The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here. That case presents the issue of whether a party who wins apreliminary injunction — but ultimately loses the case — has”prevailed” under a federal statute that allows a “prevailing party” to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.
That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment’s property protections are federal civil rights, and 42 USC § 1983 is often the vehicle by which these rights are protected. Background on the case here, and (from SCOTUSblog) here.
The colloquy between the Justices and counsel (including counsel for the federal government, which participated as amicus supporting the petitioner) focused on the nature of the preliminary injunction remedy, and in an almost metaphysical discussion, what it means to “win” a legal case. Does it mean “get what you want” (in this case, the plaintiffs wanted to do one of those now-ubiquitous nude protests but the public park’s rules prohitibited nudity), or does it mean get a judgment? The plaintiffs claimed that since they wanted to protest in the buff, and the preliminary injunction allowed them to do that, they “prevailed.” The local government, on the other hand, argued that while the plaintiffs may have obtained a preliminary injunction, at the end of the day, the court ruled that the park’s nudity rules did not infringe on First Amendment rights.
I’ll go out on a limb here, and do what I generally don’t: predict the outcome. The Court should reverse. The history of section 1988 reveals that Congress intended that a party should win the case (the defendant infringed on the plaintiff’s rights under color of state law, for example) before it gets to tag the other side with attorney’s fees.
Or, take your pick of a sports analogy – do you win the baseball game if you are ahead in the sixth inning? The football game in the first quarter? Did you “prevail” in the Tour de France if you are wearing the maillot jaune on the 10th day, or only if you are wearing it on the podium on the Champs-Elysées? Cases that make their way to the Supreme Court are almost by definition close calls, but this one does not seem to me to be one. At least if I am wrong, I am in good company; Pennsylvania Litigation Blog predicts “this case appears as close to a slam dunk reversal as a Supreme Court case gets.” I agree.