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This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, August 03, 2006

HR 2679 now has Senate companion bill, S 3696

I am pleased to announce that HR 2679 ( Public Expression of Religion Act ), the House bill that would bar attorney fee awards in establishment clause cases, now has a Senate companion bill, S 3696.

I have commented extensively about HR 2679. I have some more comments to add now:

Ed "It's My Way or the Highway" Brayton said in opposition to HR 2679,

Other establishment clause cases involve the use of our tax dollars to pay for public displays for only one religion (Christianity, of course), or involve allowing only Christian groups access to public forums. Now, the STACLU [Stop the ACLU] crowd dismisses cases like that out of hand because, of course, they're in the Christian majority and they get their way. But if a city they lived in decided to use their tax dollars to pay for a Ramadan display but no other, or decided only to allow Muslim or Jewish groups to put up their displays on the grounds of city hall, their tune would change in a millisecond.

That is a straw man argument -- Ed knows very well that it is unlikely in the USA that a city would use tax dollars to pay for a Ramadan display but no other or decide to allow only Muslim or Jewish groups to put up their displays on the grounds of city hall.

Christian fundies are the least likely group to bring an establishment clause lawsuit. Christianity is by far the biggest religion in the USA and Christian fundies are not going to bring lawsuits against government endorsement of or entanglement with Christianity or nonsectarian monotheism. Even when an establishment clause lawsuit is not directed against a particular religious symbol -- e.g., a lawsuit against criticism of evolution in the public schools -- it is usually assumed that Christianity is the main target. Judge Jones was not just trying to protect his own hide when he chose Christianity and not, say, Islam or Judaism as the target of his remarks about the supposed "true religion" of the founding fathers -- he truly felt that Christianity was his main target. So Christian fundies see themselves as having a lot to gain and little or nothing to lose if this bill passes.

Also, as I have said numerous times, I think that a cap on attorney fee awards for both free exercise cases and establishment clause cases would be a better idea, but I think that HR 2679 is much better than nothing. I think that it is too early to speculate about what would be a good fee cap, but even a fairly high cap would be a great reduction compared to the exorbitant amounts that have been awarded, with awards in the range of one-half to one million dollars in establishment clause cases not being uncommon. Also, I think that there should be a basic cap for trial court litigation and caps for supplemental fee awards for any appeals.

Your Congressional representatives may be contacted through the following webpages:

Senate

House of Representatives

My previous comments about HR 2679 are in the following articles:

More Ed Brayton lies about HR 2679

Challenge to Ed Brayton and his pals

Hypocritical Ed Brayton still doesn't get it on HR 2679

HR 2679, the bill barring attorney fee awards in establishment clause lawsuits

Is the party almost over for ACLU and AUSCS?

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3 Comments:

Anonymous Anonymous said...

man, everything you say is retarded. I mean, you don't know shit about shit.

Thursday, August 03, 2006 11:21:00 AM  
Blogger Kurt A Ehrsam said...

A fee cap sounds like a reasonable compromise to me. Actually, limiting the amount both sides can spend on the case would be even better, but would have obvious First Amendment problems of its own.

I can't support the bill as currently written, because the cure is far worse than the disease. Yes, it is a burden to defend lawsuits (and government lawyers get paid win or lose). However, it is also a great burden to be a plaintiff, and

1) Plaintiffs stand to gain nothing materially in such cases, since damages are normally nominal;

2) The attorneys only get fees from a win, which means there are precious few lawyers who will take a case that they don't think is a winner. You have commented on the restraining effect that fee awards have on governments; the effect is much greater for plaintiffs.

And, yes, in the majority of the US, there is no danger of any other religion taking the place of Christianity as the 500-pound gorilla. However, I recently read a post from a missionary reporting his discomfort about having Buddist prayers before football games in his part of Hawaii. It can happen, and will only increase as time goes on.

I think we would do well to follow the Founders' practice here. Almost uniformly, Washington et al made rponouncements in the name of the "Creator", or "Providence" or some other language that indicated a vaguely trinitarian feel without offending deists and unitarians too badly. I'm not sure how to reach such a compromise today, but it is worth trying.

kehrsam

Saturday, August 05, 2006 6:28:00 PM  
Blogger Larry Fafarman said...

Kurt A Ehrsam said ( 8/05/2006 06:28:21 PM ) --
>>>>>>A fee cap sounds like a reasonable compromise to me. Actually, limiting the amount both sides can spend on the case would be even better, but would have obvious First Amendment problems of its own.<<<<<<

In general, there can't be a fee cap for the government because the government is usually not awarded attorney fees if it wins.

