Answer to ACLU letter opposing S 3696 (HR 2679)

Here are my answers to points raised in a recent ACLU letter to the Senate urging opposition to S 3696, the Public Expression of Religion Act of 2006 (the House version is HR 2679), a bill that would ban attorney fee awards in establishment clause lawsuits:

If this bill were to become law, Congress would, for the first time, single out one area protected by the Bill of Rights and prevent its full enforcement. The only remedy available to plaintiffs bringing Establishment Clause lawsuits would be injunctive relief.

I think that limiting remedies to injunctive relief would not be of much benefit to government entities because "real"damages (as opposed to "nominal damages," usually just $1 per plantiff) are rarely granted in establishment clause cases. There also may be some cases where "real damages" would be appropriate, as where the plaintiff suffers serious persecution because of an establishment clause violation or as a result of bringing an establishment clause lawsuit. So I agree with the ACLU's opposition to this limitation.

Congress long ago determined that attorneys’ fee awards in civil rights and constitutional cases, including Establishment Clause cases, are necessary to help prevailing parties vindicate their civil rights, and to enable vigorous enforcement of these protections. (emphasis added)

"Long ago" was 1976 -- not very long ago in terms of the age of the republic.

The elimination of attorneys’ fees for Establishment Clause cases would deter attorneys from taking cases in which the government has violated the Constitution; thereby leaving injured parties without representation and insulating serious constitutional violations from judicial review.

The term "insulating" in "insulating serious constitutional violations from judicial review" is an exaggeration. Financially-challenged injured parties can always be represented by pro bono attorneys and/or nonprofit organizations such as the ACLU. The American Bar Association's rules on pro bono representation say, "[b]ecause service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential" (emphasis in original), but add, "the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means." Also, the ABA urges attorneys to perform a minimum average of 50 hours of pro bono work per year, and many states and state bar associations require or expect attorneys to perform a minimum amount of pro bono work and/or contribute to legal aid services. Of course, there is a lot of demand for pro bono representation in criminal cases as well as civil cases and the prospect of a fee award would help encourage an attorney to provide "pro bono" representation in a civil rights case. However, because of these attorney fee awards, "pro bono" representation in civil rights cases looks a lot like contingency-fee representation, where attorneys get nothing other than a percentage of any damages awarded (however, pro bono attorneys -- unlike contingency-fee attorneys -- are urged to donate at least part of any fees received). Also, under the Supreme Court decision of Blum v. Stenson, the courts are not even allowed to reduce fee awards on the grounds that the legal representation was pro bono and/or from a non-profit organization.

By eliminating attorneys’ fees for prevailing parties, this problematic legislation makes it much more likely that plaintiffs will be unable to challenge actions that courts would otherwise find unconstitutional under the Establishment Clause.

And because of the threat of exorbitant attorney fee awards, government entities are often discouraged from doing things that the courts would otherwise find to be constitutional under the establishment clause. Government entities are further discouraged by the high unpredictability of establishment clause cases. Also, unless the lawsuit is ruled to be frivolous, the government entity is not eligible for an attorney fee award when the plaintiff loses the case, and the government entity's own legal expenses can be a hardship for financially poor government entities. I personally would prefer a cap on fees in both establishment clause cases and free exercise cases, but I feel that just a ban on fee awards in establishment clause cases is better than nothing.

Quite intentionally, the bill penalizes plaintiffs who can prove that the government has engaged in unconstitutional conduct. Therefore, the legislation has the predominant purpose of promoting government-sponsored religion, and the effect of discouraging plaintiffs from bringing meritorious Establishment Clause cases. Such a bill raises serious constitutional concerns and must be opposed.

There are no constitutional issues involved. There is no constitutional right to an attorney fee award. Before 1976, there were no statutory attorney fee awards in civil rights cases.

This bad congressional policy serves to create a dangerous double standard by favoring cases brought under the Free Exercise Clause, but severely restricting cases under the Establishment clause.

Agreed! This double standard would be particularly dangerous in a situation where there is a risk of both an establishment clause lawsuit and a free exercise lawsuit, as where an individual or group is seeking government permission to express religious belief on public property -- the government would risk an establishment clause lawsuit by granting permission and a free exercise lawsuit by denying it. Indeed, in some situations a lawsuit may be almost unavoidable. I feel that this dual risk of lawsuits is a good argument in favor of the alternative of a fee cap on both establishment clause and free exercise clause lawsuits, but we need to start somewhere, and I feel that the current bills are a good place to start.

despite proponents’ assertions to the contrary, attorney’s fees are not awarded in Establishment Clause cases as a punitive measure.

Whether or not these fee awards are intended to be punitive, they are highly punitive in effect. Seven-figure and upper six-figure fee awards far exceed any conceivable fine or damages in these cases. Paraphrasing Shakespeare's Juliet, "What's in a name? What we call an exorbitant attorney fee award rip-off, by any other name would stink as bad." The Darwinists even have a name for this rip-off -- they call it the "Dover Trap."

Also, it is highly disingenuous of the ACLU to claim that these fees are not punitive when the ACLU regularly uses the threat of these fees to intimidate government entities into doing the ACLU's bidding. Also, in some situations, a government entity would be punished merely because it had to choose -- as shown above -- between an establishment clause lawsuit and a free exercise lawsuit.

Also, the lack of limits on these fee awards encourages plaintiffs to be extravagant and wasteful. In the Kitzmiller v. Dover case, the plaintiffs had: 9-10 attorneys of record, with 5 attorneys -- including 2-3 partners -- from Pepper Hamilton; at least 5 attorneys in the courtroom on every day of a six-week trial; and six expert witnesses (though there was no charge for the expert witnesses, the large number of them greatly extended the lengths of the trial and the discovery phase). It is past time to end this extortion racket.

The award of fees in Establishment Clause cases is not a means for attorneys to receive unjust windfalls -- it is designed to assist those whose government has failed them.

These awards can pay attorneys for meeting their "pro bono" obligations and so can be windfalls for attorneys. The awards can also be windfalls for the ACLU and similar organizations, e.g., in the Kitzmiller v. Dover case, the ACLU and Americans United for Church and State split about $750,000, the entire remainder of the award after deduction of expenses.

Extra comments:

So far there has been no indication that the ACLU supports the plaintiffs in the suit against the University of California. As I said, I think that the plaintiffs have a very strong case. Of course, those who think that the former Dover school board members ought to be soaked for the attorney fee award agree with a judge's decision to grant personal immunity to the UC officials involved.

I first turned against the ACLU when the ACLU of Southern California gave no support at all to the fight against the flagrantly unconstitutional $300 "smog impact fee" levied on incoming out-of-state vehicles. In contrast, the ACLU of Florida represented the plaintiffs in a lawsuit against an unconstitutional tax on out-of-state vehicles in that state. That was very inconsistent of the ACLU -- you can't depend on that organization for anything.

Something I would love to see: a lawsuit with the ACLU on one side and the Americans United for Separation of Church and State on the other. LOL It could happen.