HR 2679: Fee-Shifting in Constitutional Cases
mstern at ajcongress.org
Thu Jun 29 06:28:36 PDT 2006
When I testified against HR 2679,I proposed that, if the concern were truly with the burden fees posed(as opposed to disagreement with the Establishment Clause which seems in fact to be the cause of complaint) the bill be amended to allow Judges to deny fees when a governmental body is faced with conflicting constitutional claims such as free speech and non-establishment or as in the recent Poway case free speech a and equality. I cannot say that I won any adherents for this proposal .At the close of the hearing the sponsor announced that the bill was necessary to allow schools to "sponsor" religious speech.
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, June 28, 2006 6:02 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: HR 2679: Fee-Shifting in Constitutional Cases
While I certainly wouldn't endorse the legislation as apparently proposed - which would exempt a category of constitutional claims (establishment clause claims) from the Section 1988 attorney's fee award provision - I submit there is fair substance to the concerns that I imagine prompted this legislative proposal. Having written at length about attorney's fee shifting (I list a few of the works I've published on the topic after my signature line), I tend to be supportive of these provisions and sympathetic to fee claimants against the government. Nonetheless, I have to acknowledge the force of other arguments and the reasonableness of proposals to revise fee-shifting rules, even if on balance I may not be persuaded in the end.
First, the risk of an attorney's-fee award can be quite chilling, discouraging cities, school districts, etc. from taking any but the most cautious policy stance when opposition arises and is framed as constitutional in basis, especially as when the governmental policy relates to accommodation of or educational policies relating to religion. For that reason, those who threaten lawsuits sometimes can effectively blackmail a government entity into retreating from even quite reasonable proposals or policies. Indeed, we've all probably seen it happen on several occasions, when a government entity is contacted by a public interest litigation group or individual lawyer - reflecting all points on the political spectrum - and is bluntly warned by the group or lawyer that the entity could be liable for a huge attorney's fee bill, perhaps bankrupting the municipality or school district, if the matter goes to court and the entity fails to persuade the judge. Fearing the devastating costs if unsuccessful in court, such government entities, especially small municipalities and school districts who are particularly vulnerable to financial worries, not infrequently cave in and retreat into passivity. One result of fee-shifting can be an attitude of timid risk-aversion by government officers and agencies to anything remotely controversial, at least when someone actually threatens a lawsuit, regardless of the arguable public interests that might be advanced by a particular policy or even the reasonable though uncertain prospect that a defense of the policy in court might succeed.
Second, the typical fee-shifting statute can have perverse effects and do not apply in the context of the individual citizen hiring an ordinary lawyer to challenge plainly unreasonable government conduct. As Ed correctly says, only a successful plaintiff as the prevailing party is eligible for a fee award under Section 1988. But that means that fees may be awarded even if the plaintiff barely tipped the scales in a close case, because the defendant municipality or government officer had a well-founded and more than merely plausible position. Indeed, in the closely-fought case, where the government's position was well-justified if ultimately unsuccessful, the burden of the fee award is likely to be even greater, due to the greater length and intensity of the litigation. By contrast, the government defendant that took a plainly unjustified position, resulting in a slam-dunk and easy victory for the plaintiff, pays relatively little because the matter is resolved so quickly.
Third, attorney's fee shifting under Section 1988 already is one-sided in nature, as the defendant state or local government agency or officer is not entitled to recover fees from the plaintiff when the plaintiff loses (absent unusual circumstances, such as a truly frivolous lawsuit). Thus, the plaintiff threatening or bringing constitutional litigation seldom bears any risk of liability, while the defendant bears the risk of substantial liability for the opponent's fees, a risk that must be balanced carefully in both policy and litigation strategy.
Fourth, while fee-shifting seems especially reasonable in the context of the scenario that Ed portrays, which is that of the individual school teacher bravely standing against unreasonable government conduct and struggling to find legal representation at her personal expense, the practical reality often is quite different. Many (although by no means all) such suits are brought by public interest organizations, sometimes openly searching for a client to give it standing to pursue the lawsuit, which means that no individual litigant is personally on the hook for the litigation costs. Moreover, since these public interest organizations exist for the very purpose of pursuing such lawsuits, fee-shifting is not essential but rather serves as an additional form of fund-raising for these organizations. Let me hasten to say here that public interest organizations on both sides of the political divide do this. And I'm not saying there's anything wrong with it. Rather I'm simply observing that the reality on the ground can be more complicated than and not always as poignant as the portrait of a lonely and impecunious David left to challenge the abusive actions of the municipal or school-district Goliath.
