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WASHINGTON � Toni Anne Wyner has been taking her clothes off in the name of art and free expression at MacArthur Beach in South Florida for more than 20 years. But when the case that bears her name, Sole v. Wyner, is argued before the Supreme Court April 17, the First Amendment will probably not even get a mention. Instead, the issue will be attorneys fees, argued in a context that may be crucial for the future of all public-interest litigation. Specifically, the fee at issue is the $25,924 Wyner and lower courts thought her lawyers deserved for the work they did to win a preliminary injunction against the state of Florida in February 2003. That injunction ordered the state not to interfere with Wyner and fellow naturists as they formed a nude peace symbol on the public beach to protest the then-impending war in Iraq. “A peace sign made by nude bodies is a symbol of the vulnerability of all humans,” Wyner explains. The injunction was all Wyner wanted from her lawsuit, because it meant her protest could take place � and it did. But Florida, joined by 24 other state governments and the Bush administration, claims that because a preliminary injunction is not a final judgment, Wyner does not qualify as a “prevailing party” for the purposes of fee-shifting statutes, so her lawyers, James Green and Randall Marshall, should not get any money from the state. Marshall is an American Civil Liberties Union lawyer in Miami, and Green is a private practitioner in West Palm Beach. Wyner sees a direct line between the states’ argument and freedom of speech, even if the First Amendment never comes up April 17. Ruling out attorneys fees, she says, “is just another arrogant tactic to deny free speech in a quintessential public forum.” Without the prospect of attorneys fees, she adds, “just think of all the attorneys who will fall out and not take cases like mine.” That concern has transformed Sole v. Wyner from a quirky case with unusual facts into the next major battlefield between public-interest groups and government over fee-shifting statutes. “This could have a very big impact for public-interest groups that often find local lawyers to carry the litigation ball,” says Andrew Pincus, partner at Mayer, Brown, Rowe & Maw. “Those lawyers are going to be a lot more reluctant to take on the cases” if Florida wins. ODDS AND ENDS One sign of the broad interest in the case is the brief Pincus wrote on behalf of an odd coalition of public-interest groups that often oppose each other � ranging from Americans United for Separation of Church and State to the Rutherford Institute to the Institute for Justice and Public Citizen. All the diverse groups, says Pincus, agree that precluding fees in all preliminary-injunction cases would “significantly chill the enforcement of constitutional and statutory rights.” On the other side, states warn that if a mere preliminary injunction can trigger a fee award, the result will be a “considerable drain” on already-strained budgets. Virginia Solicitor General William Thro, representing the 24 states, also argues that state and local government would face “costly disincentives to enforce their laws.” Wyner’s adversaries go on to point out that even though Wyner won an injunction and a fee award, her separate challenge to the law banning beach nudity ultimately failed, and the law is still on the books. Preliminary injunctions are decided in abbreviated proceedings without full briefing, making it “fundamentally unfair” to dun states for attorneys fees, argues Virginia Seitz of Sidley Austin, who is representing the head of Florida’s Department of Environmental Protection, Michael Sole.
‘This could have a very big impact for public-interest groups that often find local lawyers to carry the litigation ball. Those lawyers are going to be a lot more reluctant to take on the cases’ if Florida wins.

Andrew Pincus Mayer, Brown, Rowe & Maw

The Supreme Court itself escalated the attorneys fee battle when it ruled in 2001 in the case Buckhannon v. West Virginia Department of Health & Human Services. That ruling upended decades of tradition rooted in the civil rights statutes of the 1960s. Under the traditional “American rule,” parties in almost all litigation pay their own costs. But the civil rights laws and 42 U.S.C � 1988 made an exception to that rule, rewarding private plaintiffs for vindicating and enforcing civil rights law through litigation as “private attorneys general.” Civil rights plaintiffs could recover their attorney fees and costs from their government adversaries if their lawsuits were the “catalyst” for change in government actions or policy � even if there was no formal ruling by a judge declaring victory for the plaintiff. But in Buckhannon, a 5-4 decision authored by the late Chief Justice William Rehnquist, the court put an end to the catalyst theory, insisting instead that a judge must grant “some relief” in an actual decision before the plaintiff can qualify as a “prevailing party” and recover attorneys fees. In the Buckhannon case, a lawsuit against regulations relating to assisted-living facilities prompted a legislative response that cured the problem. But because there was no judicial resolution, attorneys fees were barred. Public interest groups had warned in Buckhannon that if the catalyst theory was struck down, government agencies could avoid ever paying attorneys fees merely by settling or capitulating on the eve of a judge’s ruling or trial. They also complained that plaintiffs would be deterred from bringing cases in the first place because of uncertainty about recovering fees. Rehnquist wrote, “We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence.” BEING BUCKHANNONED Nearly six years later, the empirical evidence is in, according to Northwestern University professor Laura Beth Nielsen and Catherine Albiston, a professor at Boalt Hall School of Law. In a forthcoming article in UCLA’s law review, they report on an extensive survey of public interest organizations � both liberal and conservative � conducted in 2004. They found broad agreement “across the political spectrum” that Buckhannon has in fact discouraged litigation and has also discouraged settlement of cases that have been brought � apparently because litigants want to hold out for a judicial ruling that might trigger a fee award. The post- Buckhannon trend, they say, amounts to a little-noticed sneak attack on civil rights enforcement. And it signals “an ominous shift of power away from private enforcement of rights and toward government power.” In a brief filed in the Wyner case, Albiston estimates that more than 90 percent of civil rights actions are brought by private lawyers rather than government agencies. One special victim of the Buckhannon decision has been litigation under the Freedom of Information Act, says Brian Wolfman. Wolfman is director of the Public Citizen Litigation Center, which has participated in more than 300 FOIA lawsuits seeking documents from recalcitrant government agencies. “We get ‘Buckhannoned’ all the time,” he says, explaining that it is particularly easy for government agencies to avoid paying attorneys fees in FOIA cases. Even after protracted and costly litigation is under way, Wolfman says, the agency can easily moot the case at the 11th hour, just shy of a judicial ruling. “All they have to do is hand you the documents you want,” he says. Without a judge’s ruling, the plaintiff is left empty-handed in terms of attorney fees, even though the plaintiff has gotten everything it wants from the government agency. Wolfman declines to accuse government bureaucrats of using this tactic intentionally to deplete plaintiffs’ funds, but Albiston calls it “strategic capitulation.” A separate case currently before the court, Davis v. United States, challenges the extension of the Buckhannon rule into attorneys-fee disputes arising from the FOIA. Significantly, the court last month ordered the government to reply to the petition by April 25. Other briefs in Wyner’s case demonstrate how a ban on fees for those who win preliminary injunctions would fit into the larger battle over fee-shifting. In voting rights cases, for example, according to the Brennan Center for Justice, money damages are usually not available. “A preliminary injunction is often not a prelude to some final relief, but instead represents all or a substantial part of the relief sought by a litigant,” the brief by Laura Brill of Irell & Manella states. “Indeed, often a preliminary injunction is the only relief that can be secured before the election itself moots the case.” Wyner says she won’t attend the court hearing April 17, and she won’t be demonstrating outside either, nude or clothed. In a sense she has already moved on. She and other naturists have continued to demonstrate and put on plays in the nude at MacArthur Beach in Palm Beach County, especially when nudists from around the nation converge there in February. When Wyner does go “top-free,” as she puts it, she no longer seeks permission from a judge or from the state. “The First Amendment is my permit.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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