Civil rights litigation is vitally important. But it is neither easy nor cheap. It is often a war of attrition between a plaintiff with limited resources and a taxpayer-funded government defendant. In light of this funding imbalance, many government defendants fight even the most meritorious claims tooth and nail in hopes of outlasting plaintiffs and their attorneys. For this reason, it is not uncommon for even the simplest civil rights cases to drag on for years.
Fortunately, civil rights statutes like the Religious Land Use & Institutionalized Persons Act (RLUIPA) lessen the imbalance by providing prevailing plaintiffs the right to recover their attorneys’ fees from the government defendant. These fee-shifting provisions are intended to incentivize private attorneys to take meritorious civil rights cases and deter government bodies from fighting meritorious claims. However, many government defendants remain undeterred.
For example, for years now we have represented the Chabad Lubavitch of Litchfield in a RLUIPA case against the Borough of Litchfield, Connecticut. After years of hard-fought litigation, we prevailed at trial. The court then granted the Chabad an attorney-fee award of over $700,000 dollars. While such a significant attorney fee award would be enough to convince most defendants to give up, it was not enough to dissuade the Borough from continuing to fight. The Borough and its Historic District Commission filed an appeal with the Second Circuit Court of Appeals and argued that the Chabad was not a “prevailing party” and was not entitled to its attorneys’ fees.
In June 2019, Dan Dalton, with the help of Adel Nucho, briefed and argued the appeal. Just two months later, the Court of Appeals ruled in the Chabad’s favor and sent the case back to the District Court for entry of the judgment. Once the case was back before the District Court, we had to file a second fee petition to recover the additional fees incurred defending the fee award on appeal. On March 31, 2020, the District Court added nearly $100,000 in attorneys’ fees, costs and interest to the existing fee award of over $700,000.
Nevertheless, the Borough persisted. Because the Borough would not or could not write a check to cover the fee award, we had to file an another motion seeking a court order requiring the Borough to tax its residents to pay for it.
Thankfully, this morning the District Court granted our motion and ordered the Borough “to ensure that the Borough’s budget for the upcoming fiscal year includes an expenditure to satisfy the judgment of the court and to set the mill rate at a level necessary to satisfy the Court’s judgment in this case.” In short, the residents of the Borough will now be taxed to pay for the losing battle Borough officials waged against the Chabad for over a decade. Rather than accommodate the Chabad’s religious exercise at no cost to the Borough, now Borough officials must raise taxes on its residents to pay the Chabad’s attorney’s fees.
While this case is yet another reminder of how RLUIPA helps level the playing field for religious institutions in the land use and zoning context, it is also reminder of the importance of retaining counsel that knows how to make municipalities pay. It is our hope that this case and others we have handled will encourage other municipalities to respect the rights of religious institutions and understand the high price they could pay for not doing so.
Free Church Land Use and Zoning Guide
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