Jones v. Wilkinson

PER CURIAM.

Several Utah cable television subscribers, as individuals and as representatives of a class of persons similarly situated, and several Utah cable television operators filed separate suits for declaratory and in-junctive relief, challenging the validity, under federal law and the United States Constitution, of the Utah Cable Television Programming Decency Act, Utah Code Ann. §§ 76-10-1701 to -1708 (1983) (the Act). The suits named Utah Attorney General David L. Wilkinson defendant in his individual and official capacities and as representative of the class of Utah officials empowered to enforce the Act. The cases were consolidated and Home Box Office, Inc., a national cable television company, was permitted to intervene as a plaintiff.

The Act treats the showing by cable television systems, or pay-for-viewing television programming, of “indecent material” as a nuisance, punishable by fines and money forfeitures. Under the Act, “indecent material” includes the visual or verbal depiction or description of human sexual or excretory organs or functions, including exposure of genitals, pubic area, buttocks, or the showing of any portion of the female breast below the top of the nipple. The depiction is prohibited if the “average person applying contemporary community standards for cable television ... would find [it] is presented in a patently offensive way for the time, place, manner and context....” Id. § 76-10-1702(4)0).¹

On cross motions for summary judgment, the district court found for the plaintiffs. Community Television of Utah, Inc. v. Wilkinson, 611 F.Supp. 1099 (D.Utah 1985). In its opinion the court focused on the federal preemption question raised by Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984), and by Congress’ subsequent enactment of The Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2780 (codified at 47 U.S.C. §§ 521-559). The district court found that federal law preempts state regulation of the content of cable television programming, except that under federal law cable operators may still be held liable by a state for violating “obscenity ... or other similar laws.” Wilkinson, 611 F.Supp. at 1103-04 (quoting 47 U.S.C. § 558). Finding that the Utah statute exceeded this limited power,² the district court held that the federal act preempted the Utah statute. Wilkinson, 611 F.Supp. at 1104, 1117. It also held that the Utah statute “is unconstitutionally overbroad and vague, and void on its face.” Id. at 1117.

The district court has written a comprehensive opinion with which we agree, and to which we can add little of value. We affirm its judgment on the basis of the reasons stated in the opinion.

We must, however, discuss one issue: the cable television companies’ entitlement to attorney’s fees under 42 U.S.C. § 1988. Defendant does not object to the district court’s award of attorney’s fees to the individual plaintiffs, but does challenge its award to the corporate plaintiffs. Defendant argues that 42 U.S.C. § 1988 was designed only to provide an incentive and means to secure counsel for those who could not otherwise afford to litigate for vindication of their civil rights. He alleges that the plaintiff corporations here are “deep pocket” litigants, who can afford to pay their own attorneys. He relies broadly on Zarcone v. Perry, 581 F.2d 1039 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). Zarcone stated that a trial judge considering a § 1988 fee award should look to “whether a person in the plaintiff’s position would have been deterred or inhibited from seeking to enforce civil rights without assurance that his attorneys’ fees would be paid if he were successful.” Id. at 1044.³

The Supreme Court has declared that the prevailing party in a civil rights case “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); see also Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (reaffirming general rule). In Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir.1980), we did reserve the issue of whether a plaintiff’s ability to pay is a special circumstance that can render a fee award unjust. But our en banc opinion in Cooper v. Singer, 719 F.2d 1496 (10th Cir.1983), answered that question. In Cooper we decided that the presence of a contingent fee contract would not limit the amount of a fee award in a civil rights case. Id. at 1507. En route to that holding, in addition to expressing disapproval of Zarcone, we specifically stated that § 1988 has purposes other than encouraging lawyers to take on a case, such as “penalizing obstructive litigation by civil rights defendants and generally deterring civil rights violations.” Id. at 1501. These other purposes of § 1988 compel us to say that the ability of a party to bring a suit without a fee award is not a special circumstance rendering a fee award unjust. Accord Duncan v. Poythress, 777 F.2d 1508, 1511-14 (11th Cir.1985) (en banc) (lawyer-litigant in civil rights case, representing self and thus arguably not needing § 1988 encouragement to bring suit, not a special circumstance, defeating fee award); Ackerley Communications, Inc. v. City of Salem, 752 F.2d 1394, 1397 (9th Cir.) (ability to pay for lawyer not a special circumstance), cert. denied, — U.S. -, 105 S.Ct. 3503, 87 L.Ed.2d 634 (1985); Milwe v. Cavuoto, 653 F.2d 80, 83 (2d Cir.1981) (ability to pay not a special circumstance); Ellwest Stereo Theater, Inc. v. Jackson, 653 F.2d 954, 956 (5th Cir.1981) (ability to pay not a special circumstance).

Defendant separately contends that his good faith belief in the constitutionality of his actions should shield him from liability for attorneys’ fees. But a defendant’s good faith belief in the legality or constitutionality of its action has been rejected as a special circumstance warranting denial of attorney's fees. J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985); Love v. Mayor of Cheyenne, 620 F.2d 235, 236 (10th Cir.1980); Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983); see Hutto v. Finney, 437 U.S. 678, 693, 98 S.Ct. 2565, 2574, 57 L.Ed.2d 522 (1978).

The standard the district court applied in awarding fees was thus correct. Its actual fee award involved no abuse of discretion.

We therefore affirm the district court’s award of attorney’s fees, as well as its judgment on the merits.

AFFIRMED.

1 . The entire definition is as follows:

"(4) ‘Indecent material’ means a visual or verbal depiction, display, representation, dissemination, or verbal description of:

(a) A human sexual or excretory organ or function; or

(b) A state of undress so as to expose the human male or female genitals, pubic area, or buttocks, with less than a fully opaque covering, or showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple; or

(c) An ultimate sexual act, normal or perverted, actual or simulated; or

(d) Masturbation

which the average person applying contemporary community standards for cable television or pay-for-viewing television programming would find is presented in a patently offensive way for the time, place, manner and context in which the material is presented.”

Utah Code Ann. § 76-10-1702(4).

2 . The statute would prohibit, for example, a "verbal description of ... male ... buttocks ... which the average person ... would find ... patently offensive.” See supra, note 1. The State of Utah admits that it intends to regulate matters that go beyond outright "obscenity.”

3 . Zarcone specifically established a "bright prospects" rule, denying attorneys’ fees when the likelihood of success was sufficient to attract competent counsel on a contingent fee basis. 581 F.2d at 1044; see also Buxton v. Patel, 595 F.2d 1182, 1184 (9th Cir.1979). In the instant case, in which declaratory and injunctive relief is sought, no contingent fee contract is feasible. The “bright prospects” rule is thus not relevant. Even if it were, this circuit previously has rejected the “bright prospects” rule. See Cooper v. Singer, 719 F.2d 1496, 1501 (10th Cir.1983) (en banc); J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1473-74 (10th Cir.1985).

The Second Circuit has narrowed the authority of Zarcone. See Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir.1982); Milwe v. Cavuoto, 653 F.2d 80, 82-83 (2d Cir.1981). The Ninth Circuit has narrowed the authority of Buxton. See Hamner v. Rios, 769 F.2d 1404, 1407 (9th Cir. 1985).