Phelps v. Hamilton

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 12 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
FRED W. PHELPS, SR., JONATHAN B.
PHELPS, KARL D. HOCKENBARGER,
CHARLES F. HOCKENBARGER,
TIMOTHY B. PHELPS,
MARGIE J. PHELPS,
No. 95-3403
Plaintiffs-Appellants,
v.
JOAN HAMILTON, in her official
capacity as District Attorney,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 93-4148-LRW)
Elizabeth M. Phelps, Phelps-Chartered, Topeka, Kansas, and Margie J. Phelps, Topeka,
Kansas, for Plaintiffs-Appellants.
Deanne Watts Hay and Martha A. Peterson, Sloan, Listrom, Eisenbarth, Sloan &
Glassman, L.L.C., Topeka, Kansas, for Defendant-Appellee.
Before BRORBY, HENRY, and MURPHY, Circuit Judges.*
*
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
HENRY, Circuit Judge.
This case is before us on appeal from the district court’s order denying the
plaintiffs’ petition for an award of attorney’s fees under 42 U.S.C. § 1988. The district
court found that while the plaintiffs were a “prevailing party” for purposes of awarding
fees, the plaintiffs’ degree of success on their claims did not justify an award. We
exercise jurisdiction under 28 U.S.C. § 1291 and reverse and remand.
BACKGROUND
The underlying action here arises from the plaintiffs’ 42 U.S.C. § 1983 suit
seeking declaratory and injunctive relief from state criminal prosecutions arising in
response to their anti-homosexual picketing and from three state statutes which allegedly
threatened their picketing activities. The plaintiffs sought to enjoin the defendant,
District Attorney Joan Hamilton, from enforcing valid criminal laws against them,
alleging that Ms. Hamilton brought the state prosecutions in bad faith violation of their
First Amendment rights. The plaintiffs also sought declaratory relief concerning the
constitutionality of the three state statutes under which they had not been prosecuted: the
Kansas Funeral Picketing Act, Kan. Stat. Ann. § 21-4015 (1995); the Kansas Anti-
Stalking Statute, Kan. Stat. Ann. § 21-3438 (1995); and the telefacsimile amendment to
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the Kansas Telephone Harassment Statute, Kan. Stat. Ann. § 21-4113 (1995).
In several separate rulings, the district court granted summary judgment for the
plaintiffs on their constitutional challenge to the Kansas Funeral Picketing Act, but held
for Ms. Hamilton on the bad faith and two additional statutory claims. First, on
December 23, 1993, the district court ruled that while the plaintiffs had constitutional
standing to bring a facial challenge to the Kansas Funeral Picketing Act because the Act
targeted the plaintiffs and had a “chilling” effect on their First Amendment rights, they
did not have standing to challenge the Kansas Anti-Stalking Statute or the telefacsimile
amendment to the Kansas Telephone Harassment Statute. Second, on March 31, 1995,
the district court granted Ms. Hamilton partial summary judgment, holding that the state
trial court rulings that the state prosecutions were not brought in bad faith were entitled to
full faith and credit pursuant to 28 U.S.C. § 1738. Third, on April 28, 1995, the district
court granted the plaintiffs summary judgment on their facial challenge to the Kansas
Funeral Picketing Act, finding the statute unduly vague in its use of the terms “before”
and “after a funeral.” Finally, after the Kansas legislature amended this language in the
Kansas Funeral Picketing Act to read “within one hour prior to, during and two hours
following the commencement of a funeral,” the district court, on July 27, 1995, denied the
plaintiffs’ motion for modification and supplementation of the April 28, 1995 order,
which sought rulings on other constitutional aspects of the Kansas Funeral Picketing Act.
