Harradine v. Board of Sup'rs of Orleans County

Decision Date20 February 1980
Citation425 N.Y.S.2d 182,73 A.D.2d 118
PartiesAllen B. HARRADINE, on behalf of Himself, Individually and as Director of the Orleans County Taxpayers' Association, Inc., and all other Citizens, Taxpayers and Voters in Orleans County, New York, similarly situated, Respondent, v. The BOARD OF SUPERVISORS OF ORLEANS COUNTY, Appellant, and The State of New York, Defendant.
CourtNew York Supreme Court — Appellate Division

Thomas J. Young, Holley, for appellant (Nixon, Hargrave, Devans & Doyle, Rochester, David M. Lascell, Rochester, of counsel).

Vincent S. White, Buffalo, for respondent (Robert J. Lane, Buffalo, of counsel).

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

SCHNEPP, Justice.

This is an appeal by the defendant, the Board of Supervisors of Orleans County ("Board"), from an award requiring it to pay legal fees to plaintiff's attorneys in this voting rights case involving the "one person-one vote" rule. 1

This action, which is no stranger to this court, 2 was commenced in 1971. In bringing this suit plaintiff sought a judgment declaring, inter alia, that the present distribution and apportionment of the members of the Board violate the equal protection clause of the Fourteenth Amendment of the United States Constitution and sections 1 and 11 of Article I of the New York State Constitution. On October 4, 1971 plaintiff's motion for summary judgment was granted. Special Term, finding that the "apportionment of the Board of Supervisors of the County of Orleans as based upon section 150 of the County Law and section 29, subdivision 14, of the Town Law, violates the Equal Protection Clause" of both the federal and state constitutions, directed the Board to file a permanent constitutional plan of reapportionment and imposed an interim plan of weighted voting. On November 10, 1972 a reapportionment plan submitted by the Board was disapproved by Special Term, which directed that a revised plan be submitted by December 1, 1972. The record is silent as to any activity in the case until April 1977 when a new plaintiff, Allen B. Harradine, and his attorney were substituted by Special Term which further ordered the Board (1) to comply with the order of November 10, 1972, (2) present a final reapportionment plan on July 29, 1977, and (3) make monthly interim progress reports. Thereafter, two local reapportionment laws adopted by the Board, one a redistricting scheme and the other a weighted voting scheme, were rejected by the voters of Orleans County at the general election in 1977. After the election, Special Term ordered the continuance of the interim weighted voting plan and instructed the Board to submit a constitutional reapportionment plan to the court not later than April 17, 1978. The Board proposed a weighted voting plan, identical to the plan submitted to the electorate in November 1977, which was again rejected by the voters in a court ordered special election in July 1978. In November 1978 Special Term enjoined the Board from holding a public hearing on a proposed reapportionment plan and imposed its own redistricting plan upon the county. On appeal we reversed this judgment, in Harradine v. Board of Supervisors of Orleans County, 68 A.D.2d 298, 416 N.Y.S.2d 927, as an unwarranted judicial intrusion into a legislative function. After further proceedings Special Term voided the 1971 court imposed interim plan effective January 1, 1980 and directed the submission to the county's voters in the November 1979 general election of a new interim form of government. We affirmed this order in Harradine v. Board of Supervisors of Orleans County, App.Div., 420 N.Y.S.2d 799 (1979).

To retrogress, on December 8, 1978 Special Term granted plaintiff's application for an award of $21,325 in attorneys fees for services rendered after March 1977, upon a finding that the action was properly commenced as a class action in March 1971 under the then applicable statute, CPLR 1005. In making the award Special Term focused on the "unexplained four and one half year delay on the part of the Board", and described "this inaction" as "oppressive" and "a willful and persistent defiance of the law", manifesting "bad faith" and necessitating plaintiff's recommencement of the proceeding.

On this appeal, the Board points out that to the contrary the court had commended the actions of the current Board and that no bad faith had been charged to it since 1977. It further notes that the record is silent as to the reason for the four and one half year delay, and that no delay could have occurred without the inaction of all parties, including the court. The Board charges that Special Term erred in awarding fees to plaintiff's attorneys and submits that established law precludes the award of legal fees. Plaintiff counterargues that the long history of the Board's failure to act and its repeated recalcitrant behavior is tantamount to bad faith and that Special Term did not abuse its discretion. Plaintiff claims that the award is permissible under either the statutes governing class actions or a bad faith doctrine and notes that counsel fees historically have been awarded in reapportionment cases.

