LITIGANTS in some cases taken before the courts

 LITIGANTS I n some cases taken before the courts, the litigants are individuals, whereas in other cases one or more of the litigants may be a government agency, a corporation, a union, an interest group, or a university. What motivates a person or group to take a grievance to court? In criminal cases the answer to this question is relatively simple. A state or federal criminal statute has allegedly been violated, and the government prosecutes the party charged with violating the statute. In civil cases the answer is not quite so easy. Although some persons readily take their grievances to court, many others avoid this route because of the time and expense involved.

 Political scientist Phillip Cooper points out that judges are called upon to resolve two kinds of disputes: private law cases and public law controversies. Private law disputes are those in which one private citizen or organization sues another. In public law controversies, a citizen or organization contends that a government agency or official has violated a right established by a constitution or statute. In Hard Judicial Choices, Cooper writes that “legal actions, whether public law or private law contests, may either be policy oriented or compensatory.” A classic example of private, or ordinary, compensation-oriented litigation is when a person injured in an automobile accident sues the driver of the other car in an effort to win monetary damages as compensation for medical expenses incurred. 

This type of litigation is personal and is not aimed at changing governmental or business policies. Some private law cases, however, are policy oriented or political in nature. Personal injury suits and product liability suits may appear on the surface to be simply compensatory in nature but may also be used to change the manufacturing or business practices of the private firms being sued. 

A case litigated in North Carolina provides a good example. The case began in 1993 after a five-year-old girl got stuck on the drain of a wading pool after another child had removed the drain cover. Such a powerful suction was created that, before she could be rescued, the drain had sucked out most of her large and small intestines. As a result, the girl will have to spend about 11 hours per day attached to intravenous feeding tubes for the rest of her life. In 1997 a jury awarded the girl’s family $25 million in compensatory damages and, before the jury was to have considered punitive damages, the drain manufacturer and two other defendants settled the case for $30.9 million. The plaintiff’s attorney said 

that the lawsuit revealed similar incidents in other areas of the country and presented a stark example of something industry insiders knew but others did not. Not only did the family win its lawsuit, but the North Carolina legislature also passed a law requiring multiple drains to prevent such injuries in the future. Most political or policy-oriented lawsuits, however, are public law controversies. That is, they are suits brought against the government primarily to stop allegedly illegal policies or practices. They may also seek damages or some other specific form of relief.

 A case decided by the U.S. Supreme Court, Lucas v. South Carolina Coastal Council, provides a good example. South Carolina’s Beachfront Management Act forbade David H. Lucas from building single-family houses on two beachfront lots he owned. A South Carolina trial court ruled that Lucas was entitled to be compensated for his loss. The South Carolina Supreme Court reversed the trial court decision, however, and Lucas appealed to the U.S. Supreme Court. 

The High Court ruled in Lucas’s favor, saying that if a property owner is denied all economically viable use of his or her property, a taking has occurred and the Constitution requires that he or she get compensation. Political or policy-oriented litigation is more prevalent in the appellate courts than in the trial courts and is most common in the U.S. Supreme Court. 

Ordinary compensatory litigation is often terminated early in the judicial process because the litigants find it more profitable to settle their dispute or accept the verdict of a trial court. However, litigants in political cases generally do little to advance their policy goals by gaining victories at the lower levels of the judiciary. Instead, they prefer the more widespread publicity that is attached to a decision by an appellate tribunal. Pursuing cases in the appellate courts is expensive. Therefore, many lawsuits that reach this level are supported in one way or another by interest groups.

INTEREST GROUPS IN THE JUDICIAL PROCESS Although interest groups are probably better known for their attempts to influence legislative and executive branch decisions, they also pursue their policy goals in the courts. Some groups have found the judicial branch to be more receptive to their efforts than either of the other two branches of government. Interest groups that do not have the economic resources to mount an intensive lobbying effort in Congress or a state legislature may find it much easier to hire a lawyer and find some constitutional or statutory provision upon which to base a court case. Likewise, a small group with few registered voters among its members may lack the political clout to exert much influence on legislators and executive branch officials. Large memberships and political clout are not prerequisites for filing suits in the courts,

 however. Interest groups may also turn to the courts because they find the judicial branch more sympathetic to their policy goals than the other two branches. Throughout the 1960s interest groups with liberal policy goals fared especially well in the federal courts. In addition, the public interest law firm concept gained prominence during this period. The public interest law firms pursue cases that serve the public interest in general — including cases in the areas of consumer rights, employment discrimination, occupational safety, civil liberties,

 and environmental concerns. In the 1970s and 1980s conservative interest groups turned to the federal courts more frequently than they had before. This was in part a reaction to the successes of liberal interest groups. It was also due to the increasingly favorable forum that the federal courts provided for conservative viewpoints. Interest group involvement in the judicial process may take several different forms depending upon the goals of the particular group. However, two principal tactics stand out: involvement in test cases and presentation of information before the courts through “amicus curiae” (Latin, meaning “friend of the court”) briefs.

Test Cases Because the judiciary engages in policy making only by rendering decisions in specific cases, one tactic of interest groups is to make sure that a case appropriate for obtaining its policy goals is brought before the court. In some instances this means that the interest group will initiate and sponsor the case by providing all the necessary resources. The best-known example of this type of sponsorship is Brown v. Board of Education (1954).

 In that case, although the suit against the Board of Education of Topeka, Kansas, was filed by the parents of Linda Brown, the National Association for the Advancement of Colored People (NAACP) supplied the legal help and money necessary to pursue the case all the way to the Supreme Court. Thurgood Marshall, who later became a U.S. Supreme Court justice, argued the suit on behalf of the plaintiff and the NAACP. As a result, the NAACP gained a victory through the Supreme Court’s decision that segregation in the public schools violates the equal protection clause of the Fourteenth Amendment.

Interest groups may also provide assistance in a case initiated by someone else, but which nonetheless raises issues of importance to the group. A good example of this situation may be found in a freedom of religion case, Wisconsin v. Yoder. That case was initiated by the state of Wisconsin when it filed criminal complaints charging Jonas Yoder and others with failure to send their children to school until the age of 16 as required by state law. Yoder and the others, members of the Amish faith, believed that education beyond the eighth grade led to the breakdown of the values they cherished and to “worldly influences on their children.”

 An organization known as the National Committee for Amish Religious Freedom (NCARF) came to the defense of Yoder and the others. Following a decision against the Amish in the trial court, the NCARF appealed to a Wisconsin circuit court, which upheld the trial court’s decision. An appeal was made to the Wisconsin Supreme Court, which ruled in favor of the Amish, saying that the compulsory school attendance law violated the free exercise of religion clause of the First Amendment. Wisconsin then appealed to the U.S. Supreme Court, which on May 15, 1972, sustained the religious objection that the NCARF had raised to the compulsory school attendance laws. 

As these examples illustrate, interest group involvement in litigation has focused on cases concerning major constitutional issues that have reached the Supreme Court. Because only a small percentage of cases ever reaches the nation’s highest court, however, most of the work of interest group lawyers deals with more routine work at the lower levels of the judiciary.

 Instead of fashioning major test cases for the appellate courts, these attorneys may simply be required to deal with the legal problems of their groups’ clientele. During the civil rights movement in the 1950s and 1960s, for example, public interest lawyers not only litigated major civil rights questions; they also defended African Americans and civil rights workers who ran into difficulties with the local authorities. These interest group attorneys,

 then, performed many of the functions of a specialized legal aid society: They provided legal representation to those involved in an important movement for social change. Furthermore, they performed the important function of drawing attention to the plight of African Americans by keeping cases before the courts.

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