Herbst v. Ryan
Opinion of the Court
This appeal involves the appropriate allocation of responsibility for attorneys’ fees in a civil rights action. In the underlying action,. the plaintiffs sought declaratory and injunctive relief against the enforcement of certain amendments to Illinois’ Abortion Law.
I
BACKGROUND
A. The Underlying Litigation
The plaintiffs in the underlying civil rights action are a group of named Illinois physi
The underlying case was resolved when the parties proposed, and the district court approved, a consent decree enjoining enforcement of some of the challenged provisions. . The plaintiffs filed a petition for attorneys’ fees pursuant to 42 U.S.C. § 1988,
The district court declined to accept the magistrate judge’s allocation of liability for the fee award.
B. The Positions of the Parties
On appeal, the parties advance three different allocations of liability for the fee award. The State Defendants argue in favor of equal apportionment of the fee award between themselves and the class of State’s Attorneys. In their view, the district court erred in failing to assess a portion of the fee award against the State’s Attorneys who, as officials responsible for the enforcement of
The plaintiffs argue in favor of joint and several liability for the fee award. In their view, joint and several liability best serves the broad remedial purposes of section 1988 and avoids the “uncertain” and “cumbersome” process of collecting a judgment from the State of Illinois. Joint and several liability is appropriate, the plaintiffs assert, because the civil rights violation alleged in their complaint — the threatened enforcement of a constitutionally defective statute — was indivisibly effected by all the defendants, and “liability on the merits and responsibility for fees go hand in hand.” See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985). The plaintiffs contend that state courts and state indemnification law — not the district court— should provide the framework for “appropriate shifting of financial burdens” related to the fee award. Venuti v. Riordan, 702 F.2d 6, 8 (1st Cir. 1983).
The State’s Attorneys defend the district court’s allocation of liability for the fee award. The State’s Attorneys contend that, given the nature of the plaintiffs’ claim — a challenge to the constitutionality of a state statute that had yet to be enforced by any State’s Attorney — the State of Illinois is the proper party to pay the attorneys’ fees generated in this litigation. The plaintiffs commenced this action to prevent the State’s Attorneys from enforcing state law. When acting in this capacity- — the enforcement of state law — the State’s Attorneys are state, and not local, officials. See Ingemunson v. Hedges, 133 Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990); Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992), cert. denied, 508 U.S. 942, 113 S.Ct. 2421, 124 L.Ed.2d 643 (1993). Accordingly, the State’s Attorneys assert, the district court’s allocation of liability for the fee award is proper.
II
DISCUSSION
A.
Section 1988 provides that a district court, “in its discretion,” may award attorneys’ fees to the prevailing party in a civil rights action. 42 U.S.C. § 1988(b). Recognizing the fact-sensitive nature of many fee-related determinations, our eases have articulated a “highly deferential abuse of discretion standard for appellate review.” McNabola v. Chicago Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993) (quoting Leffler v. Meer, 936 F.2d 981, 984 (7th Cir. 1991)).
B.
As the case law of the circuits amply demonstrates, the allocation of liability for attorneys’ fees remains an area in which there is no simple formula of universal applicability. See Council for Periodical Distribs. Ass’ns v. Evans, 827 F.2d 1483, 1487 (11th Cir. 1987); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 959 (1st Cir. 1984). A number of different approaches have been advanced for various situations.
Nevertheless, although the task of determining how the burden of attorneys’ fees ought to be allocated does not admit of a single solution, the case law does suggest several guideposts of general applicability that ought to inform the district court’s discretion in determining the appropriate allocation for a particular case. First, the district courts ought to consider the broad remedial purposes of the Civil Rights Act and the role that section 1988 plays in effectuating these goals. See Pulliam v. Allen, 466 U.S. 522, 543-44, 104 S.Ct. 1970, 1981-82, 80 L.Ed.2d 565 (1984). In enacting section 1988, Congress took the view that private enforcement frequently would be necessary to remedy violations of the civil rights laws and that fee awards provide the necessary encouragement to private citizens to file suit to correct such violations. As we noted in Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), cert. denied, 492 U.S. 905, 109 S.Ct. 3214, 106 L.Ed.2d 564 (1989), the “overriding goal” of section 1988 is to reimburse, with a reasonable attorneys’ fee, “those ‘private attorneys general’ who invoke and thereby invigorate federal constitutional and statutory rights.” Id. at 1063; see Lynch v. Milwaukee, 747 F.2d 423, 426 (7th Cir. 1984) (noting than an award under section 1988 is to be “based on the totality of
A second factor to be considered when the injury to the plaintiff is not divisible is the relative responsibility of each defendant. It is frequently appropriate to hold all defendants jointly and severally liable for attorneys’ fees in cases in which two or more defendants actively participated in a constitutional violation. See Koster v. Perales, 903 F.2d 131, 138 (2d Cir. 1990). When this approach is adopted, the court must be careful, however, to do so consistently with the preexisting background of substantive liability rules. Id. at 139. However, joint and several liability is not appropriate in every ease involving an indivisible injury. See Council for Periodical Distribs. Ass’ns, 827 F.2d at 1487. For instance, it may be appropriate for the district court to apportion fees between an active instigator of a wrong and a more passive codefendant who had a more peripheral or ministerial role in the wrong. See id.