Subsequent to these rulings, the plaintiffs moved for an award of attorney’s fees on
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the ground that they were prevailing parties as to their constitutional challenge to the
Kansas Funeral Picketing Act. On November 13, 1995, the district court ruled that while
plaintiffs were “prevailing parties” under 42 U.S.C. § 1988, based upon its consideration
of the degree of the plaintiffs’ overall success and the nature of the relief awarded, it
determined that a fee award was not appropriate in this case. In addition, the court noted
that pro se plaintiffs may not recover fees under § 1988 and, therefore, Margie J. Phelps,
who was both a plaintiff and an attorney in the case, “would not be entitled to an award of
attorney’s fees under any circumstances.” Aplts’ app., at 85 n.3 (Dist. Ct. Order dated
Nov. 13, 1995). The plaintiffs now appeal that decision.
DISCUSSION
We review a district court’s decision to award or deny attorney’s fees under 42
U.S.C. § 1988 for an abuse of discretion. Withiam v. Baptist Health Care of Oklahoma,
Inc., 98 F.3d 581, 584 (10th Cir. 1996). Under this standard, the district court should
“provide a concise but clear explanation of its reasons for the fee award.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); accord Beard v. Teska, 31 F.3d 942, 955 (10th Cir.
1994). Although the ultimate decision to award fees rests within the district court’s
discretion, any statutory interpretation or other legal conclusions that provide a basis for
the award are reviewable de novo. Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986).
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Section 1988(b) provides that in federal civil rights actions “the court, in it
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). This language indicates that
there are two elements in deciding whether to award attorney’s fees. First, the party
seeking fees must qualify as a “prevailing party.” Second, the fee itself must be
“reasonable.” See id. Furthermore, while § 1988(b) grants the district court “discretion”
in awarding fees, we have previously recognized that Congress intended this discretion to
be narrow once the plaintiff meets the “prevailing party” inquiry. See Chicano Police
Officers Ass’n v. Stover, 624 F.2d 127, 130 (10th Cir. 1980) (“A party seeking to enforce
the rights protected by [the Civil Rights Act of 1964], if successful ‘should ordinarily
recover an attorney’s fee unless special circumstances would render such an award
unjust.’”)) (quoting S. Rep. No. 1011, 94th Cong., 2nd Sess. 4 (1976), reprinted in 1976
U.S.C.C.A.N. 5908, 5912).
The first question in determining whether a party is entitled to attorney’s fees
under § 1988 is whether he or she qualifies as a “prevailing party.” Under its “generous
formulation” of the term, the Supreme Court has held that a plaintiff “prevails” “when
actual relief on the merits of his claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly benefits the
plaintiff.” Farrar v. Hobby, 506 U.S. 103, 109, 111-12 (1992). Accordingly, the elements
of “prevailing party” status include “at least some relief on the merits” of the plaintiff’s
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claim and relief through “an enforceable judgment against the defendant . . . or
comparable relief . . . .” Id. at 111. Furthermore, the Court added that the “prevailing
party inquiry does not turn on the magnitude of the relief obtained” and that the “‘degree
of the plaintiff’s success’ does not affect ‘eligibility for a fee award.’” Id. at 114 (quoting
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989)).
In the instant case, the district court determined that the plaintiffs prevailed “on
one of two issues in this litigation and in so doing, achieved some of the benefit they
sought in bringing suit.” Aplts’ app. at 84 (Dist. Ct. Order dated Nov. 13, 1995). The
prevailing claim referred to by the district court was the court’s declaratory judgment that
the Kansas Funeral Picketing Act was unconstitutionally vague. See id. at 82. On this
basis, the district court held that the plaintiffs had met the threshold “prevailing party”
test and were technically eligible for attorney’s fees. See id. at 84.
