As the court noted, Wiscon-sins version of the PLRA is much broader than the federal version, which only places caps on the amount of attorneys fees that prisoners can recover. The federal PLRA does not bar them entirely, and permits the award of costs that any successful litigant would recover as a matter of course.
Although the court relies heavily on the Seventh Circuits decision in Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003), to support its decision, much of the decision in Johnson actually undermines the courts holding.
First, the court in Johnson devotes substantial space to answering the equal protection question, equal with respect to what? The court notes that a free person outside of prison making claims similar to those of the plaintiff would not receive any attorneys fees at all if he prevailed. Johnson, 339 F.3d at 587-591.
The court states, It is difficult to ascribe the caps in the PLRA to irrational antipathy, when prisoners fare better under the PLRA than do veterans and other free persons who must bear their own legal expenses under the American Rule and the FTCA. Id., at 589.
In contrast, Wisconsins version of the PLRA does appear driven by irrational antipathy. Rather than capping attorneys fees, it prohibits the award of statutory costs that are always awarded to any prevailing party in any type of action.
While the court of appeals cites to the American Rule as justification for its decision, the American Rule does not bar the award of statutory costs to prevailing parties, just attorneys fees. The courts use of this rule is thus rather disingenuous.
The Seventh Circuit in Johnson also noted, a legislature rationally may think that the supply of lawyers prepared to serve on judicial request is affected by the compensation available if the plaintiff prevails. Id. at 593. Again, this rationale is inapplicable to the Wisconsin PLRA, which bars costs rather than attorneys fees.
The Seventh Circuit further found, Congress rationally could suspect that fee awards under sec. 1988 are excessive as a rule, and that prisoners suits are an appropriate place to explore the results of a cutback. Id. at 596.
Indeed, this very concern led the U.S. Supreme Court to limit the award of attorney fees to plaintiffs who prevail only nominally.
However, the Wisconsin Legislature could not reasonably conclude that awards of statutory costs are excessive as a rule. Once more, a key rationale of the Seventh Circuit in Johnson provides no support for, or undercuts, the reasoning of the court of appeals in the case at bar.
Finally, 42 U.S.C. 1983 is, as the Seventh Circuit found in Johnson, exceptionally pro-plaintiff. Id. at 587. The defendant in a section 1983 action must pay his own attorneys, regardless of outcome, and the plaintiffs as well, if the plaintiff wins. The federal PLRA merely caps the defendants exposure, making the playing field more level than it was.
Wisconsins PLRA, on the other hand, does not level what started as a pro-plaintiff playing field. The playing field began neutral, with parties responsible for their own costs and attorneys fees, and the prevailing party entitled to costs.
Wisconsins PLRA takes this neutral playing field, and makes it pro-defendant, by requiring the plaintiff to pay his own costs, plus the defendants costs, if he loses, but denies costs to the plaintiff if he prevails.
Without question, the statute does rationally serve the purpose of reducing frivolous prisoner litigation. But so would denying prisoners access to courts entirely.
Thus, the comparisons to the federal PLRA provide little support for the courts decision. To paraphrase the Seventh Circuit, It is difficult to ascribe the [Wisconsin PLRA] to [anything but] irrational antipathy [to prisoners].
– David Ziemer
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David Ziemer can be reached by email.