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Court of Appeal, First District, Division 5, California.

Canal KEYHEA, etc., et al., Plaintiffs and Appellants, v. Ruth RUSHEN, et al., Defendants and Respondents.

Nos. A052036, A051699.

Decided: March 16, 1992

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Bruce M. Slavin, Deputy Atty. Gen., Susan J. King, Deputy Atty. Gen., San Francisco, for plaintiffs and appellants. Peter Sheehan, Legal Aid Soc. of Alameda County, Oakland, Fred H. Altshuler, Altshuler & Berzon, San Francisco, for defendants and respondents.



In this case we hold that uninjured third parties may have “taxpayer” standing to prosecute a federal civil rights action (42 U.S.C., § 1983) and recover attorney fees (42 U.S.C., § 1988) in California state courts, even though they have no such standing in the federal courts.   Valamar A. Schaaf and Evelyn Schaaf appeal from an order awarding attorney fees under California's “private attorney general” statute (Code Civ.Proc., § 1021.5) but not under the federal statute authorizing attorney fee awards in federal civil rights actions (42 U.S.C., § 1988).



This litigation began in 1977 as a combination taxpayer action by the Schaafs and class action by prisoner Canal Keyhea, challenging the involuntary administration of psychotropic drugs at the California Medical Facility at Vacaville (CMF).   The pleadings alleged that forced drugging without judicial sanction violates the federal and state Constitutions as well as Penal Code section 2600, under which prisoners retain civil rights other than those that would jeopardize prison security or public safety.

Keyhea was subsequently released from custody and dismissed from the action.   His dismissal was affirmed on appeal.  (Keyhea v. Enomoto (Dec. 21, 1979) 1 Civ. 45908 [nonpub. opn.].)   The Schaafs continued to prosecute the action as a taxpayer suit.  (Code Civ.Proc., § 526a.)

In 1982, the trial court bifurcated the statutory and constitutional issues, deferring trial of the latter.   In 1984, the court rendered judgment declaring that the State had violated Penal Code section 2600 by subjecting prisoners to long-term involuntary medication without a judicial determination of competency, the assistance of counsel, and a right to a personal appearance.   The court enjoined the State from subjecting prisoners to long-term involuntary medication without adhering to certain of the procedural requirements contained in specified provisions of the Lanterman–Petris–Short Act (Welf. & Inst.Code, § 5000 et seq.) (hereafter LPS) and the Probate Code.

We affirmed the judgment on appeal.  (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 223 Cal.Rptr. 746.)   We held that because nonprisoners in California have a statutory right under LPS to refuse long-term treatment with psychotropic drugs absent a judicial determination that they are incompetent to do so, and because substantial evidence supported the trial court's determination that denial of this statutory right was not necessary to prison security, prisoners have the same right under Penal Code section 2600.   (Id. at pp. 534–536, 542, 223 Cal.Rptr. 746.)   We expressly declined to decide whether there is a constitutional or common law right to a judicial determination of competency, since that right is provided by statute in California.  (Id. at p. 541, 223 Cal.Rptr. 746.)   The trial court subsequently modified the injunction, setting forth detailed guidelines and procedural requirements for involuntary drugging and competency hearings.

In 1990, the Schaafs moved for an award of attorney fees under Code of Civil Procedure section 1021.5 and 42 United States Code section 1988.   They sought compensation for 2,295 attorney hours and 352.75 law student hours, with a 2.0 multiplier.   The court awarded fees for the amount of hours claimed, with a 1.5 multiplier, for a total award of $761,529.   However, the court based the award solely on Code of Civil Procedure section 1021.5, holding there was no fee eligibility under 42 United States Code section 1988.   In subsequent findings, the court asserted that section 1988 did not apply because the Schaafs, as third party taxpayers, lacked standing to prosecute a federal civil rights action (42 U.S.C., § 1983) in state court.1



 Even though the Schaafs did not prevail on their federal civil rights claims, they were eligible for an award of attorney fees under 42 United States Code section 1988 if they pleaded a “substantial” civil rights claim and prevailed on a factually related noncivil rights claim.  (Filipino Accountants' Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1032, 204 Cal.Rptr. 913.)   The requisite factual relationship to the statutory claim is undisputed here.   The issue is whether there was a substantial civil rights claim in light of the Schaafs' status as third party taxpayers.