We agree with the district court on this question. The plaintiffs brought four
substantive claims in their civil rights case--one of which challenged the constitutionality
of the Kansas Funeral Picketing Act. Although the plaintiffs were not charged under the
Kansas Funeral Picketing Act, they were able to establish constitutional standing to
facially challenge the statute because “the plaintiffs’ First Amendment rights arguably
were chilled from the resulting threat of arbitrary enforcement.” Phelps v. Hamilton, 840
F. Supp. 1442, 1462 (D. Kan. 1993). The district court then found the terms “before” and
“after” a funeral as used in the Kansas Funeral Picketing Act were unconstitutionally
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vague--thereby preventing the defendant or any other state prosecutor from utilizing the
Kansas Funeral Picketing Act to bring an enforcement action against the plaintiffs or
anyone else. See Aplt’s App. at 93 (Dist. Ct. Order dated Apr. 28, 1995).
While the declaratory judgment in this case was not directly enforceable against
Ms. Hamilton, this court has previously held that a district attorney’s failure to take
official action to enforce a statute does not bar an award of attorney’s fees arising from a
declaratory judgment invalidating that statute. See Wilson v. Stocker, 819 F.2d 943, 951-
52 (10th Cir. 1987). In Wilson, we held that an attorney’s fee award against a district
attorney in a declaratory judgment action was not excused due to the district attorney’s
failure to enforce the statute in question. See id. The reasoning behind this holding is
that the purpose of § 1988 is not to penalize defendants, but rather to encourage injured
individuals to seek relief. See id. at 951. See also In re Kansas Congressional Dist.
Reapportionment Cases, 745 F.2d 610, 612 (10th Cir. 1984) (stating that “‘[f]ee awards
against enforcement officials are run-of-the-mill occurrences, even though, on occasion,
had a state legislature acted or reacted in a different or more timely manner, there would
have been no need for a lawsuit or for an injunction’”) (quoting Supreme Ct. of Va. v.
Consumers Union of the United States, 446 U.S. 719, 739 (1980)). Therefore, the
plaintiffs met the two required elements to achieve “prevailing party” status: they
obtained “at least some relief on the merits” of their claims and materially altered “the
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legal relationship between the parties by modifying the defendant’s behavior in a way that
directly benefit[ted] the plaintiff[s].” Farrar, 506 U.S. at 111-12.
The second question in the attorney’s fees inquiry is to determine what amount of
“reasonable attorney’s fees” should be awarded to the prevailing party. 42 U.S.C. §
1988(b). A court will generally determine what fee is reasonable by first calculating the
lodestar--the total number of hours reasonably expended multiplied by a reasonable
hourly rate--and then adjust the lodestar upward or downward to account for the
particularities of the suit and its outcome. See Hensley, 461 U.S. at 433-34. In cases
which result in a merely technical or de minimus award, however, a court may “lawfully
award low fees or no fees” without calculating a lodestar. Farrar, 506 U.S. at 115. Thus,
“[i]n some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should
receive no attorney’s fees at all.” Id. at 115. The rationale for this rule, as explained by
the Court, is that “‘if a plaintiff has achieved only partial or limited success, the product
of hours reasonably expended on the litigation as a whole times a reasonable hourly rate
may be an excessive amount.’” Id. at 114 (quoting Hensley, 461 U.S. at 436).
In determining the amount of the attorney’s fees in this case, the district court
relied on Farrar in concluding that the circumstances of this case dictated that no fee
should be awarded. The basis for this holding was three-fold: (1) the plaintiffs did not
succeed on their “primary claim” which sought to invalidate the underlying state
prosecutions as unconstitutional; (2) “[t]he plaintiffs themselves have complained that
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this Court’s Judgment in their favor on the Act’s unconstitutionality afforded them ‘no
definitive final relief . . . .’”; and (3) pro se plaintiffs, including pro se lawyers, such as
Margie J. Phelps, may not recover fees under any circumstances under § 1988. See Aplts’
App. at 85 nn.1-3 (Dist. Ct. Order dated Nov. 13, 1995). Based on this reasoning, the
district court concluded that “the plaintiffs’ overall success in this case and the nature of
the relief awarded” made this case fall within “that category of cases described by the
Supreme Court in Farrar where the most appropriate and reasonable fee award is no fee at
all.” Id. at 85.
