Vickerman v. Hennepin County Probate Court

• Decision Date: 26 May 1982
• Docket Number: Civ. No. 4-78-376,4-78-153.
• Citation: 543 F. Supp. 165
• Parties: M. D. VICKERMAN, et al., Plaintiffs, v. HENNEPIN COUNTY PROBATE COURT, et al., Defendants. Edward William WILSON, et al., Plaintiffs, v. HENNEPIN COUNTY PROBATE COURT, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

543 F. Supp. 165

M. D. VICKERMAN, et al., Plaintiffs, v. HENNEPIN COUNTY PROBATE COURT, et al., Defendants.

Edward William WILSON, et al., Plaintiffs, v. HENNEPIN COUNTY PROBATE COURT, et al., Defendants.

Civ. Nos. 4-78-376, 4-78-153.

United States District Court, D. Minnesota, Fourth Division.

May 26, 1982.

William F. Messinger, Beverly Balos, Charles K. Dayton, Minneapolis, Minn., for plaintiffs.

Warren Spannaus, Atty. Gen. by Ellen C. Dubuque, Sp. Asst. Atty. Gen., St. Paul, Minn., and David E. Mikkelson, Asst. County Atty., Minneapolis, Minn., for defendants.

ORDER

MILES W. LORD, Chief Judge.

I. INTRODUCTION

This action for attorneys' fees derives from a consolidated civil rights action brought by individuals subject to a civil commitment proceeding in Hennepin County on behalf of themselves and others similarly situated.¹ The underlying litigation concerned violations of 42 U.S.C. § 1983 in which plaintiffs alleged the civil commitment process pursuant to Minn.Stat. 253A et seq. was violative of due process. Furthermore, the plaintiffs claimed that Hennepin County failed to provide adequate community alternatives for the mentally ill. Jurisdiction was premised upon 28 U.S.C. § 1343.

The case of E. W. Wilson² and Linnea Gatton³ vs. Melvin Peterson, Jeff Spartz, Thomas Ticen, Richard Kremer, John Derus, E. R. Robb, Sam Sivanich and Nancy Olkon (hereinafter Wilson) was commenced on April 13, 1978. Subsequent to the filing of the Wilson case, the United States Supreme Court decided Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Court held that local governing bodies could be sued as "persons" under 42 U.S.C. § 1983 where the action alleged to be unconstitutional implements or executes a policy or decision officially adopted or promulgated as official policy. Pursuant to Monell, the plaintiffs through M. D. Vickerman⁴ brought a second action against the Hennepin County Board, the Hennepin County Probate Court, the Hennepin County Board of Commissioners and the Honorable Melvin Peterson, Hennepin County Probate Judge. This second action (hereinafter Vickerman) was commenced on August 31, 1978. Wilson and Vickerman were consolidated on November 30, 1978.

During 1979 there were a minimum of 1,700 chronically mentally ill individuals and a minimum of 4,890 individuals requiring mental health services in nursing homes in Hennepin County.⁵ From November 1, 1978, through October 31, 1979, approximately 955 petitions containing an allegation of mental illness were set for hearing in Hennepin County Probate Court. At least 400 of those petitions resulted in a commitment for mental illness. Of those 400 individuals committed for mental illness, more than 150 were committed indeterminately for more than 60 days.⁶ As of April 1980, approximately 140 persons committed for mental illness remained hospitalized for more than one year at Anoka State Hospital.⁷

This litigation required fifteen court appearances and a minimum of eighteen separate negotiation sessions with opposing counsel over a period of two and one-half years. The litigation resulted in a 38 page written stipulation (dated August 26, 1980) and consent decree (dated December 29, 1980) providing millions of dollars for a variety of community alternatives and improved constitutional guarantees to the plaintiff class. Specifically, the stipulation provided for the expenditure of $16,537,000 from January 1, 1981, through December 31, 1985, for the development of a variety of community-based mental health programs focusing primarily, but not exclusively, on the needs of the adult chronically and seriously mentally ill in Hennepin County. The stipulation provided for the implementation of certain procedural and due process considerations such as pre-petition screening, post-petition/prehearing orders, representation of the prospective patient by an attorney, examination, commitment hearing, sixty-day hearing, quarterly review and annual hearing. Amended to the stipulation (and incorporated by reference) was a five-year directional plan for mental health services for the adult chronically and seriously mentally ill.

