Jordan

I concur in the result and analysis of the majority opinion, which I understand to be as follows:

Having said this, I write to add a few thoughts as to the practical effect of this case upon the government of the State of California (State) and upon its taxpayers.

On the one hand, it is all to the good that the State will not have to pay an $88 million fee award that was—at more than $8,000 per hour—completely in outer space, totally over-the-top. 1 The fact that attorneys even requested a fee award of that absurd magnitude from the taxpayers is a testament to the unreal world of greed in which some attorneys practice law in this day and age.

On the other hand, I think that this case will have other long-range effects that will be less beneficial to the State.

This is because the record of this case demonstrates that the State wantonly breached its arbitration agreement (Agreement) with attorneys in at least two important respects.

First, the Agreement provided in no uncertain terms, “This award shall be binding on all parties, and there is no right of appeal, collateral attack, or *458 other review.” What happened in this case is that when the gigantic magnitude of the fee…

Milberg, Weiss, Bershad, Hynes & Lerach, Leonard B. Simon, Frank J. Janecek, Jr., and William S. Dato, San Diego; Weiss & Yourman, Joseph H. Weiss and Joseph D. Cohen; Keesal, Young & Logan, Samuel A. Keesal, Jr., Neal S. Robb, Long Beach, Ben Suter and Julie L. Taylor, San Francisco; Boutin, Dentino, Gibson, DiGuisto, Hodell & West and Stephen F. Boutin, Sacramento; Blumenthal, Ostroff & Markham, Norman Blumenthal and David Markham, San Diego; Sullivan, Hill, Lewin, Rez & Engel and Jeffrey D. Lewin and Candace M. Carroll, San Diego; Law Offices of Richard M. Pearl and Richard M. Pearl, Berkeley, for Plaintiffs and Appellants in C038339, for Real Parties in Interest and Appellants in C038343 and for Defendants and Respondents in C038735.

Law Offices of Eric Seilset Norby and Eric Seilset Norby for Plaintiffs and Appellants in C038735.

Bill Lockyer, Attorney General, Peter J. Siggins, Chief Deputy Attorney General, Lawrence K. Keethe and Michael J. Cornez, Deputy Attorneys General; Jones, Day, Reavis & Pogue, Elwood Lui, Scott D. Bertzyk and Eugenia Castruccio Salamon for Plaintiffs and Appellants in C038343 and for Defendants and Appellants in C038339.

MORRISON, J.

In these…

In these consolidated appeals we determine whether the trial court erred in vacating the arbitration award of $88,479,713 for fees and expenses in settlement of Jordan v. Department of Motor Vehicles (1999) 75 Cal.App.4th 449 [ 89 Cal.Rptr.2d 333 ] (Jordan), the case that held the smog impact fee was unconstitutional. We also address a challenge to the validity of Revenue and Taxation Code section 6909, subdivision (b) (section 6909(b)), the statute that authorized the arbitration.

Although we recognize the limited scope of judicial review of an arbitration award under Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [ 10 Cal.Rptr.2d 183 , 832 P.2d 899 ] (Moncharsh), we find this case falls in the limited and exceptional circumstance justifying judicial review of an award that violates an explicit expression of public policy. An award of over $88 million in public monies pursuant to statutory authority for an arbitration “in the settlement of” an $18 million dispute is an unconstitutional gift of public funds. As such it violates both section 6909(b), which authorizes the arbitration, and the public policy set forth in article XVI, section 6 of the California Constitution,…