Battle v. Anderson

• Decision Date: 05 May 1982
• Docket Number: No. 72-95-CIV.,72-95-CIV.
• Citation: 541 F. Supp. 1061
• Parties: Bobby BATTLE, et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, v. Park ANDERSON, Larry Meachum, Director, Dept. of Corrections; Board of Corrections For the State of Oklahoma, and Members Thereof, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

541 F. Supp. 1061

Bobby BATTLE, et al., Plaintiffs and United States of America, Plaintiff-Intervenor, v. Park ANDERSON, Larry Meachum, Director, Dept. of Corrections; Board of Corrections For the State of Oklahoma, and Members Thereof, et al., Defendants.

No. 72-95-CIV.

United States District Court, E. D. Oklahoma.

May 5, 1982.

Louis W. Bullock and Carl G. Stevens, Tulsa, Okl., Mary E. Bane, Oklahoma City, Okl., for plaintiffs.

William B. Rogers, Oklahoma City, Okl., for plaintiff counsel.

Jan Eric Cartwright, Atty. Gen., State of Okl. by Robert Nance and Charles Rogers, Asst. Attys. Gen., Oklahoma City, Okl., for defendants.

MEMORANDUM OPINION

BOHANON, District Judge.

Plaintiffs' motion for attorney fees came before this court on March 8, 1982.

The attorneys fee applications herein at issue were initially filed September 25, 1980. The applications sought compensation for the entire period of representation of attorneys Bullock, Stevens, and Bane, except for an interim request of 493 hours during a period from October, 1975, through 1977.¹ The amount of the applications (as amended) had a total base fee request of approximately $280,700, with expenses of approximately $17,300. The applicants also indicated a desire for an enhancement factor of from 40 percent to 100 percent. Thus, the amount of the request at the time of the March 8, 1982, hearing was somewhere between $400,000 and $580,000.

This court's first consideration of these requests resulted in a letter to plaintiffs' counsel dated November 17, 1980. In reviewing the applications, the court stated its surprise as to "the amount of the claims and the long delay in filing them." It was also noted that it was going "to have to follow a new and different policy with reference to representation of this class."²

Then on November 26, 1980, the court sent another letter to counsel for the plaintiffs with the considered statement that in light of the "amounts involved" this matter should be presented to an advisory jury under the provisions of Rule 39(c), Federal Rules of Civil Procedure. Upon consideration of the significant questions involved, the simple procedural hearing originally scheduled for December 5, 1980, was struck and pretrial preparations were directed.³

Due to various intervening issues, appeals, and administrative delays, the matter of attorney fees was postponed until November 23, 1981, when pretrial proceedings were again commenced. It was determined during these proceedings that an advisory jury was not necessary, and hearing was set for March 8, 1982.

At the date of hearing, the total relief sought by the plaintiffs' counsel consisted of payment for:

1. 994 hours expended by Ms. Bane from August, 1972, through March 4, 1982.

2. 874.95 hours expended by Mr. Stevens from December, 1977, through March 4, 1982.

3. 1,732.50 hours expended by Mr. Bullock from December, 1977, to March 4, 1982.

4. 16 hours expended by Mr. Gary Neal as assistant to Mr. Bullock.

5. Out-of-pocket expenses of the American Civil Liberties Union expended in connection with this litigation in the amount of $1,167.90.

6. Out-of-pocket expenses of the ACLU National Prison Project in the amount of $517.74.

7. Out-of-pocket expenses of Ms. Bane in the amount of $121.23.

8. Out-of-pocket expenses of lead counsel during this period of $12,402.93.

9. Out-of-pocket expenses of Carl G. Stevens for the incident period of $2,255.53.

During the hearing of this matter, numerous experts testified regarding the reasonableness of the request for attorney fees. Particularly helpful in this area was the testimony of Mr. Robert S. Baker. Mr. Baker's testimony was persuasive on the prevailing local rates of attorney compensation during the application period.

Having heard the evidence presented, this court is compelled to enter the following findings of fact and conclusions of law.

Findings of Fact

I. General

1. Due to the sheer bulk of the evidence and the complicated nature of this litigation during a period of almost ten years, two devices will be used to organize and present the court's findings.

First, due to the individualized nature of the award to each attorney, the findings will be detailed separately as to each applicant.

2. Second, the historical character of the case dictates that it be classified as consisting of four (4) separate and distinct phases. These phases can be identified not only by the historical landmarks which trigger a new era, but also by the nature of the legal problems encountered during each period.

