Second District, Division 1 Finds Important Public Right Vindicated Beyond Member’s Own Interests.
In Burke v. Ipsen, Case Nos. B218286/B221436 (2d Dist., Div. 1 Oct. 29, 2010) (certified for publication), union member successfully obtained mandate compelling a union to conduct an election of officers and directors and to set aside recently amended bylaws of a claimed illegal nature. (Defendant Ipsen was President of the Board of the Association of Deputy District Attorneys). Union member won, also beating union’s failure to exhaust administrative remedies argument. The trial court awarded member $60,000 in attorney’s fees under the private attorney general statute allowing for fee recovery where an important public right is vindicated. (Code Civ. Proc., § 1021.5.) Union appealed both the merits and the fee award.
Union lost on both fronts.
Clearly, fair and reasonable election procedures for public or private bodies implicate an important public right. The relief was significant, directly affecting almost 1,000 actual or potential union members. Union member’s interest in the litigation was no greater than that of other union members who wanted union to comply with the law.
Union tried to dodge the award by arguing that union member had publicly filed an exhibit with names that violated privacy rights of listed employees. The problem with this counterargument was that union member had been given this list and promptly cured the inadvertent disclosure by sealing the exhibit, with the union indicating that this procedure was acceptable. Fee award affirmed.
Burke was authored by Presiding Justice Mallano on behalf of a 3-0 panel.
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