Supreme Court Considers Broad Attack on Civil Rights Attorneys' Fees

Affiliate: ACLU of Florida
April 17, 2007 12:00 am

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Recovery of Fees Is Crucial to Ensure Access to Justice, ACLU Says

WASHINGTON – The Supreme Court today heard arguments in a case that may determine whether a plaintiff who successfully obtains a preliminary injunction is ever entitled to recovery of attorneys’ fees. The case, Sole v. Wyner, stems from a free speech lawsuit brought by the American Civil Liberties Union of Florida.

“This case is about ordinary people having access to lawyers and the courts to defend their civil rights,” said Seth M. Galanter, an attorney with Morrison Foerster who argued before the Court today on behalf of Wyner and the ACLU. “The government must not shut the courthouse doors to people seeking justice.”

Many civil rights laws have provisions that entitle successful plaintiffs to recover attorneys’ fees. These provisions are designed to ensure that anyone whose constitutional rights have been violated has access to legal representation.

Today’s case began in 2003 when T.A. Wyner and George Simon were denied a permit to conduct a political protest on a Florida beach, creating a nude peace symbol to oppose plans for an invasion and war with Iraq. Represented by the ACLU of Florida, Wyner and Simon asked the district court for a preliminary injunction – a provisional remedy that would allow the protest to take place. The court granted the order in part based on evidence that the permit rules had been applied in a discriminatory fashion.

Armed with the preliminary injunction, the demonstration took place on February 14, 2003. The district court awarded Wyner and Simon attorneys’ fees for the time spent by their attorneys securing the preliminary injunction, even though the court subsequently upheld the permit rules, so long as they are applied on a non-discriminatory basis.

Local officials, supported by the Justice Department, are now arguing that fees can never be awarded for a preliminary injunction that does not lead to a final decision on the merits in a plaintiff’s favor. That position is contrary to the language, history and judicial understanding of the federal attorneys’ fees act, according to the ACLU.

“Across the country, civil rights cases are brought by private lawyers and the public interest bar on behalf of people that can’t afford to hire a lawyer,” said Randall Marshall, Legal Director of the ACLU of Florida, and counsel to Wyner and Simon. “If the court upholds the state of Florida’s position, it will be more difficult for civil rights litigants to gain access to the judicial system. Without the ability to recover fees, lawyers will be discouraged from taking on such cases.”

In this case, the preliminary injunction provided Wyner and Simon with the primary remedy they were seeking – namely, the right to conduct their planned anti-war demonstration. That is true in other civil rights cases as well, said the ACLU. In voting rights cases, for example, a preliminary injunction is often the only court action that can be secured before an election takes place.

“The recovery of attorneys’ fees has long been recognized as a crucial tool for enforcing civil rights law,” said Steven R. Shapiro, Legal Director of the national ACLU. “A ruling that bars civil rights plaintiffs from recovering fees based on a preliminary injunction that secures much if not all of the relief they were seeking would prevent many people from suing to vindicate their rights.”

Organizations from across the political spectrum have joined the ACLU in urging the Court to protect the fee awards that Congress understood were critical to effective civil rights enforcement. Several groups ranging from the Rutherford Institute to Americans United for Separation of Church and State filed a friend-of-the-court brief in support of Wyner, arguing that denying attorneys’ fees in preliminary injunction cases would hamper enforcement of constitutional rights.

More information on this case is online at:

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