Historically, Phase I ensues with the filing of the original action in August, 1972, and culminates in the issuance of the court's order of May 30, 1974. Battle v. Anderson, 376 F.Supp. 402 (E.D.Okl.1974). Recognizing this clear historical landmark, this decision has been labeled as Battle I in various legal literature. See, Battle v. Anderson, 594 F.2d 786, 788 (10th Cir. 1979). However, Phase I is not only historically compelling of classification, but it can be characterized in legal terms as a period of pioneering constitutional issues as relating to prison conditions.

Phase II in turn, culminates with the decision known as Battle II rendered June 14, 1977, and affirmed by the Tenth Circuit on October 26, 1977. Battle v. Anderson, 447 F.Supp. 516 (E.D.Okl.1977), affirmed 564 F.2d 388 (10th Cir. 1977). The principal legal difficulty during this period was noncompliance and obstructionism.⁴

Phase III began with the affirmation of Battle II (October, 1977) by the Tenth Circuit and proceeded until March 15, 1979. During this period the court issued a detailed compliance order invoking the Federal Court's broad equitable powers in remedying past constitutional violations. Battle v. Anderson, 457 F.Supp. 719, 734 (E.D.Okl. 1978). This curative order was appealed by the State and it was not reversed, but remanded by the Circuit for the State to have an opportunity to present a remedial plan. This remand took place on March 15, 1979. Battle v. Anderson, 594 F.2d 786 (10th Cir. 1979). The legal issue during this period was substantially different than during Phase I and II. As the court stated in 1978, the issue during this period was compliance.⁵ During this period the legal issues were not novel nor complex. The emphasis here was on discovery and expert opinion on compliance. There was no evidence during this period of obstructionism. The sole issue was that of standards and remedy.

However, this recognition of a new type of legal problem is not to be discounted, but noted and evaluated. As the court said on February 7, 1978:

"There has been a tremendous amount of work and under our judicial system, the advocate system, the court can't operate except through the work of officers of the court, through the work of the lawyers.... Without the lawyers, nothing can be done. The court can't be an advocate. The court can't go out there and muster the evidence and so forth, so it boils itself down to our American system of advocacy, of the lawyers picking up the problems...." (Tr. 48-49).

Phase IV began a tremendous shift of responsibility from the plaintiffs' attorneys' shoulders. On April 19, 1979, the political leaders of both the executive and legislative branches of Oklahoma's state government came voluntarily before the court and pledged themselves to remedying the constitutional problems of the Oklahoma prison system.⁶ During this period the legal problem was not constitutional violation nor that of compliance. The issue was only one of formalization. The skills to be exercised during this period were those of negotiation, not hard legal skills. The task to perform was to reduce to writing jointly affirmed principles with the corresponding obligation of disentanglement. Characteristic of this period is the Stipulation of the Parties Concerning Standards, filed January 22, 1981, and beginning with these words:

"These parties to this litigation, i.e., the plaintiffs, the plaintiff-intervenor, and the defendants, have all agreed that the lawsuit is ready to enter into a new phase, i.e., the submission of the case to a court-appointed monitor who will monitor compliance with the court's prior orders, thus obviating the need for routine compliance hearings."

3. The court determines that, at a minimum, 40 percent of the workload of the case was carried by the Civil Rights Division of the Department of Justice, acting as the plaintiff-intervenor, United States of America.

Adding to this figure the participation and support services rendered by the ACLU, state officers and the National Prison Project of the ACLU, the burden of the workload carried jointly by the plaintiffs' counsel was never in excess of 50 percent.

4. The court finds that the Attorney General of Oklahoma is currently compensated at the rate of $35,000 per year or at approximately $17.50 per hour pure compensation. The court also finds that this figure does not include the normal overhead and risk factors built into private attorney compensation schedules.

5. The court takes judicial notice that it has ordered its Fact Finder, John Henry Albach, Esq., a recognized expert on prison affairs and prison law, to be compensated for his services in this case at a rate of $75 per hour.

Mr. Albach's academic credentials are excellent. He graduated Magna Cum Laude from Tufts University, Medford, Massachusetts, with a Bachelor of Arts in political science and English. He received his law degree from The University of Texas. But more importantly, his qualifications as a prison expert are exceptional. He has been the Executive Director of the Texas Council on Crime and Delinquency, Staff Director of the Joint Committee on Prison Reform of the Texas legislature, and a staff researcher of the Harvard Law School Center for the Advancement of Criminal Justice.

II. Mary E. Bane, Esq.

6. The applicant, Mary E. Bane, graduated from The University of Oklahoma School of Law in 1972 and was...