Fight ACLU rip-offs by fighting Blum v. Stenson

I was hoping that by now a law banning or capping attorney fee awards in establishment clause cases would have passed, but no soap. IMO it is time for a new strategy -- getting Blum v. Stenson, 465 U.S. 886 (1984) overturned would provide a partial solution. I have previously condemned Blum and I am expanding my discussion of this case here for the following reasons:

(1) -- to present more detail of the opinion.

(2) -- to argue that the decision should be overturned because it was based on the procedural error of misrepresenting -- not merely misinterpreting -- a Senate report.

(3) -- to show how influential it has been -- it has been cited numerous times in court opinions.

(4) -- to note the large number of government entities that filed or joined amicus briefs: the US government and about 41 states.

(5) -- to show that this decision may have influenced the American Bar Association's policy on pro bono work.

(6) --to show when the government is eligible to be awarded attorney fees.

(7) -- because Blum v. Stenson denies judges the flexibility to determine a "reasonable" fee award (the term "reasonable" is in 42 USC §1988). However, this reasonableness issue does not involve the procedural error of misrepresenting a Congressional report and hence IMO is not grounds for overturning or challenging Blum.

The "no trolls" symbol is up in order to ward off lousy trolls like Kevin Vicklund, Voice-in-the-Urbanness, etc., who always claim that they and judges are always right and I am always wrong.
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The Blum v. Stenson decision is a major underpinning of the "Dover trap". Blum v. Stenson should be overturned -- stare decisis be damned -- on the grounds of a procedural error: the decision was entirely based upon what a Senate report did not say, imply, or even suggest. In Blum v. Stenson, the Supreme Court ruled, solely on the basis of a Senate report, that attorney fee awards to plaintiffs should not be reduced on the grounds that the legal representation was by a non-profit organization -- the ruling presumably also applies to pro bono representation. But this ruling was not based on anything that the Senate report itself said -- the report only said that the fees should "not be reduced because the rights involved may be nonpecuniary in nature" (emphasis added) -- but was based on what court cases cited by the report said about issues not mentioned in the report: the cited court cases said that the fees should not be reduced on the basis that the legal representation was from a non-profit organization or was pro bono. The Senate report itself was only talking about nonpecuniary claims and said nothing -- directly or indirectly -- about non-profit or pro bono representation. Duh. I assert that the mere citation of a court opinion does not automatically include the opinion's entire contents. Also, the readers of the Senate report are not responsible for reading the entire court opinions cited by the report, the report gives no indication that the opinions have more information that readers need to know, and anyway the readers of the Senate report should not be expected to find and read other documents for more information. Even at best, reliance on Congressional reports is often questionable -- indeed, Justice Antonin Scalia has a general policy of refusing to even consider Congressional reports at all when interpreting statutes. Full legislatures usually don't have a chance to vote on statements in legislative reports and debates, and most people do not bother to read legislative histories -- how many of the California legislators who voted for the infamous "smog impact fee" on out-of-state vehicles had read the California federal pre-emption waivers' legislative history, which said that a main purpose of the waivers was to use California as an emissions-control testing area and never said that a purpose was to allow gross-polluting vehicles to be brought to California? And let's bury once and for all the cockamamie notion that it's OK to put words in people's mouths, claiming that they said things that they never said or even implied or suggested. This is really a no-brainer.

The relevant passage of Blum v. Stenson, 465 U.S. 886, 893-896 (1984) says,

The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants. 7 In enacting the statute, Congress directed that attorney's fees be calculated according to standards currently in use under other fee-shifting statutes:

"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, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976). 8 (emphasis added)

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. 9 None of these four cases made any mention of a cost-based standard. 10 Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

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, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD  9444 (CD Cal. [465 U.S. 886, 895] 1974), 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." 64 F. R. D., at 681. 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." 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of "windfall profits" it expressly intended to prohibit.

The statute and legislative history establish that "reasonable fees" under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel. 11 The policy arguments advanced in favor of a [465 U.S. 886, 896] cost-based standard should be addressed to Congress rather than to this Court.

