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Governor’s legal bill in unemployment benefits case exposes imbalance between who can afford justice and who cannot | COMMENTARY

Maryland will pay the large law firm of Venable LLP roughly $382,000 — a discounted rate — for its failed efforts to defend Gov. Larry Hogan’s unlawful attempt to prematurely terminate federal unemployment benefits.

No doubt, the case involved significant legal work. There was the unsuccessful attempt to remove the case to federal court, followed by a hearing in state circuit court. Then, the court issued a temporary restraining order against the governor, which led to more legal motions and appeals to both the Court of Special Appeals and the Court of Appeals, all futile. Ultimately, after more rounds of legal briefings and a lengthy hearing, a judge found that the termination of benefits would likely violate Maryland’s unemployment insurance law, pointing out that the administration’s sometimes “backward” argument had misstated legal doctrine, and ignored “almost completely” important statutory language. At that point, the governor’s representatives decided against further appeals, letting the decision stand (though Venable still billed for work on the appeal that never happened).

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And now the attorneys want to be paid for their zealous, albeit completely fruitless advocacy. And they likely will, possibly through reductions to the budget of Maryland Attorney General Brian Frosh, who apparently refused to represent the governor on principle.

We attorneys who represented the plaintiffs trying to keep their benefits — people who were already struggling from lost wages and, in some cases, on the verge of homelessness — will not be paid for our equally time-consuming and wholly successful work, however. People of limited means cannot pay counsel to enforce their rights; rather, they often rely on the availability of pro bono attorneys who donate their time; they are usually few and far between.

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Indeed, were it not for the willingness of Gallagher, Evelius & Jones to take on this significant matter for free, the governor’s illegal effort might never have been challenged, and the federal unemployment benefits provided for pandemic relief, terminated too soon. Their victory resulted in well over a billion dollars in federal funding to Maryland and ensured that nearly 200,000 Marylanders continued to be eligible for federal benefits through Labor Day.

And yet only the administration’s private attorneys will be paid.

The public release of their invoice by Maryland’s Office of the Attorney General is jarring not so much because of the amount billed but because it plainly exposes the imbalance between who likely can afford justice and who cannot.

It doesn’t have to be this way. “Fee-shifting” statutes allow successful plaintiffs to seek reasonable attorneys’ fees from defendants in cases where they prevail. These statutes recognize that many people have small monetary claims and cannot afford to pay an attorney. In fact, oftentimes violations of statutory or constitutional rights are remedied not by a large monetary award, but — as in this case — by changes in behavior or “injunctive relief.” Fee-shifting statutes help level the playing field by promoting access to the courts to remedy violations borne by plaintiffs who could not find a private attorney otherwise. It is important to note that fees are available only if a plaintiff actually prevails, and even then they receive only reasonable fees as determined by a court upon a fee petition.

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Federal law likewise allows for attorneys’ fees to prevailing plaintiffs for violations of federal laws or the U.S. Constitution. And Maryland has more than 80 fee-shifting statutes on the books. Yet the state lacks any fee-shifting for plaintiffs who successfully hold the state accountable for violations of the Maryland Declaration of Rights or many important state laws — like the unemployment insurance law.

Despite nearly a decade of advocacy, a fee-shifting bill first introduced in the Maryland General Assembly in 2013 faced significant opposition from local governments, was significantly narrowed and then failed to pass even after a favorable committee report.

If government actors violate the constitutional or statutory rights of Marylanders in the future, will there be any avenue open to Marylanders for meaningful redress? It’s impossible to tell. The invoice by Venable LLP demonstrates that litigation is costly, and it reveals an unjust imbalance when it comes to enforcing important rights. Here, because of the tremendous largesse of Gallagher Evelius & Jones, the plaintiffs were able to stop the unlawful actions of the Hogan administration. But we shouldn’t leave justice to chance.

Sally Dworak-Fisher (dworak-fishers@publicjustice.org) and Debra Gardner (gardnerd@publicjustice.org) are attorneys with the Public Justice Center; they were among the plaintiffs’ counsel in “D.A. et al. v. Hogan, et al.”

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