Abstract
Section 5 of the New Mexico Civil Rights Act (NMCRA) permits a court to award “reasonable” attorney fees to a “prevailing plaintiff.” In this way Section 5 parallels its federal analog, 42 U.S.C. § 1988, which similarly allows a “prevailing party” to recover “reasonable” attorney fees in federal civil rights suits. But despite this language in the federal statute, a string of U.S. Supreme Court decisions have circumscribed the availability of attorney fees in suits brought under § 1983. This restriction on attorney fees has led to what Professor Joanna Schwartz calls the biggest obstacle to civil rights litigation in the federal system: “the lack of lawyers able and willing to represent people whose constitutional rights have been violated.” The New Mexico Civil Rights Commission was aware of this concern when it recommended including a fee-shifting provision in the NMCRA. The Commission’s report noted that “without an attorney’s fees provision, the likelihood of an injured person finding an attorney to take their claim would be low for many cases involving constitutional violations because they are often unlikely to result in substantial recovery.” And the availability of representation is of particular concern in New Mexico, where we have fewer lawyers per capita than most other states and even fewer lawyers serving in our rural areas. We argue that three departures from the federal judiciary’s interpretation of § 1988 are demanded by Section 5’s text and its purpose of securing access to justice for New Mexicans who suffer violations of their state constitutional rights. First, if a court finds that a plaintiff’s lawsuit was a proximate cause of a defendant’s change in conduct, then the plaintiff should be considered to have “prevailed” regardless of whether the change in the defendant’s conduct is judicially ordered. Failing to award attorney fees to lawyers who have catalyzed defendants’ cessation of illegal conduct chills future litigation that seeks injunctive relief. Second, courts should hold settlement provisions that waive attorney fees or provide for only nominal attorney fees to be presumptively void and severable from the other provisions in a settlement agreement. This presumption, however, may be overcome if the party opposing a subsequent fee petition convinces the court that the amount of fees the plaintiff’s lawyer received through the settlement would not disincentivize lawyers from taking similar cases in the future. Civil rights practice in the federal courts makes clear that allowing defendants to condition settlement offers on waivers of attorney fees limits civil rights representation to cases where the potential damages are substantial enough that a lawyer’s expected contingency will cover the hours necessary to effectively litigate these cases. Yet the NMCRA was intended to provide a cause of action for remedying all constitutional violations, not just those that would support a large damages award. Finally, in determining what constitutes a reasonable attorney-fees award, courts should account for the complexity and contingent risk involved in bringing the particular civil rights case. Doing so guarantees that attorneys will be available to remedy constitutional harms and harness the public and expressive value of the courts recognizing the many “minor” constitutional violations that may not make headlines but collectively cause unquantifiable harm to marginalized individuals and communities in New Mexico.
Recommended Citation
Isaac M. Green & Seth E. Montgomery,
All Cases Great and Small: Fufilling the NMCRA's Promise of Attorney Fees,
54
N.M. L. Rev.
385
(2024).
Available at:
https://digitalrepository.unm.edu/nmlr/vol54/iss2/6
