Berrios v. Rybacki, 1-91-0685

• Decision Date: 29 September 1992
• Docket Number: No. 1-91-0685,1-91-0685
• Citation: 236 Ill.App.3d 140,603 N.E.2d 659
• Parties: , 177 Ill.Dec. 589 Francisco A. BERRIOS, Plaintiff-Appellee, v. Ray J. RYBACKI, Chairman, Illinois Industrial Commission, Calvin Tansor, Ted Black, Jr., Richard Gilgis, Barbara Sherman, Alvin Cooke, and Douglas Holland, Commissioners of the Illinois Industrial Commission, and Zenia Goodman, Arbitrator of the Illinois Industrial Commission, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 659

603 N.E.2d 659

236 Ill.App.3d 140, 177 Ill.Dec. 589

Francisco A. BERRIOS, Plaintiff-Appellee, v. Ray J. RYBACKI, Chairman, Illinois Industrial Commission, Calvin Tansor, Ted Black, Jr., Richard Gilgis, Barbara

Sherman, Alvin Cooke, and Douglas Holland, Commissioners of

the Illinois Industrial Commission, and Zenia Goodman,

Arbitrator of the Illinois Industrial Commission,

Defendants-Appellants.

No. 1-91-0685.

Appellate Court of Illinois,

First District, Second Division.

Sept. 29, 1992.

Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago (Deborah L. Ahlstrand, of counsel), for defendants-appellants.

Thomas R. Challos, Jr., and Marshall E. Winokur, Ltd., Chicago (Thomas Challos, and Marshall Winokur, of counsel), for plaintiff-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

The Illinois Industrial Commission, chairman, members and an arbitrator (collectively Commission), appeal the circuit court's award of attorneys' fees to plaintiff's lawyers for having successfully secured the invalidation by this court of an administrative rule in Berrios v. Rybacki (1989), 190 Ill.App.3d 338, 137 Ill.Dec. 706, 546 N.E.2d 651, appeal denied (1990), 129 Ill.2d 561, 140 Ill.Dec. 668, 550 N.E.2d 553.

The Commission questions whether a multiplier may be applied to calculate the attorneys' fees awarded under the Illinois Administrative Procedure Act (APA) (Ill.Rev.Stat.1987, ch. 127, pars. 1001-1, et seq.) and, assuming arguendo that the application of a multiplier is permissible under the APA, whether it was an abuse of discretion to utilize a multiplier in this case. Also challenged is the circuit court's exercise of discretion in allowing allegedly duplicate hours and an hourly rate above that usually charged by plaintiff's attorneys.

Francisco A. Berrios, plaintiff, was injured while employed in late 1985 and early 1986. He filed two worker's compensation claims with the Commission. The claims were consolidated and scheduled for trial on October 23, 1987, before a commission arbitrator. The latter dismissed the claims for want of prosecution when plaintiff and his attorneys failed to appear before her between 8:45 a.m. and 9:15 a.m. in order to take part in a new procedure called "trial order drawing." The arbitrator told plaintiff's counsel she was acting under the Commission's "Chicago Arbitration Rules" (Chicago Rules).

Plaintiff did not refile or reinstate his claim, nor did he appeal the dismissals to the Commission. Instead, on November 12, 1987, he filed a declaratory judgment action against the Chairman of the Commission, several commissioners and the arbitrator, challenging the Chicago Rules' validity, and claiming the rules were adopted contrary to the procedures prescribed by the APA. Plaintiff also asserted that if the Chicago Rules were invalidated, he should be awarded reasonable costs and attorney's fees under then designated section 14.1(b) of the APA. Ill.Rev.Stat.1987, ch. 127, par. 1014.1 (section 14.1(b)) (now par. 1010-55(c)).

Following extensive discovery, the Commission moved for summary judgment, arguing that the Chicago Rules were not "rules" the adoption of which required compliance with the APA and that even if the procedures were "rules" under the APA, they fell within the exception for rules concerning an agency's internal management. In deciding cross-motions for summary judgment on August 31, 1988, the circuit court granted the Commission's motion for summary judgment. The court found that the chairman was authorized to issue Commission internal management directives in a manner consistent with existing rules and statutes, of which the directive at issue was one.

