How can I access records on decisions regarding promotions and tenure at UC?

Answer

You raise a very interesting question about the constitutional right to petition.  The following general information may be useful for analyzing the question.

As you seem to know, the First Amendment protects the right to petition the Government for a redress of grievances.   The Supreme Court has “recognized this right to petition as one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’”  BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524-525 (2002) (quotation omitted).  The right is not often litigated, however, so there is not a great deal of guidance from case law on its precise contours.

Though the default rule in the U.S. is that each party in litigation bears its own attorneys’ fees, statutes that entitle prevailing parties to their attorneys’ fees are permissible.

Many statutes enacted to encourage plaintiffs to vindicate important public rights impose different standards for attorney-fee recovery for plaintiffs and defendants.  For example, a prevailing plaintiff in an action under California’s Public Records Act is entitled to its attorneys fees, but a prevailing defendant (i.e., the government agency) is entitled to attorneys fees only if the plaintiff’s case is found to have been “clearly frivolous.”  Cal. Gov’t Code Section 6259(d).

As you suggest, a statute that awards attorneys’ fees against a party that challenges action on an application for a Certificate of Public Advantage could be said to discourage such actions and may therefore implicate the right to petition – especially to the extent that the inherent nature of such a challenge would be to promote an inquiry into whether granting such a certificate is in the public’s interest.

However — with the caveat that I have not researched or analyzed the issue extensively — I am not aware of any cases finding that a fee-shifting statute impermissibly burdened the right to petition.

Note that the federal statutory scheme governing most key civil rights actions has a provision, 42 U.S.C. § 1988, entitling “prevailing parties” – not just prevailing plaintiffs — to recover attorneys’ fees.  But the Supreme Court has said that prevailing defendants may only recover attorneys’ fees in those cases if the court finds the plaintiff’s lawsuit was “frivolous, unreasonable, or without foundation.” Fox v. Vice, 131 S. Ct. 2205, 2213 (2011); Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421 (1978).

It is not clear, however, whether or how much the right to petition – versus Congress’ intent in enacting Section 1988 – factored into the Court’s imposing that limitation on fee awards to prevailing defendants.

The Supreme Court did consider the right to petition in rejecting a standard under the National Labor Relations Act that imposed liability (including potential attorney fee recovery) on an employer for filing a retaliatory lawsuit that was not shown to be objectively baseless.  BE&K Constr. Co. v. NLRB, 536 U.S. at 536.  But the Court noted in that case that “nothing in [its] holding … should be read to question … the validity of statutory provisions that merely authorize the imposition of attorney’s fees on a losing plaintiff.”  Id. at 537.

Assuming a fee-shifting statute implicates the right to petition – a “fundamental right” under Constitutional law – a court might require a showing that the statute was justified by a compelling state interest in order to be valid.  See, e.g., Bowman v. Niagara Machine & Tool Works, Inc., 832 F.2d 1052, 1054 (7th Cir. 1987).

Conceivably, the lack of a restriction on fees to challenges that were found to be baseless or frivolous could factor into an analysis of whether any compelling state interest in the fee-award statute justified infringement of the right to petition

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.