Litigation & Appeals

Olson Hagel & Fishburn LLP is a seasoned, proven leader in litigation involving the political process, government administration and regulation, and public finance. Our litigation team includes attorneys with decades of experience in the California Attorney General's office, the California Department of Finance and the California Department of Personnel Administration. Olson, Hagel & Fishburn attorneys have appeared before the highest courts, including the United States Supreme Court and the California Supreme Court.

Olson Hagel & Fishburn's experience extends across diverse areas of litigation:

  • Constitutional challenges to legislation or administrative regulations at the state or local level
  • Constitutional or procedural challenges to initiatives and referenda (pre-and post-election)
  • Election-related litigation, including ballot litigation, candidate designations, and election contests
  • Litigation involving state mandates and state/local governmental relations, public finance, public employee benefits and administrative regulation
  • Litigation related to education law and educational audits
  • Original writ litigation in trial and appellate courts
  • Litigation involving state or local agency compliance with the Public Records Act, open meetings laws (Brown Act and Bagley-Keene Act) and the California Administrative Procedure Act
  • Administrative enforcement proceedings before the Fair Political Practices Commission, including campaign finance violations or conflicts of interest
  • Administrative proceedings before the Education Audit Appeals Panel

Appellate Practice

Olson, Hagel & Fishburn has an extensive appellate practice. Deborah Caplan, head of the litigation Unit, is certified by the California State Bar as an appellate law specialist. The firm's appellate practice includes "regular" appeals from trial court rulings, as well as original writs filed in the California Courts of Appeal and Supreme Court. Such writs are typically used when the constitutionality or legality of government action is at issue, when the government action is likely to have a significant impact upon the public or certain groups, and prompt judicial action is necessary. Few law firms possess our level of expertise in navigating this complex area of the law, and even fewer are able to do it as efficiently and cost-effectively as Olson, Hagel & Fishburn.

Our appellate practice also includes preparation of amicus curiae ("friends of the court") briefs for persons or organizations who are not formal parties in a case but who wish to raise issues for the court's consideration.

Election-Related Litigation

Olson Hagel & Fishburn has successfully litigated constitutional challenges to several statewide initiatives and has participated in some of the most significant campaign finance cases of the last decade.

In California Democratic Party v. Jones, the firm challenged Proposition 198, which required political parties to choose their nominees with "blanket" primary elections. The United States Supreme Court held the blanket primary was an unconstitutional restraint on the First Amendment rights of political parties.

In Bramberg v. Jones, the firm represented the plaintiffs in a challenge to Proposition 225, which penalized candidates who refused to support Congressional term limits. The California Supreme Court held that Proposition 225 violated Article V of the United States Constitution.
In another case dealing with initiatives, the firm represented the proponents of Proposition 99 (tobacco tax) in litigation that upheld the initiative's constitutionality. (Kennedy Wholesale v. Board of Equalization.) The firm later litigated American Lung Association v. Wilson, which prevented a diversion of more than $120 million from health education and research programs funded by Proposition 99.

Olson, Hagel & Fishburn has been involved in litigating the constitutionality of several major pieces of state and federal campaign finance legislation. In McConnell v. Federal Election Commission, the firm represented the California Democratic Party in a challenge to the new "McCain-Feingold" federal law. The firm also successfully challenged a state law requiring the disclosure of certain donor information on campaign advertisements (California Democratic Party and California Republican Party v. FPPC), and participated in California Pro-Life Council v. Scully, a case challenging the constitutionality of Proposition 208, California's prior campaign finance law.

Each election cycle, the firm litigates whether certain matters are appropriate for initiative, and whether the ballot materials prepared for each initiative comply with the law.

Here is a sample of Olson Hagel & Fishburn's significant election-related appellate litigation:

Ballot Litigation

  • Yes on 25 v. Superior Court (2010) 189 Cal.App.4th 1445. Successful defense of ballot label and title and summary for Proposition 25 (majority vote for state budget).
  • Clark v. Superior Court. (2010 WL 928384.) Successful challenge to legislatively-prepared ballot materials.
  • Andal v. Miller(1994) 28 Cal.App.4th 358. Challenge to candidate's ballot designation.
  • Labrie v. Board of Supervisors (Placer County Superior Court, Case No. SCV – 0030835). Successful defense of lawsuit challenging ballot arguments relating to city charter proposal.
  • Lungren v. Superior Court (1996) 48 Cal.App.4th 435. Challenge to official ballot title and summary of Proposition 209 (affirmative action initiative).