Plaintiff appealed. While his case was pending, he settled his worker's compensation claim. On appeal, this court agreed that plaintiff's individual challenge to the Chicago Rules became moot upon settlement; however, we permitted the appeal to proceed under the public interest exception to mootness. (Berrios, 190 Ill.App.3d at 344, 137 Ill.Dec. 706, 546 N.E.2d 651.) We reversed, finding the internal management exception applied only to agency statements not affecting private rights or procedures available to persons or entities outside the agency. (Berrios, 190 Ill.App.3d at 344-45, 137 Ill.Dec. 706, 546 N.E.2d 651.) We also found that the rule at issue did affect private rights and procedures and, therefore, should have been published in the Illinois Register with notice to the public, comments invited or hearings held, and filed with the Secretary of State. (Ill.Rev.Stat.1987, ch. 127, pars. 1005, 1005.01.) We directed, upon remand, the entry of summary judgment in plaintiff's favor, solely as it relates to the public interest, as well as the circuit court's consideration of restraining enforcement of the Chicago Rules locally and statewide, and for such further relief as may be necessitated under plaintiff's complaint. Berrios, 190 Ill.App.3d at 348-49, 137 Ill.Dec. 706, 546 N.E.2d 651.

The circuit court entered an order following the remand instructions on March 19, 1990, premised upon certain stipulations and agreements between the parties. In substance, it was agreed (1) the Chicago Rules (except for one modification) would remain in force pending the promulgation of new rules; (2) certain claimants whose cases were dismissed pursuant to Chicago Rules would have the opportunity to reinstate their claims; (3) the Commission would post and publish notices regarding reinstatement of cases; (4) the chairman of the Commission would schedule public hearings regarding the adoption, amendment or repeal of previously (properly) promulgated rules; and (5) plaintiff's attorneys are entitled to fees and costs for institution of the action as provided by the APA. Pursuant to the agreement, the Commission endeavored to reinstate over 100 cases.

On June 29, 1990, plaintiff's attorneys Thomas R. Challos, Jr. and Marshall E. Winokur (sometimes petitioners) each filed their first petition for attorney's fees and costs. From October 23, 1987, through June 21, 1990, Challos claimed 284.75 hours of work spent on plaintiff's lawsuit and $1,801.81 in expenses. From October 23, 1987 to June 20, 1990, Winokur claimed 220.90 hours and $380.50 in expenses attributed to plaintiff's case. Included within the time frame were the original circuit court proceedings, the appeal and part of the activity on remand. Neither attorney claimed an hourly rate in their initial petitions.

On August 16, 1990, petitioners filed a joint petition regarding the prospective attorneys' fee award, claiming that under the APA reasonable expenses and attorney's fees should include a "lodestar" ¹ of $235 per hour, to be weighted by a "multiplier" of three to reflect the contingent nature of the action and the public benefit. The public benefit was identified as the reinstatement of more than 100 dismissed workers' compensation cases.

On September 6, 1990, the Commission objected to the attorneys' fee request on three bases. First, certain hours claimed were either duplicative or inappropriately claimed; second, the hourly rate requested was not reasonable, where both attorneys customarily charge $150 per hour; and third, the use of a multiplier under section 14.1(b) was inappropriate.

On October 22, 1990, the circuit court held a hearing on the fee petitions. Petitioners called two expert witnesses and testified themselves as witnesses.

William J. Harte, an attorney licensed to practice in Illinois since 1959, was called as an expert. Harte testified that he knew both attorneys, considered their reputations to be exemplary, and recognized their abilities in handling complex litigation. He asserted that "what one would expect a rate to be charged by a person of the competency of the petitioners and other lawyers in addressing this kind of litigation" would be the $235 hourly rate requested as a lodestar.

In regard to the use of a multiplier, Harte stated:

"Where you have a rate fixed as a result of statutory authority and where you have the compensation being paid by the State here * * * and where you do not have a specific fund from which the fee can be obtained, that is, from the class members who actually experienced the benefit, the question becomes sharper in my view."

He concluded, however, an increase by a multiplier of three was appropriate due to the case being contingent and risky against a government entity, the kind of case which is lost more often than won, the "extreme" competence of opposing counsel, and the public benefit obtained by other claimants whose cases were reinstated.

On cross-examination, Harte acknowledged that none of the cases upon which he relied regarding fee awards were brought pursuant to the APA. He also asserted that he never received a multiplier in a non-class action suit. He considered the present case to be a class action request, however, despite the absence of such allegations in the pleadings and lack of class certification, because the case fell into the public interest exception to mootness.

Arthur Susman, an attorney licensed to practice in Illinois since 1959, specializing in class actions, testified regarding hourly rates. In his opinion, the fair and reasonable hourly rate for attorneys similar to those in the present case, complex litigation, would be $235 per hour with a multiplier of three. Susman was of the opinion that attorney's fees under the APA for this case should be awarded as in class action suits because the case benefitted more than one person. Additionally, a multiplier was justified due to the contingent nature of the cause. Susman added that the multiplier should be applied only until the time the suit became noncontingent, which was in March of 1990 upon remand. He urged that a multiplier was appropriate in cases against a public body because of the great difficulty in litigating against the government and because of the high risk of...