holding that the trial court acted within the proper limits of its inherent equitable powers when it concluded that reasonable attorney’s fees should be awarded to the plaintiffs’ attorneys under the private attorney general theory and noting that in the underlying litigation, the lower tribunal held that the then-existing California public school financing system was invalid as in violation of state constitutional provisions guaranteeing equal pro, tection of the laws
How later courts described this case
- holding that the trial court acted within the proper limits of its inherent equitable powers when it concluded that reasonable attorney’s fees should be awarded to the plaintiffs’ attorneys under the private attorney general theory and noting that in the underlying litigation, the lower tribunal held that the then-existing California public school financing system was invalid as in violation of state constitutional provisions guaranteeing equal pro, tection of the laws
- explaining that the private attorney general exception “seeks to encourage suits effectuating a strong congressional or national policy by awarding substantial attorney’s fees, regardless of defendants’ conduct, to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.”
- holding that the denial of the benefits of the "private attorney general" rule to attorneys employed by nonprofit public interest law firms would be inconsistent with the rule itself
- holding that denying benefits of the private attorney general rule to funded public-interest attorneys would be essentially inconsistent with the rule itself
Written by the judges who cited it.
Later courts went against this
Questioned by Mangold v. California Public Utilities Commission, 67 F.3d 1470 (1995)
However, although Dague arguably calls into question California’s continued reliance on Serrano, we cannot decide that the California Supreme Court will necessarily adopt Dague as California law for its fee-shifting statutes.
Declined to follow by Bartel v. Johnson County, 1982 Iowa App. LEXIS 1239 (1982)
Further, we reject plaintiff’s reliance on Serrano v. Priest, 20 Cal.3d 25, 569 P.2d 1303, 1314, 141 Cal.Rptr. 315, 326 (1977), wherein the California Supreme Court allowed attorney’s fees on the basis that 1) the litigation resulted in the vindication of a strong or socially important public policy; 2) the necessary cost of securing this result transcends the individual plaintiff’s pecuniary interest to an extent re…
Disagreed with by Lindelli v. Town of San Anselmo, 139 Cal. App. 4th 1499 (2006)
We disagree with the Churchill court’s reading of Serrano v. Priest (1977) 20 Cal.Sd 25 [141 Cal.Rptr. 315, 569 P.2d 1303] (Serrano III), describing factors to be considered in deciding whether to augment a section 1021.5 fee award.
The opinion
CLARK, J., Dissenting.
While joining the dissent of Justice Richardson, I add several considerations. Establishing an open-ended monetary-reward program to subsidize lawyers who successfully prosecute constitutional litigation, the majority opinion usurps the legislative function.
The majority opinion points to neither constitutional nor statutory requirement that attorneys be compensated for successfully pursuing constitutional litigation in behalf of what they deem to be the public interest. Moreover, in the instant case the majority opinion frankly concedes that neither taxpayer nor school child is assured of any concrete benefit by the Serrano II decision. 1 (Ante, p. 41.) Rather, the majority decide for policy reasons, usually reserved to the Legislature, that constitutional litigation should be promoted in circumstances where the only real winners can be the subsidized attorneys. If the majority’s goal is to promote constitutional litigation, they have chosen a productive formula. The majority’s view that vindication of constitutional rights is important and that litigation to that end should be encouraged is *54 laudable. But the majority’s financial backing of that view constitutes an improper judicial prerogative that is unacceptable.
Until today, California judges have entertained neither the dream nor the power to endorse a particular social program, appropriate the requisite money from the public treasury to fund it, and then order payment to those deemed deserving. I have always thought such authority to be vested exclusively in the Legislature. However, if the judiciary is to partake of the legislative process, should we not do so in a deliberative, parliamentarian manner? Should we not appoint committees and hold public hearings to determine whether, in the absence of reward money, charitable foundations, public-spirited attorneys or tax funded law firms, like the one before us, will adequately seek to vindicate constitutional rights? We should also be informed whether the subsidy will likely produce results commensurate with the costs, and whether other methods of financing constitutional litigation might be more effective. And the ultimate step in the budget-making process must be taken—to determine whether other important social programs are more in need of limited tax funds. We, of course, have done none of these things because, unlike the Legislature, we are neither equipped nor empowered to do so.
Finally, the majority in recognition of the dangers inherent in the private attorney general concept, purport to limit the concept to only those instances when constitutional rights are vindicated in the face of legislative or executive default. Not only is this a limitation without bounds, but the reward becomes nothing more—nor is it less—than a bounty for searching out and invalidating constitutionally vulnerable legislative or executive action. Our Constitution, of course, establishes a government of three equal branches—legislative, executive, and judicial. Is it any more appropriate for the judiciary to offer a bounty for legislative or executive hide, than it is for those branches to seek ours?
The petition of the defendants and appellants for a rehearing was denied November 17, 1977, and the opinion was modified to read as printed above. Bird, C. J., and Manuel, J., did not participate therein. Sullivan, J., * and Wright, J., † participated therein. Clark, X, and Richardson, X, were of the opinion that the petition should be granted. Clark, X, did not concur in the modification.
Essentially Serrano II requires a reallocation of tax resources and of educational funding. As pointed out in my dissent (Serrano II, 18 Cal.3d 728, 785 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ]), the reallocation will primarily involve taking from the poor and giving to those more economically fortunate. While some taxpayers and some students may be expected to profit by Serrano II and others suffer, members of the two groups cannot be precisely identified. The award of attorney fees runs against the stte generally with no effort to apportion it between winners or losers.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
[Retired Chief Justice of California sitting under assignment by the Acting Chairperson of the Judicial Council.