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Wednesday, July 08, 2015


Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft  short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.

One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?

Posted by Howard Wasserman on July 8, 2015 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


If filing a lawsuit can force compliance before an answer is due, I would think that one calls it a good day and goes home. The goal of the lawsuit was achieved in the most rapid possible way at the minimum cost associated with a lawsuit, and without risk of an adverse ruling or appeal. Justice prevails. Pursuing sanctions would cost more than it is worth.

If the suit had gone forward and produced judgment on the pleadings, followed by legal action to enforce the judgment, or a quick success on a motion for summary judgment, there is no guarantee that 100% of the attorneys' fees incurred would have been recovered in the end anyway.

Posted by: ohwilleke | Jul 9, 2015 11:45:49 PM

Interesting--this strikes me as a sort of reverse-SLAPP lawsuit. The anti-SLAPP procedures that require a party to remain in the case and potentially be subject to fees would be useful in this area.

Posted by: Francis | Jul 8, 2015 7:29:27 PM

Whoops! I commented on the wrong post.

This is interesting. In patent cases, where you commonly see plaintiffs pull out before trial, courts have held that the motion to dismiss and then dismissal with prejudice is sufficient to constitute being a prevailing party. In other words (and contrary to my argument on mootness before), if the state voluntarily complies after being sued, plaintiffs should seek a dismissal with prejudice, not a dismissal for mootness.

Posted by: Michael Risch | Jul 8, 2015 4:04:22 PM

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