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Northcross et al. v. Bd. of Ed. of The Memphis City Schools et al. 397 U.S.
232 (1973).

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1302

Stanford Daily v. James Zurcher, et al., Civ. No. 71-912-RFP (decided
August 10, 1973, N.D. Cal.).

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STATE BAR ASSOCIATIONS

Alabama State Bar, Nachman, M. Roland, Jr., president__

Page

1553

Arizona State Bar, Segal, Richard A., president__

1554

Arkansas State Bar, West, James E., president__

1556

The Colorado Bar Association, Williams, Anthony W., president

1559

The Bar Association of the District of Columbia, Canfield, Austin F., Jr., president__

1562

State Bar of Georgia, Adams, F. Jack, president..

1563

Illinois State Bar Association, Sutter, William P., president..

1573

The Iowa State Bar Association, Tomasek, F. W., president

1576

Maryland State Bar Association, Walker, Thomas J., Jr., chairman,

Economic Committee_

1580

Massachusetts Bar Association, Fisher, Frederick G., Jr., president__

1585

State Bar of Michigan, Smith, Carl, Jr., president..

1587

Minnesota State Bar Association, Halverson, Gene W., president__

1592

The Montana Bar Association, Loble, Henry, president_

1599

Nebraska State Bar Association, Welch, Harry L., president_.

1603

Ohio State Bar Association, Porter, Walter A., president..

1605

Pennsylvania Bar Association, Fuchs, William J., Esq., chairman, Commit

tee on Availability of Legal Services -

1608

State Bar of Texas, Jeffers, Leroy, president

1617

The State Bar of South Dakota, Oviatt, Ross H., president..

1640

Tennessee Bar Association, Dodson, Harlan, president..

1645

Utah State Bar, Stark, LaVar E., president___

1647

Washington State Bar Association, Cone, Cleary S., president__

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Wyoming State Bar, Morgan, Thomas, president.......

CALIFORNIA LOCAL BAR ASSOCIATIONS

Century City Bar Association, Hartley, J., president..

Del Norte County Bar Association, de Solenni, Mario E., president...
Los Angeles County Bar Association, Markey, Christian E., Jr., presi-
dent elect___

Marin County Bar Association, Shaw, Leonard, president..
Palo Alto Area Bar Association, Mansfield, Richard G., president..
San Diego County Bar Association, Newburn, John L., president..
Santa Maria-Lompoc Valley Bar Association, Lang, Thomas A., president
Sonoma County Bar Association, Mackey, Robert W., president_
Southwest Los Angeles Bar Association, Felthouse, Jack C. past president
Ventura County Bar Association, Peck, William L., Esq., chairman..
Yuba-Sutter Bar Association, Ithurburn, Fred B., president_ ---

SAMPLING OF COMMENTS FROM GENERAL PUBLIC

East Douglas, Mass., August 11, 1973..

Boston, Mass., August 15, 1973.
Marina, Calif., September 10, 1973-
Indio, Calif., September 17, 1973...
San Diego, Calif., September 18, 1973..
Houston, Tex., September 18, 1973.
Del Mar, Calif., September 23, 1973.
Cambridge, Mass., September 24, 1973.
Rochester, N. Y., September 26, 1973.
Arlington, Va., September 26, 1973.

Los Angeles, Calif., September 29, 1973-
Malden, W. Va., October 2, 1973-.
Los Angeles, Calif., October 2, 1973.
Milwaukee, Wis., October 4, 1973__
Bessemer, Ala., October 8, 1973-
Raleigh, N.C., October 13, 1973..
Jamestown, Calif., October 13, 1973.
Baton Rouge, La., October 15, 1973.
Shawnee, Okla., October 29, 1973...

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LEGAL FEES

THURSDAY, OCTOBER 4, 1973

U.S. SENATE,

SUBCOMMITTEF ON REPRESENTATION OF CITIZEN INTERESTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:45 a.m., in Room 2228, Dirksen Senate Office Building, Senator John V. Tunney (chairman) presiding.

Present: Senator Tunney (presiding).

Also present: Jane Frank, chief counsel; Neil Levy, assistant counsel; Joseph Dawahare, minority counsel; Ann Hennigan, chief clerk; and Matthew Schneider, staff assistant.

STATEMENT OF HON. JOHN V. TUNNEY, SENATOR FROM CALIFORNIA, CHAIRMAN, SUBCOMMITTEE ON REPRESENTATION OF CITIZEN INTERESTS

Senator TUNNEY. Today and tomorrow, we shift our focus to court awards of attorneys' fees a new method of financing consumer, environmental, and other public interest law suits. Congress has enacted needed legislation affording citizens important rights in many areas. All too often, however, not enough attention has been given to the problem of enforcing these rights. Without effective enforcement, rights are but a hollow declaration lacking any substantive effect.

Many of these new laws provide for citizen suits and judicial review. But to take advantage of such provisions, attorneys are needed. Often, criminal and civil penalties are mandated, but here again, enforcement can be difficult when it puts the Attorney General in the position of being required to sue the Federal officer accused of violating the Federal statute. In this latter situation, the Attorney General usually ends up defending the Federal officer.

