Also, how are they going to make the accusation that this bill is about protecting Christianity without highlighting the fact that the religion they target the most is Christianity?

Man, this is one of the more brilliant decisions to come down the pike in a long, long time. Force the lawyers to admit that it IS all about the money (when something "isn't" all about something, isn't it ALWAYS only about that one thing?).

Only thing is, I'm not sure what legal standing they can claim to prevent fees in this specific case.
-=Mike

It's an interesting idea, and I'm certainly in favor of anything that pisses off the ACLU, but I think Mike is right. The courts would probably strike this down in a heartbeat, and I don't know that they'd necessarily be wrong to do so.

Thanks for the link!

I just want to note that before worrying about the Courts striking this down, the focus should be on actually getting it passed in the first place. The likelyhood of it being passed is better than ever with the current Conservative makeup of the Congress. If we let our reps and senators know that we support this bill, and it doesn't pass...we can blame Congress, but if we sit by and do nothing but hope...we can blame no one but ourselves. I've got links up on my article about this to make it real easy to contact your reps, etc. There is also a petition.

Am I high, or aren't prevailing party statutes usually favored by those who support tort reform? They force the loser to pay up for the other side's fees and costs, thereby discouraging frivolous suits.

If the ACLU loses in a case against a school board, don't they have to pay the fees and costs incurred by the defendant?

I'm in favor of no gov't funding to the ACLU at all. Actually, I'm not entirely sure that, given the ACLU's dead aim on the 1st amendment right of freedom of religion, that govt funding of the ACLU isn't UnConstitutional.

The ACLU doesn't receive any government funding.

This is exciting stuff. I'm glad you mentioned it, Ace. It's a very simple racket, really. The ACLU picks a town with a friendly judge on the bench, sues the Boy Scouts to prevent them from using a campground or a school facility, or somesuch, scares the hell out of the local authorities, and walks with hundreds of thousands in taxpayer-provided fees. It works nearly every time. The law in question is the reason that cities decline even free representation from defenders, as they know they are likely to cough up enormous attorney's fees anyway.

This may be a double-post, if so, I apologize:

Hubris: Under current law, if the ACLU loses in such a case, they do not have to pay the defendant's costs. The school board -- meaning of course, the taxpaying public -- always has to pay its legal fees, and runs the risk of having to pay the ACLU's legal fees in addition. Heads they win, Tails we lose. Thus, there is the incentive to pre-emptively settle, no matter what the merits of the case.

Simon,

I'm not certain I'm right in my interpretation (I don't do this for a living), but a plain reading of the statute in question seems to indicate that it would apply to either the plaintiff or the defendant (unless the defendant is the federal government), depending on which party prevails:

...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...

There is also a caveat that a judge won't be on the hook for losing an action relating to his/her acts as a judge. Other than that, it seems to apply to everyone.

Is there case law that has changed it to the setup you've mentioned? If so, I would agree that it is unfair.

Hubris, while it seems to make sense to have a "loser pays" system here for tort --- the ACLU is not supportive of such an idea in the slightest. The reason they even bother to file such suits is that there is not any risk to them in filing suits. They lose and they don't have to pay any court costs.

You can pretty well guarantee that this will be derided as an attempt to prevent the poor from getting their day in court.
-=Mike

Clarification: The actual plaintiff, not the ACLU themselves in their cpacity as attorneys, would be on the hook, I think.

Just to throw a little gas on the fire; who the hell is the gov't to decide what or how much someone charges for a service?
Discuss.

In cases where the taxpayer gets the bill?
The gov't definitely has a right to limit incentives.

...though perhaps not a legal right.

If one could successfully argue that the Bill of Rights states that religion is to be protected from government meddling, and not the other way around, then you could definitely limit rewards for such cases that the ACLU keeps pressing.

Need I mention how futile this line of argument has been? So its never going to happen, except maybe in a really really Red State (the kind of place where they are forever trying to outlaw the teaching of evolution in public schools).
And as soon as the ACLU appeals to a higher court to reverse the will of the citizenry they will prevail again.
-Still bleeding the taxpayers in the process, which would be rather counterproductive for the State that tries this experiment.

Note that it is sometimes necessary to "to reverse the will of the citizenry" in order to prevent a tyranny of the majority and protect the rights of individuals. Does anyone here believe that every case the ACLU takes is without merit?

