Shelley Mandel, Plaintiff and Respondent v. Frederick B. Hodges, Director of Department of Public Health, State of California, et al., Defendants and Appellants.

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Court of Appeal, First District, Division 4, California.

Shelley Mandel, Plaintiff and Respondent v. Frederick B. Hodges, Director of Department of Public Health, State of California, et al., Defendants and Appellants.

No. 1 Civil 33947

Decided: March 12, 1975

Before Caldecott, P.J., Rattigan and Christian, JJ.

In her action against appellants for declaratory and injunctive relief, respondent Shelley Mandel took a judgment (“Judgment and Writ of Mandate”) which enjoins the Governor from proclaiming Good Friday, between the hours of noon and 3 p.m., to be a State holiday;  enjoins the Controller from paying State employees for time taken off from work during the three-hour period;  and awards respondent's counsel $25,000 as attorneys' fees in the action, and their costs, payable by the State.1

The trial court found from substantial evidence that State offices were closed from noon to 3 p.m. on Good Friday, and that its employees were paid for time taken off from work during that period, pursuant to annual proclamation by the Governor;  that “Good Friday is a wholly religious day, of solemn character,” and that “the hours of 12 noon to 3 P.M. on said day have a special religious significance,” but as to Christian religions only;  and that the State extended no similar recognition to the Jewish holy day of Yom Kippur, or to holy days observed by other nonChristian faiths.

The court also found that “[t]ax funds from the General Fund of the State of California are used for payment of State employees during the aforesaid three hours on Good Friday;  ․ [the] ․ State of California estimates that the cost of salaries and related staff benefits, payable to its employees from said tax-generated funds in 1972 is the sum of $818,167.00 per hour.”

Appellants contend that the Governor's annual proclamation closing State offices for the designated three hours on Good Friday 2 does not violate the Establishment Clause or the Free Exercise Clause of the First Amendment of the United States Constitution.

The First Amendment of the United States Constitution provides in pertinent part:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ․”  These guarantees are made applicable to the states by the Fourteenth Amendment.  (See Abington School District v. Schempp (1963) 374 U.S. 203, 215-217.) 3  Government may neither prefer nor penalize any religion.   The First Amendment tolerates neither governmentally established religion nor governmental interference with religion.  (Walz v. Tax Commission (1970) 397 U.S. 664, 669.)

Although the Establishment Clause states only that “Congress shall make no law respecting an establishment of religion,” its reach is more penetrating than merely to forbid creation of an established church.  (See McCollum v. Board of Education (1948) 333 U.S. 203, 213.)   Government may not exert its power in the service of any religious end.  (See McGowan v. Maryland (1961) 366 U.S. 420, 465.)   The clause erects “a wall of separation between church and State.”  (Everson v. Board of Education (1947) 330 U.S. 1, 16.)

Although “total separation is not possible in an absolute sense,” and “[s]ome relationship between government and religious organizations is inevitable” (Lemon v. Kurtzman (1971) 403 U.S. 602, 614), a statute must meet three tests to withstand challenge under the Establishment Clause:  “First, the statute must have a secular legislative purpose;  second, its principal or primary effect must be one that neither advances nor inhibits religion ․ [citation] ․;  finally, the statute must not foster ‘an excessive government entanglement with religion.’  (Citation.)”  (Id., at pp. 612-613.   Accord:  Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 772-773 [“․ [T]he now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases.”] )

Addressing the trial court's above-mentioned findings that “Good Friday is a wholly religious day” and that “the hours of 12 noon to 3 P.M. on said day have a special religious significance” according to the tenets of Christian religions, appellants contend that “although time off on Good Friday might have its origins rooted in Christian history, and although Christian sects may derive some indirect benefit from the fact that state employees have time off on Good Friday, this does not prove that the purpose is not as it clearly appears:  to provide a necessary period of relaxation and rest from the ordinary routine of work for all state employees.”

