Charles v. Daley

Decision Date22 July 1988
Docket NumberNos. 86-1552,86-3137,s. 86-1552
Citation846 F.2d 1057
Parties, 56 USLW 2683 Allan G. CHARLES, M.D., et al., Plaintiffs-Appellees, v. Richard M. DALEY, State's Attorney of Cook County, Illinois, et al., Defendants, and Eugene F. Diamond, M.D., Estate of Jasper F. Williams, M.D., and David K. Campbell, Intervening Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Colleen K. Connell, Roger Baldwin Found. of ACLU, Inc., Chicago, Ill., for plaintiffs-appellees.

Edward R. Grant, Chicago, Ill., for interviewing defendants-appellants.

Before CUMMINGS, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Intervening defendants-appellants (hereinafter "intervenors") appeal from two orders of the district court awarding plaintiffs-appellees ("plaintiffs") an aggregate sum of $312,842.20, of which $212,310.35 was assessed against various intervenors, as costs and attorneys' fees pursuant to 42 U.S.C. Sec. 1988. The litigation underlying the district court's fee award involves the plaintiffs' nearly six-year battle in the district court, this court and the Supreme Court against the intervenors and various governmental officials of the State of Illinois to set aside S.B. 47, the Illinois Abortion Act of 1975, enacted as amended October 30, 1979. This case presents an issue of first impression in this circuit: Whether private intervening parties who have not been found liable for a violation of plaintiffs' constitutional rights pursuant to 42 U.S.C. Sec. 1983, may nevertheless be held liable for an award of attorneys' fees under 42 U.S.C. Sec. 1988. 1 We affirm the assessment of costs and fees against the intervenors but adjust downward the fees imposed by the district court for the Supreme Court phase of this litigation.


The plaintiffs in this action are Illinois physicians who provide a full range of family planning services, including abortions, to their patients. On October 30, 1979, the plaintiffs brought suit under 42 U.S.C. Sec. 1983 challenging the constitutionality of the Illinois Abortion Act on behalf of their female patients. The Act was an attempt by the state legislature to comprehensively regulate the practice of performing abortions and included provisions subjecting physicians to criminal prosecution for violations of what this court previously termed its "daedalian" prescriptions. See Charles v. Carey, 627 F.2d 772, 775 (7th Cir.1980) (Pell, J.). The plaintiffs sought injunctive and declaratory relief against those Illinois officials charged with implementing and enforcing the Act--the Illinois Attorney General, the Director of Illinois' Department of Public Health and the State's Attorney of Cook County, who was sued both in his official capacity and as a representative of the defendant class of all Illinois State's Attorneys. On October 31, 1979, the district court granted plaintiffs' motion for a temporary restraining order barring enforcement of the entire Act as amended.

Within days of the entry of the district court's restraining order, intervenors Eugene Diamond, M.D., Jasper F. Williams, M.D., and David Campbell moved to intervene in the lawsuit as defendants. Doctors Diamond and Williams sought intervention both to defend the rights and interests of their prenatal patients as well as to protect their own professional and pecuniary interests placed at risk by the plaintiffs' challenge of the Act. Dr. Diamond also sought intervention as a parent of an unemancipated minor daughter of childbearing age. Campbell sought to intervene based upon his status as the spouse of a woman of childbearing age. The plaintiffs strenuously opposed the intervenors' motion to intervene on the grounds that the intervenors lacked any legally cognizable interest in the litigation and, alternatively, that participation as amici curiae would suffice to protect those interests posited by the intervenors. Notwithstanding the plaintiffs' objections, however, the district court granted the motion to intervene. In the meantime, the intervenors were granted leave to file their own Answer, a Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction, and other documents.

On November 16, 1979, the district court granted in part the plaintiffs' motion for a preliminary injunction against enforcement of several of the Act's provisions. The intervenors and governmental defendants appealed from the district court's ruling and the plaintiffs cross-appealed. On appeal, this court affirmed the district court's preliminary injunction; we also directed, as the plaintiffs had requested, that enforcement of several additional statutory provisions be preliminarily enjoined. Charles v. Carey, 627 F.2d 772 (7th Cir.1980).

