Dunn v. The Florida Bar, Civ. A. No. 83-243-CIV-J-12.

• Citation: 726 F. Supp. 1261
• Decision Date: 30 August 1988
• Docket Number: Civ. A. No. 83-243-CIV-J-12.
• Parties: Serena DUNN, Individually and Willie A. Wiggs and Marva Pamella Evans, Individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. THE FLORIDA BAR, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

726 F. Supp. 1261

Serena DUNN, Individually and Willie A. Wiggs and Marva Pamella Evans, Individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. THE FLORIDA BAR, et al., Defendants.

Civ. A. No. 83-243-CIV-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

August 30, 1988.

COPYRIGHT MATERIAL OMITTED

Alan B. Morrison, Washington, D.C., and William B. Sheppard, Sheppard and White, P.A., and Elizabeth L. White, Jacksonville, Fla., for plaintiffs.

Eric J. Taylor, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for Supreme Court of Florida.

C. Harris Dittmar, Bedell, Dittmar, DeVault & Pillans, P.A., Jacksonville, Fla., for defendants The Florida Bar and President Ray Ferrero, Jr.

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, Senior District Judge.

Alan B. Morrison is principal attorney for the plaintiffs in this declaratory and injunction action, based on 42 U.S.C. § 1983, which he filed on March 16, 1983 against The Florida Bar and The Florida Supreme Court. Subsequent to events described infra, parts I.B. and III.A., the case was dismissed with prejudice on August 27, 1987, subject to the following:

Plaintiffs' claim a right to attorneys' fees under the provision of 42 U.S.C. § 1988. Defendants deny that this case involves any rights of the Plaintiffs secured by the United States Constitution and deny that Plaintiffs are prevailing parties. For these and other reasons, Defendants contend that Plaintiffs are not entitled to attorneys fees under 42 U.S.C. § 1988.

As reserved in the Stipulation of Dismissal, Mr. Morrison and other attorneys for the plaintiffs in this class action, on October 26, 1987, submitted their application for $113,606.54 in attorneys' fees and costs in this action, pursuant to 42 U.S.C. § 1988.

The application was briefed. On March 17, 1988 the matter was transferred for hearing and determination of plaintiffs' application for attorneys' fees, from the docket of the Honorable Howell W. Melton to the within judge.¹ On March 17 and 24, 1988, oral hearings were held before this judge, at which argument was heard, testimony received and exhibits admitted. Post-hearing briefs of the parties have been filed, and the case has been submitted.

I.

A.

On March 16, 1983 Serena Dunn, individually and on behalf of a class of similarly situated individuals, filed her complaint for declaratory and injunctive relief against The Florida Bar and The Supreme Court of Florida. In part, she stated

Plaintiff class members are unable to afford the services of attorneys to assist them in obtaining relief which only the State can provide and are also unable, by reason of their illiteracy, blindness, their inability to read and write English, or other handicap to handle their matters pro se or with the limited assistance currently allowed to be provided by lay persons under Florida law.

On January 5, 1984, the court denied an earlier motion to dismiss of defendant The Florida Bar. At a class certification hearing of July 3, 1984, the depositions of Serena Dunn and Rosemary Furman were filed in open court. The court continued the hearing on plaintiff's motion for class certification to give counsel for the plaintiff the opportunity to provide the name of a proper representative for a class action. Defendants deposed Willie A. Wiggs and Marva Pamella Evans, as proposed class representatives, on September 6, 1984.

At a hearing on November 15, 1984, the court entered an order granting class certification. The court determined that Willie A. Wiggs and Marva Pamella Evans were adequate representatives of the plaintiff class. As further ordered, plaintiffs Serena Dunn, Willie A. Wiggs and Marva Pamella Evans, on November 28, 1984, filed their third amended complaint for declaratory and injunctive relief. In said Third Amended Complaint plaintiffs allege

The Supreme Court has determined that lay assistants, such as legal secretaries, may do no more than type verbatim court pleadings that are given to them by their customers. They are forbidden from using intake forms to obtain from their customers the information called for in the pleadings, and they may not discuss the papers given them by their customers, even when the papers are incomplete or contain contradictory information. Failure to adhere strictly to these restrictions subjects such lay assistants to injunctive actions, as well as civil and criminal contempt proceedings, brought by the defendants.