Again, this is a loser pays system, which seems pretty fair to me (again, unless someone can provide a cite for the unfairness outlined by Simon above).

"Does anyone here believe that every case the ACLU takes is without merit?"

No, but this is just about religious establishment cases, and they are only talking about getting rid of the fees, not eliminating the right to sue.

How many of you guys are attorneys?

Besides Ace, I mean.

Are you against the prevailing party concept in general? Or just in this specific situation?

I'm not an attorney (a painfully obvious fact).

I'm an attorney. 42 USC section 1988 is a pet project of mine. You can listen to a segment of a radio interview I did on the topic a several months ago at www.courtzero.org/mwshowseg3.mp3

Only thing is, I'm not sure what legal standing they can claim to prevent fees in this specific case.

I don't think a legislator needs "legal standing" in the technical sense to introduce legislation on any subject.

In cases where the taxpayer gets the bill?
The gov't definitely has a right to limit incentives.

Agree with Lauraw. There is nothing inherently offensive or, in my view, unconstitutional about Congress taking away an award of attorneys fees that it granted in the first place. Congress could undoubtedly repeal the entire act. Why can't it limit the scope of the act if Congress decides that establishment clause cases are not a priority?

I'm not a lawyer nor do I play one on television.

I'm not against 'loser pays' as a general principle. I am against a third party fleecing the people under a completely corrupt pretext.

If its a matter of principle, let them use their donors' money to pess this cause.

I don't think it's fleecing if it requires winning and the fees are only awarded in the event of a trial. If the defendant thinks it's a losing case, they just have to stop the allegedly illegal behavior to avoid this, don't they?

ugh. 'press' this cause.

I'm not a lwayer and I don't play one on television, but lauraw's mention of 'loser pays' as a general principle seems to work in the UK. The innumerable consequences of litigation have been so catastrophic for our society they are incalculable and only getting worse. Anything to stem this is worth considering.

Well it is fleecing, if you consider these religious cases frivolous to begin with; if you think that all religion need not be expunged from every public arena in order to protect freedom of religion.

The politicization of the courts has created this bizarre requirement out of thin air.

I'd like to see these pricks go after the Feds; that is, I'd like to see them tell the Supreme Court to chisel all the religious symbolism off THAT building!
I think we'd see a change in tone pronto.

I think it's more of a politicization to try to change the rules for when "your side" is losing. It's sort of a "tort reform for me, but not for thee" thing.

Yeah, OK that was totally my opinion.

But I would also be against a religious organization pulling the same stuff and getting a reward from every innocent taxpayer for it.

I mean, kids have been disciplined at school for praying during lunch. I'm an athiest; I don't want somebody to force me to pray.
But I also think its absurd to strip a child of the right to bow her head and mumble before she eats her meal!

Do we want churches to start suing school districts every time that happens?

lauraw,

I get what you're saying, I think we're focusing on different things. You're disagreeing with the substance of the current interpretation of the law, while I'm carefully avoiding that issue and focusing on the fairness of the rules of the game.

I'm consistent on this issue - I like prevailing party statutes and have no sympathy for a poor personal injury plaintiff being exposed to the defedant's attorney fees if they lose. They rolled the dice, they lost, so tough titty.

1st: INAL.
2nd: The point is that it ISN'T a loser pays system Hubris. Everything I've heard before (and has been said by anybody but you) is that the in civil rights cases the defendant pays the legal bills if they lose, while the ACLU et al are under no legal obligation to pay the bills if they lose (or even if the case is thrown out as baseless).
While initialy concieved to encourage attorneys to defend those poor, underrepresented minorities, currently it leads to legal extortion such as in ArrMatey's example.

And since congress introduced this concept, it certainly IS within their power to modify it or remove it completly .

Lauraw's characterization of these cases a "frivolous" gets to the heart of the matter. Even if the ACLU wins, do we really care so much about a manger scene in the town square that we want to subsidize litigation in order to remove the offending display? I sure don't. It may be unconstitutional under current law, but it's way down my list of things to worry about. If the ACLU is horrified by the manger scene, let the membership pay attorneys to challenge the display in court.

Everything I've heard before (and has been said by anybody but you) is that the in civil rights cases the defendant pays the legal bills if they lose, while the ACLU et al are under no legal obligation to pay the bills if they lose (or even if the case is thrown out as baseless).

