Stanford Daily v. Zurcher

• Decision Date: 10 August 1973
• Docket Number: No. C-71-912 RFP.,C-71-912 RFP.
• Citation: 366 F. Supp. 18
• Court: U.S. District Court — Northern District of California
• Parties: The STANFORD DAILY et al., Plaintiffs, v. James ZURCHER, Individually and as Chief of Police of the City of Palo Alto, County of Santa Clara, State of California, et al., Defendants.

366 F. Supp. 18

The STANFORD DAILY et al., Plaintiffs, v. James ZURCHER, Individually and as Chief of Police of the City of Palo Alto, County of Santa Clara, State of California, et al., Defendants.

No. C-71-912 RFP.

United States District Court, N. D. California.

August 10, 1973.

Anthony G. Amsterdam, Stanford University Law School, Stanford, Cal., Jerome B. Falk, Jr., Frank Garfield, Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, Cal., for plaintiffs.

Leland D. Stephenson, Deputy County Counsel, San Jose, Cal., Peter G. Stone, City Atty., Palo Alto, Cal., Melville A. Toff, Mountain View, Cal., for defendants.

MEMORANDUM AND ORDER

PECKHAM, District Judge.

This lawsuit had its genesis when several members of the Palo Alto Police Department, acting pursuant to a warrant, engaged in a search of the offices of the Stanford Daily, Stanford University's campus newspaper. Defendants are members of the Palo Alto Police Department, the District Attorney for Santa Clara County, and one of his deputies, each named individually and in his official capacity. The plaintiff is the Stanford Daily, an unincorporated association,¹ and its student editors.

Defendants, throughout this litigation, have maintained that the search of the Daily office, although no one at the Daily was suspected of committing a crime, was an entirely legal act, and they further maintain that they would conduct such a search again under similar circumstances.

I.

Pursuant to 42 U.S.C. § 1983 (1970) plaintiffs brought suit in this court seeking declaratory relief and an injunction. On October 5, 1972, this court ruled, as to those not suspected of a crime, third parties, that the warrant was insufficient to comply with the fourth amendment when it appears that there was available to law enforcement personnel an alternative course of conduct which could achieve the same end in a manner much less intrusive upon the concerns voiced in the fourth amendment.² In other words, the court ruled that the law enforcement personnel must explore the subpoena duces tecum alternative before obtaining and executing a warrant for the search of those not suspected of criminal activity.³ During the pendency of the litigation, this court was surprised at the dearth of litigation on the question of the fourth amendment rights of third parties. Id. at 127. One possible explanation was that investigative agencies normally use the subpoena alternative to achieve their objective in examining materials of third parties.

Another possible explanation is that a defense to an action for monetary damages under 42 U.S.C. § 1983 brought against a law enforcement officer is that the officer acted in good faith. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).⁴ If a party chooses to vindicate his fourth amendment rights which have allegedly been violated by a law enforcement officer, albeit in good faith, he is relegated to declaratory and injunctive relief.⁵ The aggrieved person must be prepared to make the kind of showing which would warrant equitable relief. And lastly, for no pecuniary gain, he is required to engage in extensive litigation at considerable cost including attorney's fees, just for the satisfaction of having a court determine that the police violated the Constitution, and possibly obtaining an injunction if he can show that there is a real possibility the violation may reoccur.⁶

It is not surprising that when faced with the costs of interminable litigation against a city and county with relatively unlimited resources measured against the limited satisfaction obtained when and if relief is finally given, many potential plaintiffs are unwilling to take on the task of "fighting City Hall." At a time when legal costs, particularly attorney's fees are rising, third party rights protected by the fourth amendment, while existing in theory, in practice have no meaningful effect.

This situation may be contrasted to a criminal defendant, who has a relatively adequate remedy by way of a suppression hearing to determine the legality of the search. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The criminal defendant, unlike the third party, has an extraordinary incentive to vindicate his fourth amendment right to obviate a successful prosecution against him. And if he cannot afford counsel, one will be appointed for him.

The rights expressed in the fourth amendment are in constant tension with expedient law enforcement. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). But it is the job of every citizen to insure that overzealous law enforcement personnel do not compromise the high values placed on privacy in our society. It is important to remember that the fourth amendment protects all the people, and not just those suspected of a crime. It would be a cruel irony if those people who harbored contraband had an adequate incentive to pursue an effective remedy for violations of their fourth amendment rights, while those who engage in entirely legal activity, because of the economic realities of the cost of attorney's fees, must allow their constitutional rights to go unvindicated.

The plaintiffs have moved for an award of reasonable attorney's fees. For the reasons which follow, the motion is granted.

II.

It has been the general view in this country, absent statutory direction, that attorney's fees are not ordinarily awardable as a cost of litigation.⁷ In England, the courts have discretion to award a reasonable allowance for attorney's fees since the court was to make the prevailing party whole.⁸

The English rule which awards attorney's fees as costs to the plaintiff or defendant, whoever prevails, also has the effect of promoting settlement. The generally accepted American view is that recourse to litigation is not wrong, and that the party who does not prevail ought not to be penalized for his resort to the courts to vindicate his rights.⁹ It is indeed ironic that the very purpose of the general American rule, not to deter litigation, is in many cases having the exact opposite effect. The inability to get attorney's fees directly, or indirectly, through damage awards, has the effect of deterring many potential plaintiffs from seeking redress in the courts. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed. 2d 1263 (1969) (per curiam.)¹⁰ While legal aid offices¹¹ and contingent fee arrangement, where damages would lie,¹² have provided some legal services for those who could not otherwise afford them, there is no doubt that new methods of financing legal services to all levels of society must be explored.¹³ Accordingly many commentators have questioned the continuing vitality of the American rule, and its effect on the delivery of legal services. Many have suggested a liberalization of the strict American rule.¹⁴

III.

To ameliorate the inequities, both Congress and the courts have made inroads into the strict application of the American rule. It is now beyond dispute that federal courts have equitable powers to award attorney's fees in appropriate cases. Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). It is also well established that ". . . in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorney's fees when the interest of justice so require." Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).

The only question for a district court is then, whether in the exercise of its equitable powers, the interest of justice requires that fees be shifted. There are two parts to this question. First, is this the type of case in which the court has discretion to award attorney's fees as costs? And if so as a matter of the court's discretion, is this an appropriate case?

A. Type of case.

In Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) the Court held that attorney's fees can be awarded when the judgment results in a "common fund" for the plaintiffs or for the class. In Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S. Ct. 616, 24 L.Ed.2d 593 (1970), the Court approved the award of attorney's fees to shareholders who succeeded in setting aside a corporate merger. The Court extended the scope of the common fund rationale by holding that no pecuniary benefit need be demonstrated. Id. at 393, 90 S.Ct. 616. As this court pointed out in La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), Mills represents both the defensive and affirmative use of the Court's equitable powers. Defensive, to prevent unjust enrichment of free riders and affirmative or offensive to promote the effective implementation of the Congressional objective of fair and informed corporate suffrage. Id. at 98.

In Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed. 2d 1263 (1968), in interpreting the scope of the reasonable attorney's fee provision under Title II of the Civil Rights Act of 1964, 204(b), 42 U.S.C. § 2000a-3(b), the Court found that fees were awardable as costs "not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II." In essence, the Court found, in determining Congress's objective, that the general American Rule, not to award attorney's fees as costs, was having the opposite effect from its intent. Far from promoting a judicial determination of rights, at least in the equitable relief area, the policy of not awarding fees was an obstacle to a judicial determination of rights.

Mills and Piggie Park touched responsive chords, and the federal judiciary responded in a myriad of...