Campaign Finance Litigation

  • Washington State Grange v. Washington State Republican Party (2008) 128 S.Ct. 1184. Amicus brief in support of Washington Democratic Party challenge to change in primary rules.
  • San Jose Silicon Valley Chamber PAC v. City of San Jose (9th Cir. 2008) 546 F.3d 1087. Amicus brief in support of challenge to local campaign finance restrictions.
  • Californians For Fair Representation v. Superior Court (2006) 138 Cal.App.4th 15. Successful lawsuit to compel timely pre-election reporting of campaign contributions to ballot measures.
  • McConnell v. Federal Election Commission (2003) 540 U.S. 93. Challenge brought on behalf of California Democratic Party and others to constitutionality of McCain-Feingold campaign finance reform law.
  • California Pro-Life Council v. Scully (9th Cir. 1999) 164 F.3d 1189 (9th Cir. 1999). Challenge brought by California Democratic Party and others to constitutionality of campaign finance initiative (Proposition 208).
  • Californians for Political Reform Foundation v. Fair Political Practices Commission (1998) 61 Cal.App.4th 472. Challenge to FPPC regulation affecting contributions to political action committees.

Ballot Access Laws

  • Lee v. Keith (2006) 463 F.3d 763. Successful challenge to Illinois ballot access rules on constitutional grounds.
  • Californians For Fair Representation v. Superior Court (2006) 138 Cal.App.4th 15. Successful lawsuit to compel timely pre-election reporting of campaign contributions to ballot measures.
  • Nadler v. Schwarzenegger (2006) 137 Cal.App.4th 1327. Successful defense of Legislature's 2000 redistricting plan.
  • Costa v. Superior Court (2006) 37 Cal.4th 986. Challenge to ballot measure proponent's failure to circulate legally approved version of measure.

Legality of Initiatives

  • Camp v. City of Sacramento (2010) (Sacramento Superior Court, Case No. (34-2009-00065404). Successful challenge to initiative that proposed changing Sacramento to a strong-mayor form of government because initiative was not proposed as a charter "revision."
  • Worthington v. City Council of City of Rohnert Park (2005) 130 Cal.App.4th 1132. Successful defense of City's agreement with Indian tribe over claims that agreement was subject to public referendum.
  • McConnell v. Federal Election Commission (2003) 540 U.S. 93. Challenge brought on behalf of California Democratic Party and others to constitutionality of McCain-Feingold campaign finance reform law.
  • California Democratic Party v. Jones (2000) 120 S.Ct. 2402. Successful challenge to constitutionality of California "blanket primary" initiative.
  • Bramberg v. Jones (1999) 20 Cal.4th 1045. Challenge to constitutionality of initiative requiring candidate's position on term limits to be included on ballot.
  • Jahr v. Casebeer (1999) 70 Cal.App.4th 1250. Challenge to local initiative setting Board of Supervisor salaries.
  • Lungren v. Superior Court (1996) 48 Cal.App.4th 435. Challenge to official ballot title and summary of Proposition 209 (affirmative action initiative).
  • Planning and Conservation League v. Lungren (1995) 38 Cal.App.4th 497. Challenge to statute regulating the process by which initiatives qualify for the ballot.
  • Kennedy Wholesale v. Board of Equalization (1991) 53 Cal.3d 245. Amicus brief in support of validity of Proposition 99.

Government Law and Education Litigation

Olson, Hagel & Fishburn has conducted significant litigation related to education, state mandates, governmental regulation and public finance.

Olson Hagel & Fishburn is currently counsel for the California School Boards Association, the Association of California School Administrators, the State PTA and several school districts in Robles-Wong v. State of California. This groundbreaking lawsuit challenges the constitutionality of the State's system of funding K-12 education. More information is available at

The firm also successfully represented the California Teachers' Retirement Board in a lawsuit to recover over $500 million in public retirement funds wrongfully withheld by the state. (Teachers' Retirement Board v. Genest.)

The law firm has participated in several lawsuits involving mandate reimbursement and revenue allocation between state and local governments. (County of Sonoma v. Commission on State Mandates and County of San Bernardino v. State of California.) We have successfully challenged the constitutionality of several state legislative attempts to limit its responsibility for mandate reimbursement under article XIII B of the Constitution. (California School Board Association v. State of California.) The firm also recently obtained a decision declaring the state's practice of "deferring" mandate payments to school districts unconstitutional.

