“[D]efendants should not be required to pay the tips provided by Gura for the cab fare and his meals.”
Waiters, cabbies, and anyone else whose Illinois livelihood depends at least in part on gratuities, listen up: your attorney general is against tipping. Or at least, she doesn’t want me to tip you when I travel to Illinois on business. Or, at least on the business of stopping her from violating your constitutional rights.
Madigan is spending gobs of taxpayer money–the money withheld from your wages–fighting the idea that tipping is customary and ordinary. And it’s probably a losing battle, which will cost you more money.
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Americans talk a good game about “freedom” and “liberty.” We like to believe that our government is bound to respect the people’s fundamental rights, and that an independent judiciary will hold accountable officials who fail to do so. That’s all well and good, and sometimes it even works out that way.
But nothing grinds a nice idea into the dirt as much as the pesky question: how do we pay for this? Lawyers, after all, have bills to pay, including ordinary bills for the expense of litigation, and constitutional litigation is complex and highly specialized. Hoping to ensure that the Bill of Rights would attract the same quality of representation as Microsoft and General Motors attract with their dollars, Congress enacted 42 U.S.C. § 1988, promising that prevailing plaintiffs who vindicate their rights may recover from the losing defendants—who, it must be remembered, violated the highest law of the land—their “reasonable attorney’s fee” and expenses.
Of course it’s not quite like billing a paying client. Microsoft and GM pay their lawyers even if they lose, but a court’s order that defendants pay for civil rights plaintiffs’ legal bills is contingent on success. It doesn’t take an advanced economics degree to figure out that if the market supports lawyers charging X dollars to clients who are expected to pay no matter what, and on time, the market commands something more than X where payment is iffy and later, to account for the (very substantial) risk of not being paid at all, and to make up for the time that is never fully compensated. But reason and logic are often out the window when it comes to fee shifting cases. The Supreme Court long ago forbade the recovery of any contingency interest in such matters.
The government can also rip-off civil rights lawyers and the groups that fund them by caving at the last minute. It can fight aggressively for years on end, wasting massive resources, only to “voluntarily” accede to the inevitable reality at the last moment and claim that the plaintiffs and their attorneys didn’t actually “prevail.” Yep, Supreme Court says that’s OK, too.
There’s no limit to how much the haters will push this logic. In McDonald, after we beat the City of Chicago in the Supreme Court, the city quickly repealed its handgun ban before the ink was dry on the Court’s mandate, the official paperwork commanding the lower court to enforce the decision, and then claimed we were entitled to nothing because it changed the law “voluntarily.” Judge Shadur actually bought that, before being reversed. But it took work.
And oh yes, of course, the work. To recover attorney fees and costs, one must litigate for them, and this does often become a second major litigation. The same government officials who were found culpable for violating the people’s fundamental rights are now suddenly concerned with protecting the poor taxpayers—oh heavens, those poor taxpayers, a/k/a “those same people whose rights we trampled”—from the greedy plaintiffs’ lawyers. And the defendants often use the government’s unlimited resources to keep fighting the bill from the original litigation.
Courts award “fees on fees” for extra fee litigation, but that’s not much of a deterrent against city hall. After all, it’s not their money, it’s yours. Had they wanted to save money, perhaps they wouldn’t have violated the law in the first place. And their goal is not to defend “the taxpayers,” please… it’s to deter and punish civil rights litigation. Courts nitpick and schmeiss and dice any attorney bill anyway. Add the lack of contingency, the severe delays for which interest is never quite adequate, and the incredible nastiness of fee litigation itself, the message civil rights violators send to the bar comes through loud and clear: don’t do this.
And of course, the Chicago Way of sending this message is very special indeed. In Moore v. Madigan, my colleagues and I convinced the Seventh Circuit to strike down Illinois’ total ban on the carrying of defensive handguns, as a violation of the Second Amendment. The legislature could regulate handguns if it wished, but the total ban was gone. The state opted for regulation, the bugs in which are still being worked out, but basically, here’s a fundamental right that people can now exercise, because of our work.
The market value of that landmark work — for three lawyers to develop this case, file and pursue it in the U.S. District Court, and successfully prosecute the Seventh Circuit appeal (including en banc and other post-judgment adventures), is $219,807 in attorney time and $3,193.29 in costs. It’s amply justified. (Our friends in the parallel NRA case, who staff these things very heavily, think the value is $606,298 and $12,308.30 — God bless ‘em!)