Where are the attorneys to enforce these statutory rights? The legal services organizations are understaffed and cannot assist citizens with incomes over the poverty level. Other private attorneys are frequently too expensive for the average citizen. Until recently, for most citizens, there was no one to enforce these rights. In the last 5 years, however, as a result of congressional and Supreme Court encouragement, a new breed of attorneys is emerging often hailed as private attorneys general.

These private attorneys general are being encouraged to bring lawsuits in the public interests by an extremely important mechanism, known as "fee-shifting." In some instances, both Congress and the courts have required that the burden of paying the winning party's attorney's fees must be shifted to the losing party who was found to have wrongfully denied others their legal or constitutional rights. This is done despite the normal practice of requiring each party-win or lose-to pay his own attorney. When an attorney is able to collect fees if he prevails, or substantially prevails, he can take cases on behalf of average-income citizens and vindicate their rights. In view of the tenuous nature of other public and private financing for these attorneys, "fee-shifting" becomes even more important.

In these 2 days of hearings, the subcommittee will attempt to ascertain whether "fee-shifting" affords representation to otherwise unrepresented interests, whether some restriction or encouragement of the developmnt is needed, and what place, if any, there is for legislation in this area.

Over the course of these 2 days we will hear from some of the attorneys who have represented various previously unrepresented interests and have sought or been awarded fees. We will hear about legal impediments to "fee-shifting", such as section 2412 of title 28 of the United States Code, which prohibits court awards of fees to . the prevailing party in a suit against the Federal Government unless such awards are specifically authorized by statute, and about ways in which those impediments might be changed. We will hear from the National Association of Manufacturers about the views of business interests concerning these developments. We will hear from a law professor, and private practitioner who has studied the impact of these developments. We had also hoped to hear from judges about how they view these developments, but because all those who have been active in this area have litigation on the subject pending before them, their appearance before us, at this time, was viewed inappropriate.

It may well be that "fee-shifting" affords the best means of ensuring that rights provided by the Constitution and the Congress are not taken away by the harsh reality of the high costs of litigation. Our first witness is Mr. J. Anthony Kline, attorney, Public Advocates, Inc., San Francisco, Calif.

I would like to ask witnesses if possible to try and restrict their opening remarks so that we will have the opportunity to question you. It would be most helpful for the committee because your statement will be made a part of the record, Mr. Kline, and it is a very extensive statement, and a good one, but we won't be able to question you on it if you read the whole thing.

STATEMENT OF J. ANTHONY KLINE, ESQ., ATTORNEY, PUBLIC ADVOCATES, INC., SAN FRANCISCO, CALIF.

Mr. KLINE. I am going to address my remarks to court ordered attorney fees in "public interest litigation". A lot of people feel about public interest litigation the way Justice Stewart feels about

pornography, they don't know how to define it, but they know it when they see it.

But I think we must attempt some definition. I believe public interest litigation generally conforms to three criteria. First, the issue or issues, involved in the litigation are currently regarded as being of extreme importance and the importance of the issues can be inferred from legislative action or from the very fundamental nature of the right at stake.

The second criteria is that final judgment in the case will affect not only the named plaintiffs but also a substantial element of the public.

And the third criteria is that the litigation must be commenced by private plaintiffs rather than the Government.

As you pointed out, Mr. Chairman, the courts have recognized the need to facilitate this type of litigation, and so has the Congress.

There are, in my view, a number of reasons why litigation such as this is discouraged and why competent counsel are often unavailable to plaintiffs. The first reason is that these suits are almost by their nature time-consuming, complex and expensive; and damages are not sought from which attorneys' fees can be reimbursed.

Furthermore, those with standing to commence these suits are very often poor people without the financial means to support expensive litigation. I should point out, in this connection, that we cannot presume that the OEO legal services program is in any position to represent the legal needs of the vast majority of low-income people in this country.

A former Director of OEO, Mr. Carlucci, has estimated that the legal services program does not even begin to meet the legal needs of more than 28 percent of the people who are within OEO guidelines. OEO guidelines confine legal services laywers to representation of only the hardcore poor. In the State of California, for example, legal services lawyers cannot represent a family of four with an annual income that exceeds $4,000; the wage earner and middle class are thus deprived of representatition by the OEO legal services program. But there is an additional reason why it is very difficult for citizens to maintain public interest litigation, and it is a reason that is not widely appreciated. That is that any individual's personal interest in bringing litigation of this type is almost always diffused in the public interest.

Take, for example, a proposed suit to challenge a federally assisted highway project believed to violate various environmental statutes or statutes designed to protect residents from sudden displacement. And let us assume, as is not usually the case, that the people who will be affected by the highway project are not poor people; let's assume they are rich people. An individual who is going to be affected by that highway will go to a lawyer and say "I think this highway is a mistake and I want you to tell me whether you think you can enjoin it on legal grounds." And the lawyer may investigate the matter and conclude that the project does violate the law and can be enjoined. He will undoubtedly advise his client, however, that his fee will be in the neighborhood of at least $25,000 to file a class action suit against the Secretary of Transportation, the Federal Highway

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