From today’s Tennessean, my op ed on proposed civil fee-shifting for claims against government officials:

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By Daniel Horwitz:

Imagine being a young legislative aide who is on the receiving end of unwanted sexual advances by her employer, a prominent state representative.  He frequently comments on your appearance and suggests that you start dressing in more revealing clothing.  He calls you late at night and asks you to meet him at local bars while his wife thinks he’s working.  One day, he summons you to his office, shuts the door, and gropes you.  When you resist, he warns you not to tell anyone.  The next day, after you decline his request to come in for another “private meeting,” he fires you.

What do you do?  If you can prove what happened in court, of course, then you can hold him accountable.  But if you sue, you also fear repercussions.  What will happen to your career?  Do you want a long, high-profile legal battle, and can you even afford one against someone who has the government’s vast resources at his disposal?  What if a jury doesn’t believe you?

One way that society attempts to correct this power imbalance is by requiring government wrongdoers to pay a victim’s legal fees if the victim’s lawsuit is successful.  Federal and state laws commonly include such “fee-shifting” provisions in order to incentivize people to file suit when their constitutional or civil rights have been violated.  Notably, such provisions also play an important role in promoting public policy, since society has a strong interest in rooting out misconduct like sexual harassment even when a victim’s monetary damages are insubstantial.

Following the legislature’s recent approval of SB2377/HB1679, however, Tennessee is on the verge of taking the opposite approach: requiring alleged victims to pay the government’s legal fees if a lawsuit against a government official is unsuccessful.  Significantly, this penalty also is not restricted to claims that are deemed frivolous or unfounded; instead, it would apply no matter why the allegations failed.  For example, even if a victim withdraws a lawsuit voluntarily because she runs out of money to keep fighting it, she would still be required to pay the government a crippling monetary penalty.

Like many lawsuits, sexual harassment claims frequently cost hundreds of thousand dollars to litigate.  It is also safe to assume that most people don’t have that kind of money lying around, so individuals who fail to win a lawsuit against state employees will often be forced to declare bankruptcy.  Tellingly, the legislature’s own fiscal impact report acknowledges this reality, stating that “there will not be a significant number of attorneys’ fee awards collected as a result of the bill.”  Consequently, SB2377/HB1679 cannot honestly be described as an effort to reimburse taxpayers for successfully defending against frivolous lawsuits, as its Senate sponsor Mike Bell claimed.  Instead, it’s a deliberate attempt to deter victims from bringing government officials’ wrongdoing to light in the first place.

The immediate effect of such a change will be to discourage victims of official misconduct from pursuing their claims in court at all.  Remarkably, this naked attempt to intimidate victims was also the top legislative priority of Tennessee Attorney General Herbert Slatery, who is supposed to be the one individual above all in Tennessee who is tasked with protecting the public interest.

Even more disturbingly, General Slatery promoted this “reform” while his office was supposed to be conducting an investigation into alleged misconduct by State Representative Jeremy Durham, who recently resigned his leadership post after being accused of sexually harassing three women who work at the statehouse.  Astoundingly, General Slatery has also stated unequivocally and without embarrassment that the purpose of SB2377/HB1679 is to ensure that such victims “have something at risk” if they decide to file suit.

It is difficult to overstate just how troubling it is that the Attorney General’s primary response to sexual harassment at the state Capitol has been to try to sweep it under the rug.  Simply put, General Slatery’s effort to intimidate victims in this manner is shameful, and it is beneath the dignity of his office.

The proper response to wrongdoing by government officials is to root it out, to punish it, and to prevent it from occurring in the first place—not to use the threat of bankruptcy to deter victims from coming forward.  Regrettably, SB2377/HB1679 would do, and is intended to do, just that.  It should be vetoed by Governor Haslam accordingly.

Daniel A. Horwitz is an attorney in Nashville.  Reach him at [email protected] and @Scot_Blog.

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