Third, the district courts’ discretion in fashioning a fee award ought to take into consideration other institutional concerns. Prominent among these concerns is the preservation of federalism. This consideration counsels against unnecessary intrusions into the state’s own internal methods of allocating financial burdens. Accordingly, and although some degree of intrusion is inevitable in these cases, the district courts must be careful to avoid the unnecessary “tracing back” of liability for the fee award to the appropriate state or local tax fund. See Venuti, 702 F.2d at 8. As Justice (then Circuit Judge) Breyer pointed out in Venuti, consideration of this policy concern is not always in tension with the fulfillment of the purposes of the Act.
[T]he practical difficulties that would accompany any requirement that courts trace the cost dollar back to the most appropriate “tax pot” suggest that Congress had no such legal rule in mind. The state can more easily provide for appropriate shifting of financial burdens when it enacts indemnification statutes.
Id. In short, avoiding the “practical difficulties” that might hamper the administration of section 1988 can also keep the court clear of interference with local decisions on matters of state tax policy and contribution.
Finally, the district court “should make every effort to achieve the most fair and sensible solution that is possible,” Grendel’s Den, 749 F.2d at 960, and ought to make this assessment without transforming the “consideration of a fee petition [into a] ‘second major litigation.’ ” Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 244 n. 20, 105 S.Ct. 1923, 1929 n. 20, 85 L.Ed.2d 233 (1985) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)).
C.
We turn now to the ease before us. Although the other considerations set forth above must constantly cast a cross-light on our inquiry, as the parties recognize in their submissions before us, it is the second consideration (relative responsibility of each defendant) that requires, under the circumstances presented here, the focus of our attention.
At the outset, it is important that we pause and take note of the precise task, that this appeal brings to us. The underlying action in this case was an action seeking declaratory and injunctive relief against the enforcement of a state statute that was applicable throughout the State of Illinois. The named defendants were the Attorney General of the State, the Director of Public Health and the State’s Attorneys. All of these officers appeared in their official capacities. The district court was asked to enter an order directing them to perform their official duties in conformity to the Constitution of the Unit
Liability can be imposed on a governmental entity, and on its officer in his official capacity, only when that governmental entity is the “moving force” behind the constitutional wrong that forms the basis of the suit. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). Here, the Attorney General of the State and the State Director of Public Health clearly undertook the defense of the challenged amendments on behalf of the state.
In determining that the State of Illinois ought to bear the responsibility for the fee award, the district court certainly in no way impaired the purposes of § 1988
Conclusion
■ The district court did not abuse its discretion in its assessment of the fee award. Accordingly, the judgment of the district court is affirmed.
Affirmed.
. The Illinois General Assembly enacted the challenged amendments on June 30, 1984. No executive action was required for the amendments to take effect; the General Assembly had passed the amendments over the veto of the Governor. The following day, the presiding emergency judge of the district court granted the plaintiffs' request for a one-day temporary retraining order enjoining the enforcement of the amendments. On Monday, July 2, 1984, the plaintiffs filed their original complaint.
. Contrary to the State's Attorneys' suggestion, the plaintiffs do have standing to challenge the district court's allocation of liability for the fee award. In our view, the plaintiffs' assertion that the allocation would prejudice their ability to collect the fee award states an injury that is sufficient to establish standing to challenge the award. See Wooten v. Loshbough, 951 F.2d 768, 769 (7th Cir. 1991) ("We may assume that the defendant's activities made it less likely that [the plaintiff] would collect her judgment; and probabilistic injury is enough to establish standing in the Article III sense.”).
. Unless otherwise necessary, we shall refer to the Attorney General of Illinois and to the Director of Public Health collectively as the "State Defendants." State's Attorney O'Malley and the class of 102 State’s Attorneys will be referred to as the "State’s Attorneys."
. 42 U.S.C. § 1988(b) provides that, in federal civil rights actions, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
. The defendants also raised various objections to those portions of the magistrate judge’s Report and Recommendation addressing the plaintiffs' status as "prevailing parties” and the calculation of the fee award. The district court overruled the defendants' objections with respect to these matters, and the parties have not pursued them before this court. The sole issue on appeal, therefore, is the district court’s allocation of liability for the fee award.