Plaintiff Serena Dunn states that she was married to Anthony L. Dunn on February 3, 1982. Shortly thereafter, "he began physically abusing her," and in July 1982 she decided to seek a dissolution of their marriage and protection from the Florida courts. She further states

On July 7, 1982, plaintiff Dunn went to the offices of Rosemary Furman, a legal secretary, to obtain assistance in preparing the papers needed for the dissolution of her marriage. At that time, Ms. Furman believed that she was permitted to use written intake forms to service her customers, but plaintiff Dunn was unable even to read and comprehend the written instructions for Ms. Furman's intake form and provide the necessary information in writing.

The plaintiffs further allege that "Ms. Furman was therefore required to refuse to assist the plaintiff Dunn, and did in fact refuse to assist her, despite the fact that plaintiff Dunn is unable to afford the services of an attorney and there are no lawyers available to serve her on a pro bono or reduced fee basis."

Plaintiffs Wiggs and Evans allege that they bring their action on behalf of a class of similarly situated individuals, consisting of all present and future residents of the Fourth Judicial Circuit of Florida

(a) who either presently desire, or in the future may desire, to exercise their fundamental right to obtain a dissolution of marriage;

(b) who are unable to exercise their right to do so without the assistance of another person because they lack the skills, knowledge, familiarity with the court system, self-confidence, and other abilities required to appear pro se;

(c) who are not eligible to utilize the simplified dissolution of marriage procedures in Rule 1.611(c) of the Florida Rules of Civil Procedure which entitle them to the assistance of the Clerk of the Court in obtaining a dissolution of marriage

(d) who are unable to obtain the services of a lawyer because they cannot afford to pay the charges of a lawyer and because no lawyers are available to serve them on a pro bono or reduced fee basis; and

(e) who are able to afford the services of persons who, although not members of the Bar, are able to provide them the assistance they need to obtain a dissolution of their marriage and for which they charge members of the plaintiff class an amount which the class members can afford; but who are unable to utilize the services of such lay assistants because of the restrictions against lay assistants providing such services which are enforced by defendants.

Plaintiffs further allege that plaintiff Wiggs went to the office of Ms. Furman on June 1, 1984 to obtain assistance in preparing the papers needed for the dissolution of his marriage. Papers were prepared for plaintiff Wiggs "but his wife refused to sign them, and hence he returned to Ms. Furman's office for additional assistance." Ms. Furman then "determined that she could not lawfully assist him and refused to provide him the assistance that he needed, despite the fact that plaintiff Wiggs is unable to afford the services of an attorney and there are no lawyers available to serve him on a pro bono or reduced fee basis."

As to new party plaintiff Marva Pamella Evans, the Third Amended Complaint states

On July 10, 1984, plaintiff Evans went to the office of Ms. Furman to obtain assistance in preparing the papers needed for the dissolution of her marriage. At that time, Ms. Furman determined that she could not lawfully assist plaintiff Evans and refused to provide her the assistance that she needed, despite the fact that plaintiff Evans is unable to afford the services of an attorney and there are no lawyers available to serve her on a pro bono or reduced fee basis.

In addition to the Third Amended Complaint, the orders of the court and docket entries, the record is deemed to comprise plaintiffs' depositions, Rosemary Furman's deposition, exhibits received at the March 24, 1988 hearing, the briefs of the parties filed at all stages of the case, and any admissions of the parties.

I.

B.

The Florida Bar and The Florida Supreme Court filed separate motions for summary judgment on September 27, 1985 and October 2, 1985; and the plaintiffs filed a consolidated response on October 18, 1985. On December 2, 1985 the court conducted an oral hearing. At the hearing the court engaged in extensive colloquy with counsel about the right or wrong of permitting limited conversations between a lay assistant and customer about correcting mistakes in entries filled into blanks in divorce forms.

On November 10, 1986 the court entered its order on the defendants' summary judgment motions. The court denied the motion of each defendant. The court's treatment of the constitutional issue, which it defined in its order, is examined infra part II.B.

On February 18, 1987 the court conducted a status conference. Trial was set for October 13, 1987, but the plaintiffs' voluntary dismissal of the case on August 27, 1987 mooted the trial. Thus, the constitutional question which the court had posed in his order of November 10, 1986 was not resolved.

In and after November, 1986, The Florida Bar Committee on Access to the Legal System drafted a proposed amendment to Supreme Court Rule 10-1.1(b), Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law. The Florida Bar Board of Governors approved the proposal on March 20, 1987. Official notice of the proposed amendment was brought to the Supreme Court's attention on...