Note that none of the quotes about non-profit or pro-bono representation are from the Senate report itself -- they are all from the cited cases. In fact, the Senate report's above quoted passage implies that it does not apply to non-profit and pro bono representation -- the passage states, "These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." A need to pay fees that are adequate to attract competent counsel does not exist at all where representation is pro bono and is of reduced importance where representation by non-profit organizations.

I suspect that the American Bar Association's rules on pro bono work were specially written just to accommodate the Blum v. Stenson decision. The ABA rule on pro bono work, which recommends that attorneys spend a minimum of 50 hours per year on pro bono work, says,

[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but 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. (emphasis added)

Blum v. Stenson has been a very influential decision -- it has been cited 173 times in federal circuit court cases (both appellate and district court cases) and 19 times in US Supreme Court cases (20 cases are listed but one is a citation of Blum v. Stenson itself, hence the number 19; also, I wonder why the most recent case Supreme Court case that cited Blum is dated 1992), though not all of those citations are in connection with the issue of fee reduction in cases of non-profit and pro bono representation. Also, the case attracted a tremendous amount of interest at the time -- amicus briefs in favor of allowing the fee reduction were filed or joined by the US solicitor general and the attorney generals of 41 states according to my count, and I counted 6 amicus briefs opposing allowing the fee reduction. This heavy involvement of governments showed that they did not consider the issues of the case to be trivial. Anyway, I can't believe that no one who was involved in Blum or any of the cases citing Blum noticed the above fatal procedural error before: a misrepresentation, not a mere misinterpretation, of the Senate report. I noticed the error immediately -- it practically jumped out of the screen at me. I guess my problem is that I think that it is wrong to hallucinate things that are not said -- a lot of people just don't care about that. For example, I feel that Judge Jones does not deserve credit for things that he did not say in his Kitzmiller v. Dover opinion, but Darwinists disagree. Anyway, the meaning of the Senate report should have been settled long before the Supreme Court decided Blum v. Stenson. However, because Blum is so often cited or relevant, there are frequent opportunities to challenge it, and I just hope that some litigants will take these opportunities.

Are governments that win civil rights cases (I am not assuming that the government is the defendant, though the government usually is) eligible for an award of attorney fees in civil rights cases? The US government is not eligible, because 42 USC §1988 says,

. . . .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.

However, the Peloza v. Capistrano School District case says that other government entities may be eligible. The National Center for Science Education describes Peloza as follows:

In 1994, in Peloza v. Capistrano School District, the Ninth Circuit Court of Appeals upheld a district court finding that a teacher's First Amendment right to free exercise of religion is not violated by a school district's requirement that evolution be taught in biology classes. Rejecting plaintiff Peloza's definition of a "religion" of "evolutionism", the Court found that the district had simply and appropriately required a science teacher to teach a scientific theory in biology class. (John E. Peloza v. Capistrano Unified School District, (1994) 37 F. 3rd 517)

The district court judge tried to soak Peloza for the defendants' legal costs but was overruled by the appeals court, which said,

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 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.

As I noted above, Blum v. Stenson denies judges the flexibility to determine a "reasonable" fee award (the term "reasonable" is in 42 USC §1988). In Peloza, the appeals court used a reasonableness criterion to decide that Peloza was not liable for attorney fees because his suit was not entirely frivolous. However, as I said, this reasonableness issue does not involve the procedural error of misrepresenting a Congressional report and hence IMO is not grounds for overturning or challenging Blum.

An attorney said about the reasonableness issue,

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the “establishment clause.”

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in “attorney fee awards” - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

Congress did not require judges to award attorney fees under 42 U.S.C. Section 1988. Congress made attorney-fee awards purely discretionary. Judges have interpreted that to mean that a prevailing party is to receive “reasonable” attorney fees, even if there are in fact no actual attorney fees. “Market rate” is used. In large cities, that can be a starting point of about $350 an hour.

So, in practice, what is a “reasonable” attorney fee? Whatever one lawyer, i.e., a judge, wants to give to another lawyer, taxpayers be damned.

As far as is known, not one single judge has ever simply dared to say “no” to the ACLU. Why should they? They are lawyers handing taxpayer funds to other lawyers; the fox is in the chicken coop.

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