I've cited the statute in question, which would appear to make the plaintiff (not the ACLU, but their client) owe the defendant's fees if the defendant is a prevailing party. If you can cite something to the contrary other than "everybody says," I will stand humbly corrected.

I'm just going by the statute as written, if there is law out there to the contrary I'll stand humbly corrected.

Michael,

Of course, the frivolity argument cuts both ways - if no one gives a shit and it's illegal, the town could just avoid the fees by removing the thing, right?

-and thus be held perpetually hostage by the professionally offended?

Or be held hostage by the law, depending on how you look at it. It's only a threat if the defendant has a losing case.

Back to passing the law in the first place:
Can't the legislators bar the courts from reviewing a law, or is that just Congress? Because that would avoid the problem of the courts nullifying it.

Bah, the courts would just declare Article 3, section 2 of the Constitution to be unconstitutional. (Shades of the NV Supremes declaring an ammendment to the state constitution to be unconstitutional)
It's a living breathing document, doncha know, and it whispers sweet nothings into the ears of its favored children, the judiciary.

Or at least until Congress started impeaching judges, but lets be honest, they dont have the balls for it.

Hubris:

Right -- but some individuals do care deeply about the manger scene in the town square, for example. Some are very opposed to any such religious displays, others think it is ridiculous to take Christ out of Chrismas (at least on public property) and make it into a celebration of Frosty the Snowman.

My point is that Congress should not care. In other words, whatever people think about the manger scene, and whatever the state of the case law on the establishment clause, it is not a matter of such public importance that taxpayers should fund the litigation.

Congress allows the award of attorneys fees under numerous statutes in order to encourage individual litigants to serve as "private attorneys general" by bringing lawsuits that advance important public policies. In general, the establishment clause is certainly important. I don't want the government to adopt an official religion. But I don't think the current litigation over the presence of a manger scene vs. Frosty in the town square merits taxpayer subsidies. Let the ACLU grind that axe on their own nickel.

If a plaintiff wins, that means the defendant was breaking the law. You're suggesting that the plaintiff should bear the cost of forcing entitities to comply with a law they have refused to obey.

The taxpayers are funding the litigation when their representatives fuck up. That seems fair.

The taxpayers are funding the litigation when their representatives fuck up. That seems fair.

Let's recast this statement to reflect reality:

The taxpayers are funding a bunch of lawyers' vacation homes when their government fucks up. That seems fair.

Justice, like anything else, should cost money for those who seek it. It should not be subsidized.

Instead of denying attorney fees specifically for anti-religion lawsuits, why not limit such fees to a percentage of the award for damages?

Even the ACLU does not claim that a Christmas display that contains a manger should result in damages; they seek to remove the portrayal of religion, not to recompense any offended onlookers. So why should the suing attorneys get paid?

Vacation homes, that's the argument? That seems like the class resentment/warfare game to me, and equivalent to arguing against coporations because they make CEOs rich.

Do you think that businesses should not be able to pursue plaintiffs under prevailing party statutes for fees the businesses have incurred, since the business should have to pay to "pursue justice" by defending themselves against a frivolous lawsuit?

The fees smackdown is part of the justice process. It's an appropriate kick in the ass from lady justice. You played. You lost. You pay.

Only the US shysters have suceeded in blocking "loser pays". Elsewhere in the world, if you file a groundless or frivolous lawsuit, or the merits of your tort fall flat, LOSER PAYS.

Which is why the US has more lawyers per capita than any country on the planet, save one....that Shall Not Be Criticized...

Reread the linked section:

In any action or proceeding to enforce a provision ... of this title, 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...

Somebody asked earlier if we weren't already under a "loser pays" system. Not a lawyer, but it looks like pretty clearly people can bring frivolous suits against the gov't till the cows come home -- the statute only appears to protect individuals.

I say, fix the law so it's truly egalitarian -- take out the gov't exception, so the ACLU has something to fear when they lose.

That said, I agree that even though these freedom-from-religion suits are crap, it feels like dirty pool to say that you can't get attorney's fees on one specific type of litigation even if you win, but in all other cases it promotes justice to award them. Not to sound like the pundits discussing the nuclear option ("Just wait until *you're* the ones who need it"), but what happens when a Democratic-controlled Congress uses this precedent to push through a similar law removing attorney's fees for some Conservative pet cause, like moral-values issues? Any attorney who brings suit against strip clubs has to do it on their own dime?

