Judge Benitez’s Order Blocking California’s ‘Lopsided, Unorthodox’ Fee-Shifting Law Pulls No Punches

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Judge Roger Saint Benitez
Courtesy subsonicapparrel.com

“It is cynical.” “It is an abomination.” “It is outrageous and objectionable.” “There is no dispute that it raises serious constitutional questions.” “It is an unprecedented attempt to thwart judicial review.” Such are the Intervenor-Defendant Governor’s expressed views regarding the fee-shifting provisions of a Texas law (S.B. 8) and, at least by implication, of California’s § 1021.11. It is “blatantly unconstitutional,” says Defendant Attorney General Rob Bonta. {To his credit, given the obvious, the Attorney General has refused to defend § 1021.11.} For the reasons that follow, as they may apply to S.B. 8, but apply clearly to § 1021.11, § 1021.11 is declared unconstitutional. Therefore, Defendants are permanently enjoined throughout the state from enforcing or taking any action to seek attorney’s fees and costs pursuant to § 1021.11.

[A.] Texas S.B. 8 (§ 30.022) and California S.B. 1327 (§ 1021.11)

The Intervenor-Defendant Governor describes the California law as identical or virtually identical to a Texas law known as S.B. 8. But that is not quite accurate. S.B. 8, among other things, creates a fee-shifting provision that applies only to cases challenging abortion restrictions. It is codified at Texas Civil Practice & Remedies Code § 30.022. California’s Code of Civil Procedure § 1021.11 applies only to cases challenging firearm restrictions. Both provisions tend to insulate laws from judicial review by permitting fee awards in favor of the government, tilting the table in the government’s favor, and making a plaintiff’s attorney jointly and severally liable for fee awards.

California’s law then goes even further. As a matter of law, a California plaintiff cannot be a prevailing party. See § 1021.11(e). The Texas statute has no similar provision and thus it appears that a Texas prevailing plaintiff can be awarded his attorney’s fees. The California provision, on the other hand, denies prevailing party status to a plaintiff, even a plaintiff who is entirely successful, and thus denies any possibility of recovering his attorney’s fees. The California plaintiffs-never-prevail provision is not insignificant.

And although both § 1021.11’s and § 30.022’s effect on court access should be constitutionally scrutinized, it is important to note that only § 1021.11 applies to laws affecting a clearly enumerated constitutional right set forth in our nation’s founding documents. Whether these distinctions are enough to save the Texas fee-shifting provision from judicial scrutiny remains to be seen. And although it would be tempting to comment on it, the Texas law is not before this Court for determination.

The principal defect of § 1021.11 is that it threatens to financially punish plaintiffs and their attorneys who seek judicial review of laws impinging on federal constitutional rights. Today, it applies to Second Amendment rights. Tomorrow, with a slight amendment, it could be any other constitutional right including the right to speak freely, to freedom of the press, to practice one’s religion, to restrict cruel and unusual punishment, and to be free from government takings without compensation. Section 1021.11 makes its threat by means of a lopsided, unorthodox attorney’s fee-shifting scheme which ensures the citizen cannot win and may be forced to pay for the government’s attorney’s fees. The fee-shifting provision exacerbates the disincentive to litigation by threatening plaintiff lawyers with joint and several liability for paying the government’s attorney’s fees. By deterring citizens and coercing attorneys from accessing the courts for relief from constitutionally questionable laws, § 1021.11 severely chills both First Amendment rights and Second Amendment rights.

In our ordered system of civil justice, the Second Amendment right, and for that matter all constitutional rights, are ultimately protected by the First Amendment right to identify unconstitutional infringements and seek relief from the courts. “The right of petition is one of the freedoms protected by the Bill of Rights.” “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” “[P]ersons … have the right to petition the Government for redress of grievances which, of course, includes ‘access … to the courts for the purpose of presenting their complaints.'”

Long ago, the Supreme Court recognized that maintaining the courts as a setting to resolve questions about defective laws is necessary for a peaceful society. The Court said,

“[t]he right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship…. Equality of treatment in this respect is not left
to depend upon comity between the states, but is granted and protected by the Federal Constitution.

— Judge Roger Benitez in his order enjoining California’s gun control challenge fee-shifting law

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  1. “[t]he right to sue and defend in the courts is the alternative of force.”

    That force being…. wait for it… the employment of those arms held by citizens to overcome and do away with tyranny such as this in California.

    Its almost like Bonta and the governor never heard of the Constitution, but we know they have and simply choose to ignore it in favor of tyranny.

      • “[P]ersons … have the right to petition the Government for redress of grievances which, of course, includes ‘access … to the courts for the purpose of presenting their complaints.”
        In theory they do. I never understood how the Supreme Court could punt on the people of Arizona’s request to review Pennsylvania’s unconstitutional changes to their election laws during the 2020 elections. The Supreme Court said Arizona didn’t have standing. If a state changes its laws and it affects the nation as a whole how could they possibly not have standing. And where do you turn after the Supreme Court shuts you down? I know off topic but bugs me to no end.

  2. What you see here is a judge doing his job. The reason to reward such things is only because so many refuse to do their jobs. This man is no saint and should never be portrayed as such. He should certainly be thanked though. We have the problems that we do because there too many Democrat leftists in this country that are not only rejecting their responsibilities but engaging in activity they have no authority to do.

    Regardless of who you are or where your from, there is the rule of law here and that law is getting bypassed and ignored. This creates the increases in violence, drug and border issues, and chaos around the country. Follow the law and we will be ok. We might even be prosperous. That law is the US Constitution. By law, AR15’s cannot be banned and 10 round magazines limits are no acceptable. Just as we have a set process for conducting presidential elections that cannot be bypassed. Government mandated closures of churches cannot legally happen either.

