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HARCEG v. BROWN

February 26, 1982

LOUIS J. HARCEG, GILBERT FARROW, WILLIAM J. ALTER, DONALD E. MASON, JR., JOHN M. JANSKY, KENNETH E. MAICKE, CORPORAL RALPH E. CONNARD, CORPORAL THOMAS W. GARDNER, CORPORAL STANLEY F. IWAN, LIEUTENANT JAMES A. MCGARVIE, JR., STEPHEN L. BJORKQUIST, JIMMY W. BRYANT, CHARLES HEINZELMANN, GREGORY H. GUNTHARP, ROBERT J. SCHENCK, CHARLES CHOSTNER, ANDREW J. GRADOWSKI, LIEUTENANT EMERSON R. KRAPF, CORPORAL CHESTER IWAN, CORPORAL TERRANCE CASHMORE, STEVE M. SEMENEK, DANIEL J. DUNN, BRUCE A. SCOTTBERG, RICHARD MULDER, RICHARD J. HAYNESWORTH, CHARLES J. MUTTSHALL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THOMAS BROWN, INDIVIDUALLY, AND AS SHERIFF OF LAKE COUNTY, THE COUNTY OF LAKE AND DONALD KROK AS THE CHAIRMAN OF THE LAKE COUNTY SHERIFF'S OFFICE MERIT COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

This civil rights action was filed in December, 1980, by twenty-eight Lake County, Illinois, deputy sheriffs on behalf of themselves and others similarly situated seeking declaratory, injunctive and monetary relief on the ground that Lake County Sheriff Thomas Brown ("Brown") had allegedly harassed and intimidated them for political reasons both before and after his election as Sheriff in November, 1978.*fn1 Plaintiffs also alleged that Donald Krok ("Krok"), Chairman of the Lake County Sheriff's Office Merit Commission, failed to provide hearings concerning Brown's alleged wrongful conduct as he was required to do and refused to act on a petition for relief that plaintiffs filed with the Merit Commission. Finally, plaintiffs alleged that Lake County itself unofficially sanctioned the policy, custom or practice of political discrimination of which plaintiffs complained within the meaning of 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), so as to be subjected to liability under the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983.

The usual adversarial process is further complicated in this case by the injection of the divergent political interests of the parties. The local political disputes that may in part have spawned this litigation have also carried over into the courtroom. Therefore, early in these proceedings, the Court granted a motion to appoint Mr. Miles J. Zaremski of the law firm of Fohrman, Lurie, Sklar & Simon as a special assistant state's attorney to represent Krok in light of the conflict of interest that would arise if Krok, Brown and the County were represented by the Lake County State's Attorney's Office in this litigation. See Harceg v. Brown, 512 F. Supp. at 790 (N.D.Ill. 1981).*fn2 The Court subsequently granted motions to appoint Messrs. Shayle P. Fox and Jeffrey A. Colby of the law firm of Fox & Grove as special state's attorneys to represent Brown when conflicts developed in his representation by the Lake County State's Attorney and to appoint Messrs. John C. Tucker and Sidney I. Schenkier of the law firm of Jenner & Block to represent the plaintiffs in connection with their defense of a counterclaim Brown filed against them alleging, inter alia, libel, slander and defamation. See Minute Orders dated July 20, 1981, and August 12, 1981, respectively. Mr. Fred L. Foreman ("Foreman"), Lake County State's Attorney, or his assistant Mr. David Weidenfeld, represented Lake County itself throughout this litigation.

Thus, when this case was filed in late 1980, it had all the ingredients necessary for the extended and lucrative employment of a dozen attorneys for many years.*fn3 The parties had long been at odds regarding the alleged politicization of the Lake County Sheriff's Office and efforts to resolve the dispute short of litigation had been unavailing. Nevertheless, counsel willingly acceded to the Court's suggestion that they attempt to resolve matters without a full-scale adversarial contest destined to be played out on all three levels of the federal judiciary. After months of intense negotiations by counsel for all parties concerned, the entire case was resolved by the entry of consent decrees between plaintiffs and each of the defendants on October 26, 1981, less than one year after it was filed. The decrees together provide the equitable relief that plaintiffs sought as well as monetary damages in the amount of $25,200.

The consent decree entered into between plaintiffs and Sheriff Brown provides that Brown, his successors and assigns will respect merit principles of public employment and will not attempt to chill the purpose or activities of the Lake County Sheriff's Office Merit Commission. The decree further provides that Brown will not condition any aspect of employment as a deputy sheriff upon an employee's past, present or future political support of any political party or candidate for public office, or lack of such support. The decree also establishes a grievance and arbitration procedure, as set forth in the agreement attached to and made a part of the decree, designed to resolve all disputes that might arise in connection with the employment of Lake County deputy sheriffs. The decree entered into between plaintiffs and Krok as Chairman of the Merit Commission provides that the Commission will conduct itself in accordance with recognized merit principles of public employment and, in particular, shall keep in force a rule prohibiting sheriff's deputies from participating in political activities. It further provides that the deputies shall have an opportunity to arbitrate decisions of the Commission after the Sheriff has brought charges before the Commission. The Commission is directed to act on the complaint by filing a written decision and report of its proceedings. The decree entered into between plaintiffs and Lake County provides that the County will recognize merit principles of public employment and that no political activity or financial contributions will be required of deputy sheriffs by any individual or organization in connection with his employment or otherwise. The County also agrees not to abolish the Merit Commission by any act or ordinance nor diminish its jurisdiction or effectiveness and to refrain from conditioning the employment of deputy sheriffs on past, present or future political affiliations. Finally, the decree provides that this Court retains jurisdiction over this matter for the purpose of determining the costs and attorneys' fees to be awarded and to enforce the decree or punish any violations of its provisions.

