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Litigation Procedures

Approved May 31, 2002

1. Background 

a. The California Native Plant Society ("CNPS") may use litigation as a means of carrying out its mission and achieving its goals, typically by ensuring that government agencies comply with laws that protect native plants. Any litigation that CNPS supports must be directly related to the CNPS mission and goals. 

b. The term, litigation, should be read broadly. The actions considered to be litigation, and covered by these procedures, include not only the filing of law suits, but filings of intent to sue, filings of amicus curiae briefs, becoming an intervenor in others' lawsuits, providing public agencies with advance notice of intent to sue, and appeals of previous legal actions. It is the responsibility of any person or chapter contemplating any legal action to contact the CNPS Legal Advisor if there is any doubt as to whether these procedures apply to the action contemplated. 

c. Given the importance and possible risks of litigation, the CNPS Board of Directors ("Board") needs to exercise authority over all CNPS litigation. Neither the state organization, CNPS chapters, nor individuals acting on behalf of CNPS, may enter into litigation without state board approval as described in these procedures. The state board has adopted these procedures to help those wishing to engage in litigation required to gain Board approval. Please read and follow these procedures.

2. Preliminaries

a. The Board has authority over, and responsibility for, all CNPS litigation, including decisions relating to the commencement and settlement of litigation. Before CNPS becomes involved in any litigation, whether by the state organization, by a chapter, or by individuals acting under the auspices of CNPS, such involvement must be approved by the Board prior to any action or public announcement of such involvement. However, the Board may delegate authority and responsibility for particular aspects of litigation to staff or volunteers. 

b. Before any legal action is taken, alternative non-litigious actions, including the exhaustion of administrative remedies, should be pursued when appropriate. Such alternative actions may include direct dialogue with the adversarial party, letter writing campaigns, community and grass roots organizing, government agency contact, and petitioning of state, federal, and local legislators. It is recognized that timeliness and effectiveness may preclude such measures. 

c. Lawsuit proponents should be aware that statutes of limitations may require the filing of a lawsuit within a particular amount of time. For example, the time to file a lawsuit under CEQA to challenge an EIR is very short (30, 35, or 180 days) from the notice of completion of the EIR.

3. The Litigation Committee and Litigation Sponsors 

a. The Litigation Committee is a Board Committee, established as specified in paragraph B-15.d of the CNPS Bylaws. The Litigation Committee is composed of the Legal Advisor, who serves as chair, the CNPS President, the CNPS Executive Director, and such additional members as appointed by the Legal Advisor. 

b. The Litigation Committee manages the legal aspects of CNPS litigation, provides legal information and procedural advice to the Board of Directors and those involved in CNPS litigation, but defers policy decisions regarding litigation to those who have authority for such policy. 

c. CNPS members or chapters who plan to initiate litigation should discuss such litigation with the Litigation Committee as early in the planning process as practical. The Litigation Committee will also serve as a primary contact for the Board with respect to litigation. 

d. CNPS chapters that engage in litigation should form their own litigation committees to serve as the primary contact between the chapter and the Litigation Committee regarding such litigation. Chapter litigation committees must include the chapter president serving as chair, the chapter treasurer if chapter funds are to be used in the litigation, and such other members as appointed by the chapter president. 

e. Each CNPS legal action must have a litigation sponsor who is responsible for initiating, organizing and coordinating the action, and for insuring that the action is conducted in accordance with these procedures. Each litigation sponsor must be a member of the Board of Directors, a chapter president, or the Executive Director.

4. Litigation Procedure

The following procedure must be followed for each separate CNPS legal action: 

