Sheila A. by Balloun v. Whiteman, 73288

• Decision Date: 15 March 1996
• Docket Number: No. 73288,73288
• Citation: 259 Kan. 549,913 P.2d 181
• Parties: SHEILA A. and Thomas A., by their next friends, J. Eugene BALLOUN and Sheila Wombles, et al., Appellants, v. Donna WHITEMAN, in her official capacity as Secretary of Social and Rehabilitation Services, Appellee.
• Court: Kansas Supreme Court

Page 181

913 P.2d 181

259 Kan. 549

SHEILA A. and Thomas A., by their next friends, J. Eugene BALLOUN and Sheila Wombles, et al., Appellants, v. Donna WHITEMAN, in her official capacity as Secretary of Social and Rehabilitation Services, Appellee.

No. 73288.

Supreme Court of Kansas.

March 15, 1996.

Syllabus by the Court

1. An appellate court has a duty to affirm those attorney fee awards under 42 U.S.C. § 1988 (1988) which fall within the broad discretion of the trial court, but it must remand the case when the trial court applies the wrong standard such that the award is inadequate as a matter of law.

2. If the party seeking attorney fees in a civil rights action under 42 U.S.C. § 1988 (1988) is proved to be a prevailing party and thus eligible for attorney fees under the statute, the court should award fees in the action unless special circumstances would make such an award unjust.

3. In determining the reasonable amount of attorney fees to be awarded under 42 U.S.C. § 1988 (1988), the court should exclude hours which were not reasonably expended on the litigation.

4. In computing the attorney fees to be awardedunder 42 U.S.C. § 1988 (1988), the court should compensate the prevailing party for all time that is reasonably expended in advancing the successful claims so that the fee reflects the reasonable worth of the services rendered in vindication of a plaintiff's civil rights claim.

5. The trial court may award attorney fees under 42 U.S.C. § 1988 (1988) substantially less than those actually incurred where the degree of the plaintiff's success is disproportionate to the fees requested or the level of success is not high.

6. It is a clear abuse of discretion for the trial court to exclude all presettlement time from an attorney fee award under 42 U.S.C. § 1988 (1988), including that spent drafting petitions, motions, and oppositions to motions, without which the case would never have reached the settlement stage.

7. A court need not engage in an hour-by-hour analysis of a voluminous record of billing statements to determine the reasonable hours compensable under 42 U.S.C. § 1988 (1988), but their reduction must be concisely and clearly explained so that a reviewing court may determine if the reduction is justified.

8. A prevailing party in a civil rights case is ordinarily entitled to recover compensation for expenses reasonably incurred in preparing the case as part of reasonable attorney fees.

9. The market rate on which an award of attorney fees will be based is in the sound discretion of the trial court and subject to review only for an abuse of that discretion.

10. The attorney fee applicant has the burden to justify the rate sought.

11. The trial court's broad discretion to determine what constitutes a reasonable hourly rate for attorney fees is not abused by applying local market rates, even when the attorney fee claimant produces some evidence that no local attorney was willing to take the case.

12. The unnecessary use of multiple attorneys justifies a reduction in an attorney fee award to reflect the duplication.

13. Under the facts of this case, the mere disparity in the number of billable hours of each attorney that the trial court held sufficiently proven does not establish an abuse of trial court discretion in light of the varying number of hours claimed, varying duties, and varying methods of recording billable time.

Appeal from Shawnee District Court; James P. Buchele, Judge. Opinion filed March 15, 1996.

Jerry R. Palmer of Palmer & Lowry, Topeka, and David J. Waxse, of Shook, Hardy & Bacon, P.C., Overland Park, argued the cause and were on the brief, for appellants.

Michael George, Chief of Litigation, Kansas Department of Social and Rehabilitation Services, argued the cause, and Reid Stacey, of the same agency, Deborah Purce-Jones, of Jones and Jones, Topeka, and Donald A. Frigon, of Frigon Law Firm, Topeka, were with him on the brief, for appellee.

LARSON, Justice:

This is an appeal from the amount of attorney fees awarded under 42 U.S.C. § 1988 (1988) by the trial court to the prevailing parties in a class action suit resulting in a favorable settlement where widespread statutory and constitutional violations of the Kansas child welfare system were alleged.

Although the four issues raised by this appeal involve only the amount of attorney fees and expenses allowed to the prevailing parties after a settlement occurred subsequent to 4 1/2 years of bitterly contested and contentious pretrial proceedings, a fairly comprehensive history of the litigation is essential to an understanding of the trial court's decision and our opinion herein.

