Sincock v. Obara

• Decision Date: 29 December 1970
• Docket Number: Civ. A. No. 2470.
• Citation: 320 F. Supp. 1098
• Parties: Richard SINCOCK et al., Plaintiffs, v. Rosalie OBARA et al., Defendants.
• Court: U.S. District Court — District of Delaware

320 F. Supp. 1098

Richard SINCOCK et al., Plaintiffs, v. Rosalie OBARA et al., Defendants.

Civ. A. No. 2470.

United States District Court, D. Delaware.

December 29, 1970.

Vincent A. Theisen, and John G. Mulford, of Theisen, Lank & Kelleher, Wilmington, Del., for petitioner.

Ruth M. Ferrell, Deputy Atty. Gen., State of Del., Wilmington, Del., for the State of Del.

Before BIGGS, Circuit Judge, and WRIGHT and LAYTON, District Judges.

OPINION OF THE COURT IN RESPECT TO COSTS AND FEES

BIGGS, Circuit Judge.

I.

The present application is one for costs and fees¹ by the plaintiffs' counsel, Vincent A. Theisen, Esquire.

The case at bar has a long history and is resuméd in the following opinions of this court: Sincock v. Terry, D.C., 207 F.Supp. 205; D.C., 210 F.Supp. 395; D.C., 210 F.Supp. 396 (1962); Sincock v. Duffy, D.C., 215 F.Supp. 169 (1963); and Sincock v. Roman, D.C., 232 F.Supp. 844 (1964). More importantly, see the opinion of the Supreme Court in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), affirming the judgments entered following our opinion in Sincock v. Duffy, supra, 215 F. Supp. 169. See also Sincock v. Roman, D.C., 233 F.Supp. 615 (1964), and finally Sincock v. Gately, D.C., 262 F.Supp. 739 (1967). If these opinions are read, we think we need add little more to make clear the nature and extent of the litigation. We do state, however, that the suit is a class action brought by certain citizens and residents of rural New Castle County and of the City of Wilmington on their own behalf and on behalf of all other persons similarly situated. It was successfully prosecuted by Mr. Theisen and his associates² to a conclusion on January 27, 1968 when this three-judge court after a hearing in open court, no person appearing in opposition thereto, entered an order that House Bill 442, enacted by the General Assembly of the State of Delaware and signed into law on January 10, 1968 for the apportionment of the General Assembly complied with the provisions of the Equal Protection Clause of the Fourteenth Amendment and with the opinion of this court filed on January 10, 1967 in Sincock v. Gately, supra, and with the decree of this court filed January 24, 1967.³ The order terminating the litigation provided in part as follows: "It is Further Ordered that the jurisdiction retained by this Court by its decree of January 24, 1967 be and the same hereby is relinquished and jurisdiction will be retained for the sole purpose of fixing counsel fees, if any, and costs herein and entering a judgment in respect thereto."

A hearing was held on July 24, 1970 after notice to the parties. Mr. Theisen appeared with an associate, John Mulford, Esquire. Mrs. Ruth M. Ferrell, a Deputy Attorney General, appeared for the newly-created Department of Justice of the State of Delaware.⁴ Frank O'Donnell, Esquire, who had represented the Department of Elections of New Castle County in the litigation also appeared. No other counsel for any of the parties were present. No person objected and in substance all persons conceded that the facts set out in Mr. Theisen's affidavit in support of his application were correct. Mrs. Ferrell announced that the Department of Justice of Delaware did not oppose Mr. Theisen's application, stating however: "We assume that the petitioner will seek an appropriation through the Legislature. There are no other state funds available which could be used to pay counsel fees, and we cannot make any commitment as to payment, of course. But the Department of Justice does not oppose this application."⁵

The parties appealed from the judgment of this court following its opinion in Sincock v. Terry, 210 F.Supp. 395, to the Supreme Court of the United States and authorized a fund to engage distinguished counsel, a member of the bar of the Supreme Court, Frederick B. Weiner, Esquire, and by 54 Delaware Laws, Chapter 90,⁶ appropriated $95,000 to pay the costs of the appeal, Mr. Weiner's fee and the fees of certain counsel representing the defendants. The Senate of the 122nd General Assembly adopted Resolution No. 46 which purported to appropriate $200,000 for the purpose of having an adjudication of the issues made by the Supreme Court of the United States.⁷ This court was informed, however, at the hearing of July 24, 1970 that this fund by reason of the provisions of Chapter 90 had reverted to the General Fund of the State. As indicated, no counsel present objected to the amount of Mr. Theisen's application or any statement contained in his petition or affidavit. Nor has there been objection from any other source.

