2007 Archive

Faculty Brief Addresses Civil Rights Enforcement

A quirky case was argued at the Supreme Court this month, one that at first blush might appear to have First Amendment ramifications. But what's really at stake in Sole v. Wyner is the definition of "prevailing party" and the future course of civil rights enforcement.

The case originated in 2003, as the Iraqi war loomed, when a group of anti-war protesters planned to form a peace sign with their nude bodies on a South Florida beach. Plaintiff Toni Anne Wyner won an injunction to prevent law enforcement officials from interfering, and the protest took place.

Given that Wyner obtained the relief she wanted – the ability to hold the protest without being arrested – both the district court and the 11 th Circuit awarded her attorney fees for obtaining the injunction, even though Wyner's second claim, a facial challenge to the ordinance prohibiting nude protests, was not successful. The question before the Court now is whether this is enough to make Wyner a "prevailing party" entitled to fees.

"This case has flown below the radar without a lot of attention because it appears to be only a technical procedural question," says Boalt's Professor Catherine Albiston. "In fact, this decision will have enormous ramifications for the future of civil rights enforcement."

Traditionally, litigants pay their own costs. But in the 1960s, Congress enacted fee-shifting provisions requiring defendants to pay the fees of successful plaintiffs in civil rights claims. Congress intended these statutes to encourage lawyers to represent victims of civil rights violations, the vast majority of whom, Congress found, cannot afford an attorney on their own.

In a 2001 decision, however, the Supreme Court cut off fee recovery in cases in which the defendant capitulates in response to the plaintiff's lawsuit but no judgment or consent decree is entered. In its opinion, the court cited the lack of empirical evidence that such a rule would limit access to representation for plaintiffs.

New evidence from an empirical study by Albiston and Northwestern University Professor Laura Beth Nielsen (J.D. '96) shows that this decision has in fact undermined civil rights enforcement and discouraged attorneys from taking on civil rights cases.

On behalf of the Warren Institute on Race, Ethnicity and Diversity, Albiston prepared an amicus curiae to the court discussing their research. Briefs supporting Wyner were also filed by NYU's Brennan Center for Justice, the conservative Center for Individual Rights, and Americans United for Separation of Church and State, among others.

"The unusual coalition of conservative and progressive institutions petitioning the court on this matter shows it's not a right-wing versus left-wing issue," Albiston points out. "The court's decision on this case will either support or dramatically diminish citizens' ability to challenge government agencies when they feel their rights have been violated." Albiston estimates that more than 90 percent of civil rights enforcement actions are brought by "private attorneys general" represented by private lawyers, rather than by government entities.

Albiston expects the case to be decided before the court's summer adjournment in June.