You think the state is mad?
Take a look at the deep dish of frivolity and obstinance that is the state’s opposition to our petition for attorney fees. And when everything is said and done, the state claims that the market value of litigating a case like Moore v. Madigan is $38,695 in attorney time and $1,853.38 out of pocket.
We disagree. How does the state get to these absurd figures? First, there is the stupid argument that we didn’t win the case. This alone should be grounds for sanctions, but it’s just the tip of the iceberg. A chunk of my time is mysteriously challenged because there’s no proof I represented the plaintiffs (?). For unknown reasons, they claim Jensen was terminated during the appeal (false — he was never terminated). Our hourly rates, which are absolutely in line with the market for what we do, and consistent with what we’ve billed and been awarded by courts, are too high—because insurance defense (perhaps the absolute bottom, dollar-wise, of the litigation market) attorneys (who work for the state) in Springfield (not where folks go shopping for specialized constitutional litigation) bill less.
Then there’s the usual irrational nitpicking over billing entries—if two lawyers spend an hour on the phone, a bill for each lawyer’s time is “duplicative.” And for every little thing that we did, if we didn’t instantly win, then we allegedly didn’t prevail. That’s not how it works, of course. If the lawyers prevailed on the claim–and we did–the issue is whether billing for that task was reasonable under the circumstances. Under the state’s theory, David Sigale can’t even get reimbursed for parking at the District Court for the preliminary injunction hearing, because we lost the preliminary injunction in that court. Remind me how did the appeal of that loss turn out? And how else would the case have arrived at the Seventh Circuit?
Indeed… it’s the expense side of the ledger where the state really kicks into the other dimension. The state challenges David Sigale’s parking expenses for appearing at the appellate argument, and for meeting with me the night before, because gosh darn it, “the amount is high for Springfield, IL.” The Seventh Circuit is in Chicago. Should David have parked in Springfield and walked?
Likewise, with my hotel. Flying in from Washington, I booked myself for the night at the Hilton down the street from the court. At $239 per night for a standard room plus tax, that’s absolutely the market for an average business hotel in Chicago, and while comfortable, very far from any sort of luxurious experience. But the state wanted me to pay no more than $130 plus tax, or $160, because that’s the state’s maximum rate for its employees’ travel. Well, yeah—the state negotiates very nice rates for its employees. When I was a California Deputy Attorney General, I paid all sorts of ridiculous hotel rates for state travel. But I don’t work for the state of Illinois. Go search downtown Chicago, near the courthouse, for a $130 hotel! When I searched Expedia in responding to the state, only a hostel came in below $130 (at $150 plus tax there was one motel).
Do we get to eat when we travel? The state objected to my airport coffee. They think Sigale and I should have had dinner in downtown Chicago for $8 per person. Lunch at $4 per person. No, that doesn’t include the DeLorean ride to 1935. But I’m a profligate Waster Of The Taxpayers’ Precious Money because I tipped the cab driver on the ride downtown from the airport! And I should not have tipped the waiter either.
Yes, we are litigating over whether I should have given tips to the waitstaff and cab driver. Sigale gave me a ride back to the airport, and I didn’t tip him, so perhaps they have a point. How much will it cost The Taxpayers to fight over the cabbie’s $8.27 tip and the waiter’s $7.53 tip?
How much would it have cost the state to pick up the phone and negotiate with us? That’s right, no negotiations have taken place. The state’s lawyers said they’d negotiate, we gave them our information, and the next thing we know, they tell us to pound sand because we allegedly didn’t prevail.
Even if we get robbed on the fees-on-fees litigation, the state will likely wind up paying more money than it would have had they just written us a check at the start. I realize some people might think that this is how the game is played… that we should submit some inflated wacky demand for a bajillion dollars, the state then hires Scrooge McDuck to lowball us, and the judge splits the baby. No. Most of these disputes are settled easily–in McDonald, for example, once the “didn’t prevail” shenanigans concluded, we received 90 cents on the dollar. And we don’t pad our claims. If the other side wants to be ridiculous, that’s on them.
Which brings me to the Moore fee saga’s most recent filing. We’ve saved the taxpayers’ Second Amendment rights from their counsel. But the taxpayers shouldn’t underwrite this type of misconduct, which calls out for some response.