Draper v. Town Clerk of Greenfield

• Citation: 384 Mass. 444,425 N.E.2d 333
• Parties: Paul DRAPER et al. 1 v. TOWN CLERK OF GREENFIELD, et al. 2
• Decision Date: 25 August 1981
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 333

425 N.E.2d 333

384 Mass. 444

Paul DRAPER et al. ¹ v. TOWN CLERK OF GREENFIELD, et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1981.

Decided Aug. 25, 1981.

James A. Bisceglia and Jim Hammerschmith, Northampton, for plaintiffs.

Judith S. Yogman, Asst. Atty. Gen., for defendants.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

This case, here on the reservation and report of a single justice, concerns a claim by the plaintiffs against the State defendants for attorneys' fees under 42 U.S.C. § 1988 (1976). ³

The defendants contend that the plaintiffs' motion for fees was untimely and that we have no jurisdiction to consider it; alternatively, they argue that on the merits the plaintiffs are entitled to no fees under § 1988, or to a much smaller award of fees than requested. We find both that the motion was timely and that the plaintiffs are entitled to attorneys' fees in the amount of $2,600. Although the plaintiffs have produced time records only through April 8, 1980, we do not think that any additional amount is justified for work done subsequent to that date.

The facts underlying this litigation (as set out in the parties' statement of agreed facts) are as follows: On January 27, 1978, the plaintiffs, three sets of unmarried parents with children born in Massachusetts between 1969 and 1977, sought declaratory and injunctive relief contending that G.L. c. 46, § 1, as amended through St.1968, c. 84, § 1, was unconstitutional under art. 1 of the Declaration of Rights of the Constitution of the Commonwealth and the equal protection clause of the Fourteenth Amendment to the United States Constitution. Named as defendants were various State and local officials charged with keeping records of births and other vital statistics. The plaintiffs' challenge was directed to G.L. c. 46, § 1, as it existed between 1969 and 1977, after its amendment by St.1968, c. 84, § 1, and before its further amendment by St.1977, c. 161. In that time interval the statute provided that city and town clerks should not record on the birth certificates of illegitimate children the name of, or any other information about, the child's father. Before its 1968 amendment, the law had allowed such information to be recorded on the written request of both parents, and the 1977 amendment restored the statute to this form. The registrar of vital statistics, however, in a July, 1977, memorandum to all city and town clerks in the Commonwealth, interpreted this later amendment as applying only to births after the amendment's effective date (August 3, 1977), deciding, in other words, that the fathers' names could never be recorded on the birth certificates of illegitimate children (such as those of the plaintiff parents) born between 1969 and August 3, 1977.

At a hearing before the single justice on March 8, 1978, the defendants acknowledged that a blanket prohibition against recording both parents' names as requested by the plaintiffs would raise constitutional questions. The defendants also pointed out that remedial legislation had been filed to correct the situation.

The single justice, on March 14, 1978, granted the plaintiffs' request for a preliminary injunction although denying the plaintiffs' motion for certification of the case as a class action. His ruling did not reach any of the constitutional claims raised by the plaintiffs. Instead he adopted the interpretation made by one of the municipal defendants and concluded that the 1977 amendment of G.L. c. 46, § 1, applied to all births, regardless of date, and that upon proper written request by both parents after August 3, 1977, the name of the father of an illegitimate child born at any time must be placed on his or her birth certificate. The defendants immediately complied. A year later, on March 1, 1979, the plaintiffs moved for summary judgment. Following oral argument, the single justice asked the parties to submit a proposed form of final judgment. They did so in a form that substantially adopted the conclusions of the previous single justice in his memorandum of decision, and the single justice entered judgment on May 30, 1979. The last paragraph of the judgment provided that entry be made "without prejudice to any party's right to separately move for attorney's fees and costs, pursuant to 42 U.S.C. § 1983."

On June 4, 1979, the plaintiffs offered to settle their claim for fees at a rate of $60.00 an hour, or $3,925. The offer was not accepted, and the plaintiffs filed a motion for fees on July 30, 1979. Initially, the defendants opposed the motion on substantive grounds, disputing both the plaintiffs' entitlement to fees and the amount of fees requested. Then in September, 1980, the defendants moved to dismiss the motion for fees on the ground that it was not timely filed. On March 13, 1981, a single justice reserved and reported the fees dispute to this court.

