Ragsdale v. Lumpkin
| Decision Date | 06 August 1996 |
| Docket Number | 95-2320,No. 95-2256,95-2256 |
| Citation | 94 F.3d 647 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Richard M. RAGSDALE, M.D., et al., Plaintiffs-Appellees, Cross-Appellants, v. John R. LUMPKIN, M.D., Director of the Illinois Department of Public Health, James E. Ryan, Attorney General of Illinois, and Nikki M. Zollar, Director of the Illinois Department of Professional Regulation, Defendants-Appellants, Cross-Appellees, and Jack O'Malley, State's Attorney of Cook County, Illinois, as representative of the class of all Illinois State's Attorneys, Defendants-Appellees, Cross-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, Chief Judge, and FAIRCHILD and FLAUM, Circuit Judges.
The principal question on this appeal is whether there was an abuse of discretion in determining the amount of an award of attorney's fees to prevailing plaintiffs in a § 1983 action.
In 1985 plaintiffs brought action challenging the constitutionality of three Illinois statutes and the regulations thereunder which allegedly required all abortions to be performed in a hospital or its functional equivalent. The district court certified a plaintiff class consisting of all duly licensed physicians and surgeons performing pregnancy terminations in Illinois, represented by plaintiff Ragsdale. Another class consisted of Illinois women of child-bearing age who desire or may desire to obtain an abortion, represented by plaintiffs Moe and Ragsdale. The district court granted a preliminary injunction enjoining defendant state officials and a defendant class consisting of state's attorneys for all Illinois counties from enforcing the challenged statutes and regulations against any plaintiffs who offer to perform first or early second trimester abortions. Ragsdale v. Turnock, 625 F.Supp. 1212 (N.D.Ill.1985) "Ragsdale I." On appeal this court decided that because the state had conceded that a second trimester hospitalization requirement was unconstitutional and had ceased to enforce it, that part of the challenge was moot, and vacated the preliminary injunction to that extent. In all other respects the injunction was affirmed. Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir.1988) "Ragsdale II."
Defendants appealed to the Supreme Court of the United States. The Court accepted the case for oral argument, postponing the question of jurisdiction until hearing on the merits. Turnock v. Ragsdale, 492 U.S. 916 (1989). After briefing, but before argument, the parties negotiated a settlement and produced a consent decree. The Supreme Court deferred the matter pending submission of the consent decree to the district court for approval. Turnock v. Ragsdale, 493 U.S. 987 (1989).
The district court gave notice, conducted a fairness hearing, and approved and entered the proposed consent decree. Ragsdale v. Turnock, 734 F.Supp. 1457, 1465 (N.D.ILL.1990). "Ragsdale III."
Two persons who had sought to intervene appealed from the denial of their motion. Two purported members of the plaintiff class also appealed. This court affirmed the denial of intervention and dismissed the appeals. Ragsdale v. Turnock, 941 F.2d 501, 506 (7th Cir.1991), cert. denied sub nom Murphy v. Ragsdale, 502 U.S. 1035 (1992). Ragsdale IV. The Supreme Court later dismissed the appeal from Ragsdale II under its Rule 46. Turnock v. Ragsdale, 503 U.S. 916 (1992).
The Consent Decree had reserved the matter of attorney's fees. On April 20, 1995, after efforts by the parties to agree on the issue had failed, the district court made an award of $992,120.87 in favor of plaintiffs and against the State. This amount represented costs (expenses) of $57,640.13 and fees of $934,480.74, being some $533,000 computed at rates contemporary with the services, plus interest. The allowed fee charges covered 4388.77 hours of service, primarily in 1985, '86, '88, '89, and '90. The attorneys devoting the most hours, each in excess of 100, were Attorneys Connell, 1545.45, Chaiten, 1465.67, Gilbert 428.90, Kornfield, 504.10, and Grossman, 141.20. Seven other attorneys, one paralegal, and a librarian devoted varying numbers of hours, ranging from the librarian's 6 hours to Attorney Franklin's 79.75 hours, for a total of 303.45. No fees were requested or allowed for services defending the consent decree on appeal here ("Ragsdale IV ").