I'm not trying to make a false slippery-slope argument, but let's say I get injured 10 years from now and have a malpractice suit I'm sure I'll win. I don't want to be in a situation where there's no way I can be compensated for my court costs when I've done nothing wrong -- the doctor screwed up, I got money to cover the operation to fix it, BUT I'm now out 10 grand, all for bad luck. If loser-pays is good for the goose, it's good for the gander.

The post I just made doesn't even mention the real problem: the ACLU shouldn't be winning in the first place, of course. The proposed law is, for lack of a more precise term, a kludge. It's a hack to fix the problem from the wrong end. The right solution is to fix the judiciary, or take jurisdiction on such cases out of the courts entirely.

Seriously, Republican legislators, grow a pair and make a law saying:

"Anyone can have a publicly visible, publicly funded display that makes reference to a religion, so long as it does not actually promote said religion. Using the word 'God' in the Pledge of Allegiance, displaying a passage from the Koran, or exhibiting a speech by the Dalai Lama does not constitute forcing somebody else's religion on you. You will live. Your eyes will not start hemmhoraging blood. You should know this already, but we're making an explicit law about it because you're obviously a bunch of smacktards. Please stop wasting our time and go back to watching Teletubbies while stoned. Also, the courts shall not hear any cases on the constitutionality of this law. Read Article III, and suck it. Suck it hard."

Of couse, that would require that some Senator take an action that might jeopardize his standing for re-election, so it will never happen, even though the majority of the American people clearly want it to, and it's in our best interests. ::sigh::

James:

it feels like dirty pool to say that you can't get attorney's fees on one specific type of litigation even if you win, but in all other cases it promotes justice to award them.

In the U.S., the general rule is that everyone pays their own lawyers. The "losers pay" rule arises in the case of statutory exceptions that are enacted to advance public policy, like the one we are discussing here.

I'm on board with the "losers pay" system, as exists in the U.K., for example, if we appy it accross the board. We would have a fraction of the frivolous litigation that we have today if lawsuits against doctors, corporations, etc., bore the inherent risk that the unsuccessful plaintiff would have to pay the defendant's attorneys.

"I'm on board with the "losers pay" system, as exists in the U.K., for example, if we appy it accross the board."

Splitting hairs here, as I usually do, but the UK has three court systems (England and Wales, Scotland, and Northern Ireland) and what amount to two different flavors of private law: English common law and Scots civil law. The so-called "English rule" is the default of loser-pays, but just as any legislature here can carve out statutory exceptions to the pay-your-own-way "American rule," so Parliament can just as easily do the reverse (or rather, actually more easily since it doesn't have a written constitution or two to worry about).

"We would have a fraction of the frivolous litigation that we have today if lawsuits against doctors, corporations, etc., bore the inherent risk that the unsuccessful plaintiff would have to pay the defendant's attorneys."

Probably to some extent, but before assuming this would be a panacea, recognize also that most common-law jurisdictions outside the US dramatically limit the use of both contingency fees and class actions, which I would suggest drive the insane amount of litigation in this country at least as much as, if not considerably more than, each party paying their own fees and costs. Contingent fee arrangements of a sort are just barely beginning to emerge in England, where the courts long regarded them as "champerty" and therefore both void as contracts and unethical as professional behavior. Ontario was the last Canadian province to allow them, some time in the mid-1990's, and I may be wrong, but I think at least some states in Australis still prohibit them.

This attorney fee thread is probably long dead, but this is a bad idea for litigators (like me) who fight against "establishment" denials of access by religious groups.

If the local government decides no religious groupsi in schools, that's an "establishment" case. Section 1988 is the reason Alliance Defense Fund, Liberty Fund, etc. can litigate against the governments and pay my bills. Without 1988 attorney fees, we'd be seeing less progress agains tthe naked public square, and some of the biggest victories for religious folks in recent years have been in court

"reforming" Section 1988 will bite us in the ass.

Isn't it really a case of defending the free exercise clause (against judges who overreach under the establishment clause)?

In other words, even if legislation passed to stop funding establishment clause cases (e.g., no mangers in the town square), your organizations would still recover fees because you are asserting violations of the free exercise clause (e.g., prayer groups can meet on school property just like any other student group.)

Am I missing something?