Based upon the record before us, we disagree with the district court’s ruling that
the present case fits within that narrow category of cases where no attorney’s fees should
be awarded. The general rule under § 1988 is that “the prevailing party ‘should ordinarily
recover an attorney’s fee unless special circumstances would render such an award
unjust.’” Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989) (quoting Newman v. Piggie
Park Ents., Inc. 390 U.S. 400, 402 (1968)); see Dahlem, 901 F.2d at 1514. In enacting §
1988, Congress pointed out that “[a]ll of these civil rights laws depend heavily upon
private enforcement, and fee awards have proved an essential remedy if private citizens
are to have a meaningful opportunity to vindicate the important Congressional policies
which these laws contain.” S. Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976), reprinted
in 1976 U.S.C.C.A.N. 5908, 5910. In view of this clearly expressed congressional intent,
our circuit has recognized that the “district court’s discretion to deny fees to a prevailing
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party is quite narrow.” Wilson, 819 F.2d at 951 (citing J&J Anderson, Inc. v. Town of
Erie, 767 F.2d 1469, 1474 (10th Cir. 1985)) (“[T]here are few cases denying attorney fees
to a prevailing party as unjust under § 1988,” and “[a] strong showing of special
circumstances is necessary to support a denial.”).
In analyzing whether a plaintiff’s victory is purely technical or de mininis, we look
for guidance to Justice O’Connor’s concurrence in Farrar which distills various principles
from the Court’s § 1988 case law into a three-part test to determine whether a prevailing
party achieved enough success to be entitled to an award of attorney’s fees. The “relevant
indicia of success” in such cases are: (1) the difference between the judgment recovered
and the recovery sought; (2) the significance of the legal issue on which the plaintiff
prevailed; and (3) the public purpose of the litigation. 506 U.S. at 121-22 (O’Connor, J.,
concurring). See Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996)
(adopting Justice O’Connor’s three-part approach to evaluate whether a plaintiff’s victory
was merely technical or de mininis); Jones v. Lochart, 29 F.3d 422, 423-24 (8th Cir.
1994) (same); Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993) (same).
The first and “‘most critical factor’ in determining the reasonableness of a fee
award is ‘the degree of success obtained.’” Farrar, 506 U.S. at 114 (quoting Hensley, 461
U.S. at 436). The plaintiffs in this case sought injunctive and declaratory relief with
regard to their underlying state court prosecutions and three state statutes. Although, as
the district court points out, the plaintiffs did not succeed on their “primary” bad faith
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claim, they did obtain a declaratory judgment overturning the Kansas Funeral Picketing
Act as unconstitutionally vague. That the plaintiffs prevailed on only one of their four
underlying claims itself does not diminish the reasonableness of awarding some
attorney’s fees commensurate with their legal efforts in bringing that claim. See Jane L.
v. Bangerter, 61 F.3d 1505, 1511 (10th Cir. 1995) (holding that plaintiffs’ success on two
of their eight challenges to the Utah’s Abortion Act resulted in success sufficient to award
attorney’s fees based upon a qualitative assessment of the relative importance of
plaintiffs’ successes and failures). Accordingly, this factor does not weigh in favor of
characterizing the plaintiffs’ victory as merely technical or de mininis.
The second factor in the Farrar calculus goes beyond the actual relief awarded to
examine the extent to which the plaintiffs succeeded on their theory of liability. See 506
U.S. at 121 (O’Connor, J. concurring). In the underlying action, the plaintiffs sought
declaratory relief invalidating the Kansas Funeral Picketing Act on its face and as applied
to them. The district court ruled that the plaintiffs did not have standing to challenge the
Kansas Funeral Picketing Act as applied, but that they did have standing to bring a facial
challenge. The plaintiffs’ facial challenge proceeded on three theories: “(a) It is
overbroad in that it permits application to protected speech. (b) It is unduly vague in its
use of the terms “before”, “after” and “about”. (c) The statute was passed to target certain
speech, based upon its content, and specifically the speech of plaintiffs and other
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members of the Westboro Baptist Church.” Aple’s app. at 65 (Plaintiffs’ Second
Amended Complaint dated Nov. 15, 1993).