The state-officer defendants (hereinafter "State Defendants") brought this appeal, challenging the amount allowed and the decision to enter the award against the state alone, rather than apportioning some of it against the state's attorneys, so that the counties would pay that part. Plaintiffs cross-appealed, contending that liability should be imposed jointly and severally on all defendants, including the state's attorneys. These were submitted to the panel which had decided Ragsdale IV, as successive appeals under Operating Procedure 6(b). The panel elected to retain and decide, and after examination of the briefs and the record unanimously finds that oral argument is unnecessary. An appeal by others was dismissed for lack of standing, No. 95-2255, dismissed February 16, 1996.
There are three views concerning allocation of liability for plaintiffs' attorneys' fees. Plaintiffs contend that all the defendants, the State Defendants as well as the State's Attorneys, stood ready to enforce the challenged statute and regulations and defended their constitutionality; thus all should be jointly and severally liable for plaintiffs attorney's fees. The State Defendants contend that because the State Attorneys fully litigated as an independent party and consented to injunctive relief which the State Defendants could not have provided, the liability should have been apportioned equally between the State Defendants (the state) and the State's Attorneys (the counties). The State's Attorneys support Judge Nordberg's decision to impose the liability on the state alone.
In deciding to impose liability on the state, Judge Nordberg adhered to his own analysis in a similar case he had decided, Herbst v. O'Malley, 1995 U.S.Dist.,
LEXIS 1510 (N.D.Ill., Feb. 7, 1995). Herbst was an action brought by a class of Illinois physicians and a class of Illinois women against the Attorney General and Director of the Department of Public Health and a class of all State's Attorneys, challenging certain statutory provisions concerning abortion. Judge Nordberg concluded that the State's Attorneys would have been acting as state agents in enforcing the laws in question and held that judgment for attorney's fees should be entered against the state rather than jointly and severally against all defendants.
The briefs informed us that Herbst was on appeal, and we awaited that decision. This court has now affirmed. Herbst v. Ryan, --- F.3d ----, No. 95-1611, 1733, decided July 26, 1996. We there adopted the view "that deferential review of a district court's allocation of liability for a fee award among multiple parties is warranted." Herbst, slip op. at 7. The issue "is whether the district court abused its discretion in determining that the State alone ought to bear the responsibility for the fee award." Herbst, slip op. at 11,--we concluded that there was "no abuse of discretion in determining that the 'moving force' behind the statute at issue here was the State of Illinois."
We see no principled distinction between Herbst and Ragsdale in terms relevant to the allocation of liability for plaintiffs' fees. In enacting the challenged statutes, the state was setting policy and the State's Attorneys were standing ready to enforce the state's enactment. In each case the state's enactments were determined to have violated constitutional rights. In each case Judge Nordberg gave controlling weight to the proposition that the State's Attorneys would have been acting as state agents in enforcing the enactments. Herbst establishes that the apportionment is a matter of discretion, to be exercised after consideration of factors outlined in Herbst. It also establishes that the imposition of liability on the state in the Herbst situation (and necessarily in the parallel Ragsdale situation) is not an abuse of discretion.
The State Defendants concede that plaintiffs are prevailing parties and entitled to a reasonable fee. They do not challenge the hourly rates used, nor the computation of interest. They make an argument for reducing the award overall because plaintiffs obtained less relief than originally sought. They attack specific allowances, focusing on four areas of activity. Although their reply brief says they also focus on vague entries and they had objected on this basis before the district court, their appellate brief does not direct attention to particular entries they challenge for vagueness.
The complaint in part (Paragraph 58) alleged that three Illinois statutes and regulations placed a significant burden on women who choose to terminate first trimester and second trimester pregnancies in violation of their constitutional right of privacy and (Paragraph 59) prevented physicians and registered nurses from performing abortions in facilities available to others in performing medically analogous services in violation of their right to equal protection of the law. As relief, plaintiffs sought a declaratory judgment that these statutes and regulations deprived plaintiffs of those rights, and injunctions against enforcement of the statutes or regulations in derogation of those rights.
The consent decree (which is attached to Ragsdale III, 734 F.Supp. at 1466-1470) does enjoin enforcement of many provisions of the three statutes and regulations, but leaves some areas in which the defendants are free to act. There is a...
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