Larry's Solo Act

Dave and Larry don't always perform together, of course. Larry has his own act, which can be seen at his blog pretty much every day. And he's continued to peddle nonsense on this issue over there.

(1) The attorney fee awards that defendants must pay in establishment clause cases are often draconian. The Dover school board was soaked for $1 million in fees, though the board deserved little more than a slap on the wrist, if even that much.

But as I keep saying, they only claim the government agency - and that's what a school is - got "soaked" or was "intimidated" by the ACLU when they disagree with the outcome. The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance? Obviously, because they agree with the outcome of the case (and I do too, by the way, in both of those cases).

And of course, there are a few facts that Larry and other defenders of the Dover school board continue to pretend don't exist. Like the fact that the Dover board ignored the advice of their own legal counsel when they passed the policy. They were told that they would lose in court and face enormous costs and they ignored that advice. Even the Discovery Institute told them that they would lose such a lawsuit, and yet they continued with it. And shortly after the case started, they were offered the chance to rescind the policy and settle the case without any financial cost and they still refused to do it. And on top of that, at least 2 of them flat out lied on the witness stand. But none of that matters to these dolts. All that matters is that they don't like the result of such cases, so whatever has to be done to make them stop is what they'll advocate - no matter how stupid or hypocritical it obviously is.

What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment."

Ah, more of that trenchant legal analysis from Fafarman. But he is misinterpreting both Shakespeare and reality. Shakespeare said a rose by any other name would still smell as sweet, meaning what you call something doesn't change what it actually is. You can call the reimbursement of legal fees "punitive damages" but that doesn't actually make them turn into punitive damages. You can call your dog a chicken if you want, but it's still not gonna lay eggs for you. And even if it was punitive damages, this is an equity case, not a criminal case. The 8th amendment applies to punishments imposed by the government in criminal cases, not to what the government itself has to pay when it violates the constitution.

(2) The ACLU, the Americans United for Separation of Church and State, Darwinists, etc., make no bones about the fact that one of the main purposes of these attorney fee awards is intimidation.

So what? The ADF, the ACLJ and other conservative Christian legal groups say the same thing when they win, that they hope it will deter other agencies from violating the Constitution. Remember, guys, we should want to deter the government from acting unconstitutionally. That's a good thing, not a bad thing.

(3) Rip-off artists ACLU and AUSCS uses these lawsuits as a major means of fundraising. The ACLU has its own staff attorneys, but outside attorneys who represent the ACLU in litigation work for free and all the attorney fee awards go to the ACLU.

Nonsense. First of all, the ACLU has very few staff attorneys. Only in the last 3 years have they managed to fund the hiring of a single attorney on staff at all of its chapters around the country. The ACLU had one attorney assigned to this case, and that was only part time (as the legal director of the chapter, he undoubtedly had numerous other cases to deal with as well). Second, the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.

But notice how these guys turn the enormous generosity of Pepper Hamilton into a bad thing. That law firm took an enormous financial hit on this case. Every hour that one of their attorneys spent on this case was an hour they weren't billing someone for, and that includes three partners whose hourly fee is probably a minimum of $300 an hour. That they agreed to be reimbursed only for expenses (which still undoubtedly ran into hundreds of thousands of dollars) speaks volumes about their commitment to principle. They took a huge financial hit, and bear in mind that if they'd lost the case it would have been even bigger.

But such cases are an anamoly. Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it, so their portion of that reimbursement is small. Also bear in mind that, by law, the money they get for such fees can only be used to pay for more legal work. And also remember that there are some cases that they lose, or that end up being settled early on for no financial gain. The fact is that the vast majority of the ACLU's funding comes not from the reimbursement of legal fees in the cases they win, but by donations and grants.

(5) Establishment clause lawsuits -- as well as free exercise lawsuits -- are an area of the law that is highly uncertain, inconsistent, and unpredictable. This is especially true because of the infamous Lemon test, which applies only to establishment clause cases. These factors of uncertainty in combination with the threat of an exorbitant attorney fee award often intimidate governments into avoiding actions that the courts might determine to be constitutional.