 In federal court, third party litigants—i.e., persons who were not injured by unlawful conduct but seek to assert the rights of others—lack standing to prosecute a civil rights action under 42 United States Code section 1983.  (E.g., Coon v. Ledbetter (5th Cir.1986) 780 F.2d 1158, 1160.)   This rule is grounded in basic federal standing principles.

 Article III of the United States Constitution limits the federal judicial power to resolution of “cases” and “controversies,” requiring a plaintiff to show (1) he or she has personally suffered some actual or threatened injury as a result of defendant's conduct, (2) the injury can fairly be traced to defendant's conduct, and (3) the injury is likely to be redressed by a favorable decision.  (Valley Forge College v. Americans United (1982) 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700.)   Additionally, the federal judiciary has crafted certain nonconstitutional “prudential” standing principles, including the notion that the plaintiff must assert his or her own legal rights and interests rather than those of third parties.  (Id. at p. 474, 102 S.Ct. at p. 759.)

The Schaafs, as third party nonprisoner taxpayers who did not personally suffer injury as a result of the forced drugging of prisoners, lacked standing to prosecute a civil rights action in federal court.   How, then, could they have had a substantial federal civil rights claim supporting a fee award under section 1988?

 The answer lies in the concurrent jurisdiction of the state courts over federal civil rights actions under section 1983 (see Maine v. Thiboutot (1980) 448 U.S. 1, 10–11, 100 S.Ct. 2502, 2507–2508, 65 L.Ed.2d 555;  Brown v. Pitchess (1975) 13 Cal.3d 518, 523, 119 Cal.Rptr. 204, 531 P.2d 772) and the fact that federal standing rules do not apply to the state courts.   As the United States Supreme Court recently observed, “the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law․”  (Asarco Inc. v. Kadish (1989) 490 U.S. 605, 617, 109 S.Ct. 2037, 2045, 104 L.Ed.2d 696, emphasis added.) 2

Thus, in Los Angeles v. Lyons (1983) 461 U.S. 95, 113, 103 S.Ct. 1660, 1671, 75 L.Ed.2d 675, although the plaintiff lacked standing to seek injunctive relief in federal court for a civil rights violation for want of threatened injury, the Court noted that the state courts were free to grant injunctive relief under their own standing and remedy rules.   Similarly, in Princeton University v. Schmid (1982) 455 U.S. 100, 102, footnote *, 102 S.Ct. 867, 869, footnote *, 70 L.Ed.2d 855, a plaintiff lacked federal court standing because of mootness, but the Court recognized the existence of state court standing.

 The applicable rule is summarized by Professor Laurence H. Tribe as follows:  “[S]tate courts, if consistent with their own constitutions, may hear the federal claims of litigants who would not have standing to adjudicate them in federal court.   This reflects the conclusion that federal standing requirements, whether dictated by article III or suggested by policy, all arise out of institutional concerns peculiar to the federal judiciary and its special role and are therefore irrelevant to the question of what more generous standing rules a state may adopt if it chooses to do so.”  (Tribe, American Constitutional, op. cit. supra, at pp. 112–113, fns. omitted.) 3

Under California standing rules, the Schaafs had taxpayer standing pursuant to Code of Civil Procedure section 526a.   This statute bestowed standing on the Schaafs to prosecute a third party federal civil rights action in state court, even though they lacked such standing in federal court.   Thus, if any of the Schaafs' unadjudicated civil rights claims were “substantial”—i.e., were neither “essentially fictitious,” “wholly insubstantial” nor “obviously frivolous”—the Schaafs were eligible for an attorney fee award under 42 United States Code section 1988, due to their having prevailed on the factually related statutory theory.  (Filipino Accountants' Assn. v. State Bd. of Accountancy, supra, 155 Cal.App.3d at pp. 1034–1035, 204 Cal.Rptr. 913.)

 The Attorney General contends the Schaafs' federal civil rights claims—denial of due process and equal protection—were insubstantial in light of Washington v. Harper (1990) 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178, which held that the federal due process clause does not require a judicial hearing before the State may involuntarily treat a prisoner with antipsychotic drugs.   But Washington was decided four years after the Schaafs prevailed on appeal.   Judicial decisions that come down after the rendition of a final judgment on the merits do not affect the substantiality determination.  “A claim is insubstantial only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ”  (Hagans v. Lavine (1974) 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577, quoting Goosby v. Osser (1973) 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, emphasis added;  see Filipino Accountants' Assn. v. State Bd. of Accountancy, supra, 155 Cal.App.3d at p. 1034, 204 Cal.Rptr. 913.)   Throughout the litigation on the merits in this case, the federal due process issue was unsettled, and thus it cannot be characterized as insubstantial.   Moreover, Washington did not address the equal protection issue (Washington v. Harper, supra, 494 U.S. at p. 218, fn. 5, 110 S.Ct. at p. 1035, fn. 5, 108 L.Ed.2d at p. 196, fn. 5), which still remains unsettled and thus substantial.

