Steven Voigt, writing at RenewAmerica, is complaining about the ACLU being able to collect legal fees when they win a suit against a government agency (you may remember Voigt from my earlier fisking of his terrible 14th amendment arguments). This is nothing new, of course; innumerable voices on the right have been complaining about this for years. Funny, though, they never mention it if the Alliance Defense Fund, the Christian Legal Society, the American Center for Law and Justice or any other religious right legal group does the same thing. When the ACLU successfully sued on behalf of Lamb’s Chapel and were awarded reasonable legal fees, we didn’t hear a word. I guess it’s all just a matter of whose ox is being gored. Along the way, Voigt makes a lot of blatantly false claims on the subject. He writes:
The ACLU’s recent lawsuit against Dover Area School District in Pennsylvania, where the ACLU opposed Dover’s effort to balance its science curriculum with different viewpoints on evolution, is over for the ACLU. For local residents, however, the impact of the litigation has only begun. As a result of the judge’s ruling in favor of the plaintiffs–who were represented by the ACLU, Americans United for Separation of Church and State (“AUSCS”), and a corporate law firm–Dover Township residents will pay $1 million in attorneys’ fees and costs to the plaintiffs’ lawyers.
From the million dollar purse, the two legal organizations and the law firm will first deduct their out-of-pocket expenses, and then the ACLU and the AUSCS will split the remainder as fees, and these fees represent the bulk of the cash.
This is pretty much all false. There were three groups involved, that’s true – the ACLU, AU and the Pepper Hamilton law firm. And $1 million sounds like a lot, until you consider that Pepper Hamilton had 5 attorneys assigned to the case, two of them full partners, plus a number of paralegals, administrative assistants and so forth. The ACLU had one attorney on the case, and AU had two attorneys on it. The hourly billing rate for those attorneys was, bare minimum, $150 an hour and for the partners probably more like $500 an hour.
Will they actually be paid that much for this case? Of course not. But for the 5 Pepper Hamilton attorneys, every hour they spent working on that case was one less hour they could spend working on a case for a paying client (not true for the other attorneys, who are likely paid a salary and don’t bill by the hour). The cost to the law firm in terms of billable hours is enormous. The case took almost exactly one year from the date it was filed to the date the ruling came down.
Taking just the Pepper Hamilton attorneys and assuming an average of $250 per billable hour, if they each worked 40 hours a week that would be $2.6 million in the course of the year. Now, they didn’t all work 40 hours a week the whole time on the case, but some of them did, and some of them ended up some weeks working far more than 40 hours. Even if they averaged only half of that, that’s $1.3 million just in billable hours that the law firm gave up in order to take the case. And I can tell you that Pepper Hamilton paid for a lot more than just the cost of those attorneys. They also paid nearly all of the massive logistical costs.
Think for a moment about some of the ancillary costs involved in preparing such a massive legal effort. The plaintiffs side had 7 expert witnesses. All of them had to prepare an expert report and comment on the reports from the experts on the other side. All of those reports had to be read and annotated, along with all the expert reports from the other side. All of the defense experts had to be deposed at the expense of the plaintiffs, and that expense is significant – they have to pay the travel costs either of the expert or the legal staff and pay for a court reporter as well (which is pretty expensive).
The technology involved in the case was state-of-the-art as well, and that’s expensive to set up and maintain. There were literally hundreds of exhibits in the case, all of which were digitized and put into a database so they could be pulled up in court on demand. They had to pay an IT person to be in the courtroom every minute of the trial to operate that system, plus who knows how many people to build the database.
Add to that the cost of office space, furniture and equipment for this huge staff of attorneys and paralegals. Add to it all of the lodging, travel and other expenses of all the witnesses that testified for our side. They may also have paid those expenses for all of the unpaid consultants on the case like Nick Matzke (I’m not sure if that’s the case). Add all of that up and the actual legal bill for the case was over $2.5 million. They were awarded $1 million, or less than 40% of the total.
Which means that even with what was awarded in legal fees, they won’t even cover the expenses involved for any of the three organizations involved. Pepper Hamilton will almost surely end up writing off a good deal of their expense on it, and that’s fine. No need to feel sorry for them, large firms set aside an annual budget for pro bono work. But bear in mind that they also risked not getting any of those expenses reimbursed at all. They could have lost millions on the case; the only reason they didn’t is because their case was strong.
Likewise for the ACLU and the AU. Demagogues like Voigt make it sound as though they’re getting rich and using cases like this to “build up a war chest” for their “battle against Christianity”. In fact, such cases cost them money no matter how much they might get back in legal fees. I guarantee that even with the small portion of the legal fees they are awarded every year (most of those awards go to the law firms that handle the case) they are a net loser, and probably a significant one, for the ACLU financially. They are able to do it only through donations from individuals and foundations.
Of course, Dover taxpayers also had to pay the fees for the attorneys for the defendant, Dover Area School District, as well.
False. The Thomas More Law Center handled the case for them for free. Voigt could have found that out with a simple Google search, for crying out loud. Then again, does he really care about accuracy? He has a myth to sell here; truth is irrelevant.
