Blasted Legal Fees Unite Civil Rights Attorneys Across the Political Spectrum in Shotgun Marriage After Judge Drops the Hammer on Fee Request in 2nd Amendment Litigation.
Mike Scarcella reports in The National Law Journal (April 4, 2011, online edition) that Alan Gura, the high-caliber lawyer behind the Supreme Court’s gun-rights precedent “may lose by winning.” Far from a small bore, it’s all about the attorney’s fees.
Step back to 2001: In Buckhannon Board & Care Home Inc. v. West Virginia Dept. of Health and Human Resources v. Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), the Supreme Court, in a 5-4 decision, targeted the “catalyst theory” of fee recovery in civil rights actions, and plugged it. The catalyst theory (which we have posted about in California state law cases), allows public interest attorneys to claim “prevailing party” status for their clients, short of a final judgment, if their legal efforts lead to a beneficial change in the legal relations of the parties, even though this may be accomplished outside the courtroom. At the time Justice Ginsburg, dissenting, wrote that the majority had missed the mark: "Congress prescribed fee-shifting provisions like those included in the FHAA and ADA to encourage private enforcement of laws designed to advance civil rights. Fidelity to that purpose calls for court-awarded fees when a private party’s lawsuit, whether or not its settlement is registered in court, vindicates rights Congress sought to secure." But Justice Ginsburg’s peashooter was outgunned by the majority’s rod.
Forward to 2010. In June, immediately after the Supreme Court struck down Chicago’s handgun ban as unconstitutional, the City changed its rule to allow residents to keep firearms in their houses. The City did so before any final order, and even before the case was returned to the trial court for additional proceedings. The 7th Circuit directed the trial judge to dismiss the litigation as moot – thereby raising the issue in the trial court whether the gun-toting plaintiff was the “prevailing party”, now that the catalyst theory has been zapped.
Famed Chicago Federal District Court Judge Milton (“Magnum”) Shadur bagged the plaintiff’s fee petition – without an enforceable judgment, and without the catalyst theory, plaintiff was not the prevailing party. Hoist with his own petard.
Civil rights advocates across the legal spectrum, e.g., Arthur Spitzer, legal director of the ACLU, and lawyers for the NRA, seem to be in agreement that they are looking down the barrel of a gun (aimed at them), and do not like what they see.
We can look forward to a shootout in the 7th Circuit Corral, as Mr. Gura has appealed the denial of the fee petition. It remains to be seen whose “persuader” will be more persuasive.
Will this be the Tombstone of civil rights litigation? Stay tuned for future episodes.