Santa Clara County’s Excess Didn’t Just Start With Happy Meals

By May 5, 2010Briefly Legal

Santa Clara County’s Board of Supervisors has been in the news lately because of its foolish meddling in areas outside a county government’s purview, that is, whether restaurants should be able to offer toys with meals. The three supervisors who voted to ban the toys decided their county was equipped to fight the scourge of child obesity, its budget crisis notwithstanding. The county is running a $223 million deficit, and its governing board is worried about toys in fast food meals?

Yet self-aggrandizing, anti-business posturing is a recurring theme for the Santa Clara supervisors. Today, the California Supreme Court will hear oral arguments in one such case, County of Santa Clara et al. v. Superior Court of Santa Clara Co. (S163681)

From The San Jose Mercury News, “State Supreme Court to rule on counties’ use of private attorneys“:

When Santa Clara County decided a decade ago to take on chemical companies for the cost of removing lead paint from public buildings, officials knew they would need extra legal muscle to carry the case through the courts. So they hired several law firms to handle an expected slugfest with the companies and their law firms.

Santa Clara County’s decision has turned into a legal free-for-all that has now reached the California Supreme Court. The justices will hear arguments today in a case that tests whether local governments such as Santa Clara County can hire private lawyers under contingency fee deals to press lawsuits under California’s public nuisance laws.

To “take on chemical companies” … “they would need extra legal muscle”… It sure reads as if the reporter accepts the county’s premise, that a lawsuit against the chemical companies was warranted and now it’s just the process that’s at issue.  That’s disputable. The National Association of Manufacturers regarded the lawsuit as an attempt to pervert well-established public nuisance law, creating a far-ranging new type of product liability law. Like the various and ultimately unsuccessful public nuisance lawsuits against paint manufacturers (Rhode Island, Ohio) for lead paint in buildings, the litigation was just an attempt to increase county revenues by shaking down businesses.

At issue in today’s oral arguments, however, is the question of the county hiring contingency fee lawyers to carry out its litigation. The NAM has long opposed this farming out of lawsuits to private trial lawyers,  whose pecuniary interests are inherently at odds with those of the governments and citizens they claim to represent.  

In the case of County of Santa Clara v. Superior Court, the NAM joined with the Coalition for Public Nuisance Fairness, the American Chemistry Council, and the Property Casualty Insurers Association of America in filing an amicus brief challenging the power of cities and counties to hire trial lawyers on a contingency-fee basis. As the entry in the NAM’s Manufacturing Law Center summarizes:

The NAM and the other amici support the argument that the private interests of contingent-fee counsel conflict with the public interest. Government attorneys owe a duty of neutrality to the public, and allowing them the potential to earn huge profits “creates a powerful incentive for private attorneys wielding the power of government to make decisions based on their own pecuniary interests, rather than the interest of justice.” The combination of temptations raised by extraordinary potential rewards with extraordinary power raise obvious appearances of impropriety.

In addition, the California legislature has already addressed lead poisoning, and the legislature is likely to strike a fairer and more effective balance between competing interests because it considers all pertinent issues in their entirety, rather than in the truncated form presented by litigants in court.

Here is the NAM brief filed in April 2009. The California Supreme Court also posts briefs from the parties directly involved in the litigation, which we’ve linked to below.


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