Newsom loses first round of legal fight over California's sketchy "fee-shifting" law

AP Photo/Jeff Chiu

After Texas lawmakers approved an anti-abortion bill allowing private citizens to sue abortion providers in the state, California Gov. Gavin Newsom responded by pushing California legislators to approve a similar bill, only directed at the firearms industry. SB 1327 not only provides an avenue for California residents to sue gun makers over any “assault weapon” illegally manufactured or sold in the state, but also imposed a bizarre new standard on any legal challenges to California’s gun control laws.


Under the terms set out in SB 1327, any plaintiff suing over the constitutionality of the state’s gun laws will be on the hook for California’s legal fees unless they’re successful on every count that they bring. On the other hand, if the plaintiffs do emerge victorious on every count, the state of California still doesn’t have to hand over a penny in attorneys’ fees to them. The law was clearly meant to chill the ability of Second Amendment advocates to curb the abuses of their fundamental rights, but that didn’t stop 2A groups from the Second Amendment Foundation and Firearms Policy Coalition to the California Rifle & Pistol Association from challenging Newsom’s latest anti-gun endeavor in federal court.

The case was assigned to U.S. District Judge Roger Benitez, who’s previously delivered scathing rulings against the state’s magazine ban, “assault weapons” ban, and other infringements on the right to keep and bear arms, and on Monday the judge handed another win to the Second Amendment groups and a stinging defeat to Gavin Newsom; ruling that enforcement of SB 1327 must be put on hold while the legal challenges continue.

It wasn’t that hard of a decision for Benitez, to be honest. The federal judge was able to point out that even California Attorney General Rob Bonta found SB 1327 to be so constitutionally problematic that his office stepped away from defending the law, handing that role off to Newsom’s office. In Benitez’s ruling, the judge makes it clear that no matter what California officials might think about the legality of the Texas abortion law, putting their own unconstitutional provision in place in response is a non-starter.


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.

Newsom will undoubtably appeal Benitez’s decision to the Ninth Circuit Court of Appeals. Ultimately the governor wants the Supreme Court to hear a challenge to SB 1327 under the assumption that if they strike down California’s law they must also do the same for SB 8 in Texas. It wasn’t Benitez’s job to weigh in on the constitutionality of the Texas statute, but he did point out that California’s law differs from the SB 8 in several ways; not just the subject, but the scope of the fee-shifting provisions.


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.

It’s entirely possible, then, that SCOTUS could uphold SB 8 in Texas while striking down SB 1327. That would be a much bigger loss for Newsom than a federal judge issuing an injunction against enforcement of the fee-shifting provisions, but it would also allow Newsom to play the victim and trash the Court for it’s supposed judicial activism. Newsom loves the headlines painting him as as a progressive culture warrior, so I don’t think he’s going to back down from his latest attack on gun owners… even if the prospects of SB 1327 ultimately surviving legal scrutiny are slim.



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