WASHINGTON, DC — When a Florida court granted naturist Toni Anne Wyner a preliminary injunction assured her and like-minded others that they would be able to stage a nude protest on south Florida’s MacArthur Beach against the then-pending war in Iraq, that was all the victory that Wyner needed to forge ahead with her plans.The injunction allowed Wyner to go ahead with the protest, where she and her peers formed an enormous naked human peace symbol, without interference from local authorities – from Wyner’s perspective, a triumph by any measure.
For Wyner’s attorneys, however, whom lower courts decided were due over $25,000 in legal fees from the state for the work done on the case, the preliminary injunction may turn out to be a somewhat hollow victory.
Florida, along with the governments of 24 other states and the Bush Administration, are challenging the lower court’s ruling, arguing that because the preliminary injunction obtained by Wyner was not a final adjudication of the case, Wyner should not be considered a “prevailing party” under the statutes that govern when legal fees should have to be paid by the losing party in a given lawsuit.
Wyner says she sees a disturbing implication for free speech rights couched in the position adopted by her adversaries, whether or not the issue of the First Amendment is ever raised when the U.S. Supreme Court hears the case (Sole v. Wyner) next week.
Denying the prevailing party fees in such cases “is just another arrogant tactic to deny free speech in a quintessential public forum,” said Wyner, according to the Legal Times. “[J]ust think of all the attorneys who will fall out and not take cases like mine.”
Legal experts interviewed by the Legal Times for its article on the case said that Sole v. Wyner might prove to be the next major front in the ongoing battle over the awarding of legal fees that has been playing out in U.S. courts for decades.
“This could have a very big impact for public interest groups that often find local lawyers to carry the litigation ball,” said Andrew Pincus, a partner at Mayer, Brown, Rowe & Maw. “Those lawyers are going to be a lot more reluctant to take on the cases” if Florida and the other states prevail in the Supreme Court’s review of the case.
Representatives for the state governments involved in the case, on the other hand, caution that if preliminary injunctions and other interim decisions are allowed to result in fee awards, a “considerable drain” on state budgets – budgets that are already stretched too thin, Wyner’s opponents argue.
On the other hand, those that have submitted briefs in the case on Wyner’s behalf argue that in many cases, a preliminary injunction is as far as the case ever gets, prior to a change in statute or change in the factual circumstances underlying a given case.
In a brief authored by Laura Brill of the law firm Irell & Manella and filed in the case on behalf of the Brennan Center for Justice, Brill notes that in voting rights cases, money damages typically are not available and a preliminary injunction may be the entire prize sought in the case.
“A preliminary injunction is often not a prelude to some final relief, but instead represents all or a substantial part of the relief sought by a litigant,” Brill states in the brief. “Indeed, often a preliminary injunction is the only relief that can be secured before the election itself moots the case.”
Wyner told the Legal Times that she won’t be attending the Supreme Court hearing on April 17th and has no intention of demonstrating outside the courthouse, nude or otherwise. She added that when she does go “top-free,” she no longer seeks the blessings of the court, or the state of Florida, to do so.
“The First Amendment is my permit,” Wyner said.
For more information on the case, refer to Tony Mauro’s article for the Legal Times, available via Law.com at: http://www.law.com/jsp/article.jsp?id=1176122644383
