The American Enterprise article that Wesley Elsberry blogged about complains about the ACLU seeking recovery of a million dollars worth of fees from the Dover School Board after its victory in the Kitzmiller case. Joe Manzari and Seth Cooper react scornfully to this: “If the ACLU happens to sue your small hometown and then demands $1 million dollars for their lawyers, would you call them generous and charitable? Strangely enough, that’s exactly what they’ve done to the small town of Dover, Pennsylvania.…”
But there’s nothing strange about this at all. In fact, the entire purpose of attorneys fees in public interest litigation—the field in which I make my living—is to ensure that when people go to court to vindicate public rights against wrongful acts by the government, they are not forced to shoulder the cost of doing so. In Owen v. City of Independence, 445 U.S. 622 (1980), the Supreme Court explained why people who sue cities for violating their civil rights should be able to recover money damages from the wrongdoing cities:
The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights.… [Since] it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.
Id. at 651-55.
If government officials don’t want their cities to be forced to pay attorneys fees awards, they should take the wise step of not violating the Constitution, and then they won’t have to worry about it. In fact, the ACLU, like other public interest firms, go through a great deal of trouble and risk when they seek to defend the Constitution against wrongful official conduct, and much of the time their efforts are rewarded only by small donations from people who agree with their cause. It is actually pretty unusual that such firms get attorneys fees awards for their work, but when they do, not only do they deserve it for performing an important public function, but such awards also serve an important purpose in creating incentives for officials to act rightly, and for citizens to keep an eye on their elected officials.