In laying out these collateral effects of fee-shifting and adding nuance to the portrayal of the fee-shifting scenario, let me emphasize that I am not saying that these factors justify a dramatic change in fee-shifting jurisprudence or that the benefits of Section 1988 and similar statutes do not outweigh the costs. I simply mean to submit that a reasonable person could see these matters as justifying revision or reform, even if proposed HR 2679 may be a dubious means of seeking that revision or reform.
As an alternative, which I pose for argument's sake but do not endorse, Section 1988 could instead be converted from an automatic prevailing-party fee-shifting provision into a substantial justification fee-shifting statute, akin to the Equal Access to Justice Act. Under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), the federal government is liable for an award of attorney's fees when its position, either with respect to the underlying governmental decision or the legal stance taken in court, lacks substantial justification (which the Supreme Court has interpreted as meaning is not reasonable in law or fact). The legislative history behind this provision (initially enacted in 1980 and made permanent in 1985) explains that Congress wanted to provide a means of deterring abuse of government power while not chilling government officials from making difficult decisions that may later be overturned in court. Such a revision to Section 1988 would leave unchanged the availability of fee-shifting for all categories of claims and would ensure that those who challenge truly unreasonable government behavior would recover their expenses, while government entities and officials who have made a reasonable if ultimately mistaken policy decision would not face the penalty of large fee awards when acting in an area of legal uncertainty.
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2005
gcsisk at stthomas.edu
Litigation with the Federal Government (ALI-ABA, 4th ed., 2006) (Chapter VII on "Attorney's Fees: Limitations and Award")
The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part Two), 56 Louisiana Law Review 1 (1995)
The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part One), 55 Louisiana Law Review 217 (1994)
A Primer on Awards of Attorney's Fees Against the Federal Government, 25 Arizona State Law Journal 733 (1994)
Interim Attorney's Fees Awards Against the Federal Government, 68 North Carolina Law Review 117 (1989)
From: Ed Brayton [mailto:stcynic at crystalauto.com]
Sent: Wednesday, June 28, 2006 1:30 PM
To: Religionlaw list
Subject: HR 2679
I'm surprised there has been little discussion here of HR 2679. Marc Stern, who I know is on this list, testified at the House Judiciary Committee hearings on the subject. This bill would amend 42 U.S.C. § 1988 to exempt establishment clause cases from the provision which allows the winning plaintiff in a civil rights lawsuit to receive legal fee reimbursement. Because such awards are only given if the plaintiff wins, I would argue that this is a case of the losing side attempting to rig the game to change the outcome. The religious right (for lack of a better phrase) is against the bulk of establishment clause jurisprudence over the last few decades. They've had little success in court trying to turn back those precedents, so they are attempting to make it much more difficult for plaintiffs to find representation to bring such suits. I call this the Tonya Harding strategy - she knew she couldn't beat Nancy Kerrigan in competition, so she had her hobbled on the way to the arena instead.
More seriously, I think Marc's testimony was spot on. This law would create a clear disparity in cases. The legislation unfairly tips the balances against one side in court proceedings without regard to the merit of their claims. As an example, let's say a teacher decides to lead her class in prayer (despite the multiple court rulings that forbid this in the public schools). If the school allows her to do so and the family of one of the students in her class files suit on establishment clause grounds, they must bear the full cost of the litigation. Even if they win the case, if it costs a million dollars to fight such a case all the way to the Supreme Court - and it likely would - they have to be prepared to pay that million dollars even though the government has clearly acted in an unconstitutional manner here. But let's reverse the example. Let's say that the school refuses to allow the teacher to lead her class in prayer and the teacher decides to sue, claiming that this ruling violates her right to free speech and free exercise of religion. Because the suit is on grounds other than the establishment clause, this legislation would not apply and the teacher could recover the legal costs if she wins the suit, while those objecting to the policy on the other side, because their suit would be on establishment clause grounds, would not.
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