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Pay the attorneys

Highway-case lawyers earned fees by Robert Steinbuch Special to the Democrat-Gazette | September 26, 2022 at 1:00 a.m.

In Arkansas, any citizen can sue the government if it misspends money in contravention of the law. That notion, contained in the Arkansas Constitution, is called illegal exaction, and it is a critical check on government overreach.

As the leading authority in Arkansas on our Freedom of Information Act, I can attest to the importance of vigilance in ensuring both government transparency and responsibility. And, of course, the two go hand and hand, as do the rights stemming from the Freedom of Information Act and the entitlement of citizens to pursue illegal exaction cases.

You might recall the highly publicized 2018 case in which Arkansas citizens sued the Department of Transportation for illegal exaction for misspending government funds on unauthorized highway projects. The case went all the way to the state's Supreme Court, and the citizens of Arkansas won. The misspent money was reimbursed.

This was a great victory for the people of Arkansas. But what happened next shows the dangers of when government grows like kudzu if left unchecked.

The winning attorneys are now justifiably seeking attorneys' fees for having rectified this wrong and duly represented the citizens of Arkansas against an otherwise unchecked bureaucracy. The government's response, perhaps unsurprisingly, is that the attorneys should get zero dollars in attorneys' fees from the court.

That's right: zero dollars.

For shame. Having lost the case, the government wants to prevent the winning attorneys from receiving a judgment recovering for their efforts on behalf of the people.

The government's argument is that a separate provision of the state Constitution prevents suits for money against the state. That's true, but this isn't a separate action for money against the state, now, is it? Rather, the request for attorney's fees is a legal claim incidental to the enforcement of the separate and equal constitutional right to pursue an illegal exaction case. As such, the prohibition on money suits against the government is irrelevant, as the sought-after attorney's fees simply aren't within the province of the separate money-suit prohibition.

In addition to the legal argument, the policy in favor of awarding attorneys' fees is obvious. Attorneys work for a living, just like everyone else. And the citizens of Arkansas generally will not be able to find attorneys to take illegal-exaction cases without an award of attorneys' fees unless the complainants happen to be independently wealthy and willing to fund the litigation.

Is that what we want, the right to check government overreach only made available to the uber-rich? That's not what I want.

Remember that attorneys' fees are only available if the attorneys actually win. As such, the attorneys pursuing these cases are already taking a big risk. But the government wants to remove that risk in favor of eliminating entirely the ability to have courts award attorney's fees.

As a practicing attorney, I fight every day for the hardworking citizens of Arkansas. I haven't taken any direct payment from any of my clients. And in many of my cases, there's no hope, even if I win, that I'll ever see even a penny of compensation. But when the law allows for the award of attorneys' fees for successful litigation, as in the case of the Freedom of Information Act, I will happily seek those fees.

I hope that the attorneys in the highway case get what they're entitled to: payment for successful services rendered.

Robert Steinbuch, professor of law at the Bowen Law School at the University of Arkansas at Little Rock, is co-author of "The Arkansas Freedom of Information Act," now in its sixth edition. His opinion is his own.

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