United States District Court, Northern District of Illinois, E.D
February 3, 1981
WILLIAM C. WITHERSPOON, PLAINTIFF,
ALLYN R. SIELAFF, DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS.
The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
In January, 1976, William Witherspoon received a favorable judgment on
his civil rights complaint, granting him declaratory and injunctive
relief. Subsequently, Witherspoon moved for an order to show cause and a
contempt judgment against several defendants for violation of the order.
In that proceeding, Witherspoon was represented by attorneys from the law
firm of Jenner & Block. Mr. Witherspoon was again successful in his
litigation, as several defendants were held in civil contempt by order
dated March 6, 1978. The matter is now before the Court on Witherspoon's
petition for attorney's fees and costs.
This Court clearly has discretion to award attorney's fees as costs
under 42 U.S.C. § 1988, because the contempt proceeding
was brought to enforce a judgment order issued under 42 U.S.C. § 1983.
This discretion is not precluded by the eleventh amendment even though
the fee would ultimately come from the state treasury. Hutto v. Finney,
437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Bond v. Stanton,
630 F.2d 1231, 1232 n. 2 (7th Cir. 1980). Furthermore, "the trial court's
discretion is narrow; . . . a prevailing plaintiff should receive fees
almost as a matter of course." Dawson v. Pastrick, 600 F.2d 70, 79 (7th
Cir. 1979). It is only when special circumstances render an award unjust
that fees should be denied. Id.
Recognizing these standards, the defendants argue that special
circumstances exist in this case. They contend that fees should be denied
because Witherspoon's attorneys are from a large law firm that has
provided and will provide services pro bono publico regardless of the
availability of an eventual fee award, while the Illinois Department of
Corrections suffers budgetary limitations. Simply stated, the defendants
contend that "the Department of Corrections needs the money more than
does the firm of Jenner and Block. The public interest is better served
now by not depriving the Department of any of its disparately needed
funds." (Response In Opposition, p. 3). The defendants even go one step
further, apparently contending that Witherspoon's attorney have some
burden of persuasion in this matter: "Jenner and Block could not
demonstrate that its ability to work pro bono publico for essentially
indigent prisoner clients would be significantly reduced by a failure to
obtain fees of the type requested here." (Response In Opposition, p. 5).
These contentions represent a serious misunderstanding of the purposes
of a § 1988 award and are particularly inappropriate in this case
where only $2,423.79 is sought.
Certainly an important purpose of the Civil Rights Attorney's Fees
Awards Act of 1976, amending 42 U.S.C. § 1988, is to encourage
private enforcement and vindication of civil rights by providing recovery
of all costs. S.Rep.No. 94-1011, 94th Cong.2d Seas. 2, reprinted in
 U.S. Code Cong. & Ad.News 5908, 5910; see Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).
Arguably this legislative purpose played no role here for counsel
accepted appointment without exacting a fee from Mr. Witherspoon.
However, the Supreme Court has expressly recognized that the Awards Act
also has an important deterrent purpose: "the potential liability of
§ 1983 defendants for attorney's fees . . . provides additional
— and by no means inconsequential — assurance that agents of
the State will not deliberately ignore [constitutional] rights." Carey
v. Piphus, 435 U.S. 247, 258 n. 11, 98 S.Ct. 1042, 1049 n. 11, 55 L.Ed.2d
252 (1978). Thus, there would be no inconsistency with legislative
purpose by awarding fees as a deterrent, particularly in a case where the
defendants have violated a specific order of the Court.
Additionally, as another court recognized, Congress surely was aware
that many civil rights actions are accepted by attorneys pro bono publico
and commenced without expectation of compensation from the client. Yet
there is no limitation in § 1988 that fees be awarded only when
counsel has charged the client. Fees would not be granted "almost as a
matter of course" if that were the requirement. See Keyes v. School
Dist. No. 1, Denver Cola., 439 F. Supp. 393, 407 (D.Colo. 1977).
Furthermore, Jenner & Block should not be penalized for its past and
continued acceptance of pro bono work, while other attorneys might pursue
civil rights suits only because of the possibility of compensation. In
any event, if a successful plaintiff's ability to pay a fee is not a
special circumstance barring an award, Bunn v. Central Realty of
Louisiana, 592 F.2d 891 (5th Cir. 1979), then a successful plaintiff's
counsel's ability to absorb the costs of a lawsuit should not be a
special circumstance either. Congress did not intend that vindication of
statutorily guaranteed rights would depend on the private party's
resources or on the availability of free legal assistance. The ability to
pay is irrelevant; all that is required is the existence of an
attorney-client relationship. Gore v. Turner, 563 F.2d 159, 163-64 (5th
Moreover, the defendant's financial limitations are not determinative
on this issue. Similar arguments were presented by municipal officials to
the Seventh Circuit in Entertainment Concepts, Inc., III v. Maciejewski,
631 F.2d 497 (7th Cir. 1980). The court dismissed the contentions, first
stating that ability or inability to pay is not a special circumstance
that will bar an award and then noting that the fee would come from the
municipal treasury anyway. 631 F.2d at 507. In addition, any argument
that the disbursement of public monies for fee awards is an inappropriate
method of funding the enforcement of civil rights was implicitly rejected
by Congress. The Senate Report expressly anticipated that fees would be
paid from state and local governments. S.Rep.No. 94-1011, 94th Cong., 2d
Sess. 5, reprinted in  U.S.Code Cong. & Admin.News 5908, 5913.
Further, even the fact that counsel might already be receiving public aid
through a government funded or tax exempt organization has been rejected
as a "special circumstance" barring an award. See, e. g., Cole v.
Tuttle, 462 F. Supp. 1016, 1019 (N.D.Miss. 1978); Schmidt v. Schubert,
433 F. Supp. 1115, 1117-18 (E.D.Wis. 1977).
There is simply no basis in the statute, legislative history or caselaw
for the defendants' argument here. Pro bono services by members of the
Bar provide an invaluable service to the less fortunate in our society
and, thereby, to society as a whole. Congress clearly intended to
encourage this tradition of service in the field of civil rights
enforcement. Thus, even though individual attorneys or law firms may have
the financial resources to absorb the costs of pro bono services, they
are entitled to a fee award to encourage future service by them and
promote greater respect for our civil rights by all.
Accordingly, the request being reasonable in terms of time spent and
hourly rate, the petition for fees and costs is granted.
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