Wednesday, October 23, 2002

Howard Bashman continues to read the Montgomery Advertiser and links to news reports there about the Ten Commandments trial in Alabama. Howard's expectation of an appeal by the losing side -- an expectation shared by everybody including Judge Thompson, who is hearing the case -- prompts me to note this: This case will likely cost the taxpayers of the State of Alabama a lot of money. And I'm not even talking about the expense of the defense of the case, to the extent that the State is bearing that expense. (The State is bearing at least part of the defense expense, as shown by the fact that part of the defense team is the Attorney General's office. See, for instance, these documents from the case, link courtesy of Ed Still). What I'm talking about, instead, is the expense of the award of attorneys' fees to the plaintiffs' lawyers under 42 U.S.C. § 1988 after they win -- which, as I've posted before, they are due to do, unless the Supreme Court makes an astounding change in the law. In cases about violations of the constitution under 42 U.S.C. § 1983, section 1988 provides that the winning plaintiffs are entitled to have their fees paid by the losing defendant. And in a case like this -- where the defendant is a state official, sued in his official capacity -- the fees are to be paid by the State. See, e.g., Hutto v. Finley. So (unless there is some agreement by the plaintiffs' lawyers that they won't seek a fee award (which would be highly unusual), or a plan by the religious right to have a big bake sale to pay the plaintiffs' fees in the event of a plaintiffs' victory), this effort by Chief Justice Moore to overturn decades of constitutional law will cost the State's taxpayers a good pop of money, if his effort is unsuccessful. You can make your own judgment as to whether this sheds light on whether Chief Justice Moore's actions were a worthy exercise of governmental authority; my view, as previously stated, is that his actions were unwise and unconstitutional. But at least the litigation will put some money in the pockets of some progressive lawyers and organizations!

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