II. THE FEE REQUEST

The full request before this Court is $309,062.14. This consists of $285,355.68 for attorneys' fees and costs directly relating to the case at bar and $23,706.46 for preparing and compiling the fee application. Mr. Messinger claims $250,749.78 and Ms. Balos claims $34,605.90 as their fees and costs in this matter. Mr. Messinger's total of $250,749.78 is derived from 1730.5 hours at $90 per hour and employing a multiplier of 50% ($233,617.50), 70.2 hours of employee assistance concerning non-class data at $38.07 per hour and employing a multiplier of 50% ($4,008.75), 272.4 hours of employee assistance concerning class data at $20 per hour and employing a multiplier of 50% ($8,172.00); also included are non-class costs of $3,531.83 and class costs of $1,419.70. Ms. Balos' total of $34,605.90 is derived from 329.58 hours at $70 per hour and employing a multiplier of 50%. The multiplier of 50% is justified by a composite of three separate multiplier factors: delay in payment (20%), contingency or likelihood of success (15%), and class benefit (15%).

The $23,706.46 for preparing and compiling the fee application is derived from $22,839.00 in attorneys fees and $867.46 in costs. Mr. Dayton, who assisted in the preparation of the fee application, claims $8,295.00 (82.95 hours × $100 per hour). Mr. Messinger claims $10,701.00 (118.9 hours × $90 per hour) and Ms. Balos claims $3,843.00 (54.9 hours × $70 per hour). The costs break down to $154.42 for Mr. Dayton and $713.04 for Mr. Messinger.

III. DISCUSSION

A. Fee Computation in the Various Circuits

There are two general approaches to computing attorney fee awards. The first is commonly known as the lodestar method. It was first set forth by the Third Circuit in Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973). Basically this method consists of three steps: (1) multiplying hours times the attorneys' regular billing rate — this results in a lodestar amount, (2) adjusting that lodestar amount for risk or contingency factors, and (3) adjusting the amount again for the quality of work performed. This approach was first developed in an antitrust suit and remains popular for such cases. See Merola v. Atlantic Richfield Co., 515 F.2d 165 (3rd Cir. 1975); Prandini v. National Tea Co., 557 F.2d 1015 (3rd Cir. 1977); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3rd Cir. 1978); Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); In re Ampicillin Antitrust Litigation, 81 F.R.D. 395 (D.D.C.1978).

The second approach to fee computation was announced by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Essentially, the Johnson approach consists of 12 factors: (1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.

Initially, this approach found support in both Congress and the courts. See Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978); King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977). See also S.Rep.No.94-1011, 94th Cong., 2nd Sess., 6 (1976) reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5913. (Legislative History to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988). Unfortunately, while some of these factors were useful in arriving at fair fee awards, there was little direction given as to how to use the various factors. As a result a number of courts criticized using the Johnson factors as the sole method of determining attorneys' fees. See, e.g., Detroit v. Grinnell Corp., 495 F.2d 488, 470 (2d Cir. 1974); Northcross v. Bd. of Education of Memphis, 611 F.2d 624, 642 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.E.2d 862 (1980). Even the Fifth Circuit has moved away from its deference to the unguided use of the Johnson factors and has formally adopted a methodology similar to the lodestar method. See Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575 (5th Cir. 1980).

At first the Eighth Circuit embraced the Johnson method of fee computation. Doe v. Poelker, 515 F.2d 541, 548 (8th Cir. 1975), rev'd on other grounds 428 U.S. 909, 96 S.Ct. 3220, 49 L.Ed.2d 1216 (1976); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir. 1977). Apparently, because the Johnson method often resulted in awards which were less than the number of hours claimed times the attorney's regular hourly rate, the Court moved closer to adopting the lodestar method. Zoll v. Eastern Allamakee Community School District, 588 F.2d 246, 252 (8th Cir. 1978). Zoll therefore appears to require the District Court to employ the Johnson factors only to raise an award over the lodestar amount. See also Cleverly v. Western Electric Co., 594 F.2d 638, 642 (8th Cir. 1979). Under unusual circumstances, however, a court may use the Johnson standards to reduce the fee requested by counsel. Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1273-74 (8th Cir. 1981) (extremely low quality representation); Robinson v. Moreland, 655 F.2d 887, 891-92 (8th Cir. 1981) (plaintiff prevailed over only one of the original defendants); Ladies Center, Nebraska, Inc. v. Thone, 645 F.2d 645, 647 (8th Cir. 1981) (inefficient use of time)....