In ruling on the plaintiffs’ challenge, the district court held that the Kansas Funeral
Picketing Act was unduly vague in its use of the terms “before” and “after”. Aple’s Supp.
app. at 88 (Dist. Ct. Order dated Apr. 28, 1995). In so ruling, the district court
determined that “[b]ecause the Court finds this argument dispositive, the Court has not
addressed the remaining constitutional claims asserted by the plaintiffs . . . .” Id. at 90.
Given that the district court accepted the plaintiffs’ vagueness argument in invalidating
the Kansas Funeral Picketing Act, it is clear that they have succeeded on one of their
theories of liability in this case. While the plaintiffs later moved to modify the district
court’s order to address their additional constitutional claims after the Kansas legislature
amended the Kansas Funeral Picketing Act--a motion from which the district court
extracts the plaintiffs’ statement that the court’s judgment did not afford them definitive
relief--we decline to use this evidence to evaluate the plaintiffs’ initial success in
invalidating the statute.
The third inquiry under Farrar considers the public purpose served by the
plaintiffs’ success. See 506 U.S. at 578-79 (O’Connor, J., concurring). This factor
examines whether the judgment vindicates important rights and deters future lawless
conduct as opposed to merely “occupying the time and energy of counsel, court , and
client.” Id. at 578. In the present case, the plaintiffs obtained a declaratory judgment
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invalidating a state statute. Not only did this ruling prevent Ms. Hamilton or any other
district attorney from utilizing the statute to prosecute the plaintiffs or any other
individual, but it also resulted in the Kansas legislature’s amending of the relevant
language in the statute. As with other facial challenges to statutes which threaten speech
and expressive activity, we allow such challenges “not primarily for the benefit of the
litigant, but for the benefit of society--to prevent the statute from chilling the First
Amendment rights of other parties not before the court.” Secretary of State of Md. v.
Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984). While we doubt that the Kansas
Funeral Picketing Act has wide applicability to members of the public other than the
plaintiffs and their fellow protestors, such a subjective determination should not be the
focus of our inquiry. Instead, we recognize that the plaintiffs successfully invalidated a
state statute which resulted in legislative action to correct this constitutional error--an
action which itself indicates a significant public interest in this case and the statute in
question.
Based upon our analysis of the Farrar factors, we hold that each of these factors
weighs in favor of a determination that while the plaintiffs’ success in this case may have
been limited, it was not merely technical or de minimus. Accordingly, we hold that the
district court abused its discretion in not undertaking an analysis to determine what
amount of attorney’s fees would be reasonable in light of the plaintiffs’ success in
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challenging the Kansas Funeral Picketing Act. We therefore remand this case to the
district court for a determination of the reasonable amount of attorney’s fees.
In doing so, however, we note that the district court retains discretion in
determining what constitutes a reasonable award in light of the plaintiffs’ relative success
in the underlying proceedings. See Jane L., 61 F.3d at 1511 (holding that on remand the
district court should assess “the losses in light of the time necessarily devoted to the
litigation as a whole and the general overall success of plaintiffs”) (citing Hensley, 461
U.S. at 435-437). In addition, the district court will also have to determine the
applicability of the rule of Kay v. Ehrler, 499 U.S. 432, 437-38 (1991) (holding that a pro
se litigant who is also a lawyer may not be awarded attorney’s fees under § 1988), to the
lodestar calculus given that one of the plaintiffs--Margie J. Phelps--was both a plaintiff
and co-counsel in the underlying case.
CONCLUSION
For the foregoing reasons, the district court’s order denying the plaintiffs
reasonable attorney’s fees is reversed and the case is remanded for further proceedings.
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