This matter is presently before the Court on the four petitions for attorneys' fees and costs contemplated by the decrees. Fee petitions have been filed by plaintiffs' attorney, Mr. Louis S. Goldstein, as well as by the three sets of special assistant state's attorneys representing Brown, Krok and the plaintiffs as counterdefendants. All the fee petitions are opposed, with varying degrees of intensity, by Lake County State's Attorney Foreman appearing on behalf of the County and its taxpayers.

The determination of the appropriate amount of attorneys' fees and costs to be awarded should not be made lightly or mechanically, particularly when, as here, public rather than private funds are involved. During the course of the proceedings in the case at bar, the Court stated both on the record and during in camera discussions with counsel for all parties concerned that it would look at any fee requests, particularly those to be filed by the special assistant state's attorneys, with great care since the taxpayers of Lake County would eventually have to pay the bill. For example, when the Fox & Grove law firm representing Brown requested that two additional attorneys be named as special assistant state's attorneys for the purpose of representing Brown, the Court granted the motion but admonished the attorneys already handling the case that it did not want the additional legal talent to be an excuse to increase unnecessarily the firm's billings to the County. At that time, the Court also indicated that it did not want the libel counterclaim filed on Brown's behalf to result in an increase in fees chargeable to the County since the counterclaim, at least on its face, appeared to be more politically motivated than it was related to Brown's official duties as Sheriff. See Transcript of Proceedings of August 21, 1981.

Yet, the Court is also aware that without the diligent efforts of all counsel involved in this matter, this case could have dragged on for months or years longer than it did, resulting in geometrically increasing legal fees to all counsel concerned to be paid by the taxpayers of Lake County. The lawyers involved in this case have conducted themselves, for the most part, in a highly professional manner, and they have been willing to work long hours including weekends or holidays in order to resolve this matter as swiftly and as economically as possible. Although there were some points at which agreement seemed beyond reach, the spirit of compromise existed throughout and ultimately prevailed. It is with these considerations in mind that we proceed to a discussion of the fees and costs to be awarded to plaintiffs' counsel and to the various special assistant state's attorneys.

   Attorney's Fees And Costs To The Prevailing Party Under 42
                          U.S.C. § 1988

Plaintiffs' counsel, Mr. Louis S. Goldstein ("Goldstein"), requests fees and costs pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1988, which provides that "[i]n any action or proceeding [under 42 U.S.C. § 1981-1983, 1985, 1986, or 2000d et seq.] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of its costs." Although section 1988 on its face leaves the award of fees to the discretion of the court, cases in this circuit make it clear that "a prevailing plaintiff should receive fees almost as a matter of course." Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979); Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978). Even nominal damages will justify a fee award to the prevailing party, Skoda v. Fontani, 646 F.2d 1193 (7th Cir. 1981), although the nominal nature of the damages is a factor to be considered in determining the amount of the award. Bonner v. Coughlan, 657 F.2d 931, 934 (7th Cir. 1981); Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979).

As a threshold matter, it is clear that a party may be considered to have prevailed within the meaning of section 1988 when rights are vindicated by the entry of a consent judgment rather than after a full trial on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); Dawson v. Pastrick, 600 F.2d 70, 78 (7th Cir. 1979). See also S.Rep.No.94-1011, 94th Cong., 2d Sess., at 5 (1976), reprinted in [1976] U.S.Code Cong. & Admin.News 5908, 5912. In this case, plaintiffs have clearly prevailed through the entry of the consent decrees described earlier in this opinion. They have secured defendants' agreement to respect merit principles of public employment in the Lake County Sheriff's Office and their pledge not to condition any aspect of employment upon political support, sponsorship or affiliation. In addition, the consent decrees establish a mechanism to enforce the principles embodied therein and provide for continuing jurisdiction of this Court so as to assure that defendants' undertakings are not merely empty promises. The named plaintiffs in this action will also receive a total of approximately $25,000 in monetary damages under the terms of their settlement with Lake County. Thus, under any view of this litigation, Mr. Goldstein's clients must be considered the prevailing parties within the meaning of section 1988.

The Seventh Circuit has stated that the factors to be considered in determining an appropriate fee award under section 1988 are those contained in Disciplinary Rule 2-106 of the Code of Professional Responsibility adopted by the American Bar Association. Bonner v. Coughlan, 657 F.2d 931, 934 (7th Cir. 1981); Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980); Hampton v. Hanrahan, 600 F.2d 600, 643 (7th Cir. 1979), reversed in part and remanded, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). Disciplinary Rule 2-106 provides in pertinent part as follows:

  Factors to be considered as guides in determining
  the reasonableness of a fee include the
  following:
    (1) The time and labor required, the novelty
  and difficulty of the questions involved, and the
  skill requisite to perform the legal service
  properly.
    (2) The likelihood, if apparent to the client,
  that the acceptance of the particular employment
  will preclude ...

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