In New York the general rule is that each litigant is required to absorb the cost of his own attorneys fees and a defendant may not be required to pay plaintiff's attorneys fee in the absence of a contractual or statutory liability with certain limited exceptions (Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 416 N.Y.S.2d 559, 389 N.E.2d 1020; Equitable Lumber Corp. v. IPA Corp., 38 N.Y.2d 516, 381 N.Y.S.2d 459, 344 N.E.2d 391; Neri v. Retail Mar. Corp., 30 N.Y.2d 393, 334 N.Y.S.2d 165, 285 N.E.2d 311; City of Buffalo v. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895; Young v. Toia, 66 A.D.2d 377, 413 N.Y.S.2d 530; 1 Speiser, Attorneys Fees, § 13.1).

It is clear that there was no agreement by the Board to pay plaintiff's attorneys fees and that when the judgment was entered in 1971 no statutory authority existed which permitted the recovery of attorneys fees in class actions (see CPLR 1005 (L.1962, ch. 308, as amd. by L.1962, ch. 318, § 4), repealed by L.1975, ch. 207). Effective September 1, 1975 CPLR 1005 was repealed and replaced by CPLR Article 9 entitled "Class Actions" (CPLR 901 et seq.). With the enactment of CPLR 909 attorneys fees became statutorily authorized in class action suits. 3 This statute, however, cannot be applied retroactively to proceedings that were pending when the statute became effective (see, Matter of Barton v. Lavine, 54 A.D.2d 350, 389 N.Y.S.2d 416, affd. 38 N.Y.2d 785, 381 N.Y.S.2d 867, 345 N.E.2d 339; cf. Matter of Shook v. Lavine, 49 A.D.2d 238, 374 N.Y.S.2d 187). Generally statutes are to be construed as prospective in operation only and a retroactive operation is not favored by the courts. "(A) statute will not be given a retroactive construction unless an intention to make it retroactive is to be deduced from its wording, and a law will not receive a retroactive construction unless its language, either expressly or by necessary implication, requires that it be so construed" (McKinney's Cons.Laws of N. Y., Book 1, Statutes, § 51, p. 89 (footnotes omitted)). Article 9 of the CPLR contains no provision expressing an intent that it be applied retroactively to pending proceedings (see e. g., Simonson v. International Bank, 14 N.Y.2d 281, 289, 251 N.Y.S.2d 433, 439-400, 200 N.E.2d 427, 431). Thus, neither CPLR 1005 or CPLR 909 can be looked to as statutory authority for an award of counsel fees.

As noted above, New York Courts have recognized certain exceptions to the general rule that attorneys fees are not recoverable absent a contractual or statutory liability, e. g. (1) when the litigation creates a benefit to others, and (2) when the opposing party's malicious acts cause a person to incur legal fees. For example, in Fittipaldi v. Legassie, 18 A.D.2d 331, 338, 239 N.Y.S.2d 792, 799, where union members brought a class action against their union, this court permitted the recovery of attorneys' fees, holding that counsel for the plaintiffs "materially benefited the general membership of the unions by pointing out and aiding to correct . . . abuses" of the union (see also, Murray v. Kelly, 14 A.D.2d 528, 217 N.Y.S.2d 146, affd. 11 N.Y.2d 810, 227 N.Y.S.2d 435, 182 N.E.2d 109). Here, only those voters whose voting power had been diluted by the malapportionment would benefit through a reapportionment; presumably the injury to those voters was substantially minimized by the 1971 imposition of the interim weighted voting plan. Further, no fund had been created or preserved out of which the attorneys fees could be paid (3 Carmody-Wait 2d, N.Y.Civ.Prac., § 19:183). Nor is the Board charged with acting maliciously. In United Pickle Co. v. Omanoff, 63 A.D.2d 892, 405 N.Y.S.2d 727 the court held that a person can recover attorneys fees if his opponent "intentionally sought to inflict economic injury on (him) by forcing (him) to engage legal counsel" (United Pickle Co. v. Omanoff, supra). To be recoverable, attorneys fees must be "proximately related to the malicious acts and the acts themselves must (be) entirely motivated by a disinterested malevolence" (United Pickle Co. v. Omanoff, supra, p. 893, 405 N.Y.S.2d p. 728; see also, Fugazy Travel Bur. v. Ernst & Ernst, 31 A.D.2d 924, 298 N.Y.S.2d 519; Shindler v. Lamb, 25 Misc.2d 810, 211 N.Y.S.2d 762, affd. 10 A.D.2d 826, 200 N.Y.S.2d 346, affd. 9 N.Y.2d 621, 210 N.Y.S.2d 226, 172 N.E.2d 79.

None of these exceptions have application here and indeed Special Term did not attempt to justify the allowance on these theories. It is evident that Special Term in awarding fees to plaintiff found that the Board's alleged dilatory conduct constituted "bad faith" and the court utilized the "private attorney general" doctrine developed by federal case law (Fairley v. Patterson, 5 Cir., 493 F.2d 598; Kahan v. Rosenstiel,...

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