In support of this contention, and of the corollary argument that “the history or origin of the day does not prove the purpose or effect in deciding whether it is constitutional,” appellants cite the so-called “Sunday Closing Law” cases.  (McGowan v. Maryland, supra, 366 U.S. 420;  Two Guys v. McGinley (1961) 366 U.S. 582;  Gallagher v. Crown Kosher Market (1961) 366 U.S. 617.)   In McGowan, it was held that Sunday Closing Laws were not laws respecting an establishment of religion.   The police power includes authority to prescribe compulsory days of nonwork.   Although early enactments dealing with Sunday labor laws were motivated by religion, such legislation no longer retains its religious character.   The purpose today is not to aid religion but only to set aside a day of rest, a legitimate secular end.  (McGowan v. Maryland, supra, at pp. 431-444.)

McGowan and the other Sunday Closing Law cases are inapposite to the present facts.   Sunday Closing Laws may be sustained upon the same basis as a maximum-hours law:  weekly repose from labor may be protected by the government just as the number of working hours may be limited.   In contrast, a three-hour holiday, granted once a year on the Christian holy day of Good Friday, cannot plausibly be characterized as “secular” in purpose.   The evidence adequately supports the trial court's determination.   Indeed, the applicable state personnel manual explicitly stated that “from 12:00 to 3:00 p.m. on Good Friday, employees are given these hours off for worship.”  (Emphasis added.)

The Governor's proclamation relative to Good Friday, and the underlying statutes (see fn. 2, ante), thus fail the first of the three tests to which they must be subjected for conformity with the Establishment Clause.  (Lemon v. Kurtzman, supra, 403 U.S. 602 at pp. 612-613.)   They fail the other two tests as well.   The “primary effect” of designating a Christian holy day as a State holiday is to “advance” religion (see ibid.) because it amounts to an observance of the holy day, by the State itself, as a religious event.   The observance reaches the thousands of State employees who are directly involved, the countless members of the public who are affected by the concurrent closure of State offices during the hours proclaimed, and the people of California, at large, whose affairs of state are brought to a halt throughout the three-hour period.   The aggregate situation, in our view, constitutes an “excessive government entanglement with religion.”  (See ibid.)

The Free Exercise Clause of the First Amendment is also applicable;  it withdraws from governmental power any restraint on the free exercise of religion.  “Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government.   The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.”  (Lemon v. Kurtzman, supra, 403 U.S. 602 at p. 625.)   We conclude that a line is commanded here, and that the practices of observing the designated hours of Good Friday, a Christian holy day, and of allowing State employees time off from work with pay during the three-hour period, are contrary to the Free Exercise Clause of the First Amendment.

Appellants further contend that the trial court erred in awarding counsel fees to respondent.   Absent a controlling statute or an agreement between the parties, attorneys' fees are generally not awarded to successful litigants in American courts.  (See Fleischmann Distilling Corp. v. Maier Brewing Co. (1967) 386 U.S. 714, 717-718.)   The contention is that attorneys' fees may not be awarded unless provided by agreement between the parties or by statute.   Section 1021 of the Code of Civil Procedure provides in pertinent part:  “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselers at law is left to the agreement, express or implied, of the parties․”  In the present case, no state statute provides for the award of attorneys' fees;  there was no express or implied agreement concerning attorneys' fees.

Appellate decisions in California have recognized two exceptions to the general rule of section 1021, based upon the inherent equitable powers of the courts.   The first is the “common fund” principle.   When a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff for the benefit of all results in the creation or preservation of that fund, plaintiff may be awarded attorneys' fees out of the fund.  (See Estate of Reade (1948) 31 Cal.2d 669, 671-672;  Estate of Stauffer (1959) 53 Cal.2d 124, 132;  D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.)

The second exception is the so-called “substantial benefit” rule.   When a class action or a corporate derivative action results in the conferral of substantial benefits upon the defendant (either pecuniary or nonpecuniary in nature), that defendant may, in the exercise of the court's equitable discretion, be required to yield some of those benefits in the form of an award of attorneys' fees.  (Fletcher v. A.J. Industries, Inc. (1968) 266 Cal.App.2d 313, 318-325;  Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 203-204.   See D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1 at p. 25.)

In Fletcher v. A.J. Industries, Inc., supra, 266 Cal.App.2d 313, no common fund was created, and there was no statute which specifically authorized attorneys' fees.   Nevertheless, we held that the court's equitable powers enabled it to award fees.   The “successful plaintiff in a stockholder's derivative action may be awarded attorneys' fees against the corporation if the latter received ‘substantial benefits' from the litigation, although the benefits were not ‘pecuniary’ and the action had not produced a fund from which they might be paid.”  (Id., at p. 320.)

