Coyote v. Roberts

• Decision Date: 17 December 1980
• Docket Number: Civ. A. No. 76-0254.
• Citation: 502 F. Supp. 1342
• Parties: COYOTE et al. v. Dennis J. ROBERTS, II et al.
• Court: U.S. District Court — District of Rhode Island

502 F. Supp. 1342

COYOTE et al. v. Dennis J. ROBERTS, II et al.

Civ. A. No. 76-0254.

United States District Court, D. Rhode Island.

December 17, 1980.

COPYRIGHT MATERIAL OMITTED

Ralph Gonnella, Providence, R. I., for plaintiffs.

Harold Krause, Sp. Asst. Atty. Gen., for the State of Rhode Island, Providence, R. I., for defendants.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

In this § 1983 action challenging the constitutionality of a Rhode Island criminal statute, plaintiffs seek attorney's fees on the theory that their action was at least partially responsible for recent amendments to the statute which effectively mooted the case.

Plaintiffs are Jane Doe, a prostitute; COYOTE, a national organization of women and men (both prostitutes and nonprostitutes) who seek reform of law prohibiting prostitution and other forms of sexual behavior; and COYOTE of Rhode Island, the local chapter of the national organization. Defendants are the Attorney General of the State of Rhode Island and the Chief of Police of the City of Providence, both in their official capacities. In their complaint filed in July 1976, plaintiffs attacked the validity of R.I.G.L. § 11-34-5, the statute which then prohibited prostitution and the commission of other "lewd and indecent acts."¹ They charged that the overbroad sweep of the statute impermissibly infringed on constitutionally protected rights of privacy and association. They also alleged that the statute was discriminatorily enforced, in that only women were arrested and charged with its violation even though, on its face, the statute was gender neutral. They prayed for a declaration that R.I.G.L. § 11-34-5 was unconstitutional both on its face and as applied.

After a lengthy period of discovery and preparation, trial to the Court was held on September 25, 1979. In May 1980, before this Court had rendered a decision on the merits, the Rhode Island legislature amended the challenged statute. At a subsequent conference, all the parties agreed with the Court that the amendments had substantially cured the alleged constitutional infirmities of the statute. In addition, plaintiffs stated that the alleged pattern of discriminatory enforcement on the part of the Providence police force had ceased, or at least substantially diminished, sometime after the commencement of the action. Therefore, on September 22, 1980, an order was entered by consent dismissing the case as moot.² That order expressly reserved the question of attorney's fees, and plaintiffs have now timely moved for a fee award pursuant to the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988.

I. Propriety of a Fee Award Against the State Defendant

As defendant properly concedes, plaintiffs' fee request is not foreclosed by the fact that this case was terminated without an entry of judgment in favor of plaintiffs. "For purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep.No. 94-1011, 94th Cong., 2d sess. 5, reprinted in 1976 U.S. Code Cong. & Ad. News pp. 5908, 5912 (emphasis added). "Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Maher v. Gagne, 448 U.S. ____, 100 S.Ct. 2570, 65 L.Ed.2d 653 (June 25, 1980). See Chicano Police Officers Ass'n. v. Stover, 624 F.2d 127, 131 (10th Cir. 1980); Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978).

The Civil Rights Attorney's Fees Awards Act encourages the vindication of federal rights by alleviating the financial burdens attendant on resort to the judicial process. Federal courts have uniformly recognized that the intent and purpose of § 1988 mandates the award of fees to plaintiffs who have obtained some significant part of the relief they sought without completing the full course of litigation. A judgment entered into by consent or an out-of-court settlement may support a fee award. E.g., Chicano Police Officers Ass'n v. Stover, 624 F.2d at 131 (pre-trial settlement); Gagne v. Maher, 594 F.2d 336, 338-39 (2d Cir. 1979), aff'd, 448 U.S. ___, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). (consent decree); Nadeau v. Helgemoe, 581 F.2d at 278-79 (post-appeal consent decree); Reynolds v. Comey, 567 F.2d 1166, 1166 (1st Cir. 1978) (pre-trial settlement). This result removes any incentive a plaintiff might otherwise have to hold out for a full trial in order to obtain fees. If a case is mooted by cessation of the complained of practice or alteration of the challenged policy, a fee award may likewise be appropriate. E.g., Morrison v. Ayoob, 627 F.2d 669, 670-72 (3d Cir. 1980) (per curiam) (challenged behavior ceased after case was filed and plaintiffs' attorney had talked with defendants); Ross v. Horn, 598 F.2d 1312, 1314, 1321-22 (3d Cir. 1979), cert. denied, ___ U.S. ___, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980) (agency regulation amended); International Society of Krishna Consciousness v. Andersen, 569 F.2d 1027, 1028 (8th Cir. 1978) (per curiam) (amendment of city ordinance); Fischer v. Adams, 572 F.2d 406, 409 (1st Cir. 1978) (after filing of suit, government took action plaintiff sought). See O'Neill v. DeConti, 634 F.2d 616 (1st Cir. 1980). If this were not the rule, a defendant could put a plaintiff to the expense of engaging in discovery, pre-trial motions and memoranda, and other preparatory efforts until the strength of the case became clear, and then, by reforming its ways before the court could act on the merits, preclude the plaintiff's recovery of fees for labor that in fact accomplished the desired objective.

