An attorney fee case -- the first of two important fee challenges to be decided by the Supreme Court this term -- has created an unusual alliance among a host of public interest legal organizations spanning the political spectrum.
From the conservative Liberty Legal Institute in Texas to the liberal American Civil Liberties Union, the groups are backing Children's Rights Inc. in New York, in Perdue v. Kenny A., which the justices will hear on Wednesday.
The high court case asks whether an attorney fee award under a federal fee-shifting statute can ever be increased above the basic fee calculation because of the attorneys' outstanding performance and the results they obtained.
Children's Rights Inc. and Atlanta's Bondurant, Mixson & Elmore won an enhancement for their work on behalf of abused and neglected children in Georgia's foster care system. The judge in 2006 found a basic, or lodestar, fee of $6 million, and then adjusted it upward by an additional $4.5 million. The 11th U.S. Circuit Court of Appeals upheld the fee in 2008.
"The case doesn't really affect a particular liberal or conservative community," said Marcia Robinson Lowry, executive director of Children's Rights. "That's what you see reflected in the amici that support our position. This is an issue that affects enforcement of civil rights, which both conservative and liberal groups care about."
Liberty Legal's Kelly Shackelford, who filed a brief supporting Children's Rights, agreed, explaining, "We might disagree on what's a civil rights violation or a constitutional violation, but we agree when the Constitution really is violated, you need to make sure there is some incentive for the violation to be redressed. If you make it unattractive for anybody to represent a person, that means civil rights victims are going to go with little or no protection."
The 18 public interest law firms, along with 12 state and national bar organizations, a group of law and economics scholars, and a number of small private law firms, joined an amicus effort that was both organized and spontaneous, said Lowry.
"Groups contacted us and we contacted the usual suspects, recognizing that this time, the usual suspects encompassed a much broader group," she recalled.
Lowry said she and her co-counsel approached Paul Clement, a former solicitor general and partner in the Washington office of King & Spalding, about handling the Supreme Court case.
Clement is "not one of the regular liberal lawyers," noted Lowry, adding, "There are plenty of wonderful lawyers known to associate with liberal causes. He has a more neutral, if not more conservative background. He was in the Bush Administration after all. But this reflects again that the case isn't a liberal or conservative issue."
Another unusual supporting party in the case is a group of small private law firms.
Sanford Jay Rosen of San Francisco's Rosen, Bien & Galvin said he approached Lowry about doing that amicus brief as soon as he heard about the Kenny A. case.
"I basically emailed various lawyers I know around the country who have small firms with principally plaintiffs' public interest work," recalled Rosen. "Almost to a firm they all agreed to be listed as amici."
One of those was Beth Pepper of Baltimore's Law Office of Beth Pepper, which handles civil rights cases for disabled persons.
The fees and potential enhancements are an "essential part of being able to continue doing the work we do, which is to bring cases on behalf of individuals whose rights are violated and then seek full recovery in terms of fees for the work that we do," she explained.
The state of Georgia, which argues that fees should never be enhanced above the lodestar amount, has almost an equal number of amicus briefs. It has drawn support from 30 states and the District of Columbia, the United States, the National School Boards Association, the Washington Legal Foundation, and state and local government groups.
A complete list of amicus briefs in the case can be found here.