If this seems out of the ordinary, it is. In nearly all lawsuits, litigants pay only the fees for their own attorneys, regardless who prevails. This is known as the “American Rule.” One exception to the American Rule is where the plaintiffs’ attorneys recover their fees from the defendant under a fee shifting statute, 42 U.S.C. §1988, which Congress ratified in 1976.
The ACLU and like-minded groups have abused 42 U.S.C. §1988 to perpetuate endless lawsuits, such as the Dover lawsuit, against religion.
Ah, this is what I love about the attempts by ID advocates to claim that ID is not religion – their followers always spill the beans. Here Voigt admits that the Dover case was a case “against religion”; I’m sure the DI would rather he say “against the robust research program of intelligent design theory”, but you see, Voigt has been listening to the wrong DI face and he’s not quite up to speed on the preferred terminology.
Using this statute, the ACLU has been accumulating a war chest of cash to fund ongoing and future attacks against communities and schools that display crosses, post the Ten Commandments, set up nativity scenes, permit moments of silence, or allow public prayer. In the crosshairs of the barrage of litigation are groups such as the Boy Scouts of America and the American Legion–but also tiny libraries, schools, and small municipalities that are typically funded by local taxes and do not have the resources to fend off the high-priced lawyers who sweep in on behalf of the ACLU and similar left-wing groups.
As noted above, this notion that they use such cases to “accumulate a war chest” is absurd. First, they only get any award at all when they win a case. If the case is settled, as most are, they get nothing. And most of those awards go to the law firms that volunteer to take the case. The ACLU, in the end, almost certainly loses money on such litigation.
Now this is where Voigt goes pretty much completely off the deep end. He argues that 42 U.S.C. 1988 should apply only in cases involving racial discrimination. His reasoning is highly absurd and factually incorrect:
The ACLU’s and the AUSCS’s use of 42 U.S.C. §1988 to reap their attorneys’ fees from defendants in religion lawsuits is certainly creative. Actually, however, lawmakers never intended, or anticipated, that the statute would be used in this way.
42 U.S.C. §1988 followed the landmark Civil Rights Act, ratified in 1964, which Congress passed to combat racial injustice. The 1964 Civil Rights Act included limited legal remedies, which primarily consisted of injunctive relief–i.e., a court order that the particular conduct must cease.
Twelve years after the Civil Rights Act, Congress ratified and the president signed into law 42 U.S.C. §1988. This statute strengthened the remedies available under the 1964 Civil Rights Act and, among other things, provided judges with the discretion to award attorneys’ fees to plaintiffs who prevail with civil rights claims. With this statute, Congress empowered low-income individuals who are more likely to suffer from discrimination with the means to obtain quality legal representation, because it provided additional pecuniary incentives for lawyers to accept meritorious cases….
Because 42 U.S.C. § 1988 followed and strengthened the Civil Rights Act of 1964, to understand lawmakers’ intent behind this legislation, we must look to the 1964 act. Upon doing so, the purpose of the statute becomes clear. Congress and the president intended for such civil rights legislation to combat racial discrimination.
This is an incredibly easy claim to disprove. All one has to do is look at the actual text of 42 U.S.C. 1988. It says:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
Do you notice anything about that text? How about the fact that it specifically mentions that it applies not only to the 1964 Civil Rights Act – the one that focused primarily on racial discrimination – but also to several statutes regarding
religious freedom. In fact, if you look at the whole history of modifications of that particular chapter of the US Code regarding the Civil Rights Act, you’ll see that it includes multiple statutes passed by Congress that specifically involved religion cases against the government as well as many provisions that had nothing to do with ending racial discrimination. Voigt is simply wrong when he claims that because this statute modified the Civil Rights Act that therefore it applies only to racial discrimination cases – and the truth is right there in the text of the statute he’s discussing.
Equally as important is the fact that this statute is a good idea. The only reason that people like Voigt don’t like it is because it is used in cases they disagree with. As noted above, you never hear them complain when the same law allows the ADF or the ACLJ to collect legal fees in cases they win. And the important thing to bear in mind here is that this only happens if they win – only if the government is found to have overstepped its constitutional boundaries do they even get a mimimal award to cover the expenses they incurred in taking such a case.
And if the government has acted unconstitutionally, why should the folks trying to stop them have to bear the costs of making them stop? That cost should be borne by the government. This provides a crucial check on abuse, as the Supreme Court noted in Owen v City of Independence:
The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights…. [Since] it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.
But the only time we hear complaints is when their side loses a case. When, for example, a school district unconstitutionally refuses to rent their facilities to a religious group, as it did in Lamb’s Chapel, why should Lamb’s Chapel have had to pay the millions of dollars it took to fight that case all the way to the Supreme Court and get a ruling that struck down the school’s policy? Removing such cases from the reversal of fees policy would make it prohibitively expensive for anyone to challenge any government agency when they are acting in an unconstitutional manner. And people like Voigt should keep in mind that such cases often cut the other way as well.