Judge Roy Moore, the Christian supremacist former Alabama supreme court justice, thinks HR 2679 (which I refer to as the Tonya Harding bill - if you can't beat the ACLU in court, hobble them on the way up the steps) is a dandy idea. And you're gonna love the hypocritical rhetoric he uses to defend that position. He begins with an inaccurate statement of history:
The American Rule in lawsuits, which the United States Supreme Court stated in 1967, is that unless otherwise stated in the law or by contract, each party is responsible for paying its own attorneys' fees regardless of who wins the case. The rationale behind the rule is simply that a person should not be discouraged from seeking redress for a perceived wrong in the courts because of the fear of having to pay the opposing party's fee in addition to his or her own if he or she should lose the case.
But the case he refers to, Fleischmann Distilling Corp. v. Maier Brewing Co, was speaking of lawsuits between individuals or corporations, not individuals suing the government for violating the Constitution. Conveniently, Moore ignores the numerous rulings from the court endorsing the fee shifting provisions of Federal law in cases where individuals sue the government. He also ignores the fact that Congress explicitly changed the American rule in regards to suits against the government by adopting the Attorney's Fees Award Act of 1976.
And it did so with good reason. Congress recognized that civil rights litigation is one of the primary tools for keeping the government within its constitutional limitations, and that where the government steps outside those limitations, a citizen should not have to pay the enormous cost of such litigation out of their own pocket. They also recognized that given the resources of the government, in order to level the playing field, it was necessary to provide reasonable legal fees that were "adequate to attract competent counsel."
They further recognized that if the costs of such litigation were passed on to taxpayers, this would be a healthy thing in a democracy - the taxpayers would then have more incentive to insist that the government not exceed its constitutional authority. And the fact that the law only allows fee shifting to the prevailing parties acts as a disincentive to bring frivolous cases with a low likelihood of winning. All of this is perfectly reasonable, and almost always ignored by the advocates of 2679.
However, the Public Expression of Religion Act now properly recognizes that this "loser pays" rule is antiquated in Establishment Clause challenges because nearly all of them are brought by wealthy public-interest law firms - such as the ACLU and Americans United for Separation of Church and State, or AU - that represent their clients for free. Instead of declining to accept these fees, these anti-Christian law firms use the fee awards as legal blackmail against small county and municipal defendants that do not have the tax revenue to cover such fees if they lose.
Again, only part of the picture. He doesn't mention that virtually all civil rights litigation of any kind is handled by public interest law firms. Why, then, is he only concerned about this when it involves establishment clause cases? Because he doesn't like the outcome of those cases. So all this talk about those "wealthy" public interest law firms getting "taxpayer money" is all a load of crap. He's all for that when it's the ADF or the ACLJ or the Liberty Counsel. Only when it's the ACLU does he object to it, like all advocates of this ridiculous bill.
He also ignores the fact that the law makes no distinction between plaintiffs represented by individual attorneys and plaintiffs represented by public interest law firms. The government tried that argument in Blum v Stenson in 1984 in a case where a plaintiff was represented by the Legal Aid Society of New York; the court rejected it. The court ruled:
The statute and its legislative history establish that "reasonable fees" are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations.
By the way, that was a unanimous ruling. It cited an earlier ruling in Davis v. County of Los Angeles (1974), which said:
"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."
Davis was one of the cases specifically cited by Congress as providing the standards by which reasonable attorney's fees are to be determined. So when Moore claims that the fee shifting provision is now "antiquated" because plaintiffs are represented by public interest firms rather than for-profit attorneys, he is being dishonest. Congress was fully aware of that fact in 1976 when it adopted the fee shifting law and it expressely provided for the same standards to apply regardless of the nature of the legal representation.
Then for maximum effect, he doubles the award in Dover:
Not to be outdone, in Dover, Pa., the trial court ordered the district's school board to pay the ACLU and AU $2 million for attempting to teach intelligent design in the schools.
Bzzt. Thank you for playing, we have some lovely parting gifts for you. The total bill was nearly $2.5 million, but the settlement as for $1 million. A sizable chunk of that went to Pepper Hamilton for their direct expenses (they actually donated all of the billable hours, which amounted to well over a million dollars all by itself). The rest was then split between the ACLU and the AU. So not only is Moore doubling the actual award, he's at least tripling the amount that went to the ACLU. But why let the facts get in the way of a perfectly good rant?