We need not discuss at length the time consumed or the efforts expended by Mr. Theisen and his staff during the course of the litigation. The applicant's affidavit, exhibits and pleading afford, we believe, a rather complete picture of the litigation and of the efforts of plaintiffs' counsel. Mr. Theisen's petition states that his records show that in the period from June 1, 1962 through January 28, 1968 he and "his firm devoted more than 3,784 hours to the litigation" and "this does not take into account the many, many hours spent in preparation, research and review which occurred in and out of Petitioner's firm." The petition further states: "While no time records are available for such additional time, Petitioner would estimate them to be in excess of 1,000 hours over the 6½ years of the litigation, making a total of approximately 4,784 hours. Petitioner and his partners, taking into account the items of expense connected with the firm's practice of law which includes overhead involved in the maintenance of the office, salaries of associates, secretarial and other help, supplies, rent, maintenance of a law library, furnishings, repairs and reasonable compensation through attorney fees to members of the firm and associates, had his usual charge for attorney services established at $50 per hour for office work and $100 per hour for Court work." The charges of Mr. Victor Battaglia, an associate, were fixed at the rate of $35 an hour for office work and $75 an hour for court work.

Mr. Theisen estimates that the amount of time devoted to the trial of this case was in excess of 600 hours, divided approximately equally between him and his associate, Victor Battaglia, Esquire, and that of the remaining 4,184 hours, petitioner estimated that 40% or 1,673 hours were devoted to the litigation by him and that 60% or 2,510 hours were devoted to the litigation by Mr. Battaglia.

We find that the foregoing uncontradicted statements contain facts that are fully supported by the evidence and we are of the opinion that the requested amount of compensation and out-of-pocket expenses are reasonable. We take judicial notice that the amount sought as compensation is in accord with fees of members of the Bar of Delaware of a standing like unto that of Mr. Theisen. We note also that Mr. Theisen took the case on a partial-contingent fee basis.⁸ We point out that the result obtained by the petitioner and his associates was indeed excellent. The State of Delaware has been properly and lawfully reapportioned by the General Assembly in accordance with the law laid down by the Supreme Court of the United States. See Sincock v. Gately, 262 F.Supp. 739, supra. We observe that Mr. Theisen has received by way of compensation and costs the sum of $31,208.25. The balance requested, which includes out-of-pocket expenses in the amount of $4,376.16, is $197,167.91. To sum up, the petition for allowance of attorney fees and costs sets out the following:

                Attorney fees                      $224,000.00
                Out of Pocket
                 Disbursements                        4,376.16
                                                  ____________
                                                   $228,376.16
                Less Payments by Reapportionment
                  Committee9                    31,208.25
                                                  ____________
                                                   $197,167.91
                

There would appear to be no opposition to the allowances sought by Mr. Theisen but we must decide whether or not they are within the power of this court to grant, and if so who can or should be held liable therefor. We discuss these issues under the next heading.

II.

Assuming, as we have found here, that Mr. Theisen rendered valuable services to the State of Delaware and to its citizens for which he should be adequately compensated, does this court have the power to award him that compensation to be taxed as costs against the State of Delaware or against the individual defendants, all of whom are State or County officers, in their respective representative capacities, pursuant to Rule 54 of the Federal Rules of Civil Procedure, 28 U.S.C.?

The Department of Justice of the State of Delaware was represented, as we have said, by Mrs. Ferrell, a Deputy Attorney General. In her letter memorandum of law to this court, Mrs. Ferrell stated: "It has long been held that * * a suit such as that at bar to restrain unconstitutional action threatened by an individual who is a state officer is not a suit against the State and thus not barred by the Eleventh Amendment of the U. S. Constitution."¹⁰ (Emphasis added). See Georgia R. R. and Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S.Ct. 321, 96 L.Ed. 335 (1952) (assessment and collection of taxes); Harrison v. St. Louis and San Francisco R. R. Co., 232 U.S. 318, 332, 34 S.Ct. 333, 58 L.Ed. 621 (1914) (revocation of corporate charter); Mann v. Davis, 213 F.Supp. 577, 579 (E.D.Va.1962) (legislative reapportionment), affirmed 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964) and Lisco v. McNichols, 208 F.Supp. 471, 476 (D.Colo.1962) (legislative reapportionment). But it will be observed that none of the decisions just cited granted a money judgment against a State or a state employee. We cannot find any decision supported by a reasoned opinion which gives such a result.¹¹ The closest case to the position asserted by Mr. Theisen which we can find or which has...