LOL. If that was the case, then why are there are so many obvious losing cases pursued in the courts? Everyone, even the Discovery Institute, told the Dover board that they were gonna lose this case. The outcome wasn't in any great doubt, everyone knew from the start that they were going to lose. The only question was whether it would be a narrow loss or a broad one. The same is true of lots of free exercise cases where one is just baffled by why the government agency continues to pursue them when the outcome is obvious. The case in Colorado last week involving access to public facilities is a perfect example. The city is going to lose that case and they're going to lose badly, based on precedents that were equally ridiculous to pursue. In the Lamb's Chapel case, the legal principle was so obvious that the ACLJ and the ACLU were on the same side, yet the school district kept pressing that case all the way to the Supreme Court - where they got smacked down with a unanimous ruling. Are there some cases in church/state law that are ambiguous and difficult to predict? Of course. But Dover wasn't one of them, nor are most such cases.

(6) It seems to be generally assumed that only the plaintiffs are eligible for an attorney fee award, but there is no such provision in the fee-shifting statute, 42 USC §1988(b), which only provides for an attorney fee award to the "prevailing party."

Ah Larry, you should have read one clause further. What it actually says is "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." Where the defendant is the government, it is indeed only the plaintiff who is eligible for reimbursement.

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

Larry's ability to distort the meaning of a court case appears to have no practical boundaries at all. Follow the link to the case above, read it, and tell me if you think his reading of the ruling is even close to reality. First of all, the decision was unanimous. Unanimous decisions are pretty rare, and reserved only for the most obviously correct decisions - serious no-brainers. So if one is going to challenge the validity of a unanimous ruling by the Court, let's just say the standard is pretty high for showing it to be unwarranted. And Larry doesn't even come close to meeting such a standard.

The issue in the case was how to actually calculate "reasonable fees" in such cases. The standard way to calculate such fees was to take the number of hours worked on the case and multiply by the average billable rate in that region, but the respondent complained that this drove up the fees and argued that they should be calculated according to "the cost of providing legal services rather than according to the prevailing market rate." But the Solicitor General, representing the executive branch of the government, urged the court to apply the cost standard only to cases where the plaintiff is represented by a non-profit legal group.

First of all, it's not at all clear that this would have any effect on a case like Dover at all. The ACLU was a party to the case, yes, but so was the private law firm of Pepper Hamilton. Even if the solicitor general had won the argument before the court, it would not change the standard for reimbursement of the legal fees charged by a private firm such as that. And Larry - surprise, surprise - only quoted part of the sentence that the court quoted. Here's the full statement:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, are correctly applied in such cases as Stanford Daily v. Zurcher, Davis v. County of Los Angeles; and Swann v. Charlotte-Mecklenburg Board of Education. These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976).

Please note two things about this statement. First, that he leaves out the second justification given by the Congress for using market rates as the prevailing standard - because it helps plaintiffs in such cases attract competent counsel. Second, that it explicitly cites several previous court cases as including "the appropriate standards". Larry left those citations out of his quote, but the court of course had to refer to them for a full understanding of what the statute required as the legal standard for how such fees are determined. And what did the court find? It's in the very next sentence of the ruling:

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

But bear in mind that the section that Larry quoted only applies to the issue of how to calculate such costs, not to the issue of whether one should calculate them differently if the plaintiffs are represented by a non-profit group. The court addressed that question immediately after the portion of the ruling that Larry cites. Keep in mind Larry's claim above - he says that the court ruled that the fees can't be reduced because the attorneys are from a non-profit group only because they "erroneously interpreted" a sentence from the House report (a sentence that didn't actually have to do with that issue at all, of course). Now let's look at why the Court actually ruled that way:

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher and Davis v. County of Los Angeles make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." In Davis, the court held: "In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney's fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees."

Larry could not possibly be any more wrong. The Congress explicitly said that the standards to be applied for determining reasonable fees are found in those Supreme Court cases. And in those Supreme Court cases, the court had made clear that the non-profit status of the attorneys representing the plaintiff were irrelevant and that market rates were the prevailing standard. This is as clear as a ruling could possibly be, which of course explains why it was unanimous. And Larry's presentation of the legal justification offered by the court is distorted beyond all semblance of rationality. If he offered such an argument in a paper for a Con Law 1 class, he would be flunked.