831 F.3d 686 (6th Cir. 2016), 14-4083, Northeast Ohio Coalition for Homeless v. Husted

Docket Nº:14-4083, 14-4084, 14-4132, 14-4133, 15-3295, 15-3296, 15-3380, 15-3381
Citation:831 F.3d 686
Opinion Judge:SUHRHEINRICH, Circuit Judge.
Party Name:THE NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199; COLUMBUS COALITION FOR THE HOMELESS; Plaintiffs-Appellees/Cross-Appellants, OHIO DEMOCRATIC PARTY, Intervenor-Appellee/Cross-Appellant, v. JON HUSTED, in his official capacity as Secretary of the State of Ohio, Defendant-Appellant/Cross-Appellee, S...
Attorney:Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees. Sandhya Gupta, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellees/Cross-Appellants Northeast Ohio Coalition for the Homeless and Ohio Democratic Party. Stephen P. Berzon, ALTSHULER BERZO...
Judge Panel:Before: MERRITT, SUHRHEINRICH, DONALD, Circuit Judges.
Case Date:August 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 686

831 F.3d 686 (6th Cir. 2016)

THE NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199; COLUMBUS COALITION FOR THE HOMELESS; Plaintiffs-Appellees/Cross-Appellants, OHIO DEMOCRATIC PARTY, Intervenor-Appellee/Cross-Appellant,

v.

JON HUSTED, in his official capacity as Secretary of the State of Ohio, Defendant-Appellant/Cross-Appellee, STATE OF OHIO, Intervenor-Appellant/Cross-Appellee

Nos. 14-4083, 14-4084, 14-4132, 14-4133, 15-3295, 15-3296, 15-3380, 15-3381

United States Court of Appeals, Sixth Circuit

August 1, 2016

         Argued April 28, 2016

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:06-cv-00896--Algenon L. Marbley, District Judge.

         ARGUED:

         Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees.

         Sandhya Gupta, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellees/Cross-Appellants Northeast Ohio Coalition for the Homeless and Ohio Democratic Party.

         Stephen P. Berzon, ALTSHULER BERZON LLP, San Francisco, California, for Appellees/Cross-Appellants Service Employees.

         ON BRIEF:

         Zachery P. Keller, Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees.

         Sandhya Gupta, Subodh Chandra, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, Caroline H. Gentry, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Dayton, Ohio, Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, MCTIGUE MCGINNIS & COLOMBO, LLC, Columbus, Ohio, for Appellees/Cross-Appellants Northeast Ohio Coalition for the Homeless and Ohio Democratic Party.

         Stephen P. Berzon, ALTSHULER BERZON LLP, San Francisco, California, for Appellees/Cross-Appellants Service Employees.

         Frederick M. Gittes, Jeffrey P. Vardaro, THE GITTES LAW GROUP, Columbus, Ohio, Barbara D. Bonar, LAW OFFICES OF B. DAHLENBURG BONAR, Covington, Kentucky, Jon M. Greenbaum, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., Freda J. Levenson, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, Kathleen L. Bogas, BOGAS & KONCIUS, P.C., Bingham Farms, Michigan, Jennifer B. Morton, JENNIFER MORTON LAW, PLLC, Knoxville, Tennessee, Jacqueline Greene, FRIEDMAN & GILBERT, Cleveland, Ohio, for Amicus Curiae.

         Before: MERRITT, SUHRHEINRICH, DONALD, Circuit Judges.

          OPINION

          SUHRHEINRICH, Circuit Judge.

         I. OVERVIEW

         Months before the 2012 presidential election, based on a change in state law, Defendants State of Ohio and Secretary of State John Husted (collectively, " Defendants" ) sought to undo a federal consent decree (" Decree" ) that required Ohio to count provisional ballots cast by voters who appeared in the correct polling location but lacked certain identification and further required Ohio to count ballots cast in the right polling place but wrong precinct due to poll-worker error. In two related cases, NEOCH v. Husted ( NEOCH ) and SEIU Local 1 v. Husted ( SEIU Local 1 ),1 Plaintiffs (NEOCH Plaintiffs; SEIU Local 1 Plaintiffs; collectively, " Plaintiffs" ) successfully defended the Decree and obtained an extension of it for one presidential cycle ( NEOCH ) and further obtained statewide preliminary and permanent injunctive relief requiring Ohio to count these votes ( SEIU Local I ).

