Crime and Consequences

One of my pet peeves is the imbalance in the way attorneys' fees are awarded when people sue the government, asking courts to overturn policy decisions made through the democratic process. When plaintiffs win, they get attorneys' fee awards routinely, while the government almost never gets an award for the cost of defending its perfectly legitimate, constitutional decision from an unwarranted attack. These cases sometimes involve attempts enjoin enforcement of criminal laws, and so they are of concern to everyone interested in law enforcement. This article by Jon Murray in the Indianapolis Star tells about one suit where plaintiffs were required to pay for the damage they did.

Digressing for a moment to show just how bad the situation is, last year the Supreme Court decided a bizarre case named Sole v. Wyner. Wyner wanted to stage a protest on a Florida beach by having a bunch of nude people form a peace symbol. The Florida authorities said no. Although Ms. Wyner has the First Amendment right to be stupid, childish, and annoying, she does not have the right to violate a content-neutral regulation against public nudity. Despite this, she got a preliminary injunction and had her protest, but the ultimate decision in the case was that the state was entitled to enforce its rule. Now get this. Instead of paying the fees of the state she had wrongly sued to enjoin the enforcement of a rule ultimately held to be valid, Ms. Wyner had the chutzpah to ask for an award of attorneys' fees as the "prevailing party" under 42 U.S.C. § 1988 even though she lost the case. But wait, there's more. The district court and the Eleventh Circuit actually gave it to her.

Fortunately, the Supreme Court granted certiorari and reversed, unanimously. But the fact that such a bizarre claim for fees even got to that level shows how wacky this area has gotten. The text of § 1988 provides for no such asymmetry. It authorize fees for prevailing parties without discrimination between plaintiffs and defendants. Only the United States government itself is excluded. The issue in Sole v. Wyner should have been an award of fees to the state, not against the state.

Asymmetric application of attorneys' fee awards authorizes a kind of legalized extortion. People who oppose a policy can threaten the jurisdiction with expensive litigation. The government will almost certainly have to pay its own fees and may have to pay the other party's fees, but the challenging party faces only a very remote risk of such an award. The expense can be significant for a local government or a school district. This threat introduces a distortion into policy making, where avoiding litigation has priority over making sound policy.

So back to Indianapolis. Laura and Scott Bell didn't like their school district's new dress code. So what do they do? Ask the school board to rescind it? Run for school board themselves in the next election, or support a candidate who is opposed? Nope. They file a lawsuit. The dress code, by the way, is not particularly restrictive as these things go. "The plan requires students to wear collared shirts of solid color; blue, navy or khaki-colored pants or long skirts; and belts. It is similar to policies elsewhere that courts have upheld."

They also decide to go pro se. The suit wasn't worth spending their own money on a lawyer, but it was, they thought, worth forcing the school district to spend taxpayer dollars on lawyers. They eventually lost the suit. Now here is the unusual part. The court awarded the school district about $40K in attorneys' fees.

"What in the hell are we supposed to do?" Laura Bell asked, noting that the amount is more than the family's annual income. "It's flat ridiculous."

What was ridiculous, Ms. Bell, was starting litigation over such a trivial matter in the first place. Will your kids be traumatized for life by having to wear shirts with collars? No, they may learn a valuable lesson that you apparently didn't -- you can't always have everything your way. Why should the taxpayers of the district be forced to foot the bill for your childish temper tantrum?

Here is my suggestion for a new rule on attorneys' fees. If the case is close, both parties bear their own fees. If the case is clear, the loser pays the winners' fees. A case is clear if the prevailing party was entitled to prevail based on clearly established law as applied to facts that are either undisputed or proved by clear and convincing evidence. People who run to court with baloney cases, and people who force others to run to court by denying clearly established rights, should have to pay for the damage they do. People who lose close cases, and who may have been right, should not be further punished with fee awards. All this goes for the people collectively, i.e., the government, exactly the same as it does for individuals.

Posted by Kent Scheidegger at 05:21 PM | Permalink | Comments (1)

As 2007 winds down, we have another welcome piece of evidence that persons of sense are reaching critical mass at the notorious U. S. Court of Appeals for the Ninth Circuit. Judge Stephen Reinhardt, the epitome of judicial activism, has long been infamous for the rate at which he is reversed -- sometimes unanimously -- by the Supreme Court. Today, in Smith v. Baldwin, though, he was reversed 13-2 by the Ninth Circuit itself.

The case arises from the 1989 burglary of the Oregon home of Emmett and Elma Konzelman, then aged 87 and 74. Roger Smith and Jacob Edmonds entered the house. The Konzelmans were beaten with a crowbar, and Mr. Konzelman died of his injuries.