In January 1989, Rene Netherton, a Topeka attorney and guardian ad litem, sued the Secretary of the Kansas Department of Social and Rehabilitation Services (SRS) on behalf of eight minor plaintiffs then in the care, custody, and control of SRS. The suit requested class action status, alleged SRS failed to provide the least restrictive environment necessary to meet the needs of the children, failed to promptly remove children from abusive or dangerous homes because of a lack of adequate placement facilities, failed to provide adequate social worker staffing, and failed to provide statutorily required reports to the court. The suit further alleged that because of the policies and procedures formulated by SRS, the children were being returned to an abusive home environment, not provided treatment for severe mental disorders, and not provided with a regional runaway center.

The plaintiffs' claim was that the "[d]efendants' failure to provide appropriate placements for Plaintiffs and to meet the emotional and psychiatric needs of the Plaintiffs violates the Plaintiffs' constitutional rights to appropriate treatment in violation of 42 U.S.C. § 1983, The United States Constitution and the Bill of Rights of the State of Kansas."

The defendants responded with a motion to dismiss. In March 1989, the plaintiffs amended their petition, adding detailed factual allegations regarding the experiences of each plaintiff with SRS custody and asserting as legal theories (1) violation of the plaintiffs' Fourteenth Amendment rights not to be deprived of state and federally created benefits, property, and liberty interests without due process; (2) the plaintiffs' rights to "liberty, privacy and family integrity in violation of the First, Eighth, Ninth and Fourteenth Amendments"; (3) the plaintiffs' Fourteenth Amendment rights to placement in the least restrictive setting; and (4) the plaintiffs' rights "pursuant to the Adoption Assistance and Child Welfare Act, P.L. 96-272, 42 U.S.C. sec. 670,et seq., and the state plan pursuant thereto, to preventive and protective services, to child welfare services, to case planning, to periodic review, to reunification and adoption services, [and] to placement in the most appropriate setting."

The defendants again responded with a motion to dismiss which precipitated a flurry of responses and replies by both sides. In July 1989, the trial court denied the defendants' motion to dismiss, finding the petition stated a claim for relief under 42 U.S.C. § 1983 (1988).

In September 1989, after attempting to obtain additional counsel in Northeast Kansas and Wichita, attorney Netherton convinced Christopher Hansen and Christopher Dunn of the American Civil Liberties Union Children's Rights Project in New York to enter appearances as co-counsel for the plaintiffs. In December 1989, Marcia Robinson Lowry, also of the Children's Rights Project, entered her appearance on the plaintiffs' behalf.

In February 1990, the plaintiffs filed a motion for class action certification, which was opposed by the defendants. In March 1990, the plaintiffs filed an additional amended petition, significantly expanding both the factual details and the legal claims.

This amended petition named the Governor of Kansas, Secretary of SRS, Commissioner of Youth Services, Director of the Kansas Child in Need of Care (CINC) program, and SRS. The petition was brought on behalf of children who have been in CINC custody or are at risk of being placed therein and alleged violations of (1) the plaintiffs' federal and Kansas constitutional rights, (2) the plaintiffs' rights under the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-627, 670-679 (1994), (3) the plaintiffs' rights under the federal Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101 et seq. (1988), and (4) the plaintiffs' rights under the Kansas Code for Care of Children, K.S.A. 38-1501 et seq.

The petition alleged systematic failures to (1) timely and adequately protect children (failing to timely and adequately investigate and respond to reported abuse and neglect); (2) appropriately place children in SRS custody (failure to remove from homes, overly restrictive placements, inadequately restrictive placements, overcrowded foster homes, inappropriate use of juvenile detention facilities, etc.); (3) provide adequate case plans for children in SRS custody (no case plans, substandard case plans, inadequate efforts to reintegrate children with families, inadequate services to resolve problems, failure to facilitate adoptions); (4) provide proper care for children for whom SRS is responsible (missed doctor appointments, lack of medical records); (5) provide federally mandated dispositional hearings; (6) provide adequately trained staff (too few social workers, poor or no training); and (7) have an information system to record data on children in foster care.

In short, the amended petition attacked nearly every phase of the Kansas child welfare system. Yet, it did so in the limited context of asserting claims for violations of two specific federal statutes, plus the Kansas Code for Care of Children and the Fourteenth Amendment.

In August 1990, the trial court issued a memorandum decision on the defendants' motions to dismiss some or all of the...