Knoff v. City etc. of San Francisco, supra, 1 Cal.App.3d 184, was a taxpayers' suit for a writ of mandate to compel an agency of the City and County of San Francisco to correct deficiencies in tax assessments.   We upheld the superior court order that the attorneys' fees for petitioners be paid by the City and County.   The award of attorneys' fees was held to be a “proper exercise[ ] of the trial court's broad equitable powers [citations], of which the existence of an actual fund of money is not a condition precedent.”   (Id., at p. 203.)

The present action is also in mandamus;  respondent seeks to compel the performance of public duties, and the result is of benefit to State employees and to the public.   Tax funds were used to pay State employees on Good Friday.   The trial court found that respondent was a member of an ascertainable class of State employees, that her attorneys acted “not only on her behalf, but in the general public interest and on behalf of members of ․ [her] ․ class,” and that her attorneys' efforts “resulted in a substantial benefit derived by ․ [her] ․ class and the public at large.”  (Emphasis added.)

Both Knoff and Fletcher (Knoff v. City etc. of San Francisco, supra, 1 Cal.App.3d 184;  Fletcher v. A.J. Industries, Inc., supra, 266 Cal.App.2d 313) establish that the “substantial benefit” rule permits an award of attorneys' fees, as an exception to section 1021 of the Code of Civil Procedure, where the following criteria are met:  (1) the suit is one in which the court's equitable powers come into play;  (2) it is commenced and maintained as a representative action;  and (3) it results in a disposition that confers substantial benefits, pecuniary or otherwise, on the persons “represented.”

These criteria are all met in the present case.   Respondent has rendered a “substantial benefit” to the citizens of this state (saving the expenditure of public funds on unlawful time off) which is comparable to the benefit to the corporation in Fletcher v. A.J. Industries, Inc., supra, 266 Cal.App.2d 313, and the benefit to taxpayers in Knoff v. City etc. of San Francisco, supra, 1 Cal.App.3d 184.   Accordingly, in an action such as this, where enforcement of a public right depends on private litigation,4 an award of attorneys' fees is permissible.   We conclude that the trial court did not err in making the award challenged here.

The amount of such an award, when made in an appropriate case, rests within the sound discretion of the trial court.  (See Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 438-439;  Smith v. Smith (1970) 4 Cal.App.3d 446, 452;  Spencer v. Harmon Enterprises, Inc. (1965) 234 Cal.App.2d 614, 621.)   The decisions frequently evaluate reasonableness of fees in light of such factors as “[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney's efforts, the attorney's skill and learning, including his age and experience in the particular type of work demanded.”  (Los Angeles v. Los Angeles-Inyo Farms Co. (1933) 134 Cal.App. 268, 276.)

“The value of attorney's services is a matter with which a judge is necessarily familiar.  [Citation.]  The nature of the obligation, the difficulty in enforcing it, the amount involved, the skill required, the attention given, the success of the attorney's efforts, are factors to be considered.  [Citation.]  ․ The value of the legal services was a question of fact for the judge.”  (Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 387.)

In the present case, the trial judge made the following comments regarding the value of services rendered:  “In fixing fees, I do take into account the scheduled fees awarded in prior cases, which is the subject matter of Mr. Kaplan's declaration.   I further take into account the magnitude of the issues before me.   And I think these are all proper criteria that I should consider.   I'm quite willing to say that absent other considerations, I would make, fix a fee based upon percentage and the fee would be much larger than the fee that ․ I'm now going to grant․”

The record reflects that respondent's attorneys expended “some 300 hours” of time.   The hourly value of an attorney's services performed before a trial court is for the trial judge to evaluate.  (Still v. Plaza Marina Commercial Corp., supra, 21 Cal.App.3d 378 at p. 387.)   The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”   (Harrison v. Bloomfield Building Industries, Inc. (6th Cir.1970) 435 F.2d 1192, 1196.)   The present record does not indicate that the trial court abused its discretion in awarding attorneys' fees, or that the amount is excessive.

Respondent has applied to this court for a further award of fees to compensate her attorneys for their efforts in resisting this appeal.   That matter may appropriately be left to the discretion of the trial court, which we hereinafter vest with jurisdiction for the purpose.  (See American City Bank v. Zetlen (1969) 272 Cal.App.2d 65, 67-70.)