Then Moore really cranks up the hypocrisy:
In essence, Mr. Lynn and the ACLU are admitting that if this bill passes, their "public interest" groups will no longer take these cases because they will not be able to recover attorneys' fees from the government. But that is precisely the point! Attorneys for such groups are actually forbidden from charging their clients fees for their services because they are designated as nonprofit organizations. Thus, the fee awards they receive from these Establishment Clause cases amount to profiteering.
Really, Roy? Then why doesn't that logic apply also to the ADF, the ACLJ and all the other religious right public interest law firm non-profits? Why aren't they guilty of "profiteering"? Oh, right...because they're on your side. What a difference that makes, eh? Of course, the notion that such fee awards are illegal is utter nonsense. As I showed above, payment of legal fees to such non-profit firms in civil rights cases is explicitly a part of the fee shifting law and has been upheld by several Supreme Court rulings.
The national ACLU takes in over $48 million per year and Barry Lynn's group averages over $8 million annually. It is preposterous to claim that such wealthy and ideologically driven organizations would not be able to afford such lawsuits if they could not get their legal fees paid by the losing party.
Great, then let's cut off all fee shifting to those "wealthy" non-profits, including all the religious right groups that Moore loves so much - the ADF, the ACLJ, the Liberty Counsel, the Rutherford Institute, the Thomas More Law Center, the Christian Legal Society, and all the rest. I bet if you added up the budgets of all those groups they would dwarf the budgets of the ACLU and Americans United. And all of them get legal fees awarded every time they win a case. Where is all the complaining about this "taxpayer largesse" going to "wealthy" non-profits that amounts to "profiteering"? Goose, Gander...I think you know each other.
"Really, Roy? Then why doesn't that logic apply also to the ADF, the ACLU and all the other religious right public interest law firm non-profits?"
Don't you mean ACLJ?
"Not to be outdone, in Dover, Pa., the trial court ordered the district's school board to pay the ACLU and AU $2 million for attempting to teach intelligent design in the schools/"
This statement by Herr Fuerher Moore not only inaccurately describes the fees, it completely ignores the fact that the judge didn't 'award' anything. The deal was reached strictly between the opposing litigant's counsel, with the judge only acting as arbitrator. A point that Judge Jones made very clear in his presentation recently.
I'm always tickled by the notion that ACLU lawyers and associates are fabulously wealthy... that dollar signs appear in their eyes when clients walk through the door (the high-security door, anyway). Having worked for them on many occasions, I can say that local chapters--who do the lion's share of the legwork--aren't just shabby by law firm standards, but by inner city public school standards. And you are far more likely to find Toyotas and Hondas in their parking lots than Porsches or even Volkswagens. Everyone knows you don't go into public interest law for the money, hence the existence of Loan Repayment Assistance Programs and the like.
But it suits the ideological needs of Moore-types to fashion their enemies into greedy, all-powerful, elitist puppet masters. And "elitist" is nearly always trotted out as code for wealthy, highly educated and urban, as opposed to, well, any one else. That civil rights attorneys can barely pay back their massive student loans because they've forsaken more lucrative work for the hardscrabble public interest is rather inconvenient to Moore and his ilk.
I am worried that this bill WILL get thru, using the internet-gambling-amendment-to-a-popular bill method.
I couldn't agree more. Having been around ACLU activities for a long time, I can tell you that this notion of a wealthy non-profit is an enormous myth. Most local offices are understaffed and overworked.
If this passes, I think that it's incumbent on people who live in places like San Francisco -like me- to start passing bills that do things like outlaw Christianity (probably a little over the top, but you get the idea). And keep doing it until people figure out that (in effect) getting rid of the Establishment Clause might work for them and their neighborhood, but Christians are not always in the majority.
I'd like to hear a PERA advocate answer why they favor prohibiting awards of legal fees on Establishment Clause cases but not on Free Exercise Clause cases. I suspect they'd say something absurd like that the latter cases involve harmful effects and the former do not.