Duranceau v. City of Tacoma, 11177-9-I

• Court: Court of Appeals of Washington
• Writing for the Court: DURHAM
• Citation: 684 P.2d 1311,37 Wn.App. 846
• Parties: Ronald D. DURANCEAU, Respondent, v. CITY OF TACOMA, City of Tacoma Department of Public Utilities, Appellants.
• Docket Number: No. 11177-9-I,11177-9-I
• Decision Date: 18 June 1984

Page 846

37 Wn.App. 846 684 P.2d 1311 Ronald D. DURANCEAU, Respondent,
v.
CITY OF TACOMA, City of Tacoma Department of Public
Utilities, Appellants. No. 11177-9-I. Court of Appeals of Washington,
Division 1. June 18, 1984.
Rehearing Denied Oct. 1, 1984.

Page 847

[684 P.2d 1313] Mark L. Bubenik, Asst. City Atty., Tacoma, for appellants.

MacDonald, Hoague & Bayless, Robert C. Randolph, Seattle, for respondent.

DURHAM, Chief Judge.

Ronald D. Duranceau appeals from a denial of statutory attorney's fees requested pursuant to 42 U.S.C. § 1988. Although the facts of this case are set forth in our prior decision in Duranceau v. Tacoma, 27 Wash.App. 777, 620 P.2d 533 (1980), we will summarize them here for the sake of clarity.

The City of Tacoma obtains part of its water supply from the Green River watershed in King County. The City owns most of the land along the Green River itself, in addition to most of the land within the town of Lester, a small town located in the watershed. See Duranceau, at 778, 620 P.2d 533. Because of Lester's proximity to the City's water supply, the City viewed Lester as a health threat. Duranceau, at 779, 620 P.2d 533.

Page 848

Accordingly, the City sought to reduce Lester's population by restricting the employment opportunities of Lester residents. Logging companies that operated in the watershed were informed that access to the area would be cut off if they employed Lester residents.

[684 P.2d 1314] In 1978, Duranceau was offered a job with a logging company operating in the watershed. The offer was withdrawn, however, after a City representative informed the employer that access to the watershed would be cut off if Duranceau was hired. Duranceau then filed suit against the City under 42 U.S.C. § 1983 alleging the deprivation of his constitutional rights to due process, equal protection, and employment. He also asserted tortious interference with a contract. The trial court granted the City's motion to dismiss, but was reversed by this court in Duranceau v. Tacoma, supra.

On remand, the trial court granted Duranceau's motion for summary judgment on the liability issue, and a jury awarded $40,000 damages. Duranceau then moved for an award of attorney's fees and costs pursuant to 42 U.S.C. § 1988, and a hearing was held on December 28, 1981. The trial court issued a memorandum decision on February 22, 1982 denying the fee request, and on March 9 denied Duranceau's motion for reconsideration by oral opinion.

The court in its memorandum decision and oral opinion relied upon the following reasons for denying the fee request:

(1) Duranceau's lawsuit was not a class action, and resulted in the vindication of purely private rights.

(2) Duranceau's claims did not involve civil rights of broad significance.

(3) Duranceau's claims did not raise novel or difficult legal issues.

(4) Duranceau was able to retain competent counsel on a contingent fee basis.

(5) Duranceau was adequately compensated by the damage award.

(6) The City did not act reprehensibly or in bad faith.

The City appealed the damage award on jurisdictional grounds, and Duranceau cross-appealed the denial of

Page 849

attorney's fees. The parties agreed to a dismissal of the City's appeal, leaving only the question of attorney's fees for this court.

Duranceau contends that the trial court abused its discretion in completely denying his request for attorney's fees. He alleges that attorney's fees should be routinely awarded under section 1988 absent "special circumstances" rendering an award unjust, and that no such circumstances are present in this case. We agree.

In 1976, Congress amended 42 U.S.C. § 1988 to provide that in any action brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, ¹ "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. ² See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir.1983). As this language makes clear, the decision to award attorney's fees is within the discretion of the trial court. Members of the Bridgeport Housing Auth. Police v. Bridgeport, 564 F.Supp. 2, 6 (D.Conn.1982). However, the scope of the trial court's discretion is extremely narrow. In enacting the amendment to section 1988, Congress sought to encourage the vindication of civil rights through the mechanism of private lawsuits. See S.Rep. No. 1011, 94th Cong., 2d Sess. 2-3, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910. Congress specifically indicated that a successful [684 P.2d 1315] plaintiff " 'should ordinarily recover an attorney's fee unless special circumstances

Page 850

would render such an award unjust.' " (Emphasis added.) Id., at 4, reprinted in 1976 U.S.Code Cong. & Ad.News, at 5912 (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)). Accordingly, the federal courts have recognized a presumption that successful section 1983 plaintiffs should recover a reasonable attorney's fee absent such special circumstances. See, e.g., Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir.1983); Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982); Staten v. Housing Auth. of Pittsburgh, 638 F.2d 599, 604 (3d Cir.1980); Sethy v. Alameda Cy. Water Dist., 602 F.2d 894, 897 (9th Cir.1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Bonnes v. Long, 599 F.2d 1316, 1318 (4th Cir.1979). The Supreme Court has implicitly approved this presumption. See Hensley v. Eckerhart, 461 U.S. 424, ----, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40, 48 (1983).

Once the court determines whether a section 1983 plaintiff is entitled to any attorney's fee, it must then determine the appropriate amount. In so doing, the federal courts generally consider the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). ³ See, e.g., Capozzi v. Albany, 565 F.Supp. 771, 774 (N.D.N.Y.1983); United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 587 (D.R.I.1983). Thus, the questions of awarding fees and of determining the appropriate amount are treated separately. Because the trial court in this case completely denied the fee request, the appropriate inquiry is if any of

Page 851

the factors which it relied upon constitute a special circumstance that would render an award unjust. Analysis of the legislative history of section 1988 and relevant federal case law convinces us that no special circumstances are present in this case.

(1) Suit not Brought as a Class Action/Lawsuit Vindicated only Private Interests

The fact that Duranceau did not bring a class action and vindicated only private interests is unrelated to the propriety of a fee award. As noted above, Congress' purpose in allowing attorney's fees in section 1983 actions was to encourage the enforcement of constitutional rights. Accordingly, federal courts overwhelmingly reject the view that eligibility for attorney's fees under section 1988 depends upon the plaintiff procuring some sort of public benefit. See, e.g., Kirchberg v. Feenstra, 708 F.2d 991, 998-99 (5th Cir.1983); Metcalf v. Borba, 681 F.2d 1183, 1188-89 (9th Cir.1982); Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.1979); Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979).

Moreover, the fact that a prevailing civil rights plaintiff obtains only a private damage award does not mean that broader rights are not affected, as such awards obviously serve as a deterrent to future civil rights violations. Thus, even if obtaining a public benefit is in some sense a prerequisite for a fee award, it does not follow that the plaintiff must bring his lawsuit as a class action.

(2) Significance of Rights Vindicated

The trial court stated that this was not "a case of discrimination due to ... [684 P.2d 1316] race or color or sex as [Duranceau] is a white male." The court then opined that "Mr. Duranceau's claim did not involve civil rights of broad significance". The...