  1. The litigation sponsor for such action will prepare, or cause to be prepared, a written litigation summary of the proposed litigation, which includes: 
    1. A statement of the proposed action; 
    2. A rationale for taking the action; 
    3. The desired goal if the action is successful. The desired goal will guide the actions of the settlement committee, should the litigation proceed to settlement; 
    4. Background information demonstrating the need for such action; and 
    5. Enumeration of a settlement committee of no more than five (5) members who will be responsible for negotiating and ratifying settlement of the action, should that become necessary. Each settlement committee will include the Legal Advisor and the litigation sponsor as chair. 
  2. If the litigation sponsor is a chapter president, then the litigation sponsor must submit the litigation summary to that chapter's board of directors for approval, before proceeding further; 
  3. The litigation sponsor will submit the litigation summary to the Litigation Committee for consideration; 
  4. The Litigation Committee will review the litigation summary and provide a recommendation to the Board whether to proceed with the proposed action, or not. The Litigation Committee's review may include input from chapter members, CNPS staff, and other interested parties. If the Litigation Committee decides not to recommend proceeding with the action, the sponsor may revise the litigation summary and restart the process at some later date; 
  5. The Litigation Committee will prepare, or cause to be prepared, the briefing materials specified in Section 11 of these procedures; 
  6. The Litigation Committee will distribute, or cause to be distributed, the briefing materials to the Board of Directors for consideration by the Board at one of its meetings. In general, distribution of the briefing materials should be at least two (2) weeks prior to such meeting, and the meeting should be a regularly scheduled meeting. Should significant legal rights risk being lost due to delay caused by waiting for a regularly scheduled meeting of the Board, or for other reasons of timeliness, the Board may approve a legal action pursuant to B-14 of the Bylaws, Action by Teleconference or Without a Meeting. The litigation sponsor and the Legal Advisor should both be in attendance at any meeting or teleconference, and be prepared to discuss the legal action with the Board; 
  7. Approval to proceed with a legal action by the Board of Directors will be by simple majority of the members participating. If the Board decides to proceed with an action, the Board must concurrently approve a preliminary plan to fund such litigation. If the Board decides not to proceed with an action, the sponsor may revise the litigation summary and restart the process at some later date; and 
  8. Once the Board of Directors approves a legal action, the litigation sponsor will work in conjunction with the Litigation Committee to ensure that such action is properly and successfully pursued. The litigation sponsor will provide, or cause to be provided, a report to the Board at each of the Board's regularly scheduled meetings.

5. Litigation Conclusions and Settlements

a. CNPS encourages settlement of litigation where settlement accomplishes the goal, or goals, that was the original object of the litigation. Other considerations include: 

  1. Expense and risks of continued litigation; 
  2. Strength of CNPS's legal and factual position; 
  3. Potential of the litigation to create important legal precedent; and
  4. Ability of CNPS to effectively monitor and prosecute the litigation. 

b. In general, the Board of Directors will delegate authority to settle litigation to the settlement committee for each action, but retains the right to assume authority to settle any legal action at any time. A settlement committee will provide the Board with adequate notification before concluding a settlement. 

c. In general, the settlement committee for each legal action will work with the Litigation Committee, to make other major decisions, such as whether to appeal, dismiss, or take an action to trial. The settlement committee will decide issues of policy, while the Litigation Committee will decide issues of law. The Board of Directors retains the right to assume authority to make any such decision at any time.

6. Funding

a. Finding and funding attorneys is a central problem for any litigation. Many attorneys may be able to take a CNPS case on a pro bono basis; others may take the case in expectation of an award of attorney's fees. It will be the responsibility of the Board to determine how the litigation will be paid for. While definite sources of funds should be identified at the time approval is sought for litigation, the Board need not immediately find financing for the whole litigation or for all possible contingencies, such as appeal. The Board may enlist the assistance of the Litigation Committee and the relevant settlement committee to identify funding sources, but the Board is responsible for funding litigation. 

b. Attorneys' estimates of costs and fees must be obtained in writing prior to engagement. A written summary of possible funding sources should be prepared.

7. Retainer Agreements

CNPS and CNPS chapters must enter into formal retainer agreements with the attorneys who have been chosen to represent them. Since such agreements are considered contracts, their execution must additionally follow the standard contract policy as well. These retainer agreements need not be complicated, but they should indicate hourly rates, ceiling amounts, responsibility for court and record costs, and the extent of representation on appeal. In addition, in cases where attorney's fees may be recovered, CNPS favors modest fee sharing arrangements with the attorney. Such fee sharing arrangements are best suited to low-risk, procedural cases. CNPS members sponsoring litigation should discuss fee-sharing arrangements with the CNPS Legal Advisor. Attorneys working within CNPS, including the Legal Advisor, should record the time they spend on specific litigation. The proceeds from any fee sharing arrangement must be deposited into a separate fund supervised by the Legal Advisor. Work performed by attorneys within CNPS, including the Legal Advisor, may qualify for an award of attorney's fees. Attorneys within CNPS should therefore record the time they spend on specific litigation.