The plaintiffs initially requested attorneys' fees through April 8, 1980, in the total amount of $12,973. This figure was based on rates of $60 and $75 an hour for the various attorneys involved, with seventy-two-and-three-fourths hours spent on the merits of the case, and 1042/3 hours spent on the fees issues. In their brief before this court, however, the plaintiffs amended their fee request to $14,957. This new figure was derived by adjusting the $12,973 figure downward (to $12,464) by billing the travel hours included in the original hourly totals at two-thirds of the normal hourly rate; ⁴ and then adjusting $12,464 upward by 20% to compensate the plaintiffs for the delay in receiving payment.

Additional time has been spent subsequent to April 8, 1980, including the preparation of a sixty-nine page reply brief. ⁵

Timeliness. The defendants base their claim that the attorneys' fees request was untimely largely on the reasoning of White v. New Hampshire Dep't of Employment Security, 629 F.2d 697 (1st Cir. 1980), cert. granted, --- U.S. ----, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981), and a case heavily relied on in White, Hirschkop v. Snead, 475 F.Supp. 59 (E.D.Va.1979). In both cases trial courts had entered final judgments on the plaintiffs' § 1983 claims with no mention by the parties whatsoever of § 1988 fees. In each, some time after these final judgments (one month in Hirschkop; four-and-one-half months in White), the plaintiffs requested attorneys' fees. On these facts both the Hirschkop and White courts held that the requests were untimely and denied fees, reasoning that because the award of fees under § 1988 is so much a "part of the overall relief sought and granted during the course of a particular civil rights action," White, supra at 704, those fees must be determined before the entry of final judgment or at the latest presented within ten days after final judgment by a motion to reopen that judgment under Fed.R.Civ.P. 59(e). White, supra at 699; Hirschkop, supra 475 F.Supp. at 62. While both courts acknowledged that rule 54(d) provides for the awarding of the "costs" of litigation after final judgment, they decided that such "costs" include only the sums routinely assessed by a court clerk, items far different from § 1988 fees which are "closely intertwined with the merits of the primary dispute and which ... require careful factual and legal analysis by the court." White, supra 629 F.2d at 702-703. See Hirschkop, supra 475 F.Supp. at 63. And each noted that under Fed.R.Civ.P. 6(b), they were forbidden to extend rule 59(e)'s ten-day limitation; indeed, that they were without jurisdiction to make a fees award once the ten days had expired. See White, supra 629 F.2d at 699, 705; Hirschkop, supra 475 F.Supp. at 60. ⁶

In contrast to the position of White and Hirschkop, the Fifth Circuit in Knighton v. Watkins, 616 F.2d 795, 797-798 (5th Cir. 1980), held that § 1988 fees are "costs" within the meaning of Fed.R.Civ.P. 54(d), and hence can be awarded at any time after final judgment. ⁷ The court drew on the language of § 1988 which states that the section's fees should be awarded "as part of the costs"; it also reasoned that because § 1988 fees are available only to "prevailing part(ies)," the usual time for requesting and granting the fees is after a final judgment in the underlying civil rights litigation. Watkins, supra at 797-798. For other cases treating § 1988 fees as rule 54(d) "costs," see Gary v. Spires, 634 F.2d 772, 773 (4th Cir. 1980); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980); Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980), petition for cert. filed, --- U.S. ----, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1980). Cf. Obin v. District No. 9, Int'l Ass'n of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir. 1981) (motion for attorneys' fees raises a collateral and independent claim and is therefore not governed by the ten-day limitation in rule 59(e)).

Although the plaintiffs' fee request is pursuant to a Federal statute, 42 U.S.C. § 1988 (1976), the question of the timeliness of the request is governed by the Massachusetts Rules of Civil Procedure. See Hart, The Relations between State and Federal Law, 54 Col.L.Rev. 489, 508 (1954). Compare Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980). At all times in this litigation, however, Mass.R.Civ.P. 54(d) and 59(e), 365 Mass. 820, 827 (1974), were virtually identical to their Federal counterparts. ⁸ Ordinarily, then, we would be strongly influenced by the interpretation given these rules as applied to § 1988 in the Federal Courts, see Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975); and here, where the Federal Courts provide two different answers, we would generally choose between them. But we find that the choice need not be made to resolve this case. For even if we were to adopt the more restrictive reasoning of the White and Hirschkop courts as to the timeliness of a §...