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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: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Sisk, Gregory C. 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. Greg Sisk Gregory Sisk Professor of Law MSL 400, 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html 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) -----Original
Message----- I'm surprised there has
been little discussion here of HR 2679. |
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