The Court has not found a case involving the precise situation here—that is, where a challenged state statute is amended by the legislature after trial but before a decision has been rendered. Cf. International Society of Krishna Consciousness v. Andersen, 569 F.2d at 1028 (city ordinance amended after parties had submitted stipulation of fact and presented oral argument). Although the circumstances presented by this case may be unprecedented, the policy considerations implicated by plaintiffs' fee request are essentially the same as those involved in any other fee award case. Had plaintiffs accomplished their goals through a decree rendered by this Court on the merits, a fee award against the state defendant in his official capacity would clearly have been appropriate. See Hutto v. Finney, 437 U.S. 678, 693-700, 98 S.Ct. 2565, 2574, 57 L.Ed.2d 522 (1978); Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980). It seems no less appropriate if there has been a change in the questioned statute that was proximately caused by plaintiffs' suit and that achieved, in a substantial measure, the benefits they sought. For purposes of determining entitlement to a fee award, there should be no difference between inducing the modification of individual behavior or private policy and effecting the modification of official behavior or public policy.

The Court therefore concludes that if plaintiffs have achieved some substantial part of the benefit they sought, and if they otherwise meet the criteria for a "prevailing party" discussed below, they are entitled to a fee award even though the change in Rhode Island law came about without formal judicial involvement.

Benefit Accruing to Plaintiffs by Amendment of R.I.G.L. § 11-34-5

In order to recover attorney's fees in the absence of a clearcut judgment in their favor, plaintiffs must show that the basic objectives they sought from the lawsuit have been achieved, or at least furthered in some significant way. Chicano Police Officers Ass'n v. Stover, 624 F.2d at 131. They need not have accomplished all their goals. Partial success is sufficient so long as it involves some significant issue in the litigation. Nadeau v. Helgemoe, 581 F.2d at 278-79. See Ross v. Horn, 598 F.2d at 1322.

In opposing plaintiffs' fee request, defendant argues that no benefit actually accrued to Jane Doe and COYOTE from the amendment of R.I.G.L. § 11-34-5. The first step in determining whether plaintiffs have benefited from the statutory change is to identify precisely the legal and factual conditions that prompted their suit. Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979). These conditions serve as the benchmark against which subsequent developments are measured and evaluated. Here, the prior version of R.I.G.L. § 11-34-5 was a farreaching interdiction of all unlawful sexual conduct. It made felonious the commission of any "indecent act"—a phrase which the Rhode Island Supreme Court had construed to encompass all extramarital sexual intercourse as well as "unnatural" forms of copulation regardless of the marital status of the participants. See State v. Santos, R.I., 413 A.2d 58, 64-66 (1980); State v. Milne, 95 R.I. 315, 321-24, 187 A.2d 136, 139-41 (1962), appeal dismissed for want of substantial federal question, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 (1963). Criminal sanctions could be imposed without regard to whether the sexual activity was a commercial venture undertaken for financial gain, or whether the activity was undertaken in private with the full consent of two adult parties. In addition to prohibiting the commission per se of any "indecent act", the statute banned certain preliminary or preparatory activities. Securing, transporting, loitering to solicit, receiving into a structure or conveyance, and aiding and abetting a person for the purpose of committing the prohibited acts were felonious, again without regard to the publicness of the activity, the mutuality of consent, or the financial motivation of either participant.

Asserting that "the constitutional right of privacy must necessarily include the decision of individuals, married or single, to engage in private consensual sexual relations," plaintiffs' emphasis throughout the case was on...