The judgment is affirmed.   The trial court is authorized to act upon an application by respondent, for an award of attorneys' fees on appeal, when the remittitur has been filed herein.   The writ of supersedeas heretofore issued by Division Two of this court under the designation 1 Civil 33042, and which stayed “enforcement” of the judgment hereby affirmed, is recalled forthwith.

All concur.


1.   As pertinent to our review of the judgment on appeal, it states:“․ [T]he Court having heretofore made and caused to be filed its written Findings of Fact and Conclusions of Law, and the Court having found that the practice heretofore followed of closing State offices, and paying State employees for the hours of 12 noon to 3:00 P.M. on Good Friday is unconstitutional under both the First Amendment of the United States Constitution and Article 1, Section 4 of the California Constitution, and that said practice would continue if not enjoined, and Petitioner being entitled to a declaration of her rights by judgment of this Court and its Writ of Mandate, now, therefore,“It Is Hereby Ordered, Adjudged and Decreed as follows:“1. That ․ [the] ․ Governor of the State of California, be, and he hereby is, enjoined and restrained from closing State offices, not including a lunch break, between the hours of 12 noon and 3:00 P.M. on Good Friday, commencing on April 20, 1973, and on subsequent days of Good Friday annually thereafter and from granting employees of the State of California the said three hours off without reduction in pay, using vacation credits or making up the time.“2. That ․ [the] ․ Controller of the State of California be, and he hereby is, enjoined and restrained from paying State employees salaries or other benefits from funds of the State of California during the said period of 12 noon to 3:00 P.M. on Good Friday, not including a lunch break, commencing on April 20, 1973, and on subsequent days of Good Friday annually thereafter for time taken off from work during said hours and he is enjoined and restrained from granting employees of the State of California the said three hours off without reduction in pay, except through the use of vacation credits, or making up the time.“․“4. ․ [Appellants] ․ shall pay to ․ [respondent's attorneys] ․ the sum of $25,000.00 as and for attorneys' fees for the prosecution of this action, and shall further pay to them all costs and disbursements incurred, in the sum of $176.01.“5. That this Court does not have before it and this Judgment and Writ of Mandate do not decide, and there remains open, the question of the effect of this decision on Code of Civil Procedure Section 134 relating to the suspension of judicial business on State holidays, including the Good Friday hours of 12 noon to 3:00 P.M.”

2.   The proclamation was made pursuant to sections 6700 and 18025 of the Government Code.   Section 6700 provides in pertinent part:“6700.  The holidays in this state are:“(a) Every Sunday.“(b) January 1st.“(c) February 12th, known as “Lincoln Day.”“(d) The third Monday in February.“(e) The last Monday in May.“(f) July 4th.“(g) First Monday in September.“(h) September 9th, known as “Admission Day.”“(i) The second Monday in October, known as “Columbus Day.”“(j) The fourth Monday in October, known as “Veterans Day.”“(k) December 25th.“(l ) Good Friday from 12 noon until 3 p.m.“(m) Every day on which an election is held throughout the state.“(n) Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday․”  (Emphasis added.)As pertinent, section 18025 provides:“18025.  All employees shall be entitled to the following holidays:  the first day of January, the 12th day of February, the third Monday in February, the last Monday in May, the fourth day of July, the first Monday in September, the ninth day of September, the second Monday in October, the fourth Monday in October, the 25th day of December, every day on which an election is held throughout the state, and every day appointed by the Governor of this state for a public fast, thanksgiving, or holiday.”

3.   As pertinent, the California Constitution provides:  “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State․”  (Art. I, § 4.)   The construction placed by the United States Supreme Court on a provision in the federal Constitution may be placed on a similar provision of the State Constitution unless cogent reasons for not doing so exist.  (Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89.)

4.   In D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, the California Supreme Court found the “common fund” and “substantial benefit” rule inapplicable where the plaintiffs were seeking to be licensed by the Board of Medical Examiners.   No “fundamental interests” guaranteed by the Constitution were involved in that case, and no important public benefit was secured by the plaintiffs' suit.  (Id. at pp. 25-26.)

Rattigan, J.