         This appeal involves three attorneys' fee motions under 42 U.S.C. § 1988 in the two related cases. Specifically, Plaintiffs seek attorneys' fees and costs stemming from (1) their work in 2012 defending the Decree, (2) their work in 2013 obtaining an extension of the Decree, and (3) for the SEIU Plaintiffs, the work performed to obtain a preliminary injunction in 2012 and a permanent injunction in 2013. Using the lodestar method, the district court awarded fees to Plaintiffs in both cases. The district court, however, limited the fees to recover the costs of pursuing fees to 3% of the main case pursuant to the Coulter rule. See Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986) (setting a cap on fees for fees).

         On appeal Defendants argue that the district court abused its discretion because its award--$2 million in fees to twenty-five attorneys for over 6,000 hours in the two cases--was not " reasonable" within the meaning of § 1988. Plaintiffs cross appeal the district court's application of the Coulter rule, claiming that " unusual circumstances" warrants a higher percentage. Plaintiffs, joined by Amici,2 challenge the continued vitality of Coulter in light of Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).

         For the reasons that follow, we AFFIRM the hours and rates awarded by the district court with the exception of the rates awarded to a contingent of attorneys from California. We also abrogate the Coulter 3% cap on fees for fees because the rule is inconsistent with intervening Supreme Court authority.

         II. BACKGROUND

         As the district court and this court recognized, " the consent decree arose from the 'turbulent saga of Ohio's provisional voting regime' that began in 2006 when Ohio enacted comprehensive election reforms." Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580, 584 (6th Cir. 2012) [hereinafter NEOCH ] (per curiam) (quoting No. 2:12-CV-562, R. 67, Plenary Op & Order at 2, 887 F.Supp.2d 761, 766). A detailed history of the Decree can be found in our opinion in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223-24 (6th Cir. 2011). This court has also recounted many of the events that underlie the fee award at issue. See NEOCH, 696 F.3d 580 (affirming the district court's denial of motion to vacate Decree; affirming most of its grant of a preliminary injunction). Because it is essential to determining whether the district court abused its discretion in making its three fee awards, we must give a rather detailed account of the motions and proceedings upon which the awards were based.

         A.

NEOCH Lawsuit and 2010 Consent Decree

         In 2006, the Ohio General Assembly amended Ohio's Election Code to require that voters provide one of several types of identification in order to cast a regular ballot in state and federal elections in Ohio. That same year, the Northeast Ohio Coalition for the Homeless (NEOCH) and the Service Employees International Union Local 1199 brought an action under 42 U.S.C. § 1983 against the Ohio Secretary of State challenging the constitutionality of several provisions of the newly-enacted voter identification and provisional ballot laws. The State of Ohio intervened on behalf of the people of Ohio and the General Assembly (collectively, " Defendants" ). See NEOCH v. Blackwell, 467 F.3d 999, 1002-04 (6th Cir. 2006).

         On April 19, 2010, the district court entered a consent decree (" Decree" ) between the parties. Although it stopped short of finding constitutional violations, the Decree mandated that the Board of Elections not reject provisional ballots cast by voters using only the last four digits of the voter's social security number as identification that, due to poll-worker error, were cast (1) in the correct polling place but wrong precinct, or (2) with nonconforming or incomplete ballot affirmations (SSN-4 voters). The Decree was " final and binding," but any of the parties could file a motion to modify, extend, or terminate the Decree for good cause shown. The Decree was valid through June 30, 2013. See NEOCH, 696 F.3d at 584, 601-02.

         Ohio followed the Decree in the 2010 and 2011 general elections and the 2012 primary.

         B. 2012 Proceedings Relating to the NEOCH

2010 Consent Decree

         1.

NEOCH Motion to Enjoin State Court Proceedings

         In 2011, the Ohio Supreme Court ruled that provisional ballots cast in the wrong precinct must be summarily disqualified if due to poll-worker error even if the voter was not at fault. Ohio ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam). On April 16, 2012, the Ohio Senate President and House of Representatives Speaker Pro Tempore (jointly, " Relators" ) filed a writ of mandamus in the Ohio Supreme Court seeking a declaration that the Decree was inconsistent with Ohio law. In response, on May 8, 2012, the NEOCH Plaintiffs moved in the district court for an injunction under the All Writs Act to prohibit the Relators from collaterally attacking the Decree and, in the alternative, an order to show cause why the Relators should not be held in contempt. The Relators did not oppose the motion, and Defendants took no position.

         On May 9, 2012, the district court held a telephone status conference with counsel for Plaintiffs, the Relators, the State of Ohio, and the Secretary of State. The court ordered an expedited response brief from the Relators. On May 10, 2012, the district court held an additional status...

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