We previously discussed the Westboro ruling imposing costs on the family of a dead soldier. Here is my column from today on that case and the proposal for legislative reform.

Turley: Congress Needs to Preserve Open Courts

In the past few weeks, there has been a national outcry over a federal court ordering the family of a fallen soldier to pay $16,000 to the Westboro Baptist Church, an extremist organization that pickets the funerals of soldiers and Marines. The decision of the U.S. Court of Appeals for the Fourth Circuit is indeed outrageous, but not because it benefited Westboro Church.

To the contrary, the court’s insistence on being consistent in its rules (and not to exclude unpopular litigants) is commendable. What is outrageous are federal rules that penalize parties for seeking appellate review or even demanding a trial in strong cases. That is a problem that Congress can end with legislation removing financial barriers to our courts.

The Westboro case involves the funeral of Marine Lance Cpl. Matthew Snyder in Westminster, Md., after his death in combat in Iraq. The church targeted the funeral for one of its infamous protests where its members celebrate the death of the soldier or Marine as God’s judgment on America for its tolerance of homosexuality. They appeared with their signature signs reading, “You’re going to hell,” “God hates you” and “Thank God for dead soldiers.”

This is the twisted message crafted by pastor Fred Phelps and his daughter (and attorney) Margie Phelps. In this case, Snyder’s family sued for various injuries in tort, including intrusion upon seclusion and intentional infliction of emotional distress.

A jury slammed Westboro with a total of $10.9 million in damages, including punitive damages. The Court of Appeals, however, overturned the verdict — a decision that will now be reviewed by the Supreme Court with an oral argument this year. The appellate reversal compelled the Fourth Circuit to impose costs under the federal rules of appellate procedure.

Punishing Parties Seeking Appellate Review

Rule 39 of the Federal Rules of Appellate Procedure states that the court must impose costs against the losing party unless there is a partial affirmance or reversal. It is a rule that can impose high costs, as in the Westboro case, for simply seeking a review of — or defending — a trial decision. It is a rule that has the hardest impact on public interest and small-sized litigants.

Large firms and clients have little difficulty in paying such costs. Westboro is a typical example. In this case, the family was benefited by an attorney who represented them pro bono. Yet, they faced a high bill for simply trying to defend the verdict in the trial court.

It is a rule that runs counter to the guarantee of open courts and facilitating review of lower court decisions. While corporations may care little about the marginal costs (while benefiting from the deterrent for smaller litigants), smaller or public interest litigants are hit hard — punished for exercising a right to appellate review. Congress should confine any award of costs to one of two categories of cases: frivolous cases and lawsuits against the government. As with fees, a court can impose costs on claims that are without merit. No one could responsibly argue that the Westboro appeal was frivolous. The Snyders won below and a trial judge ruled in favor of the award. When meritless claims are made, the parties should face such costs. Likewise, we have historically given fees and costs to citizens suing their government to deter government abuse and to encourage “citizen suits.”

Punishing Litigants Who Prevail

Another rule that imposes such prohibitive costs on parties is Rule 68 of the Federal Rules of Civil Procedure. Where Rule 39 imposes costs on appeal, Rule 68 makes it difficult for citizens to even get to trial. Under Rule 68, if a party declines an offer of settlement made before trial, they must pay the defendant’s (post-offer) costs if the final damages are less than the offer — even though they prevailed in the case. Thus, by simply going to trial to prove their case and seek full damages, the winning party can be hit with huge costs by the losing party. The theory is that we want to encourage people to avoid trial, but the rule is widely used to harass and threaten litigants.

This rule is particularly damaging to public interest litigants suing the government. The government often argues that such findings of unconstitutional conduct (even when establishing important new precedent) have no value under Rule 68. So, if litigants establish new and important precedent, they can still face demands for prohibitive costs by the government.

I have had clients settle important cases before trial simply because they could not afford the risk of being hit with tens of thousands of dollars of penalties even though they prevailed in court. Government often wants to avoid establishing precedent against abusive practices so they run up costs while hitting litigants with threats of financial ruin under Rule 68.

Congress should repeal Rule 68. Alternately, it should bar its use in either cases against the government or cases that establish constitutional or important precedent. It should at a minimum be clear (as argued by public interest lawyers) that important constitutional or legal ruling have a value under the federal rules and are a legitimate goal of citizens. Ironically, under the interpretation of the government in such cases, the rule works against citizens who are more motivated in deterring misconduct than making money.

If the public finds the awarding of costs in the Westboro case to be obnoxious (and it is), it should direct that anger at preventing such costs in all cases — not just cases against unpopular litigants. Access to our courts should not be premised on the willingness of average citizens to face prohibitive fines for the litigants. Open courts mean little if walking through their doors comes with a threat of financial ruin.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing lawyer in the areas of constitutional and criminal law.

Roll Call: April 12, 2010