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KRISLOV v. REDNOUR

April 21, 2000

CLINTON A. KRISLOV AND JOAN A. SULLIVAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
V.
WANDA L. REDNOUR, CHAIRMAN OF THE STATE BOARD OF ELECTIONS; HANNELORE HUISMAN, VICE CHAIRMAN OF THE STATE BOARD OF ELECTIONS; RONALD D. MICHAELSON, EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; AND KENNETH R. BOYLE, JUDITH A. JONES, MITCHELL P. KOBELINSKI, DAVID E. MURRAY, LANGDON D. NEAL, AND THERESA M. PETRONE, MEMBERS OF THE STATE BOARD OF ELECTIONS, DEFENDANTS.



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

    MEMORANDUM OPINION AND ORDER

In 1996, Clinton Krislov ran for the Democratic party's nomination as a U.S. Senator, while Joan Sullivan sought nomination as a Representative in the U.S. House of Representatives. Pursuant to the Illinois Election Code, as administered by the Illinois State Board of Elections, to be placed on the primary ballot, a candidate must gather a requisite number of valid nominating signatures. The plaintiffs' nominating petitions contained more than the requisite number of signatures, but objectors challenged the validity of these signatures on various grounds set forth in the Election Code, including that the circulators that collected signatures on the petitions were not registered voters in the political division the plaintiffs were seeking nomination.

Fighting these objections consumed time and resources; Mr. Krislov withdrew from the race, and Ms. Sullivan lost her bid for the nomination. As a result, Mr. Krislov brought this action, alleging that certain provisions of the Illinois Election Code and certain procedures and practices of the State Board of Elections violated their First and Fourteenth Amendment Rights. Joan Sullivan was added as a named plaintiff in the Amended Class Action Complaint which sought class-wide declaratory and injunctive relief pursuant to 42 U.S.C. § 1983.

I granted the plaintiffs' motion for class certification but dismissed some of their claims. The parties thereafter settled all but one of the claims. On July 7, 1999, after the Supreme Court ruled on a very similar case, I granted summary judgment for the plaintiffs on the issue that the Election Code's requirement that a petition circulator be a registered voter in the candidate's political division is unconstitutional. Based on the grant of summary judgment, the plaintiffs move here for attorneys' fees and costs under 42 U.S.C. § 1988.*fn1 The defendants object claiming, first, that Mr. Krislov is not entitled to any fees because he represented himself, and second, that the attorneys' fees and costs sought are unreasonable.

I.

The defendants argue that the plaintiffs are not entitled to any attorneys' fees because Mr. Krislov essentially represented himself in this lawsuit, which they deem a class action in name only. The defendants claim that there was limited contact with the other plaintiffs — including Ms. Sullivan, none of whom were ever contacted regarding dispositive motions or settlement negotiations. According to the defendants, Mr. Krislov was the only plaintiff who suffered actual harm or was involved in the lawsuit in any meaningful manner. Because Mr. Krislov's own firm represented him and the "plaintiff class," the defendants claim that no attorneys' fees may be awarded. They rely upon Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), in which the Supreme Court held that an attorney who, representing himself, successfully challenged a Kentucky ballot restriction statute was not entitled to attorneys' fees under the fee provision of 42 U.S.C. § 1988.

The plaintiffs first claim Kay does not apply because Krislov & Associates, not Mr. Krislov himself, was counsel in this litigation. This argument, that Mr. Krislov should be treated separately from the law firm that bears his name, and in which he is the only partner, is unconvincing. It is impossible to believe that Mr. Krislov was not calling the shots in this lawsuit, and he admits as much in the affidavit submitted along with the fee petition. Next, plaintiffs argue that the Kay rule does not apply where, as here, an attorney represents himself and other parties to the litigation. They rely upon Schneider v. Colegio De Abogados De Puerto Rico, 187 F.3d 30 (1st Cir. 1999), in which the First Circuit distinguished Kay and granted attorneys' fees to a plaintiff who represented himself and another attorney in a lawsuit which succeeded in invalidating the use of bar dues for ideological purposes by the mandatory bar of Puerto Rico. In so holding, the court stated:

The first question is whether any fees should be awarded in light of the fact that attorney Schneider was a plaintiff as well as counsel. Here, Ramos is a plaintiff and Schneider also represented Ramos; the fees incurred by plaintiffs are essentially the same whether or not Schneider was also a plaintiff. . . . Thus, in our view, the prohibition in Kay against awarding attorney's fees to an attorney pro se litigant does not apply. Schneider, 187 F.3d at 32.

The Court's holding in Kay, which creates a limited exception to the general policy in favor of recovery of attorneys' fees, is narrow: a pro se plaintiff, even one who is an attorney, is not entitled to an award of attorneys' fees under 42 U.S.C. § 1988. Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991). Mr. Krislov was not a pro se plaintiff, so Kay does not control here. Were he the only plaintiff, he would be entitled to no attorneys' fees under Kay, but Ms. Sullivan is also a named plaintiff, the plaintiff class was certified, and Krislov & Associates was deemed adequate class counsel. The Kay Court stated that "the word `attorney' assumes an agency relationship as the predicate for an award under § 1988." Id. at 436, 111 S.Ct. 1435. Here, an attorney relationship existed between Mr. Krislov, Ms. Sullivan, and the rest of the plaintiff class, so the predicate is met.

As to defendants' argument that this case has always been about only one plaintiff, Mr. Clinton Krislov, it is true that Mr. Krislov instituted this action because of events which occurred during his primary campaign, and he was the most obviously harmed by the restrictions. Nonetheless, he was not proceeding pro se. Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975) (a pro se plaintiff cannot bring a class action). Moreover, his actions have changed the process for becoming a candidate and presumably opened up the democratic process. To this extent, Mr. Krislov has done a service to the citizens of Illinois, who may have been harmed either because they wished to run for office or because their choices were limited by these procedures. It is well-established that a prevailing plaintiff under civil rights legislation should receive attorneys' fees almost as a matter of course. Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir. 1980) (quoting Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978)). The Supreme Court has previously recognized that Congressional policy favors private enforcement of civil rights acts and mandates a liberal construction of attorney's fee statutes. Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). I doubt the Court intended to extend Kay to prohibit attorneys' fees in all situations where an attorney-client relationship exists, but the attorney also has a personal interest in the outcome of the case and any fees awarded. I therefore conclude that Kay does not preclude the plaintiffs from recovering reasonable attorneys' fees.*fn2

II.

Having determined that Mr. Krislov may seek attorneys' fees, I must now determine what award is appropriate. As a threshold matter, a party prevails for purposes of 42 U.S.C. § 1988 if it succeeds on a "significant issue in the litigation which achieves some of the benefits the plaintiffs sought in bringing suit." Zabkowicz v. West Bend Co., 789 F.2d 540, 548 (7th Cir. 1986). As I stated above, the plaintiffs, having won summary judgment, have prevailed on a significant issue of constitutional law and achieved a vindication of civil rights for the benefit of voters and candidates in Illinois. As such, they are entitled to their reasonable attorneys' fees.*fn3

To calculate attorneys' fees under Section 1988, I begin with the number of hours reasonably expended on the case multiplied by a reasonable hourly rate, then look to other factors*fn4 which may lead to an upward or downward adjustment of the fee. Hensley v. Eckerhart, 461 U.S. at 433-37, 103 S.Ct. 1933; Gekas v. Attorney Registration & Disciplinary Comm'n, 793 F.2d 846, 851-52 (7th Cir. 1986). The defendants object ...


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