The firm obtained a key ruling on the interpretation of the Brown Act, in which the Court of Appeal declared that closed-session discussions by public bodies are privileged and confidential, even during disputes over open meetings law requirements. (Kleitman v. Superior Court.) We have also been involved in Lexin v. Superior Court, a case before the California Supreme Court that presents far-reaching questions about the state's conflict of interest laws and public employee participation on public retirement system boards.

Olson Hagel & Fishburn represented the California School Boards Association in challenging the State Legislature's attempt to transfer control of the Los Angeles Unified School District to the Mayor's office. (Mendoza v. State of California.) The firm also successfully challenged the State Board of Education's textbook adoption process and its requirement that all eighth graders take Algebra I. (Hindu American Foundation v. State Bd. of Education and CSBA, et al. v. State Bd. of Education.)

The firm advises and represents school districts and charter schools in proceedings before the Education Audit Appeals Panel and has a solid record obtaining substantial reductions in—or the complete reversal of—penalties associated with education audit findings.

Examples include:

  • An appeal settled on behalf of Oakland Unified School District that eliminated $30 million in audit penalties
  • A reduction in Vallejo City Unified School District's liability for several audit findings by approximately $3 million
  • An agreement negotiated that absolved Mt. Diablo Unified School District of a $1.3 million audit penalty

Olson, Hagel & Fishburn appellate litigation in the areas of government law, public finance and education include:

  • California School Boards Association v. State Bd. of Education (2010) 186 Cal.App.4th 1298. Successful challenge to unlawful action taken by the California State Board of Education in approving a statewide charter.
  • California School Boards Association v. State (2011) 192 Cal.App.4th 770. Established the state's practice of deferring mandate reimbursement to schools was contrary to California law.
  • California School Board Assn. v. State Bd. of Education. (2010 WL 1692760.) Successful challenge to decision of State Board of Education to require Algebra I for all 8th grade students.
  • California School Boards Assn. v. State of California (2009) 171 CalApp.4th 1183. Successful challenge to state's efforts to reduce its obligation to reimburse local governments for state imposed mandates.
  • Teachers' Retirement Board v. Genest (2007) 154 Cal.App.4th 1012. Successful recovery of $500 million withheld from Teachers Retirement System by unlawful legislative action.
  • Mendoza, et al. v. State of California (2007) 149 Cal.App.4th 1034. Successful challenge to State legislation transferring control of the Los Angeles Unified School District to the Mayor.
  • Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 10165. Amicus brief on behalf of legislative leadership relating to interpretation of "private contracting out" initiative.
  • Consulting Engineers and Land Surveyors of California v. Professional Engineers in California Government (2007) 42 Cal.4th 578. Amicus brief defending legislative interpretation of "private contracting out" provisions.
  • R.J. Reynolds v. Shewry (2005) 423 F.3d 906. Amicus brief defending constitutionality of state's anti-smoking advertising campaign.
  • San Diego Unified School District v. Commission on State Mandates (2004 WL 1664857.) Amicus brief in support of school district claim for reimbursement of costs related to state-mandated testing program.
  • County of Riverside v. Superior Court (2003) 30 Cal.4th 278. Amicus brief addressing constitutionality of state law directing binding arbitration for public safety officers.
  • County of Sonoma v. Commission on State Mandates (2000) 84 Cal.App.4th 1264. Challenge to decision of Commission on State Mandates involving shift of local revenues into Educational Revenue Augmentation Funds without reimbursement by the state.
  • Kleitman v. Superior Court (1999) 74 Cal.App.4th 324. Successful defense of City Council's right to maintain confidentiality of closed session deliberations.
  • American Lung Association v. Wilson (1996) 51 Cal.App.4th 743. Successful action to enforce funding provisions of Proposition 99 (tobacco tax).
  • California Standardbred Sires Stakes Committee v. California Horse Racing Board (1991) 231 Cal.App.3d 751. Litigation of alleged conflict-of-interest violations.
  • McLaughlin v. State Board of Education (1999) 75 Cal.App.4th 196. Amicus brief in litigation over the authority of the State Board of Education to grant waivers to school districts from the requirements Proposition 227 (bilingual education).
  • Valeria G. v. Wilson (N.D. Cal. 1998) 12 F.Supp.2d 1007. Amicus brief in support of challenge to immediate application of Proposition 227.