Former ACLU staff attorney on amending 42 USC section 1988

Posted on November 9, 2005

I’ve found a great article in American Legion magazine from May of this year. I wish I’d found it sooner, and hope that you click and read the whole thing. The author, Rees Lloyd, civil rights attorney and former ACLU staff attorney, makes a great case for our petition to close a loophole in the law that allows the ACLU (and similar activist organizations) to make money from the taxpayers they sue. Mr. Lloyd writes, in part:

The American Legion Magazine: What is 42 U.S.C. Section 1988, and how does the ACLU profit from it?
Rees Lloyd: The Civil Rights Attorney Fee Act was intended to provide an incentive to attorneys to take on representation of victims of civil-rights violations who could not afford legal counsel and thereby to fulfill the promise of the Civil Rights Act and certain specified federal statutes. Instead, its good intentions have been exploited by the ACLU to reap enormous profits through what I believe is manifestly in terrorem – terrorizing – litigation to enforce its secular political, cultural and social will on elected officials and the American people by lawsuits attacking Boy Scouts and every symbol of America’s religious history and heritage in the public square.

It seems to me that a certain blog you might happen to be reading right now has been making the same point.

While the language of 42 U.S.C. Section 1988 is simple, it has been used and abused by the ACLU, as construed by other unelected lawyers, i.e., judges, who hand out enormous hourly attorney fees to the ACLU in such a way as to defeat the intent of elected representatives of the American people, Congress, and to terrorize elected officials at local levels to cower and surrender.

Well said, Mr. Lloyd.

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the “establishment clause.”

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in “attorney fee awards” – although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

Congress did not require judges to award attorney fees under 42 U.S.C. Section 1988. Congress made attorney-fee awards purely discretionary. Judges have interpreted that to mean that a prevailing party is to receive “reasonable” attorney fees, even if there are in fact no actual attorney fees. “Market rate” is used. In large cities, that can be a starting point of about $350 an hour.

So, in practice, what is a “reasonable” attorney fee? Whatever one lawyer, i.e., a judge, wants to give to another lawyer, taxpayers be damned.

As far as is known, not one single judge has ever simply dared to say “no” to the ACLU. Why should they? They are lawyers handing taxpayer funds to other lawyers; the fox is in the chicken coop.

Fox in the chicken coop indeed. Our petition (please click here and read it and consider signing it) is not at all meant to shut down access to courts for plaintiffs in civil rights cases. Far from it. We only mean to remove the financial incentive that this law gives to the ACLU to sue, and the converse financial incentive to cities and counties to cave in and obey the ACLU whenever they get a demand letter.

Now we have the word of a former ACLU staff attorney to back us up on our effort to amend 42 USC section 1988.
(We’re nearing 19,000 signatures and counting, by the way).

Little addition by Jay: We know of Mr. Reese Lloyd, as a matter of fact, Stop The ACLU Interviewed Mr. Reese Lloyd back in July.