School bows in prayer case N.J. litigants find road to high court is costly to travel

September 09, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

BLACKWOOD, N.J. -- Highland High School's three-year court case began as a dispute over graduation prayers. It ended as a civics lesson about how the nation's highest tribunal is out of reach for many Americans.

The school board in this Philadelphia suburb reluctantly decided this summer that it could not afford to appeal its case to the Supreme Court. Even though the school prayer issue as it unfolded here had attracted national attention and seemed to present an ideal constitutional test case, the board decided the price tag was simply too high.

The dispute, which began when Highland seniors voted in 1993 to include prayers in their graduation ceremony and the American Civil Liberties Union sued to block them, already cost $75,000 and would likely have taken at least another $30,000.

For a modest-size school district searching anxiously for cash, that was deemed too much.

"We felt we had carried the cross as long as we could carry it," says John D. Wade of Laurel Springs, the school board's lawyer.

Blackwood is not alone in forgoing a trip to the top of legal Olympus. While the Supreme Court is theoretically open to any American with a legal grievance, the reality is that only a fraction of cases that have merit ever reach the court because of the cost and commitment required.

Millions of lawsuits develop in the United States every year, but only about 5,000 are taken to the court and, of those, only 75 to 80 get heard and decided by the justices.

Those that do reach the bench are high-priced, indeed. Even a fairly straightforward case can cost $100,000 or more to make its trip through the highest court. And that is the bill only for the Supreme Court phase; it does not include the costs involved in getting there.

The Virginia Military Institute, for example, fought a six-year legal battle to keep women out of its cadet ranks. By the time it lost before the Supreme Court in late June, the college had run up an estimated $14 million legal bill for VMI alumni to pay.

What makes these cases so expensive? "It's lawyer time," says Kenneth S. Geller, a Washington attorney and experienced Supreme Court advocate. Even in a simple case, Geller said, "you would expect to have at least two lawyers -- one senior, one junior" -- to write a petition for review. On a case that is big in scope and impact, lawyer time multiples. Geller, for example, joined recently in preparing a petition to the court in an asbestos industry fight. The names of eight lawyers from three law firms were listed on the document, and that meant that every one had had some input into it -- and billed time for doing so.

Such a petition, Geller says, "is not something that every lawyer can prepare, but rather is highly specialized." The document "must not only tell the court why you're right" about the legal issue, but also "why the court should hear it."

There are only a few law firms -- no more than 10, he estimates -- that have a significant group of Supreme Court experts. Those lawyers generally charge about $300 an hour.

One Supreme Court advocate with a lofty reputation, Harvard law professor Laurence H. Tribe, may be in a class virtually by himself for the level of his fees: $750 and up per hour. He was considerably embarrassed by revelations in the Wall Street Journal two years ago that he had quoted to one potential client a fee of $6.5 million if he should get its case to the Supreme Court and win.

Sometimes, if a case looks like a hot prospect for Supreme Court review, some highly experienced legal talent may be available for free.

But help can come with strings attached. In the school prayer fight in Blackwood, members of the board for the Black Horse Pike Regional School District checked to see if they could get some free legal assistance or financial support from activist groups promoting student prayers.

It found some interest, according to one board member, but only on condition that the outside group take over the entire case -- a demand the board and its attorney were not willing to meet.

For the New Jersey school district, for VMI, or even for a corporate giant thinking about going to the Supreme Court, any money committed to a final appeal to the justices has to come from somewhere, and that often turns an appeal into a trade-off among priorities.

Ann MacLean Massie, a constitutional law professor at Washington and Lee University, VMI's neighbor in Lexington, Va., and a critic of VMI's court fight, remarked: "I can't help but think the money could have been better spent on conversion" of the school to accommodate women. "I would think now they would like to have it [the money] back."

In Blackwood, the school board concluded in July that their priorities favored education, not litigation.

"Two years ago, we were a wealthier school district, with a surplus of $1.5 million," says Wade, the board attorney. "We now have a zero surplus. Every dollar of expenditure has to come from somewhere."

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