Alberti v. Sheriff of Harris County
Decision Date | 08 October 1987 |
Docket Number | Crim. No. 72-H-1094. |
Parties | Lawrence R. ALBERTI, et al., Plaintiffs, v. SHERIFF OF HARRIS COUNTY, et al., Defendants. |
Court | U.S. District Court — Southern District of Texas |
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James Oitzinger, Gerald M. Birnberg, Williams, Birnberg & Andersen, Houston, Tex., for plaintiffs.
William White, Susman, Godfrey & McGowan, Houston, Tex., for Oitzinger & Birnberg.
Lupe Salinas, Asst. Co. Atty., Houston, Tex., for defendant, Sheriff Johnny Klevenhagen.
Roderick Lawrence, Asst. Co. Atty., Houston, Tex., for defendants, County Com'rs.
Pending before the Court is Plaintiffs' Application for Attorneys' Fees pursuant to 42 U.S.C.A. § 1988.1
This Cause of Action comprises to date fifteen years of protracted litigation before this Court. Plaintiffs filed suit in this Court on August 14, 1972, against members of the Harris County Commissioners Court ("Commissioners Court") and the Harris County Sheriff's Department, alleging numerous violations of their constitutional and statutory rights as the result of Defendants' operations and maintenance of county detention facilities.
On January 26, 1973, the Court granted the Plaintiffs' Motion to Designate a Class. On February 4, 1975, counsel signed and this Court approved a Consent Judgment by which Defendants generally agreed to bring presently existing facilities and operations into compliance with federal and state standards. See U.S. Const.Amends. I; V; VI; VIII; XIV. This Court expressly retained jurisdiction to issue any and all interim orders necessary to effectuate compliance with the Consent Judgment. Thereafter, compliance with the Consent Decree was questioned by the Plaintiffs, and compliance hearings were conducted by the Court resulting in this Court's issuance of additional remedial orders. Counsel for the Plaintiff class, Attorney James Oitzinger, has represented the Plaintiff class since the inception of the litigation. Mr. Oitzinger also served as the head of the Office of the Ombudsman pursuant to this Court's Order of December 16, 1975, until the Court terminated the position and appointed Special Masters on April 28, 1987. Counsel for the Plaintiffs, Attorney Gerald M. Birnberg, became involved in the instant action in mid-August 1975. Mr. Birnberg has served as trial counsel in the action at bar from mid-August 1975 until the present. Mr. Birnberg also served as a member of the Office of the Ombudsman pursuant to this Court's directives from December, 1975 until the appointment by this Court of the Special Masters.
The Court conducted evidentiary hearings on the attorneys' fees issue from November 11, 1986 to November 26, 1986 and on December 2, 1986 until December 3, 1986. The parties presented evidence by live testimony, exhibits, depositions and affidavits.
Pending before the Court are numerous petitions, both pre-hearing and post-hearing, submitted by counsel for services rendered and for expenses incurred in connection with the present litigation from its inception in 1972 until March 1, 1987. For procedural and logistical reasons which will be elaborated upon hereafter in this Opinion, the Court will not consider applications of Plaintiffs' counsel for interim attorneys' fees after that date. These issues will be addressed at an appropriate time to be designated by the successor judge in this case.
On October 21, 1986, Defendants filed a Motion to Deny Plaintiffs' Attorneys' Retroactive 42 U.S.C. § 1988 Claim, therein asserting for the first time that attorneys' fees should be denied to Plaintiffs' counsel for all time expended prior to October 19, 1976 (the effective date of the Civil Rights Attorneys' Fee Awards Act of 1976, (the "Act")). The rationale urged in support of the Motion was that the February 4, 1975 Consent Decree and/or the December 16, 1975 Memorandum and Opinion effectively terminated the litigation as of those respective dates, thereby resulting in the case not being "pending" on the effective date of the Act.
Previously, all opposition of the Defendants had focused solely "on the basis that there is evidence to controvert the number of hours claimed by Plaintiff as being reasonably required and reasonably expended to prevail on the merits of the case," and that "the hourly rate claimed by Plaintiff is excessive...." Such position had been adhered to even after the Court Order of May 27, 1986 which directed Defendants to "give the Plaintiffs the specific contentions of the defense" by June 27, 1986. More precisely, the 37-page Contentions of Defendants in Opposition to Attorneys' Fees Petition filed July 2, 1986 contained no hint of a "pendency" argument. As indicated above, this contention first surfaced on October 21, 1986, almost four months after the Court imposed deadline of June 27, 1986 and virtually on the eve of the November hearings.
While the argument can be persuasively made that Defendants should be precluded from raising the "pendency" argument at all in this untimely fashion, Stewart v. Lubbock County, Texas, 767 F.2d 153, 157 (5th Cir.1985), due to their unexplained failure for more than a year to reveal this new and novel defense despite repeated court orders, this Court opts to address the issue in view of the magnitude and complexity of the lawsuit as well as the uniqueness of the circumstances involved.
Defendants concede that C...
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...undesirability of the case." Welch and plaintiffs' other attorneys, Tara Walker and Terry Wallace, cite Alberti v. Sheriff of Harris County, 688 F.Supp. 1176, 1199 (S.D.Tex. 1987), aff'd in part, rev'd in part, Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.); modified on reh., 903 F.2d 352 ......
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