Because the Schaafs' federal due process claim remained unsettled and thus substantial through the rendition of final judgment on the merits and their equal protection claim remains unsettled and thus substantial to this day, and because there is no dispute as to the factual relationship of these claims to the statutory claim, the Schaafs were eligible for an award of attorney fees under 42 United States Code section 1988.

The trial court denied an award under section 1988 based solely on the premise that the Schaafs lacked standing to prosecute a federal civil rights action in state court.   In this respect the court erred.   Since the Schaafs' entitlement to section 1988 fees is clear in all other respects, we need not remand the cause for further trial court proceedings on the issue of entitlement under section 1988.   The appropriate remedy is to modify the judgment to award attorney fees under section 1988 as well as under Code of Civil Procedure section 1021.5.



The judgment is modified to specify that the Schaafs' counsel are entitled to attorney fees, costs and expenses pursuant to 42 United States Code section 1988 and Code of Civil Procedure section 1021.5, and is affirmed as modified.   The Schaafs shall recover their costs on appeal.4


1.   The Schaafs assert that due to state budget restrictions limiting payment of attorney fee awards under Code of Civil Procedure section 1021.5 to a maximum rate of $125 per hour—which do not apply to fee awards under 42 United States Code section 1988 (see Green v. Obledo (1984) 161 Cal.App.3d 678, 685–686, fn. 8, 207 Cal.Rptr. 830)—the effect of the finding of no entitlement under section 1988 renders collection of fees exceeding 42 percent of the award “difficult if not impossible.”   The Attorney General concedes the point.   The issue of whether a budget limitation on payments of court judgments violates the constitutional doctrine of separation of powers is not before us in this appeal.

2.   When a state court hears a federal claim by a litigant who would lack standing in federal court, strict adherence to federal standing requirements could leave the United States Supreme Court powerless to correct an erroneous state court decision on a matter of federal statutory or constitutional law.  (See Tribe, American Constitutional Law (2d ed. 1988) pp. 113–114.)   The United States Supreme Court addressed this problem in Asarco Inc. v. Kadish, supra, 490 U.S. at page 617, 109 S.Ct. at page 2045, holding that although plaintiffs who proceeded in state court would not have had standing in federal court, the ensuing judgment against the defendants caused them direct injury and thus bestowed upon them the standing necessary to invoke the authority of the United States Supreme Court.

3.   A recent decision by the United States Supreme Court, Department of Labor v. Triplett (1990) 494 U.S. 715, 721, 110 S.Ct. 1428, 1432, 108 L.Ed.2d 701, 713, footnote *, contains the perplexing comment that “while state courts are fully entitled to entertain disputes that would not qualify as cases or controversies under Article III, it is questionable whether they have the power, by granting or denying third-party standing, to create or destroy federal causes of action.”   This statement seems inconsistent with the rule excluding state courts from federal standing constraints, as set forth in Asarco Inc. v. Kadish, supra, and previously observed in Los Angeles v. Lyons, supra, and Princeton University v. Schmid, supra.  (See Department of Labor v. Triplett, supra, 494 U.S. at p. 729, 110 S.Ct. at p. 1436, 108 L.Ed.2d at p. 719 [conc. opn. of Marshall, J.].)   While the majority in Triplett might find “questionable” the notion that state courts may create federal causes of action by granting third party standing, the Court did not repudiate Asarco, Lyons or Princeton University.   We can only conclude, therefore, that the efficacy of those decisions has not been diminished.

4.   The Schaafs are also entitled to an award of their appellate attorney fees, the amount of which is to be determined by the trial court.  (Phipps v. Saddleback Valley Unified School Dist. (1988) 204 Cal.App.3d 1110, 1123, fn. 10, 251 Cal.Rptr. 720.)

KING, Acting Presiding Justice.

HANING and ROUSE,* JJ., concur.

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