Actually, there is nothing in the fee shifting statute, 42 USC ยง1988(b), that says that the government or other defendant cannot be awarded attorney fees if it wins, but the courts have ruled that such fees can be awarded only if the complaint is held to be frivolous. In Peloza v. Capistrano Unified School District(1994) (Peloza was a public-school teacher who claimed that being required to teach evolution violated his free exercise rights), the 9th Circuit ruled,

IV. Attorney Fees
Peloza contends the district court erred in awarding the defendants costs and attorney fees of approximately $32,000. This award, made by the district court under Federal Rule of Civil Procedure 11 and 42 U.S.C. ~1988, was appropriate if Peloza's complaint is frivolous. Christianburo [Christianburg] Garment Co. V. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 7004)1, 54 L.Ed.2d 648 (1978) (under civil rights statutes); Townsend V. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc) (under Fed.R.Civ.P. 11).

[6] Peloza's complaint is not entirely frivolous. Some of the issues he raises present important questions of first impression in this circuit. His free speech claim involves substantial questions and requires the balancing of rights of free speech against the Establishment Clause, a matter upon which the Supreme Court recently commented in Lamb's Chapel. Accordingly, we reverse the district court's award of attorney fees and costs to the defendants.


The Supreme Court said in Christianburg,

Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be awarded attorney's fees by the district court in all but special circumstances, a prevailing defendant is to be awarded such fees only when the court in the exercise of its discretion has found that the plaintiff's action was frivolous, unreasonable, or without foundation.

The SC also said that mere loss of a lawsuit is not sufficient reason to declare a complaint to be frivolous.

Of course, these huge fee awards can easily bankrupt many plaintiffs and you can't get blood out of a turnip.

>>>>>>I can't support the bill as currently written, because the cure is far worse than the disease.<<<<<<

Then maybe you don't realize how bad the disease is. In the Dover trial, the plaintiffs had a horde of 9-10 attorneys of record, with at least 5 of them in the courtroom on every day of a six-week trial, and 6 expert witnesses (there was no direct charge for the expert witnesses but the large number of them greatly lengthened the trial and the discovery phase). All for just a lousy little ID statement in public-school science classes. Yet Ed "It's My Way or the Highway" Brayton and other Darwinists see nothing wrong in this.

Sometimes it is necessary to use a disease to fight a disease. Wikipedia reports that before antibiotics, syphilis patients were deliberately infected with malaria to create a fever -- that's the kind of situation we have here. I think that it is important to do something now because the situation has gotten out of hand. Problems that HR 2679 are likely to create can be fixed later by changing to the fee-capping alternative that I suggested.

>>>>>1) Plaintiffs stand to gain nothing materially in such cases, since damages are normally nominal<<<<<<

Yes, but the ACLU, Americans United for Separation of Church and State, etc. stand to make obscene profits (their nonprofit status notwithstanding) if the plaintiffs win. The reason for this is that the ACLU et al. often employ outside volunteer attorneys who donate all or part of their fee awards to them. The American Bar Association recommends that all attorneys perform at least 50 hours of pro bono work annually and says, "..... 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." In the Dover case, the Pepper-Hamilton attorneys, who were the lead attorneys for the plaintiffs, donated all of their fee awards (after subtracting expenses) to the ACLU and the AUSCS.

The American Bar Association also says,

Whether an attorney may sign an agreement to turn over part or all of court-awarded attorneys fees to a public interest organization without violating the ethical rule prohibiting fee sharing with non-attorneys has been addressed in several jurisdictions. An ABA Formal Opinion has stated that such agreements between a program and either a volunteer attorney or a staff attorney do not violate ethical rules. However, because the opinions in the states have varied, a program should research the issue in its jurisdiction before setting such an attorneys' fee policy.(emphasis added)

So far, I have not heard whether or not the ACLU et al. require or expect volunteer attorneys to sign such agreements.

Also, it is likely that staff attorneys of the ACLU et al. are paid less than the prevailing rates, but the Blum v. Stenson decision says that a fee award should not be diminished on the basis that an attorney works for a nonprofit organization.

>>>>>>>The attorneys only get fees from a win, which means there are precious few lawyers who will take a case that they don't think is a winner.<<<<<<<<

That is true in contingency fee cases. But the ABA says that pro bono cases are supposed to be accepted without expectation of fee, so an attorney should be willing to accept a longshot pro bono case.

>>>>>>>> You have commented on the restraining effect that fee awards have on governments; the effect is much greater for plaintiffs.<<<<<<<

Not necessarily -- a lot of government entities do not have deep pockets and are easily intimidated by the threat of exorbitant legal bills. However, though the expense of a multi-million dollar lawsuit would be petty cash to Los Angeles County, the county caved in to the ACLU's demand that a tiny cross be removed from the county seal.

Anyway, thanks for supporting my idea of a cap on the attorney fee awards.

Sunday, August 06, 2006 7:27:00 AM  

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