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.