In most states, these facts alone would be sufficient to make both perpetrators guilty of felony murder. Constitutionally, neither would qualify for the exclusion from the death penalty that the Supreme Court has created for minor accomplices swept up in the felony murder rule. See Tison v. Arizona, 481 U.S. 137 (1987) (reckless indifference sufficient). From the testimony of the surviving victim, we know that one entered the bedroom to commit the assault while the other stood at the doorway. Unfortunately, she cannot say which was which. Under Tison, it wouldn't matter for the purpose of the substantive Eighth Amendment limit on capital punishment. Standing by while your burglary accomplice beats an elderly couple with a crowbar and doing nothing to stop him or help them surely qualifies.

Oregon has mitigated the harshness of the felony murder rule with an affirmative defense for a participant in the felony who did not commit or assist the homicide, was not armed, had no reason to believe the other was armed, and had no reason to believe the other would kill. Let no good deed go unpunished. By providing this affirmative defense as a matter of state law, Oregon must litigate in federal court issues that wouldn't be issues in most states.

As is typical in such cases, the prosecutors needed to make a deal with one of the devils. They offered the deal to Edmonds, contingent upon his passing a polygraph test in which he was asked, among other things, whether he or Smith was the actual killer. The test was inconclusive, but they went through with the deal.

Smith wants to litigate in federal court claims of ineffective assistance and nondisclosure of evidence that he had previously abandoned in state court. This is not a case of claims being inadvertently omitted or only discovered later. This is deliberate abandonment of claims of the kind that would have been sufficient to bar federal review even at the peak of federal habeas in the Warren Court era.

Now, though, we have the "actual innocence" exception of Schlup v. Delo, 513 U.S. 298 (1995). Smith claims he is innocent under the Oregon defense to felony murder, armed with affidavits from Edmonds saying Smith didn't commit the actual killing. Today's concurring opinion quotes Judge Bybee's panel dissent for the characterization of Edmonds' statements: “Edmonds has given many accounts of that evening, which together encompass nearly every possible way that the burglary and murder might have occurred.”

Naturally, if Edmonds did not testify truthfully in the beginning, his plea deal is off, and he is subject to prosecution for capital murder. When informed of that, he refused to testify, so there was no evidentiary hearing. Judge Reinhardt characterizes informing Edmonds of this as "egregious prosecutorial misconduct," repeating the position of his original panel majority decision.

Today's en banc majority does not resolve whether this is misconduct. There is a more basic problem. Smith's evidence does not establish his innocence. First, there is no question whatever he is guilty of burglary. Second, his evidence doesn't come close to establishing the elements of the affirmative defense that Oregon has generously provided. See the majority and concurring opinions for the details. To find to the contrary, you would have to imagine an extremely unlikely scenario, and the Schlup test doesn't permit a reinstatement of defaulted claims on such a flimsy basis.

It was President Jimmy Carter who made the Ninth Circuit what it has been -- an exemplar of what a court should not be. With his own party firmly in control of the Senate, he was free to appoint result-oriented activists willing to trample the law to achieve their own objectives of policy. With a few notable exceptions, that is just what he did. President Clinton was more restrained, probably not because he wanted to be but because control of the Senate by the other party for most of his term left him no choice. With six appointments by President Bush, the ship still lists to the left, but there is reason to hope. We are seeing more rogue decisions from the left, like the panel opinion in this case, corrected en banc.

What will 2009 bring? Who knows? Certainly it is possible we will see the monster return, as in a bad horror movie. We may once again have a left-leaning President with a Senate of the same party. Time will tell. For now, at least, things are looking better for justice on the Left Coast than they have for a very long time.

Posted by Kent Scheidegger at 12:36 PM | Permalink | Comments (2)

Prisons: A story by Jordan Rau in today's Los Angeles Times reports that since medical care in California prisons has been taken over by the federal courts, the corrections budget has increased by 79%. While the Times blames the public for passing the "Three Strikes" law to extend confinement for habitual criminals (and reduce crime), it also blames the state legislature for ignoring the prison overcrowding problem for so long that the federal courts have now assumed control.

Death Penalty: Now that the New Jersey Legislature has repealed the state's long-unenforced death penalty law, opponents are seeking to build momentum for repeals in other states. Among the dozen or so news stories inspired by this effort are these from Washington Post writer John Wagner reporting on the effort to abolish capital punishment in Maryland, Brian Lazenby's story in the Chattanooga Times Free Press observing an opportunity for opponents in Tennessee, and Adam Liptak's piece in the New York Times, which suggests that the nation is abandoning the death penalty (except for those cretins in Texas).

Murder Rates: Have dropped significantly in Los Angeles, as reported here in the Los Angeles Times, and in Chicago according to this story in the Sun Times, but homicides are up big time in San Francisco as reported by the Associated Press.

Posted by CJLF Staff at 09:08 AM | Permalink | Comments (0) | TrackBacks (0)