. Under Illinois law, each State’s Attorney’s office is funded by the treasury of the county that it serves. See 55 ILCS 5/4-2001, 5/4-3001, 5/4-2003, 5/5-1106. Similarly, all fees, fines and forfeitures collected by each State's Attorney are turned over to the county treasury. See 55 ILCS 5/4-2005, 5/4-2006.
. See Maul v. Constan, 23 F.3d 143, 148 (7th Cir. 1994) (Flaum, L, dissenting) ("Indeed, in view of the text of § 1988 and the policies behind it, it is not surprising that reasonableness' and ‘discretion’ are the hallmarks of the fee determination.”); Carston v. County of Cook, 962 F.2d 749, 753 (7th Cir. 1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 974, 122 L.Ed.2d 128 (1993); see, e.g., Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1351 (7th Cir. 1995) (reviewing reasonableness of a fee award for an abuse of discretion); Estate of Borst v. O'Brien, 979 F.2d 511, 517 (7th Cir. 1992) (reviewing award of costs for an abuse of discretion); Munson v. Milwaukee Bd. of Sch. Directors, 969 F.2d 266, 269 (7th Cir. 1992) (reviewing decision to award fees for an abuse of discretion); Dixon v. City of Chicago, 948 F.2d 355, 358 (7th Cir. 1991) (reviewing de
.See Corder v. Gates, 947 F.2d 374, 381 (9th Cir. 1991) (reviewing district court’s refusal to allocate liability for the fee award among multiple defendants); Koster v. Perales, 903 F.2d 131, 139 (2d Cir. 1990) ("The allocation of fee liability is a matter committed to the district court's discretion and will not be disturbed unless the determination evidences an abuse of discretion."); Council for Periodical Distribs. Ass’ns v. Evans, 827 F.2d 1483, 1487 (11th Cir. 1987) ("In addition to having discretion on when to apportion fees, district courts also have wide discretion on how to divide liability for fees.”); cf. Anderson v. Flexel, Inc., 47 F.3d 243, 251 (7th Cir. 1995) (noting, in the context of determining the liability for a fee award under ERISA, that “[d]istrict courts usually have great discretion whether to apportion fees among defendants").
. These range from the relatively simple — dividing fees equally among the defendants, see, e.g., Stocker, 819 F.2d at 945-46, 950-51 — to the more sophisticated methods of apportionment based on relative culpability, see, e.g., Crosby, 683 F.2d at 1075, and of apportionment by the relative time spent litigating against each defendant, see, e.g., Perales, 903 F.2d at 139. See generally, Grendel’s Den, 749 F.2d at 959-60; Mary Frances Durfer et al., Court Awarded Attorney Fees para. 17.03 at 17-13 to 17-17.
. Council for Periodical Distribs. Ass’ns, 827 F.2d at 1488; Grendel's Den, 749 F.2d at 960.
. In conjunction with this inquiry, the district courts may consider the relative ability of each defendant to pay the award. See Grendel’s Den, 749 F.2d at 960. It is important to note, however, that, although consideration of a defendant's ability to pay may serve the remedial purposes of the Civil Rights Act in some cases, a defendant may not use its inability to pay to insulate itself from liability for the fee award. See id. (noting that, although ability to pay is entitled to "relatively little weight,” it may point to the same conclusion as the other considerations).
. See Ill. Const, art. V, § 15; 15 ILCS 205/4; see also Ill.S.Ct.Rule 19(c); McCrimmon v. Daley, 418 F.2d 366, 367 (7th Cir. 1969); Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill. 1971), vacated on other grounds, 410 U.S. 950, 93 S.Ct. 1410, 35 L.Ed.2d 682 (1973); Oak Woods Cemetery Ass'n v. Murphy, 383 Ill. 301, 50 N.E.2d 582 (1943).
. There is no evidence of record to support the plaintiffs' suggestion that their ability to collect the judgment from Illinois is "uncertain.” We cannot conclude that the remedial purposes of the Civil Rights Act are not served adequately by the district court’s allocation1 of the fee award. We note that a number of courts have upheld the imposition of joint and several liability for a fee award where there existed a question as to whether the fee would be collectible from one of the defendants. See Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279, 286-87 (3d Cir. 1983); Riddell v. National Democratic Party, 712 F.2d 165, 168-69 (5th Cir. 1983). We need not determine in this case the circumstances, if any, under which it would be appropriate for a district court to reallocate responsibility between a state and its subdivision on this ground.
Reference
- Full Case Name
- Arthur L. HERBST, Marvin Rosner, David Zbarz, M.D. v. James E. RYAN, Attorney General of Illinois and John R. Lumpkin, M.D., Director of the Illinois Department of Public Health, and Jack O'Malley, State's Attorney of Cook County, Illinois, as class representative of all 102 Illinois State's Attorneys, Cross-Appellee
- Cited By
- 13 cases
- Status
- Published