8. Public Relations

a. Whenever CNPS engages in litigation, it is a newsworthy event, and press coverage has the potential to enhance, or detract from, such litigation's ability to achieve its intended effect, depending upon the type of press coverage received. A public relations plan should be developed for all litigation to ensure favorable, rather than adverse, coverage. Where litigation involves co-plaintiffs, a single public relations plan should be developed. A single person should be named as the press contact, who will then be the only person to handle outside inquiries regarding the litigation. 

b. Members other than the designated press contact must refrain from providing information and must refer persons making inquiries to the designated press contact.

9. Confidentiality 

Information and discussions regarding specific litigation should be kept confidential for both legal and strategic reasons. Written or electronic communications regarding litigation should carry reminders that the information is confidential. Discussion of information regarding litigation should be limited to persons whose participation is necessary to the handling of the litigation. Litigation should not be discussed "socially", and sensitive litigation details should not be sent via electronic mail, unless encrypted. Telephone and mail should be used instead. If you receive an e-mail regarding litigation, print out a hard copy, and delete the electronic copy from your computer (i.e., put the e-mail in the "trash" and empty the "trash"). Be very careful when sending e-mails using group addressing or a "reply" function. Once litigation is considered, routinely communicate with and through lawyers who have been asked to provide legal advice. 

10. Litigation Partnerships 

CNPS frequently enters into legal actions with other organizations or utilizes nonprofit legal foundations. For timeliness and clear communication, CNPS should provide any prospective litigation collaborators with a copy of these litigation procedures. This should be accompanied by a cover letter stressing our need to make mutual decisions at regular meetings, and to avoid unilateral action. Furthermore, CNPS should arrive at explicit, written agreements concerning CNPS' financial obligations, fundraising, attorneys' fees, costs, and terms of, and authority for, settlement.

11. The Briefing Materials 

The sponsor, with the assistance of the Litigation Committee and relevant settlement committee, will prepare briefing materials for members of the Board prior to Board action. The following issues will be included or addressed in the briefing materials for every action: 

  1. The litigation summary. 
  2. If the litigation sponsor is a chapter president, the date that the chapter board approved the litigation, and any notes, opinions, or recommendations made by the chapter board regarding the litigation. 
  3. Date that the Litigation Committee approved the litigation, and any notes, opinions, or recommendations made by the Litigation Committee regarding the litigation. 
  4. How is the litigation relevant to CNPS's mission and goals? If the litigation does not directly affect plants, how will the litigation help preserve threatened flora or ecosystems? 
  5. Is the litigation important for conservation? Is the plant population or ecosystem involved significant? How will the plant population or ecosystem be affected by CNPS's failure to act? How will the species in question, taken as a whole, be affected? How will CNPS's involvement in the litigation help? 
  6. What are the litigation's chances of success? Does the administrative record support CNPS's position? What legal arguments for CNPS's position have been developed? Do we know what the defendant's response will be? What is the disposition of local courts towards environmental interests? Is there a potential for counter-litigation? 
  7. What is the overall strategy behind the litigation? What are the political ramifications if CNPS does or does not get involved? How is the litigation related to other CNPS actions? 
  8. Is the litigation necessary to establish favorable legal precedent or case law? Are the facts of the case good for establishment of precedent? What are the risks of establishing unfavorable precedent or case law? 
  9. What are the risks, costs and liabilities of legal involvement? Have attorneys agreed to work pro bono? Will another organization support or subsidize the litigation? If CNPS or the chapter is paying all expenses, what is the dollar figure estimate given by the attorney? Has CNPS or the chapter budgeted funds accordingly? 
  10. What are the considerations that might lead to a settlement of the case, and what conditions might lead to a settlement? 
  11. How can the litigation be used for the purposes of public relations? Will the litigation be covered on TV or in the newspapers? Will the litigation create negative public relations? 
  12. What has CNPS' involvement been to date? Has CNPS fully pursued administrative and political alternatives?