So what happens if your right to petition the government for redress of grievances carries with it the cost of bankruptcy of yourself and your representatives?
Would you be able to hire a lawyer if they knew that losing even one part of the case would put them, personally, on the hook for all of the states costs?
This is what Governor Newsom did. In CA SB 1327 they created a law which did precisely that with regards to second amendment cases. If you brought a case against the state for violation of your rights and you lost any part of the case then you and your lawyers were required to pay the costs of not only your own side but the costs of the California spent defending the state.
EC. 2. Section 1021.11 is added to the Code of Civil Procedure, to
1021.11. (a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.
(b) For purposes of this section, a party is considered a prevailing party if a court does either of the following:
(1) Dismisses any claim or cause of action brought by the party seeking the declaratory or injunctive relief described by subdivision (a), regardless of the reason for the dismissal.
(2) Enters judgment in favor of the party opposing the declaratory or injunctive relief described by subdivision (a), on any claim or cause of action.
(c) Regardless of whether a prevailing party sought to recover attorney’s fees or costs in the underlying action, a prevailing party under this section may bring a civil action to recover attorney’s fees and costs against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief described by subdivision (a) not later than the third anniversary of the date on which, as applicable:
Laws are designed to be opaque, hard to read. Sometimes the meaning hinges on a single comma. For most people reading these paragraphs they read “…liable to pay the attorney’s fees and costs of the prevailing party.”. There are some nasty gotchs in that little quote.
First “jointly and severally” refers to “person, entity, attorney, or law firm” which is challenging the law AND “that represents any litigant”. This means you and your lawyer.
Is this really so bad? If you “win” then this doesn’t matter. Except that they define “prevailing party” to mean “any claim or cause of action”. So if your suit had multiple claims or causes of actions, say you argued under the 2nd, and also the 5th
In the course of the trial the judge says that there was “no taking” so the 5th amendment is not implicated. He then grants everything else you claim regarding the 2nd amendment.
You won. The State of California then presents you with a bill for all of their costs for defending the law that was just found unconstitutional. Why? Because according to the laws definition they prevailed. One of your claims was dismissed.
Anybody that has ever looked into COBRA coverage after being let go from a job knows that there are LOTS of hidden costs. The State has no reason to try and keep prices down. They have legions of lawyers and each of them gets billed out when dealing with such a case. Those costs can grow to millions of dollars very rapidly.
This had a chilling effect on second amendment cases out of California. So chilling that ALL California cases dealing with the second amendment were put on hold pending other cases challenging this law.
Now California put in language that says that even if one part of SB 1327 is found unconstitutional all other parts are still in affect. Regardless, the “must pay defendants costs” part of SB 1327 was recently found unconstitutional. This means that the other 2A cases are now moving forward.
We’ll have updates on a couple of cases that are being heard this month shortly.