Nearly seven years after Fresno voters decided on a parks tax, the city won a partial legal victory on attorneys’ fees.

On Friday, a judge ruled that the city only owes parks tax advocate Fresno Building Healthy Communities $290,071 in attorneys’ fees. Fresno BHC had requested $600,000.

The case went up to the appellate court and back down to Fresno County Superior Court.

In 2018, advocates such as Fresno BHC and the Central Valley Community Foundation placed Measure P on the ballot after collecting enough signatures.

At the time, it was believed that a two-thirds majority was required to pass the three-eighths of a percent tax increase because the tax was for a specific purpose.

Measure P received 52% of the vote and was deemed to have failed because it did not meet the two-thirds threshold.

Fresno BHC sued, arguing that the two-thirds requirement only applied to measures placed on the ballot by a government body—such as the City Council—and that citizen-initiated measures needed only a simple majority.

Eventually, the higher court agreed, and Measure P went into effect in 2021. Fresno BHC and the city of Fresno then engaged in litigation over who should pay attorneys’ fees.

Judge Robert Whalen ruled that Fresno BHC is entitled to some fees but not the full amount requested. His role in the remainder of the case was to determine the appropriate amount.

“I believe this to be a fair outcome, and I applaud Judge Whalen for his thoughtful and common-sense order,” Fresno City Attorney Andrew Janz said.

Fresno BHC did not immediately respond to a request for comment.

Whalen’s Ruling

The lawsuit also involved the anti-tax advocate Howard Jarvis Taxpayers Association. Although HJTA was considered an intervener in the case, Judge Robert Whalen wrote that “an intervener can be considered an opposing party” and apportioned attorneys’ fees between the city and HJTA.

Agreeing with the city’s position, Whalen assigned 10% of the attorneys’ fees to the city and 90% to HJTA. Fresno City Attorney Andrew Janz argued that HJTA drove up the cost of litigation.

However, Fresno BHC and HJTA agreed not to pursue attorneys’ fees against each other.

“It is a true mystery to me why FBHC and their attorneys would enter into an agreement with Howard Jarvis to not seek attorneys fees from them, when they were the primary drivers of FBHC’s litigation expenses. It is my hope that this litigation is at an end and that the City of Fresno will be allowed to continue to implement Measure P as it was intended,” Janz said.

Whalen noted that Fresno BHC expected the two-thirds threshold when it submitted the Measure P language for the ballot. The nonprofit essentially told the city “to ignore the language they wrote,” Whalen said in his ruling. He called the request “topsy-turvy.”

The judge described Fresno BHC’s inclusion of the two-thirds language as an error and cited it as a factor in his decision.

“But for this error on the part of the attorneys representing FBHC, the Fresno City Council would not be compelled to adopt the position they did, consistent with Measure P, and this litigation, at least in the form it took, would not have been necessary,” Whalen wrote in his nine-page opinion.

The Fresno BHC vs. city of Fresno litigation was technically two cases. The first involved Fresno BHC suing over the City Council’s declaration that Measure P had failed. The second was the city asking the court for a decision on whether the two-thirds threshold applied.

Whalen’s 10% ruling applied only to the first case—referred to as “Fresno I” in the opinion. The city must pay $22,439 in attorneys’ fees for that case. For the second case, referred to as “Fresno II,” the city owes $264,836 in attorneys’ fees, plus $2,796 in court costs.

Read the Ruling