Is the game over in the ninth inning, or is being ahead in the sixth good enough?
Federal civil rights law, 42 USC § 1988, provides that the “prevailing party” in a lawsuit to vindicate federal civil rights is entitled to collect attorneys fees from the loser. The right to own and make economically beneficial use of property is one of those federal civil rights, and land use and property issues are often litigated under 42 USC § 1983, so attorneys fees may be available to the winning party.
But what does it mean to be a “prevailing” party? On April 17, 2007, the US Supreme Court will hear arguments in Struhs v. Wyner (No. 06-531) (docket listing here), a case that presents the issue of whether a party who wins a preliminary injunction — but ultimately loses the case — has “prevailed” within the meaning of § 1988.
The facts of the case are pretty far from the land use arena: antiwar protesters wanted to use a public beach park as the canvas on which to paint a peace symbol consisting of their nude bodies. The park’s rules, however, prohibit nudity. The protesters sued, and initially prevailed on freedom of speech grounds, winning a preliminary injunction from the court. After trial, however, the court held that the park’s anti-nudity rules did not impemissibly burden the protester’s free speech rights. The protesters sought and were awarded attorney’s fees since they “prevailed” on the preliminary injunction, even though they did not prevail at trial.
The federal circuits are split on the issue, and a decision in this case by the Supreme Court could have major impacts in land use litigation, and who pays for the lawyers’ time. This issue is not limited to federal courts, because claims under § 1983 may also be brought in state courts. For example, the Hawaii Supreme Court last year decided that a party who prevailed on state law public trust and water rights claims was not a party who prevailed under federal civil rights laws. The Struhs case bears watching.