom the plaintiffs themselves legally owe nothing for services. From a policy standpoint, other factors may render this result entirely appropriate but those considerations should be legislatively expressed and defined.

I would reverse the judgment and deny the motion for attorneys’ fees on appeal.

Clark, J., concurred.