    Laws can be changed and this is why who you vote for matters.

  3. It’s cool and all he doesn’t have his head up his own ass like the rest of CA but the reality of judge shopping sort of makes a joke of the entire judicial and legislative systems.

    Why bother to entertain any of their nonsense if not for their willingness to use force against you? It’s all just one big bully government looking out to enrich itself. Making the matter worse it is also irrational, entrenched in spite and prone to wild mood swings.

  4. The nazi ss running CA have turned the AR15 into a bastardized joke done solely on the behalf of Big Brother. Never mind an equipped citizen militia Necessary For A Free State.
    The stage is being set for CA citizens defending Freedom not to last long against Big Brother’s jack booted thugs armed with machine guns, etc.

    BTW…The photo of the judge is counter productive.

  5. What is really a concern is how many judges , politicians, law enforcement, and ignorant citizens buy into this demonization of inanimate objects. Traitors in our midst.

    • We have an entire illegal drug war proving that out….

      How many generations learned about the dangers of Asians in the Yellow Peril and their associated opium, taught by grandpa – who’s still pissed about his wages being undercut on the railroad? How many generations of Reefer Madness, only to have an abject racist like Harry Anslinger have their policies be codified by Nixon? Corrupt PoS he was…

      Take how most conservatives feel about the 5A right to the property of cocaine, heroin, and marijuana, and suddenly they sound exactly like gun grabbers.

      18A/5A right to property + 13A = the GOP’s favorite back door gun control policy and President 94CrimeBill’s built in slave patrols.

      • It really is ironic that conservatives talk about their love for the constitution, history, small government/less taxes…

        All so that they can gleefully add black market murder, corruption, and human exploitation to the already miserable human condition of addiction.

        • Wow! I didn’t realize that as a conservative that was what I was endorsing and enabling.
          I will now have to rethink the true underlying nefarious reasons that I am conservative. 🤪

        • Wow! Seriously? Take a Constitution class ( I recommend Hillsdale college on line ) you might actually learn something about the 5th, 13th and 18th amendments as well as the Bill of Rights.

  6. The Supreme Court quote makes a good point. If you take away one or more of the “four boxes” (soap, ballot, jury, ammo), the population has no choice but to escalate to the next available box. The 4th box can’t be removed. In places where metallic cartridges and their corresponding firearms are restricted, there’s still black market, firebombs, knives, rocks, Improvised firearms and explosives, etc. Oppressive regimes may be able to quash revolts, but more rebels will replace them if conditions don’t improve. It may take generations, but a society built on enslavement and disenfranchisement will eventually fall.

    • Catholics VS. Protestants, Israelis VS Palestinians, North VS South all kiddie games compared to what will happen if ………..

      • catholic vs protestant was a smoke screen. At root, if you were but to look, you will find a nasty little boy in a man’s body who absoutelu could NOT tolerate anything that remotely resembled “NO!”. HE wanted to do wha HE wanted. When the pope said you can’t divorce your wife he simply killed her and married another (what a fool SHE was….) Next time around he cae up with a better “cure”. I WILL BE POPE he declared.And so it was and has been since. He then employed all the force and power of his military to make everyone else bow down and retend he IS the pope. (never mind the very concept of “pope” is a false one….) and thus catholics were banned, persecuted, exiled, killed, robbed. Until some pushed back hard. Conformists vs non-conformists was simply changing terms. Many removed themselves from the tyranny of the Crown, includong the “pilgrims” who left Englamd, first for Holland then back England to draw up aa charter with the new king and off to “the New World”.
        Just as the “catholic/protestant” thing was never about religion but about control, so today’s kerfuffle over what sorts of arms/accessories one might possess is not about the hardware but about control.
        It all comes down to the oldest lie in the universe: “I will arise, I will be like God”. Those who hold to that declaration are true sons of their father the devil, and will not prevail.

        • “When the pope said you can’t divorce your wife he simply killed her and married another (what a fool SHE was….) Next time around he cae up with a better “cure”. I WILL BE POPE he declared.And so it was and has been since. ” In his mind .. The creator of this universe has no reason to explain himself to you. Challenge him Tionico, fucking bring it and see what happens.


          Believe what you want, my savior is my savior and you can get behind me Satan you fucking bitch

  7. “Judge Benitez’s Order Blocking California’s ‘Lopsided, Unorthodox’ Fee-Shifting Law Pulls No Punches”

    And the wheel goes ’round. Let the appeals dance begin. And begin again.

    Another 10yrs before the SC might, might intervene to start the dance over again. States are proving that the SC has no enforcement mechanism that impedes states from waving the middle finger when it pleases a state. The entire house-of-cards that is the United States was dependent on “everyone” obeying laws, and court rulings.

    Marbury v. Madison might be considered a usurpation of power by the SC, but it was clear that allowing legislatures and presidents to determine what law “means” was/is a dicey proposition. However…..M v. M provided no enforcement to court rulings (as A. Jackson later demonstrated), and so we go ’round and ’round.

    • meanwhile at lest that barmy “law” that is not law at all is now permenently enjoined. Let the grands poohbahs of California kick and scream. And pay the costs incurred in pressing tis before the court.

    • It is that the Supreme Court refuses to implement its “RIGHT” to create a LAW ENFORCEMENT GROUP to send out to impose their rulings..

      There would be a dramatic shift in these Little Tyrants, if all of sudden a Governors get dragged out of their mansions or offices by LEO’s sent by the Supreme Court for defying their rulings!!!

  8. @muckraker
    “They want to pay reparations at 250 thousand a person…”

    Well, if that means I don’t owe anything then bless their hearts.

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