This summer, we reported that Genoa Charter Township prevailed in a lawsuit filed by Livingston Christian Schools (LSC), which claimed that the Township violated RLUIPA’s substantial burden provision, the First Amendment to the U.S. Constitution, and the Fourteenth Amendment’s substantive due process protection. Although the Township denied LSC’s application for a permit to operate its proposed religious school, the court granted the Township’s motion for summary judgment on all claims.
While the court’s order denying attorneys’ fees to the Township is not particularly surprising, the order is succinct reminder of the different standards applied to plaintiffs and defendants in a RLUIPA action. According to 42 U.S.C. § 1988 (b):
In any action or proceeding to enforce a provision of … the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.] … the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee….
(emphasis added). Generally, as the court noted, a prevailing defendant may only recover attorneys’ fees if a “plaintiff’s action was frivolous, unreasonable, or without foundation…” This is, of course, a high bar to recovery – much higher than a prevailing plaintiff, which may obtain attorneys’ fees, within the court’s discretion, upon prevailing on a RLUIPA claim. With this difference in standards for fee recovery, it is easy to see why, in many cases, RLUIPA defendants are motivated to negotiate a settlement in the early stages of a dispute. The policy behind requiring defendants to meet a higher fee-recovery burden is to prevent a “chilling” effect on potential plaintiffs’ claims and their access to the courts caused by potential liability for substantial legal fees.
The Court’s order in this case is also interesting in terms of how cases in the Sixth Circuit might define a “substantial burden.” In describing the reasonableness of LSC’s claims, the court noted that “the substantial burden standard, however, is not well established in the Sixth Circuit. While this court found its reasoning persuasive, Living Water is an unpublished decision.” What is, then, the substantial burden standard in the Sixth Circuit? At least in the prisoner context, the Sixth Circuit has relied on Living Water Church of God v. Charter Township of Meridian (6th Cir. 2007) to supply the substantial burden framework. See Haight v. Thompson, No. 13-6005 (6th Cir. 2014) (“When prison officials ‘place[ ] substantial pressure on an adherent to modify his behavior and to violate his beliefs, or ‘effectively bar’ his sincere faith-based conduct,…they necessarily place a substantial burden on it.”) (citations omitted).