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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,
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.
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
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 ...