On remand, the district court subsequently enjoined the operation of additional provisions of the Act, but the court deferred ruling on the plaintiffs' motion to enjoin use of the remainder of the Act pending the Supreme Court's decision in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). In the wake of the Court's decision in Akron, the district court reconsidered the plaintiffs' motion and preliminarily enjoined enforcement of several additional, but still not all, of the provisions of the Act. Charles v. Carey, 579 F.Supp. 377 (N.D.Ill.1983). By the time proceedings in the district court were concluded, the court had permanently enjoined enforcement of twenty-five sections of the Act, including its primary operative provisions. See Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983).

The intervenors, together with the Illinois Attorney General and State's Attorney Daley, immediately appealed the issuance of the permanent injunction, but only with respect to three key sections of the Act. The plaintiffs cross-appealed, alleging that the district court erred in finding constitutional a previously disputed section of the Act. Once again, the intervenors were dealt another setback; we affirmed the permanent injunction of the three sections already enjoined and also held the fourth section unconstitutional. Charles v. Daley, 749 F.2d 452 (7th Cir.1984).

Following their second defeat before this court, intervenors Diamond and Williams filed both a notice of appeal and a jurisdictional statement with the Supreme Court on February 28, 1985. Neither the Illinois Attorney General nor State's Attorney Daley joined in these submissions. The Supreme Court granted review and the case was fully briefed and argued on November 5, 1985. Subsequently, in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court dismissed the appeal concluding that absent the participation of the governmental defendants, Doctor Diamond lacked standing to prosecute the appeal. 2 This court's decision in Charles v. Daley, 749 F.2d 452 (7th Cir.1984), thus stands as the final word on the constitutionality of the amended Illinois Abortion Law of 1975.

Our recapitulation of the procedural posture of this case notwithstanding, this appeal does not concern the merits of the previous litigation; rather, we are concerned only with the propriety of the district court's award of fees to the plaintiffs for expenses they incurred throughout the protracted course of this lawsuit. On two separate occasions, pursuant to 42 U.S.C. Sec. 1988, the plaintiffs filed petitions for an award of attorneys' fees and costs for work performed in the district court. Neither petition specifically sought fees and costs from the intervenors. The Illinois Attorney General filed a response to the plaintiffs' petition, as did State's Attorney Daley; neither defendant raised the issue of the intervenors' liability for fees. Eventually, the district court issued an order awarding $181,287.84 in attorneys' fees and costs to the plaintiffs as "prevailing parties"; nowhere, however, did the order specify whether or not the intervenors as well as the governmental defendants were jointly liable for the plaintiffs' fees and costs. Instead, the order simply stated, "Fees and costs in the amount of $181,287.84 shall be awarded."

The intervenors subsequently filed a motion in the district court under Federal Rule of Civil Procedure 59(e) to clarify the district court's earlier order concerning their liability for fees and costs. The intervenors asserted that they could not properly be held liable for the plaintiffs' costs and fees and that the judgment should be amended to reflect the governmental defendants' sole liability. The district court ordered all parties to brief the question of intervenor liability. On April 22, 1985, the district court issued a new order expressly finding all three intervenors liable for fees due to their role as "fully participating parties in the lawsuit" and apportioning their liability at one-half of the total amount of fees awarded to the plaintiffs. In addition, the court increased its award of fees by $19,775.85 to $201,063.69, in accordance with the plaintiffs' supplemental petition for fees on appeal. The intervenors' share of fee liability was therefore assessed initially at $100,531.84.

Pursuant to a second Rule 59(e) motion by the intervenors, the district court amended its order of April 22, 1985 to correct a clerical error which improperly included among the intervening parties their counsel, the Americans United for Life Legal Defense Fund. The district court also directed the parties to brief the applicability of the recently decided case of Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), on the issue of the intervenors' fee liability. After considering the parties' briefs addressing the relevance of Graham, the district court issued an order affirming its April 22 decision awarding district court and appellate fees against each of the intervenors, Campbell, Williams, and Diamond. The...

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